thank you honors and may please the court i'm elliot abrams with the law firm of chester parker in raleigh north carolina here on behalf of sergeant first class chamber i'd like to make two points today first point is that the pla billman is no longer controlling wall because last year the supreme court specifically repudiated the reasoning on which billman and it's progeny that is primarily bolen relied so turning to the first points your honor your honors the question on the merits we submit a straightforward it's a plain language issue we look at twenty one u s c eight fifty three a twenty one u s c a fifty three a identifies it's tainted assets that is the proceeds of crime and the instrumentalities of crime and property traceable to those goebbels that's correct your honor so i'll go to the to the controlling issue and trust that the this court can reach an up the merits question and the reason is because billman and the reasoning of bil four justices voting for ality which goes through and distinguishes monsanto and specifically repudiates the reasoning on which billman relied saying monsanto does not apply to situations where  did have a discussion about tainted and untainted as drysdale and monsanto but there would have been no reason for the floor ality to gone into the balancing test with regard to the sixth amendment if they were making a rule on tainted untainted assets if they would have agreed with justice thomas then justice thomas would be the majority opinion of the court parabole would not have needed to write that's correct your honor however if this case were before justice prior the balancing test would also be unnecessary justice prior says justice thomas is that if you go it is glaring yet the court doesn't buy into it what least they don't embrace it and they could they could have on a constitutional grounds your honor in this case what we're dealing with is eight fifty three and eight fifty and justice pryor spins page after page talking about the statutory analysis of a fifty three and so i'd like to point this court to a quote from justice prior's opinion where he says  monsanto he says monsanto does not quote stand for the proposition that property whether tainted or untainted is subject to pretrial restraint so long as the property might someday be subject to poor future he continued this reading asks too much of our president so what he's done there is said monsanto does not mean that you can seize substitute assets pre trial and that holding or that discussion was necessary because when the united states walked into the supreme court they said monsanto controls and when the dissent wrote both dissenting opinions say monsanto controls this question gives those as examples but doesn't really answer the question as to is there a bright line rule here for all the reasons the judge wins already described yes your honor and if we were making a constitutional argument that congress can not authorize pretrial restraint of untainted assets we could not rely on justice priors opinion because clearly he said the constitution is limited to what you need six men is limited to what you need to hire counsel but he says that i have another quotation and one reason i think that this is not settled by justice prior is because this the united states walked in and disavowed the reading of the debate fifty three that the government in this case is putting forth and so the justices weren't asked to answer this question they assumed that a fifty three did not authorize pretrial restrain of untainted assets so they didn't have to go and specifically say it but if we read justice briar's opinion for example towards the very end there's a discussion that says congress under the government reading congress could authorize or pass new laws that authorize pretrial restraint of substitute assets that seize property in cases involving a number of different offenses and then it cite one nine hundred sixty three hadn't because they would have more clearly specified it but when they're saying things like congress could change a law to allow pretty troubling strain of substitute assets and using as an example of a law that could be changed and citing very statute that billman relied on that is a plurality of the united states supreme court saying congress has not done it we are adopting the rule that every other circuit has and we are not adopting the rule that that you know that's the way it would go that we should that is abrogated but in fact i think when you come down to a woman just a few years we'll be alone the supreme court because it was an essential to the holding of the supreme court just troubled as to what do we do with bill and you can see the struggle does happen here on the court and i understand you rightly dealing with that but that's the key here is it is that still precedent in this search and if it is wonderful example that can be plied directly to this case in etheridge the question was is a great person who's operating a train car that's that the train cars ultimately going to go and be turned over and dumped into a ship and the question is is this brake person a maritime employee a prior four circuit panel had said no this person is not a maritime employee and they relied on a supreme court case and a reading of a supreme court case from which they drew a rule that says basically if you could if this type of conduct would occur even if there was no ship it was just a railroad then it's a railroad employee not a maritime employee and they said whether the question is based on this they took a supreme court case into a rule that said is this a traditional railroad function or is it a traditional longshoreman function and so they had a spring court case and they drew from that case the supreme  interrupt you is it not clear to use you stand there trying to make the example and draw it out that that exactly is part of the problem you're making a strawman argument but that fat you are making me ar a way that is maybe good but it's just not over the top compelling that is the issue when looking at it seems to me getting very good questions very good questions and you're answer them as best the panel the second panel relied on dicta in order to say but that doesn't mean that doesn't mean we have to even that we should that's not the person a bad case that you rely on dicta but that you may  not that she you have to meet the standard but that case doesn't stand for the fact that didn't tell lowndes enough to do it i think it says you are late that's how they are that's how they applied their rule in that case but which is where the standard comes from and has been applied as recently as two thousand and eleven in rucks it lucks be judged in the same way where we have a supreme court case that that when you read it is because but that is because the panel that both reject the reading of monsanto that has been applied by film and so you have five justices i'm majority of the supreme court who say monsanto does not stand for and what four circuits says it stood for to distinguish monsanto and without distinguishing monsanto the dissent would have won the dissent says monsanto controls the majority says monsanto doesn't control therefore we can reach a different result and so  reaching the end of my time so if i may preserve the remainder for  correct your honor is that it deals only with with the restraining restraint in the context of a sixth amendment claim and if you made that argument strong enough you need to say there is nothing more to say that is the argument of the followed this court needs to follow that precedent and the least doesn't change that as i've said it it operates only in the sixth amendment context that's the only place and it doesn't say anything about you know what eight fifty three main section eight fifty three means it doesn't say a what happens here the interest here is not a sixth amendment constitutional interest it's a it's a fact it's not even known what the record doesn't indicate what the senate needs the funds for within the needs the funds at all so we don't have the same kind of interest here at all in this case we don't have a constitutional interest and so you know dillman still applies restraint can operate against substitute assets except now under lease where there is a constitutional claim where there's a need to use those funds to secure accounts and in fact in the lease itself it puts a limitation on that it says you can only use it for reasonable attorneys fees so there's no reason to qualify it by saying in a recent attorney's fees if in fact there is you know  them should you get there on spring board that's correct that's correct you're not i don't think i have anything further to say unless the court has questions thank you very much thank you very much mr abrams thank you honors this straightforward analysis here is that billman relies on monsanto and quotes monsanto as applicable to pretrial restraints of untainted assets and we have five justices in louise that say that analysis is wrong whether it's a holding whether it's picked up is basically immaterial because we have five justices who say they only over read monsanto and so own depends on him i guess the flavor of this court in terms of how strong a judge should have a nice colloquy with you in terms of the sink the case that you made that he's absolutely on point with it but i think that just makes it difficult for you to make that argument here  given you know the four circuit we respect our colleagues and what they do via a law that absolutely are and and i would just say that in order to say that film is not been you also have to look at for circuit precedent and not apply that for circuit precedent so we're not in a situation where you know we have to disregard some statement by some panel and we also would have to disregard the statement from the cra that quote we cannot simply override a legal pronouncement endorsed just last year by a majority of the supreme court and that's what we have we have a legal pronouncement announced just last