Legal Case Summary

We're happy to hear argument in our first case, the United States versus Cheperson. Mr. Cheperson? Thank you. Good morning, your honours may have pleased the court. My name is Ray Cheperson. I'm here on behalf of Mr. Cheperson. Please allow me to begin by saying happy Halloween. I hope that everyone has a safe and, but frightful, Halloween. I cannot imagine anything more terrifying on this Halloween day than being forced to go to trial in a capital case with a lawyer you don't trust who you believe has been ineffective and who you think has lied to you. That's true, Your Honor, but this court has held in the United States versus Boone. 245 FETTH, 352 Fourth Circuit, 2001. That even though no capital notice is filed under Section 3593, the statutory protections provided in Section 3518 still apply, because if you read the statute, it says whoever is indicted under a capital offense. And therefore, the protections are triggered when there is an indictment. There is no removal of that protection if the government subsequently decides that they're not going to seek the death penalty. It can't reasonably be argued that life plus hundreds of years in prison is not still a significant sentence and still very scary for the defendant. So I think the government will agree that the protections of Section 355 apply, notwithstanding the fact that they didn't actually seek the death penalty. Where the parties diverge in this case, Your Honor, is that the statute also says that the district court shall promptly assign two lawyers in such a case, quote, upon the defendant's request. And at least one of those lawyers, as we know, must be learned in capital cases. Well, the defendant make a request in this case? Yes, Your Honor, he did. And what I would like to do is invite the court, and now I've cited these cases in my brief, but I'd like to invite the court to a couple of sentences in this court's decision in the United States versus Williams. It's at 544FEDS2nd, page 1219. And if I may, I'm just going to read a couple of sentences. They're in this court in an analyzing Section 355 stated that there is no burden on the government to prove the existence of a knowing involuntary waiver of the right to two counsel under Section 355. Rather, a waiver will be presumed unless the defendant can show that there has been a request for two counsel or an equivalent circumstance which would clearly demonstrate that the defendant required additional counsel in a footnote to that sentence. This court stated such a circumstance may exist, for example, where the defendant has expressed dissatisfaction with his attorney

. And they're in that footnote the court cites its earlier decision in the United States versus blanket ship. Specifically in Williams, the court this court noted that that circumstance was not present. In this case, that circumstance is clearly present. Here we have a defendant, my client, Mr. Shepperson, who prior to trial, months prior to trial, sent a letter to the District Court in which he said essentially, judge, I'm not happy with my with my assigned appointed counsel, please give me different counsel. The District Court held a hearing and decided that that request should be denied. Subsequently, in February, still a month or several weeks before Mr. Shepperson's trial began, he wrote another letter to the trial judge. Again, saying to the trial court, essentially, your honor, I don't trust my lawyer, I don't like my lawyer, please give me different counsel. That request was also denied. Then, on the first day of trial, on March 1, 2011, the defendant again raises with the District Court the fact that he doesn't like his lawyer any once different counsel. In fact, in the trial judge wrote a fairly detailed opinion about these items. The trial judge wrote a fairly detailed opinion about why he was denying Mr. Shepperson's request for a new counsel, putting that aside. Well, let me read you a couple of sorts from that. The trial judge says, despite the courts repeated attempts to obtain specific information from the defendant, Mr. Shepperson either declined to provide information or merely repeated the general complaints contained in his letter. Then, later on, it says the court understands the finis of no longer requesting new counsel. The defendant's request does not support a specific information. What I can say is that the first day of trial, he did provide specific information. He said his trial counsel, he believed, had lied to him. He believed that the trial counsel was not advocating in his best interests, and he stated that he believed his trial counsel was ineffective. Now, I wasn't the trial counsel, and so, honestly, I'm a little bit of a disadvantage because I wasn't physically there. But I can tell you that based on the record, that it's very, very clear that Mr. Shepperson objected on several occasions to his lawyer didn't trust him

. And I don't know whether that was the reason why the court got the impression at some point along the way when there were just letters that he wasn't really asking for a new counsel. But clearly, by March, on the record, transcribed, Mr. Shepperson gave very specific reasons why he did not want his current lawyer. He believed he had been lied to. He believed his trial counsel wasn't advocating in his best interests, and he believed that his trial counsel was ineffective. Going back to this court's decision in Williams and Blankenship, where the court stated that those circumstances are sufficient to constitute a request under 355. You know, I hear what you're saying, and I think that that language is helpful to you, and I'm credited for finding it. But Boone is the first precedent on this, and the rule is that we follow the first precedent if there are two in conflict. Excuse me, I'm sorry. And Boone said the defendant must request the appointment of a second lawyer. Well, you're honored that. Well, you're honored. That statement in Boone is really dictated. Because in Boone, in Boone. And the statement in the other cases isn't dictated? Well, in Boone. We have control. We have rule in dictated. Sure. But well, you have to decide this issue, because I don't think in Boone it was presented. Well, I think Boone, I think you'll acknowledge, is a minority opinion among the circuits. And in Boone, the four circuits strictly read the literal terms of the statute. Right. He's a death eligible indictment, so he gets two lawyers whether the government seeks to death penalty or not. But, that's a request. By shouldn't we strictly construe the request language in the same statute? Well, you're honor

. The first response I'd like to point out is that the defendant in Boone made a specific request. So the issue that we're dealing with here was not actually presented in Boone. That really doesn't go to respond to the strict statutory construction given Boone to create this minority rule. It's an outlier. Well, I think that fundamental fairness dictates that when you have a defendant who is clearly asking for different counsel. Courts have held not just in this circuit, but in other circuits. I've cited the Smith case, the DC circuit case, in which the public court has said, look, under those circumstances, at a minimum, the right to the two lawyers should not be lost because either trial counsel or the defendant doesn't, isn't aware of the right. And at no point in this case did anybody say to Mr. Shepperson, by the way, there's a statute. And all you have to do is use magical words to say you want two lawyers. And all of your requests about asking for a different lawyer will be granted. Because then Congress said, you have the statutory right to have two attorneys. That seems like trickery to me in a very serious case and doesn't protect fundamental fairness. I think that it's very difficult. It's one thing to say we're going to strictly construe the language, but I think that strictly construing the language means doing it in a manner consistent with due process and fairness. And in this case, clearly Mr. Shepperson wanted a different counsel. There's no question he wanted a different lawyer. And under those circumstances, to say that it's beyond the pale of what Congress intended to advise the defendant that he's entitled to two lawyers. I think it's just not the right decision. Let me move on to the second issue, which is also triggered by the fact of an indictment or the language in Section 3432, says one who is charged with a capital offense. That would be significant language, wouldn't it? Because clearly Congress has chosen two very different terms of art for these two related statutes. Well, I think they're both used interchangeably by Congress, charged with and indicted with, indicted. I mean, you are charged by way of indictment. So I don't perceive

. They charged in 3,000 and 5. I thought we were to present that when Congress uses those terms and they use different terms, particularly with regard to statutes that are related to the same subject matter, that we are to present that they intended different meanings. Well, they're not related to the same subject matter. They weren't passed at the same time or necessarily even better. But I think that to say, I mean, I think the court would be hard pressed to come up with a meaning other than an indictment when the Congress says when you're charged with a capital offense. So, yeah, Congress didn't use the identical language indictment versus charged with. But if anything, it's broader because you can be charged by way of information. You can be charged in a number of manners other than by indictment. So if anything, 34. Well, I think that maybe that's true, but that doesn't mean they're the same. That's right. In other words, in the earlier statute, it could have said and would be perhaps more supportive of the minority rule that we've come down with. It's such charged rather than indictment. Okay. But I mean, I don't think it's subject to real debate that my client was charged with a capital offense in this case when he was indicted. Do you have an obligation to object? Object to what you're on. You're not being given the names of the witnesses. Yes, and in fact, his trial council did. In fact, the trial council fought a motion to dismiss several accounts of the indictment specifically on the grounds that the witness. He timely did that. He did, but, and I don't mean to be critical of trial council. He's a friend of mine. But he didn't, I don't think he specifically cited this statute. He complained that he didn't know who the witnesses were and that the government was withholding it under the, under the, When long came the witnesses and there was no complaint? Well, I don't know that that's, I think there was complaint prior to, now did he renew his complaints after the witness testified? I don't think he did. In fact, he did have three days before it

. So we're looking at plain error, it seems to me. Your Honor, he did not have three days with respect to the witness in this case, which is Mr. Paradas. He didn't. Oh, absolutely not. Mr. Paradas is identity as a witness. And prior witness statements were disclosed hours, literally on the afternoon of the, of the day before the morning in which the witness was called to testify. And significantly after the government had already placed the medical examiner on the stand. He did not ask for continuance and, and you know, we can all Monday morning quarterback Mr. Paradas all day long. And I hate to do that as a public counsel, but you know, perhaps he should have asked for additional time. Perhaps he should have raised this particular statute. But, but I don't believe that. The government provided a witness list on the first day of trial, three days before Paradas was called to testify. He was on that list, wasn't he? I don't think that was three days. That was. Well. But, but, but, there was a violation of the statute to be sure. Question is whether he. Right, and this argument about whether he's suffered. If it was error, whether he's been prejudiced. And I also think it goes a little bit beyond the statute because the United States and Ravario, back in 1957, and this court in blabin's, 960 Fed, second, 1252, 1992, essentially held that when you when you have a witness whose identity has been concealed for whatever reason, who was an active participant in the crime. The balance shifts in favor of disclosing the identity of that of that witness prior. Those witnesses never testify

. Was your say evidence for respect to them? No, no, no, no. The star witness in this case, Your Honor, was Mr. Paradas. In this case, but in the cases, you were low. Oh, right. Oh, I'm sorry. I misunderstood you. You're right. But the point I'm trying to make, and I'm about to run out of time, is simply that when you have a witness like Paradas, who was the only witness who could place the defendant at the scene of the crime, and the only one who could place the defendant as the shooter who killed Mr. Montoya, if you look at those cases and the analysis in those cases, it weighs in favor of requiring disclosure prior to trial, as a matter of fundamental fairness. Thank you, and I reserve the rest of my time. Thank you. Good morning. Good morning, Your Honor. May I please record? My name is Sujit Rahman. I'm the Appellate Chief for the District of Maryland, a period on behalf of the United States. Your Honor, so I could just very briefly begin with a very brief, factual background, and then I'll get right to the legal issues in this case. So court is aware of this case arose out of a lengthy investigation into the Latin kings, a violent criminal gang, that terrorized communities in Maryland and across the United States over a course of a number of years. Nineteen defendants were charged in this case, only one defendant, Mr. Shebrison, proceeded to trial. So court is aware of the original indictment in this case, which the grain jury returned in November of 2009, charged a single count of racketeering conspiracy in violation of Section 1962-D, which carries a maximum penalty of 20 years. Now, nearly a year later, the grain jury returned a superseding indictment, with eight additional charges. Many of those charges were related to the defendants, brutal, robbery, and murder of John Montoya on the afternoon of April 25th, 2008. There is no dispute that two of those additional charges, count six of the superseding indictment, which charged murder in aid of racketeering in violation of the Vicar statute, and count nine, which charged murder as a result of using and carrying a firearm in violation of Section 924J had as a maximum penalty, the death penalty. It is equally undisputed at the defendant never faced the death penalty in this case, because the attorney general elected not to seek the death penalty, before this case was even presented to the grain jury when it returned its second, its superseding indictment in October of 2010

. You aren't disputing the boon as long as the circuit right or wrong. Your Honor, I am not disputing that. And indeed, I do want to touch on something, Judge Moss, that I think you touched on earlier, and the question being which decision controls when there is a circuit split. And your Honor, correctly, of course, pointed out that the earlier decision controls. I would say, and I think it's important to note this, there is a decision from 1969, the whole decision we cited in our briefs, which explicitly says that the procedural protections that normally apply to capital defendants do not apply when the defendant does not face the death penalty. So I think there is an argument, but I guess the end note is that the boon is more specific. That's very Your Honor, certainly. And I would say Your Honor, under boon, as the court pointed out earlier, footnote 7 points out that you have to actually request the second attorney. So even under the boon decision, a defendant has to affirmatively request a second lawyer to enjoy the protections afforded by Section 3,000-5. That is very different from this case, where Mr. Sheperson never raised a claim under Section 3,000-5, and thus never actually triggered the statutory protections. And that really gets to the very key issue in this case is whether or not a defendant who is never eligible for the death penalty because the government never filed its notice in this case is afforded all of the robust, expensive, procedural protections that a defendant enjoys, a capital defendant enjoys under Section 3,000-5, the notice provisions under Section 3432. The government submission is that if the defendant doesn't affirmatively request his right, he is not entitled to the protections under 3,000-5. And if he doesn't timely object under Section 3432, then he's not entitled to, at least on plain error review, merit a reversal of his conviction. I would like to point out, Your Honours, that there is some disparity between these two provisions. The court, I think very properly, has pointed out that, well, we have to construe these provisions in harmony, and that's certainly the case. But there is a disjunction, even within this court's authority, with relation to these two provisions. Under Boone, of course, it is reversible error for a district court, for a defendant not to be given a second lawyer if he so requests it. But under this court's decision in Fulkes, which is a 3432 case, the error, it is not a reversible error. The court will essentially look at whether or not the district court abused its discretion, and will engage in a harmless error inquiry. So I guess the point I'm trying to make is that, even within these procedural protection statutes, which are similar, I don't know that I followed that, were you distinguishing between the two arguments that are made, or you don't think an argument would respect to just the first argument? Well, I'm trying to make a distinction between the two arguments, Your Honor. You don't think that the second is subject to harmless error reviews, second argument that's made here. That's correct, Your Honor. If there had been a violation of the first, it wouldn't be subject to under Boone. That's right, Your Honor

. That's exactly right. And as the court observed, Your Honor, as you pointed out earlier, the presumption was that Section 3432 applies in this case that Mr. Shefferson had rights under 3432. I suppose what I'm trying to suggest to the court is that he really didn't, because, again, he never faced the death penalty in this court. But if we're going to, we have to construe them. If Boone remains the law, we have to make our construction of this other statute, unless you can give us some reason why not. And let me give you that reason. Let me give you that reason, Your Honor. As the court pointed out, You're on 3532. Let me actually talk about 3432, Judge A. G. Secondary. Yes, let me talk about that, because I think there is a distinction between those two statutes. Your Honor, Judge Mott says you pointed out, Boone is more recent in time than Hall. Hall was a 3432 case. And so Boone creates a little bit of a disjuncture within this court's own jurisprudence. Because, again, it does not subject violations of the statute to harmless our review. It's structural error, it's reversible error. 3432, on the other hand, does not, this court's constructions of 3432, does not suggest automatic reversal. No, it's subject to harmless our review. Subject to harmless our review. Is there some other distinction that you're drawing because of the language of the two? It's not so much the language, Your Honor. In Canter, I don't think there is a major distinction between whether or not someone is charged with a particular fence or whether or not they're indicted. In Canter, I don't see a big difference between that. I thought you were making that, or no, Your Honor

. But what I do see is within this court's own jurisprudence, a different approach to noticed error or unnoticed error. Well, but I think that if you just look at boon, as Joe Janderson pointed out, we used a very textual approach, if you will. Yes. If you use the same textual approach to this other one, you don't get to the same place. Not quite, Your Honor, because if you apply the textual approach and you consider that textual approach within supporting case law, within other cases that have interpreted that very same language, and this is where I go back to Hall, the 1969 decision, which was squarely a 3432 case, where this court said the procedural protections that ordinarily are associated with a capital defendant do not apply, where a defendant is not facing the death penalty. So I think there is a distinction between the way this court has approached the 3,000-5 cases in the other procedural protection cases like 3432. The government's position here is that this court on plain error review certainly should not reverse these convictions. The defendant never noticed his objections, and ultimately the standard is, was there a miscarriage of justice here? I would say with respect, Mr. Bardo's did an extraordinary job, a trial effectively cross examining the witnesses in this case, making a very compelling closing argument. And at one point actually keeping out a highly damaging piece of evidence against his client. So there was a threshold matter on the 3432 argument. There was an error here in the sense that he didn't get this particular witness identified the three days earlier. I would not concede that, Your Honor, for a couple of reasons. Number one, first of all, as the court... Three days before the commencement of trial? You didn't get? That's correct. That's correct. That's correct. That's the language in the statute. Well, with respect, Your Honor, I don't think I have to concede it because the bottom part of the statute says that the judge can actually order if by a preponderance of the evidence there is any safety concern to any witness. Then the witness list need not be produced at all under Section 30. Is there that finding by a preponderance of the evidence? Judge Williams certainly made findings in this case that witness safety was an issue. There were multiple protective orders. Pretty specific finding that has to be

. That's very Your Honor. But again, it's very difficult for the... that's fair. I don't think Judge Williams ever specifically invoked 3432. But I think the record certainly supports the notion that witness safety was an issue in this case as the multiple protective orders a test, which were issued months in advance of trial. So we were to determine that there was not a specific finding in this case, which... In so many words, there has not appeared to be, unless you can show it to us, that there was a safety concern that justified not disclosing within the... By the three-day limit, then there was an error... a textual error, if you want to call it. In this case, because the defendant did not get this particular witness in the time the statute required. Your Honor, again, I respectfully... I resist the idea that there is clear error here. And the reason I say that is because this court has never ruled that the capital protections are triggered under Section 3432. And that's why I do see... Why don't you for purposes of answering the question of soon... Yes, Your Honor? ...are not giving the three... the names three days before trial was error. Then the question is, do you lose? We do not lose. And you don't lose because... Because there was no harm... there was no prejudice to the defendant. He received... You're also claimant wasn't playing. And it wasn't playing. That's right, because there's no binding law in the circuit to suggest that

.. Why don't you for purposes of answering the question of soon... Yes, Your Honor? ...are not giving the three... the names three days before trial was error. Then the question is, do you lose? We do not lose. And you don't lose because... Because there was no harm... there was no prejudice to the defendant. He received... You're also claimant wasn't playing. And it wasn't playing. That's right, because there's no binding law in the circuit to suggest that... There is a binding federal statute. Well, there's a binding statute, Your Honor, but again, the statute only applies if the defendant is a capital defendant. And that's why I think you do need to distinguish between 3,05 and 3432. As this court's own jurisprudence draws that distinction. The boon line of cases and Robinson, of course, which I haven't talked about, but in many ways is probably the controlling precedent in this case. The boon Robinson line of cases presumes that a defendant who is charged with a death-aligible offense, even though he never faces the death penalty, is a capital defendant. 3432, in my understanding, has never been construed that way in this circuit. And if anything, Hall, the 1969 case, suggests exactly the opposite. That if a defendant is not facing the death penalty, he is not a capital defendant for the purposes of 3432. Your argument is based on Hall, not a distinction between charged and indictment. Correct. That's right, Your Honor. It's based on the case law in the circuit. Did you look at the district court's stocking entries because the record here doesn't tell us how much time he laps between the time that... The defendant got the name of this witness. But the documentary seemed to say three days to me. Yes, Your Honor. Were you trial counsel or do you... I was not trial counsel, though I am prepared to answer your question

... There is a binding federal statute. Well, there's a binding statute, Your Honor, but again, the statute only applies if the defendant is a capital defendant. And that's why I think you do need to distinguish between 3,05 and 3432. As this court's own jurisprudence draws that distinction. The boon line of cases and Robinson, of course, which I haven't talked about, but in many ways is probably the controlling precedent in this case. The boon Robinson line of cases presumes that a defendant who is charged with a death-aligible offense, even though he never faces the death penalty, is a capital defendant. 3432, in my understanding, has never been construed that way in this circuit. And if anything, Hall, the 1969 case, suggests exactly the opposite. That if a defendant is not facing the death penalty, he is not a capital defendant for the purposes of 3432. Your argument is based on Hall, not a distinction between charged and indictment. Correct. That's right, Your Honor. It's based on the case law in the circuit. Did you look at the district court's stocking entries because the record here doesn't tell us how much time he laps between the time that... The defendant got the name of this witness. But the documentary seemed to say three days to me. Yes, Your Honor. Were you trial counsel or do you... I was not trial counsel, though I am prepared to answer your question. So the list of witnesses was provided on the morning of trial, which is March 1, 2010. March 4th. So at least three days. Yeah, it was three days. But I would even go further, Your Honor. And if this is in the record, the government met with this defendant. Yes, Your Honor. Yes, Your Honor. So you're representing that the record reflects that three days before the witness was called, not three days before trial, but three days before the witness was called, his name was identified to the defendant. Absolutely. If you look at the supplemental appendix page eight, that is the witness list in this case. And Mr. Peretes is listed on that list on page... Of course, indulgences for a minute. Important to mark that page. Top of page 11, Your Honor. Supplemental appendix page 11. Roddy E. Peretes, Jr. aka Wate, aka King Wate. If the court is with me, at the top of page 11 of the supplemental appendix. The very top of page 11. Seal Dependix

. So the list of witnesses was provided on the morning of trial, which is March 1, 2010. March 4th. So at least three days. Yeah, it was three days. But I would even go further, Your Honor. And if this is in the record, the government met with this defendant. Yes, Your Honor. Yes, Your Honor. So you're representing that the record reflects that three days before the witness was called, not three days before trial, but three days before the witness was called, his name was identified to the defendant. Absolutely. If you look at the supplemental appendix page eight, that is the witness list in this case. And Mr. Peretes is listed on that list on page... Of course, indulgences for a minute. Important to mark that page. Top of page 11, Your Honor. Supplemental appendix page 11. Roddy E. Peretes, Jr. aka Wate, aka King Wate. If the court is with me, at the top of page 11 of the supplemental appendix. The very top of page 11. Seal Dependix. There's an unsealed appendix, Your Honor, filed by the United States. Right, OK. On August 17, 2012. And so if you look at the top of page 11 of the supplemental appendix, thank you, Your Honor. So you'll see that Mr. Peretes is listed right there. And I should say, you know, that's the formal notice. The government had met with Mr. Shepperson in a proper session before the superseding in Diving was returned in October of 2010. At which point the prosecutor sat down with the defendant and his lawyer and said, essentially, here is the evidence we have against you. It did not identify Mr. Peretes at that time. But to the extent that Mr. Peretes was the only other eyewitness, apart from Mr. Montoya, who of course was the victim, it strains credulity for him to say that he had no idea that Mr. Peretes would have been the other person testifying against him. Because Mr. Peretes ultimately was the only other eyewitness apart from the defendant himself. And the trial here began on March 1. March 1, Your Honor. And March 4 is when Mr. Peretes was called. So how do we find that? Pardon me, Your Honor? How do we find where he was called? Well, he was in the docushioron. Yeah, that's where I found it. Okay

. There's an unsealed appendix, Your Honor, filed by the United States. Right, OK. On August 17, 2012. And so if you look at the top of page 11 of the supplemental appendix, thank you, Your Honor. So you'll see that Mr. Peretes is listed right there. And I should say, you know, that's the formal notice. The government had met with Mr. Shepperson in a proper session before the superseding in Diving was returned in October of 2010. At which point the prosecutor sat down with the defendant and his lawyer and said, essentially, here is the evidence we have against you. It did not identify Mr. Peretes at that time. But to the extent that Mr. Peretes was the only other eyewitness, apart from Mr. Montoya, who of course was the victim, it strains credulity for him to say that he had no idea that Mr. Peretes would have been the other person testifying against him. Because Mr. Peretes ultimately was the only other eyewitness apart from the defendant himself. And the trial here began on March 1. March 1, Your Honor. And March 4 is when Mr. Peretes was called. So how do we find that? Pardon me, Your Honor? How do we find where he was called? Well, he was in the docushioron. Yeah, that's where I found it. Okay. Maybe there was some other place in the appendix. So Mr. Peretes, Your Honor. Testifies under docket entry 560. So if the court were to look at docket entry 560, that's the transcript from March 4, 2012. And on that day, he describes in detail the various activities that happen that day when he joined Mr. Sheperson and Mr. Sheperson. Test money begins on that day. Correct. Yes, Your Honor. I should say also that Mr. Peretes, excuse me, Mr. Bartos, the trial counsel never objected to the extent of asking the court to exclude this testimony. Indeed, Judge Williams. And if you look at the Falks case, FULK has a decision issued by this court, one of the inquiries in deciding whether or not there was an error is whether or not defense counsel asked for the testimony to be excluded, whether the district court provided him time to try to seek a continuance to lay the trial. That's right. That's right. You're on it. If I left the witness to it, there was a new witness, though, a brand new witness that's hopped up in the middle of trial. It was also a capital case, though. Right. It was a capital sentencing proceeding where the government complied with its three-day rule. And in the middle of the trial, there was newly discovered evidence. So it's a little different than this case

. Maybe there was some other place in the appendix. So Mr. Peretes, Your Honor. Testifies under docket entry 560. So if the court were to look at docket entry 560, that's the transcript from March 4, 2012. And on that day, he describes in detail the various activities that happen that day when he joined Mr. Sheperson and Mr. Sheperson. Test money begins on that day. Correct. Yes, Your Honor. I should say also that Mr. Peretes, excuse me, Mr. Bartos, the trial counsel never objected to the extent of asking the court to exclude this testimony. Indeed, Judge Williams. And if you look at the Falks case, FULK has a decision issued by this court, one of the inquiries in deciding whether or not there was an error is whether or not defense counsel asked for the testimony to be excluded, whether the district court provided him time to try to seek a continuance to lay the trial. That's right. That's right. You're on it. If I left the witness to it, there was a new witness, though, a brand new witness that's hopped up in the middle of trial. It was also a capital case, though. Right. It was a capital sentencing proceeding where the government complied with its three-day rule. And in the middle of the trial, there was newly discovered evidence. So it's a little different than this case. But in terms of the actual managing of the trial at your honor, as your honor knows, it's very difficult to deal with these issues in the middle of a very complex, very difficult trial. The court has to use this discretion as best it can to run its stocket and make sure that there's fairness. Judge Williams, in our view, bent over backwards in this case. How long was this trial? Two weeks, about two and a half weeks, your honor. The government, the district judge, bent over backwards to try to ensure that this defendant received a fair trial. He said, I will call witnesses under the court's authority, Mr. Sheperson. If you want to recall any of these witnesses based on the disclosure of Mr. Peretta's later than what is normally required in light of the protective order in this case. So the district judge certainly went out of its way. I'm sorry. I thought he never made the objection. Well, when Mr. Bardos, on the first day of trial, objected to essentially the issues relating to the disclosures your honor. He said, it's hard for me to try this case if I don't know who the witnesses are. So I want to mistrial, essentially was his position. The district court rejected that and said, look, if you have an issue with these disclosure issues. Nobody mentioned the statute. No, nobody mentioned the statute. The point I'm trying to make those at the district court, at least under folks, certainly was acting appropriately in offering to continue the trial, in offering the defense counsel the opportunity to recall any witness who he felt he didn't properly get to cross examine because of the... The district court offered the opportunity, offered a continuance. That was when I recollection your honor. Yeah, I think he just said he'd recall them

. But in terms of the actual managing of the trial at your honor, as your honor knows, it's very difficult to deal with these issues in the middle of a very complex, very difficult trial. The court has to use this discretion as best it can to run its stocket and make sure that there's fairness. Judge Williams, in our view, bent over backwards in this case. How long was this trial? Two weeks, about two and a half weeks, your honor. The government, the district judge, bent over backwards to try to ensure that this defendant received a fair trial. He said, I will call witnesses under the court's authority, Mr. Sheperson. If you want to recall any of these witnesses based on the disclosure of Mr. Peretta's later than what is normally required in light of the protective order in this case. So the district judge certainly went out of its way. I'm sorry. I thought he never made the objection. Well, when Mr. Bardos, on the first day of trial, objected to essentially the issues relating to the disclosures your honor. He said, it's hard for me to try this case if I don't know who the witnesses are. So I want to mistrial, essentially was his position. The district court rejected that and said, look, if you have an issue with these disclosure issues. Nobody mentioned the statute. No, nobody mentioned the statute. The point I'm trying to make those at the district court, at least under folks, certainly was acting appropriately in offering to continue the trial, in offering the defense counsel the opportunity to recall any witness who he felt he didn't properly get to cross examine because of the... The district court offered the opportunity, offered a continuance. That was when I recollection your honor. Yeah, I think he just said he'd recall them. I don't think he offered a continuance. Perhaps I stand corrected. The district court certainly said, I am happy to recall under my authority any witness that the defense feels it was not properly prepared to cross examine. Which again, going back to the abuse of discretion idea, this is a district judge who is managing a complex, difficult trial, and again is doing his very utmost to make sure that this defendant received a fair trial. In light of the protective order in this case, in light of the discovery agreement that the defendant signed in this case or released his counsel, specifically stipulating that the government could withhold the identities of certain cooperating witnesses until a time it felt was appropriate to disclose. I do see my time is running down your honors, but for all of those reasons, we believe that there was no plan error under either Section 3,05 or under Section 3432. And for those reasons, this court should affirm the judgment of the district court below. Thank you. Thank you, your honor. Your honors, let me clarify something that I think I was confused on at first, which is this whole idea of when the notice in the three days. The statute says at least three entire days before the commencement of trial. Yes, to be sure. Right, so all of this about when there was a laundry list of potential witnesses on the first day of trial. Look, counsel for the right. Right, right. Not three days before. Right, exactly. And the other point there is practically speaking, anyone who's been in a trial like this knows as government counsel just mentioned, it is complex. You don't have time in the middle of trial to investigate and prepare your case. So a disclosure on the first day of trial, Congress chose that language for a reason. And the reason is, if the disclosure is going to have any benefit to the defendant, it has to occur prior to the commencement of trial, not during trial. So the fact that the witness may have been called three days after the laundry list was published at the defense council on the first day of trial is a red hailing. Second, a very important admission or point was made just now. And that was the judge Williams never invoked section 3432, which means judge Williams never engaged in the balancing test Congress required under that statute. To me, that in and of itself is sufficient at least to find that the exception within the statute, which would allow perhaps a deviation from the requirement of disclosure was not complied with

. I don't think he offered a continuance. Perhaps I stand corrected. The district court certainly said, I am happy to recall under my authority any witness that the defense feels it was not properly prepared to cross examine. Which again, going back to the abuse of discretion idea, this is a district judge who is managing a complex, difficult trial, and again is doing his very utmost to make sure that this defendant received a fair trial. In light of the protective order in this case, in light of the discovery agreement that the defendant signed in this case or released his counsel, specifically stipulating that the government could withhold the identities of certain cooperating witnesses until a time it felt was appropriate to disclose. I do see my time is running down your honors, but for all of those reasons, we believe that there was no plan error under either Section 3,05 or under Section 3432. And for those reasons, this court should affirm the judgment of the district court below. Thank you. Thank you, your honor. Your honors, let me clarify something that I think I was confused on at first, which is this whole idea of when the notice in the three days. The statute says at least three entire days before the commencement of trial. Yes, to be sure. Right, so all of this about when there was a laundry list of potential witnesses on the first day of trial. Look, counsel for the right. Right, right. Not three days before. Right, exactly. And the other point there is practically speaking, anyone who's been in a trial like this knows as government counsel just mentioned, it is complex. You don't have time in the middle of trial to investigate and prepare your case. So a disclosure on the first day of trial, Congress chose that language for a reason. And the reason is, if the disclosure is going to have any benefit to the defendant, it has to occur prior to the commencement of trial, not during trial. So the fact that the witness may have been called three days after the laundry list was published at the defense council on the first day of trial is a red hailing. Second, a very important admission or point was made just now. And that was the judge Williams never invoked section 3432, which means judge Williams never engaged in the balancing test Congress required under that statute. To me, that in and of itself is sufficient at least to find that the exception within the statute, which would allow perhaps a deviation from the requirement of disclosure was not complied with. So this court is unable to say that the statute doesn't apply because of that exception. The third point I want to make is that with respect to prejudice, the government says, well, there was no prejudice to the defendant because, you know, he got this witness identified on the first day of trial. There absolutely was prejudice for a number of reasons. Number one, his counsel didn't have the opportunity to investigate this witness prior to the actual trial. But more importantly, as I mentioned before, the medical examiner testified before Mr. Peretti's testified and the record is clear that the defense council asked no questions. The reason he asked no questions in my mind is because he was unaware at the time that what parodies was about to say on the stand the next day was inconsistent with what the medical examiner was testifying about. In the district court, say at the outset of the trial that the outset of this, that before this ever happened that he would let the defense recall any witnesses that wanted to do. The trial court most certainly did and that's commendable, but it doesn't fix the problem. The language of the statute requires the disclosure to be made before trial. When you're in the heat of trial, your honor. You just work human beings. He had the right to have his attorney prepare before trial. You can't expect trial counsel to be superhuman and say, wait, I'm going to, maybe I can recall this witness. Plus there's all kinds of additional concerns when you start recalling witnesses like that in front of a jury. I wasn't trial counsels. Why can't speak to what he was thinking? I think that that offer doesn't fix the problem. I ask you one other thing about that author. Was there an offer to give him three days? I don't recall that. No, I don't recall that being in the record, Your Honor. I only recall the judge saying, I'll recall witnesses on my authority if I need to. The last point I want to get back to is goes back to 3,000 five. That is that judge Montjimata, you made a point earlier and I agree with you that the earlier decision is normally what the court follows. I neglected to point out that Williams and Blankenship preceded Boone by a number of years. Williams was decided in 1976, Boone didn't come around until 2001

. So this court is unable to say that the statute doesn't apply because of that exception. The third point I want to make is that with respect to prejudice, the government says, well, there was no prejudice to the defendant because, you know, he got this witness identified on the first day of trial. There absolutely was prejudice for a number of reasons. Number one, his counsel didn't have the opportunity to investigate this witness prior to the actual trial. But more importantly, as I mentioned before, the medical examiner testified before Mr. Peretti's testified and the record is clear that the defense council asked no questions. The reason he asked no questions in my mind is because he was unaware at the time that what parodies was about to say on the stand the next day was inconsistent with what the medical examiner was testifying about. In the district court, say at the outset of the trial that the outset of this, that before this ever happened that he would let the defense recall any witnesses that wanted to do. The trial court most certainly did and that's commendable, but it doesn't fix the problem. The language of the statute requires the disclosure to be made before trial. When you're in the heat of trial, your honor. You just work human beings. He had the right to have his attorney prepare before trial. You can't expect trial counsel to be superhuman and say, wait, I'm going to, maybe I can recall this witness. Plus there's all kinds of additional concerns when you start recalling witnesses like that in front of a jury. I wasn't trial counsels. Why can't speak to what he was thinking? I think that that offer doesn't fix the problem. I ask you one other thing about that author. Was there an offer to give him three days? I don't recall that. No, I don't recall that being in the record, Your Honor. I only recall the judge saying, I'll recall witnesses on my authority if I need to. The last point I want to get back to is goes back to 3,000 five. That is that judge Montjimata, you made a point earlier and I agree with you that the earlier decision is normally what the court follows. I neglected to point out that Williams and Blankenship preceded Boone by a number of years. Williams was decided in 1976, Boone didn't come around until 2001. The language in Williams, in my mind, makes it very clear that under the circumstances just like in this case, you do have a request that meets the requirement of Section 3,000 five. So if in fact the court is going to apply its earlier decision or in this case decisions, plural, Williams and Blankenship, then it should find that a request was made in this case because that issue was not presented in Boone. Boone presented a different issue where the issue was, the defendant had clearly made a request specific for two counsel, but the issue was whether or not the statute applied in light of the non-filing of a capital notice. So for those reasons, Your Honor, I believe Mr. Sheperson deserves a new trial. Thank you. Mr. Shepard, I understand you're quite appointed. I am Your Honor. We very much appreciate your efforts. You've done a fine job for your client. I appreciate that very much. I don't think that a better job could have been done. Thank you. We will come down and greet the lawyers and then the officials.

We're happy to hear argument in our first case, the United States versus Cheperson. Mr. Cheperson? Thank you. Good morning, your honours may have pleased the court. My name is Ray Cheperson. I'm here on behalf of Mr. Cheperson. Please allow me to begin by saying happy Halloween. I hope that everyone has a safe and, but frightful, Halloween. I cannot imagine anything more terrifying on this Halloween day than being forced to go to trial in a capital case with a lawyer you don't trust who you believe has been ineffective and who you think has lied to you. That's true, Your Honor, but this court has held in the United States versus Boone. 245 FETTH, 352 Fourth Circuit, 2001. That even though no capital notice is filed under Section 3593, the statutory protections provided in Section 3518 still apply, because if you read the statute, it says whoever is indicted under a capital offense. And therefore, the protections are triggered when there is an indictment. There is no removal of that protection if the government subsequently decides that they're not going to seek the death penalty. It can't reasonably be argued that life plus hundreds of years in prison is not still a significant sentence and still very scary for the defendant. So I think the government will agree that the protections of Section 355 apply, notwithstanding the fact that they didn't actually seek the death penalty. Where the parties diverge in this case, Your Honor, is that the statute also says that the district court shall promptly assign two lawyers in such a case, quote, upon the defendant's request. And at least one of those lawyers, as we know, must be learned in capital cases. Well, the defendant make a request in this case? Yes, Your Honor, he did. And what I would like to do is invite the court, and now I've cited these cases in my brief, but I'd like to invite the court to a couple of sentences in this court's decision in the United States versus Williams. It's at 544FEDS2nd, page 1219. And if I may, I'm just going to read a couple of sentences. They're in this court in an analyzing Section 355 stated that there is no burden on the government to prove the existence of a knowing involuntary waiver of the right to two counsel under Section 355. Rather, a waiver will be presumed unless the defendant can show that there has been a request for two counsel or an equivalent circumstance which would clearly demonstrate that the defendant required additional counsel in a footnote to that sentence. This court stated such a circumstance may exist, for example, where the defendant has expressed dissatisfaction with his attorney. And they're in that footnote the court cites its earlier decision in the United States versus blanket ship. Specifically in Williams, the court this court noted that that circumstance was not present. In this case, that circumstance is clearly present. Here we have a defendant, my client, Mr. Shepperson, who prior to trial, months prior to trial, sent a letter to the District Court in which he said essentially, judge, I'm not happy with my with my assigned appointed counsel, please give me different counsel. The District Court held a hearing and decided that that request should be denied. Subsequently, in February, still a month or several weeks before Mr. Shepperson's trial began, he wrote another letter to the trial judge. Again, saying to the trial court, essentially, your honor, I don't trust my lawyer, I don't like my lawyer, please give me different counsel. That request was also denied. Then, on the first day of trial, on March 1, 2011, the defendant again raises with the District Court the fact that he doesn't like his lawyer any once different counsel. In fact, in the trial judge wrote a fairly detailed opinion about these items. The trial judge wrote a fairly detailed opinion about why he was denying Mr. Shepperson's request for a new counsel, putting that aside. Well, let me read you a couple of sorts from that. The trial judge says, despite the courts repeated attempts to obtain specific information from the defendant, Mr. Shepperson either declined to provide information or merely repeated the general complaints contained in his letter. Then, later on, it says the court understands the finis of no longer requesting new counsel. The defendant's request does not support a specific information. What I can say is that the first day of trial, he did provide specific information. He said his trial counsel, he believed, had lied to him. He believed that the trial counsel was not advocating in his best interests, and he stated that he believed his trial counsel was ineffective. Now, I wasn't the trial counsel, and so, honestly, I'm a little bit of a disadvantage because I wasn't physically there. But I can tell you that based on the record, that it's very, very clear that Mr. Shepperson objected on several occasions to his lawyer didn't trust him. And I don't know whether that was the reason why the court got the impression at some point along the way when there were just letters that he wasn't really asking for a new counsel. But clearly, by March, on the record, transcribed, Mr. Shepperson gave very specific reasons why he did not want his current lawyer. He believed he had been lied to. He believed his trial counsel wasn't advocating in his best interests, and he believed that his trial counsel was ineffective. Going back to this court's decision in Williams and Blankenship, where the court stated that those circumstances are sufficient to constitute a request under 355. You know, I hear what you're saying, and I think that that language is helpful to you, and I'm credited for finding it. But Boone is the first precedent on this, and the rule is that we follow the first precedent if there are two in conflict. Excuse me, I'm sorry. And Boone said the defendant must request the appointment of a second lawyer. Well, you're honored that. Well, you're honored. That statement in Boone is really dictated. Because in Boone, in Boone. And the statement in the other cases isn't dictated? Well, in Boone. We have control. We have rule in dictated. Sure. But well, you have to decide this issue, because I don't think in Boone it was presented. Well, I think Boone, I think you'll acknowledge, is a minority opinion among the circuits. And in Boone, the four circuits strictly read the literal terms of the statute. Right. He's a death eligible indictment, so he gets two lawyers whether the government seeks to death penalty or not. But, that's a request. By shouldn't we strictly construe the request language in the same statute? Well, you're honor. The first response I'd like to point out is that the defendant in Boone made a specific request. So the issue that we're dealing with here was not actually presented in Boone. That really doesn't go to respond to the strict statutory construction given Boone to create this minority rule. It's an outlier. Well, I think that fundamental fairness dictates that when you have a defendant who is clearly asking for different counsel. Courts have held not just in this circuit, but in other circuits. I've cited the Smith case, the DC circuit case, in which the public court has said, look, under those circumstances, at a minimum, the right to the two lawyers should not be lost because either trial counsel or the defendant doesn't, isn't aware of the right. And at no point in this case did anybody say to Mr. Shepperson, by the way, there's a statute. And all you have to do is use magical words to say you want two lawyers. And all of your requests about asking for a different lawyer will be granted. Because then Congress said, you have the statutory right to have two attorneys. That seems like trickery to me in a very serious case and doesn't protect fundamental fairness. I think that it's very difficult. It's one thing to say we're going to strictly construe the language, but I think that strictly construing the language means doing it in a manner consistent with due process and fairness. And in this case, clearly Mr. Shepperson wanted a different counsel. There's no question he wanted a different lawyer. And under those circumstances, to say that it's beyond the pale of what Congress intended to advise the defendant that he's entitled to two lawyers. I think it's just not the right decision. Let me move on to the second issue, which is also triggered by the fact of an indictment or the language in Section 3432, says one who is charged with a capital offense. That would be significant language, wouldn't it? Because clearly Congress has chosen two very different terms of art for these two related statutes. Well, I think they're both used interchangeably by Congress, charged with and indicted with, indicted. I mean, you are charged by way of indictment. So I don't perceive. They charged in 3,000 and 5. I thought we were to present that when Congress uses those terms and they use different terms, particularly with regard to statutes that are related to the same subject matter, that we are to present that they intended different meanings. Well, they're not related to the same subject matter. They weren't passed at the same time or necessarily even better. But I think that to say, I mean, I think the court would be hard pressed to come up with a meaning other than an indictment when the Congress says when you're charged with a capital offense. So, yeah, Congress didn't use the identical language indictment versus charged with. But if anything, it's broader because you can be charged by way of information. You can be charged in a number of manners other than by indictment. So if anything, 34. Well, I think that maybe that's true, but that doesn't mean they're the same. That's right. In other words, in the earlier statute, it could have said and would be perhaps more supportive of the minority rule that we've come down with. It's such charged rather than indictment. Okay. But I mean, I don't think it's subject to real debate that my client was charged with a capital offense in this case when he was indicted. Do you have an obligation to object? Object to what you're on. You're not being given the names of the witnesses. Yes, and in fact, his trial council did. In fact, the trial council fought a motion to dismiss several accounts of the indictment specifically on the grounds that the witness. He timely did that. He did, but, and I don't mean to be critical of trial council. He's a friend of mine. But he didn't, I don't think he specifically cited this statute. He complained that he didn't know who the witnesses were and that the government was withholding it under the, under the, When long came the witnesses and there was no complaint? Well, I don't know that that's, I think there was complaint prior to, now did he renew his complaints after the witness testified? I don't think he did. In fact, he did have three days before it. So we're looking at plain error, it seems to me. Your Honor, he did not have three days with respect to the witness in this case, which is Mr. Paradas. He didn't. Oh, absolutely not. Mr. Paradas is identity as a witness. And prior witness statements were disclosed hours, literally on the afternoon of the, of the day before the morning in which the witness was called to testify. And significantly after the government had already placed the medical examiner on the stand. He did not ask for continuance and, and you know, we can all Monday morning quarterback Mr. Paradas all day long. And I hate to do that as a public counsel, but you know, perhaps he should have asked for additional time. Perhaps he should have raised this particular statute. But, but I don't believe that. The government provided a witness list on the first day of trial, three days before Paradas was called to testify. He was on that list, wasn't he? I don't think that was three days. That was. Well. But, but, but, there was a violation of the statute to be sure. Question is whether he. Right, and this argument about whether he's suffered. If it was error, whether he's been prejudiced. And I also think it goes a little bit beyond the statute because the United States and Ravario, back in 1957, and this court in blabin's, 960 Fed, second, 1252, 1992, essentially held that when you when you have a witness whose identity has been concealed for whatever reason, who was an active participant in the crime. The balance shifts in favor of disclosing the identity of that of that witness prior. Those witnesses never testify. Was your say evidence for respect to them? No, no, no, no. The star witness in this case, Your Honor, was Mr. Paradas. In this case, but in the cases, you were low. Oh, right. Oh, I'm sorry. I misunderstood you. You're right. But the point I'm trying to make, and I'm about to run out of time, is simply that when you have a witness like Paradas, who was the only witness who could place the defendant at the scene of the crime, and the only one who could place the defendant as the shooter who killed Mr. Montoya, if you look at those cases and the analysis in those cases, it weighs in favor of requiring disclosure prior to trial, as a matter of fundamental fairness. Thank you, and I reserve the rest of my time. Thank you. Good morning. Good morning, Your Honor. May I please record? My name is Sujit Rahman. I'm the Appellate Chief for the District of Maryland, a period on behalf of the United States. Your Honor, so I could just very briefly begin with a very brief, factual background, and then I'll get right to the legal issues in this case. So court is aware of this case arose out of a lengthy investigation into the Latin kings, a violent criminal gang, that terrorized communities in Maryland and across the United States over a course of a number of years. Nineteen defendants were charged in this case, only one defendant, Mr. Shebrison, proceeded to trial. So court is aware of the original indictment in this case, which the grain jury returned in November of 2009, charged a single count of racketeering conspiracy in violation of Section 1962-D, which carries a maximum penalty of 20 years. Now, nearly a year later, the grain jury returned a superseding indictment, with eight additional charges. Many of those charges were related to the defendants, brutal, robbery, and murder of John Montoya on the afternoon of April 25th, 2008. There is no dispute that two of those additional charges, count six of the superseding indictment, which charged murder in aid of racketeering in violation of the Vicar statute, and count nine, which charged murder as a result of using and carrying a firearm in violation of Section 924J had as a maximum penalty, the death penalty. It is equally undisputed at the defendant never faced the death penalty in this case, because the attorney general elected not to seek the death penalty, before this case was even presented to the grain jury when it returned its second, its superseding indictment in October of 2010. You aren't disputing the boon as long as the circuit right or wrong. Your Honor, I am not disputing that. And indeed, I do want to touch on something, Judge Moss, that I think you touched on earlier, and the question being which decision controls when there is a circuit split. And your Honor, correctly, of course, pointed out that the earlier decision controls. I would say, and I think it's important to note this, there is a decision from 1969, the whole decision we cited in our briefs, which explicitly says that the procedural protections that normally apply to capital defendants do not apply when the defendant does not face the death penalty. So I think there is an argument, but I guess the end note is that the boon is more specific. That's very Your Honor, certainly. And I would say Your Honor, under boon, as the court pointed out earlier, footnote 7 points out that you have to actually request the second attorney. So even under the boon decision, a defendant has to affirmatively request a second lawyer to enjoy the protections afforded by Section 3,000-5. That is very different from this case, where Mr. Sheperson never raised a claim under Section 3,000-5, and thus never actually triggered the statutory protections. And that really gets to the very key issue in this case is whether or not a defendant who is never eligible for the death penalty because the government never filed its notice in this case is afforded all of the robust, expensive, procedural protections that a defendant enjoys, a capital defendant enjoys under Section 3,000-5, the notice provisions under Section 3432. The government submission is that if the defendant doesn't affirmatively request his right, he is not entitled to the protections under 3,000-5. And if he doesn't timely object under Section 3432, then he's not entitled to, at least on plain error review, merit a reversal of his conviction. I would like to point out, Your Honours, that there is some disparity between these two provisions. The court, I think very properly, has pointed out that, well, we have to construe these provisions in harmony, and that's certainly the case. But there is a disjunction, even within this court's authority, with relation to these two provisions. Under Boone, of course, it is reversible error for a district court, for a defendant not to be given a second lawyer if he so requests it. But under this court's decision in Fulkes, which is a 3432 case, the error, it is not a reversible error. The court will essentially look at whether or not the district court abused its discretion, and will engage in a harmless error inquiry. So I guess the point I'm trying to make is that, even within these procedural protection statutes, which are similar, I don't know that I followed that, were you distinguishing between the two arguments that are made, or you don't think an argument would respect to just the first argument? Well, I'm trying to make a distinction between the two arguments, Your Honor. You don't think that the second is subject to harmless error reviews, second argument that's made here. That's correct, Your Honor. If there had been a violation of the first, it wouldn't be subject to under Boone. That's right, Your Honor. That's exactly right. And as the court observed, Your Honor, as you pointed out earlier, the presumption was that Section 3432 applies in this case that Mr. Shefferson had rights under 3432. I suppose what I'm trying to suggest to the court is that he really didn't, because, again, he never faced the death penalty in this court. But if we're going to, we have to construe them. If Boone remains the law, we have to make our construction of this other statute, unless you can give us some reason why not. And let me give you that reason. Let me give you that reason, Your Honor. As the court pointed out, You're on 3532. Let me actually talk about 3432, Judge A. G. Secondary. Yes, let me talk about that, because I think there is a distinction between those two statutes. Your Honor, Judge Mott says you pointed out, Boone is more recent in time than Hall. Hall was a 3432 case. And so Boone creates a little bit of a disjuncture within this court's own jurisprudence. Because, again, it does not subject violations of the statute to harmless our review. It's structural error, it's reversible error. 3432, on the other hand, does not, this court's constructions of 3432, does not suggest automatic reversal. No, it's subject to harmless our review. Subject to harmless our review. Is there some other distinction that you're drawing because of the language of the two? It's not so much the language, Your Honor. In Canter, I don't think there is a major distinction between whether or not someone is charged with a particular fence or whether or not they're indicted. In Canter, I don't see a big difference between that. I thought you were making that, or no, Your Honor. But what I do see is within this court's own jurisprudence, a different approach to noticed error or unnoticed error. Well, but I think that if you just look at boon, as Joe Janderson pointed out, we used a very textual approach, if you will. Yes. If you use the same textual approach to this other one, you don't get to the same place. Not quite, Your Honor, because if you apply the textual approach and you consider that textual approach within supporting case law, within other cases that have interpreted that very same language, and this is where I go back to Hall, the 1969 decision, which was squarely a 3432 case, where this court said the procedural protections that ordinarily are associated with a capital defendant do not apply, where a defendant is not facing the death penalty. So I think there is a distinction between the way this court has approached the 3,000-5 cases in the other procedural protection cases like 3432. The government's position here is that this court on plain error review certainly should not reverse these convictions. The defendant never noticed his objections, and ultimately the standard is, was there a miscarriage of justice here? I would say with respect, Mr. Bardo's did an extraordinary job, a trial effectively cross examining the witnesses in this case, making a very compelling closing argument. And at one point actually keeping out a highly damaging piece of evidence against his client. So there was a threshold matter on the 3432 argument. There was an error here in the sense that he didn't get this particular witness identified the three days earlier. I would not concede that, Your Honor, for a couple of reasons. Number one, first of all, as the court... Three days before the commencement of trial? You didn't get? That's correct. That's correct. That's correct. That's the language in the statute. Well, with respect, Your Honor, I don't think I have to concede it because the bottom part of the statute says that the judge can actually order if by a preponderance of the evidence there is any safety concern to any witness. Then the witness list need not be produced at all under Section 30. Is there that finding by a preponderance of the evidence? Judge Williams certainly made findings in this case that witness safety was an issue. There were multiple protective orders. Pretty specific finding that has to be. That's very Your Honor. But again, it's very difficult for the... that's fair. I don't think Judge Williams ever specifically invoked 3432. But I think the record certainly supports the notion that witness safety was an issue in this case as the multiple protective orders a test, which were issued months in advance of trial. So we were to determine that there was not a specific finding in this case, which... In so many words, there has not appeared to be, unless you can show it to us, that there was a safety concern that justified not disclosing within the... By the three-day limit, then there was an error... a textual error, if you want to call it. In this case, because the defendant did not get this particular witness in the time the statute required. Your Honor, again, I respectfully... I resist the idea that there is clear error here. And the reason I say that is because this court has never ruled that the capital protections are triggered under Section 3432. And that's why I do see... Why don't you for purposes of answering the question of soon... Yes, Your Honor? ...are not giving the three... the names three days before trial was error. Then the question is, do you lose? We do not lose. And you don't lose because... Because there was no harm... there was no prejudice to the defendant. He received... You're also claimant wasn't playing. And it wasn't playing. That's right, because there's no binding law in the circuit to suggest that... There is a binding federal statute. Well, there's a binding statute, Your Honor, but again, the statute only applies if the defendant is a capital defendant. And that's why I think you do need to distinguish between 3,05 and 3432. As this court's own jurisprudence draws that distinction. The boon line of cases and Robinson, of course, which I haven't talked about, but in many ways is probably the controlling precedent in this case. The boon Robinson line of cases presumes that a defendant who is charged with a death-aligible offense, even though he never faces the death penalty, is a capital defendant. 3432, in my understanding, has never been construed that way in this circuit. And if anything, Hall, the 1969 case, suggests exactly the opposite. That if a defendant is not facing the death penalty, he is not a capital defendant for the purposes of 3432. Your argument is based on Hall, not a distinction between charged and indictment. Correct. That's right, Your Honor. It's based on the case law in the circuit. Did you look at the district court's stocking entries because the record here doesn't tell us how much time he laps between the time that... The defendant got the name of this witness. But the documentary seemed to say three days to me. Yes, Your Honor. Were you trial counsel or do you... I was not trial counsel, though I am prepared to answer your question. So the list of witnesses was provided on the morning of trial, which is March 1, 2010. March 4th. So at least three days. Yeah, it was three days. But I would even go further, Your Honor. And if this is in the record, the government met with this defendant. Yes, Your Honor. Yes, Your Honor. So you're representing that the record reflects that three days before the witness was called, not three days before trial, but three days before the witness was called, his name was identified to the defendant. Absolutely. If you look at the supplemental appendix page eight, that is the witness list in this case. And Mr. Peretes is listed on that list on page... Of course, indulgences for a minute. Important to mark that page. Top of page 11, Your Honor. Supplemental appendix page 11. Roddy E. Peretes, Jr. aka Wate, aka King Wate. If the court is with me, at the top of page 11 of the supplemental appendix. The very top of page 11. Seal Dependix. There's an unsealed appendix, Your Honor, filed by the United States. Right, OK. On August 17, 2012. And so if you look at the top of page 11 of the supplemental appendix, thank you, Your Honor. So you'll see that Mr. Peretes is listed right there. And I should say, you know, that's the formal notice. The government had met with Mr. Shepperson in a proper session before the superseding in Diving was returned in October of 2010. At which point the prosecutor sat down with the defendant and his lawyer and said, essentially, here is the evidence we have against you. It did not identify Mr. Peretes at that time. But to the extent that Mr. Peretes was the only other eyewitness, apart from Mr. Montoya, who of course was the victim, it strains credulity for him to say that he had no idea that Mr. Peretes would have been the other person testifying against him. Because Mr. Peretes ultimately was the only other eyewitness apart from the defendant himself. And the trial here began on March 1. March 1, Your Honor. And March 4 is when Mr. Peretes was called. So how do we find that? Pardon me, Your Honor? How do we find where he was called? Well, he was in the docushioron. Yeah, that's where I found it. Okay. Maybe there was some other place in the appendix. So Mr. Peretes, Your Honor. Testifies under docket entry 560. So if the court were to look at docket entry 560, that's the transcript from March 4, 2012. And on that day, he describes in detail the various activities that happen that day when he joined Mr. Sheperson and Mr. Sheperson. Test money begins on that day. Correct. Yes, Your Honor. I should say also that Mr. Peretes, excuse me, Mr. Bartos, the trial counsel never objected to the extent of asking the court to exclude this testimony. Indeed, Judge Williams. And if you look at the Falks case, FULK has a decision issued by this court, one of the inquiries in deciding whether or not there was an error is whether or not defense counsel asked for the testimony to be excluded, whether the district court provided him time to try to seek a continuance to lay the trial. That's right. That's right. You're on it. If I left the witness to it, there was a new witness, though, a brand new witness that's hopped up in the middle of trial. It was also a capital case, though. Right. It was a capital sentencing proceeding where the government complied with its three-day rule. And in the middle of the trial, there was newly discovered evidence. So it's a little different than this case. But in terms of the actual managing of the trial at your honor, as your honor knows, it's very difficult to deal with these issues in the middle of a very complex, very difficult trial. The court has to use this discretion as best it can to run its stocket and make sure that there's fairness. Judge Williams, in our view, bent over backwards in this case. How long was this trial? Two weeks, about two and a half weeks, your honor. The government, the district judge, bent over backwards to try to ensure that this defendant received a fair trial. He said, I will call witnesses under the court's authority, Mr. Sheperson. If you want to recall any of these witnesses based on the disclosure of Mr. Peretta's later than what is normally required in light of the protective order in this case. So the district judge certainly went out of its way. I'm sorry. I thought he never made the objection. Well, when Mr. Bardos, on the first day of trial, objected to essentially the issues relating to the disclosures your honor. He said, it's hard for me to try this case if I don't know who the witnesses are. So I want to mistrial, essentially was his position. The district court rejected that and said, look, if you have an issue with these disclosure issues. Nobody mentioned the statute. No, nobody mentioned the statute. The point I'm trying to make those at the district court, at least under folks, certainly was acting appropriately in offering to continue the trial, in offering the defense counsel the opportunity to recall any witness who he felt he didn't properly get to cross examine because of the... The district court offered the opportunity, offered a continuance. That was when I recollection your honor. Yeah, I think he just said he'd recall them. I don't think he offered a continuance. Perhaps I stand corrected. The district court certainly said, I am happy to recall under my authority any witness that the defense feels it was not properly prepared to cross examine. Which again, going back to the abuse of discretion idea, this is a district judge who is managing a complex, difficult trial, and again is doing his very utmost to make sure that this defendant received a fair trial. In light of the protective order in this case, in light of the discovery agreement that the defendant signed in this case or released his counsel, specifically stipulating that the government could withhold the identities of certain cooperating witnesses until a time it felt was appropriate to disclose. I do see my time is running down your honors, but for all of those reasons, we believe that there was no plan error under either Section 3,05 or under Section 3432. And for those reasons, this court should affirm the judgment of the district court below. Thank you. Thank you, your honor. Your honors, let me clarify something that I think I was confused on at first, which is this whole idea of when the notice in the three days. The statute says at least three entire days before the commencement of trial. Yes, to be sure. Right, so all of this about when there was a laundry list of potential witnesses on the first day of trial. Look, counsel for the right. Right, right. Not three days before. Right, exactly. And the other point there is practically speaking, anyone who's been in a trial like this knows as government counsel just mentioned, it is complex. You don't have time in the middle of trial to investigate and prepare your case. So a disclosure on the first day of trial, Congress chose that language for a reason. And the reason is, if the disclosure is going to have any benefit to the defendant, it has to occur prior to the commencement of trial, not during trial. So the fact that the witness may have been called three days after the laundry list was published at the defense council on the first day of trial is a red hailing. Second, a very important admission or point was made just now. And that was the judge Williams never invoked section 3432, which means judge Williams never engaged in the balancing test Congress required under that statute. To me, that in and of itself is sufficient at least to find that the exception within the statute, which would allow perhaps a deviation from the requirement of disclosure was not complied with. So this court is unable to say that the statute doesn't apply because of that exception. The third point I want to make is that with respect to prejudice, the government says, well, there was no prejudice to the defendant because, you know, he got this witness identified on the first day of trial. There absolutely was prejudice for a number of reasons. Number one, his counsel didn't have the opportunity to investigate this witness prior to the actual trial. But more importantly, as I mentioned before, the medical examiner testified before Mr. Peretti's testified and the record is clear that the defense council asked no questions. The reason he asked no questions in my mind is because he was unaware at the time that what parodies was about to say on the stand the next day was inconsistent with what the medical examiner was testifying about. In the district court, say at the outset of the trial that the outset of this, that before this ever happened that he would let the defense recall any witnesses that wanted to do. The trial court most certainly did and that's commendable, but it doesn't fix the problem. The language of the statute requires the disclosure to be made before trial. When you're in the heat of trial, your honor. You just work human beings. He had the right to have his attorney prepare before trial. You can't expect trial counsel to be superhuman and say, wait, I'm going to, maybe I can recall this witness. Plus there's all kinds of additional concerns when you start recalling witnesses like that in front of a jury. I wasn't trial counsels. Why can't speak to what he was thinking? I think that that offer doesn't fix the problem. I ask you one other thing about that author. Was there an offer to give him three days? I don't recall that. No, I don't recall that being in the record, Your Honor. I only recall the judge saying, I'll recall witnesses on my authority if I need to. The last point I want to get back to is goes back to 3,000 five. That is that judge Montjimata, you made a point earlier and I agree with you that the earlier decision is normally what the court follows. I neglected to point out that Williams and Blankenship preceded Boone by a number of years. Williams was decided in 1976, Boone didn't come around until 2001. The language in Williams, in my mind, makes it very clear that under the circumstances just like in this case, you do have a request that meets the requirement of Section 3,000 five. So if in fact the court is going to apply its earlier decision or in this case decisions, plural, Williams and Blankenship, then it should find that a request was made in this case because that issue was not presented in Boone. Boone presented a different issue where the issue was, the defendant had clearly made a request specific for two counsel, but the issue was whether or not the statute applied in light of the non-filing of a capital notice. So for those reasons, Your Honor, I believe Mr. Sheperson deserves a new trial. Thank you. Mr. Shepard, I understand you're quite appointed. I am Your Honor. We very much appreciate your efforts. You've done a fine job for your client. I appreciate that very much. I don't think that a better job could have been done. Thank you. We will come down and greet the lawyers and then the officials