we now have an appeal challenge that spans two cases united states versus brenner min and united states he blacks and specific group would like to hear these together and though we have allotted time each i think it makes more sense to give you ten minutes each and we'll hear your arguments court my name is miranda fritz i represent mr brennan pointed out we're here on an appeal from a detention what we have is a circumstance where my client sits detained in a white collar case where we are currently preparing for trial the trial is scheduled to begin in a couple of weeks this is occurred under circumstances where there is nothing so unusual nothing so out of the norm in this case as to support a finding that there are no set of conditions that would ensure his appearance just by way of brief background how did we get here today this began with an underlying civil case in front of judge kaplan my client was accused or the corporate defendant was accused of failure to produce documents it was in that context that judge kaplan referred this matter to the united states attorney's office for criminal prosecution the u attorney's office took the matter up and sure enough filed a petition against my client for criminal contempt now my client is a british citizen who resides in london and in nevada with no criminal history and so at that moment in time when the criminal charge was being was filed by the u s attorney's office there was a very clear indication of what their view was with respect to bail there was an ex parte hearing held in front of judge kaplan because when they filed a petition that was an ordinary order to show cause directing my client individually as well as the corporate entity to show cause on a particular date in the court as to why there shouldn't be a finding of contempt they filed that petition with that order to show cause the immediate response judge kaplan summoned them to his chambers and objected adamantly to what they had done during the course of that ex parte conversation the u s attorneys laid out plainly their view that there is no risk of flight no indication that this is an individual has any reason scotland in fact the u s attorney's office recounted to judge kaplan that when the petition was filed the first thing that happened was my client called the prosecutor to find out more about what this meant my client by the way was pro se throughout all of these issues the corporation was represented by light them in watkins but my client did not have counsel so he had called the prosecutor all of this  told to judge kaplan but throughout the proceeding judge kaplan is adamant that the u s attorney's office should agree that my client would be arrested that the resources of the u s attorney's office  deployed in order to find and arrest him wherever he was now those were the circumstances that existed as of the filing of the criminal charge against mr burnham and but after that day after the prosecution had that conversation with judge kaplan in chambers it changed considerably and so yes they did locate they sure enough they found mr burnham and he was not surprisingly at his residence in las vegas where he's lived for many many years and so they arrested him at his residence we then ended up in front of judge colleen mcmahon who is no pushover on these kinds of issues and the government at that point shifted dramatically now arguing for detention now bringing up things that had occurred twenty years earlier in connection with my client's life arguing forcefully in front of judgment man that my client should be detained the issues became so convoluted the judgment man sent us all home and we came back for further hearing where evidence was produced to judge mcmahon regarding some of the allegations that the government had made at the conclusion of all of this after the raft of allegations were made by the government literally going back decades judgement man made her decision she set bail she did so based on the following she said yes i see that there's a risk of flight here yes there is but there are also conditions that will ensure his appearance and what were those conditions suffice to say that they were strict three family members cosigned for a p r be one hundred thousand dollars cash was place and there was an electronic bracelet ordered for him with g p s monitoring mr burnham and then satisfied all of those conditions of bail he doesn't actually have a residence in new york and so what we did was we worked with pretrial and arranged for him to occupy a hotel room at the w hotel in hoboken which was less expensive pretrial went in there everything was set up so that he was rigged so that any time that he moved too far from whatever the land devices some horrifying siren went off some understand this ok we have two minutes left and you're not at the point of what what resulted in you clients detention which ok added charges what i'm trying to point out is there was only there's the only change circumstance that occurred is after mcmahon made that decision judgment man i apologize the u s attorney then proceeded to indict on what is a four million dollars charge we've got a record in which judge mcmahon thought that the fact that it was only a contempt charge mitigated the risk of flight and now you've got the added charge and the two judges who detained him thought that that was the factor that tipped the balance the other way you have to tell us why that's air we have cases like this i've been doing this for twenty five thirty years we have cases often where there is a fraud the allegation has here is that there was some misstatement that was made to the financing institution in this case i c c this was a fraud charge that was pulled from the underlying civil case it is essentially a rehash of the underlying civil case this fraud charge and the fact that the government intended to assert it was told to to mr burnham and from the moment that he was arrested in las vegas he had absolute knowledge they were absolutely clear from that moment forward in court and otherwise that they were going to go ahead and take the underlying civil case in front of judge kaplan and that there would be a fraud charge asserted nonetheless all and all of this was known to judge mcmahon nonetheless there were conditions that would satisfy what my point is is there is nothing about those charges nothing it is a form million dollars charge where they're not alleging the the fraud associated with the underlying transaction what they're alleging is that he exaggerated where he had offices employees that he had he tried to make his business seem more substantial than it actually was and that that constitutes the fraud he is not this is not the kind of circumstance that would either cause him to want to flee but forth roughly forty forty months as we  calculated so this is not anything that he would seek to flee but more importantly there is no way that he could flee under the conditions that were set by judge mcmahon nor is there any reason to believe that he would destroy or devastate three family members who have come forward to sign these bonds this case is just not that unusual there are conditions that would ensure his appearance we believe the conditions are as set by judgment man we believe that the client has absolutely no reason no incentive to flee these charges nor could he know travel documents an electronic bracelet three family members there is no reason to and he could not conditions can reasonably be sure the defendant's appearance in court if a defendant were released pending trial therefore a judge kaplan's and judge solvents orders detaining the defendant should be found let me begin by pointing out that the court question that's posed here today is not should judge mcmahon's order be reinstated or should judge kaplan's or judge sullivan's orders be upheld the question judgement man's order is not on review in this court the question that's presented is did judge judge did both judge kaplan and judge solving clearly error in concluding that the defendant was a risk of flight such that no conditions or combination of conditions could reasonably assure his appearance in court to address just a couple of brief points one changed circumstances as your honor pointed out both judge kaplan and judge solve and found that the indictment on bank fraud wire fraud conspiracy conspiracy to commit bank and wire fraud and visa fraud was a very significant change circumstance from the simple criminal petition on criminal contempt they are now to cases pending against mr brightman judge kaplan pointed out specifically that just the fact of being having the charges brought whether he was aware of a government investigation in which no charging decision had previously been made or not is likely to encourage him to flee that his experience with the criminal justice system the united states had just changed in a way that could not be undone that even and that he would find that even if the indictment subsequently would be dismissed on grounds that the defense counsel has suggested that he would still find that mr benjamin was such a flight risk that no conditions could be determined judge solve and reach similar conclusion for similar reasons but i also want to point out that mr brennan in as defense counsel pointed out did not appear to be individually represented at some prior period but mr brennan minutes far as the government can tell the only person that is a member of black sounds that the company is mr brown i mean mr brennan is the company the employees that have been identified it appears defense counsel may be conceding were counsel finally i just want to clarify the government's position did change over time it always viewed in the record from the next party conference with judge kaplan it's clear that the government did not object to an arrest warrant and specifically stated that it would be appropriate  judge to issue one but from that conference in early march through mr berman's indictment in late may an enormous amount of investigative efforts that things change substantially the amount of information the government learned about mr burnham and his company was enormous he has been very effective at perpetrating this fraud for many years and to outward appearances it appears to be a real company that might have real operations that is not the case the government tends to prove that a trial at two trials this fall however that is why the government's position changed it was not an indication by any judge or anyone else it is simply that the facts dictate the way the government approaches mr burnham in any case and less or any more questions the government will rest on its papers than it is presently that's correct  so let's focus on the mail and wire fraud indictment as the changed circumstance and the event that is the warrants this kind of detention and i'm going to ask your honour's to consider where an individual is alleged to have engaged in a bank fraud based on misrepresenting his the extent of his own business operations no fraud with respect to the transaction secured financing case i do i do and this is again having having lived this for decades there is no case that i have ever seen where detention was s and obtained under these circumstances this is not an unusual fraud case and the loss is not so significant as to suggest that there's any incentive to flee yes there is something unusual about this case and we all know it but the fraud case itself if your honour's would simply look at that as a case that is being brought by the u s attorney's office and consider whether that would possibly warrant detention the answer is no the other thing that i would say is the the view that there are no conditions that would ensure his appearance seems to be plainly wrong here at a minimum there are ample conditions that could even be added to what judge mcmahon did we could even augment it with the kinds of things that have been done in other white collar cases  including security guards or other constraints i just want to point out that the government's claim for why the conditions were inadequate is their claim that pretrial services doesn't work on the weekends is in their brief that is their objection to the g p s as a sufficient way to ensure the client's appearance that they don't work at night or on the weekends that's what the government said in its brief we know that's not true we know that's not true of course they work on the weekends we actually went back to double check to make sure g p s monitoring is twenty four seven or would have an awful lot of people that would wait until five o'clock and then decide to go