minimum must occur and be evident on the face of the hearing of the plea number one that there was a proper advise all of the elements of the crime number two that there was a proper in corrie with the defendant to make sure he understood how the facts alleged in the plea correlate to the elements of the crime and number three that there is in fact the factual basis that the court can see and find that matches the elements of the crime in the plea of mr not any one of those was met and each one of them by not being met is sufficient to cause a fair and just reason to withdraw the guilty plea and put him right back where he was before he pleaded guilty one thing that i want to highlight to remind your honor says the motion to withdraw the guilty plea was made pre sentencing so we have a fair and just standard which is i was to make fairly de minimis and it's supposed to be freely granted but this implicates issues of constitutional importance which is why we believe independent of the lower standard clearly the plea agreement should be allowed to be which wrong now keep in mind your own if we're dealing here with a bit of an interesting crime in that reminds me back in of my law school terms of mallam and say and malum prohibit i'm dealing with something like murder or drugs or something that is easily seen as to what the crime is we're dealing with a bit of a technical crime that ties into someone's role with a pension plan and the type some payments that they can or can't get from a pension plan it's a bit technical and rule oriented and when we look at the plea agreement and we look at the colloquy at the police hearing which only tracked the plea agreement there was nothing further adding the requirements to be guilty of eighteen established that the plea agreement was entered into knowingly voluntarily and intelligently you'll have to help us specifically where where did the court go wrong with respect to that and i'm not i'm not just on the following you since you're only addressed that in order to be guilty of this offense the three critical you mention that you mention that about what i've what i'm going to specifically were specifically did the court era or in this particular plea agreement in the colloquy which followed it there was never any discussion about the fact that to be whether there was never any discussion of the fact that you had to meet that and there's certainly nothing in the facts that say that the other prong of this and what the government argues is that even if you're not in a general employ if you took your actions first of all if you have the ability to influence the decision making of a plan then you could still meet the standard but there are no facts in the record there no facts in the police grammont to match that if you look at the plea agreement which is in our excerpts of record there were only like three sentences that deal with what happened factually and it basically just says that he did get paid in the one nine hundred ninety s as a real estate consultant for the glazers point monthly your monthly stipend yes you're right but independent of that he got a finders fee for a deal involving a bunch of other parties senior care partnership investments pension investments which was a feeling with my client and where the glazers plan made a loan and that's really the facts nothing more nothing less there's nothing that says that the finders fee for example was obtained or paid because of any influence that the client had on the plant there's nothing in the facts  as an administrator a fiduciary investment advisor a board of directors lawyers and accountants all of whom were paid for by the plans look out for it's interesting and none of which were my clients that my clients who gets a stipend as a consultant to those people does not constitute an agent for the point he's an independent got if you were an independent contractor he wouldn't meet the standard the reality is we don't know the answers to any of those because they don't appear in the facts that are part of the plea negotiation or plea deal i assume it is a matter of an aside we believe we have good facts on that for any trial but that's a side issue it doesn't make the connection between his role as a real estate consultant and being an agent of the plan timeline tim if it was receiving monthly payments from the plan for rendering real estate consulting services to the plan and you're saying that that's an insufficient connection with respect to the that were saying that we don't know based on that language yes but there's another distinction keep in mind that payment is separate apart from any payment relating to the first few paragraphs which is the finder straight for the seven million dollar loan commitment between the other two parts and there's certainly no linkage between the finders fee payment and the role as a real estate consultant actually does require a l if you're under one of those prohibited statuses the statute infers that you are in a position to influence you don't the government doesn't have to prove you got a quid pro quo you gave a letter saying this or that the payment was at least made because of your influence on the pension plan that doesn't appear in our facts there is nothing in this factual pattern that shows that the finder's  because of some influence that our clients had over the point i agree with your honor one could try to interpret that from these facts and there is a possibility that that would be the case but there's also a possibility that it wasn't linked at all there's also a possibility that the finders fee between these other parties had nothing to do with any influence that my client did or didn't have over the plan we just don't know from these facts i would submit to your honor as a as a side factual ma that what makes this so unusual is as a factual matter all of these payments the finders fee were disclosed to the point disclosed to the administrators disclosed to the board of directors in the attorney as well as the monies that trigger that's a separate issue as well you honor on the tax return and i think we can agree at least this tax cases go this was a little more indirect and kind of strange than some of the others we do we have differences on the tax front there were disclosures to the accountants as to what should or shouldn't be disclosed this particular payment no matter how you slice it the legal fees it was a business expense it would have been up the doctrine from the very stern tax return so there are defenses to the tax count but again but it was the auction out the other side for legal that would be an argument yes you are and it's part of the requirement of the government's elements on the tax side they have to show that you've got an intention to keep something off of the returns now again that's outside of the record i don't believe it necessarily really offenses as to which you pleading guilty yes read ok and then in order for you to be guilty of count one the following must be true that you were an agent or employee and you exercise direct or indirect control over the city to the pension plan set or telling the the feminine precisely what the statutory requirements are correct and there was never an explanation as to whether or not the role that he had as a consultant at one time in a separate finder's fee satisfies whether or not that's an agent or employer or for example would be a bona fide compensation payment for work that was performed one of the key things your honor that was not done here is that under section one hundred fifty four the statute it expressly indicates that despite the people who can't get a payment or when a payment can't be paid it is appropriate to pay a bona fide compensation for services actually performed that's an incredibly important part of the elements of the crime because that shows that there's a significant limitation on the actors the role that is punishable criminal that admonition was never given that element of the crime which we set forth in our briefing is not in the elements and that's one of the ways that the court failed if we look at the quotation that your honor just gave of what the court told the defendant which is exactly what's in the plea agreement it's missing big parts it doesn't say that there has been one of your defenses well that that's kind of the where do we fall on that line outs mature on it is a difference between what might be an affirmative defense or a defense she had diminished capacity she maybe you didn't have the right at ten gee maybe you're not you know there are any number of defenses we normally state in a pretty tough area if we fail the district judges they've got to exclude all the defenses when they're taking a colloquy and i'm not here to stand for that proposition the question becomes is  critical part of the elements i think that's the standard this court is what that is to what the court should say and i would submit to you that when you talk about a crime that prick it makes it a crime because you are a certain type of actor that is a critical part and there wasn't a full discussion or explanation of that number two when it first that there have to be a certain type of payment made and by the way other payments like bona fide compensation for your work is not the wrong kind of came and i submit that's a critical factor and that was missing from this plea colloquy and it was missing from the plea agreement and then the third thing is as i alluded to earlier there has to be some exploration both in terms of the elements required and the facts that relate to the elements that this payment was made as a result of your position and i agree with your honor that there's case law in this circuit that says you don't have to necessarily act on it but the payment has to be made for that reason if you look at the factual basis in this case it's totally devoid of anything about that it just states that as a matter of fact a finder's fee was going to be paid to a company affiliated with mr ferrante doesn't say why it was can be paid it doesn't say what the purpose was for what was done counsel or administrator etc and we are not one of those definitions we have to go into the with the intent to influence side of things and there's no facts in the play agreement to show that that's the problem here there's sort of  have the title or you can have the facts that show that it was to influence your decision or you had that influence and unfortunately we don't have either and that's the problem the judge building one of the elements here sir is you've got to be an age catch twenty two because if he's relying on what the judge tells him to be the law i would think that most people when the judge says this is what you need to be guilty you'll say i agree but when the judge leaves out of that description key components of what it means to be guilty which is what i submit happens here that's what's missing in there's no basis on the police to be able to find that this defendant had a full understanding of what the crime was that he was guilty of what it took to be guilty and when one steps back and says well wait a minute you mean if i were getting bona fide compensation for services that i rendered that would be a defense and that would be something that wasn't proven as an element it looks different when somebody steps back and says you mean the government would have to show that this money was paid because of my influence over the pension plan that would be a reason to go i don't have influence over that pension plan to defend myself a trial the problem is this defendant was never advised of that stuff and he was not able to make that decision but let me read to cut short part of it when i read it before but here's the entire sentence in order for you to be guilty  count one the following must be true that you were an age or employee of a pension plan or otherwise exercise direct or indirect control over the rescissions of a pension plan you solicited or received a commission and the commission was received because of your actions or duties relating to a matter concerning the pension rights isn't isn't that a pretty thorough explanation of what with the crime is and what he did to know your honor because we can only gauge whether what he did to be guilty meets that against the facts so you have to look at that and compare it to the factual basis that set forth in the police grant and if you look at the factual basis it doesn't say he's an agent or employee it doesn't say that he exercised direct or indirect control over the decisions it doesn't say that the commission was received because of his actions or duties with the pension plan that's the problem it's devoid of all that normal person is the fact that the judge states that mocha in court is of no relevance of it's not stated in here in the plea agreement so you know i think you can look at the two you're on here's what i'm saying there's sort of two two components to a good plea agreement and then you have to find that they mask properly one is a proper advisor as to what has to be proven in order for you to be guilty and the second is now let's look at what you did here let's look at the facts that you admit to and let's see how much they mesh and meet all the components i would submit your honor that the court didn't give the proper recipe for what you need to be guilty to begin with and that's the pitfall including this language but let's assume your honor that everything was going properly in the advise now we've got to look at the complaint contain what you need to actually meet this and if you look at the facts it's three sentences i think that your honour's already alluded to a little bit they're not there there's no facts indicating he had the right rol has paragraph eight of the plea agreement yes your honor now i realize i just have a couple of a minute so let me just touch on a couple of key things and then hopefully have one minute left for rebuttal number one because of the concept of packaging and the practical reality that when one count in particular the driving count of a plea agreement is invalid then i would submit that the second count in this case a lesser tax count is going to be bundled in and that as a practical matter the person's knowledge base for knowing involuntary aspect of taking the second count is affected by the first count being gone and because of that it's a fair and just reason to not only be able to withdraw the first count which was legally insufficient but the second and the main thing i'd point out is if you look at footnote one of the plea agreement it flat out indicates that the parties agree that the tax count adds nothing to sentencing here this entire case the sentence based on the kickback camp and when you remove that out it changes the equation and he's got a fair and just reason to withdraw his guilty plea to the tax count because now it has significance that it didn't before final thing that i think's important on the issue of restitution which i'd submit we should have to get to because we should be back in at no plea but assuming there's a sentencing the key thing here is there was never any finding that restitution money that the money involved was paid by the glazers pension plan yet the court ordered that restitution be paid to the glazers pension plan you have an outfit called senior care you have an outfit called la jolla village towers and you have this third partnership it's our position that the restitution should be paid to one of the other entities because they actually paid the money but the key here is payment of the money was paid by a separate entity than the glazers and one that he later had a business affiliation with it has to do with how where the money actually goes and who actually winds up getting the benefit of them to get the benefit because he has some ownership in them  i don't know if he still does but he did it one time and that many also get to keep the benefit that was the result of the payment to him which glazers of course doesn't get they lose both the benefit of those that he's got and they lost the little commission well firstly i think you got assuming the facts were that way that could be true but those aren't the facts there's no evidence that the glaciers didn't get the benefit of whatever deal they did on this lawyer bill is telling these they got the benefit they got a loan least that's the purpose of the statute to prevent they got a loan which they would not have gotten except for his commission the director of the business to the album was saying if the facts are that way i agree the problem is you're on a there's nothing in the facts here to show that they got that loan and wouldn't have gotten it except for my client's role and that's at the heart of the problem here thank you very much counsel your time has expired mr mcnally quickest court's denial of his motion to withdraw his guilty pleas which is of course review for an abuse of discretion but then starts talking about the elements of the plea and doesn't address really whether or not the district court abused its to discretion the government the defendant was designated as an investment adviser he was not a person who held one of the formal titles within the statutory descriptions yet his that aspect of his guilt was not challenged with undue emphasis investment advisor for the pension plan involved there and there was no exclusivity assigned to the defendant in this case however the factual basis and the elements of his crime were both state clearly that he was being charged for that the defendant was guilty using reasonable inferences from the fact that the defendant was in fact a real estate consultant to the pension plan being paid monthly and is being paid by someone else for obtaining a loan commitment for example there be clear exemption for a loan broker who also serves as an advisor who has a clear arrangement with the pension plan that when i bring you loans i'm also getting a broker's commission i'm getting a five percent broker's commission that's the cost of doing loans with you in other words i'm a seller of loans to you if there's a clear understanding of that that statute could exist that kind of compensation but you want the the mortgage broker is disclosed he or she gets five percent as the broker and that that brings the court to another point which is the defense's emphasis on the fact that these this finders fee in particular was disclosed to all the parties none of that evidence was in the record state of the record right now is silent with respect to that it would have been very helpful if you don't have my saying so that if something in paragraph eight would have suggested undisclosed impermissible the exemption more like a defense which doesn't have to be listed by the judge or in the plea agreement as part of the elements or is it more like a critical part of the elements that does need to be explain honor since it's an exemption the government considers a defense i'm not aware of the case that's determined that or statutory history that states that but i believe that the language of the statute itself which lays it out as an exception not as part of the will take its morning recess