before hold on let me ask you about what interests me most in the case where the judge made a mistake at the judge told them the wrong max right and told them twenty years when it was actually it should have been thirty ad but then the judge gave him the benefit of the judge's mistake and only sentenced him to twenty years when his guideline sentence and to judge by the judge's remarks the judge a fifty seven year old man when he pled guilty been apprised of the potential that he faced a maximum exposure of thirty five years that would potentially release him when he was close to one hundred years old at fifty seven and fifty seven i think i think a lot of us at around that age would think twenty thirty five what's the difference well i'm not sure about that i'm seventy four and so i can understand that thinking of but certainly when  hears that and looking at a sentence of thirty five years as a potential exposure had he known that the choices that he made with regard to pleading guilty might have been different because he certainly think that he was going to get twenty i think i do you know was you know it was possible that he could get twenty possible but the reality was that there was an accord in my view that occurred at the time that mr electroplate guilty basically the accord was was offered by his lawyer it was agreed to by the prosecutor it was agreed to by the jerk and that he is that there was going to be an accounting we have to remember i think that this was the probably at least two or three years the there were a number of legitimate investments which the records disclosed so it looks to me at least he knows he can get twenty he's hoping to get three or four the judge made a mistake he should have told them thirty five is your max he sort of thought he's going to get three or four what's the difference well and you  why didn't he just get the benefit of of a mistake in his favor well he may have thought that he would get three or four but certainly when he made the choice of entering into a plea of guilty you have to take into consideration the potential of what they have to make complete exposure is why doesn't a cut the other way if his complete exposure had really been thirty five years maybe he wouldn't have taken a chance on it because  it it's like newsmax really turned into twenty and that is because the judge apparently dealt with the notion of twenty as an agreed upon figure that there had been a court among the pardons that that's what he was going to get and that wasn't the situation i can see where he might have thought he'd get three or four but frankly it just seems like a silly expectation i mean a lot of people have volunteered to do four years in prison to get one hundred million dollars join hundred million dollars the evidence does not suggest that the difficulty is that there was always apparently the incorrect perception that the hundred million dollars or the figure that was bandied about was the actual last figure when in reality it wasn't because as i indicated there were a number of years in which there were legitimate traders not every investor not every investment constitutes a ponzi l constitutes a fraud loss and he was he in my view was entitled to be able to present to the court by looking at the records and seeing what will it gentleman investments that were properly invested for investors well you know he wasn't able to do that but he didn't get it didn't we didn't do it i mean that's just that's his problem he he was no one stopped him from doing well it got stopped in the sense that the that the documents from computers had some of the information but the computers and i think that was the argument of the prosecution the computers did not have all of the information what was needed to be done was that the files would have to be gone through to find out what were the legitimate investments made by the companies made by the like ners and what were not was there any evidence that like never ever asked to see any of those files either whether either when they were in the prosecutor's possession or the receivers possession and was denied the opportunity to look at him he was at the detention hearing prior to the time of the player there was an indication b to timbuktu they were just sent to at the receiver's accountant sent right in which they were sent to the receivers accountant and the chain got there by broke the chain of custody and under a believe it was the edwards case that we cited that makes the could still look at them right or you can look at whatever is there so there was nothing to stop them from looking at them when they were in the in the accountants office there was a stipulation that permitted that to be done for whatever reason matters it seems to me like i would know his own business he could guide us accountant as accountant could go through the documents whether they were at the prosecutor's office or the accountants office and come up with a report to the court saying here's what the real investments are here's what the net losses are after you look at the real investments and the real gains in the real payoffs to investors and that is just not going to stop and is if the government wants to say well the documents are unreliable through our own fault of passing them around and read boxing them and then the judge can decide whether to discount light but in other words the defense be given the opportunity to look at these documents to make whatever analysis they could and there were for example sixty five boxes missing from those numbers we don't know if any documents are missing though it may just be that they were reeboks but we don't like them or looked at him and said gee there's a missing three years here that's different but he never looked like there was in custody so there wasn't a whole lot while it would have been like there personally i but it can be like there's a lawyer his accountant or whatever apparently the premise of trial counsel at that point was that once they left officials custody the contamination was sufficient that they were no longer trustworthy and that may be a valid point that certainly is one of the premises that we are relying upon and that is that essentially the loss of physical custody deprive the potential  reasonable investigation and i think the court should have directed the hearing on that issue including the whole question of whether or not these documents were admissible in evidence for any circumstances once the chain of c but getting back to the original state of mind issue it does appear we're talking sentencing and as i remember what it will ten eleven had says the rules of evidence don't even apply in sentencing i just don't see what barrier there would have been to an accountant's report or an accountant's report that there were gaps because some records had apparently been lost that i just don't see any problems indication was that there would be an opportunity at that point to do a count there was never any warning according to the record there was never any warning by the assistant u s attorney that relates to sentencing and relates to whether the defendant excuse me the government breached it's clear could you comment just a little bit on the argument but the last calculation is wrong because for a number of years it was a legitimate business genuinely investing its investors money yes your honor if you look at the criminal complaint affidavit in particular excerpt of record number i believe it's thirty three that makes clear that the government's theory in this case was never that there was no legitimate foreign currency trading being done with the with the money that was being attained by the defendant from the victims in this case that page makes clear that as much as twenty percent of the funds that were being taken from the victims was used for foreign currency trading and the significance of that your honor and i assume the reason for your question is that the fact that the defendant maintained during this case in the sentencing especially that these boxes that were allegedly missing what have shown legitimate percy trading the response is really not to be to cloak well but it's so what the governments there was never that all of the trading was improper the government conceded at the very early stages of the case that some of the money was being used for forensic foreign currency trading and so the fact that these allegedly missing boxes would have shown that to be the case the government's really at a loss investors he thinks and they think that he's a genius that currency trading and they're all going to get as rich as george soros did by currency trading as it turns out he invests the whole hundred thirty million dollars and it turns out he's either not as smart or not as lucky as soros and they lose every penny of it it's not a fraud he doesn't go to jail everything's fine i have the the government's theory as i understood it he takes the money and instead of trading currency he just lives high on the hog that is the government's theory but the government also conceded from the very beginning that some of the money was actually used for foreign currency trading that may have been legitimate but i guess that is how much well as much as twenty percent but in the government's mind that didn't make it any less of a fraud because certainly the victims didn't think that eighty percent of their money was going to be used to buy cars i don't know the victims think they should have gotten as rich as george soros what i want to know is was there when accounting the chose whether he was just like most people that run big currency trading operations driving around in rolls royces and flying in private jets or as a part of the overhead of that sort of business or was he a crook was he just taking the money instead of investing it how do we tell without some kind of accounting  sixty four boxes and five plastic bins it's unclear to what extent if any that he then examine those documents i would note also that mr lychner asked at a certain point during this time period to be transferred to the metropolitan detention center in los angeles in order that he could review documents and be more accessible and closer to the documents this is the government's theory basically that eighty percent overhead it's really not a legitimate business yes your honor and i would just note that a sentencing even as late as the sentencing after all these discoveries she said come on the defendant stated during his allocution that he was guilty he stated that and he said the only thing that i still have some disagreements about your honor is with respect to the last calculation you tell me about the state of the discovery stipulation what was the discovery stipulation your honor i came after at the motion to withdraw the plea there was a discussion at the end of that hearing about remaining discovery issues just alluded to the accounting yes trauner labeling what was the stipulation and the stipulation was essentially that i think government would make available to the defense  court asked the defense counsel repeatedly well what's your offer of priest counseling if you don't agree with the government if you are now going back on what used to pilate if you had a change of police colloquy and if you disagree with the probation officer well what do you think the last amount in this case the defense counsel said your honor i can't answer that question i can't give you any i asked him i can't tell you if that accounting that i have to honor would do would bring the loss from ninety seven million dollars i think reasonably responded by saying well in light of the stipulation by your client in my the probation officers p s r in light of what the government has told me i'm not sure what choice i have except to assign lost in the amount of fifty million t total maximum penalty was twenty years when in fact it was thirty five years but the fact remains there is no prejudice and if i could just briefly explain why that cell under the case law the seminal case by this court is the davis case it's a recent case by judge pryor in the northern district california and what davis says and it's very clear is that you don't have to show this same level of prejudice that you would in the involuntary ms context and i wish you don't have to show a reasonable probability that the person wouldn't have pled guilty but you still have to show some prejudice you still have to show that it plausibly would motivate a reasonable person to plead not guilty and the problem here is that the defendant o twenty years i grabbed it you know to save my life then i suppose you could come back and say you know i took that deal because i thought i was facing the death penalty but the converse is what you're saying he was not prejudiced because he got th thirty five there'd be no question that would that wouldn't hold up i completely agree with that and then in my hypothetical the judge grossly overstates what the maximum is we could assume the maybe the defendant play guilty with  with the understanding of he would only get twenty years when he wasn't even facing as much as he thought that's right and they were in a situation we have he was advised in such a way that he got what he would he thought he was going to get even though the the information he was given was wrong i understand your question right it could matter and i'm thinking let's say the judge tells you the judge tells you your lawyer tells you when the prosecutor tells you your case seems to be just run of the mill routine  case nothing extraordinarily bad are extraordinarily good about it as this particular type of case goes you're told the max is twenty so if you're thinking i'm looking at less than the max because it's just straight down the middle  is twenty on bank robbery say but they usually get somewhere between four and ten i think that's and then you find out the max is forty so the run of the mill straight down the middle sentence is twenty right if this were a case where the guidelines actually came out to less than the statute trying maximum i think that what you're saying might describe the situation where it could matter in this case th stipulation that i think the court mentioned the stipulation was regarding the access by the parties that is particularly the fender of records in the hands of the bankruptcy trust and we just simply and you tell you what some my mind about this so you can address that i just don't care about that transfer i don't see that it matters i don't i don't understand why chain of custody matters because the rules of evidence don't apply it all seems to me like something the can't affect anything here at the reason is like mary admits that he committed the fraud he admits that he did these and that he comingled assets that some investor money was used to pay him that he couldn't guarantee profits as he pretended anywhere would return the investors funds  and the scheme generated gross proceeds of one hundred thirty million dollars and he agrees that the loss is more than one hundred million dollars so it looks like he's kind of boxed in there and and as far as the records go there's nothing to stop them from having this accountant look what bothers me is if there's any remedy here it looks like it's maybe an ineffective assistance on federal hadiths because the fact that there's overhead charge to the investors doesn't make it a fraud the fact that profits are karen teed while the pending on how firm is representation  maybe it does maybe it doesn't and that gross proceeds from the investors of over one hundred million and even losing the money doesn't make it a fraud so when i feel like it is i have unanswered questions i have concerns about whether likenesses guilty as as as all that only he admitted at all and there's nothing to be done in this case and he had full access to the records so it looks like there's just nothing to be done here well i think  that was to occur i think his lawyer at that point said we are in the process of undergoing and doing an accounting and so it was a state of mind apparently agreed to by the prosecutor and by the court that that was something that was going on in  process that he knows that is like and it was his own business and i think to the extent that he made the admission that he was guilty of fraud that's one thing but to make an admission of the figures that would put him in jail for the rest of his life minute he stole five million dollars doesn't five million dollars i mean there's a very key to what is in these plea agreements and he had the right i suppose to come back and try to offer additional level and he said he was going to try to do that and the judge said if you can come up with additional evidence fine i'll hear it but he never he never did and so we're stuck as you notice klinefelter's with a is admission that he stole the money and b that there were it was over a hundred thirty five million dollars in two or three hundred investors but i do think that that and