general resentencing so the district court would have the ability to really address the last issues and it will be able to redress the last issues hopefully after the kicking trial has occurred and there are harder and better facts to deal with the issue of colloquy people talk about this tank psychiatric problems and the declaration of paul wolf paul wolf indicate that he spoke to the u s attorney at the time michael diggler and spoke to him about mr tang's crash psychiatric care the government know that she had laundered money there's no proof in the record that she has laundered money that issue has never been addressed what happened in this case was that miss tang did in fact receive several checks for john from an entity separate from mr hickey while this case was going on for accounting work the government knew that she got that money there's no proof that that was it's clear that she got money the government has made unsubstantiated allegations that that was wanted money and the district court refused to conclude that that was laundered money so the facts are that this tank received money for accounting services from  yes but what this tank bargained for was not the downward departure this was an eleven c one c sentence or an eleven even one c at the time it was a bargain for a recommendation and that's an important because when someone standing up at sentencing it's like arguing to this court you have a limited amount of time to make the argument that you have to make and when someone when you have a defendant standing in court if you have to if you're forced to waste your time making one argument you have to waste your time on that argument and you can't go on the other mark our arguments and in the give and take of the trial court level sometimes the judge will say well yes i'll give you this i won't give you this well if you get the benefit of her bargain she did not get the benefit of a bargain because she bargained for the recommendation she didn't bargain for the downward departure that's a very different thing she got in the case law adjustment if you can if you can have argue for and then that precluded you from from making other arguments how do we judge the harm here you judge the harm here because or say error and if i had a different case i would strongly argue for per se error but i don't think you have to go to per se in this case because there were two other separate there were two other breaches by the government in this case right first words of prejudice of the prejudice is the expansion of time forced to concentrate on something to the detriment of the ability to concentrate on other issues particularly when you look at the transcript of the sentencing in this case there were a lot of issues that the district court had to decide and the district court was pressed for time didn't want to decide all of the various issues that were out there so that well says we can't make that argument and we declined to make that argument and here's why in court listens to the government and then listens to you and says you know what i agree with defense counsel there's no excuse for not making this recommendation it should have been made and i'm going to grant the adjustment and let's say that takes twenty minutes of argument time or the prejudice there the prejudice there is because it takes time and i think that there's a procedure that the district court could follow in that case that the government says that we want to get out of our recommendation that we bargain for the government we have a separate hearing they can say we want to get out of this recommendation there's a material change in the plea agreement we want to have a change to see if we can be discharged from our obligation under the plea agreement so you could have a hearing you could have a hearing on whether the government's forced to comply with the plea agreement or not and then the judge would say yes they will comply no they won't comply and then either on a different day or later there could be a hearing on the sentencing but it's a completely separate issue was whether the government has to comply with the terms of the plea agreement what's the other breaches the other group or the other the other breaches there are two other breaches the first is the use of mr tang statements against interviews she introduced them but she introduced them only as an example of the prejudice in this case to show that she had accepted responsibility if the government hadn't argued that she had a response that she had accepted responsibility she would not have had to introduce those statements so that her having to introduce those statements demonstrates just how prejudicial it was that the government breached its obligation to reject the acceptance of responsibility greets the plea agreement in two ways by using the statements about valley forge and by using heat her deep briefings against her finally the third breach was the time determination of her opportunity to cooperate got this ten bargain she gave up her right to go to trial she gave up all over trial rights for an opportunity to cooperate the government says well we have the right to unilaterally terminate that opportunity and stop  from cooperating and the government's as well there's an integration clause in the plea agreements and therefore the plea agreement doesn't specify exactly how long that opportunity will go so we have the right to unilaterally terminate that opportunity cooperate two minutes after the pl it page twenty one in the case that they parties want anticipate sentencing occurring until after the hickey trial so it's very clear that from the colloquy and from a reasonable interpretation of the plea agreement that all parties anticipated that the miss opportunities and the tanks opportunity cooperate would be continuing so the so the plea agreement was reached in three ways the government said that she had cooperated i'm sorry the government indicated that she had mats excepted responsibility based upon her psychiatric condition the government clearly knew about that condition at the time she entered her plea the government used her statements against her the government didn't have a right to do that and she wouldn't have been forced to introduce those statements if the government hadn't argued against acceptance of the sponsibility finally government unilaterally terminated her opportunity to cooperate in clear conservation of what the government indicated she reading the government's preplan they were talking about questions of credibility i just kind of sat there and wondered if i wasn't understanding what was going out and what had happened below because there weren't any credibility determinations for the just for a court to make trial court found to the contrary that there was no problem i understand what you're saying you're out of but it's my understanding of the law that the interpretation of the plea agreement and is subject to de novo review by door what's wrong with the last calculation the the rost last calculation is wrong for three reasons one it's based upon the stops and it's really clear the district courts that i'm simply assuming that the these are what the numbers are secondarily report that was done was prepared by a man by the name of lead bailey and it's a classic garbage in garbage out report he basically says this investor contributed to this amount of money this investor got this amount of money out it doesn't account for consequential damages it doesn't account for collateral or collateral expenditures it doesn't account for receivers fees it doesn't account for a whole bunch of things that aren't that are accounted for under the guidelines so if in fact there's going to be a calculation of los guidelines people have to look and see what the last and what is the last ten was responsible for or and i would say it's not thing but i would say at worst it's the one point three million dollars of unjust enrichment that the judge also determin the appropriate number if you have let's say some type of ponzi scheme or some type of scheme where someone is trying to defraud people to get their money and put them in the pop in their pocket what we have here is a failed real estate investment program and lots of businesses fail for lots of reasons one it clearly this case there was an assertion of net worth that was fabricated correct but that had nothing to do with the failure of the business that certainly aided miss tan in raising the money but that didn't help but that didn't contribute to the value of the business the business failed for a lot of reasons that businesses fail for and when you look at the loss you have to look at the last either of what the person tried to get from the investors which tried to fraudulent we get from the investors or the amount of honor just in richmond and there's no indication under any circumstance that mr chang was trying to defraud anybody of more than twenty methodology that this court a very similar case in oregon which also involved a failed real estate partnership that also in that particular case had developed some properties and the court there said a loss is what the victims  correct methodology that the court used courts even make some assumptions and in reaching that figure between ten million dollars and twenty million dollars the assumptions wrong favor of the defendant the assumptions amounts that were paid back to the investors prior to the fraud being uncovered she was also going to give them give her the benefit of the amounts that the receiver paid back after the fraud had been uncovered so those are th amounts that were sat in the restitution calculation that's that's in the record miss tank yourself and the plea agreement admitted that she raised her through her misdeeds over fifteen million dollars that's a further data the court had for it to to arrive at the calculation of about twelve and a quarter million dollars i should have lost and that was substantial evidence that was supported by by the record it was not based on an assumption  here with respect to a breach and that is a breach with respect to the the adjustment of the governments in the plea agreement agreed that based on the information that it knew at the time of the agreement court denied with respect to the two level downward adjustment for substance of responsibility a very large fact that was not known to the government at the time of the plea agreement was this three hundred thousand dollars payment from the united states attorney's office and not any other local state or federal agency so there is no no evidence that we the government the united states attorney's office that was a party to this plea agreement was not aware of that payment there are also other facts that relates to this strang's acceptance of responsibility or lack thereof she refused to meet with the probation officer she refused to submit her financial information probation in fact the probation department also recommended that no acceptance of responsibility adjustment be made as well despite the fact that the court went ahead and did that so there was certainly a lot of other agreements except for what is set forth in this in this document in this plea agreement so anything else that's out there that that you have agreed to counsel raised one issue not relevance here anything else no  upon and that certainly was the expectation of the government at the time that i believe six months out there would be be a trial and again the situation changed but in any event this week even tried there is currently eight august any event the court had before found as a matter of fact that that was not part of the agreement all of the declarations and i think that the case law says that while this court refused to novo the interpretation to do the facts in the lower court found evidence of her statements that she had made against her at the sentencing that was a contractual right when your position is if she had never brought them up the government would not have mentioned them that that's correct  she not raised those the by her raising those open the door but had had she not done that she would not have waived her right to do that there was an argument made below that separately this tank breached the agreement which not relieve the government of of any of its obligations that is not is not an issue that we have argued here necessarily certainly would be another grounds that would permit the governments to to raise these issues but we don't that doesn't need to be decided so they she had the right she waved it she opened the door and it was appropriate for the government to refer to the very statements that she had before the court responsibility in writing in the plea agreement states the government will not oppose a two level adjustment so we're clearly telling the court this is what the plea agreement says the government may not breach it in addition to your out of this the government indicates amount of money was raised this amount of money money came back to the individuals we don't know what happened in the meantime we don't know where those funds went we have no idea what mr chang intended to take and we have several judicial finding