good afternoon if we have a day calendar and this afternoon in five cases the clerk informs me that counsel are ready in all of them except the last one in which one counsel may not have surfaced but will begin with the motions count them and we have two motions to be are you the first is u and most significant the court vastly overstated person goes burden by forcing him to establish the merits of his prospective appellate arguments by clear and convincing evidence and that standard found nowhere in the bell reform act defies thirty year old precedent of this court requiring only a quotes question that's more than non frivolous and could very well go the other way and that's from the randell case that the court is undoubtedly familiar with and if accepted this standard minted by the district court would effectively condition bell in the district court's finding that its own judgement will likely be reversed on appeal and that's exactly what randell says the court the district court is not supposed to do and that's it here under the proper test your honour's mr percivale raises three fairly debatable issues debatable issues warranting continued release first the government breached the plea agreement to a straightforward extortionate credit transaction by insisting it could prove by preponderant evidence person goes participation in murder a tail wagging the dog if ever there was one and that's that's the language judge newman that you used all those years ago in the concurrence that you wrote in concepcion which is all that we had to rail against the use of and convicted conduct at sentencing for years on time the issue there wasn't whether the plea agreement barred it and that's your issue is whether the are now against we have to consider this language against the well settled backdrop of plea bargaining law in the circuit and it's one of the few areas of the law that's actually good for a criminal defendant why do i say that  has said over and over again that plea agreements implicates special due process and fairness concerns that there construed strictly against the government as drafter and most important that prosecutors are held to meticulous standards the most meticulous standards from altro of promise and performance in this all derives from sad to bellow and it's especially true now that the supreme court has acknowledged in laugh learn friday that please plea agreements plea bargaining is the criminal justice system so if there's ever a case where a contract has to be read in defendant's favor and you have to look at the spirit of the remit as well as the little lang literal language plea bargaining is it and i submit to the court that the only conceivable reason for the government to juxtapose the worst of crimes murder with a representation that it could meet the a political proof standard sentencing just a preponderance all that's doing is encouraging the court to sentence at the top of or above the guidelines and that's naturally what happened in this case and that defies the letter i would submit and the spirit of the provision that i just quoted read as it properly must be in the defendant's favor now what does the government say about this they say we reserve the right to prove give the court relevant information incensing all true all true but let's not overlook i think it's footnote six in their brief what do they say they say that mr percivale was already indicted for this very charge so that indictment was already on file with the court it already had all the relevant information it had the information that a grand jury had found by probable cause that mr person age twenty three soak so consider this the court has the indictment before it the indictment ipso facto constitutes a finding by probable cause that mr percival was involved in this murder what did it need to go to probation an arm of the court and say hey by the way we can prove this by a preponderance of the evidence and we just dismissed this out of good graces for mr percy goes benefit all it had to do was say a say nothing b point the cord to court toward the indictment and say a grand jury found this by probable course or just simply say we have information implicating mr percy going this murder what possible reason could there be to say hey mr percy go participated in the murder in this of this man back in one nine hundred ninety three and by the way we can prove it by a preponderance of the evidence when they said they're taking no position or where within the guidelines range the sentence should fall and they're not moving for an upward departure they're not saying mandatory detention while awaiting imposition or execution of sentence mr percivale was awaiting execution of sentence right now so the judge necessarily found by clear and convincing evidence already word that russo was credible enough to establish mr percy goes participation in this murder and specifically the way it found that he legibly participated was by securing a weapons through an intermediary can whisper if she wants junior only in age but not in stature but let's let's put right that's very good but very one sided let me just i'm i'm a very simple sort of person  what exactly happened that this found a core here what did she find she found your honor by a preponderance of the evidence that mr percy go most significantly had participated in this murder a murder conspiracy by procuring erroneous assumption that he would risk all incentives and protections he negotiated in exchange for his guilty plea and we're not contesting those findings for purposes of today's hearing it's crucial to realize and i go back quickly to what i said at the outset what's our burden here what's our burn here it's not to establish that that we have a meritorious appellate claim by clear and convincing evidence or require the do a showing a preliminary showing in front of the district court that she should reverse herself we have to  we're we're more than willing to do that within thirty we're going to follow our brief within thirty days i think i don't think i'm asking are you willing we have not the answer is we have not presently made a motion want something expedited usually briefed by us before so that's an oversight on my part i think this is an aerial motion by you yes it is your own and can i just point out one one more quick or things what do you want from us what is the remedy that you're seeking alternately your honor we're seeking with and we will be on the merits brief seeking what we saw in the district court which is withdrawal of the plea agreement and then obviously there's sort of an open question to you on from this today we want you to stay execution of the sentence and continue his release on the same conditions pending appeal that he's been out on for the last seven years and to that end i just add very quickly i don't remotely fault judge  thorough deliberate and trying hard to get it right he was out on bail it took over a year to issue a phatic a ruling here over a year to issue a federal ruling and she had already obviously made a gut determination about whether this russo was credible or not if he's that dangerous you don't leave him out generally for that duration of time and again i appreciate the thoroughness and the consideration i'm citing this for a different reason the world is not going to and to morrow if michael personal remains out pending the disposition of the of this appeal and even if we take the government's facts in the light most favorable to the government we dispute them the last bad act that they're attributing to mr percy go is in two thousand and ten seven years ago this case has been pending of release yes or absolutely until such time and we'll keep you yes until such time as the court decides the appeal anything else you know is no sir i thank you for hearing me good afternoon may it please the court my name is along lipschitz i represent the government in this case the motion for bail pending appeal should be denied because judge irizarry did not commit a clear error in this case either in finding that the defendant is a danger or a finding that his appeal on the merits fails to raise a substantial question either of those grounds is sufficient on its own to deny the motion for bail pending appeal and indeed detention is mandatory under the statute if either of those conditions what do you make not satisfy furnitures comment forceful comment minutes ago that he's been he's been released on conditions  of release for over six years he was your honor he was arrested in two thousand and ten he was committing crimes up until his arrest his ability to refrain in the stand  one doesn't what doesn't deserve credit the fact that he is not has not been found to have committed crimes after his arrest in this case what's important is that he was found in july of  that was really more like a trial to have committed murder extortion loan sharking up until two thousand and nine and two thousand and ten all is a powerful associate of the colombo family essentially compelling a finding that he's a danger to the community how could a judge find otherwise in that context and these are findings of fact as your honor observed they were based largely on a cooperating witness who testified and was cross examined in a hearing presided over by judge irizarry if that finding is not disturbed the tension is mandatory under the statute i'll skip to the breech issue if the court doesn't have additional questions about dangerousness the was no breach in this case i think the panel asked what provision was breached there is no provision of the plea agreement that was breached the plea agreement is part of the record we never agreed that we would withhold information from probation or the court we never would agree to that it wouldn't even be enforceable and i were a footnote that was used against us that referred to the indictment in this case superseding indictment the charge most of the crimes are proven a fad ago the point is probation in the court knew about these crimes we never asked for a fattah cohering we said we didn't want one judge towns knew what we had alleged and she's perfectly within her rights to insist on knowing whether it was true that michael person committed these additional crimes as was judge irizarry who independently also decided she wanted the phatic of hearing and it's important to remember in this case the defendant didn't bargain for us to withhold information the defendant bargained for a five year statutory cap in light of the charges he was facing there is the least of tension when when the government says we won't take a position where in the guideline range he should be and and then gives the probation officer information that in your view makes him a very bad guy that's not exactly n as to where in the guidelines he should be your honor those are bad facts about the defendant but what we don't understand and had had you said we won't take a position on the precise months within the guidelines ra but we do reserve our normal right to inform probation of his background but when you don't have that reservation and you say we won't we won't take any position on i assume the range was pretty broad in this  corrupt so when you say he committed a murder isn't that tantamount to saying you probably ought to be pretty close to the top of the range no your honor because we didn't even ask for the phatic of hearing of course of course saying he committed the murder saying we want it we wants it we will absolutely neutral on where in the range it should be but we're going to tell him he's a terrible person i understand your honor's point but we would never be able to enter into an agreement that frankly is quite favorable to defendants and allows them to plead to a less serious crime if we were held to the standard that we would also lie to a district court and say we can't prove he also committed the other crimes you know once and he's say you can't but the question is should you should you at the same time you say what you want to do the other your honor we said what we would do the plea agreement says we would provide the probation department and the court with information relevant to sentencing that's you have no objection to explain the appeal you know your honor if we were to do that and when is what is the surrender  i believe it's october twentieth ok thanks very much thank you will reserve decision