that's on submission so we'll take that on submission and at this time we'll hear united states versus person district court to take her plea that she did not that a problem if well it certainly changes the standard of review from harmless error to plain error which makes her road a bit more difficult and  employer she acknowledged all the rights that she was giving up under rule pursuant to rule of and she didn't simply read use the magic words guilty the magic word guilty right well i think the issue here and that is question here in my mind is is that is there any doubt that she was pleading guilty in your mind eleven the very first thing it says is before a judge may accept a plea of guilty it must do a series of things one place the defendant under oath go through the litany of issues by which that defendant must understand they are giving up constitutional rights maximum is a minimum and all of the things that are commensurate with a plea the question here is really did the judge put the cart before the horse it is number one a timing issue and secondarily at a more baseline level of voluntariness issue did this defendant understand the right she was giving up before she said the magic words i plead guilty but she did she reconfirmed after she was read all of her writing so if when she heard her rights she thought oh my goodness if i'm going to get a lawyer and i can confront my witnesses why on earth in my pleading guilty she had that opportunity right then and there but you take it that is that is true as a practical matter however i will say that in the heat of those types of hearings defendants are often faced with a number of outside forces one they don't know whether they can speak up or not at those hearings her attorney may have been we don't know from the record right we can't see the video of the police her attorney may be whispering you're here do not say anything do not bring this up do not do it we'll talk about it there are a number of issues that may have happened we just don't know in the record because she never said anything to the district or if she had actually been guilty how that would have alter in state and federal court at times but my question to you is where in the record do we can we look at something where she says well had i known that i had say the word guilty i would not have pled guilty it's not there i'm not aware of any on this record what is it that we're supposed to do you give her relief when there's nothing in the record that supports her assertion that she's entitled to relief for which she had done if i see no harm with the secondary issue i mean a going to the to the standard right but was there was there a violation of rule of an involuntary as in the moving to was a harmless or poor plain error at look i simply i can't contest that there is may please the court my name is james kim i'm an assistant united states attorney in the southern district of new york i represent the united states of america on appeal and i represented the government in the district court proceedings below it's just normal procedure for  pleading guilty that the magistrate judge did then ask the defendant are you making your plea voluntarily and of your own free will and choice i get i get but isn't that sort of if you look at this on analogy with the two step miranda cases it becomes for a different goal once you have said you've done it to listen to the statement of rights and then and then withdraw that most people are inhibited from taking contradictory positions in court before a judge i mean lawyers do it but then that's that's lawyers job but this looks as though it could be truly intimidating to stand up after the rights are read and said well everything i said before you forget about that because i'm i want to go to trial well your honor what i would say in response to that is not only did judge ellis after explaining all the rights asked the defendant if she was making a plea voluntarily the judge also informed advised the defendant that she could plead not guilty and then again after advising the defendant of her rights the judge asked did you commit the offense with which you have been charged and asked her to explain what she did and so there were several stages during the course of the police were seeing where the defendant could've said you know i do not want to proceed with this or i'm not pleading guilty at this time or like to change my mind and during the course of them it's the same thing with the two step brenda thing once people been told what their miranda rights are you could say well and they can assert it but they don't because the natural tendency is once you of wait to write or once you have admitted something it's really hard to stand up especially court in front of a judge and sa defendant and defense counsel what is the purpose of this proceeding and the defense counsel will usually say something along the lines of the defendant plans to plead guilty to count one or count two and so you know there are parallels between that and this particular case where the defendant said i plead guilty to count two from the start and then was advised of her rights and was given several opportunities during the course of the plea proceeding to change her mind and or say that she didn't want to plead rule levon provides that the defendant should be informed of her rights and that the defendant's guilty plea should be voluntary and that there should be a factual basis for the plea and so based on rule eleven judge alice advised the defendant of all of her rights ensure that there was a factual basis for the plea and ensure that the defendant was not being threatened and was entering the guilty plea voluntarily in addition from the time that the defendant's plea proceeding occurred before magistrate judge ellis and the time of the just a court judge accepted the recommendation of judge alice to accept the defendant's guilty plea there was approximately one month there was no mention from the defendant about wanting to withdraw the about changing her mind or having any sort of hesitancy actually have pled guilty or saying that she actually had pled guilty yes you are that's correct and we would also point out that from the time the district court judge accepted the guilty plea approximately one year passed before the actual sentencing and a phatic zero hearing took place and during the course of that time the defendant also did not indicate that she wanted to take her plea back or that she had not guilty and she moved forward with the sentencing defendant did not proceed to trial she received the three point reduction for acceptance of responsibility you will hear we're going to both i'm sorry isn't it unless the court has any questions i'll say this is a situation i think the court and everyone here understands that this is this is a question of a nowhere in rule eleven does it say the court has to ask a defendant if they plead guilty but it is known that you must ask defend it whether they plead guilty or not right and so the script following here is common sense is really the question that must prevail here and in terms of the way  are handled in the southern district and around the country it makes a lot of sense in this situation even though she did the things she did and said things she did she was never confirmed do you want to plead guilty and as your hon pointed out it is a tremendously difficult thing for a defendant particularly ms person who the court does not know is a very very timid sort of a frail lady who certainly wouldn't have spoken out of turn like right the idea of of mr persaud moving to do that and it and asking her to an attorney to do it and it actually happening right i understand these are twenty two fifty five issues and what was said and not said behind closed doors  attorney did not do that on her behalf and proceeded through and did the phatic cohering and the other hearings the court is correct in that statement but thank you thank you thank you