i'd like to start this morning with the question of the withdrawal of plea and whether there was a fair and just reason to do so under this court's precedent legally this is not supposed to be a particularly high hurdle for a moving party to overcome factually there's no dispute as i understand it that the government withheld certain facts in tell after mr back to use the pled guilty and so there were concrete things that he could point to as either newly discovered evidence or a change in circumstance that he cited as motivating his motion to withdraw the plea specifically the revelation that it was his then wife who was the genesis of the government's investigation who had first reported him to the f b i and worked throughout the course of an entire summer it seems to gather evidence against him and then was later compensated to the tune of eight thousand dollars after mr baptista went to jail those were important facts and i don't think it's overstating it to say that any criminal the senate wouldn't want to know those facts would want to know that it was their own spouse who was building the case for the government before making the decision to plead guilty mr scott they're going to start the government's going to stand up and say well that's not the standard we should apply today because there was a plea agreement this case and your do so within fourteen days that wasn't ambiguous where he said you may have the right to appeal or i don't know if you have the right to appeal he said if you wish to appeal do so in fourteen days i think that fits within our case law which says that if the if the trial court in the case to the defendant that they do have the right to appeal then the defendant can can fairly rely upon that the second reason beyond being advised by judge guilford is that even if we do apply the plea agreement there is still the question of voluntariness and that's a little bit of a term of art in the context of pleading guilty it needs to be voluntary an intelligent decision made among the have a right to know that is that his wife had been informing on him if he had a right to know under discovery i think we could probably i think we could probably debate both sides about whether that's certainly one of the reasons that he moved to withdraw the plea in what i was winding up to i didn't mean to sidestep the court's question is that whether or not he had an absolute right to that information the question really is i revelation of that information a fair and just reason to withdraw the plea or is it a plausible basis for him to want to make that decision and so you know setting aside whether the government should have turned it over earlier should not have i don't think we well i guess the third reason you've been behind that would be that we've also frame this as a breach of the government's duty of good faith and fair dealing and so mr batty's in our view reasonably felt somewhat like the  victim of a bait and switch wherein he pled guilty to a fairly benign factual basis that gave rise to dive lines of six to twelve months and after revealing this information from the ex wife the government of twelve level and hanson now granted the government could argue outside the guideline range and could ask for up or to just once that was in the plea agreement but twelve levels in analogizing those levels to attempted murder is simply so far beyond the expectation of mister that i think it's tantamount to sharp practice in doesn't comport well with the government's duty of good faith and fair dealing accounts i could see your argument as to counts two and four because those were after the contact with the wife but counts one and three as alleged in the indictment which your client pled were before any contact with the wife so i the record sits right now because that's the way that the government gave us the information afterwards what mr about tista wanted to do was to take investigation take discovery and start building the factual record to find out satisfactorily through cross examination through the government's rule sixteen obligations once we're asking for the right things we suspect that we might have been able to change that timeline so i'm not comfortable saying that the government's version of advances is etched in stone because it's simply what the government chose to give us at the last moment so we think that we would have been able to change that factual record substantially had we been given the opportunity to do so but legally it's still a matter of bargaining power and end of the deal that he struck he if if he had a bulletproof defense or even a plausible defense which is the test to the latter two counts sick ounce two and four that may have changed the calculus of whether he would have accepted a plea to the other one if he had that that bargaining power he would have been able to drive a better bargain it wouldn't necessarily have had to plead to those things or at least could have asked the government to give him better concessions on those particular those particular facets of this please the error that in our view judge guilford made  was similar to the errors that were made in mctiernan and in garcia the record reflects the judge dilfer put a great deal of stock in the fact that mr back to according to the judge was taking a position that was contrary to what he said  and had i known then what i know now i wouldn't have answered the plea so the thoroughness of the rule eleven colloquy and the penetrating care that judge go for took as he described in his order is simply entirely beside the point and more than being beside the point it was legal error we would suggest to the court to hang its hat on that it was equally legal error for the court to get into kind of a fine gauge evaluation of the merits it at least approach t simply a plausible reason that at least would have possibly motivated him to reconsider and to do something different than the decision that he made so with that i'll try to reserve a minute to revitalise thank you so much hon called the united states versus assault so now that's a memorandum decision what the court looked at an advisement of appeal that said if you wish to appeal this sentence that has to be done within fourteen days and that did not and also important in that case was the fact that there was no statement that the defendant had a right to appeal which we see in the other cases like buchanan and felix so i don't think the appellate waiver is way with respect to voluntar this is always been a question at the district court and in the briefs about whether the defendant had a fair and just reason he never raised the question of voluntariness until the government raised the appellate waiver and the issue of voluntariness is whether the defendant knew everything about his options or whether he was coerced under duress or had had a promise made to him that wasn't filled none of those happened here and i think your honor is right in where we the supreme court made clear that the defendant doesn't have to have every possible fact available to him he just needs to make a reasonable choice among his options so on that basis i do believe the appeal on the motion is waves  have a case that's comparable to this i mean it seems to me this is a rather unusual case where he finds out later that his wife who he can trust him with all the details of honor but i what i think i want to draw as a factual distinction here in discovery we produced statements that the wife made to the f b i when they executed a search warrant and in that report she laid out the defendant's entire plan what he was going to use the items relocation payment that was made two months after she made the tip so not only did we produce in discovery her statements and the theory of the case but we also argued and litigated that theory in response to the defendant necessity motion so this isn't a case where the defendant was blindsided by this theory that came out of the blue he knew that was the government's theory and he also knew in the plea agreement he didn't have protections to limit his sentence so there was no breach of good faith or fair dealing in that regard with respect to the marital privilege that you raised your honor we've cited the cases in the brief the government is allowed to use statements of a spouse to investigate and apprehen and to obtain a search warrant so while there are marital privilege kind of issues floating around the case on the front end there would be no relief for that and we still could have investigated prosecuted and executed the search warrants on the papers so you're saying that it wasn't a surprise to the fed then that the government such a such a substantial enhancement based on b the conduct that wasn't charged he certainly had no notice of what the requested sentence would be that that was a decision we made and put in our papers but during the necessity of litigation not only did we brief our theory but there was discussion about the fact that there's case law from the circuit that says motive in a passport fraud case can be a grounds for an up or departure and i discussed that briefly very briefly with judge guilford in the hearing so there certainly was a sense from the government that was communicated in those hearings that this wasn't a typical passport fraud case that the fact that this was going to be used to commit murder in a foreign country was something that we thought was very serious and dangerous on the one last thing and then and then i'll move on is that the issue of the tips r and the relocation payment only applies to counts two and four counts one in three is as judge jones pointed out were committed on june third two thousand and fifteen so it wasn't until six weeks later that miss bapt came in this christian excuse me first came in and reported the defendant's conduct now mr scott's point was that potentially there's more discovery on that issue but i prefer the court to page one hundred six of the record it's a walk in complain from the defendant's wife at the f b i it's documented that that's how we learned about it and so i think it's pure speculation that there's anything prior that would have changed the view on c honor with respect to the necessity issue i think the most glaring deficiency here is the legal alternatives issue the defendant can not commit a crime when he has a lot of other choices available to him and here the most obvious one is to call the brazilian police and he didn't want to do that because he thought the children would end up in a group home and that every group home in brazil is run by pedophiles that's his subjective view but the question is what would a reasonably objective jury say there and because that avenue was available to him his it was unreasonable for him to say i can't avail myself of that week and as i understand your argument he also could have just traveled to brazil on his brazilian past where he just didn't want to because of potential migration consequences here that's right now his passport expired on may third so he had that legal avenue to travel of up through may third after that he could have abandoned his u s citizen application and travelled there was nothing keeping him in he wasn't in custody he had options to go down himself on top of that he had the united states state department that could have performed a welfare whereabouts visit and he was involved in hague convention proceedings he  kind of obviously and reasonably frustrated and impatient but that doesn't give him the ability to possibly federal law in that regard in addition to the alternatives the only other one prong that i touch on is the i and certainly when you have your children in danger that is understandable that any father is going to be upset but the proffer here was insufficient for judge wilford to find that element was in that because all we have is things about e mails about tantrums e mails about arguments and then an unspecified plan that the wife the children's mother might move them to europe and so it's not that immediate emergency that would cause the defendant to have an excuse for violating federal law one of the examples we see in the case law is in a prisoner escape or prison if it's on fire and the answer is yes because that is in imminent immediate threat to his health and safety but here there were another a number of other thank your honour's a couple quick points mr best he said absolutely was blindsided by this revelation the government's suggestion in a prior litigation about the wife's testimony was contradicted by her own statements that she was making to him simultaneously that she was apparently playing both sides and telling him one thing in the jail and telling him that the f b i was pressuring her and and that you know would you please plead guilty and because he was missing the key information about her compensation and the fact that she was the original tipster he believed her and he simply didn't put stock in what the government disclosed without in telling the entire story that she was the tipster and that she was on the payroll so he didn't have that expectation he believed his wife at the time that she was talking to him while still working with the government that that was the key problem and they keep missing information this isn't a question of knowing all the facts like to rescale this is a question of having a entrapment defense whether just on the last two counts or whether on all of them depending on how far the time i would have reached back in terms of the cooperation it would have been to potentially not racist government conduct motion particularly when coupled with what we felt was a messiah violation for having her continue to meet with him and report back to the government while he was in custody it also gave rise to frank's challenge to the search warrant to other motions practice including marital privilege that he would have wanted to raise so he would have wanted to at least explore those things again would they have carried the day perhaps but he had the right to explore them and to decide whether or not he wanted to to do that rather than the plea that he took and finally i know i'm over but in terms of the waiver the government cited an unpublished opinion about this language if you wish to appeal you must do so within fourteen days i would suggest that that if a person said to another person if you wish to have lunch please let me know