this appeal we brought because we are appealing the amount of the forfeiture and our position is is that the district court  even though he was given clear instructions on how to analyze the culpability of maria farrow he did not follow those instructions those instructions told him to follow the four factors in the hundred thousand three forty eight in currency case under penalty number three under factor number three which deals with other penalties that are applied to offenses of the same kind that should have been applied to in this case but the court didn't do it should or should not should it should have the other penalties the charge the district court below should have looked at the penalties that apply in a felon in possession case and those penalties are a maximum statutory penalty of one to fifty one months comparison to what the penalty would be if a crime had been charged but she is charged on the crime that she allowed to transpire on her property and that was she allowed her husband a felon to possess her firearm collection right so the husband was charged with felony in possession that's it and he would and he was issue with a fine that's monetary so when we have a felon in possession and his fine for that felon in possession is seventy five thousand dollars under the guidelines we're talking about money we're not talking about prison time and how that equates to money the fine is what we're looking at and that's what it says what's the penalty or the fine the constitution says forfeiture a fine against the owner and that's what we have here and environ hoff it's said you look to the statutory maximum  which is one of the cases that this court cited in its failure one case and in that case it says when you're going to punish and in that case it was also the wife who did not commit the actual offense it was her husband and that's why this case is almost exact because we have the wife who lives in the home and you're looking to what is the amount that you punish the wife for the acts that she allowed transpire in her home and in the bahnhof case they said very clearly i'm sure the factors you look that case the guy doing fine was a million dollars and the judge at the the second circuit in the bahnhof case said that even though she knew her husband was growing the marijuana in the basement and they try to forfeit her home and her value of the home it was only one hundred twenty four thousand dollars in value and the second circuit said that's too much that's disproportionate to the carpool level of the wife and that's what we're seeing here in this case the district court he said he looks at  the fines and penalties that apply to a felon in possession and then and then he says i didn't get any guidance and then he gives a two plus million dollar so what he did was he only gave maria back ten percent of that which would be equivalent to a five hundred and fifty thousand dollar fine  to two million plus following and this is the rife who now here here's the situation she didn't understand the felon in possession long late judge said in his order that maria was comped legally on interested in the guns meaning that she really she didn't look into it also arguing the facts to us is not going to be very productive because we're not going to do the equitable balancing based on the facts that has to be done by this record ok i think you're better off by arguing that the district court perhaps took into consideration even the second time not only the conduct or an action  highlife but also the conduct of the husband yes your honor and i think that we told this record to concentrate i think it was were used to concentrate on the conduct of the wife case they took away his half of the house and i'm sure he did some prison time or i don't know what can you tell me what was the maximum fine for husband one hundred twenty four thousand one hundred and twenty they forfeited the house and the house the total the house and not make it clear let me try again suppose the sentencing guidelines had been applied to manufacturing marijuana in the house the guy going punishment would have been forty thousand dollars i don't know the guideline fine went from forty thousand up to a million over forty thousand to a million up to a million and they found that the wife's to forfeit the house from the wife at one hundred twenty four thousand was grossly disproportionate so here you would argue that if the maximum amount of fine has two hundred fifty thousand that's a statutory max age to a maximum and the guideline fine i seventy five thousand and the judge is forfeiting two point five million know the judges after twenty percent a little over two million dollars imagine if this firearms were only worth one hundred thousand can you imagine if you're you're finding a wife who just happens to be in the house with her husband who is  prohibited from possessing guns and you give her a two million dollar fine that's grossly this report disproportionate it's outrageous and that's what happened here when i was out of the their pearl ivory handles pearl handles everything but your honor maria do not have those balls were not those those collectibles were they for for the bull therefore for the pull up to the amount that it doesn't become an excessive fine  not illegally possessed or they well not now you're not talking you're just that nodding the edge of the firearm collection were illegal firearms  any illegal firearm maria farrow forfeited to the to the government so any of them we had expert appraiser go through from the largest auction house in the nation hogan he went to the a t f she looked at all of the firearms and he gave them a value and he assured that all of these were legal and could be sold on the market as legal firearms so all the firearms we're talking about right now are legal to own and and maria fill in the district court  claimed that maria could even be found to be an aider and abettor but under the law to be an aider and abettor you have to participate in the crime and you have to take action that would make the crime succeed she did nothing the court the district court found that she was totally uninterested his words are completely uninterested in the guns and that her failure to inquire of her husband whether he could only them or not was her culpability and if you look at that that is negligence and i put that in my response brief very clearly it shows the law and it's under the law there's a you cannot accuse someone of being aider and abettor when they were clearly just negligent and that's in my response brief your honour's and she wasn't willfully blind either because she didn't even know that her husband was prohibited from purchasing the guns guns these are legal guns it's not like these are drugs the average person is not going to know the felon in possession law and even the district court admitted that he said the vast majority of the public they don't know about the felon in possession so it's not like when maria is seeing her husband with a gun if ever and there were  hidden in the house she's not saying oh there's a crime being committed here because she doesn't even know about the law so at best she was negligent honestly she was negligent as the owner of the gun she should have known the law but you can't peut specific intent crimes on to someone who truly did not understand the law and it's as to mrs o the say she was not worthy of belief because of any contradictions yet in the first run in in the first trial he found maria to be very credible and then at the remand hearing he claimed that there were some inconsistent sees in her testimony and that's what i did in my opening brief and in my response break yes your honor the answer to judge players question is no is a is an yet no your honor well it's no except that he did find on the second go around that her testimony was inconsistent so therefore he might not credit her claim that she was told by her husband that he could possess a gun right of the currency case that he follow the other penalties and fines of vailable applicable to a felon in possession offense and even maria farrow didn't commit the offense and she didn't do anything to harm anyone or do anything wrong she should be on the lower end of the guidelines if you look at the  follow the currency case factor number three then the maximum amount of money that he can forfeit is the maximum amount of fine which would be two hundred fifty thousand dollars and your client should be getting two million two hundred fifty thousand instead of five hundred thousand correct exactly i've got to see if  good afternoon may please the court i'm stephen our welcome sitting u s attorney representing the government i'd like to start with this issue of the fine and discuss that the idea it is not accurate to say that the constitution defines a fine as a penalty or that forfeiture the constitution doesn't talk about forfeiture at all the guiding decision the guiding principle here is the vegetation case the supreme court opinion which says that in determining forfeit ability whether it's excessive the question is one of the things that the court has to look at are the are all of the penalties that are applied with respect to a certain violation that would include as the court pointed out not only imprisonment and right correct yes what was the total amount of money involved the total amount of money i believe was three hundred fifty around three hundred fifty thousand dollars the violation was failure to report more than ten thousand dollars and how much did was i believe the court ended up ordering a forfeiture of only ten thousand dollars but the basis for that was based it'll be the answer to my the answer to my question is the two hundred ninety high was because when the court entered into the analysis of the severity of the seriousness of the offense versus the amount of the forfeiture the determination both at this level in fact the ninth circuit declared that the forfeiture constitute statute unconstitutional  the supreme court said it wasn't under the statute itself wasn't unconstitutional but that it that it was improper and it was excessive to the extent that it required the full amount of forfeiture because the interest that was trying to be protected was just not that important it was just a reporting requirement there was nothing illegal that the person who was taking the money out of the country it wasn't illegal for him to take the money out of the country it was just illegal for him to fail to report it in the guidelines boom he was five thousand dollars fine  improve jail correct yes and but again that the deciding factor there in that case which was a criminal case and in persona case against the person who had committed the crime was that both at the circuit level and at the supreme court the courts determined that the violation just wasn't that serious and that was really what drove that decision but the other law unlike the facts unless case mr baka cajun was the person who actually did the event right correct and he was actually that was a criminal forfeiture case of he was actually prosecuted in that case he's the one taking the money out of the country wrecked yes but in this instance the underlying or predicate offense if you will is mr farrow's possession of these weapons after his state court felony correct correct well just focusing on feral tell us what she did that necessitates only a twenty or i take it you think it should be less than twenty percent remission the government contends that there should be no remission whatsoever in this case and the reason why is because miss mrs farrow based on and this is this is clear the government would contend especially after the remained proceedings where her testimony changed materially as was pointed out in some detail by the district court her level of knowledge about these weapons at the time of trial was that she didn't know anything about them that she was only ware of about twenty weapons when there were over sixteen hundred in the house some of which were hidden but many of which were wide open in the open but this can't think there's the government think that three zero pharaoh was sophisticated enough to know the difference i'm not sure what the answer to that question is and i don't think it matters your honor because as this court held in federal one whether maria farrow knew that it was illegal for all those guns to be in the house after her husband had been convicted of a felony is not the proper standard to be applied here she doesn't let me turn the book let me turn the question the other way the government inventory all of these items correct yes and concluded that some of them in fact  contraband yes rect correct did she ever contest that she did not contest the contraband weapons no our claim relates to the collectibles the the non contraband weapons yes some of which are collectible but the hundreds of these guns are not collectible but let's call them long contraband ok ok yes so she accepted the government's decision on what was contraband and what was not yes that is true that other they are turning a blind god what else did she well as explained in the briefs the other thing she did was she actually herself also illegal illegally possessed and own all of these weapons because of the plea that she had entered in one thousand nine hundred eight that made it illegal for her under california state law to possess or own firearms of any kind so if for court the district court refused to consider that correct without it yes without explaining why but in light of the fact that this court instructed the district court remain and to consider maria ferals culpability in connection with this with this violation with the possession of these guns by robert farrow in the family home certainly her the leak the legality of her ability to possess these guns seems clearly to be relevant to the issue of her responsibility for having all these guns in the house why digitally have done what could she have done that would have completely understand this is hypothetical what could marry a pharaoh have done to completely exonerated itself in terms of remission so weapon she could have sold them or she could have turned them over to a federal firearms licensee with whom there were several federal firearms licensees that mr and mrs ferrall had done business with over the years she could have done anything she could have turned them over to someone who was not a prohibited person and not allowed her convicted felon possession of the weapon not to own it now the the prohibition that applied to her under state law applied to both possession and ownership but robert pharaoh's prohibition was against possession of firearms so he could have owned them but based on the stipulated facts he had released his ownership interest to all of these guns back in one thousand nine hundred two right before he was convicted of a felony so when she all of that's that's a given she on the weapons yes is that right that is correct your i didn't hear you collection worth probably two and a quarter million dollars roughly weapons there that are collectable that are not illegal to possess and then seek to have one hundred percent of them forfeit the government certain that the government's interest in any felon in possession but i mean is it that it's going to be part of the collection that will be displayed in washington at the f d a offices is that the purpose of it that is not the purpose your honor it smacks of it that well i can foresee i can see why it might to someone but having knowing what's going to happen to these firearms i know it's not that's not what's going to happen the purpose of the government's interest here is that there is nothing in the federal firearms statute that exempts collectable guns these are operable guns these are not guns that didn't work all of them were operable dozens of them were loaded only the only connection it has to the collective collectables is that those various types of weapons were not stored separately from one another they were all mixed in with on one another but but the government's what the government is urging here and the reason for this forfeiture is it's that congress has enacted strict firearms laws that say a convicted felon is not allowed to possess a firearm there's no exceptions there they're not allowed to do it this person say over six hundred and if we just talk about the the so called collectibles or the non contraband firearms we're talking about more than thirteen hundred operable firearms stored in a suburban house in a regular neighborhood and the idea that congress intended for that to happen for a felon to be allowed to do that and for those guns not to be subject to forfeiture is materially inconsistent not only with this actually but with the sentencing guidelines you're telling me about tell me what congress intended i mean that's kind of affectionately don't know what their intent was well i suppose what we can do is talk about what the what the statute says and what the sentencing guidelines say and when you look at the sentencing guidelines dealing with forfeiture it's a separate section than fines and this is the point i wanted to get to early on when the supreme court said in best occasion that the court has to look to all of the penalties that apply the full range of penalties that apply fines and forfeitures are completely separate penalties under the statute and in the guidelines the the sentencing guidelines section that deals with forfeiture it lets on the sentencing guidelines have been declared illegal answer to this sentencing guidelines the entire statement in the sentencing guidelines relating to forfeiture is forfeiture shall be determined according to the statute the statute here section one twenty four de one explicitly provides that all firearms and ammunition involved in a violation of section one thousand and two g which is the violation here shall be forfeited to the united states government so i'm just that's what we're belying on we're looking at the plain language of the statute yes  understanding please correct me if i'm wrong is that government agents came to the pharaoh home on one occasion found some weapons and then came back with a second warrant some time later and found additional weapons maybe even substantially more weapons do i have got about right your honor during the execution of the first one they found eight hundred sixty eight guns and then five days later they came back with a federal warrant and found an additional six hundred ninety six guns when they came the first time did they ask mary a ferro how many farms were in the house i don't believe they asked her how many but they asked both mr and mrs farrow if they had recovered all of the guns in the house and they were told by both of them that they had somehow i have the idea that she said five hundred is that wrong well there was some there was a lot of discussion at the trial about how many guns she was aware of she testified during trial that she thought the gun collection consisted of more than five hundred guns but she had no idea where they work as she'd never seen them she said in fact that she had only seen about twenty guns actually laid eyes on them and see them when we went wow ok sorry when they came back a second time they had the greater amount or found in hidden compartments and sealed off rooms and an underground firing range where there were no guns in the firing range but all of the guns were found in yes built into walls and in a hidden room in the garage on the at the execution of the second warr maria farrow resists the search at all no your honor you know that she cooperated i don't i don't i don't know that she cooperated i know that she did not refuse to cooperate but i believe when they went back the second time they merely asked her to sit in a room while they conducted the search i don't think they are and she and she complied and she complied yes she did thank you i ask you a question you've mentioned nine twenty four d one was then that's the basis of you saying that there should be no percentage at all awarded to miss farrow that's part of the reason that if that would have been urged the first time the case was here before us we wouldn't be here a second time would well know we did urged that the first time around we didn't find we didn't agree with you because the court found that the district court had not engaged in the proper analysis because it hadn't know what the government is urging and what the government understood that the federal one decision to be when what the government understood this court to be saying when it sent the case back the first time was look the the district court needs to look at maria  level of culpability in connection with this offense despite the fact and this court even recognized that after vegetation there was there was a unique situation and it was a difficult situation to apply the excessive non violator claimant which is what maria farrow is but what this court also said was we have an analysis for that we have we established a test for that in the older otto case back in one thousand nine hundred five and while that test in general was abrogated by the supreme court in badge occasion that portion this portion of the test that is based upon how you determine the culpability of a non violator claimant was left intact and is not inconsistent with the opinion the government understood that to mean that in reminding to the district court that the district court was intended to analyze this question under the eldorado test which it refused to do the th why the government believes that that is the correct thing to do and that is apply the eldorado test is because it answers the precise question that the court is asking in this case that is what is the culpability of a non violator claim and how would you have us analyze or tell of this record as the culpability well by using the v the three factor test in the eldorado in eldorado that's that's articulated in eldorado the government would send out the for fact know actually i think what's no not at all there has to be a synthesis of the badge occasion factors which because it was a criminal case focus on the violator the the factors in one hundred thousand three hundred forty eight which the court also analyzed in fair a one but again that addresses a violator who is the claimant and eldorado which treat and there has to be a synthesis of all three of those cases all three of those things can be analyzed together there is some overlap but what's important about eldorado is eldorado deals specifically with a claimant who is not the person who violated the underlying offense that led to the forfeiture and it focuses on their involvement in that offense their participation in that offense and what this court did when it remained it was it said we like the look of we like the general pro choice that was taken in vonn hoff in the second circuit the eldorado factors also blend perfectly with that analysis because that's what the bahnhof court wanted the district court to do look at this person who is not the main violator but the question is what did they know what is their responsibility for this know why that case was settled and it wouldn't it's not appropriate here but in fact years and i'll tell you something else the other the other thing to keep in mind is we're dealing with very very different subjects here involving hof we were dealing with a marijuana grow that consisted of sixty nine plants that the government even the government agreed was not a significant grow the more serious penalty there was the husband's distribution and sale of the marijuana outside of the house which everyone also where a person has a finite gun collection and it's all out in the open but within that collection you have some contraband firearms no unless the possessor is a convicted felon in which case then yes all of them are for football because a felon cannot possess firearms whether contraband or not and that's what rest are rifles going all the all the way back to the revolutionary war or of a change well civil war and the rest of it a really really terrific collection knows that that one weapon in there or should know now that one weapon is illegal under that scenario you're on that and they find that illegal weapon then they seize the whole not if that no they cannot not based on the fact that there is one machine gun and that scenario only that one machine gun would be involved in a violation of section one thousand and two unless the possessor is a felon in which case all of them would be illegally possessed and the and that's that is the critical difference was she was not a felon and all that property was turned over to earth and the government doesn't this that that was all her separate property right but she does not dispute that during the entire period even though she was the owner of the property during the time he was in prison he was not in possession but for many years while this was while this while those guns were in the house he was there in the home and he was as a stipulated fact in actual possession of all of those weapons in fact it's what is what was crystal clear after trial is that and in this change later because maria faris testimony changed significantly but based on the testimony at trial there were sixteen hundred seventy nine guns in that house and maria farrow was only aware of twenty of them so there were sixteen hundred fifty nine guns in that house that robert farah was the only person who knew they were there and he was in actual possession of those guns because he's the one who got them he put them hid them in the walls he built them into this spare this room in the garage that maria fair didn't even know about now what became clear on remand is that maria farrow did know of at least five hundred guns that were in her house that were any giant closet in the main hallway of when the search came to the house the a t f showed her the hidden compartments the safes the underground shooting range and the compartment behind the garage and she did not know about any of those she didn't care about the guns that was her husband's hobby and she was raising the children and getting them ready for school she did not know and there was no inconsistency if you read my opening brief and my response brief i go through t d s effort to try to show her her testimony has been remarkably consistent from day one ever since she's been in this case she say in the same thing over and over again she did not know and even the judge said she didn't know the vast majority of the g she knew her husband had a collection of five hundred guns she wasn't specific they asked her do you know where the guns were kept and she said i think in the in the office in his office that and that's in either my opening brief or in my response brief but that was her response she says i think she wasn't even sure of that and and and just to  robert had told her that he could keep the guns his firearm collection and and that's why that was incorrect it wasn't correct but any other questions from my fellow five six four to five is a medical decision i think counsel for the argument and we will now go into conference adjourned until tomorrow morning nine o'clock