may please the court counsel i'm lisa hay representing the defendant jack holden i plan to address the jury instruction the forfeiture order evidentiary issues i hope to save four minutes for a bottle on the jury instruction the district court added the word participate to the mail and wire fraud instructions thereby diluting the government's burden of proof and expanding the scope of criminal liability beyond what congress codified have so we have in terms of our ability as a three judge panel to deal with this or human it appears to me that there is longstanding ninth circuit precedent that says that uses participation for example u s forces mann extensive precedent on this point what do you expect our panel to do your honor i'd say the government did point to as what they said a wall of precedent but my response is that even three decades of error doesn't make it right this well that may be but in terms of the power of a three judge panel we are not by our own jurisprudence we cannot overrule any prior precedent unless there was an intervening mark review your honor another with a panel can review the decision it seems have been decided by other panels as if the actual argument being raised in this court is not has not been addressed by the panels but it has indirectly because you're saying the interpretation contained in these instructions is wrong but that interpretation is completely consistent with our process of going to what i believe is that there's a separation of powers argument that has not been raised before and i think i can make that clear with pointing out the difference between congress in the wire fraud and mail fraud statute punish someone who devises or intends to devise a scheme to defraud in a separate statute in the aiding and abetting statute congress punished those who made this a page and what my argument is is that no court has the right to essentially combined those two statutes into a new offense is not centrally what happened here that that's an argument i did not see in any of the prior cases and i believe this court can review that now hold that was this raised before the district court this argument your honor the argument from the district court preserved in objection to the fact that the statute did not include the word  participate i relied on due process and on the supreme court's decision ilana's i think in these circumstances due process and separation of powers are really two sides of the same coin in a defendant's due process rights that before that's an interesting concept  of any case that would suggest that there are two sides of the same coin well certainly honor this term in my adverse in session's versus to my i judge course that wrote extensively about separation of powers and he referred to separation of powers as the corollary to the process based notion of void for vagueness so i think there are the links and especially in this circumstance your honor the defense due process rights are violated by conviction for an act that the criminal statute does not prohibit and the court violates separation of powers by expanding a criminal statute to encompass that act so we're talking about the same problem that the court has added something to a statute well you know what this strikes me that what you're disagreement that is the court has interpreted the statute in a particular way and you think that interpretation is wrong and you have a lot of reasons for thinking that but i don't really understand why that is different than what our previous cases have cited i know that you're trying to make it a constitutional issue but it strikes me that it really is not your either due process does clearly state that it defined it cannot convicted for an act that congress does not prohibit and perhaps i could try to get into the idea between the difference in aiding and abetting in a wire fraud statute because i think that does help us understand the this court's precedents that allow the use of the word participate stem from cases that charge conspiracy or coconspirators or light liability and unfortunately the the language from conspiracy which does include participation got brought into this case law that is about the actual elements of wire and mail fraud and that's why the school districts the circuits case law is in such disarray as you mentioned some cases refer to willful participation some only require knowing participation the district court in this case simply used to participate without even knowing and as you're aware this court's model instructions were for to allow the use the word participate the model instructions in other circuits in the third intense circuit i have to get  require willful participation in two other circuits they don't use the word participate at all so i think the case law is begging for correction and your honor in this particular case the court did give an appropriate instruction on aiding and abetting in the aiding and abetting instruction which is if you are ninety and ninety one the court told the jury that mr holden could be convicted as an aider and abettor if among other things he acted with an intent to facilitate wire fraud and then the court defined that further and explained i define acts with the intent to facilitate the crime when the defendant actively participates in a criminal venture with advance knowledge of the crime that's the culpable level of participation that's required for aiding and abetting and the problem that occurred here is that although that why that aiding and abetting struction instruction was accurate it created a culpable level of participation the district court undermined that instruction by including participate in the elements for mail and wire fraud itself so a jury could convicted mr holden for just participating in mr sharpe's fraud that's the constitutional violation mr holden could have been convicted based on instructions that did not define a crime and so your art your argument i question and i want to pursue it further but because this particular issue was not decided by the other cases and because the case law is in disarray teams can look at this law and try to correct it and i urge the court to do that because it does violate due process and separation of powers for a court to add an element to a criminal statute which we respect your argument it's a tough one you have better argument that you want to listen  a one point four million dollars personal money judgment against mr holden when the statute provides no authority for personal money judgment forfeiture is punishment and the court lacks authority to impose punishment that's not authorized by statute previous cases in the circuit for example casey newman low of up held forfeiture money judgments but those cases are not controlling for two reasons first again a court is not bound by a prior decision that failed to consider an argument that a later court finds persuasive construction so even if there were i'm not familiar with it on this issue that i would like to raise which is as a matter of statutory construction this court should know should note that congress added a personal money judgment to a different forfeiture statute that's the statute that punishes people who smuggle cash thirty one u s c three five three three two i believe it is that statute allows the government to try to find substitute assets if they can't find a substitute assets that congress specifically said then you can get a personal money judgment that rule about a personal money judgment does not exist in the civil and criminal forfeiture statutes that the government's relying on in this case we're looking at eighteen u s c section  us we're using that one an addition your honor the court the government relied on twenty eight u s c twenty four sixty one which says you can use the criminal forfeiture statute as well so they rely on ninety one and i believe they're also relying on age fifty three the criminal forfeiture statute neither neither ninety one the civil forfeiture statute or eight fifty three the criminal forfeiture statutes allow for a person in my judgment there's nothing in those that authorize that and now that we know from the supreme court recently in both the deen and honey cut and then just recently in law goes i filed a twenty eight a letter on that the supreme court has repeatedly said when congress provides a remedy in one section of a statute or in a different statute this court should not read that same remedy into a statute that silent i didn't find any other case in the circuit where the bulk cash smuggling statute was provided to the court you can read that there is clearly a provision for personal money judgment in that in that forfeiture section that doesn't exist in eight fifty three and i think that silence speaks volumes not part of the wall of inconsistent president to which you make reference  your honor i don't i don't believe so and i think that the next point your honor is that the supreme court's decision in honey cut also provides reasons for this court to not follow that previous precedent honey cut is intervening and honey cut that same section the supreme court said you cannot construe that liberally in a way that adds something to the statute in addition casein honey cut construed the same statute fifty three and reach diametrically opposite conclusions in cases the court decided that personal money judgments could be used to punish those who dissipate proceeds so you can go get money from people who have who don't have it anymore honeycutt came to the exact opposite conclusion and honey cut the court determined that the government could seize untainted property or property only if they followed congress's carefully constructed statutory scheme under it fifty three p so the honeycutt reasoning motive  first we do acknowledge that the defendant did objects very clearly to the participated in language in the wire fraud and the mail fraud statute i will note as judge smith pointed out before that it's the government position that while the defendant objected to those words that there was a specific objection based on a violation of separation of powers or as such have to be that use in other words if an objection preserved and arguments are made in support of that is it permissible to expand on those reasons your honor i believe it is permissible to expand someone on those reasons and especially in this case because what the defendant did cite to for the objection was a linus but again a lot of sort of was the defendant was vague in terms of its application to the actual objection here so the defendant has made an argument that it's left the door open for arguments such as separation of powers and due process we're not sure that they have been specific enough in that objection here a move on to address the issue of their objection to the  s liability portion of the instructions we do acknowledge that they in fact did preserve their objection to that specific instruction and therefore because the issue here is the formulation of the jury instructions evidence that you have indicated that holden organized and directed the sharp as evidence that he was an organizer of leader manager or supervisor of the criminal activity as the statute requires your own and there a wealth really an overwhelming amount of evidence in the record that the defendant jack holden was in fact an organizer i say some of the best evidence starts at the very beginning of the case for us and that is at the record at pages  five ninety seven through five ninety eight this was the government's exhibit two forty eight at trial this was a very early e mail on september ninth of two thousand and seven from jack hold in to lloyd sharp otherwise known as kevin thomas where he sends him the information jack holden sends mr sharp the bank account information for the bank account in guyana that jack holden is directing mr shark to send the investors proceeds to i just have  tremendous difficulty with the government's argument about this basically what you have is two people who work together to defraud people and  they're going to discuss you know use and this and also and that that's just sort of an inherent part of two people getting together to commit a crime and i'm troubled that your argument seems to be that practically any two person conspiracy you have people talk to each other and all about what they want to happen is going to result in this enhanced man and i just don't think that's what it's designed for so you know can you even a mansion a two person conspiracy where someone says nothing to the other person about what they want to have happen next so anyway speak to me about my concern understand your concerns that there was some debate about that at the trial court level when the discussion was happening on the record we had a full day sentencing hearing which included this particular issue i think as it applies to jack holder and under the case law the circuit  particularly in don't require the imposition or or permitted the imposition of this enhanced mint where the defendant is responsible for organizing others for the purpose of carrying out the crime and what we have here is not just  jack holden organizing and being involved with putting together the actions of lloyd sharpe for the purpose of advancing the crime but he also coordinated the activities of the many many many non criminal participants in this case that were necessary in order to carry out this crime a purpose that counted or this enhanced it does your honor and that's the specific language of the application underneath del in this circuit i turn to a slightly different issue and that is the restitution order in as you well aware are well aware in eighteen us the three six six four f financial resources and other assets of the defendant if the court finds that i'm not quoting anymore if the court finds immediate restitution is not possible you have to set a repayment schedule and the judgment conviction chavez in this case the record shows that the court found that immediate restitution was not possible nevertheless it ordered immediate payment why wasn't that a clear abuse of discretion  honor we believe that both under the statutory framework that we've cited to our brief and also under this court's ruling in chavez that the district courts restitution office excuse me district courts restitution order is both lawful inconsistent with the statutory framework where the district court orders restitution do immediately but also sets a payment schedule in consideration of the defendant's economic circumstances weren't worth that schedule perhaps i missed it i what i when i read the order the court said we recognize this guy has basically nothing but i order him to immediately pay one of the one point seven million dollars or something like that i don't see any schedule a payment where is that you know if i ma long he spends in jail unfortunately the victims will be made whole i see no real source of restitution that can be found to the extent that there's any conflict between the written order and the oral doesn't  e ten is that the court checkbox a that i lump sum payment of one point four million dollars was due in immediately and then and then it goes on to say and there's another line that that adds at the bottom of a th can be in accordance with section c or d below and then the judge does check in addition to indicating payments to begin immediately at d special instructions regarding the payment of c monetary penalties below and then you see below that she orders that the payment should be fifty percent of wages during incarceration if employed and then the twenty five dollars per quarter if the defendant is not and then later on when he is release minimum installment possible less than one hundred dollars a month so to go back to my earlier question and appears to me that the judge acknowledged horribly look he can't pay it now and he can't pay it in a lump sum so if there is any inconsistency wouldn't that control that is he can't pay at all now and only the payment schedule would would carry forward so i mean it's gets to the same  trying to go but by a slightly different analytic home around i think it does your honor it is our position as we stated that it is not again considering this court case law in chavez and the statutory framework not an abuse of destruction writing and it comes to us we send it back to make certain that the written conforms to the oral instruction is not correct that's correct ok so why isn't that what we have here this is part of the sentence this is part of the judgment and as my colleague pointed out the district judge candidly admitted there was no way this guy's going to ever be able to pay this back never and yet you have an instruction that on its face says you've got to pay it right now and then you have this other little schedule but even that does not seem that can square with what was said earlier so don't we have to conform this send it back to conformance with what was said or there's no possibility of it being paid we don't agree that your honor in particularly again again looking back at the chavez case in most of these cases where the court is being ordered to put in a payment schedule it's already in a position where the court is ordering immediate payment so there's there's no conflict for the court to say order immediate payment where the court is aware that immediate payment is not going to be collected because the court is also ordering a payment schedule by ordering immediate payment the court sixty four and allows for if a defendant who is who is obligated to pay restitution comes into substantial funds while incarcerated that entire amount  funds must be put towards the restitution obligation and so there may be some consistency in the immediate order of payment where it could be that the defendant won the lottery if he won the lottery or if there was a money judgment or some kind of settlement yes but if that happened couldn't think i mean the alternative it seems to me at least in theory would be to say that the government could come back to court and say we want to alter this payment schedule  it's the government's position that both under the statutory framework and the existing case on the circuit it was not an abuse of discretion for the court to order so in this case it just doesn't make any sense though i mean because the statute clearly indicates you have to take into consideration the financial resources other assets of the defendant and whatever the box says the reality is that the court found has there was no ability to pay and the statute as i read it this is in the imposition in the first place so i'm troubled by this i really am i it's it's inconsistent to me i don't get it and i find it to be inconsistent with what we do with other sentencing irregularities it is clear from the record that your honor that the the trial court judge judge brown did take into consideration the defendant's current ability to pay when she was imposing this order a lot of respect for judge brown but i'm not sure i agree with her about this one i would also like to address if i have a moment an issue that the defense counsel raised in her reply brief that i would just like to respond to related to the evidentiary issues that have been raised the particular issue that i want to address has to do with what's known as the gold star so proper that yes i so that was not addressed during earlier argument it's the government's position that these issues are reviewed for abuse of destruction excuse me abuse of discretion it was the government's argument continues to be that the district court properly identified and applied the rules regarding particularly hearsay as it applies to the court's decision to exclude the d s s so the only purpose for which defense offered the d s s so for a non hearsay purpose was state of mind evidence it was clear in actually judge brown held that there was entirely lacking in terms of foundation for state of mind in defendant's reply brief at page fourteen they cite to an e mail that shows an extremist between the writer or keeper of the g s o so creator romero holden and they contend that that e mail provides a significant foundation for state of mind and that should have been sufficient for the judge to recognize that there was a state of mind reason to enter this exhibit and i would just want to make sure that the court is alerted to the dates on that particular e mail at best that e mail shows that kareena ramiro e mailed the g s o to the defendant on december twelfth of two thousand and eight and that the defendant responded on december seventeenth if you look at that thirty seven page document the first date of entry in there is in fact december twelfth of two thousand and eight there are less than five entries in there on that particular day so again  defendant would have read less than five entries and certainly there is no information that defendant ever read the entire document as it was offered a trial i'd appreciate your response on the organizer enhancement inst to whether you agree or disagree with sort of abstract proposition that it is sufficient to be an organizer or leader with respect to non criminal helpers in the scheme your honor i agree with your position that it's not sufficient that there has to be a be an organizer of other culpable participants and you can't just be two defendants in a conspiracy that's not enough and your i'd also point out that the district court heard the government's arguments about organizers and who is being controlled in the district court and the court did not except those the judge gave the enhancement based on the view that even if they are co equal this and it has been applies if the fraud is otherwise extensive i think that's a legal error based on this court's case law and that the for that reason alone the has been does not apply so the government's asking you to look at the record make a separate fact finding from what the district court already did there's no basis to say that mr holden was the organizer of mr sharp on the facts and in the way the government's in the way the court ruled on the restitution issue i do agree that this is it seems to be complicated but in fact there is the other box that your honor was looking for that's at nine the page before the schedule of payments that's where the court sets out the restitution amount owed to the whole one point four million well this is kind of an easy you're in default you were supposed to pay one point four million in full immediately and that's the word the government left out it doesn't just say pay one point four million mediately says pay one point four million in full immediately well that's the be the practical result if that  and you know he gets out and he wins the lottery the financial division able to come after him if that box is not i think the in any case they would have to return to the court to say here is somebody who's gotten money yeah but that's a yes or no question when they would be legally entitled to come in and say on page nine it seems you are one point four million and you have that money in your pocket now so we want to absolutely he's ordered to pay one point four million there's no doubt about that the question is just can they without returning to the court go take the funds from him so i think it's clear that oral statement was that he's had no money the fox say shouldn't have been checked page nine  the judgment includes that full payment what is your response to the argument that are too slow or permits this sort of inconsistency on a single page to exist i am not certain what case law permits that i think  it's perhaps an error in a sloppiness that's just occurred but we should roll yet we should we should fix this error as well i don't think the government say the case that says it's all it's ok to check both boxes i think it's just a habit that sometimes has occurred so we would authority to impose that if the statute doesn't allow it and i think that's one of the areas that casey made they relied on the rule under the rules enabling act the federal rules of civil procedure don't create any new rights or remedies has to be authorized by statute and in fact the committee notes recognize that the committee notes say that they've raised that term there in light of case law but they specifically take no position on the correctness of whether personal money judgments could be used and i think it's imperative that resolution of that reserve question  be taken care of in the judicial context like in this courtroom so that's an issue the problem with the case you reasoning your honor the other issue that case you were just is whether there's any way to get dissipated assets from somebody who has spent all of the money and there's no substitute assets and respectfully congress did provide two ways to try to get dissipated assets one is under the substitute asset provision that if somebody has spent all their drug proceeds that the government entitle to go see if they have anything else for example house even if they purchased that before they ever were a drug dealer congress can go the government can go after that substitute so that's one way and then the second way is that the forfeiture statute itself states that the court can order a fine of no more than twice the gross profits a fine obviously applies to future earnings and so that's one another way that the government can go get the future earnings of someone who has dissipated his assets on wine women and song