we'll proceed with the gay calendar for today the first case is united states versus feltman morning your honour's may please the court i'm here before you today simply to ask that this court address in correct a serious error this doesn't require this court to establish new president or extend existing president in a manner that hadn't been before all we're asking is for this court to apply established second circuit precedent to protect dr feldman and his family and to accommodate the expectations of the parties had in the lower court it's as simple as that we asked this same request of you just go to the had you disclosed the full extent of feldman's assets to the united states attorney at the time of the negotiations that led to the the plea bargain and the agreement and the and the position taken by the united states attorney with respect to the recommendation to the forfeiture authority  government was well aware of the of the million three yes yes yes your honor the attorney in the lower court did provide that information it was in the p s r no no and and earlier that's long afterwards i'm talking about at the time yes that the time that there was an agreement to forfeit the the forfeiture and the and the government's position taking the position that it would recommend restoration of the forfeiture to the victim correct the assets were disclosed during the government's investigation i will note that the assistant u s attorney on the case and some of the investigator sent in affidavits and i believe they're part of the record in the case indicating that they don't recall these assets but we know that they were established they were provided and what we had asked for in the in the lower court was a hearing on this and the ability to do discovery because the the attorney and the client have said that indeed all of those assets were established provided and research by the agents that were investigating the case this case also involved me that's a disputed fact that you have or as you're aware the government does not agree with that i believe that the government has accepted that as a fact but they may i don't know what they would say in a hearing because we had we never had a hearing they had initially rejected or denied it but then we showed them the information about the interviews in subpoenas to the financial advisor that was handling the pension plan so the investigators clearly were aware of it to justice and then and then when it was ultimately rejected because of these other assets that the government was acting in bad faith mr mr president was acting in bad faith no your honor we don't i don't know how you win oh i don't believe mr resnick i believe and again we want to have his testimony but i believe he fully expected i don't deny that he expected that these  forfeit if i'm to would be restored to the victim are you complaining about the fact that when the request was made by the second attorney whoever it was i forget her name with which was made and then she followed up with a disclosure of these other assets which scotched the the approval by by d o j that that that was done in bad faith when she disclosed that information we wonder why she did that because clearly she isn't she under no obligation to do that i mean don't they have to operate on full information but they had the information about those accounts was in the pre sentence report and she did if she had put it in the original record letter of recommendation there of the result would have been the same so i i don't believe so sad you know we recommend that they be restored but the but you must be aware of the defendant's got a million three in his in his pension account the answer would have been the same but just earlier so that really doesn't seem to me to play any any any significant role and no no it if i make if that were the case before with mr resnic then that the promise was empty what you'd be saying is the promise was empty that there was no expectations to me that everybody knew what everybody relied on that the strongest statement of your position is that the government was under obligation to know the government's own rules if the government's own rules are as as the as the forfeiture unit later explained that if you have additional assets they're not going the forfeiture is not going to be restored because forfeiture is for the victim's benefit not for the defendants but if those are the rules then it seems to me the government was perhaps unintentionally misleading in offering you a hope that the for not be restored if there are other assets should not be restored if there's other assets here they they knew there were they they knew the circumstances of the case and if that were the fact that they couldn't do that then you know the judgment in this case is incorrect because the judgment the judgment says that countries when somebody a judge tries to ask you a question and stop talking and listen you know that the point of view is to convince us is that right yet you're not going to convince us by talking over us by policy did the usa explain to you that the manual says they should not be restored in those circumstances i was not counsel of record at the record and we were denied a hearing and we were denied discovery on that so we could not explore those issues my predecessor wrote a statement here and the writ of execution that addressed that and to pay restoration and if that weren't allowed then the prosecutor the defense counsel and the court all were under an erroneous understanding of what was going to happen we ask you a couple of questions first is what's the remedy if we find that the plea agreement was breached by basically withdrawing the recommendation in the later letter from carducci down to main justice right where she identifies the assets to him and i think it's pretty clear in that letter she's sending a message not to not to restore right what's the remedy to what do we do do we order that the funds that were forfeited be applied to restitution do we invalidate the you right you want to go through this or the restitution of the for if it funds are already been forfeited and paid and that's really the the primary the our first request would be to get the parties back to that area where the at that was the it seems like mean justice has to approve restoration can we say the main justice doesn't matter about this recommendation anymore we believe the breach there was a breach of the plea agreement we're ordering you to use the forfeited funs as to restitution an we do that i believe you can your honor if i know they have discretion but they use that discretion to make their promise and what the court already and say is there any kind of statute or regulation that says that we can overrule the decision of this branch of main justice and whether to apply it to restore funds i believe the court could use it supervisory power to say all we're asking for is enforce your promise keep your promise that you made  don't sort of urge the order and what would the order be what would the directive be from this court the directive under that air at that having would you like  do maybe if maybe for the first time i think about oh we've we thought about it a very very hard around which ain't and what you would like us to do if you had if you were going to write the order that we were going to issue what would you say i would say that you would remember case back to the district court to the court to use it supervisory powers to enforce an order that says that the parties are going to be put into a position that reflected their expectations and if that determination will judge walker that i mean the agreement in the plea agreement was to recommend it was never more than a recommendation even at the sentencing since the u s attorney said all right i promise i'm going to welcome them and that they were store these funds so what would you tell them to recommend it again what's going to happen i mean what's going to happen to your client i think they should be compelled to make a meaningful recommendation and if that recommendation is meaningful it would go back and change what was submitted to after most and it but then and then and then they first of all you suggested that that they prosecutor conceal from main justice that one point three million but now that cat is out of the back so now they're going to go back and make a recommendation to the main justice to forfeit out of the original money that was the under a million that was set aside there that should be the restitution and then ask judge justice to forget about the money that's the one point three million disregarded what if i think if if they are give the one million that's sitting there now and forfeiture to the university that ends it every dr feldman paid the rest so it's not a would be made whole my point my point is with regard to the one point three million  would you would you have the district judge recommend that that money not be used not be considered or would you have that i mean what can they do if this is following up on judge droney point i'm not sure i understand what one what one point three million but it was isn't that the amount that was in the pension the separate money but they can only write they can what you're saying with regard to the amount i can that that that genie is out of the bottle now it can't be it has to be it's de been disclosed and so just to stows about that oh i see ok justice can in our view justice can allow for restoration in circumstances where the where the defendant has additional funds the language in the manual should discretion they have guidelines and policies but they have discretion but where does that leave you they will exercise their discretion and you and i can sit here and wonder about what how they might exercise that discretion but i just don't know whether this is all a waste of time that seems to me a perhaps a better answer or something of an answer to the questions that my colleagues have been putting you is at the the the heart of your complaint it seems to be seems to me is something a little different from the way you've been presenting  the heart of your complaint is that if the justice department guidelines will not it's not that they won't ever in any circumstances permit it but they say should not money should not be restored when the defendant has extra money to be used to pay the restitution and to make the victim oh it seems to me the best statement of your complaint is that you were misled not not intentionally you were unintentionally misled by a u s attorney who apparently was unfamiliar with those guidelines who who either should have known before suggesting a likelihood that the for ture would be restored or in any event they should have should not have in the circumstances led you to believe that there was a good likelihood of restoration when the rules that were in effect say this should not happen and so one approach that you might hope for is that the the plea bargain in which you consented to a million dollars to the to the to the full forfeit could be withdrawn and revised and the district court could reconsider the issue of the forfeiture because as my colleagues were pointing out the avenues that you're arguing are not likely to lead anywhere because the justice department's i know these are the rules we didn't agree we never agreed to to restore the money and i appreciate that you're under that and that is an avenue that we would like to wear it to have addressed vacating the the forfeit order in the case because this was a pretty indictment of pleated need you of course would need to use the one point three pension fund for the rest for the rest know you don't you don't you don't get to keep the pension fund and get away with the force and not have the forfeiture of a priest what i'm saying presupposes that you're going to make the victim whole by resort resource to the assets that you have the forfeited funds that would be vacated are not the pension fund their separate accounts that they would make the victim hope you make the victim whole with the money that you have that's for the moment that's the that's the pension funds you make the victim whole in some fashion the well the victim is made whole the forfeitures of the forfeiture of the three accounts that were forfeited had already been seized by the government and he looked at it and then he wrote a check for the  amount over and above the check that you wrote the victim hasn't gotten that it's with the government right it's sitting with the government you're worth a job i meant or it's in your client's pension fund correct and if the end if the forfeit e count is vacated then that money that seized money we certainly agree that that money should go to the victim and we've always anticipated that it will it isn't vacat this that's the dilemma we're in now and you shouldn't have to make the victim whole the victim should be made whole or in any event and what and who's going to make the victim whole if the forfeited funds are not vacated that money would have to the government would do a writ of execution as it did and try and get that money from the feldman's that's what that's what the consequences you were after they you wanted so your client actually paid first of all your  let's let's be very clear this was a joint several liability and he paid all of the liability correct for life for all the defendants yes right and so he wrote a check for some four hundred some odd thousand dollars correct  so what you would like presumably is to have the restitution come out of the forfeiture yes as it was as as as as as was discussed and then the pension fund is released back to your client that's what you would like good morning your honour's may please the court my name is tiffany only and i represent the united states judge labout i think you have the crux of why why we're here the only reason why we're here is because dr feldman does not want to pay out of his own pot this money and i'll start with the with question i opened your adversary which is did you did the doctor disclose to you his additional funds before before the deal was  james taylor who is with iris at the time and special agent taylor basically says listen i reviewed the attachment specifically the other asset types meaning the retirement plans he says these assets do not look familiar familiar to me i do not recall them during my time spent on the investigation or during feldman's play in negotiations and sentencing so this e mail went with how what is the relationship of the e mail to the joanie i would kind of disagree with the characterization of the second letter but a usa carducci sent because in it she sent she said listen i have an obligation i have to disclose to you these fines will this is after the sentencing we're resnick says i promise we're going to make the recommendation she makes the recommendation and their august seventh two thousand and sixteen she says here are additional assets that we didn't know about and we believe the below a denim is vital to the determination of our recommendation right well could be vital if it's not to reject a recommendation but it's not it's not over sending and it's not taking away she's not saying listen i don't do not believe that these victims are not entitled to a single penny and that's where we're being led here because the whole process question we reach of the says this is after that the recommendation was made restitution as the additional assets may provide recourse reasonably available to other assets from which the victim may have ten compensation for its loss in this matter the blower dannon is vital to the determination of our request how could it be viable other than to deny it no i disagree i think it's just vital to the obligation that the government has in order to let d o j know with respect to what assets are available from the standpoint they're not looking at whether or not that's from the d o j standpoint once that money has been forfeited which it has by dr feldman he agreed to the amount forfeiture and he also agreed to the amount of restitution execution requests with the district court before she got the answer from a justice that was from our financial litigation person so that was someone else that was like our financial and i agree that the timing was not ideal for the purposes of the case but the reality is it's not as if dr feldman there was never a guarantee with us and the that we'd make the recommendation there was always clear that main justice makes the decision but at the at the sentencing resnick says we're one hundred percent going to make that recommendation and that's after plea these additional assets are disclosed to the page one twenty five appendix one twenty five yes but then he says but it has been provided to counsel many times that there is no guarantee you know our hands are tied and we have to do what d o j provides but we are going to ask that one hundred percent of it be applied toward the restitution amount the interest for restoration and remission really is for the victim it is in the victim's interests it's not something that we can bargain in order to do so that doctor to come to me does matter thrown his point when she said in her letter we have become aware of additional assets only by the defendant what she really meant was my office has been aware of them all along but i have just become aware of additional assets correct the letter is not written in the letter is is very deceptive in that regard i would but i want to focus on something else which is  mean i think that that the but the point that the the mistakes that she made in her letter and the obvious capacity of the letter to withdraw the recommendation apart from that it seems to me that the heart of the case lies in something else which i've been stressing with your adversary which is that if it is the policy of the government not to restore forfeitures when the defendant has other assets that can be used to compensate to to to to restore the victim to its prior condition it seems to me it was quite misleading of the government if the government was aware of the other assets to lead the defendant to believe there was a reasonable hope that the recommendation would be restored without at least saying to the defendant the policy of the asset  forfeiture unit is that it shouldn't be done that seems to me to be misleading and if there is a dispute about whether the government was aware of those funds before the defendant consented why should the district court inquire into that and find out whether the government was aware before the defendants as we disclosed all of this you answer that with an affidavit bit of an agent who says i don't remember i don't remember any such thing but the district court denied discovery and didn't inquire into it seems to me that fact is quite crucial because if the defendant didn't tell the government about the other assets he has in self to blame for having been courageous about the representation but if the government didn't do it didn't know about the other assets then i don't understand why the government wasn't under an obligation in saying we'll recommend it but you should know that the policy of asset forfeiture is that it shouldn't be done i think your honor with respect to when the government engages in that's forfeiture and it's plea negotiations and does explained in terms of the process of what for for turn tails and that these decisions are manes i do i do not know obviously i am here you know that is not traditional where resonator apparently and i may be totally wrong a discovery could reveal some some different facts but resnick apparently didn't know of the policy no i don't see it at all i see it as you know always if you read the recommendation it's not as if he knew he knew about the one point three million extra assets or whatever extracts there were beyond what was forfeited right we're on the hope that the government gave that their recommendation would be accepted but again when you read the recommendation letter in the letter it talks about interest to the victim and making the victim whole everyone understands at that juncture the money is gone the money is gone as to the defendant the money is gone as to anyone who may say i am an innocent owner of this asset i have you know i'm the one who's who's been harmed all these people can come in through the woodwork to petition for remission or restoration ok that happens you know we're garbus whether there's a recitation order in certain cases that's why the defendant has a lot of money in the bank in a pension fund in whatever form that can be used to make the victim whole he induces the government induces the defendant or obtains the defendant's agreement to a million dollar forfeiture by saying we will recommend to the asset forfeiture unit that the million dollar forfeiture used to restore the victim  he doesn't tell the victim that the asset forfeiture division's guidelines say that shouldn't be done when the defendant has money independent money that can be used to restore the victim is that  appropriate in relationship to the victim if you know in relation to the defendant to say to the defendant we will make a recommendation we can't promise it'll be accepted but we think it's a good likelihood it will but doesn't say the rules by which they work say it shouldn't happen is that appropriate to obtain a consent to a million dollar forfeiture when the rules are it shouldn't be done and you and you don't tell no no the rules don't say anything about forfeiture again although we're relating to is the remission restoration process which is in the benefit of the victim so it is not it's not asking that what it is including the policy that should there be a fine is reasonable reasonably available to the victim through other means that the government will not restore it now was never conveyed to the defen make restitution about one point four million defendant a greets to that you get a new b s agreed to it right exactly on the basis of what information is the question but but the reality is is that everything is in the four corners of the plea agreement there's nothing in there and not in the four corners of the plea agreement this is justice this is not this is not a commercial contract and i agree with that but the whole point is that the extent of that week that the u s attorney's office can do in the context of remission and restoration is to say ask the department of justice this is the information that we have wi missing the point of everything that's being said to you the issue that we are focusing on is whether it was misleading at the not not after the forfeiture had been made forget about that we're talking about at the time that there is negotiation over whether the defendant will consent to a forfeiture and tell me if you see a difference between these two scenarios and scenario one the government says to the defendant as was done i think in this case we will make a recommendation that the forfeiture work suggesting you agree to have a million dollars will be restored to the victims so that you will no longer need to pay another million dollars in restitution that scenario one scenario two is the government says to the victim we will recommend that the forfeiture of forfeited funds a million dollars be restored but forget about it because the rules say this shouldn't happen and it's very unlikely that the that the asset forfeiture people will agree to do it although they lawfully may do so it's quite unlikely because their guidelines say this shouldn't happen is there a difference between those two scenarios in the likelihood of the defendant agreeing to forfeit a million dollars you see any difference i see the difference in terms of the negotiation tactics but there could still be interest for the defendant to forfeit you know knowing all of that information by three different so i do saying to me what's the difference between those two scenarios with respect to the likelihood that the victim will agree to the fo a different i think the likelihood is because of the fact that they understand the calculus if they disclose what all their assets are or you know at the time that they may b they may be required to pay despite the fact that you know the government has a certain amount of assets that they went through that restoration is unlikely and that you know independently they would have to cut a larger check terribly we have we have a dispute  dispute about exactly what was said and what was known and it might make a big difference whether the government did or didn't know whether the defendant had or had not disclosed to the government the existence of these additional assets of the pension fund at the time that the defendant agreed to the million dollar forfeiture in my correct it is a factual dispute about that it appears that it appears just based on that your honor's question that you know this corporate person is there to be a factual dispute i don't mean this court perceives i'm asking you is there a factual dispute there appears to be a standard says we told the government about the extra million do you agree with that i agree that there is a dispute with respect to that well then shouldn't we find out what the facts are because they could should be could be pretty important your honor at the end of the day basically i don't think the issue on the fact finding wasn't necessarily based on that as much as it was based on the breach of the plea agreement and based on the recommendation that was in essence made we find out what the facts are should we remain to the district court to find out whether the defendant had told the government about his extra assets before he agreed to the million dollar forfeiture in terms of at the time of the plea negotiation whether the government had known what had been advised by the defendant i guess if that's being a question that's being asked i don't have evidence of it and i guess every man would be required under the circumstances thank you ms lee two minutes left for mr thank your honor just to address two point first of all with respect to the carducci miscarriages letter one point to make on that in the context the discussion is that the government makes much of the point that in the letter that says it's vital that you have you know of these assets but then says in a cut and paste we think happened at the end says the same thing she said in the original recommendation was therefore we recommend restoration well if it's the policy of the government event in no advance can they recommend restoration of the person has money then miss carducci who is a forfeiture lawyer for the government who knows presumably the policy should have said therefore in no case can there be restoration here but she's still sad restore now she said that but then promptly thereafter within a month she did or they did their rid of execution to take d got you've got three different lawyers all of whom neither of whom knows the full picture right right and then that's that's part of the source of this problem and one very quick point on the with respect to the plea agreement i think your honor mentioned that the plea would have gone or may have gone differently had they known that they couldn't do this in forfeiture that is a key point here because this was written out of whole cloth before any indictment and because of that they could easily have said that if if the government knew about the files before at the time that the government was representing that it would recommend restoration it seems to me what you should be asking for and what perhaps is the avenue of potential avenue to fix things is that to withdraw the consent to the million dollar forfeiture and have the issue of the amount of the forfeiture remain on undecided so that the forfeit so that the forfeiture pursuant to the consent would be revoked and you could either reach an agreement as to what should be forfeited or the court would decide the way the way would have happened if there had been no agreement with spector forfeiture does that make sense i think that i think that doesn't make sense i would have to think it through more but i think i believe that that that would make sense it would be remanded be dependent on whether the defendant had disclosed the extra assets to the government because of the defendant had to disclose the act ratchets to the government at the time that the defendant received the government's promise to make that's why they knew that he could write a check for the difference he had they knew we had a he was a doctor he had a house he had a practice he had pension plans etc but i know that's not before you we would have to go back and develop that in discovering that hearing thank you thank you for the reserve decision