defendant couldn't get if he asked for it our position is that's exactly what happened here and it's contrary to the rule and that the district court had no authority to do that the rule couldn't be more moreover the rule states that a motion for a new trial must be filed within and then it sets out the time limits so if the rule is absolutely clear that the defendant has to ask for a new trial and he has to ask for it within a certain amount of time neither of the defendants here did that if that wasn't clear enough the commentary to the rule says that the judge in this is a quote the judge has no power to order a new trial on its own motion he can act only in response to a motion timely made by defendant so we agree with you based on the reading of the rules and we would we remain and this case point well there might be that i don't know what other words we just put if we accept your proposition we play everybody back where they were yes i don't i'm not saying that they could do that i understand you would wan three counts which the judge has not ruled on which presumably those would be back in front of him where i am now is my other question is kind of goes take the second issue and that is is it your position that this has to be a written motion unless there during a trial or during a hearing in which case you can make them orally right this motion was made after the trial the dependent's just said we make motions all the time during trials and hearings we don't have time to put them in writing that's true is that i'm going to renew my rule twenty nine motion i think it's important to realize that the motion that defense counsel says she's going to renew nothing has happened in the twenty in those two times i understand so she says i'm going to renew it with respect to count three and the judge as well i declared a mistrial as to count three because the judge did not dismiss the jury did not reach a verdict then she says again i'm renewing my rule that because that motion was not made during trial or hearing it must be in writing and it must state the grounds there for well you know if you mean that kind of incredible because this happens all the time where at the conclusion of trial i don't know why this are the words all right i don't think this is during the trial the trial at this point is over the whole reason for this as pointed out by the defense is they need time and the rule says you can make this motion everybody's assuming there's going to be a lot of new ones because they talk about ordering a transcript trying to see what happens and defense counsel says that she's under the impression that motion has to be made i think i have to do it practical question if the court suggestion is accepted then all any defense counsel has to do is assume is the jury comes back say i want to make a rule of twenty nine motion that means that at any time all the way up until the sentences pretty good intent that the district judge accepted the rule twenty nine oral motion and objected to by the government and gave the individual time to supplement with written materials wouldn't that be the logical interpretation of certainly a legitimate argument on the rule twenty nine and thirty three but the reason there are seven days is is obvious maybe it's maybe a go out talk to them decide whether to move for a new trial or not in whether you have a combination motion or whether to have new grounds for rule twenty nine motion there's a lot of reasons that what you might want seven days but you don't have to take seven days so if you ever take it when all you have when you don't have to state any grounds for  sufficient to in effect incorporate by reference or is it not to me a staggering one question so now i guess i'd like you to address that and that is why in your view is it not appropriate in making a within seven days then perhaps you could do that i don't think that's what happened here why would anyone make the same motion talk about getting transcripts when the judge has just very recently denied that  and sometimes like as well as the judges change their mind and so i don't think it's frivolous the question you're saying is well why would she do that if she could do something else that seems to me to not be an answer to the legal issue well now i find it standard under rule thirty three is different then rolled twenty nine that the court obviously was considerably more comfortable than the rule thirty three standard where you could rewrite the the judge had the power to consider the new trial motion whether or not properly granted it and our position is that he did not hear that it's fundamental to the way we rerun our cri jury has decided all of those things correctly if you clear away i think all of the on here in the judge's opinion at the end he says if i have to assume all of the facts as i do under rule twenty nine motion the government honor i think the only things that if you read the judge's decision the only things he complains about are the jury's rejection of the defendant's statements which they clear you know their excuses which they clearly did and the inferences you draw from the judge feels that he did not do quite right it may not be reversible but he should have turned that are in both alston and killing ten it's things like you know i gave him an acceptable set of instructions but they weren't good enough i want to give a differen and then there was somewhere in the record that i recall seeing where the judge did make some statement about the instructions then that he would do think instructions differently and in a trial and that would so conclusion to the court's published order and i don't see anything about that i'm not saying that you haven't correctly spotted it but i don't see anything there and i don't remember anything in the order so well i guess it's mentioned  you're the rule that a judge and one of them to refer to was axiomatic that the mere conflicting testimony issues as to the credibility of witnesses are not in themselves sufficient for a new trial and that's what we think the rules that the clear rules on whether a judge can find and grant a new trial and the commentary that we don't have that a lot of leeway there  rather than to reverse i haven't seen anything that would give the judge that authority and was something different then you could point to two things just like you in the first the first one more new trial is not definitive but they don't really address the question head on did they well actually it's interesting enough to get the information that one of the defendant make that doesn't make it a proper under the rules in other words the fact that something happened in a trial has no presidential value well i think i guess what how do you get around the commentary that makes it pretty clear the reason we amended the rules in  i could be wrong about this but i think the nice ripple would have that some sort of obligation to point out if that were an error of law even though it was raised as an issue i don't think the court would have an obligation because it wouldn't be jurisdictional so in other words we have a lot of doesn't even mean that we sent me to action so it seems the same principle would apply here my mind a back to that commentary in the rules and that's where i'm headed second i think the more intelligent answer to your question the court hearing needs to look at the purpose of the commentary behind the rules and the purpose for the amendment and the purpose for the commissary if you are pointing out to me curious to protect the defendant from the risk of double jeopardy me judge ruled in your favor would you of course accept it and if he ordered a new trial and he didn't want it you know then you can reject it so obviously if it's in your favor and he's already told you he doesn't like your replay nine motion quite enough that seems like an odd rule to me in other words you get to wait to know the answer to the time and whether or not you accept the new trial well i'm not so sure the rule already doesn't provide for some kind of selective ratted rising the fact is that it is the friend who asked the right to double jeopardy just like the twenty to fifty five petition the results of how our cases go we're going to accept them if we don't we're going to end up in front of you telling you that we don't except if it's jurisdictional you just can't you just can't do it and all that you agree to it doesn't make any difference i mean it's like time to appeal if you agree to go beyond it but there's no you have no authority to do that then it doesn't matter what you agreed right that's right if it's jurisdictional we can't right so i think that i think i maybe what you're getting at is that it doesn't matter if the government objected to it or not because the seven day limit may be a jurisdictional one that very well if you can i can't argue the governor if you can't convert it the fact that you didn't authority the question is if he doesn't have it the reason that he doesn't have authority is because he might implicate the defendant's double jeopardy concerns so it seems to me that the rule that when they amended it really was amended neutrally in other words he doesn't have the authority this may be the reason that we're doing that but it didn't say really you know what your honor this is a pretty unusual case you know i mean i am a lot of sympathy because i think he was trying to do the right thing in his view and that was the thing he thought he had the leeway to do so was another attorney who didn't make any motion at all and the court went ahead and made that an unusual finding which was that there was nothing the record to permit a finding that that was ineffective assistance of counsel which of course is where we're going to end up i should and it may be then attorney would say i got my best evidence in a new trial i may be killed i don't want to do the crime i want another try to rule twenty nine if i don't make it things are going to be worse the next time so we say in the yard looking back over the same things we'll do justice by granting a new trial i'm not sure the rules should allow him to do things that the council haven't asked for why should we have this chance on a district court judge to do things in excess of the rules when the rules may be for the best interest of the defendant in a given situation  situation and that is one of the things about this case that it doesn't seem like it's going to have a lot so a lot of presidential value because it is a sort of a unique situation the government's undertaking of burden of proof and then having to that that you could go ahead if if you're if the court is not comfortable allowing or just a court to do that on the recording tailor a different circuit to do that and it's been done in the ninth circuit then you could go ahead and find that judge would do that i mean that's really not what you were presented with my asking the more difficult question from your perspective why isn't this like what the government said a situation where a jury heard the adage and there were not errors in terms of and the jury reached a different verdict in a judge would has to say if it had been a bench trial that you know i think all judges have sat in trials and you wonder if you heard the same trial that the jury heard because they reach a different verdict but when you look at look at it used but you look at it and say well there isn't really anything that they did wrong that is one way that you could go i would have gone the other way why isn't that situation  express this way your honor and it's very clear from just records repeated questions of the prosecutor during and after the trial that the district court but hung up on and stone that the jury really didn't absorb correctly to that perhaps that very articulately by pointing out that really the facts were so plain and simple because the government undertook the burden of proof and you undertake the burden of proof to disprove elements beyond a reasonable doubt that it had the burden in the first i quite sure what the cross appeal is well to tell you the truth i'm i'm a little confused about it also but here's i think you're right but what happened was we it was simply the order of things  imagine what the government really thinks we're doing what is it if it's not if it's not a trial and not a hearing how would you classify that but i i think i sense this courts really want struggling with the which you haven't touched on in your brief why why should we not in because we haven't decided why shouldn't we just follow to what i think i said in our brief that the new tailors and therefore there is nothing to follow it was the defendant we'll hear the last case for argument johnson versus cambra