week filed a motion in from the judge king to hold mr scobell in contempt yet again and without waiting for busy any response from mr scoby oh late yesterday afternoon judge king entered an order holding mr scobell in contempt yet again and directed that he turn himself in at nine o'clock this morning and assume that was for not making the ten thousand dollars through payments that's correct so i want to address that issue if the court has any questions about you know mootness or anything like that we made three arguments essentially that under the combes decision this is an immediately appealable order because the only way you could this contempt was by paying the money itself secondly we've made an argument as well is that this is not moot and we're giving you the case i take and sure that in the rd is the most obvious one that we're talking about here which is capable of repetition evading review these orders or doing this and if the government's position was correct every time that mr scobell failed to make a monthly payment of ten thousand dollars they would come in here before we could get relief from this court and make an argument that it's moot if he's if he's going ahead and a discharge that and so we have we would have no ability whatsoever to get review of that he said that judge king ordered him to turn himself in this morning at nine am did he do so he did not as far as i know did he purge the content he did not so he's made no payment and he has not turned himself in that's correct and my understanding and again this has been telephonically relayed to me is that the order itself  the government have to use the exclusive and what the statute describes as mediterranean civil procedures the congress gave it to and force a restitution judgment under the debt collection act itself or can the government skip that statute altogether and simply call upon the courts suppose it inherent equity powers at the very start and this court has already answered that question in the bradley decision written by judge joe flat  are unavailable when congress is already prescribed adequate remedies and this court is already repeatedly recognized the statutes unfortunate procedures are more than adequate there's a series of decisions that just court has said that it's case congress put the statute in place carefully constructed it calibrated it describe what those powers are and they are extensive and in the bradley decision just show flat wrote which is that they should use those whether it's the attorney or any other officer of the united states in order to collect a judgment itself like that so what is that bradley had some unusual facts and in that case the government had taken over the criminal corporation and already controlled all its fun it's and so that does make it a somewhat unique posture and as and if you look at the judge joe flat opinion he does go on further to say that if for some reason more money is needed to pay the restitution the court can enforce payment to the victims via its contempt power so how is this not a clear indorsement of the c f t c if you hear thank you for asking  so that statement which is at the last head note in the opinion dealt with the criminal defendants and in the criminal arena under eighteen u s c section thirty six thousand one  it specifically allows it when order of criminal restitution is entered it permits a an order of contempt so in this situation what happened was even though it was in the criminal context and this was a rico case it went on there were people who were parties to the appeal who were not criminal defendants they were people who they had received properties and they were trying to get property from them by way of really of a civil proceeding and that was and what judge said was what they were attempting to do was to have appointment of a receiver who would attempt to recover the property from those individuals and if they failed to do so they would then go and seek to hold them in contempt so the simple answer is is that the thing that distinguishes that language which you're referring to your honor is both in the act itself where it recognizes the possibility where you could get criminal contempt on some other bases and and title eighteen section three  specifically allows for a criminal defendant who's been held responsible for restitution can be held in contempt civil defendants that isn't the case and so that's the thing that would distinguish is that so they did attempt although they did take discovery afterwards with respect to this the never bill themselves of any of the remedies which are available to them under the statute itself and after bradley and colmes itself which is an earlier decision by the by this court in which they said that you don't use in a civil context as an enforcement mechanism contempt citations in order to enforce a civil monetary judgment on something like that so the government is attempting to step around that here by saying well this really isn't any monetary judgment but this is a classic monetary judgment on this and it was customer losses which under the statute were proximately caused by a violation of act that's right out of the statute it's compensatory damages on its face and contempt is not available under those circumstances the nd part of our challenge on this is where the final judgment in the record actually support a contempt sanctions there are three factors that militate against that make it impossible st the final judgment is wrong it was reversed in part and reduced by five hundred and sixty million dollars five hundred and sixty thousand dollars to one million five hundred thousand dollars and that all happened while the show cause hearings were going on and for that reason we maintain the judge king didn't have jurisdiction to proceed in that fashion the final judgment is also they if you take a careful look at it there is language in there which admits of the construction which would allow mr scobell to make partial payments of that order so if you're going to have a contempt citation you have to have a clear and unambiguous order and one of these things one of the arguments that we have is that that this was ambiguous that he couldn't that market make partial payments  the rd reason is is that the contempt order here actually ignores this the statutory exemptions which were there and that the statute itself incorporates busy state law protections here mr scobell had property that in jointly with his wife of bank accounts in homestead protection all those what the government's going to try to tell you is here is like well wait a minute we can say a whole litany of other cases about that were courts of pierce through those types of things but those are in situations not where there's a analysis is correct anymore in light of the decision by a supreme court when they said that disgorgement is a penalty and the match itself that we're talking about here says a debt can be a penalty itself so i believe even those cases are probably no longer a good law but that's how they analyzed it they're not able to point to any other opinion other than the blue hippo decision that they say that effectively a monetary judgment like this is something that won't lead to contempt and blue is reversed by the nd circuit and so there's no good law for them on that other than these discordant cases which are easily distinguishable so from our perspective we think that the analysis here is very simple and very straightforward we focus in on the statutes plame terms and its structure it's a simple matter of statutory interpretation on this is the judgment a debt and restitution is a diff debt as defined under the statute itself and that means under  three thousand and one dollars essay that the procedures that congress set out apply here and those are organized in subchapter c and d and they are what the statute says are the exclusive with one exception and that's under three thousand and one dollars b and that is if const congress specified different procedures in a specific restitution statute itself so that's what we call step two in the analysis on this what about three thousand and three  that says the chapter shall not be construed to supersede or modified the the operation of the authority of a court to exercise the power of contempt under any federal law is under and that's that's the next step which is under any federal law so what you have to do is then go look at the commodities exchange act itself and see whether there is a remedy of contempt provided for under that statute a good analog to that would be the criminal statute with which i just referred to which would allow contempt for a restitution judgment against a criminal defendant you can look high and low in the in the eyes of the commodities exchange act and there is no such empowerment there what they attempted to do is create that out of whole cloth and so the problem that you have here with the government is what they ask judge king to do is they went to him and said really ignore the plain language of the statute and the methodology was a set out there and it's exclusiv and instead what you should do is create this out of whole cloth and that there would be these inherent powers that they want to do this and if you look at the section which are out there honor is referring to is in subsection i believe it's c eight and if you look at the preceding  seven more broadly accepted any inherent authority of a court to provide injunctive relief that that's correct and there was no injunction here there is a monetary judgment here which he has not according to the government complied with it's not in a junction it's a monetary debt and this is exactly the situation that was confronted the blue hippo case when it went up in the nd nd circuit the argument there was is like on a no this is not a debt  it's an order which was there and what they found was that was in fact a debt which was owed and it fell within the bankruptcy statute itself has been precluded   nd circuit recently like this so the stakes on this appeal i want to stress are are enormous and this isn't just a matter of the era of effects mr robert scoble this is what the government is attempting to do with what i call regulatory creep which is they want to keep inching ahead and congress hasn't given these authorities and instead what they want courts to do is create inherent powers for them to get a remedy which congress did not give them congress knows how to give the contempt hour and in this instance they didn't continuing effort by the district court to prod a recalcitrant defendant into compliance mr isco b o the appellant is not a victim in this case he victimized a large number should this court affirm or should this current or should this court dismissed for lack of jurisdiction a contempt order that was structured to require a three hundred and fifty thousand dollars upfront how can he get a b s had he persuasively argued a motion for stay which he lost in the district court and this court had he been willing to post a bond which he was unwilling to do and told the district court as much in the hearing on the motion for stay in the district court he could have preserved his appeal rights for the up front for the contempt sanction that he suffered or that he that was imposed upon a supreme court case that we cite in outbreak if that if you want to purge yourself you can get a motion you can convince the court on a motion you know obtain a stay you can post a bond or make bail or stay in was eventually to be enough time that he's in prison we can hear and decide the case no that is not my argument my argument is that it's not a dating review yesterday he had not incurred a contempt sanction for the ten thousand dollars a month payment that did occur yesterday and that's that order is not currently before this court but would be a polit vague but now it's not the case is that apply that doctrine of capable of repetition yet abating review apply when a defendant through no fault of his own fault but because of his disability or an impoverished drug addicted defendant who could not because he was indigent could not comply with the district court's order to decided on that indigent person who was failing repeatedly to make child support obligations he was indigent and incapable of complying that is not the situation with mr sco who has lived this luxury maintain this luxury lifestyle based upon all the evidence presented to the district court his discretionary expenditures where over fourteen thousand dollars a month he lived in a luxury hotel he still does drives luxury cars takes international trips and has contemptuous lee prioritised other expenses over the victims he paid more for his cable television than he paid the victims in this scheme that he that there were there were a number of pieces of evidence to to demonstrate the amount of money that was coming in and the amount of money that he was sending out and that and they were very high expenditures that he was prioritizing over the restitution payments and he's mentioned the current order that's in place that he was supposed to surrender this morning how much is arrears of about eighteen thousand dollars so some ten percent of his imputed income which would never be near what that meant and he didn't have a leave of court to modify met time instruction he didn't come in and ask the court for permission to modify the amount that he was paying he just did it unilaterally and the district court took a look at that and ordered him remanded back to custody until he makes the payments on the arrearage  just could talk about jurisdiction or the merits whichever you'd be more interested in hearing over jurisdictional ok so the argument the argument has been in this case for a number of years that the f the federal debt collection practices act for bid the district court from entering a contempt sanction to enforce a restitution award but under the us under the  arrest the worst the restitution awarded in this case is an equitable remedy and this court held in the city f t c vs wilshire case that the statutory grant in th commodity exchange act carries with it the full panoply of equitable remedies and so restitution equitable remedy is traditionally enforceable by contempt which is an equitable power of the court and under that structure we argue that the f t c p a a section three thousand and three  which is where the power of contempt is granted by federal law applies to this case because the sea and grants the district court authority to grant an equitable remedy which is enforceable by contempt and it traces back to this decision that this court's decision in to fifty percent will show that was the analysis that the district court of clyde and we argued correctly so and we also can see that in the bradley argue the bradley case was specifically about the f t c p s a in that case it was a criminal case and there were two broad  remedies one was a forfeiture which the court determined was and as a remedy at all it's a penalty the nd component of the judgment that was at issue in bradley was restitution so in bradley just to show fact flat wrote the opinion to say the remedy is at law may not be enforced by equity so that the government could use a receivership to hold parties in contempt for failing to pay the forfeiture but as to the equitable portion of that judgment the restitution contempt was the appropriate way to enforce that judgment and so we would point to the bradley decision as precedent for supporting the district court's decision in this case to use contempt to enforce the equitable remedy of restitution thing you know i'd be glad to address anything that you that the court is interested in think i could go over the contempt standards which were met in this case and i might to note at the outset the govern them that the burden is on the party seeking contempt to demonstrate a failure of compliance with a court order that was demonstrated here mr escobedo allocated great sums of money to discretionary expenditures and paid toward his restitution obligation as a factual matter the district court was without error in concluding that he had failed to comply with the final judgment the burden then shifted to mr escobedo to demonstrate either that it was impossible for him to comply or to demonstrate that he had made all reasonable efforts to comply he given that opportunity submitted evidence that he had over nine hundred thousand dollars in assets available to judgment and the court looked at that and held that he had exceptions do not apply in that in the context of this a federal court and there are cases that we cite in our brief that say it doesn't matter if it was to restore these funds to the victims we do there's in the final judgment the court named the national futures association which is an entity that regularly is like a monitor for restitution thirty five years they chose to do that and took away his livelihood on that they actually then had him thrown in jail he had a job at that point earning a part time as a pilot somewhere between thirty dollars and forty thousand dollars a year and when he got incarcerated the st time like this he lost that position as well and decision that he has not abided by what's gone on here is absolutely incorrect if you look at the record which is here is that when he went ahead and did was he individually even though there's an exemption  is incorporated by in in the act itself it says that state law protections and exemptions would apply if you want to head and liquidated his ira which judge king referred to is about three hundred thousand dollars after you paid the taxes that are associated with that remitted that amount immediately to them mrs scobey who did not have to do that the quick dated her ira as well paid taxes on that as well in order to purge that contempt as well so this idea that somehow or another that there's been this refusal to abide by this he did purge i think was the st thirty six million three hundred and seventy thousand dollars out of that unlike that and the only way he was able to do that was by liquidating exempt assets and assets of his wife itself on this something like so but the contempt order doesn't command where the restitution payments must come from i mean it's not the contempt order space does not specifically direct anything regarding exempt assets or whatnot that  your honor but here's what the problem is and this is why the see if he she did what they did here is they find that protections which are built into this act inconvenient for them and so instead of going in availing themselves of the normal way to collect and a judgment execution a levy garnishments attachments even a pimp plan that is described in the act itself there would be an evidentiary hearing and you would be able to make those kinds of arguments about why those are exempt or not they cut through that and made the argument like it doesn't matter judge he's in contempt therefore relying on those discordant cases those exemptions don't have the nam applicability the government went ahead and did this to put as much everyone will be taking this as a roadmap which is like if somebody doesn't pay that restitution award that's been entered or they're disgorgement or we're going to go the trial court and hold these people in contempt and incarcerate them in every instance that is anathema to the idea that we don't have debtor prison in here particularly when it's the government who's doing that what about the the testimony that your client said he had nine hundred thousand dollars in assets so if you look carefully at what judge king went through that equity was about five hundred and fifty thousand dollars in his house which he owned prior to any of the involvement here joint tendencies by the entirety with his wife and the record evidence here is that mr scobell and his wife went and attempted to get a  mortgage on that house in order to raise the money to be able to purge the initial contempt and were unable to do that because no lender was going to do that while he had a judgment which had been recorded for a one million five hundred thousand dollars they simply weren't going to do that see if you see didn't tell you that they weren't candid with you about the fact that they inhibited or prevented his ability to be able to even get that source of capital so if you look at that it's five hundred and fifty thousand dollars equity in the house which is exempt asked that under almost that protection of florida and three hundred thousand dollars which was his ira which is also an exempt asset so what they've attempted to do here is really they want you to do is just ignore the structure of the statute itself and that is that what that did is that statute gave the government comprehensive exclusive civil procedures that's the language which is used in there and if the court could take any reserved power away from by way of section three or three which is they're using that and  instead of the specified procedures they're an explicit at that point they're optional and then the whole of the statute is gone you would see the government agencies doing exactly what was done here in this instance and that would be  misuse of the contemp power rather than going through the collection processes which they're normally remitted to and that so that's a major step beyond what the courts powers under article three and we think the statue is more limited than inherent powers other parts of that statute actually talk about inherent powers i wanted you to subsections believe it's c seven which refers to the inherent powers of injunctions they make no such language included in there when they talk about contempt in there whatsoever and in terms of reading contempt into the command is exchange act as an implied rommany the current trolling decisions for close that altogether the supreme court has told us as litigants and the courts as well like that the days of implying remedies on the theory that congress forgot to imply there over with their notion that like oh when congress put dodd frank in place that they didn't they forgot to include contempt in there is somehow there should be implied that's not what the supreme court has said  be done it's in monish in lower courts that you don't imply those in that situation the congress knows exactly what it's saying and it says what it means and something like that council would take that case under