that was just decided by the court alters that situation and all i just submitted on the paper based on the contrary really in practice where i really wanted there was no hearing i asked for the hearing to that i could do that i would have done then in light of larson had we known that this was a procedure with this particular district judge with which i was not familiar but government counsel was used i come back again on the issue of the confession that's clearly before the court the motions were broadchurch had now lies to make that determination if it goes back down i would suggest respectfully please urge if you're be something in the papers that go back down indicating that that this business about the polygraph should be admissible at any subsequent trial why would we do that before the district judge had a chance rule on  with here they were the certain exams well we'll get to that later i'm having difficulty knowing what issue i'm dealing with you indicate now if i understand you correctly that the issue you want us to generous but you really should follow the rules work or to stay true issues in your opening brief which you failed to do so why don't you correct that now tell me specifically what is the issue that you want to put before us well i believe that i have followed the rules and has stated the issues however insofar as the confession in the polygraph is concerned the endeavor here is to convince the court that the defendant was denied his rights under crane versus kentucky to put before the jury all of the attendant circumstances associated with that confession to include and not limited to the administration of the polygraph some half a dozen times the inconsistency in the reports that came out on those polygraphs the extens e training that the police are for has with respect the taking of statements of post trial confessions all of that material all of that evidence we wanted to put before the jury in this case at the heart of the jury ok well first line determination whether or not mr mendoza properly waved his jury trial right away and now i thought the only issue you're raising before was whether or not it should go but that's not an issue that whether or not his waiver of a jury and slope plea were voluntary no no no no if they are different things and the swell place you characterize i don't is mr donahoe is correct that was the case that neither the district court nor mr donahoe or most importantly the government was aware of when we agreed to do a stipulated fact bench trial and there was a motion by the defendant when we became aware of larson to the district court and the government as you've seen in the in my brief as well as in the district court tried to save the procedure if it's a weekday as i've candidly admitted i'm trying to draw a narrow distinction in order for the court to get to the heart of this issue but in light of your comments today i you know i can't really sidestep the too much the bottom line is we did stipulate to the facts we did so because we were unaware of larson it was a procedure that we used and it was just something that none of us knew created a problem the time of sentencing the judge gave a guideline sentence of two hundred sixty two months and then an alternate statutory sentence of two hundred seventy months that would by the court statements come into effect if the guidelines were held unconstitutional in some way and then emmeline came down within seven days after the sentencing and because there had been an enhancement that  allowed the court amended it in accordance with emmeline down to two hundred ten months and so the two hundred sixty two month sentence in my view is not operative anymore it's two hundred ten months it's issues are one that we want to clear up the issues in the united states that we believe are raised were to jurisdictional issues on the basis of larson on the basis of whether an alternative sentence program is a final judgment and those are addressed and then the other issues were the elements issue i will call it that for cause by hester and also although the recent united states versus bruce case founded three ninety four  twelve fifteen is not on point as as mr donahoe has acknowledged it does have a statement at pages twelve twenty two discussing hester so the other substantive issue remaining is whether there should have been more of an ability for the defendant to bring up the factual voluntariness of his confession at the trial the united states does not agree that the defendant was foreclosed from bringing up anything about the factual voluntariness under crane versus kentucky we would refer to court the court to the excerpts of record pages three forty seven through three eighty four which was the direct examination and extensive cross examination of special agent matt salusinszky regarding in large part if not in whole the circumstances surrounding the taking of the confession this judge was i have a couple of questions number statement that the polygraph is often used to compel the guilty to confess and then made a finding that there was no unfair psychological skullduggery no he didn't use those words specifically your honor but in the suppression hearing he found that there was no psychological coercion and i think he did use the words that the will of the defendant was not over born which is exactly what we deal with in these cases of a claim of psychological course videomaker finding a polygraph is often use compel the guilty to confess you know your honor i don't understand where you got that from your brief well that is this is in the argument section of the briefs and that is that is just a known fact that we use polygraph  investigative technique as an investigative technique that was a follow through sort of a segue of the brief in terms of what we use polygraph for that's not a i'm not stating that as a finding of the district court it's argument  honor that's what i just referenced excerpts of record three forty seven through three eighty four and that was in the trial all right it was in your brief that that's where we find it right yes ok the final question i have is how the government doesn't have any money for travel but the defender organization does i think my husband has had a lot of effect on that your honor because i used to spend too much money at nor