when it conditioned the dismissal of forty nine counts you know fifty count indictment on one up taining consent from the alleged victim and to setting up a procedure by which the executive branch would have to come forward and prove to the court satisfaction that the counts could not be says stayed clear air was committed and now the historic and central function of mandamus is to make certain that the district court is confined to the lawful exercise of its authority and in this case mandamus is appropriate as to a plea agreement either under the general rule rule levon or the specific rule rule forty eight don't you or are you asking us to order him to accept a plea or to the police or both know the procedure which i would be asking for is for the order that he cannot do a or b as i said forward reassignment on remain on a plea to count forty five would be entered the court then would go through the normal process first the district court cannot without violating the separation of powers condition the executive branch's dismissal of the kaldis upon containing consent of the alleged victims or to the district court forty five which have a five year statutory cap the executive branch comes forward and dismisses counts one well forty four but presumably there's no promise to do that you're just taking your chances at that point because you know charge of the same for the same event so and there are there was some really only one possible and you can have a murder charge in a second degree murder charge for the same thing right that was a situation in was a twenty year statutory cap for the thirteen twenty six a they were allowing him to plead to a thirty month cap but there were essentially a lesser included offense in both instances here you have another forty nine and pending charges right secret deals which is the whole point of all eleven was not to don't know i believe that in ruhleben what we're what we're proceeding with is the judge should look at the law and rule forty eight gives the situations where the chord should still don't understand what it is that you want our mandamus order to look like now when when we asked that question just a minute ago you began by telling is that you want us to tell the district judge we can't condition the executive branch's dismissal on blah blah blah blah blah and then you know and that looks more like from our perspective what we would write in an opinion not what we would write in an order an order is usually very direct and it doesn't say we did a lot of you know a lot of things wrong with you but we put in the opinion but the order is what we tell the district judge to do so what is it that you want us to tell the district judge to do you just want to tell us tell him what he can't do or are we supposed to tell him to accept a guilty plea are we supposed to tell him to accept the the requirements of rule levon are satisfied which is the vasquez were mere is case which this district court judge says no in exhibit a said you would be satisfied if we just simply ordered the judge to accept a guilty pl except a guilty plea and then the order should also show what he is not allowed to do under the law which is conditioned to dismissal on the consent of victims or condition the dismissal on some evidentiary hearing why the u s attorney's office to prove that the dismissal is warranted the court should then follow rule forty eight in exercising its ruhleben discretion and what happens in the plea agreement is just would the court always had the ability to consider restitution you can't bind a court as to the final determination we've come to an agreement the restitution is two hundred sixty thousand dollars we believe that that's proper under the statute  was that binding on the bankruptcy court we understand that there's a considerable fund which may be available through the bankruptcy court no it would not be binding on the bankruptcy court the bankruptcy proceedings proceeded long before i got into case your honor there is a three million dollars judgment there the bankruptcy court what are the same victims claimants under the bankruptcy yes and we had in exhibit d the legal representative for the trustee made a proffer to the court that that was the situation so those alleged victims have every right to pursue remedies in the bankruptcy court it if the district judge accepted the guilty  plea count forty five then the restitution that the district judge could order even in the absence of a guilty plea would be confined to whatever the damages were for count forty five is that correct yes would you believe are around two hundred sixty thousand dollars yes we've agreed to that does that money come out of the out of the bankruptcy fund no most likely that money would be collected during the period of supervisor lease of three years independently  have from future in a home from future earnings because at the time of the bankruptcy she turned over all the assets at that time that she had to the bankruptcy trustee the the restitution amount must be paid dollar for dollar is that correct up to a certain point your honor in that it turns into a civil judgment for twenty years after the end of supervised release so there's there would be essentially two different judgments for the same money we're going to hear from the government a moment are you in the government in exactly the same position in terms of the relief you're seeking i believe so yes and then i read there's no difference in the theory either i don't believe there's any difference they agree that the petition should be granted we both that i mean let's not i mean here he was trying to get in the middle of things but suppose he needs his simply said as i said before this just isn't good enough for me this person did you know a lot did did so many different fords are all being prosecuted from what i'm sorry i'm general statute that provides no standard rule forty eight is the specific rule that wires what the court has to do what is a motion to dismiss so they're interrelated in this court's case in miller  authority in the district judge to reject even the charging part in that part of i think the difference lies in the difference between eleven one a an charge and changed and then ask questions and charging and so in miller and other ninth circuit cases they've said when you're looking at charge based agreements those are the executive branch's bailey wick to decide judge posner spoke about it in the in re united states case that i cited in the petition and are and this court has cited that there's very limited basis under rule eleven it doesn't doesn't place the district court judge somehow above and beyond what his or her consideration could be under rule forty eight forty eight i understand it's your position was the was the you know harassing the defendant giving the defendant rights and so it's only a limited basis that the the executive branch has to come in and show they're not acting in bad faith the manifest against the public interest thank you can thank you will hear from the government good morning ma'am please the court morning counsel elizabeth white for the united states this is a this is a confusing case and i think the question what exactly should the mandamus order say is is a difficult one because of the procedural posture that we're in here you know what the district court said is i'm not going to let the government dismiss these other counts unless it either gets the victim's consent or proves to me that it can't prove these counts beyond a reasonable doubt and and i think that we all i mean i think it's pretty clear from the case law that that the court does not have that authority but that hasn't happened yet right i mean the government hasn't made a motion to dismiss the counts that the judge has denied and so if this mandamus or if all this mandamus order said which is the only question like that is precisely right now which is the judge needs to take this unconditional guilty plea to count forty five because the rules the confusion i mean first of all the just didn't think that the that the attempt to plead guilty to rule count forty five i mean he was he just didn't accept that that was an unconditional guilty plea because in his mind unless she was going to plead guilty to all fifty counts it wasn't an unconditional guilty plea and that just misconstrues what well i thought he thought it was an unconditional guilty plea because as any she could withdraw and he didn't accept in the first year i mean you know first i was wondering if this if this was was premature because there hasn't actually been a motion to dismiss these counts that the judge said well now you have an order do you have an order from the judge well what the judge said is i am not amus petition exhibit it's the last exhibit is this november and november page twenty one of the november transcript he said i caution you here i will permit not the government to dismiss the other counts even upon conviction presumably of count forty five without a showing of one or two one of two things one either consent by the victim listed in the indictment or if they're not willing to consent to showing by the government satisfactory to me that they would have difficulty proving that count in the indictment now when if if we were to if she were to plead guilty to count forty five and then the government at sentencing were to move to dismiss these counts and the judge  reject that because we hadn't met these requirements that he has no authority to impose on us then we'd be here a year from now on the government's mandamus saying you have to let us dismiss these counts and that would be the best guess for america so you know on the if there's no plea agreement the government has no choice i mean if the if the requirements of rule eleven b are met which is that it's knowing and voluntary and there's a factual basis and this defendant wants to say i plead guilty  the district court never said those conditions exist or want to think well he went at the first hearing he went through he found that she was competent actually and talked about a factual basis and then when they started talking about restitution they sort of got sidetracked at that point the judge said i'm not going to accept the plea or the plea agreement mr kennedy said well actually you know if the if the requirements of eleven b are met you have to accept the plea you can decide not to accept the plea agreement later but you have to accept the plea and judge john said well if that's your position i'm terminating this hearing right now so that was it there was no that or that i need there was no pending motion now and now at that point if position petition had been had been lodged with this court saying the judge has to accept the plea you know that and then i think i mean even though i don't know if the judge i don't know that the judge can circumvent making the findings and rule eleven be right i mean i hear you saying to have a change at least here it i mean that just moves it one step forward there's a factual basis it's knowing and voluntary she wants to plead guilty to this one count now she wants to plead pursuant to a plea agreement where the government where she is she's waived her right to appeal she's agreed that her guideline range is going to be based on all fifty counts you know the relevant conduct of all fifty counts she's waived this we've agreed that we're going to move to dismiss the he do it just simply on the ground that the government should be dropping these forty nine charges not with the conditions but just you know as far as i'm concerned this is a treatment of this person and i'm not going to go along i what this court said in vasquez ramirez is that if the if the district court rejects the plea agreement what that means is that the parties are free from the obligations that they made that means she can appeal she doesn't have to agree at sentencing we can fight about what the guideline range is we can you know fight about this and that the government is no longer obligated to dismiss the counts but then this court went on and said should the government indeed decide to drop the additional years it may have many reasons for doing so none of which are the district court's business that's a quote from ask and what the district court is trying to do is he's trying to say if ali had said all bets are off and if the judge had just done that the judge has authority to do that but but the judge went further and said not only am i and is the government not going to be required to dismiss the counts i'm not going to let the sense to have give more authority to the judge to reject a plea agreement in which the government instructing charges then that it directly happened charges i don't i don't know i don't know what sense it makes to give authority to reject a c one a plea agreement i don't i mean given that given that this court at the supreme court has said over and over and over again that absent a showing of bad faith the court is obligate i mean this court has never even decided if a judge has discretion and the supreme court hasn't even decided if the judge has any authority at all to refuse to dismiss a charge if the defendant agrees to the dismissal of the trial so i'm still struggling with that earlier revelation that there is really no order out of this judge and there was no pending motion in a little worried about rightness is there enough on the record to on her acquiescence or acceptance of the when he didn't do that in an order he was it seems to me that it's not necessarily speculated because he was a den of fine what his future intention would be  but there was nothing in front of him at that point and that's and well there was a proffer a plea there was a there was a plea on the first year and he refused to take it right in the second hearing he imposed improper conditions on taking it that wasn't there and therefore altogether proffered plea yes with at least no finding of  an adequate eleven be shown yes it was it rejected him of yours or did he just say well i'm going to cancel this hearing will come he talked about it later he cancelled the hearing when mr canby said that he wanted to talk to his client he terminated the hearing the other you know the other piece of i'm just wondering what it is in terms of the role of this court at this stage would it be simpler simply to reassign to a different judge we probably have enough on the record to do that i would suggest that as an alternative in this case i mean what this court has said is whether inadvertent or not if the judge restitution and he said that a couple of times and you know i think what you just find it actually you know what what this court said kyle is that when a judge when a court goes beyond providing reasons for rejecting agreement and comments on the hypothetical agreements it would or would not accept it crosses over the line established by rule eleven and becomes involved in negotiations whether inadvertent or not once that happens reassignment when the judge the district judge may not indicate what it might find acceptable or unacceptable and revolve in resolving a case that's happened here and so in that instance i mean the judge even said that the second hearing the november hearing was about a week after that this court decision and heil and the judge commented on the record now i can't get involved in plea negotiations the court has just reminded us of that but why don't you just stipulate to the three million dollars in restitution and so so whether he realized that that was crossing that line or not you know at this point if this were to go back to judge jones whether whether they whether the parties adopt that stipulation and get the plea or don't get t plea she would have a pretty valid appeal saying the judge impermissibly government agree with mr kennedy that the victims here may have recognizable claims under the bankruptcy there is there is that there is a three million dollar and dischargeable judgment and bankruptcy court that from what i understand when the representative from the trustee came and sort of explained that to the court the victims many of whom you know these are the same kind can put in a claim to that there's you know and are there bankruptcy of state assets to support this or they're there are some i don't think there are enough and that was that was actually discussed at one of these hearings as well i mean the way the government's benefit of this was we get the guideline range that would be applicable whether she pleaded guilty to one or fifty counts right and and we don't have to go through forty nine many trials to try to figure out the assets that are virtually not going to be recovered en and will forty eight second in terms of the mandamus there are two issues judges can i like to bring your attention in the first case after the ruhleben is done what i said to the court is you cannot conditionally accept a plea of guilty and he said if you're going to take that position mr kennedy i'm terminating this hearing because that mean can or history he cannot conditionally accept once ruhleben requirements are met that is vazquez ramirez we have a judge who routinely says i'm going to conditionally accept the plea i'm not going to accept i said you cannot take that position so that terminated that hearing what i wouldn't agree to that difference and wall at the second later hearing at pages twenty and twenty one of exhibit d once the court set out its conditions i said i am wise and it makes no sense to me why we have to bring in a jury pick a jury not give opening statements i make a rule twenty nine motion and the government doesn't put on any evidence and you refused to dismiss the case i said it's very disrespectful to the people that have to come in and do this at that point is when the hearing got terminated because i bargaining with me on the restitution councell i don't want to be the third party here but why don't you just agree to three million why don't you do this mr kennedy because i have a plea agreement and at the end of the hearing he said not that he wouldn't plea i will not let the government and her into a plea agreement on those terms that's not a judge who is exercising his discretion in a manner that we should allow and that's why mandamus is historically in its central function is to limit a judge to the lawful exercise of their authority and that's why not only is reassignment proper but a but a writ being