granted my client's motion for credit towards his restitution balance in the amount of one point one four million dollars was a final order that was immediately appealable or whether seven and a half years later the court could sue a spon today without notice to either party vacate that order and the answer to that question is determined by asking hypothetically what the result would be if the opposite had occurred if the district court instead of granting my client's motion and crediting his restitution balance had denied the motion had said i'm denying your motion that you're not getting credit for that one point one four million dollars and you're also not getting credit in the future for the gross recoveries the analogy works because if if the court had absolutely denied that would have been the end of litigation as i understand the government's position the grantor order the case they argue was contingent contingent on you satisfying the requirements of the statute and south it's not quite the same it would have been finally fitted it did not but but have wanted to deal with their argument that this was a contingent order for their to response to that yes the first is that the motion itself there were two motions that were filed that request a credit in the total of one point one four million dollars the district court granted that motion so at least as to that that question was fine the government didn't object in fact the government kept but it didn't get subject to your satisfying your statutory obligation that gets to the second which is that whatever the government requested the district court did not work or the district court granted our motion in an endorsement order without any condition without any qualification the government may have asked for whatever they asked for but that was never part of the order to the district court and through one were two that is i took it that your motion requested two things credit for one point four million dollars and  determination that the money that was collected by the trustee would count and the judge wrote granted yes so the judge didn't say i grant the first one and i grant the second one there were two separate there was one there was one order and there was no objection from the government as to either request no effort to clarify that's correct so the government didn't object the government never moved for clarification the government never moved for reconsideration and the government never appealed relief from restitution in the absence of proof that the victims had actually received well let's assume that the court couldn't have granted that motion that there's two ways to respond to your honor's question which is first that the government had to appeal and there are cases that are discussed regarding that if in fact the court entered an incorrect order and secondly my client has since provided that proof which the the district court in two thousand and fifteen seven and a half years later  accepted that sufficient information was provided that the victims in the case had been had received the monies that were an issue so maybe that's a good that the court made a mistake and that the government made a mistake is for any reason why we would want for the government not to appeal that taken and is or any earthly reason why we would want a government to delay eight years when all sorts of things might happen in this case is moderately clear so i'm  that there was a mistake but in other cases it might be very messy don't we want to send hate of a government or to a party look here's a time of your day or here's a time to appeal when we can figure out whether it was right or wrong we  do want to say that to the government and in this case the the request was clear the order was clear and as a result of that order my client was induced to not shall enjoy the exorbitant fees and expenses in the bankruptcy proceeding because he had no incentive to do so knowing that he was going to get credit so to answer your honor's question the answer is the government should have appealed then if if the rule is otherwise if the court adopts the government's argument here that in essence what they can do is wait twenty years which is the period of time that's right makes rather complicated the question of what incentives we want to create you're suggesting that actually we want to create an incentive that exorbitant a question i was going to ask which is how did your client rely and you're saying the reliance was that he did not take certain actions in the bankruptcy court correct in fact on february twenty seventh of zero seven a couple months before he filed excuse me the motion for credit he filed a motion in the underlying criminal action it's document one twenty seven docket number zero five c i want to live in in which he highlighted exactly what he expected to happen he wanted the district court to order the funds deposited in the clerk's office so that they could no dollar to dollar to the victims and in fact because they went to the bankruptcy court because the court didn't act on his motion the end result was one point two million dollars in fees were incurred and of course all the money that the bankruptcy trustee collects in the ordinary course isn't are not going to go to some particular set of creditors they're going to go to all the creditors so it's a mystery allan jack had a phone bill that he owed or whatever that was part of the bankruptcy it was a creditor with a claim this money that was collected would go pro rata presumably to all the unsecured creditors wouldn't that maybe but if it got to the clerk of the court they would have been made whole dollar for dollar without having well that would have that would have short circuited the bankruptcy process and somehow inserted a priority for the victims in this case i don't know whether that would be lawful or not lawful but that would be rather different than what's taking place in the bankruptcy court and in the bankruptcy court even if these fees were excessive some fees would certainly have been collected it's hard for me to see how it could possibly be correct putting aside for a moment when it was time to correct it and when it wasn't how it could possibly be correct that any money that was collected by the trustee in the bankruptcy should be credited dollar for dollar against restitution when some amount of it would necessarily go to the fees administering the estate and to other creditors that's correct and that's why he wanted the money deposited with the clerk are you arguing but you're arguing is ok it was a mistake it was made eight years ago if a private party makes a mistake and eight years later comes back and says hey we're terribly sorry we made a mistake we say all the time sorry too late why should we treat the government differently and that for an order were it's granted or it's denied or so on when it's restitution is still under mccourt's jurisdiction  we want an appeal taken there whether by government loses or you do have a same reason that's exactly right your honor in the two cases that we rely on for exactly that proposition to us via pesca tour which is a twenty eleven decision from this court six thirty seven f third one twenty eight in which the district court entered an incorrect restitution amount so the the facts are somewhat close here there are restitution figure was about two point five million in the district court entered three million dollar restitution order but the defendant didn't appeal and because the defendant didn't appeal he lost his right to challenge the incorrect restitution immediately of all it had made under a court's jurisdiction until he had actually paid i'm sorry his yes in fact think about it and of course as a question let's say you have a defender who has the ability to pay the restitution almost immediately and he does so but he wants to challenge the amount of restitution that was ordered he would then have to wait oh and the amount of the restitution is part of the criminal judgment there are a lot of cases civil and criminal where we have a distinction there is a judgement  of the case then there is what we call post judgement with a geisha and about all sorts of things about trying to collect on the judgment and in the latter case it's rather complicated sometimes figuring out what we should treat as a final order and what is just a step along the way and what i wanted to ask you in terms of when we want an appeal is what would be your response to the argument that there really doesn't need to be any appeal on it we don't want to have piecemeal appeals on every dollar that's in dispute in a large restitution amount until it's there's some likelihood that the thing is totally paid off before that it's rather academic and he still owes a lot of money it's one thing and the seven circuit has sort of suggested at least in dictum that the time to appeal on the finality does not come until the defendant makes a claim that i'm now done and that's either accepted or rejected by the court why wouldn't we want to wait for that because then in a case like this where the restitution figure is enormous you're waiting about twenty years and so what i mean maybe that maybe i'll never come and then we're spared ever having to have an appeal about the rather academic question of whether at the time of your client's death i don't mean to wish him well of course but we all die sooner or later whether at the time your client eventually passes from this morning's scene he still owes a balance on anybody's account why would we want to have an appeals along the way on the academic question of when he died did he owe a million or four hundred thousand or thirty dollars or even if that scenario worked in a situation where a motion for credit was not filed maybe it does but that's not this case not every time a motion he could make a motion for credit every time he writes a check he could say i want to get an education that i really did pay that check and if he doesn't like the outcome  nd it was miniscule in relation to the overall restitution judgment we'd have a series of appeals about that as well i think if you are one is that here you have a situation where there was detrimental reliance and so it's pretty clear from the record what i said earlier that he was concerned about because that would be the bankruptcy proceeding and because of the court's order he didn't bother challenging any of that so the court scenario he would then get the order he wants but still have to expend time and resources in the bankruptcy court to challenge the fees and expenses there in the unlikely event that what happened here happened concern here is you know we're working within a statutory scheme in which the supreme court has told us that the concern of the statute is not to provide defendants with certainty as to their risk kishen obligations but rather to ensure victims receive full restitution if any notices were being given to the victim of your efforts to get an ounce of rescue ship marked paid basically because of the bankruptcy proceeding i didn't see the victims were represented in the bankruptcy court they at is not the question you you're here to enforce a judgment of the court may be wrong and not to allow it to have been modified when you didn't get it and you're saying the government didn't have jack but the parties that were most affected were never given any notice of the case law is still clear pesca tour supreme court case notice to victims under the victim protection act they do they get notice of all kinds of things in criminal cases now what statutory obligation was there to give victims notice  not but the statute i mean there's no doubt that the victims have lost out here and that's wrong you know there's no doubt about that but the question is whose problem is the government that has failed to do something but  let's hear from the government it please the court my name is christine behalf of the united states we agree on several things in this case that restitution was originally or for four point one eight two thousand one hundred eighty two thousand that number has never changed there hasn't any payments that are are made to vic how do you agree to it without confirming with the victims that they can pay when you reference point and we agreed to it you mean our response in may of two thousand i we didn't have signaled to the district court well we didn't object as absolutely true but it was contingent upon compliance with thirty six sixty four j two your contingent could be read the future look not necessarily with respect to the money already  from the bankruptcy court and the money any money that would have come from bankruptcy court or anywhere else would have gone through the clerk of court all but the application by the defendant in this case was to get credit against his restitution obligation for the money that was collected by the bankruptcy trustee it was not a motion to get credit for monies that had been received by the clerk of court or by the victim it was about monies received but important point both bankruptcy cases were still pending at the time and when the defendant made his first motion for credit he attached the stipulation from the bankruptcy court and in that's the appeal ation it provided that there may be no monies disbursed from the bankruptcy  you not objecting to this orders premature well again we agreed to the general principle that he is a he may be deserving of credits and in fact in the case we agree that he's deserving of about two point three billion dollars in credit proof that any money had gone to the victims because we viewed it as agreeing to the general principle under thirty six sixty four g b are you telling us now thank you fink you did if you act correctly then i thought that just as very you are admitting that a mistake was made you are admitting that a mistake was made also but now instead you're telling me oh no this is perfectly fine we're going to do is same sort of in hindsight yes it could have been more there could have been more clarity and more clarification not a matter of clarity is the matter of whether you protected her rights of the people the victims make you are under vista required to protect the district court entered an order that said granted to a motion that said we should get credit and among other things we should get credit for one point four million dollars plead and i think what i were all asking you is but it was evident and you're arguing now that in fact he should not have gotten that credit so what we're all asking you is didn't the government drop the ball in not either objecting to that motion or after it was granted said no way we didn't concede that this water should be entered we can see that only blah blah blah which is contingent and so we need clarification of this order and remember that in our response we said we don't object to the granting of the order pursuant to these contingencies so the district court didn't incorporate those contingencies they ask we want something you said we're ok with giving them that so long as conditions a b and c appl the district court didn't say granted subject to the government's conditions it just that granted what they asked for at the district court i think we can all agree remain silent and i didn't reject that either and down the road you may have twenty fifteen the district we don't have to guess the district court told us that that's why the judge understood when she ending i ask you a different question do victims have any cause of action against the government against you so that they now murmured that they have been deprived of money because the government negligently did not file an appeal of a cause of action against you first we would say that the government did not act  negligently but based on on your question your idea and the well let me respond to your first question that no they would not have a cause of action against the united states the statutes are clear that the united states student does not represent the the you know series of laws that have been passed to protect victims rights in criminal cases is the government obliged to give the victim's notice of proceedings like this the government is obliged to give notification of of any proceeding that may affect the restitution that was imposed but we say the ressa touche and has remained the same there isn't a change in that there's not an obligation under the statute you're telling us for the government to notify the victims about motions for credit against the amount of restitution that was imposed i don't know that the statues directly address as though she is from there there is an obligation with respect to notifying the victims with respect to proceedings concerning the amount of restitution to be imposed but there is you're saying no explicit obligation any way on the government to notify the victims about credit motions of this kind i believe sir and i think that his made by a district vote for government sees of it it is a mistake they are not allowed to appeal at that time and they have to wait until years later it comes out that it is is a mistake that would be a a remarkable procedure we're not saying there are no we didn't see it as a mistake well i understand that you didn't see it as a mistake but had you seen it as a could not then be appealed we would only think that the order could be appealed if it were a final order when and when is there a final order there at least three possibilities and there are probably more one is at the time that the district court enters an order granting credit right the second is when the the entire dispute around something like the bankruptcy proceedings are done a third is when the defendant maintains and there's an adjudication one way or the other that he has finally acquitted his  why we say that it was interim first of all judge roberts until it says that it was interim she notes that but she tells us this rather after the fact after and that's her second draft because her first draft said it was final and she is addressing it under rule sixty a which is a way of undoing final judgments that's true but in her first draft in may of two thousand and fifteen she indicates she acknowledged there is now the government has said that it was the acquiescence is based on three sixty four but here are the other reasons why we think it's interesting there is no effectuating language and i'm sure some people would say well all these things that need to be done there minister i understand your arguments for why you can say that it is vista or vat but i come back to my question could have appealed it then how could you have appealed it unless in some fundamental sense that was a fine new order that is she makes a mistake you realise it's a mistake do you have to say oh i'm terribly sorry this being an interim order we can't do anything about it until eight or ten years later it looks as well the payments haven't been made or can you go immediately and say judge change that the judge says i did it and i mean it and that's it can you van appeal and say sorry you have made a mistake and come to this cordon say she made a mistake and we say yes she made a mistake and reverse it if your honor is asking that whether or not we like it december two thousand and seven doorstep with which should be considered a final judgment then yes it should have been appealed and reason the issue before us is whether it's a final order that has to consequences it seems to me if it is a final order then the party that doesn't like it has a right to appeal and it seems to me a corollary if there is a right to appeal then if you forgo an appeal of a final judgment it's over there are lots of judgments that years later somebody things oh wait that was wrong and maybe it was transparently wrong but if the party didn't appeal it's final it's over and at least miscast invent is arguing it seems to make intuitive sense to me that the two issues are the same really isn't a final order for purposes of appeal if it's not then it's still subject to correction by the district court because it's only into law kotori and there's no other way to get it changed if it is a final order then a party who who's aggrieved by it has a right to appeal and b if they forego that appeal it is no longer subject to revision by the district court if you agree with that structure i do so then that that's why we're asking you could the government have appealed this  and it sounds to me as if the only consistent position for the government right or wrong is no you couldn't have appealed because you're arguing that the district court could have kept revising it and if the district court would keep revising it that it's not a final order and with these issues in post judgement litigation and we have this in civil cases all the time is trying to figure out what is final when do we want to have an appeal and what i'm wondering is if congress gave the defendant a right to get an adjudication that says credit x dollars against risk to show and that's provided for in the statute then i have trouble understanding why once that kind of water is granted that's not a final word or that is subject to appeal congress thought it was worthwhile for defendants sake to get and maybe for the victims it was somebody said to have a clarity in a ruling irises that there's a clarity in the amount of the restitution or except for the four million one hundred two but as far as credits are payments or whatever the case might be you i think you made the point that this could be a piecemeal approach imposed you are saying that as for the government's position are you sure vance for government's position that is you want to win vis case but you are representing for government and you are telling us that in any number of other cases where mistakes are made him for future because of what you are telling us today the government cannot act immediately to correct that mistake and you are representing to us that that is what the united states of america holds i don't believe but i don't believe for a moment that if you went to the solicitor general he would say she would say no we can't appeal you're making a statement because you want to win viscosities but you're making a statement that has all sorts of consequences for the government and overstepped its situations and i'd like to know why what the basis of its take my views and i apologise because the statement i making is that i did not intend to be is as broad as it is your honour's describing i'm talking about what happened in this case and that it's an intruder and i'm tracks dependent on us finding that it that the district court intended it to be contingent right even though he didn't say so yes but i would also say had the district court said motion defense motion granted government's motion for contingent terms you would have been right up here because you didn't think concerned about the fact that he would be spending money that wouldn't be that where we are i think so i would like to add a few other points is the is that the only ambiguity and there's also the question that this was this kind of double order that there is a sort of advisory opinion in effect right if all the district court if the motion had said was we want clarification from the district court that we will get credit for anything the bankruptcy trustee collects through the course of this bankruptcy that's going to go on for several more years and the district court said granted would you with that be a final order that you could appeal we would have gone back and asked for clarification on say that's what i mean gratification is done then then you can appeal if we sought clarification and the for whatever reason the district court said no clarification that that's what happened in again before this court well then then you could have appealed that so that would be a final order even though it's purely advisory and there's no number in it at all there's no actual credit given to the defendant it's just a motion that says i want prospectively yuna rule that there's go credit for anything the bankruptcy trustee gets yet and that would be contrary to the statute and yet we certainly would have found well if you could appeal that how can you possibly say that you can appeal when the district court says that and also says oh and by the way the one point four million that he's already got credit that's more precise that's a that's a that's more final exams in the senate himself had put before the court that that million dollars  fills out this is what i am saying other times the court just says granted and in that event it seems to me what is granted is what the moving party asked for and here the moving party asked for two things this prospective order which you suggested would be a final order that you could appeal and that presumably therefore could not be revoked two years later by the district court plus something that's more specific that he had asked for which is credit of one point four million dollars so how can that be something how can the combination of the two things not by your argument be a final order that you could have appealed that you didn't appeal and that therefore  fink because if the district court intended to make a contingent order a non final order that might make a difference for vis particular case now with respect to vat what are we to make of the fact that when the mistake was first pointed out to have a district court or she discovered she ruled under sixty day that is she treated it as a final order that she had made so that she looked back and she said yes i made a final order but i can correct it under sixty day and only after when she realized probably the sixty eight was not available as to a here to pick up on judge reese is question that at the end in terms of what the district court intended and judge lynch pointed this out as well earlier in the government's argument that the district court initially relied on will sixty eight which means that the district court considered the two thousand and seven order to be final and and therefore appealable might have with with even inquiring what did the district judge subjectively intended back in two thousand and seven is you know what's the evidence of that and it's peculiar to go and look at how the judge rich respectively reconstructed it in two different ways in entering two different orders eight years later i mean i did you know i tell you if you really here and then the government reference mcguinn again is an interesting case to talk about because essentially what happened there is what happened here where the district court entered an order that permitted credit for gross recovery instead of net and the government there moved for clarification and when that didn't work the government appealed and ultimately that's the problem the government has here and that really to another point the judge calibration made makes clear that the court couldn't do what happened here whether it did it