court the government seized in the district court ordered the forfeiture of over nine hundred thousand dollars in assets hirst personal and business assets of the united states citizen residing in jerusalem it did so all without any evidence that the failure his failure to re enter the united states after he was indicted was in and two in order to avoid prosecution and it did so without any evidence that the property was subject to forfeit in the process in this case the district court applied the wrong legal standard of intent under the fugitive to some title meant statute and shifted the burden of proof to mr sabet a the claimant to prove  the descent title my issue that his his failure to reenter the new united states was not in order to avoid prosecution finally it violated his right to due process to a hearing on the ification for what for your client not coming on the stand he claimed you might lose his permanent residency but that just seems to suggest that actually believe it was twenty thousand and fourteen your honor but but i hear what the court is there asking and problem here is that mere notice or knowledge of an indictment and failure to return is insufficient to meet the government's burden of proof in this case and the government has acknowledged its burden of proof to prove not only the notice or knowledge of the process under which there was a warrant or for his apprehension but also that there was a failure to return and more than that i'm sorry your honor finisher issue raids but more than that is that it's the government's burden to establish that there's an intent to avoid prosecution which it did not do here what what mr sabet submitted was the purpose for his remaining in jerusalem was to protect his residency there you are correct in that he had been living in jerusalem since two thousand and eight had only been returned to the united states for a very brief period of time in two thousand and eleven all prior to indictment so what the government hasn't shown here is that his remaining in jerusalem is in order to avoid prosecution however your client didn't prove any refutable documentary evidence and even if he did why should why should we care you know in any event why why would that be sufficient reason for him he's an american citizen he can live here  while wow why would we even care that he wants to live someplace else well there's two parts to that question addressing a no i'm by no and no as bad as well aaron questions but out of deference to my colleagues and i know they've got a bunch of however my understanding based upon the affidavit of professor gabay as well as the affidavit of his attorney mr hasan was that the residency proceedings had been initiated in two thousand and eight there was some indication at that point in time that should he remain under the and provide a center of life for two years that he would be able to retain his residency their parent was lawyer we don't hear many thing really from the government and what the what the tourney has said who has been representing him throughout all these proceedings to since two thousand and nine was that if he were to leave he would not be able to reenter because at that point your honor the case was on appeal i believe that mr sabet had lost the original case he had appealed to the court of appeals and at that point in time he was he has been fighting at that point to appealing an adverse decision that his residency was was revoked so i think i think that the two thousand and eleven permission and he were wing ministry that he could go to america for four months without losing his residency status is there a document in the record that reflects that decision i don't think that there's a document in the record that the government submitted that which would show that it was based upon professor gabbing review of the records in his proceedings in the in the with the ministry of the interior so i don't believe there's an actual document that that was shown to submit into evidence and the court well lo the the i don't know the chilling bryce the the the government and you know if we are to get to you probably for your approval on your part is what or you know your i don't know if you represented them in the drug court but you're partisan well because in so you know it possibly comes down to an issue who has the burden of proof the why i read the record and you know the government has it in this context what why aberrated the record the district court was making its decision based on a whole lot of stuff that isn't in the record he had all of these chime bers conference's which aren't even wouldn't constitute evidence but would constitute lawyer statements in any event but we don't we would have a record of those because there was not a court reporter present prison and for your part to the extent you presented evidence i mean there was nobody to verify the records or anything of that sort it was somebody the professor you referred to was as i understand it your effort to offer an expert to comment on the import evidentiary record to do review the adequacy of the district court's determination i would agree absolutely that without judge campins and the problem here is that the district court did rely decision made the statement that somebody has presented no proof regarding the the status of the proceedings in israel and shifted the burden of him to prove why he was were certainly undisputed facts of what what is disputed is his intent here and the government offered no evidence to demonstrate that his intent and failure in failing to return was due to wanting to avoid prosecution which this court has already said the government must prove is the reason for the failure to return the the problem is that we have case law that  think this circuit followed the d c circuit opinion in united states from vs about six point nine million there are they the the claimant was residing outside of the united states did not return after notice and knowledge of charges and but did not offer any reason for his failure to return and the court theer said it's not enough that the government shows notice and failure to return and that the government didn't show any evidence of any intent on his part that his failure to return was in order to avoid prosecution i see that my time is up and unless the court would like to know if if if the issue is the only issue here is his wanting to maintain residency  even even if he could show that what difference does it make in other words he wants to be able to maintain his residency in a foreign country but even if you could show even if he could should that be an adequate reason in any event for him not to come back to answer this and you're on i think the problem is is that any any legitimate reason should be sufficient reason and i think that what the court is getting at is back to the burden shifting analysis there be any reason maybe he doesn't want to leave because this is really is the only place you can get is favorite ice cream i mean it can be enery and if he if he had a if he was under some kind of a health problem or he had a dying child over there or he couldn't travel for a medical reason or something i mean and i understand that you are not in this case i think it is a for the residency issue i think that would have been the case all right ok thank you thank you a please court good morning my name is philip trippi i am an assistant u s attorney with the northern district of ohio office of the united states attorney and i was counsel for the government both on the district court level and obviously here today your honor i believe that the sabines argument on appeal and as conveyed in his brief is premised on the misreading of united states versus salty  counsel clearly counsel into district court level and council here continue to suggest that salty stands for the proposition that there are submit themselves to criminal jurisdiction of the court has to be the sole or predominant let reason to decide so for a minute do you continue that the case law permits point that deliberate absence from the country does give rise to a presumption colossus was a second circuit case that we may want to bet complete absence where you have nothing to from which to defer to infer whether the absence is deliberate or not can you point to case law that supports you on that point your honour's i mean this record is devoid of any evidence as opposed to statements on erect the riginal motion to strike we did raise the concern and it it went undisputed at the various stanislaus conducted by the judge in the district court level that sabaidee through his regional council had expressed concern about coming back to the united states to face criminal jurisdiction because he was concerned that a conviction would evidence or merely an assertion value as counsel for the united states it was first represented as an assertion by us in the original motion to strike but it was also the subject of repeated the sky sions before the judge the judge was aware where is their record your honour's unfortunately there is no clear record other than the than no clear record that we can point to other than this we don't even have before us representations were made and if it's all councils representations last time i need that wasn't evidence you know know of any way that your assertions to the court can be evidence do you honor i know that once we show that he is deliberately not coming back to the united states evidence cheryl through evidence it was undisputed your honor that he was choosing not to come back to the united hadn't to reflect that i mean you know should the council the fact that you all don't disagree on a point does not establish it to be evidence if you're going to get evidence through create evidence through that you've got to either stipulate or at least there's got to be formal pleadings in which an allegation is admitted which is not the case my concern is that the way the way you worded the test avoids the nature of the salt and doesn't say deliberately away from america it says deliberately avoided prosecution and so that's your as the government to show and i'm unconcerned about the thinness of this record also because i don't understand how statements of counsel there are not even a record before us could be used  to show that you have met deliberately avoided prosecution what is your best evidence in the record that the actions of mr server so you were for deliberately avoiding prosecution i would contend that the best evidence that's available to the court other than judge nugent's actual representations within his own opinion would be the fact that the issue was raised in writing it was not responded to other then other then again it was acknowledge repeatedly that by counsel that they were basing their reason for not coming back to the united states or leap upon their reading of salty that we had to prove somehow that it was a soul so rich let's put aside their reading of souls and because we don't i think is judge given says the issue is not issue doesn't reside here in their interpretation of it being the sole or a predominant or a substantial the question is you have the burden of proof to show that that the purpose that this individual deliberately avoided prosecution that that was the intent and i'm not finding anything in the record that gives you that support you need we do have a with the responsibility to show by a preponderance of the evidence that he was deliberately avoiding prosecution is there any i don't i am not of conv impediment at that mr sabaidee had i don't believe she did but the fact that she was able to freely travel that that the court also took in consideration that given the pat not indicted he was he was your responsibility your burden of proof for life right but the court's asking is there any any any evidence from which the judge could draw an inference and i think the judge did draw inference from the fact that she came back to the united states and showing that there was no impediment to him physically traveling to the united states in fact this way for done so so that she can persist in presenting her claim to the united states it's that i don't want to sound i don't want to say on nasty when i say this so my choice of words is is convey some things i'm not feeling about this but you know one of the cuts i was a district judge a very long time and i don't think that affects how i see appellate proceedings very often but one way it does affect me is that i get irritated it choppy it's sloppy ski's very sloppy and you know it's sloppy not to make a record it's a lot beat frankly i mean i don't know who has will not go to the issue of whether you ought to be having caught for answers that are on the for me but i would think you might have suggested i mean you have an obligation as well as the judge but you know it's incumbent on you to think about how this is this really in the record and so your needs to think about these things and so i don't mean that this and hard for me i'm not medicate you or anything i'm just making an observation i understand your honor and you know having been in the free for so long i can tell you the argument was soley a disagreement back and forth between counsel as to whether a desire to preclude a prohibition from going back to the country of israel should excuse a person's obligation to submit to the jurisdiction of the court and it was our position throughout that he had an obligation come back to our starting point  always was words a body you know at some point it's incumbent upon them to give the explanation they did not return to what was out there from june twenty fifth t another case law about a case law that says for example using judge clay's suggestions you have a very sick child you yourself have had surgery and are recovering there are other reasons that case law has accepted as reasons not sufficient to show that there was an attempt to stay away from america because of the prosecution so it's not so that what you have to show if those reasons are adequate the question is have you placed something under your burden of proof in the record that would show that his statement that since two thousand and eight i have been working to maintain my right under the law of israel to be one of the few recognized in the world who may live in israel i do not want to give up that silly and small group and my right to remain here is there yet anough to show that there that the reason he did not come back is not the intent to avoid prosecution and that's your barton i understand where the courts coming from however our position throughout was that everyone's misreading salty even and salty where the person had a major heart attack in an operation had a  much more concrete reason for not being able to travel to the united states being under some sort of impediment to physically traveling back to the united states even the salty court clearly held at the end of the opinion that we are judge in that case who was a different district judge because they felt that he hadn't taken into consideration adequately the argument that there was a medical necessity that's not what i asked you the message of salty you believe is that in tint to avoid prosecution can be in this particular case we did raise the considering out if i'm right that that your argument where do we found the support for it or is it your position that there is no support for that in case law it's simply my position that the court was within its rights to exercise it is its discretion in this case the court was aware that he was not showing up the avenue asking a question i do not have proposition that you can in there are cases a do say you can infer with the intent was based upon failure to to answer discovery based upon years of here a line do not believe i can cite any case were failure to appear or woen would would support a full inference and i would again ask the court to consider that the fact that in this particular case the issue have been squarely placed before the court in the original motion to strike and counsel had no answer for that because in fact that did represent what occurred that meetings had occurred between government counsel and and mr sabaidee it's counsel regarding their concern that any criminal conviction in the united states would preclude him from easily going back to israel which is actually slightly different than the concert he was later brazing but we put that on the record by way of raising it in a in our in our motion and then we got nothing back from them because there was nothing to come back to other than the fact that that was exactly what it occurred that there had been a concern and there are cases to say that you can you can infer from a person's judge gibbons i think there is case law that rejects the proposition that you can make an inference simply from the absence of the claimant and the failure to return in that case is the d c circuit  case and from two thousand and nine us vs six point nine seven million i think that case makes clear that reasonable inferences are to be drawn in favor of the claimant not in favor of the government that may or failure to discussions in this case i was not counsel and to later in the proceed ings for mr survey i think there was an allegation or an argument that government's counsel submitted in its own motion to strike that they were in contact with counsel from mr sabet a prior to indictment and in that there was a pre meant in april twenty ninth two thousand fourteen meeting and i believe the government says at which the potential of a resolution of the case by a plea agreement was discussed and that it was clearly communicate counsel by the government's counsel that any resolution of the civil forfeiture case would require resolution of both cases now i don't think that first of all there's nothing in the record that would support that there is also nothing in the record that would support what mr tripp peace now saying which wasn't even argued in his brief as that in those discussions there was a concern raised that a criminal conviction might perhaps prohibit him from ever returning to jerusalem and i simply don't follow that argument because  know what would happen here it is far as i understood it the issue was that is if he leaves he may not return to israel that's israel's rule that that was certainly always the position that we've taken in this kind of case and when i say wait i'm saying including prior counsel in response to the initial motion to strike so i think it was made clear at that point that his his problem in returning was simply due to his legal action with the israeli ministry of the interior who had revoked his residency and he was fighting to retain it the other thing that's different in this case from cases like techno dine and colossus is that there is absolutely no evidence in the record here that mr saberi somehow attempting to  obtain concessions for the government in exchange for his return from jerusalem let me ask you this if the burden is on the government if your client doesn't have any clear statement on documentary evidence from the israeli government to say that if he leaves the man to be permitted to come back what of what is it that the united states government should have done and could could have done to have confirmed the truth of your class contention that if you left he might be able to get to return i think your honor that it because it's the government's burden the government either has the burden to prove through other means that through other actions or statements of the claimant that no really here his intent is to avoid return says your client couldn't provide that evidence and maybe the evidence is simply not available what could the government of well i think i think your honor we did respectfully we did provide that evidence through his attorneys opinion honor i think that i'm not sure what the government could have done in terms of getting information but i think the best source of information about that comes from his attorney because his attorney had been representing him since two thousand and eight his attorney is the one who had secured for him permission to return in two thousand and eleven for a brief period of time and it was his attorney who was then representing him in the appellate process in israel and it is his what it it is his attorney who then stated in an asse warrant affidavit that he would not be able to return if he left israel during the pendency of that appeal and  belief is that is because the case had been decided against him adversely he was therefore a litigant in the court of appeals there and leaving would then have resulted in  waiver have this is future right to retain that or really achieve or re obtain that that residency permit that he will be your honor i don't know that i don't know any further information and