thank you judge good morning mr callahan andrew for ish bond on petitions should be limited but this is an extreme case and i want to start by pointing out what the government said about the ninety six million dollars on the day of callahan's guilty plea this is an exhibit before the court and also in district court it's one of the government's press releases about mr callaghan's guilty plea and it says earlier today callahan pleaded guilty operating a ninety six million dollars ponzi scheme and then a little bit further down it says when sentenced he faces up to so many years in prison and the payment of approximately ninety six million dollars in restitution so of paragraph twenty two of the indictment paragraph thirty nine of the p s r the letter to judge bad in april of two thousand and fourteen just a few weeks before the guilty plea didn't make clear that the value of the fraud absent credits was ninety six million dollars not a penny more the press release their contemporaneous statement that they did it i couldn't disagree more judge cashman it's a question a reasonable expectation it's a question of looking at the facts and determining what the parties expectations were this is miserable this is wilson the parties had a very different view as to what this crime was the government thinks it's a made up style ponzi scheme and they're entitled to that view callahan believes he lied about the panoramic view and his familial relationship with manson because they thought it was a good investment and they wanted to do me answer that question i want to come back to your honor's earlier question as well i want to tie that up when the court dismissed the direct appeal on surface you could have assumed or the panel could have assumed well i don't we don't see why there's a breach here counsel didn't raise a breach there's not enough of a record and whether we agree with that or not it's a reasonable way of looking at the at the record as it stood at that time now we know a lot more that's off the record that we've advanced we know that there was we know that there's callahan's declaration and the associated e mails with counsel about what he believed he was pleading guilty to and what he said to counsel at sentencing which is the government is conflating two separate transactions that's a quote they've shifted the entire debate of laws on this question and there was no strategy defense counsel essentially said i've skimmed the brief let's not let's not do anything let's just be done let's not annoy judge back he didn't understand it appreciate it couldn't have its case is too complicated in thirty six hours that wasn't the same lawyer with the plea that's one thing the spreadsheet the spreadsheet that we didn't get until earlier this year enabled us for the st time to understand the government's math and to analyze and understand where the one hundred and forty million dollars came from what's the difference between the one hundred and forty dollars in the one thousand and to see that you could allocate credits we don't think allan's a title to all the credits to a spreadsheet enabled us to allocate credits to the allegations of the indictment there's the mazhar as work which is an exhibit below and i think in the exhibit in this court that certainly it's part of the record the declaration of the expert florio i want to come back to what your honor said because the indictment said it's ninety six million dollars everything indictment pre sentence report press releases just be there just for one second that when you were talking about the ninety six million at the time of the plea agreement people were talking about intended loss and that that was the way it was and that was the way it was characterized what was in the mind of the what did the defendant intend is a result of this the loss from his intentions and that's that that is very different from an actual loss calculation which is a different a different calculational together and i i think that the one of the problems in this case is those two concepts have been have been confused then he went into a totally different calculation he looked at the overall outlays of people in favor of this of this of defendants actually act actions and then look at offsets so that they seem to be different you're out of the statutes that are the commentary to the guideline to talk about these credits the one that talks about collateral the one that talks about value before the crime is detected both are headed the heading of that talks about loss it doesn't talk about intended  level that would that would factor into the determination of what the range would be but then a further determination if you know at the time of sentence when all this information was was me made available which is a different time and the ninety six million dollars was not whether its intent or actual the ninety six million dollars was not an arbitrary number that they could fill in later it was the value of the fraud intent or actual and it was understood that it did not include credits against loss it couldn't have the panoramic view which was estimated to be worth of the time fifty dollars to eighty eight million dollars had not yet been sold we didn't know that we didn't callahan's records and we entitle to credits yes absolutely and they don't and they don't go to the contrary in fact if you look at their sentencing letter of september two thousand and seventeen they say here are the credits are one hundred and twenty million dollars which we're putting forth for guideline purposes that's their language the panoramic view was sign declaration of any of the defense lawyers in this case this case has been fully briefed and your honor has the government's response as an exhibit to my papers to the response to the petition there's no competing affidavits many of the defense lawyers below refuting report it says that ninety six million dollars is the amount in appropriately used the press release talks about the need for restitution of ninety six million dollars at sentencing the indictment talks about ninety six million dollars the frog before anyone could have known what the value of the credits were which didn't happen until close to the sentencing the ninety six million dollars whether it's intent or actual was their number the number they choose which everyone understood was before credits which there would be and judge back three weeks before the police said the panoramic view was being marketed for the benefit of victims i believe it's worth fifty two to eighty eight million dollars i think the issue was whether it was going to be sold at a particular option at that time  understanding that there would be credits and might be well below that range right exactly and so what happened judge walker is that instead of starting with the ninety six million dollars which he understood whether or not he understood and i don't think anyone did on the defense side with the ninety six million actually represented except that it was lost there was how they calculated that last we couldn't say but we knew it was lost absent credits he had a reasonable expectation to believe that once we see the credits that number is going to be below he did not have the ability at the time of plea no defendant does to say to the government listen you've got to you've got to calculate credits you've got to put that in to reflect the plead we meant what he pled guilty to what he agreed to judge walker was that ninety six one million dollars was the value of the loss that would then be adjusted at sentencing for credits what happened in this case is that for the st time two days before sentencing the government increased the ninety six million dollar fraud loss they said  ninety six dollars is what we said in the press release in the indictment to the probation department for the p s r it's in your plea agreement we're changing it to one hundred and forty million dollars the question is the reasonable expectation of the parties but certainly callahan when he agreed to that ninety six million dollars it was a fixed number that that related to the value of the lost it wasn't the number that they could change to accommodate credits later that was the expectation of the parties and there was nothing from the government with regard to the defense lawyers in this case at plea or at sentencing to refute what his understanding was and this is one more point i know him over time if i can make this one more important point the indictment acknowledged innocent conduct non criminal conduct conduct that was above and beyond the ninety six million dollars we know that so at least because the number of total raised at the time was represented to be one hundred and eighteen million dollars later it became one hundred and forty million dollars that delta includes innocent conduct he could not have had a reasonable expectation he could not have had a reasonable expectation that that ninety six million dollars could be increased after he pled guilty to include the value of conduct which the government in the indictment said was not fraudulent ling intended and was not criminal conduct it's not enough to say well we did the math and we come out to below ninety six million dollars he was entitle in his mind to have a reasonable expectation that that was the value of the last and in his mind that he knew say all the pain around if you value of redemptions that number would come lower and reflect the crime that he will eat committed he did not have the bargaining power at the time of the police no defendant does to say listen i disagree with us as to have you got to put credits and you've got to get me let me plead guilty to something else can't force them look maybe the defense lawyer it at at the police should have said judge we haven't calculated credit yet but i think that was self evident that they hadn't calculated credits it's a ninety six million dollars fraud lost before credits we could not afford and even if he said that even if defense lawyer the police said you know there's credits coming the government wouldn't be bound by that statement they didn't have to agree to it they certainly didn't have to put in the police agreement whatever that happened that the plea agreement set the benchmark of three hundred and twenty seven months  the plea assuming they didn't breach the agreement assuming they didn't violate the reasonable expectation of the parties judge walker that the ninety six million dollars was the fraud was used is generally speaking two parts to it to calculating wants there is fixing the loss which is typically what you see almost always what you see in a plea agreement that's the value of the loss and at some point typically before sentencing i'm sure there are other cases and exceptions that's where you talk about credits when callahan as a matter of fact mistakes that step step back for a nd and a matter of fact this is not a ninety six million dollar ponzi scheme this is a case where the sale of the panoramic view by their own admission in their letter of september two thousand and seventeen says they got back forty million three hundred thousand dollars when only thirty eight million dollars was diverted to it this is a case that produced a gain as a matter of fact and what the government did is increase the value of loss just before sentencing from the ninety six million dollars that everyone understood it was to include non criminal conduct so they could back into a number that was below the guideline range in the police remit under mrs l under we'll send you can't do that under all the other cases that talk about breach of the plea agreement you cannot do that courts here to decide whether the district court should have granted bail to a defendant whose conviction has been convicted whose conviction has been affirmed and he's serving a sentence of twelve years he's a year and a half into that's what the courts here to decide and i think when you look at this court's precedent statements like this is a limited power to be used only in special cases exceptional cases where can show a high probability of success where defects are readily apparent from the petition that a district court can predict with confidence that it's going to there's i'm not your own i'm just what i want to bring us back to is is the is what we're here to decide now we're not here to decide the merits today where exactly that's going to be decided the district court level and then it will be for a subsequent panel to decide that's not what's been decided now what's being decided now is the extraordinary relief that this defendant is seeking and the extra relief is you're a year and a half into a twelve year sentence for a defendant who's been convicted who is not any different than any other he defendant serving his sentence having his conviction affirmed on appeal whether he's entitled to this extraordinary relief and i believe you know in our position the government's position is that the district court correctly concluded that he didn't meet either of the standards set forth by this court st he's got to show the high probability of success the district court presiding over the case for approximately six years having seen firsthand the observation observing firsthand the effectiveness of defense counsel these were extremely talented intelligent experienced criminal defense attorneys that were retained by mr callahan both at sentencing and at the police the he also the judge was also able to observe the government's conduct throughout and it's good faith throughout all these proceedings and seeing that the government advocated for a sentence that was seventy or eighty four months less than at the at the police stage this court is t here to determine whether or not that that determination was a was the correct one and i submit that it was when you look at the nd prong also you've got extraordinary circumstances that the defendant has to demonstrate which he utterly fails to do this court made it clear that continued confinement is not a sufficient basis to find extraordinary circumstances and there's no reason to disturb that holding we were bound by that present the defendant just cannot satisfy either of the two prongs and so the taking out as there will be a time where the merits will be decided by the district court and then mr callahan can take it up on appeal where he can raise these issues this is just not the appropriate forum and and for those reasons if the court doesn't have any additional questions will rest on our papers thank you manner that the plea agreement did not anticipate it's not a question of whether down the line a calculation can be done that results in a number that fits in with the range it's whether according to the court the sentence was reached in a manner that the plea agreement did not anticipate if the plea agreement has in it supported by all the other documents all the all the press releases and the pre sentence report and everything else that the fraud loss was ninety six million dollars and the defendant believes he's entitled to credits which i believe under the law he was and they haven't that they haven't denied that he's entitled reasonably do expect the government to stand by its representation the term in its plea agreement that the value of the reference to as a ceiling to recalculate and violate the reasonable expectations of callahan and the parties the reason we're here although this is the unusual posture where the case is in fact fully briefed the reason we're talking about the me i really do but i want to make one point on this but i think this is a practical effect and i think it's very important people like callahan don't have any bargaining position someone like callahan knows he committed a crime a serious crime but he also knows he didn't commit in his view he's entitled to it and made off style ponzi scheme he's not bernie made off there's real investments at one hundred and twenty million dollars of value he can't force these  he wants to plead guilty and accept responsibility for what he did he also wants to get sentenced for what he believes that he did and not get sentenced based on the government's with what he believes is a more exaggerated view so he looks at their plea agreement and the plead greenman says ninety six million dollars fraud loss and he knows from judge bad alone that this panoramic view is going to be sold for as much as eighty eight million dollars doesn't have the mortgages are going to work out he doesn't know precisely but he relies on that representation not because it's an arbitrary number stamped on a show that the government can say well we'll make it last we'll make it one for you will back into it it's the fraud loss that he believed was the accurate number from which he then believed he would get credits and as it turns out the credits are in excess of ninety six million dollars that reflects the crime that he committed and i believe that he's sitting in jail right now for a crime that he did not commit especially because under the government's analysis they have put into the case with one hundred and forty million dollars precisely the non criminal conduct the conduct which they say in their indictment he did not fraudulent intend that's where we are today most respectfully