first to agree that it's very unusual to have a criminal appellant attend oral argument but having served a sentence mr oberholzer is glad to be here he's taken an active interest in this because he's the one who has the seven hundred sixteen thousand dollars and fifty five cent personal money judgment entered against him which is the primary focus of our appeal in fact exclusive focus of our appeal mr oberholzer and i have a little disagreement being in my eyes the difference between a lay person and a lawyer that all get to in a second i did want to reserve four minutes of possible and i will be watching my time thank you your honor i think that or your honour's probably the best way to consider our issues is to look at it in a temporal fashion and by that i mean the statutory authority for the government to seek a forfeiture of proceeds is at the time of sentencing that's all you have mr oberholzer has to live with this personal money judgment what's according to case law isn't forcible as any other judgment for a period of time which we submit in our present or washington law would be ten years subject to review over a second ten years prior to the expiration of the initial ten year period maybe you could help me on this i'm having trouble understanding how you can break that down into what i think are two different issues one is case cases obviously the rule of the circuit and there's case law from other circuits this is the same thing about the ability to interpersonal money judgment i suppose that there were three things that any appellate lawyer would be able to do given the rule of the circuit and you can see two of them are less bad one there are all that one is to give up and just say well case is decided this case pack your bags don't take an appeal there's no way you're going to win because of casey the second thing to do is to write a brief and argue the point ignoring casey that won't fly it would take the this panel and this law clerks about what two minutes to find casey to find that casey has not been overturned so we took the third course which is here we are we know that you as a panel are bound by cases judge gould taught me that he did i suggested that judge pools panel revisit an issue and that's how i learned about the law of the circuit so all we can do is implore this panel to carefully consider the arguments that w that and i want to spend my time talking about why casey is wrong mr oberholzer wants me to spend my time talking about why we should have a factual  justice could be done and i want to answer yours the second part of your inquiry your honor and that is the plea agreement the plea the government in its responsive so far as the indictment the judgment and sentence and everything through the just record level incorrectly referring to what statute we're talking about  stated that a conspiracy is a continuing offense which is charged and punished as one crime from beginning to end didn't your client get a break when the district court limited the proceeds of k'nex sounds counterfeit sales to revenue generated during only five of the ten years than in the conspiracy and so you could go for rain man and then you could get all ten yoder mr oberholzer and i discussed that very concern just yesterday afternoon and the answer is i don't think you got a break first of all i don't think that's what judge jones did what judge jones did as he said well this conspiracy started in two thousand and three and went on for ten years and i'm comfortable with relying upon the length of time that the conspiracy existed and continued as the basis in part for my decision so when we're talking about the difference between seven hundred sixteen thousand dollars and what whatever more could the government prove we submitted nothing resubmit that had just been done procedurally correctly according to process first of all casey should not permit the court to do this and that's the voice decision where early on early on when you trace all these cases back that ninth circuit panel sa we as judges should not be rewriting statutes to enable a result just because we think it's better policy and that's what's happened here so yes your honor you right and then since that in a fuku case says it could span conspiracies than ten years i don't know what would happen but you know i hope and but it could you know i have seen situations where it point is there's only so much blood to give ok the point of the conspiracy reasons the ex post facto argument in addition to the due process argument because it wasn't until late on and whether the government's correct  that are taking the position it was two thousand and eight that the government could start doing this or two thousand and six that's still way way almost halfway through the conspiracy that's i want if we're going to have a reman and it's going to be with directions to do it right i hope we would ask that at the bottom and to do it right we would have to deal with our concerns the rose from this rush to judgment the denial of the continuance the expedited procedures that are set forth in the drug forfeiture provisions for how we have a hearing immediately preceding imprisonment being meted out by the court because of the forfeiture determination has to be made before since all this happens on the same day you look at the supplemental excerpts of records at pages twenty and market because i was so pleased that the government filed a supplemental lectures of record pages twenty eight and forty three and you get a feel for what we were up against i wasn't counsel to time what mr oberholzer and his attorney at the deny and you look at those two pages in the supplemental lectures of records and you're seen mr barbosa on behalf of the government is saying well you know you don't really have to worry about this because the amount of restitution that we're seeking one point two million dollars is go the same as the dollar amount of the forfeiture so you'll need a continuance and then that changed by five hundred thousand dollars before the hearing even starts and you modify restitution that was ordered was fourteen thousand dollars in response to your question about aren't he threw in the kitchen towel he didn't say we're looking at these quick book records for this two year period of time and that's also part of the reason for the continuance if you mean th i've never been known to throw in the telegraph that i don't want to throw in the sink i want to focus on what's important here and what's important here is that going into this hearing we kind of do what we expect but coming out of the hearing the record is judge jones says this was a ten year conspiracy this was going on forever i'm considering the entire record i'm looking at the pre sentence report i'm considering everything that's ever been filed there's no indication factually as to what money judgments are permitted in forfeiture cases correctly decided and it was not plain error for the district court to apply the laws that existed here and in every circuit at the time of imposition of sentence and you realize that he did not address the other issues right i'll just note that the court did not need a compelling reason to deny the motions under garrett the record makes clear what from your perspective what amount of time was the allowed to be prepared for that one did the appellant get information that was necessary for that hearing and what amount of time mr overholser actually had all of the original records in his possession the entire time they  were the government only imaged his computer and his records when they served a search warrant so what was that issue in these motions to continue was a copy of eleven months of that data that  and twelve so it was a copy of information that he already had and he was on release with the i believe so i'm not positive about that but i believe that was a search that was a situation defense counsel argued that it should be beyond a reasonable doubt and light of apprentice and i said it was already rejected that argument at argument the government's ever pronounce a doubt defense counsel said well we'll agree to preponderance of a doubt but we're going to reserve this issue for appeal and they are in the court said well to take care of any issues i was going to play beyond a reasonable doubt copy of the presents report that i have is a little tiny digital device that i would have to enable in order to get it before you came the presents report no because i didn't expect it to be at issue and the reason is because whatever was represented by the in the present report my recollection is and i was not representing mr obuchi at the time was objected to and that was the purpose of the hearing was to have a determination and  government itself was uncertain when you look at those two pages a supplemental excerpt of records at one point they're saying one point two million dollars within two weeks they reduce it by five hundred thousand dollars and then w of the hearing itself they say it is going to be six hundred ninety nine thousand dollars the precedence report would have put in at the little page that you're talking about and it says seven hundred twenty one thousand two hundred eighty one maybe attachment eighty is that what you're looking at that would be exhibit that was relied upon and introduced by the government's witness at the time  trial that was exhibit eighty eight mr wilders trial it was also government sentencing memorandum yes and that's what the defense expert mr keller spent the fourth of july weekend almost losing his wife trying to address and take into account the points that mr keller made were not embraced by the court it's almost like judge jones either picked the government's expert mr larson based upon that exhibit an accepted their number and then justified it by saying everything else in the record including the pre sentence report discounting entirely the defense expert because the defen expert did not have time given the lack of the continuance to prepare as fully as possible finding out exactly who not only what the government was asking for dollar wise but why what was the basis for that and how do we deal with it what judge jones says is i'm going to go with the government mr larson's exhibit and make that the dollar amount because he was able to review the e mails he talked to the witnesses he had the advantage of the investigation well the defense could have done a lot of those same things had they been given the time to prepare and time to prepare as is nothing in a vacuum because not only do you need time to prepare but you have to know not the dollar