Legal Case Summary

May I please the court? My name is Joe Zezatarski. I'm a lawyer in Raleigh, North Carolina, and I represent Charles Robert Barefoot Jr., who is the defendant and the appellant in this case. Mr. Barefoot's 51-years-old is serving a 180-month sentence resulting from the trial in this case. He was convicted of six counts. This case has a long and tortured procedural history which plays into the first issue that I'd like to discuss with the court. He was indicted in 2005. He wasn't served with that indictment until 2006. There was a super-seating indictment later in 2006. And then in February of 2007, the District Court judge referred him for an evaluation based on some conduct that occurred at a hearing in the case. He was found not competent due to delusional disorder and remained that way until March of 2011, we came back for a hearing on whether or not he should be involuntarily medicated. And butner rendered an opinion that Mr. Barefoot had become confident that his condition had remitted. Our expert agreed with that. And the case proceeded from there. In March of 2012, he filed a pro-same motion to represent himself. And a hearing was held on that later in March of 2012. Isn't a trial judge in a much better position than we are to evaluate somebody's competency to represent themselves? Well, your honor, it's an abuse of discretion standard certainly. It is an abuse of discretion standard. I mean, there's a reason for the abuse of discretion standard. And that is that the pro-judge was able to actually observe the defendant and were not. And that kind of makes all the difference. Well, your honor, I ask the court to consider two issues on that. The first is at the hearing itself, Mr. Barefoot's conduct at that hearing in March of 2012 was entirely different than his conduct at the hearing in 2007, five years earlier, five years. He answered all of the judges' questions. He explained why he wanted to represent himself and the district court found that his being competent to stand trial. Doesn't make you really confident to represent yourself in a federal criminal trial. You're on the terms. No, those things are a disconnect that jumps right off the page like that. In the last case, the common sense seems to me. And I think the judge's boil said pretty much that. Well, your honor, this court's holding in Bernar is that the key question is whether the defendant is otherwise able to satisfy the competency standard. May nevertheless be unable to carry out the basic tasks needed to present his own defense without the help of the county

. This Indiana V Edwards case, right, really hurts your position because it is the Supreme Court explicitly refuses to equate competency to stand trial with competency to undertake. Pro-say representation. They do your honor, but they also point out that number one, the right to represent yourself as a basic constitutional right. It may not be the wisest thing to do, but it is a defendants right. Well, not only not the wisest thing to do, but if he'd represented himself and the trial had gone south and. The examination cross examination of witnesses was a disaster and evidence. Wasn't properly objected to and the closing argument was a mishmash. We'd be up here on a claim of error that the district court had abused his discretion and not allowing this to go forward on a council basis. And I don't like these situations where we get whipsawed. Either way, because I can see an argument and all the district judge should never have let this go forward on a pro-say basis. Look what happened. It was a disaster. And then we'd be up here on that claim of error. So, you know, you put the trial judge in a situation where you can't win. Well, your honor, that was what happened in Edwards, actually. That was the claim in Edwards. The defendant represented himself and the claim on appeal was that he shouldn't have been allowed to represent himself. This is the flip of the situation. And again, so he. The stand for the same principle, which is that competency to stand trial and competency to undertake. Pro-say representation is very criminal trial is not a place for amateurs. And you got to know a little bit of a, and you really got to know what you're doing and I just haven't stand by council. So, oftentimes just not doesn't really cut it. And the Supreme Court saying it's seen to me, Indiana, the Ed was trimming back a little bit on this on the for at a right. It's not absolute. It's subject to a district court trial management discretion. But your honor in Edwards, the defendant was allowed to exercise is right. And the point at stress to the court legal point legal principles for the same correct, correct. But the point I would make to the court is here to deprive the defendant of that right. The standard has to be met the evidence before the district court has to give the district court a basis under the standard. And what I'd ask the court to consider here is what evidence was before the district court that when Charles Barefoot was standing in front of the district court in March of the court. So, in March of 2012 that he could not carry out the basic tasks necessary to represent himself without the assistance of council. The court had a year old opinion from the doctorate button that found him competent to represent himself with representation by council. That's what the report said

. The prosecutor was very candid with the district court judge and said, I haven't talked to Dr. Newman since then. I don't know if what he meant was he can't represent. I think of experienced trial judge. That's better position to a pine on something like that than a doctor. Whether somebody's confident to represent themselves in a federal criminal trial. I mean, it's not a sporting event. No, you're wrong. No, you're wrong. But again, we're depriving the defendant of his right and what evidence is there in the record to support that finding. And again, I'd stress to the court the interaction between the district court and the defense of the expression standard of reviewed. Correct. I thought you had better issues than that. I'm surprised you've been that much time on. Well, you're on I didn't intend to apologize. I want to move any questions. You start to open these things up. You're up. No question. I'm sorry, you're on. I'd like to move if I could to the issue of count three in the denial of the rule 29 dismissal motion. The solicitation to commit crime of violence charge. The evidence in that case came from one witness, Marvin Glenn got here. And with respect to that issue, you will recall that Mr. Goat here said that Mr. Barefoot the charge was that Mr. Barefoot had this plan to blow up the Johnson County courthouse. According to Mr. Goat here, Mr. Barefoot's plan was that Mr. Barefoot was going to jump in a raft. Float down the news river, which goes sort of right next to Smithfield, which is where the Johnson County courthouse is. He was going to jump out of his raft, carry his bomb, run three blocks into the middle of Smithfield, which through the sheriff we established that's how far it was with a map. Somehow plant the bomb and set it off without blowing himself up, run back to the raft and float away

. And the government's theory was that Mr. Barefoot solicited Mr. Goat here to assist him in doing this by asking for a ride. The problem we would submit with the government's position is twofold. Number one is there's no evidence of solicitation. If you go to the actual trial transcript, there is literally four lines that cover this after a testifying. Correct. After go to a pretty good position to know whether he thought he was being solicited or not. And he said he wasn't sure your honor. I thought he said the barefoot was serious. He said he thought he was serious, but what he said your honor that was key was question. Now was he asking you to do anything like this answer? I think that was in his mind, but he didn't come out and just asked me to do it. He said that's what he had in mind and wanted to find somebody to do. I mean, it's just something you'd bring up in your clothes and go over that testimony and the light. I mean, it's just a question of how the jury assess the interaction between Gaudier and Barefoot in terms of whether he was trying to bring him along to blow up this courthouse. Well, your honor, I think there's two things I asked you to consider with respect to that. Number one is that there has to be some level of solicitation. Solicitation means to ask somebody to do something. That's the common sense. That's what that's what it is. And here, even the Gaudier used the word solicit. No, sir, but he does have to ask. I think he has to ask the question is whether the jury, we have to, you're running up against another tough standard of review. We look at the evidence in the light most favorable to the prosecution at this stage on this one, that kind of a point. And your honor, I would just argue that solicit means just that and that there's no evidence of him asking. Well, these, I mean, these two people have a relationship that didn't just didn't just include this one kind of faded pack. It included included the Pellis murder and some other things. And so, you know, they kind of understood where each of them was coming from, you know. And a lot of times when you have two Confederates and associates, you know, the jury could decide, well, you know, a wink and a nod. That told me all I needed to know. Well, you're on, I think that the Pettit murder, for example, is a perfect example. There, Mr. Gought here said, barefoot told me to go. Told me to go

. That's solicit, that's the direction. But there's, you know, but there's a history of solicitation of Mr. Gaudier here and the jury was entitled to put this conversation in context. It didn't, it didn't have a curve in a vacuum. It occurred between two people who had known each other a good bit of time, had collaborated. Various ventures and connection with the clan, the clan membership. And the jury had all that in front of it. And the main thing that you did in front of it was Gaudier's interpretation of the conversation, not just in the verbal expression of it, but in the body library. In a credibility. Well, you're on, I would just say that in the earlier in September of 2011, a court of 2001, according to Pettit, according to Gaudier with respect to Pettit, he says barefoot told me directed me. And that's what would have happened here if there was a solicitation. That would be my argument. I'm running short on time. But then I want to just ask you didn't the defendant speak in detail with with Gaudier about his his courthouse plan. Your honor, the only the the detail is on joint appendix page 601, the one paragraph with Mr. Gaudier's testimony. He says he mentioned something about he planned on doing at the courthouse. He mentioned floating down the river and then goes into the plan that I described. That's the that's the detail. So I would suggest to the court there's not much detail. Now that river and running down to the running down three blocks and getting back and all that stuff he told him he had explosive student. Well, he did he said that his plan as part of the plan. I thought he told me he had acquired liquid explosive. I don't think he had told him that at that point, Your Honor, not not during this conversation. In the other thing is maybe this is the kind of that maybe the jury said, hmm, this is not the kind of act that can be done completely on a solo basis and that some assistance here would be very much in the defendant's interest and who did he turn to. For assistance, somebody who helped him in the past and whom he felt he could trust. And I mean, the jury could, the jury could connect all those dots. Well, it's a question of where the line is, Your Honor. It's a question of where the line is. If I'm generally talking about something and again, the usual solicitation is I asked you to go do X. I'm soliciting you to go commit a crime here, Mr. Barefoot, according to this testimony saying, I'm going to commit a crime. But I need to ride. Will you get me first and chop me off way? I know, but I mean to the government's theory

. I think the question is whether we're going to reduce all these crimes to a magic word or that there's got to be some, you know, some kind of magic formulation before you can. The question is whether the totality of the circumstances amounts to solicitation, not whether you actually use the word I solicit or I ask or I request. Well, Your Honor, I would just submit that there has to be some affirmative action by the defendant and that's that's the line that I suggested the court. There's one other point that I do want to do want to try to mention quickly and that's with respect to the dismiss the denial of pre trial motion to dismiss counts for five and six. That's the plea agreement thing. That's the plea agreement thing. Where you is counselor. I was in the plea agreement. Why do you agree with the provision to reserve right for the government to use his admissions about violent crimes. Because I understood crimes of violence to not include the possession or talking about possessing exposed. Why would you preserve it anyway? I mean, that's it. He's going to come clean. Why wouldn't he just come clean and they give him use immunity? I mean, what? And then they said, well, we won't give him immunity. We'll give him you about everything except crimes of violence. So he admits to a crime of violence. He can be prosecuted because your honor. That just encourages the defendant to go in there. I can't imagine too long he was writing that in a plea agreement. Your honor because they also wanted to talk to him about him murder. Well, that's a crime of violence. Correct. He was going to deny everything. He did deny any involvement in the murder. But you get people to tell the truth by encouraging them to tell the truth. I'd hold back because they're afraid of what a crime of violence is because you're not even to find it. Didn't even attempt to define what a crime of violence is. Do you adopt something in the state in the federal statute or have cases every week up here? We're here arguing about what a crime of violence is. Just encouraging litigation. Well, you're honor. I never anticipated that this would encourage litigation because I know what I talked about with the prosecutor. And that across all these the definition of crime and violence is in the last few years in the federal court system is in dozens and dozens of cases. Because we're trying to figure it out what it is. And you all put it in a plea agreement. That's where you try to get rid of a case

. Get it over with. And you all put it in there and now you're up here. Counts four, five and six. Can't be prosecuted. I think if they're crimes of violence. Right. If they're not crimes of violence, they can be prosecuted if they're crimes of violence. It based on what he said. And he was prosecuted for him. And you're saying, well, they're not crimes of violence. So he couldn't she shouldn't have been prosecuted. Correct. Well, so then we got to decide, I guess whether they're whether four or five and six amount to a crime of violence under some definition that you all didn't give each other. Whether they're barred or not just by the plea agreement, just if I can respond very quickly wrong. I think the issue you've honed in exactly, but I would say defining crime of violence was how was that to find between the parties. And what the government bargained for here was the government bargained for we want to go outside the plea agreement by telling us what the bargain for you got to write the stuff down. Except you should be organized. We got to construe it against the government because they wrote it. That's a normal law, which is what we have in our brief. Correct. Right. I see my time is off. Thank you. Thank you. Thank you, Your Honor. Good morning. May it please the court. Seth, we're on behalf of the United States. The defendant raises five issues. We believe all five should fail. We were asking this court to affirm the judgment of the district court. I'll start with the last issue that the defendant raised the plea agreement. Do you acknowledge that you used against him and count as to counts four, five and six. Information received from him during his debriefing pursuant to the plea agreement

. I know. The defendant moved to suppress statements about liquid explosives from that debrief. We did not use you. You prosecute him on evidence entirely independent of anything you got from him in his debriefing as to count four, five and six. Is that what you're saying? No, no, no, you're on. Let me, let me be clear. That's a yes or no. The government independently develop evidence unrelated to anything he said to prosecute counts four, five and six. I honestly don't know the answer to that. That's a great crucial answer is whether those convictions can stand up. Well, in view of the plea agreement. Well, you're, well, depending on whether they're crimes of violence or not. And a couple of them aren't five and six. I don't think are. Number four may be. If it is, maybe you can prosecute him because of that exception, but if I've in six aren't, you couldn't, you couldn't use against him. What do you say? You're on the, let me, or any purpose. You are, I respectfully, it terms of the immunity that we've provided to the defendant in that plea agreement. It's use immunity. It's not. It is use me not, not by using the term use. You could not use that right in the prosecution of those counts. Unless those counts are crimes of violence. If you take position at all, all three of them are crimes of violence. You got the exception argument. Do that what you say that all three of them are crimes of violence. Let's see the. The council themselves five and six. You didn't mean you don't brief that correct. That's the key. There's whether you could use the information. We'll count four five and six. Which ones are crimes of violence? And which ones aren't right or is the answer to all are all are no four is definitely crime of violence or is it four is definitely in five and six. I don't want to wave the, I don't want to wave the answer

. I'm going to, I'm going to argue that they would be given the inherently dangerous nature of the. Exposing is what storing explosive it's it right so everybody that stores explosive is engaging in a crime of bomb. I understand the implication. In proper story, but my, you're right. If I could just turn back to the language is not what definition of crime of honesty going to use since you didn't put it into play. We would use the one in the guidelines. One in, I don't know what you use right. It would, it would have been the common definition of crime violence at the time they entered into the plea agreement in03. Back to the question, Judge King is earlier and that is what extent was the evidence used evidence of danger the debriefing used in the course prosecution on count or five. Right. Mainly five in. Right. The, I can say that the statements and I want to clarify one point that there's a, there's an admission about the murder. There's two, there's three statements, excuse me, two statements from the debrief that were initially discussed. There was a statement about the liquid explosive about trading. We already had that liquid explosive in our possession by the time this debrief occurred. Then there was his, if you didn't make a record on that. Before we're in the district court, if you're going to use that evidence, there's a, what they call a taint hearing and you got to prove that the evidence you're using is not tainted by the fact that you got it from him. If it was given for someone to an immunity agreement, and you didn't have such a proceeding. Well, no, you're on, but I, again, I may just be mixing terms. I'm drawing a distinction between use immunity and derivative use immunity. And that's, it matters. Obviously here, the, as I was saying, there's two, there were two statements made. One was the liquid explosive statement. The other one was statement about the murder. Neither, excuse me. No, the liquid explosive statement was not used to trial. The liquid explosive information came in through Mrs. Gotteer and Maynard, as well as Barefoot, the son also talked about the hiding of the liquid explosive. The, well, the fact that came in for somebody else, then, then, then, mean you didn't use it against him. If you found the witness as a result of what he said, you've used it against him. Okay. It's got to be untainted. Okay

. I, I, I'll, I'll acknowledge that. It was not, I mean, it's, it's diseased. If you used what you got from him after you promised him in the plea agreement, you wouldn't. I thought there was a search warrant issue before you debriefed. If so, where did you get that information? C's the explosive. Correct. The, the explosives came from his, Mr. Barefoot's wife. Thank you, Judge. And she provide information law enforcement. That's an agent, a, a, Abbott's testimony early on in the trial. That, that form to search warrant for us. That included a mention of liquid explosive. I think she specifically said it and moved from Mr. Barefoot's house to his son's house. And so then that's how the government had the simultaneous warrants. The issue. I'm sorry. That's how the government was a, then, you know, got simultaneous warrants. And so we searched both the defendant's house and his son's house. And we found a liquid explosive then at the son's house. The statement about the murder. Barefoot told you all in the briefing that he traded hunting dogs for liquid explosives at least three times. Right. I'm not sure about the number, but definitely they trade it for for hunting. You all brought that up multiple times during the trial, including in the opening statement. Yes. And we did that because we had what, what exception of the plea agreement permitted you to use that. Well, you're on. I think what you're on. And I apologize if I'm misunderstanding the, I'm interpreting used to mean he says X. We, we, if we were to take that statement in trial and try to use it against him in trial, then that would be a problem. And we'd have to get through and accept. I'm just not just understanding what the law, what you mean

. Okay. There's derivative use. We don't have that. And then there would be transactional, which would be very broad. And as we've been arguing, we've been trying to argue that effectively is asking for a form of trans. The derivative use was permitted under the terms of. No, oh, no. Oh, sorry, permitted. Yes. It is. Because there, would you get your act together? I don't know what you're saying to us. I'm sorry. Come on and make your argument. Yes, Ron. Yes, Ron. What are you saying? We're saying that the plea agreement provision paragraph four F was a use immunity provision period. I found case law in preparation for our argument. There is certainly a distinction between use and derivative use immunity. There's the use. In which do you say you were using it? You were using the evidence only derivative. At most, it would be derivative. I don't, I'm not, I'm not not. I'm not. I can see you. We used the murder statement for count three. Okay. So, so that came into agent. That's okay. Okay. And that came into agent bad. It's testimony. As to the liquid explosive, we had testimony for Mr. Gautier who helped arrange the transaction. We had, and Mr. Gautier came in. Sorry. So he, we had his testimony. We had testimony from Mr. Maynard, who was also present for the exchange in terms of the liquid explosive exchange. So we have independent evidence of this liquid explosive changing hands. Was that independent evidence obtained without relationship to anything you said? Right. I mean, I always understood as use immunity didn't cover derivative use. You had to prove an independent source of the evidence. Holy independent source that if you had, if you were going to use something, you had to prove that you got it entirely independent of any information that came from the defendant's mouth. If you got it pursuant to a use immunity promise, in a plea agreement. Okay. Now, so when you and I misunderstand whatever the law is, or we may have to figure that out, but apologize. No, you don't apologize. You say you're, you thought you think you can use derivativeally you can use it. If he tells you that he and the other guy plan to do something and you go talk to the other guy as a result of that, and he confirms it, you can put the other guy on the witness name. Yes. So that's the rivity. That's my understanding. And the kids have an issue and found the other witness as a direct result of it and you can use it. Theoretically, yes, but again, I, I'm not conceding that we even had derivative such a situation here. We did have the liquid explosive in hand prior to Mr. God, here's deep breath. Excuse me, Mr. Barefoot's deep breath. Are you making a harmless error argument or, or you're not conceding error? And if you're not conceding error, is it because you had an independent source for every one of the facts that was introduced to trial? What, what are you saying? I'm trying to say that we had, people not Mr. Barefoot and people who were not relating Mr. Barefoot statements at trial, discussing the liquid explosive. That's what I'm saying. So, I'm sorry. But that would be more of a harmless error analysis. Wouldn't that be more of a harmless error question? Well, if you had plenty of independent evidence, it wouldn't be a question of derivative use and saying, well, we can use questions derivatively. What you'd be saying is, look, we had a lot of independent evidence that related to the storing of explosives and the distribution of explosive material. And that evidence came in an abundance on pages on counts five and six

. Gautier came in. Sorry. So he, we had his testimony. We had testimony from Mr. Maynard, who was also present for the exchange in terms of the liquid explosive exchange. So we have independent evidence of this liquid explosive changing hands. Was that independent evidence obtained without relationship to anything you said? Right. I mean, I always understood as use immunity didn't cover derivative use. You had to prove an independent source of the evidence. Holy independent source that if you had, if you were going to use something, you had to prove that you got it entirely independent of any information that came from the defendant's mouth. If you got it pursuant to a use immunity promise, in a plea agreement. Okay. Now, so when you and I misunderstand whatever the law is, or we may have to figure that out, but apologize. No, you don't apologize. You say you're, you thought you think you can use derivativeally you can use it. If he tells you that he and the other guy plan to do something and you go talk to the other guy as a result of that, and he confirms it, you can put the other guy on the witness name. Yes. So that's the rivity. That's my understanding. And the kids have an issue and found the other witness as a direct result of it and you can use it. Theoretically, yes, but again, I, I'm not conceding that we even had derivative such a situation here. We did have the liquid explosive in hand prior to Mr. God, here's deep breath. Excuse me, Mr. Barefoot's deep breath. Are you making a harmless error argument or, or you're not conceding error? And if you're not conceding error, is it because you had an independent source for every one of the facts that was introduced to trial? What, what are you saying? I'm trying to say that we had, people not Mr. Barefoot and people who were not relating Mr. Barefoot statements at trial, discussing the liquid explosive. That's what I'm saying. So, I'm sorry. But that would be more of a harmless error analysis. Wouldn't that be more of a harmless error question? Well, if you had plenty of independent evidence, it wouldn't be a question of derivative use and saying, well, we can use questions derivatively. What you'd be saying is, look, we had a lot of independent evidence that related to the storing of explosives and the distribution of explosive material. And that evidence came in an abundance on pages on counts five and six. Are you saying that? I'm not conceding error. You're not conceding error. You're not arguing harmless error. No, no, no, no. You got the same sentence on every charge, too, didn't you? I mean, if you lose counts five and six, you still got the same sentence? Sure. Absolutely. I mean, I mean, the harmless error would certainly be an alternative basis, sir. But you don't want to argue harmless error. You abandon harmless error? Does the government abandon an argument of harmless error? Goodness gracious. No, I apologize. No, I'm trying to say that. And you're on I interpreted that as, or am I just arguing? You're on a harmless error. Or are you not? I am. Sure. Yes. You are. Okay. I thought you just said to me a few minutes ago. You weren't. Well, I'm trying to argue both. The harmless would be an alternative ground. I'm trying to make the point that the unambiguous language of this plea agreement. It's our belief that we complied with that with that language because we didn't use any of his statements. Why is this harm on counts five and six? Why is it harmless error? Counts five and six. It would be harmless because again, we've had Mr. Maynard and Mr. Gutierre testifying about see and Mr. Maynard specifically seeing the explosive in Mr. Fairfax for edge. Feezer. Mr. Gutierre understood that that's where the explosive went as well. So that's count five is improper storage. Count six would be the transfer to Mr

. Are you saying that? I'm not conceding error. You're not conceding error. You're not arguing harmless error. No, no, no, no. You got the same sentence on every charge, too, didn't you? I mean, if you lose counts five and six, you still got the same sentence? Sure. Absolutely. I mean, I mean, the harmless error would certainly be an alternative basis, sir. But you don't want to argue harmless error. You abandon harmless error? Does the government abandon an argument of harmless error? Goodness gracious. No, I apologize. No, I'm trying to say that. And you're on I interpreted that as, or am I just arguing? You're on a harmless error. Or are you not? I am. Sure. Yes. You are. Okay. I thought you just said to me a few minutes ago. You weren't. Well, I'm trying to argue both. The harmless would be an alternative ground. I'm trying to make the point that the unambiguous language of this plea agreement. It's our belief that we complied with that with that language because we didn't use any of his statements. Why is this harm on counts five and six? Why is it harmless error? Counts five and six. It would be harmless because again, we've had Mr. Maynard and Mr. Gutierre testifying about see and Mr. Maynard specifically seeing the explosive in Mr. Fairfax for edge. Feezer. Mr. Gutierre understood that that's where the explosive went as well. So that's count five is improper storage. Count six would be the transfer to Mr. Fairfax son. Daniel Fairfoot testify. He testified that he. Received the explosive from his father. The package which turned out to be the explosive from his father. And so that's he's recipient and he put it in his face. The harmless error doctrine of fly to derivative use to derivative uses. In violation of a plea agreement. Honestly, I don't know. I'm sorry. Just harmless error doctrine apply if there's a breach of a plea agreement in terms of using. In terms of derivative use. If there's if there's a if in violation of a plea agreement, there's a derivative use. At trial. Of the statements in the debriefing does a harmless error analysis apply to save that or is is that something that. We just don't expect the government to do no matter what. Right. I we haven't we didn't brief the issue. So I would. We did not brief that specific question. I don't know the specific answer. Let me ask you this. Maybe I can help you. Yes. The statutory immunity. That the government can provide to the citizen. To secure their testimony. If they do it statutorily. Someone of those fifth amendment and attorney general in the deal. Let's attorney. I agree that they want to they want them to testify and give them statutory immunity and that compels them to testify. That gets passed the fifth amendment. And it provides that anything they say can be used against them. Would you agree with me

. Fairfax son. Daniel Fairfoot testify. He testified that he. Received the explosive from his father. The package which turned out to be the explosive from his father. And so that's he's recipient and he put it in his face. The harmless error doctrine of fly to derivative use to derivative uses. In violation of a plea agreement. Honestly, I don't know. I'm sorry. Just harmless error doctrine apply if there's a breach of a plea agreement in terms of using. In terms of derivative use. If there's if there's a if in violation of a plea agreement, there's a derivative use. At trial. Of the statements in the debriefing does a harmless error analysis apply to save that or is is that something that. We just don't expect the government to do no matter what. Right. I we haven't we didn't brief the issue. So I would. We did not brief that specific question. I don't know the specific answer. Let me ask you this. Maybe I can help you. Yes. The statutory immunity. That the government can provide to the citizen. To secure their testimony. If they do it statutorily. Someone of those fifth amendment and attorney general in the deal. Let's attorney. I agree that they want to they want them to testify and give them statutory immunity and that compels them to testify. That gets passed the fifth amendment. And it provides that anything they say can be used against them. Would you agree with me. That since you didn't define what you mean by use in the plea agreement that probably. The best way to look best place to look. Because he what you some means would be looked at the statute. I think it's 6205 or something. I'll translate team in there. What to see what. The use immunity statutory immunity is under the that's been authorized by Congress. That's the only immunity really that. That's that statute covers use immunity. I get transactional immunity that you got to get something right. The prosecutor has to stretch it. They can only give you some immunity under the statute that that is a court can only order that. That would be if it. If you rely on that use that definition in that statute. We are not expressing relying on it. We were trying to. I was trying to pull. From not to find in your plea agreement. Right. And you but you but you said it you say it's a use immunity provision. We're taking it to me. Except that there isn't but there's a specific exception there for you that you put in. And you must be a tough negotiator. You got an exception for violent crimes. If you admit to a violent crime, we can prosecute him for it. We can use that against it. But otherwise it's a use immunity provision for any for non violent criminal activity. Right. But I'm just trying to get you to agree that we could use whatever the whatever the statute means. By use immunity. Right. If the court believes it's ambiguous, then certainly that would be something to look to. Yes. The case that I was talking about

. That since you didn't define what you mean by use in the plea agreement that probably. The best way to look best place to look. Because he what you some means would be looked at the statute. I think it's 6205 or something. I'll translate team in there. What to see what. The use immunity statutory immunity is under the that's been authorized by Congress. That's the only immunity really that. That's that statute covers use immunity. I get transactional immunity that you got to get something right. The prosecutor has to stretch it. They can only give you some immunity under the statute that that is a court can only order that. That would be if it. If you rely on that use that definition in that statute. We are not expressing relying on it. We were trying to. I was trying to pull. From not to find in your plea agreement. Right. And you but you but you said it you say it's a use immunity provision. We're taking it to me. Except that there isn't but there's a specific exception there for you that you put in. And you must be a tough negotiator. You got an exception for violent crimes. If you admit to a violent crime, we can prosecute him for it. We can use that against it. But otherwise it's a use immunity provision for any for non violent criminal activity. Right. But I'm just trying to get you to agree that we could use whatever the whatever the statute means. By use immunity. Right. If the court believes it's ambiguous, then certainly that would be something to look to. Yes. The case that I was talking about. There was a decision. The Smith decision from. 2006. It's distinguished between use and derivative use. We don't it's not a brief. I've found it in preparation for this argument. It's at 452 F third 323. And that's. I was looking for trying to find examples of this difference. You know, we talk about use. We talked about derivative. We talk about transactional. In use is the narrowest form of the three. The three. There are a defendant also raised other issues which will rely on in our brief. If I could briefly mention sentencing. We think the district court was correct to group all the offenses for sentencing purposes. Because there was a continuous and ongoing offense behavior here. So that's 3d 1.2d. We discussed that on page 63 of our brief. We actually discussed both subsection C and D in our brief. We're in and I just want to lead with D because the offense behavior here through all six. Peace. All six offenses. We've used continuous and ongoing. We did cite one case. I just want to clarify the Mullins case on page 62. That was discussed in terms of relevant conduct. That applies if that definition of relevant conduct kicks in. If the offenses are group because of ongoing and continuous offense behavior. We believe they're ongoing continuous the reasons laid out in our brief. I can. I can address any other issue the court would like through three others

. There was a decision. The Smith decision from. 2006. It's distinguished between use and derivative use. We don't it's not a brief. I've found it in preparation for this argument. It's at 452 F third 323. And that's. I was looking for trying to find examples of this difference. You know, we talk about use. We talked about derivative. We talk about transactional. In use is the narrowest form of the three. The three. There are a defendant also raised other issues which will rely on in our brief. If I could briefly mention sentencing. We think the district court was correct to group all the offenses for sentencing purposes. Because there was a continuous and ongoing offense behavior here. So that's 3d 1.2d. We discussed that on page 63 of our brief. We actually discussed both subsection C and D in our brief. We're in and I just want to lead with D because the offense behavior here through all six. Peace. All six offenses. We've used continuous and ongoing. We did cite one case. I just want to clarify the Mullins case on page 62. That was discussed in terms of relevant conduct. That applies if that definition of relevant conduct kicks in. If the offenses are group because of ongoing and continuous offense behavior. We believe they're ongoing continuous the reasons laid out in our brief. I can. I can address any other issue the court would like through three others. What is the logical connection between the theft of the firearm? Well, his own. And the explosive materials that would allow the district goes to group. It all together. Right. In our view that the defendant is. All of these things share one common thread and it's the defendant is using his leadership position is clan organization and the people under it to bring dangerous items to him for his own use. So he's bringing in the stolen guns. Through. Messers. Daniel Barefoot, Maynard and Avery. Gautiers helping him. All these people are in his clan organization. The. In around the same time he's acquiring this liquid explosive. Mr. Gautier is helping him acquire that. He's acquiring or he's talking to Mr. Gautier. Around the same time maybe a month past that. About his plan and trying to recruit him into his plan. The liquid explosive of course once it's brought in Mr. Rifford keeps it on his property. When he believes that he's being surveilled in June of 2002 by Mr. Avery, one of his clan members. He tries to move a series of items and that includes the liquid explosive. The police ultimately find both a liquid explosive and one of the stolen firearms. That's one of the counts in the conspiracy in Daniel Barefoot's house. So there's there's an overlap there. There for the questions we asked the court to affirm the judgment of the district court. Thank you. As a task. Thank you. First your honor with respect to the government's position about the plea agreement and and to address your question judge king about how do we define the crime of violence. Let me be crystal clear about our position about this

. What is the logical connection between the theft of the firearm? Well, his own. And the explosive materials that would allow the district goes to group. It all together. Right. In our view that the defendant is. All of these things share one common thread and it's the defendant is using his leadership position is clan organization and the people under it to bring dangerous items to him for his own use. So he's bringing in the stolen guns. Through. Messers. Daniel Barefoot, Maynard and Avery. Gautiers helping him. All these people are in his clan organization. The. In around the same time he's acquiring this liquid explosive. Mr. Gautier is helping him acquire that. He's acquiring or he's talking to Mr. Gautier. Around the same time maybe a month past that. About his plan and trying to recruit him into his plan. The liquid explosive of course once it's brought in Mr. Rifford keeps it on his property. When he believes that he's being surveilled in June of 2002 by Mr. Avery, one of his clan members. He tries to move a series of items and that includes the liquid explosive. The police ultimately find both a liquid explosive and one of the stolen firearms. That's one of the counts in the conspiracy in Daniel Barefoot's house. So there's there's an overlap there. There for the questions we asked the court to affirm the judgment of the district court. Thank you. As a task. Thank you. First your honor with respect to the government's position about the plea agreement and and to address your question judge king about how do we define the crime of violence. Let me be crystal clear about our position about this. The government made a promise to Mr. Barefoot and that promise was not just we're not going to use your statement. The promise was you are going to get the term was a walk for a free pass for what you told us about bombs. You're going outside the plea agreement. Correct. That's that's another deal. You all negotiated this plea agreement and you put it in writing and you're stuck with the writing. Well, your honor. I'd submit that under the under the cases from this court. We're not stuck with the writing because the government. Why did why was the problem with the writing that we might interpret it against the government pardon. It's an integrated plea agreement. It's explicit that there's no promises outside this particular agreement. Your honor, for example, the plea agreement in Harvey, which we cited our brief says that the Eastern district of Virginia agrees to not prosecute the defendant further for the conduct constituting the basis of the indictment. Everybody at that time also knew that the defendant was potentially subject to prosecution in the district of South Carolina. When you have a plea agreement and it's an integrated plea agreement and anybody can bring up some kind of oral promise anytime anywhere and what it does is it undermines the integrity of plea agreements to try to do that. Why don't you focus in what is the provision in the plea agreement in the plea agreement itself that you hang your hat on with respect to counts five and six definition of crime of violence. All right. What definition there is no definitions defined between the parties and the definition between the parties is the promise that the government made to defend it. We supposed to take a guidelines definition or an arms career criminal act definition or whatever. No, Your Honor, I think you take the definition that the government told the defendant that he was going to get a walk for what he told us about bombs and explosives. Well, but that necessarily no, I'm talking about the provisions in the plea agreement. Quit coming back to the oral promise. The alleged oral promise. What provision in the plea agreement. Read it out. Well, Your Honor, I hang my hat on the I hang my hat on the exception for the crime of violence. All right, read it. Well, there's no definition for crime of violence in the plea agreement. You agree that count four is a crime of violence. I do not agree to count four. You don't agree any of them. You say four or five and six are all. I would not violent

. The government made a promise to Mr. Barefoot and that promise was not just we're not going to use your statement. The promise was you are going to get the term was a walk for a free pass for what you told us about bombs. You're going outside the plea agreement. Correct. That's that's another deal. You all negotiated this plea agreement and you put it in writing and you're stuck with the writing. Well, your honor. I'd submit that under the under the cases from this court. We're not stuck with the writing because the government. Why did why was the problem with the writing that we might interpret it against the government pardon. It's an integrated plea agreement. It's explicit that there's no promises outside this particular agreement. Your honor, for example, the plea agreement in Harvey, which we cited our brief says that the Eastern district of Virginia agrees to not prosecute the defendant further for the conduct constituting the basis of the indictment. Everybody at that time also knew that the defendant was potentially subject to prosecution in the district of South Carolina. When you have a plea agreement and it's an integrated plea agreement and anybody can bring up some kind of oral promise anytime anywhere and what it does is it undermines the integrity of plea agreements to try to do that. Why don't you focus in what is the provision in the plea agreement in the plea agreement itself that you hang your hat on with respect to counts five and six definition of crime of violence. All right. What definition there is no definitions defined between the parties and the definition between the parties is the promise that the government made to defend it. We supposed to take a guidelines definition or an arms career criminal act definition or whatever. No, Your Honor, I think you take the definition that the government told the defendant that he was going to get a walk for what he told us about bombs and explosives. Well, but that necessarily no, I'm talking about the provisions in the plea agreement. Quit coming back to the oral promise. The alleged oral promise. What provision in the plea agreement. Read it out. Well, Your Honor, I hang my hat on the I hang my hat on the exception for the crime of violence. All right, read it. Well, there's no definition for crime of violence in the plea agreement. You agree that count four is a crime of violence. I do not agree to count four. You don't agree any of them. You say four or five and six are all. I would not violent. I would say that count four is akin to a felon in possession of firearm, which is not a crime of violence. Here, it's simply possession is illegal receipt. What you do here is it's just like a statutory term that's undefined. If you don't have a term in the statute that's undefined elsewhere in the statute. And here we don't have a we have an undefined term. It's not defined elsewhere in the plea agreement. Then you take a common sense. Look at it and the Supreme Court's clear about that undefined terms. You let you take a common sense view it. Recedede of an explosive with intent that it be used to murder or injure purpose of persons or property. It doesn't seem to me a whole lot of I don't have to make a leap to determine that. If you're taking an explosive with an intent that it be used to murder or injure someone. It doesn't that doesn't trouble me finding that that's a crime of violence. Now, your five of six is a closer case. The five isn't even closer. Okay. But I want to know what your argument is is that the derivative use was made of statements in violation of the plea agreement. And if so, what statements were used? What particular statements were used? What particular provision of the plea agreement? Did they violate? And why was it not harmless arrow? Your Honor, I know you told me not to go back to the oral promise, but that's... I don't know. I don't want to hear about the oral or part. I want to hear about a provision of the plea agreement that was violated. Because that was negotiated between the party. And your Honor, I would say that that is a provision of the plea agreement between the parties. Well, it's not. Soon you're wrong on that. That the plea agreement is what's on the paper. Except that. If I'm if I'm wrong on that, Your Honor, I think that you have to use a common sense definition of the term from the bottom. Not a statutory definition. Correct. Correct. Because this is an undefined term

. I would say that count four is akin to a felon in possession of firearm, which is not a crime of violence. Here, it's simply possession is illegal receipt. What you do here is it's just like a statutory term that's undefined. If you don't have a term in the statute that's undefined elsewhere in the statute. And here we don't have a we have an undefined term. It's not defined elsewhere in the plea agreement. Then you take a common sense. Look at it and the Supreme Court's clear about that undefined terms. You let you take a common sense view it. Recedede of an explosive with intent that it be used to murder or injure purpose of persons or property. It doesn't seem to me a whole lot of I don't have to make a leap to determine that. If you're taking an explosive with an intent that it be used to murder or injure someone. It doesn't that doesn't trouble me finding that that's a crime of violence. Now, your five of six is a closer case. The five isn't even closer. Okay. But I want to know what your argument is is that the derivative use was made of statements in violation of the plea agreement. And if so, what statements were used? What particular statements were used? What particular provision of the plea agreement? Did they violate? And why was it not harmless arrow? Your Honor, I know you told me not to go back to the oral promise, but that's... I don't know. I don't want to hear about the oral or part. I want to hear about a provision of the plea agreement that was violated. Because that was negotiated between the party. And your Honor, I would say that that is a provision of the plea agreement between the parties. Well, it's not. Soon you're wrong on that. That the plea agreement is what's on the paper. Except that. If I'm if I'm wrong on that, Your Honor, I think that you have to use a common sense definition of the term from the bottom. Not a statutory definition. Correct. Correct. Because this is an undefined term. And assuming you are right on a couple of accounts like five and six, where he got concurrent sentences. Why isn't that harmless arrow? Well, I think practically speaking, it would be because you got concurrent sentences. I would concede that. In fact, we're getting that. He got a concurrent sentence. He did. We vacate the convictions and sentences on accounts five and six if we were hypothetically. That wouldn't help him a bit. Correct. Whenever he got out of penitentiary. Correct. In terms of the practical effect of it. And what if we have vacated you also raised count three for lack of evidence, he still wouldn't help him any, right? Well, Your Honor, I think that would affect the guideline calculation. I might think they're either under even under the government's name. All right. Counts five and six wouldn't affect the guideline. I don't think they would, Your Honor. No. I don't think they would. And very quickly to jump to the guidelines question, which came up during the government's presentation. It's important to note that what the district court hung the connection to allow all of this grouping on. Was testimony about a pipe bomb that somebody testified about seeing Mr. Barefoot set off in his yard and possessing. And his home. And again, I would simply go back to the terms of relevant conduct, which are that the gun counts of one and two and the other counts of three, four, five and six can only be grouped. If for three, four, five and six were done during the commission of the offense in preparation for that offense or in the course of attempting to avoid detection or responsibility for that offense. That that offense being the stolen gun charges and the possession of the pipe bomb simply had nothing to do with commission of the stolen prop stolen gun offenses. In something occurring in the course of the stolen gun offenses or some some effort to avoid detection or responsibility for those offenses. So I would say to the court that the basis that the district court relied on to group those together by the very terms of relevant conduct. I don't know why you say that they're all. Unconnected. What he did is he was grouping the gun counts and the explosives counts. And they were all connected to the KKK activities, weren't they in violent plant. In the defendant's position as head of a KKK chapter, they're all what he was going to be doing it with guns or whether he was going to do it explosive

. The point is he was using violent means to achieve the KKK goals, and which he was a very, which he was a very prominent member. But you're on both the both the probation office in the district court adopted the PSR which talks about possession of these pipe bombs as being the basis to link this all together. And argument would be that it's not relevant conduct so they can't link it all together. See my time is up. Thank you. All right, we'll come down and a Greek council and we will first adjourn court. The honorable court stands adjourned sign. I have to say, the United States in this honorable court