we certainly think both arguments strong we think men damus is a stronger argument if that's the way you want to look at it and that's now that's because men gain this asks the court to consider to be clear and unmistakable doesn't it does have to be clear how can you say it's clear and unmistakable if it's a novel issue well your honor the standard for whether an error is clear and on just beautiful is not whether i sign such an agreement i don't understand what will your honor the fact is that the court should take into account derived from two different sources the the first i would point the court to opinion in the in read united states case from two thousand and seven in which he said prosecutorial discretion should be reviewed only to determine whether there's been a violation of the constitution or some other source of proper positive law trial clock because you're trying to spend the clock so we want to ask questions what's an example of a situation in which the court could disapprove based on of asian food one example would be if the record makes abundantly clear that the parties were entering into the agreement in order to restart a trial some time down the road and so if it was clear just based on the record of it that was put before the court that the parties did not actually intend to enter into the agreement in order to allow the defendant to demonstrate if the conduct and what why a year in vision a situation in which both parties actually would collude to want to delay the trial date because what's the scenario in which that might arise well your honor certainly we don't believe that this is something that would happen very often if at all but it's not uncommon for congress to put in jail states of this type of nature so for example under will forty eight the government may only dismiss an information or indictment dismiss an information or indictment and so the same type of logic applies here certainly that the district court's role is limited it's an important but limited point and so the fact that the scenario that i posed would not arise very often i don't think that's correct as for that part of the test for what the district court may review now i suppose a message to ation you'd say you'd still have an agreement that hypothesizes certain conditions that the defendant would have to satisfy that's correct and that's why we do believe that under this problem the court's review would be deferential and the court would assume that the prosecutors had acted regularly as the supreme court sat in you know hartman versus more and why cases some of the factors the courts of looked into in the review process it was it was we before we go the other problem which is which i take it as illegal for some other reason on this one so if the purpose is to make sure that under the words the statute in your view is for the purpose of allowing the defende good conduct so suppose that the parties come together and say here's my six conditions that the defendant has to meet and then the district judge looks at it and says i actually don't think those conditions suffice because it doesn't really show good behavior i mean does a really need conditions i'm not saying that you have to bring different charges and not mean that you have to actually pursue a prosecution to the full extent at all i'm not saying that you need to pursue a particular sentence i'm just talking about these particular conditions and i think these conditions are just sort of a need so you need to go back is growing more and come up with regularity and so there wouldn't be the kind of intrusive review that the district court here furthermore i mean the second point i would just make is that there's no suggestion on the record in this case that anything of that nature any inference of that nature was drawn right to the district court i said at the very beginning there could be facts under which such a situation would arise and so i'm not saying that there would be a per se rule that you could not make such an inference however i think on the record in this case such an inference is would not be permissible and was not in fact wrong by the district judge so your answer to the presiding judge this question is under his hypothetical very district judge could refuse to approve yes or prosecution and perhaps list one or two additional sentences such as we expect the district court sorry the defendant to show that he's a good person within the next eighteen months conceivably under those circumstances there would be scope for district court review but  that's a very different case i guess the question would be that there are some things that you could say are just outside the statute because the considerations that were taken into account by the district judge are just not ones that the statute in vision is you could also say that although these types of considerations and one are ones that the statute divisions is just an abuse of discretion in the circumstances to fail to give effect to the d p a so if you thought the line was i'm not saying it as i mean you might think it's more restrictive than this but if you thought that the line was between  scrutiny of the conditions to show good behavior versus scrutiny about what charges might or might not have been rock and you could say that well as long as about the conditions it's within the statute but there's going to be a very limited scope of review even as to those conditions and anything beyond what some of the opinions you cited in your in your briefing presupposes would forgit of abuse of discretion territory these that's one possible way to look at it i suppose your honor if i'm understanding you correctly i think that's the way that we've articulated the test in this case and what we would like to say is that as an initial matter it's legal error for the the district court to determine that the terms and conditions of a preferred prosecution agreement are too lenient to the defendant particularly when there's no showing that the there's absolutely nothing in the record that would indicate that the deferred prosecution agreement was somehow intended to evade the limits of the speedy trial live but even if one were to assume that the district cour had some sort of role in assessing the terms i think that's what you were suggesting in your question that even if they have some sort of role to address the terms of an agreement that this report went well beyond that in this case by suggesting that the government should have prosecuted individual corporate officers the government abused its prosecutorial discretion statements of that nature that is something that's beyond what the district court could have down and finally i you know we  this report went beyond the scope of the charges in this case for some of the reasons that we suggest in our reply brief where the district or just made certain assumptions about the government's legal position that are not reflected in the record i think your honor agreement but what there hasn't been his discussion is that there is a pending charge and information in a district court that was only file as a part of fox's services or alliance on the agreement with the united states government that it would have finality and had to be approved by the court and that is looking at if there's any and disha of the parties motion for the court for its exclusion of time of the speedy trial act to see whether the d p a the agreement that actually the the court should rely upon to then there's always the risk whenever you file a deep whenever you asked ready to get a defending the government go in together ask ready yet and there may be information but always some risk that it may be disapproved so there is your honor but if you look at if you to divert to that but i guess have i guess i want i'm saying is you're making it sound like there's a difference in kind when it seems like as if it's a difference in degree which we're talking about degrees of risk that you of course you it you enter into an information that that admits certain things but there's always there's always some risk that the court is not going to approve of the deal and it's already done for josh it has actually has never happened before and that's part of the calculation that the company makes and other companies and i'm still trying to figure out  r because it had a right to expect that for a prosecution period would be would be not clear to me it's not clear to me whether this issue is removed from the merits i will confuse about that what are you talking about is the merits the m lightly however in this circumstance and particularly given the representation of the governing council both in its briefing and here today but the district court judge amplified the charges and interject into this this record material from outside and actually he did that to question the representations of government counsel without any basis that there was a voluntary self disclosure made in this case and ordered the governing council to do a sweeping three and a half month long investigation of something that they had already investigated and concluded after four years of investigation and that's whether this was a voluntary self disclosure there's no basis for the district court to do that other than the fact that the district court had already reached the conclusion that there were problems with the e p a and he was going to approve it and we just think the appearance of bias from the record which admittedly is a very short record but that i think that increases the awful and not a problem any thing become less so unless everybody goes to jail well first i think that might be reversed larry because i think the court has an obligation to give a clear and reasoned explanation for what he's doing and i so i simply think that looking at it and saying you court views its discretion which is extraordinarily deferential stand where you aware of any other case in the past in which a district court has then i had a deferred prosecution agreement based on leniency considerations not about the conditions to show good behavior but leniency considerations to the effect that the government should have brought more serious charges against particular and cities and this is to lead into that and in that sense i'm not aware your honor d p is actually pretty uncommon i think that you know there working in broward right wasn't how i don't i mean if the statute doesn't specify specially in the context of the criminal justice system judges do consider leniency another context we raise the example of a plea bargains with sense bargains and charged bargains it is it is certainly the case that this isn't a p is a scenario in which a prosecution has to be brought i'm not going to authorize not going to prove a deferred prosecution agreement at all because it's in the public interest for this defendant to be tried and convicted i think that's a difficult question which of course not present here in the district judge did say that he would but do you think that's within the statute i think that that's of course i probably think that would be an abuse of discretion maybe not i mean they miss out on on view of a final judgment because i think that the statute does seem to back to the case i think that ordinarily a district judge is saying you know i don't like the p a s i don't i think they're a bad idea i want to see more prosecutions and therefore no i agree with you i don't and i don't mean to suggest a situation in which it's a blanket analogy because the leon specifically said that he was willing to look at different different conditions i suspect that if the parties came back and said you know there's going to monitor there's going to be a fine exceeding the revenues and the district court probably would look at it differently so i it's not clear to me to say you think the statutory language says what the a clearly outside of the public interest it's not the prosecutor has to then proceed with trial as you can drop the charges all the judge are saying is you want me to use my docket for eighteen months as leverage over this defendant and that particular exercise of the judicial power that you're even a charge back in the district court has the authority to look at whether the charges against you mean in fact there's also a statement i have here from the guidelines sixty one point two that says that district work must look at charge bargains and make sure and determine whether t agree to suspend defer prosecution to avoid a speedy trial the public as how a role in public has an interest in speedy trials too as well as an independent yes so frivolous reasons who are the convenience of councils or holidays i don't see how that is i don't see how the statue can be construed as incorporating only that judicial role i mean one point is that there is a judicial a the government said well the purpose of that is to make sure the parties are using the e p a s as a pretext for a continuance to vegas because i lack that it's almost inconceivable that would happen because the e p a is finding i mean if the defendant lives up to it in the s is on most sketchy has nothing to do with naive defendant showing our cooperation well first of all i think that arguably in the facts of this case is at least as you want or stated during the court would rematch should manage its record to consider under whatever legal standard that the court considers but second of all even setting that point aside i don't really see that basis in the statute of just limiting the district court's authority so narrowly again it says that contains any statutory limitation and so i think that just like the rule levon context ultimately it boils down to whether the district judge rationally explain his reasoning and rational exercise discretion and considerations of the public interest including leniency i think a part of that just like they're part of the rule eleven xed and i certainly don't think that there's a clear and understandable the word to show that the district court was not categorically not empowered to consider that consideration in deciding whether to do you have anything to say about but even if the court disagrees with me i think there's less discretion i don't think there's any room for a categorical rule that considerations of leniency are completely ahrd and i think that for the reasons that are explained in the research of any case in which district work rationally exercises discretion conclude that the is too lenient this one the facts of this case are absolutely reaches there's over one thousand sales to man and that's clearly viable law and i don't think that i think that the district where appropriate recognize not anymore well discretion that applies in a number of different contexts including this court's opinion microsoft of the united states opinions from the seventh circuit in which the court granted mandamus and none of those could have  that there are no factors for the court to consider as to what would go into assessing the v a for excessive leniency it's highly unlikely that congress would have intended this type of intrusive review for leniency without spelling out factors for in those instances the court doesn't conduct some sort of leniency review before determining that the government can dismiss do you think there's a big distinction between approval and accept or reject i'm not sure that there is such a big difference and and language of i think rule eleven right for police that is the language for a laugh and so the the the point that i'm making though is that with respect to the approval language to the extent there is any any concern about the cour somewhat ambiguous this court has clear precedent in this western massachusetts school of law cases in which the court says that there's the presumption is that congress did not intend to invade a zone of prosecutorial discretion rather than the opposite i see that my some point down the line and there's just simply no case that requires the government to go through that type of procedure cases that make a science for this point kerrigan and send you all you there arise in very different circumstances and the this where exercises the approval of already to say that well that last decision already decided the general question and so here only dealing with a particular question and there is no unlike a tory review because it's still the same category which is to say the exercise of approval or disapproval of already under the statu well your honor i think ultimately does come down to the importance of the question as opposed to the right let's look at reality and we're submitting that the question that's presented here is an important one but the state of the court disagrees with us on the collateral water doctrine there is to release that information the harm done you can't cram it back into the privilege is the crime of whether this privilege had been waived already they came up on a very discreet question of whether you can from the court whether the dismissal that would be entered would be with prejudice your honor i think in either case we would have the same argument which is that it would make sense to force the government to go through that procedure in order to take an appeal to this court  y or not i am prepared to answer question whether you have legal authority to change your mind at that point prosecute well your honor i think it would depend on a variety of factors that might happen in the future  i'm not asking you whether you would do it i'm asking you whether you have legal authority whether we have legal authority to do it certainly we would have legal authority to change your mind and prosecute if if for example  other findings by the district court and now we know it's thirty one sixty one hundred two and then there's a catch all thirty one sixty one a separate which is in the interest of justice which necessarily requires district court fight and so i think for that reason we're not opening