we have several cases to be argued this morning because of the first case which is united states of america versus dorado niger can you speak up there's a big crowd i think you've got i think we understand that and i did want to say that was very appreciative not just if you correcting the error in the brief because that is a point i'd stumbled over but also the government agreeing with the correction by filing a motion to suppress to hear a challenge the facts case and well ok so the situation is we've got a defendant who has been charged with illegally transporting aliens and he decides to put the government to it's proved correct in other words he doesn't but he offers to plead guilty the government doesn't accept the conditional plea and then he does his little as possible to contest the evidence against him yes but that that isn't the same as putting the government to its proof in a contested trial i don't think that's what the acceptance of responsibility i was contemplating but in the fi he made with a motion to suppress it says i don't concede the facts of the government's case is that correct well and at that time there was no evidence there was just whatever discovery there had received from the government and i can say that oftentimes the testimony  and you have to say i admitted that the the evidence the government has and i committed a crime you cannot you cannot accept responsibility for having committed a crime mr washington confessed he made a written confession it seems like that's what the law virtually requires now put aside the world has stipulations which is a little confusing but if the defendant says here's a written confession then i get picked except responsibility or but but the problem i think for you now is that our lawyer would also say once they do that any error in terms of suppression is moot because the government could always use your comes up so we don't know whether he refused to stipulate or it was the government refused to accept a stipulation well the what happened the way it is  what are other circuits doing to get clients i mean that the guideline commentary is explicit that you can go to trial and still get exceptions responsibility and it looks like it's a fact more distinction but are any other you must have research or other other circu because he's transporting aliens and if so if he's a face it at all that part of the transportation offense so once he says to the agent it's following him if there's any cross examination impeach him as to his credibility as to whether he has organizing the whole operation mexico and went to a different spot on the river where they could cross safely so there's also faces that talk about for example aliens too or walking hiking through south texas after they that morning a police record just again we have the united states i'd like to begin by addressing the acceptance of responsibility in this case so the record reflects that the government in this not provide for conditional i would like to state that a usa handled that hearing made some statements that there was some sort of blanket policy that the western district of texas doesn't do can do so please that was simply inaccurate we do conditional pleas on a case by case basis as the rule allows and in this case or then criminal she made a decision that in have the exercise of discretion in this case the facts are made on a case by case basis and in this case it was the and you said that no god locks for that decision and no expression of the plea and the government never has to greed to a stipulation and neither of those decisions are reviewable so what's the solution to the legal predicament of the guidelines are clear that a defendant can preserve a legal challenge to the legal correct waling and go to trial and still get accept responsibility so how would you get us out of the box where they don't have that option because if they want to just confess where they don't even need your stipulation like washington did they're actually can't stipulate unless the government agrees and you're not suggesting this record implies any where the government would have agreed to a stipulation there's nothing in it that says the government they will stipulate you have to have two people to stipulate at the at the bench trial team and the appellate section and it starts off with the government basically saying judge it appears this isn't going to be a stipulated judge says you're right this isn't stipulated at all and that's at page two fifty of the record to put on evidence because we have the suppression transcript which was offered and it's but it only focused on some aspects of the criminal case and then the deposition from the alien was court we were allowed by our by the government to agree to a conditional plea so here we are they don't do an opening argument they don't do a closing argument you they presented no evidence and the government's closing arguments the reasons is long  it looks like everyone's just agreeing we're going to get through this because the government wouldn't allow a conditional plea but then i would think the guidelines would say he has to be able to get this except it's no and i'd like to saw page two forty six it starts anything we are not co operating with you mr bennett we all know you're trying to preserve yourself as possible but then something goes wrong at sentencing in spite of the peers are saying he's remorseful he's not challenging their proof he just wants to say there was a reasonable said actually the at the bench drug control it is evidence in a trial this gentleman has a right to confront all the evidence so you're going to have to play it in court if my deep other thing is if i'm reading a transcript of the depositions or i'm looking at the video even if it's outside of court in a like it's not an acceptance of the responsible i think that's who legal there are i mean right there he's saying if  putting me to the trouble of this that said i don't think that's acceptance but it's the government's actions that have forced this a to occur in this case the judge is very clear at th series but your best one what is the best question the narrows attorney ask mr ward was that his name what's the question that you think is disputing the account the government's offer paraphrasing here ok i believe that it  you can contest those because you would have to have reasonable suspicion before you are right the start is the activation so whatever he says about the other he is not contesting the facts pertinent to the legal decision he wants to appeal well i pointed out the guidelines do not say that there is a blanket rule that says you can never get acceptance of responsibility even if you go to trial right it is within the distraction of the harmless by the fact garcia stipulated to facts that established his conviction so it sounds like if they try to do everything that they stipulate they admit to the guilt to preserve the argument before that we'll just say well it's harmless whether the disc or made a mistake is you've now admitted the crime anyway so you have to give me do i really want some way out of that box legally in the case i'm not so sure that that i would necessarily agree with but that's a published decision of ours but it references and on campuses and i'm not entirely sure about how that yeah yeah because in my experience defendants have basically they can plead guilty except responsibility and go if they want to preserve an issue they have two options they can go to trial they can challenge our port saying it'll just be a harmless because now conveniently you've said you're guilty so we don't read anything more than the defendant sworn statement that is i'm thinking through this and just having a conversation you know if you go to trial and you cross examine witnesses it would seem to me that if you're not stipulate and yet you get to preserve your right to challenge you do but that's what he did here only did was cross examined and so the issue is i view it as as somewhat distinct from the two issues raised in this case which is number one he didn't he has not challenged but in  since he did not appeal the denial of his motions rights whether what the ramifications were regarding all of that are really not part of the issue the that you're pointing us especially to the cross examination of more and more at the pretrial suit here and the fact that the judge had to sit through contested and which is where the judge makes comments regarding when you say contested  did they contest that they did not acknowledge the evidence against them they didn't dispute it either and they required for the presentation of evidence and then the judge made a fine i'm not saying it was a vigorous and you know but the judge found that it was contested in that starts off with a hearing that is that it's actually not stipulate it starts all the way and it's pretty clear from the get go that that the decision was made that they somehow they get a pass for leading them into dangerous lead deep one is that what is the evidence in that that supports that intention the evidence is that the guide led them into a very altercation with the guys over the fact that they almost drowned and then broke away from the group of sensibly based on the guides an experience i thought that was a little point in the brief that i lost you  the characterization by the government was oh that guy left because he was so frightened of drowning but i thought when you get back into the record he left because they saw an official coming towards him i think it may be a little bit unclear and that may be a fair inference and maybe in my view one one individual broke off from the group a second individual is called let the group to a different part of the river where they were able to cross without incident and so the judge found and i don't believe i i did once they said this is too deep and they started walking back he said one way or find another place to cross the aliens of course are intrusted with a guide do they pay money to be smuggled across the river and they reliably want their money back you separate you and they rely only on the state piece in this case they were subjected to and i think the district more correctly found  in the courts that i have granted acceptance of responsibility in cases where there have been motions to suppress and this is from the sentencing transcript eighty seven for the record i'm however when you have a vigorous scituate situation where you're contesting the very of the case that's not accepting responsibility again if this is just going to stipulated bench trial we wouldn't be having this conversation because he stipulated i remember not being happy not getting additional plea that wasn't any reason not to get a conditional pl this particular case but that's your own decision right this is strictly based on just a motion to suppress the court will overrule the objection so the court said it's because of the motion to suppress and seemed to suggest that if there had been a conditional plea they wouldn't be three seventy seven that runs more or less do for themselves so that was the basis when you agree with me that that in order to solve the predicament you're in the best course of action is for a defendant to say at the beginning of the bench trial i want to confess i want to stipulate get a clean record really go to says we would accept the stipulation just as we wouldn't accept the conditional plea when it comes up to us and we'll have to work through the well what defense counsel said at the beginning of the mistrial after the government said you know it's not exactly a stipulated situation defense counsel says we want to do a conditional played if the government's position that they don't offer it but that would be the only way i think that we could easily it was for the exchange between thanksgiving so and so ultimately the courts as well the bottom line is what i understand it's not really stipulated as to the facts