the next case is united states raise during arguments the question whether there's a need for this document to remain sealed at this juncture but why don't we now proceed as if it's still under seal if you feel no need to refer to the contents were all quite familiar with them all right thank you  believe the fact of the letter is for the purpose of the argument i'm here today asking the court to remain this case for further proceedings not because the forty six month sentence w unreasonable not because the supervised release term was unreasonable even though it was the high end for a first offender because mr burke was entitled to both actual justice into the appearance of justice and its argument that that letter a hearing and i ask a question first about the further proceedings that you contemplate you perceive the me then to talk about the sentence you did not proceed to talk about the plea so if you prevail  and the case is remanded are you suggesting that the pleas should be vacated or only that the sentence should be vacated i am not suggesting that mr burke would want to take back the plea suggesting that he should possibly be offered an opportunity to so you are so you are asking that the police as it exists be vacated and subject to the possibility that or at least on mr burke's option that you are asking he is entitle to have his plea back if he wants his plea back and i'm just trying to figure what you're asking for and that's what you're asking for that is correct ok but i am not i'm not arguing that the plea itself was in violation of before he entered his plea i believe there was a four day period during which the letter the letter is dated february twenty second plea was entered february twenty sixth and there were and then there was an eight month period after he entered his yes and during all that time he could have alerted the district court i have an issue that is correct but the law does not impose an obligation on the defense is the issue here is your position well it does if if you have to do it in time so as not to get a second bite at the apple right that's that's the the concern that you defense counsel has the information sits on it waits to see what the sentences and then raises it unless your position is based on the letter itself this was not on which is it will let me ask is your position that based on what's contained in the letter itself that this is a not in a way of a ball mandatory recusal no i think our position is that but that it was required to be on the record after a full hearing concerning the facts that were raised in the letter and since that hearing didn't happen we don't know the facts of what actually transpired well wouldn't that be  the situation if if a district judge is aware of some fact that might lead to possible recusal and fails to disclose that fact foley to the  parties or particularly to the defendant in a case like this then it would be very hard to say that it's on the defendant to unearth these facts and make motions and so on but here the only facts that are available are the facts in the letter and everyone was aware of that those facts now if there were more facts that were needed in order to make a decision why isn't it on the defendant to say wait this troubles me i need more facts before i'm going to proceed and if the district judge then said i'm not going to give them to you you know plead her own plea do what you want to do but i'm not going to say anything more that would be a very different situation  in other words given what what the defendant did know why i say well there could be more facts i guess there could be but how do we know there isn't anything more at all than what was the motive we don't know and the only person who does know or who would have known is the district judge and because the statute imposes the duty to recuse on the judge and does not premise that duty on motion by the defendant  argument is that the judge had a duty to raise the issue at the very least before proceeding with the pleading let's say that the judge did at the time of the plea say i received this letter here are three additional facts that you should take into account for purposes of deciding what you want to do i don't see any basis for recusal and let me know if you disagree no your honor we don't disagree mr defendant have you had enough time to discuss this we have and then proceeds and then and then down the road you want to say well but there could have been more facts and we didn't have a hearing what what is the what is the requirement were you getting the requirement that that a hearing was necessitated without any request from the defendant's lawyer and i think that the situation that you've just set forth would have satisfied the hearing requirement i think that if the fact of the letters existence and some additional information from the district court had been placed on the record before the plea proceeding continued and if with that information there had been a waiver i don't think we'd be here today i think that would be fully sufficient something i don't recall seeing in your brief is an explanation of why a reasonable observer knowing the facts in the letter would have concluded that  judge was biased against mr burke and i'm not going to ask you to make that argument now in view of the ceiling but am i missing something is there someplace in the brief where that is explicated i don't believe th is any detail about that point your honor in that because the letter is what it is it is what it is but hypothetically assuming that there was some indication that a judge had been indiscreet or even committed some sort of impropriety or something that a judge should not have done is it not in order for us to conclude that the refusal standard is met not just that the judge made some sort of mistake or even did something wrong but that that mistake or wrong would lead a reasonable person to think that the judge had some kind of bias or interest that was adverse to mr burke isn't that what the standard ultimately is guy that would certainly cause a reasonable person to have some doubts but would mr burke have a right to recuse all under those circumstances  or the other or interest in the outcome or reason why the judge might favor one side or the other and not be impartial that would be necessary the necessary inference to draw the reasonable person would think that  might reasonably be right so the so we would have to conclude that there is a reason to question the impartiality of the judge yes the reason that we don't know because all we have in fact no no no there's a reason we have these necessary to c l so does the government have a position on that your honor at this point i don't believe there's a continued basis for the ceiling we're discussing that before coming here to court we're in an unusual fact pattern where the appeal is pending before this rebuttal to address the contents of the letter we're happy to afford it to or in the future it's helpful if we know these things before argument so thank you for a learning us now just to quote one thing we do say there's a confusing mechanism are you suggest ing that we don't have the authority just based on the fact that nobody wants it sealed anymore to unseal it is there something else that needs to happen or some some reason why we don't have that authority i'm not aware of any reason this court couldn't unseal it just from our perspective i think there was a question whether we should go to the district court to unseal it or to go to this court and that's frankly that's i mean i'm sure mr james would know the answer to that question but in any event going to the substance of our argument the government with respect to the timeliness argument i think it's significant that there are number of things that are not in dispute this court has a well developed body of case law which says that a brick use a motion should be raised as soon as possible and should be raised in the district court but that does i think this court's decision and i b m is key on this point it affords the district court an opportunity to address the claim on its merits before it continues to handle the case and make decisions on a case that will then be subjected to question later on but it also avoids the defendant in this case the appellate getting a second bite at the apple and essentially holding back an argument so when they get an adverse decision in authority here you don't and your briefing rely very much on the appeal waiver in this case and i was just wondering why that is there are initially the government had moved to dismiss the appeal on the basis of that appellate waiver however once the brief was finally filed and we reviewed it it was the government's position that the plea agreement didn't specifically cover this issue so that we didn't move to dismiss we actually withdrew our motion to dismiss on that waiver is still relevant to this court's consideration in terms of the timeliness and whether or not there was a waiver it's undisputed that prior to the defendant pleading guilty the government provided this letter in the information to the defendant and his counsel is well as the district court judge after receiving that the defendant continued to and with its desire to plead guilty did plead guilty and waived his right to appeal  not an in court waiver with the defendant present do we know from the record that the defendant himself was aware of the letter before the plea question one question t before sentencing question three ever and that's the difficulty here your honor when the defendant fails to raise the issue we don't have a well developed record for this court to consider that the straight answer with you is yes there is evidence of that but it's not a part of the record because it wasn't raised in a timely fashion where we could have made that record if the defendant were to take the position his counsel was ineffective by not  advisory him the contents of the letter such that he never did see it and therefore was not in the position to make an intelligent judgment that would be ineffective assistance of counsel claim that could be  raised twenty to fifty five applications that could be raised your honor to your honor's point there is evidence in this record the defendant was aware of the letter as a whole judge nathan's question about whether he was aware before the may not be however as the court will recall there was a period of time where this defendant was not represented by counsel before the hour he asked for the letter correct heat there were process submissions where he requested a copy of the letter which was sealed so that is clear evidence the defendant was aware of the letter it was evident having a hobby before the sentence was that right or later that was after he had been sentenced he was represented throughout the district court proceeding by a retain counsel retained counsel representing at sentencing withdrew when he filed the notice of appeal and was a period time before appellate counsel was retained where he was pro se and during that period time when he was pro se he made a request of this court to get a copy of the feb twenty second letter so at that point he was certainly aware that there was such a letter there was a letter that would still leave an ambiguity about whether he knew the contents of the letter before he received there would in in terms of if this court were to remand the case the government would request to be remanded for the limited purpose of holding a hearing so that we could introduce evidence that would conclusively show that he was aware again i mean it seems to me that the  question would have if his lawyer was aware of it then it would seem to me there would need to be some kind of allegation at least or some kind of sworn statement by the defend his lawyer never showed him this he never saw it he never knew about it which would raise a question about counsel's performance since i would assume you'd agree that any lawyer should have shown this to his client and discussed with the client what the next reason to believe that the normal course them up and follow the counsel that failed to disclose this information that counsel was clearly aware here on of those probably my in our full waitress trying to highlight the difficulty because there is evidence that would be relevant to this court's decision that is not a part of the record because the defendant failed to raise the question regarding the government second half of the argument the fact that this motion should be denied i think your honor seized on the key question is that there's no allegation or there the defendant has failed to establish that even if a hearing had been held that there is any proper basis for the district court to recuse itself obviously there's case law if a district court has a bias in a case they should recuse itself but it's equally important the district court not recuse itself when there's no reason for it to hear this the contents of the letter remain sealed so i won't get in but i know that your honour's are familiar with them there's nothing in those statements that would warrant judge webster to have recused himself it innocuous statements perhaps carolus things he should have been speaking about outside of court but there's nothing in there the reflects any biased hostility or prejudice in any way towards mr burke so they wouldn't benefit from the other direction or in favor of or correct they were what i would characterize as neutral statements where he opined possibly on the direction the investigation separate apart from mr burke and we and they would need to be either tending in his direction or against him in order for his impartiality in order for the judge's impartiality there was no error by the district court not to recuse itself and i'm almost out of time here but one last point i want to make is that the third prong of the plane air is key in this case as well the defendant has failed to establish that any of his  substantial rights where the outcome of the proceeding would have any weight changed by the recusal the fed it was sentence within the advisory guideline range he was sentenced to more than what the defense wanted but he was sentenced to less than the what the government wanted and i think it is significant th  i'd like to invest the issue of the impartiality first i would argue that it's not in fact the case that the comments made by the court have to show any particular impartiality or partiality to or against mr burke in fact there are cases in this circuit citing of cases in other circuits in which the mere fact of public comment about a pending matter can raise a question and in that case  one seventy of that decision the court wrote that even ambiguous even ambiguous comments may create the appearance of impropriety the section four five five eight designed to address in fact a very very the a public statements and the ease with which they may be avoided make it more likely that a reasonable person will interpret such statements as evidence of bias there's another case out of oklahoma so the expression of avid interest in a matter and and general speculation about what direction it might take even though not particularly related to the parties before the court might suggest a reasonable basis to think that the judge has an interest one way or the other that  correct this is a similar case out of oklahoma the tenth circuit in the oklahoma city bombing trial the judge's courtroom was affected by the bombing and even though the judge had been completely impartial and shown no bias in any direction  the circuit required recusal based on the potential for public perception of some impropriety so there are cases that do not require that there be an actual demonstrated statement of bias about the waiver i think that it would be convenient for the government if the case were dismissed on and on timeliness grounds but there are at least two cases in the circuit where this court has considered waiver finally and just very briefly i know that there was this question about infective assistance of trial counsel raised such motions as the court's well aware are generally not favored on appeal so if the court  is inclined to dismiss this appeal i would ask that it be without prejudice to raising this issue in connection with a potential two fifty five motion thank you thank you both