no your honor that's not correct the issue of the summary charts is that it's not merely a summation of the evidence but it is a hyped up version of the prosecutor's closing arguments that exclude certain evidence it doesn't include evidence and principally the inspector the postal inspector mr trachtenberg did his own handwriting analysis of the credit card statements to determine that those credit cards were whereas that's a separate issue from the from the chart no your honor that that stuff is included in the chart and that's why it's principally unfair because the mr trachtenberg actually put his own independent analysis of what he thought was correct into the not necessarily all the evidence in the case and you're right there's also insufficient evidence of anything in the betting and therefore there should have been no jury instructions on getting in the betting and there was an area do that to allow it in x it didn't instruction respond to her own theory of defense because wasn't she arguing that everything was done by her dead brother can and sister testified that her client had accompanied can't the post office occasionally and so wasn't the aiding and abetting really responsive to your own theory yes rather was but the problem was if you accepted the fact that she was just there there was no independent evidence showing something other than just mere presence the problem is all we have an instruction saying that because she was there that big that the jury could convict her on aiding and abetting there was nothing what is it about the aiding and abetting instruction that you're objecting to is the formulation of it or is it the fact that it was given at all which is the fact that it was given at all because the problem is if you accept the if you stepped the statement of as we put it forward there is insufficient evidence as a matter of law to find the shit about her brother if she was merely there at the post office and her brother was buying the postal money order before that's just my presence your honor and this court and the supreme court have indicated that you need something more than just being present at the scene when the crime for instance in the andersen case there was more evidence here it seems to me there was evidence of her being the family banker and all kinds of other evidence that would  a reasonable inference i think that your honor that would just be a piling in inferences upon inferences it doesn't get you to that situation where you find collusion or aiding and abetting there's nothing that she affirmed we took a step to help the the alleged coconspirator from committing the crime she was just there and just because her name is on the bank account and she benefited that's not material your honor you object to the instruction i believe there was an objection your honor yes there was a yes or no yes your honor there was an objection yes and with regard to the exclusion of the principle theory of the defense which was the loan they quote eroni asli excluded the testimony of one of the defense witnesses  structuring eroni use the stated that if there was just one purchase of a money order that would be sufficient first the train which doesn't make sense you can just purchased one money order to make it a crime of structuring structuring bazza transaction instruction you know there was a general objection me to any type of jury instruction and the court formulated its own instructions after the question formulate its own instructions there was no there i don't believe there was an objection or moreover with regard to the forfeiture order i know this court issued its own order and it wanted to know specifically whether the statute twenty four sixty one allowed for authority to issue the money judgment order i believe there's a difference of opinion between the government and i as to what the meaning of the court's request was but just addressing what the government said twenty four sixty one cannot be a basis of the authority for the money judgment order because one sixty five twenty four sixty one says pursuant to the federal rules of criminal procedure under thirty two point two of the federal rules of criminal procedure it says that the court needs to determine what type of property under the statute so if we're looking to twenty four sixty one which points to thirty two point two which points back to the pickable statute then that's just circular to assume that that twenty first sixty one is the authority that allows the court to enter money judgment crap any questions with regard to the constructive amendment i we advance two theories as to ride the indictment was improperly amended at trial the first was that by allowing the jury to include a different subset that's not charge an indictment into the jury instruction is also a constructive amendment so here we have the classic type of constructive amendment where the indictment is narrow and specific he points to a specific type of financial institution and then the jury instructions braddon it and it's an unerring but a broadening tell our conviction on a charge that was not included in the indictment good afternoon your honor sconce weyler woodhead on behalf of the united states i'm going to address the issues related to defendant's guilt and i'm going to reserve five times for my colleague mr ralph to address the future issues with respect to the const constructive amendment argument this is not a case where anyone was convicted of and charged conduct this is not the cement steel of story out defendant was charged with structuring financial record compelled the conclusion that there was no constructive amendment here because the language the famine is now complaining about was effect of late the instructions was effectively surplusage and those two features  only evidence in the record is that the united states postal service was the issuer of the poster money orders sold at the wilshire business center and that's deborah hit surats testimony at pages five twenty eight to thirty of the excerpts of record she was shown a postal money order and asked who issued it and she said the u s p s and that was in fact a money order from the w business and second defendants purchase of the money orders at the world business center were financial transactions with the u s p s it's not the issue where the purchase took place it's who was the financial transaction with that's the critical question here and when she purchased most postal money orders at the washer business center she was purchas identical financial instrument instruments as she purchased it the other three locations they were issued and backed by the postal service payment was guaranteed by the postal service credit card charges were one  on a postal service credit card machine and the cash she paid for the postal money order has had to be taken along with all the paperwork to the postal service at the end of every day the will ship is the center didn't even get to keep the cash that she used in these transactions over night and the testimony from both as a result there was no complex of facts presented at trial that was different distinctly different from the rest and the charging instrument and the crime charge was not substantially altered at trial so that it was impossible to know whether the grand jury would have indicted for the crime actually proved let me address the other arguments defendant where is for a moment with respect to the somewhat chart it was a genuine true one thousand six summary of data contained in business records the defendant admitted were admissible and were in fact admitted in evidence there was no expert opinion it wasn't packaging an expert view when she complains that there were things that were not there what she's saying is she would have liked to see a child they had additional columns that said thank her pants no no no no not no other so basically other sources of information if she had wanted to show that to the jury that the government didn't have things or prints that the government didn't have video she could have added those columns to that same chart herself she did not identify a single and accurate data point within that chart  which were in evidence and could determine for itself whether those were that was her signature or not he never purported to provide testimony as an expert on that point any other subject but he did  compiled information that was in the room in a stock humans and if you look at that exhibit fifty three in the record you'll see that that's just what it is with respect to the exclusion of hearsay from defendants dead brother first that subject a plane air review because the only argument defendant made in the district court was that it was not hearsay it was not hearsay defendant never argued that and it was of she and she had she put the irony in and she was able to testify that around the time of the chap from pacific western mythology i decided to put the check from pacific western mythology to ken he had discussed with  get a loan but there were no i think so the book was excluded was actually very very limited what was excluded was just can statement that he was under pressure from mobile and did he and he needed some money and he should should he talk to somebody about it so that around they showed wasn't even a loan from cindy anyway and none of this evidence actually will work if i explained why ken rather than defendant would have had any interest in structuring the purchase of the poster money writers defendant was the one who actually benefited from the structuring of the money orders because she was the one who was then able to deposit on three separate occasions more than ten thousand dollars into a bank account without having to file a c t you are so the limitation was not there is no exclusion of a defense here there was a limit here say limitation on very very narrow grounds that still allowed defendant is doing in this case is conflating two things conflating the very larry standard for giving an instruction with a claim that the evidence was not sufficient to sustain a conviction for aiding and and that's subject to the general rule that when a jury returns a guilty verdict on entitlement charging several acts in the conjunctive the verdict stands if the evidence is sufficient with respect to any one of the acts alleged and in this case the evidence was more than structuring because as i said she was the one who ultimately benefited from the fact that these transactions were structured because that is enabled her to gauge and further transactions without having to file c t yards unless the court has any questions on the other matters i'm going to allow mr rock to use the remainder of our time that'll be fine thank you unique opportunity to clarify an issue of criminal forfeiture law that has as one district court judge put it a few years ago has seem to have been assumed but never quite decided and that is whether there is not just whether there is specific statutory authority for criminal money judgments personal money judgments under thirty two point to the federal rules of criminal procedure but whether twenty four sixty one twenty eight u s c twenty four sixty one c specifically provides that authority  the answer is yes and i guess the next question is why as is so often the case with why there's a short there's probably not a short answer there is a shortish answer and a longer answer the i'll start with a shortish one because it the answer that question is essentially resolved by this court in the case of united states versus newman which i know two of the members of the panel who actually had involvement in that case at the district court and appellate level the the of right to the threshold of answering this specific question about statutory authority for the entry of personal money judgments without actually deciding it or at least not explicitly deciding it could come first that rule thirty two point two makes clear that worry forfeiture statute authorizes the forfeiture of money as the statute here does which is thirty one u s c fifty three seven hundred c the government may seek a money judgment as a form of criminal forfeiture the court then cited to section twenty four twenty four sixty one sees explicit incorporation of the federal rules of criminal procedure which would obviously include rule thirty two point two finally the court concluded the newman court concluded that when the this is a quote when the government seeks a money judgment were thirty two does not permit the court to do anything other than determine the amount of money that the defendant will be ordered to pay which is specified by statute that reference at the end which is specified by statute is not a reference back to twenty four sixty one it's a reference to the underlying subsidy for future provision which here is fifty three seventeen that statute says that all money involved in a structuring violation of which the defendant has been convicted is subject to forfeiture to the united states so that's that that sentence the color of red thirty two point two is to deter for the court to determine how much money in this case because it's a structuring case was involved in the underlying offense and that's what the district court did here so that's how it came up with the amount of the money judgment the short answer what i'll call the norman answer is it resolves the issue here thirty one us c fifty three seventeen describes the scope of the first which are for structuring offenses that is property involved in the underlying offense section twenty four sixty one see through its incorporation of rule thirty two point two and the procedures of twenty one u s c section eight  three provide the statutory authority for the entry of a personal judgment a personal money judgment now you can know that there was a longer answer that our try to address as briefly as i can and that is that the under the statute that allows for for a future the statute that governs forfeiture is procedurally is twenty one u s c section if fifty three and as a fifty three seventeen the provisions of that statute or incorporated into i think probably dozens of different forfeiture statutes throughout the u s code there are two basic ideas in twenty one u s c eight fifty three the first is that property that is dependent on the call of the statute that either represents proceeds of a crime or is property involved in a crime is subject to forfeiture to the united states now that it says the property that is the proceeds of the crime or was involved in the crime but then you've got section eight fifty three p which is also incorporated into fifty three seventeen and what that stands for is the proposition that if the property that was subject to for future the actual dollars for example are subject to for future and they're not available the government is still untitled to firth it property and there's showrooms under fifty three p that have to be made the point is well section fifty three does not explicitly mention my personal money judgment and n does twenty four sixty one twenty four sixty one by incorporating roe thirty two point two through the incorporation of the federal rules brings that within the scope of the statute and that serves the purposes that are clearly expressed in eight fifty three that is that the government should be able to forfeit the value of property where everyone agrees that that property is no longer available and that's exactly what happened here this is particularly true in a structuring case because for the most part in structuring cases the money is not available the actual dollars involved are not available so so that's that's the answer to the question and then so beyond that i think one of the things one of the points i wanted to make about the reply briefly was there's an argument in reply they go into some detail about how the rule here is limited to proceeds the problem with that argument is they focused their argument on statutes in other cases that aren't a political here they so when there is any kind of ambiguity as i think the the government has conceded in this case because it said that it does not explicitly state that the money judgment is allowed then it has to be construed against the judgment against the government and this would be the perfect case as mr welk indicated to clarify that issue and we also agree with mr welk that fifty three seventeen is the governing statute for forfeiture but if you take a look at that statute it doesn't allow for personal money judgments and it's interesting to know that in a related statute where someone brings in money and doesn't declare it at the airport that statute forfeiture provision actually allows for personal money judgments so the issue here is that the government opin a money judgment not a substituted assets judge forfeiture but a money judgment against the defendant and although mr welk now claims that they're going under section eight fifty three p the substituted assets provision in their opposition brief they actually abandon that issue and they said that they're only seeking a money judge or a firm and on the money judgment basis just to step back a bit the forfeiture statutes allow for three types of forfeitures the actual property involved in the crime substituted assets or in this case what the court did is it didn't pose a money judgment not substitute assets but money judgment and it is our contention that fifty three seventeen and if you look at the statute it says nothing i doubt allowing for a personal judgment against the defendant in cases of forfeiture and it's telling that in another related statute there isn't actually explicit there's an exclusive provision that allows for personal money judgments and if this  creates the perp the procedures of eighty three fifty eight fifty three fifty three has two components it has the actual forfeiture statute for drug related offenses where it says that all proceeds of criminal activity needs to be forfeited and it has a substituted assets provision which is not here and in this in section fifty three seventeen so fifty three fifty three seventeen  isn't just i understand your reading of the statute then take this case of if i understand your claim in your client was not guilty but assuming someone else who was clearly guilty has structured these transactions and is rocking out the post office with a bag full of the money orders and they're resting right there i take it you're saying in that situation the government could forfeit the bag of the money orders right yes your honor but if they take that bag of money orders and they give it to someone else we know exactly how much money it is and that person speeds away never we never see that bag of money or is again the government just out of luck in that case well your honor the reason why this these type of criminal these types of crimes to dollar for personal money judgments or or or any type of forfeiture of substitute assets is because there's no requirement that there's underlying criminal activity so someone who's structuring money orders for innocuous reasons or some kind of business purpose would be caught up in this crime the reason why they have to put that type of personal money judgment that we see in other statutes is because it's not there's no conclusive evidence that  the statutory it's what the congress intended to be forfeited and the reason why they did this is i think it's you can you can understand it based on the in the related statutes which have certain exceptions for in cases of money laundering where the person doesn't retain all the proceeds of the day of the actual money that was laundered there's an exception that you don't have to forfeit all the money and we noted that in the moving papers and what i want to impress upon this court is that we're talking about portraiture that's taking way probably property from someone and the supreme court in this court has made very clear that the statutory provisions have to be explicit and i do think that we have a concession on the record that it's not explicit