mandatory victim restitution act as a whole endeavor is to balance the victim's rights restitution against the defendant's needs for subsistence and to do that in a way that minimizes the administrative burdens on the court that's what the supreme court told us and lego's and given that entire statutory purpose sort of framework and those three purposes we think that the best reading of section three thousand six hundred and sixty four and is that is a limited exception to the ordinary process recovering that applies only when somebody receives substantial assets after having been sentenced to a period of incarceration related to the judgment th gave rise to the restitution so the question of what it was really what the what is the meaning in this context there's been course ration yes right and it's not any your view is not any period of course aeration in your view it's a period of incarceration connected to this sentence could be another subsequent period of incorporated or incarceration after another conviction not pretrial but after another conviction could have been your honor we think the best reading of that phrase period of course ration consistent with the statutory purposes is any period of incarceration related to the judgment that gave rise to the restitution order we think that it's the statute doesn't say that it does not say that and congress could have had the statute say that it could have and at the end of the subsection it talks about resources to any restitution or fine still owed so the congress clearly and obviously contemplated that this  s a period of incarceration and obviously after the restitution in the original case was awarded and so could have made it clear that it only applied to either post sentence or incarceration for the instant offense a consist that is the reading period of incarceration as the government desires so that it applies to pretrial detention so that applies to any period of custody regardless of duration or purpose regardless of jurisdiction schedule and does make payments according to that schedule that's ordered by the district court if that person was taken into custody for several days on a state warrant and released but received a paycheck during that period even though the person had done nothing at all to violate the court's order would be under the government's rating of three thousand six hundred and sixty four dollars and would be obligated to discords that money because it was received and in the government's view substantial during a period of incarceration which the government defines as any period of defendant's right to subsistence but also the the victim's ability to collect restitution it also point it also creates some of the same dilemmas that this court noted in latimer that was the case involving the guideline we use of the  phrase period of incarceration in that case one thing that was important this court was that it ended up to the practical result of the government's interpretation was to treat people who had the means to get out on soup on bond pretrial differently than people who did not have those means and so here for example if the government if you accept the government's view of this then somebody who is able to pick cash bail or some of these families able to pay cash bail and then receives a paycheck will have that paycheck supervised court asked me to address two questions the nd one being whether it should be limited to the to the offense of conviction originally and i've argued that it should apply to any theory to a car version related to that primarily because of what the court supreme court says in lego's about the desire to minimize it ministre to burdens and you can imagine a situation where there is a you know a reading that that it doesn't matter where the jurisdiction of confinement is would set up conflicts between say two federal judges to a federal judge and a state judge state authorities all of whom want to have are producing or engaging with the person's finances in some ways to decide the case in front of under your view the lottery winnings no absolutely not and to be clear we're not suggesting that i don't porton part of our argument is that there are other provisions that would apply in the under those circumstances so for example on page  twenty seven of mr lillard opening brief for example he complains that you can't use three thousand six hundred and sixty four and because nobody had ever made any assessment of his of his sort of assets and needs and he says and this is sort of consistent with what's going on before the court deciding pov and he says look what you ought to do when you have don't have that is you want to proceed either under three thousand six hundred and sixty four k i believe which requires modification based on a change in circumstances mood for several reasons st there are there are other issues besides the ones i was asked to address before the court including the question of whether or not it was ever appropriate to use th when there had never been any assessment either at the sentencing or subsequent about his financial circumstances and he preserve that and i think that that's an issue that is not addressed by the question of whether or not he's in custody  you limit the holding to this statute does not apply yes to a period pretrial detention what happens then the government would return mr money i suppose and then we would proceed from scratch so they would then could they would have to use a different mechanism to then three thousand six hundred and sixty four dollars and to try to collect his money both because they would be under no obligation to show the money was received during a period of incarceration and this court's holding would conclude would conclude that it was not and then also because this whole procedure of the entirety of the mandatory visit and rest only really works if you have a only works if you have some sort of baseline analysis of his financial situation and i would note for the court and i see i'm running out of time that that mr lillard did make an argument for the district court that his subsistence needs were not zero that he for example needed money to contact his family that he needed money to pay for commissary expenses and in the one good morning your honour's may please the court i'm kyle forsyth on behalf of the united states i plan to st address the question that the court raised in its order last week and then discuss the merits of the statutory interpretation question and of course if the court has questions about other issues i'm happy to address those as well with respect to newton as this court has held that the standard for deciding whether an appeal is moot is whether the appellate court can give the a effective relief if it agrees with the appellants view of the merits of the case and applying that standard which just to cite a recent case from the th circuit a two thousand and sixteen decision that articulated period of detention so you got to go back and try to get it a different way and you can't get the whole amount you may not be able to get the whole amount so i had to seems to me as though there is some effect or relief here your honor our my answer to that is that if the court were to agree with mr loads interpretation of the statute and word order as a remedy to restore the money refund the money to his bureau of prisons in may trust account because of the change in his custodial status he is now undisputed in post conviction incarceration because of that change three thousand six hundred and sixty four and now applies to him and even under i think not necessarily because it's received only in a very special sense you've just given him money back that you already owed him that's not receipt it was promised originally on the receipt when he was in pretrial detention no i'm not i'm not sure that's why i'm not one for you i understand your i understand your point your honor our argument would be that that  receipt of the funds during a period of incarceration from you would say it was it was from any source even if it probably wasn't a source particularly contemplated by the congress yes your honor that the statute is broad it says received substantial resources from any source and so it is an all inclusive phrasing that that the court used to not sure i'm sitting on this next case but if you're trying to argue to me that  on their side right but some of the holding for them on the question of pretrial detention money wrongfully seized by the government st time around now restored to him now comes back under precisely the same section as a result of your wrongful seizure is no receipt and you get to do it all over again that's uphill work well your honor if i could turn to the merits question i'd like to address that and i think it's important to understand the and legal context in which the district court's payment order was entered from the moment of mr lillard conviction in one thousand nine hundred and ninety eight when he was ordered to pay seventy nine thousand dollars in restitution all of his nonexempt assets all of his property and rights to property were subject to a statutory judgment lien for the benefit of his of his crime victims and so this six thousand six hundred dollars was was never his free and clear it was income by a judgment lien and there's no dispute that that was he under some sort of a payment schedule for us to sion he was not no he was not it was in an obligation so before before he was taken into custody was he under an obligation to simply hand over all the money he had when you say there was a just a little bit payment schedule i mean what would he supposed to be doing in terms of restitution before he was put into this we tell the country that his criminal his judgment said that his his restitution was d immediately but the judge did not impose a a payment schedule so he did not have an affirmative obligation to be making monthly payments at the same that a debtor who has a payment schedule would be obligated to do however  unfortunately since his conviction in one thousand nine hundred and eight has spent the majority of his life in prison or while out of prison in gauging in further fraud schemes he's had two subsequent federal convictions since that time and so our ability to find him in gainful employment and find assets and income that we can collect has unfortunately been minimal but when we found out about the six thousand six hundred dollars that was in his inmate trust account we looked to the statute that we thought was applicable th and sixty four in substantial resources received during a period of incarceration broad unrestricted language that should apply to any period of incarceration of counsel if the court disagree with you with regard to pretrial detention the government would not be remedy loose with regard to the six thousand six hundred dollars that could go under an alternative section that's correct to the government would not be would not be remedy lists there argues that there's a clear distinction between those terms and how they're used in the statutory scheme but as we point out in our brief the word detention is also used in the federal habeas statute in two thousand two hundred and fifty five easy to refer to a period of post conviction custody and i would add to that eighteen u s c five thousand and thirty nine dollars which refers to which uses the term incarcerated to refer to both inmates who have been convicted of a crime and importantly those who quote are awaiting trial on criminal charges and so depending on the context detention and incarceration are both broad enough to encompass both you have a pre and post convi context i think is critical you're looking at a statute that says that sets up the procedures by which the court with the assistance of probation office and so on determines the amount of restitution and then at sentencing imposes restitution talking about one proceeding at the end of which there is a period of incarceration and we're not talking about some later prison where he may be in preacher all custody that may or may not result even in a conviction  incarceration here in the context of a judgment debtor who owes restitution to his victims whose money is in cumbered by a judgment lien and the overall purposes of the m v are a which are to ensure to the extent possible the full collection of restitution for victims of crime oppose the panel or to determine that the phrase period of incarceration is capable of two meanings that a reasonable person does the panel do in that circumstance i would urge the panel to again refer to the overall purposes and objectives of the m v ira which is the statutory context in which you find this phrase and ignore the rule of l to ignore the rule of lenity but to find that the rule of lenity does not apply to this statute which is purely remedial it does not prescribe criminal conduct and it does not impose a penalty it's some thought was precisely the purpose of the rule of limiting that when you have a statute which has criminal overtones and the phrase within that statute can be read legitimately one of two ways to use the baseball analogy tie goes to the winner your honor in  barber v thomas and in the fall co vs united states i believe the supreme court has as applied the rule of lenity in a more limited fashion not just to any statute that touches upon criminal subjects but to statutes that either define the scope of prohibited conduct or that impose a criminal punishment and that's not what the sixty four dollars and does so i would urge the court to to interpret it in a way for the benefit of mr levelers victims there's no unfair surprise to him here again his money his assets have been subject to this judgment lien since one thousand nine hundred and eight and on that basis the court should should hold that it applies to him and i realize we're taking over time my problem is not with protecting m and my problem is that what if we hold that subsection and applies any time someone is in pretrial custody they're going to be a lot of circumstances and we were suggesting one or two  lillard i don't care about mr lowered that's the promise of what i just said right so applying it to restitution debtor who's in pretrial detention or pretrial custody  doesn't work any unfairness to that person because that is what if he's on a payment schedule it has been making conscientiously and he gets a paycheck and all of a sudden your view of the whole paycheck goes over even though he turns out not guilty  period of detention last a couple of weeks he's out but meanwhile you get a paycheck that's that's the argument how do you respond yes well if you were to take that paycheck and put it in a bank account if you were not in custody if you were to take it and put it in a bank account it would be subject to collection garnishment no no the promise is that he's on a payment schedule and he's making the payment schedule on him i'm just making it up is fifty dollars a week he gets his paycheck for five hundred dollars and under your theory the whole paycheck is all of a sudden applied restitution because in pretrial detention that mean i was the argument you heard it yes your honor but the payment schedule is a minimum obligation that the defendant has to meet it doesn't protect his other assets ok thank you