one is the ineffective assistance of counsel claim i think it's one of those rare cases where the record shows that he took the plea on the basis of his client his attorney's repeated representation that he could attack  incarceration and as i read this record it looks to me like he took the plea because he knew he's going to get ten years on the felony possession charge right now yes yes and he could get up to ten years on the drug charge or maybe more he got three additional years and the government kept saying we're not willing to wait for mcintosh to come down and the judge who has i've rarely read what the judge says what the government thinks you can attack it later your things you might be able to i have no idea having all that in mind the you still want to take the plea and and your client says yes so what i mean and the truth is no one knew what you could collaterally attack these things at the time no one knew how mackintosh was going to come out so the order may have guessed wrong but remember i'm we're on direct appeal so ineffective assistance has to appear directly from the record well the reason i think this is one of the unique cases that shows ineffective assistance on the record is the davies case that was from the same district and as a duty to do research if he'd done the research he would have learned that the same basis for rejecting an a direct appeal on the merits existed in davies that he wasn't that well there was a whole series of cases in the eastern district that rejected the very argument that we accepted in mcintosh right that's true so i mean if you'd read the cases the lawyer would have said this is a long shot and you're getting a pretty good deal in the government's not willing to keep it alive what's let's take it now and not worry about it i still think that a fair reading of the record shows he was very interested in the macintosh case he didn't know the name of it at the time he was very insistent that the government didn't have the authority to prosecute him and that he was relying on the representation of his counsel that he would be able to challenge the you know his incarceration and so is very specific in the play colloquy he said we'd like we might possibly have the ineffective assistance doesn't appear clear from the record you said you had two arguments which what you're well the second argument is whether the government had the right to prosecute him in the first place the macintosh argument and i think that the key case on that is the garcia balance waylaid case it's that case presents the inverse of what's the situation in this case there the prosecutor in the u s attorney sought to dismiss all but the least serious count the in the defendant insisted on pleading to the serious counts allegedly because he was afraid of his codefendant the court never accepted the motion to dismiss or never ruled on it and actually accepted his guilty plea waiver on the serious charges this court even though he volunteered insisted it wasn't a question where there was some ambiguity about whether he was voluntarily pleading or not he insisted in pleading on those cases but this court concluded that it was in violation of the separation of powers for the court not to accept the motion to dismiss by the prosecutor will hear so tell me i know what that's what the case is what i subsequently for this fine macintosh by proceeding with the appeal i mean the government's not doesn't have any authority to spend any money on this case yet it continues to do that so i think it's a very important separation of powers question here you have congress and this court a raid against the prosecutor the prosecution of this case but the government persisting in prosecuting it even though it doesn't lack the it doesn't have the authority to do so it seems to me it's a it's a  unique proposition i can't imagine a situation where you can uphold a conviction based on a charge that the government doesn't have any authority to prosecute and we are right for a second the you're so wave your collateral attack abilities so whether or not the government is acting badly we can deal with them when minute i'm sorry you're either not the government is acting badly and we can ask them about that to what vehicle do you have the ability to raise that claim maybe council was right the only ability you have is to go for i want to junction against the government from continuing to incarcerate or prosecute your highness well it turns out that's not the case this court's affirmative yes it's so it's case for upholding the separation of powers than a double jeopardy case for example because here you're saying here you're having the prosecution decide on its own against the authority of congress and this court that you can prosecute these cases that seems to be in terms of the exceptions the maine and black ridge exception blackledge exceptions this seems to be a much stronger win than many of the ones that have been for example vindictive prosecution this court has said exception if you will say that that the jurisdictional defect must be apparent on the face of the indictment here it's not apparent unless we have a hearing right there it's true i concede that there are no cases that hold this proposition but it seems to me this is a very troubling situation that they can that the government can that the court can uphold prosecution when the government doesn't have any authority to bring it in the first place would just simply set aside the plea i think you're right and then he has an opportunity to make the showing and the government has an opportunity to show it now wholly apart let's assume that if you proceed you win on your show but the government's no longer it's not like it's a free pass from this court if he gets sent back that's why i'm interested in judge kozinski question do you really want that rich you really want to do is get out of the marijuana sentence right well you know you really don't want to go back to square one because your mean it's my case in terms that i'm the advocate that decisions about whether you're good idea to withdraw the plea or not or the client's decision but i assure you have not discussed these possibilities with your client because you seem to be have you have you have you i mean if the answer is you don't know because you haven't talked to a client and that's your client's decision that's that's an answer we will run or we can get into we're starting to get into attorney client privilege here but i'm not  for sort of a partial underling of the plea on the on the marijuana counts and gun count i just don't know i mean assuming that you win on every claim you're making and i'm not saying you are but i'm saying right if you get there i don't know how you can ultimately get anything other than a setting aside of everything obviously but i'm back to square one and you are telling me you have this you know it's not your decision to make no that's not what i'm saying ok what i'm saying is i have fully advised the client about all the possibilities of this case and the clients decided that he is instructed me to make this argument including the risk that it could give the plea could be set aside and then something else could come along with your honor i feel uncomfortable because this is attorney client privilege but i have advised him about all the possibilities here let me ask the question in a way that doesn't  the remedy you seek is remained to the district court to hold a macintosh here yes if you lose that hearing if it's found your client was in compliance with callous convictions affirmed then we don't have anything else to do right that's right if you win that hearing he proceeds in the district court with what for which what which what comes up in the district court court what to do now they just called a hearing it's if it proves that he has that he's convicted of that he was a medical marijuana producer then i guess he should i think the courts rightly should be entitled to withdraw his plea because they didn't have well  that's why i'm not sure you got the sequence right why isn't the sequence he should have been titled or hearing before he entered his plea because he didn't get the hearing the plea get other side ok and then you can do whatever happens including have a hearing that's crap as a no that's very different from what you said which is send it back to have a hearing and the hearing when th is we send it back and say under the guilty plea now and as far as the hearing is concerned you know what happens next you now get a chance to make showing you know you both sides get to do what there are two scenarios one scenario is this court can order the plea withdrawn and allow him to make his showing under mcintosh oh well that's i mean or whatever or whatever you know that's an exception of old acceptable result for us my original reading of suggesting that all he can do is attack the marijuana charge was based on my understanding of macintosh in kleinman this panel is suggesting that there is a broader remedy and we're happy with the broader remedy we're going to say oh the macintosh hearing and then if you must do something else and so the question that we both have is what else you know your we send them back and say so the side the plea and whatever hearing possibility if you will that's right either one of those options i think is authorized by the law either one of those options is an option other than davies which was a collateral attack right can you are there any where not that i'm aware i've read all the macintosh cases and all the cases that cite them i trust your research i just want to make sure you know whether the client i had a chance to do it on yesterday hearing and then he can withdraw his plea ok thank you thank you from the go so you're on the clock you're spending government money or standing there that's correct your honor why aren't you violating that either for two reasons first we've got to have the ability to defend these things when the defendant has now in the defense done nothing question until the you can do all the research you want but if it turns out in fact as mcintyre says you are not allowed to prosecute the case cases involving medical marijuana  when we're done we go back to conference women who say you know this is macintosh and therefore the government was not in fact authorized to be here wouldn't the appropriate thing for them be for us to simply strike the simply say look the government shouldn't have been here so there is no opposition there is no because the government is not entitled to be there we strike it we have a brief seeking relief to let me ask the question differently so we don't know yet whether there's a violation back that's right right so what's wrong with us just as a first step say district court take this case and have a hearing and find  if this guy is in compliance because he waived don't you know just just stop for a second i understand they waive and you have a good argument about waiver but my problem is you maybe the government may be in violation of this law by prosecuting the appeal by defending the appeal and by continuing to imprison spending money to imprison them maybe you can find volunteer jailers i don't know and we don't know that we we don't if he wasn't in compliance with state law we none of us have any problem we're all done so what's the harm in sending us back to the district court the hard race in the first instance let me finish and say tell us what the answer to this question yes we don't know what we will do once you tell us the answer to the question but at least tell us the was with with with more charges is that kind of conduct that we expect our government to engage in well i don't think that's the way it happened and it sounds like you're black male to me you know it's like i said sounds like you know this may be illegal conduct  part of the government but we're not going to let you challenge it because if you type of challenge or they've put yourself in this challenge that we are going to make you suffer you know that's not the way that you know you mom let me  you know well so you get that you have to understand the larger context of this case which might not be apparent on a on a cold reading of the record but this was litigated for five plus years mr scheuer had every opportunity to raise this issue below to litigate it below which he honor we've chosen not to file such a motion we reserve our right there may be a possibility of injunctive relief later but we've decided not to file what i would now call a macintosh motion but we do know what it was that i remember him saying he might possibly the record definitely supporting my possibly already you don't so definitely supports the judge saying let's make it clear you've decided not to file a motion attacking attacking the indictment on that basis the judge asks that question and his answer is that's right  we want to reserve the possibility of filing for injunctive relief later right and this this case had been litigated heavily litigated we had a five day evidence or hearing on whether marijuana could continue to be a schedule one controlled substance she wrote thirty eight page opinion laying out why it met the standard at every opportunity just like the defendants in mcintosh kleinman so all these other cases that have come up and gone back down so i ask the question because judge because this question troubles me and if your client if your opponent had wanted to file such a motion and the district court or the government had said no you may not then i would be very troubled by this case but i think this case as i read the record the judge is really careful saying to him you can file this kind of motion that if you want to file this kind of motion i'll wait for you maybe the government will take away its plea deal i don't know but he said no no i don't want to file i kind of that's right and that's that he put he saw he made the decision not to do it but the congress has already passed a law saying you are not to be spending money possible in these cases you keep doing it anyway so if i am going to wait for the ruling from from the court of appeals on this issue i things have to end it was six months or a month from the time so what your answer to my question we were not willing to wait that's right we were looking for finality which is about the only thing the government gets out of this case is that we are done with them every look to me like what you are doing i trying to pull in a conviction before you were told that you can no longer prosecute these cases and even if even if well magnetized it came out as it did even if even if we had waited and that would have come out he would still have to have made a showing in the district court that  he was in script compliance with state law and when you look at that you're king at you've got to this court has to decide a case his way he's then going to be able to marshal the evidence to show that he was in strict compliance if there was any noncompliance which see some evidence of an america he's going to go to jail probably for the rest of his life and against that he's got a deal for for a range of twelve to fifteen years which is below the guideline range even the top of that's below the guideline range for everything  so he did what everybody does is he made a decision based on litigation risk and we did this very good we did the same thing we do this all the time where you make a deal based on developing areas of all it's not every time the congress says you will not prosecute issues that will arise all the time and people make decisions based on the they take a calculated risk or they decide not to take that risk and to take what is a pretty good deal in comparison to what they would get otherwise when there is a developing area  out there so that this is this is again about the only thing the united states gets out of these cases and defendants make this claim in virtually every case that oh i was medical i was in compliance i think only one court has ever found  person was actually in compliance is your question about the far end of this seems to me under mcintosh it's probably illegal unauthorized for the government to continue to spend money to imprison this defendant on marijuana charges whether or not you prosecute correctly because it's the federal government spending money that congress said you shouldn't spend when i've had some difficulty figuring out  judge her wits and i'm it's difficult to wrap your head around what that would be i'm trying to figure out my mind i had this scenario where in ten years congress either has continued or taken away should we issue an injunction that says once his ten year sentence is up if congress the writer is still there you can spend any more money on it well this got some right to bring some other case it's probably this is not a great answer but it's probably better to listen to what the remedy is in that case to that case i mean that's what this court said mcintosh we don't even know what the remedy is if the government spending our follow on cases for mcintosh did say the remedy is to enjoy enjoy or stay the prosecution i think is what climate suggest anyways is the correct answer and i think that's what the one district court did find that a defendant was in strict compliance with state law did agree to do but i think he may or may not have some right to bring some kind of a civil suit davies i argued that case right here in th that you know just stick somebody else in prison who you know mr schrader was the last or second to last of about sixteen or eighteen defendants to to plead out in this case once we got through all that other litigation that we did before and at some point you have to be done these cases at some point you have to you know you keep saying that but i don't see why oh why oh why isn't you know we continue cases all the time for all sorts of reasons because you  that's been on the my hands for several years because the patent office scott proceedings i don't see where this is something has to come to an end i mean it's not like he's saying you know i want more time i want my time for no reason he says i'm one more pretty unusual something that would tell the government you ought not to be prosecuting the case i don't see any legitimate reason to say no and if you try to do this we're going to we're going to threaten you with something the charges just seems like just sort of if he'd made such a motion where would he be today he would have lost that motion to be in jail for the rest of his life if he lost it what if you want it if you want it why the rest of his life because you have taken the deal away yet he admits that he's guilty of the it's not in the record here but this we went we negotiated this over and over and over he tried to retain the ability to raise this issue later we told him no we wanted finality we wanted to be done and then he decided that if he signed the  waited for a month to plead because he want to wait for mcintosh we waited six more months to sentence him and then he finally got sentenced and then mcintosh came out of jail no i understand all that but i'm not sure you've answered my question i take it i take it you're right the government never said to him along the way make all the motions you want we're not going to condition our or our bargaining on you not making motions i always take that as a fact for the moment his counsel never made a macintosh motion that's right even though congress had passed a statute that said this that's what i understand why at the last minute you're unwilling to continue put that aside judge kozinski may be right that that's not appropriate but that's what i'm asking now what i'm asking and frankly nobody knew whether he could prove it's in down the excerpts that his this clinic that he was so he may not have been in compliance with them figured it out it there's all this risk sitting out there in a in a very very open area of the law that frankly to this day still fairly open i don't understand what the risk was in filing the motion if you're saying we didn't condition our plea agreement and not filing a motion we can dish it on him not upsetting the apple cart at the very end if you files the motion and he loses he's exactly where he was before if you want to see gets he if he wins he gets a right to attack the marijuana charge right and suit but the decision to make was take the take the plea deal or file the motion now see that rumor starts when i was missing each other right i understand your position that in at the very last minute you were unwilling to continue further right or wrong i understand that but you said there was a time and if he'd won where would we be today if you want me he would have to the prosecution at least of the marijuana trucks i think would be enjoined but it's not i wouldn't have any joint back then because we hadn't decided mcintosh yet so this is my question i'm i'm i'm taking a long time to get to why why there would be a hearing on a motion he would have lost that motion as a matter of law as what would perhaps the commissioner doesn't think it matters where there is let's assume he brought it and the judge said you know you are in compliance with s i find that as a matter of fact but i don't think it does any good because i don't read the statute as in joining prosecutions which is the way most district courts read it before mcintyre all of them so i'm going to deny you relief and then the government said ok you that he had a knowing that he had perhaps a winning card but he didn't want to risk it against the possibility of a right for him or maybe he would have decided not to do that he would have entered some kind of unconditional plea and he could raise an issue on appeal i did want to get to the second half of my answer to your question from about ten minutes ago about this being mean i would point you to the language of defense counsel below who explained in this in the excerpts at fifteen who explained that the united states had been extremely courteous in granting multiple extensions to him before the plea went in and at sentencing in the excerpt at forty four his attorney said he didn't believe there was good cause to ask for a further delay so judge kozinski this case was heavily litigated the parties went for the fact the fact is the government says we're not going to wait for the outcome of this case a case which is possibly going to say that we can't prosecute the defendant on these  charges i don't see what's good faith about that or this is litigation risk in every case and frankly we don't know how long it's going to take this court but let me let me let me continue for a year to let me get back to you know you i a was not going to that's that's right we were we were to we had been so so so so so so the position of the government was if you want to get an eventual hearing we are taking the deal off the table yet they deplete know let me tell you how long an evidentiary hearing want to take and they filed a motion to dismiss this prosecution early in the case on the grounds that there was no rational basis for marijuana to continue to be a schedule one controlled substance we litigated that issue for about three years so i'm thinking an evidentiary hearing would have taken something in the range of one to three years is not a simple factual question was in compliance with state it's a factual question but it's not simple this is a complicated detailed area of law it's california law it's not some open ended free wheeling hey marijuana is legal as long as your hand in an ounce and it makes you feel better there is a there are strict requirements under california law you got to be a closed system you can't make a profit all these you got to be in compliance with all these are the rules and regulations and i don't think he can show that by the way no that's not our issue i know we're taking you way over time let me ask one other question because i did some research on it and i was surprised at the answer i thought if it's ok to sell medical marijuana in california if you're a felon i don't i don't think there's any rule against that's what i think that's what i cannot write but you've got to do it in a closed system as part of a collective you can't make a profit because you know i still haven't gotten  short probably shortly after that i can i don't know for sure and it certainly not in the record i know we signed it a month before he pled he signed it some time in i believe early november or late october and it was and  had been negotiated over long periods because he did keep coming back and asking the way outside the record but he came back and kept asking us he cannot cannot really reserve this marijuana issue and like to reserve this marijuana issue and we said no we want to be done may i follow up  just for clarification the play greenman that he signed with to and information that the superseding information anyway backing superseding information and i correct about that or just the superseding information is just a se mission and with he a return convicted felon career offender on the gun charge alone or did he have to have the did you all have to have the record was there were hard fought negotiations on some very disputed issues not only as jurisdiction but as the evidence as well and that when the superseding information was finally signed it was the consequence of long hard negotiations and it isn't that way on both sides this will be done at this point that's right and in fact i think what you're referring to is the court took a break right at the beginning of the rule of an colloquy because it became apparent that sawyer wasn't comfortable with everything in the factual basis so you can you can see it in the excerpts we literally crossed out facts that he didn't want to agree to and we all all the lawyers involved initially so that this went on and on  for months before he entered signed it and then even after that we made a few changes so this was but the fact remains the government said we're not going to continue to find out what the mackintosh the page in discussion that's not particularly favorable to the government's position you might want to take a look at it we will and thank you although i think from what you've just described i think the factual guilt cases that talk about what's brown i will do that thank you just because collateral review it right yes yes so what does it mean if we say you can raise it on direct appeal which is where you are then it was davies coun we get in these circles i think the davies hinged on the question of whether continued incarceration was a prosecution and then that's how it was decided in the district court and then because the case was final know yes but it puts him in a difficult position because it was before the waiver was enacted in other words congress hadn't said you can no longer prosecute these cases then he