students who are here if they're here to see some kind of elephant argument i'm not the example that they should be looking at why don't you just tell us why your claim should prevail my client should prevail your honor because this is about a motion to recuse the honorable chief judge when male who is the trial judge who is sitting on my client's case she filed that motion considerable time after the case started and there have been a number of delays and i'm sure that one of the main concerns is that the government is going to talk about today is the time when that's but i want to talk with the whatever time i used in the first part of my argument here about the factors that should be considered  emphasizing to the court again that this is a reasonable person test and the reason my client should prevail i believe is that when applying that reasonable person test to the determination of whether refusal should be granted or not i think the facts in this case would warrant the recusal and i believe that you know looking at the judge's written order and that's found in the excerpts of record if one sixteen through one twenty there are a number of perspective of the reasonable person the judge talked about for example the greenspan case which was the tenth circuit the situation i think was out of new mexico that was interesting because  there is adequate explanation for the delay and it is far as my pardon for this is my when i stay on the nation for the like when i came on in roughly september which was roughly three months after the the la threat of june of two thousand and four we entered into a very sophisticated police plea bargain and i don't want to go into all the details of after we bargain now because the time constraints that it was an eleven c one plea agreement that obviously was binding on the court and we intended from september on that that was going to be the purpose of aptly barking or please greenman i'm sorry and and so we knew that the judge's discretion was going to be severely restricted based upon that my client didn't feel like there was a need to go ahead with a recuse and what you're saying is you didn't accuse him until the last card you didn't see fit to recuse the judge until after you appeared before him and got a disappointing ruling that's correct was in that judge shopping and i just would judge when bill said welsh i think that's that's obviously the way judge windmill looked at it too but i don't believe that it was your honor i don't believe that it was judge shopping because it wasn't until there but you know that the the one side of that argument is well we are reacting to the denial of the police greenmail we now believe that because he rejected the plea agreement that that he's no longer able to give us a fair trial i don't think that the record supports that notion that all your honor i think that the record supports that this was the employees two years previously and at one point yet that the reason it's in these letters was to move from state to federal custody well that's interesting to your honor and i start with a yes or no yes that is correct that is correct you have an explanation i do  entire period of time correct then he rejects the plea agreement and a month or so later the motion to recuse correct is filed in it but your question i think was whether or state custody to federal custody to in effect a transfer the second thing is no motion made during the period of time and the third thing is it's made them virtually right after you receive a disappointing  ruling and those are the bases that the judge relied upon in denying what's wrong with those basic i think those bases don't come under the reasonable person test and i want to respond first of all to the issue that the threat wasn't serious if the threat isn't serious intent to harm is an element of the statute your honor my client pled guilty to that and i think that if if if he's not serious then how can he be convicted of those counts so i think that warrants some consideration against that notion but all of those factors that you're talking about i think those are facts that are found by the judge somehow independently of the record i don't think that those are facts that really should be considered by the reasonable person in that objective standard that we're looking at here and that's the problem that i have with this case from the very beginning and from the judge's findings he's making determinations that it wasn't it wasn't a serious threat was that fact come from in the record he's making finding that the motion was not filed in a timely fashion but i think it goes one step further than that your honor with regard to timeliness and as the court mention it was clear from the record that in fact what happened is the of threatening letters i believe your honor were set or sent in june of two thousand and four the motion for refusal wasn't filed until august of two thousand and five just approximately thirty days after the denial of or the rejection of the police rayment but beyond that your honor what's telling about that because i think that suggests some way that there may have been form shopping that we should apply a reasonable person standard that in essence it does not matter whether or not the judge had any actual bias or had any feeling of an actual threat only consideration in this court should give is what a reasonable person would perceive was happening but then counsel wants to say and see there potentially was bias because the judge rejected the  agreement one aston's your honor the fact that there were ongoing plea agreements and that the plea agreement was rejected in july of two thousand and five didn't wouldn't have changed the fact that an outside observer observing the proceedings uncertain decision in nettles that the reasoning behind recuse was a somewhat telling there and in fact in terms of exercising his discretion i think judge when mail referred to those decisions and consider those decision of the question before us is whether the judge is impartiality might reasonably be questioned why doesn't why don't those circumstances give rise to an inference that you know someone might question the impartiality of the judge since the defendant is threatening to blow the place up regard to the facts of this case i think given your scenario i might have to concede but the facts are a little more complicated with regard to the fact is this case for example first of all there's no real clear record as to what the perceived or what the identify threat was did the record square the judge will never receive the letter the letter specifically addressed to judge when mail was m letter had been received he was reminded that a year previously upon motion of the government he entered an order restricting the defender from sending out any letters but went further  is correct and he even went further your honor and pointed out that if there had been any kind of identify a bill threat to him it was his practice that those letters would go to the u s marshal service and he'd requested that he only be told when the marshal service felt like there was any possibility of any real threat here is family and he went on in the record to say he was never notified by the marshal service that there was any threat that he should feel directly who after the order was at that point the judge assigned to the case when the second set of letters was sent out in june of two thousand and four of monk's other federal agencies that letters were sent to judge george received a letter and actually received it in chambers and apparently based on the record opened it and went and its attempt was made to send a letter to a judge when will the ultimate conclusion of the strickland court  plan was uncovered to to do harm where there's a specific threat to the to a judge or anything temp to specifically threaten the judges such as mr home did here and secondly where is tricom points out a defendant is making multiple threats to multiple judges who potentially could sit in a case that gives the strong inference that the defendant is attempting to essentially form shop or secrets useful we have both of th both of those factors come into play and go right to the issue with regard to strictly and quite honestly your honor or i'm sorry correction to greenspan i'm sorry i said strike one and i apologize your honor i misconstrued bubble just some very brief comments in response to mr because arguments first of all as to the issue of awareness and i think judge silverman has already pointed out that the judge was aware at least to some degree from the feedings themselves that chief judge when mail did have some awareness of the threats of both the original indictment in four indictments in this case and then the subsequent motion to modify the conditions of the pensions for a reference for sufficiently the two different threats that we're talking about but more importantly as to the issue of awareness i don't think whether the judge himself was aware of the threats is an issue and i think that's specifically spelled out by the supreme court in the littleton berg case and i've addressed that in my brief so i don't think that awareness and and that's one of the problems that i have with the judge's ruling here he kept talking so much while i was only in that courthouse thirty to forty percent of the time i wasn't there at the specific time  i submit your honor that his awareness of the threats is not an issue in this case i think that the government has already conceded even the only argument on the motion to recuse that itself was sufficient to cause recusal the government conceded by telling the court after that argument that it's the civically did not indict on that specific threat because of the possibility and the almost certainty that it would