you may proceed you got thinking on her good morning and may please the court angela dows for the defendant and appellant melissa beecroft i like to reserve two minutes for a bottle or keep your eye on the clock counsel you control your own time yes be cross case is an example of why there needs to be fairness for restitution and forfeiture in fraud cases particularly with how those amounts are proven in later imposed and really it's beyond fairness it's about what evidence went into those amount and under the eighth amendment as the amounts being in excess of fine and first as to restitution and in around two point two million dollars they were that amount was imposed that sufficient evidence from the victims as to actual loss first the burden and demonstrating the amount is on the government and then the district court has an independent obligation to ensure the sentence is supported by independent reliable evidence and we're just left with many questions about what that one page restitution l means the government essentially approach with the list there was no discussion or prove up and what went into this list with the where the amounts proven at trial what properties went into this list we just don't know so considering in terms of what commissions were actually received a someone truly only receives commissions versus the proceeds that there be a limiting of newman in that sense well i guess my real question is and i will hear from the government on this are the ninth circuit cases intention is is newman is newman controlling and under the drug proceeds it was getting back to the interim versus and purcell situation do you see a distinction where the government actually has something in hand you know like one hundred forty seven thousand dollars or four hundred thousand cases of tuna fish or whatever it might be they actually have the ram there's a cap on it because they have it that's what you're talking about whereas in  we're taking it apart from especially with you speak of something that she never possessed or really never existed in terms of what but were houser talking about proceeds with which can be argued in a greater sense right that we can talk about larger steers that way and that's the difficulty with fraud cases as opposed to you know other types of cases where there is actual tangible things so it takes it's a larger sphere as we're talking about not only non tangible things we're talking about alternative forms of forfeits are and then we start increasing the spheres where i'd create something like this and i'm not sure if i answered your question yeah i'm not sure that it's helping me a lot but i i i'm seeing a distinction between me and ramadan persona doesn't sound like from your perspective that that's a fruitful path for us to consider and i think it is i think it is an important distinction because of the fact that thinking about it that there is a limit to the forfeiture especially when someone that never possessed and received commissions merely on the amount of money passed through their hands but was never the ultimate receiver of the mon i just want to move over to restitution side but i understand your eyes are really concerned about forfeiture i didn't want to i happen to be your concern before richard my colleagues have other issues as well so don't don't be too distracted by that stick with corporate you for a minute your honor and we're just not sure if you know in in this particular case what case what evidence was reviewed they were to bind there is that were the peers submitted in mr grand the sentencing but no evidence that it was taken for that what how would you describe what the one hundred seven million was used to base the forfeiture one hundred seven million equals the total impact of the loans all the two hundred twenty seven properties that's what the from the government's perspective that's what that equaled and then there was a binder related to you and all you certainly that those amounts talked about the sentencing guideline calculations so we had that the offsets for the later sales equaling about fifty two million but that's truly a different analysis under the sentencing guidelines for those purposes at least as it as it relates to restitution amounts kelso if we were to accept your a a pile of cash in hand or a pile of guns or something in fact we're going to portion what people have to come up with on their own well certainly you know i think would be after this of course a kind of take over the fact finding function of that at that point and i'd like to reserve the when judge hunt said i have the final order of forfeiture any objection to its execution defendant said no now to the extent that argument is not waived i e an intentional relinquishment of a known right we have had best play in error review and there's no error here much less plain error had the defendant who received a spreadsheet i put that in  footnote in the answering brief that walked anyone who read it through the binders of supporting documents there's plenty of evidence to support the propriety of the fifty two million restitution and the one hundred seven million in  forfeiture the spread sheet specifically walked any reader through each property each of the two hundred twenty seven properties purchase price the inflated fraudulent inflated purchase price the paltry sum recruit at the forfeiture sale the resulting loss and all of the and defendant had all of that and said no objection but counsel putting that aside for a moment in this case it seems to me  case and the the predicate crime in this case as certain proceeds if the government were to recover the total amount of proceeds separately from each of the coconspirators it would be a massive recover in excess of what actually was lost would it not yes your honor that's why that's a double recovery is it not above one hundred and seven million it would be a likelihood different issue but radically that would be a double recovery that's correct though does the government then concede that for purposes of certainly this matter that anything that would be recovered from another defendant would in effect be deducted yeah i know that's different the joint and several i'm just trying to work with the on the double recovery issue yes your honor perhaps i can shortcut this by saying district court go through a similar analysis with respect to forfeiture well i would say first of all your honor that the gover before future is mandatory and under the n v are a we start with that the second step is the government with but one hundred seven million is it mandatory where does it say that well as to forfeit your hundred seven million newman wrote the district court has no discretion to reduce or eliminate require this to be paid now your honor is correct there is discretion to apportion sentencing restitution awards between  restitution contect but the district court here didn't abused its discretion in not apportioning the vastly reduced amount we proved fifty two million dollars in losses set forth by the spreadsheet and that was provided to counsel and the supporting documents and then the government the prosecutor said were only only going to keep the three on the hook for the fraudulent transactions that were proven t trial we didn't prove all two hundred twenty seven bad deals at trial just a representative smattering and based on those from fifty two million dollars prove it and lost they were down to two point two million the district court acted well within its months when the low end of or otherwise applicable guideline range was two hundred ten months how much of the one hundred seven million dollars passed through the hands of misspeak i don't know if that precisely is known or if it's ever known your honor record evidence a deuce to trial did however show that she was at the hub of the conspiracy that she personally was steve grimm's right hand man skip young who it's kind of an oxymoron isn't it that she was his right hand man well point taken the skip young was told who did cooperate and for the government said he was told to go through grim in beecroft because quote they were in control young received fraudulent information to put in a loan application from beecroft beecroft quote basically oversaw all the transaction stays it what you're telling is because this is a conspiracy that she gets on with the whole thing and i than the maximum amount of the excessive fines clause suggests and some of our case law why isn't this an excessive five well there's a few reasons setting to one side none of this was raised before  cage in the three hundred thousand dollars that the guy had in the pocket that was lawful proceeds there was nothing dirty or guilty about that reds his the crime was failing to report it to the customs officials here by contrast the hundred and seven million dollars which if plainly foreseeable in a multi million dollar year's long fraud that beecroft never left and never withdrew from this is not what this is dirty money let's assume for a moment hypothetically that the bank was lent hundred seven million dollars and that by the time of the sentencing that all of that money had been recovered would point i would however point out that in the facts of this case virtually none of it now i understand i'm going i'm wrestling with the intellectual aspect of it how how do we deal with this seeming i don't know that i had often think it's an anomaly unfortunately but there's just something fundamentally unfair about the whole thing that somebody has to paid a staggering sum of money they didn't actually have in their hands and even hypothetically if it had all been returned that person might still be alive and that's where i get in some trouble with the excess he finds a problem well i would respectfully disagree with your honor's characterization and any attempt to write in a requirement that it quote in someone's hands the very nature of complicated white collar fraud shows that  unlike the drug case where the guy is holding the thirty pounds of methamphetamine the proceeds of the fraud is defined by newman into desk zero need not be in the person's he right but you issue isn't it yes it is your honor it's the different statutory creature i'm about to run out of time if it's a different statutory creature and it serves a different purpose i would respectfully suggest however that in the newman and i keep saying newman it was newman into desk and the to desk oh part of the newman opinion is what they are squarely upon be cross case now as newman correctly decided yes it was your honor and if the procedure this is one hundred seven million we can describe it is staggering unfair these is proceeds of b cross fraud this is not as in very little of which actually passed through her hands that's what bothers me i don't see how you can forfeit something that you never had in the first place i can understand restitution that's a separate responsibility judge burrs on raised in the davis concurrence but said this is for another day but in in davis in that concurrence the fellow is merely taking a commission on money he was laundering for somebody else beecroft it's a finding of fact was at the hub of a multi million dollar many here conspiracy just like the drug conspirator whose it as i didn't know i just thought we were going to sell gram or quantities i didn't know we were going to sell palin didn't kilogram quantities if it's reasonably forseeable you're on the hook thank you counsel your time has expired we'll hear from  forfeiture in restitution setting and also even if there was no objection made on the restitution side if they were awarding an amount greater than the victim's loss that is plain air just briefly on thurman your honor there was an analysis as  believe to clarify on his comment earlier about the fine excess of mine and the man at risk is a criminal fine i was confused about that earlier in our story and just briefly newman conspiracy charges that can be you know rectified in this case in you know consistent in the sense that newman is still limited by statutory and constitutional limits including the eighth amendment you believe that our case law is in tension and conflict or the cases can be