argument be stronger if this were not a court trial well i think that's a question that goes to prejudice certainly if it went to the jury we could say the jury doesn't know the law and so they may it might have relied too much on it but this is a bench trial and we e the district court said the facts were there to convict but quote barely so that it was quote a very close case that he quote struggled mightily with it and in which he specifically said that he rejected the government's aggravated not presume to know the law but here we know exactly what the district court was thinking and in addition we know that credibility was a key issue and the error of their action that i'm talking about what specifically credibility and we know from but if you go on in detective line injuries testimony to the next morning the morning of april steps the government does it again and this is in the april sixth transcript at age thirty three i miss so we have the line into a problem and then we have the mr go solve problem this was the lawyer from his fart and this is the one from whom the government specifically elicited his opinion of his client's credibility and in response  said i believe i completely believe in her i subjectively believe in her i absolutely believe in her and in fact i need to monitor her testimony because i can't put her on the stand if she was going to lie then we have ninety six i believe that page ninety six that's not kind of if you want to get to the gist of this ok it is a court trial correct and no judge is going to find someone guilty if they don't think that the people have been pretty charged have been proven beyond truthful objection by defense counsel overruled so although there is generally a presumption that it might go in one ear and out the other if he's not supposed to listen to what we have two things on the record that explicitly rebut that presumption the to the douching issue certainly the district court had to decide who to believe but in a question where food of believe is critical and is in fact the only case and we're  young has this history of lying to the government and the agents and the lawyer testified that she was being truthful and the judge's overruling of the objection indicated that he was taking into consideration their testimony that's the government placing the thumb on on the scales and influencing the district court's decision about whether to believe her i believe you reasonable and as a trial judge i'm sure you would have made the correct ruling when the government starts to introduce improper evidence that would change your decision that's the opposite of whose well i don't disagree with you your honor i guess my point is that there was some extra improper evidence they're pushing pushing him over on that according to this  so there was nothing to reveal and then on the other hand the government is arguing any fool could plainly see that there was a likelihood that something good might happen if sentencing so the fact that nothing was revealed about it can't be harmless obviously there's some tension between those two positions i think what we need to look at is whether implicit agreements as opposed to explicit agreements counts whether expectations of leniency count and under the case law i think that the answer is yes talking and we've got to get we're talking inferred to use money right well we're often talking about that and we look at the transcripts to decide we've got a transcript of the trial where the government is questioning her and he says are you expecting anything good at and her sentencing could not be more stark your honor whatever remaining time i have left i'm going to try to say thank you testified never denied that she was going to get a benefit in fact that was the defense at trial thought that she was confused at the cross or on it and her testimony was quote ended up being quote i have no idea if this is helping me or not that's her subjective understand she was a twenty year old girl she had never been arrested before and here she was arrested in facing prosecution in a foreign country she didn't understand the cigars trial right and she didn't deny any that she might get a benefit she said she did not see this is a twenty year old girl who was cooperating on a drug case she saw herself as a cooperate on drug charges she was then threatened in real roots by th says in your own precepts report right here as it did that you are going to get a benefit because you're testifying against mr jaggers she said you know i really don't know if this is helping me or not now that's not false testimony it the defense might argue she needed something to give the government to get out from under that she didn't need to check her story here because she was already cooperated in on the drug case so she was going to get a five k if she kept doing that and she would have known that so the argument that we need at trial is that it would have been absolutely unnecessarily risky for her to have made up this story about checker to feed to the government when she already had a cooperation and yes it would have been impossible in proprietor's for me to have tried to deny that she was going to get some credit for something and then four weeks later have the government walk in a corporate for the same judge and it is and i think on a plane there are standard because there was no objection below i'm not sure that there was any prejudice at all to mister as a result of the conviction so whether it's a lesser included offense i just don't know but i don't think term harassment under the law are even under the circuit i provided both of those the elements for both crimes to the court in my pretrial brief whether technically one is a lesser i just don't know but again i don't think that we have the law that cited in my in my response brief was provided to judge who now are in advance of trial because in fact i was preparing drinks for options for the kids and then i converted that to a to a pretrial brief but so yes all this law was research an officer of the court who was convicted of your brains with the witness and used his bar card to enter a federal prison to tamper with this witness the court sentencing guideline calculations found that not only did he the starting point for the sentence under the sentencing guidelines was ninety seven to one hundred twenty one months that's just over eight years to ten years but i know kind i'm inclined to agree with you on a point here that i think peter has been an attorney seems to be an aggravation as opposed to a medication in the context of the way that the judge set it b but couldn't the judge say for if there would be a way that he and i also think the fact that it was a closed case doesn't matter anymore when someone is convicted they're convicted of the offense so that doesn't help them now where it could help someone out is they for example you have no prior record you have clients that you know say that you've been a good attorney otherwise off you know other than you you have you know you have character witnesses otherwise it speaks to you and also that even though it's a closed case i don't think that matters once you're convicted but the facts can be either more or less aggravated and one of the things the court could for perhaps i'm aware of some of the the court did not buy into that and the court felt that it was not as aggravated although he was guilty it was not exaggerated now let's just say that you win the battle here and it goes back what i understand but if you notice any of these cases stand for it really mean anything because when you have a starting point or whatever you want to call it of eight to ten years and you went up eight percent below that call it a departure deviation whatever it is movement you better have good reasons as an appellate court to uphold that extent of the movement or else there is no guidance being given to the district court and in this case not only the reasons the district court cited but just looking at the record independently there is not sufficient evidence to support that kind of indication here now is there some sort of movement away from eight to ten years that may have been reasonable for her that's not reasonable but the question is why is that and your view is that saval is pretty critical to this well i don't know that it's absolutely these he had him when he was arrested he committed several efforts violations violated the rules of ethics he met with for t of behind the back of her counsel the court found that he knew full well that the counsel objected he also met with  defendants in the same case three of them violating the ethics rules the courts verdict based on the verdict and the language of the statute in the in the court found the trigger either intimidated threatened or corruptly persuaded her testimony from bertie or throw it out the window just on that with an officer of the court marching into a federal prison using his bar card to get in and trying to get what is to be real a prosecution in the united states and one in canada all at the same to take not only against lawyers but against anyone who might tamper with a federal witness here's one that came forward we proved it and it was a lawyer who did an officer of the court practicing law and that he will have an opportunity to present whatever side of the story he wishes to challenge that in an effort to change while i suspect the state temporarily of the sport i guess suspended would be  was six months eight months and i think this year i actually i don't know i believe he is currently suspended from practicing law and that when he makes an effort to unreasonable as a departure or as if the magnitude of it is something special well posts of allah and post mohammad it's not a departure at all and it doesn't get looked at with a jaundiced eye to start with but even more than that it is of allah and muhammad are losing targets let me call your attention just some other earlier cases were departures of greater magnitude than that have been upheld by this court well let me ask you this though just if if the standards reasonableness obviously there's got to be a sense out there that some reasonable absolutely and the question is to find a high in the low watermarks which we haven't you know i mean no one really has a want to compare it with right now you know but let's say that we look at certain things here instead of in this situation the facts in this case where a lawyer goes into a prison would not otherwise be able to do that would not it's not my you know could not get in for i don't think that's a fair characterization of the record wrapped up in that professional status last was the district court's consideration of mr garza prior history of service the fact that he had done all these things for understand that you can say yes but i don't think the fact that it was closed before he was found guilty goes anywhere i don't like the fact not every conviction is you can be convicted out of battery where you break someone's nose and you can be convicted of a battery where you touch their sweater right and forgive me for interrupting but the government charged this as a crime that continued from the thirteenth to the eighteenth of september and it's theory of the case was that he was planning it out for two months and planning it as you drove down the beyond a reasonable doubt so this is also a crime that could be done in many different ways if you look at the nature of the circumstances of the offense thirty five fifty three a one that becomes relevant to you three could have been going to have a lawyer office no but the government argued that this was a premeditated crime that was planned for several months when they list for you the fact that mr karr was receiving calls from other members of the drug conspiracy what they're arguing is their theory of the case that this lasted over a month and that he was making a premeditated effort to tamper with mr partier that's not necessarily what the district court found he could have convicted this lawyer if once in that visit  consider not only the crime but also the history and the characteristics of the individual the seriousness of this offense that thirty five fifty three two way and deterrence the protection of the public