forfeiture in this case the district court violated federal rule criminal procedure thirty two dollars point to come is there any prejudice yes your honor it's a violation of due process was which point to your being a judge so we're having right now and it's at the hearing here i know it's not proper well i mean there's been a great deal of preparation more than that's my question what was the prejudice the prejudice was your honor under the rule not harmless error and i will point out that believe it what would you have done different if you had better notice and more hearings or whatever whatever other procedure you well i couldn't subpoena people forces of people from the next kyle williams continued no i had a motion to continue because of the pro we didn't get primary order period or any of that and it was ruled on until susan so the judge starts off by saying your motion thirty two dollars which is mandatory with clear objections in one of the cases the reason that the the court that this circuit but a other court said no it's oh it's not a violation process and it's harmless error it was because the individual had agreed to a dollar amount at his plea and there was a continuance granted when when the individuals attorney said your honor i did have proper notice of this forfeiture and so they continued it so that it was held to be homeless there and so i believe this is a fresh area for for the court but thank you very much in this is her per church so they knew that she was donating to our own church and the courts of well that she is one of many which is the reason i did not object to a bring appeal the dollar amount for loss because it's got a different standard than the milk for restitution the restitution the government is under a burden to prove every dollar that it claims there was no victim's statement in this case which would have clarified a lot of this back and speculation but there was none all it was done and on restitution that one of my complaints is that the manner that the court chose was to allow special agents below but not bitter of what was occurring about the corps he denied denied it but the government came forward and unlikes sanjoy it said we promise that we give the money to the victims and not to the government well that that's not insufficient because these are assistant u s attorneys at the district court level and this will be determined up at justice and treasury and so she agreed with the factual basis but disputed the last orbiter and restitution amount which she agreed would be taken up at summiting is that part of the plea agreement if she gets the court the magistrate said ma'am you understand we're six weeks or so after you got your continuance of the setting aside restitution i immediately objected that there was insufficient time and for continuous i mediately objected and immediately  hearings i did everything i possibly could do could try to comply with rule thirty two point two so the last  or my brief concedes that nagell control but whether or not you can have money judgment on going after untainted funds and the argument is that the us codes only provide for criminal forfeiture a proper property constituting or derived from the proceeds of the office and the government in this case in going after a we do also point out the united states versus douglas a united states versus hogans under those cases the issues in miller and i believe judge stuart was a was in the they used the primary trait test and i don't believe that's a proper test i believe that the do share like relationship position of trust should be for people like lawyers  accountants c p a s doctors my lady was a bookkeeper and that or how they dress it they always come back and say she was a bookkeeper so that the court has to decide whether to fall listen or follow the unpublished opinions which have come down since there wouldn't you agree him maybe don't that he and i know this isn't the task but wouldn't you agree that a great deal of trust was placed in her with a very fine and she was given  discretion she was given so i trust you know that's not typically what you do with a bookkeeper i trust my housekeeper mind my house persons living in my house i go away for a month i come back he was unsupervised i trusted him or her explicitly everything in my house is stolen that is not a vision of trust you need to leave opposite that's not even close to the example i get well as the state quicken the government huge quicken and the problem with quicken is that in ten every bookkeeper has quicken and it's just part of the usual scheme in a bookkeeper theft case then the lines on quicken they're going to change decayed that a monkey could have figured it out that a moron couldn't figure it out or that their lawyers are c p a s or accountants or all negligent because the scheme and the government itself says we can trust of the united states i'll pick up where we left off with the two any and sense i think this case is more most like miller which is a case from two thousand nine hundred from this court miller worked in accounts payable at a company she was responsible for issuing checks to various vendors for payment every week about eighty dollars to one hundred dollars she had the discretion to add new new vendors to the payroll and she took those checks and she took them to the bank for authorization to administer those checks what she did was she out of her boyfriend as a accounts payable in created him as a vendor she started issuing fraudulent checks to him took those checks presented to the bank they authorized them that as the checks issued and then she covered her talks because she had him in the database with other the gentleman vendors so it was difficult to detect i think you have something similar here where you have barry who has used funds to pay her self her well her her expenses let's say with her american express card and her various other cards her husband's expenses her children's expenses various charities that she was affiliated with and she mixed those payments in with a judgment as expenses over a series of at least six years when she issued them she had the authority to do so because she was responsible for paying all of the davis is bills she received all of  the anything relating to billing an account at a p o box in houston where the daves is did not live she was solely responsible for collecting those paying those she contacted the davis's when she needed more funds they relied on her advice as to where funds should come from and what they should pay she didn't created false in trees in the quicken accounts to cover what she was doing over those six years this court found that both the abused a position of trust and a vice president but i think you look at what she does and for example in the abuse of the position of trust you have to prove two things one the position of trust in two that she used the position of trust to either facilitate the commission of the our fence or to cover it up in here i think you have both  you don't necessarily need the title of vice president for example and miller there's no indication that she had a fancy title or anything like that she just worked in accounts payable and had the discussion and was loosely supervised as she collected an issue these of the documents that are submitted when they were calculating the loss that there was a number of communications via e mail and telephone and in the beginning it was with her supervisor is well williams before that relation  before the day this is separated from ty williams there was some oversight that way but for the most part she had discretion and we know that because this continued for six years without detection she covered up what she was doing by these false entries in the quicken software and those every year were sent or actually more often than not were sent to the accountant to look over to make sure that there were the taxes from the herd appropriately and any sort of reduction deductions  charitable giving could be taken out amount or all this thing it was completely appropriate for this to be decided at sentencing the defendant had notice in the indictment that there would be forfeiture and then the p s r she pled guilty on february th the p s r was filed on me the final order didn't come in until august rd in between that you see a number of docket entries a number of filings with a lot of affidavits documentation spreadsheets justifying the last amount as  conceded below the last amount restitution the forfeiture they're all the same so again it was appropriate for the court to deal with this all at once at the sentencing hearing the defendant hasn't made any showing that there is any prejudice the arguments that were put included ms barry's wages were included in the last amount and that the business expenses were included in those as well and the government through their finally stated that none of these were  amount and asked the defendant to show where this would be there were filings i believe there about three hundred dollars pages of documents the defendant filed before the district court the court considered it found that it was considered it and essentially rejected in terms with all of their filings and the judge considered what the defendant's argument were considered all of the documents and when asked when and if an asteroid hearing he said we're having a hearing now and it's true the court went through everything in considering everything he says though that it says shall impose a fine or other monetary penalty so why isn't criminal money judgment forfeiture order ready other monetary penalty within the statute and i agree it is an interesting argument says or other money penalty i think if you look at it it is dealing with a fine provision and while that is a show impose a fine or any other money monetary penalty given its position in the statute and what the statute supposed to be paid st and so there are ways afterwards for any money that is received through the forfeiture to be turned over and applied to the rest to show not to make the victims fall st because victims are supposed to be needful whole st before the government receives any sort of reimbursement that way and the fear that that was just the usa and they don't get to really decide where the money ends up going is there a d o j policy on victims coming priority i believe it's in the n b r a and i think it's officers of the court when you represent that to the district court it should be treated as this is what's going to happen and that is exactly we know the district court was very concerned about the victims being made whole and in fact was displeased that restitution hadn't even started being paid yet in this case despite the fact that the defendant had pled guilty to these crimes and presumably restitution would be imposed so we know that was a core concern of the district court and the government attorney did address that and said both of these need to be imposed and i think the other thing too about the forfeiture that's interesting is once we have a money judgment order it allows the government to prevent a defendant from selling assets and dispersing things it's another way to be able to stop funds from going other places to be able to and there was a number of filings and there were three affidavits by various government agents who had investigated this for the day over and came up with summaries on their affidavits of what it was there is a spreadsheet that has five hundred and seventy six entries of the fraudulent  actions that the defendant talk and that's how essentially we came up with the amount here which i believe it's quite frankly under with the actual harm is that her crimes committed to the to the victims and is also correct that i did say that i would that next the next financial corporation aig was where the rest should go and there was an issue over even if the courts amount of restitution was correct use an issue as to who should get those funds literature quote what is required of standing to litigate who gets the money if it's clear your client knows the the why does she care who gets it because a double recovery it's unfair it's one thing to go get the money from the culprit but it's unfair for them to take a double recovery  client just wants to make sure that the people who get them are the same people who spend that another since next paid but next in the only one and not to tell us how much the other people settle for the banks  important to the due process of justice it's almost a trading seems messy though because of the lawsuit next also paid there were other allegations not just your current not just the failure to stop your client want there are other allegations the from the multitude of non published sophisticated means cases cited by the government is that davis are suing their accountants attorneys and c p a s for being negligent in that any one of them