move to the worst case morning u s versus optical system iture i'm out which the opponents their position is that that was not properly or adequately determined in the district court the  burma and the corporation did were represented by the same council it is legal they waived appeal except for the issue of charged with conspiring to export and import defense articles without the proper written approval or licensing that was in count one count four it was just just burma and the corporation were charged with transmitting almost nine thousand dollars to a book of china in violation of the u s munitions list import agent of the government mr kennett blank testified for purposes of sentencing for all three defendants regarding the harm that these violations can bring to the united states of america that was before lunch and then after lunch the on august th before judge buchla the the proceedings only related to the figures its calculations in did not do so until matter of a few days before august th these calculations these exhibits were the bit here so as i understand it you're arguing that counsel was deficient because she didn't seek a continuance to have more time to review these filomena since it cracked thereby yes thereby conceding the government's calculations which were well she didn't concede the government's calculations i mean what she said the district court is that she had worked tirelessly she pointed out the tardy production but she said she'd work tirelessly reviewing these documents and when you look at what she said at the hearing i mean she was clearly very familiar with the government's numbers and made sophisticated arguments trying to get them down and had some success so can you say a little bit more about why that actually was deficient performance because she did nothing to prove up  so she i it does appear your entirely correct your honor she was very prepared but also noted that she just gotten back from vacation as coco so she had spent a lot of time with the government's numbers counsel and that same proximity to councils on vacation so she did investor self into this one she returned but and she certainly wasn't lying about that when she said that but if you look at the entirety of the transcript from the forfeiture he the the government's calculations which were vague to begin with were not adequately challenged nor was nor where mr berman the corporation's representations in their memo their motion proved up mr vermont is the corporation you can tell from the transcripts the other people who work for big your are family this all fell to him he was present there was a lunch break i recalculation by the government was tendered of the day before the forfeiture hearing so now we go from a situation where judge bucko it stated that she would not grant and it continued it says to her judge bu the government's position was will take what what we think is the profit made off of the chinese components and we'll just take twenty percent off the top and then they shortened the period of time in which their profit was made so that the number felt somewhat significantly but this is this business about taking twenty percent off of that just was pulled out of thin air and then the defense position was well there were plenty varma bike from components received apparently he did plead guilty to these telescopes reapers up i think something might be there i mean it that you just gave a pretty wide variety of products and apparently it in the district court effectively conceded the government's calculation which was not properly proved up to begin with and a stroke of the veil themselves of a continuance to properly prepare their witness be was the corporat may please the court my name is george alex ickes and i represent the united states this court should affirmed the district court's determination that four hundred and thirty thousand and seven one hundred and one dollars and twelve cents should be forfeited from the defendants as a and was not deficient instead what the record shows is that defense counsel vigorously challenge the government's proposed forfeiture amounts that forfeiture amount was disclosed to defense counsel thirty days before the sentencing hearing in the july two thousand eight hundred submission and supplemental government's version of the offense that was provided to defense counsel and probation and in that submission the government provided in detail the methodology that it had used to reach that initial figure of six hundred and ninety thousand dollars thereabouts and it attach spreadsheets that substantiated that  amount in response to that submission one month before the sentencing hearing defense counsel raised an issue with the government's methodology and that was with respect to these in the inventory of american made parts that came from this company called f j w industries and defense counsel because it had reviewed the government's methodology and understood it recognized the potential pitfall in the methodology which was to say that the government had not accounted for the fact that perhaps the defendants had been fulfilling their defense department contracts using american made parts for which they did not need to obtain licenses or permits in order to comply with the arms export control act and so the government and response to defense counsel's objection modified its methodological approach and then the day before the sentencing hearing again responding to the defendant's argument defen government essentially moved off the starting point of its of its analysis and so essentially credited to the defendants a number of proceeds from the business proceeds even for a time  covered already by their criminal conduct and so the point being is that defense counsel was far from deficient and their performance in the district court this this stuff alone indicated that they understood the government's methodology and effectively mounted a challenge to it reducing the government's overture amount from an initial figure of approximately six one hundred and ninety thousand dollars to five hundred and fourteen thousand dollars and then at the sentencing hearing itself the defense counsel continued to evidence the fact that they were prepared to continue to challenge the government's proposed forfeiture amount they thoroughly cross examined defense counsel thoroughly cross examined the i r s agent who testified about the government's forfeiture calculations they propose an alternative forfeiture calculation and as a result of these efforts defense counsel extracted yet a nd significant concession from the government at the sentencing hearing further reducing the government's four for proposed amount so we started at six hundred and ninety thousand before the sentencing hearing the government lowered its forfeiture amount two hundred and fifty one four thousand then during the course of the sentencing hearing based on it at a different challenge the defense counsel then raised to the government's figures the government made another compromise and we move toward the final figure than eight hundred and forty three zero dollars that forfeiture amount which represents nearly a forty percent reduction from the government's proposed original proposed forfeiture figure so again far from being deficient defense counsel's performance in the district court showed that they understood the methodology  well enough to mount these challenges up aside from deficiency there's also this question of prejudice which defense counsel really did not address in his opening arguments defendants have not shown that there's a reasonable forfeiture amounts instead what they make are very general general arguments about what could have been done what should have been done in order to reach a significantly lower number without ever really identifying what that number should have been what other methodology could have been used what other evidence or what other witnesses could have been what other witnesses could have testified at the hearing or more specifically what other testimony the district court could have heard that would have led the district court to adopt a different lower number and judge you had a specific question about what we're looking for here are we looking at net proceeds or gross proceeds and i want to direct the court to the statutory language  particular eighteen u s c section eighteen thousand one hundred and eighty two dollars in this context defiance proceeds as proceeds less direct costs and so in this type of case where you have lawful goods that are being provided in an unlawful manner proceeds for purposes of forfeiture is really profit and the government incorporated that statutory requirement in its methodology because it started with looking at the income the deposits into the defendant's bank account and then subtract it from that number after having isolated which deposits were related to its defense department work subtracted from that number of the cost of doing business mystically otherwise what would they do correct as i think that my understanding from the record is that the defendant's motivation and having these parts procured in china was because it was a lower cost to that and the problem is that they ran afoul of export import laws that require them to a teen licenses and permits before they could export what we call the technical data which is really like the blueprints for constructing these component parts in china they didn't obtain the permission necessary to export that blueprint data to china and they did not chain permits or licenses in order to import the finished products from china into the united states and so they're doing all of this and supplying the department of defense with these parts that appropriate europe in china without disclosing the fact that all of this all of this procurement work has been done without the necessary licenses and permit information is being provided to china without the necessary government officials knowing that that's that's the case and then there's nothing stopping china at that point from then transferring the knowledge that it has obtained from the defendants to any other country that china