laundering offenses provides at the district court in was in sentence shall order that the defendant forfeit to the united states any property involved in such offense or any property traceable to such property the district  language makes forfeiture a mandatory part of the sentence and the district court further acknowledge that under this court's precedents in the federal rules of criminal procedure the court had the authority to fix the amount of the forfeiture penalty in a money judgment court nevertheless declined to enter a forfeiture order in this case based on statutory and constitutional reasons that we believe were mistaken and require reversal i'll begin with the statute and as i do your own i want to clarify in like to me that at the hearing on forfeiture the government agreed that there were no proceeds but then your brief makes reference to proceeds with which is a your honor there were proceeds from the  spots called the specify the unlawful activity it's the preceding bank fraud on the painting panamanian bank generate proceeds but the money laundering violation itself the violation of section one hundred and fifty seven dollars and the money laundering conspiracy statute one hundred and fifty six h did not generate proceeds we agreed with that and we maintain that position on appeal so no proceeds from the money laundering offense but proceeds from the bank fraud that were laundered in the money laundering transactions wasn't the the proceeds from the money laundering operation isn't  undisputed that the corpus of those funds were returned back to the victim the chinese bank yes your honor there's no dispute that those funds were returned to the bank well if you could sort of walk me and fifty seven a conspiracy to violate one hundred and fifty seven which is transactions in criminally derived property so as a nine hundred and fifty six h is the penalty provision that makes that penalizes conspiracies to violate fifty seven and under nine violation or traceable to there and that property eligible for forfeiture under nine hundred dollars to a one includes the money or property which was actually laundered the corpus yes which here is undisputed the defendant did not possess at the time of the indictment correct that's correct the property any any commissions or fees paid to them launder which again undisputed that there were none correct and any property used to facilitate the laundering offense that's correct is it your position where is the money that you're seeking to forfeit under those under those three exceptions is the st category are we've agreed that the corpus that even the funds actually laundered is what he had before judge gola stated that money laundering does not have a restitution provision or component to it is that correct that's correct so in this case if if the so the judge called it could not order restitution think that two the two issues that tripped up judge scola one is that the defendant did not retain the funds at the time in fact returned them to the bank as part of his overall fraud and money laundering scheme that doesn't matter involved in is among the broadest if not the broadest language we have in federal for richer statutes and then to further went back again two years later to amend this provision i just mentioned ninety two dollars b two which carves out this exception for low level money  understand it that carves out that exception but the issue for that i'm having and i think judge to some degree was having the same issue is that under the provision that you're traveling under nine hundred to eight there are only three ways that you can forfeit the funds and the only one that you're traveling under is the corpus and the corpus is undisputed is now with the victim and so i guess and since money laundering doesn't have that restitution provision it's sort of it's sort of an unusual fact or unusual factual scenario because normally in a money laundering most of times there isn't a victim that you could say is entitled to this money and here the corpus was returned in full and it's undisputed and with interest court at the discretion to impose no fine and in fact impose no fine and so you could have a situation absent forfeiture in which a defendant can see commits a very serious financial crime and walks away with no financial sanctions whatsoever that's not i think what congress intended they intended this to serve as a deterrent even in the case or defend it was not discouraging ill gotten gains even where those the money the fed it laundered was not going to go back to the victim be a recitation congress said we want as a deterrent overall serious financial sanctions and here the district court impose none you know we have money laundering is about right as it suggests making the money clean right rather than always making a profit is that correct that's that's in some cases it's in cases like like here the money laundering transactions i think by the defendant's own admission were basically part and parcel of a scheme that he needed these transactions to keep his underlying bank fraud scheme going what's the what's the government's theory of exactly how this how this admitted that these were highly irregular transactions international wires and whatnot that were used to further a scheme to keep himself and his businesses afloat that he had said he fabricated invoices to justify draws on a line of credit panamanian bank wire those internationally to miami and then move the money back to panama often in the forms of checks that were planned out before hand that's just human to his own admissions he was using these funds to pay back loans or the line of credit on which he was drawing down in panama so i think by any account whatever the underlying purpose was whether like the government believed it was part of this layering plan or just the defendant's own admissions i think you end up viewing this as a statute this case i think it the court has spoken of that and that's often true i think those cases most often involves where your honour's st question which is proceeds forfeiture which are what it would agree is the more common scenario it's arisen under the drug statute some of the health care fraud and other fraud cases this court has seen the statute is different in that regard your honor i would i would acknowledge that but i would point your court if you're looking for precedent to decisions like the push case in two thousand and three and the chaplains and sahara cases from twenty million one hundred and twelve thousand and nine cited in the those are cases under the money laundering sting statute which is cases in which the government is coming to someone it has information on and it's really luring and laundering funds in those cases again i don't think that there is a kind of ill gotten gains in some cases those transactions haven't fully transpired yet and yet still the courts in say hair the inside hair the monies are that were being laundered were used to create a scheme we are in the inventory and the stores so there was a reason why you were allowed to forfeit the inventory of the stores because they were they travel under the facility the property was used to facilitate the laundering offense so i guess the issue is how do you deal with a situation where the corpus no longer exists do just travel under the theory that restitution is different than forfeiture and that it's a harsh penalty but that's how it is burdensome but i believe the congress commanded that as part of a statutory scheme and it did not want to for district courts exception sorry discretion to make equitable exceptions based on unique facts and so that's what judge scolded here after properly acknowledging the mandatory nature of the statute i have just a few i'm sorry if i don't i don't interrupt you but i do ask this question how did you how do you get to the amount of modern funds as ten million four hundred and twenty six thousand dollars when i added up the amounts  order forfeiture that that was mandatory and i think judge granary asked his question would we have to re man back to the trial court to make a determination on their for future amount well the short answer to that is that the judge scola did not exercise any equitable discretion he acknowledged the forfeiture was mandatory he simply said it wasn't proven here  and i think in terms of remembering back to the trial court you got it only basis for doing that would require you to determine that it was proven here so i don't this court doesn't have the equitable discretion that the undisputed record in this case reminds me of a song written by muddy waters and it the title of it is you can't lose what you ain't never had and that you were going to sing for us are you that but it the supreme court recently in honey caught apply this logic to the criminal forfeiture laws basically saying you can't forfeit what you never had in that instance it was a brother obtaining proceeds of a drug violation who admitted coconspirator the court said you have to go after the brother you can't go after the person who didn't obtain the proceeds in the record here it's very clear that this defendant never obtained any of the corpus the corpus was the credit lines of the company veda panama and v to panama the money cycle back and forth between v to panama and it's the chinese bank in panama at no point did any of that money go to mr whitehead so he never obtained any of the property any of the corpus and we agree that this case is we could do with the government on this much that this case is a corpus case and the corpus here is present and accounted for it's been identified we know where it started we know where it ended we and we know that that entire process it never crossed the path of the ownership of mr what head the government has also conceded as they did now  that this is not a procedes case so there's there are no proceeds to anyone much less any proceeds going to mr black head the president's proceeds are required right that that's one that's one category of funds that can and we know what happened to that corpus it never was obtained by this defendant where where do you and what statute do you look at the requirement that the defendant obtain the reach of the criminal forfeiture laws applies only to property owned by a defendant and that is certainly consistent with honey cutts interpretation of the criminal large that there is no there is no common law liability for either or for coconspirator liability there's no joint and several liability and here in say her if you put was the corporation money this court in say here made that very distinction if you remember and say here there were they two jewelry stores this court said we recognized joint several liability we recognize money judgments but you can't pierce the corporate veil you know silently you have to establish that before you going to hold one jewelry company liable for the assets involved in another jewelry store you have to show there are just one entity by piercing the corporate veil that never happened here and there's no evidence allegation even took today that mr walker head is the same thing as v to panama the person who could actually serve time in jail and mr penton mr walker had chained to the united states for that purpose it decided to dismiss beat up panama that the company that had the account that the company whose money i read you from the factual proffer that your client signed and agreed or a during the time period of approximately two thousand from february two thousand and nine the defendant was a general manager manager a fee beat up on him a panamanian peace corp and was the owner of two dollars miami based corporations start textile and global world he had signature authority on the bank accounts of all three corporations yes including the ones here if i could briefly take up the points raised by opposing counsel he said to his key point was that  that forfeiture is justified because the judge scola improperly required the defendant to retain the assets and that that was an  how can you dissipate assets you don't obtain how can you be responsible for required to retain assets you never obtained and again that's why the the the the basic principle is you can forfeit property they can go after a veto pen i'm off to forfeit property to forfeit his property but you can't forfeit property that you never  they also argue that forfeiture was is justified as a species of money judgments forfeiture money judgments we respectfully submit that honey cut would preclude that as they non statu and this court said you can impose a forfeiture money judgment that effectively takes the property of one defendant for property obtained by the other defendant one jewelry store is not responsible for the other jewelry stores forfeiture and so you have to pierce the corporate veil and you can make an argument that piercing the corporate veil is also a common law remedy and therefore should be unavailable after honey cut but this court's precedent under the case law saying that there is such an animal as a forfeiture money judgment is that you can't you have to pierce the corporate veil before you can hold one defendant liable to the other defendants forfeiture counsel how do you address the discussion honey cut that discusses obtaining property either directly or indirectly for example the the example use of the hypothetical used in h is the the drug mastermind who obtains money directly through direct payments from drug purchasers or arranges to have drug purchasers paid the intermediate which is a college student sure in both cases and under the top person is responsible for all the funds that are laundered because they are being obtained directly or indirectly so in this and it's how is it not at direct obtaining by your that money is subject as proceeds to being forfeit even though he may have given it to somebody else to hold that's not the case this is a case where the corpus was identified st off there's no proceeds in this case not and so this is you know there is an issue about where proceeds obtained are not here it's a single corpus a single amount of money it's  origins and destinations are all present and accounted for there is no issue with respect to what happens that money and and it's it would was available to the to the government t go after when wajda panama was a defendant but as to vida panama but they chose basically to have the person someone who they can incarcerate to plead guilty and they dismissed fight a panama from this and we respect we submit that that's an election read from the order in this case all the funds that were laundered were returned to the bank with interest there are no laundered funds that were retained by the defendant or any other coconspirator to be forfeited the it's quite clear that his rationale turned on a retained analysis for the reasons i think this is a hard case i think you both have good arguments but i kind of like the other side's argument about there is a time when money is no longer quote involved in them therefore forfeit of all what's your answer to that why i think your honor that might come into play in figuring out how much money is involved in and as i understand it your honor there was a dispute below and and it's been ironed out in the briefs here somewhat about the amount of funds involved in is it just the amount that came into the money laundering transactions or if they were  a district court judge authorized to order a defendant to give restitution not under the statute itself but the way the federal restitution framework works that the statutes trigger restitution required by law to enter an order i have no discretion on this but i find that the corpus no longer exists it has been returned and there is nothing else to forfeit under nine hundred and two way because there's only three reasons you can and two i don't think the court can do that because all we asked for here was a forfeiture money judgment if we were going after specific property trying to trace specific property that would be a problem but why would he be entitled to a money judgment for stage of this case st the district court has to enter and forfeiture money judgment and then if there are parties have interests that they want to raise up then they raise those under a fifty three and after the forfeiture money judgments entered likewise read here i guess the question is a rd is is the bank of china and i'm sorry i'm over is a bank of china a rd party or since it's a victim it doesn't qualify as a rd party under age fifty three peat i think i'm getting confused  establish that one of the conditions in the statute is satisfied and the defendant no longer retains the money that was the subject of the for the money laundering transaction so i think we're a step ahead of that that's why we don't ask the court to reverse and remain with instructions to enter the  we've asked for in the amount of ten four to six or of judge grant mathis better than mine and it requires further proceedings in that amount but why should we if let's say that we agreed that it was mandatory why would we not just remand for that and then for further determination as to what the amount should be because it seems to me that it's not necessarily so clear cut well if if that's what the court wants to do we would object that with the caveat that we think it's very important to put kind of an th amendment floor on this and i haven't had a chance to argue that but i would just mention very quickly that under the fine range that was set forth in the plea agreement and in the p s r paragraph seventy five and seventy six the maximum fine by statute and guidelines is the twenty million eight hundred thousand him out so under this court's cases an kind of guidance to make clear with the if them in primaries are so if just school resolves any dispute as the amounts that he's not further reducing it once again to account for it then the concerns that we think are unjustified thank you thank you and i appreciate both of you come in today i think this is a hard case i knew you would have preferred to have but the soft till friday and we we try and i think there's some other litigants here that wanted to reschedule but it's hard to get this group together there are so popular