may please the court my name is lawrence kyra seated next to me is mr karl i race we appeared before the court today seeking a that contour of mr cross cosplay and sentence and request that the matter be transferred back to the eastern district in essence the issue before the court today is whether or not mr caruthers go suffered from ineffective assistance of counsel most particularly at the time he imposed his plea of guilty to a the important aspect of the question is if kharab school had known that he was playing guilty to an aggravated felony as opposed to a mere felony the aggravated felony has the contingency of automatic deportation or mandatory d when i get in you know that but it appears his lawyer didn't know that at the time well there is a declaration submitted by his then counsel your honor who admits very candidly that he did not consult with an immigration attorney that he had mis advice to mr caress go and most importantly that these issues raised before the district court and those those declarations came in on appeal right i understand that i understand that an outline in a sense has been provided by  united states most recently two weeks ago i think the important aspect of that is is the court has indicated a guilty plea the plea agreement specifically say that raise at least the possibility of automatic yes your honor and right there that's the main issue the fact that when one talks about a possibility a possibility is not finality even when there's an aggravated felony and there is  mandatory isn't there still a possibility of some really there is no possibility of that relieve other than application under the convention against torture that would be the only viable option which does not exist the possibility well that is a four i would one of the problems is in taking guilty plea i would be reluctant to say to a defendant you have no chance of relief i would be reluctant to say that i mean  and even when there's automatic deportation there's at least a possibility it might be a very slight possibility of an application of some kind well not so it could be so there's a small scintilla of hope that if you have the right country out of one hundred and two countries in the world is a small scintilla of hope that would be appropriate for the district judge so you have no hope no absolutely not because what you're doing is you're going beyond the statutory interpretations now and in essence what happens is the code says that the book says it is padilla says if it's in the book you have to advise your client as to what you should know at that time and what mr wallenstein knew at that time as professed within his declaration is that he didn't know that this plea was going to be to that aggravated felony and he never informed his client that by pleading to this aggravated felony he subject to automatic deportation order magic removal the fact that there may be a fly in the ointment one out of a one thousand times the counsel never even explored that so even if one were to say there's a possibility he never raised the fact problem becomes when your counsel advises you that you are going to take a plea that will not subject you to automatic deportation and that there is a possibility oh you only recognize that there must be some indication that remaining in the united states is important to the defendant is there any such indication in this record there is not and those are khorassan those declaration and defense counsel's declaration but in fairness you really can't protest something when you're getting a good deal if i take it to carvel and i give you the no icecream you don't know you can ask for brown bonnet you're taking that situation based upon a professional's advice and most importantly the court in jail e and the court indo which provides a real outline a sense as to how this court views these matters said contemporaneous is tough to do especially if you're relying upon your advice of counsel you've asked them over and over again i'll be ok he says you'll be ok and though in our case he says you'll be all right so he believes what the council gives some further the court in an effort to try and resolve this contemporaneous activity which is difficult to demonstrate says wait a minute let's take a look at the background who is this person does he have a reason to be concerned about immigration consequences and my particular case with mr caress co he's been here thirty years his brother's three brothers are citizens united states his sister is a citizen the united states he went to ecuador once in two thousand and thirteen to visit one brother his daughter who went to college in ecuador is back in the united states he has nothing whatsoever to do with ecuador he'd much rather take the risk of either a better plea or going to trial on a hail mary or rolling the dice if that's what it must be but interestingly this court looked at the deposition i'm sorry the declaration submitted and then it attention to the background of the individual and then it took a look at the rule eleven hearing now when we look at caress go caressed go not only has the benefit of the words possibility emanating from his counsel the court the a u s a the probation report itself and defense counsel submission to the sentencing report itself all of those factors talk about possibility no one tells him you've pled to an aggravated felony you are being deported none of that appears anywhere this is a forty nine year old iron worker to think that he is then going to query with his counsel after asking three or four times i don't want to be deported get me something that will not get me deported and i can live with that if i have to go to jail for a period of time so be it but i'll be in the united states in essence what happens here is defense counsel fails  his missive vice causes prejudice to mr caress go and that prejudice is the dire consequence of deportation and in fairness when everybody talks about possibility possibility is nowhere near finality the great quote is if you hear that when you're driving to the the airport and you taking your wife on a plane you think you solve all when you have your children with you oh i hope the plane doesn't crash but you dismiss that fact however if you're standing in the airport and the pilot is looking at the plane and he comes up the stairs shaking his head he tells you i want to get on that plane would you get on that plane no you wouldn't because possibility has moved to finality and you wouldn't take that chance asco never knew the ramifications and consequences of what he had pled to and the system the system failed him this could have been rectified and it wasn't contemporaneous is hard to demonstrate i understand that your honor but i would ask this court to invoke the principles that it utilized and go to come to the realisation of the reality that this man wanted to remain in the country and that was his determine a factor in taking a plea which he believed rewarded him as such he would have never taken this plea or followed with the sentence had he known the ramifications of that play so thank you  part after we hear from the government yes m good morning for the united states of america amy brusa and charles kelly assistant u s attorneys just beyond go here took a thorough plea he incorporated the understanding of the did he say that because it's just not accurate that you will be deported there are exceptions there are s visas that our office through ice gives out to certain defendants there's the convention against torture as judge chin mentioned earlier there are exceptions to that no one can guarantee what's going to happen with regard to a defendant in the immigration proceedings the exceptions not relevant here you will be heard he could have said that that would have been an accurate statement with exceptions not accurate here i don't think the district judge ever knows wouldn't know that your honor because he did not cooperate we don't know if there were other people involved in that he never cooperated and so it's a tax evasion he signed the documents he was a wanted took a one million dollars in checks to the check casher and didn't report them on his income tax return so we're not aware of other people being involved certainly we've had many tax evaders who have pled guilty and have cooperated against other people in their particular industry who follow the same course of conduct that they did in committing the criminality it certainly wouldn't be unusual for a tax defendant to cooperate he was in the plea agreement that this was a removeable offense he said to judge bianco that he read the plea agreement before he signed it that he went through it with his attorney before he signed it that he understood it before he signed it and that he did understand it and then judge bianco said as a result of your guilty plea you may be subjecting yourself to deportation or remove all the from the united states and if that happens if proceedings are instituted you will not have an opportunity to get your play back do you understand that that's a potential consequence of your guilty plea do you understand that a defendant says yes i understand that and this case is on all fours with fast in fasc how the district judge talked about a risk of remove all judge bianco here talked about a potential consequence for us it's all fours with doe doe was doe had substantial distinctions doe had a defense or anything about a defense here joe had a foreseeable billet argument don't had an alternative play dough had a way to break down the fraud to say i was involved with these six circumstances to this one in this is a low dollar amount there's no way to break down a one million dollars tax evasion except by year and when we break it down by year the loss far exceeds the amount of bother there could have been discussions with the government to get the government agree to a last mile and as with any lesser member of a conspiracy there were indications in the doe decision that there were foreseeability defenses that were there were defenses to involvement here there's no defense as judge bianco said it's nine hundred thousand dollars to a check casher what defense are you talking about this isn't misclassification of expenses and was the government giving constant assurances about deportation here the issue of deportation never came up not in the play allocution night in anything else what a contrast indo it was focused on the agents were working with mr doe were misto whoever whatever gender the person may be but they were working with the person there was government involvement government assurances you had notification to the government just like in kovacs you had notification to the government he wanted to take a plea that's rarely tak of felony because his defense counsel mr frank thought that that would be something that insulates him from deportation and that plea was taken but that plea did not insulate him from deportation or from an aggravated felony and that's a significant difference when you look at those two cases when you look at doe when you look at kovacs that's government being notified government being involved in the situation government being told he wants to take this unusual pulley because he believes it will insulate him from deportation and that's why you have a misprision of felony police because you have open discussions between the prosecutors in the defense counsel that the paramount concern is deportation nothing like that here no discussions like that no indication on the record nothing contemporaneous and as judge weinstein said if these play proceedings that are conducted and this one in particular i reference by judge bianco are to have any meaning and if these plea agreements and their recycles are to have any meeting meaning then they need to be upheld there needs to be some finality with these plea agreements this comment would would not oppose we don't think there's any need for rematch because the focus here on prejudice there's no prejudice here as a matter of law there's no contemporaneous conduct there's no indication that immigration was the  becomes willing to go along with every man yes we were but now that we've yes at this point we want this to proceed and to be decided on the issue of prejudice the government believes there's no prejudice as a matter of law the government was willing to explore whether there was an reason or objective leon reasonable conduct by the defense counsel through hearing but we don't need we don't think we need to reach that in the line of case that he had ineffective assistance of counsel no your honor no no we believe what we can see it is that if the court takes says true the affidavits here for purposes of deciding that the court can see there is objectively an reasonable conduct but we don't concede that we believe that would require hearing we don't think this requires a hearing at all because we think judge bianco conducted a proper play proceeding and that there's no prejudice here as a matter of law there is no defense here is it a fact that even if what is alleged here is could be that there are other things that are true that there are other things that were said by counsel to the defend that would cast a different light on it on the question of whether counsel acted on reasonably and gave and corrected absolutely i mean a hearing modify the ultimate conclusion because the affidavit may be fully accurate but it may not be fully complete there may be other things that were said do i understand you to be to be saying that  might have involved a better or somebody somebody giving giving criminal advice or about some completely unrelated thing he could have cooperated and are you saying that by cooperating if you had done so the possibility was open that he would have escaped deportation the possibility is that we have cooperators all the time who receive s visas and as phases can eventually track so that they are insulated from deportation he achieve that by he could have a cheese typically in my experience with the hundreds of tax defendants i've had you'll have a tax defendant you will come in someone a baker who is convicted of tax evasion is bakery and he'll come in and give us information about three competitors who see says do the same thing they all have cash payrolls they all do the exact same thing you're prosecuting me for and it's not unusual for that occur for tax evaders when it relates to an industry and here it was a steel and iron works company would come in and give us information about other people in the industry will happen here in this case i'm it's to him and he could come in tomorrow and try to proffer some information yes i mean obviously you would have to be more current than the conduct that this case is based on because that would be time barred even with the six year statute that the honor this case is about prejudice the prejudice in this case occurs at the moment of the mis advice that was never cured by unequivocal accurate advice about deportation the context of that prejudice is that legal advice was given by legal likelihood isn't that what he said judge judge bianco read the rule eleven admonishment and it says maybe warrant that's what rule eleven requires but the case law among among others say that you have to have specific advice from your counsel not from the court that would be a curative benefit that maybe could have helped but the advice protect the protections are the proper advice is that think i think could be a i think fazio i think there's another case in cases where deportation is nearly automatic deportation must be reviewed by counsel and that doesn't happen here wallenstein the trial counsel admits i didn't look into this and after this advice from wallenstein where from the trial counsel where he it's equivocal you should be all right much and i think becomes even assuming that defense counsel doesn't review that this is felony and that deportation is mandatory is there prejudice when the plea agreement sans you are subjecting yourself to automatic deportation and the courts as that you may be deported with whatever language judge bianco is is is an indication in the record that the defendant would have done something differently if defense counsel had had those discussions yes the declarations from trial counsel said there's a possibility of relief and i never told him he was mandatorily deportable the plea agreement says may have consequences rule eleven says may be removed bianco read rule eleven may be removed and then indo trial counsel said should be ok and the rule of an admonishment said may be those are all equivocal and what we have in qur'an is unequivocal advice that's inconsistent with the protections of the th amendment this is this exact advice is being given every day in every courthouse everywhere and i think that the practitioners in the trial court judges could really benefit from advice on this what we have from from the  we have here is something that so happens so routinely in an ordinary practice and it may not be what mr care and i do when we advise our clients but this type of equivocal advice is going on everywhere and it creates exactly this type of harm where you have somebody who retains counsel put yourself in mr cresco shoes where he asked for received and really relied upon encouraging advice from his trial counsel about the risks of the ports he relied on that thinking i'll get to live another i'll get to i'll get to fight this out in immigration court after this is resolved and i've been told i should be ok put yourself in his shoes in and you see how this is a big problem for him that's prejudice a problem is prejudice thank you thank you both will reserve decision