The final argument of the morning is an appeal number 05-5127 and the right guard versus the United States. Good morning, welcome. We need to begin. May I please support my name is David Sheldon and I represent the appellate in this case, orange ray guard. But we'd like to reserve five minutes of my time for a bottle. Very well. The question before this court is a question of law. While the government puts forth an argument that the decision below rests upon factual findings and absent the findings that those findings in fact are clearly erroneous, the case should be affirmed. Is it your view that the purported contract here, the charge reduction paper, is an unambiguous contract? It is a contract. Well, I think we all agree about that. The question is, is it unambiguous? Yes, Your Honor. And you read it then as saying, it unambiguously binds all elements of the US government including the Army and everybody else. What it doesn't do here, Your Honor, is have language that excludes and does it? Well, I've read it. I know what it doesn't do. But I'm asking you if your position isn't that it clearly binds all elements of the United States government. Within the context that it represents the DC, the District upon the Yes Your Honor as a federal entity. How does it, I don't understand where the District will say, the District of Columbia gets any authority to bind the United States Army? It's a federal entity here
. Well, so a lot. I mean, suppose I enter into a contract with the District of Columbia government to sell something and I provide it to them and they refuse to pay for it. Can I sue the United States and the Court of Federal claims for breach of contract? Your Honor. What's the answer to my question? No, Your Honor. Why not? What's the difference? For purposes of a criminal prosecution on contract law, yet Your Honor, the District of Columbia binds the United States Army just as it binds the United States attorneys office. And there's a case law directly on point. In fact, the government concedes that point on hate 16 and they're briefed. What does that have to do with the contract? As I leave the contract, what the contract is, the agreement of the contract, whatever your one call it says, is that if he will do 40 hours of community service, the corporation counsel who wanted some statute of regulation, charges and force and misstatutes, the corporation counsel will dismiss the criminal case again. And that's exactly what happened. We did this 40 hours of community service and they dismissed the case. Now, where does that somehow bind the Army? I don't understand. Because it's a federal entity. We cite cases in our Marie Pierrot, where we are all aware of it. What is a federal entity, the District of Columbia? Yes, Your Honor. But this will work purpose for all purposes of your year. For all purposes
. Yes, Your Honor. Let me ask you this type of thing, a hypothetical question to take it away from the peculiar structure of the District of Columbia government and extent to which it has federal overtones versus state or local overtones. Suppose I'm the United States attorney in Pittsburgh. And I decide to dismiss criminal charges against Captain Ragdorgh for acts occurring in Pittsburgh. I'm the U.S. attorney. Does my decision to not prosecute preclude the application of the Code of Military Justice in a court marshal against that author? No. I can't. The answer is no, but I'd like to explain. Well, if the answer to that is no, then why don't we get the same answer when it's the District of Columbia? Because even assuming that the Corporation Council somehow wears the hat of a federal prosecutor, the federal prosecutor cannot preclude the Army from a court marshal prosecution? Let me copy it. I answered in terms that in this case there was a pretrial diversion agreement that was entered into you. You have a rare agreement in the record. Page 7, you're in the appellate agreement. Page 7, you're in the appellate agreement. Page 7 is a referral
. I'm sorry. And page 8 is the Community Service Agreement that just talks about an agreement to complete 40 hours of Community Service. Where is there any sort of agreement here not to prosecute or to even to dismiss? Yes, Your Honor. In terms of it was agreed upon by the District of Columbia Corporation Council. Orally? I believe during the course of the initial arrangement. But there's no writing. It's Judge Winsreck that there's no writing containing a promise to drop the charges assuming that this Community Service has been successfully concluded. That is how pretrial that verse re-worked in the... But as you agree there's no writing embodying any such promise. For a trial. That happened to be a contract. No, I'm even more confused because the opinion of the United States Army Court of Criminal Appeals that appears beginning at page 11 of the defendant refers on page 14 to something called the Court of Justice. This is a quote, notice of eligibility. This is a, on page 14
. Yes, Your Honor. The bottom of the left column and it says, as stated in the quote, notice of eligibility, quote, given to the repellent the DC Corporation Council Office, agreed to dismiss the charge of indecent exposure in the DC Superior Court if the appellent successfully completed 40 hours of Community Service. And that happens during the, during the arrangement and there is a document. Is that the agreement that we're... Yes, Your Honor. ...that we're part of this case and it's not included in this, in this information. Why are we supposed to evaluate this case? I believe it before I will submit it. I believe it was submitted in the Flagstall Court proceedings as well. Well, assuming that the document says what this opinion says, it says, then it seems to me it's in a, it's clearly an agreement signed by the DC Corporation Council Office, not signed by a U.S. attorney
. It doesn't have to be signed by a United States attorney. I, I realize that, but doesn't that distinguish this from the case you mentioned earlier? No, Your Honor. Is that a Margalli Oliveira case which involved the U.S. attorney? No, Your Honor. I think within the peculiar structure of the district of Columbia, given that it is a federal entity, it is not necessary that it be a United States attorney. Well, that's what you, that's your opinion, but what basis do you have? I believe that Margalli Oliveira stands for that proposition as well as the other cases that we... No, but that case I dealt with an assistant U.S. attorney. Your Honor, in terms of asking or answering your opinion, what the precedent it says, I do not believe that there is precedent, just as the Army Court represented. This is a case of first impression. Mr. Schilden, is it your view that
... The Oliveira case is exactly comparable to this case? No, it's not exactly comparable. It's analogous. All right, analogous. Is that the case involving whether INF was bound by the promises of the U.S. attorney? Yes, Your Honor. But INF, at that point, as I recall, was a subdivision of the Department of Justice. U.S. attorney is an employee of the Department of Justice. So, of course, what a U.S. attorney would tell a court would bind INF or the FBI or DEA or any other subdivision of the Justice Department. But here, you can't be maintaining, can you? That the Department of the Army is a subdivision of the District of Columbia local government
. Of course not, Your Honor. So then, how is this case fairly called analogous? Because it's within the structure of the federal government. Just as it... What would you say was in the structure of the federal government, then it seems to be anything that the District of Columbia does. Somehow, it's chargeable as part of activities of the federal government. And the federal government is liable for any improprieties by the District of Columbia. In good bursts of markedly, the District of Columbia, according to the Pills, specifically said that residents of the District of Columbia enjoy more protection in that they cannot be prosecuted or offenses in the Superior Court and the federal court. And that's analogous to this situation. Well, maybe. I mean, you can say it's analogous. But as I understand it, there's ample case law that suggests that the uniform code of military justice is a parallel justice system. And that a promise of a prosecutor in the one system would not bind the other. For example, suppose that I'm a major bird song, and I'm a military prosecutor, and Judge Lynn does something wrong, and he's being prosecuted in the military justice system. I'm the prosecutor and I dismiss the charge
. Under your logic, the District Attorney in Philadelphia would be precluded from prosecuting Mr. Lynn for the underlying criminal conduct because I, being major bird song, the military prosecutor, dropped the case in the military justice system. No, you're under. I'm not saying that at all. And then I don't understand what you're saying. If you're not saying the one system's position binds the other, then I don't understand that you're saying anything wrong. It depends on the circumstances, your other, on why the charges were in fact dropped or how they were disposed of. And I see my time is up on. Let's ask, make one suggestion to you in connection before you sit down with the previous discussion of what these agreements provided, where it was difficult to find anything where they're writing before us. The charge that says to dismiss the charges, couldn't you argue that inherent in the whole concept as they have it of diversion is that the defendant, if he's diverted, knows that it's understood that if he carries out his plot of the block, the charges will be dropped. That's the essence of diversion. Thank you, Mr. Schultan. Good morning. Good morning. Do you agree with Mr
. Schultan that the interpretation of the papers here that purportedly constitutes a contract? Is the question of law? Your Honor, whether the pre-trailed diversion agreement is a contract, is a question of law, yes. And is the content of that contract in this circumstance not also a question of law? Is your Honor referring to the language of the agreement? Yeah, the rights and obligations of the two parties to the agreement. In the case of these documents, is that not also a question of law? Yes, it is. Now, at page six of the opinion of the trial judge, it seems to me that the principal rationale is on the premise that the rights and obligations of this party to this contract are a question of fact and a question of fact found by a military tribunal. Is that not right? Your Honor, I'm looking at the ACCA decision. I don't see a page six. No, no. The decision of the trial judge at page six. No, the court of federal claims, I'm sorry, I was looking at the ACCA decision. Yes, yes, Your Honor, that is true. So isn't that an error by the trial judge? Yes, she treated this as an issue of fact and then cited cases, including civilian courts from redetermining the facts found in court's marshals. But if she's wrong in saying that it's a factual matter, is that her whole rationale collapses? Does it not? Your Honor, if I may give some background to what she did, but your Honor is correct that she did treat that issue as a question of fact, where is what actually happened? And you agree that it was actually a question of law? Not entirely. What happened was the ACCA, which is the Army Court of Criminal Appeals, below. Treated that as both a question of law and when further, almost as a Pearl evidence principle, into whether or not there was any evidence, i.e. factual evidence, that the Army deemed itself to be bound by this agreement
. So the ACCA went outside the parameters of the language of the version of agreement itself. She was referring to that finding by the ACCA when she said that factual issues are not to be collateral attacked in the claims court. She did not address the ACCA's legal pronouncement that the interpretation of the agreement was unambiguous. But if you agree that the meaning of this contract is the question of law, then how can you rest on the rationale of the claims court judge who treated it at least in part as a matter of fact? She treated the part as a factual matter that the ACCA had addressed as a factual matter. She had not read the statement. She threw it out for lack of jurisdiction. So she said, I have no jurisdiction over any question in this case. Now I thought you agreed with me that at least one question in this case, the meaning of the contract is the question of law on this record. So she's necessarily saying, no, no, no, there are no legal questions here. There are only factual questions. And therefore, under bowling, which she said, I have to throw this out for lack of jurisdiction, because I have no authority which is true to refine facts found by a military tribunal. So I don't see that she admits that there's any legal issue here. She treats them as all factual issues and throws the case out for lack of jurisdiction. Am I misreading her opinion? She did that for that particular issue of the pretrial conversion agreement, but she does address the legal issue of double jeopardy, which is a legal issue. So if that's not raised here on appeal, all we're talking about in this appeal, as I understand it, is whether there was a contract between somebody representing the government and Mr. Lawrence Raghard that precluded the later court-martial proceeding, and where he stated guilty that such. Yes, and she did not address that as a legal issue. The court-martial. She did not address that. She did not address the interpretation or the meaning of the pretrial agreement, not even whether it was it-boundly army. Well, that suggests in me one of two possibilities, either that we should send it back to her and tell her to address it, or we should say treating this as a matter of fact was erroneous, but it was the error is harmless, because on the face of this contract and the arrangement, there's no question that it was agreement only to dismiss the distance between the court-martial. Yes, you're under in the court, should do the latter, because questions of law are reviewed by this court-genobo, and it is clear that the terms of that derision agreement find only the DC preparation counts, or whatever it is. If you argue harmless error anywhere in the brief, I can see that. We did not argue harmless error here, either. But you agree that she was an error. She properly looked at the ACCA's factual determination. Yes, but she found no legal issue. She found no legal issue. That part is her own. She could not review that issue, or that finding factual finding, finding army-grid of criminal appeals. She did not go further in saying, however, I will review the legal discussion that they gave regarding the terms of the agreement. Why should we be bound by what she did decide, not what she might have decided, but didn't decide? This court reviews legal determinations to know her
. Yes, and she did not address that as a legal issue. The court-martial. She did not address that. She did not address the interpretation or the meaning of the pretrial agreement, not even whether it was it-boundly army. Well, that suggests in me one of two possibilities, either that we should send it back to her and tell her to address it, or we should say treating this as a matter of fact was erroneous, but it was the error is harmless, because on the face of this contract and the arrangement, there's no question that it was agreement only to dismiss the distance between the court-martial. Yes, you're under in the court, should do the latter, because questions of law are reviewed by this court-genobo, and it is clear that the terms of that derision agreement find only the DC preparation counts, or whatever it is. If you argue harmless error anywhere in the brief, I can see that. We did not argue harmless error here, either. But you agree that she was an error. She properly looked at the ACCA's factual determination. Yes, but she found no legal issue. She found no legal issue. That part is her own. She could not review that issue, or that finding factual finding, finding army-grid of criminal appeals. She did not go further in saying, however, I will review the legal discussion that they gave regarding the terms of the agreement. Why should we be bound by what she did decide, not what she might have decided, but didn't decide? This court reviews legal determinations to know her. That's right. That's the undisputable proposition. This court was there any legal determination as to the terms of the contract? Made by the Court of Federal Plains, or by the ACCA? By the Court of Federal Plains. Not by the Court of Federal Plains that I have seen in the opinion when I read it, no. Why didn't you argue harm with her? Why didn't you argue for a firmman on an alternative grant? We did not see that as necessarily error because she did review the ACCA's factual findings and said that the court cannot be collateral attacked because the ACCA, she looked at it in a broader sense and said, do the ACCA look at the case in the wrong way? There is a decision that is not on appeal here. The only thing we are reviewing is the claims court judge's decision, not the Army of the Palace decision. But she properly applied the standard of review that the claims court has over ACCA decisions. And that is the claims court may look at those decisions and determine whether all the issues brought by the plaintiff were fully and fairly considered by the military court. And that is what she did in her opinion. So legally she was correct. And looking at whether all of the survivors' arguments were addressed by the military court, they were fully addressed. They were fully considered in its decision. Well, I know this here, looking at her opinion, at the age of 6 of her opinion, point 2, the caption reads as follows. The interpretation of the agreement is a question of fact for the military court. And I understood from your argument here today that you say that was not correct, but the interpretation of the agreement is a question of law. Well, the word interpretation here on her is perhaps ambiguous in this context
. That's right. That's the undisputable proposition. This court was there any legal determination as to the terms of the contract? Made by the Court of Federal Plains, or by the ACCA? By the Court of Federal Plains. Not by the Court of Federal Plains that I have seen in the opinion when I read it, no. Why didn't you argue harm with her? Why didn't you argue for a firmman on an alternative grant? We did not see that as necessarily error because she did review the ACCA's factual findings and said that the court cannot be collateral attacked because the ACCA, she looked at it in a broader sense and said, do the ACCA look at the case in the wrong way? There is a decision that is not on appeal here. The only thing we are reviewing is the claims court judge's decision, not the Army of the Palace decision. But she properly applied the standard of review that the claims court has over ACCA decisions. And that is the claims court may look at those decisions and determine whether all the issues brought by the plaintiff were fully and fairly considered by the military court. And that is what she did in her opinion. So legally she was correct. And looking at whether all of the survivors' arguments were addressed by the military court, they were fully addressed. They were fully considered in its decision. Well, I know this here, looking at her opinion, at the age of 6 of her opinion, point 2, the caption reads as follows. The interpretation of the agreement is a question of fact for the military court. And I understood from your argument here today that you say that was not correct, but the interpretation of the agreement is a question of law. Well, the word interpretation here on her is perhaps ambiguous in this context. The ACCA did read the agreement and looked at its language. And it said the language was really correct. Well, is she correct in saying that the interpretation of this agreement is a question of fact? And then she goes along a couple of paragraphs, lighter in saying that the United States Court of Federal claims does not have jurisdiction to reexamine questions of fact, resolved by a military court. But what she seems to say is what the agreement means is a question of fact. And I don't have jurisdiction to reexamine that question of fact. Now, it's a very different situation as it turns out that in fact the interpretation of the agreement is a question of law. Then presumably, what she should have done instead of saying that was to say, OK, I now my job to interpret the agreement that I interpret as meing so and so. The ACCA treated that issue as a most question of fact of the law. And they found in their decision at no time during the negotiations between the appellant and the DC Corporation Council Office, did any representative of that office indicate to the appellant any intention to bind any other agency by the law? Yes, but it's just that for someone else's found. But as just Michelle pointed out, the issue before us is whether the court of federal claims correctly or incorrectly disfist the suit. That's the question for us. And it seems as though with respect to the interpretation as the agreement, the reason that the court disfist the suit was because of an erroneous conclusion that the interpretation as the agreement is a question of fact. That is beyond the jurisdiction of the court of federal claims to reexamine. But as this court, the court of federal claims was also a reviewing court in this unusual instance. She had a standard of review to apply to the military court's decision, which she was applying. She was saying in her opinion, the factual determination made by the ACCA that at no time during the negotiations that anybody purported to bind the army, that's a factual determination
. The ACCA did read the agreement and looked at its language. And it said the language was really correct. Well, is she correct in saying that the interpretation of this agreement is a question of fact? And then she goes along a couple of paragraphs, lighter in saying that the United States Court of Federal claims does not have jurisdiction to reexamine questions of fact, resolved by a military court. But what she seems to say is what the agreement means is a question of fact. And I don't have jurisdiction to reexamine that question of fact. Now, it's a very different situation as it turns out that in fact the interpretation of the agreement is a question of law. Then presumably, what she should have done instead of saying that was to say, OK, I now my job to interpret the agreement that I interpret as meing so and so. The ACCA treated that issue as a most question of fact of the law. And they found in their decision at no time during the negotiations between the appellant and the DC Corporation Council Office, did any representative of that office indicate to the appellant any intention to bind any other agency by the law? Yes, but it's just that for someone else's found. But as just Michelle pointed out, the issue before us is whether the court of federal claims correctly or incorrectly disfist the suit. That's the question for us. And it seems as though with respect to the interpretation as the agreement, the reason that the court disfist the suit was because of an erroneous conclusion that the interpretation as the agreement is a question of fact. That is beyond the jurisdiction of the court of federal claims to reexamine. But as this court, the court of federal claims was also a reviewing court in this unusual instance. She had a standard of review to apply to the military court's decision, which she was applying. She was saying in her opinion, the factual determination made by the ACCA that at no time during the negotiations that anybody purported to bind the army, that's a factual determination. Is that a factual statement? I thought you said that's a legal determination. The ACCA made factual findings and legal determinations in deciding the broader issue of. Let me put a question a little differently to you. What is the government's position now? Is the government's position that the interpretation of this agreement, i.e., whether it precluded the army from court of law, that the interpretation of the agreement is a question of fact or a question of law? I don't want to know what the military court said. What is your position now? Is that a question of fact? In which case she is correct? Or is the question of law in which case she is not correct? In this context, it's both because the military went outside, they went outside the bounds of the agreement's language, and she did as well to find that it's factual finding that during the negotiations before the agreement was enacted or executed, no one prepared to bind the army. That's almost the parole evidence standard going outside the terms of agreement. Where does she treat the legal issue of what the contract means? She does not address the legal issue. It's in the legal issue. It's for her to not address the legal issue and just hide behind the military court on a collateral facture issue. Was that a rodeoist, your honor? Yes. Perhaps. What do you make of this sentence that runs from page 6 to page 7 of the court of federal claims that opinion is read? Accordingly, the decision of the United States Army court of criminal appeals that the agreement applied only to the district of Columbia is binding as a matter of law. She's not saying that that is a legal issue. She's saying that according to her standard of review, the court of claims, standard of review that only a constitutional defect can be looked at by the court of federal claims, not a question of fact, she's using that standard of review in that statement
. Is that a factual statement? I thought you said that's a legal determination. The ACCA made factual findings and legal determinations in deciding the broader issue of. Let me put a question a little differently to you. What is the government's position now? Is the government's position that the interpretation of this agreement, i.e., whether it precluded the army from court of law, that the interpretation of the agreement is a question of fact or a question of law? I don't want to know what the military court said. What is your position now? Is that a question of fact? In which case she is correct? Or is the question of law in which case she is not correct? In this context, it's both because the military went outside, they went outside the bounds of the agreement's language, and she did as well to find that it's factual finding that during the negotiations before the agreement was enacted or executed, no one prepared to bind the army. That's almost the parole evidence standard going outside the terms of agreement. Where does she treat the legal issue of what the contract means? She does not address the legal issue. It's in the legal issue. It's for her to not address the legal issue and just hide behind the military court on a collateral facture issue. Was that a rodeoist, your honor? Yes. Perhaps. What do you make of this sentence that runs from page 6 to page 7 of the court of federal claims that opinion is read? Accordingly, the decision of the United States Army court of criminal appeals that the agreement applied only to the district of Columbia is binding as a matter of law. She's not saying that that is a legal issue. She's saying that according to her standard of review, the court of claims, standard of review that only a constitutional defect can be looked at by the court of federal claims, not a question of fact, she's using that standard of review in that statement. What does she mean by as a matter of law and food? The standard of review for a court of federal claims jurisdiction over a military court decision is whether they were constitutional defects in the due process of for the plaintiff. So I'm came up with the law, but when she inserts this phrase as a matter of law, what do you think she's indicating? She is fact-indicating. It's binding as a matter of law because I cannot re-examine the factual findings of the military. That's what it seems to say. It binds her as a matter of law because she's beyond her authority to determine that. She is saying that for this particular issue. Just to let me ask you, is this hypothetical? To try to clarify where your position comes to rest? Suppose that I'm the Attorney General in the United States and that Major Burnt's on a Colonel Burnt's on a can't see, he's been seeing you well enough in this light, so I hope I didn't demote you, sir. But suppose he's the Judge Advocate General of the Army. I'm the Attorney General in the United States, he's the Judge Advocate General of the Army. We go into a court in Pittsburgh, Pennsylvania. And the defendant signs a plea agreement in which he pleads guilty to some minor offense. And it's Advocate General, the Army, and the Attorney General sign the papers. So there's no question of, is one system kind of buying the other? Both systems are signing on the agreement. Now, where there's later dispute about what the promises in that agreement were, no question of authority or both systems being represented. Isn't the content of that agreement signed by the Attorney General and the Judge Advocate General and the defendant the question of law? If the language is unambiguous yet. So the whole question really comes down to, is whether we should send it back to her to determine the meaning of this agreement or whether the meaning of this agreement is so clear on its face that we can determine it without having another round of precision
. What does she mean by as a matter of law and food? The standard of review for a court of federal claims jurisdiction over a military court decision is whether they were constitutional defects in the due process of for the plaintiff. So I'm came up with the law, but when she inserts this phrase as a matter of law, what do you think she's indicating? She is fact-indicating. It's binding as a matter of law because I cannot re-examine the factual findings of the military. That's what it seems to say. It binds her as a matter of law because she's beyond her authority to determine that. She is saying that for this particular issue. Just to let me ask you, is this hypothetical? To try to clarify where your position comes to rest? Suppose that I'm the Attorney General in the United States and that Major Burnt's on a Colonel Burnt's on a can't see, he's been seeing you well enough in this light, so I hope I didn't demote you, sir. But suppose he's the Judge Advocate General of the Army. I'm the Attorney General in the United States, he's the Judge Advocate General of the Army. We go into a court in Pittsburgh, Pennsylvania. And the defendant signs a plea agreement in which he pleads guilty to some minor offense. And it's Advocate General, the Army, and the Attorney General sign the papers. So there's no question of, is one system kind of buying the other? Both systems are signing on the agreement. Now, where there's later dispute about what the promises in that agreement were, no question of authority or both systems being represented. Isn't the content of that agreement signed by the Attorney General and the Judge Advocate General and the defendant the question of law? If the language is unambiguous yet. So the whole question really comes down to, is whether we should send it back to her to determine the meaning of this agreement or whether the meaning of this agreement is so clear on its face that we can determine it without having another round of precision. You're under, we argue the latter because in our brief, we did address this issue as a question of law. And our brief is persuasive and clearly should convince the court that should the court have to look at this as a question of law and can easily decide for itself that the Army was not that out. Who represented the government below? The government, you're under it before the military? No, the only procedure we're reviewing is the Court of Federal Claim. Why didn't you tell the trial judge that she didn't decide the key issue in the case and asked her to do it? We did brief the legal issue of interpretation below before the trial. No, I understand it and she ducked the issue. Why didn't you go back to her on an emotion for reconsideration? They judge you failed to answer the big question in this case. Please answer it. I'm going to say with all a lot of time and I can hear we are now better part of the year later spending money spending time to try to figure out why she didn't decide the issue that you briefed and asked her to decide. Your under is a question of law this court can review to know before itself. I have my question to you is why didn't you move for reconsideration to get her to answer the key question in the case? Her decision addressed what the most important issue is. Why don't you just say you didn't think but if that's the right issue? No, it's clear that the Court of Federal Claims doesn't have jurisdiction unless there is a constitutional defect in the lower court proceedings and it was very clear that on that most important issue the court was correct in dismissing the complaint. Meaning you thought she did address all the issues that needed to be addressed? The first issue is whether the military court addressed or fully considered all of Mr. Ragurd's arguments and she looked at that and she found that yes it did. My question to you is was it your view at the end of the proceeding when you read her opinion that she had addressed all the issues that needed to be addressed? Yes or no? She did address the diversion agreement. She addressed the double jeopardy argument and any serious constitutional defect. Were there any issues that needed to be addressed? In a broad sense yes she did
. You're under, we argue the latter because in our brief, we did address this issue as a question of law. And our brief is persuasive and clearly should convince the court that should the court have to look at this as a question of law and can easily decide for itself that the Army was not that out. Who represented the government below? The government, you're under it before the military? No, the only procedure we're reviewing is the Court of Federal Claim. Why didn't you tell the trial judge that she didn't decide the key issue in the case and asked her to do it? We did brief the legal issue of interpretation below before the trial. No, I understand it and she ducked the issue. Why didn't you go back to her on an emotion for reconsideration? They judge you failed to answer the big question in this case. Please answer it. I'm going to say with all a lot of time and I can hear we are now better part of the year later spending money spending time to try to figure out why she didn't decide the issue that you briefed and asked her to decide. Your under is a question of law this court can review to know before itself. I have my question to you is why didn't you move for reconsideration to get her to answer the key question in the case? Her decision addressed what the most important issue is. Why don't you just say you didn't think but if that's the right issue? No, it's clear that the Court of Federal Claims doesn't have jurisdiction unless there is a constitutional defect in the lower court proceedings and it was very clear that on that most important issue the court was correct in dismissing the complaint. Meaning you thought she did address all the issues that needed to be addressed? The first issue is whether the military court addressed or fully considered all of Mr. Ragurd's arguments and she looked at that and she found that yes it did. My question to you is was it your view at the end of the proceeding when you read her opinion that she had addressed all the issues that needed to be addressed? Yes or no? She did address the diversion agreement. She addressed the double jeopardy argument and any serious constitutional defect. Were there any issues that needed to be addressed? In a broad sense yes she did. Thank you Mr. Shelber. Have about three minutes. Chief Judge I want to go directly to your question that you asked me in the different question that you asked this morning. I believe that that is in essence the similar question. The question that you asked me was if the United States attorney in Pittsburgh desires to forego prosecution in the Western District of Pennsylvania does that preclude prosecution by the United States military? I answered the question now. The correct answer is yes and no. It depends on what the reasons are for the United States attorney's decision. If there is a agreement that you indicated where the United States agrees to forego prosecution because the accused cooperate because the accused does something in terms of community service. It agrees and that agreement is then satisfied by the accused. Then prosecution by the United States military is precluded. Under what authority? Under the authority of all of them. The Morales case that we cited among the other cases in our brief. If the United States is precluded, the United States military is precluded. If the United States is precluded, the United States military is precluded. The United States should be spelled out in positive form so that if the military justice system is to be shut down for a particular offense that the plea agreement in the civilian system should have to say so
. Thank you Mr. Shelber. Have about three minutes. Chief Judge I want to go directly to your question that you asked me in the different question that you asked this morning. I believe that that is in essence the similar question. The question that you asked me was if the United States attorney in Pittsburgh desires to forego prosecution in the Western District of Pennsylvania does that preclude prosecution by the United States military? I answered the question now. The correct answer is yes and no. It depends on what the reasons are for the United States attorney's decision. If there is a agreement that you indicated where the United States agrees to forego prosecution because the accused cooperate because the accused does something in terms of community service. It agrees and that agreement is then satisfied by the accused. Then prosecution by the United States military is precluded. Under what authority? Under the authority of all of them. The Morales case that we cited among the other cases in our brief. If the United States is precluded, the United States military is precluded. If the United States is precluded, the United States military is precluded. The United States should be spelled out in positive form so that if the military justice system is to be shut down for a particular offense that the plea agreement in the civilian system should have to say so. Because silent then the military system should not be deemed shut down. Because the authority that we cite in our brief. This agreement is construed against the person who drafted the agreement. And because under traditional contract law if it does not address it, if it does not include or exclude it, then it is deemed to include it. The same principle was been talking with Ty Pond about the military because it was the military that prosecuted him. But the follows that you had is a proceedings take. Suppose we have a case where the district proceeds against somebody for some offense. And then they work out the steel that he's going to be a new community service in the military. And the district drops the case. And then all the papers assigned by the Corporation Council of the District would that agreement preclude the United States attorney for the district of Columbia from subsequently inditing this person for a different defense for going out of the same conduct. I see my time is up. You may answer. Good versus Markley definitively answers that question. Good versus Markley which is cited in our brief at the DC circuit court definitively says the United States attorney would be precluded from going forward. Even though there's no reference in the agreement to the United States attorney's process. Yes, Your Honor
. Because silent then the military system should not be deemed shut down. Because the authority that we cite in our brief. This agreement is construed against the person who drafted the agreement. And because under traditional contract law if it does not address it, if it does not include or exclude it, then it is deemed to include it. The same principle was been talking with Ty Pond about the military because it was the military that prosecuted him. But the follows that you had is a proceedings take. Suppose we have a case where the district proceeds against somebody for some offense. And then they work out the steel that he's going to be a new community service in the military. And the district drops the case. And then all the papers assigned by the Corporation Council of the District would that agreement preclude the United States attorney for the district of Columbia from subsequently inditing this person for a different defense for going out of the same conduct. I see my time is up. You may answer. Good versus Markley definitively answers that question. Good versus Markley which is cited in our brief at the DC circuit court definitively says the United States attorney would be precluded from going forward. Even though there's no reference in the agreement to the United States attorney's process. Yes, Your Honor. All right, we thank those Councilmen. We'll take rag-art degrees of the United States under advisement. All right. You got to go to court with the jury. So we'll kind of climb along the road.
The final argument of the morning is an appeal number 05-5127 and the right guard versus the United States. Good morning, welcome. We need to begin. May I please support my name is David Sheldon and I represent the appellate in this case, orange ray guard. But we'd like to reserve five minutes of my time for a bottle. Very well. The question before this court is a question of law. While the government puts forth an argument that the decision below rests upon factual findings and absent the findings that those findings in fact are clearly erroneous, the case should be affirmed. Is it your view that the purported contract here, the charge reduction paper, is an unambiguous contract? It is a contract. Well, I think we all agree about that. The question is, is it unambiguous? Yes, Your Honor. And you read it then as saying, it unambiguously binds all elements of the US government including the Army and everybody else. What it doesn't do here, Your Honor, is have language that excludes and does it? Well, I've read it. I know what it doesn't do. But I'm asking you if your position isn't that it clearly binds all elements of the United States government. Within the context that it represents the DC, the District upon the Yes Your Honor as a federal entity. How does it, I don't understand where the District will say, the District of Columbia gets any authority to bind the United States Army? It's a federal entity here. Well, so a lot. I mean, suppose I enter into a contract with the District of Columbia government to sell something and I provide it to them and they refuse to pay for it. Can I sue the United States and the Court of Federal claims for breach of contract? Your Honor. What's the answer to my question? No, Your Honor. Why not? What's the difference? For purposes of a criminal prosecution on contract law, yet Your Honor, the District of Columbia binds the United States Army just as it binds the United States attorneys office. And there's a case law directly on point. In fact, the government concedes that point on hate 16 and they're briefed. What does that have to do with the contract? As I leave the contract, what the contract is, the agreement of the contract, whatever your one call it says, is that if he will do 40 hours of community service, the corporation counsel who wanted some statute of regulation, charges and force and misstatutes, the corporation counsel will dismiss the criminal case again. And that's exactly what happened. We did this 40 hours of community service and they dismissed the case. Now, where does that somehow bind the Army? I don't understand. Because it's a federal entity. We cite cases in our Marie Pierrot, where we are all aware of it. What is a federal entity, the District of Columbia? Yes, Your Honor. But this will work purpose for all purposes of your year. For all purposes. Yes, Your Honor. Let me ask you this type of thing, a hypothetical question to take it away from the peculiar structure of the District of Columbia government and extent to which it has federal overtones versus state or local overtones. Suppose I'm the United States attorney in Pittsburgh. And I decide to dismiss criminal charges against Captain Ragdorgh for acts occurring in Pittsburgh. I'm the U.S. attorney. Does my decision to not prosecute preclude the application of the Code of Military Justice in a court marshal against that author? No. I can't. The answer is no, but I'd like to explain. Well, if the answer to that is no, then why don't we get the same answer when it's the District of Columbia? Because even assuming that the Corporation Council somehow wears the hat of a federal prosecutor, the federal prosecutor cannot preclude the Army from a court marshal prosecution? Let me copy it. I answered in terms that in this case there was a pretrial diversion agreement that was entered into you. You have a rare agreement in the record. Page 7, you're in the appellate agreement. Page 7, you're in the appellate agreement. Page 7 is a referral. I'm sorry. And page 8 is the Community Service Agreement that just talks about an agreement to complete 40 hours of Community Service. Where is there any sort of agreement here not to prosecute or to even to dismiss? Yes, Your Honor. In terms of it was agreed upon by the District of Columbia Corporation Council. Orally? I believe during the course of the initial arrangement. But there's no writing. It's Judge Winsreck that there's no writing containing a promise to drop the charges assuming that this Community Service has been successfully concluded. That is how pretrial that verse re-worked in the... But as you agree there's no writing embodying any such promise. For a trial. That happened to be a contract. No, I'm even more confused because the opinion of the United States Army Court of Criminal Appeals that appears beginning at page 11 of the defendant refers on page 14 to something called the Court of Justice. This is a quote, notice of eligibility. This is a, on page 14. Yes, Your Honor. The bottom of the left column and it says, as stated in the quote, notice of eligibility, quote, given to the repellent the DC Corporation Council Office, agreed to dismiss the charge of indecent exposure in the DC Superior Court if the appellent successfully completed 40 hours of Community Service. And that happens during the, during the arrangement and there is a document. Is that the agreement that we're... Yes, Your Honor. ...that we're part of this case and it's not included in this, in this information. Why are we supposed to evaluate this case? I believe it before I will submit it. I believe it was submitted in the Flagstall Court proceedings as well. Well, assuming that the document says what this opinion says, it says, then it seems to me it's in a, it's clearly an agreement signed by the DC Corporation Council Office, not signed by a U.S. attorney. It doesn't have to be signed by a United States attorney. I, I realize that, but doesn't that distinguish this from the case you mentioned earlier? No, Your Honor. Is that a Margalli Oliveira case which involved the U.S. attorney? No, Your Honor. I think within the peculiar structure of the district of Columbia, given that it is a federal entity, it is not necessary that it be a United States attorney. Well, that's what you, that's your opinion, but what basis do you have? I believe that Margalli Oliveira stands for that proposition as well as the other cases that we... No, but that case I dealt with an assistant U.S. attorney. Your Honor, in terms of asking or answering your opinion, what the precedent it says, I do not believe that there is precedent, just as the Army Court represented. This is a case of first impression. Mr. Schilden, is it your view that... The Oliveira case is exactly comparable to this case? No, it's not exactly comparable. It's analogous. All right, analogous. Is that the case involving whether INF was bound by the promises of the U.S. attorney? Yes, Your Honor. But INF, at that point, as I recall, was a subdivision of the Department of Justice. U.S. attorney is an employee of the Department of Justice. So, of course, what a U.S. attorney would tell a court would bind INF or the FBI or DEA or any other subdivision of the Justice Department. But here, you can't be maintaining, can you? That the Department of the Army is a subdivision of the District of Columbia local government. Of course not, Your Honor. So then, how is this case fairly called analogous? Because it's within the structure of the federal government. Just as it... What would you say was in the structure of the federal government, then it seems to be anything that the District of Columbia does. Somehow, it's chargeable as part of activities of the federal government. And the federal government is liable for any improprieties by the District of Columbia. In good bursts of markedly, the District of Columbia, according to the Pills, specifically said that residents of the District of Columbia enjoy more protection in that they cannot be prosecuted or offenses in the Superior Court and the federal court. And that's analogous to this situation. Well, maybe. I mean, you can say it's analogous. But as I understand it, there's ample case law that suggests that the uniform code of military justice is a parallel justice system. And that a promise of a prosecutor in the one system would not bind the other. For example, suppose that I'm a major bird song, and I'm a military prosecutor, and Judge Lynn does something wrong, and he's being prosecuted in the military justice system. I'm the prosecutor and I dismiss the charge. Under your logic, the District Attorney in Philadelphia would be precluded from prosecuting Mr. Lynn for the underlying criminal conduct because I, being major bird song, the military prosecutor, dropped the case in the military justice system. No, you're under. I'm not saying that at all. And then I don't understand what you're saying. If you're not saying the one system's position binds the other, then I don't understand that you're saying anything wrong. It depends on the circumstances, your other, on why the charges were in fact dropped or how they were disposed of. And I see my time is up on. Let's ask, make one suggestion to you in connection before you sit down with the previous discussion of what these agreements provided, where it was difficult to find anything where they're writing before us. The charge that says to dismiss the charges, couldn't you argue that inherent in the whole concept as they have it of diversion is that the defendant, if he's diverted, knows that it's understood that if he carries out his plot of the block, the charges will be dropped. That's the essence of diversion. Thank you, Mr. Schultan. Good morning. Good morning. Do you agree with Mr. Schultan that the interpretation of the papers here that purportedly constitutes a contract? Is the question of law? Your Honor, whether the pre-trailed diversion agreement is a contract, is a question of law, yes. And is the content of that contract in this circumstance not also a question of law? Is your Honor referring to the language of the agreement? Yeah, the rights and obligations of the two parties to the agreement. In the case of these documents, is that not also a question of law? Yes, it is. Now, at page six of the opinion of the trial judge, it seems to me that the principal rationale is on the premise that the rights and obligations of this party to this contract are a question of fact and a question of fact found by a military tribunal. Is that not right? Your Honor, I'm looking at the ACCA decision. I don't see a page six. No, no. The decision of the trial judge at page six. No, the court of federal claims, I'm sorry, I was looking at the ACCA decision. Yes, yes, Your Honor, that is true. So isn't that an error by the trial judge? Yes, she treated this as an issue of fact and then cited cases, including civilian courts from redetermining the facts found in court's marshals. But if she's wrong in saying that it's a factual matter, is that her whole rationale collapses? Does it not? Your Honor, if I may give some background to what she did, but your Honor is correct that she did treat that issue as a question of fact, where is what actually happened? And you agree that it was actually a question of law? Not entirely. What happened was the ACCA, which is the Army Court of Criminal Appeals, below. Treated that as both a question of law and when further, almost as a Pearl evidence principle, into whether or not there was any evidence, i.e. factual evidence, that the Army deemed itself to be bound by this agreement. So the ACCA went outside the parameters of the language of the version of agreement itself. She was referring to that finding by the ACCA when she said that factual issues are not to be collateral attacked in the claims court. She did not address the ACCA's legal pronouncement that the interpretation of the agreement was unambiguous. But if you agree that the meaning of this contract is the question of law, then how can you rest on the rationale of the claims court judge who treated it at least in part as a matter of fact? She treated the part as a factual matter that the ACCA had addressed as a factual matter. She had not read the statement. She threw it out for lack of jurisdiction. So she said, I have no jurisdiction over any question in this case. Now I thought you agreed with me that at least one question in this case, the meaning of the contract is the question of law on this record. So she's necessarily saying, no, no, no, there are no legal questions here. There are only factual questions. And therefore, under bowling, which she said, I have to throw this out for lack of jurisdiction, because I have no authority which is true to refine facts found by a military tribunal. So I don't see that she admits that there's any legal issue here. She treats them as all factual issues and throws the case out for lack of jurisdiction. Am I misreading her opinion? She did that for that particular issue of the pretrial conversion agreement, but she does address the legal issue of double jeopardy, which is a legal issue. So if that's not raised here on appeal, all we're talking about in this appeal, as I understand it, is whether there was a contract between somebody representing the government and Mr. Lawrence Raghard that precluded the later court-martial proceeding, and where he stated guilty that such. Yes, and she did not address that as a legal issue. The court-martial. She did not address that. She did not address the interpretation or the meaning of the pretrial agreement, not even whether it was it-boundly army. Well, that suggests in me one of two possibilities, either that we should send it back to her and tell her to address it, or we should say treating this as a matter of fact was erroneous, but it was the error is harmless, because on the face of this contract and the arrangement, there's no question that it was agreement only to dismiss the distance between the court-martial. Yes, you're under in the court, should do the latter, because questions of law are reviewed by this court-genobo, and it is clear that the terms of that derision agreement find only the DC preparation counts, or whatever it is. If you argue harmless error anywhere in the brief, I can see that. We did not argue harmless error here, either. But you agree that she was an error. She properly looked at the ACCA's factual determination. Yes, but she found no legal issue. She found no legal issue. That part is her own. She could not review that issue, or that finding factual finding, finding army-grid of criminal appeals. She did not go further in saying, however, I will review the legal discussion that they gave regarding the terms of the agreement. Why should we be bound by what she did decide, not what she might have decided, but didn't decide? This court reviews legal determinations to know her. That's right. That's the undisputable proposition. This court was there any legal determination as to the terms of the contract? Made by the Court of Federal Plains, or by the ACCA? By the Court of Federal Plains. Not by the Court of Federal Plains that I have seen in the opinion when I read it, no. Why didn't you argue harm with her? Why didn't you argue for a firmman on an alternative grant? We did not see that as necessarily error because she did review the ACCA's factual findings and said that the court cannot be collateral attacked because the ACCA, she looked at it in a broader sense and said, do the ACCA look at the case in the wrong way? There is a decision that is not on appeal here. The only thing we are reviewing is the claims court judge's decision, not the Army of the Palace decision. But she properly applied the standard of review that the claims court has over ACCA decisions. And that is the claims court may look at those decisions and determine whether all the issues brought by the plaintiff were fully and fairly considered by the military court. And that is what she did in her opinion. So legally she was correct. And looking at whether all of the survivors' arguments were addressed by the military court, they were fully addressed. They were fully considered in its decision. Well, I know this here, looking at her opinion, at the age of 6 of her opinion, point 2, the caption reads as follows. The interpretation of the agreement is a question of fact for the military court. And I understood from your argument here today that you say that was not correct, but the interpretation of the agreement is a question of law. Well, the word interpretation here on her is perhaps ambiguous in this context. The ACCA did read the agreement and looked at its language. And it said the language was really correct. Well, is she correct in saying that the interpretation of this agreement is a question of fact? And then she goes along a couple of paragraphs, lighter in saying that the United States Court of Federal claims does not have jurisdiction to reexamine questions of fact, resolved by a military court. But what she seems to say is what the agreement means is a question of fact. And I don't have jurisdiction to reexamine that question of fact. Now, it's a very different situation as it turns out that in fact the interpretation of the agreement is a question of law. Then presumably, what she should have done instead of saying that was to say, OK, I now my job to interpret the agreement that I interpret as meing so and so. The ACCA treated that issue as a most question of fact of the law. And they found in their decision at no time during the negotiations between the appellant and the DC Corporation Council Office, did any representative of that office indicate to the appellant any intention to bind any other agency by the law? Yes, but it's just that for someone else's found. But as just Michelle pointed out, the issue before us is whether the court of federal claims correctly or incorrectly disfist the suit. That's the question for us. And it seems as though with respect to the interpretation as the agreement, the reason that the court disfist the suit was because of an erroneous conclusion that the interpretation as the agreement is a question of fact. That is beyond the jurisdiction of the court of federal claims to reexamine. But as this court, the court of federal claims was also a reviewing court in this unusual instance. She had a standard of review to apply to the military court's decision, which she was applying. She was saying in her opinion, the factual determination made by the ACCA that at no time during the negotiations that anybody purported to bind the army, that's a factual determination. Is that a factual statement? I thought you said that's a legal determination. The ACCA made factual findings and legal determinations in deciding the broader issue of. Let me put a question a little differently to you. What is the government's position now? Is the government's position that the interpretation of this agreement, i.e., whether it precluded the army from court of law, that the interpretation of the agreement is a question of fact or a question of law? I don't want to know what the military court said. What is your position now? Is that a question of fact? In which case she is correct? Or is the question of law in which case she is not correct? In this context, it's both because the military went outside, they went outside the bounds of the agreement's language, and she did as well to find that it's factual finding that during the negotiations before the agreement was enacted or executed, no one prepared to bind the army. That's almost the parole evidence standard going outside the terms of agreement. Where does she treat the legal issue of what the contract means? She does not address the legal issue. It's in the legal issue. It's for her to not address the legal issue and just hide behind the military court on a collateral facture issue. Was that a rodeoist, your honor? Yes. Perhaps. What do you make of this sentence that runs from page 6 to page 7 of the court of federal claims that opinion is read? Accordingly, the decision of the United States Army court of criminal appeals that the agreement applied only to the district of Columbia is binding as a matter of law. She's not saying that that is a legal issue. She's saying that according to her standard of review, the court of claims, standard of review that only a constitutional defect can be looked at by the court of federal claims, not a question of fact, she's using that standard of review in that statement. What does she mean by as a matter of law and food? The standard of review for a court of federal claims jurisdiction over a military court decision is whether they were constitutional defects in the due process of for the plaintiff. So I'm came up with the law, but when she inserts this phrase as a matter of law, what do you think she's indicating? She is fact-indicating. It's binding as a matter of law because I cannot re-examine the factual findings of the military. That's what it seems to say. It binds her as a matter of law because she's beyond her authority to determine that. She is saying that for this particular issue. Just to let me ask you, is this hypothetical? To try to clarify where your position comes to rest? Suppose that I'm the Attorney General in the United States and that Major Burnt's on a Colonel Burnt's on a can't see, he's been seeing you well enough in this light, so I hope I didn't demote you, sir. But suppose he's the Judge Advocate General of the Army. I'm the Attorney General in the United States, he's the Judge Advocate General of the Army. We go into a court in Pittsburgh, Pennsylvania. And the defendant signs a plea agreement in which he pleads guilty to some minor offense. And it's Advocate General, the Army, and the Attorney General sign the papers. So there's no question of, is one system kind of buying the other? Both systems are signing on the agreement. Now, where there's later dispute about what the promises in that agreement were, no question of authority or both systems being represented. Isn't the content of that agreement signed by the Attorney General and the Judge Advocate General and the defendant the question of law? If the language is unambiguous yet. So the whole question really comes down to, is whether we should send it back to her to determine the meaning of this agreement or whether the meaning of this agreement is so clear on its face that we can determine it without having another round of precision. You're under, we argue the latter because in our brief, we did address this issue as a question of law. And our brief is persuasive and clearly should convince the court that should the court have to look at this as a question of law and can easily decide for itself that the Army was not that out. Who represented the government below? The government, you're under it before the military? No, the only procedure we're reviewing is the Court of Federal Claim. Why didn't you tell the trial judge that she didn't decide the key issue in the case and asked her to do it? We did brief the legal issue of interpretation below before the trial. No, I understand it and she ducked the issue. Why didn't you go back to her on an emotion for reconsideration? They judge you failed to answer the big question in this case. Please answer it. I'm going to say with all a lot of time and I can hear we are now better part of the year later spending money spending time to try to figure out why she didn't decide the issue that you briefed and asked her to decide. Your under is a question of law this court can review to know before itself. I have my question to you is why didn't you move for reconsideration to get her to answer the key question in the case? Her decision addressed what the most important issue is. Why don't you just say you didn't think but if that's the right issue? No, it's clear that the Court of Federal Claims doesn't have jurisdiction unless there is a constitutional defect in the lower court proceedings and it was very clear that on that most important issue the court was correct in dismissing the complaint. Meaning you thought she did address all the issues that needed to be addressed? The first issue is whether the military court addressed or fully considered all of Mr. Ragurd's arguments and she looked at that and she found that yes it did. My question to you is was it your view at the end of the proceeding when you read her opinion that she had addressed all the issues that needed to be addressed? Yes or no? She did address the diversion agreement. She addressed the double jeopardy argument and any serious constitutional defect. Were there any issues that needed to be addressed? In a broad sense yes she did. Thank you Mr. Shelber. Have about three minutes. Chief Judge I want to go directly to your question that you asked me in the different question that you asked this morning. I believe that that is in essence the similar question. The question that you asked me was if the United States attorney in Pittsburgh desires to forego prosecution in the Western District of Pennsylvania does that preclude prosecution by the United States military? I answered the question now. The correct answer is yes and no. It depends on what the reasons are for the United States attorney's decision. If there is a agreement that you indicated where the United States agrees to forego prosecution because the accused cooperate because the accused does something in terms of community service. It agrees and that agreement is then satisfied by the accused. Then prosecution by the United States military is precluded. Under what authority? Under the authority of all of them. The Morales case that we cited among the other cases in our brief. If the United States is precluded, the United States military is precluded. If the United States is precluded, the United States military is precluded. The United States should be spelled out in positive form so that if the military justice system is to be shut down for a particular offense that the plea agreement in the civilian system should have to say so. Because silent then the military system should not be deemed shut down. Because the authority that we cite in our brief. This agreement is construed against the person who drafted the agreement. And because under traditional contract law if it does not address it, if it does not include or exclude it, then it is deemed to include it. The same principle was been talking with Ty Pond about the military because it was the military that prosecuted him. But the follows that you had is a proceedings take. Suppose we have a case where the district proceeds against somebody for some offense. And then they work out the steel that he's going to be a new community service in the military. And the district drops the case. And then all the papers assigned by the Corporation Council of the District would that agreement preclude the United States attorney for the district of Columbia from subsequently inditing this person for a different defense for going out of the same conduct. I see my time is up. You may answer. Good versus Markley definitively answers that question. Good versus Markley which is cited in our brief at the DC circuit court definitively says the United States attorney would be precluded from going forward. Even though there's no reference in the agreement to the United States attorney's process. Yes, Your Honor. All right, we thank those Councilmen. We'll take rag-art degrees of the United States under advisement. All right. You got to go to court with the jury. So we'll kind of climb along the road