loosely ten minutes decide to address both of those matters but we'll be flexible in the timing and ask you to proceed first on the petition for mandamus and and then address the appeal i in one sitting since we have the scene nucleus of facts does that work for you  counsel the requests for the requests for separate argument was denied i guess we did i did make that quite clear we're happy to hear anything you'd like to say about the mandamus petition but we're also happy a take on submission if you don't feel prepared to address it then why don't we go ahead and proceed for the court in honey cut and co cash last term inform how this court should approach the issues before in both those opinions the court reined in the government's aggressive positions on forfeit of forty five million dollars from their employer as c i c ferals in short the fraud was against the company only later much later was there fraud against new york city to help fund the money that these defendants were putting its pockets through to pay the bills were paid to subcontractors stand your position on that and it seems to me correct as far as it goes but then say that that's because they in effect enabled the fraud to continue by the overt act in furtherance of the conspiracy that they acknowledge is creating the cost and that extended for a long period of time if you look at the government's briefs into nolte's appeal they contend that that fraud didn't start until two thousand and nine now the contract that allowed the fraud in the city was amended in two thousand and six but we out that one of its high level financial officers has been exploiting some kind of glitch in its accounting processes to steal money from the company and then  instead of seeking restitution from him or firing him the company hears him say listen this same glitch can be used to defraud our customers instead that here but this man was the project manager this was a huge project they appointed him project manager and allowed him to single source the staffing function to techno dying starting in you know two thousand and three or so and two thousand and five a whistleblower called this to their attention the project went on to two thousand and eleven i don't understand how you can say that that that period was a long time in relation to the whole project and that he didn't speak on behalf of this the i c during that time judge s s e in the in the statement responsibility made it two things except a response responded superior responsibility liability for rights defined by state law and control would submit by the opinion and what was the issue on the mandamus has to do with judge daniels deciding that we're not a worthy victim and i want to make just two quick points from my time runs out a case where the government has the prior right because it proceeds came into being at the time of the crime that's what we said in willis we also said and will is that this is going to be a case by case thing his former employer that's what we'll assess that's what the last of us you know who has a superior interest between them and then you look and see whether or not that interest trumps the government's claim there can be point you know if your this is not the case it seems to me where as a i see is victimized bell embezzles a bunch of money and then separately bell participates in some completely separate scheme  on behalf of the company against some other victim this is a case where the bribe taking transmogrify is part way through from being something that benefits only bell and an alternate few other selected people default the city at the same time they were defrauding their employer out of millions and millions of dollars so so is s a i c i mean you're not making this claim because even they got fifteen million dollars at stake but it seems to me the same argument could be made that the only you're making would also say as i see isn't titled to recover whatever bribes were paid to teledyne susan alton bell during the second phase of the conspiracy as well what would be the differen indirect victim the direct victim this sort of out the normal principles of contract and common law that is as we are going our brief that's the best way to do this because you start to get the mandatory victim restitution at that but we hope we hold yes we're not we're not defined as a victim but a couple things but if you're not a victim then is the question you're an authorized what is it a lawful representative year that there's a letter that as i see submitted in which they acknowledge the transfer or rights including standing rights to pursue recovery to federal we also could argue that under the inability of in people who reimburse victims to obtain restitution under the m v aren't but they have separate principles or you know the you know there's a transfer of rights and sub and transfer of rights  recognized in the statute itself looking at the plot you just referred to you know the authorized representative we clearly are that look at that letter you're not acting on behalf of s a i c you're in this for yourself you're trying to get fifteen million dollars only you're not pursuing the rights of has to be consistent application of property rights because you have insurance companies not just federal you have many insurance companies who have written their policies and if there is a if there is coverage under the policy because the property of the insured was stolen through bribes and kickbacks and insurers are going to be paying millions and millions of dollars under their under common law and contract principles because that's  that says no that's not necessarily the case you're going to be putting carriers in a bond if there's no property rights under federal law but their property rights under state law it's really to protect their clients so what i'm saying is there needs to be that consistency and i keep harping on this judge is to brooks opinion really addresses the last thing i want to say in the end thank you for the generous to extra time daniel says made up his mind that we're unworthy victim we're unworthy to rights you know to assert a construct of trust and no matter what we say no matter what the facts no matter what the law if it goes back to him the governor's going to get what it wants and if it goes back to him you know he's going to be in a position that he now has to look at something again where he's taking a very firm and my view inflexible views on what is the right way and is going to have to now square that with whatever you say if you send it back and i'm not presupposing that you are but if you send it back i think it fair for jets daniels it's fair for the government it's fair for federal that someone who doesn't have a vested interest in the two decisions he wrote and how he is that somebody doesn't why wasn't your deferred prosecution a  information stress in two thousand and three but if you look at the statement of responsibility there's nothing in there that says our misconduct started in two thousand and three because in two thousand and three the only victim was s c i says they accept responsibility for the conduct during the course of the misconduct of the north and l during the course of the city time project as you that cover the entire that they don't make an exception for some piece of the misconduct of the other procure problem is there are other counts in the same indictment the charge broader misconduct let me just go through count count one in those information charges of fraud against new york city of you know that's all the charges for against newark city and if you look at the record if you know that was what was proven particular if you look at how the government described that in their brief want to know its appeal counts two and three short honest services for and conspiracy in which only s i a c is the victim but at the same time account one in the information that i see i see allowed to be filed in connection with the d p that that is the charge but the facts the facts are that there was no fraud involving the city until some time after two thousand and five sometime to them sometime between two thousand and six and we don't know exactly when the fraud on why wasn't at least two thousand and six i think you know when this costs shift to having city bear we that's when the contract changed but again it's in our brief if you go and you look at two things if you look at how the government defended the conviction in this court of the not the evidence they relied upon was evidence into the fact that they'd choose chose certain strategies in emphasizing certain evidence in defending a sufficiency claim or something visa vidhan walt you know that's that's it's hard for me to see how that limits know to what you're saying focusing on this year two thousand and three you just want to look at the record that we have you know which is the statement of responsibility and he parse it out there's nothing in the record that says that there was any fraud on the city but for a minute sex came along in two thousand and six and we don't know when the fraud on the city started when you say nothing we don't know whether anything started until two thousand and nine techno down is getting there is this contract all along there this there's still the single source payer they're still getting that by paying often all the bells so what what why do you say nothing t nine all of that is we don't know when it started sometime two thousand odd in two thousand and three and the same thing continues all the way through there's no reason to think they stopped paying bribes in two thousand and six they pay from two thousand to two thousand  two thousand and nine for that purpose i understand your point concerns the two thousand and three to two thousand and six theory and so i think you're taking on a lot more than you need to by arguing about what went on from two thousand and six to two thousand and nine but the point i'm trying to make is this is actually what you're saying is that there is a period of time a significant period of time and we calculate it i think something like four million dollars in bright money but if there's a specific period of time when only as i i see was the victim of these defendants crimes for both restitution purposes and also for forfeit to purposes before you before you said i want as one technical  how can that go forward without mr bell mr bell is not a party to that mandamus proceeding and he's the one that you're seeking restitution against you're seeking to reopen his sentence and get him to pay additional restitution that would change his situation we serve the papers on mr bell ok so the caption is just wrong right i don't like i can't referred to in thirty seven seventy one doesn't apply what are we to use here you had all the information that was necessary to make your petition you know back at the time that you moved for relief in the district court but first the form and when we do have you know the need to reopen or just a sentence which seems there's a strong interest in finale there so what should we be considering first if you look at the statute that the government relies upon and looking at it at that it can only in our opinion be interpreted as a remedy when the district court denies the right to be heard because that is the predicate you denied the right to be mr bell prejudice this goes back to my question i can see why the government isn't prejudiced and that's an argument that you you make if you get restitution from bell w difference does it make to the government and what difference does it make when eventually ordered but you are asking for an additional sentence to be imposed on mr bell if the government came back hundred five days after a sentence is  finalized and says oh we forgot to ask for a special assessment or we forgot we really wanted some extra conditions on the supervised release we wanted more jail time they would be thrown out of court electronic notice nobody told us about this which affected our rights second i was in the beginning stages of eleven twelve with jury trial before a judge from on up in white plains i went back and i looked in a we came in and i filed this thing believe was on a saturday because we had a thirty day time and you know when it signed off but ten thirty at night you know i was working on a truck the trial went longer than hundred thirty five days to perfect an appeal we submit that our petition is timely under any latches analysis ok and that's also your answer in effect to the question of prejudice against bell is that since the government could have pursued additional restitution during this time it's he's no worse off that you were you took advantage of a similar smokers in a war zone i mean the reality is the reality is we've got this petition as quickly as you can the reality also is as you said it's a zero sum game between you and the government at the end of the day because as a practical matter look question is there are some forfeited assets and if you can get at them either via an argument that you have a prior entitlement to them or  hear from the government please distinction between the fixed price contract which is pretty two thousand and six when you get to that let me ask you this i don't understand why this subsection for the applause at all in under  had in mind here but it seems to me that this is an exceptionally narrow statute that simply provides a remedy when someone comes forward and says look judge i'm going to have an interest in this proceeding of interest in think that when the right to her be heard is to know so once i'm here urd doesn't seem to me this statute touches me at all i think your honor that federal in fact has been denied a right to be heard because the was denied by judge daniels and i don't think that's an argument for government really wants to make envelopes as a general matter that somebody that if somebody doesn't get what they want from the judge then they're right to be heard has been denied i don't think you're going to want to be saying that many cases what's your next argument read it with that's a nonstarter well i think that for i think the answer is this must apply to a claim for restitution because inclined to agree with judge parker on the other hand with the group they're about as i can't make any sense out of this at all but the one thing that seems clear is this has nothing to do with restitution you know because if it's only about the right to be heard then you have the problem but what about these other six rights that are in the section that it applies to but the one thing that seems very clear doesn't affect restitution why don't we just move out of that section so i think this  you're right ok so let me ask you this are not even it seems to we covered this right to be denied when it's a fourteen days run from does it run from the time when the all right to be heard was does it run from sentence a does it run from the signature on the judgment of conviction and does it run from the dock to the windows around here here it would run from when the sentence was final when the judge entered on may thirteenth when judge daniels denied their claim for restitution that's after the sentence took place right in the case this was a deferred restitution discussion correct judge daniels held open the issue of restitution if you weren't in court that day how would you know when your time your fourteen day time to f what if the purpose of the statute is to vindicate a right to be heard why would a fourteen days run from the time the judge said look i've entertained your average a motion to be heard den was to be heard was didn't know why wouldn't the fourteen days run from that i think in under the hypothetical i think in a law in a lot of cases it would run from that for example on times it runs from th denial ok and then sometimes the government's position is that it runs from the date of the sentence correct and i think it sometimes it can run from the the sig the date the judgment of conviction was signed because you know they can always be i mean for for for certain purposes that's the final day right and i think what the government's position is that this fourteen days floats it could be here it could be that here it could be that right correct that is it so it floats i mean that is that's that's an awful regime it seems to me to inflict on anybody fairness isn't it an awful regime in general if you look at d three maybe i should ask mr pollard this row than you but how does this how does that section that allows  in the case of restitution it seems very odd all of these the mandamus is supposed to happen right away and then this court would have to decide within seventy two hours the kind of issue that in generally talking about restitution for the debt as far as the district court is concerned the district court gets lots of extra time even past sentencing to sort out the thorny issues but if mend them is if restitution is denied to a victim then the remedy is not an appeal in the normal course as the government would seek for restitution but is meant damus on such a short leash for this court all of those issues have to be decided separately i begin to wonder whether this whole mandamus regime is sensible as applied to restitution not just a limitation on time that the statue in the patients period on the other hand once you get to the merits and that you've been talking about all these i have one but i have a pre marriage question are subsection c says in the case of a plea the accused has not pled to the highest offense charge so let's say the charging instrument only has one count does that mean this statute just doesn't apply i think if if if if the one count is that if that is the highest offense charge  this whole five applies to a motion to reopen a plea or sentence and subs see could only have application when the effort is to reopen a plea and there wouldn't be any reason to refer victims want to reopen a plea if the  defendant has pled to the highest and only offense charge broke here are the only be willing to reopen the sentence now that's a that's also a drafting glitch because it certainly sounds like that is a requirement when ever you are opening a plea or a sentence i think that's when we can probably manage but this is all admittedly a mess there's a sentence in here that says it doesn't apply to restitution at all why why you know we have like fifteen technicalities where the government is trying to get around mr pollard's basic argument right about what's wrong with his argument if anything with respect to whether s a i  is has unclean hands and whether that extends to federal yes and amplifying that if i may why especially during the period before the new the two thousand and six amendment took place where there was just kickbacks coming and it looks like money was being paid by s a i c that under common law principles should have you know it was overpaying basically to techno di and its employees were collecting money that were otherwise do it why it's not sufficiently a victim to during that period to have a reasonable prior conspicuous ridge flare igs and we se i see was not sufficiently diligent in responding to the red flags in doing follow up investigation after they were there's nothing in there about entering  there's nothing in there about having an awareness of a conspiracy or joining in i think that the statement there are portions of the statements of facts where i can just read through some of those those portions and also from the trial transcript where let's stick with these the statement of responsibility because that's the operative document from my  denial through intimidation and threats of retaliation or or term nation created a hostile atmosphere in s s new york office and little in which employees were afraid to confront him or bring their ethical or legal concerns to its supervisors in those instances in which i said you to supervise or criminal behavior i think it's a it's a willful blindness towards criminal behavior and the statement of facts as in those instances in which as i see employees on the project express concerns at all supervisors about the possibility that he had a corrupt place to ship a technique and this came out of the trial transcript which we noted in our brief in two thousand and five a specific ethics complaint was made that an all was accepting kickbacks and  the company's response to that is not to investigate it either to protect themselves even even to protect the company itself against this kind of conduct but is instead to join in to allow them all to plan to go typical situation where an employee is taking a bribe that the employer has a legitimate claim to that bribe is its own money in fact as the icy was first paying all of that and then subject to the fix price limitation it was billing the city but  is it reasonable to construe the s a i c is maybe having suffered a loss during that time maybe they had suffered some amount of loss during that time but the city was also still pain under the fixed price contract which see to recover for expenditures that were made between two thousand and three and two thousand and six so even and this is from the criminal information to the fraud on the city started in two thousand and three and the government's position is that even the one way that s s a could hold title to the kickback payments would be through a constructive trust and they can establish a constructive trust given the conduct starting in two thousand and three to conspiring in the next statement of responsibility this was a helped me years if not if i've misread the d i mean here i think on the facts that the head of sci sees new york office negotiated from the start from two thousand  three the reason they brought into the project are their stock and our analysis of whether they can get anything stuart's with the statement of responsibility because we a company engages in criminal conduct by responding that's a peer ear the company is liable for that conduct period end of story they're not guilty of some separate crime of conspiring with that employee are they are you know this notion of coconspirator is probably the wrong rubric to think about in the first place the reason they're responsible and this is not a case of the company being liable by responding out superior for the acts of the nightwatchman this is a very high level official who engages in this conduct now the problem is some of the conduct is directed at the company and the company victimized by other aspects of it turn into a fraud that profits the company conducted by a high level official and the question is i suppose in my mind whether once that shift happens the company becomes responsible for all of the cave year because now it's profiting from this ability of the north to decide to turn the company from a victim into a beneficiary of his bribery schemes correct your honor i mean and the negotiation for a minute six did all started that back in two thousand and four so it's well certainly certainly denial and bell were and i think that there are facts in the in the trial transcript that sai sees own managerial failure started before two thousand and six could ask another another sort of question about the q is in this case i understand why you don't want as a c to be able to come in and get restitution or get something else since they are really the bad guys in this the problem is they already got reimbursed this fifteen million dollars right right nothing that happens here today is going to help or hurt as a i c correct so what what's the problem with federal what are they do is they have unclean hands or they're there some rogue or whatever they're insured has unclean hands direct federal has unclean hands standing in s s c shoes and so what is what is this should they not have paid the claim i think is that the government's position it's it's hard to we've never had a full insurance policy but i think the answer is polls that's that's that's a fair point your honor but i think that ultimately what we do know is that yes yes he had unclean hands and that under a political state law the only way they could hold title to the kickback payments is through a constructive trial do we want well that's the title question that also that's more complicated but it still goes to the question of what is the underlying policy here i mean the insurance policy what are we supposed to all be doing here  is the idea in a case like the us an insurer should say you have to decide whether it's insured somehow played some kind of role in an overarching crime and therefore to the extent that a claim has been submitted saying this employee stole from us what the insurance company and that's assume just simply says the employee steals from you they don't have any rights against anybody to recover against the thief in the first place i think there would be a factual analysis for the insurer in cases like this one that when you have a case where very senior employees orchestrated the fraud and then management turned a blind eye that would be a situation where there's unclean hands and you wouldn't pay out the policy and this is very different from the facts in willis where you have just an embezzlement of the that mr pollard trying to search on behalf of the insurer the provisions under and seemed to call for the district court to hold a hearing to adjudicate the validity of the claim with there's a prior right and so on and possible defenses that the district court here dismissed the claim just with reference to his restitution decision and said you're you're out of here i was concerned about that in light of the obligation the seems to place on the district court to entertain show that this was really negligence there was no evidence to support a finding of recklessness or certain of any intentionality particularly with respect to the period between two thousand and three and two thousand and six you know doesn't have possibly a legitimate claim under age fifty three and was in the district court in error in feeling to at least give federal attends to support that claim even even if you set aside the of the significant federal protection that would establish that the preacher two thousand and six kickback payments could be traced to the specific properties which is which is which is which is crucial for them to  establish a right in those properties i think all courts that have looked at the specific the tracing issue have said that it's not enough or it's not enough for federal to saying that they have a general claim against bell for damages constructive trust they have to show they have to trace the stolen money to the assets that they claim they have a constructive trust over and if you correct and if you look at and if you look at the records decided that a constructive trust for the reasons stated in the government's brief which one of those issues was s s e s role in the fraud and i think another is this tracing analysis which if you look at if you look at the record straight in the government brief doesn't mean that that's a pretty bold shortcut i mean these are these are horrid issues i mean they're hard for you they're hard for us and and i don't know whether constructive where ther constructive trust is is a possibility here and you know for the reasons stated in the government's brief it seems to me is not a it's is not a substitute for some sort of careful analysis and i think this court some years ago came down rather hard on district judges who denied he views petitions that way saying for the reasons stated in the government's brief when the government had so many different things and in the under stood i mean i think that for just to go back briefly to the tracing analysis if you if you look at the record the enjoyed more than five of the more than five million dollars in bribes paid to bear more than four point one million came from two thousand  six and there's just no facts in federal debt this relatively small amount of kickback payments from pretty two thousand and six funded the specific properties there's no vaccine they're just basically no more than a general creditor to the extent there's a know you could imagine hypothesize even simpler cases where money comes into the guys and it's still there in effect when the when the cops come this is a more complicated suggestion that other potentially intermeddling persons have the right to be heard in criminal proceedings and to avoid the suggestion that the accused or convicted offender a lawful representative would be somebody like a guardian or someone if the victim so you have a rape victim in a case in the rape victim doesn't want to be spending all of his or her time in court and the rape victim says i want my father to come in and assert my rights including the rights to be heard and all those other things but also a right to restitution on my behalf and the father isn't a lawyer sort of an appointed attorney in fact to advance the interests of the victim not necessarily someone who has acquired those has bought those rights from the victim and then comes in and is asserting its own interest for its own sake to recover money up to the limits of how much should be in the policy or whatever not looking out for the interests of the victim himself herself or itself is that the idea yes in the court outside the defendant are takes a position that look  not that offended someone says i'm just tired of all of this i don't want to go back to court or the more i don't want to be involved in these proceedings it's too stressful it's too embarrassing let me go to litigation funding and have them do this for me i can't bear it anymore and i'm going to work have an arrangement with them where they pursue this claim for me and then i go to curve vast to draft a contract with litigation funding to they get to stay in court but i think in the end it sounds like in that scenario they would be hiring counsel to represent them not so you know counsel the only thing counsel does is draft a contract so it's a it's a it's a valid conveyance at least under contract principle so there's no question about think that under it is the third party payer in that situation a lawful representative well you're going to stick maybe distinguish between a situation where the third party is coming in to pursue a maximum recovery some portion of which will go to it but some portion of which will still go to the victim or a situation in which the claim has been sold to a third party who is only going to pursue its own interest in recovering money right in that case they wouldn't be looking out soley for the interests of the victim and turner says in all circumstances involving what about a contingen contingency be a lawful yes they'd be just like a lawyer that that sounds like a situation where it would be just like a lawyer and could mike mike could be on the fax a lawful representative but i think here to get back to money that if forfeited as far as the d p a or any other party in pursuing those funds i think we made that argument at the district court but that's the money that for for the direct and something about the money that bel the benefit of creditors it seems like it would depend on the relationship between a group that's really well bill makes an assignment for the benefit of creditors the congressional intent seems like it was that of czerny or as a relationship described earlier where you have a guardian type scenario and not purely commercial interests i would suggest what's the basis for that i think the basis for the basis for that the sanction is how that how that has been the language in a lawful representative to someone who can represent a victim's rights but something is representing the it has to be someone representing the victim and therefore the victim's interests yes correct we've kept you well past your time if you want like to make a closing remark or two the most turn to mr  let me start with the issue of unclean hands we described what the unclean hands defense has to be it's never been pled it's factual it has to be proven and they can prove it and and the city but not here the government doesn't never drive the government did not respond to that in their opposition papers judgement you were talking about you know s a c s criminal responsibility vs the balance of all absolutely true they cannot conspire with their own employees you know they can my conspire to steal from themselves look at the pleadings particularly between paragraphs ten and twenty we plead that the money derived from s a c s payment to the sub contractors and went back to the kickbacks themselves we'll let the money is traceable back to the payments the inflated invoices for the sub contract it's a factual question to prove that what other things we have is we have the stipulations transfers the government has all of us we told the government give us to record we don't calculate how much money pre and post we will look at the tracing we don't have the records obviously but we've reset that we set that in writing we don't pled that what you would have to prove in terms of tracing is not only to trace some money i mean we all know that money went into belle's hands from that our brother right and those are proceeds of this crime and they and they in your view belong to the two thousand and three two thousand and six money belongs to s a i c so don't you further you further have to prove that bell did not spend those bribes consumables that from two thousand and three and two thousand and six so that you have to trace that some of that money is still present in the assets that are now being forfeited yes we have to traceable you also admission who are the government and now has said that the assets were fighting over all the proceeds are traced put to the proceeds of all of his crimes of some of his problems so if there traceable to the crimes that take place from two thousand and six thereafter then s a i c doesn't have any interest in that because as i see is profiting from all of that but the two thousand and three to two thousand and six that you're hanging your hat on and so wouldn't you have to establish ultimately and again putting aside what would need to be pled to get you into that but assuming that you've played enough what you have to prove is that these assets that are being forfeited are traceable to pre two thousand now understanding that argument that well that may be relevant because if there is some reason to think that the fraud against the city from which as i say i see profits doesn't start until two thousand and nine or two thousand and ten or two thousand and eleven then you've got more room to play the trace i'm not sure how you would do that it yes absolutely that but but mark our position is even the funds that came after the fraud in the city began the property interest that we have disappeared here to balance and that is the issue and will this addresses that i was trying to find the quote but i can't find it but if you really have an interest that's a period to bells in money that is being paid to bell that is then being billed by s a i c to the city so the city is the one who's paying the money the covers those bribes under traditional property law principles and under the easterbrook approach and the easterbrook approach of the dreadful property law principles the money that the city pays to se i see even if it was on behalf of my employer that money presumably is money that the bribery would have been willing to pay to the company and therefore that money belongs to the company but if i'm taking bribes that are then build through by the company to somebody else what corporate to pay back the city that money so what you're saying is that it ok because some of this money was padded and bill sent to the city that as i see has no property interest in that from whatever source and i skim well some of it but all of that money is actually being paid by the city my employer is i'm acting on behalf of the employer they're getting a cut of everything that i take because that money is being passed through to the city presumably if it's any kind of cost plus they're getting a profit on top of it that's why they make so much money out of this one of my appropriating from the company you're proprium of company property of the company the fact that to appropriate all the money that gets paid to the city of new york because this was or at least whatever portion of it went to the official himself of the compan the issues with respect to the petition turns on property rights who has disappear your property interest and under so principles a property law s a i c title to the money from the city whether it was pre or post the froth begetting on the city that money was then wrongfully property interests when bell took possession of the money we make two arguments the first is a tracing when you trace it all the way back the second under new york law california law the payment of a brothel or a kickback to an employee becomes the property of the employer let me understand what i what you're saying i had always understood your claim to be because we have a property interest in that money your point has to do with you use you know taking a corporate opportunity it's yes that is there but the property interest is in the money who owns the mining but i'm what i'm saying about the corporate opportunity is that's why we say the money belongs to the company it belongs to the company because the money that is going to the  bribe taker is money that should have gone to the company if the purchasing agent says here you're willing to pay ten dollars to accept ten dollars for  this thing i'm going to buy on behalf of the company i tell you what i'll make a contract with you you only have to pay five dollars to my my boss and you pay four dollars to me and you'll make out and i'll make out  all be happy that's money that should have gone to the company but that seems to me a rather different scenario than the scenario in which the official of the company is saying to the outside  contractor listen my boss is fine with this because anything that my company is fine with this because anything that you pay me anything that we pay you all of it is going to be reimbursed plus  profit from the new york city so what am i taking from the company not anything but quarrel with the breath oh yeah h responsibility as you know there's a difference in our view between accepting responsibility for the misconduct of your employees and the corporation itself being in essence a criminal enterprise as a corporation it's not a criminal enterprise it's a criminal and then that's what it means to be liable for the crimes of your employee but is a difference for example the government laws on the well craft case the wall craft case you have the senior employee is the senior officers saying we're going to conspire to make money for this corporation the senior people that's not this case and that's interesting you have to have an officer is opposed to someone in charge of a project that turned out to be six hundred was taking issue with that in saying to know yes he had a very responsible job you know no doubt about that but he was not part of the senior management and trying to draw distinction in getting in getting him to answer questions about property interests thing that s a i c could have been convicted of a crime on the allegation that didn't alter did these things whether they were negligent whether they were not even negligent but just somehow he was so good at covering up he was covering his tracks that they didn't know senior people didn't know about it that's may not be a good rule but that's the federal rule for when a company is criminally liable they could be convicted on respondents period or a liability  believe they could be convicted on turning a blind eye the supreme court has a ploughboy oh yeah but when it was that make if they're convicted time then why do they have any claim to restitution that's kind of the heart yes when it comes up on restitution it is a standing issue of no turn ever reach that issue and under the plane reading of those terms lawful representative if you look at that letter that  reason they did decided it's zoom it's for it probably you know respects and loves the government but i think it's had enough of fighting with the government it decided it didn't want to proceed what it may have been entitle to but we have those rights and we are entitled to them and particularly in light of what i said earlier but you have to be careful about you know how you rule because it's going to affect you know the insurance carriers coverage now if i can just wra judge judge you know i want to get back to the property interest but judg right there record we were all talking about misappropriation of a corporate opportunity but if you look at the cases the cases speak to in essence the conversion of property the starting point what is the relationship between the defendant and the person claiming superior title who has the sapir interests as between them and then you look to the government's interest so looking at the interest yes we can claim the entire amount do we get to keep the entire amount if there's a four against the city which are responsible course in judge easterbrook set that and one things about going see went to trial and got convicted we all know what happened but what happened to the rest of them and the money that did not got the money that maser got the money the bill who gets the government wants to put all of that money in its pocket and who's left holding the bag and c s e who was the victim and in your opinion at least with respect some of that money in my opinion is suspect all of the money because if you look at if the government d guidelines calculation on the last crumb the honest services fraud it's not going to limit that money to what was paid prior to the fraud on the city they are because the city you know indirectly funded some it's payoffs doesn't mean that s e eisley did not suffer a direct and proximate loss from what was unlawfully taken from it