and turn to our next case for the swearing which is united states of america versus brook representing terry brooks we've divided it up so that ms harris is going to deal with the fact finding in the court below in the application of the gambino factors primarily i want to deal with really two issues the primary one  is the impact of the invalid s one indictment and i know your honor was on the pat on the hatfield panel this case is fundamentally different there's no doubt there's no dispute that the first indictment was not an appropriate indictment was not a valid charging interim and i understand the hatfield rule is consistent with law that that's the kind of problem that can be cured by pettitte jury's verdict that's not what you have here because what you have here is a situation where you start off with the fact that there was in contrast to the normal indictment situation but the decision and the key difference congress has spoken on the issue of a district courts or a magistrate judge has jurisdiction to set bail thirty one forty two says that bail can only be set for a person charged with an offense mr brooks was not charged with an offense to give an example of when the hatfield reasoning might make sense if mr brooks had been arrested on a complaint and  had been sent set then the hadfield analysis would arguably make sense but that's not what happened here the docket shows he was arrested on indictment and he was released on bail on an i related to that doesn't make any sense to me because there was a second a second indictment so you're saying the judge had no power to set down the second and i know i do believe the judge had power to set bail in the second so what what's the practical effect of all of is the practical effect of this is that one of the fundamental pretty precepts of shirdi law is if there's a change in the underlying obligating you're saying that they would never have agreed to be the surety on the second and i mean i'm saying i'm saying that's not my burden i think it's the government's burden because if what real we really have here is a situation where the government got the benefit of getting this of a superseding indictment without first revealing that there had been an invalid initial indictment because the law is clear and we've cited it that if in fact you have an invalid indictment it has to be does dismissed bail is automatically exonerated here the record is crystal clear that the surety s never were given thank you the only other point i wanted to make is that with respect to elizabeth brooks who was thirteen years at the time of the bail bond and who was not a surety the notion that almost four million dollars of hers should not be remitted is it really if we're talking about interest of justice profoundly disturbing whatever the district court finding we believe it was  is the fact of the matter is there's no allegation elizabeth brooks did anything could have done anything to tell me remind me why it's her money the she had an interest in a company called perfect world partners who put it up who put up her money  mother her mother but nonetheless it's her money and she shouldn't have to suffer for something that a i don't think there should be forfeiture but even if there should she as a thirteen brooks the ex wife of david brooks and as mr burstein indicated i'm going to address the clearly erroneous factual findings in the district court below throughout the opinion below the district court  focused on the alleged involvement of terri brooks in the three brooks children victoria and journalists with brooks in the allegations relating to the so called sears and he caught scheme the only record evidence relating to these issues is the affidavit of special agent angela jett and there is nothing in that affidavit that links any of the appellant's the mother of the and the three children to anything related to sears the cot first with respect terri brooks their passports use getting that confused with us with thank accounts your honor with respect to the children the only allegation is that their copies of their passports were used by their father in order to open up accounts i don't think under any scenario can we assume that that opening of those past the opening of the count's using copies of passports establishes any knowing involvement by the three children especially given that one of them was only thirteen or fourteen years old jeffrey brooks but your coins in london removing money from that safe deposit box there's a profit we have for we have still photos mr brooks they're doing but then at the second day of the hearing there's a proffer by the government saying we have a video of these other people involved with him taking money out of that safety but you say that they don't have the video  you know as we indicated our reply brief terry brooks and her youngest daughter lived in london from two thousand and six to two thousand and seven so the fact that they had a safe deposit box there's nothing nefarious about that and more over this is the time period when the terms of the bill release order they're supposed to be repatriating liquid assets and returning them to the united states so they were doing in your honor we haven't had an opportunity to have a factual hearing about any of this but there's nothing i mean there and then the proffer i have says the government submitted by proffer on that same date november fourteenth two thousand and seven both victoria and terry brooks are on video empty out the  and i i misspoke i understood the issue with the circumstances are that this john doe number one took materials from one safe deposit box and place it in the box that was later f contain cash the happen was john doe one the next day but opened up another safe deposit box and put the money that was taken the day before from that safe deposit box into a new one correct but it has nothing to do with honor there's no link between because it's the because the information is that the material was taken from a safe material taken from the safe deposit box ended up in the safe deposit box these are assets that he's renounced to the extent there was any interest he's renouncing interest in these are assets belong to the mother to terri brooks and the three children you're asking us to find the judge seibert abused her discretion when she had all these facts in front of her i mean maybe it was just a really honest series of unfortunate coincidences which she's making a determination about bail forfeiture based on the circumstances in front of her those were pretty that pretty powerful evidence your hon other family members were carrying bags and they went right to a bank your honor that ought not to proffer to that also that this conduct that supposedly took place in july two thousand and six so full you a year before indictment again totally unrelated to the bill release organ i urge the court in your honour's to look specifically at the jet affidavit because it's very interesting the jet affidavit actually says this is that a three forty five that the assets were repatriated from switzerland that there is evidence that asked us where we paid her from switzerland and in fact this pilot testimony your honor was in two thousand and seven before indictments it was known to the government before mr brooks was released and that the time of release mr brooks no evidence whatsoever that there were any assets overseas and safe deposit boxes in switzerland those are all back in the u s that the government's own representations are that the assets were repatriated they know about the lawns testimony at the time that mr brooks is released they represent in open court to the judge that the money went we know that money went to switzerland but they're comfortable in their satisfied because they believe it's been returned to the united states those are the representation they make and nothing that age investigation finds they're after establishes that those representations are not true if we look closely at the affidavit that she submits she says that her confidential source had a conversation with geoffrey brooks in two thousand and seven and that he was talking about intending to open additional boxes in fact they and the affidavit says specifically if it's really worth it says pacifically that it's not ever confirmed that those steps were taken so it's reporting on a hearsay conversation that allegedly took place between jeffrey brooks and a confidential source about jeffrey brooks opening additional safe deposit boxes the afa david concedes that assets we repeated from switzerland but there's no allegation that those boxes were ever opened and certainly no allegation that there were assets hidden overseas in such boxes that our clients the children and terry brooks had any understanding of so the question is were there you know with respect to terri burke's and the children we do the findings of fact were in the found no support in the record and that this and because of play such a substantial role in the court's germination in refusing to remain at least set aside a portion of the bond forfeiture under pursuit rule forty six f two which says that she has the authority to do so so long as justice does not require this is a seventeen point seven million dollar forfeiture of what four hundred million was the cash security your honor was initially forty five million twenty two point five million had been previously released back to david brook even following forfeiture fit so the amount forfeited was twenty two point five i think roughly a million dollars even following the forfeiture judge seibert on her own release an additional three million dollars to the defendant to pay for legal fees and taxes and other costs to the remaining amount for for it was nineteen point five million and then we were seeking set aside your honor of seventeen point seven which belongs to the children and to very few minutes also reserved thank you very restitution yes i think that is at first sight doesn't apply to bail does it the abatement doctrine if there's not been a decision about it this is the first case in which the government is sought to challenge that type of penalty from being abated so with or maybe every other time there's never been any occurrence where someone has had to go before a court of appeals and argue for this abatement it's a penalty they don't dispute it is called forfeiture there's no question about it this court in gigante referred to it as a sanction we're talking about bail now bail and that was that's under gigante while the release which is not a sanction custody or release is not a sanction forfeitures a sanction releases immediately appealable it's not part of the criminal penalties not part of any kind of penalty the bail forfeiture becomes appealable only at finality of the judgment but the decision was in january two thousand the decision the initial decision again as gigante explains when you're talking about a bail forfeiture you don't go by the initial decision otherwise that might be interlocked surely appealable as well you go by the post remission motion rulings and the finality when your criminal case you get to finality from the judgment that was two thousand and fifteen that brings me to another point about the government continuing to say there's delay in this case the delay is ironic we raised the speedy trial issue we we demanded speedy return and to abide by conditions and i'm sure you don't dispute that the judge was permitted to set these conditions that the defendant reveal the location of assets and all of those things he violated the terms of that and he paid the sanction for it which was a chair that has nothing to do with guilt or innocence that has to do with obeying the court's directives on the conditions that he would be released under the abatement doctored it certainly is a punitive penalties first of all but it is still part of the criminal case and is your question if it were not under question it still would have beat it doesn't matter how what you call but the point is it's part of the criminal process and i was because i was beginning the supreme court this is now forty six address the restitution aspect of your abatement argument or i should reply to rosa intrusion but i think that the big question right well the supreme court clearly rejected both the equity arguments and the penalty non penalty arguments in the us and the supreme court said came up with a new way to define it which is it is a financial exaction it is a financial exaction as a result of a criminal judgment and that's the term that we have used that's the term even the dissenting opinion used in reaching exactly the same conclusion that we have reached i think there's really basically it's essentially unanimous in the supreme court but even if you look to the dissent based they still say when you're talking about restitution it's not yet been paid it abate no question about it and that is all all every single conviction was at issue in this case every single conviction the government tries to carve out tax convictions they were an issue we spent forty pages of our brief attacking those convictions they have conceded that the tax convictions must bake with that abatement comes the restitution the forfeiture the bill for for everything else at an issue that's the law would you get the restitution back if you don't already paid it under nelson we would but we didn't need to reteach let's say no let's say that the rest today got paid to the victim before before all of this happened when we first would you be able to claw it back from the person to whom it was paid i think the end there's no well and also i think the answer right now listen with nelson if i'm thinking of the the colorado case right now has colorado passed the child rape case ok so but there was a determination on the merits what happened here no but what happened here as the supreme court said in nelson is what ever the reason in footnote whatever the reason for the invalidation and i mean they didn't have to go that way they're trying to settle the law here they're trying to l arguments that we don't continue to waste you dish all resources on whatever the reason for the invalidation it abates you completely and it's a fundamental problem for you to say that the government concedes that the tax counts restitution should be abated as well did permit the abatement on a guilty plea i'm just asking if that occurred here there was a guilty plea after the verdict to the tax counts by mr brooks and the building and the plea agreement had an appeals way room yes as in the circumstances th restitution associated with the tax cuts conviction is that a bait and why well for the same reason that they agree that the tax convictions themself abate first of all the rule doesn't change because of the history of the case the convict acts convictions abate for the reason one reason is forty pages of our brief attacks the indictment on the tax counts he took a plea and he way i understand then we discovered this one called let me finish my question he took a plea he waived his right to appeal so one of the concerns about that with him with abatement we don't have because he waived the right to appellate review of his plea but the court would be creating a circuit split if it if it goes that way but you don't need to go that way in this case because the difference in this case it's the nature of the thing and what you have been is to look at what happened you have a guilty plea that is linked to a requirement that the sentence be concurrent to another valid sense in other words if there's no sense imposed on the other one there's no sense here and the bit guilty pleas no good but you don't have indictment including the tax counts and that's why forty pages the first two issues were brief is about dismissal of the entire indictment so that the notion that the guilty plea even if the court were trying to create a circuit split with the d c circuit and the fifth circuit including the case that they cited ass of the arguments except the restitution argument that was just discussed my colleague laura mantell will address that so the first argument we heard about was the s one s two issue of three responses to that first the issue wasn't preserved we've argued that it's evident by among other things the fact that eighteen u s c thirty one forty two which is the statute that the appellant just relied on is not cited in any of their briefs or referred to second thing is that the there's no dispute that there are the bond conditions that were  and ten where the same ones in relevant respects that were imposed under the ass one indictment and that the court continued them to as to the appellants have argued that they were somehow not aware that those conditions continued or would not have agreed to them they were clearly aware of they've never asserted surprise before the district court in two thousand and fifteen five years later when they moved to get their money back they never said we didn't know there was a bond we thought it had not argu child whose mother put up a property in which the child had some interest there's nothing improper about that at the time it happened it may be at some level unfair certainly i don't think  was as involved as the rest of the family which which i'll get to but that's not the question here this isn't a punishment to the family that's the point of gambino the bail forfeiture has a number of other operations and that's that's what's going on here  so i'll turn to the other issues i'll just point out that even in the record if the court goes through the docket entries in the four hundred and five hundred there are various letters you know that involve the family and mr brooks that were put in place after the s two indictment  went on so i think there's no possible argument that they didn't know this bond had continued they never objected to being on the bond that argument should go away all right so the second argument was this potentially eroni a finding of fact about the family involvement let me say two things first of all let me very briefly point out the evidence of involvement which i think may be a little bit different than culpability and then let me address what the court actually held because i think the court's just records decisions being a little bit over read by the  record included the fact that that is the jet affidavit other family members met with c s one other than jeffrey brooks the some of the brooks family i'm blanking on the names but this is a three three four their passports were used in establishing the certainly caught children were the beneficiaries of cerny caught there's the safe deposit box issue which we discussed so that two of the appellant's are on video unloading i think its safety deposit box six zero six eight when the next day someone else loads six zero seven zero in the same bank with all of these assets and then there's the discussions about the plane to switzerland let me just say on that point the jet affidavit which palin cited is completely clear that this is a three four five page they cited some of the assets may have come back it is unknown whether some of the transfers occurred none of the transfers involve the transfer of assets from swiss safe deposit boxes and certainly the government never represented that it was certain all of the assets had been returned that's the point of concealing assets so there's certainly strong record evidence of involvement by the family and i think to the extent the appellant's are resting their argument on the idea that the district court somehow based its entire decision which is certainly a considered all the other factors including deterrence and cost but to the extent the family involvement played any role here's what the district court actually said the district court refers a couple times to the movements participating or being involved but what the court actually says when it gets down to the gambino factor that it really considers movements do not offer any explanation for the violation or mitigating circumstances in this case the absence of any explanation of the violations is particularly troubling because moving for involved then a little bit later the documents attached but the usual bond violation forfeiture cases the person takes off or commits a crime while he or she is released on bail and the proffer is you know we  caught him in idaho or here's the police report from the hartford police were he was arrested and another look to the decision so you can proceed by proffer but in situation like this where there was no claim the roads had taken off it was just that the financial parts of the bond were violated was it appropriate to proceed with such an extensive document have the presentation by the government by proffer only yes and i think there are couple reasons but i think the first one is in is a question of burden violation proceeding which was two thousand and ten preceded by proffer with the jet affidavit data that involved david brooks as involvement what's on appeal here is the decision not to return the money in two thousand and fifteen that preceded by briefing at that point you know the government didn't have a burden the burden is on the appellant to show that the money should be returned to them and they actually submitted they submit that affidavits from david brooks and terry brooks in the district court saying we disclaim ownership of these assets but they didn't submit any affidavit saying we know there's smoke there's the series of unfortunate circumstances you know that sort of suggest our involvement they never said they weren't involved they never submitted anything and that's what the district court is getting out of the paragraph i read said judge journey i think that's how this all relates the district court never said i did and the family and the participants from submitting evidence or by presenting some sort of other case that's all these the places you know he has to get prepared we have another week from the come in you want to testify is somewhere else was or anything like that i didn't see anything like that in the record your honor i do not have a total mastery of the record i have seen nothing like that i certainly checked for it i know that jeffrey brooks submit an affidavit in conjunction with the two thousand and fifteen bail forfeiture issue which where we're talking about now and he did not say any of those things he just said i'm not claiming any of this money let me make  n argument so with respect to the bell forfeiture just three quick points first of all this court's decision in a gui you see maybe pronouncing it wrong certainly involves the case of a defendant who died and the bell was still forfeited so i think the law is clear that there's no per say abatement of a bail violation as as distinguished from some other violation that may turn on the conviction and i think the reason for that is pretty intuitive the bail violation is fine you know the assets were concealed the person fled you know whatever had someone tampered with the witness that occurred in this case not only did it occurred of the revocation of bail was appealed to this court this court affirmed it so so  the event occurred it's over that's different possibly than a situation in which a conviction which may have been perfectly valid has to be invalidated because an appeal is not final and the final thing is even if the bell forfeiture is viewed as some sort of penalty which i think the gambino factors sort of suggest it shouldn't be you know the money certainly was already taken there's a strong general deterrence principle particularly with bail arguments that has to be considered here you know every time a defendant that i for who case i'm responsible for is released on bail there's a long discussion about how this whole system is set up so that you know you don't have to put up any money now because you're going to lose your money if the defendant defendant flees and the third thing is as  the violation of the bail the penalty is almost a liquidated damage provision in a contract and in this case it's particularly liquidated damage because there was an agreement that forty eight or forty five million of the four hundred thousand could be taken but not the whole thing if if if mr brooks conceal the assets there was actually a sort of negotiated damage clause in this contract which was a signed contract everyone is aware of it was final and it was violated so for those reasons  if the court has no more questions on that issue i will turn to my colleague to address the restitution  good morning i'm laura mantell i'm an assistant u s attorney in the eastern district of new york and what's at issue on this appeal is the statutory right of thousands of victims to finally receive some compensation for the losses and harm that brooks caused them to suffer over ten years ago as the court's aware even though the defendant was convicted on all counts after a very hard fought trial that lasted eight months and even though the district court ordered him to pay his victims ninety four million dollars restitution and despite the fact that unlike in the vast majority of other criminal cases there's actually another funds restrained to compensate these victims brooks's counsel now asked this court to absolve brooks and his estate of all liability for the harm that he  because the appeal that brooks filed over three years ago happened to have been pending when he died last october let me ask you about are there other ways to address the victim's losses than the criminal restitution in this case and are any of those proceeding know they're there they're the best path for recovery for these victims is that is by upholding this restitution i mean that asking for the best ask you for other paths there is as defend the defense refers to in some of its submissions there are related civil matters however pursuing those would oppose are they good to lay there is first there's a civil forfeiture act and that's pending in the district court however was also pending in that case is a request by the estate as well as the family members to dismiss that action that's currently pending before judge seibert what's also pending is an s e c action in the southern district of florida and again there the estate has moved to abate significant portions of it as he sees claims and that action in that case from what i understand that money in fact was not paid by brooks as he states in his letter but in fact was provided pursuant to a dno policy and was also paid or funded by the company and in fact brooks has objected to that settlement and that's currently held up in other appeal that's pending before this court so despite the fact that we've had ten years of litigation where the government prevailed at every critical stage the victims have not received a penny to date and it's  not clear if or when they ever well it's clear though that there would be no restitution if there were no conviction right i mean if you'd been acquitted we wouldn't be the statute says a convicted defendant shall be required to pay restitution has to be convicted yes so how do you separate the restitution from the conviction that's what the other circuits have done that's what the third fourth and sixth circuits have done the circuits right there's a disagreement that's correct but it's because it's compensatory in nature the remedy of a restitution judgment it's based on a victim's loss not on the defendant's gain it's  assignable it's inheritable it's like any other right of a judgment creditor it's even subject to an offset if the victim gets some form of recovery from a third party and in fact the j s c in this case provides that the restitution army order may be converted into a civil judgment but this notion that because there's no conviction it's as if all the proceedings never took place which is is being taken to its greatest length here by the defense that's not yes comes out the other way what's wrong with that as well the courts in those cases say that it is a bit avenue that the conviction the indictment is dismissed the conviction is vacated but did not address the restitution issue but these cases in which they have held that abatement applies to restitution they've never unwound the entire proceedings so they're not even consistent in the application so for example in this is ok so you had over one hundred thousand dollars paid in forfeiture in special assessments in parsons the decision in fact there was over i believe a million dollars in forfeiture paid by the defendant the court even though be they're saying that all the proceedings are notified but the defendant clearly when he was alive he waived his right to appeal and what the abatement doctrine concerned is the right to have your appeal heard the finality of the conviction he waived that right so there's no reason to abate the restitution that was ordered with regard to the tax or or as to all the fraud offenses for the reasons that i've explained and the third circuit has had the best solution because what if the defendants really seeking here is to vindicate his right to appeal the government is prepared as as was done in the christopher case and the third circuit to have the estate substituted for the defendant so that they appeal can proceed the defendant already briefed his appeal was filed in september after he got many extensions of discussed in that decision nelson has nothing to do with abatement rather it had to do with the supreme court's review of a statute that's called the compensation for exonerated persons and in that case the court held that because defendants had their convictions reversed on appeal they should not be required to file a separate civil action and prove their innocence by clear and convincing evidence in order to recover the monies that they had paid back in one of the cases  and quit it isn't that the case is not the second one the prosecutor decided that they were going to go forward yes and those facts make it so distinguishable from what happened here because david brooks was never exonerated and he certainly was never acquitted of any offen that he was charged with and in the words of the supreme court at the outset of that decision it says that the decision applies to a conviction that's invalidated by a reviewing court here they're asking for abatement without review the government will agree to proceed with the appeal by having the estate substituted so that they can get that review that's really the only interest here that they could be seeking to vindicate whereas the government here is seeking to vindicate the statutory rights of victims to recover their monies this obligation that david brooks was required to pay to his victims it's mandatory they waited more than ten years the equity militate overwhelmingly in favor of the were to be nullified and in the words of the court and christopher it would provide the estate an undeserved windfall if it were to be refunded the fruits of the defendant's wrongdoing and the truly to address some things but nothing has ever been said about andrew or elizabeth brooks other than the fact that copies of their passports were used so the notion that they should have had to come forward to defend their conduct my question is you know the nobody made anybody be a surety here so you sign a contract you know what all the terms are one of the risks of being a surety is that the person that you're is the defendant is going to either flee or in this case hide assets well we have common ground on that but one of the other things is is that people become surety for doing so on the assumption that the defendant is actually charged with a crime and that's not what happened there you come in second on that argument let's say that forget about the indictment for a minute let's say that if your position is that they that that we should feel sorry for them they guaranteed appearance when there was no basis to set bail and had the government actually not innocently or not innocently hidden the fact that there was no valid indictment bale would have as a matter of law been exonerated their obligation would have been exonerated and never ask that what anybody ever asked had cyber to do that while there was a motion for remission subsequent based on this particular no but nobody made that but on the other hand in the indictment this one it was two years later that someone figured out that the term of the grand jury expires the government there's no there's no evidence or even a representation the government knew about that and hid that from the court well that's why i said innocently or not innocently but the fact of the matter is one could say the government should know when the term of the grand jury expires but but nonetheless the issue here is the fact that if there had to give you to answer your question if there had been a rearrangement and the surety has been asked to appear and they had been you know and they agreed to it you'd be one hundred percent correct then the invalidity of the first indictment would mean nothing but that's not what happened here what happened here nobody complained about it well there was nobody even there was it just said bayle convicted and nobody learned about this issue remember the  thousand and ten nobody learned about this indictment issue until two thousand and twelve year what you're saying is that what would have happened is that if because they knew about the second indictment so and nobody said oh wait there's a new indictment i want to kind of revisit this bail business nobody said that right nobody knew that they would have been off the hook in the first instance that they had no obligation and again i think i understand your argument my point is that it's their obligation it's speculative to say what my client would have done as in any surety situation that's a defense all the time because people come in trying to enforce surety arrangements and the other side says well of course they would have continued to do it and that's not what the law says the law says unless there's disclosure sure readership doesn't apply the only other thing i want to point out is and this is both with respect to elizabeth but also has to with respect to all of them whether or not hardship to financial hardship to the surety is a factor is almost irrelevant gambino says that the fact that the surety is a family member is a factor to be considered and particularly the theory being that if there you're talking about people who are not in the professional bail bond business and they should in essence be cut a break for that now if you have somebody who is proof there's one body been involved i don't think there is anything then maybe the family factor has less value but certainly say is that ok well maybe there's only involvement in the form of copies of passports being used but you don't think that's what he said but well i think i think there is some concession that there is not clear evidence of any knowing involvement by terry brooks or the children and i'm going to address specifically the safe deposit box in a second but i do want to make clear that there are three different points in the district court opinions below where she cites substantial that it substantially weighs against setting aside the forfeiture that was one point she said it was movements conceded which we did not and we say to the record our reply brief clearly disputing these allegations that they helped lay the framework of sears and he caught and we're aware of that framework allegations that are conclusions that are not supported by the record this is at the special appendix ninus the district court's opinion your honor brother and john doe one the next week the government comes in with a proffer and says we have also have a video that shows these other two family members involved with that's a deposit box did anybody ever say that's not true that's not us show the video we want to see it we want the court to look at anybody ask ever any time in two thousand and ten i will say that brooks's counsel made repeated requests to cross examine agent wanted to have a hearing a video though did you but he say anything about that that's not me i was just getting out some other money for something totally unrelated your honor frankly at that point in time obviously we i wasn't on that plane time but at that point in time the concern was i was lee mr brooks's remember and we were we weren't at a position where the family was making a motion to set aside the forfeiture and there's nothing in the forfeiture order language that the judge on the record in the multi day hearing that they had in two thousand and ten where the judge makes any reference to the involvement of the family members the very first time that the family member the notion and frankly it was a shock to us at the time the notion that the family members were somehow complicit the very first time that comes out is in and the record is made of that is in the district court's opinion denying the motion to set aside the forfeiture i do want to just make one thing offer included that they were there right five years earlier affidavit the exhibits that are attached which are the photographs from the closed circuit television the jet affidavit the conclusion that the jet affidavit is advancing is that box number six zero five zero was emptied by jeffrey brooks and that the contents of that box were them place and box number six zero seven zero that second box seven zero is where the assets were found in violation of the bail order the boxes associated with terry brooks  mr that terry brooks and victoria brooks box is a different box altogether and there's nothing in the jet affidavit that suggests that those contents were in fact put into box sixty seven zero by john doe number one and and in violation of the bail order and frankly the first time that we're really addressing this issue of because it was not a finding made by the district court below that was not a basis for discounting the gambino factors as was the conclusions about the series and he caught in their involve thank you first of all or the notion that there's an appeal waiver in this case and we couldn't proceed is going that's really going beyond saying well we want to withdraw our concession that the convictions have to be vacated that's really going taking it to a new level when you respond to a motion for abatement saying you know we agree the tax convictions have to be abated and then you come in to the court of appeals and say oh no we should have filed a motion to dismiss the appeal that's really that's beyond and then you add the conversations the conversations that i hear about today that well maybe just not all of the thirty six million dollars came directly from david brooks the thirty six million dollars that is already been given to the victims that his was only given to them by david brooks is actually affirmative action making sure that they got that money that they could get and that also is no reason to say we just don't apply n here and the notion that well what they weren't exonerated here what do you think the exoneration act was the about let me ask let me turn to something we don't have to be exonerated let me ask you something else that you know the government makes a point about the policy here that if if we rule in your favor that the money goes right back to the family and do you see that there is something that seems not quite right about that where because of this one circumstance all of the money that we're talking about where the government has prevailed at every level that it goes right back to the family i'm going to i'm go different case i understand and so the policy question that i i have for you this is not that case there's no statute and there's been no affirmative finding either by a jury or by the prosecutor that they're not going to proceed this is a much different case so my question for you is one of the opinions that we've been thinking about who've been talking about talks about that restitution is a completely it's neither fish nor fowl it's money so what's wrong with that argument why don't we treat it as something that is neither fish nor fowl in this situation have the appeal proceed with just as you are today standing up for the for the estate your honor the i mean the short answer is because we all everybody in this room lives and breathes by the rule of law well i don't have to tell me that i understand that i'm asking you why is the policy that's the policy that trumps i want i want i want people who i think are victims even though the supreme court says no you have to presume when somebody is convictions vacated they're innocent so we have the policy of the rule of law first second policy we have is the policy of the presumption of innocence by which we all are able to walk down the street and that means  i'm not convicted if i walk out of this court if i'm david brooks i walk out of court he can't and i'm not convicted for whatever reason the transcripts were prepared the prosecutor forgot to show up for oral argument for whatever reason nobody can ever put their finger it means they you owe somebody some money because you're criminal they can never do that and that is so fundamental that is trumps every possible policy but if you want to get to the policy there is no reported case not on our side not on their side where there is so much you're talking about restrain money the money's not going anywhere until these cases are decided what is their argument well but those courts are going to abate the penalties is that the argument that you can because courts are going to say yes of course you have to abate penalties in a civil their restitution agree they're not seeking to withdraw their settlement they're happy with the settlement anyway they've put that in their briefs i don't what they told her in the conversation in their briefs in fifteen twenty one thirty two they said we're happy either way no matter what this court doesn't restitution because that way we get our extra thirty six million dollars thanks will be reserve decision on this case thank you for your arguments to the other three cases that we have on our calendar for day to day are under submission so