the st case this morning is us versus bar of the three issues that relate to what i'll call the saudi here saudi arabia issues the st is the trial court's failure and outright refusal to consider mitigating evidence under section th mr karr's arrest and detention saudi arabia it was our position that those materials should be considered in mitigation to the extent the government of the united states participated in his arrest for his i saudi arabia was related to this case it was clear that the district court did not understand reply the issue at the nov th two thousand and eighteen appearance before the court can i ask you a question that that affects all of your brady issues have you seen the brady materials now i mean i understand that you needed clearance that that you did not have right before the sentencing hearing but at this point had has that and mr by been able to find out allowed to look at the classified materials i came into the case in november of twenty team i was denied access to those materials the classified ones in addition your honor there is a series of e mails between me and they  at the time which was attached to the docket in connection with our motion to dismiss the indictment for continuance into a drug plea and in the series of e mails between me in the usa he was not definitively able to state that the classified memos that i was not allowed to see whether there were additional memos beyond that that had not even been seen by his former counsel and those are those e mails between me and the usa are attached to that briefing and wire fraud and then at page seven thousand seven hundred and seventy eight dollars the court says the fact that mr bauer found himself in a rabia is unfortunate apparently but he is now in the united states and subject to the jurisdiction of this court and he later says united states versus me has dealt with many of these issues your client is subject to the jurisdiction of this court and i explain to the judge many times that we weren't contesting the and should consider mr barr's arrest and incarceration for a long period of time in saudi arabia because it was at the behest of the united states government so since he misapprehended the issue he further states in his january th twenty nine opinion defendant has a discovery necessary for sentencing a set and seeing that pertains to defend its illegal conduct perpetrated in the northern district of illinois not saudi arabia but council it seems to me that what th was saying and this is abuse of discretion of you is that this wasn't material i mean for it to be brady evidence you know it has to be material under the st crime and i think what the district judge was saying right was that listen he's being tried for fraud in the northern district of for the fraud and i guess i'm having a hard time tracking when that was an abuse of discretion well i would just disprove your judge because based on his own words the way he's framing the issue is not that hey i've looked at the material and under th and fifty three if you was detained in saudi arabia for pick pick your time at the behest of the u s government arising out of this case that's something i find not material to my decision that's not what he said he misapprehended what the material was being used for and then when we get to the sentencing hearing your honor i think that's even more instructive the government approaches him a beginning of the hearing giving him notice the day before that they want to show him classified materials to try to make the argument which was for the  time that these materials were not material on they want to show the classified documents we objected which was consistent with our position that we should be able to see whatever the government sees whatever the court sees in response judge strip no i'm not going to hear anything about saudi arabia but if you had seen it and you hadn't seen it then you would be here objecting that he was making a decision based on material that you didn't have access to judge i don't know what i would be doing with the time we said to take the position it was consist pushes it wasn't fair to oss to allow there is two issues at that time classified materials we had seen and then potentially based upon the string of e mails between me and you usa additional classified materials which had not even been produce brady you have to show that it was material and your argument is essentially that he should have gotten some kind of credit for his sentence here for the time he spent in the saudi arabian prison and you haven't shown why that would have had any effect consider at all not because it wasn't material because he decided that since i object to the classified materials no one's going to talk about the issue at all the government never took that position judge at eleven  hearing they conceded the potential relevance of the classified materials i said to the court and one thousand one hundred and thirty of two thousand and eighteen these materials are potentially relevant to sentencing the government agreed the government agreed we should get a continu for me to get a security clearance and judge it wasn't just that they then filed a brief in response to the motion to dismiss indictment which the docket three o five and the government which is contrary to what is now telling the th circuit says that time says docket through a five government's response to motion dismiss indictment certainly if it finds for mr barch credible it can consider the conditions of his confinement in saudi arabia and fashing an appropriate sentence in this case so even the united states attorney's office realized this was potentially relevant conditions that his confinement is different than saying that he should get credit for that in some way which is kind of like you're saying like they did that the indictment should have been dismissed well that that's that's  that's my next issue judge so i'm her stand that i do i agree with you it's not a day for day credit it's not below what he was in saudi arabia for six months and he automatically gets credit that's not the point the point is under three thousand five hundred and fifty three dollars that's a mitigating factor which the judge should and is required to consider and he could take that into account if that the appropriate sentence just as the united states government recognized and agreed to make the same argument same concession as i did with respect to brady you  think that's a whole different issue number one they waited twenty months to produce these documents until late november of two thousand and eighteen still no explanation as to why they withheld these brady materials they didn't produce them in response to or a new request or new motion as your honor will recall the brady motion but filed in march of two thousand and seventeen at that time they did not take the position that oh we shouldn't have to produce using materials because they're not relevant to sentencing no they sat down with counsel provided some classified documents but as you know your honor it took twenty months for then distro of additional relevant materials to be produce and they're very telling i under brady because contrary to the position they had tape in with the district court for two years the documents did show they're involved in efforts to rest mr barr and saudi arabia and they did show but that's not that often say they don't say we would like you dexter and they sent e mails to saudi intelligence secret police saying point blank we have set a memo on the high side mean classified to arrest mr barch nothing to do with the red notice nothing to do with a violation of law in that country and then in august there the u s intelligence is telling the a usa and the f b i the saudis have arrested him and there was in between that time judge there was discussion about why is it taken saudi so long to arrest him so the only reasonable inference is the secret police of saudi arabia arrested mr barch on saudi soil at the behest of the u s government the only reasonable inference therefore is that it say arrest him saudis have arrested him talking about him being in my hobby think jail the mob jail and the conditions of it are explained to mr barr's f david but generally known through reporting such as washington post these are places where people are taken to be interrogated and be used with respect to brady there's still no explanation as to why they waited twenty months they never certified to the district court that their document production is complete in response to break so judge i know it's a farfetched position that you're going to this court's going to dismiss indictment i don't think you're going to do that quite frankly judge it's relief we asked for the district court but we are asking that this court find now when it's remembered for sentencing to classified material so we can have a full some discussion argument under three thousand five hundred and fifty three do i expect the court to toss out the document i don't i do think it's appropriate judge when there's a brady violation and the u s government won't take a subject to the same ground rules as we are that's why i think the brady issue is extremely important particularly when the never told judge normal why they didn't produce have they produced fulsomely and what is the explanation for the non classified documents you talked about earlier number one i was denied access to those and there's really not a reason judge three of the defendants in this case have never been says they've been sitting around for years too ok so the idea that was that we were less of what every going to call leader organizer supervisor the other general would have meant supervisor who haven't been sentenced once in a turk once an attorney who was intimately involved in every single transaction one is a address that issue we believe that to say that a council defense counsels in this building is not fall below a objective standard reasonless when they don't tell their clients what the burden of proof is you can't properly advise your client without telling what the burden of proof is in a case when you have a client who's facing possibly one hundred and fifty one years it in jail and you don't tell them hey look by the way buddy it's not going to be a reasonable doubt standard sentencing it's going to preponderance meaning that you have almost no chance on winning on this loss in them and so it's very important in this case because men which make maybe get you into over a one hundred months of time we can argue this last month well it's critically important to any defense understand him but you really don't have a shot it's a preponderance of the evidence standard for the government to prove some of the sense in here it's not beyond a reasonable doubt and i think the judge just plead colloquy in this case is very interesting the government keeps coming back to it but what judge normal did is what judges always do he told him six different times the government has the burden of proving you feel keep beyond a reasonable doubt and twice he told mr barr the government always has the burden of proving you guilty beyond a reasonable doubt so there's no way based on a plea colloquy mr barr would have walked away and said gee when i get to the sentencing it's going to be any different and we know that his counsel never instructed him that that was the case so even judge normal the st time i appeared before him on one thousand one hundred and thirty one of the st things he said when i asked for a continu he said are you going to file a motion to withdraw the guilty plea i just been in the case days i said i don't know yet so even he understood the possibility of that happening thank you and then finally with respect to the recusal issue the standard is whether it creates the appearance of bias or impropriety whether it should jesters it deep seated animosity by the district court to the side the government to  wasn't ok and whether you tie it to a retaliatory motive or not doesn't matter ok if if the treatment of me in that court is different creates disappearance of impropriety wh in that room thought that what was going on was normal because it wasn't all we want is a level playing field as defense counsel we know we have a difficult job whether under the criminal justice act or pro being paid all we want is equal treatment by the court and that's all we're asking for this court just like a motion i had to come in at the end of ocean the french judge nor go up and defend the federal defender who was alleged to have been treated improperly including by judge normal asking for u s marshals to come into the courtroom i had to go into that environment as a new attorney and you can see from the transcript their treatment that i received so it's a reason me to suggest to this court that it was retaliatory but whether it's retired top doesn't matter it's whether the treatment of me created the air of impropriety or there was a fight us clearly the government's the court's conduct he's in prison in wisconsin wisconsin yes thank you what one institution i'm sorry what type of facility is he had a low level facility judge a low level facility but he's a sixty seven year old gentleman with absolutely no criminal history who is serving an eighty seven month sentence which is three times one of his co defendants and one and a half times his attorney codefendant for those reasons i to send it back to the district court to a different judge to get procedural fairness in this case morning and may please the courts or a shout will be bhattacharjee for the united states the district court's rulings on defendants various motions were correct it's ultimately a sentencing decision was not an abuse of discretion and it did not exhibit unfair bias or prejudice against the party financial institution and he was informed of the government's position regarding clickable loss amount under the guidelines under its plain language rule eleven requires no one and what defendant advocates for is a position that a mistake regarding the a political burden of proof at sentencing standing alone is sufficient to render a plea involuntary notably defendant has cited no authority to support that point and in fact that position is squarely contradicted by this court's cases such as poland which stands for the proposition that a mistake regarding sentencing after standing alone does not render a plea involuntary particularly where as here there was a proper ruhleben colloquy and defend undisputed that though the last production happened approximately before sentencing and its further undisputed the defendant made use of these records st by filing his brady motion and also referring to his saudi arabian incarceration in his written sentencing position that was filed with the district court and so there was disclosure the disclosure was made in time for defendant to make heroes and defendant indeed made use of the materials under this court's standards for brady violations that means there is pressure but what about the classified the classified materials as as the court will note from the government's statement of facts in its briefing were produced a defendant and his prior counsel defen prior counsel had a security clearance and the government made these classified records available to defendant and his prior counsel sometime between march and it's true the defendant's new counsel mr leonard has not had an opportunity to look at those classified materials because he does not have the required security clearance and here with respect to the sentencing contains what the district court did is it ultimately declined to grant the defense an open ended continuance so that his new counsel could apply for and receive a security clearance to review what was in total three documents approximately a page or two with concerning a topic on which the extensive discovery had already been produced which defend district court itself noted defendant had access to the classified materials himself with his prior counsel and so at the time that he made the decision to fire his counsel hire new counsel he knew the classic herds were an issue and yet he chose to hire counsel did not have the necessary clearance the district court put the risk of that on the defendant and the government submitted that was not in the counsel he fired was a was appointed sentence st in a written opinion issued just that just one day before the sentencing for the district court as judge barrett noted already expressed its views regarding the materiality of this evidence the district court already stated that it did not view the topic of saudi arabia  only important to defendants sentencing for conduct criminal conduct that occurred within the new district of illinois that there may be different ways to look at the relative importance of the saudi arabia issue district courts view was an act of discretion and it was not an abuse nd at the sentencing hearing itself it's clear that the district court did consider what if you to be important it defend its family circumstances his age his relative lack of a criminal history and the district court acted upon those what it considered important made it a mitigating factor to impose a sentence of eighty seven months which was at a substantial downward variance from defendant's guidelines range record also also notes there were certain guidelines that hanssen supplied that says this defendant a leader organizer and handsome and a sophisticated means and handsome and all of these things making defendants starting point his guidelines range quite a bit this case is i mean can the government satisfy its brady obligations by producing brady material and say what it's classified here you have a bit doesn't you know good because you can't read it i mean that's one aspect but the other aspect  i can understand why the district court put the risk of changing counts at the last minute on him it was his th request for a continuance he'd really been dragging it out to mean that adds you know a different spin to it but can you address th overlap or i don't know how the classified nature of these materials interacts with brady in terms of disclosure your honor the government's position that it did produce it did disclose even the classified materials to the defendant and his prior counsel it just so happens defendants new counsel is not privy to that same classified information because he does have so it was given to him at the time that he still had the former lawyer boyle at some point between march  the production that was made in november two thousand eight hundred dollars concerns a batch of e mails that were albeit produced a month before sentencing but those are all unclassified documents and in their briefing on the brady issue at dockets number two hundred and ninety eight th five the parties attached those unclassified e mails and arguing over oh ok well then i did have a misunderstanding about the timeline so the security that that classified materials were actually produced months in advance of the sentencing hearing it wasn't that exclusively on the government's november two thousand eight hundred production of unclassified materials and here the district court noted those unclassified materials were produced to the defendant insufficient time for defendant to make use of them and defendant did in fact make use of that he filed the brady motion he mentioned the issue in the sentencing where the classified materials documents of the letters are so so forth or were in the zero type matter and you honor mr leonard pointed to certain e mails that he exchanged with governments counsel that are attached to his motions and i'll refer to those as well because that's what's in the record the classified documents as far as the record reflects were approximately two or three memoranda of approximately one to two pages in life which concerned the same topics that had been already produced to the defendant in the aisles i i have not personally view the classified materials and i cannot comment on what's in them but i can say from from what the girl ever seen i have not your honor and it's because i also don't have to to to realize that the government's counsel before the decor did have the necessary and did to the extent possible in compliance with with rules governing classified discovery previewed to mr leonard what was in the classified materials without breaching the confidentiality of those that's correct that that is what defendant was seeking or can do it's for it's so his new counsel could view three memoranda that his prior counsel had already seen with defendant present so the defendant himself had reviewed that in denying defendants member continuance the fact the defendant himself had access to the classified materials alerted him to the fact that classified materials were an issue in this case and so when he made his new choice of counsel the district court put on the defendant the burden of making sure he had an attorney who had there were necessary security clearance so that there wouldn't be further delays from the need to clear a new attorney a process that could have taken two months or six months or a year we really just don't know based on  fact act in in the defendant's favor on certain substantive issues that your court sustained defendant's objection to the application of a certain guidelines and handsome and the district court imposed a sentence of eighty seven months which was a substantial downward variance from defendant's guidelines range and one thing that mr leonard hasn't addressed is the procedural default the district court concluded the defendant's recusal motion under section section one hundred and forty four was procedurally deep defaulted because they prepared describing the things that occurred prepare particular for this litigation i i'm not sure i have the basis to answer that because i don't know what just briefly with respect to the rule eleven issue the question under rule eleven by its own terms is whether we presented it fair and just reason for drawing the plea we did respond ineffective assistance of counsel with respect to the important question of classified information is i'd like to direct the court's attention to its document i believe three hundred and nine and these eleven pages of e mails attachments that shows that the usa in this case could not commit to me that they had produced all the classified materials to mr barr's former counsel or to mr barch so that's important because there is still an ungenerous or question as to whether all the even the classified already knows they just you know that you say that the government was involved in his detention in saudi arabia i mean do you think that that argument is going to change if you get more of the same is it just a better three thousand five hundred and fifty three argument you want to make that i don't know a little bit more of the same i don't know what i'll get his office or that it matters but we don't know the answer the question with respect to your question about the sentencing twenty four months and sixty three months the attorney who was intimately involved in every transaction got sixty three months the recruiter who we argued had much more of a substantial relationship in mr market twenty four months and finally with this question of of certification i filed an affidavit under oath detailing why i had a basis for  questioned it at that time but when the judge issues opinion he said you need a separate document called certificate of good faith when i put an affidavit together under oath the testing to the facts i believe i'm certifying that i have a good