we'll hear argument first this morning increased sixteen fifteen nineteen versus the united states cigars or thank you mr chief justice and may please the court the mandatory victims restitution act covers the cost of lost income and necessary child care transportation and other expenses while participating in the investigation or prosecution of the offense or attending proceedings related to that offense that language does not cover the cost of hiring for law firms a consulting firm and of experts for a private investigation and bankruptcy litigation the government's feet theory does not fit section thirty six sixty three a's plain text and it cannot explain the clear and obvious differences between this statute and other restitution provisions which unlike here where unlike here congress didn't provide make whole relief the government tries to make up for these deficiencies by citing statements of the legislative history broad declarations of congress's purpose and the ordinary definition of restitution none of these appear anywhere in the statute the government looks everywhere but the statutory text because the language and logic of the provision is directly at odds with the government's reading from multiple if we have the first companies have incentives independent of the possibility of getting a restitution award to investigate potential misconduct and this is not saying even if it's not covered as restitution that is the only mechanism to  they can file civil actions the key here is what congress had in mind when it detailed four specific provisions and subsection b of the mandatory victim's restitution act and the term there that's very important is mandatory congress realize it was  restitution in these cases and there are tens of thousands of sentencing proceedings each year under this provision excuse me if there are differences and one of the bankruptcy law i assume that if the question it depends on the nature of the offense and and the underlying basis of the civil judgment what if the government approached g e and said look this is a very complicated financial fraud we're busy with some other stuff we'd formulation it has specific expenses childcare and transportation followed by a general research will clause it looks absolutely nothing like attorneys fees were congress wanted to include attorneys fees and investigation expenses it did that as we see in sections twenty t forty eight and sections twenty two fifty nine it's a pretty open free's other expenses incurred during participation in the investigation i don't know why but the government's essentially delegating it investigation expenses don't look like child care transportation when congress wanted it how would you define the common denominator of those expenses i think the common denominator is clear from both the context and the terms used it shows this is exactly what happens when a victim is dislodged from their daily life and they have to go and meet with the government or testify to hearing if they miss work they have lost income they have to get from wherever they are to the hearing or to meet with the f b i agents that's transportation if they leave home they might have childcare expenses these are the indirect incidental out of pocket expenses that someone incurs when they're meeting with the government hiring a lawyer to be a witness in a governmental investigation would that be covered in your view we don't think it is under our broader argument just  score such because again hiring a lawyer is not like child care transportation and congress again when it wanted to include attorney's fees it said so expressly as it did in section twenty three fifty nine well maybe this is the same question of justice course but suppose the i there and federal investigating agency so they were coming in and we want to statements from all of your officers and we're going to be questioning all of your officers and the company that hires an attorney to assist  again your honor under how broad it sounds to me like this is another expense incurred during participation in the investigation again under a broader theory no because it's not the kind of expensive congress had in mind but we do have the alternative theory that at least in that case you have someone who is incurring an expense during the participation of the government's investigation that's very deep and then a private investigation operated entirely apart from the government's investigation indeed one that occurs before the government has even started its investigation no one thinks of an expense that is occurring before as an expense that's happening during an investigation that hasn't yet started does it that's the what i think is difficult but think a simple example a small company thinks the bookkeeper is taking money off the top hires sam spade private eye and says i'd like you to look into this he does look into it he says it's the bookkeeper all right and then they go to the police and the police says thank you that's very helpful sam and they investigate further arrested that's the facts  previously there was a statute called the discretionary restitution statute and it'll old discretionary expenses related to participation in the investigation well i w said the quite likely sam's pretty investigation expense was related to the nets the later now they've changed the wording of the to do what you read did congress intended to change that i believe congress did b why they didn't just stumble across the language in subsection the no no what i'm asking you why would someone taking a statute that previously a ed restitution to sam for sam's expand want to stop that in a statutory change by the way that was meant to expand the scope of restitution a few points your honor first it's expanding it by making it mandatory it's not expanding it by making it make whole relief congress knew how to do that they have other examples where they did do that in this case too i think once you have expenses incurred during the investigation you get the government's input they can cooperate with the company they can give them direction they can prevent duplicate of redundant expenses is there anything since i'm interested in history is there anything in the legislative history that suggests that this change of language was intended to diminish the scope of the restitution they i don't think there's anything either way on that particular point but what there is and i do think this is important congress specifically raise concerns about things like attorneys fees that would end up leading to protract did complicated fact intensive disputes that would slow the efficiency of sentencing proceedings this statute because it's mandatory applies in tens of thousands of proceedings every year and if you look at subsection c three b of the act congress specifically said that restitution is not authorize where it would delay the sentencing proceeding and that makes perfectly good sense  congress and would limit the expenses to the kind of incidental out of pocket expenses that are very easy to calculate fee disputes are notoriously difficult to calculate when you have people operating especially independently of the government they're conducting their own resource their detective their own investigation hiring whoever they wish to hire and that's perfectly fine and there might be other mechanisms that congress would have deferred to in the civil venue to resolve those sorts of disputes but that's very different than saying in a mandatory statute that these that sentencing judges and again tens of thousands of proceedings every year have to go through and entertain disputes about how much was actually necessary was it proper to hire four law firms where the expenses devoted just to proving innocence and guilt or  all so devoted for business reasons or economic reasons most internal investigations of judge cavanagh pointed out and opinion in papunya they extend far beyond just identifying the guilty party so gave us that suppose the statute did not refer to lost in unnecessary child care transportation expenses and simply authorized restitution for quote other expenses incurred during participation in the investigation period would you  still have this would you still when we in this case we would your honor because g capital's expenses predated the government investigation so any expenses were not incurred during participation in the government's investigation well  you're reading a word into the text in the government's investigation i think that word is apparent by the context your honor the phrase is the investigation or prosecution of the offense there are lots of textual cues there that what congress had in mind was the government's investigation they didn't have to say government just as they didn't have to say the government's prosecution you seem to suggest that there's a very sharp line where you can tell the precise point at which the government is beginning investigation in the prior prior times when they happened i mean it's more of a fluid situation right the been the government gets report they put in the file they'll start investigating as soon as they finish up these three more serious offenses i mean isn't it going to be a difficult determination of when precisely the government investigation began to begin when they get a complaint again your honor under our broader theory i think that actually would avoid those problems because it wouldn't include things like private investigation and private investigator work it would simply include witnesses who are going to meet with the f b i and they occur out of pocket and so i don't i'm talking about your other theory which is sure you know that has to be during the government investigation well it still has to be in during the at a minimum the thinking of s again has to be open in this case it's it's quite clear this happened before the government even knew about this affair what really have to be the governor the federal government what if the offenses initially investigated by state authorities and then i don't later point is determined that it will be prosecuted by the federal government would you say that the expenses incurred during the participation in the state investigation are not covered we would say that your honor and again this is a this is a provision of title eighteen it's a federal provision it's talking about federal offenses of conviction the investigation is of the offense the offense if you look back to subsection a of thirty six sixty three is talking about the conviction under federal law and it is in the singular the investigation or prosecution of  s attorney's office and then it's taken over by another u s attorney's office doesn't apply only to the latter office that actually prosecutes the case in that case i don't think so your honor there's a unitary executive theory and i think that it's the same federal government doing the same federal investigation how they divide it up it's up to them what's quite clear those are talking about a governmental investigation here because again this is investigation of the offense private parties don't conduct criminal investigations if a corporate state i understand your response  no your honor because again under a used i'm generous we don't think that congress meant for attorney's fees to be clued in this provision if you reject that proposition then in this case at least it would be closer to an expense incurred during participation in the government's investigation but the still is a problem even their participation does not simply mean to help or support it's not aid and abet this is what the court said in the reeves case considering a provision of rico participating means taking part in someone's work and you don't participate in your own investigation that's not how people talking investigate you participate in someone else's investigation so congress clearly and if you take a step back and read the section holistically as the government suggested you should this statute winds up perfectly if what you have in mind  what naturally suggest if congress was thinking of victims who had to go and meet with the f b i agents and go and testify at the criminal hearing everything here makes perfect sense the expenses own currall be the incidental out of pocket expenses of traveling to with the government and having the opportunity cost of doing whatever else he ordered an ordinarily be doing the expenses of course or during participation in the investigation because they're meeting with an active ongoing investigation  federal investigators request a company to bring officers or employees who are located in other parts of the country to particular office to be questioned or suppose they ask them to go through the company's records to find certain documents on the company does that incurs expenses are is that covered the former would be covered if they had other employees of the company come in that's under transportation they'd be coming in to meet with the government if they  have professional fees going into identifying documents again i don't think that's what congress had in mind and we know the congress knew the difference between the narrow provision it authorized in thirty six sixty three a and broader provisions because in those broader offense specific provisions congress specifically referenced the n b r a it said that those broader terms apply notwithstanding thirty six six and i don't quite understand that answer that if someone at the request of the f b i goes through company records and incurs perhaps and i quote an expense in doing that that is not participation in the government's investigation will it get you wanted there it would be participation during the government's investigation i'm referring our broader theory that  professional fees simply aren't covered but again if you reject that proposition then maybe that type of work would be covered but only in the case of the government telling or asking someone to do it in this case you have a private investigation where no one was told or asked to do it by the government the government that wasn't even aware of the potential crime and so in our case this clearly fits outside the natural language of thirty six sixty three essay and since we've been talking about the investigation i do want to make clear that there are actually two pockets of expenses here and one was the pocket for the bankruptcy litigation the bankruptcy litigation is simply exactly like every other ordinary civil litigation designed to recoup damages for crime and i don't see any way that that falls within the phrase for attending hearings attending the proceedings these were for participating in the proceedings surely one congress said attendance they're thinking of physical attendance and again we know that because if you read this sentence in its entirety they're talking about things like lost income because you're not physically at your job you're somewhere else or they're talking about child care if you're not watching your child you're at the hearing or at transportation so i think it's too much to read attendance out of the statute that reading would make more sense if it said any losses incurred during proceedings upon below the government did not try to preserve the authority to uphold the restitution award on an entirely different statutory provision this isn't just saying that there's an alternative rationale that supports an award under before this is saying that we will enforce part of a criminal sentence on a statutory ground that wasn't even raised below but if the court does choose to reach it i don't think the government's theory works it suggests that it's really reading the one not to say an offense resulting in damage to or loss or destruction of property but the offense resulting in any damage or loss it's true that property can be money but i think it stretches it too far to say that money is property so any offense that causes me in some future you know a proceeding or event to spend money is and spending property and therefore i have lost property as a result of the offense if you look at the actual language and progression of b one is quite clearly thinking of property first it's really the target of the offense because the very first step is if you've taken the property you have to return the property money spent on things like bankruptcy litigation it doesn't remotely fit within the confines of b one and under the government's view this also would read out of the statute subsections be too through before because any time that someone is say is injured by a physical crime they have to go get health care then they're spending money which is property on the health care and that would be result of defense so b two is gone if there's an offense resulting in death then the money spent on the funeral would be property lost as a result of the offense to be three is unnecessary and the same would fall for before so i don't think to be one is grounds for upholding the award generally or in this case specifically where this is separate collateral attorneys or the attendants of corporate officers at the hearing oh you're right if you look at pages twenty and twenty nine of the joint appendix you'll see that these are the professional fees including pretty have to charges in the millions for providing consulting advice on whether they think driving on the company that was the subject of the fraud whether they could survive as a going concern this is trying to decide how to litigate and recover the case in bankruptcy it is not even clear that there were hearings that people attended and surely it wouldn't run you know in the millions of dollars to show up for a single hearing what about that small subset of fees if there were any like the fees that we charge because we sat in a courtroom during the proceeding that would at least satisfy the term attendance but i was my second reason that i didn't get to is that it's still attendance we think it criminal proceedings and i think that's clear again from the context of the statute but why isn't a bankruptcy related to the criminal talking about the proceedings related to the criminal action of the investigation or prosecution of the offense you have a tendency proceedings related to the offense it wouldn't need to make much sense to cover civil proceedings and this is why if congress wanted  to have recovery for victims just for showing up at a civil hearing presumably they would also want to cover the fees for the hearing the filing fee for the case or maybe the attorneys fees or expert fees all the normal expenses that people incur and civil proceedings it would be passing strange to say that congress thought you know what when the victim has to show up to testify that wall will cover we're not going to cover anything else and it does make sense so if you look at this is proceedings related to the criminal action when a victim has to testify at a criminal proceeding the only expenses incurred are those out of pocket expenses the government there's every thing else because it's their case they're the ones paying for the prosecutors they're the ones that have spent the time in court so it really all lines up it's only when you try to shoehorn the government's attempt to get these private investigation fees in the civil proceedings into the statute that you see any anomalies when you read the statute and think what did congress have in mind here in this narrow provision which again is not a provision from a coal relief congress knew how to do that this is not an attempt to cover every single expense that a victim unfortunately suffers you know regrettably from crime this is what are proceedings related to the offense o other proceedings for a bail hearing well this those would be proceedings in the prosecution well it could be in the prosecution by think congress there was trying to make sure that any proceeding related to the criminal prosecution would be covered and then use the term prosecution earlier in the provision if they wanted to limit it to proceedings in the prosecution why wouldn't they use the same term again why would they use this broader formulation related to the offense again i could see someone thinking there is a distinction between a hearing that is determining if there's sufficient evidence to issue an indictment so the prosecution hasn't yet commence and proceedings after the indictment where it has commenced ok so you know maybe you've got the grand jury proceeding but  else right that's the there could be depending on the offense other types of proceedings but again i think this is congress trying to make sure that if a witness has to show up and testify to advance the government's work then their expenses are covered when there are those incidental out of pocket expenses if congress wanted to again to cover things like attorneys fees or provide full amount of restitution they knew exactly how to do it at the outset you said that there are for gotos that tens of thousands or thousands of these proceedings a year if you look at page seventeen of the government's brief they say there are tens of thousands of proceedings under the n p r every year which is exactly the reason that congress would not want to burden district judges and burden the sentencing process with these fact intensive disputes the one of the items that you're entitled to recover as the victim has lost income here the victim was a corporate entity how do you measure lost income in that context in that i think it would depend on the situation and what exactly the corporation is doing in the proceeding i seem that if you had a corporate officer say it's an employee yes to testify who otherwise would be out selling something and you know that the employee would would get a certain amount of profit that day had they not had to show up in court i presume that would be the last thing come and you say participation includes participation where the government investigation doesn't start until after you finish but they incorporate everything you've done sam spade puts on his resume  participated in there in their investigation the government what they didn't start till november you finished in october but i participated all my findings all my witness reports were taken over by the government and used perhaps you can i don't think that's participate i don't think that's an expensive car during participation and i still don't think that's because it might be very useful sam space work could have saved the government a lot of time it could have aided the government or abetted the government or supported them but those aren't the phrases that congress used participation means working in someone else's job it's to helping the government if i could reserve the balance of my time thank you coun mr chief justice and may it please the court the mandatory victim's restitution act enables the victim of a crime to recover for its participation in the investigation of the defendant's offense the statute is not limited to participation in the government's investigation of offense most of petition or prosecution you have to read them together not singularly well i think your honor the statute reflects the fact that from the standpoint of a victim it encompasses the ordinary chronology of events in which a victim would be expected to participate there's going to be an investigation of offense there's going to be a prosecution there might be proceeding certainly that does happen the reverse way there are times the police get information and they still go to the company a closer call on whether in that situation and if they ask the company to look into something it wasn't aware of whether that's participation putting that aside it doesn't necessarily follow that investigation by a company always that we demonstrate in our brief reveal what justice briar's example example earlier this morning illustrated which is that it is extremely common and congress would have understood that victims routinely play an indispensable role in the investigation so i don't understand th because you have a big problem i think with the language of the statute if in fact it's an investigation by the company before the police investigation begins they get child care i mean here i think that what the statute reflects again is the fact that victims routinely incur expenses in internal investigations that and cover invaluable evidence of crimes all of it is very common with most rest fraud cases make up a larger category of restitution awards than any other type of offense and congress would understand that in fraud cases the way that frauds are discovered very often is internal investigation as mr hayes is it your contention that all of the four million dollars spent on this internal investigation was necessary for the prosecution of the case or just part of the necessary for the investigation or prosecution or proceedings related to the offense your honor all three some of the expenses were for various portions of the case some of it was for the investment that's what's there to limit extreme expenditures were you want to say well as worthless let's hire two law firms with this is a big case certainly your honor the word necessary is also in the statute the expenses have to be necessary sentencing courts just got discussed all the time restitution awards that are cut or adjusted in various ways because they make exactly those sort of determinations now so you say that the bankruptcy was a proceeding related to offense because fraud was at issue there too and maybe this is a clear cut case but there can be plenty where the reasons for the bankruptcy are going to be in dispute and we're going to invite district judges to engage in long collateral proceedings over whether something is or isn't related enough to the offense when we do about that and relatedly you know the statute covers a lot of different  kinds of crimes including violent crimes so i can imagine someone saying my divorce proceedings are related to the crime of violence and i should get my attorney's fees for my divorce proceeding too and childcare all the other things just as bar numerated we're is the stopping point here just as course that i think that we expect the proceedings related to the offense clause of this statute to be narrow outside the context of criminal proceedings that is certainly the mind run proposal i mean this is a civil bankruptcy proceeding that's not very narrow and i don't see how it's any different than my divorce hypothetical it's different in this respect your honor she capital was really dragged into these bankruptcy proceedings this is not equivalent to a civil proceeding that is an issue one of three initiated involuntary bankruptcy proceedings for the very same reason same result i assume in the government's view because you take such a purpose of us to account of the statute you know let's make sure everybody gets everything well i'm sure i think the statute reflects that that is its purpose and as the court described in dolan the statute as expressed that it substantive i understand that but i was kind of surprised to see a brief from the government the united states go on for so many pages about purpose and very generic terms for actually getting the terms of the statute the language and i again why why wouldn't my divorce case or the involuntary bankruptcy meet the same purpose test you articulated here i don't think the test is strictly purpose of us john or the question is were the expenses incurred as a direct and proximate result of the crime and i think that sentencing courts are very accustomed to making those sorts of discrimination offense yet congress here instead of using those very simple and direct words that would cover everything that's happened here decided to break it up into four categories and very specifically told courts what those categories in compas there's a recent proposal that's being considered now i think it's by either the sentencing commission or some congressional committee that saying should we change th statute and all the others to simply say make the victim home they would get to where you're going very directly so what do i do with those differences here i want to be very not i think i have to give different meaning to different statutory terms that were passed that the year tentacle time we agree your honor i want to be very clear about our position because this is in some respects a misrepresentation by my friend about what what our position is our position is not that for example in the case of child pornography victims who are entitled to recover all of the losses that are approximately caused by the offense our submission is not that a victim like g e capital gets everything that's probably cause a victim does need to fit within one of the categories in section b what we do think though is that congress borrowed the key term from those offense specific restitution statutes and said the full amount of the losses is what is to be awarded and so i think it is absolutely true that's what those  the that they say that your honor but in the m v are a congress incorporated the exact same tax section three six six four f one a which is incorporated into this statute the m v are a by section three six six three cap a d those that that provision of section three six six four is what expresses that in each case of restitution restitution is to be awarded for the full amount of the victim's losses now again it's not the case that it's the full amount full stop you have to fit into one of the structuring correct incentives in civil litigation and that just doesn't translate to the criminal context where petitioner is the wrong doer and the second point is that the crime victims rights act which is cited in our in our brief at section page fourteen a of the gray brief makes it explicit that congress contemplated victims would have a right to the assistance of counsel in order to do things like participate in a crime and criminal defendant sentencing proceeding if you think for example about the case of if my accountant calls me up and says that i owe five thousand dollars to the i r s but actually i only know one thousand and he just pockets the whole amount when that crime is discovered i'm going to need the assistance of a second accountant in order to figure out how much i'm defrauded in order to be able to do things like participate in the criminal defendant sentencing proceeding file a victim impact statement and seek restitution you're also going to get all of the child care and transportation in your opinion yes your honor if i incurred those expenses i would have those and i think but i think that actually illustrates how they did it seems odd that this investigation could go on for quite a while and during that time  company's investigation goes on for several months child care child care for i guess anybody called up and  transportation all covered it is your honor but again that's because of the breadth of this statute it covers vis a great deal of crimes and i think that the apparent oddity is explained by the fact that congress wanted to make sure that even the stuff that wouldn't readily come to your mind it's it's i think the thing that is giving you problems on several dimensions is that the statute is pretty clearly written with an individual that dim in mind and i don't know exactly how that cuts but everything that's given you a problem with the language of th statute is because it's thinking about individuals who have the necessary child care who have lost income who participate in only a single investigation which is the government's investigation who actually attend proceedings you know all these things make sense when you're talking about an individual and make no sense when you're talking about a corporation and i'm just wondering which way that cuts and what we're supposed to do with that well i think i would honor there's no dispute that a company that's a victim of a fraud as in this case can be a victim for purposes of the m v ira that's ignalina i think you're right that that's what congress had in mind when it wrote the statute but again i think that that's because it would have been concerned that you know a child childcare expenses are not the sort of thing that come to your mind when you think most naturally about restitution but congress wanted to express the threat of this provision well i mean if that's the case if you agree that the purpose here is all about individual victims does not really pose a serious problem for you because it seems the government's effort here is really to extra lives the costs of its own investigations  corporate in corporate situations you are i respectfully disagree for this reason again congress would have been aware of the many many cases that illustrate the principle that we that we discussed in our brief which is it is very common in fraud cases against corporations for the fraud to be discovered through an internal investigation so this is really the heartland of an best a geisha and this is exactly the sort of thing the kind of stand that you can see that i believe to justice kagan that congress is purpose here or had to do with individual victims and if that's the case it certainly had nothing to do with the government leveraging private internal investigations and in corporate governance write your own i did not mean to suggest that only individual victims are covered i agree that certainly when you're thinking about child care expenses congress has individual victims in mind again i think my response would to justice kagan was meant to say that that's the sort of those types of situations even those less obvious things are what congress would have wanted to cover but we have talked so we have talked about two investigations g e s investigation and the government's investigation the statute talks about participation in the investigation only one and it seems to me if you're talking about only one hundred obviously has to be the government's i respectfully disagree on or for this reason i think that if you were to describe all of g e capital efforts in this case the hiring a forensic experts that preserve crucial evidence to the prosecution the time that they spent with financial consultants unraveling petitioners two years of fraud on accounting practices if you went to a person on the street and described everything that she capital did in this case and then asked did g e capital participate in the investigation of this offense we think the answer would absolutely be yes i think we wouldn't use the word participate would we we would say g e conducted the investigation well i think the fact that participation is a very sensible term here because it reflects the fact that the amount  the victims participation is going to vary at various times the investigation of a crime happens ordinarily in phases sometimes it starts with a state level admin an investigation sometimes it starts for example in the s c c in a civil administrative proceeding and then that is what discovers a federal fraud and the it's passed over to the government and sometimes victims are the ones who conduct an internal investigation as in justice briar's example about the bookkeeper that reveals the fraud and then the victim as judge excellent because there are vast numbers of circumstances and the trial judge will figure out what's appropriate and how congress is going to change that and instead of it being discretionary it becomes mandatory well you're going to make something mandatory so we better narrow it and be specific and then that would explain why this is limited to the government's investigation particularly when you think of hundreds of billions of dollars in restitution that is owed by people who commit crimes that is not dischargeable in bankruptcy which is never collected and throughout the rest of their lives is simply there is  collected that are really causing a problem so if congress was aware of all this and really thought let's narrow it well that would explain the differences but the problem for me is doesn't say a word does it so if you have a view your are we do and if i could just take those two points i think in your question in reverse order the first is that it's to the extent that much restitution was awarded in this case and that  restitution there are many unpaid restitution awards in this country that's a fact of congress's explicit deliberate choice in section three six six four f one a to award restitution without risk are to the economic circumstances of the defendant that's the one thing that everyone agrees on is that that shouldn't be taken into account now we don't quibble with your honor's point that it has to be incurred during the investigation of the offense but as i was saying earlier we think that the investigation of a criminal offense is ordinarily understood to include phases and some of those phases take place before the government gets involved because if acts of congress intended to cover an investigation conducted by the company  wouldn't it's wouldn't use a term like reasonable reasonable expenses incurred your honor i think that the word necessary in the statute functions in in this in a similar way there's a big difference between necessary  how would you determine whether the scope of an internal investigation is necessary what does that mean it would make much more sense to ask whether it was reasonable and scope i think your honor that necessary in this statute plays a function similar to the word necessary in the statute that the court recently considered and yes to us it means ordinary reasonable expected and i want to stress that district courts could make those sort of determinations all the time they cut down restitution orders or requested restitution orders because they find that the expenses requested were disproportionate to the task or that they weren't actually focused on the specific offense of conviction and that they were looking into something else petitioners will is categorical he wants to say that even in a circumstance where it's undisputed that the victim's investigation is extremely helpful to the government even where it's a perfectly reasonable and best patient even where the victim and take steps to minimize its expenses they still cannot get restitution in those cases if it's the investigation happens to occur before the government kicks off with this i'm not sure that g e took steps to limit its suit spence's i mean it hired very expensive law firms to conduct the investigation and you're going to have the district judge in all of these cases being asked to do that did they really have to you know have partners work on this as opposed to associates did they have to hire this law firm couldn't have done this and it's not clear to me that the congress would want the district courts to spend a lot of time and that sort of restitution litigation so you're not i think that the statute equips district courts to make exactly those type of determinations in section three six six four f the probation office report summarizing the expenses that report is subject to adversarial testing the government bears the burden of proof if to demonstrate that the amount of the losses were caused and by a preponderance of the evidence and in cases where necessary district courts can refer disputed issues out to a magistrate judge so district court simply have not had trouble in the twenty two years that the statute has been on the books making those sort of determination has another tricky one for me along the lines of what the chief justice was just asking is an internal investigation to proceed to the government's ever necessary in that in any sense and don't companies also conduct internal investigations for their own reasons they have to worry about shareholder driven of suits they have to worry about class action suits that worry about compliance with c c regulations among many other things how is the district judge ever going to be able to determine whether an internal investigation was necessary for the criminal investigation by the go you're are you're  absolutely right that companies conduct those sort of investigations all the time but it's those kinds of investigations that discover frauds and that reveal the evidence that we used to prosecute people every day you're not answering my question counsel how is how is the district judge the poor district judge supposed to make a determine which ones necessary for the government's investigation which ones not i don't doubt they help the government i don't doubt the government's happy to receive that information and u the resources private resources to conduct its public business but how is a district was supposed to decide what was necessary your honor we don't think that the investigation of the offense in this statute refers to the government's work and we think that the reason why congress would not have so limited it is for exactly the reason that i just gave because of the value that internal investigations add what we think necessary does in this statute is exclude the sort of unreasonable investigations that are that everyone would think ought to be outside the realm of possibility and it is large because petitioner conducted a massive fraud he stole twenty five million dollars in less than two years and so i think he really has nobody to blame but himself for the amount of the award but to your point about the fact that restitution awards often go uncollected again i think that really is just a function of congress is deliberate choice in the m v ira to say that restitution should be focused exclusively on the losses that the victim incurred without regard to the economic circumstances of the that he's already here was twenty five million and how much was spent that was awarded by the court alone restitution was it ten or fifteen eleven million dollars was the amount of restitution that was remaining eleven million dollars is the amount of unpaid loans that g e capital was not able to recover and again dice not just ok what's what we're talking about here this morning are the investigation and bankruptcy expenses we thought was a little less than five million four point nine million whether it maybe the total restitution award is fifty is just a shade under sixteen million dollars your honor but again to levin million of that is not disputed what we're talking about today is about four point nine million died it seems pretty clear the government would never  that on its own trying to figure out whether the restitution ought to be four million or eight million from a guy who's never going to pay any of it they would have said i think instead we spent a little time on the mass murder down the street and i'm just wondering if you're talking about expenses that the private party incurred for its own purposes to find out how to adjust its books what it had lost why should the victim be compelled to pay that order to justice ginsburg suggest just carry it on  own back when it's something that the government would never have done on its own congress was aware your honor and what the legislative history of the m v are a says is that it recognizes that frauds like this one impose costs on victims that are more than just the property that's taken although the award in this case is substantial again that's just a function of the complexity of the investigation that was necessary and that's not been challenged in this case so we're really not it's far too late for petitioner to go in and claim that any of these particular expenses were too much and they should have hired a less a law firm with less expensive fees although when district courts do make those or scuse me when when defendants do make those sort of challenges courts hear them all the time both the cutty case and the a model case that are discussed in our brief involve examples of restitution awards being a challenge and then adjusted by district courts in those ways i'm not sure that i'm so i'm not sure if that helps you i mean then you're answer seems to be well they can always litigate these things so now not only is the government going to be conducting an investigation over money that nobody's ever going to pay but they going to be litigating about it taking the district court time disfigure out whether the attorneys we should be two million or one point five million again when no one's going to get the money anyway you're  that is because congress made a very deliberate choice in the m v ira to say that restitution should be focused exclusively on the amount of loss that the victim in part and even in a case where everyone realizes that the defendant is never going to be able to pay it back which i think to be fair is not this case petitioner was quite a wealthy man before this for his crime and there's reason to believe that you know the government is believes that he has assets that will that we want time to collect afterwards so it's not the case that nothing will ever be collected but in any event i think that even in cases where restitution goes on collected it's just a function of congress is deliberate choice that the restitution system we have should measure the amount of the victims loss and the amount of the victims lost in this case includes these these expenses if you were there a question about the criminal conviction can it be used to prove liability in this in a civil suit yes your honor they're going to stop a civil court liability is taken as a given all they have to do this group of their restitution amount correct that's basically correct your honor so tell me why congress would have been worried about that when it seem more worried about the individual expenses that people are unlikely to go to civil court for well again there's really no dispute at all that corporations are victims of frauds and that they are entitled to return title to their losses but you're asking for something more than what specify here according to you as well i think what we're asking for they are a victim and the statute says that victims who encourage expenses during the investigation or prosecution of the offense are entitled to recover and you're going to accept that congress unlike other provisions that specified attorneys fees putting the whole approximate causation congress and instead chose very specific categories here and we feel i think we fit into this category your honor we fit into before but the other thing i want to say about the civil lawsuits is that's really not an effective remedy because the action moment is not about getting the judgment it's about collection and offering getting a criminal restitution award offer a substantial advantages as against attempting to pursue civil litigation in terms of the ability to recover the government has all sorts of tools that we use to attempt to recover criminal restitution awards that are not available to this government has told me earlier got fifteen million back capital the eleven million dollars that petitioner does not contest it would not be made whole because in order to get to this point g e capital had to incur substantial investigation and expenses and participating in the bankruptcy proceedings those are losses that are real to this company which is a victim of the fraud within the meaning of the embury and they were approximately caused by the defendants offense which is the definition of victim that's in section three six six three  think for all of these reasons it makes sense that congress would design a restitution system that would focus on restoring the victim to its position before the offense as the court said in dolan the substantive purpose of this statute is to award full providing for make whole relief to provide the full amount of restitution of course that is not what subsection before says is just a sort of mire pointed out that's what other statute say the offense specific provisions provide that kind of relief when congress wanted to if congress were concerned about overlooking expenses like child care and transportation it would phrase this entirely differently it would have said that you can recover necessary expenses including child care and transportation and that in fact is what congress did in the offense specific statute it said you get the full amount of recovery and the full amount includes the following categories including their attorneys fees and the kind of expenses provided here congress has the polar opposite formulation here invoking the classic used in generous formulation my friend  thirty six sixty four f one a somehow controls the amount of restitution here this court rejected the identical proposition and he when it looked at the victim and with witness protection act it said that f one is a procedural statute it does not dictate the out bounds of or permissible restitution or to have to look to subsection b in this case in order to do that mr chief justice you are absolutely correct that trying to figure out what expenses are necessary here is an incredibly difficult task the government may not think this is imposing a burden on district judges it's interesting that the judges themselves disagree judge higginson in his concurrence cited different articles and studies showing the end of the incredible burden and the complexity of determining exactly the sorts of restitution amounts and if you look at the record here we have a great example of how difficult this is to parse out page twenty eight of the joint appendix shows that one of the expenses that winston and strawn incurred incurred was looking at potential third party liability against dr van's auditor that of course has nothing to do with investigate the petitioner's offense these are exactly the kinds of expenses that a corporation reasonably incurs in an internal investigation and it's incredibly hard to disaggregate those expenses from the expenses that would be necessary for the government to incur or that the government even would have bothered to do in the first car you point that out to the district court judge here no your honor and to be clear we're not challenging this that specific line item we're just illustrates the difficulty of engaging in these sorts of inquiries in the first place in terms of private investigations a private investigation that starts before the government's investigation begins if that's fully covered it leads to deep anomalies in the statute it would mean that the private investigation could occur and they don't the corporation doesn't even have to disclose results to the government because it would be an expense incurred during participation in that private investigation there is no statutory hook even requiring the corporation to turn over what they found surely congress did not have that in mind in a statute that's talking about the investigation and prosecution of the offense with those terms and the singular a final point is for the bankruptcy litigation again my friend who is a very able advocate repeatedly referred to it as expenses in the proceedings related to the to the offense never once did it did that my friend use the term attendance at proceedings related to the offense because there's simply  no plausible construction of this statute that would include in the term attendance the entirety of expenses of litigating a bankruptcy case if the court has no further questions thank you