own this is a case with many layers and i'm going to begin with what we regard as the bottom a fundamental layer and that is our motion for specific performance in this case and you're still my are song i'm still government agrees to do the government said it would not prosecute mr avery so long as he did not breach the plea agreement it says that he breached because he sought twenty two fifty five relief based on a ground that he did not preserve from waiver in the plea agreement and i want to just talk a little bit about what this plea agreement actually said it said he wouldn't be prosecuted as long as he made a guilty plea to honest services fraud and that involved in this case admitting a breach of his fight you sherry duty self dealing self profiting and having this conflict of interest with the interests of the trust the on whether he has to admit money property fraud based on false or fraudulent statements or misrepresentations silent on that point he has to agree not to do a direct appeal and he didn't do a direct appeal and as i said there are certain waivers that he made to a twenty to fifty five petition and the government interprets that as meaning if he comes in and says the conduct i admitted does not in fact constitute honest services fraud that that's a breach it's pretty fundamental respectfully to collateral tack in this case that a defendant has to have the right to come in and say my conduct which i admitted and i don't repudiate does not constitute the crime of my conviction that meant that my confinement unlawful and i'm with you so far ok and i agree that filing a twenty two fifty five is not in and of itself obviously a breach of the agreement and we have the unusual case here where the underlying law ships but what i think i'd like you to zero in on is when the individual recants the actual statements as in terms of admissions that were made in the plea as opposed to the larger legal question which is challenged on the twenty to fifty five and i think that your honor is referring to the very lengthy affidavit that mr every lodged under seal with his original petition and there are two responses to that  the critical thing he had to admit and that he did not repudiate was that he had a conflict of interest with the trust that is this loan was guaranteed by trust assets and he didn't arrange to repay it there is it supposed to be a repayment agreement drafted me didn't do that he never said i did that he didn't he didn't repudiate that he failed the trust in that regard remember that he had to that we now know that ana services fraud has as its core the admission of taking of a kickback or bride and there are sort of these hints in the information in this case that the project  to do a charter aircraft service was meant to benefit the trustees i think that that sort of the tenor of the information and he what he didn't say and that's ok because he's saying i'm this didn't make me innocent as i didn't take any kickbacks i didn't take any bribes i didn't give any kickbacks i didn't give any bribes i ask you and i know you're working a fine line here because there are some sealed documents what about statements regarding mortgage the mortgage well i think that what brings and i think mr cain and his can my clients contact with mr cain in terms of operating the charter service and beginning the project itself and the responses that he this to me is part of admitting an intentional deception of the trust and he said that it wasn't an intentional deception of the trust but as i say in the plea agreement he wasn't asked to admit and he didn't so he didn't repudiate admissions in the plea agreement but didn't he in other words the i'm sorry i wasn't didn't he say we agreement that he used the fifty two million dollars to obtain along for three hundred four thousand dollars and then in his twenty fifty five he said i have no idea what that money was for what i think he said in the twenty to fifty five is i understood that i was supposed to clear my debts and this is this was part of this whole project and then there's a context to this trust instrument and to the ability of the trustees to be paid by the trust for their services and it was kind of a strange trust but it sounds as though these trustees could take fees and including i think in the case of the mortgage fees in advance or fees that went against future trustee fees so i don't believe that that was a repudiation of the plea agreement in the sense of saying i theories of fraud on a services and intentional deception to say that i use the money to pay the mortgages is not to say i committed intentional deception it's just another piece of his breach of trust and self dealing what if what if you then recants that fundamental principle about what what this money was this three hundred thousand dollars  what these trustees did over the years was they had counted that first of all the trust was very very well cared for until the day she died so that piece of what that and purpose of the trust words that purpose was carried out the management of the trust the structure allowed the trustees to make many decisions as the  as the officers of the vanco this company that held the trust assets and it seems to me that there was something of a pattern with respect to these trustees they could take advances against their fees and that would have been what would be a form of self dealing and in this case what we had was a situation where if you stepped too far in terms of the self dealing at some point it was going to be a breach of your fri duty and i don't think the bottom line is that even in his affidavit mr avery never repudiated that he stepped over that line and that's the thing that he would have had to repeat rep line and i think that my client's conduct is conduct that falls into that category of conflict of interest and sell feeling that set by skilling that said to not be hon petition made that very clear and that's what we're saying he did the government agrees i think in their brief that if that is what he did the net he didn't he may not have reached the dream and so you tell the government a and in our view he didn't essentially repudiate the things that he admitted it's just that those things were not a crime that is our position and i just quickly want to talk about how because he didn't breach the government has basically what constitutes a rescission class and i just wanted to make two comments about that first the interests at stake in the plea negotiation process are to achieve justice whatever that term means and finale importantly for the defendant as well as for the government with less use resources and if you allow rescission especially in a case like this because what we're saying is that he admitted conduct that doesn't in fact constitute honest services from the government now wants to get a second bite at the apple under the different theory of intentional deception and they think that their rescission provision should permit that and it's just as a policy matter the way you say a law school about public policy and contract provisions that should not be allowed because of these interests that are stake in at stake  and and also this plea agreement didn't express lee say with there's these two theories of fraud and we and you're admitting on a service is fraud but if for some reason your conviction is is they cater to w because you're not guilty of honest services for we get to come after you for intentional deception it seems to me that if that's what the government means it better say that in a plea agreement and because they're the drafter of the greenman these terms a vague and should not be interpreted against my client i have two minutes now i quickly want to talk a little bit about the statute of limitations motion which is the other disp  motion that my client filed we know that the law is that if the second charging instrument is substantially the same it will relate back to the first so what we have here is the information and we have the indictment and the government is relying very heavily on the ninth circuit's decision in every the original decision in every sense the case back to the district court and we don't think that the language in that decision and we said it on the brief tells us that this is a definite decision that that panel made that these that these that the indictment would relate back they didn't even have an money and property and the intangible rights to honest services this would be an excerpt of record one hundred twenty six and that's consistent with a charge charging a violation of one thirteen forty six because of thirteen forty six says it is a scheme to defraud can be one to deprive of honest services and of course only one in the information only one had to be proven  and strikingly the information never says and i would challenge the court to look at the text of that information and find where it is said that my client made a false misrepresentation of false representation or omission to anyone what it says is there are many things he didn't do to protect the trust but it doesn't say that he lied or failed to tell somebody something important v then when they talk about the please the court james pierce united states defendant mark every to fall into trust out of four than fifty million dollars funds that he lavished on himself and his friends the district court correctly concluded that he was subject to prosecution prosecution was neither time barred or vindictive the resulting convictions are sound and should be affirmed now turning first to the plea agreement issue there are two independent grounds on which defendant claim falters and one i didn't hear my friend on the other side address at all which is that unlike the plea agreements at issue in the baron or transfigure assume cases the language in this plea agreement w both broad and unambiguous we clear that under the circumstances in this case defendant avery was subject to reprosecute sion and that language reads that if the guilty plea is a number of verbs vacated set aside withdrawn rejected cet era or the sentence is vacated set aside modified for any resort at any time in any proceeding for any reason then the government would be free to prosecute the defendant mr avery for any charges arising out of the investigation for which there is probable cause that's the end of the inquiry and your argument is that claimed withdrawal of admissions is prosecute the defended the following sentence though is the one that i just quoted with the important transitional provided however in other words it's an exception to the agreement that says in the instance that there is the vacant tour of either the guilty plea or the sentence at any time in any proceeding for any reason then the defendant is subject or the government is free to reprosecute for any charges for which there is probable cause there is no ambiguity in that  language i read my friend's argument in the reply brief to be oh there's some ambiguity because the first sentence sets out the exchange but that language has to be read in context of the very clear second sentence providing that exception and again that exception is language that is quoted not only there but in the preceding page of the plea agreement setting out the defendant's obligations if that that argument stands alone as to  here was satisfactory the court need not weigh into and determine whether there was in fact a breach of the plea agreement or not now of course we think that there is the district court so concluded and we rest that argument onto itself once or two independent to one piece of that this mention of the mortgage i won't say more about that because of the sealed nature but there are a number of other places i would urge the court to look at pages sixty six and seventy seven of that after david heath sets are clearly i never lied or made misrepresentations to the trustees and later and i believe this is around pages one twenty nine and page one thirty the defendant says essentially i didn't even have access to to make decisions about funding and funding scuse me it was all this somewhat enigmatic character robert commander kane those are clear factual recantations of the facts that were necessary to his plea agreement that's the first basis on which the breaches his plea agreement and the second the one on which the district court alternately relied is by filing a twenty two fifty five in which he invokes an actual innocence theory the police agreement allowed provided a broad waiver of collateral attack and then specified two particular exceptions that mr every was permitted to collateral tack based on cites the predecessor earlier decision and send of all lopez talks about how as long as the defendant isn't walking away from his admitted conduct than an actual innocence claim wouldn't be a repudiation of the guilty plea but again we have that repudiation here and frankly going back to the sons of all lopez case that actually says look if the government wants to enforce a collateral attack waiver there needs to be that language in the decision so that ground for finding breach is also permissible but again now we're just on sort of the breach of plea agreement side which this court in our view need not weigh into at all if it looks simply to the plain language of the p i'd like to say just something on statue of limitations because my friend raise that as well look as i'm sure the court has and will again at the language of the information and the language of the indictment they are nearly identical and this court has alice this is are we talking about the same elements the same offense sort of likely the same quantum of evidence and the same sentencing exposure same offenses  it's true that the plea agreement referred to thirteen forty six on the services fraud but as this court knows on the services fraud is itself contingent on a wire or mail fraud theory and so it was on a service is fraud in conjunction with a wire fraud theory so what is he then charged with after his success in the earlier version he's charged with wire fraud yes it's the money and property version because skilling takes off the table on a services without a bribe or a kickback but those elements at its core at the core of this say the punishments are the same the description of what he is charged with is the same and that kind of gets back to the core question and the statute of limitations analysis is notice is the defendant on notice of what he is to defend himself against this court in numerous decisions i think the sears roebuck is of an older but pretty straightforward recounting of look you know you've been in that case there was a change of false statement from one provision to the other but the court acknowledged this guy's being charged with making false statements here the defendant was charged with defrauding the trust and the trustees for his own benefit and that is why the information told the the statue limitations period and made the indictment itself timely there are a number of other arguments that he's put forward that my friend didn't address but if the court has any questions as to any of those and i stand ready to answer them i also am happy to yield to the balance of my time to the court thank you thank you very much but please put another minute thank you on plea and should not bar my client from getting specific performance i mean it's basically saying we won't prosecute you except if for some reason you're not convicted of this anymore we're going to prosecute you that's pretty much what it says and that not it doesn't matter what the reason it's but we know that it doesn't breach a plea agreement to come in and say that my admitted conduct does not constitute a crime the there are some references and i just want to go the way this trust worked there could be in advance there could be there could be use of trust money as an advance against fees i think that's what paragraph six twenty two suggests but the