good morning my name is michael goodwin i represent ron kaufman we have in our brief before this court but for a number of issues that we believe merit reversal of mr mr coffin's conviction for purposes of today's oral argument i have recuse which i have prepared comments on for that for your honour's the first would be that the all the convictions in this particular case relating to global energy group must be reversed because those counts  require extra twit territorial application of section ten be in violation of the recent supreme court decision in morrison secondly the trial court deny mr kaufman there is attorney the right to fully cross examine improperly admitted a hand truck full of bank records without proper authentication or certification to satisfy the exception of the hearsay rule and finally the government's expert in securities law  improperly testified that the actions of mr kaufman subjected him to criminal liability as to the morrison issue first there are two issues before the court i believe first court needs to political here because many of the same arguments are made by the government against this presumption applying for most cases were made there first off in the in the case of morrison itself the court didn't make any distinction between civil cases and criminal cases and i believe it would be improper for for there to be essentially two separate interpretations of one statute if it's good enough for the civil law it's good enough for the criminal law i don't know i don't know how many your honor i would suggest that that the same policy reasons would apply in a civil matter the the policy reason against the presumption is that while certainly the congress makes laws to protect against united states it doesn't i think to paraphrase some of the cases it doesn't propose an act laws to rule the world and the same policy concern would be would be would be applicable here is just a story put it and they put this in the in that i think it's a quibble case in the supreme court recently no nation is every yet pretended to be the custis more room of the whole world and the government in fact from way back in i think in one nine hundred twenty four that case itself they said that in situations in crimes against private individuals or their property like assaults murder burglary larceny robbery arson or frauds of all kinds the the crime must of course be committed within the territorial jurisdiction of the government  aimed if the statute is aimed at protecting the right of the government to defend itself such as the the crime in bowman where they'd actually contract it or there was a crime against the company owned by the government then the united states government would have the right to defend itself extraterritoriality extra territorially and therefore didn't apply in the boman case after the court determines that the court would then need to  assess whether there was any whether the sale of the securities occurred in the united states or abroad and here certainly was not a domestic transaction the office was in canada the salesmen were in canada the buyers were in canada the purchases were completely interacted in canada the government's argument is that well eventually after the sales were completed the money was sent to an escrow account of mr kaufmann's in kentucky that would be similar to suggesting that if i went to a store and and purchased something here in cincinnati on main street in a particular store used my credit card well well i guess there could be peripheral action but that was even the case in morse and that there was some peripheral activity afterwards that occurred in the united states it's the transaction itself that that i think the court has the courts have focused on as to whether or not it canada when they had the contract that was signed for the purpose of the securities at that point both parties have have contracted both parties have have accepted liability for their side of the bargain and the transaction is complete case mr warren was permitted to opine that that the actions of mr kaufman a stablished that he was subjected to criminal liability essentially he was able to say as an expert here's a standard of law he violated the standard of law he's guilty and that goes far beyond what a what an expert is permitted to do and in fact violates the risk of violation here is where mr kaufman was an attorney and this this  found the danger in the case of bennett versus durham were recognize that we have to carefully interpret these securities registrations because otherwise it might expose securities professionals such as accountants and lawyers whose involvement is only the performance of their professional services to liability even though the buyer does not in any meaningful sense purchased the securities from those people that's exactly what mr kaufman was doing here he was performing legal services for this client and it's improper to impose criminal liability on him for a actions of this thank you and i think that's significant because with respect to this appeal appeal number six zero nine zero timing is very important what we have here in this appeal are interest and real property that brian kaufman transferred to his wife meggan in december of two thousand and seven that was ten months before the government filed a civil forfeiture complaint it was several months before they even opened their investigation of mr kaufman the transfers took place two years before mr kaufman with him died and the transfer took place almost three and a half years before he was convicted and all of that is significant in light of this court's an urban bag actually explicitly rejected the application of relation back that u s b mccain had applied in the for cert so what we know from her comeback now is that the government cannot acquire an interest in substitute property unless the defendant has it at the time of his conviction so assets a defendant has that time that has that have no link to criminality could be subject to forfeiture provided the government meets one of the requirements of a fifty three p one but assets that are transferred prior conviction in this case several years prior to conviction cannot be considered substitute property or not property of the defendant as required by twenty that's of course one of the issues the government raises and i think there are a couple of reasons for that one generally in one particular this case forfeiture as we know from libretti and a host of cases that have come since that time it's part of the defendants sentencing in this case brian kaufman of course is that with a convicted defendant so with respect to these forfeiture issues we're talking about we're technically talking about part of a sentencing so for that reason we believe mr kaufman does arguing making kaufman's interest in the property bryan kaufman is that he's not advancing an argument under twenty one u s c eight fifty three in those are petitioners claims under that particular statute and that's not what we're talking about here is challenging on this appeal is the fundamental and threshold issue of whether the government has met its burden of proving by a preponderance of the evidence that these assets are subject to forfeiture at all and with respect to that issue if mr kaufman doesn't have standing to challenge it then truthfully nobody does what we would end  she doesn't have the ability to challenge it at this stage of the proceedings she would have an ability to challenge for fear of those assets in an ancillary proceeding why's that and that's been done also as of as of march but i think the problem with that that is correct but no one could challenge it at the initial threshold part of a forfeiture so for determining whether the asset should be part of a preliminary order forfeiture if mr kaufman doesn't have standing to challenge the government with respect to whether it's me burden of proof nobody can so what would happen is and what did happen in this case is the asset goes into an amended preliminary order forfeiture and then months go by before anybody can challenge it so you do have an impairment of that's correct that is correct some requirements regulation law whatever that prohibits her from immediately she i think there are a number of cases that say in fact there's one from the should you know what rule thirty two point two provides is that it should happen as soon as practicable and i think the idea that generally speaking is it should happen within thirty days in this case that didn't happen and then in many cases that doesn't happen because what happened here is the government requested actually quite extensive discovery in this case so we it we did have an ancillary proceeding but it was not until march of this year standing here today we still don't have a final order of forfeiture and i'm not suggesting to the court that that's the way it should be we've been advocating that it should move far far more quickly than that i represent meghan kaufman as well of that proceeding but in this case and in others that we've seen in the galleon case would be another example that ancillary proceeding happens a considerable amount of time after the preliminary order is in but the fact that he goes forward it all sort of undercuts an argument that no one can challenge this if kaufman can't but the problem with that judge certainly does have an ability to challenge the forfeiture but it's really not on a timely basis and frankly this is the poster child of that argument because there's been an inordinate delay in getting to that second part of the process what this appeal really is about is whether that second part of the process has to happen and and i suppose more fundamentally the issue is does the government with respect to the substitute assets even have a burden of proof even have a burden of proving that they're subject to forfeiture in the first instance because what we've got here is a situation in which the government acknowledges that these are subst substitute assets acknowledges the holding it back which says that once they've been transferred by the defendant prior to conviction they can't be treated that way but yet says district court we will prove to you at some not yet but at some point that these were transferred fraudulent leave such that they should be set aside come back to brian hoffman and be treated as a substitute assets in that respect when those issues we thrashed out in the ancillary proceeding  and they have been at this point to some degree but i think what's missing from this particular appeal in this particular case is that the threshold issue of whether the government has to meet its burden of proof at all it's really a two step process so the government has to prove by a preponderance of the evidence that the asset is subject forfeiture if it does it goes into a preliminary order forfeiture and then that starts the process for getting to an second part where third parties can come in later and i think conceptually it's has to be very near in time but practically that doesn't always happen that's the part where the third parties can come in and argue it but in the end or a bit of looking at a period of months or even years that go by before that can take place so all mr kaufman is really saying in this case is the government has to be put to the test of meeting its burden of proof on this initial element ok thank you thank you appellate levels unfortunately he's experiencing health issues recently so he asked that i stand in for him today and i appreciate that opportunity given the time limitations i'd like to really focus on the issue that i think is most concerning for mr moby's perspective which is the seizure of documents from mr kaufman's law office and then the district courts subsequent application of the crime fraud exception to eliminate the privilege that potentially could have applied to those documents by way of background just to review law enforcement by virtue of search warrant seized almost all of the documents that were contained in mr coffin's law office and of course mr milby was a client of mr kaufman rather than actually submitting the materials to a special master the government decided to employ taint team and the team was comprised of course of attorneys from the u s attorney's office in the eastern district of kentucky but also some support staff members as well that work in that office and i think this is where the problem begins to arise from the beginning of litigation in this matter the assistant united states attorney who was the lead trial attorney in the prosecution of mister admitted that he reviewed a substantial number of the seas documents long before the district court or any  other special master even the defendants had an opportunity to review them to make assertions of privilege and actually this is the united states attorney who was the lead counsel at the trial indicated that this was his standard operating procedure and this happens regularly in cases where the taint team is employed in fact the team team turned over thirty nine thousand one hundred fifty four of the forty two thousand one hundred three total pages of documents that were seized from mr coffin's law office and this happened before the defendants an opportunity to review the documents before they had an opportunity to a certainty claims that's almost the entire universe of documents that were seized with a team decided to make a disclosure to the trial seem again without following any of the guidelines that are promulgated in the department of justice memorandum that describes the requirements that assistant united states attorneys who are involved in cases where tainted are employed should follow part problem once the once the dogmas have been turned over sixteen months before the defense of the opportunity to review them but the government had access to these documents long before continue their investigation  returned to their injury sort of superseding indictment my concern is that also once we've started to litigate each individual document whether with regard to whether or not the privilege applied and the for exception applied it is our position that the the district court's rationale and methodology was flaw we believe that it's a two part examination that must occur to determine whether or not the the first step would be that the government has to make a prima facia showing that criminal activity actually eventually could have occurred and then also as a second step each individual document the government is required to show some type of connection to that cr but in fact whenever we were in the process of litigating each individual document mr murphy requested that the court make on the record findings establishing the connection between the alleged crime and the document and the court indicated that she had made the finding that criminal activity had occurred and that it was the defense attorney's responsibility to step to develop the record and in fact requested that the defense attorneys explain why it is that the crime for exception should not using the proper methodology and then proceeding again with  s i said i think that the way that the procedure was handled was inappropriate and i think that if we were to relive again we may find that some documents that did come in could very well have been court specifically noted that a government state team review of documents is far riskier to privilege than is a judge's in camera view also taint teams present inevitable and reasonably foreseeable risks to privilege where they've been implicated in the past and weeks of confidential information to prosecutors and also the knowledge of i think it's very true there is an inherent conflict of interest the government state team may have an interest in preserving the privilege but also possesses a conflicting interest in pursuing the investigation and human nature being what it is ok and we sometimes think team attorneys will make mistakes or violate their ethical obligations i i do acknowledge that mr grant noted in his reply that in a sense my argument or our arguments would potentially require maybe a kastigar like hearing and this court has ruled that issues of attorney client privilege communications do not necessarily implicate the four reach of cast ago but given the fact that these documents were seized and were not turned over to the defense for sixteen months and that the government proceeded to continue with its investigation pursue another ind i think it's highly probable that some of these documents they were used a derivative lee to continue the investigation which i believe could potentially establish some type of prejudice please the court john grant for the united states starting with the taint team argument this court held in the war shot case that the defendants are required to prove they have the burden of proving that there was direct use privilege documents at the trial and milly's counsel has just about admitted that that never happened it's important to note what judge karen caldwell did below in trying to protect the privilege she had for day long hearings in which every objection to every document that the defendants raised she reviewed each one of those claims now to review each one of those documents she only determined they were to review and a lot of the argument was about whether the lawyer defend it mister kaufman whether he was actually involved in the fraud and post conviction i don't think there's any question about that this is a gentleman who is very much involved in the fraud so when the government received permission from the court to go and seize documents from her his law office and these are documents that the government then admitted to prove the fraud then of course the communications between mr kaufman and his client mr milby were covered by the crime fraud exception but this court indicated in the case just discussed the enter a grand jury subpoenas case that although the taint team would be inappropriate in the context of getting documents to the grand jury and dick the court said that the tainting procedure is appropriate and is respectful of the privilege and not injurious to a privilege in the context of a search warrant  the government has already acquired the documents they complain that well this wasn't fair because why didn't they take all these thousands of pages the document documents either to the court to the magistrate judge or asked for a special master well the defendants knew right away after the search this was the procedure that was going to be used and they never objected to it they had a remedy to go directly to the court and say judge we think that these documents should be given to a special master now what happened here the united states was not at all careless in the procedure that it utilized in the ten thousand review the taint team review was conducted by attorneys that were not affiliated with the prosecution they were in satellite offices not in the main office where the trial team located they separate all the documents into three categories documents that they believed were covered by the privilege documents that they thought were possibly privileged and then documents that they thought were not privileged and that the documents that they determined were not privileged those were given to the prosecution team all categories of all documents were given to the defendants the prosecution team then looked at the documents that the taint team had determined were not privileged and then they decided which one of them which ones of those documents they were going to seek admission at trial then judge then the defense objected to nearly every document and urged judge caldwell to exclude them as protected by the privilege then judge cowell in these link the proceedings reviewed each document individually and made her findings that either they weren't covered by the privilege or they were or they were exempted under the crime  exception so it was a very careful review process but regardless of the process the war shut case says the defendants have the burden to demonstrate that the privilege was damaged somehow through the admission trial with privileged documents well the defendants we know that all the exhibits are trial many of them are are filed in the opin the seas that we follow electronic with with the court if they do if there is some claim of any possible privilege or some claim that the attorney that the crown fraud exception doesn't cover it then they have every opportunity to do that the court made its finding they do not allege in their brief or today at oral argument that any of those findings erroneous so really don't think there's any claim here because there is no there is no showing of any breach of the privilege and this court also said in the war shack case that the government does not have to prove that there was no derivative use that's clear in the wors case this court said that they all doubt that the derivative use kastigar are would come in the context only when there was compelled testimony which did not happen in this case now discussing the issues that mr kaufman raised the morrison issue there is divergent opinion among the lower courts regarding whether morse morrison applies in the criminal context i do not know of any court of appeals opinions the divergence of opinion is in district court opinions there is a district court of opinion that we cite no brief from the district of columbia which categorically says that morse and does not apply in criminal cases named i think if that is the case they cite in their reply brief that is the district court opinion i may be incorrect i don't i did not see any court of appeals opinions there could be something recently but i checked recently i didn't see courts and in that case all aspects of the purchases occurred outside the united states so the supreme court said in to the  act the focus is not upon where the deception occurred the focus is on only where the purchases and sales occur and to prove to bring that case in the united states courts the plaintiff must show that there was a purchaser sale in the united states so for example if if these securities that were sold on foreign exchanges have been sold on the new york stock exchange then morrison wouldn't bar that lawsuit but whether there whether it applies or not in this case this court doesn't need to address that issue because even if morrison applies then it's not fatal at all to the securities fraud counts in this case and that's because the purchases did take place in the eastern district of kentucky the global investors who were located in canada wired their money to an account at central bank in lexington techie an account that th defendant brian kaufman controlled so the actual sale didn't play did take place in part in the united states which is why the corresponding wire fraud counts there is jurisdiction in the eastern district of kentucky because the wires were to the to the bank in lexington tacky and this was an account that brian kaufman control to this to say that all the transaction all the fraud occurred only in canada is is not correct the argument relating to the expert testimony the complaint is that the expert talked about criminal liability well what was not discussed was that was a question that brian kaufman's attorney asked the expert he asked the expert quote simply because someone does that whatever they were talking about simply because someone does that doesn't subject them to criminal liability because someone else did it does it and then the expert said well you know in my belief it does this court has said that if you will listen testimony you can't be in claim on appeal that the testimony that yourself elicited is wrong so the question about criminal liability came from brian kaufman's attorney only that yes yes that was that was the only statement and he answered the question of course he didn't object to his own question because he asked it so he is barred from from arguing that  this course since he's the one that actually elicit the testimony regarding the the forfeiture issue this course this court stated in the urban best case that the ancillary proceeding is the so avenue for a third party to assert their interests now brian kaufman second attorney what he's complained about is is that somehow we didn't meet some kind of burden to show that brian kaufman owns these substitute assets is set up in determining the plymouth judgment the united states is only taking assets owned by the defendant were only seizing his assets now he claims that these assets have been transferred to make and so his argument seems to be circular because he's saying i don't have an interest yet somehow i have standing to assert that i don't have an interest well if he doesn't have an interest in the substitute property the united states has acquired nothing from him if he has an interest we have acquire only his interest and nothing else now he claims that prior to the indictment all these assets were transferred to his wife and of course in ancillary proceeding megan kaufman is arguing that those were not fraudulent transfers and the united states is arguing that yes they were now if she loses that and if judge call well makes a factual determination that they fraudulent transfers and therefore the united states is able to acquire all the at all the asset because she doesn't really have a valid interest and she certainly can appeal that and her attorney below who is who is this gentleman here can then come to this court and raise the arguments that he's raising now big and the interesting thing is that even if brian kaufman did transfer those assets to his wife then the fact that he's still married to his wife he does have some kind of marital interest in in those properties so at a minimum the united states has acquired whatever that interest is and to a maximum we hopefully have acquired the entire property because we're going to meet our burden in the ancillary proceeding so carolina that the government seized that was part of the money laundering conspiracy and that that condominium on paper is owned by macon sr so she would have a claim as to that  urban back there was a huge amount of money that was discovered that was buried in a golf course that and so the government then sought to seize that from that had already been incarcerated and convicted the government sought to seize that money and the issue was whether the creditors where or whether creditors in the bankruptcy court were entitled to have a claim to the money and this court ruled that the united states did not give them adequate notice but the rebut the court then said i remain the sole remedy is to go through actually twenty issues that the defendants have brought to this court and i would very much like to discuss any of those issues if the court has any questions about those if not i will be happy to rely on our brief  true so we could not use the rule of evidence to actually present the documents itself then it katie we did not do that but this court has held in many other courts that to prove authenticity of course we have to just prove that the document is what it purports to be and the showing can be made only with quote some competent evidence and it can be shown strictly through circumstantial evidence the official appearance and contents of bank records represent circumstantial evidence that the documents are what they purport to be here there were two groups of records there were records relating to the first part of the prob of fraud which is  the testimony was that the that the securities and exchange commission had acquired those records through a subpoena and they the bank records that they acquired the reason that they asked for subpoenas for those accounts is because they had received checks this s c c had received checks from complaining investors who had lost money showing checks that they had mailed to mid america and of course they  looked on the back and that's where they got the account numbers so that shows that these records related to the fraud because that we knew that these were valid checks that had been returned from the bank showing that the deposits had gone through these account kentucky the bank records looked like bank records they they had the appearance of being records several of the records had been kaufman's name and address on them and it and very importantly all these records were completely consistent with the rest of the testimony in the rest of the case so what experts when they when a witness said i'm wired one hundred eleven thousand dollars to lexington there was an entry in the bank records that says it was one hundred eleven thousand dollars so if you get all the money flows in the records tied into the rest of the proof with the global records there were signature cards that were produced by the bank and there was a witness who was for mayor with brian co signature and said that was his signature that was in that another way to to prove they were they were authentic so certainly there was profit evidence and there was circumstantial evidence for all these things and in typically of course what happens is we have the united that was the course they were not handling a criminal matter and that they were strictly trying to eliminate these folks from training securities when the united states in and hared to the case then we were we were already in the position of dealing with how they had acquired the documents so we were not able then for us to actually get certifications we would have had to gone back and resupply all the documents get certifications and that would have been a lot of a lot of resources to do that course when when we when we asked for documents from banks the united states is required to pay the bank for all the documents and we are you had all the documents but you have  was important only one of the factors improving circumstantially that the documents are authentic is the fact that the defendants do not claim that they were not authentic that's actually a factor in circumstantially proving that they're authentic and of course the defendants are not claiming that they're not claiming that the documents were not authentic and the doctors who were not did they object to the introduction of that trial yes i think they did yes and the court admitted them and so the stayner of view would be a if you respond to that either you tell me that my recollection is wrong or i don't respond well i don't recall that being the issue that they raise in their brief but certainly they had every opportunity during discovery to review all the documents and what the what the documents themselves were not if they were and if they were introduced but they were summary proof actually that was that's what the jury heard so even if the documents are introduced they didn't really need to be introduced because we actually used summary testimony from a file from two financial analysts that explained all the money flows and there were charts and that kind of thing that were admitted so that the the what the jury heard was a summary  actually admitted but but in terms of as exhibits but but in terms of what was presented to the jury in terms of testimony they were summary evidence for the different two different financial analyst explain the flow of money what you know that they that they they explained how much money came in from the different investors into the bank accounts and then how much money landed in the defendant's pockets where the transfer of money occurred in terms of supporting laundering how the money laundering how the condominium was purchased how the yacht was purchased how money was hidden from the from the investors and put into an investment account that megan kaufman controlled so ok things documents  present summary perv without admitting the underlying documents was this summer group of two yes well that they were the summary that two analysts who testified there were objections to two portions of their statements and alleging that they were given opinion testimony and as to those two statements the courts that stain the objection and then the rephrase question was not objected to that's actually one of the argus on appeal that these two analysts gave opinion testimony case of why the rule exists for summary experts to testify the number in nature the documents cry out for explanation yes the case was extremely complex and the district court record exceeds ten thousand pages a three week trial the very difficult for a jury to understand this evidence without having summary proof and having financial analysts go through all of the money flows if there are no further questions about any other issues or not thank you so i believe the the complexity of the case is the reason for the prejudice what these documents with these bank records there were was a hand truck full of defense objected to them coming in they also objected to the summary initially the government proposed this super huge chart with all these little diagrams we couldn't even read it when we were seated saying that this money went to here and then it went to here and then it went to here and then it went over here and that was excluded that chart was excluded but what happened  d the records they were admitted into evidence but the jury looked correct well i don't know what the jury relied on in their deliberations but they were admitted into evidence as an exhibit the jury had access to them could have focused on whatever bank record they wanted to in produced there was no indication prior to to just just plan a trial within the week or so before i believe it was when defense learned we're going to admit these fifty thousand pages of bank debt documents or whatever it was ten thousand pages i'm not sure the number but it was a lot  so the coup were excluded this massive chart but then allowed in the bank records and on the fly the government came out with these other summary charts so while trial is going on they're experts as oh well are big charges excluded let me make some little charts purporting to track these monies to these different accounts so that we can create this impression for the jury that that there was some shenanigans going on with the financial accounts yes we will i mean i don't know that what that was a specific issue we objected to the opinion testimony of the of of those individuals what they were analysts and certainly a could come in and say this amount was deposited but what that what these analysts did which was different was these analysts try to say well let me show you where this money went it went here and i trace it came over here and then it went back over to this account and that's improper and that's more than simply stating and numbers or saying you know i'm your summary that's providing some type of expert opinion without proper proper basis and without proper notice to the defendants and we did object to that and that's one of the issues we raised on the brief but the question that the judge was on was the point that sometimes when you have a truckload of documents  records were completely full of hearsay and that's why under eight zero three six that exception to the hearsay rule doesn't just say and get him off indicated any way you can government it says to avoid the hearsay problem you have to have these business records authenticated in a particular way pursuant to a think it's f r e e nine zero one eleven or twelve and that's the exception where you bring in the custody of the bank because as chief judge better suggested or a certification and that will be hearsay rule says those are the two ways you do it to get around the hearsay rule and the government did neither of those two things and we don't know that the jury didn't look at it and say boy look at these big amounts of money that we're going to an attorney i don't understand how he could make this much money he must be guilty or he must have been in on it and that was the evidence throughout the evidence that that he was involved in the fraud was not evidence it was the argument of the government the evidence was that he he he provided legal advice he looked at documents he wrote some of the documents he did some blue sky filings he did the things that this court in bennett versus durham said were the typical work of a security lawyer and then they had mr saskin coming in who who had this deal that we were able explore what his life what his liability was and he came in and said oh kaufman was in on it and for saying that his case was dismissed against him and he received no penalty here just at the ontario securities commission and then the other evidence was this expert that they had mr warren who came in and said that not just the one quote that i talked about earlier but also throughout his direct testimony as well said here's the standard and the standard is what's set up by securities lawyers when we have our annual securities meetings and talk about these things not to have this rule not a criminal statute but those things and a violation of those things is a violation of the law he testified here's what the law is it's a violation of the law to violate these ethical sense or these i'm sorry not the standards but these standards that we decide on in our meetings and that it imposes criminal liability so it was really an end in defense counsel mr roman's attempt to clean up the mess that mr warren volunteered that in fact you know it it makes him criminally li i think one of the things that mr grant said kind of drives at the point of my appeal in this case and that is his statement paraphrased was if the district court determines after the ancillary hearing that there was a fraudulent transfer then brian kaufman has the property and that's the whole problem because what they've done is punted the issue of whether this is property of the defendant as required by a fifty three peat to down the road that's something they have to do at the outset to determine whether it's for football at all it doesn't go to the ancillary that's a decision that has to be made before it goes into a preliminary order of forfeiture and that's where they fail to meet their burden of proof and in fact  they could say that but they would have the burden of a stablish ing that he actually has an interest in it and the way the world have to  honor all they have to do is establish that he has some interest in it and what we have here are properties in which he had no interest at the time of his conviction there is no marital interest of making coffee and has a will and he had conveyed his interest  but if you take that and that's part of the government's argument i think if you accept that that what the government saying is that brian kaufman has always had an interest in these properties you know will prove later how this was a fraudulent transfer but as a matter of law he's always had the property interest and if that is the case then he certainly has standing to oppose the government's attempt to forfeit this property on the basis of what we're arguing here but his main opposition is that he doesn't have it and that's exactly what the defendant said in u s p o del which is a case out of this court as well and what the district court says is we've heard what the defendant has to say about the property but i had the district court judge still have the obligation to determine whether this is a formidable asset so again regardless of what mr kaufman says the district court had an obligation to determine initially not after a mainstay or hearing whether this is for for the ball as substitute property thirty really is the statute because in all the cases that referred to the government's burden it has to meet its burden of proof somehow and in a here what it did and in fact this is a great example of why the argument should fail here what they said is this is a fraudulent transfer and it was because back in december of two thousand and seven when these transfers took place gary milby was under s c c investigation and mr milby was one of mr kaufman's clients and therefore surely mr kaufman suspect that he suspected that he would be investigated or maybe sued or maybe even prosecuted and what the district court said to that is that's not enough that's not enough to establish that these were fraudulent transfers but despite having said that despite ircam back coming out of the interim during our briefing they were included in the preliminary order forfeiture anyway so that's the problem we have i think if you consider beyond this case what would happen if the government's right i question whether urban back has any meaning at all with respect to substitute assets because of the government c'mere really say judge these transfers took place many years ago but we promise we'll prove to you one of these days that they were fraudulent transfers there's no point in talking about relation back with respect to substitute assets it would be a meaningless discussion and our comeback would be a waste of paper on that issue so i what the government is saying is that this property was not involved in the crime so they have specifically said in fact in the indictment they said these are substitute properties and by other major substitute properties can have no connection to the crime middle of their property absolutely those are twenty one u s c eight fifty three a properties the ones that are involved in or proceeds of crime eight fifty three p properties or substitute assets and really the whole discussion in an urban back and in the prior opinion impair it which did involve not a lump of cash but real property was whether age fifty three c which provides the relation backtalk applies to substitute assets as well as those assets involved in or proceeds of a crime so what this court has failed through both parent decision and urban back is that that provision see relation back doesn't apply to substitute assets now it certainly does to the other ones the ones involved in the crime and the government steps into the defendant's shoes at the time of the illegality with respect to those assets but with assets having no bearing on the crime no connection with the crime that's where there is the disconnect in  relationship that a relation back does not apply and i think i'm out of time unless you have other questions  ruefully i just want to reiterate what i believe are can are our greatest concern is about the tainting procedure that was used in this case of course today we're concerned with mr milby use so substantial rights that were implicated but really the larger issue is that the government has no real guidance from the courts about the proper procedure in a situation where they use a tainted and in fact in this case the design they've already designed the room got ons apartment justice and they didn't follow  again here we have the seizure of every document from the lawyers office we have a review by members of the u s attorney's office including people who are not as arnie's we have disclosure of the documents that those people determine are non privileged to the trial team prior to the defense ever having an opportunity to litigate the issue then we have sixteen months that passed during which an investigation continues more superseding indictment is sought and returned and then finally we we have the opportunity to  get our hands on the documents my concern is that given the due process implications that our that are at issue here in this case and the circumstances that exist in it give this court an opportunity to draw a line in the sand and say when the government uses the taint team which we have already recognize that's not the preferable means of dealing with potentially privileged documents they have to abide by certain rules they have to follow certain g i think again just to reiterate the judge's procedure for determining whether or not it particular documents privilege was flawed therefore it's very difficult to point to specific documents say this was you directly at trial given that potentially the that's a very good question of course i wasn't the the trial attorney at that well i mean because that the answer to that tells us what the standard here is and if in fact the answer is that you didn't which i believe is what mr actually for mrs kaufman as well expressed serious battle about the legitimacy of this procedure we had pretrial hearings to determine to attempt to determine what exactly had been done to this point because again we were sixteen months after the fact not ever having had a chance to look at the documents i would assert that the fact that we proceed in that manner should be considered at least some objection to the procedure in the end we we we proceeded as the court suggested that we proceed but i don't believe that the process was appropriate but didn't the trial judge actually make a ruling on each and every document that you specific challenge that she did and my concern with that ruling or with her rulings in that regard or that initially she made the prima facia finding that there was criminal activity potentially occurred in these documents could be in some way related but in the end when we're in the process of actually determining whether or not they are related it was the defendant who was supposed to i guess rebut the presumption that they were that is my concern i don't believe that that that follows the president of the circu and the did in regard to a document that is the defendant's document either in his possession or generated by him he is in the best position to demonstrate the problem with using that accurate i agree with mr milby of course did not have access to these documents they were writing in his lawyers possession and then they were seized and again a long period of time passed before we ever had an opportunity to even review them i do agree though that a defendant is in the best position to make some type of judgment call on whether or not something should be privileged of course attorneys probably are better at litigation that particular issue or determination terminations in that regard