good morning may it please the court my name is melissa toohey i'm with the office of the federal public defender appearing today on behalf of the appellant mr gloomier and november twenty ninth two thousand and sixteen the government violated the law by removing mr good near from state custody pursuant to a false testimonial writ to bring him to the united states attorney's office for the undisputed purpose of securing his cooperation in his pending federal case at that meeting the government and justifiably interfered with to me or sixth amendment right to counsel the government abused power in order to basis for that argument well certainly and i understand that the government intends to raise this during their argument but certainly his right to counsel attached there was a criminal  against him although it was sealed again in our brief we argue that that was unjustifiably sealed by that point in time on november twenty ninth the government's own evidence proved everything that was used to bring the  indictment against mr gloomier with known by november third also your honor the government violated its own sealing order by discussing the contents of the criminal complaint with him at that november twenty law that cited in our brief is that when whether it's by formal charge when the government has committed itself to prosecute the defendant there is an adversarial proceeding certainly there's a joint prosecution happening at the moment the state and the federal jurisdictions are speaking to him about charges in both jurisdictions there come from ting him with the evidence they're discussing how they want the case in the state matter which is conditioned upon him cooperating in the federal case and the government is talking about seeking possible charges that may be coming in addition to the sealed charges that they're talking to him about there showing him the evidence and the reason that his right to counsel attaches is because they are prosecuting him and it can't be that the government gets the benefit of his right not to tell by not bringing him into federal custody because they are the reason he is not into federal custody where he can see a magistrate and notify the court that he cannot afford counsel normal case and correct me if i'm misunderstanding a spit in the normal case if he had been in custody and the government had to change a criminal complaint in an arrest warrant with the intention of going out and finding him we want to say the sixth amendment right  then would we say to attach what he's presented in court on that complaint well right so the reason so but they you know i i have to say that the government has committed itself to prosecute the adverse positions of the government and the defendant have solidified and the accused by in some self faced with the prosecutor or what's your best case for th so that is cited by that cited in the circuit's decision in stein and in this circuit's decision united states versus more which the government is going to present to the court during its argument meeting we gave the impression everyone else that you were going to be seeking to represent him on the federal side if the family comes up with the money that's yes yes we would have so you know he was there and he said yeah i'm going to represent i just his take the case in a retained matter for an indigent client russian kilgour laugh that he would be robber i i have to respectfully disagree with that because he said first of all i don't even know when these conversations with mr good near his family could have happened mr kilgour testified that he never spoke with mr boomer's family and the family members that are at issue are involved in the prosecution against mr mir they're talking about his sister in florida who presented evidence against him that is in the hands of the f b i that they have reviewed so and they're having the conversation in response to mr stating he needs federal public defender i'm only here on the state matter so the government has a constitutional obligation at that moment to make sure that his sixth amendment right to counsel is secured and they did not do that by bringing him to the where he could have applied for counsel through the filing of a financial affidavit and this there was experience on the federal side to the room he had some limited experience but his testimony stated that he wasn't even paying attention to anything that was going on with the federal case and another reason why this is problematic your honor is because they're talking to mr gould we're about to seal the federal charges that pertain to one victim and then they're saying all these other charges are coming and they're talking about charges that aren't written down they're saying sexual exploitation about to victims and this could happen or that couldn't happen and maybe it's been fifteen years but it could we're going to ask for sixty  videos of the two girls to a sister and yes we're talking about well he's still presumed innocent him he sent the videos but i think that i think that he's presumed innocent at that moment i mean he's he's entitled to the presumption of innocence and that's the problem too because he doesn't have any advocate defending him testing the evidence nothing has been tested at that point whether the right to counsel or the basis for saying it hadn't attached on the federal charges this would just be sort of standard investigative behavior right they could introduce an undercover to get evidence from him they could go not going to store and say we'd like to interview you we think you might be charged  and so in some sense if the right to counsel had an attach he was benefited by having an attorney there who was giving him some degree of advice but i think that there's problems with that because your honor he let's not forget he's in the room illegally so it's he's not consenting to engage in this and it's interesting because during the evidentiary hearing when mr kilgour testified that he was surprised to even see mr gloomier there he thought it was a meeting about the joint prosecution and mr lowell rick said to him well why don't you complain first of all the because the matters are sealed he can't even search the docket he can't even know that a writ was applied for in violation of law to move to quassia he's not even on the docket he's not representing him in federal court so i think that it's a different circumstances this isn't like a voluntary knock and announce like they say in your reply brief that the right to counsel attach by the time of the you november twenty ninth meeting where do you say that you know where do you say that in your opening br had first i don't i don't and that might have been a misstatement i think is right to counsel attached definitely november twenty ninth in that room and we also are in your opening brief you can tell me w to your client the government's decision to file the arrest warrant in a criminal complaint under seal so your honor we're arguing that the prejudice is presumed under the analysis set forth in style and that relies on the united states supreme court decision in united states versus gonzales lopez that this is a structural error that affects the framework of the preceding and therefore prejudice is presumed this is not a harmless error analysis case because the harm cannot be quantified the deprivation of his right to counsel is completely upon the erroneous deprivation of the right to counsel so we're arguing that it is presumed under the analysis set forth and stine in the supreme court precedent if they were would you would you agree that so that the proper remedy use is just suppression of a confession honor i would not agree i think because that cannot restore him to the place he would have been but for the constitutional deprivations that were caused in created by the government suppression isn't going to undo the fact that he has a state conviction that was imposed that carries a twenty five year sentence for a fifty year old man that has to be served before he can even start serving his federal sentence so the right to counsel applies at all critical stages of the proceeding which calculations in the pre sentence report begin that paragraph twenty three and continue through paragraph seventy six he was not prepared to meet that he didn't even know the statues that were involved or the penalty provisions to address all of that i just want to address one more thing about the attachment issue i will argue that the government never raised that in defense of our argument so that is waived and we did cite counsel in that case it was the right to counsel of choice here mr good mayor is indigent so it's the rights of the assignment of counsel based on his indigent thank you please the court pulls over for the government if i may as counsel indicated i have an additional citation i'd like to provide the court i have three copies if i can hand them to the clerk  the cases united states versus more citation is six seventy said third to twenty two and in determining whether a sixth sworn out by prosecutors is insufficient prior to the initial appearance before a judicial officer and that was in the context of whether the sixth amendment right had it i looked at this case because as i understood the opening brief the principal claim if not the sole claim was that he's been in connection with his me as you pursu stein the activities that occurred that are complained about by the government occurred prior to the attachment of the sixth amendment right to counsel but the effect of those pre attachment activities had a post attachment effect and we have argued here that the only thing that mr good marking point to as a potential problem created for him by the activities priest sixth amendment is the admission of this confession were obtained in the confession that indicated in her remarks here today cooperation in the federal case and that was the submitting to an interview by the f b i was asked for by the state prosecutor to determine if there were additional victims in return for engaging in an interview with the f b i the state agreed to limit the exposure to the twenty five years were to recommend the twenty five year sentence based on the to represent that if he only had got some more money he'd be able to to represent again mir and what he he says he says he didn't ask for the copies or the federal charges that he did no research about the possible charges or penalties that going there would face in federal court he said he didn't do it big do so and that camaro was and i quote on his own at the meeting in regards to the federal charge he also said that he referred to the possibility of a plea to only two counts during his his conversation and the right to counsel attaches on some formal charge and in that context it doesn't attach when all you've done is get in there arrest warrant on the basis of a complaint in effect there was an attorney present who is not the attorney of record on the federal charge but mr gilmore had no right to counsel in the federal charge during that meeting on the twenty ninth now and with your counsel or not that's is what i'm trying on is well i think judge m clearly had some discussions with mr goo more about what to do in connection with the federal charge judge mcevoy interpreted that to mean an attorney kolker was suggesting the global resolution of the state and federal charges but all of the things that were pointed out to you by my adversary today that were mr kilgour made clear i do not represent mr gilmore in the federal charges can't be discounted my answer to weighing those competing interests is it if anything i believe i don't want to put words in your mouth cares livingston as you said earlier if anything it helped mr mark to one degree or another to have mr killed there at you imagine circumstances where it's the worst of all possible worlds where on the one hand it seems that yes he has a lawyer and then on the other hand well he's not really his lawyer and so there's no right that to counsel that you know because no right to counsel attaches i might i'm sorry i might be able to imagine such a circumstance but i don't think that's what happened here and it may be that i do think the fact that mr killed mr boomer clearly did not have a right to counsel is to her about the fifth amendment though i mean he was in custody no doubt about that and once he says he's in custody even though the sixth amendment has attached once once it's attorneys in custody and he says i want to lawyer question supposed to stop and ok he had killed her there at the meeting but kolker saying i don't really represent him on this what's he supposed to do so upon him to say i'm going to answer more questions well he wasn't being questioned at the november twenty ninth  later meeting on december sixth the f b i conducted the interview that was made part of the state police but aren't there elements of compulsion around the the making of the statement there i mean  been brought to the u s attorney's office improperly versus on the basis of a writ that shouldn't have issued for that purpose if i'm understanding the current record correctly and he was being told that you're only going to get the state plea you're going to get life or you you know you can only capita twenty five years if you talk to the f b i well can you make a voluntary decision to speak in such circumstances well that decision whether or not to submit to the interview in connection with the state charges he clearly had the advice of mr kilgore to do that right so that has nothing to do with the federal charge other than ultimately we  that statement were involuntary it couldn't be used in connection with the federal charges it would not have been usable in our case in chief but there was no claim below that it was involuntary and there's no question but that at the commencement of that interview this there's one more point that i'd like to bring out and i have to apologize to the court for this i cited the case of united states versus the done june and for the notion that  when there is a specific constitutional right at issue one cannot resort to a claim of substantive due process deprivation which is the government's position here that we're talking about whether or not the sixth amendment right to counsel was violated and we shouldn't slide into a quote a question of whether or not that amounted to some kind of substantive due process violation what i omitted in this is what i have to apologize for is i think madonna agent in is dispositive of this case because in that case the the law enforcement officials took at present a ring meant statement from the defendant knowing that his counsel wanted to speak with him and they did not tell the defendant that that his counsel wanted to intervene in that way and the only thing that resulted from that was the admission of the defendant's statement at trial and this court held that that was not interference with the right to counsel under the sixth amendment and i apologize for that because we it's been a very convoluted process i think to get to this point but as i look back and prepared for the argument i think more which establishes there was no six member right to counsel and medunjanin which says that the admission of a statement taken in these kinds of circumstances you do you could you enlighten us at all about why it took the government so long to effect the arrest well i mean as it turns out i think the argument by mr gilmore is correct we had most of the information if not all of the information before or a by the time we filed the complaint or thereabouts but that's not to say that we weren't continuing the investigation i mean first of all the charges federally relate to the images that may or have been produced during the abuse not to the abuse itself and there are questions about whether this friend of participated in the abuse by allowing his apartment to be used so  know i just i think it was it was a reasonable action on the part of the government to let the state do what it was doing let's develop what we can federally and then we'll bring the defendant in and i disagree that there's any requirement that an arrest warrant has to be issued in a specific time i mean day in and day out that's what law enforcement officers do is to determine when to effect  is it your position that it's it's ok that it's it's survives constitutional muster too in a circumstance and i understand that your you would say this is not that circumstance to intentionally delay triggering the right to counsel for the sole purpose of negotiating a plea deal without an attorney being there or for the sole purpose of  protecting against ineffective assistance claims attacking the plea that eventually in and says i would say your honor first that if we're talking about denying someone the right to counsel then we should be talking about denying the right to counsel not a due process claim i do concede i would say that there is a due process claim that's akin to statutes of limitations in the sense that pre accusation delay even if it's within the statute of limitations might give rise to a due process claim but you know when you're talking about years of the last day maybe the police have an arrest warrant they lodge it and they do nothing to try and find the defendant those types of circumstances arise under the due process clause in my opinion but this has nothing to do with that in my opinion especially and even if it did we're talking about a three month delay maybe from the state arrest to appearance in federal court and things were happening and generally speaking delay is improper but unnecessary delay is not and so comparing the criminal complaint which was from october yes a to thirteen two thousand six hundred to the indictment which is january eleventh two thousand and seventeen you said there were good reasons to seal that complaint because of a proper investigation was continuing there might be other things was there would be a real difference the charges in the criminal complaint and the ones that found their way into the indictment there were there was a significant difference in the charges they were expanded to include it a new victim the younger of the two victims it was the five year old yes your honor so yes it's my understanding and i had not parse this out because i didn't see it as a significant issue how much of the evidence that the government knew about in  october if there is new evidence had been obtained by the time of the return of the indictment there may be a similarity in evidence but the charges definitely expanded and the and just making sure i'm remembering the first i just want to answer the court's question about the right to counsel on page thirty eight of our opening brief we talk about that the government's pretty indictment cond conduct did not and we also raise that in our papers below so i i don't understand the government's argument i guess in the court below they were arguing that kilgour counted and that he was perfectly fine and now they're saying he doesn't count in mr gloomier had no right to counsel at twenty ninth so it's sort of that they want it both ways that either it killed or counts and all these decisions are informed or he doesn't count he doesn't have a right to counsel and and the government can't abuse process and then come to this court and say well you can't look at the fifth amendment unfair proceedings because you can only rely on the sixth amendment right to counsel you know only assert one right well they violated both of those rights so he's entitled to the protection of both of them  i wanted to say the record is complete with government evidence coming from the own from the government's own sources that the investigation was complete by november third everything in that eight count indictment that was on january eleventh was known by november third that cited in my brief there's numerous references also in the government in their pretrial filings they filed exhibits under seal that this court has and those exhibits contain agent lyons f b i three o two reports where he talks about everything that was discussed at the meeting which is everything that's in the indictment and also he notes that on december twenty first he received a call from a d a bergman that said state court guilty plea went through and then on that date they brought him they made the they apply for the writ to produce him in federal court for his initial appearance to answer to the sealed criminal complaint that they had already discussed with him in violation of their own sealing order again that delay was caused by the government