pleaded guilty to sending out fraudulent revenue statements however those fraudulent revenue statements were outside the statute of limitations and could not have been charged as a crime in this case castle this is a very unusual guilty plea but it struck me that he was admitting that he did the acts that were within the statute of limitations but he claimed that they weren't fraudulent if if so he didn't say well that wasn't me or i was in a coma then he did the things he just thought they were illegal and i'm not sure where we take th know if someone says well i was at the bank and i asked the teller for money but it really wasn't a bank robbery because i didn't keep the money i gave it to charity can that be a guilty plea for bank robbery though the person says well i was there i did that thing but i don't think it's current well there's two issues and when i went to shoot it relates to the scheme that took place he did not admit anything within the statute of limitations everything that happened after the crime was committed basically is within the statute of limitations those are the letters that were sent out after now i understand that but he it's think i thought and maybe i'm correct in this that he agreed that he sent them he just said that there was nothing wrong with them they were criminal the letters afterwards right i don't know that he ever mentions specifically letters he just said afterwards they try to mitigate the damages in the case that they tried to buy back the equipment that they offered to set them up with other services after they told everyone that the business had failed so he's from his standpoint and i'm not saying whether he's guilty or not guilty but from the position of the plea in which one of the critical elements for the is the actual mailing requirement and that mailing requirement although it kind of sometimes seems silly to us when we're looking at these big policemen to some kind of miscellaneous letter it's important and mr fleischer was never asked the question did you send any of did you send  wondering why are your client would be entitled to relief because it seems as if one thing seems clear from our record is that he really really wanted to plead guilty and so the remedy would be have pleaded well he was not he specifically said and throughout this whole proceeding he said that he has a whole position was there was nothing wrong with this transaction from the beginning it was a failed business plan it started out as a legitimate business i understand that i think or maybe i'm i didn't make my question clear what is fair that would demonstrate that i have please more precise are he would have chosen not to plead guilty i think of the court and said mr fleischer did you send out this letter on september fifth two thousand and five and he said no i mean were you responsible for this was this in furtherance of the crime he would have said no no i'm not saying whether that's right indictment so it's a little bit incredulous to claim here that it's almost like you're trying to say he didn't know that he was you know other people aren't in federal court most people are pleading guilty to seventeen counts in an indictment r and all of those things it is not uncommon i mean i think most of us here didn't fall off the turnip truck just yesterday and particularly if you've taken place a lot of times people don't want to say everything and so they start with this that lawyer says well he doesn't only admit to everything that the government says that he does but he still pleads guilty to seventeen counts in the indictment no one objects to anything and now all this time later and suddenly he's not guilty well he could have said he was not guilty right that day and gone to trial that's not what he said so and if he had a lawyer and he you know yeah he kind of the i'm still around a little bit but he alternately said yeah i'm pleading guilty to seven he was pleading guilty to he said it in his sentencing documents what he was pleading guilty to he said it at the sentencing hearing what he was pleading guilty to he said he was pleading guilty to sending out the false revenue statements now i don't know when he read the indictment if he read it any time close to this time maybe it was just a guilty conscience that he thought the seventeen charges were actually because of sending out the revenue statements there were probably hundreds of revenue statements and then the results of the virus letter but those were all things that he was admitting that were wrong and fraudulent in this case but he was not admitting the scheme and that's pretty clear he didn't say that this was a scheme this was a failed business plan that ended up with some some criminal activity that's just what the judge said in this case and the judge in the sentencing the judge says to him at that in the middle of his statement in sentencing the judge says to him sir are you not taking light up responsibility for what you did in this case and he said yes i am i'm taking responsibility for these particular letters now i don't know he obviously he thought that the letters the fifth counsel in the indictment were because of those letters his lawyer seems to think it was because of those letters the prosecutor seems to think that those letters from substantial basis for the ma remember this is mail fraud this case would not stand without some letters there and i know from my clients statements that have been made throughout this case that he would not have pleaded guilty if he had realized he was clean whereas the record we see that he would not ha hesitating sir about pleading guilty and he said i am taking responsibility he's after the judge and talked about all the bad conduct and he said i'm taking responsibility for those particular nailing us particular anything that says that the p s r can be factual of the factual basis for anything but the sentence itself as opposed to as a basis for a guilty plea as facts sufficient for a guilty plea now maybe i'm wrong i did look it up and they tried to see if there got the two hundred ten months as opposed to them who all did the same thing was because of his the statements that he had made during the sentencing where he adamantly refused to admit that he had done anything but send out these particular statements now if you i'm looking at it my not making that argument specifically i'm just saying that it's possible that his adamant refusal at the end of the sentence may have i don't know if it was punitive but i'm just saying that that that it seemed that the judge good morning sir right on behalf of the united states may please the quite the defendant here has not met the very high burden of establishing a reasonable probability that but for the alleged rule eleven violation he would not have entered a guilty plea in this case first there was no air at the change of clay hearing the defendant admitted the essential elements of the scheme to define and he admitted this seventeen mailings well didn't really do very much to elicit facts you know the lawyer interceded and said well you know i he's not really you know with all these facts and there was some back and forth but it seemed fairly and the prosecutors statement was the indictment is charge and seven is church and seventeen counts and not every count relates to the mailing of the statement by doing that with the district court on notice that it should have a little more into mr fleischer's general admission to determine there was a sufficient factual basis i think it did and perhaps what the panel struggling with is that although it put in my notice the district court did not in that it was without a plea agreement it was an open clean and and i would agree but typically you would want more but i do think that this was enough in this case to cover art and partly because of the way the mail fraud statute works which is you have a scheme and then you have these mailings which are mostly jurisdictional in furtherance of the fraud in a typical factual basis where you're talking about mailings made in furtherance of m l five fraud scheme you're not spending a lot of time in the factual basis about how you're going to prove your feelings what be more here so i'm not going to argue that that would have been preferable but what i will argue is that to the extent that the defendant is saying i had no idea what the government to charge me with or what i admitted at the change of plea hearing that is not borne out by the record in this case and substitute for it doesn't substitute although there is case law that the court can supplement a factual basis with with the entire record available to it there are various case law not and if we're going to move to the plain our view and if that's where we need to end up that would be that that you know i'd be happy with that because those seventeen counts are listed in the p s r he never objects that same conduct as described in less particular particularities but ins in some detail in the offense con that the defendants engaged in as part of the contract and it includes these buyback letters and i also i think there's i want to correct the record in a couple places not all of these letters for of late to this buyout or the lease back count five is a revenue statement is a is a check for revenue statement that's clearly part of the fraud that he netted and there are also mailings included in this indictment that purport to confirm purchases of the toppers so to the extent that it's been represented that this is all conduct that was outside what he admitted i would described in the indictment as a check for one hundred eight dollars per portably representing advertising revenue sent from d n e and oxnard california to victim j j that's that's that's a read that that's a false payment to an investor that i think i sir well you have to take a bit did you think what you were doing was legal no sir it's i don't know how to we i said it them when we presented this to the people it was as far as we're concerned a legal business and we were doing the right things and throughout the progression of time things went awry and we ended up sending out statements that were false then in a court turns to you and says let me ask the government if it would care to supplement the casual basis with regard to the defendant and i think it was you that was their rights could turn out so well yes your honor the indictment is charges seventeen counts and not every count relates to the mailing of a statement so he said yeah there are other mailings that are covered and i going to properly cover those counts all right i don't know what we need to do much more than that given the statement of the factual basis that the defendants are trying to drive into the record and that he later confirmed the defendant later  you stand here today you don't feel that you're criminally liable for any of these things which in which you have been indicted and your honor then the defendant says i am responsible and criminally involved or played that way because i sent them statements with false little but said he said he was guilty of the seventeen counts he did say that he never directly confronted that he never directly contest that he's not guilty of those but in the sentencing hearing he definitely does try to go at the change of clearing right yeah i mean and then your point is there's no indication that at that point he really wanted to go to trial he just wanted to want to walk that's that's correct counter and i think that's that is borne out in the record where a bit because he never tries to withdraw that guilty plea he had opportunity he never really contest those seventeen counts at sentencing he makes certain statements about trying to mitigate the damages but he never says i didn't do those seventeen things i had no idea that buchanan we'll give you a minute for we've only used a lot of your time with questions ok just quickly as far as the seventeen mailings go we've never seen the seventeen mailings there are hundreds of thousands of letters here some of the mailings actually came from alleged victims so we don't know what is it contained as far as count five who knows maybe there was one hundred eight dollars of actual revenue earned they did place some of these machines so when you say we have never seen whose we the record  t show i'm sure that the those statements those seventeen letters are somewhere in the forty thousand pages of discovery but they're not isolated anywhere you can't tell for sure which letter is which i you know you look at these big cases and you can't until the prosecutor actually hampshire a copy of the specific letter they all can sound very similar to what is here so they're not in the records they probably are in the discovery i don't know i didn't look through all forty thousand pages but they were not attached to anything they were not presented anything we don't know what they say some of them are from the victims so mr fleischer you don't know what they say no i don't know what they say so that's the we're talking about right right and we the people who are reviewing the record don't know what they say that means all of us you