the district court erred by not accepting as true the allegations in her petition correct i required by rule thirty two point two i did not find in the petition and perhaps you can help me an implicit claim and i think it would be well but what's expletive in paragraph fourteen is an allegation that the government has failed to sufficiently allege that the subject accounts had a nexus to the crime finding in a proceeding that she was not in yes but here she seems to be making a specific allegation about what the government did did or did not allege and prove in the former case all of the funds in the chicago account of the law firm from which mr duggar just was paid were the proceeds of fraud and this allegation says in effect no they didn't but it does not say even on information and belief that in fact it is false that in fact there's any basis that you or your client have for alleging that we know or we've heard from somebody that there is ninety eight when the affiliation between the chicago and the dallas firms were made was made that the funds would be deposited going forward there was no evidence in the record that that's what in fact was implemented and it is my understanding your honor that that's open to question there was no evidence in the record and the what what the proceeding in which that affidavit when you again when you say that it's open to question it seems to me there's a difference between a third party claimant who comes in and says here are the real facts i know the real facts and i wasn't there in the prior proceeding and i want the ability to prove up what i know to be the case and an argument that says the court got it wrong on the record that was before it at the time because there's a hole in the analysis in the reasoning of that prior court if that's the claim that's me is not a factual claim but one on which we are entitled to look back at the record as it existed and see whether there is that hole or there is not well your honor i would submit that what you're pointing out is perhaps the oversight and they defect in drafting of the petition or your point i take it is that whatever happened in the prior proceeding your client wasn't part of that correct your honor thought so but but  paragraph fourteen which is the closest that you get in in your statement you don't say that there are you know other funds of hers that are in this in this account that somehow this is not some so contend that that was a contribution by her to the accounts we do you receive these whatever she got in these accounts came from the the or in the p m g accounts yes in the prior j n g accounts that all came from the firm came from the firm your honor but there's no evidence that what that first of all that in fact the funds the receipts for the tax shelter before fees  would show that there were there was none tainted money in that yes yes and that the it curd the submission that your honor relied on occurred in the context of a pro se motion by mr dog to release funds prior to the second trial it was not the subject of a hearing after the trial and is not the subject of evidence at the mr dog disses trial what is the basis for saying it's a plausible allegation that an agreement between the law firm and between the law firms was not complied with in fact why would we anticipate i hate that discovery would show anything different well the discovery would show would enable the deposition of people who were minister ring the agreement and see whether it in fact was observed if that's entirely exploratory right in other words if we're going by rule twelve b six standards a party does not ordinarily get to allege all vote there is an agreement that certain things were going to take place and there has been some judicial finding to that fact did take place in some other  situation we're guessing that discovery will show that it wasn't well you know as opposed to making some allegation that on information and belief it was not complied with and that somehow a ploy going to be assessed for is basis to believe that it did not happen as opposed to that you would like discovery to see whether it did it is my understanding that there is some basis to believe that it did not happen and is that if there is anything you can share with us as to what that basis is it's the basis of conversations with my client and with conversations with prior counsel but your client is not a member of the law of evil law firm no your honor and the client's information may be derived from her husband please the court and you're out of for the united states i represent the united states with respect to the petition below not with respect to mr daughters his daughter disses prior trials judge pauley found on several occasions that the subject accounts and the accounts from which the particular assets in this case flowed represented the proceeds of mr doggedness as long running and quite successful tax shelter  scheme but he did it on the basis of the prior case and that's the argument that your adversary is making here that it should be confined to this case to her ears out legations and not and that it's improper for  the factual allegations that were set out in the petition as judge lunch in your honor both referred to a moment ago it's completely unsurprising in this context with this type of petition who essentially says i was gifted proceeds by my husband that she would not be in a position to make any sort of factual allegation that would make out a claim under the terms of a fifty three and six and the simple fact that she cannot make out such a claim does not equate to a violation of due process suppose she were able to make a plausible allegation suppose the petition said i spoke with  apart the law firm who said no actually there were other fees in chicago they didn't have to do with tax shelters or no actually that account contained money from dallas as well from fees that were on some litigation separate and charlie apart from this if that allegation were made are you contending that it would be consistent with due process to say well isn't allowed to participate in the criminal case and no such evidence came in in the criminal case and therefore she is bound by a determination made on the record and notwithstanding the allegations that she makes in the petition your honor not to fight the premise for the hypothetical i do think that there would still be some relatively some complicated questions as to legal issues not factual questions even under that scenario there would be legal issues about what commingle means and what tracing means and so on but then we'd have to address those questions i take it over and the government's position in this case is we do not need to address those questions because this is a done deal a done deal in the sense in the following sense and then and one issue about a fifty three i but the the allegations again as the court has already pointed out simply don't make out anything close to well that's the question i asked mr divied and i understand the government's position on that and i understand this is from your vantage point a hypothetical question but i'm still wondering because for example if mr to be a conveyance of well or i was sloppy pleading we should get an opportunity to replete and we could replete something that casts substantial doubt on the facts as found before in such a hypothetical what i'm asking is are you saying that it would be it would comport with due process to say the statutory scheme says we do not have to listen to that it would your honor and it would in two ways first in this hypothetical what mrs daughter to us would be saying is someone else had a prior ownership interests not me but some other third party and that money came into my husband's account and setting aside the issues of commingling and setting aside also that the issues of the but for test the judge pauley talked about in his opinion setting all of that aside what i'm saying is someone else's property was put in here and then it was given to me in that situation she would have that she would be saying there is an issue with tracing their facts that she from from some way or another knows about a fifty three in six would still for four close her nine there's a series of proceedings and procedures laid out for the refuse saying i have a right to this money and that all those proceedings go to whether the government will agree and it's  generally under the the c f r s which does take into account claims that look much like an eight fifty three proceeding is slightly broader than the eight fifty three proceeding it would not just be a question of whether the government would act in good faith under isn't it the reg is that enforceable in a court or is that just what the government may do or should do under certain circumstances your honor i would expect that if there's a a an adverse ruling by the agency that it would be further healable to a court in that context reviewing court would be looking at your argument be then if he had if if if mr de vere the petition had had stated share information and believe where are you at that point again setting aside the sort of but for issue with respect to mr dog or to his income all of which is represented by the assets here setting that aside our your honors your honor judge lynch in response to your criticism of the petition which may well be founded well founded and i understand you want to understand what it is actually a lead but but the government did not argue that below and if in the dismissal of the petition on the basis of lack of standing denied any opportunity to replete as your own a pointed out if the judge if judge poly had found that the pleading was completely undone with out an opportunity to replete i respond to the government's argument that that eight fifty three i provide an adequate nominee well first of all it wasn't raised in the district court and was not argue and that constitutes a waiver and second of all that procedure as judge lynch pointed out is discretionary it is by a finder of fact who is a an interested party in the litigation and has in that final financial interest in the outcome of the litigation and is the party opponent to my client so that it cannot be an adequate substitute for you know what he's saying that you can that if that if all that arises and there's a denial that that becomes actionable on your part i don't think it is your honor i think that the statute specifically says that the decision of the attorney general is not subject to court review and i think that he's got it reversed that if we were to lose at this stage at the district court stage we would then have an opportunity to go on the legal issues that we presented we would then have an opportunity for discretionary relief before the attorney general but the legal issues have to be decided first and can i go back to the legal issue of the tracing it's strikes me in your position is that if the bank account from which mr daggett is was paid in clue did some other money of the law firms that then tracing would be defeated and as a result the forfeiture had would have to be based on substitute assets and the rest of your going follows from that and i'm in trouble with that mr delegate as wasn't paid by the law firm for anything other than his work with respect to the tax shelters so why isn't all the money that he receives i suppose is the but for what the government is well that's where you why would it why would any money that he received not be the proceeds of the fraudulent tax shelter fees because your honor and it's not i'm not limiting it to the chicago office because it's my understanding that if we were able to have discovery in this we might be able to show that  dallas was actually where money was sent and if it's all entered if it's all commingled at that stage then the you have a rusting type situation where those funds in the bank account practitioner and did exactly the same thing all the money that he received would be tainted but if he's a member of a law firm the argument is that at least if all the law firm all it's b is and then gives him some money presumably less money than the gross proceeds that were paid to the law firm to cover his overhead and so on then it's not for financial well your honor under the government's theory they could have attached a lot for the bank accounts of the law for including all of the fees that were not attributable to mr dog his activities because that's proceeds and it's coming  that once they're co mingled they are no longer proceeds and that in order to obtain the for the government to forfeit those they have to establish that they are subject to forfeiture under age sixty eight to fifty