and thank you arne if i could please reserve just a couple of minutes on rebuttal wonderful thank you judge so there are a couple of delineating factors about the pre indictments exploration of attachment here that hasn't been before this court or the supreme court one of them is neither a court house explored the attachment of counsel pretty indictment any non investigative function of the government so a prosecutorial function of the government and we know that that's the case here for a couple of reasons one is there was a target letter that said there was a potential resolution on the table preen diamond plea resolution dealing with the united states sentencing guidelines and admissions of guilt and factual admissions and when we know that they intended to prosecute because five days after mister olson's counsel below said no on his behalf to the offer five days later the indictment was richer so we knew and the government had mentioned it exactly which charges were going to be coming in communications with counsel present i so we know that the proposed indictment was at least prepared and the government knew which charges were coming and there was discussion with guidelines calculations with coun below ahead of time and so for these reasons we know that the investigative phase had ended and the prosecutorial phase had begun so that kind of fact pattern has yet to be before this court or the united states supreme court the other difference is never before this court where the supreme court has the court looked at a pre indictment guilty plea resolution proposal post laughner so every coach every time that the court of this court has considered the set of facts and the united states supreme court has considered the set of facts the th amendment right to counsel had not  attached explicitly to the guilty plea process so there's a competition between two constitutional scenarios here we have on the one hand  line i think that mean there's old and i think i and i i do think that there's i wouldn't use the word holes i think that's a loaded term but both this court and the united states supreme court always when discussing a bright line rule be the phrase the phrase after that is always the initiation of criminal proceedings and then there is always this four factor investigation by the court of investigative rhesus prosecutorial function the government's commitment to prosecution whether or not the  individuals facing expert adversary and whether it's a critical stage of the proceedings so i turned to the sister circuit the six circuits to set where they say yes courts are always throwing this term bright line around but in the very same paragraph often in the same sentence they say the bright line is the commencement of criminal proceedings which then there's an appositive that list outcome when you're hearing arraignment ind t and it never just stops there and that's what was so curious to the dissent in the six circuit turner case was the analysis that could just be a full stop as this individual been arraigned undergone a probable cause determination of going or hearing or been indicted and if the answer is no the not should be the end of the analysis but where the court's turn from the supreme court to the th circuit to the circuit is these four factors  court with these four factors in mind and looking to the fact that the supreme court even runs through these four factors every single time reduces the bright line to mere formalism if it is in fact has the guy been arraigned or gone through on his behalf to the negotiation five days later the indictment was returned so in this instance because the investigative function had completely stopped there was even a discussion of discovery between m counsel below and government counsel on the investigative function had completely stopped if that bright line applies in fact not to the initiation of judicial proceedings as one could understand  my understanding is the quote well i think when the government proposes a document by which one forfeits his right to trial concedes illegal activity and triggers a judgment of conviction i would argue that that would fall within the analysis of whether or not a man is facing charge is a yes i don't want to throw air quotes up in front of the th circuit but certainly what's different about the proposed guilty plea agreement and say and a lineup a photo lineup one of them can certainly damage one's  you your client just says he wasn't notified of the charge of the offer so what do you intend to show i to take care and firmly split it what i my position before the court is that he was entitled to have his abs petition decided on the merits as opposed to as a matter of law and i think that would that would entitle those judge wexler and mister olson presenting day job it is a trial lawyer and i can it vies of this is a very common practice to you know i stipulate to continue preliminary hearings trained i've been all the time to reach negotiations and i have very i mean the bar association poses stringent ethical duties upon me even in that free indictment situation much like the government has an ethical duty not to propose a guilty plea agreement unless they actually  target letter process defendant or a proposed defendant would reach out to the clerk of the court who would then refer them to the federal defender's office the formal appointment process actually doesn't happen until the person appears in court either at the time of the waiver of indictment and the entry of the information where counsel is formally appointed or in the process of a complaint when they make their initial appearance so that formal appointment process where counsel would start getting paid if if that's your honour's concern doesn't actually happen until they appear before the court and i think that that's part of the the crux of the issue here is that if there is  a as mister hill suggests some type of pre indictment th amendment right to counsel it really opens up this pandora's box of problems so what happens if a defendant decides to represent if there is no th amendment right to counsel that counsel would would be and appointed counsel i guess in the context of this case if mister and i have to put it in the in the form of a hypothetical your honor because it's a sort of delve into the  that's a different question than your honor and i think that this is this really gets into what the supreme court was talking about when they're talking about the differ in rock area when they're talking about the difference between the critical stage of the proceeding so of course during a critical stage of the proceedings you're entitled to effective assistance that's a different question entirely than whether you have a right at all so if he has no right at all whether that person was the fact they were ineffective is really know there could be now practice that that doesn't give rise when there's when there's counsel does something wrong but that may not give rise to aids that's exactly right your honor and i think that you essentially in a hypothetical world yes your honor but it's my understanding that the department of justice is policy that we certainly advise defense of their of their ability to seek out the counsel of somebody if they choose to but i think that that is a as to which you say there's no right accounts that's correct your honor and stems directly from the text of the th amendment so i think that what your honor is getting at is this sense of i think that comes out in the dissents where you know there's this there's there's this that there's a tension here but in fact a defendant may have rights under different amendments he may have different rights under the due process clause he may have different rights in the ethical pli both to prosecutors and the ethical rules that apply to the defense attorneys and so i don't want there to be this impression the defendants are completely crow which seems a bit off and your honor i i i understand the position but i think that that is ultimately what was the confusion and rothbury which the supreme court specifically said that ultimately those questions have to be kept distinct and that is the the problem here is that mister olson wants to conflate those two he wants to superimpose them but the supreme court has said very clearly that that's an analytical mistake that you have to keep proceedings and i think the but this supreme court hasn't sort of grappled with this issue this six circuit has on multiple occasions in the supreme court has denied certain let it stand and i think that part of it is because of the can of worms that you open up  ultimately say that there is a th amendment right to counsel pretty indictment and that's what this court was getting at in a haze is that in that case the government actually used a trial mechanism to hail the defendant into court and even then this court said that not sufficient because he may not have never have been indicted and in fact mister olson might not have been indicted if the grand jury returned a no true bill mister olson was free and clear so i think if you're thinking about what is the critical stage critical stage of some type of adverse judicial process there is no judicial process at all during this period i meant negotiation your honor as i see it i'm well over my time to answer any additional  thank you ana i want to seize upon something that judge or is on said in relation to a question a judge schroeder owes the government which is that there weren't any proceedings or there wasn't a prosecution under way here and what i want to impress upon the court and what makes this situation so unique as opposed to those investigative functions that courts have analyzed before is had he signed that agreement that was proposed  that would have convicted him of four felonies and given him a total level of twenty one dollars which i think he was a category one and would have disposed of any need for prosecution because he would have wai right to an appeal waive his right to a trial been convicted and conceded factual without any th amendment rights whatsoever that's what makes this case different than say a photo lineup  were true and it probably would have been information right and a colloquy however the terms of that agreement would have been no longer subject to change i mean certainly he could have l does withdraw a plea he signed it those are admissible against him should he testified trial so it's still going to be factual admissions to criminal conduct that occurred without any  counsel and they're going to touch exactly upon the elements of what the government would have to prove a trial because it would have been a guilty plea agreement on an ostensibly one of the charges that would come down through an indictment later on so i think  anecdotally what i can tell the court is although the majority of my practice is privately retained on a number of occasions either for a grand jury subpoena or fo negotiations i have been appointed and remunerated by the c j program that's the best i can to your honor's and with that i appreciate your time and attention and i will submit thank you both for your arguments today the case just  be submitted for decision and we will proceed with the argument in the next case