good afternoon your owners please the court i'm stephanie carlon counsel for boris killed guerrero your honour's in this case there was substantial evidence before the just a court reasons for the court to conclude you nine states more than a year before he entered his plea four days before trial was scheduled to begin and the government belatedly turned over discovery the government had initially believed that no evidence had been recovered from m phone discovered they were in cracked turned over that evidence four days before trial that evidence according to mr gill guerrero's counsel's assessment and all this obviously is a matter of record completely changed the landscape of opinion was not the extent of the evidence but his lawyers analysis of what that evidence did to the defense in front of the just accord in their conference about whether or not you know what is the effect of this what is going to be any sanction for this court declined that two days after excuse me three days after that mr gill guerrero after on the record all over the record aggressively insisting on going to trial himself not just through counsel but directly addressing the district court about he wanted his speedy trial then changes his mind in light of not just the gist of this information but his lawyers analysis of it mr put in affidavi similar to the court's decision in the united states versus johnson a two thousand and seventeen decision in this case of this court in which the defendant plead guilty pled guilty to a crime that subjected him to a mandatory minimum of life in prison during the the government and the just the court discussed the application potential applications of the guidelines nevertheless the government twice said the guidelines were trumped by the fact that he faced a mandatory minimum sentence  johnson said he understood that he discussed the consequences of pleading guilty to with his lawyer and four months later he sought to withdraw his plea claiming that it that it wasn't voluntary in this case something very similar happened which is there was seven and eight he said i'm at a loss for how to reconcile the you know there was he said there was nothing new that's exactly right you know he said the new material knocked a hole and shattered his defense that's exactly right your honor the district court made a major decision about the most motion to withdraw the plea based on a completely erroneous either factual finding or logical analysis which was that there was nothing new about jane and his house i was found with no drugs for days before drywall the government says oh no we found four kilos in your closet also that is new evidence that fundamentally undermines my view is the defendant of my options in that case does it matter that it was on his phone and they couldn't open it because they didn't have the password was the the problem now is it turned out they could open it and they did open it they were able to remove the s d card from the beginning apparently the government was unaware of that fact because of some internal filing issue with the da there's no question that it was a rule sixteen error there you know the government conceded that in the district or provided no remedy for that mr gold was standing there when the district court provide said ok it's not a surprise therefore there's been no prejudice to the fact that the government didn't turn it over that's not the case here the significance of this evidence was the fact that the government connected it to mr gill guerrero if the government has evidence about different analysis this was new and it was a surprise and it should have given rise to the district courts taking greater care in ensuring the plea was voluntary but the questions were like this which is the spread she was on his phone so one of your arguments was you didn't have enough time to really analyze it in four days before trial but if it was on his phone and it was spread sheet in his records isn't that relevant judge the my argument is not that he didn't have time to analyze it that was the argument the trial counsel made my argument is in light of all of those circumstances that existed the district court had an obligation as it didn't johnson to take greater care than in the standard case when  plea two weeks or two months into the trial into the process into the proceedings prosecution without any indication that there's any problem here mr goh guerrero had turned out a plea of sixty three to seventy eight months he took a plea so there was a substantial reduction but in these unusual circumstances i think this falls completely into these courts cases that say there was a greater obligation to to make an inquiry at the role of an and the just record abused it discretion denied the motion to withdraw the plea blazed based on this difficult to understand assertion that there was nothing new or surprising about this evidence why have you for a quick hyphen so we don't lose track of him it please the court my name is alex ross miller i'm an assistant united states attorney in the southern district of new york is a trial or account so yes i was here i discovered this rule sixteen violation at some point was to try turned over the information to the defendant as soon as possible yes my colleague and i turned it over and i think the record reflects you resist a one week delay your honor there are a variety of reasons in the record that go back and forth between trial coun the judge regarding a potential delay the my colleague and i represented to the court that we would call the relevant witness who testified about this at the end of trial providing  evidence that we're discussing here the entirety of the spreadsheet was one thousand and one lines depending on how you print it it's between ten and twenty pages of individuals but the government did represent to the court that we simply intended to show the single first page of this document and that the defense counsel would have it doesn't make a difference the length of it as judge droney asked the important part about this is that it was found on this defendant's phone is that correct didn't make a difference how long it was it was on his phone and that's what is so highly criminal yes your honor it certainly was incriminating evidence and immediately when the government discovered the evidence it turned it over to defense counsel which would have had several days prior to trial to process gazes as i read the timeline with thursday to the monday of trial your honor to process the evidence and then additional days to decide how to deal with it going forward but the question for the court is what this is an error of the prosecution and yet you resisted a one week delay that seems to me sort of mean spirited i understand your honor and certainly the district has has very broad discretion in scheduling issues the board of this will lay the district court i'm sure would have granted it but i can't speak to that your honor but certainly any trial has a number of moving pieces this was a extraordinarily lengthy investigation with  an international investigation with of course witnesses traveling for trial weeks and months of preparation people schedules who were lined up and so there i think were ample reasons for the trial to go forward on time and ample time for defense counsel to process this information and the question really is whether the defendant's will was over born in the plea in other words whether the  rendered involuntary through this process and the answer to that is simply no the defendant here pled guilty knowingly involuntary before judge crotty the district court complied with rule eleven in all respects thoroughly satisfying itself was voluntary and that the defendant was competent to enter the plea the defendant himself stated under oath that his plea did not result from force threats or other promises he stated under oath that he was satisfied with his counsel and counsel's advice and representation his answers confirmed that he had not been coerced into pleading guilty and his engagement throughout the process showed that he was was aware was with it was following along and all of these processes satisfied rule eleven why is johnson different johnson is different because in johnson the defendants so johnson different for two reasons your honor the first is johnson was actively misled by the court in the colloquy during the rule of an proceeding the defendant was led to believe both by the prosecutor and by the judge that there was some alternative sentence other than what in fact was a mandatory sentence so for purposes of the rule eleven proceeding that is the stark difference between this case and johnson with respect to the procedure it's also notable that the in johnson the defendant  claimed in his motion to withdraw the plea that the court had committed air so that was a that was a preserved objection in johnson where it is not here which brings us to the motion to withdraw denial and it's clear that the core of this record did not abuse its discretion in denying the motion to withdraw the plea largely for the same reasons that i've just described the motion to withdraw the plea was a bait on the argument that the police was involuntary and not notably on any rule eleven infirmity and was denied by the district court for precisely the same reasons this court should just deny those arguments on appeal the diminished likelihood of success at trial simply does not vitiate the voluntariness of a plea deal it's when it came to diminish likelihood of success at trial happened two days before this trial was supposed to start after years of preparation according to his trial lawyer government stated and it's in the record that the government had recordings of the defendant with a coconspirator discussing the cashing of extortion payments records for money gram in western union showing the defendant directly received was not part of the particular conspiracy with which he was charged but another conspiracy we have of course the claim that your honor but i'm saying that these pieces of evidence went directly to his participation in the charge conspiracy and i should say it's certainly not the case that the government careened toward trial with no evidence connecting the defendant to this particular scheme and happened to get lucky four days before in addition to the evidence that i've just described there was also thirty five hundred material disclosed shortly before trial really revealing that there would be two cooperators testifying and testifying with respect to the defendant's particular participation you'll agree this case has to be remanded down sure because of any current yes your honor for forfeiture and i believe we put in a letter reflecting that he did let me ask you about this untimely rule sixteen disclosure and my right to think that the government had previously handed over an identical list of purchase there's and prescription drugs that right period of time that the that the district court in the government acknowledged would be allowed between the disclosure and its introduction at trial which was how many days which would have been at the end of trial so i think the record reflects that we expected it would have been approximately a week following the disclosure and is it accurate at the time we disclosure the only thing new about it was the fact that the identical list was found in ghana where he'll get better follows that right i'm sorry your honor i think i may have missed the first part of a question was the only difference that was found on his phone it certainly was consistent with other lists that would have been evidence at trial and as the district that's what made it in day yes of course and those other lists would have been incriminating as to the scheme in general as would have been the cooperator testimony the recordings of the defendant talking about this scheme and as the district  noted the existence of the lists in general were were very common in the investigation would have been introduced and these lists in particular and i'm quoting here were not new nor were they voluminous or complex appendix at four ninety five we're talking about less than twenty pages of what the district court described as for mill your material and obviously as the court referenced earlier no surprise quote even if he the defendant was disappointed in the late production of the material and that's an appendix for ninety five consistently said that this was not because he had seen this material from the defendants i think with the district court said was that this material this evidence that had been turned over very recently before the defendant decided to plead guilty including the identities and thirty five hundred material with respect to cooperators and it's notable and in the record that the defendant had previously threatened to out the cooperating witnesses and that he had asked individuals he believed might be cooperating with the government to lie about his role and so just a few days before trial or shortly before trial he finds out the individuals who will be testifying against him he gets this new evidence and again the question is whether this made him unable to to evaluate a plea whether he was subject to actual or threatened physical harm mentor mental overbearing his will or sheer inability to weigh his options rationally what is your view that judge crotty made findings that there was no how did he how did he respond to the claim made by the friends counsel your honor to the claim my recollection is that the district court went through the process of a of a rule sixteen issue and so he noted that the material had already been turned over that it had been made available to defense counsel and then addressed whether there was a remedy that was necessary defense counsel requested an address and that's in effect the finding that there was no prejudice yes your honor certainly the evidence if what the court is asking is whether the evidence was allowed to be used at trial but the district did deny defendant's application that the defendant that the evidence be trial approximately one week later to introduce the first page and it certainly was evidence that was bad for the defendant but the question is whether that made him unable to voluntarily plead guilty would have been helpful wouldn't it  was yes i think that would have been on an unusually specific question in the context of ruhleben plead it would not have been appropriate but certainly nor is it necessarily on a subject any other questions of the government will rest on the brief promises to induce him to plead guilty that's it a three eighty three of the appendix he did not specifically the court did not mention force nor did the court explicitly ask whether the plea was voluntary i mean obviously the issue here is not magic has said that over and over again i have no disagreement with that there is a very substantive question here which is in these unusual circumstances of this case to the district  place before the district court upon remount that is an excellent question your honor in the question is what my client hopes to achieve my client is in the dominican republic he was returned following his extradition here once the he did not fight extradition previously so the plea would be vacated and that the case would proceed as any other case he already served his fifteen months he's already served just fifteen months now is in the dominican republic that is correct  was he sent there by the our government he was originally residing in the dominican republic he was extradited here to answer these charges as i said he agreed to be extradited but he was brought here through the extradition process and then returned cording to the extradition process once the sentence was completed he was drew the plea would he want to have a trial now your honor every time i speak to a client in a case without going into what i've advised him in this case i always describe to client the potential benefits and detriments of seeking any relief in this course and i follow that path and everything just poor to death having already served i would just note that the red brief says that he'll get better is serving a he was wrongfully convicted that he did not have an adequate opportunity to consider his options that his plea was not voluntary and he wants to vindicate that right just one other quick factual matter in johnson it was exactly what happened here mr johnson