well it may please the court and with your permission or your instruction if i can either refer to my client's name or if you would like the record to be clear that i'm always referring to sealed appellant or the names of other parties i did know how you want  to address that we are to me if you use the name that's your discretion this case is about loyalty and while our profession does not require a lawyer to always fall on the sword of his client it does require us not to impale our clients on them and when we as a profession have a value of self governance if we want to be able to control in the authority of how we discipline ourselves then how we deal with conflicts is instrumental in this case is a beautiful test case because it really puts into account things that we both agree on which is the integrity of the system and or you get that the vast integrity level europe you're with the relief you're requesting is to vacate yes the guilty plea yes and therefore you accept that the government would proceed to trial yes it could supersede yes go back to fifteen counts yes ok then then is there any reason they wouldn't be able to use your client statements in december where he's saying the lawyers bribe me i think they intend i absolutely believe they're going to do that and that's going to have to be a relief you're asking for i mean it's his own statement saying i was know he would be exposed to a huge amount more than the c one c plea he took it's his own statements that based upon what might lawyers told me that under this grace case and under their view of what happened in skilling which i think is bad advice if you took anything a peppercorn with the intent to be influenced that's bribery and i think he got bad legal advice so his explanation for telling the f b i that he was bribed even by his t current lawyers is that now that he veteran judge prosecutor defense attorney knows the law what he thought he was taking as a bribe wasn't a bribe either the expressed my biggest fear in this case which is this idea that mcginty is this perfect defendant who is omnipotent and knows the law both federal and state and so first he's a state practitioner not a federal practitioner and there is a huge difference that i think that he isn't aware of number two i think judges are far more vulnerable having represented several than regular descendants i think you have the biggest target on your back and at that point you are the person that gets far more isolated than any other person no other judge will talk you you're isolated by your peers the lawyers at that point all view you with suspicion so i do think he's in a very very narrow window of listening to his lawyers and the reason we know that is because he's so inconsistent in what he does and all i can tell you is it's accurate if he was sophisticated and his lawyer says don't talk to the f b i when they come to your house was he did you talk to them when they said well i guess maybe just focusing on the hay vs denial and whether error there in it doesn't seem clear to me we have to reach that much trickier question of strickland or kyle or if your client security is counts of the people that he himself thought had bribed him why would the government have to disclose anything and that's their argument and to address that argument we have to go back to the ladies parking lot one night because that's when brown that's when his lawyer says you need to meet me in the luby's parking lot you're under investigation remember this didn't start with mcguinty reaching out to these lawyer saying i need help i got only from the u s attorney's office from a person who is now a federal judge giuliani and sid haro and you are under investigation so if we start at the inception he wasn't looking for their counsel they came to him and said if we all be quiet  year sentence and the reason i do is my attorneys were ineffective and they were ineffective because they had a conflict but i don't see any law that would say he can assert the conflict if he knew about the conflict he thought they'd bribed him he knew that he told the f b i that so here's here's where i disagree related to the word bribery and he knew first off i think the advice he gets is contaminated from the moment he is told in so you have to look this is why kyler is so important because because the idea is ever appointed his first affidavit as i thought we were having a trial my understanding was that we were having a trial and i had witnesses and the i didn't do anything wrong in the very people that told me you didn't do anything wrong because we've all done these kind of things for one another but in his plea agreement he swears to being fully satisfied with counsel he does you're right you're not saying that the statements that he made to the f b i were false statements to a federal officer no i'm no but i'm suggesting that we're bribery is certainly the word that gets used over and over again because that's what he's been told and he then believes well i must be guilty of this and so if i'm guilty of it in this case i must be guilty of it with these other two lawyers who they clearly want to talk about and they clearly want to debrief with me because i think this investigation was far far bigger than this new judge or any new information that your client after he read to be represented by them and didn't get any new information ration i mean he he knew about the bribery or  he assume the risk i think at that point he felt like he was indebted to them because they came forward to him and said you're under investigation in this is what we've learned in a federal investigation that i'm looking at on stage he was indicted today i think because he's come to represent him well  i would say that he wasn't expecting this call the say meet me in the libby's parking lot you're under federal investigation and so when someone then comes to you that information i would assume that your source of information those lawyers are pretty important and that's why they say he continued that relationship is one of obligations are wrong word but certainly this is how he learned of it he didn't get a knock on the door first by the f b i he wasn't arrested he's learning it from them so he figures they know everything and further if i was a better lawyer at the time i'm sorry that i made this mistake i would have realized that very outset there was a multiverse in taishan issue because they say i'm talking to in giulini i'm talking to state horo and i'm talking to you so when you ask about heiler i do think they're beginning you're already having two lawyers talking to multiple judges about a federal investigation which gets really messy really fast and i think in answered your question it's all about his perception of what he's told he's done wrong and so now it's multiple people at that point he knows there could be a conflict why doesn't he then asked the district court that's going to take his plea hey i want to disclose something i thought mike mike my lawyers are representing a bunch of people let's get  whether there's a conflict or not that is there but i guess my take is that ultimately the trial court is the authority and if you know something or haven't is concerned you have a freddie hearing you have a garcia hearing you have an open court so that way at least you only have a  defendant says i want to go pro se the whole problem here is your client didn't disclose that he thought his lawyers representing multiple counsel he doesn't disclose it all the government's got is a snitch that they have anxiety about his full ity you know three o two they're giving to the lawyers the the part you know obviously in course here he's a covenant can't walk in and blow up relationships all the time just because that's what it says there's some problem here they need to be careful not to intrude into the defense camp they would expect your client who knows these people and knows they're representing other people as you just described would have that obligation to come forward say judge i'm a little worried about taking this plea and my best answer is that that's why that relationship is so important to be to be undivided so that loyalty cannot be at all of an issue because i don't think a trial judge would have up one of these two lawyers to represent him if we look at it the other way i don't think we would tell a law student this is a good relationship or begin to if you look at it may not the way people interesting tough question had the trial judgment toll the difficulty here is you're asking the government to disclose something that they even after your client tells them he was being bribed they couldn't corroborate but your client is the one person who knows  i think those accused let me break it into two separate issues so the one thing is i'm trying to deep grief to get a five k or something to say there's more information about this corruption issue the second is really about the conflict where a criminal defense lawyer deep briefing and is being asked to well us does what you do any names to lawyers brown and norton this is i guess the conflict that i keep thing to hard for me to ever get away from that once i as a criminal defense lawyer see my peer being interrogated being asked one of the same things the first thing you're going to try to work in then and then this whole issue is after the fact that after that he's pled guilty and after his getting advice i think second legal opinions rather lawyer saying hey you might have been the fall guy isn't the seem odd that this is a huge corruption investigation and that there's another magistrate that was accused of taking money in exchange for resetting bonds recross you cite approvingly the f b i sworn affidavit you're indorsing you are backing up i think you're right i wasn't there and so all i can be able to say is if he if he said that that was true under oath that he was right before any of the rearrangement by these two people yet still picks those lawyers as he is seems like he's fully knowing and it looks like if anything is the district judge that it's either collusion he wants to run the police through because they're all exposed or he just doesn't care thinks they're great lawyers but he's informed of the conflict and he's implicitly waiting and i guess my answer is twofold number one i didn't i don't mean to suggest he used the word brought about that the government's f b i agent says this is what was said and i wasn't in the conversation i thought i do think at some point he's being told did you ever accept money from them with the idea that it would influence you and he said yes and he was told by his lawyers that under grace that means you're guilty of bribery and that's not the law and i think at the sentencing hearing when the government says even up peppercorn is enough to go and pay the garage for the maintenance work i knew that was done on his behalf which is a bribe if he's doing favors  for those two lawyers that are now his lawyers i don't see where i can't imagine that he really wants you win this argument because he's working here i think i think very much to us and well let me tell you about the current lot of exposure if you don't let me address the garage and i get in i thought a lot about the garage issue because too there's two issues there there's two issues with the garage the first is if it's a bribe why is he paying a few hundred dollars for the car repair and the parts he was told they were incendiary or for money well but he also but he also at that point bill eans that these were favors and so when they complain that it wasn't but it says this car mechanic owes me a favor and the mechanic wasn't a defendant in his court and there is no benefit for the issue and the second issue was never that's a conversation he has with the lawyer i mean the lawyer says hey we should we repay this and so that's another issue for a conflict is when that lawyer is he can't use an advice of counsel defense i think there are two different arguments or either he said i'll back dated or i will repay them but i don't depend depending on who says it i think there's a dispute as to whose advice it was to go and give a check to them and say it was for these services but we know the amounts very small and so i figure it's a bribe you want to give a five or ten thousand dollar amount but the fact is if he's only giving a few hundred dollars and the guy says look it's been paid for already i mean he's not in those conversations he's not in those one to one so i do think that he very much does want to vindicate this i think he was told one thing which is we're going to have a trial and that just because you accept something of value if there's no quid pro quo it can't be bribery and all the things that happened in this case  there was no agreement at the beginning if you take my car to be repaired then i want no bond and that's what grayson has graced gets eight thousand dollars to write a letter for a fictitious company to the to raise three million here it's influence  like what the judge says about campaign contributions and when you look at citizens united or this idea of what you can do it becomes very difficult and so if he is misled into told time and time again you're guilty i think that's where those statements come through good morning to may please the court counsel my name is page message chemist's isn't u s attorney from the district of new mexico and it's a pleasure to be a visitor here in your circuit one of the toughest things for me about this case is keeping straight which version of his ever changing story in this mcginty is reliant upon at any given time and then what are the consequences for that particular argument in its simplest form when it benefits him again  wants the court to believe that his lawyers were dirty and when it doesn't benefit him you want to believe he wants the court to believe that they were innocent and i'd like to talk about how that figures into the way for analysis let's start with the story that mcginty argued for advanced when he was attempting to get a substantial assistance motion from the government to reduce his sentence in that verse and he argued that his own attorneys had bribed him with cash and free legal representation with the expectation of receiving judicial favors which he mcguinty then actually be stowed now it seems to me that he has backed away somewhat from that argument or from  i would we be able to use those facts if they are contested to resolve whether there was a knowing involuntary plea i think that we can use those facts as t knew i mean we don't we don't know greta he's shown the his lawyers bribed him we couldn't show that an investigation but mcguinty sides i knew this so i think that we can attribute him with that knowledge because he said so  authority that it is a waiver instead of you don't even have to assess ineffectiveness because there was an affirmative relinquishment of the sixth amendment right to conflict re free counsel the court doesn't have to determine if the government rational position that is the government's threshold position i don't have a case for that specifically it's just it just seems to logically follow that if an argument's waived that it doesn't matter what standard would be used to evaluate the merits of that argument no you don't have to have a hearing for that kind of waiver in the context of for writing hearings for waiving the right to counsel entirely or waiving the assistance of counsel entirely the court has made it clear that a forever hearing is not constitutionally required and we're talking about the same sixth amendment right here so if you don't have to have a hearing to show that you understand that you're waiving the right to and have to have a hearing to show that you're you're not knowingly waiving the right to conflict free counsel is a real underlying problem here which could be true not infrequently where defendant unknowingly hires a boy or that has exposure lawyer says let's rushing to plea no cooperation because we don't want our criminality exposed that's his argument and the tough issue for me that i'd love to hear your thoughts on is if the government actually knows there have been strong suggestion as the lawyers are corrupt to have it in the three zero two why would the government ever sit quietly at arraignment how would the government ever let the one person that doesn't know about that stench take a plea so we were in a different situation because mcginty has alleged she did know those things but if we if we take that out of the equation now that the government in in in deciding whether to bring something like this to the attention of the district court house to decide if there is a credible allegation of criminal wrongdoing because the government can't just be clear to just like interfering with the attorney client relationship so here when you have these five three zero to use there's nothing in there that would bring that level of appearance to to the government's attention warman's well this is this is true but let me put this in context the first three oh the first statement that us of a don't mix is during his initial confrontation with the f b i we're he's really still trying to say i didn't do this everybody does the same thing it's not illegal and he throws out the names norton and brown there but then in that same interview the f b i says and what's your proof that they did anything improper here and he says i don't have any so so that one really goes nowhere at the next time he mentions them he's saying they make can't campaign contributions to judges to which is legal in texas that doesn't go anywhere either we've done got somebody you saying in another district that brown had paid a court employee for testimony in an entirely unrelated case it's not clear what that's this case not an allegation of criminal wrongdoing no one stopping him from an amorous that's true but the the attorneys here did not actually perceive anything to bring to the judge's attention based on these vague unsubstantiated allegations of mainly things that are not actually crimes so i would say in this a case that the attorneys for the other cases but if i notice that i didn't have an affirmative duty to say the lawyers that are walking a guy in to plead may themselves be doing it because they don't want exposure they want this guy to plead and not cooperate quickly i think that what the standard that balanc the two interests here that would be most appropriate when the government sees a credible allegation of criminal wrongdoing the government should bring that to the dutch we don't have that in this case as district court correctly found these allegations were not were not the center of the case these one at the periphery of the investigation they didn't necessarily even allege anything criminal and the government simply didn't perceive them to  be rising to that level of a credible allegation of criminal wrongdoing if the prosecutors do perceive there to be this this kind of potential conflicts the prosecutors already have a very strong incentive to bring that to the district court's attention because the government has a very strong interest in of waiting protracted post conviction litigation like this broken only going to trial and the government puts acevedo on the stand and at that point he says in open  i therefore it's the exact same statement uncorroborated by the government witness well as opposed actually in trial we could attempt to rehabilitate by saying that well what do you mean by that and if he said i think there may be a way and ways in which acevedo could explain what he's talking about the government going into trial may perceive this coming up and at that point to try to address the matter through motions eliminate and then it would be brought to the district court's attention back at this stage and really everything is still out there everything is on the table this wasn't something that the government would reasonably perceive to be something the district court needed to address th there's nothing about the government's conduct here that should excuse me getty's follett voluntary knowing and intelligent waiver of his right to conflict free counsel living down to the standard that the court should apply if it does reach the merits of this claim strickland is the appropriate standard here right there when you say that will the government defend us because you're in your footnote you know seven of the circuits of gone the other against the government's going to defend us if they take search and we decide the case on that legal ground it's my understanding your honor now this is and there's some support to that in the supreme court's opinion that is an open question whether kyler should be expanded beyond of the cases of concurrent multiple representations so actually suggesting that perhaps kyler is more capital than this court has even done because in beads the court extended kyler to any serial serial representation as well as concur it multiple representation in the supreme court and mickens indicated that even that expansion was questionable so there is a yes i might of the government would think that beats footnote realigning of circuit because essentially this is multiple representation it's just the other person these words are representing both sides targets or subjects of the investigation there was no investigation into them the government didn't intend to launch an investigation into them they simply were potential co defendants as far as the government side competition is when they open  what they perceive themselves to be potential co defendants and for the reasons i mentioned earlier i don't think so there's not a credible allegation of criminal wrongdoing here that would put a reasonable defense attorney in the position of believing that he is a potential that the court should resolve that by going back to the way for analysis i don't believe that we are in the territory of that beats footnote at all so i don't think the court needs to move to the next question which although interesting is a few steps down the line and if we are in the territory of the beats footnote are the strong arguments in favor of applying kyler here are actually the strongest arguments and there again i would say i would say no the court already considered a number of the arguments for expanding kyle r and and rejected them if the court were to expand kyler here standard the district courts apply without problems every day applying strickland also discourages baseless allegations against defense attorneys because of prejudice requirement removes the incentive to do that versus multiple representation which is a fairly difficult situation to fabricate and then again and nixon macon's has already indicated that expansion of color is somewhat questionable so here i don't think that the arguments even if we are in the beats footnote would would counsel expanding kyler to this new situation mcginty has not met it has not shown any way that his counsel's performance fell below reasonable professional norms he alleges that they didn't file a lot of things but he's never explained what they should have  filed or why it would have been to his benefit i thought he did allege and it wasn't just by the government these lawyers said to him if you cooperate we will represent you if you walk rate no one will represent free your life is in danger and we're going to say that's still effective lawyer and i don't i don't believe that the government has conceded that they said that but it is a reasonable advice to say to a defendant that they should not cooperate based on for instance what they happen to know in this case so i think if you were to take other defense attorneys who  true even if norton did not discourage him from covering up his criminal acts he still hasn't shown strickland prejudice here because he would have to as some kind of advice of counsel defense or trial which doesn't exonerate him because this only goes to the cover up and even if you're saying i agreed to cover up my criminal wrongdoing because my attorney said that i should it's still consciousness of guilt so here i don't see how this testimony that he's saying he would like to offer a trial would in fact have benefited him it's a very incomplete defense at best satisfaction in the performance that mr attorney is the biggest it seems like the biggest focus on appeal is there advice that he should plead guilty that was extremely sound advice under the circumstances that given the strength of the on what he planned i understand his guideline recently forty one to fifty one based on the previous allegations which added new ones i don't know how that would affect the guideline range but the government had already had an argument that it should have been higher in the first place but no incentive to actually raise that because of the c one c i see i am almost out of time if the court has any particular questions i would want to have a chance to address and not think you very much easy thing to do is to say that everybody's a mess and he's waived it and it's a big corrupt ball of problems and not to reopen the case and that's exactly why i'm so fearful that when the plea wanders the conflict you never reach this because each time the colloquy or the waiver say well i waive my right to have conflict free counsel and lawyer might have to appear before the grand jury or because they could be a possible suspect the court says i'm going to disqualify you on on my own it's not a lot of cases that we're talking about but in that narrow band when an attorney has divided the will tease or even the possibility of divided loyalties i do think fear infects that process and it's hard to then attribute all of this to my client down the road when he got that advice that i believe was contaminated from the beginning and the best the best example i can be able to show you is whether or not it's rational for me to be scared of being bit by a shark in my swimming pool i can watch jaws and i can know that it's fake and i could know that it's still on the screen but i can still have that irrational fear and richard thaler won the nobel prize in economics this past year for this idea of how we behave predictably irrationally and i think that part of what happens here when he talks about seeing  says who else is acting like you and he mentions the names of these two folks it's hard for me to say somehow then it's all distance that happened so early in that process that the things we're talking about now but will make in hundred knew what he was told was good or was corrupt or was bribery all after that relationship has formed and he's in a very different boat than if it was truly truly conflict free counsel from san antonio or new mexico or dallas or somebody else outside of that system altogether who doesn't feel at some point that they are in master untangled or in some way they can do so i just think you've got the ability to cross examine witnesses you've got cross examined on surveyed oh and i do want to try the case back in the district court level and i disagree about the but it's an even more narrow circumstance when the defendant himself leader says and doesn't contradict that he was bribed by the lawyers he picked at that point you've got an exception to the otherwise possible rule that the govern so then the question becomes does the government have any obligation to tell the trial court authority we think that there may be a possible issue here and then let that happen in open court or is it solely related between the two advocates to decide that as to a co conflict and i just think that if there's any possible concern then you raise that with the trial court whether it's ex parte or in a sealed motion to be able to say let's have a hearing and put this on the record and tell me anything that you might be concerned about and that that point those statements are happening after he was told that he is guilty based upon grace and if he has been missing vised as to grace because if you look in what mcginty says in the record in this first affidavit i was told that quid pro quo is no longer the law based on grace it's not grace as grace has the exact opposite when does he claim he was told about this is like two weeks before so before before the trial that he no direct appeal saying hey i'm not guilty of a crime there's no subject matters diction no you're right he didn't at that point it at that point it just goes to show why at that point grace was that out that grace was this pivotal well it's just what's it's just what's discussed i just know that before i got involved grace was in the end the affidavits and grace was was held to be this pivotal decision that made him plead guilty and not have a trough as the lawyer said we're going to lose based upon grace and so i can just tell you that's what it was both very much yes and