we're argument next in case sixteen one forty two honey cut versus united states between a cow school mr chief justice and may please the court petitioners brother obtained nearly two hundred seventy thousand dollars in proceeds from the sales of polar pure petitioner obtain nothing yet the government seeks to hold them jointly and severally liable for the entire amount that position contradicts the text structure of history and the purpose of section eight fifty three the government's position boils down to the theory that even though petitioner did not actually obtain this money he should be deemed to have obtained it because his coconspirator did based on suppose that background principles of conspiracy law but those background principles are both inconsistent with the text section eight fifty three and also do not apply on their own terms so to begin with or textual argument i'd like to focus on the structure of section eight fifty three a because section eight fifty three a enumerates three categories of property subject to criminal forfeiture eight fifty three a one at issue here are proceeds obtained by the illegal activity eighty three eighty two addresses the instrumentalities of crime and eighty three eighty three addresses that criminals interest in a criminal enterprise so we pointed out in our opening brief that really joint and several liability doesn't make a lot of sense as to a fifty three a two and a three which supports the inference that it also doesn't apply to a one and the government's brief states some surprisingly my view that there's some back and forth about what's new and what's old in the government's theory is that part of what's changed in the government's theory or not yet is one thing that's changed we caught a third circuit case from i think two years ago where the government took the exact opposite position and in fact persuaded the third circuit to apply join several liability under eighty two which is one of the reasons we put the sargon in our brief but the government's change in position i just cannot reconcile it with the statue at all i mean the government's theory is that a two and a three are somehow tied to ownership whereas a one is not but you cannot get that out of the statute it just lists three categories of property and if a two and a three are directed to ownership then so is a one and converse lee if the government was faithfully applying its background principles it would apply it also sections of it fifty three i mean under the government's theory if one person obtain something then they all do under a one identical ration reasoning would require that if one person uses a car in the conspiracy they all do and then there is forfeiture liability for everybody under eighty two and so i just don't understand the distinction that the government has drawn here and the fact that the government's feels compelled to argue one thing under a one and another under a two and a three i think shows that this is really a form of common law criminal liability that's not required or not authorized by the text i just want to say one word about a three in particular which is about criminal enterprises specifically that statute says that a criminal defendant forfeits his interest in only his interest in the criminal enterprise not the value of the enterprise as a whole that's a conspiracy specific forfeiture statute that requires the person only to forfeit the interest he obtained which we think is just totally inconsistent with the government's theory than under a one which is nothing about conspiracy liability there's this hidden pinkerton so not another argument we make has to do with the rest of section eighty three as a whole which supports our view that really section eighty three a one is talking about forfeiture of tainted assets and in the government's brief again they agree with some surprising interview they say that yes eighty three a one only requires forfeiture of tainted assets which means there is no joint and several liability so what the government has essentially admitted here is that when one person obtain something in fact there is no joint and several liability only the tainted assets are subject to forfeiture so only the person who actually obtains it can forfeit it and in fact at the time that section fifty three was an actor there was no substitute assets provision so at that time just there was no joint several liability at all according to the new theory in the government's brief which i haven't heard before so the government's theory is that actually what opens the door to jointly several liability is the separate substitute assets forfeiture provision in a fifty three p but that just has no basis whatsoever in the statutory text i just asked the court to just read section eight fifty three p what it says is if based on an act or emission of the defendant property described in section eight fifty three a one is unavailable for a series of enumerated reasons then the government can seek substitute forfeiture and i think it's just obvious what's that that's doing what it's saying is that if the defendant does something to thwart the forfeiture of the tainted asset then the court can go after the defendants substitute and i suppose their answer would be that under pinkerton we're talking about the defendant you're also talking coconspirators your honor first of all the government doesn't make that argument in their brief and i actually think it doesn't work because very frequently the dissipation of assets will not be attributable to other coconspirators in your picture to expose one person goes to las vegas and gambles away the proceeds of a completed did something to to cause the property to be unavailable which the government hasn't shown and can't necessarily show in general or that the act that triggers the subset forfeiture which is the dissipation is attributable to coconspirators which the government doesn't think it has to prove and hasn't proved here and i point out on the facts of this case there is no showing up on availability all that happened is that the government agreed to a plea deal with the brother in which you would only forfeit a subset of all of the tainted assets and so as far as we know those assets are just in a bank account somewhere so the government hasn't even tried to prove the requirements that it claims open the door to joint several liability so i think i think that the reason the government's theory doesn't work is that it's just inconsistent with these background principles because we just think that the relevant background principles are the ones governing number one forfeiture and number two sentencing and neither of those background principles attributable in either of those areas support joint and several liability so first as to forfeiture as i think the government agrees the relevant historical tradition is in ram forfeiture favor just that means we are into the rico statute as well i think there's a pretty good likelihood of that i mean i admit the language is very similar i haven't studied whether there's some other structural difference i would guess the government would come up with a way to distinguish this case if it lost this case but  i don't know what that is for sure but it is true that the language is very similar i knowledge that ricoh may be easier to prove the joint can separate concept because rico is an enterprise as the fine that is true so the language of the forfeiture provision is similar but it may be that some background aspect of rico or some structural textual argument it doesn't apply here might apply but i haven't studied that issue specifically and i'm sure that the government will probably come up with some theory of if it doesn't prevail today well how would this work how would your rule work as a practical matter and a drug conspiracy case or a racketeering case where are the government can prove that a certain amount of money was taken in by the conspiracy over a period of time and then it was divided presumably it was divided up in some way among the members of the conspiracy in that they have to show how much each of them got  not going to do this by check it's all going to be by cash so how could that work as a practical matter so i think that section eight fifty three d solves at least some of the government's problems in this area which is this presumption that if you get money during  conspiracy and is no other likely source it's attributable to the conspiracy so the way that would work in practice is suppose a bunch of money comes into a conspiracy and there's no specific records of how it's distributed but one day a conspiracy buys a yacht or something or buys a new car so the presumption in section eight fifty three d allows the court to presume that the car is tainted it's subject it's you know it's because of the tainted money even without a direct proof that a check was given which i agree will not typically happen the government ever tried to invoke be here where members of the conspiracy have have spent a lot of money they dissipated in one way or another so they don't have a yacht or some house and they can be can be identified but it's clear that they had they had a lot of money and they spent a lot of money then what happens well i think that first of all it's actually if you three has several powerful tools to determine how much each person obtain you can take depositions there's asset freezes there's a bunch of other things come on you're going to take out you know a deposition of somebody i'm a mid level person in a drug and drug enterprise home how much did you get per week well no but if you have evidence of the person spent money somewhere you can go to the place where he allegedly spent the money and try to figure out how much he spent but yes it's true i can't i can't deny that there's probably some category of cases where forfeiture will be harder under our rules than the government school and we think that's just part and parcel of a statute that requires forfeiture of of taint of property except a certain subset of assets are met i mean if you if you the obtained element and the government is essentially asking for a judicial repeal of the octane element then obviously in cases where it's hard to prove the obtaining the government will have an easier time winning but i just don't think that's the way that the court should construe the statute in terms of background principle so we've already talked about forfeiture how there's no background principle of joint and several liability in forfeiture i think the same is true with sentencing because the government is essentially saying that forfeiture which is by statute a component of a sentence is joint and several in the sense that one person's payment will decrease another person's payment and that just never the way sentencing has worked either in criminal sentences or fines so we point out that walter and daniel pinkerton it's true that they were substantively liable for crimes committed by their coconspirator but that individual finds  individual sentences and that's just part of the traditional principle of sentencing that it's tied to an individual's culpability so it doesn't make sense that one person's payment would be reduced based on someone else's pleas greenman because that's not tied to his own personal culpability so in that sense joint and several liability is inconsistent with background principles too i think the overarching point is that this really isn't the application of background principles and i think that's the deeper point in this case because this joint and several liability issue has never come up ever in the context of conspiracy law so what the government is doing is saying that it thinks it makes sense as a matter of policy to apply those background principles from very different contexts to forfeiture law but altered in various ways so there's joint several liability it applies to some sections been and others and that is just not the way the court has read criminal statutes at least that is certainly true and if the split does favor the government we agree but there's a lot of different ways we point out in our apply brief where the government's positions in this case actually diverge to some extent from lower courts and in fact just one very recent development i would agree  won in the district court so i commend the government from doing that i truly believe they are acting in the utmost good faith but my point is that the fact the government feels compelled to confess error days before eight supreme court argument in the court of appeals is in some tension in my view with this view think it's quite persuasive at least on the reasoning but no there's no other court of appeals decision other than a florist which is found in favor of our position is that is there any indication in the text of a true fifty three that those who framed h conspiracy in mind i think so yes i mean section eight to do a three is about criminal enterprises and that which is a form of conspiracy and that subsection states that you only forfeit your share of the criminal enterprise so i think that at least of that subsection congress did have at least one form of conspiracy in mind and the government agrees that under that provision joined several liability does not apply this is a a bit off topic but the statute refers to proceeds that the person obtained directly or indirectly you have a view as to what that indirectly is doing there and what it encompasses yes so for instance i think this case is a perfect illustration of what encompasses so petitioners brother did not personally obtain it i think the ownership interest was through the corporation that he owned  controlled and in fact there's been several court of appeals cases in which people have been held to have indirectly obtained money when it flows to a corporation that ultimately are controlling the money so that's one example of indirectly obtained another example would be if say you know petitioner said well you i want to pay for my my son's college or my daughter's college education and someone says ok will all pay towards that rather than pay to you that might be an indirect we obtain in the sense of getting the benefit of the money that actually getting it directly so i can't claim to providing a full taxonomy of all the situations in which someone could have indirectly obtained something but i think the just the fundamental distinction in this case is between indirectly obtaining and just not obtaining it which we think is the fact of this kid if there are no further questions i'd like to reserve my time thank you counsel contexts so that pinkerton and it's based on a fiction writer removed them in the defendant may not have been there when the acts were committed somebody else may have done it but because it's a conspirator you treated as if he had done that yes i'm not sure that their theory works when you're talking about a more focused disagree mr chief justice and i'd like to explain because i think this is going confused this broader issue of tainted versus untainted property and how that maps onto our view of conspiracy liability i think the reply brief confuses our position on that and i don't fault my my friend for that but i just like to lay out our understanding of how it works section eighty three a one makes of the four federal proceeds the tainted property or the tainted proceeds the foreseeable property so if you have two guys who sell a bunch of drugs they do a drug deal and they get a duffel bag full of cash the proceeds the property constituting the proceeds if the government doesn't have to prove which of them is responsible for the cash but it doesn't make sense to talk about that in terms of joint and several of my ability because joint several liability is a concept in law that comes into play only when a person is entitled to recover some sum of money and it looks like that's something anyone could if they both have the i don't know who's carrying it they both have a duffel bag and all that and you say well they're both liable for it's awful bad but then one of them takes that awful bad and you know buys a car with it but you and your theory is that the other guy is responsible for the value of the car right is that very often when you're largely also is if the other guy you know just dropped to the person off had nothing to do with getting the dr back or whatever the same thing happens he's still responsible to forfeit the value of car if it's foreseeable to him yes and let me explain why i think that makes sense it's because if you find if you're in the situation where you still have the duffel bag you still have the traceable proceeds that's what forfeit all if you're not in that situation anymore if as is usually the case by the time drug defendants are rico defendants are caught it's been dissipated it's been told that somehow unavailable that's the garden variety typical case everyone agrees that in that circumstance the government is entitled to recover the value of the proceeds that have been dissipated and there's some disagreement about why that is and how that works and i'm happy to talk about that but i think for purposes of the question presented in this case everyone agrees that the government is entitled to get that value of the dissipated proceeds you have to show one of the preconditions and he so to invoke a p p is a procedure that allows the specific substitute assets in a defendant's hands a car out something like that if the government's going to invoke p the government has to show what that one of those five preconditions for p has been satisfied as to one person don't not to the other in other words if we have cash from the chauffeur you don't have to trace it to him somehow because he's a coconspirator he is considered to have obtained what anybody else has obtained that's correct if you're in a situation where the traceable proceeds aren't available then you're in a joint and several liability situation i wonder why you call them tracing iow i think your theory applies even if they are you don't have to show that they're traceable i mean if you can show they're traceable he used the drug money to buy the ferrari are you saying that then the chauffeur is not liable for those proceeds if the ferrari is within if the government has the ability to forfeit the far is still falls under subsection eight fifty three a one it's proper property any proceeds the person obtained directly or indirectly and that's property derived from those proceeds even though this particular defendant or the particular person did nothing himself to place the proceeds beyond the reach of the court that's right and i think the reason why we would do that when he comes into play and i want to get back to an answer to justice kagan's question we don't think that the only way that the government can recover dissipated the value of dissipated proceeds is by invoking p but when p does come into play and when the government is seeking to rely on that era lies on the same principles attribution that the chief justice is question suggested earlier that you're liable as a member of a conspiracy not only for your coconspirators act in obtaining the proceeds but also for any act that results in the dissipation of those proceeds so in other words you're saying the defendant in p is the same as principles though that persons is responsible for the activist who contributors are attributed to him as a matter of law and we think that's true under a one for the act of attaining property we think that's also true when his coconspirators dissipate the property or take other action that makes it tainted property and then he gives some circumstances where his logbook for all of them the tainted property i'm correct and it doesn't say in a one that a person who doesn't have the tainted property is laudable in an equivalent of now doesn't say m p but outside those circumstances the person is logged for an equivalent amount it doesn't say in common law where you had to proceed against in ram the property and there was no way to get the money from a person who didn't actually have it because you had to have the property itself in the proceed so there's no common law source it doesn't say it in p it doesn't say it in a and indeed congress said when they passed this that these are the exhaustion we want to we're not adding to anything we're trying to make it exhausted so just we're in the statute does it give you the authority to draw the conclusion that you're dr i think it two ways both of them rely on background principles of conspiracy liability but they do so in slightly different ways and so the first one is just to read the text of subsection a in light of the background principle of conspiracy liability that informs picked on everything else someone it says a person is liable to forfeit any property constituting or derive from any proceeds of the person obtained directly or indirectly person didn't obtain it in any common english thing into you're saying with that word obtained me property itself in an imprecise eat so that's why i asked the question i understand the question but i just want to emphasize that every single application of the pinkerton principle to a substantive crime is a textual and would be subject to exactly the same criticism so in a closely related context here twenty one u s c eight forty one a makes it unlawful for any person to distribute a controlled substance and subsection b says any person who violates subsection a can be sentenced and yet all of the time it's  mentioned the fact that if you go back into the history yes of the forfeiture it's quite different from that the history of the forfeiture was you had to have the property itself and certainly if we're looking to history and tradition history and tradition are the one thing when you're talking about criminal liability and it seems to me which is why i asked it's quite the opposite when you're talking about forfeiture so the tradition that you're referring to is a long tradition of civil in rem forfeiture that this court has discussed in many of its opinions and i think the statute before understand the idea that you argue this is not in ram when you soon as you say but were only after the tainted property it sort of sounds like you're in ram under another label in other words you're sticking with this piece of property just as if you were proceeding in this in an action against us in ram against the property so i don't see how you can say it's not it's not a room we're only going after the tender property i understand that tension mr chief justice i think it's baked into the statute the stand she describes property that's for football and as this court as for luis there are provisions eight fifty three c and e that talk about restraining attainted property before trial and talk about the relation back of the government's title untainted property but the statute also makes clear that when that change of property isn't available it hasn't is the one that led to the one quirk who's against you on this issue was the courier who receives fifty dollars a week or fifty dollars a trip to deliver drugs yes under your theory that courier who's on everyone's facts doesn't see more than fifty dollars of whatever the profit is of this drug enterprise that career is responsible for a million dollar two million dollars three million dollar criminal conspiracy because he took an undisputedly small part now assume what logic in in theory would ever make a person who's never up teens that money those proceeds responsible for the larger sum so why should the drug who in fact got all of the money minus fifty dollars why should he be off the hook for even a penny less than what he put in his pocket because the courier happened to have a hundred dollars saved so i want to start with the courier and explain that the limits of the courier's liability are going to be the scope of the pinkerton principle the scope of the conspiracy that he agreed to join and the proceeds that were reasonably for responsible for that for the drug dealers here she is involved and for those that are with reasonably within the scope of the conspiracy and the only point that i'm making and i don't think it's disagreeing with anything that your honor has said is just that we don't think it's a great leap to in what other city law has a similar concept never existed so it depends on what you mean by similar concept of why on sept where you're going to be personally liable for something greater than what you directly so i think one is the restitution context we point out that criminal defendants are held jointly and severally liable to pay restitution to victims that's now specifically authorized by statute as we explain our brief courts of appeals apply the same background principles were invoking here to reach that result even before that i also want to emphasize just a sort of my or that some of your question and some i think a lot of the appeal of mystery mccaskill's argument comes from the intuition that the alternative to the world that we're asking you to endorse that's prevailed in nine circuits for in some cases decades is a scheme contribution under state law i'm not aware of any case where that's happened and i don't know that any state would recognize such a cause of action but i just want to emphasize that i don't think that's an anomalous result because as we point out in our brief the traditional will was that  not have a right of contribution if they committed an intentional tort and here it is during several liability rather arising out of a criminal act knowing participation in a criminal conspiracy of course under your theory if it worked the other way around if they went after the brother that did get the money and took it then under your theory everybody contribution against the brother who got nothing that's that your theory no our theory is that there isn't i'm saying i agree there isn't a right of contribution that insurance or liability to suppose it's under state law under your theory you could be contribution i assume if a state law would recognize a right to contribution under these circumstances then that the scope of that would be up to state law i suppose someone made to pay the forfeiture judgment could see contribution from the person because they applied your precedent the brother who got nothing present that's your theory i don't know what principles if as i said i'm not aware of any state law that actually recognized this i'm not suggesting that they would i just want to complete what source of law might govern the question if it did exist i don't know what principles they would apply to push it and i just ask you and i'm sorry i'm sure it's just not understanding it but if i could just ask you to go through the mechanics of this so there are two coconspirators they come away with one bag of money conspirator a takes it but you have conspirator b before you he has not taken the money now do you first have to show the conspirator money because is that do you have to show that it's unavailable you have to show the conspirator has dissipated it or do you not have to show that and we have to show that it's unavailable to the government in that proceeding so that proceed it right if you could after conspirator you could find it he just put it in the bank account but that's irrelevant i mean that yes  i mean most of the time people who are this happen comes up in cases where defendants are prosecuted together and so the court the question is if any of them have it the government going to have it available to the government i mean really you're only saying it has to be unavailable as conspirator b you do not you started by talking a little bit about this this piece section do you have to prove that one of these five preconditions in p is satisfied in order to forfeit substitute property under p and before you continue i just want to put on the table that view is that the government doesn't have to invoke p it can also obtained a forfeiture money judgment if they directly for federal property isn't available ok i'm curious about that but first let's talk about bill p for yes if you're trying to forfeit substitute assets under p p has you say that you shown that what do you mean what i mean is that in this is the understanding which the case was litigated in district court the government came in and saw the money judgment and there was no mystery about what the rules were i want to quote to you from the defendant's forfeiture memorandum in the district court  document number one hundred seven on the district court docket and this is on page two quoting from a six circuit decision and it says where the government is unable to recover the actual property that is subject to forfeiture the government can seek a money judgment for an amount equal to the value of the property that constitutes the proceeds of the drug violation now petitioner could have argued that the prerequisites for seeking a money judgment weren't satisfied either because we can't get money judgments and have to go through p or if we do have to go through p that we hadn't satisfied those people it was it's we could've made a showing i think we could've on these facts but petition didn't make those arguments the only argument that petitioner made that's relevant to the question presented here is that he couldn't be held jointly and severally liable on a money judgment that's the argument that the district court i do you in both of these in your answers i take it that happens to say we're trying b and a is around but we're trying be who's got nothing now it says you can use a good fifty three p if the property described in subsection a as a result of any act remission of the defendant yes now it wasn't the act or a mission of the defendant it was a to mix the money you hit it you went to mexico etc but you're saying you still can get it from beat and i guess your reasoning is somehow these words in my right in a way any property constituted or derived from any proceeds the person obtained ok you say that includes money that his coconspirator obtained because of the under ok if that so i just want to be sure when we get to really get to eat which is called protective orders i suppose on your theory that we have five people in a conspiracy to three are couriers you know they were found somewhere on a beach and they drove a truck and they have nothing or they only each have about a thousand no not nothing but one hundred thousand dollars and then we have a and b who are the leaders and they have about ten million or so on your theory of protective orders you issue a protective order against all their assets all five and they can't hire lawyers a matter which is a different issue i understand they can't hire lawyers they may have to pay even though the money is way over there with a and i mean it does bother me that they can't even hire lawyers on your theory that but i want to be emphatic that's not the result of our why not because as we explain our brief pages thirty five and thirty six subsection see any which deal with pretrial shrinks in relation back are limited to the property described in subsection  in the hands of either a particular defendant or non conspiracy case or when you're dealing with conspirators that is our position is specific tainted property all right now suddenly it seems to me we've switched meaning here because now we're talking about the bag of money now does the word property the bag of money in a i mean the bag of money and not the substitute in b s bank account which is never seen the light of day in any crime doesn't i think the specific the property described in a is the bag full of money ok but a in the statute serves two functions it describes that specific property that property is forfeit of all if the government can find it but if as is usually the case the government can't find it that property fixes the amount of the government's entitle not to recover forfeiture and you are able to do that under what statute you see everything until you said you see the last clause is here i could follow in a statute a statute that congress said this is pretty exclusive now it's only the things following that qualification that i can't find in any statute so one way that we can definitely do that is through the substitute assets provision in section eight fifty three p as we explained we think you can apply the same principles of attributed liability  think respect to property described in a that's correct all right now is is this mysterious bank account which never saw the light of day with in any way or is how it sounds to me  those on the slick sound that way sometimes you seem to say yes and sometimes you seem to say no just before i am i apologize if i'm not being clear i think our view is that if the let's take it back to the very simple example where it's a drug deal that's gone and the proceeds are duffle bag of cash that's the property described in a that's the property that's for football under but if as is usually the case that property is gone and not available the government can recover its value one way that it can do that is through p another way that  it in a pretrial world the government can't stop him from using paint using his funds to pay for a lawyer if those funds are on tainted section eight fifty three is the provision that allows pretrial restraints we explain it's the government's position that that does not apply to untainted assets that's the position of the majority the courts of appeals as my friend pointed out the fourth circuit had a different rule the government filed a brief in a case in the fourth circuit that took a position that was consistent with circuit precedent but inconsistent with the position we took on our brief here and we've now withdrawn courts that address the issue and we're conceding that this is the right reading of the statute is that p describes substitute assets to refers only to property that's described in subsection a and that's the specific tainted proceeds i want to come back if i could to justice kagan you've asked questions about indirectly to my friend i actually think that's another way to get that's the other way to read the statute to get our result which is that everyone agrees that this statute requires the forfeiture of proceeds that a defendant does not obtain personally that he obtains indirectly and some of the examples that my friend gives are if the proceeds go to a cut or closely held corporation or to a lawful partnership or something like that and our view on this is reflected in the court of appeals decisions is that really particularly odd to depart from the traditional principle that one member of a conspiracy is liable for the acts of the other members of the conspiracy in a context in which the statute invites forfeiture of proceeds that a person doesn't obtain personally because when the wall regards a conspiracy as a partnership where all the members are partners and act as each other's agents and we don't think it's any great leap to say as the courts of appeals have done that you indirectly obtained proceeds when the criminal enterprise of which you are part attains those proceeds and the government doesn't have to show how the funds traced through the conspiracy and who actually ended up with how much because you're all fairly regarded as a directly obtaining the proceeds that and and let's put aside these extra statutory money judgments since i don't understand really how that works so let's just focus on peak all right now do you you said you don't have to it's you don't have to show to that particular person in other words he never had the proceeds so which acts could he have taken that dissipate the proceeds under pig because the pew conditions aren't focused so much on the part of the person they're focused on rendering the property  able so the question is why should anybody that you have against by saying actor admission the defendant correct yes but our view is that the defendant is accountable for the act might not have dissipated them at all they're sitting in his basement so i think in that case justice kagan i think our view would be we could make the showing under pete that there unavailable to govern because in this case presumably the government the government doesn't know that they're sitting in the other to be a disappointment because if the government did they'd be prosecuting that guy and attempting to one of the proceeds from him you have your choice of getting the money either from the guy who's holding these or from the other guy right now you can choose it's not it's not a precondition for you recovering show a particular actor or a mission that led to the dissipation of the assets in these particular five ways well if that's the case just a few you might disagree with me about how to read p and if you repeat that way  hypothetical that you describe then that defendant would have an argument that the government couldn't invoke p as to him but i really think a lot of the discussion that we've had about how he works and how many judgments works are really ancillary they inform a question presented to be sure but they're not the question presented the question as this case litigated and as it comes to the court there's no question that the government can get a money judgment there's no question that it can proceed through substitute assets if it can invoke p the question is who has liability for the amount and the rule that was reflected in the decision below and the rule that we think is correct is that when the government is in that situation where the traceable proceeds are gone and it's trying to recover the value of the proceeds how is that why ability allocated amongst the conspirators and we think in accordance with the original principles of conspiracy liability the correct measure is the amount that was for because the alternative and this gets back to the point i made just a sort of my or starting to about careers is that you're going to be stuck sticking people of liability based on the amount of money that they touch it's not just the amount of money that they got to enjoy or spend or ultimately keep it's the amount of money that they obtain and so when a obtains the whole proceeds of the transaction and then passes along to somebody else he can be held liable for that entire amount even though he didn't get to all that much of it that's reflected in the casey case which we say are brief and also enjoy to dean's opinion and  justice i'd like to begin by responding to counsel's comments about how this case was litigated below and then i'd like to say a few words about the textual arguments as well as background principles so first in terms of how this case was litigated below the way the government has litigated this case throughout its theory that section eight fifty three a one and the specifically the word obtain was enough to establish two and several liability so what the government has said is that it uses the word up taint and that simply means that that's imputed to everyone in the conspiracy and that's enough to establish petitioners liability for forfeiture of any amount that was not actually ported from petitioners brother and so we have always taken the position consistently through that litigation throughout this litigation excuse me that that's the wrong reading of section eight y three a one the correct reading is that obtained refers to asses that you actually got and you can't forfeit tainted assets unless you have them and so it doesn't apply to untainted assets so the government's position in this court is completely different from the positions you took below it's essentially conceding that under section eighty three a one itself forfeiture is unavailable except as against a team of assets so that the government's arguments that it seems that that we waive something close just completely incorrect is just abandon the very theory under which it a pain were under wh it prevailed and six or so then we get to these issues about fifty three p and the money judgments and i think i heard counsel say his presentation that section eight fifty three p does not provide the exclusive methods for the government to obtain forfeiture against tainted assets i think that's a reference to the argument in their brief regarding the rules of criminal procedure and that there's forfeiture money judgment discussed in rule thirty two point two and that is just clearly wrong first the rule itself is itself says that the government can only forfeit assets that are available by statute second of all the rules enabling act would just obviously prevent the government from reporting forfeiture that is not authorized by statute through a rule of criminal procedure i think it's pretty clear what this will criminal procedure is doing and we say it's circuit case that says what we're going to say right now which is to say it says that it's a procedural mechanism of implementing the substitute property provisions so the government can say ok we're going to forfeit your substitute property because you spent the money or you had the money maybe don't have the money right now but money that's going to come in is going to be property that substitute liability system so when one looks at section a fifty three p and one talk sees the exclusive method of obtaining forfeiture against untainted assets that's the criteria in section eight fifty three p the government doesn't meet them the government said for the first time or argument in th court that deal they couldn't locate it through due diligence and maybe this was committal it never made these arguments in its briefs never made these arguments below and it also never even argued in its oral presentation that its petitioner themselves himself the did those things or that his coconspirators actions could be attributed to petition for purposes of section eight fifty three p and so the government really has never tried to establish and cannot possibly establish on the facts of this case that you can obtain forfeiture under section eight fifty three p and just taking a step back i think it's pretty clear what section eight fifty three p is doing what that's doing and the legislative history confirms this and just the text itself confirms this is that it's saying that if you obtain a tainted asset and you get the work the forfeiture you can't get away with it because the government's going to come after substitute assets so if you your collective a million dollars in tainted property and you hide it offshore or you spend in las vegas or something that doesn't mean you can get away with it that's why the statute says because of an act of the defendant to render unavailable the property that is describe that's a tainted property if that happens the government can seek steps to property and it seems to me that's just another reiteration of your earlier argument i mean of the defendant in the defendant here under pinkerton the defendant  but again i push back a against that because i think that's only true the pinkerton principle itself says that actions are attributable only in furtherance of the conspiracy and so i know what if the dissipation was in furtherance of the conspiracy put the cases that you're talking about aside so first of all i don't think that the government shows that but at least that would be some theoretical textual argument remember that's focused only on p rather than a which has been the government's theory throughout i would still disagree that joint in several i believe is authorized because i just think there's extremely powerful textual structural and historical indications that is just not authorized in the statute for instance the comparison with a two and a three which government doesn't respond to the background principles which think just don't work at all so i'd like to turn to those i just don't think pinkerton has any application in the context of the statute period the government talks a lot about hornbook law and one big law attributing activities to coconspirators but i think it's a point to recognize that those old horn books would never have recognized the principle that the government is advocating here because the one books would have talked about sentencing involving no content no strength in several liability under any circumstances and this one box would have talked about forfeiture which was in ram now it's true that it's in persona rather than in ram now but there's it that's a procedural difference in how the money is collected which is a different from saying that there's a difference in what money is collected in other words the object of the forfeiture is the same even the way in which it's collected has changed and in fact the government confirms this when it actually concedes that a fifty three a one only focuses on the tainted property exactly like regime so i thought about how much you can get out of the interim forfeiture case law since this isn't in ram you couldn't have joined several liability in the enron perceiving that is true your honor so what's the relevance of that the relevance is that the the background principle these ancient principles of the government tries to know what you have ancient principles of in ram but this is not in ram this was a radical change from what or what occurred before right but the fact that it's in persona verses in r doesn't change the fact that it's the tainted property that the object of the forfeiture which is in fact the government's concession it says a one isn't in persona statute it's part of a criminal judgment it's not a separate civil proceeding but the thing that's worth it is the same thing that had always been forfeited which is the tainted assets so i don't think the procedural changes affect the structure of our argument i thought the argument was they are simply to say there isn't an old tradition of getting be in the basement and i don't know i forget where they all are at this point but  getting the courier to forfeit his own money which isn't in the bag ok there is an ancient tradition of what they're trying to do that was the point of the enron proceeding that is the exact point we're making just as bright congress says we do not there's a broader point here which is that in criminal in the interpretation of criminal statutes i think the court should be careful of how it uses background principles and i think it's one thing to say that for instance the word conspire has always meant something and therefore we're going to target the word conspire the same way but that is really not with the government's doing here it's saying that in nine hundred eighty four actually ninety six when congress enacted the substitute for property provision the law changed in this very fundamental way to permit joint several liability which had never existed but actually the new party transfers and not for others so it seems to me that there's a very significant modifications in the government's rule than the traditional so the government is saying is that silently congress enact without saying anything in the statute congress enacted this very new forfeiture regime which is similar in some ways and different in other ways from pinkerton has as it had traditionally been applied and i just don't think the court reads criminal statutes that way that's just a classic form of common law criminal liability the government saying well here's these concepts from other contexts let's modify and in various ways the government thinks makes sense we don't really have to look at the statutory taxes on availability just makes sense as a criterion even if congress never said it and therefore we have the system of joint several portraiture liability and the court just doesn't do that when it reads criminal statutes we've certainly asked the court to just fall the text literally i'd like to focus on two other arguments made by my colleague one about restitution and one about contribution so in terms of restitution i actually think that the comparison to restitution is quite a strong argument for us because that's a situation in which joint several liability makes perfect sense and also authorized by statute and those are two good reasons that we have joint and several liability in that context joined several i believe he works in terms of the purposes of the wall when it's compensatory and the words money from one person and money from another person are treated interchangeably because the goal is to compensate the victim and the victim doesn't care where the money comes from and that is the case in restitution that's why it's hardly surprising that congress has enacted a joint several liability system while also being careful to say that the court can mitigate the harsh becht of the joint and several liability as applied to a particular defendant by saying well you don't have to require full joint and several liability if it's too harsh so that's exactly what one would expect based on the background principles and the text provides it and here congress did not say that use the word obtained that the government seeks to inflict a much harsher form of joint and several liability which i think it's quite in congress and i also think that unlike the compensatory context we haven't talked much about the purposes of  but they are totally inconsistent with joint and several liability the court has articulated remedial and punitive purposes for forfeiture but not none neither those two types of purposes have anything to do with joint and several liability their medial purpose of taking the money away from the person who got it are not supported whereas we see in this case the the person got the money to keep some of the money and the punitive purposes i mean the goal of punishment is to track the person's culpability that doesn't happen when the amount petition has to pay is tied to what his brother paid in his plea agreement that's not a rational method of assessing culpability on the issue of contribution so this notion of state law country contribution is an issue that the government doesn't reason it's brief and i'm not aware of any precedent or law that would support that as far as i've been aware and until or argument in this right of of contribution all i think that's quite important counsel says that actually that isn't matter because under the common law you couldn't have contribution in intentional tort cases anyway i think that that's not persuasive for a number of reasons one is that i think the common law is not so clear and fac the common law have an alternative rule second of all the common law rule as applied to vicarious forms of liability which is sort of what the government is seeking here actually would have had contribution we cite some authority for that in our brief and finally in the parallel and case itself the government itself rejected that argument it's brief and as that the court and the court said that the absence of contribution remedy is evidence that congress didn't intend joint several liability in the first place and we think that argument applies with full force in this case there's no further question from the court that thank you counsel the case is submitted