good morning in may please the court my name is dan pere as i represent the defendant appellate gerard terry this change of plea hearing was virtually without peer without parallel almost unique when it came to the district court's complete failure to inform the defendant of the nature of his offense and to ensure that he understood it in all of the cases that we have cited that the government has cited there has been some reason to conclude by reviewing court that the defendant understood the nature of his offense so whether it was in the lloyd for example where there was a plea agreement and the district court asked the defendant did you discuss it with your lawyer and the defendant said yes and did you understand it and the defendant said yes in this case didn't terri went there several times where there were breaks where terri discusses with his lawyer well there were several breaks during the plea colloquy we don't know what he discussed with his lawyer but there was never a moment that your client knows what he discussed or i can only go on what's in the record your honor and what's in the record is no one not the district court and then the lawyer didn't the lawyer then go on and discuss his ponder standing of what was what the what the charges and all the lawyer didn't set out the elements either and district court had the clerk of court read the indictment aloud at appendix twenty or twenty one that i knowingly and willfully evaded and failed to pay personal income tax due and owing to me by the united states american payment there for textures two thousand to two thousand and three yes and that is not a sufficient elocution to tax evasion i agree i agree with the government's first first position which was that was not a sufficient allocution because that does not admit the affirmative act but that wasn't necessary for an allocution right what's necessary for an allocution judge sullivan is for the district court to ensure that the that the defendant understands the nature of his offense and that never happened here the defendant articulated in court the element did you mean to judge wesley just read them and then he admitted to seven affirmative acts what what judge west one of which meets the criteria for an affirmative act my position is not that he did not provide a sufficient factual elocution that's not that's not what we're arguing with that reflects an understanding of the elements it may or may not i would take issue with first of all whether failure to pay taxes or failure to file taxes constitutes tax evasion it does not which then became the basis for seibert to withhold acceptance of responsibility points but that's different than saying your client didn't understand the nature of the charges  that's basically you're saying he didn't understand that there might be consequences to not allocating to conduct that was later proven that's not what i'm saying what i'm saying is that neither the district court nor the government nor anyone told him what the nature of the offense was or ensure that he understood it it could have been as it usually an integral to plea either the government or the court says these are the elements that wasn't done here correct but in the discussion about what happened in his admissions did he not admit to all of the elements of the crime no he did not what he did not what did he not let let's look at that issue of levy enforcement because he was clear and his lawyer was clear that he  one g were acquires the court to inform him of the nature of his offense and because it failed to do so here utterly and entirely didn't even come close by asking the government for example to summarize its let's let's assume there was an era where ron klain armor view yes we are is is what's the miscarriage of justice when this former lawyer admits factually to all the elements of the crime well the substantial this substantial rights that he lost were when the district court relied on this muddled plea proceeding and his and his inability to offer a a clear factual allocution elocution and sentenced him this sixty two year old first time offender on an income tax of case to three years of prison against a five year statutory maximum and again i'll go back to lou oid why wasn't there plain error in lloyd because lloyd received the statutory minimum sentence he couldn't have done any better there was no statutory minimum reasonable chance that that's not we haven't made that argument judge that's why i asked you why you making that where you're saying that it's relevant to a substantial right because that is that is the way that indicate zero where the fact that if he goes to trial and they prove that he did cash half a million dollars of checks to avoid levies and that he created a shell corporation to avoid a down to firing income he'll get a sophisticated means and handsome and he could face sixty months in prison is where that yes he is in fact he gave me an email specifically saying that i actually anticipated that question he is prepared understands the risks of what he is asking for he does but if he goes to trial and he loses responsibility here but that's right and he wasn't guarantee that it couldn't be understood i don't why i don't understand how the acceptance of responsibility is relevant in any way shape or form because of the fact that he was not informed of the nature of the offense and also i don't want to know how is is not getting the acceptance of responsibility somehow relevant to his knowing and voluntary plea that they could that goes to the plain error that that the fact that he didn't get acceptance of responsibility goes to satisfying planner because again for the same reason that there wasn't plain error in lloyd because if he goes he wasn't able to please all the all the factual allegations of the complaint he did reasonable for a judge to conclude that he didn't judge judge so he didn't plead to one that even the government said he didn't meant the government itself said that he yes he cashed checks but the government said that he didn't cash checks to avoid levee enhancement and that was the reason that everything ran off the rails what did he not understand what he didn't understand was that there had to be a willful that there  elements of tax evasion that has to be willful willfulness yes he did but he didn't he wasn't told you have to have affirmative acts of evasion when at the time he pled guilty but he wasn't told that that was what was required and he could have for example asked for a break or he could have known with respect to the tax levy he could have said look i i'm not disputing he did say i'm not disputing that i cashed the checks he could have said i cash the checks to hide it from the i r s but that's not what was asked what was charged was you cash the checks to avoid levy enhancement and as a factual matter he could not truthfully allocute to that in the government so stated thank you have some time for a bottle here from the gum thank you  it please the court already mcconnell for the government i represented the government at the district court level your honor there was no error in the police proceeding certainly no plane air and anything th right and certainly here you were you there yes this was my case i was represented why don't you just to avoid all this ask the judge to remind the defendant of what the elements are or just you get up there and state with the elements are that's pretty textbook and certainly in retrospect your honor that would have been the the appropriate thing to do you know reading the elements some of the the non exhaustive examples of things that the government and the court can do to make sure the rule  satisfied could have been done however the the rule by its text and by the case law from this court is not a a a rule of form over substance the the court has been very clear that there is no particular formula or script that that the district court had it would have taken about thirty seconds in that proceeding as now spawn briefs and judges time and clerks time and court time and all of that and certainly and certainly judge in retrospect if if the if the question could have been put to the defendant have you gone over the indictment with with defense counsel i agree that would have been best practice however the issue before the court today can really be resolved by looking at the four corners of the police transcript i'm about a page and a half at eight thirty for the defendant mr terry is asked to explain what he did with respect to count two and he gives a verbatim recitation of the statutory language all three elements are spelled out  almost to the the letter the court then asked how did you do that referring to the quote specific acts alleged here in the indictment and the defendant allocute to at least four acts of evasion  right right there in that in that piece if the allocution in the police proceeding had stopped right then i don't think that there would be any reason to question what what had what had transpired because i mean the transcript maybe it's cherry picking but in the transcript you seemed to be saying that it wasn't sufficient your honor we when the when the judge judge seibert went beyond that point and started inquiring into additional relevant conduct an additional acts of evasion the interjections from defense counsel were  troubling to me however i don't think that that that should impugn or call into question anything that happened before that point certainly you know my concern was having a clean record and i will admit that the way that the colloquy was was going was was of some concern to me but when you have the benefit of the transcript as we do here today it's quite clear that the defendant knew the elements of the the offense he gave them to the court almost verbatim i think to have asked the the court or the government to then you know ask the defendant if you he was aware the elements of the offense would have been redundant and unnecessary again the the court as as lloyd dictates or suggests i should say ask the defendant to explain in his own words what he did on several occasions the defendant allocute and says simply to several acts of evasion really only disputing the last two which form the basis for the guidelines and handsome and during sentencing litigation and i think your honor when you when you look at the portion of the transcript where the defense attorneys interjecting this is this is good lawyer in frankly on his part this was a a litigation strategy that was being employed where mr terry would allocute and admit to only the bare minimum of conduct to preserve all possible sentencing arguments which they did during several rounds of briefing during sensing litigation phase there was never a point where the defendant you know through multiple rounds of briefing or even during the sentence proceeding said oh tax evasion i had no idea because that's not what occurred he evinced a clear understanding throughout the plea proceeding and i would argue that the arguments over the relevant conduct that he disputed at that proceeding shows that he understood down to the down to the letter i mean you have a defendant who no he was not asked did you go over the indictment but he's actively referring to it at the court's direction throughout the plea proceeding and he's he's arguing about particular quote clauses down to the word i mean there was one instance where he asked can i can i read he had gone over the and it was it was more than apparent he was referring to it during the police proceeding while it was going on so while i agree with the court it would have been best practice for the court to turn to me and say you know government can you please outline the nature of the government's proof  this case had proceeded to trial certainly we wouldn't we do follow a script most judges in the in the southern district i guess it's not so common in the east and it is calm and i but i again judge i think that the reason why we went off script in this case was because the defendant and his counsel were executing a litigation strategy that was designed to admit the bare minimum at the police proceeding but that's allowed to the bare minimum you certainly are that you seem to take issue with that a pursuit you seem to suggest that unless he was prepared to admit to all the affirmative acts that it wasn't a sufficient allocution i have been wrong about that i think you probably were wrong about that yes it was what you said right i i i was wrong about it i think th concern was a clean record i was concerned with the amount of interjection by the defense attorney certainly looking back at the at the at the complete record which is which the court is intitled to do there's no question however that the defendant knew exactly what he was doing tax evasion is not a complicated crime he admitted to it he gave the statutory language himself without prompting he admitted to multiple acts of evasion when the court asked him to describe his own conduct  so my comments that the police are proceeding notwithstanding the issue an analysis of whether the defendant was adequately informed and aware of the nature of the offense and he certainly was i don't believe that anything that occurred during the the plea proceeding impacted his his decision whether or not to plead guilty i think this is a clear case where a high risk high reward litigation strategy v z the guidelines was employed it backfired it didn't work and there's some buyer's remorse with the sentence although i do think it's worth pointing out that even if the court had given the defendant acceptance of responsibility points and his basis is total offense level was lowered from twenty four to twenty one the guidelines which of course are advisory still would have been thirty seven to forty six months and he's still under the guidelines if he got what he wanted so i  don't think that there's any error here much less plain error so anything that that occurred it during the proceeding was certainly harmless and should certainly didn't affect the fairness or the integrity of the proceedings themselves and unless there any other questions i'll yield the balance of my time thank you will hear the rebuttal thank you you know it was in mccarthy fifty years ago that the supreme court said that in order for a plea to be voluntary the defendant has to have has to understand the law in relation to the facts and that is why we have rule of and that is why we have that core requirement of informing a defendant at the time of this plea of the nature of the offense and why a district court is responsible for ensuring that he understands it and that did not happen here reciting all the elements in his allocution which appears to have been written out and the judge should have said do you really understand what you just said and do you can you explain it for me in defined terms are you talking about the initial allocution  entire colloquy is about two affirmative acts which are unnecessary it seems to me that you could have agreed to disagree on that and the judge would have been free to take the plea and then you would have fought it out at sentencing as you did you can't commit tax evasion by failing to pay yes he does it meant that he filed false tax returns yes he did but again no appellate court has done no appellate court has ever done what what it sounds like is happening here today ok which is to comb through the record find the factual allegations the allegations not the elements but the factual allegations that the defendant admitted to and say see he admitted to enough allegations therefore we have reason to conclude