decides what to do a sentencing this case started with a plea agreement a plea in a drug conspiracy case mr baker's negotiations with the united states attorney's office result in the plea agreement in which there was a recommendation to the judge that the appropriate amount of drugs to be attributed to mr baker was between one hundred and two hundred grams setting the base offense level at sixteen and his first sentencing hearing i guess i would refer to as that is a collection of mistakes or a comedy of errors or some of which i would attribute to  myself the person who wrote the important parts of the pretrial services pre sentence report wasn't in the courtroom the united states attorney who had handled the case wasn't in the courtroom there was a paragraph in the  pre sentence report that referenced behavior from my client that conspiracy was alleged to have occurred between two thousand and ten and two thousand and fifteen there was a paragraph in the pre sentence report paragraph six that talked about criminal conduct by my client in two thousand and thirteen i had not seen it in advance the pretrial services officer really had a hard time explaining where the information came from and ultimately that information seemed to be discarded along the way but it did cause oh and then the other thing that happened was that the pretrial services report talked about less than fifty grams when it was one hundred to two hundred gram case and my suspicion is that you know i don't know this but my suspicion is that the trial judge was initially bothered by seeing that number fifty though those things happened at the beginning the judge was  proffers from several people including the defendant to mind baker mr mcgrath let me let me see if i could focus us a little bit here just because we have the limited time available this morning i understand you're suspicious about the judge having used what was in your client's proffer and i think we all understand the basis of that suspicion it seems to me that had he sentenced your client based upon proffers that that suspicion would be more justified but in this case ultimately for whatever reason he chose to use money as a proxy  drug quantity correct well he took a comment in a wiretap in which my client and i were going to get to that my point is he didn't he didn't he the the basis of the calculation was money we'll get to how we got to that intimate money drug table drug on the right that is part a part of what he said after he said that he wasn't going to consider the preference of michael now there's no legal question about his right or ability to use money obtained from drug or illegal activities and then you calculated acquired from that theoretically can do that right if there is sufficiently of discussing the money that is correct and i'm asking these questions because the judge said on several occasions that whether you believe him or not that he wasn't going to use your client's proffer can i can refer you to something the judge said in the in chambers conversation it's just a couple of sentences he said that if it's not in the record it's in the record this is in the record he said i understand the point that you can't use baker's proffer against them but as a factual back room we know he was involved with huge quantities i mean we know of it it's not something that we're kind of surmising or something you know from his proffer he admits it i think it's clear that no matter how many times the judge says he's not using it in it's mentioned in the brief you can under the bill hear the judge the judge knows where mr baker sent his proffer he seems to know that he's not supposed to have it but he ordered it anyway but let's assume that that's all true if the drug quantity of the u s has cooperated by the money that was found  seized than doesn't that actually cure the problem assuming this is sufficient basis in the money calculation i don't think it cures your honor because i think it speaks for itself it is what it is you can think there's there's sufficient indication if you think in terms of a fair and just sense of the thirty five fifty three factors that the judge is clearly impacted by what he's read baker's proffer let's assume that is that then he's he's he's ultimately either don't or are not allowed to use and something a matter of fact we're supposed to specifically say if we read something that's contested and you file an objection over it and we're not going to the news events and saying basically if you declare that then we trust judges to do what they say that they did right so on trying to do is drill down to this twelve five whatever that means now between it at any point have you ever been provided with the wiretap information that allegedly includes him saying the police missed twelve five or twelve thousand five hundred i believe th was twelve it's repeat it it's paraphrased in at least two if not more ways in the pleadings that we have so ignoring which it was twelve twelve five twelve point five twelve thousand five hundred those are all things that we see in these various briefs have hit has the government ever come forward with that wiretap yes you've seen it yes doesn't say so what does it what does it say uses the phrase twelve ok so the the problem in the briefs about how your client denies having said that is that is that now resolved my client continued continues to deny that he said yes but you heard it  i understand why the government thinks he said ok so is there then substantial evidence to support the inclusion of that money in the calculation you know why because it simply you have to take two to leaps here one you have to take the leap that it's referring to the quantity that you think it's referring to and the second that it's related to drugs and what are the alternative possibilities as to the rest as to whatever the exact reference was in the wiretap we listen to wire taps all the time there are a variety of interpretations that can be made and i would say that this is one that this is somewhat of a reach while we listen to them too but generally in connection with trials when we're played to the jury and they're difficult to understand in many instances and the departed's often times have a dispute about what the words assuming you can understand them what the words then mean often times when codes are being used somebody has to interpret those often times one quantities are being mentioned then there's a dispute about is it alice's is a grams is a pounds what you know what it what one of those things mean so one of the alternative explanations on the face of the wiretap as to what twelve five would have referred to something other than money or a different quantity of money i so so it if we're in agreement that the judge can use money we disagree about whether that will cure any taint from him having heard something on a on a you know proffer what do we need to do in looking at the exercise of this judge's discretion in connection then was this an abuse of discretion to use that method of calculation include the twelve five and if so while it's my view of the process that the judge engaged in it is that he went to level twenty six based on the information gleaned from the improper reading of the proffer of the defendant and then based on that and then acknowledging that he should have it i think he looks for other justifications to stay close to twenty six and that's that's claim that the government should not there or that the judge should not have more the proper information my understanding of the guidelines and the current theory is that the got the judges in puddleby have the information you just  improperly i have a hard time understanding that distinction your honor i mean any just thinking of how how the human mind works and how we come to conclusions if if the judge ha not sure how we could use it properly but let's assume following up on judge better of this question that a judge is sentencing two or three members of an alleged conspiracy which happens as you know all the time there isn't any dispute about whether a judge can use a pro defendant b and c in connection with defendant a right he speaks to it and he speaks to it in this in chambers conversation he has made it clear that he's he's impressed by it and he's using it let's go back to the question in a multi day defendant conspiracy can you judge use the proffers of other defendants in connection with sentencing the defendant in front of them yes so when you and judge batchelor talking about your being concerned about ever seeing a proffer it's very likely that are just as likely that judge quinn saw the proffer of your client in connection with sentencing other defendants is it not possible yes so the problem of the purity of the world that that you like is that we don't live in that world so you're gunna see these documents for a legitimate reason and then we base don't duck in our system don't we don't trust the judge to follow the restrictions on the use of that information but that's not what happened in th the judge ordered up the proffer for this defendant for this case read it commented on it and then i think recognizing that it was inappropriate i think tried tried to back away from  quantity in this case and disregarded the information in the proffer this is kind of a key you can't honoring the bell case basically so did the judge order up the proffer from this defendant in connection with this that he did should have done that we did not think so we still do not think so there's only two judges in the northern district that follow this that would never do this we opposed it at the time there was there was a separate hearing where other members of the united states attorney's office came in to discuss whether he should be able to get the proffer we generally don't give it absent a court order but you would you would have provided it to had you been sentencing another defendant and the and the proffer of this defend been relevant to that other defendant sentencing right yes under one b one b one point eight so you don't agree with the way the judge proceeds either so then the question is did the use of the monetary calculation cure any error that might have occurred in ordering up this proffer you think it did your honor the judge said on the record first of all he wasn't going to consider the proffer and the judge presumed to know the law and apply it and then he had a reason basis for going up to level twenty four if you had actually considered the information ended up with as an amount was over five hundred but less than a kilogram but i think what mr macgraw was suggesting more than suggesting he's arguing is that if he had asked for the proffer more likely than not he would have been satisfied with the plea agreement and he wouldn't have been casting about for a way or a justification for a higher guideline range he wasn't satisfied initially in the first sentencing just the one hundred to two hundred grams that was agreed to in the plea agreement or didn't he say that at least part of that reason was that this defendant's own father ratted him out in the in marine lead proffer which the court looked at he mentioned that he gave his son i think large quantities of cocaine but he didn't say how much so then the question is what did he mean by large quantities the quantity that you had agreed to use for sentencing or or a larger quantity and i guess we don't know the answer that doing we don't know but that could have been what tipped the judge off that there was more involved it could have been i mean there  he was always skeptical of the amount so that he was was judge when in possession of that information from the father's proffer before he asked for this defendant's proffer i don't believe it was so that isn't a justification for asking for this proffer that could just be arguably cooperation so what do you suggest we're to do with although ultimately we in the district court argue that he shouldn't get the proffered and it's still our position that the judges really shouldn't get the proffered short of an order in this case when he said he wasn't going to consider it and then he had a reason basis for getting arriving at a level twenty four for the offense level based on the twelfth five that there was no air the twelve five  the judge asked when the twelve five came up the judge asked what was is there any was there any explanation for where he got that money from the defendant initially said that he that he had worked as a barber and he had earned that money as a barber the judge and didn't necessarily find that credible at least you can tell from the look at the record and conclude that he didn't find that credible and he asked if there were any documentation  support the source of that money on the defendant was that was unable to come up with any documentation and then the court at that point finding that that explanation to be not credible and looked at the context of the communication or the timing of the communication and from that reason basis that the twelfth five was drug proceeds and then did the combined it with the three thousand one hundred eighty six dollars that was confiscated during the search was there ever any question throughout this proceeding that twelve five assuming that was what was said corresponded to twelve thousand five hundred when i read the the sentencing transcript it seemed like that was understood that it was twelve thousand five hundred but that's what's in the p s are right and there was no objection to that portion of the p s r there was an objection to that paragraph generally but i don't believe it was to the amount of the money i believe it was just to the use of that money in the drug conversion so if we if we go back to the u s attorney in the northern divisions position the judges shouldn't ask for these proffers and i assume you mean without some particularized justification right so how do you respond to judge batchelder squash an about isn't it true that judges can sort of look at anything they want to look at they're only circumscribed in how they use the information that's actually accurate if you look at one b one point eight zero mm it just prohibits the use of the proffer against them it doesn't prove that it doesn't necessarily prohibit the judge from looking at from it but it does prohibit the use and does that distinguish between something that is provided to the court in connection with the sentencing process like we get a lot of stuff or does it also include the just specifically asking for something that hadn't otherwise been provided i think it includes both so there's nothing that you can see that restricts a judge from asking for a proffer although you may think it's a bad idea because it leads to these sorts of right exactly it leads to you know their self self incrimination issues and there's a lot of other issues and we asked for the proffer then you have to get into other things need to be redacted from the proffer which is why we got to this point or why is is too high based on the factors that that mr baker put forth the judge actually considered most of the factors that baker put forth of remorse similarly situated defendants with promote history category four and the court ultimately found that baker's criminal history which included drug and firearm offenses outweighed those factors i asked mr macgraw whether he had subsequently seen the wiretap which apparently was not made available in discovery and wasn't made available at the time of the sentencing that isn't in the record i mean i'm certain taking mr  for it as i would yours but what do we do to the extent that that becomes relevant to any opinion that we might write what do we do with that in light of the fact that apparently it's not a record well we could supplement the  that's really not in dispute all right having questions i guess i just kind of wonder even though we're saying it's not in dispute why isn't it in the record i don't know why it's not in the record it could have been provided at trial i guess the p s r talk discusses it and at that point there was no one and that's a reason to put it in the record of the twelve five is not in the proffer right you know in a wiretap so one arguably reason i suppose is that because there wasn't any objection to the twelve to the reference in the p s r to the information in the wiretap the government wasn't called upon to produce it unless and tell it came up in sentencing and then for whatever reason you or whoever was there to navigate that i think that's correct it wasn't really in dispute until that point at that point level of twenty six the druggies and he is persuaded to go to twenty four i think if you read the transcript you'll see that the choosing of an offense level of twenty six is significantly impacted by what he learned from m r baker's proffer i do think that there is evidence in the conversations both in chambers and in court that the trial judge is improperly  play and that relief should be granted for that reason and also ask the court to consider what what an approach like this trial judge takes how it impacts  resolving cases this is this is a situation where the united states attorney who handled the case explained to the trial judge that they felt that one hundred to two hundred grams was the appropriate amount because that's what they could prove you know trial and when it when it went to defense attorney and the isolates attorney negotiate these plea agreements  there should be and i may not be talking legally here but more philosophically there should be some expectation that what we're doing has some important impact on the court is that the remedy there to enter into a binding play except them or that you just think they're unhappy i have been told in my dealings with the united states attorneys that generally speaking and i've i've had a few resolve that way but generally speaking judges don't like them and i don't know i  think they view that they're sensing parag it was taken away so it's not it's not a common way to resolve cases and or the district well i'm sympathetic to that because i was a trial judge and a district or one judge felt exactly that he would announce to all the lawyers that that was a policy of of our district when it wasn't and all the other judges would accept a binding plea agreement but that created confusion and misunderstanding for the whole thirteen years i was a drug make my suspicion is that the northern district of ohio is headquartered in cleveland in the cuyahoga county common pleas court were a lot of people do a lot of their work doesn't resolve cases that way either and the judge at that point if he would accept a binding plea agreement but i think the judge made it clear that he was going to accept a binding plea agreement based on the original plea agreement numbers like one hundred to two hundred grams so  but that was kind of trying to again unring the bell i was trying to help my client your honor most binding play agreements come to the court and the court doesn't know anything more than what's in the plea agreement and the pre sentence we see that you are appointed out of the civil justice act you raise some really interesting questions here you've done a good job for your client so we appreciate your service to your client and to the court in this case thank you th