important to examine the second circuit decision in vets versus united states which is cited in our brief in beds you the attorney was the defendant in that case that would deny and on appeal the seventh circuit remarried and directed the district court to issue the certificate of innocence without a trial now the statute twenty eight you would see section fourteen ninety five is that the united states court of federal claims or have jurisdiction to render judgment upon any claim for trial or rehearing and she's found not guilty as appears from the record or certificate of the court said in the side or reversing such conviction so how d quite a tremendous number of facts in favor of the petitioner and the other the government's response is that well we moved to dismiss the charges against mr now is because such a long time has transpired that the witnesses memories have faltered says but we would submit that that's not entirely accurate we've seen the core members of the corps have seen numerous trials where prosecution witnesses are permitted to refresh their memory with a variety of different dark came at the problem in what you have is a conviction set aside for ineffective assistance of counsel and counsel can be ineffective and the defendant still be guilty and the person still gets a new trial because they can't they're entitled on the sixth amendment to effective counsel so then the government can decide well you know we're not necessarily going to do better than ten years she's already served separate center and they look at the balancing the cost to reprosecute and all that and they concluded in this wasn't a violent crime so on that she was charged with and so they concluded not to prosecute the fact that you possibly could have put on a witness and possibly could have had a trial doesn't answer it so how does this set of facts setting aside or i see and deciding that you don't have the witnesses or they forgot or whatever show that she was found not guilty well that's where the that's good extremely important in this case especially the ones involving by my district why in this case it's not a small crime that was alleged by the government this is a case that involved tons of marijuana this is a crime but it's not a violent crime and everybody already served ten years and she wasn't the mastermind of the crime and even in their conception of it before she was a participant well they said she was a partner with m but the point being she wasn't found not guilty i mean isn't that really the problem well that's why we look at the hearing i was in with the statute requires a hearing and our argument is that the twenty to fifty five hearing  is adequate to meet the requirements of the statute that some of the magistrate judge finds a bunch of stuff that the district judge does not and that same district judges the want to deny the certificate right right  extent that facts are involved here why wouldn't we defer to that well because the standard of the courts where is whether or not the district who are abused her discretion under the facts in th is not guilty no i'm not saying that she was required to accept the magistrate's finding recommendation what i'm saying is that there are no facts to contradict those which were presented to her following the testimony of government witnesses the twenty to fifty five hearing which lasted two days assistance of counsel by joining in the wrongful acts of mr now this is a trial attorney being that she was in fact the only maria at that you're trying to draw because we get a lot of ineffective assistance of counsel places many of them are not successful so many of them are ok and so in the ones that are successful are all of those then going to be subject to  statute and entitle to money damages and where do we draw the line i don't know about the other case i do know that in this particular case when you have the government arguing at trial that this is the only maria and this is the only maria and therefore the money sent to that address had to be intended for her to receive when they knew or should have known that that wasn't sure ok when you said that the hearing hell before the magistrate and all that occurred in two days was the language is there simply trying to understand your argument not about the facts but the statute says what it does so how in so we clear to is no case saying  what would be articulated hold to get to where you want to be what would we say you would say that in case examine the facts to determine whether or not a guilty or not guilty verdict would be rendered with there are others a vision evidence to lead all of the elements in in the in in a case to convict the person and it's our contention that in this case the government simply doesn't have the evidence to sustain a conviction innocence to issue because there was no error on the part of the governor there in the three other reasons main reasons why or not his intention here fails the first is any evidence supporting  innocence or whatever not guilty after the government's case and the government did not put on sufficient evidence because they couldn't find the witnesses or whatever and the court granted that would that meet this test i mean in other words if there is i understand if the original view may be different than twenty to fifty five only but if on new trial the government doesn't prevent present and enough evidence to convict then the person is found not guilty and that would mean the statute well that's not the case marias so let's just cut our losses and not retry it and then she stuck not being able to prove her innocence and not being able to recover her tenure should a spend in prison well as with regard to  whether or not the government's own nation is in this is in this case the record he's quite clear that the government dismissed because it simply because he could not marshal the evidence was stale and it wasn't just th they don't retry or then you're saying she could never be a statue even if you know she's screaming her innocence and even if the government agrees in their hearts she can never meet this statute if they don't ret of true innocence and the courts have been very very clear the twenty five hundred is only about people who are truly innocent mr traddles and in the bents case as being a case which stands for the proposition that if the conviction is reversed that that would be tantamount to innocence but the problem in that case was that the court reversed because it was a clearly not criminal but that's not in this case is about this case is about whether her conviction has been reversed or set aside on the grounds that she is not guilty of events and we don't actually need to look very much assistance of counsel does not satisfy twenty five thirteen because it was not a determination that the petitioner was not guilty and the court is without aborting to examine that issue that he should issue  whether or not the defendant was or was not guilty was a result of this court i direct appeal when it held that the evidence supporting the underlying criminal conviction was sufficient if you had read right or rather than just dismissing the indictment so say you had reached right or and the jury said she's not guilty would that have counted for a rehearing under the statute well there's a different  no clear that a new trial is definitely an grounds for finding that you are not guilty and if it was a true acquittal then yes it is possible that she would be intitled to down she's under money she got back some of the money that had been taken based upon a conviction that had been vacated that's correct ok that's not the same like if i get back by somebody to my bank account really consider that the same as if i permanently recover money no i'm not  trying to argue that i got it linda down i'm just saying that the remedies that were available to her were given were given i mean your basic point i guess is we should be struggling to find a way for her to recover because this is a strict construction evidence is or is not sufficient after serving over ten years in prison the reason we submit magistrate white's report recommendation is that there is insufficient evidence to sustain a condition against ms or not this this or not this according hundred twenty to fifty five here's some money that we took from you we want to give the back you know it wasn't until we filed a motion to seek an order number proton to recover funds and assets that were seized from her over ten years