position that restitution cannot be whatever i may have am suppose we agree with you that there should have been a hearing remand to have a hearing what was going to be a position at the hearing the burden would be on the government to prove the fraud by but you're not going to take the position that was taken prior to the hearing that is not within the ninety days or whatever oh if it were amended it would be assigned to my colleague who handled it in the trial court i don't know whether she would objection or not but our chairman is an office i'm sorry are you in the same office i mean i assuming assuming that you would reassert the objection the court would rule on it and if the court overruled the objection there would be a hearing and there would be the government's burden to pro value of that it has to do it is whether those trance were whether the transfers were effected by fraud if they were affected by fraud and restitution would be appropriate but if the government cannot meet its burden of proving the fraud then restitution would not be appropriate if the court would like me to continue with my argument i will otherwise all the rest of my time for rebuttal i don't want to continue certainly on this particular and unusual record your honor is there was at least a good cause to excuse mr hope alina objection to the allegation of fraud from the very start your honour's all of the parties understood that matters of restitution were going to be addressed at a post sentencing restitution hearing to happen within ninety days of the sentencing the probation office said i deferred restitution hearing has been recommended the government said the court should defer determination of restitution so the parties can submit the rep or their respective positions and then at sentencing the district court she said i haven't thought about this the the party said we haven't either the ports and calendar the hearing to happen in may but but if there's no dispute about the amount why isn't the admission in the pre sentence report anough to establish will fraud respectfully are they aren't admissions miss totally in a as also as in the record carefully worded the plea agreement to deny any concession or admission of fraud the plea agreement did not admit fraud the plea hearing did does there is good cause for the belated objection and let me explain if i may at the first opportunity that the defense had to address this issue namely the post sentencing restitution briefing we denied this allegation of fraud we said the government has not yet born it burden of proof it is not proffered sufficient evidence proving that these transactions were fraudulent and therefore a restitution order would be inappropriate we denied this at the first opportunity that we that we had to do so under the expectation which we submit was reasonable that restitution matters were going to be addressed later restitution was not meaningfully addressed in the sense in papers restitution came afterwards and then when we filed the restitution brief we denied this allegation of fraud saying that no evidence of the prod had been proffered so you're on about how me out also and i could be wrong i think of relevant conduct is viewed if you're dealing drugs with relevant conduct would be dealing on the drugs i'm not clear from this but it seems like this is more than relevant conduct the property which was not disclosed in the bankruptcy proceeding is a very property in question here is that i'm not sure that affects anything i'm just i just wanna make sure i understand it's a little convoluted and i want to clarify what happened in the sentencing papers as to loss initially the probation office in the government said the loss should be calculated based on the value of the annuity and the value of the condo the defense said that's that's the wrong measure of valuation the measure of loss should be the amount of debt that the bankruptcy court discharged government reversed its position agree with us that that was the proper measure of law and the district court similarly agreed that that was the proper measure of last the debt that was discharged by the bankruptcy court now that concerned the bankruptcy creditors whom c m was not one of when it came to talk about the condo and the annuity that happened in the restitution briefing where we said the government hasn't proffered evidence that this was a fraudulent transaction i said i would certainly say in a perfect world to be absolutely crystal clear the defense might initially said in the first sensing paper oh by the way we're reserving our objections about the fraud insulator because we understand that these are going to be taken up later that would be the preferred practice but it wasn't a waiver your honor and we fight the cheika case about that secondly even if it was a failure to timely object there was a good cause to excuse this late objection and a good cause is namely the record in this case everyone's understanding including the district court was that the restitution matters would be decided later at the restitution hearing and therefore when we file the restitution brief we raise the objection we says the government hasn't offered evidence of fraud and indeed they haven't what's here is an allegation of fraud an allegation in the p s r made by the probation office that these were fraudulent transactions no restitution briefing yes but not not at the time not some senator that is correct not at the time but we submit there was good cause if this court finds i mean our position is that we shouldn't we didn't need to object initially given the run on you i know where there's if your position is not unreasonable understand the pleasure court monica take for the united states there was no due process violation in this case because the defendant had numerous meaningful timely opportunities to state her case that c m was not her victim that she had not to frighted cme and she took almost none of them but when she did take that position rather than what my colleague said she actually did not deny the facts she just said that those facts didn't add up to fraud but she's never in the district court denied those facts that were stated in the p s r and also some of the facts that the government brought up in its restitution briefing relating to the fraud against c m so the district court  ordered that if the defendant never indicated that the defendant was going to bring any evidence to that hearing the defendant was going to testify that up to that hearing so that hearing was a hearing on uncontested facts and the district court was not wrong indeed did not aaron did not abuse this discretion to decide on the basis of uncontested facts that he did not need to hold a hearing and that's why there is no error in this case the defendant had many opportunities as i indicated to respond here and the sentencing pleadings themselves the government laid out its entire case on restitution leaving out only the dollar amounts that were going to be involved that was in the government's response to the position when the defendant filed her sentencing position it appeared to the government that the defendant was not contesting the fraud against c m because the defendant to raise none of those issues in her sentencing position even though c m was all over the p indeed was raised to a small extent in the government's opening sentencing position and then we got to the sentencing hearing and judge morrow indicated that she was finding all the facts in the p s r to be true and the defendant stood silent and so did her attorney and didn't say she was rich there was certainly an understanding that there would be a restitution hearing but the district court took pains to point out that in its sentencing decision it was considering the fraud against c m as being aggravating that the defendant had taken a new id he's a condo and also bought a car with the money that the defendant had taken disclose the defendant had those assets in order to get her fresh start in bankruptcy because had she done so i believe the bankruptcy trustee would have found out that she had acquired those by fraud from a person that she didn't list as a creditor and so it was integral to the to the would say would be no restitution because of the time well i think at this point that would be an about face because in the opening with in the opening brief the defendant did indicate that it was seeking arrangement to a different district court judge for this very purpose that of determining the facts of the fraud against suggesting that the defendant is not going to argue if there were agreement which should not be suggesting the defendant could not be arguing that it would be that there's no restitution here because  because we've gone beyond that ninety day period so right here i think the court has pointed out they gave ship that was that issue here the defendant objected below to a having a hearing at all after the ninety days and now in the opening brief to defend suggesting that the defendant wants the hearing after all and i think that would you agree that if the amount of the loss was disputed the defendant was the defendant would be entitled to hear i mean that was never d a loss as not being contested that's academic but but but but the question my question is if it was disputed would the defendant not be entitled to a hearing to dispute the amount of loss well if the defendant if the defendant had come in its restitution brief and had  submitted any factual challenge at all to the government's restitution position had denied that the acts in the p s r occurred had denied the government's proof of the dollar amount i think that the district court would have had a dispute on its hands a factual dispute and a hearing would have been appropriate at that time i just wanted to mention another thing and the my colleague indicated that there was no evidence of fraud i think that's not correct i mean the evidence is certainly what stated i r in addition the government and in our in our excerpts of records we submitted our position as well as a declaration not all the exhibits but we did prove up some aspects of the fraud in terms of proving the dollar amounts of loss for example we showed how defendant with the notary on the transaction that transferred away the hill park condominium from c m to c m and her doctor that defendant had transferred that property after cm's family had taken her back to japan the property gets transferred from c n n the doctor to this gentleman v g v g who says the defendant at all times controlled to help our property in his name he's a straw and he admits that and so those are some of the other facts  put in our rest if you should papers that the defendant never contested and looking at the court also mentioned in the questioning my colleague that there was a finding by the district court and there were findings the district court specifically r and i'm going to look at the facts in that p s r and if i decide to decide whether i'm going to accept your plea and so then moving forward to sentencing the district court said that c m had alzheimer's disease and indicated that the christian court believed that was a true admitted fact and the district court then said but on the other hand there are mitigating factors about this defendant although her conduct is aggravating i submit that the only aggravating part of this bankruptcy fraud is the fact that the assets were taken from on the elderly lady with all timers disease and in addition the fact that those same assets were that involved in the tax evasion and were also  again to help our property taken from sierra do you think the motivating factor for the district judge and ruling on the papers rather than holding a hearing was trying to avoid the legal issue about whether the before the many days there's no issue the the district court made that ninety day deadline definitely issue this court made a decision within time and i think that there's no denying the district court specifically mentioned that in light of the record here of undisputed facts and particularly where the defendant objects to holding a hearing beyond the ninety days the court finds it appropriate to decide the matter on the papers without a hearing is there any i practice i don't know of any seems to me the is there any basis if we were to remand remand to or to a different district or judge which frankly institution is a district judge i would find someone insulting i i just don't know of anything that the district judge did which indicated bias against i agree on or i don't know of anything the disease necessarily the funding for oh no i don't believe it is but i think it's helpful to us i believe that it's made and with the court is any question thank you no question just to answer your question our position is that the amount of loss is zero because there's no proof of fraud in this case wide open yes now the government says that we never denied the product think that's a misreading of the record in our restitution brief we said the government has now you're born of the burden of proof and the allegations that c m was purportedly suffering from alzheimer's that the defendant was involved in a transaction and that cm's relatives then sought to reverse the transaction does not prove that the i don't see it being necessary to the government no i don't think it's necessary either i would agree with your honor's character the facts are she took advantage of an older woman with whom she had no we deny those facts we deny that she took advantage of her or swindle to or defrauded her anyway well actually  cain a transfer of property from our older woman that's true and under this we had a close relationship yes they were longtime friends and under this circuit's off the government approved that the transaction was fraudulent if it wants to sustain a restitution allegation and then the government and its reply brief this is the one that they filed on the friday before the monday hearing they said oh the defense is not really denying the fraud here now defense counsel on monday was ready  to dispute that as she explained in a declaration that she subsequently filed if the hearing it happened on monday she was going to clarify at the hearing to make plain that in filing that opposition this total enough was indeed objecting to all  the references in the p s r which alleged fraud the record here on ars is that everyone thought restitution would be addressed at a post sensing hearing therefore our arguments were made in the post sentencing restitution brief denied the allegation of fraud the government's burden was then to proffer evidence of the problem of the fraud affidavits from c n n or her state or a doctor some kind of evidentiary proof other than a probation officers allegation of behalf of your office not of the lawyer who will handle it below are you prepared to say that if there i think under dolan and under the facts of this case there can be a hearing at this point after the ninety days that's my personal view i think the hearing should happen because the government has incurred its burden of proof in this case the result of the proceedings below is that was inconsistent with the orderly administration of justice and mr cox said i can't answer that question for the government and first in view of the confession of error but a solicitor general here in somewhat the same position i guess you're when you say my personal answer you're saying my answer as an officer of the court would be that it would not be the proper course for your office to raise that defense is that right yes