to u s fish and wildlife payment restitution as a condition of supervision is limited amount to losses caused by the specific conduct that is the basis of the offens i think he said that there was no fine and for good reason that is the order he ordered what would be the a full fine as restitution in my and in my take on this precluded from reconsidering the fine i believe so far i believe so we are on under what case bertucci said that you use the record as it stands on the restitution and the record would don't feel it was appropriate which is why we appealed the tastes the judge could have ordered fined certainly he my client received six months in custody for the sale of eagle feathers what i understand that you you don't agree with going to the illegal market price the hundred thirty dollars was based on the sale price in other words that was what u s mission life was out of pocket in buying the eagle feathers and make no mistake the government still has the eagle feathers right but i would i guess i'm thinking i understand where the money came from that claim from the government kafir to to conduct this this by but i guess i was assuming that because that was the price that was negotiated between your client and the agents or the undercover person that's the that's the undercover market for that's the i think we can market i think we could certainly make that argument in there was testimony during the sentencing hearing which indicate that for instance a pair of evil wings equal parts was worth about five hundred dollars an eagle tail was worth anywhere from three hundred to six hundred dollars this was individual feathers that were sold that would be a good indication of what the market value was but i think the important part is that the loss to the government which is what it restitution really is is the hundred three dollars they paid out of pocket there isn't a loss of a bird in this case i think that there seems to be some debate anyway on how you classify the same independent of your other argument about where the money should go but is the government the victim here is the eagle the victim is society victim how do we define the eagle in this case certainly was not the victim at least in part because my client never killed an eagle we don't know how the evil died the eagle could have died of a causes not related to anyone shooting know the scope of the offense was sale of you got out of traffic yes exactly the offense was not taking a bird the offense was not killing a bird so i can't see it out the window the offense was the trafficking so that the loss isn't the loss of a bird it's the loss of the hundred three dollars that was paid by to the government's theory to be that your man was facilitating a market in feathers and that in conjunction with i suppose other people in such a market causes ultimately the death of birds certainly a possibility i don't know that that's true but that's a good argument the blowing up a good argument why doesn't the why shouldn't we firm be it's their theory as to why the value of the bird is the right amount because your that they are that goes to punishment and not to not to the amount of restitution in the case so the for instance an us versus i'm sorry because because it's not economic law that's correct the that's all about restitution under the case law is for as about exactly cases which prove a proprietary  because of the trafficking impact on the regulatory interests of the of the government victim would clearly in my view support the fine ike one hundred percent the court determined to be an appropriate sentence the sentence we haven't appealed neither has the government the sentence stands that includes the fine that includes that there is no question that he or restitution as opposed to i think the  inappropriate then and that's the remand three cents and then the court has discretion to consider whether other in a related interdependent parts of the sentence need to be i think this there's a good point made that in determining the victim that the government having a proprietary interest in fish and game is what determines restitution the is the value of the wildlife or the amount the government could have sold the wildlife for but in this case even if the government can get the feathers through forfeiture that's moot because the government actually got the feathers it can't sell the feathers so again there's wasn't shown in this case in the my client didn't plead guilty to the loss of a wild bird which we just don't have an escape as there was no taking of a bird the government has the feathers government can't sell the feathers and it's only loss is one hundred abroad good government and start would you would would that with the government's interest the government is the only victim here identifiable what the government's interest to protect birds justify a five thousand dollars fine for service has a memorandum agreement with that foundation that creates an escrow account called the dakota eagle restitution fund and off funds from these trafficking cases what would a criminal fine for violating th be directed to that to fish and wildlife and then to that fund i don't i'm not certain if a criminal find would my question yeah ok restitution of addition wildlife by moving the by moving them on a money from fine to increasing it's money well it's certainly not the intent and it doesn't go into the budget to stick with ok so i and then and then it's allowing to to then itself then it's giving money to  client first the fish and wildlife budget and then to fish and wildlife ability to donate and i don't you know i have with his case because i think your argument that this is a economic loss with respect  because there's no dead bird i think it's it's totally fictitious so why shouldn't why shouldn't we require this is the punishment to be done the right way of course we did ask  restitution but it was called a fine but the court had to really was restitution and it wasn't statutorily authorized as part of the sentence so i was one reason the bertucci was reversed here father bertucci and use the supervised release for killing of an eagle and that at least at least in terms of the factual backdrop we've got a different situation here we do it's a different a slightly different situation but what we do have is generic d n a proof that these at least these four tell fathers came from one dead the same dead but legal and so a bad legal was in the stream of trafficking here without question this could you tell why that the eagle died  through the sale of these feathers but i don't think there's really any question under this court's precedents and precedents of many courts that the united states as the core pound here the people of benighted states can be a victim in a wildlife traffic so you don't think there's a requirement of economic loss to the government well property loss question so how do you value the property interest of the government or a proprietary property which i don't understand that other than a theoretical ability to forfeit it's a it's a back a bad thing was lost as the result of the house and the cases involving the lobsters in south africa the striped bass deer there are plenty of cases a recognizer manimal can be a property l s for restitution clearly with this court own home and slugger too far and i don't mean to be fanciful but we really don't know an eagle can die of natural causes that's a law that's a natural law so how can we know that this was an unnatural law that should be the source of the restitution it doesn't have to be a natural loss for a needle to have been trafficked and for the feathers to come from an eagle that was trafficked it could be a natural death he's not charged with the killing he's trying to traffic the government have been deprived of either a property interest or a proprietary interest in the eagle if this traffic can cause the death of an eagle well the eagle if an eagle going to be clear but let me take a stab at my theory here the government's theory i think it's true we have lots of case law supporting for the fact that when you traffic wildlife the last of that wildlife as the court foun readily that b m g was a victim in that case and i would say it's clear the united states was a victim in this case so the question really becomes so how do you prove the amount of the l absolutely mean that eagle is dead how do you replace those how do you determine the replacement cost and that's where cases like fraser and mike even the pre the supreme court's most recent decision  sometimes you have to give a little leeway in how you value the loss even when you can't determine an actual fair amount market value of something a property or something that was lost you can't determine it through fair market value this court says when the supreme court says that what you do is come up with some reasonable way to estimate the value in a good way as replacement cost this court found the district court that placement cost here was the proper way the only way you could replace these four bald eagle feathers of even if it's just the fatters that came from the body or the only way to replace them is is through the introduction of a new body go into the wild without any proof of causation well the cause ration is does rely you know that's it in reading this case it's it's a fascinating area because cause ation if you're talking about strict but for causation factual causation there's no doubt that the here when the offense is the trafficking of a body go in it's part in the trafficking of a you know to count the trafficking as the district court found in it was on in its findings that it provided particular eagle or the the group of eagles that the sixty three feathers came from but you don't you don't have restitution linked to the offense a conviction we have restitution linked to the trafficking because certainly the parts of a battleground one single juvenile body go for fathers were trafficked without question i can't tell you how but you go died and i can tell you that the freedom fighters from the money you got were traffic even if you accept that the areas are a problem with the full amount of the value of the eagle being assessed against each person who sells a feather from the eagle is that like a paralyzed problem where the court said we can't tag each of the viewers with the full amount it does have to reduce it and come up with some reasonable estimate it does i we have that be a problem here and giving the full amount because there could be another guy who sold for more feathers or two more feathers and that's true under this theory everybody would pay the full amount of the bird which is not permissible under paralyze that's true it's a different statute if so i don't know if that's true a different statute really we say under paralyzed but under that approach it wouldn't be permissible so why isn't that a reason well reduce this amount and the court course davenant's was that the body you know that the government presented was worth ninety eight hundred dollars and so the court i think did incorporate a reduction into  you think the full amount is the proper order get it in this case i think it's commensurate with the crime and i think that's the ultimate question that they're getting at imperiling you have to what is the role of the defendant's conduct least one dead juvenile eagle and i think there's no it's was not an abuse of discretion and i'd be your honor and one of the factual findings by the court were clear turner for thank you if there's a specific case you want to talk about we can i've got a couple points i'd like to make first of all one of the things the court looked to his evaluation table determine which is a fine schedule but i would point out that that valuation table has list parts at five hundred dollars not the five thousand dollars so it has a separate amount for parts whether that means two wings a full tail a head down his will was for fines right it seemed like i was a little confused on what the sources were for the information and it sounded like it was sort of rounded off fine numbers it that it is a valuation table promulgated by fish and wildlife it's not negotiated or in your sense is that what the district court relied on morgan almost seem like you didn't get what the approach you wanted the prosecutor was trying to present some evidence of the replacement value and the court kind of said well that replacement value that study corroborates this fine that's that's like relied on sort of what neither one of you i think that's a really good point which goes to the fact that what we're talking about here is not a replacement of a live eagle with replacement feathers but again we don't have to replace a father because the government already has one i made a note your and then them to is the south bond schedule that's a government record were for the trial court referred to the south dakota collateral forfeiture schedule is that in the record on appeal it is i believe it's the same thing but i don't this i didn't see of anywhere in the in near a denim document anything setting value of five thousand for a juvenile and ten thousand fro all it has is five thousand and ten thousand and somebody had to testify that that's what that meant i don't think that it should be used at all frankly we we put it in the end even find those numbers and it's a coup for a person through it's a contemptible confusing the table ok i put it in there so that because the court had mentioned it and i thought the court might want to see it it's a standing order in the court used as as part of its basis quick note on paralleling before i i ran out of time the took the pictures abuse the child to pick it said look we can't order restitution for the original crime of creating the pornography or abusing the girl we can only woman that is exactly what he says and that's what we have here there is there maybe we don't know there may have been a separate crime of killing an eagle for which replacement cost might be lobster cases court found that because the south africa could could have taken those lobsters and sold them at market value that are appropriate restitution was the market value of those lobsters same thing with ocean pro limited which said that with respect to bass taken out of those waters from maryland and virginia those states could have seized those sold them and that's an appropriate amount of restitution the government can seize of others they already have the