to have to move well beyond that argument because the government says putting that aside each of your clients last were involved  n the flow of money and this money laundering conspiracy operation and therefore all of the honey cut casts were satisfied as to each other and i'd like you please in your response to distinguish between the two defendants the real question is the extent of the involvement that she was like ministerial and that she was like a secretary and also he was doing was following the lead of mr soko who is the main actor in this case and she was doing his at his she never used that money she never allocated that money to any other person so i'm saying because she did not actually exercise that authority that she should she should not be held responsible for all that money in terms of what it what she should be able to have forfeited could do to address her early because my understanding is that at least back to really not all of the mon similarly went through accounts that he controlled is that right that's true st of all mr hurley never controlled any accounts there was a finding in kind of dicta in a case where they said he didn't control the accounts but the truth was that was about a man named de marco the markers of money control those accounts but hurley never controlled the council all hurley ever did was go to new york city and pick up fifty thousand dollars and he was involved in counting money and that's all he ever did so his not much money did he count do we know i never got an indication as to how much money he did got so i do not know well if we thought that having touched the money and what amount is in question that he never touched at all in other words you seem to be saying he should get the rest that the judgment should be reduced to zero yet you're not saying he touched zero dollars so you acknowledge he was in control of fifty thousand dollars and then you also say in the record supports the idea that he was involved in counting some unknown some i don't quite understand what we're supposed to do is a court we can't if we think that the counting is relevant to holding him liable and you haven't identified what that amount is i don't quite know how we're supposed to produce well that this is under who are know this that this judgement can't stand and you said to us how what what is the remedy you thought you saw a remedy to reduce it's either zero or fifty thousand dollars but if the evidence shows he was actually counting some amount much larger than fifty but lower than one hundred and thirty six million dollars i don't fully understand what relief you are asking to be right you can ask for an evidence or hearing below you didn't seek any of that you just said you know knock it down to fifty and i just don't know why at this late date the record would support that conclusion so i'm not sure the accounting really shows control over the money because i think the real issue under any kind is did you control the money and since since you counted or you didn't say ok here's one hundred thousand dollars here and that's all you said you didn't control it you didn't distribute it you didn't say who was going to have it or not have  thousand dollars i don't know where that comes from again i believe that's what the evidence showed when they were going through the hearings and at sentencing that's what the judge said you were responsible for fifty thousand dollars and see also have you also found that he was a steve lieutenant who would be the operative word in the statute ok what about what's your argument then suppose we if we know the record supports the idea that he was responsible for fifty thousand dollars plus counting an unknown amou what should we what do you say we should do i don't see how we could say well the answer is yes or we ignore all the money that he counted if we can do that that counts as obtaining the phantom's and yet you haven't given us any idea what that number is think i don't have a number and that's true ok perhaps there needs to be a hearing to decide if actually design of these issues as to what the amount was because i have no way of saying to you how much he got them because that doesn't appear anywhere in the record have beg your pardon you're representing the defendant who counted the money the fact that it wasn't in the record doesn't mean that your client doesn't have some idea of how much money he counted over the period of time your clients and the best position to know that information and yet you should neither ask for an evidentiary hearing nor present that any argument to the district court about that issue well perhaps i could ask the board to remember this and we can do the hand why why why do you let me ask another question i don't understand what this proceeding is about there is over one hundred million dollars i assume your client feels he can't come up with one hundred million dollars but i assume your client's going to say something like i can't even come up with a one million dollars so what is this all about is it that he has money hidden somewhere and he's trying to avoid a restitution order but otherwise why is it worth his time to have done any of  the point is it's very limiting because the government can always come back and try to have some substance making i'm sorry i didn't hear that you said it's very limiting what is limit time and that prevents you from in trying to move forward in your life in trying to build a business and trying to do anything like that because then you know your money can be taken at any time so it is very limiting to individuals here especially the couper the jury finding that the jury were going to receive a normal pinkerton type instruction which means it's all about reasonable foreseeability and so that's what they were dealing with however that did not error but you're saying that because of the instructions it why it's not identical to what is reasonably foreseeable is not identical to w tank and that's what i understand your argument to be is that correct i believe that is true and yes yes and so in that sense that that is a claim that the district court made a legal error was prejudicial to your client i had another was every hearing to allow us to do that you didn't ask for one nor did you argue that there was prejudice well i but see i think even if you even if we treated as plane air that's where i'm still having trouble because then you have the burden on plane errors going prez's so if there was a plane legal error in lying on a jury verdict to reject your honey argument as i mentioned maybe there was you then still have to show it burned your predecessors to stand still right or that on the th prong a plane air the fairness and justice of the whole thing would be such that we should rectify that error but when you haven't addressed any of these factual issues about how much control he did exercise it seems very hard to see how we could do that well the injustice to him is for the rest of his life he can't own anything he ever does is always going to be taken from him and that's very limited in a limiting in a person's life therefore if that's true with the right answer was zero as to whether he would go but if the right answer is it was twenty million dollars instead of one hundred sixty two million dollars it looks like a very different case for purposes of plane air but you've got nothing in the record to tell us which it is is it the earlier one hundred and fifty million one hundred and sixty one point or twenty five million this just no way to know all we know is that he did have a big role he counted a lot of money we don't know how much i would also see just that this court made mr sicko shooter responsible for the entire amount of this and  kosher responsible it's the opposite everyone can be individually liable for the full amount they control that's not j it's just each person is responsible for their role with respect to that money that's not joint and several ability well i mean i understand whatever they whatever monies they controlled  that i'm still making the point that there is no evidence that that all the money won one last question in the statute refers to obtain directly or indirectly with the significance of the indirectly because it could see in a case like honey cut there's no sense in which the party they are in directly obtained it and therefore to hold that person liable for the folk and see was joints of a lot of billet but in this case would they were the top lieutenant even if they didn't physically control the account you might say the indirectly obtained by have being such an operational control over or operational role with respect to all of the funds in the scheme and i don't know of any authority that rejects that theory lieutenants are people who control people who are in control why doesn't tell people what to do and and he really was not a lieutenant because he didn't tell anybody what to do ever you know he was count money and he picked up some fifty thousand dollars that's all he did for the united states i'd like to begin by addressing the honey cut issue and then briefly turning to the two procedural issues just to be very clear honey cut doesn't come into play at all  unless we're dealing with an individual who doesn't acquire possess or control the funds and all of the defendants in this appeal did possess or control the funds within the meaning of honey cut and within the meaning of this honor's question about indirect acquisition of the funds and i think it's important to note that this is a money laundering case sent money wandering is different in nature from say a drug conspiracy where one person might obtain the proceeds and another person might be involved in conduct that has nothing to do with the funds when you're dealing with significant players in a money laundering conspiracy who are either receiving the funds having the funds transit through accounts they control or playing a significant role in the laundering operation we would argue that they do obtain or quire the funds in that context but it is the rd of those three categories that matter is a great deal which is persons exercising significant control so would a person who transferred fifty thousand dollars in one hundred and thirty six one million dollars scheme be somebody who played a significant role most likely not your honor but that's not mr lee's role in this case and so then what about his role well hi in some unknown some there are factually i'd like to to back up for a moment and with all deference to my brother council the recitation of the facts this to mr hurley is substantially constrained from what the record supports the record supports that and that this is a quote that he participated directly in most facets of the overall money laundering scheme that was the district court's determination at the forfeiture stage that his transportation of the money from new york was quote a central part of the ongoing laundering operation which clearly is not consistent with fifty thousand dollars being moved on one occasion he was found to have pretty much run the coin store which was a front for the laundering operation and much of th  actually directed if we don't hold to that clean wrong and do as you suggest which is we take somebody who played a large role in many aspects of it who was involved in central portions of it and then say yep that person can be responsible for all of the fun is no reason that's limited to money laundering that would be true to a central player in a drug conspiracy scheme also who is different than a low level mueller care courier but i don't read honey cut to make it at all clear that we're allowed to do that without effectively engaging in joint and several liability if you want to make the argument that his role was such that he indirectly controlled all of the fun that's very easy to as them lead to our decision and soko jim but if you want to see played a central role as too many of the funds and therefore he's liable for forfeiture as all of them that's very different so it matters a lot to me which of those two positions you're asking us to take i don't think the record supports the conclusion that he had a central role that would allow him to exercise control even indirectly over all the funds but maybe i'm wrong well let me respond to this portion of the forfeiture judgment in the district court the st time we're hearing any challenge to the fact this is found in this case and in the record is in the reply brief on appeal and so any argument that there is a factual problem with the underpinnings early judgment has been forfeited or waived in our view so the court doesn't need to reach that question here i think you know factually the only other thing that i was going to point out is that this court said in her early itself a good portion of the money passed through companies that were nominally owned by mr hurley again i know counsel contests that now at this late hour but those are the facts of this case and the jury did reach a finding that one one hundred and thirty six million dollars of the funds that were laundered were a trip properly attributable to him and while i understand the argument that the that the situation would be different in a honey cut context with the charge that with a  all in dealing with your arguments we're dealing with here well your honor i think i i believe that the instruction to the jury would have been a pinkerton instruction right  again we can't test whether this situation is a honey cut situation even as to mr hurley but if it were then yes arguably today the jury would be differently instructed and would have to find that that ground so you can move on if you want but i think it would be helpful if the government could provide further argument on what indirectly means was not much discussed and honey cut is there some other authority we should be looking at if i may or honor i will take the court's suggestion and just tiptoe around the periphery of that procedural issue without getting into the murky waters of corum novus i would note that under this court's quorum notice cases even if the standard for core nobis is satisfied it's still a question of discretion whether or not to grant relief and in this case i don't think it can reasonably sit beside that the district court used its discretion in denying relief but moving back to the question that your honor raised regarding in direct control of the funds  first factually because we've been focusing on mr hurley i think it is important to note that with respect to donna soko sure it's a much clearer case the record is very clear that one hundred and thirty six million dollars  and in fact is the district court said that number was under inclusive for forfeiture purposes counsel i did not ask you about donna soko shinai astride but would you please answer the question with respect i don't know that there is a particular case i can point the court to with respect to indirect control i think that if the court looks to some of the cases that the court cited in its most recent soko should decision most  particularly the tanner decision out of the nd circuit which deals with financial managers who are handling funds that there can be a role for individuals who handle the funds as they are transiting through accounts or as the money laundering conspiracy is carried out other than saying that in the context of money laundering when you have a major player whose actions are integral to the painting transit and laundering of the funds then in those circumstances that individual indirectly obtains those funds i don't know that there's a better answer i can give to that your counsel the respect of the issue we're dealing with now th record so what harvey well again we certainly don't concede that it's a legal error but accepting that for for purposes of argument if i could just conclude yes sky had the only thing that i would note there to the question of the effect of this is there hasn't been any collection by the government in over a decade and there is certainly support for a smaller amount of forfeiture even if it's not one hundred and thirty six million dollars and there's arguably a question of whether the issue is even ripe as to mr hurley in light of the absence of collection and although that's not something we argued explicitly are brief the court could of course affirm on a daily basis the judgment has entered but putting that aside i had thought you would raise the possibility of forfeiture or waiver as being independent ground for us designing the case and i just want to work through what that was me contesting that he had direct control of all the funds he was saying that even though they all passed when it comes you controlled she still wonder honey cut so i don't think he did make an actual argument we would then just applied plain error analysis we thought that there was a legal error in the district court's ruling here and we would then go through three and four you also mentioned waiver and i just wanted to work through waiver with you because one thing that just  it looks like early nothing but joins the coaches argue the district court as cited the honey cut issue as this a coach said based on the actual finding about where the funds went so it was fully aware of the importance of determining where the funds went and then with respect to hurley notwithstanding having that in view rules against hurley based on the jury finding without having made a finding about where the funds went so in that circumstance i don't quite see is there really a waiver in the district court as a gauge with the fact that you will question then i don't know what you just help me with that is an unusual posture because it just court on the one hand seems to get that under honey cup maybe it matters straight funs but then having said that about the coach rules against hurley without having done that analysis well i don't know that i have a good answer other than that mr crawley's the pleading in the district court was essentially a pro se me to application and the only thing i can say is i think that the record you know that the early decision and the other decisions do support a more substantial role and i understand that there is a fuzzy line there but i think it's more substantial it's supported and the last thing i would note is that mr hurley would arguably have an opportunity to raise one hundred cut issues so for example at this late date if the government wanted to take anything for mr hurley we would have to bring a substitute asset proceeding under one thousand nine hundred and sixty three m and say we're now we want to judgment now your honor that we're entitled to collect x for mr early to satisfy the forfeiture judgment and in that context if there truly were it wife money cut issue it could be raised and litigated in that context