our final case for this morning is united states a perhaps the principal issue to discuss is whether the district court erred when determining what standard to use to evaluate whether or not this was a frivolous or vexatious action by the government  we believe that the district court made a mistake of war with the district court said unequivocally was that to be vexatious or frivolous either one the defendant must first prove at least that the government's action was baseless well look any of the three would do yes to deny the attorneys fees and the hyde amendment and baseless certainly is a feature of frivolousness let's just stick with that for the moment and the district court i thought actually gave a pretty good and thorough account of why  the government's intended prosecution didn't sink to that level the government got a grand jury to indict even without ventrell as testimony there were bank records there were other things they chose for their own good reasons not to go forward without nick's testimony but i not sure i would call baseless and just i think our point is it doesn't have to be baseless we think the judge made a mistake to say not was did not have a reasonable belief that it would be able to prevail in the case with you could have two friends you could you could have a case for the government has a reasonable suspicion where the government has a basis where the government's looked at some records that tells them they want to try to proceed but they reach a point in that case where they know that they cannot reasonably succeed and when they reach that point if they continue it's argued that that meets the definition of frivolousness in the third in six circuit cases that we've cited and i think that's different than saying it's baseless baseless is there's no good reason to begin with you could look at the bank records the judge would was talking about and say well the bank records give us reason to pursue this but in the end we cannot we cannot succeed without the testimony of nick in trouble and then when they reach that point they dropped you know they did they knew that in october to reach a deal what you can get me to do right but i don't think that's that's good enough in fact i think that's worse why did you have a worse i know they have all this other evidence they actually have conversations with nick suggesting that and they say in those conversations he was able to be responsive he was a person who had some problems we both we all understand that but they spend a little bit of time seeing if we can get a break maybe they're still deciding you know we're going to go distance from frivolous no matter whose definition in october of two thousand and fifteen they knew that ventura was going to be able to testify they knew he was dying and i think it is important to note that what they didn't do with that time was say you know what we should get him in and do a video deposition which is done all the time when you have a very ill witness they knew then that this man could never testify they thought he was credible they would have preserved his testimony they may been they did not waiting for some time whether the rest of the evidence which was enough to persuade the grand jury to indict might have done the job and now i mean you know they come to the conclusion maybe because trees access by that time is already in prison i don't know if it's none of my business but they come to the conclusion it's best to drop the other thing that i think is important to know when considering the frivolousness potentially of this action is the fact that in the in the government's response brief here they noted that when they interviewed bin trailer the interim with told them that he didn't know anything about any of these transfers or transactions to this  milwaukee account that all of the charges stem from they said he told them he didn't know about those things but in the indictment there's acas is expressly charged with having talked to him about and lying to him about those transactions which the government now says then trial it'll them he didn't know anything about but why isn't that consistent with to zacharias having a conversation with nick then trail of that just doesn't sink in i mean you know it seems to me that could happen with an autistic person that might be able to happen but there's no evidence whatsoever in the record that he did in this instance what we know is that the government was told that ventral it in know about these things the government indicted jurors acus for having why do been trailing the government acknowledges that they can't prove this case the only evidence in the district court said the only person who knew seconds is dishonesty was been true and the government as of october two thousand and fifteen at the very least knew and travel wouldn't testify and it is our view that at that point proceeding forward in trying to say let's see if we can get this guy to plead guilty anyway even though we know we'll never prove this case when you say that seems worse to me because it seems like exploiting the situation unfairly because you post something that they know is a witness whose absence or on a real ability treat it as brady material in this instance i think it would definitely be more generally more generally it doesn't i think it depends on the specific i don't think i could say that it has to but it it if it's if it's a witness in this instance who has a  he's dying of a brain tumor yes that's going to affect everything that his witnesses said in this witness's ability it's not easy it's tactical useful but it's not i think that would be brady material if you know the one of your witnesses here essential witness to the first doctor's report then including the second one is for robert of in fact providing even more information about how this would affect that that it's not going to get better that it's going to find her to believe it's important skill be overstated if i'm saying at the very least at that point they knew for sure it's our view they knew much earlier based on the doctor's report and based on the brothers who had gone in and said this guy isn't capable of managing these these gets close to trial may cooperate finally doesn't cooperate yes ok so is the government what is the government responsible for realizing that they're cooperating witness is not going to court central to the potential conviction but they waiver over the course of the seven months till the trial occurs i'm just making if they make a guess at here's an answer if they make a statement and i think the government actually does this if th a statement suggesting that they may not cooperate i think it that point the government needs to turn that worked that they know that that's an issue and i think they often do in those circumstances so i am not sure that answered the question but i think that i think they should do that at that well i'm just trying to get into where where the government where we should inquire into when the government has made an assessment that a case can't go for i think well if if there's evidence in the record that establishes that the government knew from an early stage that they were not going to be likely to succeed they might have thought the defendant did something they might have believed there was some evidence so it's not baseless as i said but thinks ultimately we're not going to be able to proceed unless we can convince the guy to take a deal and they knew that early on as i think they did in this case i think at that point they should be held responsible when they when that is the defendant in support of his motion there was not a large volume of evidence showing the development of the property as he had claimed first of all with respect to building there was no building ever done on the property district judge makes a those documents demonstrate that the expenses that were undertaken were not undertaken during the period in which the defendant is siphoning off money and diverting it to his own purposes so the government's evidence traces it from those accounts to the accounts of the estate to the jointly held account to his personal accounts correct you've got all that at least you've got that far and actually does the evidence also show some of the hour cathy the transfers to california exactly exactly after the after the funds were diverted to the personal accounts owned and controlled solely by the defendant a large quantity of those funds were used to pay off victims of the ponzi scheme in california in restitution which the story plays out we know was used as a basis to reduce the defendant's prison time in that case  defendant including the final use of the price of some of those that funds a large portion of the funds for his own purposes and in fact the defendant and his proffer statement to the government had made it part of that including the fact that had used some of the money to pay off his his victims in the ponzi scheme the evidence also did not bear out the claim that there was compelling evidence to establish that the money that the defendant took constituted bonafide loans to the contrary the evidence contained no loan documents promissory notes or anything else signed by any family member or any trustee no evidence whatsoever that there was an agreement on the lender side to to provide a loan nor was there any evidence whatsoever of a legally binding unconditional agreement to repay on the part of the three things is possible and you're defending the district court's judgment largely by saying well it was a well founded prosecution so it could have been any of the three frivolous malicious or  says focusing on as i understand it sort of a more granular definition of each of those terms we need to worry about that here or what the government does not believe we need to worry about that in this case there may be a case one day where the fine distinctions between those terms make a difference but they don't hear and they don't hear for a couple of reasons one because the district court is korat when she says that in reality these definitions do have some overlap i mean that's just it's a matter of fact and number two it was the government's conduct in this case at no time was fulfilled any any possible definition of any of those terms it was the end there was certainly no evidence even during the time after it was pretty clear that nick was mortally ill and the government is still talking to mr cho sacco's about a possible plea deal absolutely not and  by the way that information was provided to mr tetras act as his counsel and this was a two way discussion and in fact the case of the schedule for a change of plea which was undone on the last you know the day of the change or just before that and then the the decision was made to dismiss and that reflects the fact of the mountain of evidentiary evidence and other evidence to support the government's claim and to be clear about the indictment which i mean i'm sure your honour's have the indictment and you can see for yourself what has to be clear the the suggestion that there was a direct tie between the statements that that nick made about about being told how money was going to be used those related to the transfer from the original bank accounts in the consolidation of funds into ultimately the account held by the l l c it did not apply to the transfers from that account to the defendants personal accounts or to the defendants use of the for of the funds for other purposes and what we see here is is a funneling and intentional funneling by the defendant diversion to his own use and what the what nic is understood had to do with the you know going from bank to bank to to close bank accounts and consolidate them so there's not a direct connection there and the same thing the argument the defendant makes about having no information about the wire transfers the charge wire transfers all involve transfers to mrs personally owned accounts and so there's just there's just a fifteen deposition and also considering whether the other evidence would be sufficient to go forward and i didn't hear that and also considering whether the other evidence would justify pursuit exactly exactly i mean what you have here nothing could be further from the truth in this case but with us back to the plea agreement you know that that the evidence shows that all the transcripts of the status hearings and everything else that are part of the record demonstrate that defense counsel and the government took months and months to go through the voluminous records that were obtained in this case and and produced in discovery and those records quite clearly demonstrated you know what we've been talking about evidence of the of the siphoning up of the bonds and there was no evidence to stablish ing that that was justified legally and he passed away and there were no witnesses no family members no lawyers no witnesses who who proper a to the defendant's statements which in themselves varied at one multiple occasions the description of what happened in the loans changed as they as the investigator stood there and watched him talk honest in a single interview i mean it just it was not credible and it but i said i bet i'm understand you to be saying that his theory that the government strings him along trying to get a  the government realizes how ill nick is doesn't hold together because the strictures actress's representatives also knew that nick was no i'm saying it doesn't hold got it that there's no evidence that that the government was motivated own dealings with nick i mean his his willingness to put neck in a position of being a trustee with how descriptions of other witnesses of next mental state which you know one of the lawyers referred to him as you case languished for two and a half years a good part of it based on my reading of the record of the status hearings had to do with at least more than a year of it had to do with the defense counsel's need to go through the go through the record that was that was a big part of it and time was excluded on that basis there was there was a change of council early on and after that second the new council the council panel that's up until about a week ago  went through the records and requested you know several continuances i mean or to do that and then there were no plea negotiations and you know there's a debate about what was discussed among the various lawyers you know i think there's some confusion about who is involved in the discussions with respect to the global agreement but there was an effort to bring us to a case to plea agreement i mean it's it's not unclear that that there were some of the many defense or the government's witnesses had words and it was going to be a difficult and time consuming case to try and it was not inappropriate to seek a plea agreement in this case given given all of the record and the district court thoughtful careful opinion which we think is the opposite of an abuse of discretion and we would ask that the court affirmed the district for its ruling in this case all right thank you your time or not mr brindley but if you have really one minute i'll give it case where they are a reason to prosecutory even a good faith basis to begin and at some point along the way they could reach a point where they knew they couldn't possibly win that case and if they continue on to try to get the defendant to plead guilty after that i think that does qualify as frivolous i think that does satisfy exactly the type of thing that the hyde amendment was meant to respond to and i think that's a situation in this case thank you thank you very much thanks to both coun