your honor good morning we raised six issues in our brief obviously twenty minutes was on allow me to address all six so i'm going to focus my comments this morning on three of the issues that were raised the first is r that problem for you i don't believe so and the reason being that the supreme court has held that the the issue is so important and of an inner rest of prosecutor is so important that it is something that may be raised is jurisdictional may be raised at any time the evidence that there was any involvement by the interested prosecutor the there's no direct evidence of any involvement by the specific prosecutor that was involved in the conflict but there are two points i would  bring to your attention in response to your question the first is that the department of justice or the office itself it's unclear from the record determine that the conflict was such that the entire office should be reached in terms of the specific lead prosecutor there is a an e mail that we mention in the brief where he specifically references marial sullivan who was the blood relative to  im crow as far as jim crow specifically being involved is there any evidence of that not that i'm i can recall you know it seems to me fitzhugh is pretty drolling i don't i don't believe that fits you is controlling your honor and the reason being is that gets you and deals with a procedural aspect and what we're dealing with is that of an inner rested prosecutor and the supreme court but no we're not dealing with an interest the prosecutor i were dealing with with one person from the office who was not in the interest of the prosecutor who was given a special assignment to another district but he s attorney from the western district missouri has no jurisdiction in the eastern district court where do you get that what give me a supreme court case that says that the statute judge event that appoints the united states attorneys specifically s have i've sat in courts all over the country by designation in emergency situations why and why should the department of justice be any less have any less flexibility it it doesn't procedure is that a special attorney is appointed by the attorney general and the supreme court case that says that judicially reviewable because if it's you'll base that you're talking procedure now no you know english fits you by saying it was a procedural case and now you're saying that the department of justice didn't follow their procedures i'm start this is a procedural case i'm sorry if i were not if i were not clear it is not a procedural case around it what i was about to say was the department of justice  point appoint a special prosecutor but that person has to report directly to the attorney general on the regulations of the department of justice or to his designee or delegate as they call them u s attorneys manning there is nothing in the record and your evidence that that wasn't done who would have the burden to prove it with that there was a failure under stay on the united states versus my pelley from the night this trick when the authority of a prosecutor is challenge the government has the  thought this was plainer review there was no challenge i mean you can't get around these these problems i think we can your honor because the the supreme court in young young  versus united states makes it absolutely clear that this is the type of conflict i didn't i didn't make the conflict the department of justice or the u s attorney's office did they said the entire office was to be without notice any hearing unless there is a finding by the magistrate that there is probable cause to believe that they will be the the assets will be forfeit of all if the defendant is convicted  how does one tell whether a a worn application is under age fifty three or under the law enforcement normal processes because there is a a fifty three calls for it and there is there is a particular warrant form that was used for the house in this case and it's a it was an exhibit by the government that specifically says fourth the requirements of they have to be made but not for the office not for the office they  finding right that's correct what that's what they were searching for what makes that clear that fine white why would it be clear or judge because there was no finding whatsoever the statute requires a there was no finding it doesn't require that finding and if the government is not proceeding under a fifty three well they're seizing ask the argument is that they should right well musharraf of the office yes they did know ok and the finding was they were they were they were we are applying for a warrant for to search for evidence contraband and so forth the and that that finding i has to not i don't believe so no you aren't what we've raised what we've got a case and that issue because this is a new one for me a work where the government proceeds under one kind of war and the defendant after the facts is used the wrong form no i didn't they used they searched the office for evidence no question about that but they also when the and with the intention to seize assets that were subject to for future and that is clear from the absolutely clear as a matter of fact though in your best case on on this mixed motive theory the best case yeah for you of that that that if they've got a mixed motive the whole the whole exercise is tainted what i asked be done is clear in the statute it's just as is as clear as can be the the issue may be what were they searching were they planning to seize assets and like i said the record is  no because well it could be it could be it would be chargeable no because it's the money that he has used the investigative stage and that they don't have to have all of their all of their charges lined  up no they don't but they might have taken more than forty eight hours after first hearing of the case to obtain some information some investigative techniques and i suggest to the court that that alone is evidence that the u s attorney's office before it was search and after mr holt's houser was had already been designated the lead prosecutor so when the office was refused and all of that the office holder was already part of the prosecution and so he should have been recused at that time because the entire office was and it was department of justice that made to be determination that he had a conflict and from that point on young rule money judgment of forfeiture of fifty one million dollars which she determined was the amount of the loss now she made that determination on judge found facts in connection with the sentencing process and that was the amount of the forfeiture under southern union versus united states that is a violation of a printing of the supreme court specifically hell that when the maximum amount of punishment is to be determined by some fact that fact must be determined by the jury and this would include it in southern union of course it was the duration of the statutory violation  daily fine but the court went on to say under other statutes it's the amount of the defendant's gain or the victim's loss or some other factor in all such cases requiring juries to find beyond a reasonable doubt facts to you  determine the fine the excuse me that determine beyond a reasonable doubt the fines maximum amount is necessary to implement a printing now how hypothetically should this be the only issue on w recent new trial absolutely this was all that none of none of this came up until sentencing mean that the jury was excluded from the you cannot have a forfeiture of good which by the way before there was an order forfeiture were prey was paraded before the jury and observed by the jury prior to their deliberations but putting that aside for the moment what if the jury determined that the amount the maximum amount that should be forfeited is twenty five thousand dollars the jury had been it has an effect than anything else sure does because what it does affect is the amount of money that was alleged to the jury to have been spent by said julie with my understanding and it's limited because i didn't was in the criminal practitioner but it seems to me that the records i've seen forfeit if southern union an apprentice say that money judgment forfeiture issues as well as specific property issues are for a jury why would that be any less why would why would  not be any less appropriate for example in southern union the verdict of the jury could have breasted on one day of a violation and what was up to the jury to determine in the jury would have to determine well how many days was a violation and i'm i'm i'm looking at this case now convicted of a ponzi fraud the amount of the loss is not going to be put in jeopardy by the forfeiture ruling any more than it would be by a restitution ruling well i don't see how how a new a complete new trial on on guilt is appropriate well under forfeiture the maximum to to be determined jury has to be what the gross proceeds are right and what if they said it was fifty thousand and the united property government was seeking the forfeit and was forfeited by the judge was one hundred thousand you have to have a new trial for the jury to determine disposition if the government chose to pursue it be a a bifurcated trial jury trial on the amount of the forfeiture money judgment we have to basically retry the entire case anyway well that's for the part that's for the lawyers to decide and the judge to control right i know i i don't understand why this issue could conceivably warrant a new trial has to go on the guilt  were required to do at the government's urging judge reed deferred the consideration of that of that matter until after this appeal i have filed a motion to remain for the for the purpose of having a hearing indicated that she lied on the stand that she had a very close relationship with crowe and that mariel solomon told her brother that she had discussed investing in mr crowe and that he said that sadly to reputable and v o p was legit that is material that was hidden from us disclosure not disclosed mr michaels and yes it may please court counsel my name is just michelson and i was designated and authorized by the united states attorney general in this case and the department of justice to handle this prosecution as were my co counsel mr richard fenner and and former co counsel who steven holtz houser who is now retired after over thirty years of government service as was the united states attorney for the western district of missouri to handle this prosecution the defendant has forfeited any claims by failing to properly preserve any issue about disqualification or conflicts of any attorneys in this case but i can assure you that all the attorneys that were properly authorized and designated by the attorney general in this case to handle this matter had no conflicts and the thing that it continues to want to raise some issues about the recusal matter in this case it is not properly before this court western district missouri designated myself as lead counsel in this case i work closely with mr holt sow's ear and mr finn are and i we split probably actual trial private fifty fifty but the government in this case went to extensive measures to wall off any any potential individuals who weren't properly authorized from accessing any information in this case who were the attorneys at the time of acquiring a search warrant at the time of the choir in the but the reason we're here today is because the appellant is challenge the jury's findings of guilt and guilty verdicts in this case find the defendant guilty of defrauding nearly one hundred fifty investors out of over fifty million dollars during a fraudulent investment scheme that he operated for nearly ten years referred to as a british lending program or the b l p the jury in this case heard overwhelming evidence of the defendant's guilt during the course of a four week long trial that overwhelming evidence money and in order in the methods that he went to in which he abused their trust that they had placed in him as an attorney as a bishop and as a very close friend that he actually was to many of the victims in this case they heard also from recruiters in this case who also heard the similar misrepresentations made by mr sadr regarding what he claimed to be the british lending program those misrepresentations primarily being about three central wanted to make there was that the evidence in this case is so substantial that the any potential heirs that the defendant hasn't waived to which most of them that we pointed out in our briefs that the defendant actually has waived those by failing to properly make the timely objection  way before for jury so that's what we're talking about all right your honor well then on the last point then i guess and i preach hate the opportunity that you gave us to allow us to split our get as mr finn or in the handles of forfeit argument but i would like to make one last response to what mr roller stated about his point of his new motion for new trial which is raised in the district of court while this appeal is pending that basis for his new motion for a new trial is not raised anywhere in this current appeal before this court this court actually ruled that that matter should be not combined with this brief at this time it should be allowed to be decided by the district court and therefore that matters not properly before the court to which he's raised here today if there are no further questions then on that would that matter is his motion for new his new motion for new trial is new motion for new trial is basically triple hearsay of a potential cumulative impeachment issue on one victim one and so we've asked that that matter be stayed and be resolved and allow this appeal to proceed timely if there are no dish of questions on any of the either the first issue the jurisdiction of the prosecution in this case or the alleged trial errors in this case then i will see the remainder of my time to  the forfeiture issues before the court honor thank you and i i'm going to be addressing primarily the second issue the mr rollers raised in his argument related criminal forfeiture and you hit the nail on the head your honor judge logan on the first point about what warrant we got here we did not get a warrant pursuant to twenty one conventional rule forty one search and seizure warrant as the district court noted mr roller appeared to be confused about this below and i actually thought there were two warrants but there was only one warrant and that warrant as your honor indicated not only authorized the seizure of evidence but also contraband and fruits of the crime and the affidavit that supported that street seizure warrant indicated that mr scituate own had used investor funds to purchase numerous valuable items and in fact the attachment to the seat the search and seizure warrant listed what some of those examples of those valuable items in the office were that the attachment a that yes your honor the attachment a to the search and seizure warrant and there's two attachment days there's an attachment date of the july one warrants which lists a specific list of items that that would not merit the remedy that mr sadr lido believes would be required and most it would require the suppression of the evidence relating to that and that material it would not mean the forfeiture has to go away or that that property cannot be independently established to be subject to forfeiture later  on i'll turn then to the southern union issue that this court expressed an interest upon and here the court is actually not at liberty to make the decision that mr roller would ask a tuesday and that's because a prior case of the supreme court of the brady against relies upon that mill and sentencing factor element dichotomy that the court five years later rejection or prend he gets all the way to side in union and as you said i and a both of which say that for those purposes a jury is required but neither of those cases deals with forfeiture and the supreme court has also said that unless a specific holding of the court has been directly over ruled lower courts are not liberty to reexamine whether the foundations of a decision have been eroded by subsequent developments instead this court should affirm on the basis of that original decision and then allow the supreme court of it take certain this or some other case to revisit the issue but if the court does feel a need to inquire further i'm not i you know that until elaine the court the court in southern union of course they are and they focused on harris rather than mcmillan right and so they have never come out and said that the sentencing factor dichotomy identified in milan is totally in in southern incase justice briar raised the issue of former church in the oral argument that case and he got answers to those questions but the opinions are devoid of any mention of that issue and in fact booker which is a later decision of the court after a pretty in that case and granted this is now everything that the judge considers is out rather they've gone step by step and so new was the step of looking at fines this is another aspect of this that's quite troubling on the two circuits that you cite that have been happy to stay with the bready have said well in any event there's this there's no statutory max here and saw we didn't we don't have to worry about a pretty flatly contrary to the southern union and the southern union analysis that some statutes have number of days right some statutes put the max as based on the value of property in either case yes and the applies yes your honor and our sister circuits have been flat wrong it seems out on whether specific property should be forfeited right also should get a jury trial for these horrendous money judgments that are just pulled out of thin air as this one was well your honor i differ whether was pulled out of thin air we presented evidence to the district extent forfeiture is a kind of the flip side of restitution which usually with the government talks about this this is just a bad number pulled out a little out of the air and i don't know why we should we should hold well you know i don't there's no challenge specifically to the calculation of the court made below but that calculation was justified because we're looking at forfeiture and we're talking about proceeds that is the in the interest of the government invests the moment the defendant acquires it if he frustrating and irritating frankly well you're right i agree in this case is very unlikely that we will ever recover the full fifty thousand million dollars why do you do why you do this stuff well because you're on our statutory author specially on the price to do so and and that's possible your honor by the statute does not require a simply go towards an individual's gain rather it's what the proceeds of the offense as a whole were and that's what the number we provide to the district court was that's why we need juries well you're there the other point i'll make on that jury issue and i've actually cited the courts an article that i coauthored with a colleague of mine relating to this very question and the full citations on the brief because it was not published then but now it has been and that's it thirty five cardozo lower view page one and the argument that we make in that in that article is that your i understand your concerns of the statutory maximum argument but the argument you make in that article actually deals with what the history of forfeiture was a common law and whether there was any historical tradition of juries participating in the imposition of criminal forfeitures and that's the sort of analysis the corps engaged in in those recent cases of southern union and ice and we found looking at a great mountain of historical evidence that i cannot cite to the court other than to refer to us of this article it's fairly clear that the jury had no role at common law most of the mountain maritime amarilly no your honor per permit little we looked at was historical information statutory information from the american colonies commentators from england including blackstone and others who all talked about what the common law of forfeiture entailed and what the conclusion from that was was that in fact the jury had no role in in addressing one of the defendants property would be fo supreme court has engaged in and the one that is likely to engage and wanted to do to case this issue in this case or another case and i encourage the court to look at that opinion if it that article rather if it does have issues or concerns about whether or not the brady still is controlling  southern union but the principle should be the same if he wanted to raise an issue relating to whether the jury needed to find the forfeiture because he waived a right he had by statute he therefore implicitly waive the  the district court here did not choose to resolve the issue on that basis partly for the reason they were suggesting that she didn't think that it extended to the money judgment issue because that obviously would not include there's there was no statutory right to that so she instead resolve it on the the ground of lib and the statutory maximum we did present to her a historical argument which at that point was not as fully developed as it is in the article that i then prepared later on but she did not address that argument below so if the court feels the need to reach that issue i'd encourage you to review that evidence to mak the court to our reply brief in connection with this issue about the search warrant i believe that this was an after the fact argument made by the government to try and save what was otherwise advanced search we didn't wave anything in terms of that search and the pay and the documents taken from are the assets taken from that search as far as the body is concerned that's i'd like to talk about that because judge local and i actually agree on that but i'm  and as far as splitting the mr or michelson being lead counsel and that things are split fifty fifty he was obviously in a different courtroom than i was and this can be resolved i suppose by looking at who put on the key witness how many witnesses were on and who the judge referenced all questions to in connection with the case that just isn't true thank you and if you counsel argued well on a lot of issues in a short