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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - -X
UNITED STATES, Petitioner :
:
: :
No. 03-167

CARLOS DOMINGUEZ BENITEZ.

- - - - - - - - - - - - - - - -X
Washington, D.C.
Wednesday, April 21, 2004
The above-entitled matter came on for oral

argument before 10:06 a.m. APPEARANCES:

the Supreme Court of the United States at

DAN HIMMELFARB, ESQ., Assistant to the Solicitor General,
Department of Justice, Washington, D.C.; on behalf of
the Petitioner.
MYRA D. MOSSMAN, ESQ., Santa Barbara, California; on
behalf of the Respondent.

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ORAL ARGUMENT OF DAN HIMMELFARB, ESQ.

C O N T E N T S
PAGE

On behalf of the Petitioner MYRA D. MOSSMAN, ESQ.
On behalf of the Respondent REBUTTAL ARGUMENT OF
DAN HIMMELFARB, ESQ.
On behalf of the Petitioner

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Because now in

P R O C E E D I N G S (10:06 a.m.) CHIEF JUSTICE No. REHNQUIST: States We'll hear v. argument

03-167, United

Carlos Dominguez

Benitez. Mr. Himmelfarb. ORAL ARGUMENT OF DAN HIMMELFARB ON BEHALF OF THE PETITIONER MR. HIMMELFARB: please the Court: This Court has consistently held in both Mr. Chief Justice, and may it

harmless error and plain error cases that an error affects substantial rights if it affected the outcome of the to a

district court proceeding.

Applying that principle

violation of rule 11 at a guilty plea proceeding, 9 of the 12 courts of appeals that hear criminal cases have

concluded that a rule 11 if it affected

error affects substantial rights plead guilty,

the defendant's decision to

which means that the defendant would not have gone forward with his plea if the error had not occurred. That

standard is correct. The Ninth Circuit standard which the -­ QUESTION: I'm -- I'm May I not just ask this one of the question? -is it the

at all -- in

sure

perfectly clear

that the

terms --

effect of

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decision necessarily is equated to have otherwise have pleaded guilty? MR. HIMMELFARB: In

the fact he would

not

the

context of

a guilty

plea, I think it is, Justice Stevens. decision. This Court's cases

That's the relevant harmless

have applied the

error and plain error effect on substantial rights element in a variety of circumstances: the course of a grand at a jury detention hearing, proceeding, most

during

frequently a Each of that the

trial, of

course, and

also at

sentencing. clear

those four

circumstances, the

Court made

relevant question was whether the effect of that

particular proceeding would have been the same -­ QUESTION: Well -­ -- if the error had not been

MR. HIMMELFARB: made. QUESTION: meaning of that say,

Except that we -- I mean, the -- the In -in some contexts, we

term varies.

well, it's -- it's enough if the result would

-- if confidence in -­ the same has been

in that

have been

shattered. case -- we we've said

In

-- in the case at the other extreme with a that is strongest for you, we of --

-- I think in the

ineffective to show

assistance that he

counsel

context, yes,

you've got

wouldn't have have

pleaded guilty or he's got pleaded guilty otherwise.

to show that he wouldn't And -- and it seems to

me that

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the -- the issue here is, is this enough -- is the context here enough like the context counsel to -or to is put it in ineffective assistance of heaviest there burden -are on the

the --

petitioner,

are

enough

distinctions so that that heavy?

maybe the burden shouldn't

be quite

MR. HIMMELFARB: directly analogous to

We think the -ineffective

we think it's of

the

assistance

counsel context. performance by the advice about Hill

In that context,

you have a

deficient with

defendant's lawyer in connection

a guilty plea.

And this Court's decision in the next step of the

v. Lockhart makes

clear that

Strickland but for not

analysis, the

prejudice analysis,

is whether would

that deficient

performance, the defendant have gone

have pleaded

guilty and would

forward to

trial. QUESTION: All right. No. Your -- we -­ the same rule applies

MR. HIMMELFARB: here. QUESTION:

We think

Let me --

let me suggest at least

a

reason why maybe it isn't. In -context, one heaviest

I'd like your comment on it. of counsel know, the so very

in the ineffective assistance high -- you

reason for putting a

burden on the

defendant is

that it is

difficult to police effective assistance

as you go along.

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The judge watching the -knowing what's

the plea hearing has no

way of

going on or has gone on between the lawyer

and -- and the client. Here, we're in there are a a different position. There -­

couple of people in a position to -- to avoid One obviously is

the kind of problem that we've got here. the Federal judge.

If he had a checklist in front of him,

something like this wouldn't have happened. The second is counsel for the Government. The

counsel for the Government can get and say, Judge, you forgot

up in a case like this and avoid this

something,

problem. So it may be that because there are easier ways on the defendant shouldn't have

to avoid this, the burden to be so heavy. MR. makes clear course,

What do you say to that? Well, this Court's decision

HIMMELFARB:

in Vonn that the the

defendant has a that

burden, of that no a of

rejected

contention in

case

matter when -- regardless of rule 11 error occurs, showing that there The holding

the circumstances of when

the Government bears the burden effect on substantial that the

was no is

rights. the

of Vonn

defendant bears

burden. The only question in this case is what that

standard is, and we think again it's directly analogous to

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the ineffective assistance of counsel context. QUESTION: standard for plain Well, you don't think that the in

error that

the Court

spelled out

United States v. Olano provides the standard? MR. exactly our HIMMELFARB: position. Justice Our O'Connor, is that's that a

position

straightforward application of Olano -QUESTION: fourth prong, whether the if Well, if -- if that's so, the Olano's asks

you will,

is that

error -the

error

seriously

affects

fairness,

integrity, or

public reputation of

judicial proceedings. how part

And I'm not sure that

I understand, under your test, applied or if it's still

that fourth prong would be of the test. MR. O'Connor. the We HIMMELFARB: make two

It

certainly

is,

Justice under

alternative arguments, one error rule, one that in

third prong of Our

the plain

under the order to --

fourth.

primary

submission is

satisfy the third requirement of in other

the plain error rule

words, in order to show an effect on substantial

rights -- that's right -- a defendant has to show that the error affected his decision to plead guilty. Our alternative even if argument is that the Court -­ that a

the Ninth Circuit standard

is correct so

defendant would not

have to show that

the error affected

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his decision to plead guilty in order to show an effect on substantial third rights and of he the could plain therefore satisfy error rule, unless he he the

requirement the And

can't that

satisfy showing.

fourth

requirement

makes

we think that conclusion Cotton and

follows from this Court

Court's decisions in

Johnson where the

assumed, without deciding,

that the failure to

submit an

element of the offense to the grand jury or the petit jury affected substantial could not rights, but held that fourth the defendant the plain

satisfy the

requirement of

error rule of the

because the error had no effect on the outcome of the trial. So we're

grand jury proceeding or

making two alternative arguments here, one under the -­ QUESTION: practical aspect choose -how high a May I ask And you a question about the Court to doing and But

of it?

you're asking the is what we're

well, the plain error

burden the defendant would have

to meet.

this relates to a question Justice Souter asked. I was surprised, given that district judge, that she this was not a new

didn't have a litany that

would

cover all the rule 11 elements. that the

And I was also surprised

Assistant U.S. Attorney didn't say at the end of to mention that this plea

the colloquy, judge, you forgot can't be withdrawn. Is there a manual that

judges follow?

Are U.S.

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-- Assistant U.S. Attorneys

instructed, when something is

left out of rule 11, to remind the judge? MR. HIMMELFARB: Justice Ginsburg, my

understanding is that judges, and

there is a bench book are a great

available to many district and some are

obviously there

judges in

the United States district courts

going to be more meticulous than others. Assistant U.S. supposed to bring proceeding so Attorneys often or at least are plea is

checklists with them they can ensure

to a guilty that rule

that

11

strictly complied

with.

Of

course, a prosecutor

has no

more interest in litigating a rule 11 error on appeal than anybody else does. So it's very much in the prosecutor's

interest to try to ensure that there's strict compliance. Vonn makes clear, though, that in the event that one of the -- one of the advisements slips -- and there --

was only one here that the district judge did not give it's the defendant's burden to a plain error posture

object and if he doesn't, on appeal, not a harmless

he's in

error posture. QUESTION: in this case that Mr. Himmelfarb, is it the defendant believed Do we know that? We don't. The record is silent -- is it clear that he could

withdraw his plea?

MR. HIMMELFARB: on that question.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the Spanish Scalia. making a

QUESTION:

Do you think that -- that a defendant

guilty plea would normally believe that he could the Government has promised would recommend to him nothing a certain

withdraw it when except that it

the judge

sentence? MR. HIMMELFARB: Well, it depends, Justice

In a case like this, under that

we think a defendant would impression because in this

not reasonably be

case, this -- this defendant advised that and that he

-- respondent was repeatedly bound by the guilty plea minimum

the judge was not would face a

10-year

mandatory

sentence if the parties' recommendation was not followed. QUESTION: information, I -I If I was given wouldn't all of to that the

certainly

leap

conclusion that,

well, if the judge doesn't plea.

accept it, I he would

can withdraw the guilty naturally believe that. believe the opposite.

I don't know why

I would think he

would naturally

MR. HIMMELFARB: that's why we think -­ QUESTION: Wasn't

We agree,

Justice Scalia, and

-- wasn't that covered was translated he could

in -­ into he

plea agreement for him,

itself which

specifically that

not --

could not the plea?

withdraw his plea if

the judge did

not accept

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 district My point this where bound by point.

MR. HIMMELFARB: Mr. Chief Justice. QUESTION:

That -- that's

exactly right,

Your basic point is that this part of

the rule is pointless. MR. HIMMELFARB: QUESTION: Not at all, Justice Stevens.

Well, I guess that's Justice Scalia's

MR. HIMMELFARB: (Laughter.) QUESTION:

No.

There may --

I'm sorry. My point is that in a case like that the judge it's is not not can

MR. HIMMELFARB:

a defendant is advised the for parties' that

agreement, to

probably he

reasonable

defendant

assume that

withdraw his plea if the judge doesn't follow the -­ QUESTION: is that My point is when it is not that it's pointless. omitted, it does not

necessarily

produce substantial injustice.

It's

a good

idea to give it, of course. it, I

But in the absence

of giving

would think that normally you'd think that he would

assume that anyway. MR. HIMMELFARB: That's exactly right. That's

our position, Justice Scalia. QUESTION: judge, I But if could that's right and save time I were by a

probably

just

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omitting this regularly then. MR. HIMMELFARB: think that's likely to No, Justice Stevens, District I don't are

happen.

judges

generally 11.

quite conscientious

about complying

with rule

Prosecutors are generally sure that district

quite conscientious about comply with rule 11.

making

judges

Nobody has an interest in having appellate litigation over rule 11 errors. in Everyone has an interest -- everyone has making sure that rule 11 is strictly

an interest complied

with so that

the judgment of

conviction can be So I

entered and

people can move

on to other business.

don't think -­ QUESTION: here that any Even -- even respondent doesn't argue from the rule 11 requirement argue

omission

produces that?

an automatic

reversal.

Does respondent

MR. HIMMELFARB: QUESTION: So,

No.

My -­

I mean, that's -- that's not the you don't produce an give the rule 11

theory here, that if you don't -- if automatic reversal, people won't

requirements. MR. HIMMELFARB: That's right. The Ninth The

Circuit does not have a Ninth

rule of automatic reversal. if the error is not

Circuit standard is

minor or

technical and the defendant wasn't

otherwise aware of the

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omitted rights.

information, he

shows an

effect on

substantial

Our position is information is a that there was not necessary. QUESTION:

that knowledge

of the

omitted claim

sufficient condition

to defeat a

an effect on substantial

rights, but it's

Now, is your knowledge of requirement We -- we want to know what this it what a reasonable person

a wholly subjective test? defendant thought.

Or is

would have concluded based on all of the circumstances? MR. HIMMELFARB: It's a subjective of a guilty standard, plea, when

Justice Kennedy.

In the context

the question is whether the error affected the defendant's decision to plead guilty, the relevant question is whether this particular defendant gone to trial. QUESTION: So you put him on the stand. You put would have pled -- would have

him on the stand and -­ MR. because HIMMELFARB: No, you don't. You can't

by definition

in the plain

error/harmless error

context, you're limited to the record on appeal. Objective considerations are in making the obviously relevant of whether this

subjective determination

particular defendant would have pled guilty. QUESTION: Well, you're limited to the record on

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appeal.

Could there have been a hearing in the --

in the

district court on the rule 11 -­ MR. HIMMELFARB: For example, if the There could, Justice Kennedy.

defendant had moved

to withdraw his might have hold a

plea after been

he pled but

before sentencing, it court's

within

the district you could have

discretion to

hearing and

had the defendant

testify at

that hearing. QUESTION: for him to testify? MR. HIMMELFARB: That's right. Under -- under But after sentence, it's impossible

rule 11, a defendant can move to withdraw his plea for any reason before it's accepted. QUESTION: wasn't say -­ MR. HIMMELFARB: That's exactly right. It raised But he didn't do that. -This question He didn't

until appeal

the appeal.

wasn't raised at Ginsburg.

any point in the district court, Justice

QUESTION: other cases

But -- but my

question is in to put him

-- in on the

it would not

be possible

stand at any time after sentencing. MR. HIMMELFARB: makes clear No. After sentencing, the rule withdraw his plea.

a defendant can't move to

The only way he can attack his plea is by direct appeal or

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a collateral attack. QUESTION: the stand?

But before sentencing it's -­ On collateral attack, could he take

MR. HIMMELFARB: discretion of the testify. QUESTION: QUESTION: QUESTION: QUESTION:

Sure.

It would be

within the to

district judge

and his willingness

Under your -­ Can you -­ Excuse me. Can you collaterally attack a plea

before 0 appealed and sought to have it set aside? MR. HIMMELFARB: -- there's, direct of course, a Otherwise No, Mr. Chief Justice. requirement you will that you have There's file a

appeal.

procedurally

defaulted. I should also say that this Court held in

Timmreck that

a formal violation of rule 11, which is all

that we have here, is not cognizable in a 2255 proceeding. QUESTION: drawing on affect Normally -- you may know -- I'm just

your background.

Normally when you say did it rights, when I see those person.

somebody's substantial think the

words, I And

judge did something

to this

when I say

did it

affect his substantial

rights, I

think, well, did

it matter in terms of what Now, is

the judge or

the jury did to him.

that a correct way to think

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about it?

Are

there other

instances where

substantial

rights means something different than that? MR. HIMMELFARB: relevant decision-maker the -­ QUESTION: No, I'm not talking about -- I'm In the ordinary context, the judge, the and

is,

of course,

saying something happened to this human being who is there in court, and when I rights, I say did this affect his myself did this substantial make a

usually ask

error

difference in terms of what happened to him. -it's very colloquial, but that's the

That's how I question I

normally ask myself.

Now, maybe all these years I've been

doing it wrong or maybe there's some circumstances where I should ask that question. You know, like a death case,

which is a horrible case, sometimes there's harmless error and usually the question there is did it matter in terms

of his being sentenced to death.

Those come up a lot. I don't

I'm just asking you a general question. have a point here. I'm trying to

figure out how best to

think about this. MR. HIMMELFARB: No. We think your formulation

is exactly the right way to think -­ QUESTION: formulation, criminal law can you Fine. If that is the correct in the

think of

other

instances meant

where

substantial rights

something

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other than this formulation? MR. HIMMELFARB: I can. The -- an affect on the

substantial rights outcome. QUESTION:

means that

there's an

affect on

That's my question.

I'm asking it to other

inform myself and I have side too. MR. that answer

the same question for the

HIMMELFARB: I could,

Let -- let

me qualify that -­ That is the of

if

Justice Breyer. of course,

general rule. error, as

There are,

certain types

this Court has made clear, which do not require

a showing of -­ QUESTION: kind of exception. MR. HIMMELFARB: QUESTION: But That's exactly right. I don't think we normally speak Maybe we Like structural error. That's one

in terms of substantial rights do. I don't know. MR. HIMMELFARB:

in those cases.

Well, sometimes

the question error

will be whether the

third requirement of the plain

rule, which is a substantial affected. QUESTION:

rights requirement, has been

All right.

So -- so structural error not

cases are an instance where my colloquial question is right and nobody claims here this is a

structural error

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case. MR. Breyer. I -HIMMELFARB: I don't We certainly don't, Justice and the

believe respondent does,

court of appeals did not take that position either. QUESTION: Mr. Himmelfarb, there's -there's

another specific about what happened. to the defendant English.

this case that might

have averted

The -- the entire plea agreement was read in translation because he didn't speak

And that was the day before.

If it had been the

practice to give him a copy of the translation, instead of just having might better him hear it orally, then it would have --

for him to read

and we would

have had more

security that he knew. MR. HIMMELFARB: Justice Ginsburg, I don't know

as an empirical matter which is more likely to ensure that a defendant is aware of what's in the plea agreement,

sitting down happened

with a lawyer

and a Spanish

interpreter as over the

here and having

the three

of them go

plea agreement, it for

having the Spanish

interpreter translate so that are

the defendant in the

presence of counsel

the defendant can

ask any questions

of counsel that

necessary and counsel can answer them, on the one hand, or the suggestion which you just made. QUESTION: But I meant both, that is, that there written-out plea agreement, which

would be the written --

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if he could read English, he could have read, and then the lawyer and the translator go over that written document than

with him, that that I

think would be more effective

just hearing it orally. MR. that's true the HIMMELFARB: Again, I'm not As a sure whether legal matter, a

as an empirical matter. is when

question here

a defendant

has forfeited

claim of error and he has to show an effect on substantial rights on appeal, if you have -­ QUESTION: dispositive. warded off so But I didn't mean this same way -- how a Federal case to be legally could this be out of these

It's in the

we don't get

rule 11 slips. MR. HIMMELFARB: don't think it's Again, Justice Ginsburg, I -- I the practice of U.S.

ordinarily

Attorney's offices to provide Spanish translations of plea agreements to Spanish It's always the comes at the speakers who don't speak English.

practice, whether the translator is at -­ court's expense, the

defendant's expense or the

for a translator to

translate the plea agreement for counsel.

defendant in -- in the presence of know what would be the

I -- I don't the

source of any requirement for

Government to provide a Spanish -­ QUESTION: I -- I wasn't suggesting that -- that

it was a requirement.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the fact about this

May

-- may I

ask just one

more puzzling thing The reason that the

case, background of it?

deal didn't -- wasn't possible was that this man had three priors judge instead of everybody thought -- well, at least the thought or the prosecutor thought, until the

presentence report, there was only one. must have known how many priors he had. MR. HIMMELFARB: of course, knew not just one. the

But the defendant

That's right.

The defendant, and

that he had

three prior convictions

I'm not sure what bearing that fact analysis in this case because

has on

plain error

it's not have

just the fact rendered the

of the

prior convictions

that would

this defendant

ineligible for a There has to

sentence below guidelines points to

mandatory minimum.

be a

calculation and

assignment of criminal history

each conviction, and if you get above one criminal history point, you're not eligible for a sentence below the

mandatory minimum. QUESTION:

So you would -­ Well, you might -- you might say that have known that he had plea

that the defendant must have made

three priors would

him realize

that the

agreement probably wouldn't be accepted. MR. HIMMELFARB: One could reasonably conclude

that he should have had substantial doubt about whether he would have been eligible for the -­

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 test, on the rights. Stevens.

QUESTION:

Are you

assuming he

understood the

sentencing guidelines in that detail? MR. HIMMELFARB: QUESTION: It'd No. That's -­ unusual. The basic

be rather

problem here is we're dealing with dumb defendants. (Laughter.) QUESTION: That's the problem. That's why you

have to tell them twice. MR. HIMMELFARB: Well, that's true, Justice

QUESTION:

Yes. Rule 11 advise imposes a requirement the defendant of his

MR. HIMMELFARB: district judge to

Nobody disputes that

that didn't happen here for was

one of the advisements and nobody disputes that there therefore rule 11 error. was a plain error.

Nor does anybody dispute that it --

But since defendant didn't object

respondent didn't object in the district court, we're in a plain error meet. that's posture. to show but That not is a difficult standard there's an these two to

He has plain,

only that to satisfy

error other

he has

requirements that I'll mention. QUESTION: do you think? else. I Why shouldn't it be as an objective

I don't know mean, can't

why you focus on -- on -- in

something

we assess whether

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determining whether it affects substantial rights, how the evidence against the the plea terms? QUESTION: probability. QUESTION: it something else? MR. HIMMELFARB: Justice O'Connor, it is Yes. I mean, why do you want to make In other words, reasonable were, and defendant was, what the what he was told benefits of objective

in just

absolutely the case court should and

that in undertaking this ordinarily will look

analysis, a objective

at

factors.

In most cases -­ QUESTION: I would think you would win under an why you're trying to urge

objective test. something else.

I don't know

MR. HIMMELFARB:

We think

that -- we agree that

we win under either an objective or a subjective standard, given the strength of the case against respondent and

given the fact that he received a substantial benefit from pleading. We think that a -- a subjective test is the

appropriate one because this have when there's trial

is not a situation

like you

error and you

have to determine the same

whether the jury decision -­

objectively would have reached

QUESTION:

But

--

but

if

you're

doing

a

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subjective test, you might as

-- as long as you're

doing

that, why not accept the Ninth Circuit test: MR. HIMMELFARB:

did he know?

Well, Justice Kennedy, we think

that if he did knew -- if he did know, that's a sufficient basis for rejecting his claim because if he knew, the fact that the judge didn't tell him a second time -­ QUESTION: No, no. I -- I thought that this was And my -­

the Ninth Circuit test that you disagree with. my point you might is if you're going as well ask the to go this

objective route, as the Ninth

basic question

Circuit did. MR. HIMMELFARB: We -- we have no problem with

the question the Ninth Circuit asked. they stopped after they asked probably be the the record that

Our problem is that That should in

that question.

first question.

If there's evidence

the defendant was otherwise

aware of the

omitted rule 11 information, it would be very difficult to say that he would have gone to trial if the judge had

omitted to say something that he already knew. we think that's a sufficient -QUESTION: I still would

That's why

like to understand why

you think an objective test is not acceptable. MR. HIMMELFARB: In -in the -when a

defendant is confronted or going to trial, he

with a choice of has -he, of

pleading guilty course, has an

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absolute right to go to evidence is get from

trial.

No matter how

strong the

against him, no matter what benefits he could if he chooses, for whatever trial despite That's why we

pleading guilty,

personal or idiosyncratic those things, he's think -­ QUESTION: Maybe

reason, to go to

got the right to do it.

-- maybe you think

the courts the

would not -- would not situation where the

stand by an objective test in such that any

facts are

intelligent if

defendant would have -- would he knew

have made the plea even

that it couldn't be revoked. reason -- and

But this particular it's clear on the

defendant, for whatever record he

told his counsel or he left

-- left a note and

said, well, can always

there's no harm in making this plea because I withdraw it if the judge doesn't go along with And in that situation, I think a -- since a gone ahead

the recommended sentence. it's very hard for reasonable anyway,

a court to say, oh, yes, would -would have

defendant

this -- this

defendant who

would not

have gone

ahead anyway must be held to his guilty plea. MR. HIMMELFARB: Let I've already a me -- let said. I think that's right. me just add this point to what of

While

the objective in the

question

whether

reasonable

defendant

defendant's the

circumstances would

have pleaded

is not,

we think,

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correct analysis under

the third

component of the

plain

error rule, we do think it connection with the

could be taken into account in requirement, which is the

fourth

discretionary component. So, in other words, if you have a situation

where a defendant for some idiosyncratic reason was intent on going to trial, even though it was essentially suicidal for him to requirement do that, he might be able to satisfy the third because it affected his decision to plead

guilty, but a serious

court could the

permissibly say, that integrity, and

doesn't public

affect

fairness,

reputation of judicial proceedings would have been convicted if he

because he undoubtedly had gone to trial and

would have gotten a longer sentence. I'd like rebuttal. QUESTION: Very well, Mr. Himmelfarb. to reserve the balance of my time for

Ms. Mossman, we'll hear from you. ORAL ARGUMENT OF MYRA D. MOSSMAN ON BEHALF OF THE RESPONDENT MS. MOSSMAN: Mr. Chief Justice, and may it

please the Court: I have three points to make. First, Olano created a framework courts have been consistently applying that the lower applying in

--

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evaluating years.

forfeited errors in

a rule 11

context for 11

Second, now having suffered an adverse ruling in a fact-specific case, the Government to adopt a strict, heavy is urging this Court line, but-for lower

burden, bright

prejudice test

in every

case that

eliminates the

court's flexibility. Third, not only is the Government's test

incorrect, but the

Ninth Circuit cited and

applied Olano

and was consistent with Olano in Benitez. Now, first, standard under plain the the Olano standard is a national

error review where an And that means And the

error affects

substantial rights. to mean means In it's that

-- generally is in most cases the

taken

prejudiced. it affects

prejudice

outcome

of

proceedings. held as

Benitez, this is what in Benitez,

the Ninth Circuit not minor or

well because

if it's

technical, that means it's prejudicial. QUESTION: QUESTION: QUESTION: QUESTION: Why? But that's not so. Has -- has -I mean -­ Or consistently can be -­ It seemed

MS. MOSSMAN: QUESTION:

I read the Ninth Circuit. we said.

to me we said just what you said

What the Ninth

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Circuit says minor or with it

is Benitez must prove that the error was not way, has nothing to do

technical, which by the because a minor or

technical error

could well

affect the outcome.

And then it says, and that he did not

understand the rights at issue, which again is a necessary but not sufficient condition. Now, substantial substantial which where did They they used I say those -- we anything words, about but if

rights? rights

means what

just discussed,

I'd like your

view about, they

never talked about

substantial rights. MS. substantial -­ QUESTION: read? MS. MOSSMAN: QUESTION: We said this. Yes, but if -­ Well, didn't they say just what I MOSSMAN: They don't talk about

So why isn't it like summary reverse?

You say that. Well, it's -means it we -- we see that

MS. MOSSMAN: not minor or technical

has -- it

affected his

substantial rights, and they actually cite to Olano. QUESTION: affect substantial Oh, I see. Now, then Now, what does

rights mean?

we have

an error

here that's not minor or technical. MS. MOSSMAN: Correct, and -­

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QUESTION:

Now he, in

fact -- let's say

second

-- did not understand that he had a right to withdraw. MS. MOSSMAN: QUESTION: Correct.

Now, is that the end of the thing? No, they -- then -­

MS. MOSSMAN: QUESTION:

Ah, ah, where -- that's -- that's the it say that's not the

Where in this opinion does

end of the matter? MS. MOSSMAN: They -­ QUESTION: it say No, no, not the fourth prong. end of the Where Well, they do go to the fourth

that's not the

matter under the

third prong? You see, I could have a nontechnical matter.

MS. MOSSMAN: QUESTION: understanding, guilty anyway. MS. MOSSMAN: QUESTION:

Correct. affected my have pled

I could -- it could have might be that I

but it

would

Well, I think -­

That's what's worrying me. But -­ the most obvious case is where

MS. MOSSMAN: QUESTION:

And

the judge gives me the sentence I hoped for. MS. MOSSMAN: That is the obvious case, Justice

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Breyer, and that was Chan and they cite to that in Benitez where they got for. exactly the sentence that they bargained

Therefore, the error is not minor or technical. QUESTION: Oh, I'm sorry. A terribly minor,

terribly important error, terribly important. judge has his a whooping cough fit gives them

Indeed, the out of

and nothing comes the sentence he

mouth, but he

asks for.

Okay? MS. MOSSMAN: QUESTION: Yes.

What about that? Well, I think what's coupled here There And in has to be a

MS. MOSSMAN: is that it has

to be

knowing.

knowingness and a if the --

voluntariness.

that situation, possibly -­

if the defendant

knew that he was

that the sentence that he bargained for was -­ QUESTION: No. The -It was a he knew nothing. major error. He The just

defendant knew nothing. got what he asked for. MS. MOSSMAN:

We believe that is consistent.

He

-- he got what he -- if the sentence is less than he -- or got the sentence that he bargained for, where is the

error? QUESTION: Of course. But the -That's what's bothering

MS. MOSSMAN: QUESTION:

Of course.

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me. MS. MOSSMAN: QUESTION: did not understand Because we're -­

If in fact the major error -- and he it -made no difference to the

outcome, then, says to appeal it. And

the Government, he shouldn't that's the problem. As

be able the

I read

Ninth Circuit, they didn't make that last statement. MS. MOSSMAN: QUESTION: So if the -­

And they want an -- do you agree with an opportunity to go back and

them that they should have

to say, judge, we want this client also to be able to show it made no difference to the outcome? If you agree with

that, that's the end of the case I think. MS. MOSSMAN: Justice Breyer, if they -- if it's

a major rule 11 error, it would not be minor or technical. The analysis would -- would address that fact. QUESTION: Well, how -how do you know, just

from reading rule 11, which errors are minor and technical and which aren't? MS. MOSSMAN: rule 11 -­ QUESTION: How do you -how do you -- what's We don't believe all errors in

your standard for telling the difference? MS. MOSSMAN: Well, we think -- Congress has

enacted this and the full panoply of errors -­

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QUESTION: MS.

Panoply. -of can rule 11 advisements are minor or

MOSSMAN: none

and

them

be considered

technical -QUESTION: So --- in and of themselves. just a moment ago, is you said not minor or

MS. MOSSMAN: QUESTION: rule 11

But

violation

necessarily not

technical.

You say it's -- you -- I thought you intimated

some of the could be. MS. MOSSMAN: It's part of the analysis. I

think you have to complete the analysis. QUESTION: a rather Well, but I'm trying to How get you to define

specific question.

do you

minor or technical? MS. MOSSMAN: actually the Well, I think that was brought out committee notes. So, for the

advisory if the

instance, if

the --

judge failed

to advise

defendant that

if he lies on the stand, he'd be subjected That's considered not a minor or a minor or --

to perjury charges. that's considered

basically

technical

advisement. Also, if there element of the was -- the judge offense, but failed to cite the defendant that, that

demonstrated

that he specifically

knew about

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would not be considered minor or technical. If sentence, the judge misstates a -the maximum

but

the defendant lower, that

receives a was

sentence that's under the

substantially

considered

advisory committee notes basically -­ QUESTION: Did the -- did the advisory committee

purport to cover all possible minor or technical errors? MS. MOSSMAN: illustrative I believe. QUESTION: Examples. Yes. -- in assessing how weighty this that as the They were just giving -it was

MS. MOSSMAN: QUESTION: particular lapse is, far as I know, In

should we take into account defendant has never

this

said in

district court or trial.

on appeal that he indeed wants to go to

MS. MOSSMAN:

It's our

position that I wouldn't

be here if he didn't want his plea vacated. QUESTION: vacated is one thing. MS. MOSSMAN: QUESTION: Well, we -­ then you have -given that at But he -on -on -- the plea

Because

he has three priors, his the mandatory minimum. resentencing?

sentence -- he was sentenced How much better could he

do on a

So it's got to be he wants to go to a trial

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because do

you agree

that if we

-- if

we just

say new

sentencing, he couldn't do any better given -­ MS. position MOSSMAN: Justice Ginsburg, it's our

that this particular -- he expressed

defendant at

every single with the was

proceeding, he his counsel, court, exactly

his dissatisfaction letter to number 96, it was a

and the

respondent's second joint appendix,

which is

at the

-- could be

construed, because

pro se

filing, as a motion to withdraw. to look at his case anew. QUESTION: you. I But

He asked for new counsel

that's not the question

I asked I'd

asked did he

ever say at

any stage, judge,

like to have a trial. MS. conference on

I want to plead not guilty. Justice Ginsburg, after the

MOSSMAN:

the substitution

of hearing,

a sentencing

date was -- was set, and this particular defendant did not object to the -date was set, to a trial date -- excuse and this me -- a trial did not

particular defendant

object.

His attorney made some comments

about maybe it's

not necessary. QUESTION: to a setting of It's not -- one thing not to object

a trial date, but did this man ever say I

want to exercise my right to trial by jury? MS. MOSSMAN: at that His first statement to the court at no

substitution of -- of

counsel hearing was

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time have

I decided

to

go to

trial.

But

that's

not

conclusive.

He needed more -­ I thought he was stronger than that.

QUESTION:

I thought -- thought he had said at one point I don't want to go to trial. MS. MOSSMAN: definitively. He never said that specifically or

He said at no time have I decided not -­ But in any case, if he -- if -but

QUESTION:

his concern is that his substantial rights or -- have been violated. relevant. affected if lowest And the possible effect on the outcome is

And my he got

question is

how could the minimum?

outcome be He got the

the mandatory

sentence that the law allowed the judge to impose.

So unless he wants to go to trial, he isn't harmed by what happened. And so I'm asking if there's any stage where he

said, I want to go to trial. MS. requests court's MOSSMAN: This particular defendant were not se brought in -made

of his

attorney that He

to the

attention. We --

acted pro

in three

instances. he -- and

the record is actually void

to know if

he was actually silenced when he

wanted to ask

this -- the judge questions at his change of plea hearing. He said I was asked -- I wanted to ask the judge questions and I was silenced. So the record is actually void

specifically to answer your question.

We don't -­

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QUESTION: What was

What was -- what was the evidence

the evidence in What -­

against him?

what did the Government have? MS. MOSSMAN: Basically his own confession and

two co-defendants.

He was caught by -- basically the deal

went down through a confidential informant. QUESTION: Would -- would anybody in his right

mind have wanted to go to trial? MS. MOSSMAN: QUESTION: mandatory minimum? MS. MOSSMAN: In our opening brief, we In our opening brief -­ And risk getting more than the

completely briefed out the defense of entrapment, and this is brought out through the -the language of this

defendant through the three letters that were submitted to the court through his own pro se actions. he had a possible trial attorney. defense of entrapment. We believe that I was not his

So -­ But you -- you have looked at the

QUESTION: cases on entrapment.

MS. MOSSMAN: QUESTION:

Yes. a predisposition,

And if you've got

you don't have much of a prayer on a entrapment claim. QUESTION: And he had three the same priors. -same Were -­ line of

three priors

of

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commerce? MS. MOSSMAN: No, they were not. No, they -­

they were not, Justice Scalia. QUESTION: If -- if you were to prevail and he

were to have a trial and be convicted, could he get a more lengthy sentence or would that raise failure problems to of

vindictive

prosecution?

Would

accept

responsibility be a ground for an increase? MS. MOSSMAN: I don't think that would be fair.

He has a fundamental right to go to trial. QUESTION: That's not -Also, the -­ he get -if he

MS. MOSSMAN: QUESTION:

My question is can

gets a new trial, can he get an increased sentence? MS. MOSSMAN: It's possible, but -it's

possible, Your -- Justice Kennedy. QUESTION: prosecution problem? MS. MOSSMAN: he would not get the but that -doesn't make but the There possibly is. I mean, I -There's -there's no vindictive

acceptance of responsibility points, acceptance of responsibility line here because points of the

the -- the bottom

mandatory minimum. year mandatory often

So he still would be looking at a 10­ if to he went trial to trial, these and drug

minimum, even that go

defendants

on

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convictions do get the they have gone to

mandatory minimum, irregardless if -- and even irregardless if

trial or

they don't get the acceptance of responsibility points. QUESTION: question. Let me -let me ask you this

You argue for a subjective test in a context in the stand to say what a lot of his

which the defendant can't take understanding was. me. MS. MOSSMAN: all types of reasons. defendants. QUESTION: want a No, no. You Well,

That doesn't make

sense to

defendants plead guilty for

We don't know what's in the mind of

But you're saying want -- you want the question is

that you to defend

subjective test.

the Ninth

Circuit which said

whether or

not he knew

that he had this specific burden, that he was

waiving the specific right the minute he entered the plea. And you want a know that. -- a test to say that he didn't, in fact, That

And yet, we can't put him on the stand.

-- that seems to me an odd test. MS. MOSSMAN: QUESTION: system. MS. MOSSMAN: I think it's important to see if Well -­ odd -an odd way to run the

An

the -- this implicates the constitutional principles under the Due Process Clause. It has to be a knowing and

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voluntary plea.

That is

a subjective test.

That's

sort

of built into the rule 11 -­ QUESTION: -didn't find But the Ninth Circuit didn't plea was involuntary follow in a

that

his

constitutional sense. MS. Justice. -the MOSSMAN: Excuse me, Chief -Mr. Chief They not

They did actual

under the fourth prong of Olano. would have been he did

citation

understand

the -- the consequences

of his plea, which is

therefore not voluntary. QUESTION: Did -did they say it was a

constitutionally invalid plea? MS. MOSSMAN: QUESTION: questions by several you don't They cited to Graibe. Ms. Mossman, you've been asked and I'm

different members

of the Court

seem to really respond

to the questions.

asking you a very specific question now. MS. MOSSMAN: Yes, Your Honor. They cited to

Graibe with cites to the Constitution. QUESTION: I'm rather confused because are -­ we've

where -- there -- there been discussing.

are two kinds of questions

One is whether what he withdrawn

in fact, if he had been to be plea. told, he That's about

told specifically, would then have

was supposed his guilty

question one.

And most

of what we've been talking

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is that. But I thought we're actually here to ask a

different question and the different question is I thought the Ninth Circuit -- and I did think that from reading its opinion -said what we've just been discussing has

nothing to do with the matter. MS. MOSSMAN: QUESTION: to show is that Yes. that the person has Now,

All that -- all

he didn't

understand his rights.

what do you think about that question? MS. MOSSMAN: QUESTION: clear. I think, Justice Breyer -­ -- it's absolutely

So let's assume

They can come in

with 52 bishops who are prepared everything perfectly, But

to swear that

if he had understood

he nonetheless would have gone ahead and pled guilty. it's also clear he did not understand his rights. MS. MOSSMAN: QUESTION: Yes.

Okay?

What's supposed to happen? If he -- is he alleging a rule 11

MS. MOSSMAN: violation? QUESTION: the judge if I

Oh, there --

look, what happened was

never told him that you're stuck with your plea you think you're It's going to get. 11 he was

don't give you what him that.

He never told supposed to.

clear in rule

And now, in addition, we know for

sure that

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this person sure it

didn't understand that. not one whit of

But we also know for to his plea.

made

difference

What's supposed to happen? MS. believe MOSSMAN: talking Justice Breyer, about a this is -- I a

you're

motivated

pleader,

pleader that was -QUESTION: this case. MS. MOSSMAN: QUESTION: the questions This case. I think as and in it's presented in that was I'm talking what I think is about

Yes.

presented

the opinion

written by the Ninth Circuit. you could explain to me if you think

Now, I might be

wrong and

why I'm not. might be

But -- but in any this case that's

case,

that

presented here,

I -- in the Ninth Circuit opinion, I'd -­

I'd like an answer or your best answer. MS. MOSSMAN: question, it's justice -a the -I -- Justice, if I can answer your a defendant that's caught in and he -the he

criminal justice he doesn't

labyrinth

doesn't understand, he's not

understand the

language,

confident in his counsel, and he believes he can Is that correct? Yes. But in fact, we know he never

withdraw his plea. QUESTION: would have.

We know it for sure. But he -- he should -­

MS. MOSSMAN:

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QUESTION: relations -(Laughter.) QUESTION:

He's written

secret letters

to his

-- and whatever.

Do it in any

sort

you want, but -- but I mean, that's -- that's a little bit of a technical matter the Ninth Circuit here. But I did think in reading

opinion and

reading

the Government's

brief, that that's what they're could be

worried about, that there

cases where he does not understand the nature of

that rule 11 right, but nonetheless it makes no difference to his decision to plead guilty. So that -I agree. that's a as I bit of the a technical point I

But

read

Ninth Circuit,

thought, well, you could

that's what's going on in this case.

Now,

explain to me, if you want, that I'm completely

out to lunch, so to speak. MS. MOSSMAN: motivated to Well, Justice Breyer, if he was

plead guilty and there

was an error

in the

rule 11 colloquy and he had the opportunity to replead, he could replead agreement. He to another type of plea agreement, a C plea could ask for different provisions within

that -- that plea agreement, for instance, less supervised release. He could ask for a type C plea agreement. QUESTION: Why -why would they give him a

better deal the second time

around?

I mean, they'd

say,

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you know,

okay, we forgot to

tell you that

you couldn't And Why

withdraw it.

We now tell you you can't withdraw it. offered you last time.

we offer you the same deal we

-- why would he get a better deal? MS. MOSSMAN: Well, he would -if he's

motivated to plea -­ QUESTION: In fact, they might -- they might be him

mad at him for having backed as good a deal.

out and -- and not give

But I can't imagine that he'd -- he'd get

a better deal the second time around. MS. MOSSMAN: have an opportunity Justice Scalia, I believe he would to renegotiate or he could be

repleading to the -- and have confidence in the process. QUESTION: leverage does he What leverage does he have? What

have when he's

faced with

a mandatory what he's for this

minimum that got? I --

he can't I can't

escape from --

and that's describe

could you

defendant what that better deal would be? MS. could be MOSSMAN: Justice Ginsburg, it possibly

less time on supervised release, less time -- or

-- or actually a type C plea agreement instead of the type plea agreement. You're correct in saying they might not

offer him that type, but 95 percent of criminal -- Federal criminal convictions go by way of guilty pleas. So

they're going to offer him something.

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QUESTION: the mandatory

But how could -- could he escape from any way other than what they

minimum in

thought might work here, this so-called safety valve? MS. MOSSMAN: the bottom line then. QUESTION: And that's what he got, and that's The mandatory minimum just becomes

why I can't understand any better deal that this defendant might have received. MS. MOSSMAN: Well, Justice Ginsburg, he could

have confidence in the plea proceeding was given the full panoply of his -­ QUESTION: You'd do

if it was -- if he

it all over again

with the it

same bottom line, but he's the second time? MS. MOSSMAN:

going to feel better about

Possibly, yes.

I mean, maybe that

means something to this motivated pleader. QUESTION: Well, I'd like to ask you a question

that I asked Mr. Himmelfarb and that it seemed puzzling to me that the safety valve which everyone a sentence below the mandatory hoped would allow work

minimum could never

from day one because he had two additional prior offenses. Now, if anyone knew about those priors, which were under a different name, which is why they weren't found

immediately, certainly the defendant knew. MS. MOSSMAN: Yes, Justice Ginsburg, the

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defendant knew,

but it was confirmed on the record by the that he actually fully This was brought disclosed to out in the

district court judge his attorney

his priors.

record at the sentencing hearing, this. And so to talk about -­ QUESTION:

and the judge confirmed

So his -- his attorney

knew that he

was disqualified for this plea? MS. MOSSMAN: defendant attorney. said I I This -it was confirmed. everything to on. The my The

completely disclosed

-- I don't understand what's going me.

points weren't explained to explained to me. This

The safety valve

wasn't

was brought out in the

sentencing

transcript that -- that his priors were confirmed. QUESTION: what -MS. MOSSMAN: QUESTION: MS. He exposed -­ That they were confirmed, but at

-- at what point in time? He exposed his prior convictions

MOSSMAN:

to his attorney. to confusion,

This is what brought this -- Mr. Benitez this was articulated in -in the

and

sentencing transcript. QUESTION: MS. Which we don't have or do we have it? Yes, you do. The sentencing

MOSSMAN:

transcript is at joint appendix 104. QUESTION: And could -could you point to that

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place where it says that

before he made this deal,

which I

invoked the safety valve, he have three -­ MS. MOSSMAN: at page 109.

had told his counsel that

It's at

-- Justice Ginsburg, it's

If I may read for the Court. Yes. The Defendant: I never felt that should have

QUESTION:

MS. MOSSMAN: I had

the proper representation,

the way it

been in my case. From the beginning, about the points I never had any knowledge valve, or I

of responsibility, the safety I honestly, from

anything like that.

the beginning,

accepted through my -- responsibility through my attorney, but he never paid any attention to me, what I had told him about the problem that I had. I told him from the the

beginning that I had a program. that

problem, that I was attending he told me that I --

And at the end,

allegedly

I had never told him, that

I had never notified him

of it. I never hid anything in my case about the things that I have done. Everything I said -I have said --

everything I said -- I have said has always been the truth and the reasons why I did it. another chance. to meet And I have always asked for opportunity

I've always asked him for an

with the government and he

never wanted me to do

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that. QUESTION: I don't see where he said, I told my

lawyer that I had three prior convictions. MS. Ginsburg, that MOSSMAN: He's trying to say, Justice from my

I never hid anything

and then --

attorney about this case. And then him. QUESTION: Well, that's all right. I don't want the -- the judge goes on to question

to intrude on -- on your time. MS. MOSSMAN: 110. So what you're -the Court: So what you're It's -- I -- I think it's on page

indicating you believe everyone history.

knew about your

criminal

Is that what you're saying? The Defendant: Well, from the very beginning

when he went -- when he came him. The Court: So what

to see me, I explained it to

I understand. to me is that you

you're indicating

believe from the beginning you had a criminal record. Is that right? Yes.

disclosed that you had

The Defendant: So he -­ QUESTION:

And the

trial judge

told him,

you

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know, if you don't qualify, I might give you 10 years. you understand that? And he says, yes. Yes. And he says, knowing you

Do

MS. MOSSMAN: QUESTION: mandatory minimum, I

have a Do you

have to give you

10 years.

still want to go forward with your plea? MS. MOSSMAN: QUESTION: I mean -- go ahead. MS. MOSSMAN:

He says, yes.

Yes, correct, but this -­ that -­

So it's pretty hard to argue

Justice Breyer, but this defendant did not know that he could not

-- it's not clear that he withdraw his common sense plea.

He was under the impression, which is if -- if he doesn't he could

impression, that he -that he --

get the sentence

that he asked for,

withdraw his plea. QUESTION: that when the thing Well, how -in the plea how could he have had was

agreement itself

explained to him in Spanish saying that he couldn't? MS. MOSSMAN: is Mr. Chief Justice, our contention

that the -- the fact that the plea agreement wasn't in his attorney couldn't speak

Spanish is fatal here because Spanish. QUESTION: there. MS. MOSSMAN:

Well, but

there was

an interpreter

But his

-- his attorney didn't -­

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if his attorney

couldn't speak

Spanish, he doesn't

know

exactly what the interpreter is saying. QUESTION: speak English. MS. MOSSMAN: The -well, there was a Well, the interpreter can presumably

contention here between

the defendant and his

counsel in

numerous instances before the court. court that he

He expressed to the attorney and

couldn't communicate with his

the prosecution knew about this. the case as -- under paralysis,

They also characterized and yet they still gave

this defendant -­ QUESTION: This is new to me. I -- I didn't see

any -- any indication in your briefs or in the record that he claims he was never told by the interpreter. it was -- I thought it was common ground the I thought that the plea

interpreter

had

correctly

explained

written

agreement to him.

You're now saying that he contends that

he was deceived as to the meaning of the plea agreement? MS. MOSSMAN: No, Justice Scalia, we're not

contending that,

but we agree with the Ninth Circuit that in -- in this case is

the plea agreement in and of itself not conclusive of understanding. QUESTION: Because?

Because?

Because the plea

agreement was read to him in Spanish. MS. MOSSMAN:

Is that right?

That's part of it, Justice Breyer,

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yes. QUESTION: That is right. Yes, but also -­ The plea -- so he the words, you hears cannot they Is

MS. MOSSMAN: QUESTION: in Spanish someone

All right. read to him

withdraw your plea don't accept it. that right?

agreement --

cannot withdraw if this case.

And that's conceded in

MS. MOSSMAN: QUESTION: Then

Yes, it -- this was -­

Okay. the judge tells him, in

afterwards

addition, if -- has anyone explained to you that -- do you understand that if you -- that if you don't Yes. qualify for

the safety valve, you go for 10 years.

Has anyone promised you you will qualify for the safety valve? No. Yes.

So you realize you could get 10 years. All right? Knowing that, Yes. -Justice

you still want to go

ahead with your guilty plea? MS. MOSSMAN:

Our

Breyer,

our

position is consistent with the Ninth under an expectation, a highly --

Circuit that he was a highly -high

expectation that he and like read or

would -- would get

the safety valve, incentive to the plea

the Ninth Circuit said, double check the

he had no

provisions within

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agreement himself. QUESTION: was that this was

And this -- this -­ I thought a rather one -- one of your points

long agreement and

this was

paragraph 19. MS. MOSSMAN: going to be the plea Yes, Justice This Ginsburg, that was

my next point.

provision was buried in know, because his If he -- if that

agreement

and one

doesn't

counsel couldn't the -- if

-- doesn't speak Spanish.

the interpreter

inadvertently misstated

provision -­ QUESTION: I -I didn't know that you were

claiming that this hadn't been an accurate translation. MS. MOSSMAN: QUESTION: it was a follow. MS. MOSSMAN: opposition we claimed In our -- Justice Ginsburg, in our writ of certiorari, we -­ that -not that we have of no the We -­

I thought your -- your point was that having a written copy to

lot to absorb without

to the petition for that that point, was

certainty

because

there

a transcript

Spanish interpretation. QUESTION: Circuit? MS. MOSSMAN: QUESTION: Yes, Mr. Chief Justice. Did the Ninth -- did the opinion Did you claim that before the Ninth

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reflect that at all in the Ninth Circuit? MS. MOSSMAN: QUESTION: Yes. you said that it was a

That -- that

not a correct translation? MS. MOSSMAN: QUESTION: They -- yes -­

Did it or did it not? Yes.

MS. MOSSMAN: QUESTION: MS.

Whereabouts? I can read -- excuse me, if I may

MOSSMAN:

correct myself, Mr. Chief Justice. QUESTION: Yes, please do. They didn't say that it was not a but they did hold it as not

MS. MOSSMAN: correct translation,

conclusive.

And they state

that in their

decision when

they say that Mr. -QUESTION: Well, finish. Go ahead. Finish the

rest of your argument. MS. MOSSMAN: QUESTION: Just move on?

Yes, please. Okay. to say that the Government's test, in

MS. MOSSMAN: I'd burden is --

just like

the Government's

test, the prejudice

the but-for test, is asking time and to prove

this defendant to go back It's not

a counter-factual.

in this

record, that if not for the error, he would not

have pled

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guilty. it

That's a very heavy burden here. the knowing

And we believe and makes And

emasculates

requirements

awareness of the consequences of the plea irrelevant.

the -- a defendant, if he does not understand the scope of the prosecution's promise, he cannot evaluate the risks

inherent in the type of plea agreement that he's We think that's -critical. The Ninth

signing.

Circuit agreed that of plea into is

that the rule

11(e)(2) warning

and the type

agreement that highly critical defendant

this particular defendant entered

and affords a high degree of risk to this it couldn't into withdraw. an agreement And it's

because to

counterintuitive

enter

when you that

understand that one you can't.

party could

withdraw, to think

That's why the that this warning be

Congress has asked -expressly made in the

has asked rule 11

colloquy, that if we -- if I -recommendation. The judge has

I -- I'm not bound by the said I'm not bound by the

recommendations, but you cannot withdraw if I you the sentence that

do not give a

you bargained for because that's I

counterintuitive understanding.

believe Justice Scalia

was getting at this when he talked to Mr. Himmelfarb. And in closing, I'd just should adhere Government's like to say this Court and reject the highly

to the Olano prejudice test invitation to adopt a

but-for,

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prejudiced, highly burden line ruling test.

-- excuse

me -- strict

bright

And this Court should affirm the Ninth

Circuit's result, but if they do not -­ QUESTION: Thank you, Ms. Mossman.

Mr. Himmelfarb, you have 5 minutes remaining. REBUTTAL ARGUMENT OF DAN HIMMELFARB ON BEHALF OF THE PETITIONER MR. HIMMELFARB: Unless there are further

questions, we'll waive rebuttal. QUESTION: think that Well, I do have a question. is that he I -- I said in

her strongest point there

the later sentencing hearing that he told his lawyer about the priors. Now, if that's true, the lawyer would have

known immediately he couldn't qualify for the safety valve and would have told the judge him this whole agreement is power a joke you

because

doesn't

have the

to give

anything less than 10 years. So if -- if that's true, she must have some kind of a claim. MR. HIMMELFARB: He may have an ineffective

assistance of counsel claim -­ QUESTION: MR. would be -An ineffective assistance claim. -- Justice to Breyer, which raise in a he

HIMMELFARB: which he

would have

2255 used

proceeding.

But the plain

error rule should not be

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to deal with that type of problem.
CHIEF Himmelfarb.
The case is submitted.
(Whereupon, at 11:02 a.m., the case in the
JUSTICE REHNQUIST: Thank you, Mr.

above-entitled matter was submitted.)

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