didn't come to this court for a number of years and i never noticed there's a jail cell down the hall for a three judge make his court room i guess so you all behave today i'm sure the stink is may please the court my name is howard pincus from the federal public defender and i represent the info line after this court reversed mr bowlines convictions for a drug use drug distribution conspiracy and the travel it's actually lower significantly lower it not just did it drop dramatically under the guidelines but the government was still able to seek and mr ball i was exposed to dramatically increased penalties eighty eight years so isn't the correct measure that of that objective fact look you know what motivates the prosecutor prosecutor when you look at what the realistic expectation is rather than the theoretical expectation of every sentence the consecutive no in particular not in this case i mean the statutory maximums are still the what mr ball i was exposed to and it still is possible for the district court to sentence that and here at sentencing the government sought not a guideline sentence but a sentence of one hundred eight months instead of the the sixteen months t fourteen thousand pills involved here opioid addiction is a terrible thing he got these other people started he's the most culpable he should get a harsh sentence they could well have argued for more than that now it's possible of course that protected against a vindictive prosecution and then victim this by the sentencing judge and here they filed twenty two charges for no justifiable reason based on the same conduct and that exposed him to dramatically more time than he was facing the first time around if your argument prevails well instead encouraging prosecutors in the future to just threw the book at some by any possible offense that could have been charged they would have charged they would have encouraged in this case to include the the chargers are now filing to file them originally isn't that a concern that one court said was that under the circumstances there the charging decision was inherently suspect and therefore the district court did not care so it was looking at just the facts here directly parallel what happened it would but to go back to the question of whether this would encourage prosecutors to just throw the book at somebody there's many reasons first of all why prosecutors decide to bring charges or not bring certain charges and also what we're arguing here is that the ante was up from the original sentence from the original prosecution so if they had brought charges that that total to to less than what was brought the first time the would have been the upping of the ante they did not do that they instead of charging one a drug disturbia drug possession conspiracy which this court said was available in mr bowen's first appeal or instead of charging one or it's entirely logical i don't know where's the problem with that we know that that's not the prosecutor's thinking from what it said in response to what mr ball was prior pleadings it said we have compelling evidence that more than meets our burden change the calculus i mean whether they feel that they could prosecute him with ads if they think they will encounter less difficulty prosecuting him with y which you know given conspiracy is a different game and apparently they have burned the first time why not just do that i mean i don't understand and to the point you are it's just the colloquy you're having with judge hearts when do we get into the business of micromanaging how many counts the prosecutor can bring the second time around before he ends up in a situation we're reviewing it is indicative i mean we're going to sit there and count the counts to make sure that they don't equal it more than got since we're last on well we do go out we do get into the business whether the n t was up so that's how we go into that th if there is a rational basis for charging him the second time and there is no other reason to believe that there was a vindictive prosecution other than the calculus of the additional charges then i just don't see the problem and explain to me why you refer to taking it a given that would somehow is maps over this case i just don't get that i mean would this case had a discrete dramatic change and that discrete dramatic change was your client confessed to exactly exactly the things they charged him with the second time that wasn't in the first case no that was not in the first case but that doesn't justify twenty two charges if they did want to bring a fewer number of charges or a lot of his testimony they also the argument will well stop right there why did they have to do that if that was a legitimate reasonable reason to charge him differently and they did the first time why did they have to pause and say well the effect of doing that this will mean that there will be no more he will be exposed to a greater festering that them than he was the first time white was that in the calculus i mean again the first thing we're looking at is the the fact that the prosecutor admitted that that wasn't a basis for the charging decision shows that that's not what was going on let me suggest this mystery because if you have a scenario in which i have this pile of dense right here in which i can convict your client in then i have his confession i can easily say i can convict your client no problem but boy in this and the way to do it boy isn't this you know so it sounds like there's no  evidence to convict your client right if it may be but that's not what the prosecutor said here the prosecutor said i have compelling evidence that more than meets my burden of proof and his prior testimony doesn't detract from that let's back up and say with anything like that even present in the one case that you will live on there was here you have a dramatic change of event in the fact that your client pressed confess to this crime there is nothing like that and was there is there is not see the prior testimony and would that's correct but what we need is something that is would justify the charging decision and again the charging decision here dramatically increased his exposure the government didn't choose to just go down for something below what they obtain last time they went to eighty eight years as potential exposure yes rather than twenty five i guess the question of what i'm getting at is the only  well i would the only reason that it mattered that he was exposed to greater greater sentence was the only reason that be relevant if there were if somehow or other there was a thing that was suggested that was  other words if it was entirely rational that he had a basis to charge him with these charges with the have to stop short of meth charging the maximum he could he or she because they didn't want to see the stats for a maximum  first time if i understand the question i think there would be if it ups the ante and particularly here where the prosecutor says that wasn't my motivation but back to your question about how this case maps to wood in would this were dismissed by the district court the government appealed that and filed a bribery charge against the defendant this court said that that was inherently suspect and that's not what we have here we have a full completion  appellate process the determination has to use my words that they got burned the first time and so they decide at that point only at that point no inwood they didn't even have the full appellate process play out the first time when they charged him  of the other counsel all that was left was the bribery charge this court didn't refer to that at all in its opinion one would expect that if that mattered decision it would have been at least mention and what were the what good would do when it said there were suspicious circumstances or suspects circumstances what was it were furring to it was referring to the fact that the new charges are brought two years after trial here twenty two months after the first trial that was not based on new evidence or change rule twelve a good cause language that language has to do some work and you made no showing before any court that there was good cause for this untimely motion that's true and so why didn't that full stop on your ability to proceed for excuse plain error is that i not notice a a legitimate issue that i forfeit and do i have is a plain error in not allowing me to raise it on appeal i realize of the two distinct things but it seems to me that the way this thing would play out is you'd have to show good cause and then if you show good cause then we're talking about whether we did play in error or not you didn't show good cause you know even if you  burke dealt with the prior version of rule twelve prior version of world twelve said that the failure to raise in a timely manner a mostly should be raised under will twelve b three is a way for the leach the waiver language burke relied on the fact that waiver language and its retention nine years after a lot of when it was amended that the elimination of the term waiver was not intended to lot of to say that alone it doesn't say that says that and it's required in some circumstances and then mentions sometimes the defendant doesn't even have any say in that or the attorney does sometimes you have to have more knowledge and so on but that that caused confusion so they weren't changing the substance of the rule at all they made that clear in the three they still left it to the courts to decide some circuits at playing their review some didn't don't relied on the advisor it tell you to change it when the rule was amended in two thousand two hundred and relied on policy reasons or specific to suppression motion which this isn't yet and three circuits have come to a contrary conclusion after the we would reverse that the district court would err if it considered a motion without finding good cause isn't that correct that's correct ok then it makes no why can review something if the district court couldn't consider the motion if there wasn't if there wasn't good cause for the untimely motion then the district court is not allowed to consider it but we can yes that makes no sense well if if what is if the rule twelve c three is directed at  the minutes or somebody you're familiar with the how that works i mean it's i think community notes are really considered there's a lot of discussion of the the minutes there's there's a staff person there who prepares minutes those are not intended to be binding on anyone and if you read the discussion and sotto it's not real clear to me you know christmas draws i said to think that this doesn't apply that when it says but a court may not grant what absent good cause the advisor can be no certainly don't answer the question and if we don't have rule twelve specifically say was saying then you're reading the good cause requirement out of the rule we're not better off you're better off not releasing it at all in district court than you are releasing it when there's not because no because if you host if you raise it we said sometimes you can show good cause miss it in any other circumstance linger so this is just one little bit more that argument is based on the social in that way that requires an intentional relinquishment of unknown and that's ordinarily the case yes that's what a lot of issue that was an intentional relinquishment certainly not by your client no and we're not saying that it has to be an intentional impish by the client what we're saying is that plain error  well as the court said an insult it's it would be odd for to be in a post and if you don't make a good cause showing in the first instance to the court of appeals it's if you if you have good cause and district court you can get review in the district court you can get your in advance we're looking at the question of whether good cause was given to us and then says that nobody has made an argument about the continuing validity of burke in light of the amendment in twenty fourteen but all twelve and we are making that argument i know that but the five as i said goes with the waiver non waiver point that doesn't go with the good cause requirements of footnote five and vance does not deal with the issue what you do it because and so that whole language in burke and vance about how you know there was no argument made against burke fine i get that but that doesn't deal with this language in vance in which we're grappling with whether the district i mean whether the defendant made a good car showing to which you haven't done we haven't done and we and were there was no consideration in then as to whether plain narrow view would still be available and we're saying that it is in light of the in the midst of the twenty four thousand rolls i mean that is when you guys can meet a good cause felons use all your time the court began with the proposition of whether or not the district or clearly urban holding that there was not a presumption of the nicht in this in the court touched on several reasons potentially for the government in deciding to file or charge the defendant as we did in the second indictment and there's one of the many reasons behind the court's identify that we've also identified in the brief but it's important to note also and we argued in our brief in a footnote that not only did the defendant admit to many of these such as if counts that in fact under oath he wrote those false prescriptions and had those filled he also admitted that he did not engage in a conspiracy so coupled with the tenth circuit's ruling that the government had proved a conspiracy to to distribute coupled with that in the defendant's own statement that he was not involved in a conspiracy again looking at the rational reasons in the decisions the government could choose to charge the defendant in the indictment we made the decision not to charge conspiracy in part on this circuit's decision but also again with the defendant's own statements coupled with the fact he said under oath i wasn't involved in a conspiracy so as a trial attorney thinking about closing argument that would be the one argument i would expect the defense attorney would say the government wants you to believe number one if if we charging  conspiracy number one and only did he admit the substitute counsel believed that but he said he was involved in a conspiracy now the government wants you to disbelieve that so avoiding that legal analysis or argument i should say closing we chose to charge him as we our office like many we have what's called a dominant view process the senior attorneys and we mention the senior attorneys meeting with respect to the charging decision in this case we were very aware of what the guideline provision the advisory guideline provision would be in fact nonetheless all of that went into the decision to charge the defendant as we did and just to remind the court and the court knows this we were tasked with the case wasn't dismissed by the tenth circuit it was reverse remanded so we in essence were told without being told that this defendant not only committed conspiracy subterrane by fraud but in essence charging if you so desire and that's what we chose i apologize for that but nonetheless that went into the rationale in the charging decision for the indictment as it was presented to the granger and ultimately to the jury itself now with respect to rule two twelve if the court would like to delve into that thorny issue i would suggest as the court noted this may not be right for this court no good causes even that present the  admitted it in its brief in the motion for vindictive prosecution and we have the defendant there was no good cause shown as memory serves me right there was no good cause offered or proper orally by the defendant at the time so there's really nothing to review i would suggest if there were some type of plane error analysis if you will i don't believe there'd be a sufficient record how can you find a plane error but no good cause and shown when the maybe a little presumptuous arguably to be here arguing plainer applies for a good cause finding when no good cause was shown it's just me so what happens if they make a good cause argument below and the district court says no he didn't it didn't meet it so i'm not dismissing then then what happens up here there's no review it will be waived their hands they can't challenge the district court's decision that there was no good cause i was just not in the circuit your honor going back to vance well if you go back to banff and you look at footnote five and again i realize that's arguably dicta in footnote five the tenth circuit when commenting on the advisory committee note which i'm not cited do based on the previous argument the court in the fifth footnote states that the intent of the drafters in removing the waiver language if you will was not to render failures to file timely motion subject to point error so again it's arguably dick right but we're talking about a situation there where they raised the law they made to go to cause argument below and they lost i mean wouldn't wouldn't we review that for clearer wouldn't they be able to bring that up and we get clearer view on that the timeliness of the motion your honor respectfully no i believe in this circuit this point time it would be is i understood your question you're not answering it i'm sorry but the question was would we be able to review the district court's determination that there was no good cause for being on time respectfully it would appear under vance quoting burke that the failure to comply with the timeliness requirement results in waiver unless you show good cause so it seems like you should still be able to challenge the district court's decision that there was no good cause if that were the case i would submit based on the soda decision where i believe they found a good cause determination within be an abuse of discretion standard i believe that was the argument so were to review a good cause binding i would argue least the way i interpret so it would be some type abuse of discretion which i would argue would based on the court's positioning would be a proper standard the court is well aware of their case they're backing the motion deadlines the arguments of the parties i would suggest that they are in the best position to argue good god look let me ask you a little different question what if they defendant were able to do so under some top of use of discretion i would argue the government would as well although for practical purposes that probably wouldn't happen can get a clean record on this point footnote five i understand from your brief that footnote in vance establishes advance actually is and if i could talk specifically to footnote five again three times in the footnote the court used the phrase make clear regarding burke and that could be interpreted in i guess future arguments that this is to make this that the failure to follow a timely motion doesn't subject the failure to play or the third may clear in this important i suggest again burke is to make clear a finding of intent on part of the defendant not would agree with the court so that the question of whether we apply waiver or not is an open question we're talking about that right i mean is it because it's not a situation where  burke and so i don't you know all right you're following burke i get it you explain why birth applies in that case i get it but no five is explaining why they're following burke tells us that is because nobody's argued anything to the contrary it does