belonging to an innocent bail or when the bailey uses it in connection with criminal activity the answer that question is no by virtue of his status as the bail or if his life savings mr hernandez had a vested and superior interest in the money found at his son's house and that is true regardless of whether his son unlawfully used his money for drug dealing the reason is because his son never acquired any interest in the bailed funds to begin with and that now how do you get beyond the findings of fact by the district court that it was drug money where you got an interesting bail or bailey argument but how do you get by with a district so let's go to e r two seven your honor and he says the district court says it's unnecessary to resolve whether petitioner ever gave defendant cash to be concealed or if he did what amounts this is so because the great weight of the evidence shows that the seed to seize cash was clearly used for drug trafficking that doesn't matter because it that it's used for drug trafficking has no impact on it if it's bailed funs the person who uses it for drug trafficking never had an interest in it to begin with and let ok lawyer lawyer takes in trust funds from five different clients right lawyer then decides to enter into a drug conspiracy uses those drug those trust funds to sell a whole bunch of drugs government then puts it keeps going in the trust fund the government comes in sees it says those are drug proceeds no doubt the drug proceeds doesn't matter the art he is a bail or he is the trustee i mean he's the beilein the trustee of that those clients if it were you know mr barnett or if it were me i still have a superior right because that lawyer never had title and that's what we're looking to under california law not the case but more importantly because al gore is garcia it there's no tracing there there's no serial numbers or fingerprints but we know because that's what happens that's what california law says so we're looking for california law for the inputs and we cited the gotoh case which is is the identical thing bailed or the product of or substitute for that thing together with all increment is to be returned and the bank of america case that we cite from the california supreme court your honor says that when a bill or seeks richer turn of their property which is what happened here they are quote in effect tracing and reclaiming their own property rather than asserting a presence in the bally's general asset that is he is at all time tracing his funds if this court agrees he is a bill or as respectfully i think it must under al gore as as well as the california case law it's really game over now it's another thing to say well the district court maybe could have had made other findings but he didn't in this case the district court decide i'm not going to go to the any credibility fine i'm not going to consider any of that i'm just going to find that as a matter of law doesn't qualify and really the opposite is true as a matter of it actually was that's what was you could or we could look at the you could certainly do that and we would welcome that remained or given the nature of this record that we have two witnesses well we have the member the district court admitted the statements of the agent as to what the son said it's my dad's money we have the testimony of my dad it's my dad's money those are both unrebutted so on this on this record the only evidence it's our burden but on this record the only evidence is that it was the dad's money as the bail or so it into court could also simply remain and say grant the petition either for a fact finding or to grant the petition forty one to forty three to fifty three before the district court's decision we make this exact they'll argument i don't want to cut in less the court has more questions on bail or billy ok i think your hon when my hearing aids went on fortunately yes i think it is important because if a three man did we still have the issue of you know what are we going to do with this condition and what should the district court do was far as it is concerned and i in contesting the four picture of the properties they include these in all of the on plea agreements and it's very troubling it's one thing to say you're not going to contest the forfeiture i understand that but to prevent somebody else  defense from testify on behalf of another individual even if it's the truth is just clearly died denial of due process in our view and obviously we went beyond that when they did the interview when mr smith did the interview of the witness on february sixth twenty are sixteen where he basically doesn't simply warn him about perjury and so on but basically says says you're why i don't believe you that is originally said directly inconsistent with what he said later yes originally in the plea agreement he says it's all drug money and it's mine ok at the interview and i'll quote a truck then there's the same thin actual dollar bills were money that he got from drug deals well you know i would say that there is absolutely no evidence as to what he did with the money other than what we stipulated were the facts from the agent's report which is just one paragraph i'd like to briefly read it hernandez stated that he knew his father was going to contest the seizure and that the money was his father what about on the banner of the only thing i mean suppose he that he had seventy five thousand dollars from his father from the father if you had the money in the spirit and if it and he could have given it back to the father you chose not to but this money was dropped proces if the money was sitting over in a safe deposit box and then the son would have said well this money at the house is not my dad's money it's sitting over in a safe deposit box this money is other money but that's not what he said he said this is my dad's money and this is why i was holding it for united states federal law governs this case and not state law the district courts finding that the seventy three thousand dollars they were actually sees were drug proceeds necessarily means that the father's interest cannot even superior within the meaning  at the point where once you're past that first hurdle whether the defendant's interests are superior to third parties it appears that the first issue wasn't weight why tell me why that is what's the difference you know there was thirty five thousand twenty  claims twenty thousand twenty five thousand twenty five it was forfeited and the money that the third party is claiming appears to be at least in part at twenty five thousand time right correct resigned you raised one issue earlier which is what would happen if there was another seventy five thousand dollars sitting in a safe deposit box versus this drug money that's exactly why every court to address this issue is held that a third party petitioner ground proceeds that would be flatly inconsistent with this court's decision and hooper so yeah and under the plain terms of the statute there's two timing there's two provisions that are important the timing of the interests at the time that funds are used in criminal crime criminal proceeds the united states interest is a superior one under section eight fifty three and six a the only third party interest that is cognizable in this context is an interest that was superior to the should be able to they should be able to claw back property that was purchased with drug proceeds this court did not reach the state law issue they said even if it were true that under state law they would have an interest at the moment in which there was a finding th rule under state law was sort of pointless because in any event even if they are interested superceded by the government's interest yes you are in that first issue just wasn't addressed and thousand dollars in a shoe box in cash and the son had you know left that money in the shoe box but having gauged in drug trafficking activities got it an additional seventy five thousand dollars or so in cash and mix the cash together in the shoe box so that again you there's no way to trace which specific bills were the can from the dad versus came from the drug trafficking activity i assume in that situation you would say that the claimant has a good claim correct correct that only seventy five not only did the son take in the cash but he then used that presumably to purchase drugs which he then sold and then had you know that the cash that that ended up being found was actually derived from the drug sales that's the problem at the point in which you know at the point which there is a finding that proceeds that money has dry proceeds and that's not contested here a third party is never going to be able to assert a superior interest in it there are other ways they can get that back just not under the  that he would not agree to contest the forfeiture is no more than saying that the first provision is accurate because he cannot contest the forfeiture if it is in fact drug proceeds and he is the owner of the money so this is this isn't really a case where a plea agreement is driving some way what we're left here is with this is a situation where the defendant voluntarily agreed that a certain amount of money was that he was the owner of the money and those were drug proceeds and it was annoying to back out of that that did render him unavailable that doesn't form the government hooper is a fundamentally different case and let me just quote from hoover to qualify for relief under fifty three claimants legal interest if any must have invested in claimants at the time their husbands committed the crime their husbands crime had to be committed before there could be any procedure for river resulting from them there was no community property interest at the moment the husband's violated the drug trafficking statute they didn't give their husbands any money before they alcatraz garcia and this is in this case because at the moment he gave him the funds as the bail or are the bailey the son never takes any interest in them well you know i guess i disagree with you drugs and you know it and then sold the drugs and had some different stash of cash i think the case would come out differently because it would have been proceeds at that point wasn't proceeds of any illegal illegal activity  driving me to mexico with the money and would have just given him to die assuming that that's right i assuming that it was the same money but it was forfeit of all because it was in violation of the law i mean this whole argument question in this particular mine was in fact money that somebody handed in this part of a drug to wherever the money came from to buy the drugs right what case says we don't stop job of asking the court to skip steps and look just at the procedures but that's not the exam now assess and if i could just do this one math essentially like a equation we look first to the bail or under state law because he's a bill or mr the sun never gains a vested interest the baylor's interest is vested at all times because the sun never gains a vested interest the government can't gain an interest it's not forfeit a ball because  sun essentially converts it it's the same example as the lawyer in the trust fund if we had if i was arguing about a lawyer stealing his client's money and using drug proceeds i don't think i'd have much of an opposition to the idea that of course those clients get their money back that the lawyer stole it and then converted into drug money is not going to make the client's out of luck i actually don't i don't know if the lawyer uses the money to purchase drugs and the money that's found is ultimately the proceeds of the drugs but why you're right why does the united states get that rather than the innocent owner well because the innocent clients as you say or someone said i mean clearly the clients have a cause of action and for conversion against the lawyers but that doesn't tell you whether the united states gets the money right what does tell you under the statute lester and now greg garcia is state law and if this client is the lawyer is the bailey the trustee he doesn't or she doesn't have a vested interest that superior at the outset it is at all times mr hernandez father interest the house what they didn't have they couldn't get the money from the drug so they went after the house it was the government coming in and saying we're going to go after substitute property and the court says no no at the time of that it's a substitute but i understand the question but the problem right we haven't confronted this exact case this exact case but i think the writing is on the wall based on lester because what lester is doing is saying no no no at the time it's  wife we're looking at the that the wife interest is vested it's superior so even though it's all substitute proceeds in this particular he did have a community property interest in this particular house this property