or purported victims through the supposedly conspiracy network and back to this defendant and specifically to his family home this issue impacts the not merely whether a few dollars can be traced but whether it's two point one million dollars can be traced back to this defendant's house that is the question and deciding whether the forfeiture of his home is authorized on this record season just one second you said that i'm a little confused he said but two point one million can be traced back that's not the amount that traced to forfeit the house was well then how arguing that the whole amount has to be traced no need to make any of it for football now we're going to be throwing around a bunch of different forfeit it and i we argue that they're coming out in a much lower number and that's what i'd like to present but the first quite stressful question is whether the issue has been waived by the  that the plea agreement covers the forfeiture and that it was waived however the language used in the plea agreement applies to the quote conviction and sentence no reasonable person reading that agreement the agreement provides for a trial on the fourth which are normally if you're going to have a trial you're going to have an appeal so for those two reasons the language used and the structure of it the fact that the two proceedings the so we think we can go forward on those now the the district court believed that the defendant had acknowledged a loss amount of two point one million and i don't think that's a reasonable agreement either they plea agreement was deliberately drafted to leave the last amount unsettled the agreement refers to a preliminary restitution figure and that's where we get the two point one million the parent he was garnered through phone calls to different countries and so forth but the final restitution figure it was said could not be calculated until after the pre sentence report investigation so that the los amount was was reserved it was not acknowledged if it is still subject to proof and this area the standard of proof and i'm quoting now from this court decision and us first this three thirty eight fourteen northwest thurmon street the standard of proof is quote reasonable grounds to believe that the property was foreseeable supportable by less than prime aphasia proof but more than mere suspicion and quote this standard is similar to probable cause an issue in a search warrant and it may be based on hearsay or you i'm still see i still have the same problem i just wanna be sure i understand you keep going back to two point one million the source of that sounds like the equity in the home that was necessary to to forfeit the property but the tracing the judge the judge who i argued in front of always took the position that the loss amount was two point one million here and that's what the government has has defended i understand the briefing maybe maybe i can help clarify my own mind by pursuing  line of questioning the total loss amount for purposes of sentencing really as a given question from the amount of money that can be traced and therefore provide a basis for a for which order  the money that's available to be traced for purposes of forfeiture of five understood the law properly is it has to be money earned or i should say gained through the crimes for which he was convicted yes and the two point one million is that confined to the crimes for which he was convicted as far as i can tell the two point one million is  allegation of the loss from the conspiracy the last it's not necessarily traceable to him ok well this may be let's put it this way one of the specific amounts that you claim are traceable and one of the specific amounts you claim are not traceable into the purchase of the misty way house the traceable amount is one thousand one hundred dollars they have used that as a quote example i'm quote but i don't think we can reason by example we have to rea dollars one thousand one hundred dollars from the arthurs that went to mr boma jones and south africa and mr and then mr bowman jones sent a similar amount to the defendant about the same time that's soon mean that then then that's that's the link that they have established now there were two wire transfers one on the third of april and one on the sixteenth of april first one of the third for a little over fifty thousand dollars where that is in the record before the court but there was the defendant made an effort to explain that as a loan that he received but then the district judge disagreed that that was a loan yes yes and that sounds like a finding  fact the standard for proof on that is not beyond a reasonable doubt but it's more than suspicion it's similar to probable cause for issuance of a of a search warrant the court basically reasoned that if money went to some country in africa and then the defendant received a check from a country in africa that it could be concluded that that was the same money or represented the proceeds of the money that was sent to the country and africa and a lot of that order for us to agree with you we have to disagree with the district judges fact finding yes you have to i i think characterize that a suspicion i would buy if i saw that i would be suspicious i agree i would and given the pattern of the fraud that was proved this fits perfectly within that pattern if it's at i'm not sure the pattern if there's a pattern here it's pretty broad it  little other source of legal income that's also correct he claims that there were loans involved that he's got an extended family and i don't know the whole nature of their their but but if the district judge is right and if we sustain the fact by just a judge's fact finding on this point those two transfers on april third and april sixteenth those are traceable funds for  core amounts that were found in the in the forfeiture proceeding or many other amounts that were alleged but there is there's other than this money coming from africa there's not basis for a reasonable conclusion that this was connected now the arthur family that example that's an exception and the when we turned to the question of the sentencing the the two point one million falls to one point two million a lot of these people it seems were not able to be located later and in fact change the amount that doesn't make any difference for still be located one of these gentleman claims six hundred thousand dollars and then he couldn't be located the reason i mention this is we're kind of doing it a reasoning as against the defendant that if it if certain conduct must have been kind of repeated along the same pattern that's the that's the reasoning process and we would like to turn that around a little bit and look at the look at the source and whether these are reliable claims of i'd like to reserve the rest of my time thank you if i did draft that plea agreement and it never occurred to me that this issue would come up it was my understanding all along going through the process that forfeiture was a part of the sentence we never discussed this issue so that's why it's not it's not specifically  drawn out in the plea agreement itself going beyond that to the specific issues of the forfeiture drivers correct what the judge found in the district court was that one hundred nineteen thousand five hundred eighty five dollars of the one hundred thirty four thousand some odd dollars down payment came from fraud proceeds at this point the two million dollar number was not in play here we were talking  point the court would need to find that he clearly erred in making the sexual findings and i don't believe that the defendant can bring forth evidence to show that he took evidence from the case station himself who  several instances discussed amounts of money that came from south africa by wire transfer to the defendant as well as amounts that came from canada as postal money order to the defendant as far as the boma jones wire not all in south africa they were various countries but they also testified that they were in nigeria and the judge considered that in determining that the the the amount of money and the thousands of dollars that were transferred to support the purchase of the misty river away residents were in fact proceeds he didn't draw that out of the air and he didn't decide that simply because the money come from africa he had testimony from the case agent in support of that and i would also no factual finding for the two wire transfers from crystal glass nigeria that those are ill gotten gains and therefore traceable assets what about the money from the proceeds of the wind book house some of which were used for payment for the misty river house why are the proceeds from the sale of the wynn brookhouse for for the molasses  going to do forfeiture as distinct from other things for example sentencing because overall loss and so on if you're going to do forfeiture under case law it says it has to be for crimes of which there was a conviction and the can he pled guilty to conspiracy beginning of february two thousand and one ending june seventeenth two thousand and two well he bought that wondrous house in ninety nine therefore how do we fully seven thousand dollars and change and the only amount seriously in dispute is the amount came from one room you know we're not talking about a lot of money given the scale of things as a practical matter why do you care ture is going to go toward restitution to the victims we want to get as much as we can out of the house because even now victims are going to get pennies on the dollar but i guess my question is assuming he has some assets not so you're going to get some money out of this house pursuant to four hundred but let's assume for purposes of my question that some money will not be gotten pursuant to the foreclosure and that he will have some of the value still in that house not subject to forfeiture nonetheless he still has restitution can you use the restitution order as a mechanism for attaching value in the house that is not subject to forfe ask that should allow us to look at the entire property testimony on cross examination dealt with the nature of the fraud time variance victims to mr adams the flows of funds back and forth out of the country back into the country to mr adams and  the in the case agents analysis of mr adams bank records and the lack of any legitimate income shown there and how mr adams had used fraud proceeds to basically fund his lifestyle thank you i'd like to address a couple of questions that just came up are there other consequences yes i think need the windbreak condominium equity in order to forfeit this house i thought that he owned it i don't know i don't have those i just i don't have those numbers i don't want to say what i did my impression was  that there but there could be this other consequences they need the wind broke equity and they can't attribute it to the confessed to the time frame of the conspiracy the the only or i don't understand because had no legitimate source of income period for that time period he never said otherwise so why is that the case why isn't it the case that here in the evidence for hearing the district court's findings based upon that evidence are plainly supported that the equity in the one bright property was acquired the same way and the evidentiary hearing records show that it again like around ninety seven ninety eight the same kind of conduct occurred district court found  it it's not traceable unlike the example the court apparently is satisfied with the district court's findings regarding the lego's wire transfers there were no findings regarding any of these other people who are rather coconspirators have him line up along with the other victims that way any and this whole process becomes a closed circle we wind up giving the money back to the people who originated the conspiracy we're not confirming that none of these people came to reflected in the government's position the indictment is art actually because he pleads guilty to conspiracy beginning no later they're fed twenty six two thousand and one leaving open of course the conspiracy began sometime earlier  fed twenty six two thousand and one is it open to the judge at the forfeiture hearing to conclude that the four for that conspiracy began before the fiber twenty sixth date and therefore to apply funds so it was in evidence against him and so i think that the reasonable reading could technically be read to say yes it could be some time in the distant past that this began but i think the reasonable reading of that language is that it began in february two thousand and one that would be a reasonable person's reading of the but what i'm working on is the potential ambiguity introduced by that wording in the in the start date obviously open i mean there's no i'm beginning language leaving open a could be done earlier well to me that just keeps some certainty upon uncertainty as far as where this money is came from and where it went and if you did the district court