this morning we will just point out a couple of procedural features our traffic light system you may be familiar with when the yellow light comes on you have two minutes left when the red light comes on we ask you to conclude your argument as quickly as possible also we've read the briefs we're familiar with those we have not necessarily read the the record and therefore we appreciate record citations when those are appropriate first case of the morning is number seventeen five zero eight eight nine  judge based on him for miscible meddling in plea negotiations in violation of rule eleven c one of the federal rules of criminal procedure which make categorical and unequivocal that no negotiations of any predictive of the criminal justice outcome and in this case the district judge the docket call immediately prior to trial indicated that it wasn't looking very good for mr  message to mr martinez that if he goes to trial he's likely going to get found guilty and this is blatantly a violation the court has found violations on far  less comments to the effect of well you we need to negotiate a civil settlement before we resolve your plea it's probably going to be best for you if you do this those are almost more indirect than i think when that's taken together with this comment it only further exacerbates that level of coercion even though there are cases the courts are a little there's some tension in that some of the published cases on merely stating that was really strict in this area i'll give you that but if the district judge here that the defendant the hearing was over the defendant starts asking questions doesn't like his lawyer when you're the district judge sitting there it's you want to and make sure the defendant is well informed especially when he's having issues with his lawyer because you know if you've gone to trial and lost he may well be then saying oh i didn't realize what i was in for that he might be bringing that kind of claim missile he had agreed to was two hundred fifty one month sentence and then he ended up having reservations decided he wanted to go to trial the eve of trial you know trials monday friday induced into entering into and he'd have a choice again about going to trial or trying to get a new that would happen if we sent it back well if when when the  busted and he's back to square one he's really not fully back to square i want to see you know the judges on his probability of success in his opinion on how it's looking it's not like that just wipes the slate clean of the judges prior the things fears that he's not before someone that he can have a fair trial in front of he's going to be found guilty he says it unequivocally on the record and he says that he signed off the  was a strong case at that point i believe that the judge is not playing the role of a neutral judge at least in the defendant's mind because the courts are clear that we're you would take out the plea and he'd be back maybe in front of a different judge and you're asking for that but he'd be back and in the trial court facing trial that's just seems to me the the logical remedy if you are your own pla analysis on the plane or whether there is a reasonable probability that he would have exercised his right to the trial i think is manifest in the time the courts have talked about the time of the time for approximately here we have these the i did make an alternative argument that the that the court could consider remand for recent thing in light of the fact that the court did make comments that were looking at a life sentence and he wound up with a much more unfavorable deal after the second it was busted and see i think that only reinforces the notion that we're not really starting on a clean slate by just wiping it clean and now we're in our second trial of me ask you know had the judge not made that initial comment and they had the the greenman the hundred fifty one months couldn't wouldn't the judge have done the same thing busted the deal but because this hundred fifty one months was was a pretty generous sentence in light of the amount of methamphetamine the fellow had so i'm saying you know he says he quote ends up with a worse deal but the judge thought one hundred fifty one months is ridiculous right and he did not agree with that sentence that is correct and seems to me what your client's really upset about is the fact that the judge didn't accept that in retrospect very favorable plea it's not so much that he entered into that twenty right if what you're asking for is in force that hundred and fifty one months he's still happy with that deal that he was supposedly induced by the judge into entering into it's just that he's upset the judge didn't accept the deal well what we know is that he he was not going to take the deal and the judge talked and then he agreed to take it the same day there was another way of putting when i was asked if if your client wants in forstmann about hundred fifty one month deal doesn't that mean that it wasn't the judge's comments that caused him to enter into it he just thought it was a good deal for him well we're not at i mean we really are asking for enforcement a hundred thirty one month deal because i realize that the court can't i mean it's really the government is not really bound by that deal anymore client's decision making and deciding whether to plead guilty or go to trial and a lot of the court's comes in light of his intent to apparent intent to go to trial in front of the when confronted with this very deal and then it's only exacerbated when the deal just gets worse to me that just shows that he's got it just shows more reservation about proceeding to trial in a court which says that in the second in the second instance on equivocally he's going to be found guilty i also think it's improper to be discussing the time and expense of the wiretaps that just makes it that should have no a plea agreement but i do think it goes too far when it talks about the time and expense to the government the strength of the evidence when deciding whether or not a fleet of them should be taken because the court pressed the government view that as sort of getting around the district court judge says that you're being too lenient with your plea deal so the district of the u s attorney's office as well will charge him with a cap of twenty instead of a cap of life so it but it but the first comments at the status conference on people twenty eight the conference was just set up as a scheduling better and judge the judge says well this is the last defendant's going to plead guilty  that case but when he talks about it he then says it doesn't look very good when the other defendants of that are police but then he says that's just a fact or you could talk intimately with your lawyer about so context it's just one statement in the course of answering those questions noting that a factor had arisen about leaks it's plea but my main argument is that he hasn't met his his heavy burden to demonstrate of a reasonable completely familiar with them based on the rear image that that was the but for causation for that plea but like i said that that's not the plea pled guilty where it was a guilty it was three months later when she would see the ringleader of this who rejects the c one simply the first thing the judge goes into is his long history of criminal conduct goes on and on and on about that until he finally gets to that part about when we get to the part where he says it doesn't make any difference one way or another that's really a statement of it and by the way all these statements that it's a wire it doesn't make any difference those are all occurring at the bench not within the hearing of the defended and it's in the course of why are you why is the prosecution doing this deal appropriate punishment for the conduct of his home only to get a good job again that the judge is obligated to do that and you can analyze the appropriate punishment for the conduct of the whole without assuming that he's guilty and assuming that one is no good he doesn't suggest any other plea deal in fact it doesn't seem like he he wants a plea deal a pack a second you know i guess i mean the government is conceding that the judge's statement at the comments affect subsequent negotiations i don't think they affected them at all what happens after rejecting the hundred fifty one months is the government supersedes with the b one c with the with the with the with the twenty year cat it was the best possible deal he could have gotten under the circumstances but isn't his argument that at that first hearing if the comments were made he would have entered into the first plea which would have resulted in  trial the trial soon thereafter but when you're analyzing whether it caused the second plea it gets complicated because you're saying there are so many events that it's complicated because he's three months after that first  statements his plea deal was rejected he's free to go to trial so you're saying after three months that that part of a long chain causal chain that had an influence i don't think that's sufficient who was representing him in the trial level i assume it was another c c j or public defender no it was a it was appointed counsel that he first had the public defender there's usually it's going to be hard to you know so some verbal statement on the record i still call where's your appearing in front of that very judge to whom you're complaining temp or proximity and we have that right here and i think i think the context of that of that first hearing especially it's not only like the same day it's a five o'clock as you know here's the deadline you better decide quick you know it's a much more of a it seems hostile when you read the transcript and seems like there's not much room to make a decision that that's that's how i read that and i don't think that there's really much more needs to be shown beyond this statement of probability of guilt is that after today you can take a plea and it's going to be the same no matter what so you know i need to have something by the end of the day that's quite coercive i mean i think that at least creates a reasonable probability sufficient to undermine confidence in his decision to plead guilty versus going to trial and then when we go further along to the next to the next proceeding that that slate cannot be this you're back on the trial docket this is a life sentence he was going to be found guilty and within a few weeks again i would say a small time period within two weeks he's entering a plea to the terms he knows less  he no longer has a twelve year cap now i now he has a twenty year and he gets he gets the max which is what the government argued for so i just think it's i think there's