we have heard of a good record but a fairly narrow issue and that has to do with the standard under rule eleven d to be and what is a fair and just reason to allow for all of the guilty  on appeal and the only one you don't challenge is that there was sufficient evidence to support that guilty plea that there was sufficient evidence in the entire record i do not challenge that and also lets a list of things i don't challenge are the credibility findings made by judge fisher with respect to the testimony of the two defense attorneys willian and gabriel cohanim although i don't challenge your credibility findings i do think that the evidence of what they did say about what they did know and their interpretation of the availability of defenses is relevant to the issues before the court today right could you tell us first why are you contending that the judge to provide in the four days of testimony correct in terms of the narrow question why not her i mean is there lots of case law that says that you can look at the record for purposes of deciding so i get a case on appeal and i look at the plea agreement and the record before the court and the colloquy with the defendant and i say hey there's not enough there in the for a factual basis this court says counsel we're looking at the entire record that is a very specific analysis when we're challenging directly the sufficiency of the plea this is a different question this question is was there a fair and just reason to allow the plea to be withdrawn and if we're looking at that i think we should look at for purposes of the question of whether with proper advice and with the right information he would have chosen to go to trial we should look at what was in the plea agreement some the lawyers believe and can can and communication to him that he had no viable defense and for that purpose for the question of whether he did or did not have a viable defense then i think the judge is looking at the entire record including the testimony of two lawyers obviously and what they what they did at trial what they said in their opening statement and so for purposes of that the lawyers clearly based on their own statements in the three o two which the court accepted as their direct testimony they did not ever consider or understand that by the terms of the private placement memo for s s i af the money could be transferred to a real estate company without having to secure that with a recorded lien well i understand a part of that to security  so all over the place where you rely solely principally or are somewhat on this lean question somewhat on the way in question yes your honor that there is one of the things that is different right when we're looking at the question of whether there's a fair and just reason to withdraw the plea one of the things that the courts have said is there should be something different right there should be something different than what happened at the time of the plea there should be something new and different we're now looking at not just i changed my mind it had a change of heart i wish i hadn't done it and one thing that is new and different at the time of the motion to withdraw the plea is the fact that we now know that this statement about the lien is false so that is a new and thing that we have now except i was sitting there in everybody's face with regard to this actual document that's true but everyone accepted that it was true at the time so the fact that they were wrong did not come out u it doesn't appear that it appears that the lawyers advice was based on what happened in the trial which had nothing to do with this problem but with the fact that his explanation are four sixty nine william cohen is reported to have said that he thought you know that this was the you know that the p p m was just not going to help him because of what the court just said but there is nothing in the record of their understanding either gave where william cohan where they understand this idea that if when the money went from national finance bank or whatever to the account for public big expensive party and after we moved into the house and after we spent all the money all right so so it's no shock because i was a first somewhat taken with his concerns about the fact that he when he said was at some point i developed but the down in june about the same time he opened a two thousand and seven of two thousand and seven and when did he move all the furniture in and all that he's definitely doing all that but that piece of it so if if when he is transferring the  for credit purposes and so on as a result there is no question that there are the bottom line being that this was an alter ego essentially that is certainly what judge fisher found but the question here is not the sufficiency of the government's evidence the question is whether there's a fair and just reason to allow withdrawal of the plea and to do that we have to show you know something within the line of things that this court has has accepted as reasons to allow the withdrawal of the plea and one of those would be in this case the lawyers did not understand that there was a defense based on the fact that the transfers from s s i to williams financial group were technically to a real estate company now the court is right that there is a lot of misuse of money that happens in this case but we are focused on three counts of wire fraud and for those three counts of wire fraud it matters why exactly because if  loan to williams financial group at that point what he does with it for most anshul group you know is problematic but it is not necessarily wire fraud because there is no indication that at the time he's doing that he wasn't doing it with the intent to develop one or more of these properties for the benefit of the you know when did he do that when did he do when to transfer the money from s s i after all all during that time period so there weren't seven and so he was doing it the as at simultaneously putting money in and taking it out from shelf and and and that's not consistent with the offer and if and that in the motion for new trial they've made an argument that had he known that there was a defensive vailable under the p p m that he would not have pled guilty and the question is is that a sufficient reason i see my time as a right thank you very much thank you the court carolyn small on behalf of the united states during the defendant's rule levon colloquy in this tuesday he said he understood the nature of the charges against him he understood the possible consequences of a plea including the maximum sentence that he could receive and he said that he was pleading guilty because he did all the things described in the fax section of the plea agreement and he also said that he was very satisfied with the representation that was provided by his trial attorneys and that he believed that they fully considered any defen that he may have to the charges now in the defendant moved to a trial his plea he went back on pain which everything he said during the plea colloquy he said there wasn't a factual basis for the plea and he said that a try at his trial attorneys coerced him into pleading guilty and for the district court held a two day evidence or hearing on the defendant's motion and the district discredited all of the factual assertions are underlying the defendant's motion to withdraw his plea and he asked what he was told by a lawyer i'm sorry as to what he was told by the lawyer correct except to the extent that the lawyers told him that their defense strategy that they had planned was not likely to be persuasive to a jury the court found that the lawyers probably had told him that and that that was likely good advice under the circumstances but the court found that the lawyers had not otherwise coerced him to plead guilty in fact the trial attorneys the court found investigated the defendant's defense based on the p p m in fact they flew up to new york to speak with the attorney that drafted it and at the trial attorneys didn't advance it because they couldn't get crab ration on key points the court also found that the trial attorneys were fully prepared for trial as evidence by the fact that they had gone to trial for forty years made opening statements motions cross examined witnesses and the court found as i mentioned that the child chinese had appropriately advised the defendant that the defense case that they had planned to put forth probably wasn't going to be persuasive and light of the government's witnesses who testified extensively that the would read the woodbridge property that the defendant had purchased was for his own personal use and not an investment purpose and it wasn't purchased and was never purchased correct that he had attempted to write to my understanding is that the contention that this was a real take the defense is that we should only look to the point that the defendant transfer the money from the investors and into the w f g account and we should look no further than that because she was a real estate company because it only a single piece of real estate and that's where the understanding of what the purported defense is but of course here we have overwhelming evidence that the defendant immediately transferred the money from that holding company to personal expenses including the what bridge property including his own he paid his personal american express expenses he paid for a lavish party for his wife and he paid for a mortgage on his own property that he and his family were living and i believe until and and so that and that is not a defense  the trial attorneys were completely unaware of they said they testified about that at the district court that they had they were asked about this defense and they said we didn't see that as as any real type of defense that you can put money temporarily into a shell of what it was essentially a shell company and then immediately transferred a plea for your personal use they didn't think that that was an argument that was really a defense to the wire fraud that was charged so before us the claim is that this was a failure to understand the defense that transferring the money to cover you have key constitute a loan to a real estate company right brett but in the district court that's not the defense that's not what they argued is that you know that's right and so in the district court what the defendant argued was that the trial attorneys had coerced him into pleading guilty and as part of that coersion argument they said a defendant's position would not have pleaded guilty yes that is the standard when when the defendant is raising an argument that they were missed advise the standard is that they have to demonstrate that proper legal advice would have noted possibly motivated a what the main fact of the fraud is that the defendant collected money from perspective investors told the investors that this money was going to be used to invest either directly or indirectly in real estate or real estate misrepresentations was this error in the if so how do i determine given the standard or review the would not have changed his mind well i think the court so the error was that the the money the investors money would be secured by a lien and in fact i think the pm said that the investors money would be secured by the assets  fund so in some way they were supposed to be secured whether it was by a lien on the investment property or a lien on the assets i don't know that that makes a difference as it seems to make a big difference because the assets of the of the investment fund me dissipate which they did have and i understand this was right at the time of the crash but you still have a building there which has value seems like such a difference between zero and something right and that i mean that's true but i mean really this that whole issue again and it was really i think so i think getting back to just next question about whether it would motivate somebody to plead guilty i guess the question then is would it motivate somebody who has been through forty years of trial and has lived in a mountain of evidence that they did not use the money that he can to make any investment in real estate but there is sort of a side issue that they could have said well the p p m said it should have been secured by whether or not in that house right and she says with regard to security that that house what was security that the investors may be potentially could have recovered despite the defendant's fraud that doesn't mean that the defendant didn't commit fraud it just means that there could have been a potential that they could recover their money anyway and so just the mere e b orgy or whatever it's called was was was a loan to him so he was claiming i think he said that the money was a loan from the investors and he was loan make anyway i mean if he couldn't pay it back that the money that he was taking he ever said he was going to pay the money back to the ever saved us from a pay back the money that he took out no i mean our position is that this was in a fraudulent appropriate i know it's your position but i'm trying to figure his position i don't think he ever said that he intended to pay the money back once it came to him and he was spending it on this interior designer and on a personal assistant i don't i don't i think he just called a loan from the first that's far from the and seven i'm sure he thought that he was going to buy a seven point two million dollar home next door to miley cyrus for six point three million and make a killing i but that doesn't really matter what matters is that the lawyers facts are sort of all over the place he obviously could not have been living in all the houses he was buying and they would have been sold or rented and they would have lived in one of them and if he had had to sell the woodside property then he would a soul that moved back to dealing but the problem is before all of that got played out you know we had the crash and so we have all those bad things that happened but i think i don't understand just as a walk through  three or four so while the point was that he said that the money he was taking out was not alone it was just so and the representation was that it was going to invest in real estate companies  which and ten percent would be something else could be gets so he'll have a company that is seventy five percent of it is going to record him and twenty five percent of it is the value of his house then why is that a real company right you are i understand is a very narrow and technical argument i'll do it one more time and then i'll forgive you if you don't like it but ask this all happening it has an asset that covers all of that so it's like this question isn't the moment that that the money is going from s s i after joe b r g the question is the charges wire fraud is the investment by the investors in s s siap and if he knows at the time that that wire is being transferred is occurring that in fact this thing that he's putting the money into correct but to the extent that the loans were proper then he is the owner of the company took money out of that company that he wholly owns and then used to some for making improvements at glenside which admittedly took forever to flip some for trying to purchased the other property some for paying money i mean he doesn't use all that money some on real estate purposes and some not but the narrow argument that i'm making in addition to the fact there was a false statement in the indictment and the plea agreement i think gives us a basis to withdraw the plea based on the analysis that judge smith put forward that he might not have entered a plea had he understood that that was incorrect statement is that the transfers to w s g which everyone said including his lawyers was wrong was actually permitted and that that's that's it that's what i have thank you very much