to mr president is to due process rights were violated because a district court accepted is still guilty plea with out an affirmative showing that he understood the nature of the charges against him for just not reflect that anyone ever advised mr president  elements of the charges to which he pleaded guilty or that had any understanding of the law in relation to the facts the supreme court has stated that in big you asli before the district court accept a guilty plea there must be an affirmative showing that the was intelligent and voluntary and the waiver of constitutional rights will not be presumed from a silent record in fact of the defendant's guilty plea is not equally fallen tarion knowing it's been obtained in violation of the due process rights and therefore void so the guilty plea can't be an admission of all the m l elements of a formal criminal charge if the defendant does not have an understanding of the law in relation to the facts now we've said in some cases that how much you have to tell a defendant sometimes depends on how complex the charges are so how do you think this case fits into that paradigm where the principal i have a two prong answer to that jordan first is the fan was told nothing about this case his intelligence level his ability to comprehend and discern information doesn't even come into play because nobody told him anything about the elements of the offense the other thing that i have to say is that the elements of the charged offense were not self explanatory even if he had had the opportunity to hear information about what he was charged with what the elements were he was charged with bank fraud conspiracy which that's not self explanatory the elements are that a conspiracy existed the defendant knew of it and he knowingly involuntary joined voluntarily joined it by simply being told the title of the offense conspiracy to put bank fraud those elements are not self evident even more so with respect to i graduated identity theft that's a complicated set of elements to go on that in fact the supreme court has had to weigh in on what that statu requires and the supreme court has defined has described the aggregate dated identity theft by saying the statute imposes a mandatory two year printed sentence on individuals convicted of certain other the defendant he did not ask him if you had reviewed the indictment with the if defendant or if you had reviewed the charges with the defense and you not also say that they reviewed possible defenses he did your honor and yet and yet it  that doesn't establish that the facts of the case were married up with any with the charges with the elements of the charges and i will say we can look at the proffer and we can see if the proffer contains material that  supports each of the elements and it would seem to me that it did was pretty explicit with respect to do what he did with respect to you and what he did in terms of carrying on the  elements of the offense and now your claim is he was not told the elements it isn't that undisputed that the factual proffer are looking at it it's seven pages does set forth facts that satisfied elements of the fan i believe that is the case your honor never the less and less the defendant understands how the facts relate to the law of the case a plea cannot be considered voluntary and that's what the court the supreme court said in break and versus arizona i don't i mean are there any cases that say that in taking a guilty plea you have to set out the elements of the offense i mean if there was a case that said that that would be strong but if if the issue is from the record on plane air or from the record does it appear that the material was put before him so is it mean is there a specific case that holds that that's a requirement there are cases that say either the judge or someone else has to let the defendant know what the appropriate what the elements are what the law is and i want to know about it from the eleventh circuit cases you have a receipt or witty that that seems to sort of support the government's side geddy might go the other way and we've you look at them this one seemed a lot closer to  me well i would note that that great is an unpublished disposition whereas gaddy is a published binding case and so i think that distinction is quite important and  gaddi the court said that the defendant receives real notice of the charge when he's been informed of both the nature of the charges and its elements gatti does say the elements should be described need to be described either by the court or by counsel and in this case i want to point out the omissions from the record in many cases the plea agreement will serve the function of setting out the elements of the offense not so in this case the plea agreement simply said that he was pleading guilty to conspiracy commit bank fraud and aggravated identity theft and listed the code statute the stache recodes typically during the rule eleven colloquy this defendant will ask if the defendant had an opportunity to read the indictment and discuss it with counsel not so in this case in this case there was there were some questioning about the discussions the defendant had with counsel but none of it went back to the fundamental charging document or the elements of the offenses that were charge it's unusual that that was never addressed and then of course rule eleven requires the judge to or to inform the fent of the charges against him the nature of the charges and that didn't happen in this case this is what the judge had to say about the charges that mr president who is pleading guilty to charges one count one charges you with conspiracy to commit bank fraud in violation of title eighteen united states code section thirteen forty nine count thirty one charges you with aggravated identity theft  names of statutory section and so the record shows only that a do you understand and from the actual proffer are that the you just said those facts constitute conspiracy to commit bank fraud that what the facts do that is i understand your client knowingly checks and cashed them knowing they were either bad checks or somebody else's check seaborn entitled to cash i mean that's what happened your client physically took checks i mean that's what he met in the us your what does he admit he did that constitute theft on him that they want who they were right well i i despite i disagree with that assertion the record shows that he told and i will say the factual proffer shows that he told  the person who was cashing the checks that you know this one has a real driver's license to before i wasn't giving you real driver's licenses he says that he said that to the person who is buying the checks now i submit that that doesn't mean that he actually knew that these people were other places in the proffer he admits that he knew this was a false identity he knew that it wasn't him ok he does please the court john burgon doll appearing on behalf of the appellant's carlie jane in our brief we have raised four separate sentencing issues there are two of the issues where our contention is that the district court misapply the appropriate standard in number one determining the loss amount that was attributable to miss jean and secondly in denying her our request for a minor role those are the two issues that i would like to orally address before the court this morning with regard to the last issue mr bergen dull one of your arguments not the only one but one of them is that with regards to jointly undertaking criminal activity the district court could not have and should not have included the check amounts for ms far that's correct that's correct your honor and your part of the argument as to her is that she came into the conspiracy after this gene was gone or had ended her involvement judge miss far actually was in the conspiracy well prior to ms jean coming in and then again after an extended hiatus reappeared at the very end of the investigation and during the interactions that she had at that point in time with the undercover operative who was the check casher made it clear that she no longer had any association with the individual she hadn't been involved with with before which was mr percent of and at that point in time she was pursuing her own venture which was to cash some checks that she along with her girlfriend with an accountant had come into possession of the first check along those lines was a bank check cashiers check in the amount of fifty four thousand dollars to time that miss far i'm talking about miss far yes now let me simp are carrying drugs and they're doing them at different times even though they may be doing them in relation to some bigger boss but they they don't know about it or they don't deal with them separately is that the analogy one of the examples that i cited from the guidelines have had to do with an individual who was the girlfriend of a drug supplier and on one occasion she agreed to go ahead and transport drugs for the individual cited that case to demonstrate that there is a significant difference between the conspiracy and jointly undertaken criminal activity and it's the jointly undertaken criminal activity that really the court had to focus on and did not do so here with and then the second since there was an objection we don't know all of the the reasons but the best took i saw for the government was the reference by ms jean about getting money from getting checks from tasha she had guys with tax people something like that your honor any connection of that to far no your honor because by that point in time  with far over who was going to get proceeds and far disassociated herself from mr percent oh when miss jean came into the picture there were a couple of individuals that she was getting the checks from the record supports this one of them was mr percent who in the second one was mr durant's alair are either of those tax people actually both of them had their own independent tax consulting sentencing and there the district court judge based upon the same evidence that is in the record concluded that mr durant's a layer should not have been held accountable for the checks that were presented by miss far as a participant in the overall conspiracy and rather than making fact findings with regard to her roe is that the problem here that that's one of the problems sure honor that as there was conflicting evidence would you agree with me about her to checks and negotiated her own shit sure checks but on the other hand there's some evidence she didn't really operate her own tax fraud company i mean there's just evidence about to be involved in some things not in other things and so the district court should have made some fact finding some about her role yes yes really what happened that's that's one of the things your honor and there but at the at the end of the day there absolutely in it be correct to say but basically the district court didn't make any fact findings about roll i didn't support he just and them archie i don't know what was did not i'm on a roll and in it needs to have some fact find about what her role was compared to other comes spirital wars in order to have it you're not saying as a matter of law she gets them on a roll is that correct what i'm saying is your honor that there was an inappropriate yes there was an inappropriate process that was employed yet they are not saying as a matter of law she can't get it you're just saying the way he went around or she did it was inappropriate yes your honor the minimum the case needs to be remanded so that the court can apply the appropriate legal standard morning met face to court i'm going to start with mr prison do his plea and then have some time to talk about me john's sentence issues as to mr president do your honors you have the transcript of the factual proffer and i think it's very clear from this transcript that there is no showing there's nowhere in the transcript or mr president goes shows any kind of confusion lack of understanding he did lee affirms his ability to communicate well with his attorney and understand his advice they talk about having discussed the case in the plea but how can you show a lack of understanding if someone doesn't tell you what's at issue i think the very mean there's no there and there's no reason no good reason why mr president who wasn't told either by the a usa or in the plea agreement or by the district judge the elements of the offense right there is no good reason for that well your honor i think i want to be very clear about what i was told and what wasn't told no i know was told he was not told the elements of the offenses he was not told that these detailed facts he admits to the elements of offense he was even told what the elements were he wasn't told that aggravated identity theft for example requires another charge than it has to be the identity documents of a real person so forth and so on he wasn't told any of that he wasn't told the elements of a bank fraud conspiracy at all either right you're right you're on a he was not told that in order to be convicted of aggravated identity theft you need to admit to facts a b in c but as  wigan's he admitted specifically in great detail using all of the key words to a b in c but might and i'm not saying this is reversible error mr colin what i'm saying is that you can admit to a state of facts but unless you know that those facts constitute a crime you might be out in left field you may be in the dark and i'm trying to figure out why in the world he wasn't told the elements of the offense this is not like causing damage to government property where someone you know kicks something inside of a government office and causes damage this is these are relatively sophisticated offenses well your honor the words that he does admit to are words like unlawful unauthorized i mean there is no confusion here that he knows he's admitting to facts that are crimes he uses those words in his factual  counsel i mean you're as a u s attorney presumably you're involved in a lot of these is there some practice of not telling the elements or is in effect this is just a case where the judge either for god or thought it was so clear that some part of the usual script to didn't didn't get said your honor forgive me i'm really not familiar with the procedure used on a  defended indicates that oh i wouldn't have pled guilty if i had known x or y not at all your honor in fact he's a specific lee are you pleading guilty to conspiracy to commit bank fraud and identity theft because you are in fact guilty and he says yes but i'm referring to the the pleadings post guilty plea where they now raise these issues which they didn't raise before the judge but they say and if we had known that i there on my plate and he also didn't say in the district court threw a declaration or his counsel saying it that if i had known what the elements were i would government has to show a b c i tell you what prosecutors will put it in the plea agreement set forth see what you had to plead guilty to what the elements of the fence are and have a defendant it is no work you need to convey this directly to make sure you have so much work i have a script i almost know it by heart but you can skip some and you can forget some and i made sure i did the script and i made sure i had the element to the  just no excuse for it and the judge not do what the prosecutor should hand the judge so i please ask the defend this i don't want to go eleventh circuit i'll take five minutes is just no excuse for want to admit to whereas the other facts in great detail show both his detailed knowledge of all of the facts that embody the elements of the offense as an wiggins and his knowledge of their illegal nature and therefore his  ok on that regard this seems to be an error on the last amount as he talks about that there's no connection between her and ms far as far was at the end after she had completed johns jointly undertaken activity was in this case and that's a page fourteen and fifteen of the sentencing transcript and i think the fact that ms far is involvement changed over time and how the district judge treated that is instruct and to keep the conspiracy going by introducing new members into mr habib's operation that is the finding that the district court made in this is on page fourteen in fifteen of the transcript and is in the district court's application of those facts to the guidelines as counsel says the district court sat through the trial of mr durant's a lawyer the district court was very familiar with the internet it's of this conspiracy those findings are entitled to some deference year he understood the trial judge saw th that he took facts from the trial and applied them here he doesn't cite particular facts but he notes having sat through the trial of mr duran salerno i'm familiar with this conspiracy words tonight yeah but you can't do that i think perhaps i'm using on pretty in precise language your honor let me try to correct what i'm suggesting you can look at the transcript yourself and you'll see what the judge says but what the judge is saying is i understand this conspiracy having been the one who's been hearing the cases of all the coconspirators and bizarre and with the judge finds is that mr johns activity he makes findings about her her particular undertaken activity and says her activity was to introduce new members into this conspiracy this was not a street level drug mule this is that would be a different case if we were trying to say that every street level drug mule is responsible for every other that's not this case is john worked directly with mr habib to expand the conspiracy this is like the case  of dealing with john far she still responsible for that yes because she's not involved because her jointly on direct undertaken activities with mr habib to excel and i'll help with this i thought she had withdrawn and stopped at a certain very specifically has undertaking with mr habib ok you want to talk to me anymore but you're going to talk to duran solaire and this is going to keep things going but how does far get involved in all that could later on the bro i'm sorry later on far comes back to hubby and i believe independently of john yes foreign john do not deal with each other so how how is that jointly undertaking criminal activity because the that the defense attempts to distinguish one page so everybody that has dealt with after that point in time is attributable to john as long as it is within the scope of sean's undertaking with hubby been recently perforce able to continue their operation was the undertaking to procure fraudulent checks obtained by tax preparation services with no limitation yeah it i mean i suppose there could be some can be good have reached out to another state and gotten other people there to do that and john would have been responsible for them to there could certainly be facts another state ten years hence where that would be so far removed but that's not this case john this is the same store this is the same operation this is tac this is checks obtained by fraudulent tax preparation that is what john undertook with hubby and kept it going and it is reason we perform reasonably foreseeable to john that when she helps keep keep beeves operation going that he has other people working for him too this is not a case where she's just some street level mule who's not dealing with the boss or helping the operation go this is someone working directly with the boss of the case in  distinguish the case white by saying well in that case the person was dealing directly with the tax filer well that's this case in this case john is working directly with the check casher and therefore is responsible for other people's checks just as and white the defendant was held responsible for other tax filers even the ones even other tax preparers even the ones that i'm sorry check cashers even beyond herself and even who she did not have any direct dealings with it is not required that physical locations i'm not aware of far as location but habib's location is the same habib runs a store and people come to him with their checks ok and far come to that store aren't as far off somewhere else doing it my john is responsible for so there was somebody that hubby vin john didn't even know about but they walk into a store and say i got some fraudulent checks to cash and they get cash she's responsible for them i believe it could be your honor i believe there could be cases so far removed but that's not far is not so far removed for was someone who worked with the with prison do who brought john into the conspiracy for was there before is there any indication that john and far even know each other or know of each nothing that i saw on the record your honor as to the minor role i would just prefer if i can have a few seconds to briefly cite you two pages twenty seven of the transcript where i believe there were findings as to john's particular role not being held thank you joe klein not fall much and withdraw on the district court but no your honor and as your client filed a direct correlation anything saying if you had tell me these elements i would not have pled guilty you know you're on it but for the purpose of his due exactly or in fact it specifically says that it's important to note that case did not present a due process claim it's specifically says that it limits its application to rule eleven and back in henderson versus morgan's supreme court case the court said that any assumption that the defendant should it would have entered a built guilty plea is not important to the constitutional analysis of plain error i i want to tell the court that it's not extraordinary in this district is not extraordinary for the district court not to explain the elements of the offense to the defendant i read a lot i don't do the trials weiss the trial work myself i leave read a lot of the transcripts and this omission is few and the requirement for rule eleven errors that i think everything will be affirmed anyway and so there's no course correction here if the court and it goes across different judges there's no course correction nobody comes back to court never comes back and says this is mandatory you need to do this it's been a long time since that message has been given in terms of an eleventh circuit opinion now we've approached reached the magnitude in this course of a constitutional due process error because there simply is no record that this gentleman has ever been given this advice and it's time for this court to give the message now both in the constitutional context and rule eleven if you have no further questions i ask you to reverse mr president focus in first on the incorrect calculation of the last amount the government repeatedly makes reference to miss jean having an agreement with habib but at the time that miss jean was dealing with  baby from a pure conspiracy last standpoint she could have no agreement with him because at all times when ms jean became involved he was already a government agent and acting under the auspices and the direction of the case agents number two that what the record really shows is that miss jean the scope of her jointly undertaken activity was that she was going to go in and involved he becomes suspicious of mr habib doesn't want anything further to do with him and at that point in time everything in so far as miss jean is considered is functionally factually and legally over it's not until four months later june of two thousand and fourteen when miss far reestablished contact and at that point in time she makes it clear i'm here on my own this has nothing to do with percent do i don't want anything to do with him anymore i have no relationship i want to start fresh with you mr habib and i want to go forward from this point counseling if if we agree with you on the first point as to the last some amount which then in effect limits the  activity to the interaction between eugene and b is there any way she could be a minor participant in that i mean doesn't that undercut any notion that she's that she is now a minor participant in that limited activity no your honor i don't think it does because it in order to properly analyze whether or not an individual is a minor participant i think the court has to go ahead and take a look at  amendment seven ninety four which was not in effect at the time that misjudging was sentenced but because it's a clarify and then it is in effect now and i think it makes clear that in order to go ahead and determine whether or not a person is entitled to a minor role you have to go how you look at their conduct within the jointly undertaken for lack of it in compare with and why it is still got to do the separate analysis may end up in the same place but you still have to do it yes and the district court made a rather poignant comment i think we have it and your time has expired i'm sorry with i gave her body over time so we need to go to the last case and thank you