morning thank the essence of the cases come is very simple the government sought a tactical advantage in choosing a particular judge and by writing a letter to both judges sullivan and even how do they choose a particular judge i'm not sure on that part i thought they wrote a letter to both judges they did and didn't recommend that the case be reassigned to a particular judge well they said they were related in a chair yes and they also knew that i mean i'm not saying that that that that there might be a problem here but i don't see a recommendation or choosing of a propos there isn't to recommend either government that's that's why i used the word nudge i mean i didn't say they did that so they know that judge sullivan had expressed views of what would happen if mr huntley ever came back to him on a violation he repeated those views when mr hockley was arraigned on the video as aright so there and if you look at the sequence of events he was going to go before him for a violation yes and we don't complain about that right there is no i don't contest that all that unusual i'm certain is it all that unusual to warn someone no they should not violate supervised release of serious consequences absolutely that's that's a common many judges say that wasn't that a service to somebody to see do not violate supervised release you'll be sorry it seems to me that's a really useful thing to tell somebody absolutely i don't contest that what wrong there's nothing wrong with what the judge said in that instance what is uncommon in this case is that the judge who has the v o r s or then consolidates that with the indicted case that's rare that is that is that really rare so if yes not a of us are an indicted case that relies upon the same conduct as one at least one of the specifications there is frequently  a consolidation of the sentencing of the two i think is that that's not your experience well no my experience is that it is normal if you know it's hard to have a database to do this empirically but what is much more common in my experience is that the judge who has the substantive count the indicted case takes the v o r s are because the outcome of the indicted case controls of the vo s are and that's perfectly fine yes i don't and even if it had arisen from the same set of circumstances which is a letter notifying both judges and the transfer of the v m s are to the indict the the judge with the indicted case that direction would've been perfectly fine well i think i think the  going fine for the defense i mean i'm not giving away a trade a trade secret to say that people have views of which judges are more favorable to inside of the other i mean that's fine that's our job to do and to the extent we can promote that we do it's just that this is a case if you look at the sequence of events it wasn't written to the assignment committee i mean i don't know what happened afterwards but if you look at the sequence of events on the eighteenth i'm sorry went to the firearm cases assigned to judge a variance the government writes a letter on the twenty first and then by the twenty six both cases are reassigned to sullivan i don't know what happened there's no transparency in the assignment committee right and not to the assignment committee they wrote to the two judges there was no communication as far as i know to the assignment committee so part of the purpose as i understand it of random assignments is it doesn't permit either side to have an circumvents the random nature of assignments if it is prompted by a suggestion from one to one party or the other do you believe that there was a level of partiality with the judge sullivan that would have led to or should have led to or could have led to recusal no i know the only issue is that during the initial sentencing he said if you violate i'm going to give you the twelve months i'm taking off right now well and he also said that again on the arraignment on the video as are and it least you never can tell what another judge would have done but it least in this case put aside the b o s are he was going to max him and i anticipated that or i didn't do the case below but that certainly was reasonable to anticipate but it was unusual in the case is where the probation recommended thirty months for the firearm count not only did he get thirty six months but he then added six months home confinement which is a much harsher sentence it was also above the government's recommendation which recommended twelve months on the vehicle months home confinement in addition in addition sixteen months in prison plus six months home confinement at the end of that as opposed to what the government had recommended twelve months on the eve you know as our thirty six months on the substantive count for a total forty eight months by my count so there was a at least potentially a harsher sentence that was imposed and again maybe the judge abrams would have done the same thing but it's certainly if part of the purpose of an  they there's a disclaimer in the local rules that no no action can be based on that at least that that they're not intended to be the source of any rights after such so so what is the actual what is your claim here  what's the legal basis for the legal basis or twofold one is this court has supervisory power over something over the assignments if it believes it to be unfair or lacks partiality second there is certainly a duplex partiality  assignment rule is evidence of forum shopping not that in and of itself it is a right that a defendant has to claim but it is a basis to argue as i have that there is   the policies aren't regard to this at the u s attorney's office that you'd have to ask them but i certainly know from my experience in my colleagues experience doesn't happen in every case it may happen in some u sually there is consent this was not in instances just came out of the blue but i don't know the policy and i certainly don't have the basis to you know guess at it will  you may it please the court carl metzner on behalf of the government with respect to your question judge walker it's the practice of our office to advise judges in situations just like this when a defendant is appearing before two judges on the same type of matter with the same underlying facts and that is all the government did here we wrote a letter the letter said to each judge this is what's pending in front of you that's all the government did not request any relief the government did not suggest that anyone do anything all we did was let the judges know if they in the exercise of their efficiency wished to do something to can to put one of these cases before another judge if they felt it was appropriate to do so all we're doing is letting the judges know of the existence of the case that's it nothing me ask you this is there any mechanism as far as you know in the district court itself for the sharing of this information or is just the only way they will find out about i'm certain they could find out your own and of course the re see who actually has assigned the the underlying indictment of course you are in fact that's probably what if what happened here in the initial appearance on the video as our defense counsel for mr huntley tells judge sullivan the first specification relates to  charge pending here in district court he was arrested on that last week this is the defense counsel telling with judge sullivan about this there are no secrets here there's no surprise to this all the government is doing is providing further information to both judges to do with whatever they wish and as we point out in our brief what they may wish to do is any one of three different things they may choose to do nothing and each judge may keep the case they have they may choose to send the whole case to the case the judge with abrams i don't know there's nothing in the record referring a discussion between judges sullivan and abrams but as far as before you just referred to that that it involved the assignment committee in addition to the two judges in this case that's correct judge when i say that i meant the court in general that is the information to the judges who are involved to do with as they wished so that they would know that these two matters are both pending in the southern district before different judges of the same court and can choose to do something if they wish that's all the government has done and i would like to point out that the examples that we quote in our brief show that all three of these scenarios that i have described have all occurred when such letters have been sent so the suggestion that mr weinstein is making that the government was lobbying for one result or another is not only not borne out by the record in this case but is contradicted by historical crack was there a particular issue in this case actually let me back up under the statute under eighteen u s c thirty five eighty three which will govern the issues of supervised release and the sentencing on of us are not all of the thirty five fifty three a factor starts to be taken into consideration and you'd agree with that crap salute right and one of the factors that is not to be taken into consideration is the seriousness of the underlying conviction it's supposed to be the seriousness of the violation itself and then a series of other thirty five fifty three factors right yes you are ok so if we've got a situation where judge sullivan then when the transfer occurs in that direction towards him and he imposed the twelve months as part of the violation for supervised release based upon his view as to the seriousness of the underlying offense of conviction did that end up because of the direction of the transfer did that end up resulting in an infirmity in other words sometimes using your examples the transfer could happen in the other direction is perfectly fine but if it happens in this direction towards the violation and the thirty five fifty three a factors are all considered as part of that does that result in a particular problem here no your honor because the record reflects the judge sullivan very carefully distinguished between his concern over mr huntley's violation conduct how disappointed he was he used the word disappointment multiple times in the transcript that mr huntley despite the warning that we've discussed here today this by the warning of his original sentence that judge sullivan said he was being lenient giving mr huntley another opportunity to get his life straightened out but instead mr huntley got out of jail immediately started violating by abusing drugs having firearms and then acting by using the gun and shooting it in a public space in the bronx the disappointment and the breach of trust that judge sullivan pointed to was what led to specifically his twenty four month sentence and he says that in the record then he looks at the guideline range for the indicted conduct to which mr huntley pled guilty the possession of the firearm a range of thirty to thirty seven months and he decides independently that thirty six month sentence was appropriate there based in part upon the fact that this gun was fired in a public place with people around he ran those sentences consecutively as the guidelines suggest that he should so that there's a separate sanction both for the violation and for the underlying conduct but the record your honor reflects that judge belvin properly considered these issues separately unless you have an ok what is the yes what is the local rules say the assignment comm within judges of the district but in terms of the a general terms it doesn't deal with a specific situation like this not that i'm aware of your honor when they become aware of two cases when you think no i believe that perhaps is why they signed the committee exists to resolve questions like this to decide how cases should be distributed in both civil and criminal context but i don't believe that the local rules specify the functioning of the assignment committee specifically thank you thank you so a few small points in response to judge walker the preferred method when a case has to be reassigned according to the rules used by a lot as opposed to a specific judge so for example if a senior judge retires or a judge leaves makes sense to do that i mean here you presumably would send both cases to two to one judge because they overlap and the considerations are the  relevant to each case why would you send it to a new judge well as you're suggesting you asked about the rules of business for the southern district and i'm responding that the preferred method in general is by a lot and that preserves the randomness and the appearance of impartiality presumably that's why it's done now there's an exception when it's a related case and this court has sometimes for example  newman recognise a situation where the government again this is the judge sullivan sought to take advantage of a charge that he had given no other case and other judges warning given and in the court's opinion which ultimately was changed by a subsequent supreme court case on the merits criticize that process because you are choosing a judge for outcome and in and i can say the government has said it's common  let me give you my own personal example tomorrow i have of us are sensing before a judge some of it the original case was sentenced by judge engle meyer they were in combine and it just fell through the cracks no letter was written same southern district prosecutors in both cases so it's not inevitable that they do it and obviously i can't attribute a motive to anyone in this case because i don't know the answer to that so that's one of the reasons why the rule talks about appearance because it's almost impossible to choose you know to give you a definitive answer that there was a lack of impartiality thank you thank you thank you but reserve decision