united states versus class mr schneider and our position is the government breached the plea agreement for several reasons first that the government knew from the onset of the prosecution the critic and it's an unusual set of circumstances because mr kaufman became an informant worked for two and a half years and then was  believed that he was shot by a used i'm pleased officer who was the target of an investigation who threatened his life and after he was life was threatened the f b i did nothing to protect the supply notify mr clark that they were contacting marcus carry on and did nothing to protect him once they did contact carry on and they walk free and then he was shot munity because of his understanding that he kept working in the government never said but i guess the problem to me is there's a lot of side issues to the case but for me anyway i can't speak for the other two judges but for me it boils down to whether he lied here during the original sentencing proceeding and it wasn't just that he said his understanding also said that the usa was the one who told him this and that was what i think the district judge found crossed the line and so the question to me in my head is it's clear to me that lying to the court during sentencing can result in losing acceptance of responsibility however whether he lie is this witness failing to be calling me to me that's a fairly significant thing to preclude the very guy that he had the conversation with from testifying that you didn't raise out on appeal so  involved and the government disagreed with the six hundred fifteen kilos and so the question of accept isn't so he's trying to apologize and and accept responsibility i said in january how he merely became an informant how we surrendered his truck his money drugs to the government and then start working on a number of cases that was passed from group to group of different agents we work in the works several different investigations and so he started to explain what happened then and he said after i was shot it was my understanding that i would be free or something to that effect and just didn't start questioning him about what was being said what he meant by that but he never with through the plea he was trying to explain what happened and how he came to be where he was and and and then he was cut off and i think the point in this and i agree i think he was cut off too much but that isn't really the question i think the problem is that it is inconsistent to say i thought i was never going to be prosecuted and yet to plead guilty which by definition means you were prosecuted i think that's the point that we had to pass if you look at the record we filed a motion to dismiss on march fourteenth the government biologist response on march fifteenth the court denied the motion the then we had were he was no rock the hard place we could go to trial not with all the evidence of the tapes and everything against him he had to plead guilty because he was guilty but he had he was accepting responsibility for what he did and then he spent two and a half years at the beck and call of the government agent lily said he met with them to fifty times and he again he did get a five k one right the difference between the sons of nine years and what the government in the five k of forty six to fifty seven months a level twenty but he got that he did get that he got a five  stated he could stay out of jail as long as he was cooperate with the government and after he was shot no one said anything to him he recuperate from being shot three times the bullet was still in the chest of the timing of  plea and he no one said a thing until he really felt i tend to agree with you that i think he's been treated unfairly and that isn't our question and you know we just have to decide if the government breached the as a matter of law in essence because if there's any fact finding sear we have to defer to the district court the credibility of mr cluff the credibility the agent the credibility of just this at the to tally circumstances the judge was sitting there when he made his comments when it were so that's not just his understanding that as long as he cooperates nobody's going to prosecute him it's he i'm being told by mr imperato he would get nothing and that was the deal so isn't that arguably lie and that we would have to defer to the district court he didn't try to relate or on the same page you can only get when somebody is trying to keep talking trying to explain what he meant and everything stopped i tried to may of two thousand and fifty the sensing this is his first sensing hearing on the summer first that his discussion with the government that he would not be prosecuted as long as he was rated for or after he pled that was on january sixth two thousand and twelve two and a half years before the plea so after he pled under oath implied that he was guilty and had been informed at the time of the pulley that he was going to looking at this type of a sente the motion for new trial here and use a little different i mean it's to me it's completely improper to have kept history brought her from testify understand a sing about it to give notice and all that kind of thing but here he is directly a fact witness is not simply trying to mess with the u s attorney's office he's a direct fact witness he was allowed to just make these statements at the sentencing hearing and then he was that there was never any right across examination of the mr klaas attorneys so that's a concern i have but the other concern i have  statements or a little bit inconsistent with agent little is actual testimony which is more consistent with what mr club is saying is that as long as i cooperate i'm going to be out i'm not going to go to jail and then he thought once he was shot basically in the line of duty as a c e o i bet that was that and that is skin system with what enjoy it lily saying what's inconsistent is a promise by mr imperato that he's never going to be charged and that's did was taken and it was fun it was taken into account by the prosecutor and by the court the prosecutor had to argue with the court about going from the high end of the guys i mean just all the way down to forty six months in terms of the recommendations so all of this was taken into consideration by the prosecutor by the government of mister bean a while later why as part of this entire process ok i want to go back to agent willy i mean it are two forty three he's asked and mr said if he kept going meaning kept cooperating he could stay free did he answer he could stay out of jail as long as he was cooperating with the government that's pretty close to what cluster and fairly different from what mr imperato said as an off court i understand of the court but not under a and so it would seem an important thing to cross examine him on at this motion for a new trial because even though i agree he got a five k one and i think that's important that he did none the less it is a big shift to go from acceptance of responsibility which decreases your office level two x no accept responsibility plus obstruction of justice that's a big shift and so basically negates a good bit of the value he got from person i won't go to jail then i feel like well i'll just keep being a good person and that's kind of forever so the same with the cooperation he was going to keep cooperate keep our bring keep mari then he was shot and he thought you know i was shot in the line of duty in essence i was shot by someone who was the subject of an investigation and and so i think mr klaas belief was probably had some validity the thing i'm struggling with in this case is that this seems  fact found but i'm just what i'm really surprised about is that the district judge seemed to be kind of going whoa wait a minute this hearing is getting out of control let's let everybody cool off let's let everybody think about it let's have you know mr clarke have time to talk to his lawyer let's have time for the day you say seems angry even in the transcript to cool down and we'll just reconvene the hearing but by the time of the reconvening the hearing this is already set in stone so it looks like the hearing was to be reconvene to allow mr clark to kind of reassess what he's saying but by that point he's already being sort of tagged with what he said at the december one hearing so how do you explain that a few things one of the view was between the parties the judges are found by seen the motion for a new trial period he was there all of these acts that occurred that are the basis for the alleged breach occurred before and so he was in the prime condition to determine all of this and this is a narrow question of its will because he was trying to get a man making amends for what he did i mean to me the hard thing is it looks like the district judge at the first sensing is interrupting him kind of like saying you don't want to be saying anything right now because you want to i guess have time to talk your lawyer were ever so kind of resetting it to larry very cool off with by the next the continuation everything's kind of already done i mean all and stand so it's like he didn't get a chance to explain at the original hearing he doesn't really even by the time of the second hearing it's kind of already race you caught if you will that he's alive so but all of that while i understand the kind of i don't know physics of it i don't know that that changes the state still got back windings by a district judge that the district judge entitle to make and even though i might have handled it differently the other two might have handled it differently that in the question we the government just this case is a case for dealing with justice in the pursuit of justice it's where a individual put his life on the line and trying to make amends and nderstand and contain them to be once once he was once he was shot he was no longer i suppose operating as an informant so what at that point should have been done in regard to the prosecution in sentencing if you have your to guideline range of the supreme forty six it's fifty seven months between four and five years in prison and he's gone off the service for five years especially that's contrary to any concept that he would always be free  put one of the most was designed and we agreed to plead guilty we waive the right to that issue and we read that when we entered our plea and we had no expectation that he was going to prison we we are in for probably for probation time served thirty five to thirty three and that because of the work he did because of the extensive investigations that he put that he worked on because of his be shot that he deserved a lesser sentence