thank you may i please the court mr kirby i'm down i am i'm appearing on behalf of the juvenile now i would like to reserve two minutes if i can from a better this case it's not go go into the case there is reasons why a transfer is different substantial reasons why and i want to address those the first one is that a juvenile adjudication and this was nation stays within the court's juvenile  jurisdiction it's civil still in the civil jurisdiction what happens when you're going to transfer as you move from one jurisdiction to another from the civil to the criminal and with that you get a whole host  very serious consequences including change of status social status exposure to substantially larger punitive measures you get public scorn you get lo confidentiality a print the starts to apply when you go into the criminal all these different things make a major difference between the civil and criminal changes and those are a change of jurisdiction that happens with transfer which they structured the jurisdictional issues that happened in section fifteen thirty thirty two in the very beginning congress here's how you can get into juvenile jurisdiction remember that the courts used to have really plenary jurisdiction over juveniles in criminal and that congress took that away and replace it saying you can only have it in limited circumstances when you do certain things in congress expressively said and this court recognized in tow that the first jurisdictional requirement to get into a juvenile adjudication is need certification and that's at the very beginning of fifty thirty two fifty thirty two with congress then went on to  various things you can do with a juvenile while you've got them there but congress put at the very end of fifty thirty two specific language about what to do then if you want to transfer and i think unfortunately placed the original language of also have an adjudication in that paragraph but what it says and this is critical as a juvenile shall not be transferred nor hearing held under that's a disposition hearing fifty thirty seven what what they're saying is you can't you can get an adjudication with a juvenile you can't move into the disposition hearing unless you get these records that is why in some sort of claim processing thing the conduct would apply to it is not a claim processing thing to move from a civil jurisdiction to a criminal and this is a very unique creature in federal law and do you know i've seen it very little in any of the state like practiced it's not even like moving from bankruptcy chapter eleven to seven we have a very different thing happening here and move into this new one you have to have your record certification to move on in and that is because record certification takes the juvenile case and the history which  into a different court into a different jurisdiction but it remains the same case what is significant about this is several things we have of course and issue of to disposition and adjudication happens we know that there will be a disposition in a certain number of weeks and that during that time and before the hearing and that's the statutory language before that hearing the government has to produce certain evidence that evidence then can be considered by the judge and at that  hearing it will have to be produced before the hearing defense counsel is then on notice has all of the evidence can look at it can say here it is and can object there's a place in a time for it the waiver issue becomes much more important here because we have language by congress the transfer does not occur that the transfer that the records are not due until transfer if we were in a rule twenty nine situation a trial and the government has to by the close of its case provide density in a criminal trial identity of the perpetrator and it fails to do so and i were to argue charge dismiss it here rule twenty nine because they failed to prove identity the government could not be heard to say well she should objected earlier sometime this is what we have here we have records that can be filed and any time records that are produced to counsel in discovery early records this file three days before hearing a stack of documents are exhibit three that comes in during carry it can be supplemented and any time before a judge decides to transfer it is that the point of the judge to deciding transfer makes it a threshold into a new j diction as opposed to just a records processing sort of requirement and because of that at the time in which i can object is only after the close of everything after the decision or at that point of decision the government could theoretically continue to supplement it up until that point of decision what we have there is a situation where the court would put the defense in a position in an advocacy situation of trying to help the government meet its burden of reminding the government oh you forgot the element of id oh you've got these parts we don't have that when the government's got that burden to produce it and it has their burden to produce it all the way up until the decision of the judge it could happen even after the transfer hearing before the judge transfers the judge just has to have the information to  discretionary transfer or do you argue no i don't want to get to that point one judge obviously my opinion and my position is that we should not be getting to that point but since the court has brought it up there is to some degree our second issue which is how do we know what he pled to how do we know what he was convicted of was it in fact a mere assault and not a sexual assault and that's because we're missing critical police agreement was whether there was even a trial and a verdict by the judge what the client was convicted out there is reference to various things but it is sort of and helps the court to try and decide in the different kronk's of a discretionary transfer what sort of behavior but we still have a problem in knowing what the juvenile record you know what it was he was convicted of what it was and well it suggests certain things as we know sometimes pos and others may remember oh it was a child molester case and yet we know that sometimes those are  records and in this case we submitted over two hundred pages of records counsel has engaged in speculation that there should be documents in this file all i can point the court to is is that we have a letter from the family court releasing the records those are the records that were provided to us by the tribal court is not unusual in our experience that records in tribal court sometimes go missing sometimes don't exist sometimes they're not the files the court asked earlier how can what can we look at to determine whether the judge made a reasoned decision your honor in terms of what the juvenile was convicted of i refer the court to volume one of the excerpt of records page eighteen which is the report of the family law clerk listing sexual assault all referencing the appropriate case numbers in the juvenile matter before the problem court on the excerpt of record in volume three on pages six sixty three six seventy three six seventy four there are again references admitted to the two counts of sexual assault sexual salt as defined in disposition report and its appropriate punishment is also listed everything in the report that the judge had before him in making this decision indicated that the defendant or the juvenile headed mated to sexual assaults and nothing less additionally facts were developed both through these admissions to the probation officer during the disposition report is psychosexual evaluation of what he did with the girls the court we believe it's important that if the objection is not raised below it's not a matter of helping out the government the court says planners if you don't object below they have opportunity they have to this date there is no suggestion in the record or on any appeal that the information the judge relied on is not reliable or is incorrect in fact that probation officer testified at the transfer hearing and there was no discussion other then the fact that he admitted to touching the girls and that he  had admitted and he had gone off for counseling actually tribal court felt that it was very serious matter because they took a somewhat extraordinary step of relocating him to a sexual offender treatment program in the state of utah off the government has suggested it's not unusual that there are documents missing and yet if that's the case the government's got the burden to check into that and find them the government refers the court to the  summary document that lists convictions and yet juvenile male of two thousand and three that if she was not a rule that issue still remains good and there are other cases that are supported that the summary conclusions are just testimony or ideas of what those are does not mean what's required there may still be issues here at this is a very unusual procedure to go from one jurisdiction to another with in one case you need quite and because of that and because at no point at any point up until a judge decides those records could be submitted when does the person object when it's their only argument calendar