actually walking up to the podium would look like if you would like to reserve any time for a bottle message for all felons today you're certainly welcome to do so but the clock will show your total himon you'll be responsible for reserving the time for yourself victim in this case the government thought it could distribute the funds by november of two thousand and two well where almost two years passed that time and the government has done practically nothing to accomplish this return of the funds to the investor victims and after the district court's ruling that we had no standing and that our only choice was to go to the d o j remission of the forfeiture we promptly filed remission the titians on behalf of all of the claimants we represent but to date the government hasn't acted upon any of them and frankly we don't know why  still be here but the government could easily make tentative decisions on remissions which would become final if this court rules against us that is that we have no right to be in court contesting the fo and the government hasn't asked us for any more information to decide the remission petitions yet they haven't acted upon them and months and months and gone by we argued in our brief that one of the reasons we shouldn't be forced to to take its time and acting on remission petition with your smith are there any other practical differences between what your clients can get through the remission process and what they can get through the forfeiture process in addition to the delay factor which been talking about we pointed out in our brief that according to the d o j regulations that govern remission the government is required to keep the interest that accumulate on these funds for itself now it's possible that the government doesn't always follow its own regulation in that regard i don't know but what i know is what the regulation says and it says the those costs and and shall be deduct court's question we took a look at the record in the crown the criminal side here and if you look at the docket entries on the criminal side this case is really dragging on on the criminal side as well the district judges authorize foreign depositions to be taken and i understand there are c j lawyers involved and they're going to be going through to listing steam to take depositions all that's going to be very expensive for us and we don't know what the total costs are but if the government had it all up it could it could well exceed a million dollars what about the interests of the victims who are not represented by who are not part of this class of claimants  are the interests of those people factored into this well again as as we explained to the district judge and in our briefs those people would not be prejudiced in the least if we are allowed to pursue these claims in  court those people as as the government has also acknowledged would have the same right to pursue their claims in court is we do or any alternative to if they didn't want to hire a lawyer and go through that process they could file remission petitions are you saying that the other people who did not seek to get into this case could at that point if the case for remanded to the district court on the same footing as your clients absolutely the government has acknowledged that that they would just the people you happen to represent correct correct everybody would be treated the same and and there's nothing wrong with that the remission process is certainly a lot less expensive for the claimants because they don't have to appear they don't have to hire counsel necessarily and some people may choose to label themselves with that that if you want to call it a streamline process i don't want to call it that because at this case it may well take longer for the remission petitions to be decided then for the district court to make a decision if we had been allowed to appear in district court i daresay that this case would be over already we had it in the early on we proposed before the government we even filed claims we proposed to the government that we try to resolve these claims out of court without the necessity of filing anything presumably on the same type of because the government has never denied that we represent victims innocent victims there that's the strange thing about the posture of this case the government has never claimed that out we have anything but innocent clients who didn't get their money so why go through all this trouble instead of just recognizing their claims through an informal give and take as i know fact i did in a big florida case that was very similar to this but the government rejected that proposal out of hand it seems that their whole standing position boils down to a desire on the part of the d o j to be the will of the words here they want to have complete control of this process and and they want the victims who they purport to be interested in and helping to have no rights whatsoever in the process and should be totally dependent on their good graces whether they choose to grant a petition or not and when they choose to grant decision although you know it doesn't you never know what you just look at the statutory language you have to delve into the legislative history as i did and and i would add that the government has never even addressed that legislative history because it doesn't happen the answer to the come to the claims council jumping immediately to his statement that the department of justice his position in this case is that they want the victim to have no rights whatsoever mr smith's personal experience that he commented on of here indicates that that is not the case and certainly is not the case when congress put their image and process into place and gave the department of justice the authority to generate regulations to work through that process congress made the decision that there should be a limit three well two reasons number one because they think the interest that's referred to in section one point five derives from and is defined by the interest of the victim it's defined in regulation section one point one secondly bank that's where the money ended up no question about that but they sent the money to the defendant in the criminal case and they thought he was going to invest it and instead he put it in a bank and lichtenstein i mean they they didn't know that they were going to be bank  money would be deposited into a bank somewhere and i believe all of them understood that it was going to be a bank outside of the united states but wasn't part of a larger package of services that he was offering them he indicated that he would be depositing their money into a bank account in their names and would be investing those monies but there was no indication that he was going to deposit them into in other words he was going to make separate deposits that he was these were going to be monies that would be legitimate turned out not to be why is it appropriate to treat them as if they were ordinary bank depositors it's fair to treat them that way your honor because the police have remission process is the fairest way that the most victims are going to recover the after the date that we actually file but it's not really the bank we're talking about here is it is sexton and they are not simply general creditors of sexton they're not competing with other creditors of the bank for these funds the banks bind the people back and looked and see in are doing ok so  might give us the wrong perspective in terms of what their claim is they are competing with other depositors of the bank in the sense that all of them are presumably depositors but the banks are not short of money this isn't the c c i where the bank was insolvent and there wasn't enough to go around and so some clients are trying to shove in front of others with regard to this pot of money these planets are simply going after this pot of money and there's no greater claim against the bank than this pot of money and no other creditor the bank has a claim against this pot so with regard to this pot it is simply the defrauded victims plus potentially other creditors of section although i can't imagine how some other creditor sexton through his his hotel would have any climate looks to me like it's just the collection of victims that have claims of answer this this pot of money who else does well class of people who are seeking to recover some portion of let's go back in time ok i'll add texan to the list who else the other creditors of the bank were not playing into this money because they're doing just fine with the bank the bank doesn't speak doesn't even theoretically seem to have a claim to this money the money was sent voluntarily there's no fight there i just don't understand why the fact that their general creditors of the bank has any meaning with regard to this particular pot of money we run a definite was the situation you described is going to be true in every case in which money will  and that may be the case as long as it's not the bank itself that's insolvent and the competition is amongst creditors the bank article freestanding is not supposed to be hard and just say that these parties don't have article three standing because they're only general creditors the bank strikes me as a non creditors and i think everyone agrees that the victims in this case are insecure credits they don't have a security interest in this money and usually lou showing that they can trace their money into the pot that was seized if i think everybody assumes the latter i mean when it comes time to five the victims and you basically said these claimants are going to come out ok there's trust us the justice department remission for this is going to work it's going to work because you understand that these claimants are victims and have a claim to this pot of money so why is it different in the remission process than it is for article three standing because congress decided that the remission process was a better way to handle this pile congress was to do that it needs eliminate civil forfeiture i mean to say that these parties don't have article three standing start understanding frankly how can we not have article three standing if you're going to turn around and say over in the remissions process that they're the victims that are entitled to recover well the reason they don't have article three standing is because of the traditional legal doctrine that depositors don't have one favorite what if they put the money under a mattress i mean what if what if sexton and put the money under a mattress where they have article three standing all other fact silly case here and instead he puts it under his mattress they don't have a constructive trust to construct a trust beneficiary status under those facts they have constructed in that situation it's very likely that mr sexton is a can't get anymore well assuming that that doesn't stop you constructive trust is pointed out in a brief and constructive trust is not arise as a matter of law under california law it has to be created by a court so the fact that they give the money gets taxed and you put it under his mattress that those facts alone don't hard to construct if you know that they can assert article three standing in attempt to establish a constructive trust in the civil forfeiture action couldn't pay think they can argue for a constructive trust and based on the district court's decision if they if they construct a trust was imposed at that point and they could they would have standing on the basis of that constructive trust and they would have a colorable claim that would allow them to get into federal court to assert the constructive trustee when i'm the fact that  fraud that's why you're prosecuting mr sexton so so why why don't they at least have a colorful claim that they are the beneficiaries of constructive trust the reason that they lack that claim is because the court declined to impose a constructive trust the fact that they have a and justly and rich no we are not in the reason why is because the government spends an enormous amount of resources and money to seize this money for that this money prosecuted benenson and get the money back to the claimants in those parts are not recovered thought not to do that not to deduct those costs and i have spoken with people in washington about this and i have they have assured me that their intent as it was expressed to the government of lichtenstein as it has been expressed by the department of justice throughout this case is to get as much of this money as its representatives represented in their briefs that they're entitled to another one point five million dollars worth of recovery in addition to the one point five million dollars that they got from liechtenstein none of the other victims are recovered anything they're going to go into court they're going to pursue their claims they're going to try  get the money that they're entitled to and then they're willing to say well whatever's left the government can split up amongst the rest of the victims that's not the way the remission process is intended to work and that's not what it's about doesn't seem to be taken in writing to us either i mean they've said several times that they're looking for their then obviously will be deducted in our mission process let me step back to another point then actually prevailing that the statute specifically provides for specifically provides when it defines owners that owners do not include lose on summary judgment because they cannot establish as a matter of law that they are and it's an owner's now i'm not asking the court to to to jump ahead and make that five in here or what i'm pointing out is there's there are reasons behind the remission process and the reasons are to allow the government with represents all of its to the sins who is fully investigated these crimes to approach these victims on any informal basis they don't need to be represented by an attorney they don't have to have any knowledge about the law they don't have victims according to the results of those investigations it is a more fair process than forcing all these people to come to court is a more fair process another thing about this going back to the district court the district court judge judge matsch to imagine that judge matsch is going to sit down and spend time and effort to determine the exact losses and entitlements of seventy eight separate victims the more likely parts of the more likely scenario i propose that he's going to appoint a special me ask your someone else to do for him that's special master is going to be paid no question about it the special master will be paid and that payment will come out of the rest that is a surety to do just that there's a possibility that the government may take money out of this out of this rest to pay for its own costs speculative and there's no evidence to suggest it's true but certainly this case goes back to the district court and these people are allowed to coming there will be an enormous impact on the rest because of the cost and the with victims of fraud every single one of those two hundred claims was resolved out of court no special master needed to be appointed the judge didn't have to make any decisions mr well was reasonable in this case he could resolve all of these of court there may be one or two claims which have special circumstances which the judge might have to make a decision on i have a another case in seattle with thirty five hundred different victims and virtually every one of those is being resolved out of court so that's just a that's just a boogie man story there is not going to be nasty of that in this case there are only something like seventy or eighty victims that's a tiny number compared to some of these other cases this is a very manageable case if only the government would recognize that we do have standing you know i guess i'm just i'm very pleased to see that every single  stanch yes these issues i mean i i think i just want to go over some of the the what i consider to be dispositive points that i think each of you have made i think each of you have pointed out that there fundamental contradiction in the government's position on and which i missed and it's a great issue between there were mission regulations which say we have a legally cognize little interest in this property and the position they're taking here which is that we don't not the same thing as having a legal legally cognizable interest in a particular asset not necessarily the same thing but in this case we need to have it started and the government has not even contempt of it that we we we this is our money we we can trace well the government has claimed i think i have let me turn to something that i had missed before that in fact but the district court did decline to impose a constructive trust  court said that the government would not be unjustly enriched if it got all of this money which seems preposterous on face you mean to say if the government denied all these remission petitions and just said we're taking four point two million dollars and we're going to do put it put it into law enforcement that would not be on unjust enrichment of the government the district court seems to be assuming that the government's going to return all these monies to the for the victims but there is no have lost for all these years to the government and and then mr wealth responded well but we have all these costs involved in investigation and prosecution but and then one of you responded i think it was judge noonan that well but there's a them will he didn't make any record in the district court about that the district court didn't inquire about that as a matter of fact the district judge was remarkably uncurious about a lot of things in this case he never asked mr wells about his representation to the court that he had never received any claims from the victims in this case the basis on which you have seen the default judgment we repeatedly tore our hair out over that and indeed we've done it again in the court of appeals in the district that wasn't concerned and said nothing about that in granting the motion for the fall the even apart from whether the government would be unjustly enrich the way most think the district court asked the wrong question to begin with it's not a question of whether the government would be unjustly enriched it's whether mr fact and would be unjustly enriched and he would be certainly there's california law which we cited in our brief that a constructive trust arises at the time at the moment that the fraud is committed even before a judge ever looks at it and it relates back to that time when a judge actually imposes a construct a truck so you know that's an undisputable let let me let me go into a couple of other things yes i think all of you were incredulous at the government's position that somehow the government can get around this construct a trust issue by saying well the money ended up in a in a bank and somehow the fact that it was deposited in a bank transmutes escaped from one involving a constructive trust too to make up mirror on to your creditors of the bank and i think you all agree that they're what the the banks really not an issue here it's the if it's between us that back then the government who should get this money and certainly if you if you go back to the fundamentals about article three standing and we talked a lot about the fundamentals in operate we have a concrete enough interest in this money to be able to present a issue to the district court we clearly have to try to you know has dragged on for years mcfarren buck was involved long before two years before the complaint was ever three years before the complaint was ever filed he's a want who who got off the list and seen courts to block this money before it could absent before the bad guys could abscond with it so we certainly have a concrete interest in this case and that and as i think you will recognize the standard for article three standing is very liberal  we've clearly met that standard i mean there either the funny thing is and i we we quoted in our brief verbatim the district judge during the hearing of this matter  question mr wealthy and so whether he was making this article three argument with a straight face it's right there in the record and you know we had no warning that the court was going to decide the case one hundred eighty degrees differently until the court came down with  decision and and i think all of you said you just couldn't understand how we couldn't meet that minor article three threshold but you know mr wealth raise another issue which district judge never decided that is it padding to do with the merits of the case do we qualify as innocent owners assuming we're innocent are we owners within the definition of section nine eighty three and i and i would urge the court to address that issue at least if you for us on the article three issue because i would hate to see this case come back to the court on if the district judge then says well mr i'm granting summary judgment for the government on me because i don't think you've got  creditors cannot be innocent owners that's true but we're not unsecured creditors the issue is are we victims of are we the beneficiaries of constructive trust if we are then we aren't we we clearly have  innocent owners under the statute because of the legislative history that we discuss in our brief congress did look at that issue and in fact i know about it because i was involved in that i i got that provision taken out of the statu e and it's right there in the book and mr welton says absolutely nothing to contradict that because it can't be contradicted that his legislative history of that provision  just argued will be submitted will proceed to the next based on the calendar united states versus