on it's for the record roberts was more of a half of the government your honour's as you're well aware of the mandatory victims the mandatory victims restitution act requires that a district court make victims whole to the extent possible and we are here today to appeal one part of the judgment of the district court which in our view substantially varied from that goal a result which will the result of which will be that one of the victims in this case it is alliance for better neighborhoods a nonprofit group with certainty will not recover well more than half a million dollars of the amount that mr for the most took from it by fraud what is your response to that you that there's no grammatical way of reading th court in pepper it's the law of this court this court has often said the restitution as part of the criminal sentence most prominently in the end bank decision in united states versus leakey in two thousand sets so the mandate was last of the restitution and said that the court's mistakes and the loss which this court found also required reconsideration of restitution there is no basis i would say your honor which it could be said that the government waived its position when it was said over and over again throughout the briefing in that case what was also said over and over again throughout this case ron is that loss and restitution were inextricably left late this was a case in which the government engaged in quite an extensive with somewhat thing proceeding once we got past the defendant's argument that we had somehow weighed this on appeal it was a no dispute at all regarding restitution regarding the number even of it down to the degree of we're still left here this court with a highly loss and the economic circumstances of the defendant and in this case there is no evidence none supporting the district court's result regarding either and that's why we're here i mean  by having someone else do it or write the checks themself what she did was she wrote the check she carried out his orders what was essential to this this crime never happens if mr fruma doesn't concede it direct it profit from it and she is the person who carries it out and she's rightly prosecutor for that but we never ever have said nor did anybody else in the case a that she was essential or or what the district court found was that she was quote equally culpable no one agreed with that not flu will not our n five years there's no reason for us to come to this court and say let's make it one hundred thirty years which is what we would be doing but does it have any bearing on mr fu most responsibility not the district court abused its discretion in letting him off from not just by a preponderance of the evidence but without dispute and he has been allowed not to repay three quarters of a million dollars that he took from this victim that's unprecedented in this court in my experience i think in anyone else's experience that's what we're here to appeal and the other important point looking at the economic circumstances of the defendants is that if this is done properly as it almost always is if he's ordered to pay the money he personally talk we will we could collect that faster than i could walk out of this court this is someone who has all of this money this is not mr now where we have to wait sixty five years that's why it's an abuse of discretion can you address the waiver should the waiver well i'm not clear where the defense stands on that right now they are i think they are good waiver in their brief and then sort of backed off on that in the in the reply brief as i understand the argument right now the argument is that the government in its first appeal did not argue restitution and they have said in our brief we may have asked for in our prayer for relief but it wasn't our it was in explaining that's wrong for reasons of explain but then the argument goes further than that and i think it's quite remarkable in saying that this court essentially made that decision that the government had not argued the restitution without saying it and that this court subsoil entia decided that it won an address restitution i guess because the government wrote a poor brief and wouldn't say anything about it and w fruma walk off with two million dollars that he took not just from citizens alliance but from the senate and from the independent support museum as well that would be a stunning mandate for this court without explanation to let somebody not repay half of what they took now did we argue in our help absolutely you can look at the government's brief as well as we can page after page we link the last two restitution we explain for over fifty pages whole works correct because he was you already got the remedy as to the amount that's correct and the interesting thing is your honor there's no dispute about the about the only argument they made in the cross appeal is that it should have stayed at so what should the mandate from this court be that you had the right deal with my ideal mandate your honor is that they while there is an abuse of discretion standard what we're dealing with here are two factual judgments regarding the victims whole it's not to let a criminal walk away with two million dollars that he took and when you look at this decision in light of the purpose of the act which this court says you have to look at you can't justify mr goldberg please the court my name is peter goldberger it's my privilege to represent the police across appellant vincent fumo who was the defendant below i would like to ask if the court would permit to reserve a minute for rebuttal on our that the statute offers the judge whenever there are multiple defendants who may be partially responsible for the same loss to have a even greater and more complicated set of discretionary decisions to make at a sentencing than the judge already has as long as the judge orders one hundred percent restitution which he did the judge then has discretion to apportion the that restitution i don't know that and the point is that's her judgment and the government didn't appeal it and she didn't appeal it and this is the key thing judge buckwalter had before him a complex sentencing decision on two defendants what the government seeks to do here is to overturn the judge's decision on her sentence well the judge will let you eat let me ask you this question that i believe earlier in our discourse you agreed that with regard to the government's point on contribution to laws that you would concede that mr from zero contributed to the loss of these of the is criminal participation or if he's clearly more libel or criminally libel or responsible or whatever term you want to use right the criminal activity involved how could you not concede that because it doesn't have to be measured in dollars this is part of the discretion it can be measured in in the essential action and responsibility of the codefendant so each player uses a role you disagree with mr as ours characterization with regard to who is the the question is whether her responsibility is sufficiently large and important that the judge could weigh that culpability that she had and her ability to pay and which the pre shows that she has if the government would be more focused on her and not on him on collection and i factored in there yes and factor that in two of the thirty five fifty three a factors of which a seven is rare is the need for restitution built into all the others to determine a sentence which would be properly balanced for her and what the government proposes to do is to undo her sentence by doing this and let me explain why because as we heard mr zazi very admit if mr food is made one hundred percent or jointly and severally liable they will collect one hundred percent from him as soon as they can i don't know if it would be within the next minute but it would certainly be within the next month they will collect one hundred percent for him and she will have zero to pay but the judge buckwalter in deciding how much imprisonment to give her how a supervised release to give her how much four and then in which the court held and i'm not making this part which the court held that the allocation of restitution between code events need not reflect the relative culpability if the judge exercises discretion in the sentencing picture and by it have to revise it doesn't have to reflect what has my part he did he certainly was not aware that he sat through a five month trial he knew very well what how central ruth it's clear that whether you think about it you know holistically as you know what was this crime all about who was involved or whether you think about it you know statistically ninety six percent you know ninety four percent whatever number the phone around that that's clearly not reflective of fifty fifty i mean if you don't really when you when you you know you mentioned thirty five fifty three you know i i was focused on a six back in the day you had and you  know in thinking about a six and a seven i'd say well i want to i want to think about the victim and i also want to think about are these defendants really similarly situated that they're not then how do i address that issue and and here like i get your argument fifty fifty is the absolute best that your your client can get the question is you know is that really reflective of you know a fair assessment of what went on and the two critical factors that were to take into account the economic you know ability to to pay the restitution and the relative culpability or contribution to the criminal enterprise in the big picture it was judged buckwalter delivered detailed thorough sentencing speech at the second opinions from forty six pages of transcript and this is a small part of it but in the key part an essential part for the our now sentence that he imposed he did not want her to be free of the obligation to pay and for the payment to be directed you still this i understood you lived in an interesting point because in effect what you're saying too is that she's really if you do this she's getting off easier than he intended yes in the senate but couldn't you have done it would you know many a lesser division you know seventy five twenty five or something because when you pick it up and you just go we expect to see fifty fifty right but as a court seven hundred in a complicated case it calls for an the point of the massive stance of collection powers and it's a twenty year clean of judgment even after supervised release ends that the government can collect can the government the probation before of course a thousand a month can they also understand it is about the mandate we're not you're not asked to read the briefs from the prior appeal and decide whether you would have deemed that issue waived by them the issue is are we going to assume the judge finds his opinion in the prior decision did not say what it meant and if it was unclear if it didn't seem to say what the government wanted it to say that it was for them to file a motion then put that panel at that time to clarify that mandate for rehearing whatever they need to do but once that the government didn't put it before the court in which in the way in which any litigant on appeal is obligated to do state that it's an issue and argue why they are right they are sure there was fifty pages of briefing about the measurement of the loss but the court as reflected in a footnote in its brief is not the way you use does not entitle you to have an issue decided on appeal how do we accept your reading of the mandate when we found reversible the government asserted in these one sense footnotes that they thought the restitution should falso and in response in our brief we said that doesn't put restitution before this court it's not an issue for decision and then when the decision came raised by mr fumo in his cross appeal that said prejudgment interest should not be imposed on restitution this court disagreed with that it rejected that argument and at the end of that one section said we therefore firm the judgment of restitution and the order of pre opinion but the fundamental rule that this court the supreme court has said over and over is really why is it you look at the letter and the spirit of the mandate now how can it be the spirit of this court's mandate to say that the dish report aired in imposing two point three million dollars of loss the real loss is four point two million and our mandate is mr from ok you get to keep that extra one point nine million dollars that you saw how can that be a reasonable perpetration of the mandate and if it is if that is the law the case the supreme court the that's our position on that i'm running out of time and i do want if i may to just address a couple of the other issues the the hunter doctrine it was a valid option at one point it's not relevant here it was under the victim witness protection act as as i no and the victim witness protection act did not have a correlate provision telling the court how to apportion among joint wrongdoers this notion now that we look at the economic circumstances he's defended recent to the last wasn't there and that's why the hundred doctrine was essentially the district court uses its discretion and does the best it can but the us congress has something to say which is mandatory restitution putting the interest of the victims first and doing it in part through this through this order as far as the and not just who got the money that's over well there's no evidentiary basis for saying that there's fifty fifty culpability here he mr glover talks about with the government's vast collection powers you simply cannot get blood out of a rock i have rubber has not addressed the facts of the pre sentence report which showed very clearly that this our nails personal worth is less than one hundred thousand dollars back in two thousand and nine before she went to jail before she lost her job before she took a new job paying three thousand dollars a month where there is money with the joint assets that she had with her husband that would go to their houses and the government can't reach that your honour's well no we can't reach join there's death or divorce so once again we're telling citizens alliance wait around for a couple decades and we'll see what we can do for this notion that we have collection powers and therefore we can get something out of nothing is wrong there is no eviden now there's imprisonment and with respect to money there's a fine but what we're talking about here is restitution and what we're talking about here is making the victim people with given the fact that that's true there are ways but in this  sentence of the other defendant the important point is that you have to look at the interest of the victim it can if you're going to say that we're going to put an uncollectable judgment on a defendant because it punishes her because it's part of her punishment let the person who took another eight hundred thousand dollars walk away with it and not give the victim back i would submit that's american law that's not just an abuse of discretion that is violating the mandate of the mandatory victim's restitution thank you very much  let me just say on and and strictly living myself to the to the cross to which is the scope of the mandate question that even in the pepper case in the supreme court last year where the court talked about the importance of discretion on a in reopening a sentence even that which the government quotes in their brief they leave out as we pointed pointed out and i will end with this that they attach to that subject to the mandate rule and the law of the case with you this court has often often refused a palance the benefit of perfectly valid legal arguments that of errors that they that they mention because they did not make it an issue in their appeal in the way that this court has required for decades a line in an opinion in in a brief a footnote in a brief does not put an issue before the court for decision and when the appellant does that especially  reflects that this matter was decided by the prior panel should not be reconsidered now restitution the principle amount of restitution was not remanded by the prior session and if the government wanted that mandate revised was in the prior appeal that they should have done it we just remind you there was one point that we made in our piece of the government has conceded that every man is required so i don't know what the court might be inclined to do but at least some a remained at least for to reopen the error in the calculation is required