good morning ma'am please acourt i'm monica monday and i represent william white we have raised several issues on appeal but i would like to devote my argument to focusing on the first one which deals with issue preclusion and this might seem to be only slightly more interesting than insurance coverage but in truth this is a fascinating issue and we rely on our brief for the remaining issues this is a question of first impression and the issue before the court is whether in a non intervened  jury's finding that there was no fraud has perfect and a subsequent criminal trial for fraud for the very same issues now i think the court is for milieu with the backgrounds would like to jump to what i think is the biggest issue that the government has posed at least one of the biggest issues which is you can't have this at all you cannot have issue preclusion in a criminal case after a civil case this is contrary this argument is contrary supreme court in the yates decision said exactly the same thing we also know that there is a case where at least one court has applied this particular doctrine issue later criminal proceeding brought by the united states for hope host of criminal issues such as mail fraud rico securities violations and obstruction of justice and the tenth circuit in that case apply an issue  every i don't know the not to speak for my colleagues but i don't know that i would find that uncontroversial in this case if the united states would actually intervene in the in this lawsuit but it did so that's the question right so having not intervene as it wasn't title not to do by virtue of the statute what you're suggesting is the united states in each and every case is going to have to make a considered judgment as to whether or not it should intervene on the court of the united states noted that the united states is bound by a judgment in all of ca cases regardless of its participation in the case or its intervention as a page nine thirty six now this was a notation that the court made in the body of mean that they would claim preclusion would apply that the government doesn't intervene it still can't go ahead and bring its own f c a case you can't bring a direct from civil action after the relator fails but you made it more broadly to be saying that they are going to be actually what taylor says and so what taylor says is that there are certain instances when a party will be banned under issues even if it wasn't an actual party to the action so it's not unusual occlusion and the one that is relevant or we think most relevant here is that the government and the relator have a special legal relationship that is recognized by the false claims act act itself and that is of aston arnason e and again this court and the united has all these extra at all that the government gives that you would not ordinarily see they say entity that was not a party to a case that that didn't make any difference based on the way congress had written the statute that thing that what they said party meant party and if you didn't intervene you were not a party you were simply a party in interest and you weren't bailed by the say not that the government is not a party in for all purposes in a not intervene case but rather the issue in that case was once the united states a party for  dealing with whether it was going to be a thirty day notice of appeal period or a sixty day in other words was the government a party for purposes of the rule of notice of appeal and are you arguing that the government is a party in this case for purposes of  what we're arguing your honor is that it we think that given the relationship that it is but the court doesn't need to reach that because it even though it even if it wasn't a party it is still bound by is euclidian because of the acid or asked in the relationship the civil recovery you are precluded from going after that same recovery by that same method and you can bring another f c a or direct f c a case but it has nothing to do with issue preclusion in a different cause of action do you think they're reading that law any united states supreme court have been very clear in stating that the relationship between the relator and the united states is one of acid or as any and that is one of the six exceptions that is recognized and as judge age you point out that there are government is conflating that issue into the criminal case that's not the issue in the criminal cries the issue of the relationship because the question we're asking is was the government either a party or should it still be bound because of the relationship that it had in the first proceeding so that issue is only related to the first proceeding and the relationship between the united states and the related work in that first proceeding is a substantive legal relationship recognized king and for himself and so it goes to the very heart of the relationship even in a non intervened case the the united states still has a huge amount of control and power over the preclusion if if you fall within one of those categories and that's exactly what we have here in the first action what the government assigned to the relate or by not intervening was the right to bring that action and take the lead in the litigation on itself and share and part of a recovery now the government does have an important question on intervention to make in every in every one of the because of collateral estoppel not be not just because of whether it has a right to appeal it must make that important decision because it can have reclusive effect we know that it can have a reclusive effect because if the issues are going to be the same and here the government had the right to to kick the case completely it could have tried the criminal case first there's even a statutory mechanism whereby the government could have asked for a sta really this is a very rare and unique situation it's a very rare of the russians the government there would be in the position of having to make a decision on a criminal case in a civil matter the comes first is this going back to judge the essence of initial question it seems like the bottom line of your position would be that if the government determines in any of these cases under the false claims act that it's not going to intervene to not going to be a party then then as a matter of law whatever transpires in that false claims act perceiving is going to be potentially applicable as one is because it is their right that are being vindicated in the false claims act case they get at least seventy percent of the of any recovery in that case so they should be very interested in that we have but there are only half of the government there are no criminal rights being vindicated there's a civil war which correct and the government the indictment in this case came before the false claims act case was even filed it did in this case  but you know we have to be concerned with this sort of the full sweep of cases and there are going to be a lot of cases where the government won't know on the relator his preferred schedule what it's whether a criminal prosecution is warranted right well if that's that's correct your honor that might be the case but i think that the government has sixty days under the statute to make a decision about intervention and in many many cases at least ones we've been involved in and in this case they request extensions so they can further can consider whether to intervene it's a very important issue but under eisenstein we believe that the government is bound by that by that judgment and the findings in that judgment whether they intervene or not but it is a very important decision  because we know the four circuit has said it's possible you can have reclusive effect of a civil finding in a subsequent criminal proceeding then the government had all of these tools at its disposal it could have had the false claims act case dismissed it could have asked for it to be stayed it could have settled it even without the relator consent so it had a variety of tools available to protect its interests and its and that's really the focus is will we have this important interest in in criminal prosecution no question about it it had all the tools and it had all of the knowledge in this case to do it and instead of congress well to the extent that there's any indication in the record otherwise legislative history or otherwise the congress intended this to be the trade off that you're suggesting bypassing the key terms that you answer you're on a trade off on that the government would forgo a criminal prosecution in fact that it's did nothing on a criminal prosecution we're talking about isolated issues it's only issues and the government knows what the issues are because it issues the indictment and because it had access to the complaint and had an opportunity to intervene let me ask you about that i guess  of the issues are the same in the case and so for example in the rogers case that act in that case there were multiple criminal criminal convictions but but the previous civil adjudication there was only one finding that was for clearance of the court actually reversed in and set aside only one of the particular crimes and so it doesn't conceptually it doesn't bar the whole thing that would be claim it's only bar certain things so it doesn't actually impair the government's ability to bring or prosecute a case it just means that the government is going to be bound by an earlier finding on which you had a full and fair opportunity to l later could be binding as the government in any future case so for example at and it is simply not the case that the government can foresee even every issue that would be litigated in a particular action much less every issue that might be relevant in a future criminal process what about this case it is sort of and maybe this case is unusual maybe not but in this case the defendant was already indicted the government knew exactly what it wanted to try to defend and for and then it gets this key ten complain and it's the same stuff so  didn't the government either intervene or get a stay or do something to protect its indictment well so i think it's important to note that the rules there are suggesting would be much broader than i know but just i'm just curious is what happened in the scheme in this case the government did elect not to intervene and i don't think the record reflects the government's thought process but i think the but what i can say is well understood some suggestion in the record that the governor wanted to see how these issues would play out in the civil trial i don't think that government would like to see how things play out but that suggests that why should the government get two bites of the apple particularly in this case where you have the indictment place well again i don't think that was the reason i think the reason was that the government so that the false claims act tom provisions exist in order to essentially modify the government's resources in terms of getting recovery for certain civil claims and the government has to allocate i resources it's very limited resources wisely and in this case there's really no reason to believe that the government would be able to recover a judgment from our met or from mr white and so it was not necessarily viewed as a good a stay if that is is the key time is in interfering with the investigation that was not really the case here in this case the government had already basically completed its investigation going to the grand jury gotten its indictment and so at that point if you're pursuing a criminal criminal investigation or proceedings i mean were you pursuing criminal proceedings here oh yes yes i'm not i'm what i'm saying is that they weren't interfering that their position was interfering with our investigation we already think a party and take on the burdens and the benefits of a party being a party or to not do that and congress didn't want that choice to be burdened by the forfeiture of our sovereign criminal obligations in other areas similarly i think congress did not want the government to be moving for stay in every case congress wanted the real leaders to bring a bill to bring the cases that even if the government thought they weren't worthwhile congress one of the later to be able to take criminal cases we're talking about preclusion we're talking about the double jeopardy clause but is this court has already held double jeopardy does not apply here so there is no constitutional claim it's simply the statute and the common law a the claim is litigated the property that was the claim becomes a judgment and so the property is transformed that is binding on anyone who has a property interest in that property and  claim no i don't think so i mean the restitution is a remedy rather than a criminal charge so there's nine counts in this case and restitution isn't in the c in civil law restitution can sometimes be a cause of action but that's not true in the party but i would point also to the nicer case in hickey which in which the court found that even the securities exchange commission was not the same party because it was not acting as the federal sovereign vindicating the criminal law of the united states  so i'd also like to address just briefly the the tools of the government haswell the government has broad tools in some respects to take over the case for example the government's tools are quite blunt the government can take over the entire case with all of the benefits and burns including all of the costs associated but it doesn't have the option to litigate a specific issue because that issue is important in other words it has the the option to make the decision on the claim but not on the issues the government doesn't if the government declines to intervene the government doesn't have any role in choosing witnesses in questioning witnesses in putting on evidence in making arguments before the district court and those just doesn't in the f c a action is a right yes you are in are you making that argument with respect to all of the counts including seven through nine for that which are that counts for presenting false claims to the government your honor i think the argument with regards count seven through preclusion even assuming we get past the nonparty part which i am convinced they cannot they have the burden of establishing it and they have not done that to this court on they have said is that the government conceded below or and or that the district  those are incorrect and certainly the former is incorrect if you look at the pages that they cite first the brief that we filed and the pages they cite the government was quite clear in maintaining its position that they had not established this got to that point is we'd send it back for the district court to take it up first well i think that's within the course discretion if you got to that point but again for reasons that i've discussed i don't think it's necessary get to that point  you thank you your honor i'd like to start off by talking about the identity of the issue since i think that's perhaps where we where we left off with the government's questioning and this goes to i think the question that the judge diaz asked earlier about the identity of the issues there are three elements for a false claims act cases first you have to have false claims or statements second you have to have scienter and third you have to have materiality and all three of  those elements had to be proven for for there to be a successful verdict in the claims that case similarly all three of these elements were part of the requirements of each of the three charges that were brought on the criminal side and where we can find that is in the joint to even get to that argument we would have to first conclude that united states was a party your honor yes  no we we do argue that they were a party because of the unique relationship between the two between the relator and the united states recognized in fact this court has even stated that in a false claims act case that your honor we believe yes we believe that even even if you preclusion can apply it to a nonparty in certain situations and that is present here and again it einstein the court really recognized the preclusion can apply whether the government intervenes or not but nevertheless in that case the court did carefully circumscribe is holding to being that the that the got the government is not a party for purposes of federal of a problem procedure for the case to the supreme court rect it seems to be somewhat broader than you're given a credit for where you are several times in the opinion the court limits its holding to that particular issue and in fact i think we've briefed the issue that in fact the government basically asked the united states asked the united states supreme court not to make a broader holding and so in fact the court did exactly what the what the government had asked in that case but in order let me switch quickly because i do want to cover th all three of the elements of the false claims act case were part of the elements in the criminal case and we can find there on pages twenty six seventy one which is for the  page twenty six seventy eight for the wire fraud and on page twenty six eighty three for the fraudulent claims counts and in fact the government agree below that on the wire fraud complete identity and we're not talking about a claim for payment we're talking about making a false statement with respect to some of these items that were being purchased correct your honor but but the government conceded that the paucity materiality were requirements for wire fraud and  three or nine three ten it was a different document that was false i don't understand i don't understand that if i don't see how a finding that an invoice was not false would preclude under issue preclusion principles would preclude going forward with a claim that made to the government that induced the government to pay the money that is the fundamental aspect and those are identical in both different proceeding in both proceedings