history is that the people who left the or room didn't when we were doing the contraception issue didn't realize that this case the next case exactly the type of conduct that congress ought to prevent discouraged by an acting kaffir which provided remedies the citizens like languorously would have to litigate for over two half years forced the government to go to court and what congress said is we are concerned about the abuses of the forfeiture laws so what we're going to do is we're going to give citizens like the language the ability to make a seize that's a claim of the government when they seek to keep property without going to court and non judicial forfeiture and the government then has to go to court within ninety actually right to know the treasury because as we stated in our briefs it was the department of treasury that was involved in making the decision contrary to the recommendation of the three agencies with experience of forfeiture law that they should go to court as required the treasury department government says why should we do that it's our our coins they never more money only issued it belongs to us why should we go to court to have them have to comply with kaffir we don't have to ask a judge or court to say we're right we can just keep the property and that's what's always wrong operating says that doesn't doesn't matter because again there's no basis in the law and half or otherwise for self help the law the scourge as it is allows the stronger violated the statute they would just do it they would just keep it and what congress was concerned about is how do we stop this vast power and it's a case like this where the government really wants a puppy really thinks the position is strong which is said we're going to deny a claim in our day in court fortunately for the property we do i'm assuming the government is going to urge that judge davis got it right that there really is a notice provision in the statute and since there's no notice you know required to be given or notice given here then you know it doesn't it doesn't apply well greg where do we go without our good question judge from what i can tell you is that the statute doesn't say anything about what the notice has to be only that it is notice again district selous as there's no requirement as notice that the government tends to keep the property and is not going through the forfeiture but that was done but this statute the way the statute is structured i'm surprised your argument here i'm giving you softballs here i'm surprised you doesn't that set in motion the ninety day required make that argument as well in our papers your honor and that is our position and it's clear that that's what was intended by congress by also the language of the statute because what ninety three says is that if you can make a filing of  either after notice or after the seizure of the assets eighteen u s c ninety three easy in fact provides that if you are someone who has a claim and your claim that the government forfeited property non judicial you object to that after the fact you have to prove two things one that not make any actual findings and could on the factual findings as he agreed with the law that says once the jury found the facts it is simply apply the jury's finding their collateral sop of principle so the judge did not make any of his own factual findings for the  therefore were barred from seeking forfeiture of the property the government strategically as the judge found decided not to file declaratory judgment action either when they wanted to keep the property or when they were mandated to in response to our complaint but we're a fair bit is the burden different too late summary judgment would have been granted and in fact the government did relate didn't wait until after the summary judgment was granted in favor of the lang words on the fourth and fifth amendment claims and under cure and then and the cured case under the you look to is that the lay undue and here we have four years in the time the seizure over two and a half years from the time the languorous filed the complaint we have the judge's factual finding so you say that's the prejudice the four year delay the delay in the requirement of the language t just i understand that after spending nearly twenty years on this case i appreciate that as well but let me just say about that the interviews that we're talking about happened ten years after the fact the issues that were being investigated with exactly sure the decisions to make that quote from the secret service documents they said the investigation into the ten double eagles the not quote conclusively established when how or by whom the coins found in circulation were taken from the philadelphia men although the evidence pointed very strongly towards george mccann and what we said is when the government was able to present testimony at great length about minimum police and said they saw george mccann going through the points with his hands and he was a magician are presenting people who are being investigated for whether they had a role to not only deny the language of their fourth and fifth amendment rights but their seventh amendment jury rights the declaratory judgment claim was because they knew the difficulty they would have proving this case and the only way they were able to do it is by telling this dramatic story through the secret service reports that is under owen's illinois is what is this case a kinship and it's the government seeking to recover their property a classic replevin action and if they had done what they were supposed to do and found the clerks were just been when they wanted to keep the coins it would have gone before a jury if they had filed it as a counter claim it would have gone to the jury and now they are simply coming up with an argument that well technically which we are technically we have the point that we violated the language of official rights so we're not going to have a pattern of it as a replacement and we're going to come up with something new we're going to come up with were judgement which again the government only gets to after having evaded the case after filing language constitutional rights taking the coins without following the law that is the only reason they say replevin doesn't apply  statements got it right that there was a miscommunication that there was a mistake whereas here you have the additional reason that people who worked at the mint were certainly incentivized to say either they were negligent is a good fire where they didn't do something intentionally wrong and we have plenty of evidence of i'm glad you as a judge because if in fact i said that if in fact this case was about those records that present a problem for the government because the records themselves the only records that were required to be kept and were kept in the teeth it was written fashion were not required to keep track of the data points only the denomination and wheat and we agree that points of a different date clearly could have got out and did go out there were these separate and written out and nobody knows why they were that there are no requirements there are no procedures that the government relies on th we have that's double hearsay that's being presented then we have someone who says the mistress with partner claim that he didn't know mr mccann but another separate individual hold somebody else that they saw mistress which are her speaking to me can then you have the minute doc in the rule they certainly had some evidence to rely on and we would have arguments around that but what they can't do is present the seamless dramatic tale you're nothing more than the secret service of course and they did it you said this could be a movie or a book they did it through mr tripp whose expertise was he government tries to say well in our summation we only reviewed it relied on a few of them and then simply said believe the secret service will be spend days having search it literally read into the record not once but twice because after he read in all these juicy tidbits of second argument is not that it violated the gold act but that they were illegal that they were stolen and what it allowed the government to do this is a four three analysis or knows what it allowed them to do is through mr tripp and directly they said that mr stewart was unpatriotic because they were able to present i was being right instead of the truth but the judge also violated seven of three in which the presumption for seven o three is only meant to support an expert's finding if the pro devalue substantially outweighs the prejudice and of the exodus opinion is they could stay in summation just as they did with the secret service report what is it more likely that the secret service got it right and judge barnard in one thousand forty seven got it right or that mr swift got it innocently so the part about the barnard case  not keep them informed not one of our concerns that we've expressed the government is of a should be maintained it's our hope that language will get their property back but not me yes some appraisal of the market value so if they're not there if you were in the ca because as judge davis held in his very clear and careful opinions kasra applies to a non judicial forfeiture under a civil forfeiture statute this was not a forfeiture the government said very clearly the mint say you know that laptop computer is my initiator forfeiture proceed but that's well essentially what they're saying here let me try to break this down because this is very important the property because of the constitution in the article for says important point i'm trying to make is that is that the government does not abandon property of the united states and so in a situation like this a way you have property that was stolen abandoned well here's the there's a point your honor it cannot be lost property say that a postal worker is driving a truck and forgets what street he parked in the it's misplaced property he can use this example for anything and some citizen sees the truck no one's coming to get it and starts using the government then locate but that there was a fourth or fifth amendment violation which we haven't appeal and gave them the remedy they asked for which was compelling us to follow forfeiture claim to the effect of it was it shifted the burden of proof so instead of the claim of having the burden we had the burden  again the government does not always have to file a forfeiture claim when it has other remedies but it has to file it if there is a c s asset claim on it let me address that point that's not what the notably the government under the statute can get extensions of time to give that notice because very often we're not talking about coins from one nine hundred thirty three very often we're talking about criminal proceedings have just come into the possession bigger than this you are posing a situation where the government and hold someone who claims an interest in property hostage i know you're saying that the notice by the government is the first step without which the government has sixty days the agency itself can extend that by thirty days after that you have to go to court and you can get multiple extensions up to sixty days each to extend notice we do this all the time which  that in a second the point i'm making is that the statute is very carefully constructed so that the government has the time it needs according to a judge to do the investigation and provide been noticed and then the c's have to claim a suitcase that has one hundred thousand dollars in cash and we have no idea where that's from it certainly doesn't look like it passes the smell test but we need to figure out what this is the literal snow with government seizes that money it has sixty days to provide notice if it's going to make a claim it can extend it by thirty it can go to court to get more time these things happen all the time and what's been proposed by the claimants here would completely defeat that if they could if that person who had the suitcase with the cash can come and that's this is our property we've read steinmetz we've read barnard this has always been our property and this is not a front for traumatic that's right them it acted as it did now so that's the answer to the first part of your question no as to whether under the careful statute if there's not the second part of this that is so important is that ok whether or not we needed to use half or can we do anything else and here the claimant are also making a startling proposition that would have huge ramifications which is that in a matter that procedure happens to apply to because the criminal proceeds as opposed to the lost property that i've talked about or other international where there happens to that itself is a startling proposition because what it does is it puts the government as property owner in a worse position than every other property owner in the united states you want to talk about what's unconstitutional that's unconstitutional under article four of the constitution it's saying that if the government misses these deadlines for a forfeiture statute they can't go and see it end up paying its own property through another judicial action that cannot be right let's go back to that example of the guy with one hundred thousand dollars in cash at the airport that is a matter in which the government is only acting as one force it has if it's not it's money it that we make no property claims so our only option there i forfeiture if we blow the deadline and we knew we completely messed up miss everything then we'll lose forfeiture of that hundred thousand dollars but you can't have a good cause yet that deadline pressure we can get the notice deadline pushed mark and that person took it from me wrong whether torturously or criminally that third party obviously can file a claim his own claim against the guy for the money even if the government has messed up on the forfeiture and lost its forfe this case we are that third party as well we have not only our forfeiture client we have our claim to this property as ours and so the notion here that we can't bring a declaratory judgment action is just astonishing and based on no precedent and that's the problem with the claimants that case they didn't raise a claim on the sufficiency the evidence their pill is based on these technicalities regarding the procedures that were involved they need to win both they need to he told you things like we were able to show a trial that there was this window of opportunity he told you there was this unequivocal evidence of what they proved the jury unanimously rejected that argument and for good reason and not because of the secret service records not because of these hearsay statements if you look at the government's closing argument you will see that virtually all of it from the first work rely it's on the records that are not hearsay when you reach that davis opinion that he wrote some amazing the time in the one nine hundred forty s was a very famous quaint dealer advertised nationally on radio everybody knew who max now was including king for groups of people he was a coin collector every coin and this is a very important point the you raise first thing i'm saying is this case relies on the fact that those records did show down to the last point that this notion of a bag and a window did not exist that every coin was accounted for from birth to death as judge davis  when i don't agree that if you look at the closing arguments and look at the judge's analysis of it i don't think that's fair but let me talk about the just need mission of the evidence first these aging documents ar it doesn't say a statement by the person who happened to create ph and document it says a statement in a document that isn't least twenty years old it braces and he says within the docu the reasons for this are set forth in the commentary and by many scholars which is simply the political o'kelly this is the best we can do when documents are this old and certainly when we're talking about matters from the one nine hundred thirty s if i were talking to you about hearsay today if i wanted to come to court and say you know john smith told me last week about an auto accident your answer to me will be that's hearsay brady and john smith you can do better than when you're talking about what happened in the one nine hundred thirty s you can't do better and thus you admit these documents for what they're worth hearsay exception for a few documents as well as historical text cited by the parties in their briefs or relied on by the district court and a standard reference work alexander stephens a constitutional view of the late war between the states eight hundred seventy the statement in a document you don't need to have the creator of the document really anticipate that we're talking about something that is written that is by eight eight person in a document let's say if it's a letter that's thirty years old and yet if the letter the letter says something and it can be for the truth of the matter you don't need to have that person who signed that letter but if in the letter says oh and i was speaking to john jones the other day and he told me that you know he killed his wife you know i mean that's different from what is anticipated by that section i e the creator of regarding the period seven circuit has held out or held but again as i said it without any reason whatsoever and i think you need to look at the plain language of the rule and it comports with the understanding of the role this is i'm not saying this is perfect evidence and probably not worth as much as that of a live witness but i want to get back to why it also still wasn't as important in this case but our position certainly just as unsigned that this is this is appropriate evidence for the parties to the court to consider now getting to how this evidence was used this was not by any stretch of the imagination the movie that he describes in which this is being laid out in some grandiose fashion you can read the record yourself mr tripp explained this because this was part of the basis of his opinion he was allowed as an expert as a historical expert and it is an expert numismatist and this is what they do they look at every possible resource they can including if they find law enforcement records to see what they can determine mr tripp explained that his opinion the crucial opinion that no coin lawfully left them it was based on the records of the men he tallied up and down to the last why there might have been coins behind the scenes that flew around to other places which the jury rejected that's what his opinion was based on a work trip said what he was doing is that he was looking at the records to see is there any other explanation for how these coins left other than as a theft involving mr cannon mr sweat and he found none but most importantly the judge told this to the jury and this is a misstatement that mr burke said this morning he said there were only two corrective instructions one regarding barnard and the other i think we're going to switch over there actually a number of corrective instructions you'll see when you go through the transcript you'll see how carefully judge davis supervised this case and one of them is a page twenty two eighty seven of the appendix and it page twenty two eighty seven during this testimony by mr tripp the judge said quote this gentleman is an expert witness and what he is doing is he is giving you the information that he relied upon in reaching his opinion so that's why we've gone through the secret service file and there were other statements like this by the judge and by the way that so this is being appropriately used will seven o three explicitly says that an expert can rely even on hearsay even on it in a civil evidence if it's routinely used by experts in the field and what he's doing it for he told the jury everybody told the jury is not to say this is how we're proving our case look so and so says such and such on one day and that means sweat so the coins what he said it showed was a pair is no other explanation that's not hearsay purpose that's not being offered for the truth that's  offer to say we've got these nick records why not down to the last point we know cash is going in against bank account in the same pattern that it's coming out of sweats all without your say we know sweated needed that he control these coins he showed every coin was accounted for two they were going down to the to the smithsonian the twenty seven or whatever they were destroyed in the ass say every last one that's what prove the case that almost nothing was hearsay as they suggest that the government in the end they rely on one quote from the government's closing argument where the where the attorney said what do you believe the secret service and  n our decision or that the tales they're coming up with about windows an opportunity or what have you that he came i would be very surprised to see a court reverse a judgment like this on the basis of a single line of a thirty page closing statement if you read it in context she's comparing the experts she's saying this expert relies on this and this experts out there on the field talking about all of these other theories that's what the statement was this course president makes clear that we don't readily reverse  in other words as embedded statements being offered for the truth we're not relying on whose twenty fingers at home what we're showing simply through the documents is the simple fact that there's no other explanation no one ever came up with an explanation for these point leading other than on the awful so i hope i make that clear that it's not hearsay at all but even if it is to answer your question yes absolutely the abundant evidence the government's closing the judge's opinion and everything is based on n rest you know there was prosecuted later in the coins were for that the government was not relying on hearsay here it was a remarkable case that the government was able to prove eighty years after the fact because of the  not have a fight a war however this plays out if they're still of this year if they broke agree with the government these are your coins they were stolen by our father and grandfather if they don't agree they file a claim well it all comes down to trying to do that but the way it was one of the remedies they suggested so to me said that concerns the court at all it was addressed and i'm not here challenging the government got the bird but you know if you find coins in your box and the government says alongst it there's going to be procedural objections are truly harmless they got what they asked or they got a trial before a jury at which the government had the burden of proof and they lost and so whether you're looking at the forfeiture claim or you're looking at a declaratory  judgment there is nothing to disturb because they got exactly the remedy that they would get had the government acted from the first minute the way they say they should have acted let me say one more point to just wrap up on the forfeiture statute if i could because i know you'll go back and look at the notice never gives notice the remedy is that the government cannot continue with that profit or action but still can come back later and file a judicial forfeiture so the government doesn't  so what really what they don't want to phrase it this way but what you really have here if you have anything and we don't get anything because the government never started a forfeiture but if anything you have the fellow here to give notice in the failure to initiate meaning didn't happen well it didn't but i don't think they would they would be rolling the coins down market street just like we're not going the the the coins are being preserved the point i'm making is that even if they're right the government still has the remedy to pursue  forfeiture and even if i'm wrong all the government loses under the ninety day provision is the right to pursue forfeiture the government does not lose its right as a property owner that's what's different from the normal criminal forfeiture where the government's only interest is as law enforcement here we can always come and file that twit claim that declaratory judgment client and that's what the judge in his discretion appropriately allowed us to do so you keep going to circles here be kept back to the same place there's going to be litigation the government government said this distinguishes this situation from all those horrible scenarios the government said in this case we are keeping the property we are not going to court we are not having a judicial forfeiture its notice that they discourage the sort of action because the government's argument is they could ignore the law they could engage in self help they did everything they didn't want to go to court you can hear more on well that's and that's exactly and then judge that's exactly what congress said because of the extraordinary civil forfeiture power the government is now going to have some limitation when they give notice they're keeping property they're not going to court that is the very definition of nontraditional forfeiture citizens have rights and if the government violates those question about notice the authority we rely on is also casella who says it the only way to read this is when the government says what's different from all the parade of horribles that the government laid out here they seized the assets here they said they're not going to court cases are cases where the government either went to court or intense a go to court where they explicitly said and chief judge just as he referenced your children i'm reminded of white teenagers when they say we clean our room and their actions reflect the exact opposite here the government's actions where they were keeping the property and only by saying it's not forfeiture that can't be because then the government can avoid the dictates of kaffir anytime they say that and i would suggest you that the government knew the issue was all those three independent agencies the secret service the u s attorney's office for at a philadelphia and the treasury office asked for a ticket polled and they had to file a judicial forfeiture that's what they said as judge davis found they disregarded that advice in fact they knew they were doing right well the difference we're talking about is the government says what it what happened when they don't they're not aware of this problem going on here the ninety day issue was called in fact the government waited until the eighty seventh day to act they then rick trenda knows the plane said we're keeping the points we're not going to court ok what they did is everything to avoid w truth the government admitted into evidence hundreds of pages of documents they published the most damning double and triple hearsay through trip the judge to give a lengthy instruction about trips testimony but at the end of the case when he when he gave an instruction about what the jury could consider all the evidence for there was no limitation on the hearsay statements within the secret service that only related to the bar in our case the arrest of a couple other things not the secret service so despite no matter how the secret service were published to the jury they were published and the government surely relied on them in suggesting that that shows that they were stolen so we strongly believe that the jury verdict was the result of this compelling narrative to all of us any doubt