this team justices of the ninth circuit i'm here to argue that these this court and i think it should uphold the district court's ruling reversing the contempt findings and determining the appropriateness of a money judgment and order instruct the bankruptcy court to immediately release kenneth to reap from custody your honour's i've been a bankruptcy lawyer for more than thirty five years and i have never in my time seen an article one court order the incarceration of an individual in chapter eleven chapter thirteen chapter seven cases this case deals with fundamental issues of due process in force ability of oral temporary restraining orders and contempt sanctions versus monetary can i ask you one question has he ever come forward and just said he's not able to provide the asset and presenting that to the bankruptcy court as a an alternative basis for his sanction my understanding is your honor and i haven't been involved in all of these steps of this case but my understanding is that he has on multiple occasions come to the bankruptcy court and said i want to raise the defensive and possibility i don't have the money didn't have the money i've been i've been incarcerated for six months one year year and a half so on and so forth how often do they check in with him my understanding is that there are fairly frequent status conferences maybe every several months but the despite the evidence that has been provided to the bankruptcy court and i guess much of this is not in the record the bankruptcy judge has not been convinced that the impossible the defense i mean it basically impossibility defense you have to prove a negative inference but but you're saying that in these statuses when they are i take it they're my telephone or something or is he brought in beef actually i believe that mr greve is actually brought on for the fourth so he has the opportunity are you you're telling me that he actually has gone to the court and sad that i can't get this property that is in iran i can't do it it's not possible for me to turn it over and that's just been rejected by the by actually the property in iran as is let's put that over here and talk about sense that the argument is that the chapter seven trustee has not done any investigation into the property in iran so on and so forth and as a matter of fact filed a motion to abandon that property under one of the provisions the bankruptcy court code claiming that it's of in consequential value a benefit to the state which was opposed by mr greve in the bankruptcy court granted that motion but with regard to the money the chapter seven trustee has had every opportunity to examine the bank records of greed of e m m of dominance of developments the names of these companies i don't get them exactly right but basically from reading this these opinions it seems that they don't the court doesn't believe that there was actually a transaction in iran a purchase of property and so it's sort of found that there wasn't this purchase of property so it can't even though the deeds been turned over you're saying they need to do more than what i'm saying is enough i don't believe enough was done at the inception and furthermore getting back to the impossibilities question which your honor had first brought up i believe that mr greve has not demonstrated not only by the two years that he's been in federal prison but by  facts before the bankruptcy court that he that parts the court just is checking with them you are having hearings and the court is finding against mr ghraib i guess at this point saying you know i don't believe that you know that it was some sort of a sham transaction or you could get us the money but you're not getting us the money and back to the who's cow yeah that's so what evidence is there that did not know the case had been converted from chapter eleven to chapter seven well this gets into this really interesting issue of whether an oral injunction can serve as the basis for anything really i mean this particular case as we know there was a hearing before the court on a motion for an entry of final the crude mr greig contends that hugh had not he had divest him self of his stock months earlier well there's kind of if correct me if i'm wrong there's two ways that the bankruptcy court could have held in contempt of court one for violating the court's t r o one for failing to execute his statutory obligations once the case was converted from eleven to seven and so you've got the t r o and then you've got the other one pointed we have the t r o and you have the turnover judge who determined on appeal that based on the hands were zero decision even if you up hold the bankruptcy courts findings of fact that greed did have notice which you know i stand here i know all the players i've known them for many many years and so you do the timeline up so so what you have is what you have is you've got this transaction that i guess is in march of two thousand and thirteen or whatever and and under this transaction once the seller in iran provides certain proofs that the monies are going to go from the canton freedom the freedom account and it's going to go to these other accounts where greed will not have control they'll have to take his name off of the accounts and that gives the ability of the debtor to ensure that the transfer of the deed takes place and so august thirteenth aug fourteenth these are the critical dates but it any rate on aug fourteenth there's a hearing on the motion for final decree and the tentative ruling that was issued the prior day and bankruptcy judges many of them are very very good about issuing tentative rulings so you have an idea of what you're in store for the next day that tentative ruling doesn't say anything at all about any potential conversion to seven or any turnover any contempt or anything like that the judge has some questions about whether creditors have been paid in the us trustee files an objection saying we want our quarterly fees  no longer being represented he was never represented the debtor was represented by counsel greve was at one time the principle of the debtor but he maintains that many many months before that he had so he had transferred his stock  brother rushed the body so douglas represented the debtor bug was reprehensible of the daughter the principal right was throughout most of this case the principle the debtor but at the time of the hearing on the motion for final decree was no get of course a hearing subsequent to the t r o so he originally claims i had no idea the t r o came through but then there's a hearing and there is evidence presented so let's assume that he didn't let's just f sake of argument assume he didn't have notice but by the time he goes before the judge now the judge is saying give me the one point four million dollars back you violate it now you know that there's a t r o money was gone ok but then that's my first question that triggers the next m my next concern it why isn't he then saying the money is gone i don't have the ability as in possibility defense he has he said that ok he has said that and the judges rejecting that the judges are judges rejecting that on credibility grounds and has made a very thorough record about why he believes one hearing that i have cleared out where it came up the judge said mr greve i want you to bring in other people i want you to bring in other people that  nothing but yet the trustee cannot point to a bank account where there's a money i mean and the trustee has done as has taken the acts of tracing where these monies w everywhere it's zero two is your due process allegation not the length of him being incarcerated but rather that he didn't have due process during that hearing where the judge held him responsible for turning over the manu process issue over the one point four million now what's the due process violation there at that point at that point the money is gone clearly gone because that takes place i believe so what's important fifteen so what's the due process violation due process violation is that the bit at the inception with regard to the oral t r ok and the you know can an oral t r o be entered in effect and many courts say well if it's a you know if it's immediately put into an order but even then you have mr greig saying i never received the let's assume hypothetically let's let's buy your argument on the initial t r o and say he wasn't notice that the contempt of all of that but then he does come to court and says ok it's work go unfriend that that chapter eleven to the chapter seven turn over the property ok and you're saying his excuse is i don't have the property but the judge says i don't think i don't believe you i think you do have the property and you're pullin shenanigans and this set let's assume that's and the record does seem to indicate the judge doesn't believe him why can't support being held in contempt are things in the record if if the judge doesn't believe that win so you mean to tell me your honor that in that particular case where you're dealing with the issue of impossibility and you've got someone who says you know here's my pockets i've got nothing check everything i've got nothing in the judge i don't believe you so that means that someone should remain in prison incarcerated for the rest of their life just because one individual who i happen to admire and respect greatly does not believe does not believe what judges make credibility calls i mean i don't i'm just saying if in fact the credibility call is supported yes i detest that does that defeat your argument beyond the record here i don't believe it is based upon what i know i don't believe it's supported but that is really not i mean this appeal here really relates to the contempt finding itself and not the impossibilities defense right but so the question is whether keeping him in prison is corey said or peanut him right that is an issue and basically what judge who determined was that contempt that this case the judge judge albert's ruling the bankruptcy judges ruling could not withstand a hands borough analysis i e a definitive order notice that if you didn't a baby would be held in contempt and the contempt sanction and judge move concludes that judge albert believes his bankruptcy and and clear to me whether at the time he sold the hillsborough house and his wife executed the agreement for the newport he had done a tremendous thing he had sold the san mateo property to hillsboro property for much more than he thought it was he could get work and so that there was excess proceeds of vailable to pay creditors in his mind these chance it transaction went transactions because it is clear he's not going to pay that's just and that was judge was point he revolved he relied on the newman case he concluded that there was not sufficient support to for contempt in this case because and so instead of looking at one o five eleven u s c want to five the all powers statute he looked at five forty two the turnover statute and he says if you look at the cases that are sided i think it was canals and abrams that are cited by judge roberts in support of this those two cases are automatic stay cases they have specific contempt provisions five forty two does not in this particular case that the findings are insufficient to support contempt therefore you have the money you have the option of a money judgment and and we understand that money judgment ok and immediate release right thank you see what the government ha also in the courtroom as my sizzix steeper now and can counsel for the creditor at the bankruptcy case to start with your honor it is not the incarceration order that is on appeal before this court today that order which was entered on may twelfth two thousand fifteen was never appealed they could have this order was entered in march of twenty twenty fifteen this was and this and may there was a continued hearing to see if you would h by that march twenty third order that is the subject of this appeal they never appealed the second order so incarceration is not before this court also you had requested or you'd asked about impassibility defense there has been many hearings on that including the may twelfth hearing where the incarceration took place on twenty fifteen and twenty fifth my question was whether it's been coming up again since than many many the finding of contempt led to his incarceration that was the saying yes so how are you breaking those apart i mean if he was wrong in finding him contempt he shouldn't be in jail right well there's also the fact that we actually went and saw the second contempt order and that can tempt order was appealed and that can that appeal has been dismissed and right and that was a while ago as well so i guess that if you were to look at this case just imagine taking it in a in a criminal context for a moment if he were to have committed obstruction under criminal content he'd face under the federal sentencing guidelines for the bankruptcy court probably less than two years or maybe two years so and then he'd be kept to the statute of limitation and i mean the statute next month statute penalty of maybe five years i think under fifteen twelve or some obstruction statute so at what point this turning this discontent order turning into a punitive want especially when it's clear to everyone that there's no money that's coming in and i would disagree with that it's clear to everyone that no money is coming in well there's no money coming in there there was  and in fact the day he sat on the bench and on the witness stand and said i have no money at the contempt hearing on may nineteenth he sat there and said i have no money it is impossible that very day somebody went into the bank under his orders in his directions because the bank wouldn't transfer the money otherwise unless they had mr green on an account that he was the sole signature on six hundred four thousand thousand dollars of my ass that was transferred to another account it wasn't the banks why is this content and not why aren't you taking up criminal action or an adversary proceeding and why is this contempt if he wasn't present at the moment this thing was converted he had notice of the order he had notice of the order he had noticed that it was a defendant that specific in definitive order with a specific terms and had noticed what you notice are you referring to he had noticed serious telephone calls with dana douglas the attorney for the debtor and e mails from dana douglas to him let's talk about dana genesis and trying to find out what was going on and who was what where when and how and so we did what we could we thought mr agreed to the hearing was on a wednesday august fourteenth two thousand and thirteen i monday august nineteenth two thousand and thirteen we had mr gregory under oath finding out what's going on had transferred those monies out of the freedom account that i've been told by everybody that's what is it he knew that he transferred that money we did not know we didn't know about transferring the money out into much later i was the one that actually called the bank and was able to find out that the account had been closed we had time to we had to it took us time to get that information we had to get the d r p the debtor in possession account which was the only one that we had any access to without a subpoena we then had to subpoena the the freedom account and everything during this time period we're trying to figure out what's going on we're asking dana douglas about information we're thinking about well if the buyer didn't have notice of the bankruptcy maybe we can get the property back easily maybe it is still property this extent they also swirling around how long are you going to keep them there i mean at what point is the one point contemporaries and everything that the money in the freedom account was the proceeds from the sale of the hillsborough property and was property of the bankruptcy estate upon you why you need original t r o contempt where he wasn't present know in the second  order to show cause motion everything yes remember this all happened the the critical hearing date where he was not present and said says he doesn't know anything about it that he took the money out before he knew that the judge ordered him to take the money out as a coincidence that the iranian property was closing right then but that happened in august of twenty thirteen ok that order with up on appeal and didn't there wasn't a ruling from the panel until august of twenty fourteen we did not file our motion for o s c intel october november of that year and during that time period when you were asking about our the dana douglas's in her declarations we were we realized when they filed the motion for reconsideration and the appeal of of the original order that her testimony with by then we knew that the money had been taken out of the freedom best account and also into their briefs in before the may i'm sorry in march here and actually my time so here is the principal does that so how do you prove that that many actually belong to the debtor and not to account and then went to the freedom bankruptcy account and when we had this we had many hearings many things evidentiary hearings everything he admitted that the money in the freedom account that was there on august fourteenth two thousand and thirteen the day the judge converted the case was property of the bankruptcy estate that one point four million dollars that was in that the freedom account was property the bankruptcy estate as someone in control of property the bankruptcy estate you were obligated to turn it over ok you obviously that you know that you're a strong advocate for your position you obviously don't believe that mr wade has probably one ounce of good faith in him so that being said what i mean is are you is is that your thought or position that mr and game is to just drag this on and drag this song tell someone finally lets him out and then he gets out and then if he can hide the money then he goes through bankruptcy and then he can go to europe and live on wherever that money is is that was that what ye he thinks that one point four million dollars as we're staying in jail for a little bit in a case that in florida there was a similar situation where someone was held in contempt and incarcerated and from the published opinion at that point that individual had been in prison for seven here how long do you plan on keeping him in prison at this order go back to the court on a regular basis and have more hearings and the judge has ruminated over this many times and it hasn't changed nothing's changed what happens is for instance we go back to court and find out that he transferred six hundred four thousand dollars the day he sat there on the stand telling the judge i'm in the u s i have no money so how do you believe somebody with that i think he has control  before the motion for or so cause and everything we had traced the money through december of twenty five thirteen ok and we at that point monies went overseas just happenstance the landlord who had rented a ten thousand dollar a month home to his wife was going through foreclosure process or trying to eviction process and discovered our order show cause r contempt and showed up with the application and said hey and they said that they had this bank account called the c at wells fargo and and bank of america and so one point nine million what do you think that is like so we s those banks we got the bank records back and realize they came from the exact accounts that we had lost the money so you know this all comes back around and all said and we tricked been able to trace the money through to many other accounts and as i said these are all continuing on we don't have the power of a criminal proceeding where you just go in and seize records we have to give a subpoena and notice that if it was a criminal proceeding like i said he'd probably have served his time if he had pled guilty to it based upon a one point four million dollar loss and he'd be capped at at least the the statutory maximum for the statutory penalty for obstruction of a court order in the bankruptcy court well there's also other federal crimes and then he could have arrested restitution order of one point four million and actually he has reconvicted when he talks about in his pleadings about having legal issues going on at the time of the sale of the hillsborough property what that was was an insurance and worker's compensation case that actually was  up to this court and there he failed to provide the restitution that he said he would and so he's not just here in custody for other things than what he will be when those he is at the right now he's not right now this is the legal argument at what point is this punitive and you should be seeking alternative routes to the punishment as it has to curse which you know it doesn't seem to be being very effective and we have your honour's and there's a just want to go over one thing and i'd like to go back into a few of the things that i was talking about earlier now to talk about the six hundred four thousand dollars that was almost two years ago a year and a half ago where's the money it's been two years one thing council didn't say is we've traced the money to here in the year it isn't because they haven't been able to find it ok so let's talk about first about the oral injunctive order and let's talk about some issues of law judge lewis says there appears to be no clear answer in the ninth circuit as to whether a litigant may be held in civil contempt upon notice of an oral injunction however several cases support the conclusion that a litigant may be held in contempt in such a situation including fifth circuit decision and bradley and that's what he relies on he relies on bradley however in bradley your honour's i believe it is distinguishable from the instant case first in bradley the the alleged contempt the war that was bugles butyl his counsel was present at the hearing and was even instructed by the bankruptcy court to take the lead in drafting the order second in bradley the bankruptcy court concluded that butyl chose not to attend the hearing where the oral injunction was pronounced so that he would not have to testify about the pending sale so that distinguishes that case  into a non discharge ability type of matter all of those go to the first t r all and whether he was present and not to the one where he was standing in front of the judge and the judge was making findings about well remember hearing at the time that the judge reissued orally issued the t r o that later you know the day or whatever became the the order with it we'll we appeal from  then with regard to the sanctions under five forty two citing the newman judge lou noted that if a debtor demonstrates that he is not in possession of property in the state or its value at the time of the turnover action t