ok great right substitute assets where nothing has been you know illegal had ever taken place in the home and there was no showing that the home was purchased with funds that the case that was very interesting from this court was there sixty three eighty little canyon road cases it talks about degrees of punishment and it talks about the punishment being monetary or otherwise and specifically points that intangible subjective value of the property e g whether it is the family home in the hardship to defend it including the effect of the forfeiture on the defendant's family so in this case we're talking thirteen at the time and brittany cohen they're both attending schools in the area and it describes the home itself as being on in a normal neighborhood and there's no evidence of any kind of gang or drug obviously this isn't a drug  factors that might be helpful in terms of some sort of balancing test the first one would be there obviously the connection or nexus between your legal activity and the home and obviously in every substitute assets case there is no connection or nexus otherwise that the substitute assets provision wouldn't come into play now that it alone is not enough to say that that the government can't take the assets because the government is often faced with situations involving their time drug dealers with jet planes and yachts and in the government has to be able to to to take those assets so then we would move on to the next factor which which is the proportionality and the degree of punishment and i just read some language from sixty three eighty that will canyon talking about it's not just monetary you look at you put yourself in the shoes of of of the parent and how they feel you know you're in prison you did something wrong your wife's in prison your minor cancer in the house and you think about your kids just getting thrown out of the house and the house taken and that to me seems like a very very very serious punishment and then the final factor the third factor would be society's interests and in this case the society's interests the your honor i wish in that case that they were absent to such to death let's just force it that would not would not affect society in such a negative way and what would not affect the children in such a negative way or on the records of the government hasn't been able to trace it i have no idea so that's all right and this is a substitute assets case so it's a case obviously where yeah but the problem is that when you throw children out on the street and you disrupt a family the cost to society can be much higher than one hundred thousand dollars and that's that again problems with the children every time you said bother to since it's a problem said tom and again just just coming back to what the eighth amendment requires because you know that that's sort of the bottom line in this case when we have a lot of case law out there about limits on on on sort of excessive fines the problem is that and i agree with you it's certainly a threat situation i would also be considered it would also be considered punishment under the united states supreme court case and still so with them we have to look at the degree of punishment and and again i just cases where a family home has been forfeited where there's been no connection on  if the district judge makes that same finding there's going to be an appeal and it's going to come back in and the substitute issues assets issue is not going anywhere as long as they don't it's going to forfeit family homes in these circumstances that has to be resolved the u s supreme court has not resolved it this court hasn't really been faced with it so it's not it's going to come here one way or the other i'd like to reserve some time for a bottle of tiny think my understanding of the statements of testimonial if it's hearsay this hearsay as to my client is not hearsay as to dakota found it so i would believe that it would still be testimonial for purposes of crawford and it was in response to questioning eighteen united states code in this particular case the statements by mr yuko and u k that mr hugo committed or no he doesn't it's not a full blown confession but there are missions indicating his connection to the commission of the bats and in connection with the sentencing for can you answer my question as to whether the district court said that he would or the court way impose the same sentence without regard to the he was going to give him regardless of anything it was the top of the guidelines but mr lindh would be better one to address that issue and he's prepared for that thank you the first issue before the court is whether what the standard review was up for the statement the government's position and i believe is supported by the evidence is that there is a plane or a standard that while mr stanford brought up team says oh that's nice he then goes on to say in the course of that solves the concern mr stanford that's just that's all there is one other point and then he talks about the potential prejudice clive because she did not speak to  and so i just want to overly cautious the courts as i appreciate that mr stanford then has no problem courts any objections no objections there's nothing in that to commune construed as any sort of objection there were no pretrial motions th to the assault which her husband was charged with and the husband's defense was self defense when the wife had given some testimony that suggested it was not clearly implicating the husband that was testimonial and if the crawford decision and it did not implicate her anyway and in any event it would be harmless error because there was earlier testimony from gene stone the government's first witness that barry struck barry who go own you go for all four companies and built so that the information is there in any of it so that i would argue that harmless error would certainly be what would apply the  defense raised the issue of no living instruction which did not happen here there was no limiting instruction asked the defendant claims that he did in fact ask for one if the court were to look again we  stanford asked for was a cautionary instruction and that was directed at the government and the witness not to mention shepard or or justify and indeed it never happened so there was no request made i don't think we can second guess why he didn't make it he may have thought that the state testimony was so obviously of enbrel or unrelated to leslie shepherd or or to jessop that to have the court give that living instruction was suggest that it might have some relevance and i  for the first time that might have been a a theory if the jury had thought she was aiding and abetting very who call in everything and tristar they would return a verdict that suggested that the verdict that the jury return in this case only concerned jes the jury confused the two in stuff that in fact she was completely associated with mr because they would have come back in the same way they did because the lines were there on the on the verdict form to come back with a two point five million dollar  they did not clear that you really could compartmentalize this which would also be argued with respect to the severance portions raised by defense that the jury did compartmentalize that and because of the unique situation here where we have a politically verdict we have right this court generally does not allow these at this time of the there was first the promise written would be that we can't even determine that at this point the second prong about whether it would be harmful it was put it through deal of evidence that came in against the defendant that she was the sole remanded or of the just a had a bank account with medicare checks for cash or just of that she endorsed the checks she spent the money and just wanted to know wheelchairs i were review the easy answer is under any standard she was entitled to it this court has repeatedly held that where there's an instruction on intent the good faith jury instruction is simply not necessary  i argued that that again was an issue where the defendant had not pressed and he submitted a jury instruction on good faith where the court said in a court has just as the defense counsel statement of page thirty five o the court refused it saying there just isn't the evidence to justify that and the only response that we got from mr stanford was quote i appreciate that thank you that's not an objection as required under thirty d entitled to it both because the intent instruction was given and also because there simply wasn't the evidence evidence cited by the defense is that two other witnesses people who had been severed had the defendants so we several motion granted so that they originally were suckered in by the defendant mr newco and thought there the business was legitimate what the defense fails to point out is both those individuals pled guilty both of them at trial testified at some point mid level guideline sentence this is a low end guideline sentence and although i'm going to make a different argument the case of mr o'connell i don't think in the case of the shepherd that we can say categorically that the judge knew that the guidelines  jefferson have a higher sense then we're going to go back on the limited remaining procedure and see what the district judge said  judgment about its meaning but in the government's view the very case for example is very different in the case of mr goh the judge imposed a high end guideline sentence over probation recommendation of something less than a high end guideline sentence over defense arguments that that court imposed a low end sentence and without even hearing from the government and to make judge user's point he just made about the shepherd the is he wants to somehow argue that mr bush shouldn't be responsible sentencing for all of this last but we know the judges the district judges answer to that question because he stated it in his justification for the high end guideline sentence that as mr  sort of divine somehow that there's an excessive fines analysis that she's just stumbled across that there's nothing new about this post by you cause you in the court asks is the forfeiture grossly disproportionate to the gravity of the offense in the case of the in a proceeds case like this where you have two point three million dollars in fraud proceeds and no showing that the value of this property exceeds that of mouth the forfeiture can never be grossly disproportionate to the gravity of the offense if the forfeiture were two point three million dollars it would be exactly proportional to the graph the offense that's the point of this court's decision to boyce that's the point of this court's decision in santa barbara drive she resigned she cites  forfeiture including the personal characteristics of the property the characteristics of the property owner how that makes the property owner feel as judge were law pointed out in her descent in the united states versus one hundred thousand three hundred forty eight dollars  reach that substitute asset that so called family home it's not the government it can't willy nilly pick when it's used to forfeit it's because mr rico has taken the proceeds and put them away to a place that the government can't find them that we're even having this