it happens after the pressure of the criminal case so there's no urgency for a quick decision as there is with an appeal from a criminal conviction so all of the policy reasons for treating it as a so both the defense and the government both signed the joint motion that was filed in front of the magistrate and i would suggest that fairness requires this court to regard a party is it should not make it should not be a description it should not be a reason not to proceed under six thirty sixty which the expressly authorized as a direct appeal to this court but you know you i don't actually i'm not i think it may very well be appropriate to remain on this case in any of them and to allow the defense to prove up the violation that both parties in effect stipulated to in the filing of the original motion and so i'm not sure that this particular issue i mean they may resolve it from the standpoint of your lee tried to introduce some evidence on that through the court request reviewed national notice and i would concede it would be appropriate to allow the other side if you grant the request to allow the other side to brief the significance of that but my point is that the lack of a transcript of the plea in this case we cannot assume that it's going to cut one way or the other now because the government filed the joint motion with the defense there was no need to put in evidence as far as what actually happened during the plea proceeding because both parties agreed that in this misdemeanor case with the four taken consequences the police magistrate judge for the purpose of allowing the defense to prove up the allegations of the petition because we were in effect sandbagged by the prosecution drastic change in position from filing a joint motion asking for their relief to now on appeal complaining about the lack of the very record that caused them to agree to file  pronouncing it correctly this court opted knowing that there were differences of opinion about that footnote to say coronel this is in fact essentially criminal and that i think correlates with the language that the supreme court even use effective date is december first this appeal was taken proceeding august so there is a period of three or four months when jurisdiction had already been lost and you know promulgated an order from the supreme court says that it's only to apply to those the civil time period then you go back but it's not to go to the merits it's simply to determine whether there was excusable neglect in the failure to do what you're supposed to have done the first time we're not talking about agreement and to give him basically what he wants which is a complete on the merits review by the district court it is simply to do you determine whether there was excusable another case six months separated different defendant and given that we are if we're talking about the merits we are extraordinarily prejudiced not only by the lack of the tapes which with that was before my time and but i will then very and i can tell you why was i trying to talk to the people who were involved some had left others simply had no independent recollection but i think magistrate's jurisdiction and the original plea and some other paperwork so that we have at least on the face of it a presumptively correct proceeding and it was at that point that our office apparently said least i declined to admit that we'd sandbag anybody by that point it was clear that the u s attorney's office was not going hand in hand with their request and so if he had some kind of evidence to justify why there was an eight year delay he should present it and he