was decided after the jury verdicts and prior to the sentencing in this case i was appointed after the jury trial prior to the reese always held for the first time that pretrial restraint i'm tainted assets has recognized that when tainted funds are deposited and commingled in an account it taints the entire cow and here as i understand the proof of the scheme an arti defraud the account itself was a one of sixteen accounts that were a vehicle a lot of a washing machine if you will for the money laundering scheme that the government advocated cause why would the grand jury then be presented with a question at all if there is not what you know is required to go in the indictment right because just because the government's theory is that there's probable cause to believe that it constitutes proceed well that's from the ponzi that's the government isn't that a sense or you're entitle to a probable cause hearing or you know at the end of ninety days at the end in ninety days if they don't file a civil forfeiture complaint or a criminal indictment and take the steps necessary my government has to give it back so why should i not conclude from the in congress as an actor that the grand jury has made the determination through the indictment that this property is subject to criminal forfeiture and therefore under the criminal forfeiture staff you must include a notice to the property owner of the fact that it may be freeze so that the funds know is the first time that the supreme court has recognized the constitutional right if applies to the slanderous and now we're back to the question i started with which is whether or not we see them apply ok so you have the government has to get a restraining order or a warrant and the warrant that they got did not authorize seizure of the property as property involved in a money laundering offense now if you want to talk about what the grand jury found with regard to that forfeiture notice the fortunatus with regard to the proceeds allegation is just plain false that the forfeiture notice said that the entire account was subject to forfeiture as proceeds when the government knew full well at the time they attained that first indictment that at least one hundred twenty seven thousand predated the crime and therefore was not proceeds going to the scheme here was alleged to have occurred over a period of two thousand and five to two thousand the first parking lot deposit fungible so yeah it's i mean because you guys are cases out of the my circuit and it just says you have to chase proceeds to in order to have proceeds forfeiture now after the original indictment they dropped the other allegation that it was property tainted as pat that the entire account was tainted his property involved in a money laundering offense they dropped it so they never initiated a civil forfeiture action on that theory they never obtained a warrant to seize it on that theory says he was never told about his right we also have the defamation from his retained counsel who said that when the money was seized he just said you've got to go to the federal p d s nothing i can do for you anymore so that's what we have on the record of that we have mr collins declaration declaration and we have mr wolf at the initial appearance in this case saying the account was seized and therefore is not available to him so the record shows that mr mandela was not given notice of this right until the weeks and he found when he to send it back to prior to the motion to vacate guilty breaks because the money should have been returned when the immediate relief there was two motions motion for immediate release of untainted question of seat that's it that should have been granted because there was no warrant and r the family's reasonable living expenses he didn't know he wasn't told about a sixty minute match a subpoena just a minute in the trustee attempt to garnish the funds and satisfaction of the judge and the trustee garnished the same funds that are subject to the i should be determined on appeal that they these funds were needed to retain counsel of choice why should i not at best your best argument is to send this back for a hearing by the district guard as to whether the funds were needed at all well that is that minimum wage we should have had should be the minimum you should ask for i mean i don't know how we could get around if you when that's the best you can get in my book tell me choice he never did anything about that until it comes out and he gives you a smart person who comes in and tells them now you've got a great argument and now he starts making it as if it is i don't know that that's truly s so i say to myself your best argument is send him back to see whether it really was his idea that would be the first time i tried to say why is that not true i think the record shows that he submitted a declaration at that time coupled with mr wildstein at the initial appearance that the funds were not available to him plus if he had the two hundred twenty five thousand that was not proceeds he wouldn't have even qualified for a court appointed counsel so i mean he had private counsel that's great argument but also could be made the other side of this which is he did never say anything about he never even thought about it ever pinsky's on the book while he there's another reason why this case should be sent back and that is because there was a construct of the members and i meant and i'm going to focus on the superseding indictment the second superseding indictment in that second superseding indictment the grand jury is but the problem here is the construct of the men that occurred because in the end the government's theory was based on fraudulent omissions and that was never alleged anywhere in the superseding indictment drive through an omission that the parking lot funds were security section of the can register and as securities they had mr going down this hole i had a duty to disclose to their says proof of the charge scheme would not allow the jury to convict of any chain on charge why isn't that proof of the charge scheme that word language the charge scheme when we know exactly what's going on there why and with that why is that any different to the having ponzi in there it seems to me that that wording proof of the charge team when there's only question about what the scheme is there's no question about what was charged no question about where they're going no question about what the argument was about why didn't that kind of cover your problem because the government also argues in closing  first time that their real theory was this five point zero missions failure to disclose all these five children of missions that had nothing to do with a ponzi scheme counsel as was the second superseding indictment given to the jury during deliberations so that they could actually look at the language of the charging instrument i believe there was appreciated version of the diamond that can you take a look at your time fifty three which is the description of the scheme for the fraud as alleged by the grand jury and i can help you out a little bit it sets out in the first paragraph essentially tracking the language of a conspiracy to engage in mailing wire fraud as with the usual language of knowingly and with intent to defraud devise an intended devise a scheme an artifice to the fried and to obtain money by means of material false or fraudulent pretenses representations promises and o missions and then under a heading label ponzi scheme it sets forth in several paragraphs the scheme as alleged in the united isn't that the scheme that the jury was told they had through deliberating on in return their verdict on they were directed to find on the charge scheme the problem was there's a confusion as to whether there was another charge alone this and i think what i hear you arguing really is that there was prejudicial still over from allowing the whole weiss state regulators to come in and testify for half a day in a twenty seven day jury trial about the fact that dell and her his daughter should have been registered as securities brokers in the state of hawaii yes there was definitely that but that's not a constructive amendment of the allow the government to get in this theory that the defendants do not have noticed he did not know they were going to have to defend against failure to disclose securities regulation information that was nowhere in the indictment what the emissions as i understand  included as well the fact that you were getting seven percent return on the money because we are brilliant investors and we figure out a way to make ten percent of the money so we can give seven percent  omission under hawaii state law amounts to engaging in the sale of unregistered securities so i guess i'm having a hard time understanding that the right you know is this prejudicial sufficient to overturn a twenty seven day member under the securities regulations they had to disclose all kinds of things about security that's a different omission of the mission about you know giving statements about the species ran more than fifty thousand dollars despite their figures defense however mr mandela and his daughter holly hill i i were convicted because there was overwhelming evidence at trial that they had defrauded their investors in the parking lot s they convince investors to refinance their homes to take the equity out of the house and to hand the money over to the parking lot they promised a safe and secure investment making such representation as they had eight million dollars in a funds paying ten or twelve percent in fact the money was being used to keep the mortgage story afloat to personally and rich mr landell and that's why i had to pay off prior investors the victims lost nine million money judgment and a twenty seven dollars twenty seven thousand dollars specific forfeiture for proceeds contained in the irate count that was based on the jury's special verdict that there were twenty seven thousand dollars of fraud proceeds in  that finding necessarily needs that all of the money in the eye array was involved in the one nine hundred fifty seven violation and that's because the irate was funded by a rollover from a four hundred one k so every single dollar in the rate came from that total over from the four a one k including the twenty seven thousand dollars in front proceeds because of that every single dollar in the iraq was involved in a transaction and more than twenty ten thousand dollars of fraud was involved in the one nine hundred fifty seven violation was not made before trial the first indictment did contain an allegation that that there rollover was in furtherance of a nine hundred fifty six money laundering conspiracy of course government at some just advantage because you might have made other arguments have been raised before trial but you know raised a new argument which mr lindau hasn't didn't get an opportunity to raise at least before a jury so with the one nine hundred fifty seven violation if the government had braced f access to the seas funds by filing a will forty one motion for return of seized property at that point and caylee's the supreme court decision that explains this distinction he would have would not have been able to challenge the grand jur finding of probable cause to believe that a crime had occurred but he could have challenged any argument by the government that there is probable cause to believe that the funds that have been seized will be subject to post trial forfeiture so that is either traceable to the fraud and if we are proceeding on a person's theory or involved in a money laundering offense now to be short there were the government made some mistakes with respect to the pretrial seizure lindell had filed a rule forty one motion at that point in order to retain the funds before a trial we would have either had to file a new civil suit or a warrant to be that he followed up ninety five with a civil complaint or if he had filed this after the first superseding indictment was returns that no longer had the one nine hundred fifty six money laundering conspiracy count we would have had to reinstate again and so on then the government is there is the government asking to be free to raise the argument that these funds would not have been available for trial anyway so we that's exactly the argument we would make and that's the argument that we did make when he did raise this in shown that they actually ever intend to tire counsel of choice in fact the vast majority of the evidence on the record here is to the contrary i think most telling in this respect is the fact that after a trial he did make a motion to access the higher rate but it was not for the purpose of hiring new counsel even though the very same day that he thousand motion to access the ira funds to pay for the living expenses of his wife and child he also asked for a new council he asked for a new council again he was appointed new council and he asked for council again a third council two months later and i did hearing to determine whether or not mr mandela could get a third counsel the different for it said to him you can't keep made an argument that there would have been an additional legal impediment to him obtaining responsible have by virtue of the of the bankruptcy settlement that's kind of trying to figure out is the bankruptcy settlement said yes you can access the ira except in connection with the law that governs iras which means it's exam for purposes of retirement since he was retirement eligible couldn't he have access these funds for any other any purpose that by your own i'm not a bankruptcy expert i think that if i were to make the argument least some collateral litigation perhaps in the bankruptcy court over the availability of those funds and i did reason why i think that's important is because again at this point it's mr lindau's burden to show that the funds would have been available for the those funds to have been seized because some were not untainted some were not tainted that it was a constitutional error they have created the structural right then it would seem to me that the second to the last two prongs of plain error review are met that there would have been substantial rights affected and it would undermine the fairness of the criminal proceedings as a whole and i think from chavez quaver so only looking at the first two whether there was an error and whether it was plain and it seems to me that if i'm looking at whether there's error and whether it's a plane then i have to look at whether the funds were traded or they work first and then whether they were needed to retain the counsel of choice so i guess i'm figuring out why why shouldn't i send this back it seems to be the only reason i can't is to say did already have extensive briefing on this issue and found that luis didn't apply not just because the funds were tainted which they were but also because mr windle hadn't shown that they were necessary in valid but were sufficient to hire of choice now and no structural error requires deprivation of the right to counsel of choice by requires deprivation throughout the entire judicial proceedings it's not enough to say i would have hired counsel of choice for one hearing or one motion and i reply brief and argument of the deprivation of rights to counsel at sentencing demolition of right to counsel of choice not deprivation of right to counsel but of choice for just a small portion of the proceedings is not structural error because it is not fact the entire criminal proceeding it's reviewed for harmlessness the question is whether or not the defendant was fully and fairly represented and of course the defendant was felician fairly represented at all stages of the proceedings here so i don't think you need to i would also note that you are correct that under this circuit's case law the structural error necessarily needs the third prong i don't believe the ninth circuit has ever held that structural error necessarily needs the fourth and this is where the error is constitutional nature and implicates a structural right the error affects a substantial right and undermines the fairness of a criminal proceeding that's for wrong  have been holding that it was satisfies the fourth pronk because of course there was an instructional error there and i'm assuring which is the case that says that it always satisfies the third prong and that's a holding it back ace notably did not go on to say that it also always structural error not one preserve structural error and it is discussing whether or not you can analyze harmlessness not whether or not you hand analyze the fairness of that judicial of judicial proceedings as a whole i about how does this error affect the judicial system as a whole not to be judicial proceedings but judicial proceedings writ large and i think it would undermine the public reputation of judicial proceedings as a whole to reverse in this case because the defendant had every opportunity to argue that he needed access to these funds to hire counsel of choice he never did he was fully and fairly represented in trial by the federal public defender  two other individuals including an expensive expert the evidence against him a trial was simply overwhelming to remember first would mean that we would have to have a new trial where the many victims of mr linden's fraud would have to subject themselves to testimony and cross examination yet again i don't think it would undermine the integrity of the judicial system to affirm here i think the opposite i think it would undermine the integrity of the judicial system is at three seventy five it says that mr lindau can retain his retirement account except for the two deposits in july two thousand and seven which are the same twenty seven thousand it's covered by the special forces forfeiture vary there's no restrictions on his he's saying it's tainted as property involved as i'm in a money laundering offense that is not charged in the indictment that he went to trial on it and there was never a civil forfeiture complaint there was never a seizure wine when you look at the language of luis it says that taint innocent property is property not connected to the charge crime the dissent says that luis is protecting assets that are not derived from the charge crime luis is distinguishing my santo and kaplan and drysdale which talked about tainted assets being forfeit of all assets but government council said this nine hundred fifty seven theory was never raised until after the release well it's not it's a chicken and egg problem because it wasn't raised before trial there wasn't an opportunity to present this question to the district hornets so we're stuck in this situation now trying to sort of go back and ask what would the district court and the government have done had a timely objection to just send it back i suppose we just said structural error everything satisfied we just need to have a complete do over doesn't the government now get the opportunity to do all of this over again and which case you might be right back in the same  that we will get to argue this just will we see it a little differently we're going to argue differently i mean it just seems like it just opens everything back up well beyond you and you are areas that were clear and whatever what happens what happens if we get to to the pre trial situation in which the district court says i think these pardons are have been properly seized and can be held and so now mr now mr mandela you are entitled to appointed counsel once again so we  back and we have trial all over again with new point counsel well then i guess you have to remain for a ten determination but i think the record shows that the non proceeds are untainted the government chose to drop its money laundering theory it was in the original indictment they chose to drop it never became subject to forfeiture under the theory that's alleged now the statute of limitations precludes them from doing it now the twenty thousand dollars july two thousand and seven transforms of what it was to twenty and seven twenty was charged in the first superseding indictment and it was going to adjourn to another room where we're going to confer over cases we will not be making any announcements about anything today but we are just doing our ordinary duty our law clerks are here and are going to talk with anybody who is interested about what it's like to work for us this is your opportunity  questions outside of our presence of people who are knowledgeable about every thing and then we come back again and we'll get we'll take questions for a little bit with anybody who wishes to to stick around so with that the court is a