retroactive the government doesn't contest that nd circuit precedent for close mr bear us from raising his actual innocence claim on direct review or in his st twenty to fifty five  jury may have convicted mr bear us without finding that he knew that the drug dealers purpose in moving money to the dominican republic and colombia was to conceal attributes of their funds  and nd sex didn't want need to forty four does not bar this claim that provision is discretionary and by its terms it does not apply to the northern district of ohio is decision here to start with the an actual innocence claim and determined that it just couldn't be sure based on the indictments the jury instructions and the trial evidence presented that the jury had in fact not inadvertently convicted the defendant of a nonexistent offense and offense that subsequent precedent made clear with no offense at all by narrowing the statute of conviction and so to hear that possibility exists in this case again the key question here is what the drug dealers purpose was in prince putting the money abroad to the dominican republic and to colombia and whether mr baer if knew of that  purpose and the problem here is that the government's key witness at trial agent curus when asked point blank what was the purpose of transferring the funds why did these drug dealers try to move their money what's the purpose of that particular transport he testified that the point was to plow the money back into paying other drug dealers abroad and therefore to allow them to get paid in the purpose and other words was not to c because the funds as the supreme court inquiry are said must be present in order to find to find a defendant guilty of international money laundering you know the government points to various trial evidence that they say is proof that there is some evidence of some sort of evidence of concealment they points to the foster emittance is the for the way in which the money was transported with the various forms but the problem is the government the problem is that is exactly the kind of circumstantial evidence that the supreme court inquiry are rejected as adequate on its own to establish international money laundering whereas here there is it's really very similar to quark because there was virtually exactly the same expert testimony and that came and spoke here and inquire the government put on an expert witness from the customs service who said yes the drug dealers may in fact given that it's an on lawful activity they often do try to use surreptitious means of transporting money from the united states to places abroad  that alone is not enough to establish money laundering because the question is what was the point of sending the money abroad if not how did you do it and st of all the decision was not a determination any prior application for writ of habeas corpus again right now we're at the savings cause so much so the question the question is whether twenty  fifty five dollars he has been satisfied i mean the whole point of the northern district of ohio and six circuits decisions was they concluded that mr barrett's couldn't get past twenty dollars to fifty five dollars so by the tax of twenty dollars to forty four  so yes judge oldham i think we would have several paths for it and i think we would agree that the abuse of the writ doctrine might be the right way of looking at it because the statutory as text doesn't seem to cover here and mention the questi mccluskey of course strongly suggests that the government bears the burden of pleading abuse of the rich that's not something the government had the opportunity to do here would certainly i think need to do that the alan mayo decision from the th circuit you know a lab right from that point and of course the abuse of the writ doctrine is also a discretionary doctrine that looks heavy only to the equities and i think inevitably would draw you into looking at the merits of the actual innocence claim here and again i think the th circuit has some useful precedents on that point and that's i think exactly why in two instances in both the harrison decision by judge of kuta and the alan mylo decision that i just mentioned the court was willing to not consider i think in one case a rd of twenty eight to forty one actual innocence application barred because it considered that the equities we've just running so no i don't think just considering it's an abuse of the writ would be the end of the road here how many would argue how many twenty to forty one's business reverse filed if you count the ones in  to fifty five process that that point was inadequate or ineffective to test the legality of his detention because he was actually sort of i think a bit of a victim of the procedural history and being transferred all over the country to different prisons  he didn't raise it and again i don't think that would be much of i think looking at the th circuit decisions i mentioned i don't think that's the kind of thing that should necessarily qualify as an abuse of the rats and again the government has implied so i do think that this is a case in which the equities we very strongly in terms of which you dictating is case really is on all fours with the three cases and what this court has already entertained actually and maybe for the ri for relief in this case is that is that where you're going with that well i think where i'm going is the standard this court has set out especially in garland in santiago which is is it clear that the jury has not convicted mr barrow us of a nonexistent offense is it so clear for instance from the evidence that they couldn't have rested on agent curtis's testimony that the purpose was simply to send the money back to the drug dealers to plo into the drug funds to the drug trade and so if that possibility exists if this is sort of a threshold gateway determination and the next step would then be to ask the district court to entertain the twenty dollars to forty one require and i think the answer is clearly no here because no matter what the government point you to the problem is again that agent presses testimony and other evidence in the record makes it clear that the jury very well might have just credited the idea that the drug dealer's whole point was to simply send that money back to buy more drugs which is exactly what was true inquire and exactly what the supreme court thought was inadequate didn't just need money across borders in a secretive manner in the hopes that it would arrive safely that is quasar instead they associated invented names and addresses and in some cases personal messages with particular transactions  purpose to pretend that the money was coming from people other than drug traffickers so this concealment didn't inquire terms facilitate the transfer it didn't make it more likely that the money would reach its destination in the hands of foreign drug traffickers  conceal the source of the funds and that's all the player requires quire itself explains that structure can be circumstantial proof of purpose and as this court held in brown cited in our brief aspects and consequences of structure can establish fake name demonstrate that pendant wanted not only to shield himself from reporting requirements but to conceal the nature or source of the funds if the only goal was to avoid reporting requirements there'd be no need to use a fictitious name and so in this case the dinero express to disguise the nature of the money to make it look like the money is something other than what it is and nd importantly mr bruff repeatedly emphasized the testimony of special agent kerr which we heard about in the opening argument here that he testified did that two purposes of money laundering generally this was an expert to purposes of money laundering generally are to repatriate the profits of the drug dealer and to promote the sale of the chanel narcotics there's no dispute that was the purpose here but that same expert agent again testifying as an expert not specifically about the generic spread scheme but testified as an expert that money launderers quote do not want people to know that they d are involved in criminal acts and quote and for that reason they launder money to quote make it look like legitimate income that's our way three hundred and eighty seven to three hundred and eighty eight so far from undermining a purpose to conceal the government's expert here prove that he didn't testify only that the money was shipped abroad to plow it back into the jury and it's opening the government explain that the american press created the remittances to quote disguise whose money it was and the government really hammered this point in closing explaining quote the whole reason to create fake remittances for these people that didn't really exist is so that people don't know their drug dealers are the people who are dropping off the money this is the theory that the jury was presented with the jury when the jury heard the evidence that this but these transactions were structured in such a way as to disguise purpose to structure these transactions but there was also a purpose to hide the source of the funds that's why judge in the northern district of ohio determined here that the transactions were quote designed to conceal where the money came from not where it was at a given moment magistrate judge k below and judge james below expressly agreed holding that mr bruff failed to show that he might have been consistent convict of a nonexistent offense in light of player and this court should reach the same conclusion in this way it's quite a bit like wilson versus fox defendant lied about where his where the money he was using came from in fact it came from drug transactions he lied about where it came from and that made it more difficult for the government to trace and demonstrate the nature of the f to the twenty to forty four a issue that is another way as judge wieners question suggested that is another way to resolve this appeal this is a successful petition raising the same grounds for relief of the prior petition passed on by one court already the filing here would still be on the standard of discretionary is that correct is a discretionary dismissal your are and i agree that the court used the term required but the court did cite the district well in supporting this holding and tugwell itself says that it's a discretionary analysis so the court may have felt that under the circumstances the court may have thought that under the circumstances dismissal was compelled but it's not necessarily true that he thought  that demanded the dismissal of successive applications except in rare cases and court that's been bannister versus davis on monday not to say that that case is directly on point your honor just that the principle of the principles of the writ and successive repetitive petitions those were not purely preparatory principles they were they suggested they were factory principles but they they put them on the scale in favor of dismissal for positive there's no question but judge james would have held judge the district or below had ample had listed several reasons for wanting to dismiss the petition among which the merchant was excessive was only one i don't think there's any question that the properly dismissed if i can i'd like to make one final point which is ultimately i think it's important to remember what is happening in this case here particularly to the extent  juror would have convicted him this isn't an preserve claim this is a long since final judgment or long past direct appeal so he has to satisfy that stringent test that this that this court said applies at the twenty to fifty five the stage in christopher versus mile there is no way that he can establish either that he was that no reasonable juror would have convicted him on the concealment theory for the reasons i discussed before but more importantly i think practically speaking more importantly there's no conceivable examining the merits of the claim to determine whether the intervening supreme court decision has rendered him actually innocent and christopher i think is a really instructive case here because in christopher the defendant was charged with two alternatives series of fraud one of those theories of problems arguably invalidated by subsequent supreme court decision but this court and christopher held that the indictment charged both of those there in the jury was instructed on both of those theories but the bottom line at that age three  conviction even if the jury returned general verdict and even if they were instructed on both the bottom line of the broader sense didn't involve regulatory regulatory it involves currency and not regulatory licenses which was the theory that might have been about a subsequent supreme court decision so working to christopher here at the same principle yes rather caniff as d the question is whether the defendant may have been convicted of a nonexistent offense but also the question is actual innocen even under that lower bar we think the evidence here clearly suffices to show that there is no reasonable pardo no reasonable probability that he's convicted of a nonexistent fairness you have five minutes over a bottle so if you'd like to begin thanks very much a few quick points really i think it's remarkable how many decisions would be subject to potential question if the government's queena standard were accepted because i think it is incorrect in several respects so st of all i think that it is simply incompatible it seems beyond it and garland in particular to look at the evidence on the record here and say it's good enough if there are some evidence on the record that might have supported and theory a conviction on the proper ground under quasar i think the problem is if you look at for instance the santana decision  very similar set of facts very similar parallel that was a breath case in which the supreme court had subsequently said that you made it but for causation to convict someone of providing drugs that lead to santana decision had said look the evidence in the record actually is sufficient to show a heightened standard of presentation but the court still said that wasn't enough and allowed the actual innocence claim to proceed because it said what matters is what did the jury actually find here looking at the indictment looking at the jury instructions and looking at the verdict form and like they are it was a general ready form and the court couldn't be certain that despite that evidence in the record the jury had in fact found but for causation and so to hear even if you credited what the government is saying with respect to the other evidence and i thought it could satisfy quite a circumstantial evidence or even more than circumstantial evidence of the purpose of the transactions and showing there was an alternate purpose in addition to trying to just simply plow the money back into drug dealing in the dominican republic that wouldn't be good enough for this ruffled stage under and again how this court has interpreted that decision and garland and santana that was a case where the only possible way to interpret the jury's verdict against mr christopher was to conclude that they had in fact convicted him on a valid theory after the supreme court's decision because the question in that case involved whether the fraud was simply sort of extracting permit reform or regulatory fraud w regulatory permits or whether it was fraud in the monetary sense of sort of extracting money and the courts said well there's no way he was convicted of mere sort of regulatory fraud because taking instruments proceeds money from people was a ultimate entire scheme and so there was really no way he could have been actually innocent at all on that record again garland both garland and since you know them are directly contrary to that and garland it was a fan to his claim and there were many one hundred and twenty counts many of which were not contested and the court still said because there were some counts that may have had a murder problem under santos it was appropriate to renia and not at and let the district on a twenty dollars to forty one dollars sort out the merits of the claim and i think the government's position really would be something that puts the cart before the horse and would turn every single threshold saving of class claim into jumping ahead to the merits and other cases but all of those cases involve questions where the defendant himself is the one who is both hiding the funds in the transaction and knows of his own purpose there wasn't sort of any question that when you put the money in your own bank account after taking all of these through a vicious means you would have perhaps an intent to conceal but the question here is what the regulators were doing and if it were so obvious that there concealment alone show the purpose the government wants agent chris would be very difficult to