and it's almost like where do we begin i suspect that i need to touch on the jurisdictional issue before going into what i consider to be the heart of the matter is the government in this case is challenging whether we have jurisdiction to even get in front of this court today because there was a plea agreement which contained a written waiver of my client's rights and bring in the post conviction proceedings and the position that relied upon her advice based upon her analysis of the rap sheet that with what was presented to her by the government the government and all he knew is only criminal history di to or about honest with their attorney their attorney proceeds to enter into a plea agreement with the government based upon a this undisclosed criminal history the defendant has it going both ways if the government eventually finds out and they get a sentence that is harsher than they would have otherwise then they can say oh i'm ineffective assistance of counsel because they didn't find my criminal history and therefore i didn't understand that my criminal history was going to be calculated if the government doesn't fly did then they get a lower sentence and they've been able to pull the wool over everybody's eyes so i made it kind of encourages people to  misrepresent a lie to their counsel about their criminal history because based upon what you're suggesting they have a win win situation i understand your point i have to respectfully say i disagree or at least i don't believe that in this particular case that is what occurred we're dealing with a man who had a third grade education and he comes from a foreign culture he's not he doesn't speak the language of this country i am not convinced in my own mind just as i believe trial counsel was not convinced in her mind that he was deliberately withholding anything i think it was more a question of his not understanding what her i mean he knew that something with the legal i think the courting to the records he had ten days in jail prior to the conviction because he was sentenced to time served ok but then he had also supervised release of some kind he was on probation thirty six months probation and he was on probation at the time of the current offense which is what gave him the extra points in else we have to we have to in order to believe that he didn't know we would have to believe that he was totally an attorney when i'm in a situation like this and i know the county where this took place and investigator to copy the court records so that i can determine for myself what the truth of the matter is as counsel herself  clients are very poor historians of their own criminal i believe the i am a district judge i'm very sympathetic to the issue because in hawaii where i said we have a lot of people of filipino ancestry we've just come from the philippines we have a lot of people from asia and so i am very well aware of the fact that you have to be particularly careful i'm playing the devil's advocate with you here a little bit because these are concerns that i've heard raised by many and that is that the circuit court should not create a situation where it benefits defendants to lie to their lawyer for many good reasons misrepresent knowingly they just so they thought there wasn't anything on council listens to that the guy says he doesn't have anything now we've got these little papers here and i can look through here and i see he did have something and they did and now the alternative solution and have and ask them to brief it and then they came back in the government said no we're not going to offer any kind of alternative solution because we're concerned that this is going to open the floodgates and the  a let me let me ask you as a question of prejudice was this was the judge correct for the government correct that there wasn't really any alternative in that there wasn't a mandatory minimum so the judge was maybe redo the new indictment do something to get out from under the thousand plants or whatever well i think the judge was it was justifiably concerned as i would be under the circumstances with the fact that other participants in the same transaction including printout that shows no can even though she says in her declaration that you know these clients are notoriously bad historians of their own criminal history levy there is no intermediate step here that could have been fashioned we're talking about ten thousand marijuana plants this is the largest grow in sequoia national cousin who also was not safety val you have written plea agreements you have counsel you have a spanish speaking interpreter and you have a defendant who just two years earlier received that criminal conviction but let's not have it where you talk about it was that sort of the devil's advocate but the win win situation you give a false name will find actually this particular conviction and so low and behold it turns out that the probation department does precisely what we in the system expected to do written plea agreement that was as part of the record you will see in the record that the court highlights certainly for mr kohn is that he was had a right to appeal and he was giving up that right to appeal to the understand that he said he way it should be all we have here is a deck gracious by counsel and certainly a great regard for counsel but no opportunity for the waiver of attorney client privilege that goes on in twenty thirty five litigation no opportunity for the government to get into greater detail about the nature of the discussion that she had had with her client well is it your is your is it your suggestion that what we what we should be doing here is simply saying