and so the government maintains these two exhibit military problem i don't think they can do that i'm still a little bit see you say that the information actually was marked on my following what you're saying by the defense council yesterday ok now does the record reflect how that happened because that's not normal no it's not i think the record reflects i don't know if it was done contemporaneously at the guilty plea but i think it could document and we talked about that a little bit already the criminal judgment both mark him down as having committed them on the same day as i write i mean that that this shepherd documents seemed to expect to seem to say that they happened on january twenty fourth but correct me if i'm wrong the judgment certainly says that i'm sorry what was the other doctor the charging document i thought also said that in that it was marked up was a mark was a change to january twenty eighth or was it that's correct or and ok but it was originally january twenty fourth right right here which was the same day and so one of the problems i'm having here is you know i think it's still an open question and the circuit whether you can use chapter documents at all in the different occasions determination and of course i've written that we should use separate documents at all because of the stuff this is at heart a factual finding but my point is what do we do here when the shepherd documents conflict with each other right is a very unusual circumstance whether it's sloppiness whatever the case may be but what do we that the the two the that the crimes that are being discussed occurred in different locations that involve different victims though there may be some dispute about whether they happened on the same day you know i think the record below to my knowledge o that i don't think the government or other evidence or the district or love about you know that there are two drug offenses occurred on the same day and i don't think there's anything more saying you know where those than those are the best among all the follow up on the chief question do the shepherd documents and in particular the charging document do those and the two in the earlier prosecution do they address the chief's questions in other words they say this offense happened at a county and that's that ad that's not very helpful to have the initials d j they're on the front of the information you know what they are you know where they are from the middle of the yeah i think it's on the  get no i think that's a that may be because it doesn't match any other initials in the case right now so let me be absolutely right ron so what's the effect to the play transcript in terms of the statements made by the defendant have done something two thousand and two that he thought leader of the lie would have really harmed so i think these are kind of real world facts that the categorical now says really needs disregard especially to the six the men who are now you have a district court judge trying to weigh facts many years later in a way that i don't think that mr work and or the record clear that he was under oath is typical at this stage of the of the proceeding in missouri state court i think so you're a person see evans in his in your or your or the other side's brief that they stress is a criminal case right right and does say about the same thing right i think the one thing that to my recollection  different about ovens is that you have the district court making some sort of reliability determination and engaging those standards and i think what's what's concerning here is that you know  i'll concede that it's much more relaxed when it's a bench trial you don't need to have that dobber hearing or a trial you can have it simultaneously but at some point i think the judge needs to weigh her where to the first that is  this information liable and if we don't have that any expert can you know on the stand or any expert marks and can testify to anything but we need to have some sort the acceptable in federal court to say well i'm going to reserve all rulings on this kind of evidence or that kind of evidence of this kind of expert to have heard all the evidence in the case absolutely ok and i think we would have a problem here had the district came back to this issue and said by the way i'm making her cry to build ok and you think then they have to come back to it expressly not implicitly i think so because often state court they don't come back right trust me i think you're i think suffer goes to require some sort of reliability determination of gauging that standard since it was passed by congress and without that there's just a danger of putting up witnesses and they get to apply not anything they want to i can't resist telling is not really passed by not not being strictly enforced and in a bench trial i mean is the alternative but this is harmless because the district judge is not going to take into account i mean we presume they're not going to take into account something they find unreliable we can  ends the sentence with credible testimony about his experience investigating and his knowledge and expertise magic word expertise is that close enough i may be mincing words need credibility is he's kind of standards were relaxed things and you can use is the same language about the friends a chemist and the crime lab specialist you know what i'm referring to do ok so but you believe it offenses and i think that the biggest point for me when i look at this record is that everyone who was there at the plea hearing agreed on what the right so defense counsel suggests to the court and of the prosecutor judge i think for count three this information needs to be amended to reflect in the current state of january twenty eighth two thousand and two that's you talking about the original trial or the proceeding in federal court i'm talking about the proceeding in state court that is if you see a predicate to the issue of whether all of them occur i understand that what are you reading are you reading the proceeding for federal court when they're discussing the c c a or or state court transcript your i'm reading plea transcript from state court ok thank you it's in the den them at a seven thank you so this is defense counsel judge i think for count three the information needs to be amended to reflect on the current date of january twenty eighth two thousand  mr knight that's the prosecutor he says i don't know who we're talking about this is mcdaniel and then the court says because they both see the twenty fourth is that it and the defense counsel again and the discovery shows it was on the twenty eighth account to mr knight the prosecutor that's right your honor the court all right the information will be amended to reflect that fact thank you judge and then there's a call if we hear the court so four days later on january twenty eighth did you sell crack cocaine again defended mcdaniel yes so relied on when they said well we're going to follow the judgment in this case here it was handwritten it that it definitely doesn't agree with what what occurred at the plea hearing but i do think that the plea hearing and the amendment of the charging document and the fact that everyone who was there the fans counsel the defendant the prosecutor and the court were all in agreement about what the correct was i'm having is you know there's still a very active you know i think levering left us open there's still very debate about whether to do shepherd documents or not shepherd documents and i'm not sure where plea colloquy is folly center supreme court precedent which is to say that you know the supreme court talks about peeking at charging documents and the judgment to figure out for example and under the categorical approach to figure out which subdivision a defendant was convicted under me does that extend to the plea colloquy as well in particular facts that come out in the plea colloquy that may conflict with other shepherd documents i  unlike police reports properly omit the inquiry of sentencing courts to conclusive judicial records and what it's talking about here includes charging document plead transcript between the judge and the defendant and this is a quote from shepard in which the factual basis for the plea was confirmed by the defendant or to some comparable judicial record of this information so the fourth circuit added the police colloquy part of that is that what you're saying council  you actually have to i don't know and you actually have two problems here one is i'm not sure the plea transcript colloquy as a shepherd i may well be might be right but even if you got past that you have a conflict on the shepherd documents and you know i've that i don't think we should be doing shepherd on this because it's a deeply factual inquiry that requires a lot of factual findings by the by the district court but even if we do you know it's kind of like you there's a genuine issue of material fact right he's now coming back and saying well i didn't care i didn't care what i said the police doesn't matter twenty four twenty eight i'm still convicted you one thinking about aca at that time is they thinking about playing to the crimes they didn't really care and then you have the judgment saying something different you had the information saying one thing and they had a right to change and it seems to me that there's a conflict and you might be right that everyone agreed on it but you sort of have a genuine issue of material fact about when it actually happened at least now now these pointing at different documents and what do we do with that you're i think that if you if you look at the span case in which that appellant is there a line here that court said well we're not going to look at those other things because he is right and there's just too much of a mess and so that court said ok if i'm going to go with  judgment that's that that's the rule i will do that but i don't think that analysis here because i think that here what we have is one document that disagrees at the end of the at the end of the are based on the evidence that that we put forward say on the sentencing here we one document the judgment where there's a handwritten judgment that doesn't agree but then everything else explains the disagreement so where the information originally said the twenty fourth well it's clear from the plea transcript that that was a scribner's or i th ink the court can read from that and say ok look the judgment yes it doesn't have three different dates on it but the p transcript explains why that was an error any information that clearly just didn't get transferred over to the judgment when that was handwritten so i think that to the extent that  different way i think this is a distinguishable case from our perspective you think span's got the right standard step back because i heard what you tried to distinguish it but it's just a and i have the right standard band together i just don't think that it applies on our facts here and i realize i think you didn't write the brief but i notice there's no missouri law in here and all your opponent had some missouri law have you have you checked out the missouri law on the final judgement and the extent to which he controls everything or not i i have not your honor and that's what i don't think that the lid of the of the shepherd documents and what the date is necessarily bound up in the judgement and we have to acknowledge that judgments are going to contain scrivener's errors points is there anything to go back to the chief's earlier question is there any think about the where and the subset of continuity problems of our time for for different occasions in other words i think the information from what i can tell there's no nothing that says they happen in different places or anything like that but maybe i'm wrong about that made that the government has a different view i don't the thing i can tell you about the a factual dispute or question that you had but what i have here is that what appears to be perhaps the defense counsel's initials over the corrected so so on the on the on the who he sold to the same person twice that's what the information says and so if we take it we have a dispute about the when then it's quite possibly these things could have happened back to back i mean leaving aside leaving aside the date point we just don't have a lot of information these happen in different places or different you know so ok that helps that's now do you agree that how do we know the defense counsel was the one who marked that at the bottom of the page other than the fact that the initials match there no other questions on the third issue i will spend a little bit of time talking about the daubert issue in this case i think i think this case kind of starts and maybe even ends with a series of cases from th circuit admitting the testimony of officers to testify about the modus operandi of drug traffickers subject to rule seven o two and our i think that there's maybe  dispute between us about how and when that court has to perform its gatekeeping function our position is that the court can perform the great heaving function in a bench trial the same time it's performing its evidence binding function you think it can be implicit you heard our discussion yes your honor i think moreover i think that the there's actually more than implicit here because not only did the district court the way this played out detective seem to came up he gave that is testimony about his experience in working in the field twenty two years as an officer two and a half years undercover five hundred drug buys that sort of thing and then there was a motion to exclude that as because it was scientific evidence that didn't meet the standard scientific evidence and the judge overruled that i think at that point is not just implied by her findings that she found him credible and reliable in meeting the standards seven or ten she doesn't use the term  reliable that's that's right you are she doesn't she was credible several times that's right but i think it's also her six times in a row go ahead i think that it's also a matter of the court is is presumed to know what the law is and only considered  evidence and that she found that she overruled that dauber motion continued to permit him to testify about his opinion and then here in her findings testify or excuse me wrote that she gave  them was there no challenge i think she uses the same words for all of them in the same order i don't i don't recall exactly what the testimony was but i do believe there was not an objection jersey the implication being that judges do know about drug dealing in and but at the same time says that the court could not have reached this conclusion without relying on detective standees testimony i don't think those things are consistent i think that if it's true that the and i don't think this is what the law says but it's true that there's a new need for expert for officers who are testifying about modus operandi to be experts then it's and the defense and the court can reach those conclusions about the expert testimony then it also is likely harmless in this case to admit it and she could have gotten to that conclusion without his help and the other point i'll make is that when you consider the way the  gate keeping in fact finding functions play out together in the bench or another fact are there like instances where the court is finding facts such as classification the defendant had an opportunity to  before the court all of the credibility or all of the reliability responses or examination that he want to do he could have just done that either by ordering a witness which didn't happen here or by cross examination which also didn't happen here so detective stand he got done testifying it was an opportunity to cross examine him in a holes in his credibility that the judge could have or i'm sorry reliability but the judge could have then considered at the end of the at the end of the testimony or when she was deliberating the finding he was in fact not reliable so i think those things i think that function in the fact there wasn't cross examination in this case it does play somewhat in our favor should have a second more i would guess i would address issues or briefly and that pertains to the stacking the nine twenty or so you conviction as this court's aware that greatly enhanced his punishment i think the first step back  a very timely as she said before the supreme court set for conference february twenty two riviere referred on first circuit right i think you're right so that you may get an answer on that yeah that would be what was well i should ask a question  that resolve that issue for you what the supreme court does with that case well i think the one thing that's interesting is that the time i was kind of looking for a yes or no and if you don't know you can say that i would say maybe not no because thank you