whether the government proved the restitution amount by any reliable admitted evidence and it's clear that they did not there's through factual assertions that one kind of implied one is explicitly stated in the government's brief that i want to correct used his decision on harmless most of the error in that to that point there was no indication that any challenge to the seven hundred dollar amount could be made would be made or would prevail that to me is the only issue here so if that's true to this day there's no there's nothing to suggest that it would be different leads to the other thing that i think is if false and what the government's arguing they're arguing that it's in this is what judge carleton if you read here is the oral discussion in the world argument in this case where he was convinced of harmless error was when the government pointed out relying on gam let me just finish my question and then you'll be clear to this day is there anything that would cause anybody reason to suspect that a challenge with notice now with an opportunity to be heard would produce mr anderson didn't have an opportunity to cross examine on there was no witness there's no reliability he challenged the reliability of the canyon in a felony case just relying on a contested pre sentence report without any evidentiary development or even any questioning of the probation officer  that it would take him a day by one person to actually and that's all in the record is it exists my question is we know what the major street judge did on the record as it existed judge carlton's view w deal than you're asking us on the basis of the record never mind an opportunity for her not to rehearse there is evidence outside the record we have photographs of what the site looked like there is evidence that mr anderson can probably talk to his friend a contractor landscaper and come up with a different estimate of how much it would cost to fill in the hole and do all the things that the forest service needs to says needs to be done so you're saying if he's given a shot he can put on some evidence that would show that that figure is wrong yes ok that's my only question ok i'm sorry and you understand that we have another question have you given any thought to mediating this dispute i first thought about it but i you know i got this case understand position and i know that he is able to pay the fines that he has the money for that and we're going to get that paid this afternoon when we get back to sacramento assuming the clerk's office here doesn't want to take the money the restitution amount more well i don't there's a very real risk on rehearing that the government's going to come up with a new estimate of what needs to be done in terms of restitution and the court is perfectly capable of adopting a much higher number i wouldn't be court however in traditional review of the case one of the fundamental problems with what happened here and it is one of the things that i want to rigidly make a point about which is false in the government statement of its facts one of the key things that in which judge carlton was convinced of is that because mr henderson was warned of the five thousand dollar fine amount there's no harm to him for not having gotten earlier notice in fact the five thousand fine you know i couldn't find anything in the existing transcript that explained that show that that actually happened i did listen to late last week when i found that we had ordered the disk of the initial appearance and the initial appearance he was sworn in five thousand dollars so i have no problem that aspect of  could make his rational reasonable decisions about whether deplete whether to come to some mediation whether to come to some compromise of what he was facing the most he heard in november of two thousand and four seven hundred fifty dollars and it wasn't until after he was convicted negotiations between the government and the defendant where a matter has been referred to another judge to serve as a settlement judge and the government would be willing to do that but i think you're right that if this court reverses the sen today in our graduate straight court in sacramento there are one hundred fifty four service cases on calendar of this type and many other different types anything from parking to who knows unlawful occupancy i don't know what's on the calendar but what happens is the defendants who actually do not forfeit collateral and come to court are given a quick opportunity to forfeit collateral or plead guilty and pay the same amount as the collateral bail  citation collateral amount shouldn't have been so that it should have there should have been a mandatory of parents because the government was seeking restitution but in any event once mr anderson rejected that offer then all bets were off and when he went to trial he w subject to anything up to the maximum penalty that could be imposed under under the law and that included a five thousand dollars fine on each of the three counts no list no prison time because the government had agreed not to seek any incarceration on these cases but then also the special assessment for each count and also restitution as appropriate under under the the law  defense counsel has said that mr anderson objected six separate times both in the trial and in some other proceeding in which she didn't identify i've read this transcript the transcript of this case repeatedly all aspects of it both in preparation for my argument and preparing my brief in the district court and for here and what i see is mr anderson complaining about his ability to pay i don't see him complaining about the accuracy of the forest service report or suggesting that he could come back with any kind of evidence showing that the work could be done more cheaply he did offer to do the work himself and claimed that he could personally do it more cheaply but the court rejected that when the government objected and so other then claiming that he could do it himself more cheaply there is no challenge to the bullet in the of the the report that was prepared by the forest service i don't i think that one of the things that's important to recognize is that federal rule of criminal procedure fifty eight sets forth the procedures that are to govern the handling of these petty offense cases and i mean part of the reason that congress delegates these matters to the magistrate judge is to handle instead of having district courts take their time so that they can be handled immediately to sentencing after a conviction unless one of the parties asked for a continuance to take up some other matter the local practice in the eastern district and as i understand it throughout the country the administrative office of the courts has indicated to probation departments and they have then told their courts that these petty offenses should not be clogging up the probation process in preparation of pre reports that should be left for felonious and serious class a misdemeanor and that the courts should not as a matter of routine reach for petty offenses to the to the probation department and in this situation there was no not at all i think it would have been it would have been ideal if the forest service officer who handled this case was the prosecutor had obtained the analysis of what it would cost to refill  harmless error and it was not judged carlton can never be accused of rubber stamping any body's decision on anything and he certainly didn't do that here he analyzed the case very carefully and he came to the conclusion that even if the defendant had notice in advance of the trial there's no indication that anything would have happened any differently and if he were to have vacated the judgment when was he supposed to  been well what he could have done your honor is he could have said to judge hollows this is the first time i've ever seeing this and i want to present my own evidence of of what the what it would cost i and or i think that this estimate is wrong or i don't have any idea who this forest service person is and i challenge their credentials to come up with this house that he didn't do any of those things mean it was not realistic for him to go and asked him i think i think that he didn't even he didn't even suggest the possibility that he could get his own estimate or that this person should be brought to court and cross examined instead all he did was offer that he could do the could have talked to some of his people in the construction trade he didn't do anything like that he didn't come back to the court with that and then when he had his attorney helping him on the appeal to judge carlton he didn't present anything to the at the trial that he couldn't get photos or go up to the site because the snowden well the reality is the government provided photographs we provided to counsel for our direct appeal there is something he could use he's got photographs of what the site looked at me or about the time that it was damaged so it's not quite to say there's nothing he could do i find it and i realize that i do hate us and appeals almost exclusively that we are charged with putting on extra record information to judge carlton really little case about restitution but the most disturbing thing that i heard out of the government's mouth this morning as if this case was handled just like every other of the petty fence calendars of tower any you know anywhere else in the united states the reason the rule fifty eight ha their purpose and it should tell the forest service agent whether they're masquerading as an attorney or not that they need to give that information they can't give it up prints their comment about you know poor pitiful poor service agent why should they know about what they're seeking in restitution