know i think you said the district court some of them you wanted to pursue elsewhere your honor my understanding is that a dismissal for lack of personal jurisdiction operates as a dismissal without prejudice and that would be the status we plan to refile against some to the extent that they were just missed for lack of personal jurisdiction i think that would have to be it's nestle without prejudice your honor the only one who was dismissed with prejudice would be mr marcus with whom we settled ok so i think to judge what's point they case and we're not appealing those orders we're appealing absolutely three weeks three weeks would be ample thank you are mr greenfield how do you do this three weeks ok would you all right very well nice to day when we do that that's extraordinary  criminal proceeding so the then is whether congress in enacting section twenty two fifty five meant to provide a civil remedy only to those victims who had not previously received restitution from  and will put otherwise whether congress intended that a claim under section twenty two fifty five would be barred by a previous award of restitution that's what the district court held here as a matter of a little background this statute was named after this point if after she testified before congress it's called office law after marsh alan my client defended his criminal proceedings have been concluded at that time that was two thousand and five two thousand and six timeframe including the award of restitution so the defendants position has to be the congress and that of this statute and named it after my client without intending to give her a claim on i don't think can possibly obtain it's important to understand why a congress doing this legislation to be necessary they don't control criminal prosecutions and criminal restitution therefore very often fails to compensate victims fully for the harm done by crime you can see this in the airline case that recently came up before the united states plane court after it's really manned down to the fifth circuit the prosecutor may only charge the offenses that he or she believes can be proved beyond a reasonable doubt not the lower preponderance of the evidence standard that would apply in the civil case such as this one well let me ask you this if the if the re charged conduct and a subset of that is the conduct that underlies the offense of conviction and the defendant actually has more control over what ends up in that narrower subset than the victim does because the defendant typically enters into a plea bargain with the government pleads to a particular count in this case the indictment included two counts run under eighteen u s c section twenty one fifty one for sexual exploitation of a minor and there's date range a specific date range for the underlying conduct remember nine hundred ninety eight through july nine hundred ninety nine and the second is possession of material depicting the sexual exploitation of a minor in or around may two thousand and three which she didn't  fully compensate the victim it's intended to fully compensate the victim for that harm but not for all harm so including one charge concho use proceeding under the possession under the harm then the restitution statutes might under if the restitution world bordered on the pops that you might allow for an offset against his restitution but we're not so so let me just take that one step further so if the circumstance were one in which it was only one charge then applied to the one charge and there were no sought by definition is no on charge conduct  there's no there's nothing out there no acts outside of the scope of that one count correct in that circumstance there could be an instance where restitution is ordered in the full amount and that would preclude recovery honors the symbols in oh what about pain and suffering in unity of damages other aspects of civil recovery awarded by the district court as part of the sentence medical psychological insight it psychiatric care and treatment physical rehabilitation lost income incidental damages well there's no general catchall in that  aggravation of a sentence clearly under the sentencing guidelines and otherwise but but you can't use it for restitution under six six three and three six framework had was was optional it was in the discretion of the district judge and the subsequent statutes which are section thirty six sixty three a and section twenty fifty nine created mandatory restitution for certain classes judgment kerry did say that he intended the he believes restitution was mandatory and so the recital of some of the other statutes i think doesn't change the fact that he was really proceeding under section twenty two fifty nine and or section statue didn't exist and so the question is what congress intended when he did that did eighteen u s c section twenty to fifty five possible that he was thinking he was also imposing who should under count what it is that occurred here because the questions and the responses by council think to suggest that there are uncertainties about various things and then want judgment billy was very clear both in terms of approving that which was explicit in all respects with regard to including counts who as well as count one for purposes of sentencing punishment therefore and therefore the activity in the conduct in all such situations u s attorney was taking up the cudgels for her and decided that two hundred thousand dollars was in fact a sufficient amount to cover all of the damages  the this scheme was set up so that restitution in the criminal context could contemplate war form and fashion of potential claim in recovery for a victim then what would be the  recompense for as much damage as possible that has not yet been paid in full by the by the by the defendant in other words if the defendant is an amount what constitute the damages that should be made part of the restitution or how that comes about as in any case can come about in a number of different ways it could become it could come about by agreement of the parties it can become part of the order after i hear a yeah but testimony is offered by experts who testified somewhat but but as in personal injury cases all over the country all the time as we surely must know the parties can agree i like chip in late about damages are what the amount of the damages are without going into each of the components of what constitutes the totality of those damage attorney agreed looking at the conduct involved here i must say it seems to me that the amount ordered is very small well if you're considering if you're going to consider things like pain and suffering well not to say you know even putting aside punitive damages which i think is is a area of damages that might be very appropriate with conduct like that that what  conclusion that the two hundred thousand is inadequate it should be a lot more but but lawyers all the time are making judgments with respect to amounts and do so after reflecting a considered judgment about various facts in this case it was a trust fund that was being set up and it was being done immediately unlike any other case in the western district to that day or even since that is funded the totality of the of the of a restitution order are like that two hundred thousand dollars maybe in substantially your honour's judgment for pain and suffering as you read the facts of the case but it was but it was a significant amount notwithstanding and it was done immediately not we promise to pay it or not we will find that when we get around to it when we make our next killing on the stock market or elsewhere but we're going to do it now and they and we didn't know how that was a premium to be paid for that could be to have two hundred thousand dollars and then there and watch my show has had it from that day to the time it's the horse the record to go into all sorts of things that i would be able to tell you and so forth with regard to events subsequent but the fact vacuum limited circumstance watches law doesn't apply because she has been fully paid for everything that she was victimized by if you will at that time  made a reference to all the matters that were in the pre sentence report and that included a reference to the possession charge as well as see that as well as to the charge she pleaded guilty to the question is des clearly contemplated to apply to that circumstance where before a final implementation or payment is made if there is a change of circumstance then and the cases say that and that's what it means that the court may in fact revise the terms of me of the restitution order in terms of when it's to be paid how quickly whether they're staggered payments over a period of time all that can be influenced so when the judge said that he said that it was approving the plea agreement which was months before the actual sentence the sentence was in two thousand and four the plea was in two thousand and three was two thousand and six but in any event one more very judgment very sentenced he sensed and pursuant to the plea agreement which he already knew existed for months earlier or some such not or actually person who ordered to be a to make the payment the person against whom the new order of restitution is imposed if his circumstances change he must in fact tell the court that and something will be done about it the statute even tracks that very language the judge merely quoted what the language of the statute says and when one reads the section of the statute that refers to that adverse to that one sees has not yet or she has not yet fully paid everything so in that period of time if if one wins the lottery all of a sudden the judge in the statute specifically says it says in  the judge can order that the payment be made in fool at that time assuming it was being made in some staggered way before that time or that the amounts that are being paid in the staggered way could be increased because you have the question that i don't believe the defendant can answer in this case is what is the point of motions law why does the claim even exist why did congress pass this statute and create this civil remedy it seems to me  reach puberty various other things then we have the conduct that was charged but not convicted and that is the possession of specific material then we have other conduct that was on charge and was not even before the district court not even before the district court and could not have been incompetent in the in the remedy the the criminal remedy the sentence fashioned by the district court this includes other acts against this point with him and other victims he didn't just possess her image he traded with other people in the early days of internet on on line chat rooms and forth and helped to create this network of distribution that combat was never even charged by the united states attorney so section twenty two fifty five applies not just to the person who is the victim of the offense of conviction it applies to a person who is the victim of as the statutory language goes a violation is a preexisting civil settlement that seems to be the logic applied by the defendant here when he says lawyers make judgments with respect to the value of claims all the time well that's not what a criminal  just kidding yourself to what's in the record is there anything to that that we analysts should take into account here where we are before the court on the grant of restitution scheme and the district judge considers factors that are irrelevant and improper to consider in the context of a compensation such as the defendant's ability to pay and the government's interest in getting a conviction and making a deal the fact that the government has decided to make a deal for reasons of its own should not later operate as as if it were a sort of a civil settlement to preclude th claim of the victim under a statute intended to give a solution to you please tell me again why twenty two fifty nine does not apply in this case that is you make the argument that fifty there's a question about that i don't think it can be i don't think it could be resolved just on policing i think his intent to the extent that it's a relevant factual consideration which quite intense not his intent is is not clear from the record to the point that it can be determined at the level of a motion to dismiss but section twenty two fifty nine states in its text that restitution is to be awarded in addition to any other civil or criminal criminal penalty or authorized by law so to the extent that he did travel under section twenty two fifty nine that wouldn't preclude a claim under under martial law well back t fifty nine to recognize it as the full amount well it has to be limited to the if so the offense of conviction percent of appellant case that case the civically interpret section twenty two fifty and