did you raise any what did you raise in the district court with respect to what when where have you raised it before us just so that i can focus on one thing and you're out of that's an excellent example that is one of the assets says to which you're talking about well right now we're talking about a family trust as to which i don't believe that there is a  in the district court the answer is yes in that to answer your question in the district court we specifically put the f c c to its burden of proof to show that the defendant was in equitable owner or that the relief defend relief as to which there is no no allegation of commingling or any similar issue and as to which the f c c took the position that the relief defendants were mere nominees but did not even attempt to present evidence to satisfy its burden of proof on that you in our briefs before this court yes in our in our reply brief your honor we responded to the fact that the f c c had focused only on three assets in their brief and we noted that in our post hearing briefs before the district court and i only know what evers and so i'm asking you where you say that quite apart from the apartment and the salary the combing the bank accounts and all that there is a of but you've got a whole bunch of other assets that you didn't break so why don't you tell us where the district court went wrong on those respectfully we raised the issue in our in our opening brief c had the burden of proof as to all assets that were held by the relief defendants and that it's squarely addressed even if we did not denominate specific specific assets error is i mean we've got a park avenue apartment now that the argument of the f c c is that with respect and the district court's findings are that this was if the car is money channeled through the various entities that are identified by the district court that the relief defendants contributed nothing to it and that's why that piece of property is subject to the freeze order you want to tell us what's where the is there i can certainly address the three specific gas it's of the court would like which is what i understand you to be asking because i assume you want us to lift this free and if your argument is look it's defective as to all of them you're going to have to show me that when you're on our  position is that under this court's under this court's decision in s c c versus kavanaugh the relief defendant's liability is limited to the proceeds of fraud in the hands of the relief defendants liable  whether the relief defendants are treated as nominees which will allow which would allow a freeze of assets beyond the amount of the proceeds of fraud so that's why the existence of all of these other assets is important and it's significant evidence that we believe was presented to the district court but i believe that the court could could reach a finding in this in this case on appeal based on the failure of the district court in the failure of the f c c to take on each individual asset its relationship to the defendant i hope you understand that when i've gone back and forth for now six or seven minutes on an asset and you have no response particular issue is that ms specifically testified during the hearing on the poor mary injunction that her husband was diagnosed with cancer at about the time that the transfers of assets occurred and that they transferred assets into various holdings that were controlled by her or by the minor children in order to proceed to accomplish estate planning goals as advised by their estate counsel so this is not a case in which a a defendant has placed assets into the hands of a person to act as a as a sham nominee simply to hide assets differences i make i mean if i don't understand what difference it makes it may be have a laudable motive for for transferring the assets to the relief defendants but they're still assets that he transferred to the relief defendants the point your honor is that the jurisdiction of a relief defend its is limited to the proceeds of fraud there are many assets that were transferred to these relief to finance that are not even alleged to be at  gotten gains and do they have a legitimate claim to the funds and you know just because they are state planning his fraudulently obtained proceeds doesn't mean that they they can't be frozen but no evidence was presented your honor is to look at the park avenue we've looked at the goldman sachs those wells pacifically brief and i haven't heard you in your time appear identify any defect with the findings of the district court as to those assets your honor i've begun to address and i can continue mis mr mr testified as well in addition to testifying about the estate planning purposes for the transfers of those specific assets she testified about her own involvement in decision making about the transactions in those assets that stands in stark contrast for example to the decision in the mcginn case which came to this court on appeal  conned that allows you to he'll be frozen they still may be frozen your honor if they constitute proceeds of fraud but to the extent that an asset also includes other other funds that are not proceeds of fraud if the relief defendant is not deemed a nominee the freeze should not reach those additional assets and you say that they're not proceeds of fraud i'm not sure what you mean by that i mean if the the the the principal defended the mr in the case he he secured a very large number of assets by fraud now he transferred a lot of money to the relief defendants  now why aren't those things to be considered by the court at least potentially proceeds of fraud for freeze purposes while the f c c alleges in their amended complaint approximately thirty six million dollars in assets in proceeds  fraud that were transferred to the relief defendants mr ahmed also made and there's evidence of this in the record tens of millions of dollars as to which there is no allegation of fraud so there are many assets that were transferred from mr ahmed beyond the thirty six million dollars that were transferred to the relief defendants that do not constitute that the f c c doesn't even allege constitute receipts of fraud or are subject to be frozen that's that's under the law if they are his assets the fact that he's transferred to somebody doesn't doesn't absolve them from being friends i respectfully disagree your honor if unless the case you're relying on that there are a number of cases your honor one of them is the mcginn case which came to this as smith which i believe your honor sat on the panel in which assets were transferred from the main defendant to his wife and the court went through the different assets separately to determine what the relationship was between the defendant and the asset so for example there was a stock account in the wife's name and she had provided stacks of blank authorisation forms and there was other evidence that showed that the defendant the husband  argument and that's this five million three hundred twenty one thousand dollars trust in which one could argue that there has not yet been proof that it was either ill gotten gains or own of our reply brief that was emphasizing something we had said more generally in our opening brief which was that the f c c had the burden if it wished to go beyond the thirty six million dollars of proceeds of fraud it had the burden to show that each relie defendant was a nominee as to the particular assets that are to be frozen so there are a number of assets such as the family trust to t d ameritrade account the contents of safe deposit boxes as to which no evidence was taken by the district court and you simply cannot have a blanket decision that all relief defendants are all nominees as to all assets defendant has a liability for penalties going far beyond his liability for  ford for for restitution of illegally gotten gains and and interest and the the relief defendants received large numbers of assets from the main defended and the district court made it available to your clients to identify any assets that were retained separately that were separately earned and separately maintain from assets received by the plan or something like that that was excluded because you persuaded the district court that those were separately earned assets that had been maintained in a separate place so that they could be identified as hers and not sourced from the principal defendant but other than that it seems to me that all the other assets so far as i can see were sourced in the original defendant and are and he would be liable for them that may be true to a limited extent except for two things one is that the case has to be has to be considered in the specific factual context of a relationship between a husband and wife in which ms ahmed testified about the way in which they both participated in decision making about all of the transactions in the in these assets the other is that it seems to me it helps the government well it helps your honor because even if i accept the suggestion that you've made in your question the premise  c is still limited to thirty six million dollars the proceeds of fraud that should be frozen in the hands of relief defense because relief defend its must be treated differently than defendants who are used to wrongdoing that is a fundamental principle that the relief to the jurisdiction of the relief defendants is limited to the proceeds of the fraud that the f c c is seeking to disgorge from their possession certainly the kavanagh case does limit the relief defendants liability at the end of the day following a trial and a judgment depending on whether the two parts standard has been met but there but so far as we know there is no decision from this relief well i would say your honor that we haven't identified everything that's been frozen necessarily in the hands of the relieved offense and we haven't identified ownership with respect to each of those individual assets you can't freeze five hundred million dollars  together as a single household over a period of several years and during those years any legitimate income that they earned was dwarfed by the sixty five million dollars that mr ahmed stole under the under those facts it's very difficult at the outset of a case after one month of expedited discovery to sort through all of the assets of the household assets that married very well have been shared jointly may have been owned jointly and to establish individual ownership with respect to each asset in that household what the freeze of a ha one hundred eighteen million dollars in this case is it prevents the relief defendants from spending household assets in which mr ahmed may very well have an interest an liability not only for disgorgement but also for civil penalty you acknowledge that you are not entitled to freeze in the hands of relief assets that go beyond the potential liability of the princip of we concede that if there were if there were assets that were established as being owned wholly by the relief defendants then yes the limit would be sixty five site my question is if what is the amount what is the potential amount of the principal defendants liability including ill gotten gains interest on them and penalties the total amount for the principal defendant is one hundred eighteen million dollars und eighteen one one eight zero do you acknowledge that you may not freeze in the hands of the relief defendants assets going beyond one hundred eighteen million dollars absolutely hundred eighty million is the maximum of what you can freeze in either of the aggregating anything that you frozen of the principal defendant yes relief defendants yes absolutely your honor so in addition you acknowledge that anything that the relief defendants can show they obtained separately from the principal defendant and have maintained separately so that there was no co mingling that there has to be exempted from the freeze that's correct your honor and that's exactly what happened with release in terms of the remainder of the assets we we simply asked the relief defendants to come forward and identify whatever assets they believed should be exempt from the freeze as we explained in our brief the relief defendants focused on this trust that held the proceeds of the i q transaction as well as the two park avenue condominiums and that's why our proof of proof on you on the relief defendants the burden of proof supposing the circumstances that the relief defendants have a large amount of money now do you have to show that they got money from the principal defendant in order to be able to seize their assets or do they have to come and show do they have to prove that these assets didn't come from the principle defend your honor the burden always remains on the commission on the government in these cases what i'm talking about is identifying assets that they're claiming ownership of because at the outset of the case the commission is moving in we're moving very quickly had a month of expedited discovery we don't know exactly what might be in the entire their holdings might be we don't know what the ownership of them might be i would say this is more a question of asking them to identify the assets that they want to have excluded from the frieze once they've identified what they want to exclude the burden is absolutely on the commission to show that those assets should be properly frozen and that's what happened here the relief defendants only identified the court to freeze assets and money that the relief and it's got from the principle that well at this point your honor we're not sure exactly what more they might have gotten from the principal defendant they lived together as a single household and it's it's to be expected that of course they would be sharing assets freely among each accurate now maybe it may be that we don't know where the other seven hundred thousand dollars came from the correct argument is he put a billion dollars of fraudulent proceeds in here and  know if those funds can be easily segregated and identified i mean they can be identified as is coming from him versus from other sources than yes that's the most we're entitled to under the kavanaugh standard at the end of the day want to get both ways here i mean you said that the burden of proof is on you is on you to justify the freeze or to move liability yes why don't you need to show i mean can you freeze over assets merely because she's his wife without showing that she got anything from him and i know the answer to that is no why can you freeze anything more than you demonstrate came from him yes your honor because we're operating at such a preliminary stage in the case that that is why because we're at the preliminary injunction stage because it's an early stage you're you're absolved from the burden of proof  and merely by virtue of the fact that she's his wife you get to freeze her assets that they're saying that we get to freeze the household assets your honor yes because we believe that we have we have established that the relieved defendants really received at least thirty six million from mr ahmed and there's no reason to believe that the other family household assets didn't come in part from him  ms ahmed's submitted her own declaration a couple months after the play an injunction hearing discovery is still continuing we expected to wrap up in january the relief defendants are always welcome to return to the district court and ask for an airing of the freeze based on the record at that date your position your position that your burden of proof is satisfied by the inference you have shown that he was in a bigger new position raking in big money whether it was by fraud or judgment and she was in a position to prove anything that she has contributed herself independently of him to arrest his earnings among the household assets yes our position is that unless she identify something that she claims is her own that inference applies of course if she identifies an asset or sees only the only thing that she is claimed to have contributed to her assets or stuff that she earned at goldman sachs which rocked or of which has been excluded and part of it is represented to be one and a quarter million or something like that yes your honor that depends on the  honor we do agree that there's a difference normally the penalty which would correspond to the assets of the of the defendant because the release defend it would not be liable for a penalty at the end of the day so there is a difference in standards there just a difference can you explain what it is what is the standard that's what is the what is the standard expected the relief defendant's liability both ultimately and for freeze with respect to  penalty as opposed to disgorge me plus interest yes with respect to a penalty the penalty is personal to the defendant at the end of the case and it's to be satisfied out of the defendant's assets correct with respect to disk which meant we would have to satisfy the kavanaugh standard at the end of the day in order to establish liability with respect to the freeze we obviously have to show that the relief defendants received some ill after the money when you're going to talk about a penalty you're going after different correct natural i understand that well first of all two things i'd like to know what the source is for what the what the legal sources for that proposition but it doesn't seem to me to make much sense because let's say the defendant the principal defendant has stolen fifty million dollars and as a result of the fifty million dollars is li e for penalties in addition of let's say forty million so it's totally ninety yes totals ninety kenley can the government be frustrated in his effort to collect the the forty million penalty by the principle defendant bought by your ability to to recover fifty million from one source or another and then the principal defendant simply transfers forty million to his wife and and leaves himself without assets or in india and otherwise unavailable are you saying that that the government has no right if the principal defendant pays the fifty million you  you recover the fifty million he transfers the forty million to his wife so she's a relief defect and she's not a nominee she has he has no control over that for you except to the extent that he can persuade his wife interest you can't get that money yours and that would depend on the facts of the case it might be that we could go after them out that was transferred under a project and transfer theory depending on the facts and circumstances of the case but normally speaking to collect on a penalty we go after the defendant not the defendant's relatives care if you can't get anything from the defendant because he's fled or has has emptied and drained himself of assets by transferring to his wife and children that's that's the end of the line for you all as their nominees unless unless they're nominees unless unless there's there's some way that we can identify his equitable on our ship of of assets that are nominally held by family members or unless we can show some fraudulent transfer those would be to the most common theories at the end of the day places pages three in ten of the brief we talk about the factual the evidentiary basis or lack of it during the briefing and in the hearing on the assets other than the evidence was that there was no evidence presented at all no one addressed it and the f c c did nothing to carry its burden of proof which is the argument we set forth on page twenty five of our opening brief  and you point to whatever in the record discusses the trust's i have no idea how i am supposed to gathered from this that after i've looked at the i q transactions the  goldman salary the park avenue apartments i should have looked at the record with respect to the cross and see what it was at that your honor in our briefs we reference mr orators declaration which was the method by which the f c c brought to the courts the district court's attention what assets what assets had been transferred and what assets had been frozen and by referencing back to that there was a long list of other assets as to which no evidence understand where you think this is your very thank you your honor your honors i think i think the way that you must question is it your contention and if you would specify please that the assets frozen in the hands of your clients exceed in dollar amount the amounts that your clients received from the principal  i don't know whether in the record it is clear that they exceed what is and exceed the exceed what the liability of the principal defendant would be for disgorgement of improper gains plus interest in other words if they go into penalty amount going beyond discords plus interest if if we use the sixty full sixty five million dollar figure which is the full amount of discord the s e c faces that is more that is a greater value than the total value of currently frozen relief defined in assets but if you use the figure of thirty six million dollars which is the figure the f c c uses of the amount it alleges was transferred out of the fraudulent proceeds to the relief defendants there is a substantial access in other words there are more relief defended assets what is the thirty six represent the f c c and its amended complaint sets forth three figures of fraudulent proceeds that were transferred to the relief defendants that total thirty six and i can specify those for you if you'd like an defendant's own these assets they own all of these assets other than the knees comes into play if only with respect to the to the penalty amount of exceeding the the the  some of it yes for instance on the apartments the relief defendants as i understand the record never contributed anything but the apartments are worth more than the money that they traced to your client as the p parr rather is the purchaser so it's appreciation that accounts for the difference between what he put in and what the asset is where well the release defendants contributed services which there was testimony about but i but but returned to judge sachs example the family trust in which there is five million dollars there was no evidence presented by the f c c to satisfy its burden of proof either that those were proceeds of fraud or that the relief defendants were mere nominees such that those of the defendants assets and that's really the point here that all they need to show is amounts of money that your clients got from the principal defendant they don't have to show that that that th money in a particular asset or in a particular box came from the relief defended as long as there's an umbrella that shows that that amount of money is in compass that that box what's in that box is in compassed by money that was given to your clients by the main defendant and is within his liability for disgorge your honor i think that's a don's with this court's rulings on the jurisdiction over relief defendants which unless they are nominees is limited to the amount of  proceeds either ill gotten gains or own by mister yes are you prepared if this were to go back to the district court are you prepared to make a showing that it was any evidence and i i find it hard to imagine a circumstance in an issue of constitutional dimension where someone is being deprived of their assets a party does not satisfy its burden of proof and it is not forced it to comply with big chunks of property that's only one of them and there are many others as to which there was no evidence and i perhaps it was our mistake in the approach we took in the brief we assume that the court could approach the issue by simply saying all of the other assets that are listed in the record particularly in mr or declaration as to which the f c c failed to present any evidence the district court's ruling that the relief defendants were nominees as to those assets was error because it does not comply with