proceedings the condominium was initially included in a preliminary order for her it was included in the civil forfeiture proceedings but she prevailed on her claim and she was able to continue to own the condominium so i don't think there's any doubt about that which provides really the only mechanism for a third party to get very interesting probably so that raises a question if you look at eight fifty three and six it's talking about five which is the key provision that you mentioned earlier in any civil proceeding to forfeit property so could you make the argument that the government makes that this is not perceiving to forfeit property it's a proceeding to quiet title list of exceptions that's going to fly so you take that notion of what a civil forfeiture statute and then you look back twenty one u s c eight fifty three we know that section eight fifty three the exceptions are in ninety three not only for sixty five but any rate when you go back to traditional rules statutory construction you know for congress provides a list of excluded items or statutes from something else nothing if it truly is a civil forfeiture statute there proceedings under it but surely it has to be a proceeding for problem and i think we know that to just based on how these proceedings really bear out because you start right now if that's all that happened of course that's where they would have determined that there was a bona fide a purchaser for value at that stage and so the the claimant at that point  position that if there had been no civil unrest and proceeding instituted at all if it was just done all within the context of the criminal case that there would still be an entitlement to attorney proceeding and that's made clear by eight fifty three and seven which says the government doesn't have clear title to all third party interest to resolve so i think that all of that comes together together to show that this is truly a civil statute everything about proceeding a civil even the in alaska court the government district court relied on says these are civil proceedings not criminal there are no criminal defendants in a fifty three in proceedings they're all third party claims i believe i'm out of time unless you have other questions for now we do not thank you  it please the court john grant the united states if i could i would like to start with judge guy with your point about if there had never been a civil action with that result be and i think following the the moser case the publish circuit and then also the un publish case of a third circuit would be that there would be no entitlement to attorney's fees and we start with the basic principle of sovereign immunity that congress must clearly and explicitly state it to be clear but they don't have to use the language we here by our waving sovereign immunity that's crowd would agree with that judge but but it's not clear because the moser case said although there are strong arguments that scene is civil in nature it is it is entirely unclear that it is proceeding to forfeit property and i would say that it's if there are if you look at the first at the process and how it works it is not a procedure to forfeit property because in the this is in a fifty three proceeding it's in there is it in persona forfeiture so is part of the criminal indictment the united states has the burden to prove either before the jury or if it's waive before the district court that the prevent there's a nexus between the property and the crime and in this case with a condominium the united states proved to the district court that the condominium was bought with proceeds from the fraud and it was involved in money laundering so united states met its burden in that effect and then it was that to corey andersen to come in to say that she was a bona fide purchaser which the court found that she was so why isn't that all part of one forfeiture action well it in terms of looking at the in the if it is all part of one four for gerakan then it's all criminal and then and that's to indict and so to make sure that the assets are not dissipated we follow a civil action and the actions are usually stayed in the reason their state is protect the defendants because they don't want to engage in discovery so that's the reason that that that they're filed and then they're studied and then we followed up with a criminal case but meanwhile this person coriander seven who is not a criminal defendant has her property seems now of and that's not what happened we had we had a trial and right off and was convicted he waived his right a jury trial and there was discovery in criminal case and then there was a finding by the judge that the property was involved in the they proceed without any criminal proceeding yes yes and that happens and that would be for whatever reason you chose not to indict but you'd still have to tie somebody putative defendant anyway to to the property and the proceeds of his wrongful action not necessarily judge a guy i'll give you example for example let's say at the cincinnati airport today officers police officers claimants we would simply advertise that over the internet and if no one comes forward it becomes our property but that's through a civil court that's to a civil forfeiture and see that that's why i think that congress said let's give attorneys fees in the civil case because it's really easy for the government to abuse its authority in a civil case because we could just take property and if someone doesn't come forward and they don't have an attorney to do that they can afford it then we get the property we're in a criminal case we have to go forward it's our burden to prove that that property is proceeds we're in this case that money laundering and mail fraud is proceeds of the fraud and it's involved in the money laundering which is what we did so you know that that's a good reason to explain why it's not really unfair not to pay attorney's fees  solely part of a criminal proceeding is you maintain this because a third party defined as being an innocent party says wait a minute that's my property you just took and if i don't have a lawyer and pay out tons of money i'm not going to get my property back how is that different from the person in the civil forfeiture proceeding well in this ill forward proceeding if it's started in very beginning and the litigation has to involve is the property even subject to forfeiture which is a whole component it's already done with those probably by the time that the third party gets involved in the criminal case but i think we need to look at that statutory language in the language is is it a civil proceeding to forfeit property how can eight fifty three in an ancillary proceeding be a proceeding to forfeit property when the property has already been forfeited yes they go out so you're you're focusing on the to forfeit property yes it's just as the court in moser in the courts in the las code there is there are those two cases are very much are in our favor there's nothing else out there from the other circuits that that favor if we're looking at it fifty three and and the whole of it fifty three and we're dealing with third parties who are not criminal defendants so why shouldn't a fifty three be viewed as a civil proceeding to decide ultimately whether property is forfeited given that it was originally subject to a preliminary forfeiture order and to support my proposed reading you look at and six which has a civil burden of proof to propel endurance of the evidence standard and then says you know at the end following the court's disposition in seven the u s will have clear title so why isn't this all signing blame but was it her fault that she didn't file anything in the civil case or was it that the criminal action against the other people went forward that they were asking for clarification from the judge or is where the plane way that it was for her interest is gone if you prevails as mr grant pointed out the government has she has she not come forward and certainly the interest in the government would have been made i guess it's theoretically possible isn't it that that point in time somebody could appear who had never been mentioned in any time before where their claim that they were a bona fide a purchaser for value like the example he cited sometimes is property you don't even know well and so i guess my point is in that case that i just pose the person coming forward hasn't been  specific play aggrieved to the point where you would say well the government's put you to a burden and and we're going to reward you buy a boarding attorney please in this case and the thing when you talk about this being remedial and whatnot it's sort of like well if the government wants to proceed and along certain highhanded lines why they're going to have to pay the piper if they lose but there are a lot of instances in which the government when you've even known who this person w and would have had the burden of proving that she was innocent that probably in the civil forfeiture proceed now put that hypothetical away for a second now let's suppose there was never a civil forfeiture proceeding ron we go through this entire ancillary process and they've included this condominium ms anderson didn't have a burden of of anything during his criminal case she wasn't a defendant she happened to be a witness but she wasn't a defendant she wasn't doing anything in bryant's criminal case to try to vindicate her interest in that condo nor could she resume it to a fifty three k so for her the burden was exactly the same under either scenario she had to retain an attorney she in the civil forfeiture context would have to prove the innocent under defense in the a fifty three and proceeding she had to prove bona fide purchaser for value and then when you look at what the proof is for both of those it's identical so for a third party claimant her shoes there is no difference whatsoever between a civil forfeiture proceeding and a fifty three in ancillary pursuit and in your hypo if if there were no civil proceeding at all to start w that it were simply a criminal for french or you're saying that paid fifty three and a loan would be enough to make it under the statute a civil proceeding to forfeit property thank you counsel case will be submitted