going to try to be briefed in my comments i'm going to start with the jurisdictional issue because i think that is the simplest cleanest and that there's no question in my mind that you're going to have to remain in this to have the district court find out that a group of guys had about things that were going to happen in the future for which there is no proof that they ever happened so as a matter of class a bit of an overstatement there's no i don't think so because all this comes from stuff well king first of all the  cases underlying the statute make clear that hearsay nabi relied upon if it's reliable right ok all right now what they had in front of them was the statements that have been given by this guy booki bookie in the statements they have that he met with your client in carmel wasn't right and that they discussed importing two large shipments of marijuana one hawaii one to the east coast right that's correct and in fact going all the way to the end of the line your client was convicted and sentenced to what fifteen years in prison for his involvement in the whole white part of that right correct and later there were some cash believed to be related to the second shipment was discovered in where las vegas reno reno ok so we stop there go right into conversations where before anything happened spirits are usually about well let me finish they were they were talking about smokey wasn't part of this group he was just a fellow smuggler if you want to call him that they were there's a lot of conversation about it but where's the proof that it ever came and the third step is even if the forty two ton load kamen that's has nothing to do with the money that we're talking about there is no direct connection between this group of the forty two ton load came in and they don't prove that the money at issue here is any connection with the forty two time over that's why the standards vary porton actually gave rise to the forfeiture took place in this district what little information we have is that forty two to load if it what do we make of that i don't actually know do we know on what basis he refused the reason i hesitate is i don't know when the issue of his deposition arose if you go back through the records and this gets into  unreasonable delay aspect government had him under investigation they said the reason we needed we needed that extra five years to put in file the forfeiture complaint for five years is because we were actively investigating mr hart time for testify if if in fact this is a civil proceeding if in fact he refused to testify based on the fifth amendment privilege can't be construed against him in the civil proceeding i think that that's true  don't know i wasn't a lawyer i don't know how that came about i honestly don't on this record i want to shift a reasonable delay for for a bit because i think it's another fairly fairly straight he told them in the sponsors for future complaint he said this money came from my father he didn't make that up because mr carbonell who was interviewed by the government way back in i think it was nine hundred eighty nine or one thousand nine hundred called the basis for him proving that the money is his the legitimate was destroyed when i just want the financial records that's his prejudice from the five year delay didn't the government offer to recreate those records but now the issue didn't come up until one thousand nine hundred eighty so the government put mr hardtalk in the position of eleven years later asking him that's to describe the records he hadn't seen in eleven years i don't know about your life but i couldn't tell you what my business records were like eleven think the records were seized from his home correct pursuant to a search warrant correct as part of the investigation which led to his indictment and conviction right in hawaii yes  reply brief three times his lawyers asked for those records back well then there's a formal way to do that isn't there i guess you can make a rule forty one motion yeah you can file a rule forty one motion in district court and say the proceeding is back why are you taking my money that's the first no if he had that the money had been seized which is as you just said five years after they seized the money and under the standard the government has to give a justification for why they waited for five years the government's never given a justification they have no excuse for waiting five years back they will excuse this they were hoping to come up with some more evidence but they never  whatever and say i just don't believe it therefore i'm going to some reject that's not the way it works in forfeiture he has a right to his jury trial but the district court judge here just said this i don't believe mr arca number a basis for him lawyer said that he really didn't know how much money was involved exactly this was a trusts and estates lawyer i was they don't know what kind of lawyer he was what he did but he talked about the father's will and that sort of thing here and exactly right and actually mr hart talks at the same thing i do know how much how much money my father had he would put it in bank in a safety deposit box is a different bank he would put it under the floorboards of the  and that sort of thing and that was that was where they articulated their position most clearly how much did the lawyer from kansas say the father's estate was worth as a probated he said i think precise and detailed requirement hundred thousand under the under the club that he got it certainly detailed and it's corroborated by the by the lawyer which is a far cry from the forty two thousand five hundred dollars case which is which some woman who got a plane somebody and in particular on the aspect of what the level of proof was that mr hart had to meet in order to rebut the government's evidence that my his standard  claim he did indicate that he owned a portion of the funds then he actually was deposed in connection with the civil forfeiture action he at the time to step exist and refused to actually answer questions about where the and officers of the court that we respect that privilege and not talk like television reporters and suggest that people are hiding behind a constitutionally guaranteed freedom my indicated that these funds that come from his father's estate and that's where the money came from in the cayman accounts but as noted with respect to judge justice we're going to get it on the records hypothetical for forfeiture proceeding if you're a claimant comes in and let's say there's a million dollars in an account and says that and says all or some of that account is my property and it came from legitimate sources and he this individual puts forth a credible claim that five hundred thousand of it is in fact his and that in fact came from a sources were the result of that proceeding in this hypothetical proceeding the that he got that five hundred thousand if you're saying that he put forth documentary evidence to see out that initial stuff yeah he  say for he says that you know i don't know how all of that money got in there but i think half of it is mine here's my proof and it came from legitimate sources and i'll answer any question you have and what  at the time of this action that is the in terms of the government had to come forward with probable cause that the term and the property was for full and whatever theory was going to forfeit the property in this case both on fraud proceeds theory and on the money laundering theory then the claimant has the opportunity to come back with reliable evidence evidence that any reasonable fact finder can rely on  the evidence to again and in the make there in a normal summary judgment procedure when one side raises a question of fact which appears to be material  the judge a judge is not entitle to make the ultimate fact finders judgement about that fact is the judge the judge here was the the case is so much talked about here in a normal summary judgment procedure one party mr summary judgment the other party raises the fact it appears to be material and in conflict with the fact that the movement is relying upon ordinarily the judge is not entitle to say well i've looked at both of those and i think evidence was not reliable and the courts both in the one part of the case that mr nicholson cited and in the forty two thousand five hundred case which the court rely got that was one exactly of those issues it was whether or not that evidence is reliable such that a reasonable claims that he made how the information was contra contradictory or contradicted a lot of the evidence that was already in the case for example mr hart i makes that claim that these documents that were destroyed destroy the records that were seized in the search of his phone the records were not intentionally destroyed they were inadvertently just so the answer is he was given no notice he was given no notice your honor and it's not standard procedure for the government to destroy this kind of thing is it and it's not your honor it was it was inadvertently destroyed and those records as we know it happened excuse me do we know how that happened i don't know the particular details of how that happened but the agency inadvertently destroyed those records in connection with the case with respect to what we did as according to k to offer to try and recreate those records we asked mr hart for if they were real estate tell us the property we'll try and go to the those bindings he did not make findings with respect to that although the finding let me let me back up and say that and what do we do about this i mean do we need to re nansen the district those findings and if we did would he be able to do so i don't believe we need to remain and that's to make those findings because i believe there is ample evidence in the record that supports that there is jurisdiction here in this district i believe that the district we understand that the problem is that there aren't expressed findings that these events in fact did occur within the district i think in the recitation of the facts the district court did in fact  two different ways in which the court properly could have found first one is the one that i espoused in my brief which was all he had to look to were action or missions occurring in this district he took the unnecessary step but not improper of saying that if and those cases support the district court's finding i believe that as long as the foreign authorities did in fact undertake efforts to enforce the order in force or request so you're suggesting there was in jurisdiction on any of the fast that are in the record that support that i believe that the course he you keep using the words facts and the problem is we don't have a finding of fact with respect to the events within the jurisdiction i'm sorry i'm having difficulty with that  if what if what you're saying is you don't need a finding of fact well then that might work but i need to know what's the government's burden and what what does the court need to have before it before we can find under the statutory option i believe i believe the government's burden is similar rest of what it was with such a summary judgment of the problem was indication i don't believe that is clear in the record but i also believe that what the district court did in making a finding with respect to the corporations that he had set up the money that we gave back to mr pardo most money related to these clients that were in canada that he had invested money on behalf of he have immunity he did get immunity to come and testify before the grand time as the court knows and may know at least as we indicated in our brief the government was required at the time that it filed a civil forfeiture complaint at that point time the ninth circuit required that the government gather all evidence that it was going agencies that participate in the whole list of all the different investigations that were going on so that as and we were also negotiating with mr carter to come and testify before the grand jury i believe he testified in december of one nine hundred ninety eight i believe  he thought his money as the litigation developed it turned out as mr carbonneau eventually told the government and everybody else no there's other clients money mingled in this money that you seized so then it became an issue of how do you figure out how clients so i'm only concerned about my money which is this portion of this money that's why when the government says his story changed it did because as the litigation proceeded to mr hart for a long long learned more about what happened to his money h explanation changed because he didn't he didn't know that the money had gone from switzerland to the caymans you know that was combing with other people's money he didn't know it would have been seized he only learned this stuff over time after the forfeiture complaint was fil d going back to the summary judgment motion summary judgment in forfeiture case is different it's a completely different standard it's very precise you have to look at it under that standard and not the general standard nobody even the second circuit was developed in a standard follows the mesa standard anymore no everybody agrees that that's the wrong standard the district court never made any factual findings never address the issue of jurisdiction under the correct standard none of the parties addressed the issue under the correct standard that's why there are no facts there's no findings the facts the facts were never developed about the jurisdictional question i know you didn't try the case but the counsel who did representing mr hart cog request findings of fact in conclusions of law not in those words they did file a motion for reconsideration where they where they argued that many of the district courts fact are fighting for wrong let me make this really clear nobody at the district court level understood the jurisdictional issue nobody addressed it nobody developed facts about it nobody made any factual findings about it that's why it's my position you have to