next case for argument is securities and exchange commission and alan cohen versus martin  when you're out of my name is thomas schauble i'm here on behalf of pollock martin armstrong this appeal is about one man's right to get his personal property back and that of an institute property that was acquired before and in court to resolve these property issues which i think would have prevented us from coming up here with respect to your question the f c c in the see if t c disregard the contractual obligations in particular and answer your question or on section three of the final judgment stated that the s c c shell assist the court the receiver and the parties in returning armstrong the property the blanks to him and appears that are appendix page one forty five but the  to do two to two points i think number one it is true he went to the storage facilities he did arrive in a rental car and he did take those few items that can carry away with respect to what he was supposed to do looking and we provided pictures of the storage of facilities you're talking about nine thousand square feet of stuff boxes stacked on top the boxes where he could not climb to the back seat things they use mass they said is dusty and dirty there is no inventory for him t five anything we proposed that he'd take the property taken florida sort through it discard whatever he wants to sort through it was him it was impractical your honor to take all the nine thousand square feet of property people that owned the warehouse was also a mover he made arrangements with the mover to get a charge you know give us of how much it would cost arrange for the truck load the trucks and that person that only one of those facilities had a moving service and he was going to pay that at his expense to have it moved down to florida that answer your question i guess but that's really impractical impractical  hundred seventy s your time up office furniture that was owned by the institute actually was purchased by a predecessor corporation called economic consultants your time up furniture the might be twenty thirty years old or more you're talking about his father's property his father's library from the one nine hundred thirty s i don't know how the receiver can take that property claim to belong to receivership gifts from his mother just from his concluded then we'll work this out we told the district court finalize the case then we'll figure out what to do mr armstrong was unwilling to give up his rights at that point in time and roll the dice he said i'll pay for it all is not in is not in the record it's in mr armstrong's affidavit and i think it's some of it is in negli is affidavit some of the correspondence between the receiver and myself the talks about that concluded with don't make a tempest in a teapot i think it was the last words that we received this remediation when we thought there was a possibility to do that we couldn't get there why we're sitting here i mean if  this were trial court back in vermont the trial judge would be beating us up both saying you get out of the back room figure this out settle it and don't come back in until you've got a plan that you're going to sign off on and fix and figure it out and stop court's time we went that route for a short period of time i don't know why it ended up stopping we thought we were going in that direction i was hoping we'd go that direction but it we never got there you want us to tell you to get there i'm more than willing to i'm willing to go there and you know you have other parties you have other parties at the table that have to agree to it as well we had hoped that that's where we were going to resolve this but then again it stopped my other point about some of this property is i don't think you can the receipt no pardon me up and he's not on that list save him you know the property still still sits in most orange facilities it's all still there it's not been moved are asking is to go back to the wood i understand what the problems are but he could still go out there and put on  again and have helpers or whatever it is the property is there it's just a question of what happens we need the receiver's permission and i'm to go in there are your property is there you need whatever you need but but it's still there it is and it's not a moot question you're not looking for money for the property you're looking for the problem you're looking for the property correct anything else at this submit that this appeal as presented to you is very hard to understand from a practical perspective i mean i will get to the law on why i think the district court did not abuse its discretion but i fully admit that this is very difficult to understand why we're here over what's in these storage facilities and if you just give me a minute on this the last time we were before this chord was it resulted in a in a very lengthy publish decision armstrong versus own for seventy f third eighty nine it involved a protracted civil contempt finding this case arises from a a massive international fraud where over a billion dollars was defrauded from japanese note holders in the run up to the arrest of mr armstrong he laundered a large amount of the proceeds into  all of that is sort of water under the bridge and wrists resolved right or am i wrong about that but you are wrong because let me just get to the point and i'm sorry for going on about it but the contempt was dissolved on the finding that it didn't have course  effect not on the finding that mr armstrong wasn't still in possession of the items what we have faced since then is a protracted aggressive a series of challenges at the district court level and multiple multiple appeals all designed to hold up distributions to the victims to extort from the victims a general release so that those those items can be marketed we cannot we made every reasonable a whatever's left there is liquidated and that money is distributed it would be but i'm also telling you that we would have made any accommodation no i'm not the let's just want to know what i'm so i want to know what happens if you when i'm not what why you shouldn't if we when we're allowed to  sell the items we have distribute the cash we have from those items and the models we're holding in bank account if you win this is over that involves the the liquidation of whatever is in those warehouses and the question then is whether you should win but if you win that's what i get and in addition to that part of the closure order authorized to distribute millions of dollars of cash that we otherwise are holding this is holding up distributing the assets of the valuable stuff exactly right exact from the lockers in the storage units doesn't seem like those of the roman coins well we did ask to any item he selected he would like to very carefully review to make sure that there's not something secreted in it but to be clear like we cannot reach an accommodation we've offered mediation we offered we had him out there to take things  after he went through and he had a full opportunity of a multiple days to take whatever he wanted after the fact he came back and said ship every single item to tampa where i will go through its privately without anyone present too but we gave him a full opportunity to go through and pick them we read that yes the sea will tell you we've really upped that offer recently that's not what this is about we can't i'm happy to go to mediation if your honor orders that but i'm just telling you i don't think that's what the mediation is about because what they want is a general release for the millions of dollars of kit of other assets that's exactly why also that i don't think that that that you know in any way at all the district court who understands these facts who had seen the parade of truly frivolous motions knows that a campaign to hold up campaign hold up to distribute the proceeds is underway and that none of this is reasonable mr he the district court reviewed mr negli is affidavit about what was done in that context understanding also we don't believe we believe we extinguished all legal title that he could have had to any of these items in connection with the we really belt and suspenders three different is the test i take it whether the district court abused its discretion that's that's the absolutely absolutely and i would say to you can examine that on two different levels in there's two different ways we win and that the district court didn't abuse its discretion in the first instance the district court in deciding that armstrong had waived all rights to the assets found that he was basically nine years too late after he did the settlements and the bardy that he had waived all rights to his in a receivership having discretion there to be clear we're not just deal with the bar dave you're in that when he mr armstrong signed the see if t c consent order and he signed it with his counsel he expressly expressly waived any right to any interest or title to anything in those lockers you can find it it's in paragraph on page eight paragraph four it's it's a one twenty discuss the part case but the parties really arise in a very different kind of situation where there's a sort of third party claim here he's a party to the action but he i don't think you need to reach it because he completely waived his rights to a jury trial below it and then he didn't raise it so i don't think it's properly before the court but again if you in the see if he see order he expressively gives up any rights to the property including express the lockers it's on exhibit one of the see if he see order to actually specifically listed it he further states in that order that he's conveying the lockers and rights to everything else in satisfaction of his civil restitution obligation separately in the we did the receiver is part of belt and suspenders knowing that we could face a protracted battle from this gentleman did a stipulated settlement with them in connection with the nine hundred thousand dollars payment and by the way we had to go to all the international victims to get authority for that nine hundred thousand dollars payment and you know they did not want to consent to that except if it gave absolute finale we didn't want to be here years later litigating over nine there's an express extinguishment on behalf of armstrong of all rights that he has the extinguisher prejudice there is to be clear there's a provision in there that says he can come to the lockers and look for personal things but  what was in the corporate offices that were the front for the fraud you know just like if you fire someone and they're left with like you know personal pictures in their office and this and that we there was no attempt or desire to hold any of that stuff back he can still come after you or this court rules and review and identify things like that we're happy to give them back but we did not want as part of a settlement where we paid nine hundred thousand dollars to be left with dominic freed on behalf of the i c c i just want to open up for any questions the panel may have we firmly support the district court's order here we think that it did not abuse its discretion in trying to bring this very long receivership to a close and we don't believe that any reason exists to prevent that any further so if you have you join in the request for sanctions here we do not take a position on the sanctions request why you know i think it's just that that's up to the court to decide whether or not the conduct is sanctionable it so we don't pose imposition of sanctions if we were to determine that would be appropriate no we do not thank you right to pick up some of the comments by mr goodnow name he's talking about extinguishment in waiver of rights of the further court to the stipulation the prasco are entered into it appears on their special appendix two fifty four fifty five in particular i want to look at page essay page two fifty six fifty seven fifty eight paragraph two says the payment of nine hundred thousand dollars shall be in full and complete satisfaction of any claim by prasco or armstrong or any one for attorney's fees is nothing in here about personal property indeed if you look at paragraph nine of the stipulation which it appears that essay page two fifty eight the receiver will not sell or abandon any receivership property held in the storage lockers but are given armstrong an opportunity to identify whether he or his two children wish to retain such they contend is personal property we're back to the same problem there is no inventory we don't know what's in we don't know what's in those stories locker if you look at the inventories that been provided by the receiver they're generic office furniture you look at paragraph six of the stipulation it says that upon entry of this ticket order held a hearing identify what property is mr armstrong let him have a fair shot that's mine part of the gets title cost in control that's paragraph four however section three of the same judgment in paragraph one says the court appointed receiver shall make efforts to provide to defendant armstrong copies of all papers books computer disk videotapes publications excedrin the cost to personal property and property of the institute for the stipulation of seven we've just read mercer real facility was the next day the live heart facility was also the next day as i understand it that may be correct as of that moment in time but there was an effort made i think by his son there's a conflict in the provision of the see if you see judgment that with respect to stuff in the storage locker the receiver gets title possession and control but he's also in time to get his personal property back and i would suggest to you that i don't know how the receiver can take control of mr armstrong's father's property from the one nine hundred thirty s and gifts from his mother his original research a book the great bull market published in one thousand nine hundred six how that possibly has anything to do with satisfying claims right the bar data issue it's irrelevant we're not we're not challenging the final judgment we're not challenging the final plan we have agreed to that all we're asking give us the property back if you look through those documents they all say give him his property back in this property back the bar date is not an issue and we're appealing the judge's order the nine are right for a hearing that's what we're  not appealing these other documents and in that regard the two thousand and nine mandate is in applicable here if you look at point three in that mandate that mr armstrong received when he was pro se it talks about appealing the judgment were not appealing the judgment were peeling in the final and at the decision of the district court that says close the receivership he can't have his property that's what we're appealing any further questions and i'm just one last comment on this sanctions business because i don't believe that mandate has been violated and i think mr armstrong has and we've cited cases olivia versus brown he has a colorable claim there's no specificity as to the district court and to chill people's rights and say that you have to fear coming up here and getting sanctioned if you challenge what something that the government's done to i think is wrong and i think if you look at the record of what has happened in the past mr armstrong has endured a lot for twelve years possibly an improper contempt  prior to that not that there was some general sense of justice there but let me ask you this it seems to me that a panel of this court said when you when you when he files an appellate brief he is limited to the specific issue that we have identified this court has identified maybe appeal and when it then the brief than in the guise of my word not heroes or theirs in the guise of background information lays out all the rest of this stuff that he's been arguing about for years that he's in substance been told he cannot argue why should we do something about that i believe that you when you got your the courts instruct the limit to personal property we did limit the personal property when the f c c filed their brief they lay you know this whole the whole background of civil and criminal if you look at our briefs we made a few comments in regard to that we didn't go all that that came from the f c c side we tried to constrain to the personal property issue and that was what we provided to the court we tried on of the courts request thank you thank you very much  thank you both will reserve decision in this case