standard of review we believe that's relevant today is essentially did novo review the court reviews factual findings for clear error but the court reviews in a bill determination like this where there are mixed questions of fact and law and ultimately as we assert as i was saying if determines that a defendant poses a risk of flight the bail reform act poses only one question and that is are there any conditions that can be set that would reasonably assure a defend its presence in court and hear the district court air blow because it failed to hold the government to its burden and it never arrived at any coherent explanation of why the conditions that were suggested by the defendant in this case would be e you don't have either of those circumstances here your honor i think that the case is not distinguishable on the most important ways which is the government did alternately agree to the use of the condition but in a post in the district court and when the court when the government came before your honor in oral argument the court press the government to do exactly what the district court did not do in this case which is explain exactly why the conditions that have been proposed by the defendant including strict monitoring was sufficient in light of the government's concession that it was that's quite different from this case isn't it your honor i would appoint roots in the communities panis had they had means and wherewithal to flee there were concerns there but they did have roots in the community your client has none but your honor we believe that that can go appropriately to the question of risk of flight and if and it well that's one of the issues and i agree  once you get past risk of flight the question that really is at the center of our appeal is are there any conditions for a man presumed innocent a man presumed innocent in this case to get past the risk of flight what do you mean isn't the concern is are these conditions sufficient to assuage the risk of flight isn't that what we're really we talking about here i don't i would respectfully say that it's slightly different from that i think that the first question is is has the government  the demonstrating that the defendant is a risk of flight and you don't think they've met that we don't need to argue that for today we don't think that they have a you except that he's a risk for the purposes today we've asked the coach to focus more on the second problem we don't think he's a risk flight but we asked of course to focus on the second problem and once you get there the only question is are there any conditions any conditions that can be set that would reasonably assured the defendant's presence and what the court said in some money is that  the conditions that your honor described as extraordinary would guarantee the defendant's presence would reasonably assured to defend his presence even in a situation where the defendants had substantial overseas to substantial wealth and in that case they were accused of a mister on the other hand is accused of no violence his family is here is wife has traveled here to support him during the time of the trial and what the government's attempting to do is ask him to be detained for perhaps a period of years we don't even have a trial date separated from his wife and his five year old son for a man presumed innocent while there has not been a determination yet of his guilt and what the bail reform act we submit provides is if there are any conditions that can be set the reasonably sure his presence bail should be set these conditions if you want to propose a different set of conditions to the judge you're always free to do that so the question is whether the judge abused his discretion in not releasing him on these conditions isn't it i respectfully disagree your honor i think it's slightly different the question is did the court did the district court fulfill its duty to hold the government to its burden by determining whether there were any conditions that could be said and what the district court did in this case as it said ok your proposal is insufficient the one million dollars insufficient the and and i have questions about the potential conflicts of interest of the security firm that's not enough under the bill reform act only has to do go back and propose a greater amount some i mean the judge consist decision is dated february fourth and a month has passed in that time in the last government as well but it struck me that some of extradition and other factors that he considered did you go back to the district judge on that your honor we didn't go immediately back to the should judge what we did was in addition we suggested to the judge that we were willing to accept extraordinary conditions and we we were prepared to accept additional conditions but what the judge did was he made his decision before we had an opportunity to discuss any additional conditions of the court would find appropriate to ask to be put on the judge's calendar and and say we have bail package to consider to propose that happens all the time you know that absolutely your honor you're absolutely correct however it was the burden of the government we would suggest in this case to identify the additional conditions that would be necessary in the district court if it felt that additional conditions were necessary to assure the defendants presidents should have identified those conditions without making a determination that was the opportunity to engage with the party from following that because a diff a district court might very well say you know two million dollars bond would satisfy me if it's the defendant's money that's a different question from whether it's his mother in law's money his business is money and all that and so you're asking the district judge to engage in hypotheticals about what would or wouldn't be excepted i mean usually how i've seen this is the parties come to the judge with the package and the government says it doesn't think that that's satisfactory for whatever reasons and the defense argues why it would be sufficient and the judge rules on the map package you're not closed from coming forward with another one or even from in ting a suggestion as to what particular concerns the judge has but i don't see how we're supposed to conclude here that there is we supposed to say there's some package out there that would be sufficient for your client there may well be but the district judge hasn't said no way no how yet your objection i just want to say take your time in answering i think thank you very much of course you ask important questions there but i think that the our experience in the district court has been in many many bill arguments has been that when the court is appropriately discharging its responsibilities under the bill format when it finds that the conditions are not sufficient that have been proposed by the defense what the court says is i don't think that's enough money i'm going to suggest that you increase the amount by another million dollars that you go with a different security firm and that in addition to what you suggested which would be regular pretrial supervision we  bump it up to strictly true pretrial supervision with electronic monitoring now here we already had conditions proposed that this court described as extraordinary in a snow case and i would note that private security has literally in the many times it's been utilized including the many times where the government has consented to its use the district court didn't do that the district court it wasn't for us to go back to the district court after the co ruling and continue with the process of keeping on asking will let's raise the stakes let's move to reconsider and raise them again until we reach a point where the district court gives us an order that says that we've met the conditions that he thinks  sufficient i think this bail package has your client putting up nothing that's that the assets are all being put up by his company no your honor what is he putting up he is putting up he proposed putting up million dollars in cash what we said in our brief in this court is that we would be willing to put up any amount of money that is within the defendant's possession that the government that the government suggested there are literally no conditions that the government could suggest that have been utilized in any other case and we would not be willing to put up anything that might be satisfactory with the judge relatively nothing would be said nothing your honor that's honor he cut it off he said in light of the government's allegations and the lead of the government's allegations and the nature of the finding no conditions would be sufficient what he said was having carefully evaluated defendants  proposal under the circumstances of the case the court is convinced no conditions can reasonably assured the defendant's appearance throughout the pendency of this case that could be construed to mean that that's the he has to make the no conditions finding the conditions that have been proposed to him if those are the conditions they don't they don't issue or the defendant's appearance i mean this seems to me to be how judges deal with failed proposals all the time and judge reggie again i would operation of the retention of a private company to provide surveillance and monitoring the judge identified a conflict of interest concern that the client would be the employer and therefore would have the loyalty of the individuals but i soon pretrial services is heavily involved in actually that the your client wouldn't be paying the company directly can you describe guidepost security that we proposed and we suggested to the government we'd be willing to use any company that the government wanted but the and we put that in our papers before the judge but guideposts is run by former federal high ranking federal law enforcement officers your honor who is one of the most respected people in law enforcement he's the monitor for g m he's the monitor for the recent might you situation the government itself has utilized him and what they would be doing is posting all former law enforcement officials including federal former law enforcement officials to monitor mr bustani twenty four hours a day and they would be answerable to the court they would mate with pretrial service is an answer any concerns pretrial services had now the  affidavit before the district court they would in no way be employed by the defendant they would in no way answer to the defendant and indeed the entire reputation of guidepost which is excellent in this industry is dependent on the idea that the courts can trust shorter express he quotes the government's memorandum for this but he says that the defense had thus far not indicated the source of the one million dollars in cash being posted i think that's where i got the impression that it wasn't your client's money in any event i read this correctly is whether the monies were traceable to the alleged crime and in that respect that your client might very well grab the risk the profits of the crime than his liberty i'm not saying that conditions that were put in place in that case maybe mitigated that concern because they eliminated the realistic possibility that the defendant could flee and in this case there was never any articulation of how mr  primary concerns of the district judge a million dollars with the source unknown it could be traceable to the fraudulent scheme for a person who has tens of millions of dollars is something he might be willing to lose rather than his liberty and then when his security firm is paid by his company which now faces some criminal exposure here and so it's paid for by a possible target of the investigation that that raises concerns and then there is the added concerns that you know how these private companies enforce the bail bond is or the bail conditions is a further concern your client the sign all the waivers he wants there might still be concerns about what they can do as compared to law enforcement officers now if you're arguing to us those are wrong assumptions and this  is sufficient i'd like to hear that argument if your argument is there's another bail bond that would assuage these concerns and we're prepared to meet them my question is why don't you just go to the district court if he rejects honor argument is both argument is that these conditions are sufficient and that if there aren't a million why should we find that it's wrong for a district court to conclude that a million dollars from someone who's got tens of millions of dollars particularly where it's unclear what the source of the money is is not an acceptable is not an acceptable way to assuage the risk of flight why should we why should we find that air because your hon that goes to the risk of flight it does not go to whether the conditions propose would be adequate and i would just i'm sorry but you're totally confusing me the whole point of the conditions is to assuage the risk of flight if they don't do to guidepost the particular company that we've identified in the situation there is no explanation anywhere that suggests that this is a situation where the defendant would be able to evade the conditions are employed here and the concerns that would literally apply to any situation where utilizing private security the theoretical conflict of interest it can't be the case that the district court is saying at large this can never be utilized because it's explicitly to the point said judge reggie made regarding why that case has no application here i would note that that case in addition to involving naturalized in addition i should say involved naturalized u s citizens who had been here for twenty five years ago how long until trial been here judge coons has indicated at the next status conference which is set for march twenty eighth that he will set a trial da fact we've turned over more than two million pages worth of discovery almost i'm i was under the impression that there were some waiting for other possible co defendants to be brought into the united states for there are other co defendants who are subject to extradition proceedings however as we said before the district court judge we are ready to for trial so if the judge says a date yes we'll be ready to try it is it your position that the conflict of interest that the judge identified is  factor arguing against retention of a third party service in all cases where is it exaggerated in this case and why i mean because i want to my understanding that this is been done on several occasions if not numerous occasions and the guidepost has been used by the government and relied on in similar circumstances where the individual who had a risk of flight and face long sentence was allowed to be on bail before trial  is it is the conflict an issue in all cases absolutely private jail is never going to be as good as detention in a government facility however adequacy of it but you forget that there's a conflict but you may be right that it's that it exists in all cases but then watch how is it ever greet to specifically since you all agreed to it in sydney i can't speak for the rest of the panel members but i never would have gone along with that it had the government not said that was that was a satisfactory condition absolutely and your honor in that case that's what the prosecutors and applying the third eighteen u s c thirty one forty two g factors to that particular defendant it was a conflict there right it's the same conflict they're being paid by the people who their guard that's that's correct your own if it didn't if it wasn't a problem in soprani how is it a problem in in this case it is because the judge set out at least six reasons why he found a private jail inappropriate judge coots in the district court and this is at pages centrally fourteen to sixteen of his decision sets out six reasons why he found that was one of them and he said first he said that doesn't speak just one of the reasons was the conflict issue that judge reggie and i are speaking with you about he sets out other reasons some of which just seem to have been outdated this was a month ago he says the amount wasn't enough he says that he distinguishes cases because there had been a discussion a voluntary waiver of extradition he says had a concern about disparate treatment about use of force about the visa fraud  and then the amount is sufficient a lot of these things this is a month ago seems to me that we could have been discuss the topic of discussion between the government and the defendant during this period and one could have if one were acting on a  sense of obligation under the bail for reform act to identify circumstances in which a non convicted person could be released that many of these conditions or concerns could have been addressed but i take it that hasn't happened is that right defense counsel has not presented anything other than in their papers they've now raised some additional arguments they haven't come to the government and said hey here are the conditions that we would ask you to consider so in what you preach from the government's point of view as opposed to judge quinces point if you in what respect are the conditions that have been offered insufficient to reasonably assure his appearance in court the the conditions that have been set forward are insufficient because the defendant is a tremendous flight risk who has actually everyone agrees that he's everyone agrees that he's a flight risk so i'd like to know in what respect particularly are the conditions insufficient to guarantee his appearance the government believes that for exist well first let me say that the government's position has been no set of conditions would reasonably assure short of detention this defendant's appearance in court however in because the defendant has access to vast financial resources is closely tied to countries extradition so if he were to come to you and say i agree to extradition proceedings are analogs no matter where i may be that wouldn't assuage your concern in that respect we would certainly consider any package that the defendant presents to us however the find a foreign country i'm sorry he can say all agreed extradition i want you can't bind a foreign cuts exactly right and in this case as we set out in our papers the defendant is closely tied to the billionaire owner of prison vast his employer who's an unindicted coconspirator in the indictment and that is the person who is going to pay for the virtual private jail solution that he is offering and the government has legitimate concerns about the source of funds where as we as he set out in the indictment he received fifteen million dollars from this two billion dollar fraud scheme in the rest of the funds went to   he's going to be tried without code from that is very possible that the but then then that doesn't make any sense i mean if it happens fine in the your adversary's as of that happens you can revisit it but how can you talk about  when you don't have defendants when there's a defendant your honor in the united states versus esposito the court indicated that in that case you would permit a virtual private jail for a wealthy defendant because there was no of people who aren't before the court and and can be changed if that happens it's a very strange thing seems to me to take into account at this point your honor in addition to those concerns about that was one of several concerns the district court raised and the government had in addition to those concerns regarding the potential for disparate treatment because it exists here unlike those other cases first the cash was from an unverified source and the government has issues regarding again not disparate treatment ok but if you want to go into anything that's fine and so what i what i'm saying to your honor is is that in addition to disparate treatment there were other concerns and those concerns yes that way to understand that which is is here and that is disparate treatment means not just these defendants but the disparate treatment of a very wealthy person as opposed to somebody who isn't so wealthy and that's a problem here too i don't know that that we are are allowed or supposed to you know count but that's a disparate treatment also and that makes some sense in this where the use of it with co defendants is going to exist that's partly i guess chris things are changing that when this all started there was the notion that you were going away for other co defendants and that's not ok but well your honor it depends for example the judge has said he's going to set a trial date it's possible that other co defendants appear here in the next few months very differently fee's going to be and in custody for more than a year we've kept the past time but i want to ask you a question about your case because the strength of the cases of course another factor that was considered here what is the security that was fraudulently offered to united states investors your honor the what the security is the security which was a loan participation note this involves two syndicated loans and in the these were sold to u s investors what's the fraudulent statement material a mission or statement that that was made to these investors the loan agreements for all three of these loans because these a violation of an anti bribery provision that was in all these loan agreements the loan agreements and the materials that were marketed to investors claim that this money would be used to pay for boats and projects in mozambique and the government's indictment sets out and its case will prove that in fact the those prices were grossly inflated the two billion dollars and i understand this i read the indictment but with confusing to me is i thought from the indictment that the money was mozambique by the two identified investment banks who then created securities that were offered to the american public is that not right it is with respect to amazon which is a security and the the lone participation just interested in guess so to u s investors because that's the only basis for your bringing this charge in the united states right well yes and no as we also set out all of these loan agreements required the money be paid from and the to actually to the employer for this defendant mr bustani prison vest so the money went to the bank and then the bank gave it directly to prevent vast which was to not a lengthy indictment here i don't understand what the security is or what the fraudulent statement is so there's pages and pages about what went on in mozambique and you don't tell us what the fraudulent security is i don't think it's satisfied this if this were a civil complaint what the fraud is in the instrument but that i think i've gotten enough to get a sense of of what your case is you're not trying it here after all but with respect to the money moving through u s account how did the money moving through u s accounts contribute to the laundering or the fraud i mean i thought it was coincidental and that under our case law that wouldn't be enough to give you jurisdiction in the united states what are you going to arrest it on your honor among other things first of all these are conspiracy counts and the investors were hundreds of millions of dollars the investments were sold into the united states and those money went through again bank accounts in new york with the transactions that of the investors that involved the money moving among the confederates which you in your indictment highlight went through us bank clearing banks and what's the case that allows  that the fact that that money went through us clearing banks is enough to give you jurisdiction here in the united states the name escapes me but i know that there's the case  where there's a southern district of new york case where the drug dealers our are driving across the gospels bridge and the communication in furtherance of the conspiracy in the over the territorial waters conveyed jurisdiction in the southern district knew i think clearing and that i mean i assume since this is the whole theory of your case that you've got legal support for this being enough to give you a book in the united yes your honor and the wires did pass through the eastern district of new york in going to those correspondent bank accounts and since the wires passed through as part of this and frankly these were all denominated in u let me just ask one one maybe so i just want to make sure i understand is it the government's position that there is no bail package or condition of confinement package the defendant can offer that would provide reasonable assurance that he will appear in court not so there's no point in mr jackson going back to the district court is that your position the government's position is that there is no set of conditions that would reasonably assure his appearance however the government will always consider a bail package perhaps will convince us i'm not saying it's likely but i always look at a bail package rather than one that keeps changing i think they have to present one and i think the one that has been presented certainly is insufficient and the district court did not commit clear error because this was a factual finding in finding it insufficient for serious arguments if that's not the proper way to look at that it's not their burden to show that a particular bail package is adequate though they often do that in cases when they ought proffer to the district court it's yours to show that there is no reasonable path there is no package available now as i understand it neither your position in the district court nor the district court's finding is was well there may be one but it's not this and i'm not going to speculate now as to what that would be i'll consider whatever your present to me that's not what the district court said the district court said and i thought that was the government's position there is no conditions here that would satisfy you so if that's your position we just want to know you know how you justify it and just said you're willing to entertain and bail application that suggests you think there might be one that would satisfy you know we do think the government is does believe that no set of conditions would reasonably assure his appearance however i just meant that we would always consider and you and that is let's say the chances are one in ten pounds that he would flee if you do this if he'd he is the one in ten thousand if he said the other i can't subtract one from ten thousand and with a yugo and your honor that's exactly why the district court in this case this report is in the same position yes yes and why the district court in recognizing this inherent conflict of interest the possibility is shown in lapsing case of there being said but there's just saying showed up mr saying yes he was you know absent chinese restaurant at some point but he showed up he did not he his his appearance was reasonably assured it was however your honor in that case as as we pointed out and as the district court noted the defendant received something in the order of one hundred sixty hours of medical massage and a thirty day period was out of the chinese restaurant at the question his was his presence reasonably assured by the conditions imposed and he showed up the district court found in that case involving that sixty seven year old defendant who did show up that those conditions were sufficient however a defendant in a related case patrick ho was detained by judge forrest so different people will assess circumstances in different ways but we were talking about re assured presence is the standard set by the statute and i have some difficulty understanding why these extraordinary conditions that are outlined here wouldn't do so in ok and so i want to make one final valving a similarly situated defendant found that he should be detained this defendant based upon the reason set by set out by the district court including the access to vast financial resources the demonstrated ability to do procure false entry documents to foreign jurisdictions found that he should be determined to the u a e it was hardly a false u s passport or a document of that magnitude of gravity and three false fraudulent visas to enter case united states versus we're till ya know regarding passage of wires through the district and with respect to venue and jurisdiction thank you very much thank you very much mr jackson you have a minute honor i just want to make a few brief points in response and answer any questions the court has one i think the issue was raised of disparate treatment and i just wanted to notice the question that factor in terms of the the need to detain the defendant then it's particularly unfair to conclude that that wealth can't be utilized in order to try to create conditions of the law you wealthy and therefore you have to stay in jail but you're adequately part of the court's concern was the million dollars and where it came from is your client prepared to make full disclosure of this assets everywhere in the world so that the court has a sense of what his wealth is and whether a million dollars is a drop in the bucket or a serious deterrent like absolute honor not only is he willing to he already has he sat down with pretrial services outlined all of his assets his wife outlined all their assets overseas the government never in any point in pretrial services verified that they there's an extent to which they can verify i don't know all their investigative methods but there was never any allegation in the district court unlike in some nonny there was never any allegation a district court that my client had a head he hadn't any of his wealth he had unify his bank accounts where he had money he expressed his willingness to transfer you know to wealthier in order to secure his bond and you know just more to the point your honor i would use emphasize that with regard to the one in ten thousand point the supreme court has repeatedly emphasized that the fact that there is some theoretical risk that a defendant might be able to escape is really grossly insufficient for us to justify detaining a person who is presumed innocent but the entire point of the constitutional right to bail and of the bail reform act is that we're willing to deal with some minuscule risk in order to assure that the very fundamental value of our criminal justice system the fact that a man is presumed innocent until proven guilty is not completely run over by the government's ability to detain him perhaps for a stakeholder in the justice system cares about i think judge rake off it in his opinion in the dryer case really hit the nail on the head with this issue everything in terms of bail unfortunately to some degree prejudices people who have less means if you're homeless you don't have the ability to put up a home you probably don't have the ability to put up any money what we have in this situation is a defendant who's really being paralyzed for having more money than the average  and in this particular situation i would you suggest your honor the question is whether or not the package provides a sufficient deterrent you know when your mother puts up her home and your beloved mother is going to be out on the street if  and that's often a strong deterrent khazar has a moral suasion component as well as the value of the home indeed often the judges don't care what the value of the home is if mom's going to be on the street but that's not your client situation and so what we've got here is a relatively modest amount of these assets coupled with private detention services and that it's in that context that i asked why isn't this troubling that it comes comes only to the wealthy and not even your client's money potential coconspirator well i think that your honor hits it on the head when you talk about the mother's home because what that identifies is that this is the bill reform act is focus on focusing on the individual defend it and the mother's home is a situation where the court has he really needed to create flexible solutions for different types of defendants there will be some defendants who don't need twenty four hour private security monitoring and they can achieve the goals the bill format simply by making the mother a cosigner on a significant bond for this particular defend it we don't believe that this is necessary because our client as your own identified is fully aware of all the significant problems in the indictment and has a very strong interest in clearing his name his wife is here waiting for him to fight this case because they have an interest including her name but this condition these conditions we suggest to go far beyond what is necessary they go to the point of virtually guaranteeing that this defendant cannot flee and so no matter what can be said about the potential risk of flight there is no articulation and there was no articulation  honour's pressed the government on this question why would this fail why would this fail the government can't answer that question no one can answer that question and under those circumstances your honor we submit that the defendant should be released thank you