brief where this court raised to a spontaneous take issue this court can address the issue of the wrong guidelines version being applied which clearly happened in this case and the difference is three levels which thousand two thousand and two when he was sentenced the money laundering guideline had been modified such that it made his guideline sentence should have been lower and i'm a little puzzled by what happened  everybody was i noticed that the p s r said seventy seven guidelines because we want to protect the defendant there may be an ex post facto problem i assume counsel received that r  there was a lawyer there and there's no charge the lawyer was asleep or out to lunch or anything there's nothing in here but in confidence the so why why is this i guess we d extra careful and it's probably improper of me not to have relied on me to have relied on the hope that trial counsel to that correctly it's an error it's inexcusable and it changes my client's sentence by year under book or my client is clearly entitled to be re sentenced by the district court judge considered several grounds for departure and found that those grounds did not amount to extraordinary circumstances now under  district court has discretion and those types of considerations do not need to reach the level of extraordinary considerations why would you say they don't need to reach the level of extraordinary under the under booker  consider any number of sentencing requirements including the guidelines but they are not limited to using the guidelines as a mandatory law so you're saying that if we should remain and so the there were actually these departures on these grounds for departure which did not meet the level of required for departures under the guidelines that district court found were actually raised in many cases those things aren't even raised because they're just  particular my client good works and his work on world hunger projects throughout the world these were things that were considered by just a court but were not town to reach the level that would have been required under the guidelines to give him a break in addition he had elderly relatives medical problems of his own other hardships that were considered by the court but discarded because they are just favored factors under the mandatory guidelines in place then were not proper to be considered and did not reach the level that the court would have to find them so at that point hopefully if it is remounted then perhaps the just a judge would also consider the proper version of the guidelines that this court doesn't act on that point specifically are you saying that the evidence was insufficient for years before he knew that mr costin manya who's the alleged victim and who was the victim in this case he was involved in this jail setting up the business deal participating in writing a report that helped the company get out of bankruptcy and working together with other partners who are there's not been no allegations there was never any evidence that the other individuals involved in  group were fraudulent fraudulent partners in any crime so mr sullivan is presenting a prior european buyer for this company two years prior to the time he was introduced to mr close to mine yeah and of any corporation here there's nothing to show there's nothing to show that new field existed any place within very very simple to come forward even with a piece of letterhead or a business card wouldn't  women would have been very simple for the defense to come for was something to show that this corporation existed the defense has no obligation to present evidence in a criminal case the government's obligation to prove beyond a reasonable doubt its contentions and for two years mr sullivan is involved with this company and present with q e p and presenting information about this european investment company and then two years later he's introduced to a nother buyer potential buyer and and then the government's to you shortly right shortly before but the timing of the payment to your client and the timing of the payment that was due on the house were a day the part or under due process the power to just missed the indictment in a case where the government affirmatively misled the grand jury now it's true that the government does not have to follow on hearsay rules or other rules of evidence and the government may offer summary witness an agent to testify before the grand jury but this agent in this case testified affirmatively that there were more multiple sources of the information that he got from one person a very you know individual who  is merely a shell company and then when asked how does he know that he said i got that information from the interviews conducted interviews plural conducted by agents plural and so that's the affirmative misrepresentation that  fisher that the only information what that does is the permanently mislead the grand jury into believing that the f b i corroborated his claim and that they had multiple sources of information that new field was a shell company that had no investors and no value w closest case authority you're in line upon to support your argument the manga i think i'm pronouncing it right but the error was compounded because then the prosecutor goes on to lead the agent through a series of questions one hold that only were knowingly perjured testimony is presented is there grounds for dismissal are you making the assertion that the prosecutor in this case knowingly presented perjured testimony to the prosecutor perhaps did not ask a question designed to elicit the false impression but once it was revealed certainly prosecutors have an obligation to correct the false information testimony from their own agent when they hear it and they're standing there in the grand jury room when they hear that agent had testified especially falsely created a false impression by his testimony it's our fault certainly it wasn't a direct lie but it created the false impression a that's a question of degree and certainly i think because the prosecutor then first didn't correct it and then went on with this series of yes or no questions designed to take the grand jury to tell the grand jury what the opinion of the agent was without couching it in terms of opinion but rather catching it as if it were fact and that i've quoted the testimony of the agent  have that on the top of my in my hand which wanted to let me ask you a question i think you have a good argument is to design a way sion of the house the house was actually sold about six months later as i recall is there anything in the record to show your client was prejudiced saves a big swing in the market on housing or anything that was not in the record your honor but it isn't the record that my client paid eighteen thousand dollars in expenses that he was contractually required to do and  stand on behalf of the united states i'd like to address the first issue that was addressed by council this morning with regard to the inaccurate or the in a political sentencing guidelines that were applied in this case i'd like to address the issue under the plain error analysis in this case because frankly those issues were not raised and they were raised in the revival to suggest that it was error for the district court to apply the two thousand nine hundred ninety seven as opposed to the two thousand and two is also an error and i realize that a lot of the discussion that i'm going to have today with the court is under the plane error analysis but in this case the government was there and the government usually is pretty careful about making sure there's no sentencing here as they don't have to have it agree that there was a problem and i will tell the court why again this is not part of the record but in this particular case the guidelines changed drastically when dealing with loss calculations between the one thousand nine hundred seven guidelines and the two thousand and two specifically in the area definition of lost in this particular case there was a possible of bill of the of the government to seek losses in the efforts that mr cost him on you went to collect on the monies in the form of attorney's fees under the foreseeability analysis in this case and that was because mr sullivan had a twenty two year past history a project on conduct in which judgments were entered against him for what the government term was mr cost money in addition to losing his three hundred ninety four thousand had to alternately litigate this case for two and a half years at a minimum it took five years between the time he gave the money and he got some sort of stipulated hundred seven because the foreseeability the in two thousand and two thousand and one the guidelines changed drastically that argument with regard to the foreseeability analysis as to the effort eyes were more favorable to the defendant i'm not following your argument because your honor because it was not raised at the district court level the parties were not able to address that and i was frankly cannot remember that after the sentencing after the conviction that this is practice for me counsel often asked what is your position with regard to last and i frankly do not remember whether i discussed that matter with mr with the defense counsel that case  course if we send it back for a book or the district court's going to look at this i understand even if the plane or even if counsel waived it because they didn't have it in a blue grief if we do a book or it's bound to come up and the two o two is going to be on the table to go to is going be on the table we have started been following the policy that we need to let the district court look at these bookers at least we've talked about why shouldn't we let the district court take the first cut of whether booker requires something different there is as indicated perhaps some parts councils argued quite well that there are some areas that are not discretionary may turn out a little different your honor in this case the district court considered both a downward departure and an upward departure request by the government balanced out the information i think that all parties would agree in this case that information was supplied with regards to the defendant in this case and information was provided by the government with regard to a vigorous case as to where this defendant should be sentenced in this case applying plain error with regard to the book or analysis there is no prejudice that would result from this defendant because the district court had an opportunity to downward depart the district court felt and balanced carefully whether or not taking these considerations into a fact based upon the defendant's past year past history as well as the conduct in this case to make a difference it may your honor but if it isn't the analysis on the plane air that we it may make a decision or is there an ultimate prejudice if the court is going to find that in all these cases all cases that are present presently before  issues were not ones that could be considered as the basis for down a park and but now they can't be to me that would be a different case your honor but in this case the district court didn't find that well he balance the court balance didn't say i'm i'm i'm guarded you know i must apply this guideline i must i must do this therefore that's what i'm doing he didn't do that the district court didn't do that and that's what i'm saying distinguishes this case maybe from from your typical case court was presented with a motion for down departure and did a balancing test right there said well i've looked if it's stuff and i've looked at your past conduct including defense conduct and i feel that the forty six months is appropriate now the district judge did not say well i'm bound by the guidelines therefore i'm not to say that the law says i understand that your honor but i think that in looking at the prejudiced wrong that this court must take that into consideration in the plain error analysis because in that particular case with regard to the book or if you're not with regard to the sentencing guideline application but with regard to the book or the government the government says that there was air in the air was playing what we're looking at in the book or analysis in the prejudiced prong and again the government asserts that that is not met for the reasons stated i'd like to address the prosecutor misconduct because i think that is also based conduct the defense had the opportunity to bring that or at least at the minimum to bring a motion for a new trial and that was not raised but to suggest that the agent gave false testimony is inaccurate in this case because this page and i mean again this is the issues outside of the record but to assume that was in fact the case is should not be assumed by this court you understand you correctly there was no this was never raised in the district court there was no moving absolutely not there was motion to dismiss the indictment and that was based upon that the government was a collection agency for mr costin manya that was considered and denied by the district court had not based on grand jury in this case it was not based upon a grand jury misconduct the defense raises an issue in the opening brief that states that well the defense did not have an opportunity because they were not provided with the grand jury transcript in its replied were and its in its response for it the government points out the collection agency and again failed to raise such an issue so i think i take offense to the fact that there was prosperity misconduct in this court reviews it at this level based upon perjured testimony or some sort of false testimony which is inaccurate which is inaccurate in this case because you can at trial you can see that mr delamater testified as to the efforts that he went to you can look at the efforts that agent went to in this particular case in this particular case with regard to the hundred thousand and we pointed that out in the brief i'd like to address the issue of restitution in this case because i think that that is is of some importance in this particular case  to have some difficulty with the thing to get credit for mortgage payments paxson insurance after the transfer occurred was that i didn't use discretion the crown court not to consider that no it was not your honor because again this particular issue was not raised at the district court level that is subject to plain error analysis with regards to the there's two parts of this restitution are going and one is the prejudgment what i would call the pre judgment interest section now in this case while we're talking about prejudgment interest is not because the government asked for all prejudgment interest be applied from the time he gave the money between the periods of august and october of one nine hundred ninety seven to the dat sentencing what we're talking about here is the stipulated judgment entered into november of two thousand and two which states that the money given by the defendant in july of two thousand will be apportioned accordingly that's what we're talking about prejudgment interest the government did not ask for pre judgment interest from july of two thousand all the way to the date of sentencing in this particular case but the reason the government points out the  and the the subsequent cases what we believe to be case law supportive of this position while not directly on point but supportive of prejudgment interest is the defense characterization of this prejudgment interest the stipulated judgment itself says that th subsection f which was also pointed out by the government but that read in that context is dealing with post judge much administration as to where monies will be applied that has nothing to do with judgement it is something that prejudgment interest i think is calculated there's nothing that bars it and in this case again we are not asking for pre judgment interest from august one thousand nine hundred seven all the way to sentencing we are just doing an apportion here agreed to it and therefore it is correct and under a plane air i don't think it's subject to suit to prejudice by the defense because the defendant agreed to it and says that this amount shall go to this now th additional issue which i think is of of even more concern for the government is this valuation process that the last part of the restitution and in this particular case was pointed out in the government's grieve the victim gave cash to the defendant after five years of litigation extent of this defendant eventually then transferred the home back to back to the victim in this case the victim thereupon sold the residence in this case six months later yes your honor yes your honor now in again not part of the record but in my discussions with there was a certain point in time where solomon's wife was still residing in the residence and but i don't think it was not for that full six month period could not recall exactly when that was but again this was not raised therefore it's plain error analysis but he was making the mortgage payments pursuant to the stipulated judgment and also keep in mind that the defendant's wife was there for a portion ok that you are arguing that not that we should have to you should be entitled some kind of off debt based on what some kind of an equitable lease back or something well i mean there is you know to to give you a sequence of the record this is why the victim did what he did for six months i can i can tell you i'm sure the victim wanted his money and didn't want the house keeping in mind that this is an out of state transaction where i would have to sell the house out from underneath them at any time he's got title to the house he doesn't have to wait six months to get it he's got title he can sell it well if you want his money now he doesn't have to wait for six months left on to the house right not necessarily your honor and i think that  the court can see transactions in which it's not that easy for somebody to sell a house if you still have attended in there because there are certain i'm not familiar with indiana law i don't know why there was a six month period of time there but what is the prejudiced to the defendant in this case as a result of that mr costin mine you sold the residence converted to cash and i think it's appropriate that he be given in converting that there's nothing he didn't take any extra expenses or do any lavish where he somehow padding the bill this is what he got out of it he gave cash he converted it back to cash there's nothing in the record to say what was the value here as opposed to the value or it could have been higher after six months at least now understand that there's two different questions here o the carmel's fairly rural and probably not dramatic swings in that in the real estate market in carmel over that six month period the more important question to me is that is the eighteen thousand dollars in payments that that mr  to make for which he doesn't appear to be got any credit now that just you know that i see my time is on my answer the question is with regard to the payments those payments would obviously be applied should you give it a dollar for dollar credit and i think not because those those amounts are going to pay the mortgage which then brings down the principal and pays interest on the loan in this particular case and again we don't know at what point in time mrs sullivan left case there is nothing to suggest that there is an error because we pointed out that that particular provision of the mandatory restitution act and i realize that the court may not want to address that but that doesn't that preclude it doesn't apply because of how the mandatory restitution act is written when property is lost or damaged the return of the property not property but the property it suggest that when you lose like a car or something like that that property comes back it's a very difficult to make the victim full restitution in this context when you take property in one form and then are given it back in another form it doesn't it doesn't apply if congress intended it to be a property or property it would have said it but it sa i don't know what vehicle i could have done that at the time the trial hadn't even started at the time the property was trance there's no vehicle for the government to exercise such an option or a remedy for the government that mr costa my god doesn't he doesn't need the house he doesn't care a whit about the house any reasonable victim do i'll tell you what i would take the house because as we showed in the record there was plenty of money in mr sullivan account to pay mr costin manju he didn't he was stalling i'll tell you what i would never tell any victims waited out yes the wishes to to do it another way i don't think that's consistent with the mandatory restitution actually give a victim full compensation there's nothing here that i believe that mr cost him on you did wrong he did everything right after five years of trying to get its money quickly point out in my excerpts of record page one forty one paragraph three which is this stipulated judgment specifically says that the defendant shall be cracked well i guess he was the defendant that mr sullivan shall be credited against these interest payments provision then should have been honored and that would have given him credit for that with regard to which guidelines version apply now the government is saying that oh they could have jacked up the amount of loss too by adding in mr cossey money as attorney