as i did yesterday i will in advance thank john but of the united states just across the eastern district of pennsylvania for sitting with us and helping judge jordan and me with the work of the court will now begin our cases for the day the first case united states versus anthony robertson thirty two is of the referral rules of criminal procedure i cannot think of a more stronger verb used in the in thirty two we mean that if the polygamy hearing is not we will not if it's not offered you are and that's the problem i believe is would you agree that we're here under a player standard of review yes ok so if we're dealing with player the error is not brought to the attention of the district court at any point  is there or is there a problem with our noting that as reversible error in other words nothing was said to the district court to point out despite the fact that there specific defendant now your client here got a full blown hearing yes for a continuance a few times got it got a full blown hearing what and in plain error with the rules we we all incarcerated right now you're on i don't we don't know what would have happened to plumeri hearing well he was held you're saying the preliminary hearing might have gone that there was no probable cause got don't you have to argue that that you know it's not just speculative don't you have to put before us something that went awry on something that happened to him that shouldn't have happened because of this plane error your honor i believe that this happens to everybody  believe in the western district of pennsylvania this is a common practice there is no this is the first time i've even was aware of i've been practicing for fifteen years and in the in the western district of pennsylvania and i was never aware that a policeman or hearing was required for a revocation revocation used into practice is a public defender usually handles that and then they call an opinion with three because it's usually someone who's indigent who is i violated supervised release i was not aware of it we have we have we have to two point one is being ignored rampantly throughout the third circuit which is what it sounds like you're asking us to do so if we can't do that and we are we're dealing with the record that we've got judge endos question is is the one of  e real moment here which is what can you point to if anything that says yes because he didn't get that probable cause finding the finding of actual  guilt for the violation at the revocation hearing itself was insufficient to vitiate any prejudice associated with the lack of the preliminary he fact that this rule is being ignored if indeed it is but in terms of making a determination in a specific case based upon a failure on a plane or a standard presents its difficulty and in fact the second circuit in the in the camp in case they did the companion case much or how you say that because it's companion that they went out of their way to say you know if this a systemic problem then that's another issue for another day we'll deal with it if we need to but you know there concert only be if you're saying there could certainly be a problem as you're suggesting but if there is i guess we have to deal with that at another time when we actually have the record so that would be great yes your honor it's certainly of course discretion holly would deal with this absolutely now with respect to waiver if you there's an argument being made by the government that your client waived this right it seems to me if there is a right set forth in the rule i mean it's there and i'll bring this up with the government but it seems that you know do you if you have a right do you do you wave a right by not reminding the court that you have the initial appearance was over and completed there was a bond on seem to me to be the most of the important assets to pursue right here it was not until december eighth or december seventh i revocation i've done the revocation hearings but normally the public defender's office the federal defender's office and western district handles those in the then they were signed to a  but no i don't believe so you are right it was not until i started to do research on this case of that i realized the strong language wasn't rule thirty two that said must and it's and i don't see how you can weigh how you can  waived well let your colleague address that just seems to me that something you might have going in your favor if the key issue is one now it will be for the weavers the seven circuit united states versus up to you don't want to because it's never been addressed it's rarely addressed and obviously this is the for i as i said i did not discover the until the appeal was filed and i started to look at the at the record guess one thing going in your favor from a factual standpoint here although it's not really a matter of record but if you if you didn't know and advise your client that there was this right and the waiver knowing and the knowing and voluntary aspect of a waiver might be please the court lar when from the u s attorney's office in the western district on behalf of the government this court should affirm mr robinson's revocation of supervised release he did not suffer an actual due process violation from the absence of a plenary hearing he appeared before the district court with counsel at every stage of the revocation proceedings is it true that the magistrate judge failed to advice and at the initial appearance that he had the right to a preliminary hearing that's true your honor and unfortunately i don't think i pointed that out questioned the rule also provides that it can be waived sure so it would wouldn't it be a little odd for us to say that a right that the court is obligated in the strongest language to point out to the defendant but which it fails to point out that the defendant is waived by the defendant not saying anything about what it was and toll what he was until i agree that it provides a very odd position in my response would be to but it would seem that you know something's wever we have lots of jurisprudence that waiver knowing involuntary something you know whether in action is waiver you know for us to  argument in this in this i agree with you that it's not my best argument and it would be a tough position to make and it reminds me what my second point was is i think the court needs to be sensitive to the differences between a criminal proceeding where you're working with a you know immediate conviction and revocation hearing those there obviously two different procedures and i would just caution nice to have that you know better form if you they say these are mandated by due process those are two supreme court cases that are pretty direct and clear on the requirements of constitutional if that's what we're if that's what we're dealing with and there is on this record plainly a violation of that where we're you left make your case that there's a lack of prejudice in this case and i think the defendant essentially conceded that in his opening brief he alleged that he was denied the opportunity to cross examine and confrontation and then i race plane air he didn't raise plane air or the failure to preserve there was no brief filed to indicate you know to kind of massage the issue of what kind of injury he suffered and he did exercise the right to cross examine he did exercise the right to confrontation i realize he didn't get those at the preliminary stage but he has to show that there is some injury to him as are direct result of those violations at that stage he has to show that there is no probable cause he has to show that there is an effect on his sentence and he has even made those arguments well what if i know it's not this case and maybe this case turns on the standard more than on the right itself but what if he had said at some point don't aren't i entitled to the preliminary hearing and that the court said well you know it's really not necessary because we're having a revocation hearing anyway would then i mean then there would be does it would he have to show due process prejudiced for a due process violation i'm not sure i understand your question if the court if you'd be ready made to had brought it to the attention the court so we don't have a plan or a standard that's not this case but i'm just wondering how strong the right is i think he would still have to show an injury of some sort he would have to show there's a lack of probable cause or that his revocation was based on something less than a preponderance or that his sentence somehow was affected by the absence of entering the rule not a rule as the good that's just read it right out of the book because what you're saying is that the the this right can be ignored with and there is nothing to be done about it well i don't know that it can be ignored with impunity but clearly the rule itself contemplates that it can be waived and if if there's a probable cause finding at some point well it didn't matter that it happened at a later stage that waiver site for a moment because that's the beta one could say it was waved in argue that or one could say it's it's tough to make the pitch that there's a knowing and voluntary waiver when you say nothing  but let's just leave that to the side for a second if the position you're advancing is that regardless of player review the government can bypass oldie well actually given i'm not arguing that in this case and i agree in this case there is no plane air and i i think it would have to be very fact specific if we were to come to the conclusion that you just drew that it that it rinses away all the errors i think each case would turn on its own facts would it be wise for just a court to in those circumstances where defendant raises an issue like that to completely forgo them if i marry hearing i think not right and in the you know we have i'm not asking you to comment on this because it is extra record but we we we have it being pressed on us that this is a regular problem  that the second circuit thought that was something that needed to be mentioned when they issued their opinion in companion is that something that needs a myth well i certainly can't speak for any other district other than the western district and the only extent that i can speak to the topic on the western district would be just anecdotal information which i don't think is really what the court's looking for at this point with that said i don't think you are me although i mean all that like to know doesn't happen all the time i think this rule is irregularly followed within my district based on what little information i have about just informally talking to people i certainly can't make a representation on behalf of the office but i was shocked to find out that people mostly law clerks when i pointed out the rule they said well maybe the magistrates doing it now and i would talk to the magistrate the magistrate would say maybe the district court's doing it and then i talked to a usa some said never had a player hearing some said sometimes i have and sometimes i doubt  that said i think that it would be wise for this court to make it clear that the rule must be complied with the rule really if it says what it says exactly exactly don't do it with well they're going to slap your wrist or what we're going to do  but in this particular case i think that there is no injury that mr robinson can show if there's no other questions i'll yield the floor to my colle you look like you were coming up with a question i want i just want to have you know if the defendant had a you know an alibi witness and the witness disappeared you know by the time it came for the full blown hearing there certainly could be a case in which there would not be playing air were someone says you know what aren't i entitled and ok thank you very much again i was not aware of it either even if i was aware of it then the argument would have been well you had your chance is the language is very clear you had your chance to plymouth earthy all that people marry hearing that the initial the initial appearance you didn't do it that's too bad that's that it's a two edged sword i couldn't win either way on that argument i mean i i mean i thought i would have ended up here one way or the other on that the thing is you w what he could have brought in he was it's you read the third the article on or his address to the court on july on the thirteenth of january was of a very concerned about his own welfare about  a federal correctional facility and he never had the opportunity to waive it to have it he was not afforded any of those any of those basic rights so i would feel that that is the injury it is a complaint that should asked the initial time your honor was it would have been december eighth and i believe that was thanksgiving week so it would have been the probably ten december eighth it was november twenty fourth or twenty fifth when i was appointed he was in court on initial appearance on