please the court moratorium for for april daily on there are two issues before the court in this appeal first whether the district court plainly erred in failing to recognize that mr daly on had an absolute right to withdraw his guilty plea prior to the court's acceptance of the plea and second whether the district court plainly and improperly interfered in plea negotiations turning to the first issue the government acknowledges in its response for if that the court had not accepted mr daly on's guilty plea at the point at which he asked that the case be set for trial the government argues however that it was still within the court's power to decide whether or not to allow mr daly on to withdraw his guilty plea the rules of the criminal procedure however do not allow for this type of holding pattern where a guilty plea that has not been accepted is still subject to the district court's power to decide whether to allow the absolutely not your honor and i think the government acknowledges that it suggests that it perhaps evidence that mr daly on did not withdraw the guilty plea but that it was not required in order for him to mr daly on asking that the case be set for trial the district court essentially gave him two options the court said you can image that what you said in the guilty plea is true that what you said in the factual basis in support of the plea agreement is true or you can withdraw your guilty plea and proceed to trial after consulting with counsel mr daly on docket where the parties and now ready for trial and the transcript from that docket called this a short perceiving but that's been made part of the record on appeal and in that perceiving the district court affirmatively states that if mr de leon asked for the case to be set for trial at this point that the court would not accept a guilty plea after that conference in which a jury veneer was waiting in the court room for selection what had occurred at that hearing was the court was addressing some pretrial rulings on the admissibility of the evidence specifically defense counsel mr hudson was arguing that under the federal rule of evidence for tim and certain statements made by mr daly on in connection with the withdrawal of his guilty plea should be excluded from the trial in this case and that was at the point in time when the court really pivoted and where this rule eleven to one error became obvious that's when the court and now that frankly the corps was not inclined to allow mr daley on to withdraw his guilty plea there is again this is where i believe the the district court's plain error under rule eleven thirty one of the rules of criminal procedure became clear and obvious and this is a record on appeal five seventy eight and seventy nine we are on plain air review when the court pivoted and said it was not inclined to allow mr daly on to withdraw the guilty plea the court really shifted the burden to the defense  articulate a viable basis for being allowed to proceed to trial and it was the shifting of the burden to the defense to articulate really  innocence before the doors to the court room would be open for a jury trial that affected mr daly on's to situation to put to plead is sounded in eleven d one of the rules of criminal procedure and point that your client would have been better off going to trial and that's how you stand by probably three words at that any on substantial rights i think this court has has stated that because of the un qualifying nature of the ride it's hard to imagine a circumstance where an obvious violation of that right would not affect the defendant substantial rights so i think that the showing because of the absolute nature of the right is strong but not a  that would not be something i'm maintaining and i'm not saying he would be better off necessarily i don't think that's part of the court's analysis whatsoever i think the issue is would he have pleaded guilty would he have asked for a jury trial we know he had asked for a jury trial at that airfield twenty second hearing he reconfirmed his desire for a jury trial at the may call even when the court was saying that the court would not accept sucked a guilty plea past that point and defense counsel to reassure the court that this had been every time they're having some sort of proceeding it's also a plea hearing because the magistrate judge by agreement with the friend and took the plea and them of course the district judge has to approve the plea so we're at sentencing where the district judge will approve the plea and then get into sentencing and then we start getting into all this in and out about whether he wants to go to trial and it just never ims i've never seen a proceeding like this where apple's left and right on what he wants to do in his invasive in his answers to the judge i guess so i guess so and the judge keeps trying to work work its way through this including saying well set it for trial and then we're back into it again and when the judge points out you're you're entrapment defense because suddenly the pennants raising this entrapment offens you know law enforcement is trying to entrap people by not removing all the sights from the televisions or computers i've never seen a proceeding like this but it's i frankly don't think it's as cut and dried as you want it to be especially under playing era and i would agree it's an unusual proceeding to say the least and i do think that in the april twenty second hearing that began as a sentence in hearing part at least at that hearing to ascertain whether the guilty plea that the defendant had interred previously was nearly involuntary and i think it is clear cut and the point where at the pretrial hearing when it's it's clear cut that there was going to be a jury trial there was a jury veneer waiting and that doesn't mean that or a defendant can't change his mind but the defendant had not asked to be heard the defendant had not said your honor wait a minute you know can we stop this train in its tracks this was prompted by the district court statement that frankly district court of its view that it still has the power to pre term it a jury trial and i think that is playing under the rule of criminal procedure eleven day one a matter that the district court never formally prevented the withdrawal i was missing language from the bench but at the end the day the district court didn't actually i think that there did reach a point in time after defense counsel had articulated it there was a defense if the defense did have a strategy and that wasn't willing to discuss ruled on that that would not be what would occur so mr hudson had had tried to explain to the court that that was not his view of what this child would be a val mr daly on and say how would you how would you proceed and mr daly on a still questioning he's confused she doesn't understand that now the burden has been sort of placed on him to explain  his defense of theories and in i think it never should have gotten to that point and only did because the district court insisted it still had the power to prevent him from like to make a point though there is a second issue here and that's where the that is where the district court interfere or participated in plea negotiations and this is an important point i think the court by shifting the burden to mr daly on to articulate a defense of the court would find acceptable was communicating that the court found that the outcome of this proceeding was obvious he would be found guilty that there wasn't an basis for him to assert his innocence and i think that this is a clear interference  but i think there's even a clear interference and that is when mr de leon was was really trying to decide at that point whether to withdraw his plea at the court offered to change the terms of the plea agreement which is a clear participation in plea negotiations when the court said we'll have a contested hearing even though mr daly on had already agreed in his and at the pretrial conference jury selection some months later and basically he didn't like where he was he at one point he says to the district court please make all of this go away and he was grappling with pleading guilty or going to trial he had effective counsel who was trying to figure out what his defenses were if you look at the the proceeding on june twenty third and june twenty third is when the judge when judge moses has a jury they're ready to go forward that follows the docket call on may thirteenth where she says basically well this is a trial and this being a trial he's not going to get to play it if he changes his mind and everybody says that's fine i think what happened in the interim there somewhere is the judge sort of forgot what she said at that the docket call but up to up to the point of june the twenty third she had been treating it as though the police had been withdrawn she said it for a jury she said there's no more plays and what was going on at the june twenty third proceeding is she was making rulings on motions in limine and questions about the admissibility of defenses and she had thought that the defense was going to put on some sort of affirmative defense based on entrapment although she damn much confidence in that type of defense she thought that's what they were going to assert they based the defense lawyer mr hudson stood up and said where we have no affirmative defenses which i think sort of thr into well what exactly is going on here why are we going through all of this and and in the end as she was making rulings on the admissibility of evidence mr hudson volunteered that well he knew he had some problems with his defense is that one of the main issues was how many videos was mr de leon going to be held accountable for because he sat he deleted the videos from his computer and his statements were i don't know how they find me culpable for this or to that effect because i deleted all the videos they must have been doctored in some way but he tacitly admits that he had child pornography videos on there and that he viewed them and he specifically admitted it at the guilty plea hearing and mr hudson is trying to basically navigate this well if i put my my client he says this l f i put my client on the stand he can be confronted with those statements and it's during the course of that that mr de lay own one more time changes his mind and essentially what the district court says going through it is looking you don't have a defense there's no affirmative defense you've given no notice of affirmative defense so you can't get up and say gee i thought that it was lawful because they were on the internet and you can't say that it's entrapment because agents have an obligation to take this off and have asserted that it's not entrapment anyway and as to the statements that you've made in said those are going to come in and so at that point it's sort of devolved down to a result down to this is a sentencing question and at that point there was conferring between mr hudson and his client and the court said what do you want to do near the end of the hearing she said i've got a jury downstairs they've been waiting do you want to jury trial or do you want to do you want to persist in your guilty plea and go forward and have all of these factual issues heard by me at the sentencing and that's what mr dale on the on ultimately decided on but he's he's went back and forth a number of times he's gone back and forth again because now he says well he didn't really want to play guilty and he's got a technical argument that the court didn't promise or didn't properly withdraw it but i asked the question well once he said at the able to twenty second proceeding i want to trial she said fine we have a trial she said of her docket call less than a month later she told the parties there will be a jury she held a pretrial conference in jury selection on may the thirteenth there was a jury there and it was only because of the conversations that are going back and the and her evidentiary rulings that it gets to the point that the defendant comes back around and says i see this is sentencing circumstance i'll go with you judge you'll hear all of these things as to the second issue of the judge's participation in plea negotiations violation of the rule i don't see that she was participating i don't see any of the ills that the court has recognized before in judges participation she wasn't talking about terms the agreement in fact at one point mr hudson tried to get the court to agree that the number of videos for sentencing purposes w include the deleted videos that she deleted from his computer and the judge says exactly as she should that's a sensing issue we're not resolving sentencing issues here she would not make a commitment she wasn't going to engage in plea negotiations and she had said earlier in the proceedings she had not i think later in proceed she had not participated in plea negotiations and that's not what this was this was in the end i think a very long drawn out attempt by the court or at least indulgence by the court for mr daly hon to decide where they wanted to exercise his trial right or whether he wanted to persist in his guilty plea it's it's an unusual record i don't believe i ever read a record so many times and each time i read it it's it's almost like it's a pal obsessed i find something else in there that i didn't i didn't fully comprehend before but i think that this circumstance is not unusual i don't think it's unusual for a district court to have a defendant who is pled guilty who comes in and waffles on it to say look if you're not going to admit your guilt i'm not going to accept this plea will have a trial and many of those circumstances the defendant comes back and says no it's not about a talk with my lawyer are persistent the question i guess th before the court is what magic is the court supposed to do when that happens is they're supposed to be some sort of formal standing aside of the guilty plea and i'd submit to the court that whether the judge moses had entered an order saying your play is withdrawn or not withdrawn by the time you get to the june twenty third proceeding we would have probably gone through the same circumstances and we'd be at the same place except we wouldn't have an issue on appeal because there's no ambiguity as as to what the judge's understanding of the withdrawal of the plea was that i think that we would be at the same place he would the judge would make the same preliminary evidence through rulings he would have been in the same box of the same corner with respect to what the sentencing issues were going to be they weren't issues that the jury was going to be able to hear and counsel would have had the same problems putting him on the stand with his being cross examined basically opening the door not only those statements to get another problem in there in his problem was there was evidence that the judge said would not come in under four hundred four b unless he open the door and that was circumstances that he had molested his own children some years before so the defendant was in a difficult position and it's not surprising that he played with a judge please make this go away but in the end at the end he had good counsel he had plenty of opportunity he had a clear explication by judge moses these will be the issues of trial these are sentencing issues so decide what you want to do but you can't get up and claim entrapment where there is no such thing and in the end he decided to persist in his plea and i think that's what's going on and i've asked the court to affirm the conviction i think mr durbin's version of the facts would make more sense if what the court had said to mr de leon was you can still play guilty but that isn't what the court said the court said i am not inclined to allow you to withdraw your guilty plea this was it is not uncommon for a defense counsel to be dealing with and unsure client and ensure defendant and it's not uncommon for a district court and to be encountering and unsure defendant that what is uncommon is what occurred in this case and that's the extent to which the dis a sense the district court by implication allowed the withdrawal of the with the district court never ruled on the guilty plea that's the problem we have here because the magistrate judge it heard the proceeding well the district judge never said accept your guilty plea during all of this back and forth and so the district judge by implication at least thought well you withdraw your guilty plea because we're going to have this jury called we've got this pre trial session after the docket cult and then we get back into it in the defendant's wanting to plead guilty i mean it's just like a penis match here between back and forth i want to i want to play i don't want to play out an affirmative defense to go forward what was being discussed specifically was whether to suppress statements made by mr daly on in conjunction with with a guilty plea that had been withdrawn and i think this is when the court realized that there could be a ruling where some of these same ones actually would be surprised and that's when the court i brought of statements but they were going to a jury trial so there really wasn't this tennis match back and forth and yes there there had been a plea agreement negotiated between the parties but this court  recognized pacifically and miles case and in the rodriguez scarce that even with a guilty plea has been executed a court can still be found to have improperly participa tainted by changing terms of the agreement and opposing counsel is incorrect when it ignores that the court said well well it's still more like you just want to discuss matters of sentencing mr daly on mr daley honest part of this plea agreement it a twenty four in a twenty five in the record agreed it's not to contest any of these matters as far as the number of images and the way those images were captured that the court in order to really induce a guilty plea the final decision on mr daly on's part so we can have a contested hearing with the agents this was something that here agree not to do but the court in order to induce the the guilty plea changed those terms i see my time as if the court has no other