good morning i may please the court and the political muscle i'm attorney chris donovan i represent mr graef on this appeal this court has recognized several fair and just reasons that allow defense to withdraw guilty plea before sentencing and has gone as far as to describe the standard as liberal one fair and just reason is when a defendant can establish ineffective assistance of counsel but there's other avenues to establishing a fair and just reason beyond ineffective assistance of counsel the facts of this case not fitting the early into ineffective assistance standard should establish a fair and just reason ultimately the error that we contend occurred here is that the district court abused its discretion i not recognizing that a fair and just reason was not confined only to ineffective assistance claims i believe the of discretion while a trial court is revealed based on to its findings in the written order which is in our appendix first to characterize the core of our motion as being that mr graef first lawyer failed to demand the government disclose the confidential informant in his case but this was not the core of our motion the core of the motion is that his lawyer did not discuss that with them and he later learned of the possibility of america reus motion to demand that the cia be disclose involved in other cases and if the government made the choice when i couldn't disclose then the court could have dismissed but even if the court would have scored i'm sorry even if the government said ok well disclose will tell you who it is that would have led to further investigation the we could have  right and to richard even even more fundamentally normally in these in these cases where that where the defendant was to know who is the c i the defendant doesn't know who the c i is and that's why he's asking but in this case the defendant as i understand what happened here the defendant met with the c i twice talked to him numerous times so maybe didn't know the man's real name or you know the certainly didn't know that he was in fact cooperating the government but this it wasn't a mystery who is it that gave information you know who he met with me doesn't know his reach your identity as we can't do any investigation on what he knows what was said he mostly says so if the person said something to him that met the standards for an entrapment defense he had perfect knowledge he  record what does that have to do with anything it goes to credibility goes to bias if this would have gone to trial if you had decided to proceed to trial i mean really basically trolled by over counterfeit money i'm sorry these were controlled by counterfeit yes mctiernan standard as i read that that seems to conflict with some of our cases saying that the defendant is not entitled to withdraw simply because he were ins of weaknesses in the government's ability to prove its case such as key witnesses headed to argentina or had a sudden case of amnesia like why should we since those claims really have nothing to do with factual or legal innocence none of this frankly seems to me to smack of gamesmanship why should we roll the rules cases i don't think it conflicts with those cases this is really to me kind of analogies to a rule thirty three try this hypothetical the film director commits a crime pleads guilty and before sentencing departs for  switzerland and doesn't return to the united states for more than thirty years if he were to return would he be able to make the kind of argument you're making my lawyer didn't tell me that i could have identified the donor could have asked for the identification of the anonymous complainant and i would therefore like to withdraw my guilty plea from thirty years ago i think the further we get from the guilty plea perhaps that becomes problematic here we don't have that link the time but if it was similar god many months here right and that's a situ the that's a situation in which  a government prosecutor prosecution case can erode and as memories fade as witnesses get harder to contact or leave the jurisdiction right right we do have a delay of many months but it's not a huge delay after he was made aware of of the potential motion so it's a gap from his original plea but not from when he was made aware of the are basically so the hypothetical you give i think is problematic because we're talking you know like i guess if he comes back to the jurisdiction in subjects and stuff to the authority of the court in and that's when he gets a new lawyer and that lawyer said hey by the way you know maybe there's a way to challenge this case i think perhaps then it is similar to the facts of our case and it should be allowed  it could be it could be favorable to him again we don't know because what is the point of a guilty plea i mean if you can offer to flee the jurisdiction or at least refuse to show up for sentencing and then say i'd like to start all over i mean again this is where the reasonable standard person standard comes in it's not just any motion he later learned so that he can half way articulate a basis for this has to be something that a reasonable objective person in his position would have wanted to know and had he known would not have pled guilty and i think the other party mctiernan that we point out in the reply brief is that he would have to show that he didn't in fact know about this motion ahead of time and mentions that the the issue came up organically i think it's worth noting that mr graef did flee the flee bond after is his plea hearing while awaiting sentencing sentencing hearing had to had to be removed from the calendar because he was at large was later arrested to commit several other felonies was he then later brought in after the pre sentence report i had been disclosed showing that he wasn't going to receive the benefits of the plea agreement clued in exceptions are sponsibility at that point he did file his motion for so he's making are not necessarily new or unique it's i find it difficult to distinguish from an ineffective assistance of counsel claim because essentially basing this on i got bad advice from my attorney or my have tourney didn't give me certain advice before i made the decision to plead guilty in this court has said that under those circumstances the stricken standard applies if someone is able to show that counsel is incredibly deficient or those prejudiced they might have a valid basis f but that's not the case here here is asking for a new standard that i mention a brief that not only would that standard i believe be workable here again we do have a point of finality and cleargreen it's important to our s right to hold mr graef to some type of showing that what he was seeking by the device that he wanted to have before he made a guilty plea was going to have some realistic impact on the outcome of this case but again that doesn't address that mr graef learned about the roe v r motion afterwards so nothing that he said necessarily contradicted or show that he was committing perjury at the original colloquy well something it's pal calquing he was asked you understand the you're the right to call witnesses in your own defense you have the right you have the right to cross examine the witnesses called by the government so had he been genuinely curious what does the cia know about me what does he have to say he could he knew that he was entitled to go to trial and get information i don't know that he knew he was entitled can find out the witnesses identity since they have been disclosed up until that point being told you can cross examine witnesses you know he might be thinking oh i can cross examine who's actually called but we don't know who this is and if they will be called and without knowing the name and knowing that it's on a witness list i don't think that that necessarily you know covers his knowledge in that regard so again we believe the abuse of discretion is that judge randy here did not even acknowledge mctiernan didn't