case raises a very important issue and that deals with the pretrial restraint of assets in a forfeiture proceeding once in a while we look at the cases that the u s supreme court takes up as an indication as to what the courts believes important in my world which is one of forfeiture i notice that the last two years the supreme court has taken up two forfeiture cases there is one in the pipeline now as well which will be heard in the next term so this is an important topic which one is look and i knew you were going to ask me it starts with the t v and i will get it for you yes but that is certain has already been accepted and from what i read from the supreme court blog appears that that's going to be reversed as well and think what's interesting is that virtually all of the forfeiture cases that have gone up to the supreme court have been decided in favor of the defense and part of the reason for this case why we're here is because of what is the overreaching of the government in this particular situation just a little background on the forfeiture finally civil forfeiture was the way to go prior to two thousand and then congress passed the civil asset forfeiture act of two guns cast the vote was overwhelming it was four hundred and ten to twenty five something like that in congress a lot of that you do not hear on and not only that and i believe no representative hyde is deceased now but henry hyde from illinois and john conyers from michigan two people who probably don't agree on what day it is today they were the co sponsors  passed overwhelmingly was signed into law the reason was because of all of the abuses under civil forfeiture from all over the country and kaffir was supposed to push the government to use criminal for as opposed to the enron proceeding so that at least in theory there would be less abuse in the forfeiture what's interesting about this case is that the restraints in this case in your honour's one notices that double captioned case there's a reason it's a double capture case because the restraints in this case for virtually all of the property that i'm interested in any were done in the civil case so there were the civil restraints and then there were a couple of planes that were involved in the criminal proceeding but even the lower court acknowledge that we were keeping the double caption even though in effect the civil case was put on hold pending the criminal prosecution so when we look at the standard that was applied below the government talks about a low standard forfeiture is unique forfeiture isn't the reallocations are not sufficient an indictment to use the term of the former new york state supreme court justice we all know those of us who've been prosecutors that you can indict a ham sandwich the standard is very low as far as that's concerned but with forfeiture it's different and when you're dealing with pretrial restraint of assets the supreme court in the last two years made a huge distinction bright line between tainted and and there's a reason for them we allowed the pretrial restraint of tainted essence because of one of the legal fictions in forfeiture which is the relation back doctrine so at the time that the defendants alleged have committed the crime that's when the property is subject to forfeiture but that's only when you're dealing with proceeds from when you're dealing with untainted assets the important thing is that is as the organization this is these are successful business people they're successful business all seen them there and they are in business and they remain they remain a not alleged to be selling illegal items and these very nice looking businesses which is only part of it there's also the rap it's camp lodge which is a hunting and fishing and hiking lodge in alaska no claim that anything improper happened there there are the businesses that real property as very short time period of controlled substance and a lot less controlled substance anima as runners know is like a controlled substance that's why it's and prior to two thousand and fifteen the government used controlled substances analogues just like it did with drug cases years back it was it was the thing to charge but mcfadden came down in june of tw mcfadden said that you can this court is well aware of it at least i know of two cases in the last couple years that the court as the fadden said that when you're dealing with controlled substance and yes you have to prove that the defendants knew that the controlled substance analogues that charged in the indictment were in fact controlled substance analogs or that they knew the features that made it out to be controlled substances so let's look at what the at the documents in this case choose atory documents say about the fact that's going to be a very short look because the answer is nothing will make what makes that remarkable is that mcfadden came down in twenty fifteen there had been an indictment in this case there was an arrest in twenty fourteen there was an indictment there was a superseding indictment in twenty  before mcfadden came and then after mcfadden we filed their papers which are the result why we're here today using mcfadden as one of the reasons that property has to be returned so the government filed a second superseding indictment and the language that is required under mcfadden was found nowhere in the second superseding indictment it wasn't anywhere in the amended civil complaint either so then the government filed a third superseding indictment and rule waiting for that mcfadden language to be put in the third super city and nothing was added so as we stand there and i'm i'm we can talk about the use of proof but it doesn't matter which burden of proof you're looking at because there is no allegation in any of the accusatory instrument civil or criminal in this case but there is no allegation here regarding the men's room and here you have i think of it and i understand it's an adult oriented twelve stores adult oriented we'll get into whether we attend them or not but the point is this is kind of like a wal mart in the sense that we're only talking about what sold on a couple of shells so this isn't an illegal business in fact the government has conceded such by allowing them to continue to operate they so many other things and more importantly as this court has required there is no allegation regarding the percentage of bonds that ha been restrained that are directly traceable to the sale of the spice so one thing that is not in the paper is the means ray of a point that is required by government must prove must state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof for trying well why isn't that met by the facts rather than using magic words like so if i may be implications from kind of how they're going about things are they know what they're doing and so i i i have no understanding as to why a prosecutor being faced with a federal u s supreme court decision superseding their indictment twice would not include the language call that the magic words you're in a mansion but the mens rea re violated if they don't use the magic word but they give you information that supports a conclusion of knowledge and that's good enough it could that's what i'm saying but at the i mean i like the court was clear on the money of more money laundering but the lower court had a problem here and it was difficult not to have a problem because you faced with a supreme court decision in at least two fifth circuit cases that say you've got to use in the bad language and the reason we can see the lower court had a problem is civil side it could also be sufficient for the plausibility test under it bout one thing but when you're dealing with forfeiture it's a different animal than it reasonable probability and that what we're talking about that's what we're talking about for the what we're talking this deals with the sufficiency of the forfeiture complaint we're talking about the next step we're talking about restraint of untainted assets we have here more than ten million dollars in untainted assets that have been proven and the government can take the time to put just judge haynes magic words into the second and third superseding valdez and in the demick decisions both of them talked about the purpose of the transactions having to be to conceal or cover a mask one of the various elements the nature of  location there was none of that here not only that in the recitation of the facts by the court the court didn't say otherwise we're talking about a business that has a main bank account each one of the stores paid and then ultimately those funds go to the main account the headquartered account if you will and from that the the business will purchase planes for the for the large which has been in business for more than since one nine hundred ninety s pipe has been in business since one thousand nine hundred seventy almost fifty years they have not changed the way they've done business from day one so according to the lower court and according to the government on march first two thousand and eleven the date of the first alleged him and unlawful activity the the procedures that the a business had in place  february twenty fifth suddenly became improper nothing changed the government talks about you know went from one account to another well this court was one of the forerunners in that area and the tenser decision in  not only can it be traced although they haven't bothered doing so knowing the pledges that it went from you know kessler account to see if accounted jones account to hide or mask the nature of the transaction on march first two thousand and eleven no one disputes there was more than ten million dollars in the accounts of yes by the government claims that starting on march first two thousand and eleven they began committing illegal activity that the business use the same accounts no masking of one account versus the other they used they put the money that they were and on march first in the same account that they used on february twenty eight if they were done in each one of the stories they were done in more than one of the stories but the funds that were purchased for the rapids camp lodge which is a fishing and hunting lodge in alaska i understand it's beautiful maybe someday i'll get there i had k it were were perfectly fine purchasing of the plains the bush plains was not covered not masked in any way you have saved bank and in the rosies decision it prohibited mr white in that case from conveying his interest in a piece of real property floyd restraining order was found under twenty one u s c eight fifty three which specifically says that if a party violates that restraining  well this court and the supreme court have long held that the interlocutory review of cases is disfavored and that the statute permitting a must be narrowly construed and this court i believe would be the first court to permit interlochen to or review of an in room only seizure warrants under twelve ninety two and one in florida in the rose east and the court found in a like it or just jurisdiction was appropriate because in those two cases the district courts had ordered issued orders that directed the party to either take an action or refrain from taking in and we put those cases squarely within twelve ninety two what if the parties in this case what if the defendants did something to contrary to the forfeiture of to the to the i'm  sorry seizure what if what if they did something contrary to what would happen and well i understand that you are i think you'll be some sort of separate action some sort of separate crime or torture something to that effect but since the order at issue here was directed at property and not at the parties it what  that really mean i understand the list bans pendants concept they can't sell these gaspipe entities but what does it mean visa v that counts what does it mean these are the anything else besides simply selling or not selling the real property so in this case your honor with respect to the personal property at least the government side of tain civil seizure warrants which allow the government to have you know essentially seize the property at issue and so the government is allowed to exercise control over that property and as a result some of the problem is physically season with respect to the money in the u b s accounts it was just frozen in place so this case is more on all fours with two cases the government side and grief united states versus  versus michel's lounged in the first second circuit and seventh circuit in those cases the courts were facing just like the court is facing now the decision of whether or not it had interlocutory jurisdiction to consider challenges to n ram only seizure ones and in those two cases the courts both found that it did not have interlocutory jurisdiction over the property restraints the seventh circuit i think put it best indicating that the injunction analogy is inapt in a situation like the one before the court today where there are in ram only property years i have to go without my money i'm the owner of gas pipe having made that showing your honor i might agree with you but they have not made any showing to that effect here they have asked so much other money they can pay this fine lawyer to come and make the argument without the frozen assets as your position that it absolutely your honor and how they needed the money to pay for an attorney they i'm sure would have made that argument how they needed the money to continue their business as i'm sure they were they would make that argument but having failed to make that  your honor that under the classic cases rule if this court were to find jurisdiction over this situation where there is no irreparable consequence alleged where there is no one review ability on final appeal the court will be required to consider on in their life atory basis challenges to all civil seizure warrants circuit wide of which i understand there are thousands a year even in the absence of a reprimand circumstances and without regard to the qualification so when somebody is arrested and their gun is seized you're saying that would be immediately appeal cannot immediately appeal the grand jury finding that's put their liberty at stake earlier you distinguish the fifth circuit cases melrose in florida on the basis that the orders in those cases probably it was wrong were directed correct and these are in ram that's exactly right explain to me that the thinking behind the government seeking in persona asset seizure or whatever the term is versus in and rahm i think there's a number of reasons why isn't   or an indictment based on that indictment of the grand jury makes probable cause finding then based on that finding that the government might obtain in persona more but i believe the standard for a search for example a criminal seizure warrant you have to demonstrate that there's no lesser consequence or no lesser restraint that's available and so there's a variety of practical reasons the government and i appreciate i don't want to prevent us from getting there it's understood with me and so with respect to the merits of this case i'd like to first discussed  fact this court and supreme court have long held that probable cause is the correct standard to apply when considering whether or not a pretrial asset restraint is appropriate supreme court so held in the monsanto case from one thousand nine hundred ninety and more recently in a kill a decision in two thousand and fourteen primary difference is when assessing when using the probable cause standard the question is whether or not there is probable cause to believe that the government will ultimately demonstrate the properties for them and the reasonably standard only assesses the sufficiency of a civil forfeiture complaint and so that leads me to the next point of why the reasonable belief standard just is inapt here because there's multiple operative documents which help them straight as probable cause there is not that not only is there a civil forfeiture complaint but there's also indictment so it's sort of beyond me how standard is only been applied by district what about this stuff that their ranch in the plains and all that are not part of the sale of spies and alleged wrongdoing well they don't have to be your honor the government's operating under several forfeiture theories there's of the one forfeiture theory that the government is entitled to seize and alternately forfeit the proceeds of the crime and the way of thinking about that is that's the robbers and loot from a bank robbery or the money a drug dealer mix from selling drugs used whatever property they directly of teen as a result of the office were also operating under a much broader statutory forfeiture theory which is all the property that's involved in a money laundering offer so that allows us to seize and alternately forfeit not just the money that's being laundered the dirty money that's being laundered but all the property that helps facilitate that laundering process so that can consist of a number of things a consistent a business or clean money in a bank account that helps clean the dirty money but we're also operating under a separate money laundering theory in parallel and that is the mo money laundering theory set forth in eighteen u s c nine hundred fifty seven and that statute prohibits defendants from engaging in financial transactions with specified unlawful activity generated funds like here in amounts over ten thousand dollars so if a person uses dirty money to purchase property not only is it forfeit a born or a proceeds theory like it is here but it's also forfeit was property involved in a money laundering oftens in violation of one nine hundred fifty seven so there's no reason you have to show that the property it issues involved in the lo of the underlying criminal activities so long as we demonstrate that it was purchased with the specified of unlawful activity thoughts don't want to prevent you from here argument but we heard a lot about mcfadden certainly from the opponent so i guess let's start there  so what did the did is it is it accurate as the appellant maintains that the government steadfastly declined refused did not articulate the next saddened language in the various indictments that we heard about you know your honor it's not correct what with that related to is what the government is required to prove to the jury in terms of means radio it didn't change or alter it's a district court found what the government is required to charge in an indictment the mens rea it can be implied in attached to any of the acts involved in the indictment and here the grand jury returned an indictment the indictment tracks the statutory language from the controlled substance and a long charge and given that the suit the grand jury has returned an indictment on that charge under the supreme court's fairly recent kaley case the claimant's in the court can't get pine the granger is probable cause determination so because the green jury returned an indictment on that on that count and because the counts tracked the statutory language grid the government's charges certainly sufficient mcfadden case i can see your honor we will have to prove the case differently later this year then we would have to a few years ago but that's the only effect that it has here in make fadden the government sudden i'm reading from a fat son an instruction requiring only quote that the defendant knowingly and intentionally distribute a mixture or substance that was a controlled substance analogue with the intent that it be consumed by humans yes and that in my right that the supreme court said that's insufficient correct john and i forget the precise element to which the government alleged in that case what the mens rea had to attach to but the supreme court did find that it was incorrect ok is it did did the indictment in this case use that same language i don't know the answer in that you know if it did does that mean it's not sufficient no your honor i think all the indictment has to do here is appropriately track the statutory language from the controlled substance analog statute and then once we get to trial you know we will have to prove the case to the jury and instruct the jury in a way that is cut doesn't the indictment have to reflect the elements of the case it does sort of the basic premise of an indictment certainly  make that decision to not alter the elements of a controlled substance analogue charge it revise what the government must show the mens rea attaches to when it ultimately takes because it includes the showing that you have to make  i know it's not a showing that you have to make a trial but doesn't next fed influence the showing that the government has to make in order to justify the pretrial civil seizure forfeiture i don't believe it does and i think it's again worth remembering that the an indictment that first step is satisfied and the claimants cannot get behind that decision so all we have to demonstrate is a regular kaley holds that's exactly right that's right that's what kaley holds but but here you've told me that the indictment may or may contain the line may contain the language that wasn't ok in that fashion i think the language that was issue was not the charging language but the grant but the jury instruction language that i don't believe the court that and i think that's right it was an instruction it had nothing to say about the charging document i think it was just  does the mailing wire fraud charges which again the grand jury have returned true bills on those independently support the proceeds theory in this case and those proceeds will laundered through the same web accounts that the  illegal controlled substances were directed through so under under again a detail leaders granger is returned an indictment against the against the defendants for mail in wire fraud and in the and then a complaint for forfeiture we have shown how the property she was connected from the from the charges to the property the money went through a complex web of accounts it went from these operating accounts to u b s accounts what was coming gold with some clean money and dirty money and some of the u b s accounts were used as collateral for other u b s accounts and then from there went on to purchase the real and personal property so even if the court has an issue with mcfadden language and again we don't think that should  the mail in wire fraud presents an alternative basis for the court to think about the specified on what all the unlawful activity funds that were involved in the money laundering conspiracy if forgive the potentially don't question but those other crimes the in the criminal side two thousand and four in the civil restraint restriction and we have both here the reason we have both is not my fault your honor the reason we are both is because the government chose to use both we have  you would be seizing the person and in rem seizure is seizing the seizing property or restraining property or restraints deal with restraining property unless there's something that i do not know  as far as age fifty three is concerned which the government mentioned which is the criminal forfeiture statute eight fifty three he actually usually uses a substantial probability standard as far as  restraint is concerned which is higher than the probable cause and a higher i would argue than the new g standard as well so i'm happy with the substantial probability standard because the government's not going to be able to meet that either i'm the