judy we move both under forty one g b and under this court's precedents asking for the removal of eight hundred forty one you can't you get a hearing under that process we can your honor i why isn't that the remedy i'm sorry why isn't that the remedy read the rule sixty five because this court has held in a series of cases going back to one thousand nine hundred two that the proper remedy for the improper imposition of a pretrial restraint on a defend a hearing that is specifically provided for under crozier in his progeny going back to the crozier case what this court held in ambiguously was that the federal force but your statutes were unconstitutional because they failed to provide adequate procedural safeguards for the imposition of these restraints and the court essentially saved the statute from unconstitutionality by requiring a rule sixty five here and that's been along a circuit for almost twenty five years and there really routine pictures of the  most of those cases there are different but no but most of them involve pretrial restraints issued pursuant to section eight fifty three he's right so that's my question whether there's a difference since this was a warrant whether the process to th both admittedly the fifth and the sixth and the issues what the court held was that because a corporation does not have access to c j funds it can't get public funding for its defense that the court had an obligation to hold a hearing under the sixth amendment to determine whether or not some of those assets had been improperly restrained and the court then had a post conviction determination that because of the deprivation of those assets there was a six the many violation as well as i thought them in the concerns but if you go to the decision viewers because it was a corporation get it was post conviction because it was really more a sixth amendment rather than a fifth amendment claim they are for totally distinguishable absolutely and the notion that that you know max without addressing crozier or addressing the requirements of rule sixty requirement for a hearing the reality is that in the real world a list friends of course makes it so you can't alienate the property you can't get loans at least on a commercial basis on the other hand if it were removed all it does is to hide things from people because the case is still there anybody who's aware of it is not going to make a loan buy the property what's your response to that well there's a couple responses first of all i'm with all respect to the late chief justice  a concurrence and his views did not carry the majority of the court second of all i think the laws that they are both from supreme court precedents and from numerous state and federal court precedents that lose pendens implicate the due process clause of the district court held that it had no effect that there were no due process protections triggered whatsoever but the law is very clear we think that the lives pendens is a restraint on property that constant depth of the constitutes a deprivation within the meaning of the do but how do  how do you address counsel my point that let's just say you are granted a hearing and say the district court finds that there are due process implications here it removes the list and the case still  proceeds and and anyone who wants to loan money against the property any title company that looks at the record it's going to have the same effect as a list pendants so are you really doing is in effect defrauding or deceiving a third party that's not given notice of the case who might not otherwise know about it well absolutely not your honor what the federal forfeitures laws distinguish among with respect to a defendant's asset are for f restrained pretrial and substitute assets we can which can only be restrained after conviction if this court if the district court were to determine that the list pendens was improperly placed because the government couldn't satisfy probable cause obligation to demonstrate that the property was traceable to the proceeds of the specific crimes charged in the indictment it will then not be for for the last it's anyone who purchased that interest in reliance either on  court finding or just because they were unaware of the indictment would be a bona fide purchaser of her value and would have secure title to the claim the united states so it's not a meaningless gesture at all to remove that was pending that would have very significant consequences to mr gardner what is the you just touched on it but i'd like to make clear what you view the nature of the hearing is what the what has to be shown and who has the burden of proof on it at this hearing that  you're requesting well i think we've made all the showing we need to make it i would encourage the court i know this is a busy panel but to review our motion to determine exactly what our claims were and what the support homie dave it's what i do i want to hear you say it because what we demonstrated first of all that there'd been a seizure both the bear stearns assets is really quite simple there and they not only froze the assets but they took the additional step actually party without any opportunity for us to appear or to contest it actually transferred to the united states government that what is the so so in terms of you just said that if a bona fide purchaser relies on the district court order what is the district court order going to say that the government has failed to prove what it has to prove that trial or that doesn't have probable cause to believe it can prove the bear stearns and the properties were the fruits of the law what is that you believe the district court has to find in order for the restraints to be removed correctly what the district court would do in a district courts do this every day maybe not every day but certainly routinely in this circuit is to hold a probable cause hearing in which the government would have the burden of proof of demonstrating under the rule sixty five standards that the restraints that were placed on mr garner's assets were appropriate because the specific assets restrained constituted the proceeds of the specific crimes charged in the indictment if the government can't satisfy that probable cause standard the district court would in effect be making a ruling that clearly will be a trial will be a final determination but at least in terms of who has punitive title and who has control over this property the title which  the properties but really the question is here your honor is who has type of these properties the united states based on what let me follow up there if i could other than the issue of whether these properties were the fruits of the that specific criminal conduct or can be traced on a dollar for dollar basis to that conduct what would be the standard if one of the second half that i understand is the first chance it gives me a little bit of pause you have to try this case twice  and i know your honor the there is there is a probable cause standard but that's not significantly reduced standard from what's required at a criminal trial where the standard is burden of proof and these are fairly minimal hearings they look they last several days  the government typically relies on the indictment in on hearsay evidence from from agents they do need to demonstrate however that there was a crying committed that created proceeds because without proceeds there's no basis for the forfeiture what's the standard of proof that the government needs to meet in that kind of a hearing to show that the proceeds were the result of illegal activity i think it's probable cause standard we would we would concede the fairly minimal one it's a very low burden that's right but it's gardner's life savings close to four million dollars of money that he needs now in order to prepare for his defense and that's been done without any judicial review whatsoever and that is plainly inconsistent with this court's precedents under procedure  specifically those cases held forfeiture statute unconstitutional because those procedures were lacking because i defendant didn't have the opportunity under the statute for a prompt post deprivation hearing in which he could test the case of the bear stearns fund that was six party true in the least and the was there notice given in the actually not your honor there was there was no controlling statute there was no advance notice the government just filed these without any judicial approval without found the statute allowing for the imposition of pretrial restraints on constitutional they were injunctive in nature that's why a rule sixty five hearing was essentially appended to the statute and it's held in a number of context that any ex parte pretrial restraint that the reason they file those pens was to restrain or enjoined the defendant from being able to alienate that property so in terms of practical effects which is the test of this court applies it has the practical effect of an injunction and as it is appealable as a judge you have any case law that says suggests that in fact an injunction for these purposes on an injunction a list penance for these purposes is substantially equivalent to an injunction yes your honor there are a number of cases that hol shown are believed to be subject to forfeiture protect them from dissipation transfer and moving them rionda the jurisdiction of the court but in this case counsel what they're really saying is the government needs to provide some evidence that in fact particular assets do in fact meet that standard what's your objection to having a hearing to have that rather minimal evidentiary standard met and some showing made that these properties in maine and the were in fact proceeds from illegal activities here are the that that showing has already been made to two separate bodies a grand jury found probable cause to believe that the properties in maine were subject to forfeit  as proceeds of fraudulent activity and a neutral detached magistrate judge in the district court found that there was probable cause to believe that think they are stern's accounts contain proceeds of criminal activity again property and i think that as as the late chief justice rehnquist pointed out which was a critical point in the connecticut versus door case because the supreme court had previously upheld all these pending statute under a constitutional challenge and so it was prevents it notifies third parties that there is a claim on this property and then the law of lese pending makes it very difficult to sell it because basically it's a cloud on the title and you can get title insurance  cleared and the defendant so i think the right to sell the property to use the property to run businesses on the property to enjoy the property all the other attendant rights of ownership remain and at the supreme court point out in the good case that is a mechanism by which the government can try to protect this property which is believed to be subject to forfeiture so it can actually be available if if and when there's a conviction in a forfeiture order but in the real world council wouldn't you agree that it i suppose you might be able to live in it it might be able to rent it but other than that you really can't do anything with it i know it's nice what the cases say on this but the real world is that's what happened what would you say to your opposing counsel's comment that the benefit of having a hearing with respect to the list penguin's is that if the if the court finds that in fact there is no trace there's no way to trace illegality to the purchase of the main property that in fact anybody who looked at this would find there was no tie to the property they v f p could purchase the property without problems do you agree with that had i think that the law of of lose pendens would still control and that is that if the government pursues prevails on its forfeiture claim at trial and has obtained an order of forfeiture that any third party who third parties notice of this claim and in fact the common law doctrine of repentance would have been even harsher even if they didn't have actual notice of the claim they would take the property subject to the prior forfeiture claim and i believe it's the government prevails that trial and i trier in this case probably the district court determined that in fact there was no showing the level of probable cause that the defendant used illegal proceeds to purchase this property that that finding in and of itself would remove the taint from the property and the like the ability of the government to be able to ultimately sell it in a forfeiture action afterwards do you agree with that i don't your honor i think that  even if the de lis pendens was removed in some mechanism i think that the law of of the law the common law doctrine of those pennants would still allow the government to obtain a superior interest in the property if it obtain a conviction after trial even if the list dennis had been removed and if the records show that there was no probable cause standard showing that the property had been purchased was improper from well the if there was a conviction in a forfeiture water at trial there would clearly have been a finding by by a jury tying it to that property but just just say that stipulating that for a moment they're arguing that this is a defendant hypothetically gets convicted but there is no finding that there was an improper use of funds to purchase the main property your believe is because of the conviction no matter what the source of the finder go get the property anyway knowing how we would the government would will seek him would need to seek an order of forfeiture specifically for the property and would need to prove to a jury that property was his is property that is a proceeds traceable to a fraud fraud offense in this case the government will still need to prove e judge's issuance of the warrant and the government may prove let's assume it proves that there was criminal activity but the proceeds of that criminal activity did not  wind up in the bear stearns account nor did it wind up in the main property so therefore the government under those circumstances would not be able as i understand your last answer to forfeit those particular assets is that correct the only theory lost business opportunities or the stock that was liquidated tripled in value because it was just you know an apple in this i phone took off and if he was been deprived of that injury is found not irreparable if it's compensable and damages but i've been looking through the briefing and whatever didn't see anything this suggest that there was compensation available it's not like a  the defendant may well have such a claim but i can't answer your honor's question specifically that he does or does not even a well have a claim for damages suffered in even if he was found that the property was erroneous lee deprived in my second question th required what in your view is the nature of that hearing and what burden is on the government both as a matter of proof and just a matter of trying its case in a mini trial before pretrial restraint or seizure of assets in any way so long as there's a finding of probable cause and so that's clearly the standard what would the hearing look like your honor i think the appellant would like to see a full blown mini trial lasting several days is his what he would like to see the government submits that that is both unnecessary and extraordinary burden on the district court which is already going to have to conduct a trial in the first and in this case anyway as well as on the government there has been a finding of a problem caused that there were offenses committed that finding by the grand jury should not have to be reprinted to the district court to make a finding of probable  cause i think the jones case out of the tenth circuit in the farmer case out of the fourth circuit talk about the type of hearing that would be required and i'd ask this court if a hearing is required that it be limited to the issue of traceability that there's already already been a grand jury finding of probable cause that offenses were committed and that the question simply is is the property that was restrained traceable to those offenses and that makes sense because what what this what is being imposed on on the district court or on the parties is an obligation to conduct additional process to private additional process to the defendant even though there's already been a fine either by  judge or a grand jury and so that process should should match what the deprivation is in this case and i think that it would be not appropriate to require a full blown reinvestigation of what the grand jury considered what  ranger i mean a particular probable cause finding that the the main properties were subject to forfeiture so it was a specific identification of those properties in the indictment and finding that there's probable cause to believe required because the defendant had made certain showings certain showing that it's private interest in requiring more process was significant it needed the money to pay for counsel choice and that there was a reason to question the probable e corporation said i need more process i need additional protection before my assets harm or strain pretrial and the court of appeals went through what was that interest that the defendant was claiming and there's an important point of the opinion where the panel says that if the defendant actually had a right to counsel appointed counsel then it's really it there's such a minimal interest at play here that there probably isn't any need for additional process so it's to actually have to go through the process of figuring out could a corporation be got appointed counsel i concluded it could not and so absent some sort of fund that would have no representation at trial and that's all the government says the defendant has to do in this that was already decided by the supreme court the monsanto case the supreme court said that it is not a violation of the due process clause to restrain assets pretrial so long as there is a finding of probable cause and that's exactly what took place in this case both the grand jury and is not is not a restraint but there was a grand jury finding of probably cause and the seizure more was based on a finding of probable cause so the question is what else what what what is what more is there other than the restrain the money that the defendant has suffered and he's raised to two things one is his right to counsel of choice he wants to keep the recording these assets and pay this money to his attorneys and he wants to pay for twenty thousand dollars a month and living expenses the district court simply asked the defendant to come forward with some evidence that that those two things are are in play and that's what this records to routinely there is no right in federal court to an automatic evidentiary hearing simply because the defendant asks for one in the context of for example suppression hearings the defendant typically has to submit some sort of evidence by way of declaration or otherwise that there's a reason to believe that his constitutional rights were violated in of the forty one the most i believe that it will it is a forty one g motion and therefore the defendant must comply with the requirements of all forty one g which as as i understand it your honor still has to come forward some predicate factual finding some lead the district court to conclude there needs to be hearing here there needs to be an evidentiary hearing it which i i decide certain facts because they matter and absent that there really is no need to impose additional burdens on the on the court and on the government to needs to show that he has some rights at stake here and the right is claiming it is twofold the right to pay for his counsel of choice and the right to pay for his personal expenses and the district court gave the defendant that opportunity two different time show me some competent evidence that shows that you don't have any money to pay for counsel choice defendant failed on both occasions to come up with evidence sharee some some evidence to show that there was a need for an evidence you're hearing and in fact deny the motion without prejudice the defendant can go back in from the district court today and say now here's my current financial condition i need a hearing because i need to protect my right to counsel choice and the district court made a very clean and  needed to make this finding to stay the statute from being unconstitutional is a creature restraints on assets are like temporary restraining orders and in the civil context it is the burden of the person that sought the temporary temporary restraining order to come forward and demonstrate why we should be turned into a preliminary injunction that's exactly the analogy that for twenty five years has applied in this court and that is exactly what the government's asking this court overturned by imposing all sorts of new burdens on the on the defendant to demonstrate that they need the money for her counsel fees are in and they need the money for living expenses that's never been a requirement and it shouldn't be one here as a matter of fact mr gardner did demonstrate in the public in the public part portion of his filings opportunity to present the evidence by gathered by way of declaration to respond to the need for attorney fees and for living expenses is that correct the judge did to give us that opportunity we we gave the judge an ex party filing because what the government had accused us of is essentially concealing assets they made completely unfounded allegations of mr garner had millions of dollars hidden in various accounts that were unaccounted for and that he had those that you tube you responded to those allegations or you the reason we asked him not to look at it was because we don't believe in it in c as a requirement here it never has been there's been no case law that says what it means and we frankly for a number of reasons i wanted to preserve our position that crozier is still the law second of all that we didn't want to get into a hearing about how much money should be freed up in order to mount a defense to the extent that these are subject to assets and not properly restrained there has to do whatever he wants with it if he wants to get you know twenty law firms to represent him he has that right if these are his these are his f so yes we have the opportunity but we don't think it's a requirement we filed a motion based on existing law we complied with all the procedural requirements and then we did your view if this court ultimately decides to direct the district court to hold the kind of hearing that we've been discussing how do you really gained anything i mean if you got a probable cause standard you the judges already invited you to provide information about what assets your client has his ability to pay his attorney fees his ability to handle his living expenses what are you gaining what we don't think that in a gypsy or proof of his assets would be an element of that hearing on remand we would gain a tremendous amount  first of all your honor we would be able to demonstrate that these assets which have been restrained are not properly restrained that the government's theory on this is extreme almost to an absurd position their position is that mr gardner princeton educated harbor train m b a who spent his life working for public corporations every nickel of compensation that hearing from paragraph is tainted because allegedly he conspired with others to commit securities fraud so the theory is that by having an agreement with one overt act of what education is do criminal activity and some of the people in prison for a good education know that the point is that this is not somebody who is dealing drugs this is not somebody who's an arm's merchant this is somebody who went to work every day at a legitimate corporation his compensated sin was determined by a board of directors based on his performance i trust that's not the standard well no your honor but the question is whether the government can prove that the money he received from paraguay his salary and the sale of stock of a lot of the bottom line is that in the two opportunities the district court has already provided to you you feel like the burden is on you to prove almost a negative whereas in the hearing that you're