good morning your honour's i'm allison claire assistant federal defender on behalf of mr warren and this morning i would like to discuss the claim in for guarding the trial judge's participation in discussions that lead to a plea agreement court found correctly that latches doesn't bar this action despite the passage of time because the primary question in latches is whether the passage of time has resulted in prejudice to the government in litigating the cl testified at the evidence you're hearing and you have his testimony which amounts to a record not that different from that we have even more current behavior cases where some were allegations are made counsel w theory and in answer to judge nelson's question the question really is whether a determination can be made based on the existing record as to whether mr warren can prevail on that claim and my response the defendant would have proceeded to trial had he been advised of the insanity defense that was the law of the circuit at the time now chill does also say that the viability of that defense is relevant to this determination and  really i think the final word that i can say about this issue is that the record supports that mr warren would have despite his lawyers advice to the contrary insisted on presenting that defense  i suppose the factual findings which are amply supported by the record are that trial counsel remembered not ever considering or investigating a mental health defense and that trial counsel of what happened then you often get from trial counsel even in a much more recent case the government has persisted in characterizing this as a rule eleven claim but i hope the briefs make very clear that it is the claim intent behind the adoption of relentless ban on judicial discussion of plea agreements and explain that the evil to be prevented is that a defendant would feel because the judge and helps put a deal together that the judge wanted that certain result and the defendant w feel compelled to go along with that because the judge has his life in his hands now certainly not every rule eleven violation involves facts in which the judge is participation did  and all the defense lawyer can say is just can't remember now if we fight we are saying is that relief on the twenty fifty five motions may be granted on the record that exists between on the basis of  table by the prosecutor so on the first day of trial there not only was not an agreement there was not even an offer left on the table defense counsel again by his own memo wanted to make a last ditch attempt to resolve the matter by offer isn't really relevant he had a right to go to trial and the question is whether the judge is participation in that conversation getting the offer back on the table and then being the one rather than the prosecutor to say no you can't have agreement you can only have agreement be parties had already reached an agreement during trial and they went to the judge to say we have an agreement in this case that there is one to just because you know now would you accept this deal  that was a precondition to their continuing with a negotiation because of the judge says no when they go back to trial i believe the conversation in frank was may we start the proceedings now and switch gears  forth on the record in franks most of the comments that were objected to by the defendant were actually statements that were made during the course of the eleven colloquy as the judge attempted to ensure that mr frank indeed understood what the plea was about and this court said no you can't complain about that the judge did what will levin required after the lawyers told him that there was a deal and it was done for the open court then he tried to inquire of you whether you wanted to do that and that's not what happened here it was all done behind closed doors and didn't involve warren and it was only when we have the extra factor of the judge having said he had an offer back on the table to take this one and not that when mr warren agreed to plead up until that point he had been adamant about not if i plead to just one offense that that was instructed to do is for you to go to the good and maybe he was so clever he knew that if the judge answered that he would set you up for a case forty some years later to get him out of result of the judge having gotten involved in that discussion or not it was her nails and that's what got y concede that but i can understand your conclusion one question is going back to my actions on the question of prejudice and prejudice analysis is it legitimate to look at the fact that now twenty five going on thirty years after these to prejudice regarding litigation of the motion means what it says and that prejudice as to retrial shall not be considered that case has never been overturned it remains god's law and because that is the rule all cases throughout the country and al and i i gather from the review of the record that the prosecution in this case in its initial latches argument contended that we would be able well i think your honor that that the relatives that they'll appeal to the court are are beyond merely retrial for example one of the things that mr warren is asking for here is a reduction of his that's and in fact he up this issue and has concluded that mr warren would benefit from sexual abuse counseling from sexual offender counseling and the reason that the bureau of prisons has not provided it for him is that mr warren must be in the maximum states marshal in the eastern district perhaps we credit mr warren for that maybe he's turned around to satisfy his toward escape in regard to the the arguments relating to the judge's involvement in the process i think that it's very important for the court to look at the record at pages one sixty one and one sixty two of tads three didn't finish though reject the latches argument and that left the magistrate judge virtually no choice but to do the same although he had embraced didn't least partially before that but as to as to the government's prejudice  from december first the day that he pled guilty in the beginning of his jury trial we have no transcript of the sentencing proceedings the court reporter disposed of her notes pursuant to standard operating disposed of in our ordinary course of disposing of cases that are certain period of time the federal defenders file which apparently at one time existed sufficiently for freedom of information act request to has been contacted still with us or district court and she doesn't remember the proceedings the court reporter at the sentencing proceeding was not identified in the clerk's minutes so we don't even know who to try to talk to about that the  the probation officer who prepared the pre sentence report was usually present at the sentencing proceeding spec he has no recollection whether he was there at this time or not so there's just no way to know through things that happened that's something we don't have anything we don't have anything at all and in that regard the magistrate judge seems to credit us with our latches argument even though he so that's why i refer to the magistrate judge's findings and recommendations it is clear though from the review of the memo to file regarding this interaction between judge calvert and mcbride answer it pretrial order after the trial confirming hearing that apparently ordered that there be no plea agreement because there hadn't been one he was the judge essentially was enforcing the babcock rule pretrial order endorsing the babcock rule and that's what he did he he went to the prosecutor and the prosecutor i would assert is in a position where he's got a court order saying no plea agreement so even if he wanted to enter a plea agreement he's got a court order saying he can't so that has to be brought up with the judge the prosecutor has something to take up with the judge in chambers anyway about a reluctant witness so they go into the judge's chambers they talk about the reluctant witness they resolve that issue and then mr chapman says are you going to enforce pretrial order number fifty eight which is apparently wanting to enforce his babcock rule must have expressed some reluctance and that's why the judge however told him well look on almost three counts you can get sixty years three times twenty and that w exertion of influence on on him now remember this wasn't the judge's idea to have this discussion about this plea agreement this wasn't the prosecutor's idea to have this discussion about the plea agreement it w mister is one of thousands of people who have tried to get kids to settle before you just convenient and bring them to court and by making a strict rule we won't even consider a settlement involvement of the judge in discussions that here there was involved none of the judge it doesn't matter that the benefit went for the defendant in other words that they got badcock off the might be able to get there from here but we're not here i'm director if you don't work here on collateral attack and a rule eleven violation would not support the reversal of a conviction our or sentence because it is not constitutional violation and so council has very carefully attempted to convert the rule of law and violation into a due process violation but i just don't current standard and his analysis is that under under any analysis the defendant did not have a leg to stand on with an insanity defense none of the so called psychiatric  evaluations of him in the past had gone to anything that could be presented to the jury to show that he was saying that he did not appreciate the wrongfulness of his conduct th as a matter of clarifying what happened below because there was some discussion about the case has forced a finding some recommendations and we are here after the final set in which judge carlton adopted the magistrate judges f recommending denial primarily on the merits of the four issues that are briefed the only one that was denied not on much its grounds but procedural bar was that involving the trial judge's questioning