before judge martinez and i think this is on for forty one of the every day jury record judge martinez recognized that the government did not object to the application of the two level reduction for acceptance of responsibility but what anything well actually i respectfully disagree but i'm just wondering what ok and i think that what when you look at subsection b subsection b is not about her acceptance of responsibility it's about her time we notification to the government or intend to plead guilty and so the discretion of the government has to file a motion under subsection has nothing to do with her except its responsibility it only has to do with her determination that she with the determination that she time will go to fight government over intent to plead guilty and that's actually made clear in the commentary to q three one point one where the commentary states that the government is in the best position to know what resources it had to expend and that's the question that needs to be that the government needs to answer and file a motion according here we're in a unique position where the government has already established it didn't need to expend any effort for her to have that there's no evidence that that changed and the government in refusing to file a motion actually indicates that it's for a different reason unrelated which is her testimony and it's close to some subsection b the moment she pled guilty that's well there's it in this circumstance yes you can imagine a world in which she she pleaded guilty and then tried to retract her guilt or something like that but here that never happened and so the moment she pleaded guilty her subsequent and he as i said i'm just wondering where this is going to go but and if it might you know there's certainly the possibility that the same sentence is imposed however but what we will have is an opportunity to make these arguments to make it clear and appellant brought to the court's attention by way of a supplemental letter some months ago the standard of review for a decision to file or not file including one point one b is the same as a standard of review for the voted yes she did so in a timely fashion but by her subsequent conduct and the court is exactly right you have to read the plea agreement as a whole read paragraph nine and paragraph twelve of the plea agreement together by her subsequent conduct ms though deprive the government of the benefit of that really only by her false testimony in not one but two different trial false testimony that the only reasonable conclusion can be weren't go down the to her husband and codefendant to go to trial the reason the government has given the authority and the power to file for that very point of acceptance because it's the government they can decide did the defendants conduct enable us to avoid a useless trial avoid a trial that we otherwise would have had to do in here in the end ms vose conduct did not have that effect the government had to try this case and it would have been the same case regardless of whether she pl not think about it the government would have called the exact same witnesses if both defendants were still in the same case it would have made the exact same arguments the trial would have gone essentially exactly the same way so by her conduct after her plea actually made the government or participate or contribute to the government having to try the case in the end and that's why the government did not file the motion for the third point except now yes i agree with the appellate the government could have grounds to denying all credit for acceptance although there is some wiggle room in the commentary that in some instances you can actually obstruct but still get time credit for acceptance responsibility and the government did not object to her receiving her two points because ms vo did plead guilty she did accept responsibility for what she did but by offering testimony at the trial court found to be perjurious and obstructive it did result in the government having to try this i should if we give some of the arguments being made some credit assuming that they would have read it and we sent it back to judge martina's considering how he dealt with the guidelines and  gave i somehow i lose where we're going because it seems as though we're not we can we can do the guideline drill and we can run these points and we can change  as the court knows i was not trial counsel on either of these cases but i had the same reaction when i read the briefs and i read the record i don't see how anything changes on the man here and i agree the judge did a fine job  been so amazing i will spike agree with everything of course and i will say perhaps in the a balanced offense the judge does have an obligation to perform the guidelines your actions and they do have to be correct and it's the defense's position that they're not correct we disagree with that but i think your honor is correct this is an instance where let's assume that we want to find fault with one thing or another that the judge said maybe he didn't utter him magic work or a magic incantation for example one instruction issue in the end i think you're exactly right what is you know is the error here one that's going to result in a different result or is it completely harmless and on these facts i think it's clearly harmless because the judge didn't impose the actually make the findings to tie it still the question i have is how do you judge harmlessness in that situation where you do have a mandatory you need to determine before taking that into account in the sentencing i have two points to make in response to that the first point is if you actually look at the line of cases that starts with don again a man is and  then there was a another a menace case one that's in the appellants recent letter to the court those cases are all concerned with cases where it's the defendant testifying at their own trial in their own defense trying to balance the defendant's right to testify on their own we have a right there's a constitutional dimension against the court's legitimate interest in discouraging people from lying in court and so because you have to strike that balance because you don't want to deter defendants from testifying in their own case that is why you will require the trial judges to make some finding on these elements here ms vo is not testifying in her own defense she's testifying for her coconspirator that constitutional interest is not implicated by her testimony so i think an argument can be made that that line of cases in opposite or in apas it to this particular circumstance now yes could the judge made more specific findings absolutely but that brings me to my second point you have here a complete record of her testimony you can read it yourself i'm sure you have read it yourselves the in the lack of credibility in her testimony i think leaps off the page this is not a case where you necessarily had to be there and observe her demeanor although judge martinez had two different opportunities to do that and he's that's the one thing he did find was falsity what he didn't find was materiality  so yes but i think materiality here is obvious what was the false part of her testimony my husband had no idea of what i was doing the jury necessarily rejected that  convicting him on all counts that's obvious what the falsity was the message so obviously materialised to probably not need to be stated it would have been nice if the judge had said it but it's obvious that that's what everybody is talking about it's obviously material and when you read her testimony that it's obviously will feel i mean it's this is not a case where you're talking about you know any importance detail but it's just part of the whole testimony here virtually everything she said my husband doesn't know anything about what about all the phone call she had an explanation for that you know what about the drugs in the house she had an explanation for that that doesn't make a lot of sense a little willful in the sense of willfully  and then also police negligence ok maybe i am messed up on the facts here when the government brought in her camp to bring in this fingerprint testing to get their fingerprints to the expert on the stand defense counsel objected when he asked what the results of the test were and as i read the transcript the objection was made but before the judge could rule the answer came out there were no fingerprints something like that but it didn't get in because he objection was sustained i agree ok says we have no evidence or testimony and freakier fingerprints lack of evidence and that's when the objection gets so you're saying oh he was arguing his lack of evidence had nothing to do with the fingerprints but doesn't that go back to the trial card where the issue  negligence and i think that's where the problem arises and that's what was happening in the thompson case and awful case and that's where the real hang up is i think that the resolution should have been a wooden structure and i can't say and i limitation on the finger print evidence really change anything because it's a subset of that same argument and that really was the argument that was made to the jury there's just no evidence here to connect him up and it's a jury got that pretty clear pictures that that was the defense and they were supposed to see was there any evidence and so i'm i'm just having trouble wondering why well under that theory and with the evidence that was in front of them but lack of evidence why it's lack of evidence because the government was sloppy the government was incompetent and if you're reading these people was that i'm sorry it's lack of evidence because the government was incompetent or sloppy or acted in bad faith that is the closing argument and if you look at seven zero three seven zero four mr goldsmith's not started with that the government controlled the evidence and that they did so in a way to win the case in that he goes on to list all the things that the government could have done should have done didn't do they didn't take a picture of the bucket in the bathroom with the flower on top to show that it wasn't that obvious they did the same thing with the box of drugs in the truck didn't take a picture with the garbage on top they didn't take a picture of the public storage facility they didn't take a picture or get the records for the accurate that he drove up to key in on this going through the list didn't make an adequate inventory of the apartment search in fact he disparages the government by comparing it to kind the government of the defendant i'm saying there are no fingerprints when that is true i don't get it it's not clear that that's what the truck court did though and that's why the context matters this is it's right in the middle of this litany because after the objection sustained he goes on to say they could have audiotape videotaped mrs bowse statement so the context is things the government didn't do or how the government tried to get in the fingerprint evidence and it could have probably if it had bothered to get their actual auth report but it didn't do it correct well there's no evidence of fingerprints but by making the argument the way they did the defense was implying that this is another example of the government not even trying to get evidence without even trying to do their comes back and says did the government put a fingerprint expert on that they called the person who did the fingerprint examination with that have drawn an objection probably not because it's not in that context of the government didn't even try and would it have been sustained if you had phrased it that way probably not what we have here is exactly the situation that this court addressed in thompson and johnson has some superficial similarities to this case the first one is probably not terribly relevant there was a mistrial and i had to retry the case in between those two trials in the first trial the defense of done exactly what mr goldsmith was doing in this case they are not there's no fingerprint another example of the government being sloppy or corrupt or being out to railroad my client in between the first crime the second trial the government probably motion and eliminate saying that's dirty pool you shouldn't get to do that and the trial court issued a very sweeping ord eliminating no reference to fingerprints whatsoever and this court properly reversed that and said now that goes too far but it goes on to say the trial court could have limited the use that lack of evidence was put evidence the government controls the evidence in a way to win the case and then he goes on to talk about all the things the government didn't do and could have done that in retrospect defense counsel things different i'm i'm reading it and they're saying the government's not objective what of system there's all the things the government could have done to prove the case here's what they didn't do that's that's not an accusation of corruption that investors distiller the fact i disagree that that that's not the way i read it i don't believe that's the way the a u s a perceived it and i don't believe that's the way the trial judge perceived it it was again you have to put it in the usa perhaps incorrectly i mean the trial gets a standing objection would not appeal that tries to get in the fact that there's no fingerprints whatsoever which by the way is evidence that helps the defendant you know this is you know he's trying to front that's what usually happens in these cases they go or they go in and they find fingerprints but they can't really identi and expect there to be single for us so you bring it up and this brings me to the harmless error analysis the jury heard that there were no fingerprints they heard it twice there was actually two separate instances where it came up the packaging in the car  which is like one of the four and then the packaging from the lane street apartment which is at one seventy in each tenses the question was asked in the first instance the objection came after the answer got in and there's no motion to strike the jury's never told to disregard the answer in the second instance the objection came in from the transcript right before the answer but the answer was uttered on the left again no motion to strike and if you read the whole transcript mr goldsmith moved to strike other answers he knows how to do that so the jury heard that answer they're never told to disregard if we go to the concert and then i can see the control because that's going to have to be where we are correct there is it would have to go then to the first part of girls miss argument closing very or he talks about not only the lack of evidence but they didn't keep a log of what they were doing didn't make an inventory of scene into three of the small stores better you have a real organized system here here they just scoop up things from a room and saying this is from the room we hope to have a video of what they did in the search we have correct i mean the defense certainly got the argument out the jury must have got the point that there are no fingerprints this is a circumstantial case they can't show my client handled the drugs my client saying he didn't know about the drugs therefore  created that they did a lousy job correct and again i think and this is somewhat speculative i think mr goldsmith that said did you hear from a fingerprint expert the government call an expert witness now you never heard an expert say they found fink client's fingerprints on the i don't think that draws an objection and if it does i think that objection is overruled it's the way it came up after he objected when the government tried to get in the fingerprint evidence they tried to get in  sure mr jennings reactionless it that's not fair i made an effort and i think that's the judge's reaction that's why the judge sustains that objection different argument different result i see my time is up