case in terms of the briefs is filed under seal there has been no request or motion filed with the court for sealing the argument our view you can proceed with reference to a generic defendant but i really think it's a legal issue so i don't know that we would need to get into any matters that would be considered seal her guilty plea and have the court go forward there can't be specific performance but what savage and the other cases don't say very particularly is they don't say there can't be other contractually agreed remedies if the defendant doesn't appear and in particular what i'd like to draw the court's attention to and why i think this is the proper way to be savage is to look at a case that savage itself relied on which was probably a lot of the first circuit and papa layo faced a similar situation in which a defendant often force against the government and what the court talked about there was we must determine whether the agreement is an exchange of promises or an offer by the government for a unilateral contract and for which the government could withdraw any time before the defendant started to perform like being guilty and what the court probably a look to was whether there were things in the contract that indicated that it was a more explicit exchange of promises and in particular in populate of the language was quote absent more explicit promissory language we will not meet the ambiguous language of the agreement as containing bilateral promises such as to bind the government to a contract on enforceable against the other party now here of course in our agreement is distinctly different from what we had in savage in savage it's not even clear that there was a signed written agreement if you look at the facts if your is that there was some kind of agreement it's not clear what it was here we have explicit mutual promissory language in the plea agreement that is signed says a breach will pull the statute of limitations for certain conduct that the government agreed not to charge between the date of the defendant's signing and some other later time so gender explicit indications that it's supposed to be effective at the time of you have to look at this agreement in the context of the overall or an overall criminal proceeding and we've now clarified i think with the help of the supreme court the difference between the and any time and then if you can withdraw for any reason before the plea is accepted under rule eleven i'm having trouble understanding why your approach doesn't defendant to say well i thought i could withdraw it but not really well no no really they can't they're not going forward and entering their plea there is no specific performance but the contract imposes a condition on that it imposes a detriment to the defendant if they make that election there's nothing in high that precludes that and indeed i would suggest that high which came after savage in fact suggesting the other problem with savage because if you can if you leave hyde as it talks about plea agreements it clearly severs plea agreements and the entry of the plea more importantly it talks about the provisions of rule the eleven that deal with acceptance of rejection withdrawal and talks about those provisions and in that context it specifically contemplates a plea agreement even before it's accepted by the court as imposing binding contractual obligations and the language in high that says that it's basically talking about the fact that the government's performance obligations can be only triggered subsequent to the defendant's performance even though they've entered mutual promises the government's obligations to perform i e to dismiss council to make sentencing recommendations obviously can't be triggered until after the army is anything except an apple and the young may the first is based on a it is true that the government's obligations in this case in other words the consideration that the defendant received for all of the defendant's promises as to what the defendant was going to do all the government's reciprocal promises all of our could take effect with one exception that i'll discuss in a moment practically they would have only in this case given the given the facts only would have taken effect after the defend it appeared in a plea was accepted but first  only contingent as it that is but but and this is important hyde recognizes that and recognizes that that doesn't render the defendant's obligations non binding the language and high that i'm pointing to is particularly where they are talking about this if the court rejects the government's promise performance in the agreement is terminated and before this they talk about the defendant promises performance is well founded has a right to back out of his promise performance the guilty plea just as a binding contractual duty may be extinguished by the non occurrence of the conditions subsequent so what high contemplates and this is it's application of contract law even under rule eleven is that there can be binding contractual obligations that are nevertheless dependent breach here is not the fact that the court didn't accept the plea obviously the fact if the defendant had appeared attempted to end her guilty plea and the court had rejected it that could not be a breach the defendant would have performed by appearing to tender her guilt entry into this green room you are leaving any rights you might have under rule eleven which it does say in the breach provision as to the use of the statements it doesn't that you're not waiving your rights under will happen to appear and have the appropriate colloquy conducted the court still has to go through the process when the defendant appears and tenders their guilty the court would still go through the eleven colloquy to determine whether to accept that where in the agreement does it say in your view that if you don't go forward and plead guilty that government and the dependent can not helpful and with their obligation to show off and make the property the core actually i don't think that's true if you look carefully at all the savage quoted was no more honest which is the fifth circuit case that savage cites but i think you are reading from right the other part of the language in that case is quote surely neither party contemplates and you benefit from the agreement unless and until the trial judge approves t bargain and accept the guilty plea which ties back to papa layo the first circuit case that savage also cites which points to the absence in the plea agreement of any explicit mutual promises this is not that case here there were explicitly neutral promises t indicate an intent on the part of both parties for this agreement to be binding as of the date it was signed and for certain things in that understanding that you know the agreements as to what's going to happen after the plea is entered and whether the court is going to accept it can't take effect until the court sets the police but there were things in the agreement that were specifically contemplating as having effect before that and i don't think any of the prior cases preclude enforcement of those provisions and they're very easy to ask of the agreement itself because if i if we take your argument that really treat it like a contract treat it as an obligation and then i look at the breach provisions maybe you can including and then the ones we've talked about including the if you read that language purely as contract language it seems to me that this breach provision really is predicated on a situation where you have a defendant in there wanting to withdraw his or her guilty plea why and why shouldn't it be read that way well i think there are three wish one is i don't think it needs to be read that way i think it was clearly drafted so it could apply post plea in which case it would mean that the police stands but the government gets to withdraw its obligations on the other hand if it is applied pretty plainly as the agreement clearly contemplates that a breach can occur frequently then the part about the police standing obviously doesn't apply but the government should still be relieved of all its obligations now the secondary answer i'm going to give is if the issue is one simply of drafting and the court concludes that ok if this were drafted properly this could apply i think it is going to take that position then i think basically it should go as far as we're asking it to go for this reason again we are not seeking specific performance of the plea agreement we're not speaking for the court to order that the defendant has to appear in could have drafted it differently it could have perhaps been clearer but i think if you read the plea agreement as a whole it is absolutely clear that all of the obligations are intended to apply as of the date of signature including the obligation to enter the plea and if that doesn't apply it is a breach which is intended to  relieve the government of its obligations so respectfully i think this is drafted that way if you have another and another question maybe you can help find that is in the briefing one of the policy and legal arguments may emphasize was well helpful if you could explain why that would be in your view a burden or would be somehow with procedures that are already going on sometimes  know in the situation in a flea obviously the consideration for the cooperation in other words in an ordinary proffer agreement the consideration for the cooperation is a preliminary agreement basically to negotiate the defense will come in make some statements in return for government agreement as limited use and that will then form the basis the only consideration is look we'll consider those and depending on what happens we'll make a decision as to how to proceed with plea negotiations and those are up and running and up and running all the time you know why they're sort of a you know a catch twenty two problem here which i think that they may well have entered into these negotiations with al that morning without agreeing that that information could be used at the time they gave it to you entered into you could have made it all one document but you didn't do that but the question is why that needs to be done in other words the only the only trying to send a person has warning before they talk to you but here your honor they did have that warning in other words the only waiver that we are seeking to apply is not one that was in place at the time the statement was made rather it is a conditional waiver that the defendant agreed to agreeing that that waiver would not take place immediately but rather would take place only if the defendant breached going back to my question  have both a timing issue and then a legal issue here which will have to sort out but if if the defendants know that by signing then if they pull out of the plea all bets are off in terms of statements why why wouldn't the government in every and try just for the proffer agreement which you wouldn't have that because that there are differences in negotiated negotiation in different cases the bargaining power of the parties in different cases is different sure and in this case the waiver and breach the waiver of the have here in other cases we might have nothing at all that's something that goes on and that's you know i think that's i think the policy argument as well which is to recognize the ability to do what was done here in other words to recognize the ability of the parties to negotiate the future to make it more clear now i disagree that this is unclear but you may decide i understand we know that's fine but only if the important legal point would be to over ride the argument that the defense is making which is how it's factual points that are part of the concerns you raised earlier but they go precisely what some of the admissions the government has made here first and foremost your honor as i believe your view your judgment you and you've mentioned paragraph twenty two specifically in this case contingent and nothing else about it is necessarily guarantee contingent on why is the fact that they're all in one piece of paper necessarily mean that other agreements within within the plea agreement aren't enforced upon them and as i say as i read in young in exchange for that side agreement to enforce the statements let me just speak to the specific point though your honor this court has made clear that that an agreement the defendant is free either party should not be bound by his or her or agreement determines that there's a factual basis for her plea and that she knowingly and voluntarily waived the whole bundle of rights in connection with that plea on what am i playing bound by the agreement they agree but to plead guilty and the other agreements that she entered into in agreement so my question is i'm trying to understand your position as to whether you think that there is no basis for a defendant to waive the rule around there is no basis for the defendant to rape rule of an ever ever and that's what makes plea agreements different than any other agreement the got the government and both in its opening brief on appeal starts with the premise that if this agreement this waiver were part of any other agreement it would be enforceable that's undisputed and i say sure if we had entered a different agreement we have a different agreement in fact we entered a plea agreement let me make something factually clear the negotiations between the defendant and the government prior to the entry of that agreement at all times were expressed leak protected by the police statement rules if you look at the government's excerpts sealed excerpts of record you'll find that all of our correspondence a negotiation back and forth were expressed leave reserve the defendant's rights under rule for ten of is our decisions this court your honor which hold have held repeatedly that the question of a binding plea agreement is determined not by principles not by contract principles not by looking to the uniform commercial code but by looking to rule eleven itself this is because as savage holds those agreements are implicitly or as i think one of you said earlier inherently conditioned on the acceptance of the plea by the court there's authority in parts parra for example court's conclusion that the particular rules that issue there to the police station rules work per se on whale it's said that absent some overriding procedural considerations this is the language of measure not zero absent some overriding procedural considerations reset she avoided cancelled rescinded use the language of her choice the could the agreement cease to exist there is ninth circuit authority in this jurisdiction you're out of this this court has held that when the defendant timely withdraws from her agreement she cancels the entire agreement the government did then its argument today but doesn't this briefs i think we've addressed the waiver cases that we cite washington and and others in three cases and corti o'connell then yet in washington of the court held where there was a defective rule eleven colloquy it rendered the entire agreement invalid therefore the defendant focusing on the validity or force ability of the agreement the defendant the waiver that the offended this brief for the proposition that statement rules have independent validity this waiver was a stick in a bundle of rights that miss will gave up that the defendant gave up and when the defendant gave up that right  she was she rejected that agreement she rejected every single waiver every single cost every every agreement that it contains every promise that it contains including the right for example to a jury trial surely the right to  of the reason i started where i did as well what i would i started because in this case if you didn't want to reach the larger issue of whether agreements are always enforceable time execution or not you could decide this case on the on the facts of this case because of the ambiguity which has to be construed in defendant's favor but we think there's a larger principle at stake here which is that until such time in the in the case law which has been repeatedly affirmed post hyde until the defendant until the court  offends plea she is not bound by the agreement and the rejection of the agreement terminates the entire agreement not just those aspects that pertain to the police that's why in the line of cases from portail condo through w they claim survives the defendant's rejection of it and our position is that when the defendant withdrew from the agreement she rejected the entire thing the the the waiver cases that we cite stand for the proposition following the decision just as an example of united states versus martin in the seventh circuit a plea agreement is a unified document and even if it wanted to a court may not accept in part and reject in part the whole agreement stands or the whole agreement falls she's rejected it and she's not bound by any of the promises she made there in she gave up several rights in exchange for several benefits but under the jurisprudence of this court which survives post high when she timely withdrew from that agreement she rejected the entire thing in the entire agreement fell what the government would have you do is fine continuing the liberty and some provisions if he is if i took of the contract and ripped it up and threw it on the horse i rejoice i walk away from it and there's no breach there because i've rejected it i would drawn from it as i'm legally entitled to do now the government would go and pick up a piece of the agreements and off of this waiver survives and that's why we should use it against you and that contradicts the authority of the circuit let me and since this rule this is really a question on the injury admissibility which is sort of what we're here on and what they want to use and you don't want them to use them the rules specifically think that out the rule does but the agreement at issue here is one integrated agreement we didn't enter into a separate agreement with respect to our police statement rights she gave up several rights and let me just give this as an example among the right she gave up as you as your honour's pointed out included the right to a jury trial what and that surely is not contingent upon the entry of a guilty plea what if she withdrew from the agreement didn't enter the guilty plea and now they seek to enforce not the police statement a waiver but the waiver of the jury trial saying that now she's entitled to now we're entitled to enforce that waiver and she should only have a bench trial surely this court would say no that can't be because every she rejected the agreement in its entirety when the entire agreement falls just like the waiver of appeal that the court in washington found the court there's a among other promises he was entitled to reject was the waiver of appeal so she would get so we reject the agreement and that includes a rejection of all that the assuming that this agreement had gone forward i would be the circumstances in which well in her mind one one would be for example if the defendant had executed the agreement gone before the court entered a rule eleven coll admitted her admitted her guilt the court had determined there was a factual basis for that guilt and that the waivers were entered knowingly and voluntarily and therefore this agreement would take effect now if the defendant subsequently moved to withdraw and the court granted that withdrawal of the guilt if the defendant works to take the words or later withdraw her guilty plea the good the government would be able to use these statements for purposes of cross examination and i realize i'm out of time but if i just quickly finished also creates another ambiguity which goes to the second question before this court as to why the statement should not come in substantively the defendant never agreed and it would and we think as a matter of policy that the clear language a quick couple of points i want to make and i want to start with what the honor to pose as to what is the agreement in this case that quote i understand if i don't come forward and tender my twee i will be waiving will leaven with respect to the statements that are contained in paragraph eight the more clear provision absolutely that could be enforceable that would be a waiver of rule eleven it would be condition specific condition on the specific occurrence but if your honor is going to find that acceptable then what you're essentially saying is the defense position is not correct the agreement as a whole is not rendered void it's just a question of drafting if that's the issue then i would point you arduous to other cases both swick in the eighth circuit which is cited in our beliefs  post young case and scruggs in the fourth circuit both of which deal with a conditional waiver of precisely the type that is in this agreement that is a waiver that is conditioned on a breach occurring this brings us back to what your daughters were talking about the perspect the defendant takes an action that constitutes a breach of the agreement and the agreement then specifically lays out what those breaches are half a dozen i am failing to plead guilty as one of them by the way it does paragr disagree and i think that's why the agreement is in fact clear paragraph fifteen clearly imposes an obligation it's a promise by the defendant to go forward and i think this gets back to the policy issue which i just think it's a very important one there is an advantage to defendants being able to promise what the defendant in this case promised what the government bargains for when it wants a plea agreement it is a bargaining for a certainty of outcome and to the extent defendants are allowed to make the offer in advance look not only am i going to am i saying i will plead guilty but i'm saying to you i am so certain i'm going to plead guilty that i will allow you to use the statements i'm making in the plea agreement against me if i don't that is a mechanism that the defense can use to extract additional considerations from the government and that is precisely the policy point that that's