assistance of counsel led to an invalid plea we have two substantive arguments in support of a finding that there was an invalid plea the st of which is that the mens rea element  the conspiracy to launder money was not shown in the factual basis to the district court the factual basis as demands re was sufficient because mayes was asked whether he quote knew that the money was hidden in the vehicle so that the government would not find it in the court answered he did that's number one hundred and thirty nine dollars the order at page six citing the plea hearing at page thirty that certainly answers the question of whom the money was hidden from but the four ak and other cases from this circuit demonstrate that you have to show the purpose why is it hidden quote to conceal or disguise the nature location source or ownership or the control of the proceeds mr mayes stating that the money was hidden from the government doesn't tell us the purpose why was it concealed to the government the factual basis as to mens rea was sufficient because made a statement at the plea hearing that his cousin wanted the money hidden from the government because it was money from drug sales to the government this is somehow an admission by mr mays that he knew at the time of the offense that that was the purpose but that's not what mr mays a set on to direct occasions when asked went blank if he knew the money was hid to avoid the government learning  type that aspect of the money being money from illegal drug sales neither time did he answer that's a page twenty four and at page thirty and like the district court said  magistrate judge was asking the wrong questions or maybe more specifically not getting answers to the right questions the government asserts that  well what about page thirty question you didn't want the government to find you because you knew the money was from drug sales answer my cousin is the one that didn't want to be no question but you knew the money that was coming in those cars was from selling drugs answer yes but it didn't belong to me correct or off all right so why isn't that enough of a factual basis to say he knew at the time that it was drug money even though it wasn't his money and it was the cousin who wanted it hidden because like i don't think i think that's a statement that he he can say now i know he's stating that's what my cousin wanted that's not question the nd question was but you knew that the money was from selling drugs in answer yes but it did not belong to me so that isn't then admission of knowledge at the time of the transportation we submit that it's not he circus all right that he knows that in order to be ineffective the lawyer would have to have no reasonable basis to believe that that was a factual basis right it's not just a do novo review this time factual basis  asked to consult with counsel the fact that there was a break the fact that the magistrate judge saying hey i'm having a trouble finding a mens rea here he's not making the right state a classic money laundering case it is not and quaoar tells us that it's not illegal to drive money down the road and quail are tells us just saying you're hiding it isn't enough we have to know what the purpose is so many of the cases cited primarily by the government are jury trial cases and yeah other all kind of inferences we can the jury can make from statements on the stand but that's different than the guilt me wasn't this money simply the result of the transportation of the drugs to arizona and the money coming back for the drugs what's happened here well certainly we don't have any argument that he had a valid plea to the drug conspiracy it's only a challenge to the money laundering conspiracy yeah the money laundering  don't i don't see the connection to he he was a mule and he carried the drugs now in arizona the money to for the drugs were put in the place in the car  into the pack on the mule saying buy the mule comes back take stuff out of that same package so it's even worse are a harder case for the government than a mule we would submit but the issue isn't the validity of the plea is that i the go ahead from the district court takes as true mr mayes's statements that he had problems pleading guilty and that it is an attorney told him look you have to because if you don't they're going to stack you they're going to run the two sentences consecutively one on top of the other and the district court says that's not enough and the government says that's not enough because you know an idea or a speculation on what sentence is going to be that's not an effective assistance that's not what happened here that's not just i didn't know you're a career offender hoops i thought we were going to when that downward departure of that downward varian this is this is hell versus locker this is you have to give correct advice on what your sentence might be if you plead guilty versus going to trial and here's an attorney saying this is what you're going to get if you plead you're going to be ok but if you don't do this like i'm telling you to do right now you're going to get consecutive sentences that was necessary that was probably not right and that makes the plea invalid as well  speculated to give advice in their opinion that's what attorneys do that's what they're appointed hard to do is give opinions yes your honor and if the court accurately advises the defendant as to the range of punishment and the punishment and that's accurate information every attorney that every attorney that gives a piece of advice would be subject to an ineffective assistance if they want to if if the attorney says as a matter of fact if you go to trial the judge is going to run these two sentences consecutively and as as a matter of fact that's going to happen and if you plead guilty as a matter of fact that's not going to happen plead guilty because if you go to trial the judge is going to run those sentences consecutive yes there's a little bit of inference that have you have to make but if that inference doesn't exist the advice doesn't make any sense why would the why would the attorney say plead guilty it's going to be ok unless it necessarily but that bad what's going to happen if you go to trial and lose that's not going to happen here so plead guilty thank you basis for the guilty plea to the money laundering we've got to start with the transaction the transaction here isn't just driving a car with money in it that's not a transaction the transaction is the delivery of currency from one person to another that's sufficient under the statute to constitute a transaction so what we have here in the factual basis if you threw out the plea hearing was an arrangement whereby the defendant's cousin coconspirator cocoa defend it up in nebraska arranges to have the money put into cars that are then driven to arizona and then the cash is to be delivered on up the chain but the defendant himself was the recipient of the cars he was the one of the car handler so to speak so the issue is whether or not the defendant knew that that design for the transaction was to conceal or disguise one of the five statutory attributes the location ownership control cetera and i think we need to look no further than the portion of the police transcript that the court was quoting from a moment ago on page thirty the series of pointed questions that the magistrate put to the defendant that showed he knew that the purpose for hiding the money was for the government wouldn't find it he said it was his cousin who wanted it not to be known that it was drug money but that's knowledge of the design of the transaction and he also knew affirmatively plays admission that the money was from selling drugs but how did the transporting the money disguise the source of the funds judge it's not just transporting the money disguising the source it's the means by which this transaction occurred that is it's hidden in a car it's handed to a rd party courier who's also one of the co defendants and also testifier scuse me was there information was proffered at the change of a rd party courier in a car that was actually purchased by the coconspirator but then put into the name of the courier so now you've got a car going down the road it's being driven by a rd party the car is registered to a rd party and so whose money is it who is actually in control of the money using that rd party can courier system provides a sufficient factual basis to show knowledge of how the transaction was designed i think this case is actually must the transaction must involve the proceeds of an s u a specified on lawful activity participate in the transaction or in the conspiracy has to know that they were proceeds and the transaction has to be designed to conceal or disguise one of the five statutory attributes the nature the location the source the ownership or control of the proceeds that's those are the elements john and what were the elements of proof of those was the delivery of currency for one person to another that fits the statutory definition an eighteen u s c nine hundred and fifty six dollars c three that's the transaction nd there proceeds the defendant admitted he knew that they were proceeds from the sale of methamphetamine drug trafficking is an su way because i kind of conflated those two elements you have to be proceeds and he knew they were proceeds so we've covered two dollars and three  then the transaction has to be designed to conceal or disguise one of the five statutory attributes really that last element the knowledge of how the transaction was designed i think that's the core of the issue right so what's why hiding it from hiding money from the government isn't enough to meet that element doesn't let me address that by turning your attention to slag the decision that was the sufficiency of evidence  trial to show a concealment money laundering conspiracy the evidence was sufficient the court found to show that it was proceeds in the participants knew that they were proceeds there were a series of general calls about how they're going to post bond for one of the co nspirators and they were use in disguise language to an attempted code but they were expressing their concern that the bail money would be seized they would see it would disappear and so rather than simply delivering the cash proceeds directly to post the bond and run the risk of it being seized they instead decided to pay a bail bondsman conduct the transaction that way deliver the cash through a bail bondsman and the eight  circuit determined that that was a transaction that was can designed to conceal or disguise the source and the ownership and control of those proceeds so as to reduce the risk of the government saving seizing them as drug proceeds so our argument judge is that this is an analogous situation where the transaction is designed to conceal or disguise at least those data doria used it was designed to get some drug money from arizona back to him to iowa or wherever it was well judge i think practically speaking you know they want to get it's all about the money in drug trafficking and you don't succeed as a drug trafficker unless you know you ultimately get the money i understand that use of the word purpose we're talking about a different question and that is how was the transaction designed was it designed to for the purpose of concealing or disguising and judge well what slag it sounds like that they laundered the money through the bail bondsman so that it became bail money and did it to a rd party to deliver it just like here they hand it to a rd party to deliberate you know my deliberate i thought bill to handle the cash in hand to post bail either way conceals the ownership of the control of that money they did it in slack with the purpose of concealing who was coming up with the money if one of coconspirators and drug traffickers had showed up to deliver the cash they were concerned the government would conceal it because that would reveal its existence as drug proceeds so by using this particular driver it somehow well judge it conceals who owner of the money or who conceals it putting it giving it to a rd party courier is the concealment  aspect is there any case in the country where couriers carrying money back and forth has been held to be money laundering you know of any drug case general and no i can't cite you to a case that involves those judge the other aspect i think to kind of shift over to i guess prosecution decisions is the persons who are involved there may be individuals who are all part of the conspiracy who never touch any of the drugs they wouldn't  all you do is courier money for a drug dealer back to the source that's not a conspiracy to traffic drugs well judge i was trying to address the wider question you had asked is why would yeah you know he said because we couldn't charge him with drug trafficking on his ayers and i thought that wasn't in answer to the specific charging decisions made in this case i'm sorry i was like oh you know there might be people like that i thought you said there may be people like this who can be charged in the drug case and i didn't intend to say at like this how that was the plan the question is why would this man be charged with the money laundering and the immediate that judges the guideline difference that you described already well suppose that we think there isn't a factual basis here does it follow necessarily that the lawyer was ineffective no judge i don't think it does i think you can look to the decision by the district court finding that the elements were satisfied  showing to the all the five substantive meaningless so even if that was err it's not outside the bounds of that's correct broad range of or competent lawyer in her where i have a strickland puts it and i think you can gain confidence in that conclusion in the fact that you had not only a magistrate but also an article three judge both of whom decided yes this is sufficient as a factual basis i will rely on our brief concerning the other issues of the rather well criminal justice act and we appreciate your willingness to accept the appointment so long as we're here we might as we'll hear you out i appreciate that also you have the factual but if the court says the factual basis is insufficient the remedy should be to remain for an eviden hearing to find out of counsel's in effect because that's the threshold question mr mays established he didn't have a factual basis he says look i was told to plead guilty this is what he's saying is two thousand two hundred and fifty five that's all taken as true if the court finds there was no factual basis or is the court to send it back to the district court for an evidentiary hearing to find out if counsel is an effective right now everything says counsel was ineffective but if you're going to affirm simply because we don't know about ineffect assistance please remand it for an evidentiary hearing to find out that part if the fact what would what would be we do at the hearing evidentiary hearing the the parties would testify about what was said what was the advice that mr mason said i don't want to plead guilty and we just assume that the lawyer thought mistakenly that there was a factual basis but if as a matter of law that was not incompetent and why would we need a hearing i would say that it's i always the case though if it's a close call it's not i can't say it's always the case of course so you would concede if there's a close call on factual basis of a lawyer sometimes there are five thousand one hundred and forty nine cases and he got it wrong on the forty nine side he might not have been below the objective standard reason sometimes we lawyers have good reasons to tell clients to plead guilty to avoid all that extra that was the case but maybe that's why we need to have a danger area