school we have previously requested permission to allow mr gottlieb to argue we appreciate the court's granting that motion  use choice to plead guilty and for that reason the lower court plainly erred in accepting the guilty plea if nobody knows how can you claim how can you show prejudice i mean it's ironic that you're saying that certain things should have happened maybe they should but nowhere does even your client claim that she was actually under the influence of any of the medication that was discussed two months earlier at the at the arraignment proceeding at honor but as this court knows rule eleven imposes an affirmative obligation on the lower courts to not just inform the defendant of what he or she is relinquishing but also to ensure that the defendant understands what he or she  relinquishing and the void that your honor noted which is that we we don't know is precisely the problem and why this court should allow this laski to withdraw her guilty plea or to remain in this case for further examination of the plea he did ask her at the time of the change whether or not the person had taken any drugs or alcohol that would affect her ability to understand and she said no that is correct your honor and the judge so the only thing the record shows is that at the time in question not two months earlier but at the time in question there is no indication she was under the influence she said she was not under the influence she said she had no problem understanding her counsel doesn't say that he had trouble communicating or anything so there's no evidence that indicates that in fact she was under the influence that's correct your honor but as of the arraignment missile laski demonstrated that she did not necessarily understand what the word draw man the court  was on drugs or alcohol and like at the plea hearing she said no but the district court asked what this court defined as the critical question in winick and six circuit precedent which is whether he had any other or any other occasion or any other cause that would impair her cognition in winnick this court held that once a district court has reason to believe that the defendant has recently ingested a substance capable of impairing their cognition it must make quote but we still believe it's persuasive what it published opinions that we cite in our brief come from the first and third circuits cole in part has and in both of those cases the circuit courts held that the district court had failed to make an additional inquiry in kohl the defendant said that he had taken drugs the night before the plea colloquy but the district court failed to ask anything more about those drugs and i'm part of the defendant to tell you what practical problem that i am having here and judge stafford has done the longer than i did as a district judge so probably could speak more knowledgeable than i but you want you want the district court to ask questions you want to say all right what specific medication are you taking in and what dosage basically right no your honor what we're simply asking is once a diff is to breathe life into the winnick opinion and once the once the court has a reason to know that the defendant is on a medicated regimen as the district court had reason to know here to simply make that additional what is the medication and what's the dosage you're taking that's what the inquiry would be right it could be around it also could be something more minimal simply whether you are on site to try medications on this occasion and if let's assume the person says yes here's my practical point we don't need to be sparing about these details i don't i cannot figure out for the life of me what a a conscientious competent district judge would necessarily consequence of each drug and the drugs in interaction with each other once having asked those questions and gotten those answers which you think are important what is the district judge supposed to then do with that information well again the district court has the discretion to make the requisite finding on voluntariness as the supreme court held in mccarthy which is one of the two objectives of of rule eleven hearings but ultimately what this comes down to your honor is the fact that the district courts fail to adhere to this circuit procedure and procedure counts procedure is our best approximation of fairness and our brett best approximation that the defendant is voluntarily relinquishing those rights that eventually get surrendered at the sentencing hearing we're trying to figure out is where the holding is that parties are asking us to make take us take the jurors proof so back to the question what would the district judge have been expected to have done with the information what it whatever it is that you're claiming the district judge failed to elicit from the defendant but well again your honor there's a void in that information and the district court would be able to make the finding of voluntariness but the fact that the district court could not how does the district judge make the finding a volunteer and when you find out that somebody is like a topic drugs if you don't know what the the effect is at that moment of that drug or combination of drugs you know anderson the person seems competent seems lucid seems to understand responds appropriately the defense counsels doesn't say they're having any trouble communicating which is usually the tip off so now this person is yes i'm taking these drugs what do you do with that information your honor respectfully that's a fact intensive inquiry and might not be a one size fits all solution but in this case she was on at a van select effects or she made the fact that she was on a drug regimen for her severe depression and that she quote gets messed up in the head sometimes were those facts applicable also at the arraignment the he was on those various drugs and she gets messed up in the head at the latter part was your honor the specific drugs that she was on were not made known until her sentencing memorandum but again that's pretty the problem which is that the district court failed to make the inquiry that would have made those facts known earlier was the inquiry at the arraignment satisfactory in your view we believe it was your honor and so all that all that the district court needed to do at the plea hearing you're saying was ask are you on any medication and when she said yes have you been getting your medication she says yes this is it affecting you she says i get messed up in the head sometimes but but you know i won't bore you with the things that you already know but basically there's not much more in that arraignment transcript from either your client or from the district court that goes to the kinds of things that you're saying are necessary honor and that's why the remedy the missile laski asks of this court does not come at the expense of judicial economy we recognize that there is some practical concern but we do not believe that missile laski is remedy would turn the court room into a medical examination room let me tell you my second practical concern because this goes right into this you seem to believe that the magistrate judge that did the arraignment either did or should have remembered that exchange from approximately two months earlier and that really concerns me because we rely upon musea duty magistrate judge to take a lot of these types of take a lot of these actions in place of the district judge and either then you expected to be the same person and they'll remember it which seems to be unrealistic or you apparently are thinking they'll then get a transcript of the plea of the arraignment and read that before the change of police hearing when as far as i know there aren't transcripts unless somebody has requested the transcript to be prepared so i'm trying to figure out how to how  same magistrate two months later when they take the plea on behalf of the district judge in his or do you see a practical problem there your honor we do and we recognize that again that the judge could have defendants liberty and that's why we have these procedures in place the supreme court two years ago and noted that we're now in a criminal justice system that is no longer grounded on trials but on plea agreements and for that reason please agreement is the or her competency and her voluntariness to enter into that plea agreement well let's say that one magistrate does the arraignment in a different magistrate then takes the plea on behalf of the district  honor but again the reason why winick is a political here would not be a political in the scenario that you're on it with all due respect you're really doing a very smooth job of just avoiding answering the question i'm trying to figure out whether everything it also apply if it was a different view on this courtney not reach the broader question of if a different magistrate judge and i understand your honour's concern about what if there was a change a magistrate judge but the fact is that there wasn't here and that's what makes this a narrow case and what makes influence of medications or not competent whether at bottom the problem is that her counsel at those two hearings should have been alert to the issue of her medications this court could certainly remain in this case for an additional inquiry into an i c or strickland violation but ultimately the court should not be able to could not of except about plea according to when it and according to the precedent i see him out of time not before a judicial officer not on the record we have the arraignment we have the plea hearing and we have the sentencing and how much time elapsed from the first appearance until the day she was just well between the arraignment and the plea hearing there was about a two month gap all right and then between the plea hearing and the sentencing i don't want to mislead this court but i believe that there was somewhere around another it was in july of last year  believe it's another month or two so we have three months and i believe my reading of the record budget that somewhere in that ninety day or three months span there there was a letter produced from may concern letters about giving out medical information i read it was directed either to the probation officer who was doing the pre sentence report or are somewhat but the court saw it it was it was intended for some judges eyes right and it's correct to figure in what disposition was going to be made of this case not disposition your honor but the sentencing because we have no reason to believe that's the ultimate disposition  right now and anywhere along that that time was there any indication from missile watsky or her attorney that she was not competent to participate that she did not understand she consulted with her attorney and they claim she did understand but she did claim that she gets messed up in the head sometimes and does not necessarily ever seek to withdraw her plea or ask for additional continuing to gather more medical information that trail was there any indication other than what you told me that she wanted to withdraw her plea at some second thought one of the garner some more medical information one something else for the for the ultimate  injuries could affect judgment in sight and mood at no point does the doctor even say that the drugs she was taking did impact her ability to cognitively understand at either the arraignment or the change correct correct your honor but the doctor's memorandum did state that she experienced a decline in functioning and reasoning and for that reason she took the psychotropic medications so there are there's a dual problem here which is that the drugs could influenced her cognition from a stable state and her stand could i get that even the doctor what the doctor does say doesn't say that it did correct that's correct and again one of the problems for that is that we just didn't have any is medicine and doesn't understand what's going on or if the defendant has had a serious injury which this woman had a brain and seems like a major i would put words in the doctor's mouth a quote decline in functioning as well as mood since that so why shouldn't there be a responsibility for the district court to ask the specific question are you on any medications or have you had any injuries or some kind of similar things regardless of what happened at the earlier hearing the arraignment i would submit that the district court asked a very broad question to elicit that type of information and asked are you suffering from any physical or mental problems today that would affect your ability to understand what's occurring here in court that is a very broad question and the answer was no so in this case when a plane errors standard i think that that satisfies ruhleben it's notable also that that is a different answer than was given in the arraignment in both specifically are you suffering from any physical or mental problems today that would affect your ability to understand what's occurring here in court and have you taken any drugs or alcohol that would affect your ability to understand what's occurring here in court the court asked both of those questions  going i think that this is a slippery slope and an interesting question about what is the most effective way to do it in there to farmer one farmer one current district court judge on the bench who probably have a more informed view of the matter but i would submit that giving judge's discretion to focus on the point of rule eleven and to conduct an inquiry based on the person that's before the court for the court is more useful and informative than having a checklist of questions that the that the magistrate judge has to check off along the way so so assuming that we didn't have the arraignment hearing for the moment that we just had what transpired at the you are comfortable with those two questions being the key questions and the answer of the defendant no means really there shouldn't be any need for any further in by the district judge is that a fair statement unless the defendant were to exhibit behavior that raised a further question about the person's confidence to enter the plea and in this case that certainly wasn't the case she was very active during her  stated she jumped in when she thought something was misstated the court asked her several times if she needed more time to consider what was going on and she said no so it sort of gets back to a question i asked your opponent is the problem in this case perhaps and i see a claim against the lawyer at that point in time if in fact it is so was he has or had i should say had a problem whether it was due to the medications or due to her injury had a real problem and in making a voluntary and knowledgeable and intelligent plea agreement well the court's question relies on or assumes some facts that are not in the record that there was a problem here that she was actually not competent if right in this hypothetical world then i agree that the correct claim would be an ineffective assistance of counsel claim against what it i would note also which isn't in the record that paul peterson is a federal defender with forty years of experience but yes i think that the court is correct and that would come at it in a twenty to fifty five as opposed to a remained by us to the district court is that right that's correct there certainly is no record here to support an in claim before we even get to see what what do you think is the proper role of the of the defense counsel to ferret out and present problems of there are cognitive problems and i realize this is a compound question to what extent should the district judges be able to rely upon defense counsel in their assessment if they if they don't come has voiced any concerns about the defendant's competency but he will agree that the ultimate responsibility is on the magistrate or the district judge but the irony here is we're sort of quibbling about you only asked two questions and you should have asked for six or whatever the undefined proper number is when it best the exchange in open court is going to be a very short sequence of questions contrasted with the defense counsel presumably having spent a significant amount of time with a client over a longer period of time so if anybody has had sufficient contact to have the lay of billet he to assess that person and that's what the district judge would have a lay ability it seems like the defense counsel's got a much better shot at ferreting out whether there's a problem then a district judge would in two or three questions that's certainly valid points  top of that at some point will the u s attorney always have had face to face contact with the defendant in connection with a change of plea no no we can't really we can't really rely upon the u s attorney having remained good morning again your honour's this case does not present a slippery slope if the goal of rule eleven of the question asked in rule eleven as to whether a defendant is on drugs or alcohol is the court's best approximation for a defendant being competent to plead guilty then simply asking the defendant whether they are on say could tropic medications serves that same goal and not at much of a cost to the district court i'd like to return to your hypothetical judge mckee before about whether are other types of substances that we haven't even figured out that could theoretically have been required to be included in one of these questions in other words we've talked about drugs and then you've said well somebody might not understand that includes psychotropic medications so you're supposed to ask about that theoretically there are probably other things that in theory could affect somebody's adversely that you'd have to add to your laundry list or aren't there that is possible under but certainly not with the medication prescription medication yes your honor and certainly to return to judgment hypothetical about a district court not having knowledge let's say of the doses or the milligrams of a certain prescription medicine we already in trust courts to make that inquiry with respect to alcohol and drugs if a defendant states that he or she is on alcohol and the defendant responds that they had half of one beer or the night before the police here and we trust the courts to make a determination as to whether that plea is still voluntary and that's why judge moore asking a core asking a defendant whether the defendant is on any drugs alcohol or medicine and eliciting a no response or eliciting a yes but it's minor allows the court to make a fuller in corrie and allows the court to protect the integrity and the reliability well suppose that the question were asked here and this is obviously yes if the if the district judge had said there have you taken any prescription medication drugs or  that would affect your ability to understand and she had no what more should be done then the district court would not would not need to do any more because the the courts can rely on a defendant sworn responses the problem is that is the converse reality in this situation which is that the court never had the opportunity to make that determination but then what are we going to do about the fact that you ask about prescription medication but a lot of people would probably interpret that to mean something that had been prescribed to them by a doctor so then you also have to ask about medicine that ordinarily would be available by prescription but that you got illegally well you're not asset i know you're on the court could simply ask what the defendant was on medicine period simply asking the defendant whether they are on drugs alcohol or medicine really capture the reality and we understand that there may be other things undiscovered things on the periphery but that's not the situation before this court or the plane air distilled down is failure to include the word medicine that the plane our we believe that should be the obligation of courts but the plane in this case because that is not a requirement that is the district court's failure to make the additional inquiry and to ascertain that the