violated and you quire mandatory reversal third even if there was not a violation of due process there was prejudice because all the incriminating information presented in the juvenile information was obtained from the juvenile after the government's complete failure to comply with the c s a is that your only attack on the certification my only attack on the certification your honor is that the incredible states of the california state of california lacked jurisdiction there was two are not attacking the certification because there's no showing that a court of the state refused to assumed your search well i guess they're on it's a it's a two part that the first one is there is no evidence in this case that the state of california refused to search your station in this case the government point to what they say there's a death when ace in that state of california has declined to prosecute these types of cases but there's no evidence in the record before this court or the district court that that declaration actually existed and that's been challenged by the juvenile from the district court all the way out that there's never been evidence of this that the nation presented even if it existed would that be sufficient i don't believe that would be sufficient caitriona because that's not the ground advanced in the sort of cations of this court has made clear that the certification process is supposed to be difficult because we want to keep juveniles out of federal court as much as possible and that's why we have to rely upon the jurisdictional statements with and the within the circulation it government conceded its reply brief that the state of california has jurisdiction and i think at this point they really have no other choice but to concede that point under six go to the welfare institutions go yes you're on a position a challenge from below but now they've they've conceded and so the state of california did about in this case to be the district attorney's office for the county of san diego said we're not going to prosecute against this juvenile and that was in certification i believe that would be proper why i don't think it's proper for the nz that we have a blanket policy against prosecuting juveniles simply because they gave the requires an investigation and i think it takes more than just the stand off when you're considering it would be enough for the district attorney in a particular case to say we refuse to prosecute this case over and out sort of patients ok if the statutes that the six o two or fifty thirty two it says the state but the state of california is represented by the  diego has the terminations of whether or not juveniles can be charged with an act of delinquency so you're conceding it doesn't have to come from a court enough to come from the district attorney will they're the ones that make the charging decision so in that sense i would say yes that never gets to the court the of twelve hours before making the terminations if he was someone who was a small clique or small bore and that's insufficient but even if even if the court finds that he wasn't in custody at that point everyone agrees that he was in custody by three o'clock in the morning when the agents adequate counsel with his mother the next thing consulate and his adult brother about the certification certification was proper the state court had no jurisdiction over this juvenile because as a blanket declaration policy problem number one everybody is saying that is this blanket that plantation somehow adequately represented in this record where is that we have the representation assistant united states attorney we're back to young in the record what does she know based on what somebody told her is just hearsay well we have the policy itself wasn't written declaration policy you know this is scuse me this is sloppy beyond belief well you're telling us or some policy i mean this is just nothing but more than a bunch of hearsay is you know you read the law the law says it's pretty clear congress has made it very clear don't bring these cases into federal court unless you have certain circumstances that it's hatched including among other things the juvenile court or other appropriate court of the state refuses to assume jurisdiction well it is important in this case that the district attorney's office has informed the united states attorney's office that they will not be filing petitions against juveniles under thirteen twenty four and so you can just wander into court and say that well there  to the contrary and it wasn't challenge that below you know the burden is on the federal government to cross the t's and dot the i's and the statute says the juvenile court or other appropriate court of the state refuses to assume how do you get file against how does not comply with the statute congress said juvenile shall not be preceded against in any court of the united states unless the juvenile court or other appropriate court of the state refuses to assume jurisdiction is that what we're stuck with is that the language i think it is kind of awkwardly worded and confused that the language that is correct so are we supposed to apply the language yes and how does that work in this case where do you have any indication at all that the court or other appropriate court of the state refused to assume jurisdiction well your honor i think it could have worked either way about whether the court did not have jurisdiction against this you state refuse to assume jurisdiction i agree it's awkward because that's not the way the system works the way the system works as you describe it da says we're not going to prosecute over it comes never goes to a court but we're stuck with this language correct your honor however he never said that the d a s office would not file against him or would have filed against him excuse me so the error would be absolutely harmless because there's no dispute as to whether or not a loaded question i mean you tells us not jurisdictional and what is it well it's just not binding the words you're sorry your argument is based on the our interpretation that it is  subsets of inaccuracy does not require work so this conviction if the existence of an accurate certification is jurisdictional a conviction must be reversed it is our view that the just said it does not have or refuse to assume your state how would that be correct if the court never refused to assume jurisdiction how would that be correct substantively well i think that the language is is awkward and so it's hard to it does say it's the court that refuses to assume jurisdiction and that's why our position is that they did not have jurisdiction that can't be right b until the district attorney's office will file a petition against the juvenile and so that's i agree that it is awkward language to correct you can't be right that a court only has jurisdiction if charges are brought a court either right but then the court didn't get the opportunity refused if you still didn't refuse because it never had the opportunity to refuse well then there would be no opportunity to bring these cases and in federal court ever  well first briefly with regard to the officers conduct in this case the agents as soon as as is this you and i was implicated in the alien smuggling was around two forty five to three o'clock in the brothers his adult brother's telephone number and said that his brother was a part time guardian the agents contacted and reached appellants brother at three o six in the morning well i think that it needs to have a common commonsense construction as far as the normal to the court found that normal business hours would be would suffice in this case  there's no need to call and wake up the attorney general or his representative to notify him that a juvenile had been isn't that done for other things search warrants or i mean attorney general is notified about a lot of things that a lot of different hours of the day and night so why is this any different well the purpose in this case would be to inform the u s attorney's office that they had someone in custody to deter make a determination early determination as to whether or not he should be released but whether or not and information be filed and in this case we do i was being held as a witness but even if even if it wasn't immediate the was able to to waive his right and provide a videotaped statement at the station don't try i want to briefly go back to some of your earlier question me in this make it clear i agree with idea that the refuses to search or states would have to be by the court itself not the district attorney's office i don't think it would have to go number of opportunities including in their response brief to say look here's our student of the declaration it's not uncommon for the government to attempt to do something they didn't do it but even if that there's a difference between saying there is no evidence of the  declamation itself isn't adequate to meet the certification requirements which argument was me your honor at a minimum the or it was that the declaration doesn't exist and there was no proof that it existed just briefly even if there was a declaration this court that still doesn't substantiate that the state of california refused to assist with refused to search or section and so in that instance the sort of case would still be improper and i mean the discord did not have jurisdiction