creature it's essentially a fictitious crime in this case agents convinced a poor black man in the ghetto that there were riches awaiting if he simply got together a couple people in and robbed this fictitious stash house so we have a robbery of a pictish a stash house of pictish just drugs and fictitious money guarded by the fishes people and a gun used in a crime of violence and felony possession of a firearm which is the only actual crime is a crime that was committed so it's kind of noteworthy he faced a potential forty years to life he went to trial and asserted the drachma defense and there were all kinds of tapes which the agents made sure they had which would be very difficult for him to overcome however his plea was not accepted by the court the court said yes and i quote normally at this time i would go ahead and accept the plea and make a finding of guilty but since it's a recommended sentence we have to refer the matter to the probation department for a p s i i when that comes back w it's it's a it's essentially yes a case whether he accepted the plea and he simply did not onset is that factual i mean because the district court city did except the play or is it legal because what he said couldn't amount really it is that the legal conclusion is the important one was it accepted i mean that under the law that the government has argued that you know there shouldn't be magic words well there are magic words  conditionally accepted is accepted and that's legitimate that's what you do with a binding plea agreement but the only case which actually supports the government's position that you don't have to say it's accepted and it's somehow accepted is that kills her case which is an under forty district court case where a judge was trying to correct his own error which he had made and he made he said inadvertently i forgot to accept  that case had been appealed i don't think it would have withstood review that's the basic argument we simply don't have a plea that was accepted pliers to the defendant moving to withdraw that which he could do for any reason or no reason what is the normal practice in in this is the southern district of ohio what's the normal practice or is there a normal practice with respect to acceptance of the that district i was in the usa for over thirty years in the northern district of ohio in cleveland i can tell you what we did there which was the court always said i accept the plea however i may not accept the sentence in which case you have the right to withdraw place and that that was always the procedure it was accepted at the time it was offered conditionally as as the about cases depending upon whether the judge would agree to the recommended binding sentence being appropriate well that's interesting because at least map practice in the district court act came from was not to accept the plea at the tab of the pl in this case except i would have described it as not accepting the police rather than accepting to play us that that's very interesting and it could be done that way but the defendant would have the right to withdraw provisionally accept your guilty plea would you have a case then no now or conditionally accept and then we have the additional feature here that the minutes apparently say something to that effect that the minutes for this event say that that this was provisionally i can't live with this provisionally or conditionally but one of the other well the clerk can write anything they want it's not part of the proceeding say normally i would go ahead and accept a plea and making a family finding him guilty but since it's a recommended sentence we have to refer the matter to the probation department for a p s i i that is what he said that  out this form and then the manager i do know  i don't practice in the southern district of our part in your experience with the clerk the dept the deputy clerk is in the courtroom to do it you don't know or would the judge do it now the judge really it presses the limits of what is constitutional and what is fair to simply talk someone into a fictitious crime i mean the f b i agents can can say ok but that's a heck of a risk with the guidelines as high as as they are in these cases it's a i look at it as a kind of a bureaucratic trick because the supervisors get credit for oh  a waste of law enforcement resources in addition to everything else they have and they're not doing any good all they're doing is generating stats to make themselves look good like supervisors look good and you know for whatever employment mean i certainly will be happy to talk to whoever represents them thank you ok on behalf of the united states ruhleben does not provide any details about what the court must say to accept the plea it does provide details about what the court has to say before accepting a plea and before entering judgment of course before accepting the given what this judge did did he do a no two except the pool and we think that regardless of the discretion her view or do novo review that the district court judge accepted it in an ordinary case the district court has no reason to conduct a plea call and make the necessary findings in less he intends to rule on whether to accept the one see proceedings it's not necessary to differ acceptance of the oh it's not necessary but many judges do and the reason to do it would be that since the defendant has the that that this was the senate he was going to get when fact in the judge's man be no more likely that he's going to get the agreed upon senate then he's going to get some other senate because the judge can't know that without a pre sentence report court my impression is that the standard practice in the southern district is to accept a plea and just for the plea agreement in our office there have been number of meetings in which we encourage the attorneys to do police has not yet been accepted and the defendant can withdraw the guilty plea until the district judge does accept what's wrong with having that kind of a clear or because it's the defendant should know whether the plea was accepted at that point in time or not and not have these kind of big words i don't think those words are very vague when you say normally i would accept it but i'm not accepting at this time i'm postponing it or whatever it was i mean that same's totally unambiguous  any sort of a clear statement requirement is that if there are magic words required there could be a case in which the district works as something that's not quite the magic words but everybody present understands that it was accepted if they say i'm going to go and enter judgment on the police or something along those lines and if all the parties understand that the things excepted et c we will start the investigation we will well you know these are district judges we are talking about they are highly educated i mean if we didn't require  but merely required clarity do you think they're not up to the task if the current standard provides room for that we're looking at the entire record i don't think we need to have anything beyond that standard and certainly there in the usual case it will not be quite this muddy we wish that there had been a slightly clearer statement i want to i just want to go on record that i believe that the district judges are as capable as or at least most there was capable of most members of our court are to use words that indicate clearly what is included that point  you may want to i'm sorry i forgot but so you're correct that that is a statement read in isolation that indicates that the clean deferred acceptance that he has been deferred case but my understanding based on conversations with our attorneys is that in general the depth the deputy will fill those out in the judge reviews them so this is different than the actual docket have you know to judge reviews them it's not that there's not a signature but that is the general practice but even with specific knowledge that the judge judge you all see i mean isn't this person in the courtroom the deputy yes so i don't have a signature he there is a way of seeing who made the action and where the actual docket entry in terms of who wrote or were entered here might cetera but there's no way of seeing who wrote the document that's filed and i think there's a distinction between the documentary which is just written by the clerk's office and the actual document filed which in the ordinary course of business is the words of the judge but another problem even if we knew hypothetically that this judge actually approved that criminal minute the defendant doesn't know what's happening the defendant is there in the court room and here is the judge saying exactly what this district judge said and normally i go ahead and accept the plea and make a finding of guilty but we have to refer this to the probation department we're going to have another proceeding so a normal defendant with not too much legal education would presume that the go to please stop and accepted i would argue from that language and how can a criminal minute by even by the judge have a different affect  day nobody requested that the plea be deferred by the district court during that because look we indicated as the defendant if you understood that he was at that moment giving up his right to trial there was no indication that he was considering deforming acceptance of the plea and making that a later date in the problematic statement toward the end immediately before that he had made a discussion of  when his findings and immediately after that he discussed the probation report the sentencing and the actual sentence not any consideration of whether he would accept it the actual error here  s normally the time i would accept a plea agreement but since i don't have that well i mean the implication is but since that but here i'm not quite personally i think you're correct but if they were plea agreement there would be c i will have to determine whether i accepts the recommendation in the plea agreement and so i think that the later statement of normally what i do and how this case is different i see the proceedings has to be read in the context of his earlier discussion of sequence the proceedings in which he says normally the sentence is determined by the guidelines but here the sentence is determined by  i understand the court's concerns with clarity in these proceedings and with a procedure by which the defendant gives up his right to trial as your craft in your opinion and i would encourage you to consider the value of finality in the risk of uncertainty in these proceedings as i said before i think this could create situations in which it is a true aggressive rule could create situations in which people thought the plea of been accepted and i think here there's no  the evidence begins to fade and because a technicality later things are opened back up and the investigation is  i suppose if we had a clear role the a usa then in any given case could say hey judge i want to remind you that we need to have a clear statement that you're accepting the plea currently trying to do that i found that they are sometimes hesitant to address judges in what might appear to be correcting with judges so we are certainly currently trying to do that i don't know if a more aggressive role from the court would do something to aid that poor in crafting the rule to look at the purpose of ruhleben which is to protect against hastily entered pleas made with unsure hurt and confused mind not to be allowed to would be that drawn as a tactical decision and here he clearly made all  necessary findings that it was not going to be withdrawn with it was not he entered he was not confused about it and that would also point the court to hide the supreme court opinion we