obligation to conduct the competency hearing and whether the jury should have been instructed in accordance with the d c circuit case us vs height on the issue of competency it's undisputed that there were a series of court appearances in which the district courts observations and colloquy as with mr will carr raise some serious doubts in the court's mind about whether mr wood carr understood the nature of the charges in the trial process and understanding even the defense counsel who initially stated that he thought mr wood carver was competent ultimately said he wasn't sure you have to further discussion with the district court now the district court called for a final report you know up to this point the district court actions were in the words of this court in ehrenberg entire entirely appropriate but the conclusions in the final report were unchanged from the ones that had aroused the district the experts retained by the defendant state that the defendant was incompetent your honor it wasn't a competency evaluation they didn't state either that he was competent or that he was in ca but it appears that their report was directed more in the nature of mitigation that they were looking for reasons why he might not have understood the full degree of wrongness of his conduct and why he might have a diminished criminal responsibility for his actions they weren't really looking at the questions of competency namely whether he understood the proceedings and or whether he was able to assist in his defense so at that point is you saying that the judge should have required that they go back and make that kind of evaluation is that basically what you're looking for that is  if the district court has reasonable cause to believe that the defend the name quote unquote may be so be in combat and certainly in this case the district court i think was very clear that it that there were matters on the record the cold mr wood cars competence into question and well that what i said was true as of a particular moment in the course of the proceedings right then there was this examination there were further interactions conclusions of the findings were really on j so the final report didn't distill the reasons why the district court had qualms and i would submit that on this record that a further competency evaluation hearing should have been held on to win theory in ehrenberg as well as under the seven circuits decision in graves which i submit is very on point in this whether it still had qualms as of the time of the trial with that would that be satisfactory then the judge could say yes or no and could explain whether  he had continued reservations and on reflection maybe should have had a hearing or explained that he did not well i believe that really would be incorporated within the remedy that is court ordered  ehrenberg which was a re man asking the district court to determine whether the defendant's competency could be retrospectively determined as of the time of trial that was part of the remedy you ordered in columbia circuit was addressing a somewhat different issue in a somewhat different context but to the extent that you're saying that persuade requires some finding in effect that the person persuade ok suppose i offer you a bribe suppose i think maybe you're not going to go you know i'll and a minimum i'll come and drive you to the polls because i think you are a supporter of my candidate and at a maximum maybe i'll corruptly offer you money to make will the statute says if i try if i attempt to persuade or to induce that's a dr well it's overcome we're transforming the will and to from indifference to be this added element of persuasion inducement about asking over several over several days and numerous conversations well maybe a jury would find that that rises to the level maybe a jury would find oh yes this is not mere discussion this period was and doing this over such a period of time is engineered to transform that well i mean it's entirely possible as we said in the briefs that a properly instructed jury could convicted mr karr but i believe that they should have received this instruction on what the difference is between asking and persuasion and that if they had received that instruction it's not a foregone conclusion that they would have convicted that it may be that if there's a retrial and if this instruction is given they'll convict him but the jury but he is entitle to a trial at which the proper the proper meaning of the statutory terms and even more importantly the distinction between what is a crime and what's not is conveyed to the jury  terms that the high case required ok i'm well into my rebuttal time at this point so i will reserve and you will hear from the government thank you may please the court my name is daniel nostrum for the united states i'm an assistant u s attorney in the southern district of new york and i represent united states in this appeal as i did in the district court of st trial accounts of arguments concerning the co ongoing it noted that the defendant may suffer from cognitive issues but it did not include the factual material the more developed evaluation an explanation of testing performed that was included in the twelve page a ten year minimum mandatory in this case then i'm on the government was prepared at many points throughout the proceeding including on the eve of trial or even in the midst of trial to offer a plea to a twenty different crime which would carry a lower mandatory plea offer indeed many times in court both the defendant and the attorney explain that they had discussed the plea discussed the evidence discuss the case discuss the possible sentencing exposure and you know as the  that a different resolution was possible but that does not mean he was incompetent to make that decision nor i so the government decided the five years was enough punishment for the crime but to satisfy society's objective but the five more years was required your honor that the defendant was a trial in the charge in the indictment the charge of the entitlement of an attempted child enticement is is what the defendant committed and what he was charged with and what he was tried on the the lesser honor that the ten year mandatory minimum penalty is sudden in place by congress as are the consequences of his conviction there the question about the proper resolution was considered at multiple levels of our office we have a three member the office has an established litigation process for a number of offenses but specifically for crimes against children and related sex offenses there's a focus medication committee that includes one of the chiefs of the general crimes unit  and and two senior usas with a particular focus on these types of crowds and this panel sits over all medications commissioned by similar cases in this case the defendant made a written submission to the mitigation committee  honor that was that was known to the mitigation committee and the mission committee was considered you know of course the defendant personal circumstances i was taking into consideration as was the spectrum that these harley if the highly specialized really smart people in your office course like yourself believe that five years was appropriate then how can ten years be appropriate to how can you believe ten years is appropriate yes on this specialized body concluded five years was approached i don't believe that what happened here is passing judgment on the propriety of that punishment session i believe that there could be multiple appropriate how comes and while we were we believed a lesser outcome would have been appropriate believe you believe a lesser outcome would have been acceptable in exchange for a plea and this is the nature of plea bargaining is really what your answer is right yes from what what your ordinarily happens in these cases is a defense counsel presents mitigating material in an effort to get a desirable agreed upon resolution rather than going to trial but in this case even though there was a somewhat mitigated offer the defendant chose to go to trial i mean i often i do find this institutionally in general somewhat problematic that we have a sort of acknowledgement that a lesser penalty would do but the only way you get it is by giving up your your rights but  i think your position is that is the nature of the system fundamental change in the government prove this is a case where where the defendant went to trial on mcalpin he's been charged with from day one i am not one hundred percent certain judge that i can try to find that out from his wife and i haven't been involved with the immigration ends its case i believe that it may have been interrupted by this case just very briefly to touch on a couple of points that counsel made and the opposition i think that the whole issue of whether the defendant chose to plead guilty rather than go to trial is really brings us back to the question of whether he understood what plea bargaining is and on this stood what the consequences of going to trial were and that brings us back to the way in which he couldn't really distinguish between a statutory minimum and a maximum that he couldn't really explain what plea bargaining is that he couldn't explain a great deal about the nature of the charges other than that they be a procedure as to whether he might and whether there might be any ways in which he could be made competent and if he can't be made competent then i would believe the would have to be dismissed and with there be it would he be exposed to some kind of civil commitment it depends on what the nature of don't has i has he been has he been advised as to these possibilities i mean in terms of this appeal is well i guess and i ask you anything about what you've advised him or not advised him  well i as as i was saying these are cognitive deficits that issue here rather than psychosis so i don't see civil commitment as being a a major possibility here and i would i mean if i were in his position i might even prefer civil commitment to ten years in prison followed by deportation but certainly look mr george and i can have that conversation with him and we d determine whether or not he wants to withdraw the appeal i imagine that he would not we can certainly have that conversation with him and report back to the court if the board wishes us to do so i don't know that you need to report i assume that counsel have these conversations with clients and the clients make such a decision if that hasn't happened then i think you should reflect on whether that's something appropriate for you to do i don't know that we need to report back if the appeal isn't withdrawn i assume that the client has been properly advised and decided to proceed with it but i just want to make sure that you're aware of the risks involved in  that the client has been advised of these things and at least to the extent that he's competent now because of course today is different than when the trial happened if he's competent to make a decision whether to pursue the appeal or not that he's been properly advised and made an intelligent and well advised decision but that's that's just i mean i think that's part of your responsibilities i don't know that we need a report as to what the result of any s conversation is if the appeal stays in place i assume that the conversation has been had and the client has decided to proceed with the appeal i mean i i if this were a case involving psychosis we certainly would have that kind of deficits i don't see that as a realistic possibility but we certainly will have this conversation we will convey your honour's concerns to the cloud on my concerns it's not my concern it's a question of what you believe is appropriate or not appropriate to discuss with your client i'm raising the issue it's your decision what is your professional responsibility in the circumstance and if you decide that such a