Legal Case Summary

We're happy to hear argument in the United States versus Edelands, number 12, 42, 39, etc. Good morning, Your Honours. Gerald Ritter, I'm half the appellant Kendall Taylor. If I could, Your Honours, I'd like to consider an argument this morning issue two, which is founded pages 29 to 49 in the appellant's brief without waving any of the other issues are relevant to the appellant Taylor. I believe that co-counsel will be addressing other issues later on. You may wonder, in terms of this particular argument, we start with the proposition that the six amendment does guarantee the right to counsel and are getting. We further follow the given that the six amendment guarantees the effective assistance of counsel. These are the strict one. And I think further we can agree that retained counsel has a preference in terms of a defendant, if he can afford to pay a lawyer under a leave versus a U.S., then there should be a preference that he should keep that lawyer. But that right is not an absolute right. And in this particular case, our position is that the counsel for Mr. Taylor had a deficient performance by reason of the conflict that he had by the dual representation of two individuals at the time this case was heard, pretrial, during trial, and at sentencing. We want this court to find that there was an actual conflict of Pellant's trial counsel. And we believe that the definition of actual conflict is found in this court's decision in Gilbert versus Moore. It could be proven essentially in two ways of finding her standard. And that is first, if there is a divergence in terms of any material fact or material legal issue between the two. Mr. Taylor wanted to destroy her, is that right? Your Honor, Mr. Taylor was inquired by the trial court on November 1st at a motions hearing, which evidently was to be a so-called waiver hearing, which we believe is highly inadequate to have determined whether or not Mr. Taylor knowingly waives his right to conflict free counsel. So we find though that we believe an actual conflict exists because of the course of action taken by the trial counsel in his representation of Mr. Taylor

. Now, Your Honor, on October the 26th, just about five days before trial started, the government wrote a letter to all counsel pointing out that there was a potential conflict in that case. It's in the joint appendix. And on November 1st, the issue was taken up by the trial court. I know your honors have bred the joint appendix and it seems as if Mr. Reynolds, the lawyer for Mr. Taylor, wasn't even sure about who the conflict concerned. And yet it's obvious he knew who the conflict concerned. One, Mr. Cole. Mr. Cole is a man who was awaiting trial in the Eastern District of Virginia, federal case. But he also was awaiting trial in the Prince George's County Circuit Court for arm robbery and about the same area where this particular event happened to take place. The reason we believe that Mr. Reynolds conduct and representing Mr. Taylor was deficient is for several reasons. Number one, he represented them simultaneously rather than consecutively, which I think in itself becomes an issue. Number two, he knew that the text message, which was sent by Mr. Cole during the course of the robbery itself, was going to be introduced as evidence. And he realized that the government's version was that Mr. Cole was a co-conspirator. Now there's a separate issue in the brief. I'm not going to address that. Whether he was a co-conspirator or not, but certainly the district court believed he was a co-conspirator and she said so

. In fact, at the sentencing here, and I'm struck by the fact that the trial court indicated how this person who we know as Mr. Cole was as culpable as all the three appellants that are now here before this tribunal. And even she suggested that this man, Mr. Cole, would have known that firearms were used and he would be seeking the same kind of punishment had he been a member of this particular trial. The trial council knew that a thorough investigation of the defense theory, which was this was not a kidnapping. It was a burglary or it was a grab money and drugs and leave. It was not meant to be a kidnapping. That was a defense offered by trial council in this opening statement. He knew that if a thorough investigation had been done, it would have required to him to discuss with Taylor the text message, his relationship with Mr. Cole, his relationship with any body else involved in the case. And his implications. He of course on this record, we know did not do that. A thorough investigation would have required this lawyer to have interviewed Cole. Mr. if I may ask you this, do you run the risk on this record? And I'm not second guessing you at all. We'll never do that. But do you run the risk that I'm presenting an ineffective assistance conflict based claim on direct appeal that you foreclose a more promising opportunity in a post conviction? I think the answer is no because what I think this court should consider doing is remanning this matter for a full evidentiary hearing because the record probably is incomplete. But what if you lose now, then you're right to pretty much foreclosed your habeas claim, haven't you? I don't think so, because the record is so incomplete. The record here, part of the difficult is that I think the trial court had an obligation to inquire fully as to the nature of the conflict. But that's my point. You just said the record is incomplete. And so I guess your implied response to Judge Mott's is if we lose judge, what we want to lose on is your refusal to consider the claim. That would be what you're suggesting

. Narell, yes, sure. That if we're going to rule in your favor, we should consider the claim. But if we're not going to rule in your favor, we should defer the claim to 2255. And your moderate is I could see the distinct possibility of the court doing just that, but never the last thing. What about the distinct possibility of the court deciding it on the merits that you put in front of us and rejecting the argument? If the court did that, I admit it made very well Narell the 255 claim. That would be for certain. You know, I would argue further if I could that in this particular case, if the court was to examine the Mickens versus Taylor case, which is relevant to this matter, we believe that the court would find in this case that there was an actual conflict. The court would also find that the actions of trial council were deficient. And the court, I think, would also find that his fire to pursue a strategy different than he did was in fact linked to the actual conflict which he had. I think with that my time appears to be up. Thank you very much. Thank you very much. Thank you. Johnson. Thank you. Good morning. May I please the court. My name is Julie Johnson. I'm here today on behalf of appellant Darrell Carter. And with my time today, I would like to focus on the enhancement of the sentences of Mr. Taylor and Mr. Carter for obstruction of justice. There were three defendants in this case

. All three were convicted of the same conspiracy to kidnap. All three defendants were told by the court that they would have the assistance of their council at the Presentance interviews. And yet two of those defendants, Mr. Carter and Mr. Taylor had attorneys who chose not to attend and received no advice ahead of time about how to conduct themselves during those very important interviews. And what happened with those interviews with those two defendants is when the probation officers asked them about the offense conduct, they repeated the trial strategies that their attorneys had been advancing throughout trial and in doing so denied their guilt. Now these two defendants had sat through trial and heard the attorneys over and over again advanced the defense theory, which was essentially they weren't there to kidnap the victim. They were there to rob her and that they did not have guns at the time of the offense. They heard the attorneys advance those arguments in pretrial motions in opening statement. They heard them rigorously try to advance that theory through cross examination of most of the government witnesses. They heard them continue that theory in the closing statement and again, and sorry, and also an emotion for judgment of acquittal. They heard the attorneys making these arguments over and over again. Well, I think that I credit you for coming up with this argument and it might be persuasive if they were in spiritual or somewhere else. But they knew the facts of the case no matter how many times their lawyers said what the facts were and they knew that they not that this interview was to assess their sentence to recommend they knew the trial was over and you guilt had been imposed. So it seems to me they knew a lot without their lawyers there you're not making an ineffective. No, Your Honor, I do know that there are some courts including the Washington case from the 10 circuit that have found ineffective assistance based on a failure's attorneys failure to adequately advise on the precensitum interview. We're not advancing that. Of course, today that's for another day. I'm doing some similar pre. Is some similar pre trial, but even if we can understand the court did advise them that this wasn't important document and she would rely on it heavily at sentencing. But the larger point is is how these defendants were supposed to understand and it's stand that once they entered that interview that the rules had suddenly changed, that the words, that the arguments, that the theories that they had heard their attorneys advancing on their behalf, which had been accepted at trial. I mean, the jury had not completely accepted it, although there was a split verdict that all the sudden when those same theories come out of their mouth in the interview that that's going to subject them to an enhanced sentence. But that assumes that you can lie a trial

. We're on a we don't can see that the statements are lie. Well, then if they weren't a lie and they were the truth, then the district court didn't believe them. Then it doesn't make any difference what they said. In other words, you're saying your argument necessarily is suggesting to us that they should have lied when they were talking to the probation officer to get a lighter sentence because what their defense was was correct. That can't be that can't be your argument. No, your honor. The argument is and here we don't we have the benefit of looking at what happened with the third defendant, Mr. Edelman, whose attorney did do the right thing in this case and attended his clients' pre sentence interview. And when he was asked about the offense conduct, it says right in his precens report upon advice of counsel, he made no statement regarding the offense, which is exactly what a defendant should do when they have not waved their fifth amendment rights. And especially in a case such as this in which the government had not yet dismissed that firearm charge, which the jury had not been able to reach unanimous verdict on any any admission that those that Mr. Carter, Mr. Taylor made during that interview. It could have been used against them in a subsequent trial on the on the 924 C charge. So there was very real danger in this interview. And my point is not that the defendant should have said X or Y, but they should have had. They should have had assistance. There was no way for them to. And yet you say you're not asserting an ineffective assistance to counsel claim. I'm a little confused by that. Because your honor, we're not here today to address the errors of counsel. I do think that will be the subject of a later proceeding. And yet that's what you rest your argument on. If I understand it, maybe I don't

. I'm sorry, Your Honor. What we're here today is to talk about the error of the court. And specifically our position is that it was procedural error for the district court to enhance the sentence of Mr. Carter and Mr. Taylor based on what were essentially unconsled denials of guilt. You're you're arguing the district court has an obligation to go find out whether they had counsel at this hearing. No, you're on it was very clear at the sentencing of both Mr. Carter, Mr. Taylor, the district court's job is to take the evidence presented to the district court and determine what a correct sentences. Understood, Your Honor. But in this case, the record was clear. Actually, the first question that the court asked of the probation officer at Mr. Taylor sentencing was who was present at the pre-sentence interview. And it was it was rigorously argued by Mr. Carter's attorney at his sentencing that he did not have counsel in this was real. He was just repeating what his trial attorney said. We're not expecting when I'm trying to impose a standard on the court to do that investigation, but here it was abundantly clear and it was rigorously contested. And you know, sometimes we have to wonder what impact does this have on a sentence. Here, it's very clear that that the court's finding of obstruction had a significant impact on the sentence, specifically five years. That's very clear from the transcripts from the sentencing from all three defendants. Mr. Edeland, who did not make a statement at his pre-sentence interview received a sentence of 30 years. Mr

. Carter and Mr. Taylor received a sentence of 35 years. And the court in both of their sentences specifically referred to the obstruction of justice enhancement as being a primary reason for the different for the different sentences. So it clearly had an impact on the sentences here. And our point is we're not asking the court to micromanage what the probation office does. We're not asking this court to instruct district courts to inquire in every case, but in a case such as this, which has very unique circumstances when defendants have not waived their fifth amendment rights. They have a possibility of a charge hanging over their heads. And when the court knows that they did not have the benefit of council, it is simply erroneous to use those uncounseled denials against them. Why do you say they didn't waive their fifth amendment rights? Because they had proceeded to trial. There had been no wavers. No, I'm talking about at the pre-sentence investigation interview. Well, they had no- Did they waive their rights at that interview? Well, it's true that any statements that they made at that interview could be used against them. So there was a waiver? Well, I wouldn't say it was a waiver, no, you're right. They hadn't been advised with their fifth amendment rights. Well, but you don't have to be advised. I mean, you don't get advice of right. You don't get them a rander warning when you go into the grand jury. No, that's- As a matter of constitutional requirement. Well, I think of the grand jury doing it in a routine pre-sentence interview. It's true that you do not. But I think what's important to focus on is the courts reliance on those statements given the unique circumstances in which those statements was made was unfair. These defendants had no way of knowing the statements that they made were going to be used against them. And we shouldn't be using a gacha to enhance defendants

. But what rule of law requires that they be advised that their statements will be used against them in a pre-sentence investigation report interview? I see my time is up. May I answer the question? Thank you. Your Honor, there are courts, including this court, who have found that Miranda warnings are not required in a routine pre-sentence interview. This court does not need to address that issue to resolve the issue that's on the enhancement. Our point is merely that given the facts here, the court should not have used those statements to enhance the sentences of Mr. Carter and Mr. Taylor. Thank you very much. Now we hear from the government. Good morning. Please the court. My name is Jerome Maietico. Here on behalf of the government. Your Honor, I appreciate some of the questions you asked of opposing council with regard to two of these issues. They used the obstruction enhancement that they raised and also the ledged attorney conflict. And I plan to address each of those issues in turn and possibly some other issues if you have questions. But first, your Honor, if I could just begin with a brief factual statement and get right to legal issues in this case. This case is at court about three defendants. Three violent repeat offenders who were caught and red handed inside of a bank manager's home. The bank manager, who are then 12-year-old son, both testified at trial. I think really you can assume we know the facts, the dreadful facts of this case. Absolutely, Your Honor. It's within the context of this particularly violent, particularly vicious attack that we have this waiver of an alleged attorney conflict

. Now, the opposing council didn't get into really the waiver in this case. But I would just point the court to another decision in USV Brown, which tells us if a defendant waives the conflict with knowledge of the crux of the conflict and an understanding of its implications, the waiver is valid, even if the defendant does not know each detail regarding the conflict. Are there some conflicts you cannot waive? Your Honor, the conflict in this case was certainly waiveable. And I think if you look at that, that wasn't the question I asked you with. There was not. But Your Honor, I think what matters is this. So there are some conflicts you cannot waive? I think what matters is the specific facts and circumstances of each case. Look, I don't want to be unpleasant, but is your answer. Yes, there are some conflicts that you cannot raise, but no, this is not one of them. Or is it no, you can, there are no conflicts that you can ever, that all conflicts can be waived. Yeah, respectfully, Your Honor. I think that it's not a yes or no answer. I think you have to look to each of the specific facts of every case before you make that this memory. There are some conflicts which you cannot waive if you have to look at the facts. Well, I'll give you an example, Your Honor. I think there are. This is, I mean, this is not a get, I got you a question. This is like, I don't know if you move, court these things, but you must, you must have thought of this question. And it's not, you know, it's not a true question. Are there some conflicts you can't raise? I believe there are. There are some conflicts that you cannot waive, Your Honor. Good job. Yeah

. But specifically in this case, the, you know, weed versus United States stands for the proposition that district courts are given substantial latitude in deciding the facts of each case and determining if a, if a waver is valid, whether just qualified counsel. And that, that needs to be done. The courts district courts need to be given substantial latitude, so they don't face the uncertainty of reversal in every case with a potential conflict. Certainly, defendants could claim they were denied the right to counsel if there's a disqualification and defendants could claim that there's an effect assistance if, if their attorney is not. In this case, defendant Taylor was made aware of the nature of the conflict. He was made aware of the implications in an inquiry by the court. And I submit to, to this court that it was a textbook example of an inquiry on the record before. And the district court and I would just point the court to the joint appendix 71 to 74 for that. The district court specifically advised defendant Taylor of the attorney's representation of coal, the nature of this potential conflict that this was an unindicted co-conspirator whose name would come up a trial. Earlier, this individual was in fact named and joint appendix 66 that his name was William Cole. And the district court told the defendant Taylor that his attorney's representation of coal could affect questions that were asked of witnesses at trial, could affect his attorney's advice on whether the plead guilty or to go to trial. And Taylor affirmed that he understood these implications, he understood the nature of the conflict and that he quote, I'm giving up that right. So he said, I'll appoint a lawyer to meet with you to discuss whether you should keep your lawyer. That's exactly right. And he declined. He declined the independent advice and even goes beyond that, Your Honor. There was a letter that was filed by the government that talked about the nature of the conflict and its implications that was filed on the docket. And we had a proffer from the government on the record with Taylor present that went into the nature of the conflict and its implications. So that you consider moving for disqualification? You didn't did you? No. I mean, the government did not. No, but the government did with a letter to the court and then raising it prior to the motions hearing. I mean, sometimes the government does in fact challenge a waiver by defendant. And you're on the reason that we do that in this case is because we saw this as a potential conflict. This was not an actual conflict that adversely affected his lawyer's performance. And it makes a lot of sense why it was not an actual conflict. You know, when we look at the facts to this case, we have on the record that. Can I move you to the second argument that was in front of us? Because I think you've pretty thoroughly discussed this one. Absolutely, Your Honor. And that is the difference in the sentences. Is it accurate that the only reason that one of the defendants got a lighter sentence was because he had not sort of repeated the. His story, the trial story at with the probation officer. Well, I think that the no, I think that the district court was clear in evaluating the 3553A factors and taking everything into consideration and coming up with that sentence. I don't think there's. What other construction enhancement though did he? He did not get an instruction enhancement and the other three did. Is that correct? That's correct, Your Honor. It sounds like the basis of the obstruction enhancement is the discussion with the probation officer, right? I'm sorry. Could you repeat that? Is there any other basis for the obstruction enhancement than these remarks that were made to the probation officer? No, Your Honor. So it sounds like that that was a basis for the difference in the sentences. It was certainly one factor. What was the other factor if he didn't get the obstruction enhancement? Didn't that make the difference in the sentences? Well, if you look at the guidelines in this case, Your Honor, there were two defendants that were career offenders facing 360 to life under the guidelines. And then there was one defendant Taylor is who was one of the defendants who was hit with the obstruction enhancement. Who did not have that? It was a slightly lower guideline range. So the guideline ranges were different for each of these defendants. And that's something that certainly the court took into account when making a decision. What was the decision imposed on the three defendants? There was 360 months for defendant Edeland. Uh-huh

. This was not an actual conflict that adversely affected his lawyer's performance. And it makes a lot of sense why it was not an actual conflict. You know, when we look at the facts to this case, we have on the record that. Can I move you to the second argument that was in front of us? Because I think you've pretty thoroughly discussed this one. Absolutely, Your Honor. And that is the difference in the sentences. Is it accurate that the only reason that one of the defendants got a lighter sentence was because he had not sort of repeated the. His story, the trial story at with the probation officer. Well, I think that the no, I think that the district court was clear in evaluating the 3553A factors and taking everything into consideration and coming up with that sentence. I don't think there's. What other construction enhancement though did he? He did not get an instruction enhancement and the other three did. Is that correct? That's correct, Your Honor. It sounds like the basis of the obstruction enhancement is the discussion with the probation officer, right? I'm sorry. Could you repeat that? Is there any other basis for the obstruction enhancement than these remarks that were made to the probation officer? No, Your Honor. So it sounds like that that was a basis for the difference in the sentences. It was certainly one factor. What was the other factor if he didn't get the obstruction enhancement? Didn't that make the difference in the sentences? Well, if you look at the guidelines in this case, Your Honor, there were two defendants that were career offenders facing 360 to life under the guidelines. And then there was one defendant Taylor is who was one of the defendants who was hit with the obstruction enhancement. Who did not have that? It was a slightly lower guideline range. So the guideline ranges were different for each of these defendants. And that's something that certainly the court took into account when making a decision. What was the decision imposed on the three defendants? There was 360 months for defendant Edeland. Uh-huh. And then 420 months for the other two defendants, Carter and Taylor. Okay. And Edeland did not make his lawyer told him not to say anything. That is correct, Your Honor. And so he got appreciably less, a lesser sense. And what is the basis for it other than this enhancement? Well, Your Honor, I think what is the basis for distinguishing between them other than the enhancement? Right. Well, I think the roles in the offense, not the roles in the offense as discussed by the guidelines, but as taken to account in the 3553A factors. Uh-uh. Throughout the trial, uh-uh. It was-it was suggested that Edeland played a smaller role in the actual home invasion in the kidnapping than the other two defendants. Um, that is something that was certainly raised by defendant Edeland's counsel at sentencing. It was something that was discussed thoroughly about how he, uh, you know, was not the primary aggressor, uh, in the kidnapping. Uh, and I think that certainly is something that the court would have taken into account in, uh, in sensing him to a lower sentence. Uh, Your Honor, but if I may, there's really three arguments in the subscription enhancement that, uh, that the opposing counsel raised. And one, it's under the guidelines, two, it's under the fifth amendment, and then three, it's under the sixth amendment. Each of these arguments, uh, should fail under the guidelines. Uh, the guidelines do allow for an exception. Can you start in the reverse order, perhaps? What-what is the sixth amendment argument as you understand? Well, as-as I understand that there are six amendment arguments that they do have a right to counsel. Uh, and yet they say they're not- I'm not saying it's a right to counsel. So what's left of the sixth amendment claim if there's no ineffective claim? Well, as I understand it, and I-I think that in oral argument it was probably clarified a bit. But as I understand it from the brief, the sixth amendment argument is that, uh, it should be a critical stage of the proceeding. That, uh, you know, a-a pre-sentence interview, a defendant should have a- You're saying it's a denial of counsel as opposed to ineffective assistance of counsel? And as-as I said, that's how I understand the argument. I think it's-I think the-the way it was presented was a bit different in the- Okay

. And then 420 months for the other two defendants, Carter and Taylor. Okay. And Edeland did not make his lawyer told him not to say anything. That is correct, Your Honor. And so he got appreciably less, a lesser sense. And what is the basis for it other than this enhancement? Well, Your Honor, I think what is the basis for distinguishing between them other than the enhancement? Right. Well, I think the roles in the offense, not the roles in the offense as discussed by the guidelines, but as taken to account in the 3553A factors. Uh-uh. Throughout the trial, uh-uh. It was-it was suggested that Edeland played a smaller role in the actual home invasion in the kidnapping than the other two defendants. Um, that is something that was certainly raised by defendant Edeland's counsel at sentencing. It was something that was discussed thoroughly about how he, uh, you know, was not the primary aggressor, uh, in the kidnapping. Uh, and I think that certainly is something that the court would have taken into account in, uh, in sensing him to a lower sentence. Uh, Your Honor, but if I may, there's really three arguments in the subscription enhancement that, uh, that the opposing counsel raised. And one, it's under the guidelines, two, it's under the fifth amendment, and then three, it's under the sixth amendment. Each of these arguments, uh, should fail under the guidelines. Uh, the guidelines do allow for an exception. Can you start in the reverse order, perhaps? What-what is the sixth amendment argument as you understand? Well, as-as I understand that there are six amendment arguments that they do have a right to counsel. Uh, and yet they say they're not- I'm not saying it's a right to counsel. So what's left of the sixth amendment claim if there's no ineffective claim? Well, as I understand it, and I-I think that in oral argument it was probably clarified a bit. But as I understand it from the brief, the sixth amendment argument is that, uh, it should be a critical stage of the proceeding. That, uh, you know, a-a pre-sentence interview, a defendant should have a- You're saying it's a denial of counsel as opposed to ineffective assistance of counsel? And as-as I said, that's how I understand the argument. I think it's-I think the-the way it was presented was a bit different in the- Okay. So you want to talk about Fifth Amendment and guidelines. Right. So, there-there is no right to counsel at the-at a routine pre-sentence interview. I think the court has made this clear in that- Well, because this- I think your colleague-I conceded that. I'm sorry. I think your colleague conceded that in her argument. So why are you doing that? Right. Well, you know- I think the routine pre-sentence interview though, when there was a gun charge still pending against the defendant? Well, I- And they were asked about that. Well, I think it is. And if you-and it's still a routine pre-sentence interview, Your Honor, because the-the probation officers are not agents of the prosecution. They're not facing prosecutorial forces at a routine pre-sentence interview. The prosecution is not asking the questions at this routine pre-sentence interview. What the probation officers are doing, they're neutral, fact-gathering agents of the court who are gathering information to help make the district court make an informed sentencing decision. That-that's no different whether there's a-a charge pending or not. They're still playing the same role at that time. When we talk about the guidelines themselves, the guidelines, as I said, do allow for an exception for a simple now. They allow for these laconic nose to affirmative statements denying guilt. And I think it's clear here that the defendants went way beyond any sort of mere denial of guilt. They fabricated a false story. Both of them. Telling them that this was a-telling the probation officer that this was-they received a tip about money and drugs in the house. This was a burglary attempt or a robbery attempt. And that that's why they were there not to take the bank manager back to her bank

. So you want to talk about Fifth Amendment and guidelines. Right. So, there-there is no right to counsel at the-at a routine pre-sentence interview. I think the court has made this clear in that- Well, because this- I think your colleague-I conceded that. I'm sorry. I think your colleague conceded that in her argument. So why are you doing that? Right. Well, you know- I think the routine pre-sentence interview though, when there was a gun charge still pending against the defendant? Well, I- And they were asked about that. Well, I think it is. And if you-and it's still a routine pre-sentence interview, Your Honor, because the-the probation officers are not agents of the prosecution. They're not facing prosecutorial forces at a routine pre-sentence interview. The prosecution is not asking the questions at this routine pre-sentence interview. What the probation officers are doing, they're neutral, fact-gathering agents of the court who are gathering information to help make the district court make an informed sentencing decision. That-that's no different whether there's a-a charge pending or not. They're still playing the same role at that time. When we talk about the guidelines themselves, the guidelines, as I said, do allow for an exception for a simple now. They allow for these laconic nose to affirmative statements denying guilt. And I think it's clear here that the defendants went way beyond any sort of mere denial of guilt. They fabricated a false story. Both of them. Telling them that this was a-telling the probation officer that this was-they received a tip about money and drugs in the house. This was a burglary attempt or a robbery attempt. And that that's why they were there not to take the bank manager back to her bank. That was the trial strategy for all defendants, wasn't it? Well, to say it was the trial strategy, I think- I was perpetrated, let's say it-the government's way, on behalf of all defendants at trial. Well, defendant Edeland did not-it did not advance this in his opening or closing arguments. That was not a trial strategy for defendant Edeland. Defending Carter, defendant Taylor, both of their attorneys raised that issue in opening statement. What I can say though is there's not a shred of evidence that was admitted at trial to support this theory. So this was a theory that was brought up in opening statements. And then there was nothing presented to support that theory. And therefore, in closing arguments, they did not touch upon any of that evidence. But what did they had not made the statements they did before the pretrial officers, but had made the statements that- Edeland made, would the enhancement have been appropriate? No, it would not have- The opening or argument. Right, it would not have, Geronner. And I think that- So I don't know that that's interesting, but I'm not sure how relevant it is because we're talking about the enhancement. Correct. Yeah, Geronner, it is clear that defending Carter, defendant Taylor, advanced in the probation interview, the same theory that their attorney is advanced. But the district court made it clear that they were not being hit with the obstruction enhancement merely because their attorney is advanced in argument. It's because they repeated those same statements, those same false stories to the probation officer. So it looks to me like a pretty clear violation of the Sixth Amendment. In terms of attorney performance. I don't think you would disagree with me that the standard of care in federal district court in criminal cases is to tell your client to say nothing beyond date of birth, address, and medical condition in a precinct investigation report. I think everybody would agree today. I respectfully disagree that this is- Of course you would. Particularly when there is a charge pending. So, but the question is going to be, I think, how do you prove prejudice if the harm comes to you because you lied to a probation officer? In other words, if they had taken the stand and said what they said to the probation officer, there'd be no issue, right? I mean, the district court could have reasonably applied our precedent and found a willful obstruction of justice. If they had testified in the manner in which they answered the- Absolutely

. That was the trial strategy for all defendants, wasn't it? Well, to say it was the trial strategy, I think- I was perpetrated, let's say it-the government's way, on behalf of all defendants at trial. Well, defendant Edeland did not-it did not advance this in his opening or closing arguments. That was not a trial strategy for defendant Edeland. Defending Carter, defendant Taylor, both of their attorneys raised that issue in opening statement. What I can say though is there's not a shred of evidence that was admitted at trial to support this theory. So this was a theory that was brought up in opening statements. And then there was nothing presented to support that theory. And therefore, in closing arguments, they did not touch upon any of that evidence. But what did they had not made the statements they did before the pretrial officers, but had made the statements that- Edeland made, would the enhancement have been appropriate? No, it would not have- The opening or argument. Right, it would not have, Geronner. And I think that- So I don't know that that's interesting, but I'm not sure how relevant it is because we're talking about the enhancement. Correct. Yeah, Geronner, it is clear that defending Carter, defendant Taylor, advanced in the probation interview, the same theory that their attorney is advanced. But the district court made it clear that they were not being hit with the obstruction enhancement merely because their attorney is advanced in argument. It's because they repeated those same statements, those same false stories to the probation officer. So it looks to me like a pretty clear violation of the Sixth Amendment. In terms of attorney performance. I don't think you would disagree with me that the standard of care in federal district court in criminal cases is to tell your client to say nothing beyond date of birth, address, and medical condition in a precinct investigation report. I think everybody would agree today. I respectfully disagree that this is- Of course you would. Particularly when there is a charge pending. So, but the question is going to be, I think, how do you prove prejudice if the harm comes to you because you lied to a probation officer? In other words, if they had taken the stand and said what they said to the probation officer, there'd be no issue, right? I mean, the district court could have reasonably applied our precedent and found a willful obstruction of justice. If they had testified in the manner in which they answered the- Absolutely. If this, you know, if the situation was that they also testified or testified instead of giving these statements to the probation officer, that would also be an obstruction enhancement. Of course they would again assert ineffective systems. I think that's true. I think the claim would be the same of ineffective assistance. Well, but- You're surely the district court would have obtained annoying and voluntary waiver on the record in the courtroom before they took the stand in. And I'm suspect- That's not- Judge Chaz now would have as well- Of course. Given the fact that the wavering fee was so thorough. How much did it actually hurt them, this two-level bump up, in practical terms? So defendant Taylor and defendant Edeland had different guidelines- I'm sorry, defendant Taylor and defendant Carter, different guidelines. Defending Carter was a career fender. Even without this enhancement, the guidelines would have been the same. The guidelines would have been the same. The guidelines would have been the same. 360 to life. Okay. And what about Taylor? Taylor, the guidelines, it would have been a two-level difference. Okay. A two-level difference equals- It's about a five-year difference in the guidelines. But the guidelines, in this case, the district court judge Chaz now- She actually varied upward. Looking at the 35-53A factors, she took into account the guidelines and imposed the guidelines. That was- That was above the guidelines. So, you know, to say what would- Have you argued harmless here, harmlessness? I-I have not raised that in my brief. Did she make the finding that she sometimes find that- Which is, even if my calculations are wrong, I would still sentence this way? She did not, you're on it. Okay

. If this, you know, if the situation was that they also testified or testified instead of giving these statements to the probation officer, that would also be an obstruction enhancement. Of course they would again assert ineffective systems. I think that's true. I think the claim would be the same of ineffective assistance. Well, but- You're surely the district court would have obtained annoying and voluntary waiver on the record in the courtroom before they took the stand in. And I'm suspect- That's not- Judge Chaz now would have as well- Of course. Given the fact that the wavering fee was so thorough. How much did it actually hurt them, this two-level bump up, in practical terms? So defendant Taylor and defendant Edeland had different guidelines- I'm sorry, defendant Taylor and defendant Carter, different guidelines. Defending Carter was a career fender. Even without this enhancement, the guidelines would have been the same. The guidelines would have been the same. The guidelines would have been the same. 360 to life. Okay. And what about Taylor? Taylor, the guidelines, it would have been a two-level difference. Okay. A two-level difference equals- It's about a five-year difference in the guidelines. But the guidelines, in this case, the district court judge Chaz now- She actually varied upward. Looking at the 35-53A factors, she took into account the guidelines and imposed the guidelines. That was- That was above the guidelines. So, you know, to say what would- Have you argued harmless here, harmlessness? I-I have not raised that in my brief. Did she make the finding that she sometimes find that- Which is, even if my calculations are wrong, I would still sentence this way? She did not, you're on it. Okay. But she did very upward on Carter. Even with the- Carter's guidelines were 360 to life. I'm sorry, defender. She varied upward. Taylor, defendant Taylor. By how much? I don't know the answer to that. But I do know- And when I say the- The sentence was 420 months, it was commensurate with defendant Carter's sentence as well, which was also the 420 months. But she didn't- She didn't very upward on Carter, because she didn't have to. That's correct. That was a guideline sentence. That was a guideline sentence. Yes, Your Honor. And without the obstruction, the guideline would have been- Been the same. 360 to life. That's correct. But you don't remember what Taylor's guideline was. It was- It was less than 360. I could certainly provide that information to you right now. I know it's in my brief as well. No, no, no, I don't want you to take the time. Your Honor, unless there's other questions, you know, for all those reasons, we would just ask this court to affirm the- The judgment and the convictions imposed by the district court below. Thanks, Your Honor. Thank you

. But she did very upward on Carter. Even with the- Carter's guidelines were 360 to life. I'm sorry, defender. She varied upward. Taylor, defendant Taylor. By how much? I don't know the answer to that. But I do know- And when I say the- The sentence was 420 months, it was commensurate with defendant Carter's sentence as well, which was also the 420 months. But she didn't- She didn't very upward on Carter, because she didn't have to. That's correct. That was a guideline sentence. That was a guideline sentence. Yes, Your Honor. And without the obstruction, the guideline would have been- Been the same. 360 to life. That's correct. But you don't remember what Taylor's guideline was. It was- It was less than 360. I could certainly provide that information to you right now. I know it's in my brief as well. No, no, no, I don't want you to take the time. Your Honor, unless there's other questions, you know, for all those reasons, we would just ask this court to affirm the- The judgment and the convictions imposed by the district court below. Thanks, Your Honor. Thank you. We have a new rebuttal. That's correct. I'm sorry, I made you mine. Such a big, I think, a sponsor question. I think it was five years difference. 60 months was my right- In the guidelines. In the guidelines. That's the best of my question. But she varied up. She did. Even beyond. I mean, it would have been- I mean, it would have been- Honor, she did. But what's remarked about that is that we all know that district judges are constrained by the guidelines. They look at them, they consider- Well, because there's- By this court, says there's supposed to- They start there. I don't know that they're constrained. They start there. Having a significant regard. Doesn't it stand a reason that if my clients' guidelines were two levels lower, that the judgment of considered that in her ultimate decision, the answer is yes. She would- Well, it looks to me like she wanted 420. She was going for 420. Wherever she started. Well, she got there, Your Honor, but I think- She would do it. She got there

. We have a new rebuttal. That's correct. I'm sorry, I made you mine. Such a big, I think, a sponsor question. I think it was five years difference. 60 months was my right- In the guidelines. In the guidelines. That's the best of my question. But she varied up. She did. Even beyond. I mean, it would have been- I mean, it would have been- Honor, she did. But what's remarked about that is that we all know that district judges are constrained by the guidelines. They look at them, they consider- Well, because there's- By this court, says there's supposed to- They start there. I don't know that they're constrained. They start there. Having a significant regard. Doesn't it stand a reason that if my clients' guidelines were two levels lower, that the judgment of considered that in her ultimate decision, the answer is yes. She would- Well, it looks to me like she wanted 420. She was going for 420. Wherever she started. Well, she got there, Your Honor, but I think- She would do it. She got there. All I want to say was this in terms of the conflict issue. This court should find that there was an actual conflict. That conflict was not wavable, or if it was wavable, it was not a proper waiver, because it was not voluntary, it was not intelligent, and it was not knowingly made. Hence, this court does not have to reach the issue of whether or not there was an ineffective assistance of counsel, as we see the conflict. Thank you very much. Thank you very much, Your Honor. Ms. Johnson. Thank you. I just wanted to briefly address a few points. Regarding the reason for the disparity in the sentences among the defendants, I just wanted to provide a couple of records citations that I think really illustrate that it was the obstruction of justice enhancement that was the driving force behind that five-year disparity. At Joint Appendix 1427, this is where the district court rejected Councillor Edeland's councillor's argument that Mr. Edeland should be treated as less culpable because of his role in the offense. The court specifically rejected that and said for various reasons she found all three defendants to be equally culpable. She said the victims couldn't identify because of the defendants had masks. She didn't know who did what, and even if he never actually had a gun in his hand, he was there, he fully participated, and he appeared to be the one who had contact with this purported co-conspirator. So the court said she found them equally culpable, and she repeated that statement in defendant Carter's sentencing as well at Joint Appendix 1510. In Mr. Taylor's sentencing, the government urged a higher sentence from Mr. Taylor based in large part on the obstruction of justice enhancement. Mr. Edeland had been found to be a career offender. Mr

. All I want to say was this in terms of the conflict issue. This court should find that there was an actual conflict. That conflict was not wavable, or if it was wavable, it was not a proper waiver, because it was not voluntary, it was not intelligent, and it was not knowingly made. Hence, this court does not have to reach the issue of whether or not there was an ineffective assistance of counsel, as we see the conflict. Thank you very much. Thank you very much, Your Honor. Ms. Johnson. Thank you. I just wanted to briefly address a few points. Regarding the reason for the disparity in the sentences among the defendants, I just wanted to provide a couple of records citations that I think really illustrate that it was the obstruction of justice enhancement that was the driving force behind that five-year disparity. At Joint Appendix 1427, this is where the district court rejected Councillor Edeland's councillor's argument that Mr. Edeland should be treated as less culpable because of his role in the offense. The court specifically rejected that and said for various reasons she found all three defendants to be equally culpable. She said the victims couldn't identify because of the defendants had masks. She didn't know who did what, and even if he never actually had a gun in his hand, he was there, he fully participated, and he appeared to be the one who had contact with this purported co-conspirator. So the court said she found them equally culpable, and she repeated that statement in defendant Carter's sentencing as well at Joint Appendix 1510. In Mr. Taylor's sentencing, the government urged a higher sentence from Mr. Taylor based in large part on the obstruction of justice enhancement. Mr. Edeland had been found to be a career offender. Mr. Taylor was only a criminal history category three. And the court cited in two different places at Joint Appendix 1482 and 83 and 1485 that she was finding the obstruction as well as the defense theory to be a large part of her sentence. And probably the best illustration is a Joint Appendix 1559 to 1560, where in Mr. Carter's sentencing the court specifically referenced the fact that Mr. Carter, like Mr. Taylor, had obstructed justice and that warranted an additional sentence. Do you dispute the representation that the guy, the 360 to life would be the same for Carter without your structure? So we do have disagreement with some of the court's guideline calculations, but assuming that the court does not find fault with those, yes, there would have been 360 to life in any event. However, she clearly went up from the bottom of the guidelines. And if we compare the two most comparable. Well, she went up from the top of the guidelines on Mr. Taylor. Well, she went above the guidelines for Mr. Taylor, that's correct. And, but for Mr. Edeland and Mr. Carter, who were both found to be career offender with the same guidelines, she only went up above the bottom of the guidelines for Mr. Carter. Thank you very much. Thank you. Mr. Reader, we understand that your court appointed and we very much appreciate your efforts and do what our work without you. We will come down and greet the lawyers and then go to our next page.

We're happy to hear argument in the United States versus Edelands, number 12, 42, 39, etc. Good morning, Your Honours. Gerald Ritter, I'm half the appellant Kendall Taylor. If I could, Your Honours, I'd like to consider an argument this morning issue two, which is founded pages 29 to 49 in the appellant's brief without waving any of the other issues are relevant to the appellant Taylor. I believe that co-counsel will be addressing other issues later on. You may wonder, in terms of this particular argument, we start with the proposition that the six amendment does guarantee the right to counsel and are getting. We further follow the given that the six amendment guarantees the effective assistance of counsel. These are the strict one. And I think further we can agree that retained counsel has a preference in terms of a defendant, if he can afford to pay a lawyer under a leave versus a U.S., then there should be a preference that he should keep that lawyer. But that right is not an absolute right. And in this particular case, our position is that the counsel for Mr. Taylor had a deficient performance by reason of the conflict that he had by the dual representation of two individuals at the time this case was heard, pretrial, during trial, and at sentencing. We want this court to find that there was an actual conflict of Pellant's trial counsel. And we believe that the definition of actual conflict is found in this court's decision in Gilbert versus Moore. It could be proven essentially in two ways of finding her standard. And that is first, if there is a divergence in terms of any material fact or material legal issue between the two. Mr. Taylor wanted to destroy her, is that right? Your Honor, Mr. Taylor was inquired by the trial court on November 1st at a motions hearing, which evidently was to be a so-called waiver hearing, which we believe is highly inadequate to have determined whether or not Mr. Taylor knowingly waives his right to conflict free counsel. So we find though that we believe an actual conflict exists because of the course of action taken by the trial counsel in his representation of Mr. Taylor. Now, Your Honor, on October the 26th, just about five days before trial started, the government wrote a letter to all counsel pointing out that there was a potential conflict in that case. It's in the joint appendix. And on November 1st, the issue was taken up by the trial court. I know your honors have bred the joint appendix and it seems as if Mr. Reynolds, the lawyer for Mr. Taylor, wasn't even sure about who the conflict concerned. And yet it's obvious he knew who the conflict concerned. One, Mr. Cole. Mr. Cole is a man who was awaiting trial in the Eastern District of Virginia, federal case. But he also was awaiting trial in the Prince George's County Circuit Court for arm robbery and about the same area where this particular event happened to take place. The reason we believe that Mr. Reynolds conduct and representing Mr. Taylor was deficient is for several reasons. Number one, he represented them simultaneously rather than consecutively, which I think in itself becomes an issue. Number two, he knew that the text message, which was sent by Mr. Cole during the course of the robbery itself, was going to be introduced as evidence. And he realized that the government's version was that Mr. Cole was a co-conspirator. Now there's a separate issue in the brief. I'm not going to address that. Whether he was a co-conspirator or not, but certainly the district court believed he was a co-conspirator and she said so. In fact, at the sentencing here, and I'm struck by the fact that the trial court indicated how this person who we know as Mr. Cole was as culpable as all the three appellants that are now here before this tribunal. And even she suggested that this man, Mr. Cole, would have known that firearms were used and he would be seeking the same kind of punishment had he been a member of this particular trial. The trial council knew that a thorough investigation of the defense theory, which was this was not a kidnapping. It was a burglary or it was a grab money and drugs and leave. It was not meant to be a kidnapping. That was a defense offered by trial council in this opening statement. He knew that if a thorough investigation had been done, it would have required to him to discuss with Taylor the text message, his relationship with Mr. Cole, his relationship with any body else involved in the case. And his implications. He of course on this record, we know did not do that. A thorough investigation would have required this lawyer to have interviewed Cole. Mr. if I may ask you this, do you run the risk on this record? And I'm not second guessing you at all. We'll never do that. But do you run the risk that I'm presenting an ineffective assistance conflict based claim on direct appeal that you foreclose a more promising opportunity in a post conviction? I think the answer is no because what I think this court should consider doing is remanning this matter for a full evidentiary hearing because the record probably is incomplete. But what if you lose now, then you're right to pretty much foreclosed your habeas claim, haven't you? I don't think so, because the record is so incomplete. The record here, part of the difficult is that I think the trial court had an obligation to inquire fully as to the nature of the conflict. But that's my point. You just said the record is incomplete. And so I guess your implied response to Judge Mott's is if we lose judge, what we want to lose on is your refusal to consider the claim. That would be what you're suggesting. Narell, yes, sure. That if we're going to rule in your favor, we should consider the claim. But if we're not going to rule in your favor, we should defer the claim to 2255. And your moderate is I could see the distinct possibility of the court doing just that, but never the last thing. What about the distinct possibility of the court deciding it on the merits that you put in front of us and rejecting the argument? If the court did that, I admit it made very well Narell the 255 claim. That would be for certain. You know, I would argue further if I could that in this particular case, if the court was to examine the Mickens versus Taylor case, which is relevant to this matter, we believe that the court would find in this case that there was an actual conflict. The court would also find that the actions of trial council were deficient. And the court, I think, would also find that his fire to pursue a strategy different than he did was in fact linked to the actual conflict which he had. I think with that my time appears to be up. Thank you very much. Thank you very much. Thank you. Johnson. Thank you. Good morning. May I please the court. My name is Julie Johnson. I'm here today on behalf of appellant Darrell Carter. And with my time today, I would like to focus on the enhancement of the sentences of Mr. Taylor and Mr. Carter for obstruction of justice. There were three defendants in this case. All three were convicted of the same conspiracy to kidnap. All three defendants were told by the court that they would have the assistance of their council at the Presentance interviews. And yet two of those defendants, Mr. Carter and Mr. Taylor had attorneys who chose not to attend and received no advice ahead of time about how to conduct themselves during those very important interviews. And what happened with those interviews with those two defendants is when the probation officers asked them about the offense conduct, they repeated the trial strategies that their attorneys had been advancing throughout trial and in doing so denied their guilt. Now these two defendants had sat through trial and heard the attorneys over and over again advanced the defense theory, which was essentially they weren't there to kidnap the victim. They were there to rob her and that they did not have guns at the time of the offense. They heard the attorneys advance those arguments in pretrial motions in opening statement. They heard them rigorously try to advance that theory through cross examination of most of the government witnesses. They heard them continue that theory in the closing statement and again, and sorry, and also an emotion for judgment of acquittal. They heard the attorneys making these arguments over and over again. Well, I think that I credit you for coming up with this argument and it might be persuasive if they were in spiritual or somewhere else. But they knew the facts of the case no matter how many times their lawyers said what the facts were and they knew that they not that this interview was to assess their sentence to recommend they knew the trial was over and you guilt had been imposed. So it seems to me they knew a lot without their lawyers there you're not making an ineffective. No, Your Honor, I do know that there are some courts including the Washington case from the 10 circuit that have found ineffective assistance based on a failure's attorneys failure to adequately advise on the precensitum interview. We're not advancing that. Of course, today that's for another day. I'm doing some similar pre. Is some similar pre trial, but even if we can understand the court did advise them that this wasn't important document and she would rely on it heavily at sentencing. But the larger point is is how these defendants were supposed to understand and it's stand that once they entered that interview that the rules had suddenly changed, that the words, that the arguments, that the theories that they had heard their attorneys advancing on their behalf, which had been accepted at trial. I mean, the jury had not completely accepted it, although there was a split verdict that all the sudden when those same theories come out of their mouth in the interview that that's going to subject them to an enhanced sentence. But that assumes that you can lie a trial. We're on a we don't can see that the statements are lie. Well, then if they weren't a lie and they were the truth, then the district court didn't believe them. Then it doesn't make any difference what they said. In other words, you're saying your argument necessarily is suggesting to us that they should have lied when they were talking to the probation officer to get a lighter sentence because what their defense was was correct. That can't be that can't be your argument. No, your honor. The argument is and here we don't we have the benefit of looking at what happened with the third defendant, Mr. Edelman, whose attorney did do the right thing in this case and attended his clients' pre sentence interview. And when he was asked about the offense conduct, it says right in his precens report upon advice of counsel, he made no statement regarding the offense, which is exactly what a defendant should do when they have not waved their fifth amendment rights. And especially in a case such as this in which the government had not yet dismissed that firearm charge, which the jury had not been able to reach unanimous verdict on any any admission that those that Mr. Carter, Mr. Taylor made during that interview. It could have been used against them in a subsequent trial on the on the 924 C charge. So there was very real danger in this interview. And my point is not that the defendant should have said X or Y, but they should have had. They should have had assistance. There was no way for them to. And yet you say you're not asserting an ineffective assistance to counsel claim. I'm a little confused by that. Because your honor, we're not here today to address the errors of counsel. I do think that will be the subject of a later proceeding. And yet that's what you rest your argument on. If I understand it, maybe I don't. I'm sorry, Your Honor. What we're here today is to talk about the error of the court. And specifically our position is that it was procedural error for the district court to enhance the sentence of Mr. Carter and Mr. Taylor based on what were essentially unconsled denials of guilt. You're you're arguing the district court has an obligation to go find out whether they had counsel at this hearing. No, you're on it was very clear at the sentencing of both Mr. Carter, Mr. Taylor, the district court's job is to take the evidence presented to the district court and determine what a correct sentences. Understood, Your Honor. But in this case, the record was clear. Actually, the first question that the court asked of the probation officer at Mr. Taylor sentencing was who was present at the pre-sentence interview. And it was it was rigorously argued by Mr. Carter's attorney at his sentencing that he did not have counsel in this was real. He was just repeating what his trial attorney said. We're not expecting when I'm trying to impose a standard on the court to do that investigation, but here it was abundantly clear and it was rigorously contested. And you know, sometimes we have to wonder what impact does this have on a sentence. Here, it's very clear that that the court's finding of obstruction had a significant impact on the sentence, specifically five years. That's very clear from the transcripts from the sentencing from all three defendants. Mr. Edeland, who did not make a statement at his pre-sentence interview received a sentence of 30 years. Mr. Carter and Mr. Taylor received a sentence of 35 years. And the court in both of their sentences specifically referred to the obstruction of justice enhancement as being a primary reason for the different for the different sentences. So it clearly had an impact on the sentences here. And our point is we're not asking the court to micromanage what the probation office does. We're not asking this court to instruct district courts to inquire in every case, but in a case such as this, which has very unique circumstances when defendants have not waived their fifth amendment rights. They have a possibility of a charge hanging over their heads. And when the court knows that they did not have the benefit of council, it is simply erroneous to use those uncounseled denials against them. Why do you say they didn't waive their fifth amendment rights? Because they had proceeded to trial. There had been no wavers. No, I'm talking about at the pre-sentence investigation interview. Well, they had no- Did they waive their rights at that interview? Well, it's true that any statements that they made at that interview could be used against them. So there was a waiver? Well, I wouldn't say it was a waiver, no, you're right. They hadn't been advised with their fifth amendment rights. Well, but you don't have to be advised. I mean, you don't get advice of right. You don't get them a rander warning when you go into the grand jury. No, that's- As a matter of constitutional requirement. Well, I think of the grand jury doing it in a routine pre-sentence interview. It's true that you do not. But I think what's important to focus on is the courts reliance on those statements given the unique circumstances in which those statements was made was unfair. These defendants had no way of knowing the statements that they made were going to be used against them. And we shouldn't be using a gacha to enhance defendants. But what rule of law requires that they be advised that their statements will be used against them in a pre-sentence investigation report interview? I see my time is up. May I answer the question? Thank you. Your Honor, there are courts, including this court, who have found that Miranda warnings are not required in a routine pre-sentence interview. This court does not need to address that issue to resolve the issue that's on the enhancement. Our point is merely that given the facts here, the court should not have used those statements to enhance the sentences of Mr. Carter and Mr. Taylor. Thank you very much. Now we hear from the government. Good morning. Please the court. My name is Jerome Maietico. Here on behalf of the government. Your Honor, I appreciate some of the questions you asked of opposing council with regard to two of these issues. They used the obstruction enhancement that they raised and also the ledged attorney conflict. And I plan to address each of those issues in turn and possibly some other issues if you have questions. But first, your Honor, if I could just begin with a brief factual statement and get right to legal issues in this case. This case is at court about three defendants. Three violent repeat offenders who were caught and red handed inside of a bank manager's home. The bank manager, who are then 12-year-old son, both testified at trial. I think really you can assume we know the facts, the dreadful facts of this case. Absolutely, Your Honor. It's within the context of this particularly violent, particularly vicious attack that we have this waiver of an alleged attorney conflict. Now, the opposing council didn't get into really the waiver in this case. But I would just point the court to another decision in USV Brown, which tells us if a defendant waives the conflict with knowledge of the crux of the conflict and an understanding of its implications, the waiver is valid, even if the defendant does not know each detail regarding the conflict. Are there some conflicts you cannot waive? Your Honor, the conflict in this case was certainly waiveable. And I think if you look at that, that wasn't the question I asked you with. There was not. But Your Honor, I think what matters is this. So there are some conflicts you cannot waive? I think what matters is the specific facts and circumstances of each case. Look, I don't want to be unpleasant, but is your answer. Yes, there are some conflicts that you cannot raise, but no, this is not one of them. Or is it no, you can, there are no conflicts that you can ever, that all conflicts can be waived. Yeah, respectfully, Your Honor. I think that it's not a yes or no answer. I think you have to look to each of the specific facts of every case before you make that this memory. There are some conflicts which you cannot waive if you have to look at the facts. Well, I'll give you an example, Your Honor. I think there are. This is, I mean, this is not a get, I got you a question. This is like, I don't know if you move, court these things, but you must, you must have thought of this question. And it's not, you know, it's not a true question. Are there some conflicts you can't raise? I believe there are. There are some conflicts that you cannot waive, Your Honor. Good job. Yeah. But specifically in this case, the, you know, weed versus United States stands for the proposition that district courts are given substantial latitude in deciding the facts of each case and determining if a, if a waver is valid, whether just qualified counsel. And that, that needs to be done. The courts district courts need to be given substantial latitude, so they don't face the uncertainty of reversal in every case with a potential conflict. Certainly, defendants could claim they were denied the right to counsel if there's a disqualification and defendants could claim that there's an effect assistance if, if their attorney is not. In this case, defendant Taylor was made aware of the nature of the conflict. He was made aware of the implications in an inquiry by the court. And I submit to, to this court that it was a textbook example of an inquiry on the record before. And the district court and I would just point the court to the joint appendix 71 to 74 for that. The district court specifically advised defendant Taylor of the attorney's representation of coal, the nature of this potential conflict that this was an unindicted co-conspirator whose name would come up a trial. Earlier, this individual was in fact named and joint appendix 66 that his name was William Cole. And the district court told the defendant Taylor that his attorney's representation of coal could affect questions that were asked of witnesses at trial, could affect his attorney's advice on whether the plead guilty or to go to trial. And Taylor affirmed that he understood these implications, he understood the nature of the conflict and that he quote, I'm giving up that right. So he said, I'll appoint a lawyer to meet with you to discuss whether you should keep your lawyer. That's exactly right. And he declined. He declined the independent advice and even goes beyond that, Your Honor. There was a letter that was filed by the government that talked about the nature of the conflict and its implications that was filed on the docket. And we had a proffer from the government on the record with Taylor present that went into the nature of the conflict and its implications. So that you consider moving for disqualification? You didn't did you? No. I mean, the government did not. No, but the government did with a letter to the court and then raising it prior to the motions hearing. I mean, sometimes the government does in fact challenge a waiver by defendant. And you're on the reason that we do that in this case is because we saw this as a potential conflict. This was not an actual conflict that adversely affected his lawyer's performance. And it makes a lot of sense why it was not an actual conflict. You know, when we look at the facts to this case, we have on the record that. Can I move you to the second argument that was in front of us? Because I think you've pretty thoroughly discussed this one. Absolutely, Your Honor. And that is the difference in the sentences. Is it accurate that the only reason that one of the defendants got a lighter sentence was because he had not sort of repeated the. His story, the trial story at with the probation officer. Well, I think that the no, I think that the district court was clear in evaluating the 3553A factors and taking everything into consideration and coming up with that sentence. I don't think there's. What other construction enhancement though did he? He did not get an instruction enhancement and the other three did. Is that correct? That's correct, Your Honor. It sounds like the basis of the obstruction enhancement is the discussion with the probation officer, right? I'm sorry. Could you repeat that? Is there any other basis for the obstruction enhancement than these remarks that were made to the probation officer? No, Your Honor. So it sounds like that that was a basis for the difference in the sentences. It was certainly one factor. What was the other factor if he didn't get the obstruction enhancement? Didn't that make the difference in the sentences? Well, if you look at the guidelines in this case, Your Honor, there were two defendants that were career offenders facing 360 to life under the guidelines. And then there was one defendant Taylor is who was one of the defendants who was hit with the obstruction enhancement. Who did not have that? It was a slightly lower guideline range. So the guideline ranges were different for each of these defendants. And that's something that certainly the court took into account when making a decision. What was the decision imposed on the three defendants? There was 360 months for defendant Edeland. Uh-huh. And then 420 months for the other two defendants, Carter and Taylor. Okay. And Edeland did not make his lawyer told him not to say anything. That is correct, Your Honor. And so he got appreciably less, a lesser sense. And what is the basis for it other than this enhancement? Well, Your Honor, I think what is the basis for distinguishing between them other than the enhancement? Right. Well, I think the roles in the offense, not the roles in the offense as discussed by the guidelines, but as taken to account in the 3553A factors. Uh-uh. Throughout the trial, uh-uh. It was-it was suggested that Edeland played a smaller role in the actual home invasion in the kidnapping than the other two defendants. Um, that is something that was certainly raised by defendant Edeland's counsel at sentencing. It was something that was discussed thoroughly about how he, uh, you know, was not the primary aggressor, uh, in the kidnapping. Uh, and I think that certainly is something that the court would have taken into account in, uh, in sensing him to a lower sentence. Uh, Your Honor, but if I may, there's really three arguments in the subscription enhancement that, uh, that the opposing counsel raised. And one, it's under the guidelines, two, it's under the fifth amendment, and then three, it's under the sixth amendment. Each of these arguments, uh, should fail under the guidelines. Uh, the guidelines do allow for an exception. Can you start in the reverse order, perhaps? What-what is the sixth amendment argument as you understand? Well, as-as I understand that there are six amendment arguments that they do have a right to counsel. Uh, and yet they say they're not- I'm not saying it's a right to counsel. So what's left of the sixth amendment claim if there's no ineffective claim? Well, as I understand it, and I-I think that in oral argument it was probably clarified a bit. But as I understand it from the brief, the sixth amendment argument is that, uh, it should be a critical stage of the proceeding. That, uh, you know, a-a pre-sentence interview, a defendant should have a- You're saying it's a denial of counsel as opposed to ineffective assistance of counsel? And as-as I said, that's how I understand the argument. I think it's-I think the-the way it was presented was a bit different in the- Okay. So you want to talk about Fifth Amendment and guidelines. Right. So, there-there is no right to counsel at the-at a routine pre-sentence interview. I think the court has made this clear in that- Well, because this- I think your colleague-I conceded that. I'm sorry. I think your colleague conceded that in her argument. So why are you doing that? Right. Well, you know- I think the routine pre-sentence interview though, when there was a gun charge still pending against the defendant? Well, I- And they were asked about that. Well, I think it is. And if you-and it's still a routine pre-sentence interview, Your Honor, because the-the probation officers are not agents of the prosecution. They're not facing prosecutorial forces at a routine pre-sentence interview. The prosecution is not asking the questions at this routine pre-sentence interview. What the probation officers are doing, they're neutral, fact-gathering agents of the court who are gathering information to help make the district court make an informed sentencing decision. That-that's no different whether there's a-a charge pending or not. They're still playing the same role at that time. When we talk about the guidelines themselves, the guidelines, as I said, do allow for an exception for a simple now. They allow for these laconic nose to affirmative statements denying guilt. And I think it's clear here that the defendants went way beyond any sort of mere denial of guilt. They fabricated a false story. Both of them. Telling them that this was a-telling the probation officer that this was-they received a tip about money and drugs in the house. This was a burglary attempt or a robbery attempt. And that that's why they were there not to take the bank manager back to her bank. That was the trial strategy for all defendants, wasn't it? Well, to say it was the trial strategy, I think- I was perpetrated, let's say it-the government's way, on behalf of all defendants at trial. Well, defendant Edeland did not-it did not advance this in his opening or closing arguments. That was not a trial strategy for defendant Edeland. Defending Carter, defendant Taylor, both of their attorneys raised that issue in opening statement. What I can say though is there's not a shred of evidence that was admitted at trial to support this theory. So this was a theory that was brought up in opening statements. And then there was nothing presented to support that theory. And therefore, in closing arguments, they did not touch upon any of that evidence. But what did they had not made the statements they did before the pretrial officers, but had made the statements that- Edeland made, would the enhancement have been appropriate? No, it would not have- The opening or argument. Right, it would not have, Geronner. And I think that- So I don't know that that's interesting, but I'm not sure how relevant it is because we're talking about the enhancement. Correct. Yeah, Geronner, it is clear that defending Carter, defendant Taylor, advanced in the probation interview, the same theory that their attorney is advanced. But the district court made it clear that they were not being hit with the obstruction enhancement merely because their attorney is advanced in argument. It's because they repeated those same statements, those same false stories to the probation officer. So it looks to me like a pretty clear violation of the Sixth Amendment. In terms of attorney performance. I don't think you would disagree with me that the standard of care in federal district court in criminal cases is to tell your client to say nothing beyond date of birth, address, and medical condition in a precinct investigation report. I think everybody would agree today. I respectfully disagree that this is- Of course you would. Particularly when there is a charge pending. So, but the question is going to be, I think, how do you prove prejudice if the harm comes to you because you lied to a probation officer? In other words, if they had taken the stand and said what they said to the probation officer, there'd be no issue, right? I mean, the district court could have reasonably applied our precedent and found a willful obstruction of justice. If they had testified in the manner in which they answered the- Absolutely. If this, you know, if the situation was that they also testified or testified instead of giving these statements to the probation officer, that would also be an obstruction enhancement. Of course they would again assert ineffective systems. I think that's true. I think the claim would be the same of ineffective assistance. Well, but- You're surely the district court would have obtained annoying and voluntary waiver on the record in the courtroom before they took the stand in. And I'm suspect- That's not- Judge Chaz now would have as well- Of course. Given the fact that the wavering fee was so thorough. How much did it actually hurt them, this two-level bump up, in practical terms? So defendant Taylor and defendant Edeland had different guidelines- I'm sorry, defendant Taylor and defendant Carter, different guidelines. Defending Carter was a career fender. Even without this enhancement, the guidelines would have been the same. The guidelines would have been the same. The guidelines would have been the same. 360 to life. Okay. And what about Taylor? Taylor, the guidelines, it would have been a two-level difference. Okay. A two-level difference equals- It's about a five-year difference in the guidelines. But the guidelines, in this case, the district court judge Chaz now- She actually varied upward. Looking at the 35-53A factors, she took into account the guidelines and imposed the guidelines. That was- That was above the guidelines. So, you know, to say what would- Have you argued harmless here, harmlessness? I-I have not raised that in my brief. Did she make the finding that she sometimes find that- Which is, even if my calculations are wrong, I would still sentence this way? She did not, you're on it. Okay. But she did very upward on Carter. Even with the- Carter's guidelines were 360 to life. I'm sorry, defender. She varied upward. Taylor, defendant Taylor. By how much? I don't know the answer to that. But I do know- And when I say the- The sentence was 420 months, it was commensurate with defendant Carter's sentence as well, which was also the 420 months. But she didn't- She didn't very upward on Carter, because she didn't have to. That's correct. That was a guideline sentence. That was a guideline sentence. Yes, Your Honor. And without the obstruction, the guideline would have been- Been the same. 360 to life. That's correct. But you don't remember what Taylor's guideline was. It was- It was less than 360. I could certainly provide that information to you right now. I know it's in my brief as well. No, no, no, I don't want you to take the time. Your Honor, unless there's other questions, you know, for all those reasons, we would just ask this court to affirm the- The judgment and the convictions imposed by the district court below. Thanks, Your Honor. Thank you. We have a new rebuttal. That's correct. I'm sorry, I made you mine. Such a big, I think, a sponsor question. I think it was five years difference. 60 months was my right- In the guidelines. In the guidelines. That's the best of my question. But she varied up. She did. Even beyond. I mean, it would have been- I mean, it would have been- Honor, she did. But what's remarked about that is that we all know that district judges are constrained by the guidelines. They look at them, they consider- Well, because there's- By this court, says there's supposed to- They start there. I don't know that they're constrained. They start there. Having a significant regard. Doesn't it stand a reason that if my clients' guidelines were two levels lower, that the judgment of considered that in her ultimate decision, the answer is yes. She would- Well, it looks to me like she wanted 420. She was going for 420. Wherever she started. Well, she got there, Your Honor, but I think- She would do it. She got there. All I want to say was this in terms of the conflict issue. This court should find that there was an actual conflict. That conflict was not wavable, or if it was wavable, it was not a proper waiver, because it was not voluntary, it was not intelligent, and it was not knowingly made. Hence, this court does not have to reach the issue of whether or not there was an ineffective assistance of counsel, as we see the conflict. Thank you very much. Thank you very much, Your Honor. Ms. Johnson. Thank you. I just wanted to briefly address a few points. Regarding the reason for the disparity in the sentences among the defendants, I just wanted to provide a couple of records citations that I think really illustrate that it was the obstruction of justice enhancement that was the driving force behind that five-year disparity. At Joint Appendix 1427, this is where the district court rejected Councillor Edeland's councillor's argument that Mr. Edeland should be treated as less culpable because of his role in the offense. The court specifically rejected that and said for various reasons she found all three defendants to be equally culpable. She said the victims couldn't identify because of the defendants had masks. She didn't know who did what, and even if he never actually had a gun in his hand, he was there, he fully participated, and he appeared to be the one who had contact with this purported co-conspirator. So the court said she found them equally culpable, and she repeated that statement in defendant Carter's sentencing as well at Joint Appendix 1510. In Mr. Taylor's sentencing, the government urged a higher sentence from Mr. Taylor based in large part on the obstruction of justice enhancement. Mr. Edeland had been found to be a career offender. Mr. Taylor was only a criminal history category three. And the court cited in two different places at Joint Appendix 1482 and 83 and 1485 that she was finding the obstruction as well as the defense theory to be a large part of her sentence. And probably the best illustration is a Joint Appendix 1559 to 1560, where in Mr. Carter's sentencing the court specifically referenced the fact that Mr. Carter, like Mr. Taylor, had obstructed justice and that warranted an additional sentence. Do you dispute the representation that the guy, the 360 to life would be the same for Carter without your structure? So we do have disagreement with some of the court's guideline calculations, but assuming that the court does not find fault with those, yes, there would have been 360 to life in any event. However, she clearly went up from the bottom of the guidelines. And if we compare the two most comparable. Well, she went up from the top of the guidelines on Mr. Taylor. Well, she went above the guidelines for Mr. Taylor, that's correct. And, but for Mr. Edeland and Mr. Carter, who were both found to be career offender with the same guidelines, she only went up above the bottom of the guidelines for Mr. Carter. Thank you very much. Thank you. 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