case for the morning is united states versus funds in the amount of one hundred thousand dollars the appeal of marrocco because it was morocco and seize currency so he was clearly of the opinion that he was handcuffed by prior precedent called law the case claimant contends that the law of the case is not a set of handcuffs on a district judge one ruling on evidentiary ruling available to the district judge to rule based on what he was confronted with as the case went forward on remand from this court and if i remember correctly i could be wrong i think judge banyan included a footnote in his last decision in this case which said that he was deeply troubled by the absence of the currency again being disposed of a so that there could be no scientific testing of the currency by a laboratory and so this theme seems to go throughout this case from the time that the case was in front of district judge buck low all the way through to today that we have a complete absence of science in this case for science would easily outs or the question whether or not the dog sniff was probative claim it contends law the case doesn't apply to evident ways rely on men serve which is a precedent of the circuit from two thousand mens or holds otherwise saying the district judge is free to make decisions concerning matters which this court has not ruled on and this court has not walked the district court in to  forty of our of or brief first collection of citations from all the other circuits that agree with this decision in men's or the trial judge based his entire ruling on president precedent that he was handcuffed and could not go back on you know like a tory ruling there is no case law that i can find that holds against men's or the men as a rule of solid law and it's been so in the circuit in fact every time there's a mistrial in this building judges revisit rulings that they made during the first trial and read that side questions which they may decide otherwise based on what evidence is actually admitted in the second trial or actually before the court the supreme court has even commented that a trial judge does have jurisdiction to change its rulings as long as there has been no decision of an appellate court lock in that district judge and so the issue of the law of the case is what is here and not what the government argues in its  takes great pains to say judge got close room only and was eminently correct in the first instance we contend that the issue here is was judge thorpe's ruling correctly under the circumstances and scummy it was that issue raised in  of the summary judgment so that we went back and then we went into a pretrial posture so this judge judge stark was free to look at this matter afresh in a new based on whatever than is he was going to actually hear during the course of the trial that was going to go to the jury and if you had a question in your mind didn't the jury know it nail it didn't the jury get concerned about what was done with the money when you look at the jury note in this case i mean that becomes an issue central throughout this case from the time judge buckler looked at it all the way through till i'm talking to today and hopefully in your opinion you know you'll focus on the fact that everybody here seems to be concerned that money should have gone and been sent to a crime lab and been evaluated by a scientist to determine who's coming was it correct th judge buckler when she made her initial ruling on this question did not have the actual department of justice policy on retaining the currency in front of her you nailed it that seven andrew wood it was a situation when thora addressed the issue the policy wasn't in front of him it wasn't slipped in into a footnote on the motion to reconsider that's the first time that came in and if you look at his opinion on the question he took them to task he'd took them out to the spank them for slipping in at the last minute and then he also took them to task on the question of the policy itself and he went right through the policy and said whenever there was evidence revalue to the currency it was to be maintained and you know these cases come to court when a judge could decide what to do about the currency you know if you maintain the currency for the judge to decide when they issue the warrant they have to issue a warrant to seize and so forth the currency can be easily with a little once in front of the court a claimant can come in and say we want it sent to the climate and there's of there's a case here with judge course they had where they maintained some evidence and we asked him to send it to the f b i laboratory and we got a report back so i mean it was definitely the ability of a district judge to control this currency and make sure that it gets examined by a crime lab and either side can you know decide which crime lab they want to use so that in furthers due process of law which in trying to the make the car all the way through our constitution and to our court processes now turning back to where we are here the policy provides on its face if you actually look at it for the preservation of evidence that has  dently value and i've never had a court deny a request from anybody to preserve evidence and i doubt that apartment of justice believes and not preserving evidence i mean that's that it's a clear thing to do so i'd ask you to accept judge starts findings on the purported authorization to destroy evidence because i don't think anyone's authorized anyone to destroy evidence even under the put part of a new justice policy the jury instructions are confusing and contradictory claim and urged the court to give only ish the issues and structure requiring a substantial connection to a drug plan that instruction tracks the statute eighteen u s c ninety three the court was invited to error by the government's watered down instructions which came later the issues of structure and completely track the statute it was a full briefing of the issue the court itself drafted that instructions not not the parties on the issues battle which begins when when a plate of does not have to show a specific drug transaction or doesn't have to show any drug activity please recall in this case we have no drug evidence zero the stuff you're normally confronted with wire tap telephone calls meetings people who they saw no telephone calls to seattle no communications whatsoever in furtherance of a drug transaction and on top of that no meetings no informants you know everything you see in the normal drug case the comes before you is totally absent here and the government had thirteen years before the case went to trial to produce any of this stuff and none of it was ever produced and they had the burden of proof coming can i take you back to the  our court has repeatedly said in essence that the adverse inference based on destruction of evidence requires somebody to find that the destruction or loss occurred in bad faith  sometimes said deliberate sometimes said reckless but but bad faith is required when we're talking about jury instructions who makes that call the jury and what threshold showing do you think is necessary in order to get the spoliation instruction first destruction of evidence obviously second after you get to that point the circumstances that is destroyed in other words what happened you know well let me let me put it this way it it is like a summary judgment question where the trial judge says ok could a reasonable jury infer bad faith in this case or is it something more akin to a federal rule of evidence one zero for preliminary determination where the judge has a little more freedom to decide the merits why haven't the thought about it in the context you cast it in for a for context but i have thought about it in the context that a trial judge has to be free to deal with the sea as confront and that's he is whatever is coming up in that trial and the judge rolls with that trial as the evidence comes in from the witness stand and so he has to be free he or she has to be free to make that determination spontaneously during the course of the trial but you're not saying are you though that the the judge has to be convinced him or herself this is bad faith in order to give the the spoliation i don't think it's the judge's call i think it's the finder of fact i think it's committed to the finder of fact and the purpose of that instruction is to give them guidance as a jury as to what's necessary to reach that alternate fact and that you know that's why we have the jury instruction that takes them step by step so i hope that answers the question but i don't think the district judges handcuffed by the sort of things like it turned out here because judge thorpe if his decision shows how an oblique he was opposed to what happened here with the destruction of the question that would ultimately decided by the jury and it's especially true when citizens are faced with drug list seizures i mean when i mean you've forget the bigger picture when you start drilling down on one case but if you look at the system wide situation you have citizens every day having the money taken off of them with no connection to drugs an airport terminals and r stations and so you know isn't it better than an american jury decide what really happens and leave it up to you know the summary judgment question i mean it would seem that would be the better way thank you now going back to the transaction an offense destruction i was saying that they were watered down in the issues instructions by putting in those two i want to bring to your attention that the plaintiff here relies on cases decided by the eleventh circuit back in the probable cause days and when i ask you to view the situation longer in a longer context in a historical context which were all trained to do this was the law on probable cause in other words what counted to make suspicion totality of the circumstances and so when you had that type of law a trial judge at either summary judgment and by the way both of those cases did not involve jury trials that they relied upon whether you're talking about four parcels the in bank opinion or whether you're talking about the other decision by the eleventh circuit in i think it's two hundred forty three thousand dollars each one of those were dealing with summary judgment questions where the trial judge made the decision alon and it was that was the trial judge deciding that there was probable cause to proceed to shift the burden to the claimant for the claimant to prove by a preponderance of the evidence that henry hyde kaffir act which changed everything shifted the burden to the government to prove by a preponderance every single element so this is no different than a cause of action where each single element has to be proved by the government in order to prevail at the end were not a problem caused the terminations and if you look at the historical genesis of that in that particular substantial connection it was originally part of the legislative history in the organized crime act of one nine hundred seventy eight in the argument that occurred in front of congress congress decided that it had to come up into the elements section and lifted it out of the legislative history in an argument to the department of justice last before the judiciary committee the so the whole purpose of making that substantial connection was to prevent people from having property seized and forfeit it which was not actually connected to a drug transaction so what the government did is they succeeded in watering down and by using a negative which i don't normally see in jury instructions saying that you no if claimant that they said plate of doesn't have to do something ok plate of doesn't have to do something i don't remember a lot of jury instructions coming from the circuit relieving somebody of something to start with and so if you actually take a look at  transaction the occurred at a particular time particular place rather plain of required proof by a fine or suspension action that's nothing more than throwing water on top of the issues instruction and watering it down to the point where the jury can disregard the substantial requirement that there must be a connection to some type of illicit narcotics transaction and if you look at the jury instructions as a whole the district judge instructed him as to what in our contacts transaction was i mean he gave specific instructions as to each and every element of what would be a narcotics transaction and if we look at the offense instruction to prevail in a civil act forfeiture action plaintiff is not required to claim a committed a controlled substance offense morning for me please the court counsel that we argued that this case was argued five years ago to this day may thirty first five years ago the difference between the arguments between today and what mr  comey said five years ago are quite stark in contrast the last time he asked for a trial the entire case was basically we have summary judgment we raise a number of issues that deal with material fact and we we believe that judge by close decision should be reversed because we have all of these other in this evidence that that wasn't considered because we raised issues of material fact and a trial was held in this case trial they were given every opportunity in this case the court in in funds to in your decision said basically the thirty thousand dollars case where science had been examined where the dog sniff was verified in terms of the science of it still was there but in a vigil case like this one the the the claimants were entitled to examine that evidence to go at it to to break up experts so we had a trial and every single thing there were three things that were done in that it issues that were raised in the last case one was the currency contamination theory that all the currency is contaminated there for a dog sniff is worthless because you can't a dog would hit on anything that theory had been rejected by the thirty thousand dollar case and in this case their own experts refuted that theory their own experts acknowledge that there's no study that says that a dog hits on money there's nothing there's a dog isn't going to hit on somebody is wallop when they went to the bank to get the money because that if a lot less than the money has been exposed to a large amount of drugs their own experts verified that and their own experts testified to that their they also presented the testimony of we had a dog that we that was prepared that was we presented the evidence about the dogs reliability it was him well trained dog it was clearly that this dog had been had to have wogs that had verified its veracity and that that it was a fact of and all of that evidence came in in terms of proving the reliability of the dog which is one of the issues that was at the thirty thousand dollars case one of the issues in the case that came down from the supreme court and in florida versus harris that you had to look at the reliability of the dog and all of that evidence came in in terms of showing what the reliability of this dog based upon the thirty thousand dollars case that talked about the science of the raw ability of the dog plus the evidence that we presented the scent whatever the dog hit on is trained to know to do that and that's a guess where we start but yes you're right but it seems this whole case that the jury even heard comes down to the constant change in the story of where the money comes come him from and where it's going i'd rather ways to get back to square one to get past it doug smith well i think you had yes as your opinion stated in terms of  fitting the profile of the drug courier mr fallon stories when he was stopped and his demeanor when he was stopped then you go to the the evidence that the dog was incredibly reliable had been proved when the when they came at the last time they said well there's no evidence that this dog can discern between narcotics to the currency and in regular general of general circulation currency that proved to be completely wrong there was there were evidence and there if these affidavits weren't false they were incredibly sloppy and they presented that to this court and said this  raise an issue material fact this court said we can't go be you know some of these things may be self serving they might not be corroborated but when they went through all of that evidence all of that evidence proved to be that there was no  it's admitting to this there our case we think was sufficient and good it became terrific once their experts that were touted to this court as being the science that was going to prove this whole case once had their experts came on this case became ironclad because their own experts agreed to this this proved almost everything that they had contended about this and then you know and proved that they completely disagree they backed away they admitted that they had it there was no evidence of chewing you know you're talking your honor about the suitcase being sealed with them up with the money there was evidence that they they claimed was raised that that bag was in plain sight that the that the dog handler that the dog handler could see the bag and therefore computer dog after they testified in court after they watched everything in court they said got a great there was no evidence of queuing experts that they had come to testify had been offered to testify about cueing in another case and that and he was precluded by the court from even testifying it was like the want one of the cases that he had testified to so he he completely ended up corroborating what we had said about the dogs the dog logs were in there and then mr morocco came to testify mr fallon who was the individual who had the money to begin with was present one day in court didn't testify i wasn't called to testify and then the other day mr morocco came we came in we had him testify in our case in chief because we we could use that as evidence in terms of where this money it come from and that he didn't have sufficient income and then he came testified later and as judge starr testimony says why all the lies it's not true that i was not i surely wasn't on the case i don't know that the text of the of the policy was actually present before judge buck low in response to judge allen's question or you know th there but it was referred to by her in two thousand and ten if you look at the decision that she made she made a decision and said this money was that it was a positive pursuant to department policy it was and she makes reference in her decision which was not appeal now judge stark was hardly you know this hardly was an easy street for the government in this case he admits that if you look at us all let me ask you to think about spoliation question from a slightly different context from product liability and suppose we've got a driver who's injured in an accident takes a car in for repairs his repair shop tells him this brand new cars brakes weren't working properly and so the shop repairs the brakes he goes on goes on about his business  and then a year and a half later before the statue of limitations runs sues the auto manufacturer and related parts suppliers for defect manufacturing defects in the brake parts we would dismiss we've got cases where we dismiss such cases because the critical evidence has been disposed of by the moving party why is this any different if think that it's different because of the nature of what is going on with the positive funds in these cases there is a department policy on this that says we don't want large amounts of cash to be sitting around in this case mr comey was not on this case that begin with if you if we would have held this money how long how long seventeen how long did it take before the money was disposed of the money was disposed of within a few days right was it was good long before the claimants could have even asserted an interest in doing their own testing and we do have cases in which individuals immediately ask that the met money be baned taint as evidence and that's a different and that is that actually there is a case that we cite in the br where the individuals asked for it to be held and the department followed the policy and that was upheld by the court as being part of the policy and that was upheld as being correct i mean you're talking how does that how can that be correct given that the policy says if the evidence if the money has evidentiary value then it shouldn't be disposed but how does one know that it's going to have evidence for evaluate need to see in another theory honan you let the opponent have a reasonable opportunity to prepare to assert such a claim rather than doing it immediately in just a few days i think that in terms of what this what what is done on that policy that we would have to hold that money sing you have to hold it forever counsel but you need to hold it at least until you've got an opponent you know that you're going to be going to court right you know you're going to be a asserting that we're going to be filing forfeiture and that there will be people who will have a due process right to contest that claim that they would have a right to say yes i do understand that pete somebody owns that money and that they would have the right to assert it it doesn't necessarily mean your honor i'm not trying about but that everybody's going to be a certain everybody's going to be saying that money has value for this purpose and that that money has maybe not but the but the government's approach to this case and this evidence says we're going to make that decision for you you're going to be stuck with our dog sniff or in the product liability when you're going to be struck with stuck with only the plaintiff's expert right i thought and maybe you can cross examine them but it's hard to cross examine a dog it's it's it's impossible to cross examine a dog but it's not impossible to deal with the evidence and say that in this case that that could have been  request for example before seventeen months after the forfeiture or to say well when would it when when wouldn't request have had to have been made in this case it would have had to been made within the first few days of within a week right yes  what case do you know where things move that fast well i do we do have another case that i'm aware of that council made an immediate request that it be held when it was seized that somebody would say i am aware of it yes but we ordinarily leave a matter of at least some weeks or months for opposing parties to get their act together here here's here's another point that i would like you to consider in terms of the way that this is it's i understand what you're saying in terms of this i don't think that it's that mr call me in this case for example this all came up judge starr this is this thing was ruled upon by judge buck lo and judge starr didn't like it but judge clark said this is the law of the case you know don't i don't understand how that's the law of the case but that's a separate question what he did to us as well i mean we had a yes i know kind of thing and we had to live with that so in this case and i answer and i don't know that it's clear from the science that was talked about in the thirty thousand dollar case that would even be affective in terms of the amount of time that somebody would have to to prove for example it's them that's enough of guns away there  was evidence in the thirty thousand dollars case which is this court adopted which is the precedent case which says that it dissipates with a few hours so you would have to literally when the dog hits on it one might say there  is a scent that can be picked up it's not clear that even if it had been done your honor over the weekend and they then tested the let's say it happens on a friday it's not clear that the smell is going to be there on a on monday unless they feel i suppose one could come up with you know you could feel tested now is that something that in this case it's fair to say that the government should look forward and said you know we had a field test this we're going to do that i mean that's it you're talking about something that happened over fifteen years ago so i don't think that that the record which and they had the ability they had the ability to bring in a scientific experts they had a wide open field to say bring in this expert and and show what what you would have been able to do show it that you would have had been able to detect the drugs with and it wouldn't you know that you would have been able to do it within three days four days there's no scientific evidence to that effect that they brought in and they who were the ones that had the ability to do that was their scientific evidence and we leave this sitting around it'll disappear i that's when i say i believe that that developed in that i don't live said it before or not but it would seem when you have a hundred thousand dollars maybe this isn't possible but you just pull out five thousand dollars a bag  someone would say well that's not a proper sample right i mean i think you that i either have to preserve the whole bunch and you know because you know three thousand dollar cases was discussed part of the reason that the dog the testimony in that case and the evidence in that case and this was was that it's because of the amount of currency involved and the amount of drugs that is on that currency that's why that the dog gets that the dog alerts to a large amounts of currency with that are tainted by drugs that is what produces the alert from the train drug dog the embassy that amount could have been accumulated over some period of time that's correct and then but and right but if it's if it's accumulated over a period of time and it's not exposed to drugs then the dog would not be hitting on the money would not be alerting to the money that the dog the money that this dog was trained to differentiate between circulated money and uncirculated in the instance in which the training took place he alerted to the narcotics trained currency he was exposed to not an archive strain currency and he was able to differentiate properly between the two as opposed to their expert who who said it looked like he had had a false alert to that will let the jury hear a assume is when it got to five different obviously lying because he keeps changing the reasons and not just him but going to be a pizzeria or it's going to be some other investment or it's going to be you know whatever the several excuses were but w this money is for right and that's where i guess the only thing i can see is that's what the jury used in the head to get past it done the dog they're going to have to say that they had that and it was a legitimate hit and now  yes and i think that that the implausibility of his story and the fact that he held himself out as a relatively sophisticated person that's going to do this that he then it as we say in the briefs you know is going to decide to send money with somebody he you know across across the country on a mode of transportation he's never taken to a city that he's never been to to discuss a business that he never i mean implausibility plus combined with the fact that we he was about the crime lab and he referred to it in the argument he refers to it in that jury know you know that as if the jury know mr comey talk about the crime lab all the time and he cocked talks about it today again he never pointed out what in fact the judge hamilton's question kind of in terms of what there was no evidence from their side in terms of what that would be in terms of and they had the ability with the experts to do so and you don't what what would show and so when he talks about this in his closing argument yeah i mean i think the jury did have some questions as to what the crime lab would have found with the crime lab and found this evidence he made it sound like that that would be the case it's not at all clear that that is there's no evidence in the record that the mental been for the theory because it was barred by the district judge remember we had to try the case based on the motions and limited decided by the district judge and the sewer sponte a decision of the district judge that there would be no expert testimony on what the dog smelled you may recall that was a pretrial order of the district judge and we were all barred from going into it so there was no testimony on that due to a pretrial motion and he took it away from the experts when he decided pretrial that nobody could testify in front of this jury what that dog was smelling secondly when you're thinking about that why was that over your objection no i didn't object of course but the bottom line is is that he decided because the government provided no experts in the entire course of the case zero experts and ten fifteen years to testify to anything a trial there was no good government expert listed and he barred the government from putting experts on and that's why the directed verdict issue is so hot because it's a directed verdict stage in this case nobody had told the jury what the dog was smelling in other words that had been barred by the pretrial order secondly they brought in a dog trainer to testify who was not the dog trainer who trained the dog he only knew about this generally because he trained dogs years afterwards and so he was unable to testify as to the actual base training of this particular drug dog now with respect to the affidavit of stanford angelos which was here on the summary judgment that mr angelos was a de chemist he was the one who did the research back in the seventy's and eighty's at the direction of the director of the department of drug enforcement or in justice department and he's the one who reported to them that the dogs were worthless because of the fact that the currency had been contaminated so that affidavit is in the record and it was up here on the summary judgment at the  room the dog the room you know where that staffing took place but we we never had what was talked about in the thirty thousand dollar case and you may recall that when the decision was made to reverse the summary judgment here in morocco to the first case thirty thousand had been decided on a pyrrhic eleventh's that was appointed counsel the court asked the point of counsel to supply the court with empirical evidence and that's how the further study creeped in the law it wasn't tried in a district court and so that's why it was easy for this court on the summary judgment motion to distinguish thirty thousand dollars when it reversed summary judgment here because ferdinand's theory and all that had been come in and pyrrhic a decision provided for in this court without the district judge hearing and eight witnesses or hearing any testimony with respect to testing our crime labs of this country routinely report forensic evidence to court on a daily basis and they answer your question a crime lab can do a study in a short period time in a district judge can enter an order but there's no way anyone can get into court within twenty four hours i mean that's an absolute impossibility and even if a claimant has the ability to to find a lawyer the way this current statute is written you're supposed to send your claim to washington and then once it gets to washington it gets referred back to the u s attorney in chicago and once it gets to the u s attorney in chicago they have so many days so by the time a whole quarter of the calendar is past the case is finally getting ready to be typed up and brought into a courtroom so that the time delay is so long that there's no way a litigant could come in here except on a rule forty one motion and a rule forty one motion you would have to you know bring in under the criminal code under i think it's cheap effort gee i can't remember it was one of the sub numbers under forty one would be the only way somebody could get into court and deal with this and that would require filing a case which was on connect the and the government would come in and say wait judge we're handling a forfeiture don't do anything until until the forfeiture gets here because i've had that happen to me when i've come in here and forty one motions to ask a judge to return seize property and the government comes up stairs and stands in front the district judge and says judge the plaintiff while forfeiture let's stay this until we have a chance to file the fourth or so the real problems with getting this thing done and i listening to me this morning and just as you question what is the record show if anything of the relationship between mr rock on mr found out they were talking about business going out i mean can you give me a sort of a temple sense  known each other for years or they knew each other for years they were in the in sort of in the they were in the pizza world there was pizza testimony about a pizza parlor they were and they had some dealings together when he was working for another company so they had a long term relationship right right and no evidence that any of that relationship involved drugs or any illegal activity i mean you don't even have an arrest of any kind here on mr rock and so he was impacted and  still involved in in pieces and bars in other words he was always at a place in the industry but not not at that particular you know there was a divorce that went on that blew away the plan to buy the place in other words the divorce between two other people prevented him from buying in because of the argument it was in the matrimonial court but it was your and your usual two buddies doing something you know to with out any evidence of any kind of wrongdoing and