for a bottle of their three points that i'd like to address in my oral presentation today first the whole question of whether there was sufficient evidence to convict my client for a violation of section six six s secondly whether the agent identified by the government in the indictment and in its attempt to prove its case was whether whether gary cole was really an agent of any of the entities involved in the transactions and then third whether the case ought to be remanded to a different judge of the case is remanded so with respect to the the first point which is our main point that there was no evidence of a violation of six six six we have to remember that six six six requires certain things and the ninth circuit this court has said multiple times that there has to be federal money going to a government or a governmental agency that agency has been gauging transactions those transactions have to give rise to or be connected to the fraud or the bribery or the kickback in this case none of those things were met there was evidence that  the tribal government there is a tribal government is it is there is is there a separate is there an incorporation requirement or separate registration is a government requirement does it have separate legal council to have a separate office well i don't think it's a separate corporation i think responsibilities in governing the tribe or are they all members of the tribal council there are two there are two things and there was some confusion there was it there's something called the tribal council which is my understanding is like a town council meeting people from the tribe or adults from the tribe come and speak and talk about things and then there's the general council and we've in the record we have included the general councils resolutions by general council your spelling council c o u n c i l s e l c o ok so there's a general council what's and what is that that's the governing body of the tribe that is some subset of the of the members of the tribe correct ok and as i can have people who are not on the tribe not as far as i know ok so it's a subset all right now is there a tribal member who heads the tribal e p a somebody in charge of the e p a committee or i don't think there's any evidence in the record about who ran the tribal e p a i think they had a non indian employees who were who ran the drive is it physically located in the same building as a other parts of the of the tribal council or tribal or general council i believe the tribal e p a had its own building on the reservation ok you ask a maybe answer a foundational question that might receive these that i think your premise is that the the ten thousand dollar grant art that requirement i think is one point seven million but if we went to the tribal e p a right and that's the premise think that what the record tells me when i look at the documents that were submitted with the statement of stipulated facts is that the reason the recipient organization identified by the united states was the e p a the tribal e p a correct and i think that your brief tells me that but the grant proceeds are listed in the tribes financial statements under special revenue fund at your age fifty to fifty one what do we do about that it's i don't i think that's perfectly consistent with what i'm saying and that is that the tribe has an agency it it separates out its funds differently and then over here it's completely separate the tribe also owns a corporation will that this sort of gets back to judge by b s question the extent to which the tribal e p a is a separate entities separately incorporated in what is the law really require for this conviction every transaction alleged in the indictment every transaction that was paid for had nothing to do with the crime it had all to do with enterprises corporation of the six six six conviction there has to be an organization might be a tribal government but it could also just be an organization right as long as it's the same one that receives the speaking right as long as it's the same like receives the government funds and then engages in this scheme or is the victim of the scheme isn't that right right and why can't that be the tribe if you say it's the tribe and i don't think you do because because if i can second circuit case from a while ago the seemed to be a drug case the the second circuit said you don't trigger six six six because you know the parks department of state in new york got a ten thousand dollar federal grant because a meat inspector did something wrong you you have to look at the agency that gets the money can i can i stop you there so my two part question that i'm going to get out of your way and let you answer it my two part question is how is it that i reconcile the auditors reflection that the money actually shows up on the tribes financial statement here and then the second question is what's the best and ninth circuit authority for the notion that the that the e p a as a division or department of the tribe isn't a close enough well if i could answer it this way even if the tribal e p a is part of the tribe and it is an agency of the tribe that doesn't make this case it's a criminal violation six six six because all of the transactions were of a different corporation so so yes i think you have to look at the driver where did the money go did that agency engage in transactions with those transactions connected somehow to some kind of wro incorporated under federal law federal law allows indian tribes to create corporations to essentially compete in the competitive commercial world so that the corporations actually wave of sovereign immunity and be able to go out and borrow money in that those kind of things and that's what happened here the enterprises corporation which owns the casino and runs because you know and it's and its charter specifically says our transactions are not the transactions  our own transactions the the enterprises corporation went out and got one hundred twenty million dollar loan in order to you know refurbish or renovate the casino and pay contractors including cadmus construction which was the construction company here any time for enterprises yes there are legal bills in the record that show that enterprises will pay billing separately to enterprises and the tribe yes he built separately the enterprises billed to the dr and he billed to the gambling commission which was a separate agency  separate bank accounts for each one of these each one of these entities and the tribe took great pains to keep things separate and i'm not blaming them for doing it take well there may have been some casual language  but when push came to shove resolutely you know when you even if it's tiny corporation with two people you still have to have those resolutions right in order to protect yourself from from potential personal liability so they have and surprises corporations resolutions and general council resolutions and they have separate bank accounts they have separate financial statements so there are times when you know different tribe members have to put on different hats of course that would be in any small government t putting on different hats i'm worried about that and that maybe word is wrong but i haven't really heard her you respond to my two questions that that federal grant money that we're talking about for the jurisdictional hook shows up on the tribes  audit in one of its accounts that some of and i think maybe even add to that the best the best that you can if it's a division or department but you haven't answered the question what's the strongest one third circuit authority for your argument that that's not close enough well i agency that got the money and the jury instruction was incorrect i think the conviction was not overturned because the the argument wasn't preserved and the other case besides group was binding and those were two thousand and three and two thousand and four cases thank you so that wynkoop concept that it's got to be the you know it's got to be this direct connection between the money going into the into the agency and they agency has to whether the stipulated facts are sufficient but don't we have to view the facts if they are ambiguous in favor of the government because there's no breach of the plea agreement when if there if a plea agreement has been breached we look at things in favor of the defendant but here we have to view any ambiguous facts in favor of ever well i don't know of any ambiguous facts here i think that the parties the reason we entered into the stipulation was the parties understood basically that the facts are the that enterprise's mike that for example there are some christian has pointed to evidence that suggests that the tribe was the recipient of the money for example so if there is any ambiguity in this in the stipulated facts do we have to view it in the government's favor i don't know a case on don't i would say that's the usual rule when someone has been convicted correct it's the usual rule after a jury trial that you that you would do that yes but here where we sort of hammered out some facts and we both had input into it i don't know that you would construe fact why you would construe facts against one side or the other if there was any ambiguity and i don't think there is because like i said even if these even if you collapse the two  a it doesn't matter because none of the transactions were of the tribe not of the drug use even if i understand i don't really i can't really be affirmative only say you absolutely should not construe it against my client but even if you could even if you construed it against my client oh no oh on the jurisdictional question i doubt i'd have you at your telling me that that you don't think they would have because the because the federal government was was prosecuting i mean i think that's a good you know i thought i looked at the california commercial bribery statute because it was originally cited in the money laundering counts that were dismissed and it arguably covered the conduct i don't know i don't know but there's no jurisdictional impediment over the fact that it involved an indian tribe no because he is that american living o good morning hours my name said robinson and i represent mr cole i say this with the greatest respect for the district court because i believe he tried to do what he believed at the time was the right thing  i would suggest that the errors that i'm pointing out to the court in my opinion were the product of his emotion as opposed to proper legal reasoning what's not an issue is this caldwell agreed in his plea agreement and the government agreed in their filings with the court restitution that mr caldwell would be responsible for the six hundred three thousand dollars in restitution  and we're not contesting that he owes that money the only things that we are contesting here is the application is the application of the mandatory restitution act because it will affect him for the rest of his life as well as the court calculation and the method that it use in calculating the fees and costs that went to the tribes of lawyers as part of the court restitution order because we're not contesting the fact that the court properly ordered six hundred three thousand dollars of restitution what i'm saying is that this court deference to that finding by the court that is supported by the facts that were presented at the restitution hearing the facts that were supported at the restitution to which this court defers and as argued in presented by the government refer directly to the object of the conspiracy which was the six six six bribery count the fact that the court made the finding that the six hundred three thousand dollars was the only money to be paid in restitution by implication states that the court made a finding that any other conduct that particular the tribes the lawyers argued could not have been proven to a preponderance to support a greater restitution finding through speck the damages caused to the tribe and could not be the basis for a finding that this crime was committed by some kind of fraud and deceit and so the overlap between the mandatory act and the finding that the tribes lawyers were entitled to legal costs and fees for  their involvement in this prosecution goes like this as i see it the mandatory act does not apply chording to adore no and from an elements test two six six six bribery doesn't involve property as an element and there is no fraud or deceit in the elements of six six six bribery the government had wanted to prosecute this case as a for fraud case a theft case of property they could have used the subsection six six six one eight they chose not to do that in the record there was a discussion about how this case had been under investigation for four years or so and we were constantly in a position trying to settle the case pretty indictment and the prosecutor who was in charge of that investigation later replaced by mr fox made it clear that this was not a fraud case this is a bribery case so when the district court judge awarded fees and costs to the tribes lawyers smith he did that based upon emotion and the reason he did it based upon emotion is tied somewhat to mr shapiro's argument that maybe he was somewhat offended by this situation i'm not asking for a different judge on remand if there is one but if you look at the manner in which the district court said you know i sent you back twice now lawyers for the tribe to give me something i can use to determine whether or not you actually at the prosecution's request aided and assisted them in the again case is a bribery case doesn't reference whether or not the mandatory act applies it just discusses whether or not the ill gotten gains are to be part of a restitution order it's like the guideline analysis for loss under to be one point one there can be loss assigned for actual or intended lost or ill gotten gains what happened in this case and what are the facts that only in the in the inference that we draw from from dayton and that is that these are ill gotten ill gotten gains when you look at the door know that the only case that has addressed whether or not the mandatory act applies to six six six bribery the court is clear in the facts of the case you sued me are clear that there was a bribe paid but the court made a finding that it wasn't property implicit in the fact that the court ordered no restitution and i would suggest that you don't know case and gayton and just the idea that particular with the facts in this case that there was a sharing of profits not a taking of pro conspiracy that the court can look at and charge conduct and i don't want to mislead the court anyway there can be restitution paid outside of of the elements but in this case looking at the manner in which the district court found that only the six hundred three thousand dollars had been proven to a preponderance for the purpose of organ restitution if this court were to determine that the court that there was restitution owed for uncharged conduct then it would have to make a finding that the district court was clearly erroneous in his application of a lot of the facts and that's not what we have here in the government's not arguing that that's not an issue before the before this panel actually counsel thank you your next  the morning honors may please the court when secret often on behalf of the government with the court's permission i'd first like to address defendant has slops challenge his conspiracy conviction and then address the restitution issues so with regard to the conspiracy conviction  the case before the scorn is actually quite narrow and simple for two reasons first defendant has not signed a conditional plea agreement in which he weighed nearly every issue he now raises on appeal including that agency issue that he plans to address in rebuttal and second with regard to issues he actually did preserve and now argues the factual basis than one thousand page factual basis clearly resolves both of those issues and the two substantive issues on appeal are one whether the business transactions or series of transactions at issue in this were with a quote indian tribal government a section six six six requires based on the stipulated facts and second in the alternative even if somehow these weren't transactions with an indian tribal government whether nevertheless there is still an adequate factual basis for the conviction in this case the answer to both of those questions is yes and i'd like to think that indian tribal government can't just be an organisation as long as it's the same one i believe it does have to be an engine trouble government under section six six six the there i think organization in that ok a corporation well in this case a section seven hundred corporation would apply because a section seventeen corporation is a wholly owned corporation that's an arm of the tribe i want to get to that one but i'm still trying to figure out what a one means being an agent of an organization so that doesn't have to be a governmental organization to be anything that we have to look to the second part to say well you know as long as you get a as long as you get ten thousand dollars correct and i think it's exactly like could be a private organization as long as you receive some kind of federal monies it is long in this case there's a nexus to the indian tribal government i would argue yes i mean if you have to if you have some kind of a grant to the march of dimes and somebody was stealing money from the march of dimes and presumably the section might apply all right yes even though the says that the money was deposited into the tribal e p a account but it says it has subsects sort of record to ninety one the tribe on the account into which the proceeds were deposited quote the grant proceeds were distributed to the tribe that's also to ninety tribe now defendant has thought as argued both in his briefs and he are asserted again before this panel that the business and transactions were only with enterprises one even if that were true the government still wins but that's just factually inaccurate the stipulated factual basis with the court's permission i'd just like to cite a few we go through them extensively in our brief but there are numbers of sites where it's both the tribe and enterprises or even in some instances just the tribe that's involved in the transactions i mean the best piece of evidence is x sort of record two ninety six where on february first two thousand and seven the tribe not tribe in the enterprises but the tribe entered into that construction agreement with paul bardos and artist construction for the three main projects that are at issue in this case projects on tribal land and in addition throughout the factual basis it talks about the tribe and enterprises entering into the diversification resources consulting agreement the tribe and enterprises as the quote owner in that agreement and throughout their business dealings how both defendants constantly talk about the tribes not enterprises but the tried again the one thousand nine hundred vassal basis again and again and again talks about the involvement of the top the tribe and the tribal council members at tribal council meetings are the ones approving and passing resolutions to award these construction contracts this is not something and that's that has subsects a record to ninety  nine but their argument is going to be that they're wearing different hats it's a small number of people but his argument is that they're wearing different hats and they have i think abided by corporate formalities and they're not that in the end they're distinct entities none of that i can to respond i  disagree with that and i think counsel for the tribe can better address the relationship but that's not in the factual basis what the factual basis says is yes there's the tried and yes there's a section seventeen corporation which section seventeen a section seven corporation is an arm of the that incorporated tribe and it specifically says time and time again in the factual basis that everything that's happening is with either enterprises and the tribe or just the tribe that alone  the issue in this case but even if we were to get to the second issue even if we assumed what defendant has ups are doing which is that all of the transaction only involved enterprises enterprises is not some corporation formed under state law of which the tribe has some remote tangential interest this is again a section seventeen corporation and section seventeen corporation under twenty five u s c section fifty one twenty four that's formerly section four seventy seven says that a section  seventeen corporation is quote an incorporated tribe and that's why if there's no tax immunity there's tax immunity for section seventeen corporation their sovereign immunity this is an arm of the tribe this is how the tribe does business so in that provide i'm just i just want a really curious so that the tribe can be sued for a slip and fall of the hook in the casino i don't know in that specific case but i know that generally there are six or eight case law that says because a section seventeen corporation is an of the tribe and is so closely tied to the sovereign entity that it still maintains sovereign immunity in less explicitly waived so in that sense word enterprises is of course as an arm of the tribe the way the tribe does business even if the business transactions were soley with enterprises that would bring enterprises within the ambit of section six six six so in that sense that resolves the first issue and i just ask you what's the strongest case support for your view that this is a close  the white horse case which pemberton which we also cite discusses and basically the question was whether a telephone authority company was an indian tribal organization which would be analogous in this case but you but your primary point is that we don't have to even get there because it's the tribe in the stipulated facts absolutely that views agreed upon to be involved absolutely this is an argument in the alternative under which we still prevail  and there are really two to separate concerns ask them both and if you can't keep track of them before breaking up the first one is how do we decide what was the evidence sufficient doesn't it have to be much more precise calculation and was made in this case with regard to your second question are you referring to the calculation of the award of restitution and the attorney happy to address both with regard to the court's first question regarding an offense against property that issue i don't know that we fully briefed it because i didn't understand if it cobol's argument at any point in his briefs to be that there wasn't a property offense it was largely about whether or not this offense against property involves fraud or deceit nevertheless i think money is of course property and certainly everything that involved volved a construction project for projects and buildings on tribal land so i think either way we've got the offense against property now regarding the fraud it offense against property involving fraud or deceit there's nothing that says that's fraud or deceit there's nothing that says that fraud needs to be an element of a section six six six or there h case in which a local official is taking bribes for approving resolutions a few businesses the offense in that case is money or that the property in that case is money from the bribes and the court is saying in the mandatory not permissive language but i mandatory that the ill gotten gains must be accounted for in the ill gotten gains or the bribe money that the local official received and i would like to address briefly before i get to the court second point theodore no case that mr that's in eastern district of new york case that it didn't stand for the proposition that in every bribery case there could never be an offense against property involving fraud or deceit what it said was on the facts before the court based on that record it couldn't find that the manner in which the crime had been committed involved broader deceit it was an honest services fraud case the court just said it didn't have enough this is incredibly different at nearly every page in this factual basis it talks about ways in which the defendants are deceiving the tribe creating a separate corporation or having a separate entity that's the bardos construction company get awarded the contract so that the tribe doesn't know that mr has stopped is getting those bribes getting those kickbacks things like that the manner in which these crimes were committed involved  seed that i'd like to address the court second question regarding the fees and costs i do understand the court's concern however under the arid case i think we've got enough in the record precisely because the tribe in this case submitted it and t is that the court's not obligated to give an exhaustive accounting and where a court reduces an award of attorney's fees and costs it doesn't mean that the actual loss that was higher it doesn't mean it's still not an actual loss in this case the court thought based on it experience in running a law firm and whatnot that a lower award of attorney's fees and costs would be more appropriate but that doesn't mean that he had time to class actions but what why why is that multiplier relevant here at all well let me be clear it wasn't a all the filings he'd considered them along with the oral argument both restitution hearings and he said based on all that i understand we have this loss amount but he didn't think that that amount was appropriate and he wanted to reduce it and again i ca discuss that a little bit more that was an issue they were planning more so to address but i don't think that means based on this record that he didn't believe or the court didn't find that there was an actual loss amount it was a reduction method precisely because he just thought it was too much costs of approximately one million dollars which is that's an area that as long as the the tribe with a i should say the court had evidence that tried that actually incurred a greater amount that even though the judge mentioned these perhaps alternate ways of reducing eyeballing the the total bill and as long as it was a reduction that it's acceptable yes and that's specifically the erik case that we cite in their briefs that i understand i have a minute left is there any other question on restitution thank you good morning honors richard freeman before the the trial in the victim there are a lot of things covered and i i will speak is quickly as i can and hopefully won't get off track i've got a few things that i would really like to  a few points i'd really like to make on the restitution issue but there were some factual questions from your honour's that counsel deferred to me on and i would just like to mention quickly the e p a operates in a government office a inference we're talking about construction on a tribal building owned one hundred percent by the tribe in this case and a parking lot one owned one hundred percent by the tribe in this case with the title in the federal government title is held in the federal government so the e definition has to be overseeing the construction in this case and that's something that i don't think should get lost in the shuffle here that by definition the environment is being disturbed in the e p a is over looking at the disturbance of the violence the the environment when this construction is going on so i wanted to make those points they also wanted to mention the six circuit case the council mentioned just give you the the citation on that that's the memphis biofuels case five eighty five f thirty nine although it's not a night circuit case in its reasoning cites a nights or case the name which i've forgotten in as part of its reasoning and so i think it's particularly relevant now i'd like to just turn to the issue of restitution which is the focus of our issue and i just want to get some very basic points on these briefs were so long and there are some accounting issues here that i think i want to try and get some player eighty if you just give me thirty seconds i'd like to give you the building blocks that i think we're working with assuming the in the in the ira applies in there that's been briefed him first word is the court shall require the payment of out of the secondly the m v r a specifically uses the words you will pay for investigation participation and prosecution this is a fifty eight count indictment that most of the attorneys fees private investigator fees and accountant fees were incurred under judge fitzgerald i agree with mr robinson i think he was definitely trying to do the right thing i don't agree with the emotion part of it because he said and this was a wrong standard that he had to give every deference to the defendants in analyzing what cost to award here not the the victim but  did not have the benefit of the iraq case that we've cited and discussed and in and we could've written ninety percent of our brief based upon the ninth circuit iraq case that is discussed in our brief it goes through the a lot of different issues but one of the most important points and i'm not sure that we emphasized enough out of the iraq nights circuit decision which was last year is when you engage in a series of corrupt transactions and by the way the plea agreements used corrupt you must expect that the accountant fees the lawyer fees the investigation fees are going to be high the defendant needs to expect that because they are difficult to discover in this case we're talking hundreds of thousands of documents computers that this was quite elaborate now i'd like to address one of your honor's raised about this this twenty five per cent class action standard it was applied to the investigator fees the accountant fees and the lawyer fees well what if the restitution was one hundred thousand dollars does that mean you award twenty five thousand dollars and if you put a million dollars into assisting the government what if it had been one hundred million dollars would you give the tried two hundred fifty million dollars in attorneys fees if there's no correlation here when ira says you reimburse the victim of the expenses incurred the quote unquote that's what the ninth circuit has said in numerous cases and the judge here and i agree with your honor really didn't articulate how he could code late the expenses incurred by the victim to a twenty five percent success factor there's no success here the tribe was assisting the f b i in the u s attorney do we still have the power to remember this to the district court and find errors if you don't have standing to appeal probably not but i do want to view this as an yes mandam let me address both questions which i think the answer is a little bit different one of the things that's in a footnote to our brief that i want to emphasize is that if you look at the congressional record about the intent of the in the ira our own look at mandamus it says no adequate remedy at law ok you've got to prove that and if you have an appellate court right law to appeal then you've got an adequate remedy you don't need an endodontist but if you don't and you do need to bring the has to have made the motion and has no adequate remedy at law so i do not believe that using the mandamus approach would be adequate for a victim here i don't think feinstein intended that and i don't think that would give at the burden would be much higher on the victim which is not the intent of the in the ira so that's my response to that to that argument now i've lost the second question that i think you raise the the one final thing that i'd like to say because i see the red light is that  in both of these cases in terms of also the building blocks that were using it as they say the defendants will shall be required to give restitution to the victim here on the count that they're pleading guilty for the counts that were dismissed which were fifty eight counts and any relevant conduct that is the scope judge fitzgerald god bless him didn't understand that he thought he had a very narrow perspective that he could take here in awarding restitution i'm certainly not suggesting that judge fitzgerald should be taken off  this case but i think your honour's can send this case back with clearer directions finally the pre judgment interest he never addressed that it was laid out in great calculations and few things that i'd like to just from that the government argued and that mr friedman or you first i look back at the record references with respect to the financial statements of the various entities and excerpts of is it separate from the tribe i still concede it's part of the part of the tribal government it's an agency in the way that that an agency of the state of california is a part of the state government but it is it is separate it is the only entity that money the fact that we refer to the tried several times throughout the plea agreement if you look at those references not one time was there a concession that the tribe government got the money or that the tribe got the money or that even mattered because we've always argued that the transactions were those of enterprises corporation to the good it's worth looking back again at the way the drive and enterprises treat themselves the charter for the enterprises corporation says  transactions are not those of the drive they very much want to keep those separate and all of the resolutions that that that adopted the the plan to get a loan from a bank or to hire cadmus all of those were adopted by enterprises corporation a seven hundred c corporation is not an arm in any sense the way say if you had tribal law and you created a corporation that might be considered an arm seventeen c corporation is by nature a it has sovereign immunity but it can waive that sovereign immunity otherwise a bank would never win the money right otherwise it would never be able to sue to get the money back so when when agrees with you or doesn't that's right and the right to appeal is a statutory right and there is no i i mean i wasn't sure what relevance like government's position house on the question well the government the government is oversee all the construction to try but there's absolutely nothing about that in the record the government never presented any evidence not even in the discovery was there anything else anything about the e p a the tribal u p a and i was trying to point toward that page eight forty of bill the last point was that the judge gave the dr an opportunity to submit information about the legal fees and and various other expenses and he found