testimony expanding the time frame but i would definitely rejects the notion that the september third september thirteenth time frame is artificially constructed there's nothing artificial about that time frame because that is the only time plane that is cross graded by any writing by the testimony of any witness the rest of the time frame is clearly in my view as an afterthought that comes up and if anything is artificially constructed it's the time frame in which the retained counsel indicates that he communicated the makes as no record that he made the communication so to the extent that he it's only later at the hearing of the matter worked since counsel is testifying that he comes up with the uncorroborated statements that he has made that he later communicated the office again the offer is in writing and clearly the offer the september thirteenth of september thirteenth barbour is in writing and clearly states that if it is not accepted by the thirteenth it is withdrawn so he also never explains how it is that he never knows and has no corroboration that he thank you for bringing that up and why i feel that it's clearly erroneous obviously he said that the judge sat and listened to the to the testimony of the defense counsel and also to the to the government district judge clearly recognizes the the question of credibility as a relates to the to the defense lawyer because the defense lawyer obviously has a history of committing based on speculation basically says you know this is just lawyer it's his skills and his credibility are so questionable that it's obvious to me meaning the district court judge that he's the type of personality the type of lawyer that undoubtedly would have tried to dispose of this case and undoubtedly would have tried to communicate that's the sort of reasoning that i think is not supported in washington that's a sort of reasoning that's back doors into  lack of credibility the recognized lack of credibility of the witnesses and then uses that to scrap and say well i believe that he communicated the doctor because he has a credibility problem he's the type of lawyer that would try to get out from underneath even assuming that locker was communicated the only time that we know for sure that an author was communicating was during this tiger between september third september thirteenth the defendant speaks spanish and always utilize spanish interpreter the the retaining lawyer cannot could not tell us why and how or even if he communicated the offer between september judgment that's made that leap but the defense lawyer never step i use the white communicate he said this that i spoke to the wife she told me that he wasn't interested in taking the ocker but he never indicated that he used the like to that's what the defense lawyer said of course we don't have any statement from the wife to that for that proposition that simply what the defense voids us but he doesn't indicate that the wife is probably subject to being called by the defense of by the prosecution in other words we're going to hold off for a customer against the government over the phone well i would think that it's the it would be the government's obligation or the defense lawyers obligation to establish that in fact he made the communication he said he me and if my colleagues don't might like to ask this question you've covered the issues as i understand them from your brief to one point and that's the prejudice issue i think regardless of whether or not the offer was communicated to your client it doesn't make any difference at all to the outcome of this case unless there's some evidence that we can say that had it been communicated that your client was in a position to go to the court and have that literally laughed out the possibility and then she has an indication here that the court rarely accept alford plays so with the government adamant that it would not have given  plea agreement to the court and the only evidence being that the court rarely except such please where is your prejudice well i think i'm just under an alford plea as i understand it that the government is not required to give us a sense it's basically plea offer to the court without any since by the by the government i understand that realistically we know that no one enters a plea without a deal from the government to get some benefit from from entering a plea and secondarily there's you rarely find a district court judge that will accept a plea over the objections of government i mean that's just reality that we're aware of and  certainly the defense counsel that we can raise the possibility of alford plea with the president is that the difference between ten years and twenty years i understand you have you have to if you got in there but if you have a situation the government's going to object to district court rarely offers them then whether or not your client got it if it wouldn't have done any good how are you how is he prejudiced is don't you have to demonstrate that had he had the pl that the that the that the district court judge really excess albert police is simply saying that it rarely comes up in his court and of the amount of the number but he's but what's interesting is that the district court judge that he never gave an example where he didn't accept an opera plea in this particular case not only the district not only the government counsel felt was extremely strong case the sort of the defense counsel and the and the district court obviously our during the course of this repeatedly s that it was an overwhelming case in my view there was no indication that the district court judge would have rejected an offer plea given the strength of the other things where there's nothing in the record from your side at all and the only thing we have from the other side is  supplemental excerpt of record for sixty eight in which the counsel for the government testified the court's rarely except please and that in page three seventy two etc that they would have opposed  so you think you have demonstrated that there's there's prejudice to your client yes ok defense attorney had baggage i mean there are a lot of things that he didn't remember seventy years later as far as the exact timing of things and their records he didn't have what he did testify to just to know in the ninety one of the government checks for the record is that he remembers without a doubt sitting down in an interview room with the defendant with the spanish interpreter and going line by line over a plea agreement he also has to be in the courtroom where judge keller was to truly make a credibility terminations but when one reads the dry testimony and there are things he doesn't remember but there are some very definite things he doesn't remember i think that's enough to see how the says that i gave to testify that she gave a defendant to plea agreements and he turned the on each one and he insisted on wanting to go to trial it's corroborated generally by the fact that the defendant did go to trial are that the defendant wanted to go to trial in the not want to plead guilty and that's certainly enough for the district court which has to make a decision in two thousand and three seven years later as to whether there alford and he does say there are different you're correct i stand corrected on that they are very similar and in fact the federal rules make them very similar if you look at the rule eleven a three which is found and i think you've made your point judy he's indicated that he would not have accepted a no though and it's another step higher to get him to accept alfred because he pointed out there are so rare but the other strain of prejudice that he pointed out is you made a factual finding that the defendant would not have changed his mind had he been given the alford information and therefore there's no prejudice that is correct so isn't it that no prejudice has two strands number one he made a factual finding that had the offer been given to the defendant if it was or where it was and had it been given he would not have changed his mind to give an alford plea and then the other is that he would not be accepted in a little play in this alford plea there's a reason agreement with the governor was an underlying clear agreement and the defendant says i don't want to admit a factual basis but i'm willing to plead guilty without an agreement with the government what he's offering to do is plea straight up to the indictment not admit guilt is that is that what alford plea without a plea agreement with the government would amount to that is iran or and what's what's the prejudice in not