and accordingly will turn to the st case united states versus yang differentiates between promotion money laundering which involves promoting the carrying on of a specified on lawful activity and no mention specified unlawful activity in a moment because it's important whereas charge would lead a reasonable person to understand that either the specific intent of concealment or promotion would suffice and in fact this is exactly the exact scenario that happened intended to promote the carrying of the specific unlawful activity yes exactly that is the raw element he will he that's the right that's the well there's no basis to find that he did do the promotion again under the under this court's case law that's my question my question is there anything to suggest that he would not have gone through with the plea agreement in the concealment language had been omitted well yes i think there is reason because he didn't do promotion money laundering i mean i think if you had been correctly advised i mean it we have to anticipate a number of different things and how it would have all played out differently maybe they go to the government it's a hey we'd be willing to plead concealment but but not promotion because he didn't actually promote any be vacated my client would be charged with the correct offense and he would either plead directly to that and be receptive to perhaps a slightly different plea agreement could be negotiated i think  room here is kovac which no which my client certainly could have anticipated and certainly with the immigration dimension decoded has imposed in denying my client the ability to gain a lot might not sentence him in the same way knowing how much more severe the last fifteen months of his of his sentence have been by as might it have another view of this case and that that isn't really in the  as as i would as i read readily and my question is going to be both for you and for the government but let's start at the beginning he was charged with as i said understand it in count  absolutely in a tie ok now we go to the language that is has been troublesome throughout this in which the magistrate judge uses both but without a destructive right nature location source ownership of the who troll property believed to be the proceeds of specified lawful activity so promote and conceal are combined in that one phrase and the languages the following the financial train court the financial transactions involved were you trying to disguise the source of the money involved defendant conceal a court you were trying to conceal the fact that the money was proceeds of judge transactions is that right yes your home that was your intent in engaging in these transactions yes so he allocute to a concealment right yes and then and then later not only does it help criminals to legitimate legitimize ukra procedures that is the concealment but it also helps further it's a crime which is promotion right but that's an observation he makes at sentencing and then  and and so where where does he actually plead guilty to two promotion in the audience we don't think that he does i think again we only think  both a money laundering but one dollar as they have different different mens react components then then then it seems to me it's similar to a person who is charged with going into a bank armed and and the for four for the crime of armed robbery and here is this a legitimate guilty plea where the crime of a promotion only if my client understands what the elements are and that's the question is voluntary that's why i'm not a psychic but what is the evidence of his understanding and the evidence that i see of his understanding is only in the allocution now there may be other things that were said to him and he may have read the indictment but what the opposition did he ever understands what the correct elements are that he has in fact charged with it again that's exactly what are some peak there were some language in the police green regarding promotion right and there's language  now here's my point that still doesn't get you out of the woods it seems to me it might get travel where it's but doesn't really get you out of the woods if in fact there is strong evidence of promotion something that facilitates continues the underlying illegal activity i mean you don't have to say my intent was to promote the illegal activity my intent was to assist in the carrying on of the illegal activity isn't that enough for promotion well i don't think so unless there actually is actual underlying in your legal activity that's why buying more narcotics promotes narcotics distribution but simply how do your knowledge the fact that he acknowledged when he was was stating what the basis was for his plea it seems to me that they easily support a finding of intent to promote he facilitated money laundering of hundreds of thousands of dollars that he believes is all you need to move your microphone down thank you sir he acknowledged that he facilitated money laundering of hundreds of thousands of dollars that he believed were the proceeds of narcotics dealings and the offer had offered himself as available to do more all of which was all of which facilitat would promote money laundering so i very much challenge your proposition that there was nothing in this record that would support an intent to promote if i can respond to that please your  that's why the words specified on lawful activity are so important and that is defined at eighteen u s c ninety five thousand and sixty seven because what my client is dream od'ing are his own verger money laundering activities but that is not specified on lawful activity because narcotics what about the narcotics that he was facilitating he was facilitating the concealment and disguising of it but he was  of the money of the proceeds which is what in a few minutes well i mean they're saying so you're saying somebody who you know you're saying that somebody who who drives the getaway car at the bank robbery is not facilitating bank robbery he's only when you are facilitating an essential part one can't engage in the business of narcotics activity unless one conceals it there are there are things that there are things that are essential to the realisation of the criminal activity and one when one facilitates some part of the of the activity that's involved in the illegal activity one is facilitating the overall illegal activity if you facilitate any part if you phony pieces of paper that can reference tax deductions and takes a commission in office and lat allows a person to to expense items in their company that are at the cash taken traffickers and offered to the agents that he could sell a tape for the transactions again your honor i think i was promoting his own money laundering which is not specified i'm off work to vittie but even in the in the example that you gave me i is promotion and there's no there's no mr neuter you you responded to me to me by saying that would lend render the the concealment language or the promotion language surplusage well there's no iron clad rule that you can't have surplusage and there are millions of statutes that in fact have a surplusage that there is a general preference for not and not interpret in statutes in a manner that could  render a part of them but when you have statutes like this one which list a whole string which lists a string of verbs that attempt to cover the waterfront and attempt to to to to ham in on on all sides to make sure nobody escapes you're going to find surplusage and and that i don't think that the protects you in the argument that you're making in saying it can't be that facilitating concealment of narcotics trafficking can be viewed as has as also facilitating the the promotion because i mean i think that we would we fifty six and stated that congress intended to create distinct offenses so while it's true that some supplies which might exist in some statutes here we have binding precedent on the issue that congress intended to create distinct offenses and there's not nearly overlapping here the entirety of concealment would be subsumed by by the promotion and especially in cases where a client has been convicted of both concealment it morning may please the court i'm going to take a posy and i represent the government in this case i also represented the government and i'd just like to begin where the other side left off  your honor your honors there is nothing there is no dispute here that there are two different ways to commit money laundering concealment money laundering and promotion money laundering and to pick up on some of the questions that your honour's have made there's the questions are whether or not there is an adequate satchels a sense that the plea here and whether or not the defendant was adequately informed of the nature of the charge which you played guilty judges walker and the ball have pointed to roll the ball space multiple places in the record that provide ample support from which to serve as a factual basis for a plea to propose promotional money laundering p s r paragraph thirteen for example is where it explicitly says that the undercover officers told the defendant that the money that he was moving fact he pled guilty only to concealment even though the indictment charge promotion your honor the defendant here was initially charged in a complaint that included two counts one promotional  money laundering and two dollars a conspiracy to commit promotional money laundering at the complaint specified that he was alleged to have acted with intent to promote then he's indicted again in two  indictments include a promotional money laundering count and a conspiracy to commit promotional money laundering the enlightment includes the allegation that he had the intent to promote an act and then he signed onto a clear agreement that  clear terms has him agreed to plead guilty to count two in the indictment which again specifically says intent to promote then at the plea proceeding your  the the magistrate judge confirms with the defendant that he has received a copy of the indictment has reviewed it it's been translated for him he's discussed it with his attorney he's he's satisfied with his attorney's representation the magistra well and number four item number four it does refer to the indictment however which as you point out is only promotion right correct there is going to bear on that i want to be very clear on that i do well but the problem is that what actually happened in war is what bothers me about this because he's insisting after after the judge gives that ambiguous statement about the rd element  september th to october th and then the court the financial transactions involved were you trying to disguise the source of the money involved defendant conceal the court you were trying to conceal the fact that the money was the proceeds of the drug transactions is that right yes your honor that was your intent in gauging in nice transactions that defend it yes your honor so i don't know how you get a plea of magistrate recites the elements again he includes all of the actual elements of promotional money laundering but that has or as you have acknowledged as we acknowledge here appended additional surplusage related to an intent to says in actual words i intended to promote right that that that is that is true your honor out so what did he say anything without using the word promote the say anything in the allocution to to show that he was indeed the continuing or furthering our cottage laundering and i'm sorry narcotics activity that he understood that that's what he was doing well your honor i think when though the magistrate initially a thirty nine year on so so the court asked the defendant can you tell us please what it is you did that makes you guilty of the offense charged in count two of the indictments eight hundred c r thirty three the defendant your honor between september th into october th in i attempted to conduct financial transactions knowing that the property involved were the proceeds of a drug sale that occurred in new york city and i knew that what i was doing was you trying to disguise the source of the money involved and then he inserts does it say yes he says conceal a different word the court were you trying to conceal the fact that the money was involved in the proceeds ye own that was your intent in engaging in these transactions i know that you and there's no speaking of any other intent here i just don't see how  please supposed to be very clear and understood and it's such an important event it substitutes for an entire trial and the plea apart from all the factual underpinnings and you know the factual basis for different components of what could have been pled to i'm looking at the actual plea itself or what he actually want is a crime he pled to if you go into a bank with a gun and you rob the bank and you're charged with armed robbery but you ask you this if i'm right and the plea was you pled guilty to the wrong crime or he pled guilty to a crime that wasn't charged but easily could have been it could have been part of a conspiracy or whatever and there's pled guilty to what he pled guilty to but if it goes back it's mere formality he would plead guilty again either to to disguising or promotion probably plead guilty to something i just don't know whether you can you can have it have whether whether the absence of prejudice is is is appropriate where the present he's guilty the crime whe you charge with crime day i think there's a problem with the hypothetical that judge walker just put you because it leaves out something essential to the facts here which was in judge walker's hypothetical he did not include that the at the that the judicial official administering that we included in describing included as an essential element of the offense the the essential element that was an element of the offense charge offense charged in the indictment because here the magistrate judge said as an essential element the intent to promote and and and and that was not in the disjunctive so he pleaded guilty to a crime which was correctly identified as count two of the indictment that he had that he was charged with and then that since the since the complaint in that he had reviewed with his internal and when the judicial administrating the police said it was an essential element of what he was pleading guilty to that was not part of the hypothetical that judge walker was was was putting to you he was putting a just a completely different charge from the one that was well the only real question in my mind and this is this is this is when oral argument gets to be a dialogue between the judges is if you have two possibilities of mens r it into a more generic form your honor i respectfully i think there's there's no there is evidence that the defendant was aware of what he was pleading guilty to and did in fact plead guilty to that and furthermore this court has regularly found a valid guilty pleas here there's much more than that he didn't just receive a copy of the indictment although he did that he didn't just receive a copy of the plea agreement although he did that he was advised of the elements again there was an extra extra language about the promote about the concealment but he was advised of it and then at no point did the record suggest at all that he was  was entered and he says after i was incarcerated in the metropolitan fractions center i realize how serious an impact drugs drugs have on human beings how serious money laundering is not only does it help criminals to legitimize know that that necessarily works makes your argument for you well i think i think you know it's subject to different interpretations i think at a minimum it shows that he was aware of the fact of a promotion  well well i mean i think your honor that it that and i'll turn it understanding of that passage is that he appreciated how serious it was at that point but furthermore after saying that he took no steps to withdraw his guilty plea if he thought there was something wrong with the police certainly he had an opportunity to do that and he made no objection at that point or no attempt to withdraw which just further support the idea that there was no appeal but i can't i can't couldn't count the number of times that i have sat in appeals from problems on the guilty plea where the assistant united states attorney sat at the guilty plea figuratively with hands in pockets as if the united states attorney is simply a spectator at the guilty plea where the entire all the action takes place between the judge and the defendant and the defendant's lawyer and that is not the disposition of the role of the prosecutor at a guilty plea because guilty pleas you have never been a judge and looking at from the point of view of the judge guilty plea is our place a huge burden on the judge they often occur without prior notice to the judge and he hasn't had time to elaborate preparation such as the u attorney should have done and would have done and the judge is suddenly has to has to tell the defendants the elements of the offense and all conquering telling the elements of the offense is not always easy to do in this case it was a mistake a slip up but sometimes the elements are quite complicated and quite frequently as i said the united states attorneys sits there with his hands in his pockets as the judge stumbles through a sometimes imperfect performance of it and then we have a big mess on appeal like this and who's responsible there are several people who are responsible but who is one of the people who is responsible it's the assistant u s attorney who hasn't done his job of making sure that the plea allocution was properly conducted and i don't know how many times i've had that situation before me as a judge of the court of appeals again and again and again and i can barely remember how many times as a district judge i struggled with putting to with getting together what are the elements of the offense piecing it together from a complicated statute that sometimes cross references another statute and i did my best but it would be good to have somebody there who is prepared for the event who seeing to it that the judge doesn't mess up the record that's part of the assistant s attorneys job they think you could carry that message back to your to your troops as part of their responsibility when they are involved in any court proceeding in a criminal matter  supports that defendant was in fact adequately informed that the nature of the charge any objection made by the defense attorney would not have been successful there would have been no basis for the your honor i should have been more clear when i was saying consented back that i meant that the courts could allow for the defendant in the st instance to file a two thousand two hundred and fifty five which would allow the defense counsel an opportunity to respond to what transpired but again our  different elements if i say i'm inviting the president of the united states joseph biden to dinner i'm not inviting both the president of the united states and joseph biden become a suggests a blue one is simply modifying it providing further explanation as to what the other one is and here when you read it promotion is being defined as concealment or disguising to judge walker or your hypothetical about the  robbery the what distinguishes that is that theft is a lesser included offense of bank robbery so that when he pleads to theft all of the elements there are shown here one is not a lesser included offense of the other because they then and that's not charged they didn't the judge did not and the prosecutor didn't bring to the judge's attention the fact that wait a minute this is a promotional crime he's got to plead guilty to promote it and  he didn't do that then that's a bonus and i would suggest to your honor that what makes this so prejudicial is that my client never actually had informed opportunity to decide whether or not he had actually done what the elements said that he had to have done because he understood throughout this process and until this appellate process when i came into this that concealment or disguise would have been sufficient so so when we wonder what he might or might not have done we can't answer until we feel he has that opportunity to know what the real elements are and that's why when the government says well he could have objected later he could do the objected later that you're making a factual assertion that your client believed at the time are you simply saying that the record can support this or are you telling us as the lawyer for your defendant that he in fact in his mind believed at that time that he was charged with concealment and not with promotion i don't think i think it was subtly different from both of those i think my client understood that a men's radio of concealment was sufficient to status find what he was charged with so he believed when he alex you did to the fact that he had the intent to conceal good that made him guilty of promotion he sometimes maybe but not under these facts not when there is no actual narcotics activity and with no evidence that he's ever been involved all the way over in this case but which has turned out to be a very interesting case thank you