used the wrong standard the pre two thousand standard with respect to the government's burden of her but it doesn't change the outcome of this case and it doesn't doesn't change the outcome of this argument under under the under the law the government was obligated to  not connection connected to drug trafficking it is more probable that the proceeds that i'm sorry that the cash that was recovered from homes were not proceeds from drug trafficking and that's because  she provided evidence at the hearing that the proceeds came from a settlement that she received in connection with the personal injury case in may th of two thousand and nineteen is basically that because the control by money from the last control payment being in a lockbox among the other cash that that makes it but the last payment was made the day before the search warrant was executed so it was made on september th for five hundred and twenty five dollars and the search warrant was executed on  september th that's when they found the guns the drugs the scales and thirteen one thousand nine hundred dollars cash but only five hundred dollars in the lockbox was the controlled by money hearing was whether the funds in the lockbox minus the five hundred dollars that was identified as the controlled delivery of funds that was made the day before mingled with the with the rest of the fund make the entire funds or for our position is that the concede as a factual matter that the by money was found in the box with the other cash but interestingly there were a number of controlled by that occurred leading up to this control payment and none of the none of the with legitimate funds then the whole thing kind of confines subject to work here but in this case also i'm sometimes missing something here but the argument is that she did not knowingly totally legal that five hundred dollars that it was accidental or someone else mingled it seems to me that if they're split it does it's commingled under your concessions you have a problem but again i may be misunderstanding your argument so i want to give you a chance to clear me up on that well the government hasn't presented any evidence that miss sheely knowingly put that money in the box with the other pots but it was were other items in the in the same bedroom that were not attributable to michigan such as the firearms than we the definition of knowingly is simply that one does not act through ignorance mistake or accident and are you saying that this money accidentally got put in the lock box were mistakenly put the money in the box or that you know it to carry the preponderance of you have to step show that she didn't do it or somebody else did it or or some other explanation as to how the money got  well i i'm not claiming that the box that the money in the box was accidentally there but i think that with respect to with respect to the market my particular argument here is that that's just where she keeps her money so if she received the buy in money it's not like she is putting it in there mistake ignorance or accident right that would be the lies as it is defined yes and i see that i am out of time so i would reserve the rest for rebuttal all right thank you counsel mr duffy may please the court michael duffy on behalf of the united states going back to accepting five hundred and twenty five dollars from an undercover agent of the day or two before the search warrant is executed at her residence and that money which is marked is then found  dollar container of course and so the five hundred dollars that's found in the purse that's the bottom money there's only really one likely explanation and that is that  money from the undercover officer and as my friend mr newman pointed out this is her money that she admits this is hers in the lock box and she put it in the purse and also would you that that we actually d adopted that standard in that case what are your views on that thank you our our part of you would be this is the reason why we presented the argument is based on the concession with regard to that  if the court were to look more closely at it if the court the court for example were to not accept that concession for some reason then the government would submit that that would be one factor for the court to consider among all of the others such  as the court has indicated in previous cases with regard to other drugs and guns and baggies and digital scales and things like that being present with funds it would be comingling would be another factor for this court to consider  should the court not decided based on the michelle is concession but in the government's admits that that with her being her money and the money being co mingled there that certainly meets that standard as to whether it's knowingly commingled certainly there was there is evidence on the record for the court to make that conclusion the syrian argument that can be advanced that it wasn't actually co mingled lives the five hundred and twenty five dollars was in the person you know  all in the same walk box that separates it well that's the thing your honor is that we don't have any evidence of the record that would distinguish the money in the lock box other than what you can view it as which is a purse containing about eight one thousand dollars and a lock box that the person containing about five thousand dollars there's no evidence from say for example machine really below that would provide any insight into the keeping of those funds and going back to our twenty eight dollars jail letter that my friend mr newman started out with we would agree that it does not change the the party's positions in the case it does not change the issue here before the court we would also point out that the district court  based on the forfeiture transcript it apply the correct standard of preponderance of the evidence and that with the concessions that the defense has that she has made with regard to the presumptions and the burden  shifting the government would submit that the case is still that the district court should be affirmed for the same reasons but going back to what the district court found the district court found there was a large sum of cash that was seized during the drug drug conspiracy timeline it was seized in close proximity to drug items such as methamphetamine there were three guns including two of those guns were found in the room with the money in this case digital scales and this is over the same period of the control boxes and i think the timeline is important to note here in this case because what you have is the conspiracy charge and the indictment starts on august st and goes to september th when the executed but also if you look at the special agent allergists testimony in the district court he explains that the coconspirator kristoff talked about in the previous two months leading up to when he makes his statement after the execution of the search warrant that over those that two month time period he said that they went to burlington to the source five dollars to seven dollars times to purchase one pound to one happens of methamphetamine on each trip with a range of thirty five million twenty five thousand dollars for each pound so it and if you look at the withdrawals what you have is between july th and august th you have this twenty seven thousand dollars withdrawn and so based on what mr kristoff told the officers and based on what the bank records show there's a substantial overlap between those the thousands of dollars withdrawn and the thousands of dollars that would have been spent to purchase this a district court said an enormous amount of methamphetamine in the same period of time also point out that the government argued both facilitation and proceeds to the district court below so from the government standpoint in this case the court could affirm on either one or both of those grounds certainly for the drug proceeds the government would submit that they would be likely from our perspective that the sullivan funds were simply used as basically the seed money to invest in the inventory of this drug distribution business given the zero they have in the time that's overlapped and the reason why when you get toward the end of the conspiracy you don't see anything but five hundred dollars left at the bottom money you don't see the six thousand dollars or so remaining is that that's how quickly she was replenishing her supplies and going through these pounds and pounds of methamphetamine so from our perspective the government would submit that the all of the money in the lock box would be drug proceeds based on looking at those facts certainly if if to the extent that the defense that chile argues that she rebutted that presumption and carried her burden in this case the government would point out that when you look at the timeline again and when you look at the funds and the situation that the officers encountered the residents that day this is a pound level dealer that only have fourteen grams of me or in the entire house and yet and she had this thirteen one thousand dollars in cash as a special agent alice testified below it's highly likely that she was getting ready to reopen or reinvest that money into your inventory so that would that would also fall into a facility facilitation theory so for those reasons the government would submit that this court could affirm on either one of those either one of those grounds to find that the money was drug proceeds under either of those theories and unless the court has any further questions the government would submit with those comments thank you muted i have twenty six seconds left so i would use that to answer any questions from the court if the court ha