good morning your honour's may please the court lar schaefer appearing for opponent mr saying i'd like to reserve two minutes for rebuttal with the court's permission sure i'll try to remind you to keep track of your own time as well thank you very much the only issue before the court in this appeal today is whether the forfeiture is grossly disproportionate to the conduct in this case and the  court grants substantial deference to the legislature's determination regarding whether a fine is disproportionate in the penalties that the legislature has set now in this case the for the guideline range which minimum fine and twenty times the that's the guideline fine and twenty times the maximum guideline fine and there's i haven't found any case in this at least and this is a circuit that has has held that such a fine such of magnitude a fine could withstand constitutional scrutiny counsel if we're looking at the guideline fine or in a i take it the reason that that's relevant as it's a measure of the seriousness of the offense or of the congress on the sentencing commission's drug meant as to the seriousness of the offense and if we're looking at it for that reason then we also have to look at the fact that they provided for up to seventy one months of imprisonment and that that seems like evidence that they viewed it as a as a very serious offense doesn't it well it is a serious offense but the fine actually is they tied the and legislative judgment regarding the financial penalty that should be imposed in the particular case and you have to realize too that you know this fine this forfeiture is four times the maximum statutory fine that's the that is the the statutory fine is what would be imposed in for the very worst offender and so that is greatly exceeds the statutory maximum fine now so it not only exceeds the guideline fine but it also exceeds that maximum fine and that is you know it's difficult to measure or to determine you know what what amount what monetary amount becomes when it's when it becomes disproportionate but i think it's very clear  although you do look to the sentence you know you look to the monetary penalties because how are you going to measure it otherwise and it works it's not a single factor type of analysis we look to the factors set out by the cops ian and there are numerous other factors that weigh in favor of forfeiture in this case as well so i agree twenty times the maximum provided by the guidelines seems high but then we look to other factors like the seventy sentence as compared to the six months in that case and the nature and extent of the crime so what is your best argument that incorporates the other factors set out by the cases well well these are all legitimate  standard shipping rates the government did not they didn't present to present any evidence to contest that and that was stated in the sentencing memorandum that he was paid the standard rate this represented just a very a fraction a fraction of the amount of money that he obtained from this entire business most of the money the four million dollars the defense presented business records to show that the four million dollars was mostly from western union the western union funds so  keep the business records show there was four million dollars taken in over four million dollars taken in through this business you know this is a thing was aware that some of the funds were as a result of drug trafficking only by virtue of the fact that the garcias paid him to ship these hundreds of packages but the two million dollars the vast majority of that was in effect was the western union funds and other legitimate context refers to the funds that were at issue here in this for the structuring of funds so they knew or believed that the funds were proceeds of on lawful activity or were intended to promote on lawful activity so you well look you may have a  well but if you read the what comes before that paragraph in the entire sentence it says basically based on the structuring in other words he was saying i agree that these funds were proceeds of an unlawful activity but was it was the structuring as well as some fraction of an amount which was also due to the due to the garcias paying him for the ship for the shipping so in other words the way that this is phrased in the plea agreement is that it says due to his structuring activities his activities as a bank compliance officer and the shipping activity these were proceeds of an unlawful transaction it was the government's position below that these were not all proceeds an a drug ring and there was only a very small portion of these that would have been proceeds by the verdict by virtue of the fact that the garcias paid him to ship these these these packages they were they would arrive packaged and he paid standard rates or the garcias paid standard rates to saying so there's a very small amount of money that was actually proceeds and the government really didn't take the position that really taking here on appeal this is all these fines were proceeds of a drug of a drug ring there was they didn't dispute this i mean they centrally said look we we don't know and they didn't present any evidence to the contrary so the lack of evidence can't substitute for evidence that there was actually that these were all proceeds and the prop and the defense presented the business records to show no most of these funds up almost the  majority of these funds were from a legitimate shipping business this is a mom and pop business it was set up in two thousand before the garcias came on the scene he opened another store in two thousand and eight before again before the garcias came on the scene and was operating a legitimate business that was bringing in a lot of cash from this western union business and this money would go into the bank accounts and it would come out the next day western union would take it out the next  day and almost three million dollars it was three million dollars in excess of three million dollars of the money generated if that went through the stores was western union money so the government didn't present any evidence to dispute traffic that is correct and that is correct it should be construed against the government i see that i'm running out of time i've got a time yes right ok thank you very much record and that's well supported by the plea agreement the paragraph the judge miller cites it's well supported by the fact that singh is taking other measures to hide his drug shipments such as spreading shipments across multiple shippers as well supported by the fact that this these drug shipments and the structuring is occurring at the very same time so certainly it was not a clearly erroneous finding and therefore the structuring did relate to other illegal activities which is the inquiry under the  are seen as essential the asking to be rewarded for the success of his structuring offense if you look at page twenty five of the opening brief he says because of my structuring the government can't determine how much of the funds is legitimate versus drug money and because of that he think he should be rewarded by it in much lower forfeiture i'm not aware of any case law that supports that approach and on the contrary it is things a burden to show the  any evidence to the contrary that these were mostly legitimate funds that were forfeited the government make that concession below no i think the argument and this begins at around page thirty five of the record in the sentencing hearing and continues for another five or six pages of the transcript the government's position has always been that because of the success of singh structuring crime it was impossible to determine the exact amount of the proportion of legitimate illegitimate funds but i think the government is always suggested that it could be a quite substantial portion and i think the record supports that so for example if you look at paragraph ten of the p s are saying is having a conversation with informant a government informant who is working for the drug trafficking organization whose drugs he is shipping across the country and he says you guys are the only reason we're busy around here so in other words seem clearly in addition we also lay out at pages in one thousand nine hundred and twenty one of our brief why the calculations he's coming up with based on these business records in fact are based on a bunch of assumptions that really don't make a lot of sense  when you take out all of those assumptions the percentage of the drug money could have been upwards of twenty three percent or perhaps even greater again it's tough to tell because of the structuring but suffice it to say i think he's off base and saying that it was a miniscule proportion of the overall structured funds the nd point that counsel raised was about the maximum penalties judge miller i think you're right we have to look at the entirety of the penalties which includes the seventy circuit the right decision from the district of hawaii and a decision that this court affirmed so this case is well within all of that precedent affirming forfeitures that are many times larger than the maximum guidelines fine because of the other factors as to the statutory maximum find that deserves west less weight as this court has said but i should note that the maximum statutory fine here is purely a product of the  way that this case was charged so i use a comparison to mel wicca in that case it was also a structuring offense there were twenty three dollars structured transactions but rather than charging it as one offense like the case here they charge to distort twenty dollars separate structuring offenses so you simply added up all of the statutory penalties and you came up with a maximum statutory fine of a little under six million dollars well here it easily could have been charged as four hundred and sixty nine  structuring currency transactions and then the maximum statutory fine would have been somewhere in the ballpark of one hundred and seventeen million dollars is each to the how does that work is each deposit a separate violation in your view or how  and it involves at least twelve months of activity and one hundred thousand dollars in total structuring then the maximum statutory fine doubles so that wouldn't kick in if you charge these has one off offenses but otherwise you're it's perfectly permissible to charge them as single one time structuring offenses that's exactly what happened and not what so all of this is just a long way of saying that the maximum statutory fine could have been of the forfeiture than the fact that that the fine or the forfeiture is greater than the maximum guidelines fine is not dispositive i do want to underscore the importance of the structuring offense itself a lot of the discussion here has been on the fact that he that saying was hiding drug shipments but i don't want to lose sight of the fact that the structuring offense itself here is quite dangerous just as my wicket a modest planed this doesn't just affect the government it doesn't just cost the government information it causes banks to violate their reporting obligations every time saying commits his crime it places clients money at risk because he's using their money for the structuring in this case it's specially aggravated because singh is a bank secrecy act compliance officer and that means he's tasked with training his employees on how to comply with the bank secrecy act but yet his employees didn't get that training because instead of enforcing the act that he's agreed to uphold he's instead thwarting the act can i ask you i mean the suggestion that there is harm from placing the client's money at risk seems a little bit circular in the money is only a risk if we uphold it for future suffice it to say it's an open question but at the very least it's neutral at best i think it supports the points which are here so and then the final factor i don't think i've covered is the harm caused by  harm here is fairly obvious in connection with the tie to the drugs because you have hundreds of shipments of drugs going out all across the country over a twenty six month long period these are dangerous opioids that singh is helping facilitate shipments of and then you have the harm that i just listed off with relation to the financial institutions the employees marketing their training i'd also draw a comparison to make me here that the case from this court was a medicare fraud case and the defendant in that case said well i gave all of the medical treatment that i promised to give so in that sense the government up the benefit of its mark but this court still held that it undermines confidence in the medicare system at large and makes it more difficult to administer when you have fraud running rampant within the system well here i think it's particularly damaging when you have a bank secrecy act officer who is supporting the very act disproportionate or at the very least not grossly disproportionate to singh's crime so if there are no further questions than i would ask that this court affirm and i believe i'm out of time ok just briefly in the in the transcript of the sentencing the government's stated that mr vecchione who is saying his counsel below him or at home how the majority of the money that was structured was from western union and this  on page twenty and the government didn't didn't a didn't object to this or say this is not resist not correct this is incorrect they more or less implicitly conceded that the bulk of the funds were actually western union money and fact they said there was form point eight million dollars that went into these accounts the various accounts and same produced records business records showing that's how much money went through the business and the vast all of it except for what was my brief i mean i've said i don't know if the evidence supports that but even assuming that it was used to hide it this is like you know i was listening to budget to the to the actual argument it's like a drop of it's like a a little bit of a one marijuana transaction the taj mahal do you forfeit the entire taj mahal you don't and that's what this case is all about they're they're they're seeking forfeiture of two one million dollars of legitimate fines based on a very small very very small amount of money that he was supposedly trying to hide and that's not that's i would say that that is grossly disproportionate to