good morning me please the court my name is martha hall i represent sandra pates to my co counsel holly and of all represents wesley thinks this is a consolidated appeal and we are both going to argue on this case i would like to take the first three to four minutes to address the final and soon opening brief which is the district court's refusal to authorize the expert to assist counsel and analyzing the quantity of methamphetamine that could have been manufactured issues on ineffectiveness jurisdiction and issues related to the motions to withdraw the guilty plea are preserved for appeal they're not waived the government accepted that and did not object to those limitations henri's inventories taken from subpoenas from the suppliers of iodine iodine which is legally sold after use in livestock in pet care businesses they have no evidence a there it's aiding and abetting a conspiracy to manufacture methamphetamine probabilities are you have to admit that there's always the possibility that things can go very far south but the question is what are the probabilities and the question is how do you frame it and how  much how much pressure is applied i know that the government and the court to issue with the fact that i said that there was pressure applied but i think that the description of the attorneys if we discount some of the defensiveness on the part of some of the attorneys there talking to the defendants they're telling them that the government has a very strong case they're talking about the potential sentences on the greater charge and they're talking about what that that here here is what they would have to prove in order to get that twenty years they'd need to prove that i mean i believe under the case law that they have to prove that crime of the manufacture and i think that i mean with that i'm dying was committed and to me i see no that based on the law even if we don't have any experts that the government could not present sufficient evidence to prove the aiding and abetting because how  abetting to require that there's some evidence that the crime was actually committed what you're referring to is something that would have raised the suspicion maybe a probability that some unknown person would have manufactured methamphetamine with the sideline but is that sufficient to prove beyond a reasonable doubt the element that the crime of manufacture of methamphetamine was eight years which was close to the statutory max of ten years i think they did have a very good case on a scale of i died with the knowledge i believe that they could have gotten a conviction for sale of iodine with either reckless disregard or and the government acquiesced that she would preserve her right to appeal issues related to jurisdiction and effect of existence of counsel and the motions to withdraw the flame and that's quoted in the reply morning your others may please the court my name is holly hanover and i represent wesley bates in this matter i would ask for approximately three to four minutes for argument and two minutes for both of us to rebut it that's all right with the court i'll be arguing the issue that the government lecture station to prosecute be able to talk to someone about it and the district court here is the only person the only court in front of us we have to make the argument before that the government accuses you of mis citing the bruce case leaving out some very important language such as what was cited in the martin case that stated specifically and i quote this that states retain exclusive jurisdiction over general crimes committed by nine and against against nine indians in indian country it never stated that involves in the non indians committing a crime against other non indian so it lays out that very specific exception it's a seem to be chameleons there and there indians in one court not indians in another court i mean the representations that are being made in this believe that the case law states that there has to be a prime official showing at some level to support the fact that she was an indian in this particular case there never was that showing at some point you have to view on the realities of what the case is about can't just take flights of fanc and what's been done with her and whether she's an indian or a flight of fancy and that could be a determination that could be done by the district court after this case is remitted your honor i believe that it would not be established that she would be an indian because there are no facts to support it let's all make some points about whether or not we could prove that charge i frankly disagree with her but whether or not we could this is relevant to the issue of whether or not the court properly deny the application for expert funds because whether or not there was few other possible because the charge of this that you might get for the wife but there's a realistic matter they can never hear all the things that have proven you know i don't think that that's something that you need to worry about very seriously it's possible but highly unlikely absolutely council would have a responsibility to tell their client that but that boy in the case of that happening that they told their clients to you the government's not going to be able to prove that  was over the course of time actually i believe i can find it in the present report but i'm i'm reasonably certain it's in the precincts report that there was a proffer at least in a search warrant affidavit that was in the record  that any normal person a normal for example pet owner who purchased a rancher who purchased any christians we used to ask our about taking about a year i think was the representation so there was slight evidence in the record concerning that as far as your question how would we prove it it would be the combination of their actions during the undercover purchases their statements to the undercover officers the fact that they were warrants twice concerning the illegal uses the prices that they were charging which factory that's what the government would have essentially yes although i don't i don't know if they agree with we'd have to show for most of the hundred thirty three pounds we would have to shell the conspiracy tain about the manufacture of at least five hundred grams of methamphetamine testified and they indicated that it was a significant exposure and then her view is but it really wasn't i was misled and you're saying no you know you  was a potential risk and we would have convicted obtain a conviction in this fashion because we have this evidence and i was just trying to make a list of what the evidence was yes or there was the amount of iodine that was involved which was grossly more than any stored me we've that point they had indicated to undercover officers and i believe in light of indicating the post or a statement that there they have had problems getting additional items from their suppliers because for whatever reason i don't know if their suppliers were perfectly candid we had agreed i can't make we call them which defended off the top of my head at this point but we had agreed we would not use one of their posts resting as a trial you know i did it it bothers me when i'm going to learn just to be perfectly candid because then i'm afraid if they haven't said honest just a couple of points on the issue of the jurisdiction mr speight's is presenting alternatives and inconsistent positions on the jurisdiction that she's permitted to do that under the supreme court the defendant's criminal that the district court dreams up there comes a point when things become awfully fast almost i realized that that is certainly the way to peers however she wanted to take the advantage of both of the available jurisdictional arguments there is clearly an argument from the record that she did not make a private facie case that she was a native american because she didn't have any evidence such as a certificate of a membership of a try or even a testimony from from family members to prove her native american heritage she wanted to make sure that she also joined and the alternative yet inconsistent argument on the jurisdictional issue and then just my the risk of getting the kind of sentence you know is out there that's correct that's been their position and that's why they requested new counsel so that they could make the arguments they could serve life well th they're hoping they've been optimistic that the outcome will not be so severe and i understand the court's view of the evidence however i do believe that there is a very real distinction between the level of proof required to prove the chain your maximum that they knew that it was probably going to be used to manufacture methamphetamine or with reckless disregard of flights not going to be held against him in a new trial i'm sure it will be i'm sure it will and i know that it was something that judge jones certainly considered unfortunate in my position as a representative of mrs bates  she's not a child and i can't make her decisions for her i can just try to do the best job and part of doing the best job is assessing the real risk that she w you would explain the risk to her would you suggest the fact that she was candid would be maybe a factor that as the judge was considering all the totality of the factors that could lead in even a more significant sentence than she potentially has now that it's not strictly to be stuck in the middle of these difficult situations you know it's not these are going to be situations that always surprised there and there's no way to ensure that someone rationally considers all of the possibilities and all of the probabilities but there's no way to force someone to make those considerations and so and our system if they make that choice it's their choice to me and it's it