august twenty first two thousand and six in the ten c r five one six case which is the case that we're here before you went on i think what happened in the zero five c r case when you look at it their case was basically wrapped up in the ten c r case at that time they had it we interviewed everybody the government basically conceded in the ten c r five one six case during the briefing in the situation here that they had it was all done judge lefkow indicated in her memorandum the decision she sort of whitewashing that had some knowledge about what was going on with this mortgage fraud situation back in august in two thousand and six in the memorandums i provided to the court from brigitte grows in mario moore show basically that the are prosecution was wrapped up it's also pretty clear that the plea in that over five c r case occurred on the day of trial the records show from the five c r seventy three case that mr brown had no intention of pleading to that case it says a note from the pretrial date was defendant wish to proceed to trial on august twenty first two thousand and six he was ready to go to trial he knew the government knew that they didn't have a case on that and that oh five case because can you out of cults and folded like him and decide he was going to testify and then comes by and they knew about this mortgage fraud situation they want to knew about it coach had been briefing them on that the statute of limitations run on the mortgage fraud cases data  three i think that some of the facts that were going on and that were fairly recent frankly i hadn't looked into that but i think it's a very good issue about that but the fact of the matter is i think it's really important because it seems to be that this  part of the plea agreement that you are arguing about really only covers matters for for which the statute of limitations would have run as of the time of the agreement because i think it i think all that it does is it would if there's a breach of the agreement it would reinstitute it with this it would eliminate the statute of limitations bar to those prosecutions i think the statue of basins or not i just i don't think they had a right to go forward that prosecution this case because it was covered under the plea agreement in the of five c r seventy three case i mean regardless of the statue an agency or interesting thought your honor i and presented that i was focusing on the plea agreement which i think is basically kundra and i think they drafted the plea agreement law on this circuit and all the other circuits talks about how you have to evaluate these things based upon standard contract law contract law as we all know from first year law school and he had a duty to go against the draft or they were the draft or plussed is this court has indicated in various case law to include interim the don't even you goes past that when somebody is giving up their right limit the language of the plea agreement to bar further prosecutions just to the facts of all five c r seventy three it says any prosecutions and they did their document doesn't say this just applies to all five c r seventy three the  situation that they had any idea of it it's another thing just because that is thing everybody is conceding that they were well aware that it was ready to go when you like this indicator when you look at brook groceries and mario moore's statements that you know that was what  happened at the trial in this matter was basically what happened in those two statements so they were ready to go this concept that they had some idea of what was going on they knew everything they were ready to go on august twenty first two thousand and six prosecuting him on the mortgage fraud case but then they held up for four years is that the indictment in the tennessee are five and six case occurred on june of two thousand and ten and it's so that basically corroborates everything this whole fact situation the whole scenario the wouldn't operate with disgust right prosecution he wouldn't cooperate with that so basically he was ready and i think it's pretty clear under the facts of this case of the law but they were not allowed to go forward with the probe with the prosecution the tense you are five and six cases and also judge guard scholl indicated at the pleas hearing in the whole five c r seventy three case she talked about that you are there are there are no other agreements and she said well that goes there's nothing else about sentencing and she basically said there was investigations before entering into very well i think what happened is they were discussing it it was part of the discussions that led to the plea on august twenty first two thousand seconds was on notice about this potential set of charges would we expect to see a much more i think when you factor in the issue that you do the language of paragraph twenty talks about is very broad into itself it's any prosecutions it doesn't limit itself to a five c r seventy three coupled with the language of iran that says that it applies out context well technically as the data could be a date of the agreement on august twenty first two thousand and six the mortgage fraud issues i don't think were time barred they weren't time barred four years later so they were still valid because they were they were there they're still investigating so i don't think that is i think i'd also covers a two year old i think when you look at it that way to thank thank you miss your ro my name is elizabeth pacelle and i represent the united states in this appeal the district court correctly determined that the two thousand and six pre agreement between the defendant and the government did not bar the government from later to find the defendant for mortgage fraud i believe that the language of paragraph twenty the purpose of that language is to make clear the defendant that he's waving any statute of limitations argument should the government a person who charges that were honor i think well i think that the defendant's arguments regarding that paragraph are are just plainly in cracked for the reasons that you know but look at the context of this thing the other the other potential charges have been discuss everybody knew it there had been an effort to try to get it resolved and it that it didn't get resolved so it's not like that other congo wasn't on everybody's mind so this doesn't  right here the government's position is that the investigation was some steps were taken to look into the mortgage fraud but the government's investigation was continuing well past the time that the defendant pled guilty to the monday money laundering case which is into the bond that was posted was something that did go into foreclosure and and investigators did look into that property and was never charged or it triggered the investigation didn't it it's my understanding that was part of what led the investigators to look into the real estate dealings of of the defendant and the fact that that was posted a security in his money laundering case is separate from the fact that there was fraud involved plea agreement and the defendant later testified under oath in front of the district court that it was his understanding that there were no other promises made to him regarding no other promises made to him outside of the terms of the written agreement which are clearly limited to just the money laundering charges that were brought in two thousand and two thousand and five two thousand and six no point during the plea colloquy despite having opportunities to do so did the defendant or his attorney raise it with the district court that they believe that there were other promises related to mortgage fraud that were not addressed and nor did the prosecution stand up and say this dispute freeman only applies to the agreement is entirely voluntary and represents the entire group meant between the united states attorney and defendant regarding defiance criminal liability in case all five c r seven thirty which is the money laundering case so the agreement was was with respect to the money laundering which was separate criminal conduct from the mortgage fraud investigation but then didn't go to paragraph twenty right and paragraph twenty is as i discussed is is the defendants to make sure th understands that if there's a breach of the agreement the government can pursue the charges that he that are part of the money laundering indictment the written agreement also an addition to the paragraph i just read to the court it also states that there were the defendant or period that there were no threats promises or representations made to him to cause him to plead guilty other than those are already set forth in the agree t unless the court is further questions i conclude by asking you to from the judgment of the district court was nothing in the pleading with the requirement to cooperate against cuts right i think that gets this the government indicates that yes on august twenty first two thousand and six there had been quote some steps unquote towards its investigation of the mortgage fraud i think when you look at case however that doesn't mean that those additional acts that lead to the more of the ten c r five one six wasn't part of the pleader i mean it doesn't limit itself it doesn't say this isn't part of  deal and there's nothing in the plea agreement that excludes the ten c r five one six case and as i've indicated paragraph twenty given the context any prosecutions includes so basically it is the deal in the old five c r seventy that's not what he said when he's asked whether he's got any other agreements any other if he was promised anything else he makes no mention of this  no he doesn't mention any it because it's his understanding paragraph twenty covers it because of in context of what happened before the discussions they had before and judge god shall i think admitted that when she said ok so there's no deal on anything other than sentencing she kind of sensing there was nothing in this case bill that just that limited that i think when you look at the totality of the circumstances this didn't have to do if they had been discussing a bank robbery and those part of it saying then that would be part of it but  and other potential crimes and it's not clearly spelled out in the plea agreement there should be a provision in the plea agreement to make you bring them bulletproof i would concur with you on that the thing is that i think when you look at that and that's were not found any additional charges in the district which are known to the u s attorney's office arising from his activities in the district of colorado that's pretty broad right and that's covers everything that to me is bulletproof that and that was pretty broad and that's kind of what i think paragraph twenty talks about too is any prosecutions that are not time barred is also is just as fraught and then i think when you look at the law that ingram recites and showing reaffirms that you have to look at these things they're the drafters of the agreement the government is there it's a construed against them and that if there's more than one reason what your interpretation but there you need contracts there's a supplement to the bargain process does not buy the defendant's right to fundamental due process no overreaching i mean it's basically said if you're going to from what i read in interim in showing you're going to err you err on the side of the senate because he's giving up his right to a