authorizing in directing counsel for a sovereign foreign nation to intervene and take the laboring war in representing the government's interest in this asset for which you know about that issue yes it's it seemed odd to me that the  district court allowed that intervention but i'm not sure what difference it makes at the end of the day because at the hearing itself at the government participated as the only party opposing your interest and it just doesn't seem to me that whatever happened before that hearing adders why am i wrong  about well if i may i'd like to talk about the number of ways that that prejudiced my client first of all i think the authenticity determination was impacted by it but secondly the demeanor went to testimony that had been a deuced by the republic of trinidad and tobago it was not addressed during the trial testimony elicited by the united states and said that her testimony changed so they used testimony that would not have been elicited had not been for the republic of trinidad and tobago to undermine her credibility without respect to demeanor he relied on a deposition also taken by the republic of trinidad and tobago its prior testimony they could they could rely on it if it had come from a different  another civil proceeding they could they could ease it in the same way if it was again as an admission guess interest i guess but if your puppy if your interest had been represented in the proceeding which they were litigation position trinidad took the lead in all of the mediation sessions here we know that section eight fifty three of title twenty one authorizes the attorney general to reach compromises may so the objection here is that the case should have settled the objection is that the case should not have gone on eight and a half years the first phase about authenticity trinidad insisted on a direct forensic document examination of the collateral simon the secret service went out and conducted that at r t t's request and it came up with nothing to show any type of we went out and got an expert these proceedings were in a warden and lead to late fifty three you know intends a much more streamlined type and in addition it's trinidad the victim friend that is a victim and and would it have been let's say it's fair to allow them to intervene to participate in the pretrial discovery could they have nevertheless as the victim assisted the government as a nonparty well on party victim first of all section eight fifty three does not contemplate that eight fifty three has a separate section on depositions and it says a court may allow depositions upon happily cation of the united states attorney it says nothing about outside third parties participating the section on outside third party is assume for the i  for the sake of my purposes of my question that it's fair to add to allow them to intervene as a party could the government have nevertheless worked with them as a nonparty victim to defend the constitution the united states something that's pretty odd that you would ask the lawyers for i would a victim have to take an oath to support the constitution of the united states if they're out of being if they're acting on behalf of the united states as a they're assisting the government as a victim of crime they can't assist as a victim of crime are not and participate in the proceedings they can be a special assistant attorney general  appointed in accordance with those statutes and with the executive office manuals but none of those things were done and in fact the government took a position adverse to its own wasn't recorded that's the extent to which the government's the government pursued a theory that our t t threw up there which was inconsistent with its own theory of forfeiture it cost my client in enormous amount of money to to litigate against all these ghosts when it should have been a much more straightforward proceeding between the government in my client we wouldn't be here and a half years later and had it been it could have led to exactly the same it depends on what the remedy is that the court provides but what i think what i think judge chuck really i'm sorry i mean i'm interested in your answer but i wanted to throw this in the mix for when you answer it what if we agree with you that trinidad shouldn't have been allowed to intervene or act doesn't intervene or on the one hand but we find no clear error and judge hocks binding about the the agreement itself so we send it back the judge his finding about the agreement stays intact how does it possibly come out any differently i mean i know we're not supposed to be primarily concerned with the practical resolution of this but you can't i can't help but wonder about that i mean i would say in that case it doesn't come out any different but i do think the authenticity determination should be reversed both sides cite u s versus call for what the judge should have done the prime facia evidence how the court in its ultimate judgment and its fun oral findings of fact determined authenticity in this case is was the collateral assignment executed into livered in or about july of two thousand and one that's how he defined authenticity now under u s versus called while we were in touch we were required to make out a prime aphasia case we did that the court the court acknowledged and counsel for the other side is acknowledged that there was direct evidence that the document was signed executed and delivered the court said this is a fairly close case it's a difficult case and under united states versus caldwell the case everybody relies on the panel in that case said this no competent evidence abuse of discretion standard is a converse someone to apply and what the court should look at is could a reasonable person find some evidence that this was authentic that's what that's what phase one was about and in fact when the government went to stipulate to the admissibility of the collateral assignment the judge stopped them so that would be the end of phase one that's a l read rect you back to the intervention argument quickly if we were to find in your favor in that regard is it your position that all of the discovery that was taken because as you can and might be infused with overlay of conflict does all that need to be thrown out in retaken by a proper party i think all of that has to be  what we want should vacate the as clearly erroneous or improperly tainted a finding authenticity the case should be remanded there isn't a lot of clear direction as to what additional remedy the court should impose we have suggested throwing out the tainted testimony akin to the notion of the fruit of the poisonous tree there are other things the court could do the court could stop well but something should relate to phase two it should be either preclusion of the testimony maybe barring the government from taking positions inconsistent with their theory or forfeiture maybe reassigning to a different judge judge thought about recusing himself let me just say in response to that did he ask we said we would expect you to rule on that and you didn't but you didn't say please ricky's yourself we did not go that far that's kind of talk to do i realize madigan ok thank you very much and morning your honor is may please the court and matt's going to be half of the united states with me counsel table is mark lester one of the assistant u s attorneys who handled the case in the district court trinidad's evidence you're hearing participation in this case although procedurally unusual was nevertheless legally proper in any event and the error in this case is your honor as pointed out is harmless and your honor therefore should from the district court the district court followed the dictates of the governing statute in this case to the letter section eight fifty three and five specifically deals with who can participate at the evidence you're hearing and what they can do with the evidence you're hearing that statute says that the government and the party petitioner can participate at that hearing can  put on witnesses put on testimony and cross examine witnesses and that's what happened that's exactly what happened but what permitted the district court to it to allow trinidad to intervene in the pre hearing discovery process so that district so i think there isn't a distinction to be made here so unlike maritime which intervened as a third party petitioner asserting in the media claim to the property here the district court allowed trinidad to intervene as a contingent recipient of restitution pending the successful litigation of the forfeiture was not proper we believe it was proper it appears that trinidad moved under federal of civil procedure twenty four eighty two and we believe that trinidad did meet that standard and again this is an unusual case i don't know of any case law one way or the other dealing with similar facts anywhere but those are what so your contention is then that the forfeiture proceeding was at that point a civil proceeding that the federal rules of civil procedure would have governed correct this was intervention as of right correct and this court in several pinions has made clear that section eight fifty three  that federal rule of civil procedure twenty four a pause or would it be enough to say that at the least it could have been permissive intervention under twenty four b i i think the latter but i mean your honor certainly could affirm on any basis apparent on the record and but the district court didn't really invoke either of those provisions didn't correct i mean the district court spoke in terms of you know the need for judicial efficiency in judicial economy but it didn't make clear admittedly which provision it was traveling under this was not clear to me from your briefs today your position on behalf of the united states the is that a victim has a right to intervene in a civil fo in under these particular facts and again this is an unusual case here the district court allowed trinidad's in her and the bank groups to intervene not as victims asserting third party claims or as you know to use r twenty four as an end run around section eight fifty three ad but for purposes of assisting the government with this litigation i understand your point is well taken that many times experts paralegals academicians they all assist the united states rights in civil matters but what is the provision that would allow such assistance as an attorney absent going through the special assistant united states attorney appointment proceed ngs i don't know that there's a specific provision that governs here one way or the other but but what i know but what we do know from looking at the statute that governs these ancillary proceedings which is section eight fifty three n congress explicitly said who can participate at the evidence you're hearing and again that's only the government and the petitioner now sections it fifty three and one through  that's i mean that's certainly possible i mean this is a civil proceeding but whether or not i mean whether or not that particular rule i mean if your argument is that the statute provides that only the government the federal government could have participated and not and doesn't that undercut your argument on an about the federal rule of civil procedure twenty four no so federal civil procedure twenty four provides for an independent method of you know for intervention now the fifty three and five deals only with the evidence you're hearing in this case and of course trinidad did not participate in any way shape or form at that evidentiary hearing if it doesn't that was the whole purpose right of the intervention was to prepare for  evidentiary hearing isn't that right i mean the purpose of that right i mean the purpose of the intervention from the district perspective was to allow trinidad to assist the government right in preparation for among other things right what are the things i mean there might not have been a that's your answer and that's that's where it was headed right right i mean there are also summary judgment motion motions filed so theoretically may not have gotten that far but you know friendly to to a resolution of the ancillary proceeding i think it would be fair to say you know what they have any ancillary proceeding where you're saying this that she contemplates only two parties and trinidad at the evidence you're hearing correct the congress was silent as to what should happen before the evidence you're hearing and it uses a fifty three and one through four to lay out how proceedings before the evidence you're hearing should work and so if congress had wanted to limit a fifty three on proceedings generally just to the government of the petitioner it could easily have said so it would have taken one sentence i mean if it's a three and five is two sentences long in terms of who can participate at the hearing and what they misspoke i think it was in two thousand and seven instead of two thousand and six but the government moved to vacate the order of forfeiture right and i think the quote from the transcript it was always quote it was always the united states and to move for an order vacating the order of forfeiture as to the red robe property in favor of restitution inquire and so and then as i understand the record  trinidad opposed that motion and the government decided to leave it in the forfeiture context and how i mean it does seem like trinidad's participation had some impact motion rested on his understanding and this gets back to the distinction between intervention under a pretty thorough you know raising the clay a third party claim under a fifty three and in the way that maritime did versus what the district court did with trinidad in this case where you know generally when victims try to you know raise claims under a fifty three enters intervene in this case the government you know moves to dismiss because they're not supposed to do that i mean they can't have victims can't say we haven't immediate into this property and that's why the government to litigate and so i think what the a with a was thinking was that this is what trinidad was trying to do when in fact you know the reason the district court let trinidad in was not for that purpose but for purposes of assisting the government  in any event any area here would be harmless and you know as you know the court with discussing earlier well that would have been i mean if the if the usa whether he would was confused or not had prevailed in his efforts to to end the forfeit proceeding as to the red rock property and make it over to restitution then you know this this would be over with and would have been over with eleven years ago again i mean i don't know exactly what the motivation i mean i think the more i'm not asking about the motivation i'm asking if he had prevailed in his request of the court which seems like he would have a stronger that had been there  then it would be over so that that does demonstrate prejudices is just my question to you i mean do you disagree with that i don't know that we can go that far i mean i don't know what i you know truthfully don't know what it was that  different foreign nation stepping into the shoes the united states but the attorneys acting on their behalf weren't even licensed attorneys and were practicing champ party so to spake went ahead and did the depositions would it be the united states position that well no harm no foul those come in anyway because after all the statute dictates united states and claimant and the hearing i mean i think that would i mean i think if unlicensed attorneys took depositions i don't know that those the positions would be admissible i mean i'm just trying to explore the confines of your argument that whatever happened during the discovery process won't matter so long as the proper parties show up at the hearing right and you know in this case runners don't even need to get that far because and i would direct your honour's to documentary twelve seventy at p he also says that he was leading the other way before the evidence you're hearing it was the evidence you're hearing actually that was outcome dispositive in the district court's mind and so from a harmless error perspective  words leave no doubt what was decisive in this case and that was the evidence you're hearing at which the government and only the government put questions to witnesses and if you fast forward three pages in the district courts on wording he references miss alfon deposition sure that as i understand was first chaired by a foreign government and he bases part of this ultimate decision on his assessment of that discovery pieces are correct so the district court also makes an alternative finding us in a cell phone so where he says you know even if i took her testimony as credible it really wouldn't move the needle one way or the other because all she testified to was that she found a document purporting to be this collateral assignment doesn't make it any more likely or they're not that it was the real thing the genuine article and so even if we eliminate that deposition from the equation we're still at the same end result and i have reason to think that had trinidad not participated in that the pretrial discovery would have turned out any different with just the government doing the work absolutely not your honor and in fact you know just thinking this through you know how a hypothetical remain would look in this case i mean the same depositions will be taken the same with this is will be asked the same questions it's actually the same answers will be presumably a deuced and i probably will be standing at the same lectern than three four years from now arguing  you know it'll be a case of second verse same as the first so you know any area here however the court looks at it would be harmless you got two minutes ok thank you i'm happy to address any other questions  is there anything you'd like to add with regard to the authenticity argument sure you know the district court had a number of bases on which to you know that support it's finding  lack of authenticity the collateral simon itself had a number of facial problems it was never recorded it was never witnessed it wasn't notarized the title holder the rubber property was not a party to it it didn't include the legal title or i'm sorry the legal description of the property it was found in the district or its own words willy nilly in a disorganized storage room let me direct you though to the point that your colleague on the other side of the bar makes and that is that perhaps the district judge skipped a step in analyzing nine zero one right well even if the district court skipped a step any error along those lines would be harmless because at the end of the day he has to hear all that evidence and decide one way or another whether it's authentic or not exactly exactly mean if your arms were to send it back now all this report would say words to begin with but at the end of the day would have still made the same determination precisely honor thank you mr matzke would ask the runners affirm in all respects thank you very much mr po you have three minutes you let's remember that the district court entered this intervention order over the objection of the united states attorney this isn't anybody here that the united states attorney sought their assistance over the objection of the united states attorney that creates a serious separation of powers issue the courts don't have the power to invade the authority of the united states attorney on the issues that it did in this case that makes it a systemic error which this court should be should go out of its way to remedy and make clear on authenticity let's be very clear what the court found page nine hundred sixteen of the record i just find that the collateral assignment did not exist back then there is no evidence to support that there is evidence to the contrary nine hundred seventeen it's just as likely it could have been placed there by anybody there is no theory of fabrication in fact during the relevant periods of time mr gutierrez what was is kind of so many and discredited them right he'd chose for improper reasons unrelated to demeanor to discredit the testimony of some witnesses and to just disbelieve it i don't know how you can then say that i find in a very close case given direct testimony that there is no evidence that it exists so i think that is clearly erroneous heard we defeated summary judgment on the record ation issue because florida law doesn't look to wreck or de sion as the absolute its who exercises dominion  control over the property we put in evidence in summary judgment which we define created a genuine issue of material fact on there's no dispute that could harris exercised dominion and control over this property on the event i mean to talk about some of the rat holes we were forced to chase in this case we got a panamanian expert law inversion on his rapid van is a panama corporation very distinguished fellow from the university of miami who testifies about panamanian corporate law looks to bear or shares the bear or shares determine who owns the property the bear shares here were held by an attorney the all of that should have come in none of it did and so what the court did when it went to the circumstantial evidence is it looked at things that were not even sufficient to win on the ultimate merits and drew adverse inferences from the court can't do that that was improper and clearly erroneous and i think the verdict should be reversed and the court enter remanding and enter appropriate relief that will protect us from some of the parade of horribles that counsel just talked about that will occur in phase two thank you very much we stand in recess until tomorrow morning