have not been a party to any of the proceedings in this courthouse nor were involved in the trial that took place before judge forrest the information that this court has been given is not related to anything  moreover the timing is very critical and that our clients of mr kerry and ms agra mary first acquired their interest in this property in one nine hundred ninety five documentation prior to that time which pertains to no lobby or bank room that's the statue of limitations this court dealt with that issue the first time around with do so we were not given an opportunity to raise that claim or we did have his infirm defense in our answer and for the same reasons in a six fifty this case on that basis alone should be sent back to the district court to be addressed once we get past that issue however that's not the only relief that we're seeking in terms of the very reversal and that is with respect to the manner in which the district court treated ofac it treated ofac as if it were of another judge on the bench it basically did not allow us to gain any information whatsoever we had sent three independent foil requests to ofac all were ignored ofac treated us in that case as it did in the kind heart case in must be an institutional bias that ofac has where they're not going to provide any information whatsoever you have to go to court try to get an order from judge forrest with respect to that issue a indicated to the court she did not look through all of the documents you know factors that presided she looked at a few and she came to two conclusions one law enforcement privilege and to undue burden what is it you're in a bit of an odd posture you sat by and watched for years as the case went on english trotman what what do you want to happen now i mean it was there was an error in the way the summary judgment motion was handled is incredible error of what we wanted ours reversal to take the appeal is right judge judge forrest took forever in terms of making a decision with respect to how he was going to allocate the funds between the government and the privates once that was all done and that was all concluded we filed our notice of appeal i don't think we should be prejudiced because the timing on this case well i'm just guessing would be more efficient if done in the same time when the hindsight is a great teacher your honor but this is where we are at this particular point  one of the documents we got is this wonderful page one hundred percent blacked out and then you go to the next page it says for the foregoing reasons how ever i challenge  making a determination on when we don't get any information when they show up a deposition and they're instructed by the government as well as the facts own lawyers not to answer questions and the district court to say if you're going to ask the questions which i think you're going to ask counsel don't you bother showing up for a deposition so when we go if we can go back on the statue limitations we're asking for leave to take it for examination of all fact to find out what exactly is they base their case on because the entire case comes about because of the magic were blocked ok but why when how who did what how this happened taint in one nine hundred ninety five when my clients first came into the picture the record is absolutely blank with respect to those issues but the issues that judge forest dealt with didn't just stop there so as we indicated with respect to statue limitations she took it upon herself with respect to the ofac documents once again she took it upon herself to say it would be unduly burdensome to the government the government didn't say that she said that she said law enforcement privilege but again she did not look through all the documents and secondly in re new york case tells us that one is a compelling need and i can't think of a more compelling need in this particular case have access to documentation from over but she kind of just brushed everything aside and then she goes further when our client puts in  declaration and opposition she did sides the government didn't say it was hearsay she decides it's hearsay if they're not objecting to it it goes in but she took it upon herself but this was a track record that goes back to even the year two thousand and twelve when the case was in and connection with a motion that a law would be made a twelve b six motion she gratuitously indicates that ass is iran but no evidence whatsoever there there was a pre determined bias here which started years ago with this particular judge why i don't know witnesses she entered the two proclamations the first one was that if the government doesn't produce these documents are you certain day and the names of witnesses that's a line in the sand when that didn't happen she revisit the subject is  the wall is coming down on the government if by april first you do not provide a list of witnesses able first came and left we sent a letter to the court and to the government nothing happened a second letter to the court and the government nothing happened we made a motion for sanctions on the motion she she clearly said the government did not misunderstand my order they just didn't comply with it but i'm not going to sanction them because they will not be able to make out their case when it's brought to her attention that one of the f b i witnesses was coached during the course of her deposition nothing happened when it's brought your attention that documents are not being produced six depositions had to go forward without the documents for the witnesses which only came in weeks later nothing happened now it was an unfortunate event in in dubai where my client showed up for their deposition two of them the president and one of the tumors they walk into the u s consul and who sitting there but the f b i agent why she was there i don't know but it concerned my clients because they didn't know why they were there and they didn't testify we came back to the states all the parties move for sanctions and she's along going toward financial sanctions which she did and she said i'm going to have the jury take an inverse inference ok in that same hearing we shared with the court the fact that mr should carry mr toffy will be coming to united states willing to testify and make them available for deposition she turns to the government  on our most on our motion for summary judgment we've submitted the declaration of mr she carry she decided two things one it was hearsay which i can't understand life and she he's the party and number two she drops a footnote and says in a way i'm striking it because he's not coming to trial it doesn't appear he wants to come to trial which was unfair which is false it's on the record we're told and shared with the court that the he and mr tufty were coming are you safe two minutes from battle we'll hear from the may please the court assistant united states attorney daniel tracer for the government i'm going to start by responding to the statute of limitations argument that was addressed earlier this brief in light of the arguments that asa has put forth this court does not need to remap and for statute of limitations although we can see that it was error for the court to proceed sue a spontaneous underbridge way the party against whom summary judgment was granted must put forth evidence to show some harm or prejudice in other words that the record wasn't developed in some way where there would have been something they could have put forth in response to summary judgment and submitted in this case they failed to do so in particular also referred only to two issues that they claim were not sufficiently developed below number one and i'll address them in turn we just say what they are first is ofac and second of all they point to their nine eighty four argument now with respect to two ofac first i want to be clear this was not a proceeding to challenge over facts designation fact did designate asa in two thousand and eight there are processes and opportunities to challenge that designation but that was not the united states government's forfeiture action nevertheless the also defendants as well as the other defendants in the case did seek discovery that included ofac that was negotiated as part of the discovery negotiations that the party in gauged in at the parties in gage then and ultimately the government did turn over documents from ofac but i want to be very clear to augment comments that were made this morning about what was requested with respect to ofac and what was not and if the court looks both at the deposition notice for the ofac witness which was issued in mid two thousand and thirteen as well as the declaration that was submitted with us as opposition to the government summary judgment where one of the arguments they made is hey you can't grant summary judgment because the  discovery is not complete yet both of those filings both of those pleadings set forth the basis as the opportunity to challenge the ofac designation and sitting here this morning it sounded like that is still asas contention  the function the utility of the ofac discovery is to challenge of facts designation it was not based on statute of limitation that is an argument now we have the benefit of the district court having done a thorough review of the discovery they did put forth certain bases likewise in ongoing discussions with the government as was alluded to earlier certain issues were raised as the primary motivators and drivers of the discovery request and the statute of limitations was consistently thirteen there was one that they joined in and then there was another one in august of twenty three to think the august one is the one that specifically relates to fact and i believe also joined in both of those motions neither of which mention statute of limitations what are their differences on this natural magician's issue between and i don't think there are material differences between the two i think that the basis set forth by the district court ultimately post remained i understand also is not valid and was not part of the post rema but both apply equally and so then with respect to the ninety four we submit that also has misunderstood ninety four as the district court addressed in the summary judgment opinion ninety four is intended to relax the government's tracing burden it is not a separate cause of action and it certainly does not impose a new one year statute of limitations upon the government the theory against which we pursued us as interest had to do with proceeds as well as property involved in money laundering and those both have the normal forfeiture stature limitations that accrue under sixteen twenty one if there are no further questions on statue limitations i'll respond to some of the points in terms of treatment that counsel made  i think there is a a big difference between the action that they point to as the primary contrast in their brief between for example what happens on april first when the government did not produce a witness list versus what happened in  dubai in july of two thousand and thirteen with respect to the april first failure to produce a witness list nobody challenge that it was a mistake the district court did not under play the fact that it was a mistake and yet the district court properly considered what prejudice there was the fact that they still got a witness list in may approximately five months before the trial was to take place on those specific instances and help me work through this concern i have you know jurist who is an impartial i mean someone mentioned a thumb on the scale it seems to me there was a fist on the scale that time and time again  the judge took steps that we don't see up here on appeal to help the government out i mean you parts in this case where where you know she was no g yes before you even asked for anything and it's troublesome we think of this southern district in the other trial courts in this circuit as being the finest in the country and i have to say i read this record and i'm just disturbed by it i don't think i've ever seen anything like this so we think that the district court dealt with many issues in the course of this litigation we don't think if you don't feel even impartially through these proceedings we do your honor i don't think she was tilting the scale in your favor we don't think she was tilting the scale in our favor we think that she was right down the middle in this case we think that when confronted with the ruling she addressed each ruling on the merits and the fact that there was overwhelming evidence in the government's favor it frequently is in criminal cases are criminal cases that's not the point the point is a certain level of behavior and demeanor and fairness which we expect of the trough lords in this circuit which is our senator include the finest in the country and expectations we think that when you look at this case which proceeded over ten year history involved a lot of issues it frankly switched the judges along the way at the beginning and then judge forest for the discovery and the ultimately the trial period can look at each can look at each ruling look at the merits of each ruling the district court does have considerable discretion on a lot of the issues that were raised and we think that she exercised her descript her discretion on those issues and matters that were not on reason the ball and in matters that comported comported with justice in the party submissions thank you and was there any further questions i'll see