or his deeds fall was caused by his failure to file a timely claim because of bad legal advice i submit that the answer is yes that a set aside should be granted he got bad legal advice or some was now a lawyer he got bad legal advice your honor from two people one was the government informant who was a disbarred lawyer who encouraged him to engage in the transaction which gave rise to the allegedly  so it would increase the likelihood that he would be criminally indicted but that's not excusable neglect that's our conscious plan well your honor i it's not neglect i mean he didn't choose will  his intentional choice not to follow a timely claim is in an of itself sufficient grounds for the forfeiture and for the default however your honor there's more at stake and the fock case and the forth for determining whether set aside is appropriate so for example a couple conduct is defined more broadly than simply choosing not to file in a timely basis couple conduct requires something more than just choosing to file on a timely but even before we get that we just look at the words of the statue it's dr talks about ruining the rule talks about excusable neglect ayers fan your honor and this was not here's the deadline but if you do you're opening up yourself to the possibility of criminal prosecution well your honor so it's two steps one you know what the deadline is for a timely filing and for conscious reasons you can decide not to file what you know within that deadline in fact honor the choice was probably something like that although i'm not a witness to the conversation he had with this attorney but safe to say to assume that his knew he had an opportunity to file he chose not to file but his choice was because of lawyer told him it would be best if he well to avoid coughing up his wife's rightful share of their property that was the accusation in the criminal case for what happened and it was convicted of wire fraud and tax evasion implication those transactions however going to there's never been an adjudication on the issue central to the civil forfeiture matter which is the money itself a nuisance is the money itself tainted is the money itself derived from the proceeds of or used in the commission of an act of either wire fraud or money laundering there's been no finding ever by the criminal court or certainly in the civil forfeiture because it was adjudicated on the merits that the money itself the corpus the four point six million dollars ought to be punished to the forfeiture process or to be seen best because your client chose not to contest punish the little ice as well that sleeping dogs lie if you if you if you contest the forfeiture chances are good the people in the justice department are going to pay attention to the case otherwise it might just advice because he was in fact indicted your honor because i mean that's how things are when you say you make things more likely this is not a guarantee you don't buy yourself a get out of jail card the bad advice was your honor that this man had earned that money through lawful means there's never been a you've never had an opportunity to adjudicate whether or not the money itself was derived from his so you know you're going to lose you're going to lose here you've got some chance of getting the money back by by contesting thought a sure thing but you get some chance on the other side it makes it more likely that you're going to spend to see the inside of prison you know more likely sort of the thing you most fear is laugh but how do i know it's terrible advice i don't know what a client you know i haven't you one of the person putting one year later he did file a claim and two months later he was indicted akhmed reserve my time you want to having an opportunity to make a defense against the poor pitcher and then two months later his criminally indicted and the government indicted him along with a forfeiture allegation which they declined to bring a trial and so he's never had an opportunity to adjudicate whether the funds were property in his possession and avoid liability by staying out of court or enters entire strategy here was to avoid staying out of court and fight by staying out of court and put his wife finally a claim having to give up his money to his wife in the divorce case and instead of doing that he took the money down to panama and engaged in a series of transactions at the site designed to hide that money from the court at some point during that series of in other words you didn't go to banks and get nine thousand nine hundred ninety nine dollars and repeat that however many times to avoid reporting requirements that structure yes your honor that this is not a structuring case in that sense  in moving the money from one location to another did he violate any u s law well there is a start with a yes or no yes there is a requirement that he report foreign failed to report right there it's there's no tax issues involved in the civil forfeiture complaint we all know that that is part of the crew that's the only violation of s law in the whole transaction according to the government right other than the failure or well that there is a will there's a fraud statute that he violated and the what's called the f bar requirement that he also violated which is but that is evidence that there was some gold bars moved now can you currently about one thing my notes and i could be wrong about this suggests that he actually filed one day before the expiration of the time period to file is that right ye but the requirement is that the delay in filing must be reasonable yes and is that the government's contention even though he was timely the delay was unreasonable well we did not specifically argue that in the in the district court but i believe that in terms of his acting promptly to correct the problem he certainly did not do that he did not you know if he waited a while he waited see what was happening with his wife's efforts to contest  and when his wife disappeared from the scene that's when he started to move in and try to set the default aside is there ever been an accounting as to how his transactions affected money that may have been available in the divorce proceeding in center we did not get that far in in the case of course you know we didn't reach that we didn't reach that what's happened to the money the government is still holding it we would like isn't it the wife's money well we would like to return it to the wife at least in terms of the amount of the restitution judgment in the criminal case it's difficult to contact the wife i would be happy to work with the council to try and come up with a fair resolution on that that our goal is not to keep the money for the government the goal is to compensate victims in these fraud cases so we have the money now i think the appropriate resolution of this case is to take it out of the judicial process the government has a specific restoration process whereby we try and restore money to victims trying to get back to i think that the restitution judge in the criminal case is two point six million dollars the remainder of the money is also subject to  i'm not sure what will happen to that but it we want to make at least make sure that the that the prod victim whoever it may be is compensated she or focalin he did file a claim and we negotiated with her extensively and then the middle of that process she fired her attorney for reasons that are not on the record and a lot of deception dissatisfaction with lawyers in these cases yes your honor we know government  you the other is an issue addressed in the in the brief is whether brander was sophisticated and i think that that is another factor that the courts consider in determining whether conduct is culpable and here we have mr brander having extensive legal experience he had a an assault the civil assault case he had well i wouldn't give him a lot of advantage in money laundering well the the test so is party a sophisticated if you have experience with the legal system is represented by counsel and in all mr brandreth many journey through the legal system he was represented by counsel and  in terms of the mr brander said he got that advice and in he doesn't really address the cases that we cite in our papers i think that your owners have picked up on is that just because you get bad advice doesn't mean that you shouldn't be held to the consequences of the advice you get mr brander and his answering brief attempts to distinguish some of those cases but he doesn't address all of them i think it's pretty clear that you know failed tactical decision can still be culpable conduct sinless a failed tactical decision can still be c your honor as i think the courts questions have highlighted fundamental rottenness in this case which requires this to be litigated on its merits before the district court our government through a disbarred attorney acting as an informant advised a doctor to take the money he had in panama and move it to an account in the united states precisely for the purpose of allowing the iris to seize it and now the government is saying well if we are allowed to keep the money under discretionary restoration process we or may not give some of that money back to the wife who in a divorce proceedings entitle to at least half of that he just said that the government as soon as they can locate her is going to give is going to pay are two point six million dollars that's what the government represented to us a few minutes ago with all due respect your honor i don't believe that representation is exactly the way the court heard it and i don't think that representation is binding on the u s government it's still a discretionary decision by the u s department of justice and i would be surprised if mr cordone were in a position to assure that a check for two and a half million dollars would be written to dr brenner's why he told us that it was going to happen so you can order a transcript of the use for c s i i would i would i'd love to have faith that that would be what would it  would be to allow dr brainard to successfully defend against the forfeiture get his four point six million dollars back which we earned upon a lifetime of performing plastic surgery procedures and then he in the deforest corden his wife can determine when she gets he can pay his criminal restitution and everybody should be happy but the idea that the government sees this money in another to self so you want to store a lot upon your client or not the government well i would ask this court to rely upon the citizen who earned those funds to follow lawful court orders in alaska and elsewhere as to how that money should be dispensed we shouldn't have to rely on our government and our prosecutors that this is not a crime we drove the money to animal look i'm not and then lied to the divorce court in alaska client not the defendant options this is a civil forfeiture what's at stake here is not to dr brain to do something despicable it's is the money itself a criminal is the remedy a nuisance that needs to be seized by the u s government because