determines the defendant poses a risk of flight the bill reform act ask only one question and that is are there any conditions that could be set that would reasonably assure the defendant presents after the initial appeal in this case this court gave the authority to go back to the district court to propose conditions that have been discussed in the circuit here and present them to the district court with specific instructions that the district court was to follow the law as set out by this court's precedent in some money which required the court to hold the government to its burden of proving that there were no conditions no conditions whatsoever that could be set that would reasonably assure the defendants presents the dish it didn't go quite that far and i mean we can all imagine things that were reasonably assured somebody else somebod what's our standard of review here i mean we're this is a fact finding right and no your honor and i think that's a point where the government's brief some point it's a fact finding i think there's a fraction of i say if i'm the trial judge and i say i'm listening to all the us based on that's the evidence isn't it good points and i'm concerned that if i say you are free on bond and you can be  review as described in the government's brief is just wrong this court's decisions if you lead to the entirety of what he said he both of the decisions that the government sites in this proof were brief word suggests the clear is the review they both say that once you get past the pure factual findings you get to the question of law that is at the heart of our determination it's essentially de novo review this is a question of whether or not looking at the facts and there's not a huge disagreement here about  facts the question is looking at those facts whether as a matter of law it can be determined that the government has met its burden of showing that there are no conditions that could reasonably assured that if it's friends now your honor you make a good point in terms of being tied to a tree or something like that i think that's where the the statute importantly provides for a reasonably assured and right here as was much of the discussion in the nd circuit when we came here last time it has to be the case that private security is a reasonable solution for two reasons one it's utilized over and over and over again in the circuit including on many occasions where the government has consented to the use i mean in the fee for cases every defendant was release even though they were they were foreigners who substantial ties overseas in substantial resources but they were all released several of them with private security solutions and it has literally never fail so we're not talking about the situation where something is being proposed that's at the far extreme like tying someone to a stunt we're talking about right within the heartland of not only what happens regularly in this court but also what the bill reform act specifically provides for me in the very st condition that is enumerated as a condition that a court should consider under the bill reform act is released to a rd party who answerable to the court and that's exactly what we're talking about here when we talk about this condition misdirection this is the body of law which is road to renewed this business of permitting people to handle their own security on the basis of their private means i was on the panel that st adopted this arrangement and is that not the case that this  created a two tier system for bail where people who have the means to to provide for private service of which we know many luminaries  recent past they can somehow get bail and live comfortably while those without under the private guard and yet those with fewer means have to be detained but just as you raise what is i think one of the most important questions in this and i would submit to you that the answer is no this is not creating a system for the exact reasons criminal organization a mafia boss and what this court said is that basically where the defendant's wealth is the primary factor that the government is relying on in order to argue today are such a risk of flight that they can't be released it is fundamentally of unfair and offensive to i think our fundamental notions of how a man presumed innocence should be treated to not allow him to utilize that wealth in order to create a condition that will allow him to adequately defend himself and i would just submit your honor are we we as the court writ large precluded from inferring what seems to me a fairly logical inference that somebody where a one million dollars in the bank has far more ammo to get cuba than somebody where five thousand dollars back not at all your honor and i think why then what's what's the distinction a one million versus five thousand isn't that a wealth factor that sounds if somebody has got a lot of money yeah and has the ability to travel internationally that's something the court needs to be concerned about in order to ensure that person is continuing presence in court proceedings yes your honor you hit it right on the hate that is a critical factor that the court can and should take into account in terms of the st prong of the determination to do the bail reform act whether the defendant is a risk of flight the defendant who has a one million dollars is much more of a risk of flight but the nd prong is what we're focused in on today and that is whether or not there are any conditions that could be set that would reasonably assured that in his presence we're talking about a man who's facing a case with millions of pages of discovery he's going to be able to see his lawyers for no more than a couple of hours a day while he's dealing with the fight of his life we submitted the bill for mack was set up in order to make a situation questions that is the standard here because this is a uniquely factual determination because we're concerned with whether there is a set of conditions that could reasonably assure the defendants appearance the district court not clearly error in finding that no combination of conditions could reasonably assure the appearance of this defendant where the record shows st the defendant faces a great deal of evidence of guilt and if convicted a likely very lengthy prison sentence nd has access to vast financial resources rd has demonstrated expertise in both bribing government officials and high level bank officials and procuring fraudulent legal documents for entry to a foreign jurisdiction and th know what tash meant to the page written decision finding that the defendant was a flight risk by preponderance which i think is on challenge this point and that no set of conditions could reasonably assure his appearance it went up to this court and at that time the nd circuit affirmed and sent it back down and gave the defendant the ability to file or a new bail application but when he did so your honors it became clear that the bail application was even weaker than it st appeared the big difference between the st in the nd bail application is that the defendant now says that he will put up nine million dollars rather than one million dollars to as collateral for his bail however for the st time the government got to see the pretrial services report and in the pretrial services report the defendant frankly admitted that he makes eighty four thousand dollars a year from prison your honor it was written after the judge heard oral argument the st time he referred to it as decision but the government had not seen it however when it got sent back down we did have a chance to review it and he indicated he made eighty four thousand a year and yet he had approximately twelve million in assets and i guess they said eight million dollars apparently was gifted to his father five years ago well as we said out in the indictment and this is paragraph ninety two dollars of our indictment the defendant received approximately fifteen million dollars from this fraud scheme five years ago so we put that in our papers with respect to the amended bail application and that was the focus of  our argument with respect to his amended bail application and the district court in considering this very reasonably found that this was no assurance that the defendant would appear in this i would know that the  time that we argued this case judge ragin raised the issue saying in reading the judge's decision in the proceedings below that and this is at page seventeen  through nineteen of the transcript that is attached as exhibit to the defendant's papers she noted that if i read this correctly whether the monies were traceable to the alleged crime and in that  respect your client might very well rather risk the profits of a crime than his liberty i'm not saying that that's that's this court's finding but i think that's the reasoning of the judge and when it appeared when we appeared before judge with respect to this amended bail package he went specifically to that speaking to the moral suasion those were the government's arguments that this in fact would not keep him here i would also note for your honour's that defense counsel relies on twelve cases that they say have been successful in violence involving private jails however those cases are much different in this case many of them involve the united states conceded that a private jail would be sufficient in the in the circumstances of that case and that is not the case here the other cases involving foreign defendants that were released a private jail are the fee for cases the defendant cites however in all of those cases the government in its estimation of those particular defendants applying the three thousand one hundred and forty two dollars g factors thought that they were capable of release under those circumstances that is not the case here this is not likes of naani and it's not like the cases the government has consistently argued against the defendants released because of the extreme flight risk the remaining case which the defendant points to is the  lapsing case from the southern district of new york where the defendant recently released a private jailers over the government's objection and while that case the defendant did appear for court i would that the record indicates that that defendant who is a sixty seven year old billionaire had many opportunities to flee and that's what the government is concerned with here and has pointed to at the district court level and what it would raise to your honor the southern district noted that report to court it points to the opportunities to flee and while the sixty seven year old and lab saying didn't flee this underscores exactly how bustani he was only forty year old forty years old could flee at any time he was out of his guarded apartment would be an opportunity for flight any time he's at his attorney's law offices that obviously are not set up the way the m d c or the m c c as they're not designed for prisoners to be there would be an opportunity to flee and he prison vest by private plane or by private boat because he has access to the vast financial resources including the fifteen million from this fraud scheme that he's received but also to the resources of review of discovering the massive amount of discovery that's going to be involved in this case does the government have a mechanism for making arrangements that essentially enable that in some way that's fair to the and i'm not questioning your bona fides but sometimes i know from experience it's tough to your presence to do certain things and have there is certainly your honor i don't know that standing here today what their president abilities i know that there is you know access to both the attorney meeting room and also to lap or computers while at the n b c but i would note that the government would stand  willing to do whatever we could to seek to cilla tape his review of discovery in the case i would note also that the government met with the defense attorneys at the very outset of the case and gave a high level overview of the evidence and has produced virtually all of the discovery already so hopefully to aid the defendant to prepare for trial your honors for all of the reasons that v government has  set out the government's admits that the district court's decision was not clear error it was not fair at all and should be affirmed because the government as shown by her upon or insee evidence that the defendant is a flight risk and that no set of conditions would reasonably assure his appearance here is the jackson you have two minutes figure on a tear last question your honor the answer to that question is no there is no way to recreate what mr mousavi would be able to do in terms of defending himself in this case if he is on bail in the empty seat right now he situated far away in brooklyn the the this case involves allegations that involve europe the middle east africa we plan to be meeting with witnesses who are potentially overseas if mr mousavi is on bail he can participate in some of those discussions with potential experts potential witnesses through video conference he can't do any of that in jail there's a very serious limit on the amount of discovery we can't bring millions of pages into the jail and so our ability to work with mr mousavi is severely limited now i just want to underscore the notion that  in a brief that was alternately rejected by the district court in that case the district court said no when the government repeatedly attempted to put mr singh in all that happens he stopped to get some chinese food on one day back from the court he reported as he was required as every single defendant who's been released under conditions with private security has been has been released has reported there is never been a single failure and i would just underscore honor also this notion that  mr bustamante received fifteen million from the fraud scheme is his faults mr mousavi never hid from pretrial services i was there for the interview he described his regular salary as being eighty four thousand dollars and emitted that he had gotten bonuses because of the nature of his position those bonuses were millions of dollars he never hid his assets he described them openly to prove we describe them in the in the district court and it's it's been clear from the beginning that mr bustani is like any employee