court please unlike you served three minutes for a bottle my clients michael wick was indicted for income tax evasion and he sought rather early on to get some kind of a plea bargain that was acceptable to him he sought the advice of four different lawyers and he told them all that he wanted very much to plead guilty but that he was afraid of going to prison and while he would agree to take to a plea that would risk prison he wanted at least a chance that the judge could somehow s something other than prison for all of his attorneys testified but all that that was his uniform consistent position what he didn't know what none of those attorneys told him was that the plea bargain that was offered him by the government provided exactly what he told his lawyers he wanted which was a chance however remote a chance of a sentence that would not send him to prison and the plea bargain that was offered to him call or the minimum guidelines would be five months imprisonment and five months in home confinement but what michael wick was not told by any of these lawyers was that the five months imprisonment at that time was viewed by the bureau of prisons as authorizing and making desirable the sending of appropriate nonviolent violators bargain thing took place and that was rescinded by the department of justice only in the year two thousand now let me let me stop you there because it's one question i had after the briefing is at the end of the day let's say we granted your client relief what does that get him i'm sorry given that the program has extinguished well he would not have that opportunity today  entirely persuaded that we can that there reinstatement that necessarily reinstates the bureau of prisons program because that is an administrative program that's not necessarily part of the sentence it's not what not part of the or what what forms the basis of your belief that under today's administrative regulations that your clients would your client would receive the benefit of the bargain that he would have had remedy it's not recent and sitting in the traditional sense he is has a cost to show right now to the sentence approximating what he would have received which i my mind ran on that first judge gruber of the the judge that we should be concerned about is a hypothetical ordinary average judge not judge killer but this hypothetical judge and as our expert witness testified below michael wick was a perfect candidate for such a recommendation and such a disposition by the bureau of prisons he had no criminal record whatsoever he was clearly nonviolent white collar as white a white collar crime as one can imagine and  also he would have had some plea bargaining leverage by virtue of the undisclosed suppressed evidence that he had a mental illness which would arguabl somewhat mitigating to the typical average judge it's hard for me to imagine why it would be supposed that this typical average judge would have opposed a refused to make that recommendation if the it was consistent with the policy of the your prisons the judge did give michael work at the lower end of the guideline range it was the government agreed that he should have the or end of the guard line range had this been suppressed mental illness evidence gone into the point of bargaining picture the there would be two reasons for the plea guilty and actually predicting whether the judge would have made the recommendation is relevant to the appropriate remedy at this stage but it is not relevant to the question of prejudice because the prejudice question is answered if it is reasonably probable that michael wick having been adequately represented would have pled michael wick testified that he would have put guilty in a heartbeat so we need to separate the question of would he have pled guilty in which case he has clearly been adversely affected by ineffective assistance and the second question which would be what is the likely sentence that he would receive and it seems to me that my burden should not be any greater than to show that in that he probably would have received the recommendation and he probably would have gone to a halfway house and seems to me the record is fairly strong that that is the likely outcome  on the question of ineffective assistance the first lawyer who markowitz said i'm terrified of prison his pets this is david bossie his response was to try to persuade mr wick that pres prison wasn't as violent as he had been led to understand and he brought in a former client to been to prison and met with wic that did not provide sufficient reassures to mr wick but in the course of that mr whip asked mr bossie wouldn't help my plea bargaining position if the judge or a prosecutor knew that i had been diagnosed manic depressive by the mayo clinic and mr bossie said not at all that would not help you at all we don't want that to come out because that could if you're convicted that kind of information could put you in a mental hospital were lots of violent people are so let's keep that to ourselves judge keller said that was a birdbrain  of advice and found that mr bossie was guilty of malpractise both for giving that advice for failing to investigate the evidence of mental disorder and for failing to communicate it to trial counsel mr conley judge keller found found however that it was not prejudicial because he didn't think it would may have made any difference in the outcome notwithstanding the fact that the mental illness evidence had many strands of potential value to the defendant the defendant says testified that had he known there was a possibility of a downward departure for mental illness he would have pled guilty now the court doesn't necessarily have to accept what he says but given what he told all of his lawyers that testimony would be entirely consistent with what he told them but the the most egregious malpractise in this case was who was the trial counsel who engaged in the plea bargaining with the prosecutor who represented mr witt for approximately six months and negotiated a couple of plea bargains testified that he testified that at no point if he advised mr wick of the likely outcome of the trial and i asked him how is  defendant supposed to know whether he has a good deal on the table if his lawyer doesn't tell him and this to conley's response was it is not my practice to tell my clients whether they have a good deal or not mr conley also testified that consistent with what all the other warrior said is that what mr wick wanted was a chance of not going to prison and mr connelly admitted on cross examination that the plea bargain on the table gave him that chance of not going to prison mr conley said yes if he got the judge's recommendation and if the bureau of prisons went along with it he would not go to prison so that the plea bargaining that the plea bargain that he rejected was exactly what he had been asking for but mr conley did not bother to tell america and mr conley knew of the bureau of prisons practice he testified twice on that subject but he admitted that he never bothered to tell his client mr wick that the plea bargain on the table would get him the exactly what he had been an actor now there's only real question what well will judge keller pope that that was not in effect of assistance that is clearly erroneous for many many reasons seems to me the real question is the one a prejudice because he wanted to guarantee a probation eligibility but if you look at what judge keller cited as evidence of that he cited mr w of only where mr wicks said i didn't want to agree to something that would guarantee i was going to prison so judge keller misunderstood what mr wick  repeatedly i don't want to go who didn't want to agree to any deal that would guarantee absolutely i was going to prison i wanted this shot at something else and there is no testimony by anybody in the record below inconsistent with that system so that i submit there is no question that mr connelly was guilty of gross malpractise in three respect and the result of that was almost certainly that mr wick did not plead guilty as evidence of mr wix desire to plead guilty to anything that would give him a written plea offers exposed him to the possibility of prison one of them exposed him the possibility of fifteen months in prison and he said his cover letter to the prosecutor or ice cover letter to mr so had mr wix mental illness been properly developed used as plea bargaining leverage had the bureau of prisons practice been explained to or known to mr wick there can hardly be a doubt that he would have pled guilty in the event there is no contrary evidence and his testimony could not possibly have been better or more other attorneys and bosie in addition so five attorneys looked at this count for plea offer and not one mention the bureau of prisons policy and judge keller judge also found that work was not prejudiced by not being told of your own president's policy because he wouldn't have accepted the offer based on  policy and let me step back for a second i want to emphasize that this count for plea offer was better than the prosecutor intended i mean he intended on he first made the offer or talked about an offer on count five and he got prosecutor said i would recommend that the lower end which is what he thought he was going to recommend twelve months well they knew the prosecutor didn't know about the change in the past last tables and hoodwinked him into making him there's just no doubt about that this was a very good deal for mr wick and he was unlikely to do any better as a sentence and you'd have to agree with that he rejected it because he has a fear of going to prison now he was told that he would go to a prison camp and he has this fear he says i'm not going to take any deal that says i'm going to get incarcerated even if it's prison camp and even if you tell me now what his what where would he be placed under the bureau present policy communing confinement communal living arrangements at night which raise the exacting fears that we cast with the guard pri camp yes under the community confinement i'm like a prison camp he can go out during the day into his place of work but at night he returns to communal confinement and that raises all the exact same issues that is the reason why he rejected prison camp as a placement yet you also take their argument all the way to the end you tell with about it you judge they already got one windfall by getting this count for off or don't give him a double windfall by recommending that he get this bureau of prisons placement and i would submit to you that a rational objective judge sank would say you know government at this time i'm going to hold you to your to the fact that you got hoodwinked but i'm not going to recommend that well of course the judge would accept the plea agreement not with you but he or she would not evidence of his bipolar diagnosis i've been presented to the prosecutor the prosecutor would have made it even better offer than he made and i'm telling you that the offer that was on the table was better than the prosecutor had intended he would not have provided a better offer case but it seems to me the problem with your side of the case is that there was a very good deal on the table and the trial attorney did not recommend it so many to me there is if you look at the cases and insufficient evidence in the record for the judge to have found we wanted to be probation eligible is just ridiculous because all the the attorneys testify that d letter to prosecutor larry moore sa it happened over a long period of time you know there's a lot of factual findings of the judge that they playing just ignore or they say the judge didn't find it where you know when the record clearly clearly shows that he did and he said look at this deal get me a deal that gets me probation because i'm not going to prison ok stoking him and look it over and next to that two offers one is stipulate you know if boston has its influence over where you know why did he go against boss he's expressed counsel to accept the police well he's scared to death to prison so you have to remember that even if you know attorney the case would be different but you know every time where i didn't like what he heard he went to a different attorney and you know so can you know there's no prejudice here because everything you know they focus on college ignoring her and the other attorneys hammon and stoking who gave him good advice and it's clear that you want to be probation eligible and you know that's why we're here today means right we testified you know he asked why did you reject the count for offer it provides you five and five it was a good offer why did you says i could not in wouldn't accept the plea that on its face said i had to go to prison well even with the bureau prison policy on its face it said he had to go to prison so i mean which own testimony cuts against the argument that if i had been told about the p prison policy i would have accepted because he testified during evidentiary hearing that the reason he rejected the count forces said on his face they had to go to prison now judge heller you know he heard all this evidence about the diagnoses  listen to advice that he didn't like and if he had been told not to tell you know other attorneys who went to follow that and i think the fact that there are ten attorneys in this case plus more than ten illustrates the strength of friend and his counsel because the person who came the bad advice was don will not miss attorney count four that allegedly the prosecution was hoodwinked into in either case the bureau of prisons practice would apply and he would spend his period of imprisonment in a halfway  the judge so recommended i don't know what mr lyons his point is about that attorney stuckey and victor all soul failing to advised mr wick about the bureau of prisons practice there's no doubt that they did fail to do that we certainly do not concede that they were not guilty of malpractise it is simply not part of our pleadings that they were guilty we pointed out that it's just not necessary to decide whether they were guilty of malpractise or not the point is had they been veteran lawyers and advised him of the  plea bargain to get all he came to mr witt brought him this plea offer and asked him if he could figure out a way to give him a shot at avoiding prison and he obviously didn't do the research on probation eligible that's why there's so much talk of probation held only because the lawyers thought that was the only way he could avoid prison except calmly knew better he knew there was another way to avoid