would judge catlett and judge watson before i forget i would like to reserve five minutes of argument for rebuttal ok and if you could let me know i'd appreciate that i'd also further like th means you're out of your town at seven if you want to go in your bottle and then you just keep talking ok i'm a little nervous this is a first time i've ever been here so i take a deep breath and try to find this i say anybody who's any lawyer says they've never been in any circuit or by the supreme court any district court that have addressed what i believe is the principal issue in this case and in this appeal we believe that the issue is a first impression and in order to look at that we need nexus between the property and the offense well ok let me let me stop you there because i think there is precedent that's as i mean your  client is a third party here your client was not the defendant in the criminal case that is right and it's there does seem to be precedent and the committee notes the advisory committee notes to rule thirty two point  seem to say straight up in effect i think i can quote them when you bring in eight fifty nine and petition which is what you've brought up correct right ok and they say an eight fifty nine petition quote does not involve re litigation of the forfeit ability of the property its only purpose is to determine whether any third party like your client has a legal interest in the forfeited property and specifically whether your third party's legal interest is superior to the defendant's right and so that on its face scenes in a case brought by a third party to limit our inquiry to whether to a single question whether the third party's interest is superior to the defendants and does not allow us to really litigate whether the property itself it's an antecedent determination that the property itself is subject to forfeiture which seems to exclude the argument you're trying to make it in looking at that though that is it's a committee no but i don't find anywhere where there has been a decision of the court and the problem i have with that is if you look at the procedures that went through in this case you have a bunch of circuits of so well we haven't gotten there yet but we haven't gotten there yet second eighth tenth and eleventh  limited some have rejected it who's gone the other way do you know i mean i just gave your insisted there was one he cited it was holy land i think the district court in illinois came back and said no that they weren't going to follow that that's just one that's popped off the top of my head that i couldn't find anything here where they have a circuit case from one of the other circuits that says what you're saying here i don't that's a condition of a first impression and in here's the problem is i think when you look at rule thirty two point two b there's a condition preceded that didn't take place here and that's the problem  order to get to eight five three and then you have to have the government and the district court has to go through and the stablished the nexus in this case isn't that just another i mean you are contesting the fourth ability at this point right well if you can't forfeit the property then we stand in the superior position because of the property which in this case was owned by a series of l l c s and trust if those and they were not party defendants to the to the criminal actions of mr fabian although the government has tried in the motions and brief the submitted to the court to say that they were  in some way affiliated whether that's that that was the means that he had used but when the motions and bruised to the court mr fabian pled guilty to a wire fraud case in this against involving diane wind up in that case he pled guilty to an allegation that he had encouraged her to invest money in two fictitious are being c holdings which is royal bank of canada he made phony baloney documents he created all sorts of nifty things and that said here donate this money which he did that was what the information that he was charged with which was a wire fraud that's what he pled guilty to and when he pled guilty the information in the documentation that they trying to do with said look he had associations with fabian and associates which was the company that he worked for and the vehicle to which he was committing the fraud with diane rot went was recycling brokers  which is what he used for the r b c money the problem was is that they tried when they came into judge neff and said all right it's not just the situation with diane went but it's and others trying to create it almost as if it's a r tearing argument when in fact they didn't charge him with a racketeering case and what constitutes the end others doesn't constitute diane went to her husband and her children or her neighbors or does it constitute what well then they of virtually every one of them he's the register agent of several of them but the problem is i don't think he's done some of them he was i think there was a jane often they were stephanie's the only other name and then there are three or there are five others that the government of dandified jason and stephanie and barbara county right but when you look at the properties that they have listed they still haven't said these are companies here is no record this is the first time we've ever gotten a chance to argue him before the court and that's a crime you don't have a very specific statement as to what what kind of headers to your client had this partner i am a member of this l f c and i got it on the first of july i owed by my client there was i don't recall there was any affidavit that was filed by him other than that was originally attached to our documenting them believe so however documents that were submitted by the government and there was a series of them that had the front cover sheets of the l l c s indicate that he was members of raven it doesn't stay i don't know that has a specific date if we had been allowed to go before the court we could at least have said and shown that the and just in august of two thousand and eight mr mays gave mr fa here's an affidavit or something and build on that i mean this is the statute eight fifty three and three make it requires frankly to put this in your petition and let me read it i mean it says you have to set forth the nature and extent quote unquote of the interest along with quote the time and circumstances quote unquote of how he got it and this petition is it fair to say doesn't do that  in the documentation is it fair to say doesn't do that would you agree with that that we didn't set yeah you know what i just read i mean it doesn't doesn't set forth the nature and extent of his interest and you know these like vehicles and so on or whatever it was and it doesn't specify the time and circumstance one hundred grand that you were just starting to describe it doesn't describe that is that i mean is that a fair characterization of the petition itself the petition states that we had a legal into the study we didn't see that doesn't go into detail could it have been more detailed well you know sometimes judges like to ask yes or no questions and this is one of them is that a fair characterization that the petition itself does not specify the nature and extent of mr mays interest in the property or the time and circumstances of how he got his interest it's not in the petition itself in indicate that we have a membership interest and raven i believe it also labeled buzzard it doesn't say when that interest occurred but that we have a membership  for me as has a civil judgment and again the main point i want to make your is that it's mr mayes's burden in order to assert his legal right title and interest in the state a claim for this forfeited property but even if he has a  judgment of some sort if it's unsecured and not secured against specific property which mr mays never says asserted it was he has no specific claim to any of the property that's subject to forfeiture this court held that in united states and that's been the present in this court for nearly thirty years now mr mays is simply trying to relive again the district court's decision as to the forfeit ability of the property  his argument with was there a nexus between the underlying crime in the forfeiture property and i do sumit with all due respect to my opponent here that's a complete and total red herring the main reason for that in one of the biggest reasons is because the government forfeited all of these assets as substitute assets there is and how are those defined or or found you know what what can be substitute assets any other property that the defendant has a right title or interest any so if if the property that's involved with the wrongdoing itself isn't enough to to meet the judgment then you can go after anything the guy owns correcting her and that is kind of fight it twenty one us fifty we don't get these every day and i understand your honor so yes that how do you go about demonstrating that he that that he has an interest in the property i mean how  does anyone have confidence and in the fact that you essentially make an assertion before the district judge that things are the way we say they are because we've done investigation tell us about that your what do you do in this case your honor mr fabian pled guilty pursuant to the terms of the recording to those terms he had to fill out a financial affidavit which he did and that's in the record document twenty one dash one i believe  provided an itinerary of all the property that he alleged he was an owner of he specified on there certain properties and it was simply real properties that he used that he purchased through his victim's fraud proceeds no he couldn't because the preliminary order of forfeiture it's called the preliminary order argument we face it as yes mr may i just want to understand yes correct and and i'll finish one thought here in in then jump to that rule thirty two point two provides that the district court must enter the preliminary order without regard to any third parties rights to the property that dovetails is the property involved in wrongdoing no this is the property that he submitted on his financial affidavit where he swore in said other property this was my substitute ass i see little kind of a preliminary order so the district court followed rule thirty two point two said which says it must enter the preliminary order forfeiture without regard to any third party or just right title or interest in the property the first question the panel asked was whether there was any precedent in any of the circuits that goes the other way i e whether someone has standing to come in and contest a preliminary order of forfeiture before the preliminary order forfeiture is entered and it isn't because it goes contrary to the statutory scheme twenty one eight fifty three k specifically says that the only procedure by which a third party contest can c test the forfeiture of property is through the procedure set forth a twenty one hundred fifty three and in that that supported by a this court's holding in the united states v brown united states v urban back in the fifth circuit in united states  holy land foundation list a litany of circuits that follow that same precedence so circuits gone the other way no circuit has gone the other way based on my research or other so from from that standpoint maines absolutely did not have any standing to come in and contest the preliminary order forfeiture prior to it being published and aside from following the statutory scheme set forth twenty one hundred fifty three in which he he failed to do there's an issue of article three standing in an issue of statutory standing in any third party petition and the whole reason eight fifty three and three exists is to prohibit fraudulent or frivolous claims in other words when the government attaches property through the forfeiture process congress did not intend for anyone to come in  a claim to the property that's why they have to state when they acquired their legal right title or interest what the nature of that interest is they have to fill out their petition under penalty of perjury and this court's precedents have stated repeatedly repeatedly that you can't simply make a bare assertion of legal title or a legal interest more is required and if you look at mr mays there's one case in particular come to mind where we said that i know it's in your  but sure there's a civil forfeiture case it's us v verses five hundred some thousand dollars in currency talks extensively about article three standing in fact that case was that term talk about the correct it says naked assertions of legal title or simple possession claims are not enough other words i was one of our cases that is one of the six circuits cases it is a civil forfeiture case also cite the white case which i believe is  have an eight fifty three and case that were not and i'm sorry yeah and three right that's what has sort of the pleading requirements is that we're talking about here with the property now the government admits mr mays was a victim of mr fabian's crime he's listed in the judgment he has restitution do annoying to him of four hundred thirty thousand dollars but simply because he's a victim does not give him a specific legal right title or interest in the property that subject of forfeiture and the law requires him to make at least a color bull showing of that which he failed to do here what to do have to show how i got it in when he got it is that enough yes to show how i got it when he got it what the nature of his interest is whether it's full on ownership whether it's person's interest presumably describe what was required well i'm if you're asking in please ask me another question here from misinterpreting your question your honor but a district court if  for example and this is hypothetical because i have no knowledge and maces never asserted that he ever secured this judgment property i know in the western district of michigan he filed a civil rico claim against mr fabian i believe in that lawsuit and you can ask my opponent here i believe he got a default judgment i believe he got that default judgment after the order of forfeiture for substitute assets was already  as was posted a conviction corrupt post conviction now withstanding that even though he simply had a civil judgment where it said mr fabian is indebted now to mr mays to the tune of one point three million dollars if he didn't take that judgment file it in the county land records or file u c c claims as to the specific property that we were seeking to forfeit it didn't attach and that's pretty standard secured interest law eight fifty three n two says is that all he has to show is that he has some interest or is there a provision that i'm losing sight of in here that says his interest test to be superior to that of the defendant in order for the property not to be subject or he has to assert enough facts so the district court can say this is this is in can understand based on the papers what type of interest he has in the specific property your question judge catholic as to the timing of it that's why eight fifty and three hundred fifty three and three imposes a timing requirement to go into the ultimate question ultimately in this kind of proceeding is the district court determining whether the third party's interest is pure to the defendant's interest in the property or just whether the third party has any interest yes in here no matter whether y you have to have a date correct or at eight fifty three and six b if he's a bona fide purchaser for value of the legal right title or interest in had no knowledge that the property was subject to forfeiture of a u c c type a bit so so a brief hypothetical ok again this is a hypothetical because there's no evidence whatsoever that mr mays ever attached his default judgment to specific property but let's say he did and let's say he did that after the government got its forfeiture order for substitute assets he still would not be able to show a legal right title or interest his petition would still fill the state a claim upon which relief can be granted that's why all of those requirements are in there if you personally held a security interest in all these vehicles and he had actually loan fabian money to purchase them goals and you guys that want to take the vehicles and he pops up timely and with adequate pleading says you can't do that i'm secured creditor you know perfective etc then you would have to back off that is that right that's absolutely correct your honor america happens routinely well yeah it does happen and you know i'm the asset forfeiture coordinator for my district and so that has happened in prior to you probably have banks absolutely when correct and that's the classic example judge catholic is when you have a bank that has a mortgage on a piece of real property that was used for example to facilitate drug trafficking we don't take that that property and make the bank take a loss there we end up recognizing that  interest but it remains the banks obligation to come in and claim that interest isn't a can't do it until after this preliminary order that that is correct because say for example there was a three hundred thousand dollars house ok and the defendant has two hundred thousand dollars in equity and there's only one hundred thousand dollars remaining on that mortgage the government's going to want to take that two hundred thousand dollars in equity but once the bank shows up in states of valid claim under a fifty three and three and says here's the mortgage it predated the drug trafficking and we clearly had no idea that that this house was being used to facilitate drug trafficking we end up settling with with the banks mr mays never did requirements under eight fifty three and you get one bite at the apple and you have to do it within thirty days of receiving notice mase filed this petition and all he could ever state was a quote unquote legal interest none of these ever filed a claim i place the chart in the briefs so the court would have a visual display of who the government's knowledge always associated with are these elsie's it's never came to light frankly why mays was ever part of the seas from an individual who was simply taking money from individuals under fraudulent pretenses and you know cycling it through a number of these corporations ok any further questions all right thank you very much we are your i mean you do have this remaining problem of whether you can even contest the  nexuses as you put it well i have one other thing to mr me was as i started to say as a member of the one of several of these i'll see and in order to forfeit the property under the sea then you have to go look at the interest and that then goes to michigan law and that would talk about the still dissolution of the property and the operating agreements now the government had the operating agreements they seize mr fabian's all of his property all of his documentation they supplied the court with front and not back pages but just a front page of the l l c agreements operating agreement so they were aware that mr mace was a member of that good to show your client's interests was courts appear well if he's a member of it and he's given the money to it here's the problem is then you have to go and say what's mr fabian's interest well nobody's sorted all that out and said all right bottom line here is the property is subject to forfeiture and frankly the statute bars you from participating in that terminate right so again because there wasn't any evidence there was not what i mean you're saying she didn't have a good reason but she did make a determination a determination you're not entitled to intervene in and it seems like you're stuck with it and now you just have to say that your client has a superior interest in the last were mistaken unless the other five circuits are wrong well i think this appear interest would be if they can't forfeit the property to begin with and he's a member of it or if they can't for the property and he has a judgment already against it then we have a superior interest ok ok all right if that's  ok well i mean we understand your argument on that point and i don't think i have anything further all right very well thank you both for your arguments case of the submitted clerk major in court