we'll now hear arguments in the case of the united states versus channon matthew channon it appears that the government should have filed a motion to seek general order in this case instead what they went forward with it was a motion for money judgment government's concessions the court did not address the forfeiture issue it was reminded so the court remember order said we re man to conduct further proceedings on this issue and i guess at this point our question is what was meant by this issue i think that would be the question actually for the panel as there is a problem with the language of the agreement but that shouldn't be working against mr shannon so how would you interpret it if i was sitting there as a district court judge i thank you for the promotion  court to trace the property correctly that was the issue that one has been privy to preserve from they won mr shiner and raised that and the one of the underlying issues is that the only thing that the government did both during the trial and  reward points that are translated into a number you get a twenty dollars not right so what the government did was to try to trace that note the number and the number that they gave which was one hundred and five thousand dollars and such was the actually the store credit that was not nothing more than the store credit that was issued to the accounts they didn't complete the job they didn't then try to trace back further and and say ok the only thing that the only time that that could become the property that was subject and i would like to actually i know that the tortured history of this case might have prevented that to become clarified having reviewed yesterday i think extremely important to note that the government conceded and i actually had a superseding indictment acknowledging that the store credit itself could not be property for the purpose of fraud are you are you arguing that the amount of the judgment is not in course once it was remanded there we're still looking at that same dollar amount and you have no contest about that i'm out i'm saying the exact opposite i'm saying you were but it seemed to me you were narrowing it into the issue of tracing and that's a different animal so the tracing part is an important part of it because behind the issue since the government did not go for a general order they what they claimed was that we know what these tainted properties are which is not correct and they have conceded that in their response that we have not been able to trace and determine what actual merchandise or gift card which were due to things that could happen the only time that this could materialize the reward could materialize where if they were purchasing merchandise or gift cards ok and that was not right so the problem remains that they had never explained what the tainted property was either in china in one or now if you're in china into so the tainted property which could have only been two  it couldn't have been geared toward because the government specifically if you look at the record from page seventy five to seventy eight there's a huge discussion as to what is it that is the property that you're going after and they acknowledge that under cleveland there would be in trouble because the credit in the store is not considered the property so they're going to go with the easier approach which is we're going to call the merchandise and the gift cards those are the tame the property that could be painted property  cards the gift cards ok those are the only things so and that is the part of the what about unredeemed reward credits and redeem reward credits so that was never claimed to be  refuted the argument which is on so i'm going to get if i'm going to get back and look and i'm going to find out that the things that we're talking about in addition to the forfeiture amount that basically the public defender said henri man judge i think this was judge you're going to have to get we get a do over because this new case came down they didn't they're not going to be able to pursue certain things because they didn't pursue it right in the st place and there's no joint and several liability we want to discuss that with you district court tell us about the joint and s specifically mentioned but ok so let's talk about that i mean don't you have to ask on the joint several liability part at least in jeff to ask the district court to deal with that well or your or your predecessor not not throwing you under the bus for it  i think the bad news for the government is that it has to and i think they got a civil or criminal then the party that has the burden has to meet its burden so you think that henri man the government had to say it's our position judge that all that's happening here is we're conforming our money judgment to the statute but while we're here in all candor you should know that we've also that we're one that we're in addition to the amount of the judgment we're also talking about other things in the case that nobody ever brought up below because of their requests for being mad and now that couldn't it couldn't be so for us now it's really an issue of what is the scope of the mandate in that st correct that but at it's also important to no that because of the mandate because of the language of the mandate the court never addressed the merits of the arguments for which your argument in won so it would be extremely unfair to say you're not going to address it now let's remind some the government can't the isn't that my value so the store credit is not under cleveland and the government considered that it cannot go that route so it is bound now to focus itself on merchandise or gift cards ok and the gift cards and merchandise were never traced back to the crime and that is something that was completely doable if they wanted to do that the spreadsheets could continue these are the counts this is their ward this is the barcode these are the number of these one hundred cards were issued that are client's argument at a different point or maybe even in this case but at some point that hey we didn't get that that much value the value is not an issue right now where we are bait above the value you haven't  good morning again and may it please the court counsel page message for the united states i think it may help if i take a moment to try to clarify the zone of disagreement between the parties here both of matthew  by asserting that before the government can forfeit untainted money a substitute assets there must be a hearing at which the government has to satisfy the requirements of fifty three dollars p we do not disagree with that but that is not where this case is what the government has right now is a money judgment it does not have an order for fitting any specific property including money of the chance well how do you support a money judgment  because that's an easy route to take because you can't trace the property the money judgment as this court i believe you judge briscoe explained mcginty represents the amount of unlawful proceeds the defendant received from the crime the money judgment itself is essentially agnostic as to whether the sat is the it will be satisfied by tainted directly for of the assets or by substitute assets so the money judgment itself doesn't require tracing to particular property because the money judgment is just setting the amount as a placeholder essentially for subsequent foresman efforts there was a real bone of contention between the parties before in the st ten an appeal as t honey and that's ok and that's a gift certainly honeycutt came out and made clear that we can't do that and we understand that now and that is the read the reason that we conceded that issue and agreed to the limited remain and on that issue but then are now man w because you said honey can we now look at joint and several liability is that on the table for us it's not on the table because the shannons never raised any objection to them being held jointly and severally liable do then they do not get the benefit of a supreme court case that comes down while their case is pending on appeal or they can have the benefit of it but they actually have to bring it to the district court's attention which they never did in fact if you look even now to remain on they didn't say no join you have to supper readout what i got and what she got and had they done that i submit they wouldn't have been able to make it would have made any headway with that because they were a married couple living together committee in the fraud together and it is reasonable to assume that they shared jointly in the proceeds of their choice only undertaken criminal activity as a married couple so i don't think that they could have made any difference there but they never asked the court to do that so that is so they're on clean air now where they have to show that there was of course error that was plain but they also have to be able to show that the government couldn't have come back with any more evidence to defeat the claim that they're making now it's a joint several liability i would also say i don't think the tenants have the best reading of honey cut here honey cut does not hold that two co defendants can not both receive the full proceeds of a fraud honey cut is about so i don't say that they can't have the benefit of honey but they didn't raise that issue before the district court and they can't satisfy plane error now which they haven't even attempted to do i mean did they even suggest to us that we should review it for plane or no they have not in this court would be entirely justified in declining to do that where they haven't faced their burden under a plane unremembered wasn't the whole presentation by the channel and the position that the judgment was too high and that the court needed to hold a hearing because you hadn't proved that amount and that they couldn't be held your judgment couldn't be in them out of money a value that you know they put they may have taken from your drawer from from the store it was the amount they might have received for those items it wasn't that the whole thrust of the prism of their request for a hearing yes exactly it  more of what they argued in chan and what they believed that those arguments were still on the table they didn't raise new arguments at that point it was the same things that they had raised allow and more than that legitimate thought i mean our opinion did not reach the merits of either issue and we just said ok government looks like they want to look at this again so we're going to remain and the government didn't tell the district court that it had no discretion to consider these other issues the government said you can see what issue prompted there remained here that is clear from the opinion it was the government's concession the issue of the remained very closely tied to the government's concession so when where and when when you look on the on the opinion that we issued and talk about this issue what what we're talking about i understood that and i believe the best reading of the opinion that looking at the context of the case is that this issue is the issue that the government submitted a twenty eight dollars day letter on and that was discus argument the issue about whether there needed to be a sentence or two added to the money judgment to make it clear that the government couldn't take that money judgments these assets without satisfying a fifty three piece that's what i think this issue is now again we didn't tell the district court that it couldn't decide that it couldn't revisit other issues because well that was what prompted the remain and there wasn't any language i agree in the remember saying you can't go beyond that and this court's general mandate rule allows  district court to exercise that discretion on remained but being able to exercise that discretion to expand the scope also means that the district court does not have to expand the scope if it has discretion not to expand the scope it has discretion procedures outlined three zero no it didn't we haven't tried to seize any substitute assets we haven't identified substitute assets yet so we haven't gotten to the point at which we would have that hearing but we say some day this is some day we see we see that there's a bank account that they have that appears to be untainted funds and we would like to forfeit it as substitute assets we would go into district court and we would attempt to make a show in under eight  p they're the district court could enter an amended judgment under thirty two point two and if the chance believe that we have fallen short of our burden under if the three they may take a new appeal under rule thirty two twenty where it we haven't  you justify the money just how do you justify deep and if not it is not money see it is not like stopping a bank robber and taking the bag of cash from him and saying ok there's eight hundred thousand here i want to make sure i sum represents the proceeds the total proceeds from the fraud because what the chance got through the fried was a sum of office max merchandise that did the government not achieve that through double dipping but as a core is this a penalty it's it's it's not double purgatory restitution serve different purposes as a core explain to me getty right so there's no there's no double dipping office max gets its last restored to it through restitution and the government seizes the the proceeds through forfeiture there's actually a procedure under which d o j will restore the amounts that it forfeits to the victim through restitution the government doesn't collect twice but they are separate awards and they can be for separate amounts as they are in this case although our position here is that they don't they don't have to be separate amounts it's quite possible has it was here talking about the double dipping i think so if there's full restitution paid what's the government going after and forfeiture well if any if there were what normally happens here is we would attempt to collect the forfeiture and then give that to the victim in restitution there there's not really i think would be unusual for restitution to be paid and then for us to go and attempt to collect on for no the restitution award was actually less than the forfeiture award so there's a judgment there's a judgment and you're cutting the line as to whether or not the judgments been paid when judge kelly asked about how much money did they get back not you say nothing because the defendant hasn't paid them anything that's right the defendant and there is a judgment right that's right but they got back the items that were still in there in the defendant's possession well they haven't gotten they haven't to see all of it i would estimate it's probably maybe two or three thousand dollars it's not a large percentage of the total we found very little almost all of it had already been sold and we don't know exactly wh t so so we agree that the amount that the chance that the amount of the forfeiture is the amount the chan and profited not the amount that office masks lost but the amounts that th profited and i think the word profit was directly taken from mcguinty so so it's but the actual is what the chairman's gained but in fact the forfeiture statute ninety one dollars says that furniture is not limited to net proceeds or profits and so we're not asking what that how much cash the tenants and it up with after they sold this merchandise on the gray market all right yeah because your position is if they if they received one hundred and five thousand dollars in value and they chose to liquidate it in a way where they where they reduce that amount that's they still receive the higher amount that's on that on them we let me ask you another a different question what what if the chan ins got on e bay and sold all that stuff for two hundred thousand dollars how much would you want to forfeit in that case the proceeds of the offense would have grown to two hundred thousand dollars that's just baked into the definite of proceeds right so if you happen to invest proceeds well that you know gains you a lot of money on the star stock market that also becomes proceeds that's just how the statute defines chris i mean that's sort of gets you into a they lose situation and that i mean there's the if in that case i mean there's just never a way to distinguish it well i think that i see the court's point but the for e statute hold the defendant liable for disappeared and of the value of what they gain from an offense so if it goes down they're still liable for that top dollar but the forfeiture statute also takes into account proceeds that proceed from other proceeds right so again if you invest and it goes higher or if you manage to sell it for more than it was worth at the time you got it the forfeiture statute captures that too so was that it was the one hundred and five calculated based on office max's cost or the market value of what the chance received it was calculated on the market value because that's what office max would have demanded from any customer for that same set of merchandise so what did you come up with the grand total of max perutz towards that were fraudulent acquired by the channels and then we deemed that the office max that is the number this was not the market value this was just the store credit that is the problem the government never connected the store credit which does not have a market value to the mission lies if we got to the merchandise then we would have a discussion as to what is the market value or are you asking for it the proceeds to inflate and you get it but if it deflates you don't get any of it and that proves the point that the government is using conflating loss and gain and that is not that is in direct violation of on their money cut to full use that what was it used for that is what we have been begging this court to pay attention to in china in one and not in china to the government has still the burden to say what  identify them these are bar codes this is not a you know a store that doesn't have a system and in place there are bar codes for everything that happens in office max the government has not and now these allegations that there is a market value when you look at this you're out of time thank you was she went over two minutes so go ahead redeemed all of that except for two thousand three hundred and two dollars that they sold to other people who then redeemed them for a value of one thousand nine hundred and sixty eight dollars so you can find that in the nd volume of the chandon record on all right thank you both for your arguments i'm glad you care so deeply about your cases it's refreshing thank you