thing ever on and they look at future earnings every court of appeals does look at this so far has said you can look to the future now  business leaves aside the factual issue i understand as a factual question about whether even if you look to the future this man qualifies as indigent or non it but just looking at the pure legal question about whether capacity to pay can take just what he can do now but i hear you saying now some accounting and understanding of a person's future ability to pay is it is appropriate under three thousand and fourteen right here your rate that's amendment determination with respect indigency a right to counsel something that means necessarily that you're indigent for purposes of th fourteen i think maybe i'm a serum but i think i hear you agreeing again that the answers dealt with the fact that you could be just the way judge kane said here it's possible for somebody to be indigent for purposes of appointment counsel and or more important for the time you get to set the probation office is going to have waiver form signed for all your texts you're going to have a complete financial disclosure of all your debts liabilities income assets bank accounts all of the boundaries on that but so if we're talking about capacity to pay and mathematically i haven't sat down to run the numbers myself because i'm scared of calculators but like good  assume assume we're kind of in the ballpark there what is wrong with the district court looking and saying you can pay this and you can pay it without paying all your prison wages you can you can do it so in that respect you're not indigent given the future earnings capacity you have in prison to push back another there are a couple of problems st of all zero dollars twelve cents an hour evils and all of those things come out and so the notion that you could peterson a few hours a day at zero dollars twelve cents an hour over the course of twenty four dollars and a half years is pretty far fetched and what happens when they get moved last win to have to agree that the pandemic years that's not the norm we're not going to be thinking about twenty three hour day lockdown for these folks going forward they're going to he's going to have the capacity to work an opportunity well at least judge cain was persuaded by the government's presentation the probation officers presentation that disses he might be an older man but he's still able bodied and capable of working and he can work and and and pay is it is that well i should put this way zach clearly relics it's factually speculative and for that reason it would be clearer as we don't know what institution is going to go to we don't know when he's going to get there we do know that he's got a sixty year pain mess suggesting that if you can't pay a fine and you can't pay restitution you're not supposed to be saddled with this particular obligation on topic and argue that in on this record the district court in the future or anything like that but he's also detained for over two years before coming to court he wasn't earning many years before he worked her three thousand dollars as a as a grocery store it's thought that this isn't a person with any the payment the fine here potential time was was enormous like a quarter of a one million bucks you could say well i can't expect that out of him but i could expect five thousand bucks if he gives you know  soul i'm not i'm not to pooling the idea that five thousand is a significant sum but he has twenty years to pay it then and you just seem to indicate you know a finding of indigency purposes of the fine necessarily means you can't pay the five thousand i'm just pushing on that because it seems like those are two very different findings aren't they there are two different components one finding is obviously in the context of the discretionary determination but obviously the number ok the all the only thing i was going to ask you if you know when i'm going ask your abs series well maybe you can respond without me asking if i know i know that the statute itself section three thousand and fourteen has a sunset provision i am not aware of any pending extension but i would be surprised if it was not extended in some manner based on on the court's questioning i'll go straight to the issue of the facts surrounding this and i would  address my opponents claim that you know if you allow for prison earning use to be considered as future earnings as far as indigency that everybody is is rendered non indigenous i don't i don't think that's true because you can interplays were if a judge has a situation where there is someone where there is very clearly going to be outstanding debts that are going to be collected during that time period if there is something of a just flat out it's impossible to pay because if indigency means what it means in the dictionary which is you're strapped and don't have really assets to speak of at all how does a guy with ten dollars in his bank account over two hundred and thirty three thousand dollars debt a house in foreclosure last known earning less than four thousand dollars you know indigent well to the to the extent that i had seen definitions of indigency common definitions from very stiction areas it all they'll seem to touch upon the ability to afford the basic necessities of life well all of those are being provided to mr show over while he's in prison you know he may not have all of the you know you may not have the finest hygiene you know the best freshest toothpaste but they do get to think cleaning for hygiene you know he gets medical care he gets his food he gets his shelter he gets his clothing he gets his is his bed at night you know and so so the government's perspective is you shouldn't be able to keep anything i mean you can if you can earn a nickel then you're not indigent because that's a nickel to spare well no no i mean we think that what has been the practice at least in our court for years and years and years which is when you have some sort of assessment or fine payment schedule that is imposed by the court tends to be exactly what was done here which is fifty percent of what is in the inmates trust account after a telephone allowance so you know mr shaver will have his telephone allowance so he can call people  receive calls he will have fifty percent of his earnings that he can spend on these other things if he wants to get the toothpaste instead of the tooth powder it does stretch out the payment plan payment timeframe but you know it is what i eighty two dollars and in your you made a deal out of saying he's able bodied now i like to think i'll be able bodied you know how do you address the idea of speculation in this th orcus been pressing because your your view of this requires one to think st you'll be able to work without interruption second the to be able to receive a prison weights sufficient that you could pay this out over twenty years and and finally yes it assumes that maybe this is part of the st that you're actually going to live out how how much how much does the district court have to have in the way it's reasonable for c ability before saying capacity to pay all by itself makes for non itsy well i think the problem with this is any time you are talking about the future whether it's future earnings or something else it is inherently going to be speculative to a certain degree none of us know the future so all you can do is look at what the situation is now spin it forward and a somewhat reasonable way and i don't think that it is unreasonable for the court to do what it did here which is say you're healthy you have a sister who says that you've always been a worker bee your council has gotten up and said that it's important to your dignity of life to work all he knows is work to think that he is going to work for some period during the time that he is in prison now whether that ends up being the entire twenty four years or given the the what is laid out in the language  and fourteen and actually you can pay it out over twenty years after the conclusion of the imprisonment so we're talking about potentially forty years granted he's fifty nine years old but it's not impossible to live that long yeah but i guess maybe we're just circling around the same thing gets stopped but all of this is seems to skirt the issue which is the court has some obligation to say whether this man is indigent or non indigent if if the idea of indigency the sole determinant of indigency is a mathematical calculation that would be feasible over a twenty year period for a person who was working maybe it's like eight hours a day and receiving a certain wage to do this does that does that defeat the ordinary meaning which everybody seems to agree the ordinary meaning of indigency would somebody would an ordinary person looking at this think yeah he's not indigent or would an ordinary person apply an ordinary language say somebody make a zero dollars twenty cents a day in prison who went into prison deeply debt is is not a non answer indigent this is an indigent person well i don't think there's anything in the record that indicates that any of that that any of the debtors that he has are going to be trying to collect from him while he's in prison certainly the houses and foreclosure maybe they you know absolved that debt if they sell the house but it's real but it's real that it's not made up that someone you can't push back on that piece of the record the man had twenty three thousand dollars twenty three to excuse me two hundred and thirty three thousand dollars in debt and ten dollars in his bank account and your position is and the government and the court accepted it is if he makes zero dollars twenty cents an hour for the next twenty years he's no indigent i'm just asking you the question zat square with ordinary parlance i think in the present setting it does because when you start talking about indigency you're talking about the ability to provide for the basic needs of life and all of his basic needs are going to be provided during the time that he is in prison which is you know why a twenty dollars to twelve dollars to zero dollars forty cents could be considered a livable wage for someone who doesn't have any costs other than perhaps a special assessment that they have to pay fifty percent of what's not be able to work for whatever reason most likely would be the medical but if it gets to the point that mr chauffeur gets too old to be able to do any of the jobs that are on offer there not because of any particular medical condition but just because of age and yes that's certainly possible at that point you know maybe someone in those type of situations would be agent indigent because they are not able to work they are not able to earn anything and then on on page thirty three which is the opinion of the appendix page thirty three the court noted that the defendant has been found it is indigent for purposes of these proceedings which is a court mean there then well i i i can't i was not at the sentencing and i can't jump into judge kane's head to know exactly what she meant but i think from the context what she ended up doing or if you are going under stand are concerned there may be an inconsistency here well you know he held at least acknowledge that there was indigent there was he was indigent for purposes of these proceedings in yet later applied a rule that seemed to be opposite of that well that's that's what i was trying to get to the by looking at the entire context of what she did and she was certainly aware of the standard that is set forth in three thousand and fourteen dollars it was briefed it was argued she discussed the ability to pay in the future so she understood that so i think that the context indicates the reference to being found indigent for these proceedings was a reference to the provision of counsel from the very outset saying that because he only had ten dollars in his bank account he couldn't afford counsel but he can't just be that because she said he couldn't pay a fine right she said he's indigent for purposes of these proceedings and he can't pay a fine if that if the if the congress met what you meant mr scruby white in mid just say what it does in the context of colonel size which is contingent on a person's ability to pay why did the congress choose indigency as the determining factor i had you know spent some time looking through the legislative history couldn't find why the exact word indigent was used  so it would be speculation on my part to to as to why they use that instead there is obviously as as was briefed and we haven't really talked about it much today the the fact that in referencing finds later on and later subsections of the statute there is an indication that they did intend for this to be treated like a fine not as a fine clearly there are differences the non discretionary nature but like a fine you know but we presume they know how to use language right and if they'd meant for it to be like fine say they would have they would have outlined it along the same lines which is ability to pay don't you don't give a person a fine if they don't have the ability to pay but if they do have the ability to pay you set an appropriate fine here they didn't say that they said five thousand dollars for non indigent people if they wanted it to be like a fine big could have structured it that way but they didn't write well there are a number of different ways they certainly could have used that language yes but you know the government's position is that they did structure it in important ways like a fine by specifically referencing fines and cross referencing the obligation language from three thousand six hundred and thirteen regarding fine so fines were clearly very much in their mind and they chose to use indigency as the term for whatever reason that they did as as i've answered a number of questions already today i don't think that that ends up making a difference in this case there may be other cases where it does  in this context i think it could work that way because he is able to pay and therefore he is non indigent i would have to give that more thought before he said one hundred percent sure let is the way you're defining it here that in fact the entirety of your argument is that you can do it and therefore he's not well that isn't his case i mean i mean if we're talking about a larger sweep of an opinion that saying that i would have to think about other potential hypotheticals which we have to do right that's that's where we're not free to not think about  mean i certainly do think that that is part of the job description for us but i also think that the you know we're here to apply the law to the facts that are in front of us or you're here to apply the facts that are in front of you i'm here to argue the position the united states i'll give anything more counsel no other than to say that my calculations and i also went to law school to avoid doing math my calculations do exist free card and well as a practical matter does that matter mistral rick because if you can't pay it as you've already pointed out it's it's not it's not ever going to be a matter that anybody has to deal with except him if he's unable to pays unable to pay he'll be ill will continue to have fifty percent of his earnings if he's able to earn and if he stops being able to earn then he stops paying and the only person or people who are hurt by that are the victims of the crimes of the sort that your client committed not your client because he just doesn't pay and that's the end  after your telephone so it's not that seems to indicate that that's the pattern that she was setting and that's what she had in mind when she said you can do this it's not beyond your capacity to pasadena to do this