very nice person but i have no choice but to go both barrels on what happened to his kid in the district court what happened only the government could think that they could get away with having a contract executed in this manner when the government  mr kid they've been investigating this conspiracy they knew what mischance role us miss kid delivered one ounce of cocaine based on one occasion that makes for a career now we all know from case law from experience that careers generally are very involved in the conspiracy they generally can't cooperate against the higher ups everyone knows this it's not even worth arguing so when the government neath with miss kid and got information fro information that put miss kid at risk they had to know they had and that the information they would get would largely not be against the higher ups in the conspiracy for two reasons the theoretical reason which is we words it sounds to me like your argument so far just speculation well it's not but the thing is i don't have to prove that fifth were there not a plea agreement that would be correct if there's no plea agreement then i have showed lot of bad faith but there's a  california in every plea agreement as in every contract there's a covenant of good faith and fair dealing and that applies to the government so all this talk of burden right to show bad faith that they violated that covenant i disagree because it's i they took all that information and unless the government's saying at that time they didn't know what miscued would offer if you're making edition of the government was just a babe in the woods and this miss kid might have a secret where osama is hiding it just it's not credible for the government to say we went in there who knew what this kid was would offer and this is a tender finding conspiracy with a confidential informant for the only real mistake here is that the district court didn't give you an evidentiary hearing for you to show or make a substantial putting her in substantial risk all the while it's i mean i don't have any exact evidence but the circumstances largely suggest that the government had to know that when this kid was giving them well  government said well we didn't we don't have to make a motion to get under the statutory maximum if we make our five k recommendation we don't have to make the motions of the guideline range as we interpret it in this plea agreement is sixteen months so the defendant got the benefit of going from us is terrible from a perspective miss kid there is nothing that she got in this plea agreement that she would not have gotten simply by cleaning straight up you know the government three point credit for acknowledgment if you plead straight up she gets that i mean it's not the case that she just gets up from the government by pleading guilty and the guidelines cooperate with respect to your own offense and what you know about it and there's no evidence that she did anything other than that in fact post russia an extensive statement from the government could have just sat down on this kid with no agreement and say hey look well listen  what you have to say and then this court could say in very good faith the only thing we can review for is bad faith but once the government decides hey we're going to reduce this to a plea agreement they have undertaken the responsibility of executing that plea agreement that obligations but there's a certain expectation and advantage that the defendant gets as well isn't that true it's true your honor but it's a one lady wrote against a superhighway we're talking about the united states government the most question she got nothing out of this agreement is an illusory contract well i mean i'm really depends on how you want to come out on the question of what the government knew or had to know going into this proffer session because that's really what it comes down to case is that before the district court imposed a stash for a minimum of ten years the first ten or twelve pages of the twenty page sentencing transcripts are devoted to upgrading the lawyer for not doing his job and if you look at the sentencing memo it's atrocious there's actually a sentence in there that says insert facts supporting claim here i mean this is a ten year case and this guy just mailed in it and what's happening this kid i mean she's getting it on on all sides she has a lawyer that shoppers are through without looking out for anything she gives up her permission nobody are false without them her lawyer doesn't do a job at sentencing i mean this is a young woman who had one prior guidelines except for the substantial assistance departure right sorta she got didn't get hired guideline for conspiracy for additional acts you know for example they could have gone to trial and shown conspiracy this is a wheel and suppose there's no way that she was responsible for the other folks i mean she's just she's a courier she's going out and doing to leverage there's no way she's involved in the higher ups and i just it's not tenable and what's perhaps most distressing is that the government in the case the ninth circuit has already found the government reached a plea agreement in this particular cordyline arts and on behalf of the united states and before i turn to this three cases that the court has asked the parties to address i did want to correct one factual issue in her plea agreement the defendant actually admitted to two different  incidents which involve a total of three ounces or approximately five grams of crack cocaine and those three ounces are eighty five grams or what subjected her to the ten year mandatory minimum penalties that was based on her ignition as part of her that quantity now the issue in this case i think is what a fact the plea agreement has on the analysis that the court makes and whether weight applies where this please  illegal motivation ethnicity gender race etc nor can you act in bad faith in other words we don't intend that all to give even a look at what this defend purpose and in addressing the evidence here i would know that the government argued under floors high on that this issue really was not properly framed in a district court and for that reason the factual record hasn't been developed and the court shouldn't reach this present claim but on the record that we have there is no evidence of bad faith for two reasons first of all the police remain in this case unlike tell us when tape is crystal clear there is no ambiguity in this agreement the would be wouldn't be fair to remand it to develop the record you are and there's always that possibility in every case but wait has set up a threshold that the defendant has to me if you look very narrowly at the cooperation provisions the one of the purposes of these cooperation agreements is to lay out the understanding is on both sides and what the defendant gets out of it is the government's agreement not to use this information against the defendant a at sentencing unless certain exceptions apply so the defendant always gets something out of our office his cooperation agreement because the defendant gets some promises not to use that information circuit certain circumstances which wouldn't apply if there was no  moreover there were a number of other benefits that the defendant got out of this agreement the government agreed to recommend three levels for acceptance and one of the defendant was going to get better not she bargained for the government's recommendation for that unified position which this court has recognized is a valid bargaining area and make any other promise on recommendations well no but there was for example a stipulation to a level thirty two based on the eighty five grams there w stipulation that neither party would seek other it just means departures or specific offense characteristics so the defendant did get some benefit in terms of what the government would recommend as the sentencing guideline range there was a limited need to all appeal waivers so there were a number of things that the defendant got out of this plea agreement both in terms simply of cooperation but in general in terms of her sentence so i don't think it can be said that you know the defendant got nothing and certainly that was a loser  e what we have with respect to whether it's a little curious about what the standard years in order to get an evidentiary hearing what is the standard and the did they not meet that standard mandatorily together very well i would submit that the standard that i allegations were eight that the government made some oral promise that it would make a five k motion and there's no support for that in the record there was a plea colloquy which the government the defendant and the prosecutor also stated that there were no other oral agreements or other periods beside the plea agreement and the second sort of statement was that the defendant had an expectation or understanding that the government would investigate and make a motion based on this there are you know if he had an expectation the government would investigate the other information that she provided again that is directly contrary to the  developed in the district court and it was for the purpose of the government considering or evaluating the assistance that had been given i am not sure exactly what showing was made in requesting that but you know there is an assumption on the part of the defense that it was to explore this other material that is not necessarily supported in the the record yes at the time that this defendant pled guilty and made her proffer there were many defendants who were still going to trial including the defendant paige who is the one that kid stipulated in her plea agreement she had dealt with so at the time that she made her proffer and pled guilty there was a defendant going to trial against him she was in a position to offer testimony i believe that is the state of the record it is not entirely clear from the docket sheet and that fact was not was not developed in the district court but the pre sentence report which was prepared and i believe it was march of two thousand and three so about five or six months after she pled guilty indicates in the cover sheet that most of the defendants including defendant paige were scheduled to go to trial i believe it was like the following february so  that the only information she had related to these other defendants i don't think that that's factual support for that in the record and i certainly don't think that there's a showing of bad faith because at the time that sentencing finally came around the government's then we haven't gotten any substantial assistance because she can't help us with the defendants who are left and we elected not to pursue her information which we reserve the right to do specifically in the plea agreement and this court  in providing all sorts of information which he hears about other kids i don't think that the plea agreement here requires her to give information about this case it says if the defendant provides information in the investigation or prosecution of another individuals so  government said is we evaluated the other information and we elected not to pursue it which is within our sole discretion and which we made clear in the plea agreement and we are twenty four that nothing in this agreement requires the government or any law enforcement agenc prosecutor said that the prosecutor also say and we'll acted not to pursue the other information so what's left is the information in this case and she cannot and has not provided any useful assistance against the defendants going to trial in this case talk about bad faith is missing the boat entirely except that with you under normal contract law you have the burden shoebridge agree no question about that don't you doesn't that i mean they knew this going i there's just no way the government can make a credible claim that they thought miss kid was going to come in and make all these claims about the other defense in the case we know it's theoretically wrong we know it's wrong based because they have somebody in with the reach is this when c g kid entries in this plea agreement she had a right to expect that the government would deal with her in good faith that method the government would evaluate her information and if it was a good give her the benefit and i'll tell you this your honors i've been doing this for ten years if i handle this case in the district court and she didn't get a five k recommendation based on what she did i would be going to the supervisor and i would get the five k i've talked to a bunch of people of office and don't let this kid spend th extra time in question just because she had a bad lawyer because that's what ultimately is going on now to the fact that mr dade didn't correctly articulate his position in the district court and it's sad and it's unfortunate that miss kids shouldn't have to pay for remanded to the submitted with decision and we will hear arguments in foster and i believe when versus the chase an