after the government filed their their breach letter alleging that mr aris who could breached the cooperation agreement that's point two i'm going to go in order i'll start with point one which is the court authored the opinion the united states against lloyd finding similar areas here to be a significant failure the failure could have to establish a factual basis the failure to properly establish all the elements of the offenses bribe i received these payments in part with the intent to influence with respect to warning jobs to rebel and excess of five thousand dollars i know you point to a subsequent part of the plea that you say some question about what what the things were that he was receiving when he said he was receiving payments well but the what i think it doesn't establishes is what the court didn't ask him to concede or to acknowledge  that there was any kind of quid pro quo and i don't think that language that you're on our right to read frankly judge if you had been conducting this elocution it would have been much more detailed you would have read through the indictment you would have asked him to acknowledge the factual basis of the plea none of that was present here nor your honor was it a surprise that prior to the entry of judgment this issue was raised let me back up for a little bit so i st take over the case the st thing i do is contact the attorney for the government and and to confirm that despite the allegations of breach they are going to stand by the commitment a plea agreement that they're going to recommend three points for acceptance of responsibility and the same commitment they made to the probation department that they're that they're going to recommend acceptance points not only that there's a concession that although there won't be a five k letter here we are going to clearly just changed just him clearly he wasn't but the you know the the government's failure here is standing by that portion of the plea agreement that required them to to to to recommend acceptance to go along with  mean that when you breach that's the end of it government's not him and not required to do anything further well i i respectfully disagree with the court i think that you can have both you can have acceptance of responsibility where the well tearing it up and taking the position that he has earned acceptance points are two entirely different things they did they tore up those portions of it that they thought that bound them but the rest of the plea agreement they they consistently held at that and that's what the agreement provided for that that said in paragraph eight that the government would be relieved of certain obligations if he failed to fulfill his his own obligations under certain aspects of the agreement but that would not give him  grounds to withdraw the plea if it was provided right except that post that conduct the attorney for the government confirmed that they nevertheless would not oppose acceptance of responsibility points a the government was was going to go along with that mr is it kind of taking a position totally different from the one that he was the basis for his play he's now saying that these payments were not rives they were payments for activities elsewhere  abroad and so forth taking a totally different position so how does that accepting responsibility for his conduct he accepted responsibility for what he did and that is we made this clear in our in our objection letter that what this allocution wasn't us were getting back to this and what he did was accept unlawful gratuities a lesser offense of program bribery under six hundred and sixty six of title eighteen and that's what that's what we made clear i could you say that again i'm still having trouble understanding why you argue there is not a factual basis for the plate when he said during this period he accepted united states currency from in part with the intent to influence for the spec to corning jobs to a down excess of five thousand dollars i provided benefit in return what is understanding was the attorney for the government had every opportunity to do that one of the arguments you make is that the defendant was denied a proper fatta cohering right and i couldn't figure out what the falco hearing was supposed to be the defendant was called he was permitted to testify about anything he wanted what was it that there was supposed to be a fad to go hearing loss about restitution about all and we virtually objected to everything sure there were there were lots of euro lots of submissions to the court prior to the sentencing hearing on issues such as restitution but and the defendant was permitted to testify of course at the sentencing hearing what was he proved then and from testifying about that that's not how it works if the court's ordering a fabric or your st of all you know about it ahead of time and secondly you establish what the what the issues are and if the court if your honor had a concern about whether or not there was the need to call witnesses you would have you would have asked the attorney for the government's not enough to say call whoever you want in a flippant way which is the way this was addressed that's not how it's sentencing hearings mark should be conducted is not lose a blank slate restitution and so forth and as set forth in our memorandum and in the end in our pending we pointed out simply ten sample jobs that with that that the k p m g analysis relied on right and it was it was a judge you minutes byrd your responsibility at that point was to spawn right no i did respond and we made it unequivocally clear that the k p n jet and m g analysis was fatally flawed that's all i need to do i don't have to prove any more than that than to raise a question as to whether or not the court should be relying on the government submission and that's what the differences here and to simply again flippantly so call whatever you want to that's not how the judges strict conduct you know ahead of time what's going to happen you understand what issues you need to address instead there was radio silence going would you ask for a phatic or hearing prior to everyone knew that the sentencing date was coming up and there had been all of these submissions before was there some request for a fan of cohering on a on a specific issue yes every on every objection we raised including laws including every every everything you could possibly imagine in our in our objection letter indeed beyond that i would constantly e mail the deputy  can we appear can we just get some idea what it is we're appearing for what it is what what issues we should be appeared to address again it's radio silence you show up there's issues and the court starts reading from a prepared opinion most respectfully that's just not how it should be working in a case with these many issues a judge is going to i suspect you're going to tell me i've run overboard that's correct you have several minutes for me but i'll hear from the government good morning your honor please the court my name is turner buford i represent the united states in this presented the united states and some of the post sentencing proceedings relating to bail on appeal but i was not the lead attorney for the bulk of the  case some of the points that were made with respect to the allegation that the government did not keep up its end of the bargain under the plea agreement with respect to communicating the defendant's cooperation to the district court as judge ross i think acknowledge at the moment when the defendant breached the cooperation agreement the government was absolved of that obligation by virtue of the material breach by the defendant nevertheless the government did provide information to judge ross about the information the defendant had given  with respect to acceptance points i recognize from that from the probation report that the government did make that representation but i think what happened after that representation was the defendant began making the arguments about the sufficiency of the in effect arguing that he never accepted and testifying at the sentencing hearing that the payments that he did receive were for unrelated overseas work at that point i think the government did no more than simply one hand arguing there's insufficient factual basis for the plea because he didn't commit the crime that he pled guilty to and on the other hand asking this court in sentencing him to give him three points for taking full responsibility for his  governments relieved i think trying to be reasonable and fair as i think the government was here but if you wanted to i think technically even that representation the government made wouldn't bind it in light of the language in the plea agreement that the material breach absolves the government of its obligations but it certainly would have abided i think by the representation at the defendant not taken the positions that he did during the sentencing and the breaches here  were disclosing by inference if not more explicitly his cooperation with the government failure to fully cooperate and maybe attempted i think at a minimum your honor it would be the former which is disclosure of the existence of the cooperation to somebody without the government's approval that's a breach on its face and then our view of the transcript of the recorded meeting between the defendant and mr king there's no way to read it other than the defendant was in effect offering to perjure  right i know in our brief and this is a point i wanted to make we suggest that in light of the statement of reasons for restitution the court might be able to affirm on the record assuming it agrees that investigative costs at the invitation are request of the government the question left didn't request the financial penalties pending appeal and this is docket number one hundred and seventeen the district court she has a footnote in which she says in her view it's not clear to her that the record as it exists would justify affirming under a law which was decided after the sentencing so in light of that we would respectfully retract our suggestion that this court coud affirm on the record i think there's no from our perspective no choice but to remain to have judge consider that question in the st instance with the court's permission i do want to address one of the restitution arguments made which is that the restitution here is not covered by the end because the offense to which the defendant pleaded guilty to is not an offense against property committed by fraud or deceit we think that this circuit has not yet addressed specifically explicitly what crimes would qualify under that standard but we think this court did in the fin azo case assume without deciding that a travel act violation based on underlying crime of state bribery would be enough to qualify under the m v doesn't have to be an element of the fans as long as it entails some sort of deceit we think that's right if the crime is a matter of fact involves fraud or deceit and i think this is a question that would seem to me that generally are in effect company knowing about it i think that's right you want i don't know that this court has to go quite so far as to say that kickback or bribery offense would always satisfy the i think it might be enough to say that it would do so in this case where the crime was committed by fraud or deceit and judge ross explicitly made witnesses the defendant wanted to as far as the government's aware the defendant made no efforts to have available witnesses from either k p n g or grassy or con ed that the defendant wanted to call and introduce evidence and the defendant in the reply brief says that he's uniquely positioned to opine on the inner workings of konitz bidding process and how it awards contracts and makes payments and yet those topics are not covered in the defendant's own testimony at the  hearing so i think the idea that judges somehow shut off argument or the introduction of evidence with respect to the sentencing amount is not supported by the record and apart from that unless the court as questions will rest mr you have had two minutes so it's just a just a couple of things if i may i st of all one when they say they explained to the court that he provided substantial says it's just not accurate to say they minimized the substantial assistance  provided routinely and at the sentencing so judge was essentially discounted it the other issue judge does work that i think you should be clear on is all they did all k p m g did was take one of these checks that issued with a job number on it and a challenge to the loss to mr resume this was so even in cases where there were jobs that mr unit had nothing to do it so let's assume you accepted it frankly it's preposterous as we set forth in our memorandums carnage internal review system prohibits that from happening in in our in our in our supplemental appendix we outlined to you some of the interviews that were conducted with kannan employees all of the employees are right there they support mr resume version of events in that it is impossible based on their structure and less everyone in the chain of command up until the c is involved in some sort of a criminal act and that was never the government's position here so there was no if the overall cost of the particular bid project being bid on is x and the original original bet is is is is a lesser amount it doesn't matter who approved or how it was approved to get to the to get to x but if they understood initially that the original bet was coming in low then there'd be an up or just meant whether or not resume was involved except that wasn't the case i know that's what the government's theory of the case but there is simply no proof of that mr resume had consistently said otherwise that whatever resume not simply jobs that were within his own section that in and of itself had a chain of command all way up the chain there are purchase release orders and and and and what what sense does it make when there's a nd accounting firm representing the insurance company which is going to be on the hawk does their own audit and comes up with a slightly lower amount  that's slightly more mountains the one that the district court took well and there we go two accounting firms both were essentially wrong in their methodology yes that is it correct that is absolutely correct because they didn't understand the process and all they did was if there was a memo line and a check they entered they included that as a loss to mr resume even though even in jobs that had nothing whatsoever to do with my just address one other point judge i have one more minute that you put on thank you just on it i think was one of the questions you asked what was the fact of the hearing one of our last points was the was the tax restitution issue and that is back in when mr as it was cooperating he filed these tax returns you turned from the government was notified they were filed with the i r s they outlined everything that they were doing and why they were not claiming the forfeited funds as income and then on the eve of sentencing if you turn if the government says well that's not right and the court went along with it that that is plain and simple forfeiture it's the kind of thing the court should have ordered a hearing on it's not something that she should have just accepted and that's simply not the only one but thank you thank you very much well argued will take a matter under advisement we have one more matter