court counsel i'm lisa hay the federal defender for oregon representing mr bush i'm asking the court today to correct decades of error in the interpretation of criminal forfeiture statutes as judges scanlan said curiously current precedents results in a counterintuitive interpretation of forfeiture under which a person can be ordered to forfeit something they don't have in light of the supreme court's decisions in honey cut and lagos because i brought to the court a new statutory construction argument that had not been considered by any court in a published opinion this court is not bound by prior cases as i'd like to discuss later and instead can actually to eliminate this problem in forfeiture before i address the arguments in the brief i did hope i could point out some specific arguments or problems about forfeiture generally that might help us the st is there is some seeming confusion in the case law about the links in persona jurisdiction and personal money judgments and of course the concepts are not related in persona jurisdiction is in contrast to interim jurisdiction which was needed when under old law to forfeit a thing the rez so that's why we used to have for example cases united states versus one ford motor car because you had to bring a case against the thing when congress enacted the forfeiture statutes they said they were eliminating that distinction and so now everything could be brought in persona stiction as in this case against mr new shot but that doesn't have anything to do with a personal money judgment and some cases seem to refer to an in persona money judgment it's just and measuring two concepts that i know this court won't do but in one of the cases cited by the government in their twenty j letter they seem to be on that path  did question one of judgment and what the justices question there's a lot of things the justices do up there that i i don't have time to listen to frankly i saw i have to read what they say so i looked at the honey card and i said to further the remedial purposes of the forfeiture statute by ensuring that all eligible criminal defendants receive the mandatory for put your sanction congress intended and disgorge their ill gotten ga even those already spent and then i have newman which says where the proceeds of the criminal activity or money the government may seek a money judgment is a form of a criminal forfeiture where the government a money judgment a court may only be determine the amount of money that the defendant will be ordered to pay that's exactly what it says that is your honor and here's my response to that the executive branch and the judicial branch ha created this extra statutory money judgment to address exactly the problems you raised but congress didn't allow that congress created two ways to address this problem to take this on ball you know we don't need to go on bond because no other  i don't see anything in any case you cited or any case that's in front of us which says what you wanted to say you might be trying to infer bully from what was argued in the corridor what they might have questioned about or what judge address the problem of the defendant who spends his money on wine women and song that's the argument that's the wrong the court has done the wrong thing the court has created a judicial mechanism but congress already legislated in two ways how to address that problem the st is in the substitute property section eight hundred and fifty three p if the defendant has spent all the proceeds the congress said that the government can go to the court and say we'd like to take substitute property so if certain conditions are met they the government can say we'll take the house that you bought way before the crime was committed that's one way but what about what about that at this point they have to sell the house right and get the money from the house right exactly and so that's what you have to do with substitute property but what about the defendant who both spent all the proceeds and has nothing left he has no property that's one of the things the court was concerned about but congress created a special a specific way to address that in the same forfeiture statute congress created a criminal fine in the same section eight  three a congress states that the courts can impose a fine of not more than double the proceeds from the crime so a criminal fine would address future earnings a criminal fine would address this problem of a defendant who has no money to take now but we're going to find them and it would solve this problem that we've created where we're claiming to forfeit a money judgment but the money judgment is not property in money judgment is a debt an obligation and so under honey as to whatever the day the judgment is and no property beyond know that there isn't a clear case law in that your honor i think at a later case i would argue there's a statute of limitations there's a five year limitation on certain judgments but there's not case law on that because i don't think this argument has ever it's correct that if if your money judgment is simply a fact finding about the amount of proceeds that would be owed is the same page twenty four dollars and if it's correct that i'm forward your money judgment is not an independent debt that would be collected i would concede then the court could affirm the forfeit order and issue an opinion saying this is not a debt that can be collected it's just a statement about that's what i don't understand because i thought your whole complaint was that it didn't shield property that he would acquire in the future and that's why i was asking how courts  fifty three p because the government just says we're going to have to go back to court and prove that whatever property we now want to seize actually can fit within the substitute property provision and i thought you were going to say no no no that's not ok because right now let's he's i don't know if he's destitute or not but you're concerned about property he might acquire in the future so i think there's two concerns there one is i'm concerned that they don't even go back to court that my argument is the money judgment serves as an end run around eight hundred and fifty three dollars p to begin with and i stand by that argument unless there is a statement that it's not used for collection even if the money judgment can't be used separately for collection i think then they if it's a statement of what proceeds someone could if there were property the government still has to go find that property and i think there could be a later dispute about how long can they look for property can it be later acquired property that case law really hasn't been developed i think to say the last minute for about a five ok let's hear from the government really just as your honor some pointed out a calculation of the amount that the defendants obtained from the criminal activity but hid or spent it was not available at the time of sentencing can you just pick up where we left off with your  opponent or at least where i left off i am trying to figure out what your position is as to the nature of this judgment that you've been given and how it can be collected so can you just kind of explain how it relates to a fifty three  and and your opponent's concerns about this being you know what if you got a tax refund and you know next year that that money could just be seized immediately to satisfy this that yes your honor money judgments can only be fulfilled through the procedure set out in a fifty three dollars piece and rule thirty two dollars the administrative offset provisions that counsel has cited don't apply to forfeiture money judgments and when you look at the actual statute of the administrative offset  provisions the definition of the type of debts that go in there are deaths that are past due and delinquent for one hundred and twenty dollars days forfeiture money judgments as you can see in the record on our six just do not have a due date and do not have a payment schedule compared to restitution which has a d date and a payment schedule therefore they are not passed you are going to and they don't fall into that category the statutory scheme is set up for my judgments to be work going forward so let's just say i don't know if that's true but let's just say as of today he has number money he's paid back the portion on the restitution and he's now broke so there isn't any substitute property today that the government could claim one hundred and fifty three p right correct ok but let's say i don't know next year through whatever means i don't know if he you know he does his father property there you got exactly right it's just new property that he definitely had no interest in as of today but a year from now what then how do you how are you able to go after that property i just want to get a sense of how a fifty three people used to that as ugly so once the government has identified property that the defendant owes the government can go before the court and if it isn't the court is not already made findings under age fifty three p one then they would ask the court to make those findings and provide evidence to support those fine once the court has made findings under a fifty three dollars p one then the government can seek to amend the final order forfeiture that sets out the amount of the money judgment and in that amendment it would then include that property that the defendant inherited from his father as property forfeited to the guy the government then be responsible for selling it and apply the proceeds of that property against the money judgment reducing that amount so the government's view then is that with respect to any future acquired property the only way you could sort of get your hands on it is if you actually went back to court and got the order for the forfeiture judgment amended to do encompasses that's correct and that's explicitly what's complicated or contemplated and rule thirty two point two it lays out that the court has jurisdiction to amend the final order forfeiture to include any subsequently located substitute  that that was my concern and so if you should proceed with whatever else you if the court has no further questions i ask this court to affirm based on preexisting th circuit precedent thank you thank you very money judgments cannot be collected as debt that only if the government goes back in front of the court under a fifty three dollars p can they were to enforce those we would believe that would certainly protect many criminal defendants from unlawful and runs around a fifty three dollars p all i was going to say is judge wofford did a far better job of mediating this case than i tried in another case we had previously that's between us but i'll just say i thought you would say the same thing when i agree yes your honor of course i don't think the statute allows for the idea of money judgments but because a money judgment is ordinarily in a civil context considered a debt that has to be enforced if this money judgment is mere a fact finding about what money the defendant would have to pay if he had property it's a completely different standard and i think that's a fair that's fair under the statute for the court to make that finding and then it's up to the parties to apply the statute to