good morning ladies and gentlemen welcome to the th circuit we're pleased that you're here we have a number of matters for argument today the st one however is submitted that is united states versus shrek which is officially cemented at this thirteen that's the mandatory victims restitution act it applies only to the quote person fined period close quote now we agree that it avoids the criminals social security rights and benefits completely avoids those but my client the seven year old missis once and was not a defendant was not charged wasn't even a witness in the weeklong script criminal v can do is reach for community assets her her interest in committee assets now before before you get to the community property question i want to address the jurisdictional issue you know the held that where the court had not issued a disposition order that the order was not final and therefore there was no jurisdiction would you address that please i'm not familiar you know the federal courts typically defer to the state courts execution of garnishment statutes and i do a lot of the used to but not with the new statute that the issue i'm not familiar with what the court is calling  authorized or required if you will by the way by the code it's a disposition order that is required in every garnish are you i suspect you're my  that my guess is that didn't happen in this case i'm not familiar with some subsequent order beyond the order judge windmill issued so you're so well i don't think of appen in this case i don't think it did either and it's i can't believe that it's really ministerial is that it is a minute must the my ass not the court determine what percentage of the counts for be garnished and who the money is going to a fairly substantial step to take in thirty to all five see that's in the judge's order he says the entire count there was forty thousand dollars in this account and  judge said it's nonexempt and the government gets it well but if in fact there is no deposition disposition order doesn't the government it and i think i mean that without the order there is merely a filing of a writ it merely freezes the account well let's let's play it out so court reverses no jurisdiction will go back down they submit the the order judge signs it and here we are again a year and a half later not the there's no way for mrs swenson to block the order the substance of the case has been decided there's nothing pending down there i guess my worry is and i and i'm thinking my colleague is worried as well as why i asked the question we don't have jurisdiction and two we have something that is appealable and with twenty eight c thirty two of five c seven i'm really worried that we're stuck i mean we might say to you mr manwaring we'd like we'd love to deal with this case we'd love to say what it is but given the fact that we don't have any jurisdiction how can we go forward well i can respond is the way we did in the brief there is nothing pending in the lower court it's all done well  perhaps we can look at a different way were the money out of the government have the money is still only garnishee zahn's where the i have no idea what what the government did whether they took the money or left it there or whatever they're doing well there isn't any money in the government's hands because there's no order suggesting it all we have is if you will the objections have been filed and they were ruled not valid well and  if the court feels that he is totally required i'll stipulate without waiving the rights i'll stipulate to have that order entered it's just ministerial there is no way to block it based upon the substance of the judge windmills opinion randori i want to be really straight here judge when mills order says and that's what i read and that's the thing that i'm of some worried about judge when mills order says that judge windmill can't affidavit which is the only affidavit filed in the record and she says this account consisted only of social security benefits that came to me and put in the account no whether money was co mingled with it and that was the only source of any money in the county i don't know why judge windmill said that but he in his records and in the record on appeal that's the on re factual affidavit and i don't think the government ever argued that that this money wasn't properly traced ok what's the difference between the objections that your client filed and the motion to dismiss the writ of garnishment made in mays i'm sorry i'm not familiar with that well mazes you're only precedent for doing what you want to do and in many ways there was a motion to dismiss the writ of garnishment and that was ruled on i'm trying to figure out if there is a difference between the objections you filed here pursu in effect to my motion her my objection was a claim of exemption and a a request that the garnishment be done away no other matters before the district court relating to in this case may's criminal case that in effect was equivalent to a disposition order we treat it is final went forward is there anything else pending in this case other than this also does not have an order if it came in at the same time and mr swenson's lawyers just said fine when it's no point in arguing it but there's no there's no order in that as to that account either not that i'm aware of but i think that money's gone too you want to save any of your time or down a few seconds here let me ask one more question which i think is pretty important here we are we're on we're trying to decide whether we're these social security benefits or community property under idaho law now when i read cherie it seems to me that that deals more with supremacy cla and the preemption clause and with what i don't state law means in other words i can't really read cheri and see whether they're really saying that this is a community property under idaho law there's a supremacy or preemption on what i don't know state law means but it never says unless you can read me the clause because i read it very carefully that this is not community property it just says as a relates to social security there's a preemption and so therefore it should not be divided but that doesn't say that it's a commune not community property i think your honor has to go to paraphrasing is presumed to be community property unless the conveyance by which it is acquired declares it to be separate for example your civa deed an inheritance it typically says as a sole separate seven that you're relying upon right or the person find right now that your point is but misses not this one isn't right was not a person fine so she gets to maintain her social security benefits if they're separate property if the property and under i'd olof the statute says if the means by which they were acquired deems them separate and that's what the social security this property was mixed but there's going to be some community property that i thought that the parties that effectively stipulated that the entire amount of the money in this account was from her separate property rather her social security which is correct what is correct is what is in this in the records and she has the only affidavit in the record and she says you have to read it this account included only my personal social security benefits and nothing else went into the account so damn that but i guess my real worry is i read your affidavit i know what it says but i also read the district court order which i have to look at and it says the wife failed to establish separate those with reasonable certainty and particularities that the money came from a separate property source and all i did disposition order it seems to me that the district court should had a chance to make that disposition order and determine what to do here i think maybe your honor i would just remind the court don't have a disposition order and i'm reading what the district court says judge with when mel i have you know he said what he said but he it had no basis in the record to say that something else was in that account it just is not in the evidence and i asked mr humphreys to point it out if there is some evidence i don't think mr humphries takes that position i don't think the government takes that position and the only thing in that account was social security benefits and that's per the the one affidavit in the record of the questions why am i calling thank you very much so let's hear from the government to your question no disposition order has been entered the government does not have any funds it's ok it's still with the bank as far as i know based on the rid of the writ of garnishment which orders the bank just to hold the money until further order of the court based on the order rid of garnishment and based on the statute though from the government's perspective since the money is still there there is no disposition order then arguably this is not even appealable matter at this point because the statute suggests the need a disposition or that so no motion has been filed for a disposition order the you know decision to the seven circuit case that judge mylan smith mentioned i notice there are other circuit cases out there that support your position however we do have this decision  mase so how do you address that i find the decision and made hard to reconcile with the other decisions in the th circuit namely decision of more and stick kone and then citing the figure out from maze is that there must have been nothing left in the entire case because it even mays even cites that in a walk torrey order is one where there is still there hasn't been a final decision on the whole case and here we are still something going on so maze wouldn't apply anyway from your perspective yes that's correct you're so if the in the district court had issued the order that we're talking about as to this account holding mrs swenson social security in the district already entered no longer holds property so at that point the garnishment would have been terminated and so presumably the mrs swenson it to that account there would been nothing else going on but that's the hard part about these post judgment collection actions is we have one hundred and eighty million dollars restitution order and the party involved here is the wife in a commune a community property state of the defendant i mean isn't this garnishment proceeding going to go on for some time and they can't year century any time you find that there's assets you posts judgment collection matters the opportunities they this order can be appealable and handle the district court's docket one thing that the court could do if it's the court so is so inclined is to perhaps leave this case in abeyance allow mrs swenson to ask the district court for rule under fifty four b c and if that is granted by the district court then it could come back and with the same panel with briefing on r t done by the during this whole period mrs watson has never filed a motion under fifty four court if the if the district court enters the c seven order the disposition order is it your position that the debtor would then always need the fifty four dollars b coming out of a garnishment or would there be some circumstances where the debtor would not need to get that when i read fifty four b i think the debtor needs to ask the court the district court for a rule fifty four b certification because it says that he's to the district court is determine all rights and liabilities of all the parties and that's the uniqueness behind post judgment collection as there's other other assets out there presumably and she and she'll have a community property and just they will have a community property interest and then there's other rights and liabilities to be determined unlike before a judgment the court is deciding whether someone's liable and perhaps the damages and when they when the court enters that order then you have a final order who is liable in the damages but then when you oppose collection procedures there's a property out there in the  these properties what's the government's position regarding war more was decided before the f t c ph passage and as you know in more you still relied upon the garnishment procedures under state law where there after you used the f t c vs own rules so what does that do to more if anything i don't believe it does anything and actually when i was looking at this the cases cited by my counsel for mr swenson one of the of execution is the order for the marshals to go take property and sell it and apply it to the debt there is nothing further but a writ of garnishments different if the writ merely freezes the account and then requires more by the district court judge where the disposition orders essential from your perspective that's correct and then i do point out is really like you answer that question i was just going to say what's the difference between the objection was filed and a motion to dismiss dismissed rid of garnishment which was made in mayes i think that they're probably treated the same one is called different than the other but in mays it indicates that there was nothing left before the district court in the case and trying to reconcile the cases that was a disposition order ever entered may i do not know that but in mays at least the debtor was the defendant right whereas here we have a identify who is not the defendant in a criminal case that's correct is that does that distinction matter it may in some instances but here i think the complexity lies in a community property state and it's the spouse so and they were married in one thousand nine hundred and seventy one any property acquired during the marriage is presumed community property so therefore although she's not the defendant presumably almost everything acquired is she'll have some sort of interest in so she's almost treated when it comes to clip post collection matters the defendant in some sense i mean more from the to the criminal case and that is a distinction compared to mays that is and i come back to rule fifty four b there is a mechanism to appeal it's just and that is important the drafters of the rules thought it was perhaps that's what judge when miller do not saying he won't but it's that rule gives him the opportunity to decide that but let me move to the nd issue five might the district court said the wife failed to establish separateness with reasonable certainty and particularly at the money came from a separate properties or is this say that the evidence presented doesn't show the fund is only from so security proceeds i do not believe that's what it says we have never taken the position that the funds are not which is consistent with what mr mannering saying that at least as to these the government doesn't take the idea that the proposition that these funds are anything much souls purity proceeds that's correct the only reason judge when mail would have said this was he was only dealing with whether this is a community property or not that's correct and he may have felt that that issue under sherry was not clear because of the supremacy issue but the government takes a position and you just clarified that you're not saying that the funds came from anywhere other than what mrs swenson put it in her affidavit right yes with the clarifying that in her affidavit she calls it separate property that's the issue we have but other than that yes it comes from your knowledge for purposes of this case that the money in that account came entirely from the social security administration to her it was not property per se of her husband who was the defendant in this case or access my guess yes it was paid to her from securing a section ok so if in fact we're looking at sherry when i saw sherry i looked and i saw that it really dealt with this primacy clause in a preemption clause and said with those supremacy and preemption principles involved we're going to suggest that this property not be separate property not be divided up in the divorce should i send this the i dos court to see if they believe the same thing should happen in this particular case because we have these extra ideas from the m v are i don't believe so because the issue really comes down to federal law in sherry it's federal law versus state law and a state court in a state court the supremacy clause that it's community property laws in some sense were suspended for a moment and couldn't be applied but here we have a distinction between the social security act or a conflict in security act and the our way were to federal laws and i believe that the th circuit is the court to decide that rather than the idaho supreme court the difficulty here is that under idaho law this is not community property and it's only until you get to the that i think you would say well there's no question and so it seems that you're trying to use the n p r a to create a state law property right that the defendant mr swenson would not otherwise have i don't believe so because the idaho law is that anything acquired during marriage is community property unless someone shows otherwise and the only way said social security is is out that's right but  partita from this from the circuit talking about what that was the distinct with the the automatic stay under the bankruptcy code and the m v ira the the garnishment in that case or the writ of rid of garnishment that case happened after the bankruptcy was filed after the federal statute applied which would be similar to what you're suggesting here with the sole security act but the court still found that the m v are a trumps that provision of the bankruptcy code even though the enforcement action happened after what would the government want this court to do with respect to the issue of whether or not this is once and account is separate or community property to find that the n p r a sweeps aside the social security act therefore under i don't have lots presumed community property because there's no conflict between idaho law and so i would say that this is a piece of premised the law if you will of sherry applied does not apply here that's correct ok other questions my colleague jim all right thank you very much you now we've used up all your time but we'll give you a minute you but the if you want it you don't have to take it but if you want a minute we'll give it to you is you're running circular you say for the person fine problem is we're really looking at whether this person find has these social security benefits as community property and therefore i'm trying to figure out how it is we get out of that circle if all you're saying is the m v ari doesn't apply because he was because she wasn't as the person find on the other hand the m are a applies every time to social security and the only reason that our idaho supreme court said that it's not community property is because of the so security act that the a avoids his social security rights but not hers but and so she gets to maintain those she just doesn't say in there you can only avoid his social security rights and not hers it says it avoids also security rights and now we're trying to determine whether those so security rights are community property but at the last part says for the person fine now what they want to say what the upright they're trying to say for the person fin and the spouse of the person find that's that's the way you would get to the way the government wants it it can only void it for him not for her ok i think i think we have your contention thank you other question by my colleagues i think not i think we're all set thank you very much the case just argued is submitted