for third parties whose assets are seized by the government as for federal encroacher the court ruled that regardless of what the forfeiture statutes may say the constitution requires as a matter of due process that a third party must be granted a hearing to challenge the basic illegality of the government's actions five years after crozier this court reaffirmed its ruling in roth and in roth it made clear that third parties must be provided a prompt hearing in which probable cause that the assets are for football must be shown since crozier was decided at least six other circuits have agreed with the basic premise that when the government acts ex parte to seize the assets of third parties claiming that the assets are full due process requires a district court provide some kind of prompt hearing at which the basic legalities of the action which is another way of describing probable cause can be challenged i guess your what is your calculation of the delay that has been suffered it seems to me there's a dispute between the parties as to how we compute the number of months that have passed there is some dispute your honor i don't think the dispute matters i think would be the first thing i'd say that is for the liquidators the money was seized in january of two thousand and five and it has never been since that day so it is from january two thousand five toll now even if the government's claim that it is the criminal seizure warrant that begins the clock applies that was in october almost exactly a year ago and under either the period of the lie and the cross crozier wroth rule requiring a prompt hearing has simply not are for citable actually no your honor because the forfeiture allegations in the criminal case were severed from the field tennyson's determination i thought i looked at a special verdict form that actually included findings with regard to the property did i misunderst you know your own i have to say i have to check i don't think so ok the government should know what their form of verdict says i to ask them well and more importantly what i do know is that there was a moment in time prior to trial where the forfeiture allegations were there was a waiver o whether or not you're making an argument of probable cause and i'm trying to figure out whether or not there's already been a determination by proof beyond a reasonable doubt that these assets are i don't believe so your honor but i will stand up in rebuttal and let you know what i think about that i honestly don't believe that's accurate i do want to make the point though that the substantive protections that are inherent in the crows are wroth rule are starkly demonstrated in this case that is to say the probable cause that these a assets should never have been placed into the criminal forfeiture proceeding they were tried to be forfeited in the civil proceeding the government conceded over a five year delay there and that action was dismissed with prejudice and there's no explanation if you look at the criminal seizure affidavit or warrant as to why that doesn't preclude the criminal action the same is true with the statute of limitations argument there you can see that in the civil case more than five years life suddenly they then in two thousand and five decide to forfeit criminally that isn't fair notice and this court has made clear and the supreme court has made clear that the statute of limitations exists to provide fair not statute of limitation i don't think so your honor it's the same thing it's the same period right it's not the same statute statute is it not so that if the government files their rico indictment alleging a conspiracy and the last overt act is within whatever the period is five or seven years then it's timely so far as the criminal proceedings welland is and yes you're right that's correct the statute does say and we don't contest that the five year period of limitations wasn't satisfied to guard the guilt innocence we don't contest that here but you are arguing i think collateral estoppel race judicata based on what happened in the in the civil proceeding but we are but we're also arguing that the statue of limitations has been violated with regard to the forfeiture of this property there's a separate arguments and i'd i'd like to pursue both of them here but i just want to make the point the promise of that hearing which is where judge graber started has to do with the substantive protection that's offered  third parties if there's no legal basis for the for the forfeiture effort to begin with a party should not have to wait two three four five years and that's what the weight will be here on the ancillary proceeding or on a just let me  once that ancillary proceeding begins and the defendant has taken his appeal even if we win the property can't be returned until the defendant's appeal is over which believe me will take two or three years it's a very complex appeal part of the problem as i understand it is caused by the relation back theory isn't it the correct question ultimately is who has the best title to this property and if the government is correct in it wins in the criminal case then in point of time you lose do you not because their title is superior and at least it's sooner in time under the relation bacteria i do understand a relation back to acting on that i think they're asking for a pretty strong reach on this one but the answer to your question just common  really no because race judicata and statue of limitations arguments require dismissal of untimely actions or duplicative actions that were finally decided without regard to these other factors that is to say even if they're right about they held title as of one nine hundred ninety nine before the money was even put into your fed bank if they didn't file timely or if they didn't if they find us duplicated action under the coonan first circuit case they cannot be permitted to forfeit here it is a pretty and a very important statement is what justice rehnquist said in the federated homes case where he said equitable case by case application of race   that would not be the fence on that we're going to go back to the question of the ancillary proceedings which are provided by statute if you were ultimately to prevail and those he would get your money back correct i certainly hope united states would be divested of and as i understand the statute i hope that that's correct yes your and and just the state should provide interest in that circumstance well we had a little dispute about that in the lower court we said that it wasn't at all clear that we would get interest the government said well you have an opportunity to ask for interest but there was no settlement of that issue i'm confident that the government will oppose our request for interest when we file it but i don't know that i have l authority to tell you the clear answer on that question i'm confident they will oppose it we don't have i mean there's a there's another sweep between pre judgment interest post judgment interest we probably almost certainly get the post judgment interest i think we get prejudgment too but i think the and they did not let me just make one other point that jurisdictional basis for the case being here is that let me just say without getting into specifics i believe that in titles the parties meaning the liquidators to a novo and the three facts we need are undisputed one the prior action was dismissed with prejudice to the government conceded more than a five year delay there which is the statue of limitations argument and three this is an interference with antique was proceeding antigua is seeking to liquidate and forfeit these same assets they started their proceeding in one nine hundred ninety nine judge like ruled in the year two thousand it was a legitimate independent and sovereign action and those facts are not disputed so this court is in as good a position as a district court to rule on the merits of this action so i would like to frankly reserve the peace the court my name is hartley west i'm an assistant u s attorney here in san francisco and i represent the united states in this matter first you are all just your question with regard to that interest in this case we believe that in the circumstances of this case that interest would be provided my understanding is that it would be the interest actually aren't by the government on the funds so that's pre judgment interest let's say two years term today the ancillary proceeding he was successful on behalf of this claimant they would liquidators claims and second because the process in the district court is ongoing as we stand here today the defendant has already been sentenced to claimants have already filed petitions we going to forfeiture of funds to actually proceeding rule thirty two point two and according to section eight fifty three it's only to establish whether the claimants have a superior interest now as one of your honors asked the liquidators if they are deemed to have a superior interest they get the money that's it if they are deemed not to have a superior interest then they're essentially strangers to the property and do not have standing to raise the argument such as res judicata or statute of limitations that the owner of the property would have the stand know but couldn't that be part of the analysis of whether they have a superior right to the extent it relates to their superior right they can raise it to the extent that it does not and it goes solely to challenge the underlying forfeit ability of the assets they cannot when that does seem to be the argument they are making that is something that the gist of court has not considered and certainly has not ruled on it and so it's not right for this court to address but that would be one of the kinds if i understood your dichotomy that would be the kind of argument that could be made below because the right would be superior government has no right at all if the district court believe that to be true then yes so they can at least raise that argument but going back to the jurisdictional reviewable under the collateral order doctrine that school minority or order of forfeiture by its very nature is not a final determination and the denial of the liquidators petition for an immediate hearing is also not a final order rather the district court said you'll have your hearing but we're postponing it it's appropriate to hear during and play proceeding why don't we have jurisdiction or rule forty one under the motion for return of property a motion for return of property is an equitable remedy and is not available where there is an adequate remedy at law now the dell media case which both parties have presented in their twenty's letter to the court expressly cited the ninth circuit's its decision and nafta which to touch on standing and right now just briefly in the hill our case which the liquidators also cited in their twenty eight j letter to the ninth circuit held that a nonparty does not have standing unless exceptional circumstances bank account that that did not arise to the level of exceptional circumstances to justify nonparty standing at the inconvenience of waiting until the interpreter action was resolved was simply not enough that's exactly the same here and inconvenience that the liquidators ma suffer for having to wait a few more months through the ancillary proceedings which is already begun does not rise to the level of exceptional circumstances and does not rise to standing and finally with regard to rightness as in  the liquidators claims are not fit for judicial decision because they have not engaged in the process congress went through a lengthy preparation of the forfeiture statutes which have been revised and are very detailed about what when a third party is allowed to raise its claims and it provides specifically it needs to go through the ancillary proceeding so until they do so their claims are simply not right and i'd like to turn to whether in fact a due process violation has occurred the due process analysis requires that the court consider whether the liquidators have an opportunity to meaningfully hearing at a meaningful time and we submit that the district court in gauging the liquidators filed their motion for summary judgment the court heard it and within a few weeks of the motion for summary judgment on the statue of limitations ground being filed the district court ruled in their favor due process to start now in october of two thousand five the united states to use the money criminally and the district court also weighed the matthews we altered factors regarding the criminal seizure now the court held that in this case the jury had already found it's not real property or personal property as an enclosure and some of the other cases it's money on which they can get interest if they are deemed to have a superior title now turning finally to the public  interest the district court found that the court has a significant interest in resolving the criminal and forfeiture proceeding against mr lester franco and mr judge jenkins further found that the government has a significant interest in having all claimants litigate their third party claims their superior interest all of the same time in one ancillary proceeding consistent with statute section eight fifty three and so it seems at a meaningful time it has been ongoing as we said in the district court when the criminal seizure warrant occurred in october of two thousand and five approximately three months later the liquidators filed a motion for return of property and approximately three days after the motion for immediate hearing on that was denied the district court ordered issued its preliminary order a forfeiture so process has been moving at a steady pace here and one month after that gateway to the enslaved proceedings open so given the fact that minimal time has actually elapsed since the criminal seizure in fact it was from the time that the ancillary proceedings opened with the issuance of the preliminary order of forfeiture it only them six months since the money was criminally se that is more than reasonable under the eight thousand eight hundred fifty dollars in u s currency case which also considers such factors as the reason for delay and prejudiced again no prejudice here it's just money interests will be granted on it and the the supplemental material that was filed by the government that the district court has been quite busy while the appeal has been pending that's right by what authority does it purport to continue to act when the matter is on appeal before us the district court determined that it had the author already to continue with the sentencing of the defendant and that a third party could not take away its jurisdiction to sentence the defendant that the defendant well i don't think there's any question about the e only thing that i think is important to say with regard to the race judicata statute of limitations act of state doctrine that the liquidators have raised is that these issues are not right for this court the district court has not considered them while it  before the district court it was never discussed at all during the hearing and the district court certainly did not rule on them and moreover the liquidators we believe would not have standing to raise such arguments in the event they are determined to have the superior interest as we discussed at the beginning they it wouldn't matter they would get the money to the extent that these arguments are relevant to the determination of their superior title they have the opportunity to raise that in the district court and the district court should have an opportunity to d well is of their superior title or simply a bar to the government's ability to assert that it has appeared title i think there's a difference in a little is there not i don't know that there is the purpose of the ancillary proceedings is to determine whether they have superior title and if they are raising arguments that would as a matter of law establish their and the government is barred from arguing that we don't for a variety of for uses that would be ok i believe that it would it would establish that they as a matter of law have superior first they have to establish that they have an interest in the first place otherwise none of this makes any sense but once they do that and there are a number of ways to establish superior right and it sounds like one of them would be government you cannot argue against our right period and the district court who has a complete understanding of the facts underlying this case should be the one that would decide that issue and decide whether in fact that doesn't stablish that the liquidators have the right to the property and of course if it does decide they have the right to the property then they get the money and if it decides that they don't they can appeal and thus the court it's hard to know where to start because let me let me start you with a question that relates to very matter that what we can look at it that is ongoing in the district court why i think couldn't we take continues to have power to proceed in light of the grigs prohibition is a question that we do not understand but i certainly just wanted the court to have both sides when i submitted my letter i think you could take notice of what's going on just what's happened not whether it's right or wrong  just well i actually think you can decide is wrong i don't think that the district court has jurisdiction but that's right one way street was a one way street the reason it's hard to know where to start is because we describe this process below as a shell game and i think that's an accurate description and it's continuing today the government really judge graber has not told you that they're going to allow us to argue race  current statue of limitations when we get back if we get back and i don't think we should have to they're going to say you can argue that because that's not related to superior title and so i hope the court will at least make it clear that they've got to let us raise these issues but i did i did hear or at least from my understanding two concessions that may be important to the outcome one was that you are entitle to prejudgment interest in an amount equal to whatever the united states has in fact turned on the money in the meantime and the second is that in so far as an argument pertains to the relative rights your client in the united states that those arguments will all be available to you i hope that that was  concession i think judge tom had that right that's a different analytical question superior title has to do with title relation back doctrine as you mention this is not a superior title argument although if that's where we have to put it to make it below will do that this is an argument that says it doesn't matter who had title you waited too long you're barred by the statute plus you already tried once and you lost on the merits because of the way and this is why i describe it is the shell game every time we try to come into court and say wait this shouldn't be part of the case at all we are told wait we'll put it under a different shell later you call it a shell but didn't congress in an act in the ancillary proceeding in essence substitute what used to be known as the petition for remission or mitigation of the forfeiture which was supposed to be an omnibus and celery proceeding after the criminal forfeiture was ordered at which innocent third parties could come in and either establish that they had superior title or they were an innocent bona fide purchaser for value or for some other reason the government should give them the money and that's what you have doing in the end because if they did and but i have to say  loss if you want to call it a colossal i call it the constitutional right to due process which was put on that by this court in procedure repeated in roth repeated in any number of other circuits is that congress left out started this process back in may frankly but more importantly if you read the government's reef here's what they say it's unbelievable because it's a misuse of the english language they say the government is the liquidators can file a suit b d motion for s with a lot of discovery requests discovery is going to last for another year and a half two years there is just no speed here more importantly if this were a fact a pending issue where there were disputes about facts i could agree with your honor that you know thomas right that's supposed to happen in the ancillary proceeding this is an undisputed clear legal issue does claim preclusion apply or doesn't it does the statute of limitations bartered doesn't those are legal issues which i think the liquidators are entitled to get a ruling on from this court they should have had the ruling in the district court i agree but we didn't get it it's the functional equivalent of luminary injunction we have the right to appeal under twelve ninety two a one or it's rule forty one is judge harman said we have the right to appeal in a like it or only under de bella and under either of those jurisdictional hooks we have a right to this court's judgment on these pure legal issues this money should not be in the proceeding it should have never been in the proceeding you know the novel decision i really would urge the court you know to carefully consider what happened in one of the statements which the government describes as holdings are simply statements of background which judge bybe wrote as a precedent to ruling against the government in a forfeiture case and he repeated at the end of the opinion a novel how suspicious we should be of forfeiture efforts because they are such an extreme remedy how difficult they can be on third party's nominee involves a third party who the government forfeited against and this court is that now that was wrong so the discussion about what the court held honestly what i think half it is that they wrote them out of a background section based on the issue ever gone to the u s supreme court not that i'm aware of your honor not that i'm aware of the idea of a prompt hearing but i think it's significant that it hasn't and the reason is you haven't found circuits taking issue with it i rule on the issue so i mean it really is not an issue that's burning it's not an issue that is ruining forfeiture you know the government says the world will end if we have this court to be dealing with crozier for a long time you can find district  but we don't think that's true here because of the statue of limitations the act of state doctrine we're just saying something that's important here antigua we lived on the district courts on appeal ruling in two thousand that i process was in a sense a period to the united states and that's what this is really about this is a fight between two sovereigns the united states and antigua as to who gets to distribute as a wrinkle is dirty money and anti decided in one thousand nine hundred nine their bank their soil was being used for money laundering and they instituted proceedings they got a ruling from judge like in two thousand united states an appeal it could have they were a party where the rolling stone a sovereign independent legitimate that these accounts have that nexus here's what the district court does your argument now that we're talking about substitute phone no no we're not talking about i think we're talking about spans it should be in the proceeding at all well i understand it but the problem is i've got to deal with the district court determination government's initial criminal seizure affidavit and then there are mended criminal so why did they amend because we said they had included facts they needed to include under franks including all the counts that have been dismissed here's what they say they says oh by the way the district court judge dismissed those counts no conviction there's no conviction on the two counts they say are the basis for that so that's about two million dollars in this little proceeding here so