court my name is james broccoli from norfolk please before the court i'd like to thank the court for this opportunity to be able to argue this very important issue i know it's difficult times and we certainly do appreciate the court's consideration and we certainly do  everyone stays healthy and safe with respect to the issues that are before the court obviously a very straightforward appeal on its face it seems to be very simple but it has multiple nuances and a lot of the good good underlying issues with respect to this our position is very simply that the supreme court's decision in coke has changed the law with respect to penalties and punishment does this back to double jeopardy provisions i know with respect to that particular issue both the government as well as the district court judge david is significant opinion as well as the th circuit in dyer all take the position that the supreme court never took up this particular issue in terms of the  isn't this issue's we given the clause in the a c c consent judgment that when we're in your client acknowledge that had been no promise of representation made with respect to any criminal liability court construed the th circuits decision in the van way and in terms of do almost the exact language that was included in that particular waiver and the district court found that that particular waiver in that particular language was not sufficient because it did not include future criminal prosecutions but i think for substantively as well so you can ask another follow up so what what would that what would the clause contemplate if not future criminal proceedings i think the clause would cause the play just the actions that were pending at that particular time but more importantly your honor i think that a defendant cannot wave a right knowingly and voluntarily and intelligent when that right at that time was landscape i don't think that by itself is enough to warrant a different result here and i'm still left with the question as to why what what impact what import this is clause have if not contemplating future criminal proceedings i mean what benefit to the government have if not receiving the benefit of not allowing just kind of a claim to go forward i think the benefit the government have is having a consent order executed in not having to take them out of the trial but having the burden of proof having stablish anything with the defendant consents to the intruder nortons i think the benefit the government has with respect to consent to it is obvious from a practical standpoint but to answer the court's question with respect to what carefully it's true that it doesn't go towards the criminal punishment that we're what we're advocating today but in that particular context that's not unusual because that issue was not before the court and so elements of  is that only those issues that are addressed before the court are going to be ruled upon by the court but judge stated his opinion takes it one step farther because in one of his footnotes he talks about the oral argument if you're on it so and it expands the definitions and expands the elements of criminal punishment to include this particular case with this particular discouragement and if i could just go back for one second i went back and i listen fact i listened to a couple of times and what's significant about that is how many times the context of criminal prosecutions does come up in the oral argument special specifically with respect to judge courses and there's a transcript obviously that's obviously that issue is is is alive and percolating if you will with respect to what the supreme court yes your honor is so is there any case it is concluded  sentencing issue whether or not from a sentencing guideline standpoint that particular enhancement would apply to put a different issue nd of all the charges were completely different in dire he dealt with tax evasion he dealt with some other particular  fraud but not the securities issues that are at play in these particular counts in this particular indictment and then lastly the court itself recognizes that when the court recognizes page  of the last pages of the opinion page nine and it says this is the th circuit even if f c c disgorgement were a criminal punishment we would affirm the defendant sentences for two additional reasons and just the two reasons that i gave to the court so punishment is obviously an effect of the criminal law resulting in imprisonment and or death as well as other physical harm but those words can't be taken lightly in those words just cannot be discarded and she cites multiple cases using the aspects of terms of punishment and so for those particular reasons you don't think that the supreme court when that car had to go that far but for example let me give the court the for the jurisprudence with respect to double jeopardy for mandate in the civil context is it strikes me that you're essentially eliminating a very substantial part of the a c c's arsenal in terms of trying to prevent these crimes these types of offenses  nd place if you will but i think the f c c has multiple tools available to it they have the civil fines they have other aspects plus in this particular circumstance a criminal forfeiture could suffices just as  defendant in this case result a simple as you see complaint with a no admit no deny settlement the case was never tried and the defendant never admitted any wrongdoing that's the arizona as you see enforcement action is part of that settlement he agreed to the equitable remedy of discords meant that he would pay back his ill gotten gains and this is a quote from the consent and the judgment representing profits gained as a result of the conduct alleged in the complaint his argument on appeal is that th civil remedy he agreed to in a civil action should be treated as a criminal punishment that bars the government from charging him in this case with securities sautter on the awful sale of unregistered securities and the promise of that is based on co into a criminal punishment for jeopardy purposes that argument has been rejected by all seven appellate courts that have taken up the question both before and after cold cash and before and after the supreme court's nine hundred and ninety three decision in the hudson case and i take some issue with the diaries obviously not controlling on the th circuit but it certainly persuasive and the legal question front of the dire court is the same legal question before your honor's that question is whether d to dive right into the into the merits of the of the argument here but i asked your colleague a question about whether or not we even need to get to the merits given the waiver that appears in the s e c civil that as you see agreement the result the civil charges what is your position with respect to the yes sir that the government's position our st argument is waiver and the defendant when he made this consent and when the consent was under the judgment he explicitly waived his right to claim that the settlement is in jeopardy event he was counseled throughout the civil enforcement proceeding and he was counseled as to the consent that he entered paragraph eleven states no promises were made with regard to any criminal liability that may have arisen or may arise from the facts underlying this action and no immunity from any such criminal liability and then came the waiver sentence defendant waives any claim of double jeopardy based upon the sullivan of this proceeding including the inclusion of any remedy or civil penalty here and that waiver is abundantly clear and the idea that the waiver somehow should not apply because there was no then pending criminal action what would would gut the waiver and it would be of no value to the government where the government bargained for yes sir i thought the thought your colleagues argument was twofold maybe he made reference to the fact that there was no pending argument in the openings criminal proceeding but his point is as well that that waiver sentence makes no explicit reference to criminal proceedings in the general sense and in that sense it's not clear  what's your view about that so i have to be fair the district judge had something of the same statement and getting past the waiver and to the merits of the argument but but your honour's double jeopardy only applies in the criminal context and so the argument is if there is some ambiguity and we have to discuss it this much that the presumption is against waiver in matters of double jeopardy but your response to that i understand the argument your honor but i don't think there's ambiguity the waiver is abundantly clear talks about any any double jeopardy excuse me any double jeopardy claim and it talks about future criminal proceedings and so this is that's where we are yes yes so but do you agree then that if i think it's ambiguous for some reason that there's a presumption against waiver in this instance you're out of the reserves case and the supreme court does suggest that if there is an ambiguity in a criminal waiver that it is essentially held against the government but here i don't think that it would be hard to say what could be more clear what the government could have asked for that would been more clear in that paragraph also i want to note that the waiver is forward looking the argument that coke cash somehow changed it with the defendant is arguing yes man because the government you're saying the government wouldn't have put the word criminal in there anywhere because this was not a criminal matter at that time well more so your honor because any double jeopardy claim can only be brought in in a criminal matter and so what what the waiver is saying is that he's not going to argue in a future criminal matter that this settlement he signed is a jeopardy a vent that's the only applicable that's the only a political place this waiver would have any effect and in the johnson case that and this guilty plea occurring after a guilty plea is one of the normal risks that accompanies a guilty plea in other words you don't get to undergo a waiver even a significant one just because the law somehow changes in your favor afterwards but the government the again the government got from unpublished the chung case which is cited in our brief a waiver that was much less fraught and much less explicit was held to waive a double jeopardy claim in a subsequent follow on criminal proceedings and as far as the van why and byrd case i don't have the full paragraph from ben why amberg some of the language is the same but in our in our paragraph paragraph eleven before the waiver sentence is a sentence talking about criminal proceedings that may arise necessarily  not involuntary so i have a couple of responses that argument and one of them is that the defendant at the time that he entered this consent knew that he was the subject of an f b i investigation and so the idea that  jeopardy waivers could actually have some teeth was was obvious at that time he'd been there for two years the subject at that point f b i investigations the nd point is that what the defendant agreed when he made this waivers he agreed that i have a i have a potential double jeopardy claim whether it's weak or it's strong i can always argue double jeopardy based on something that happened in the past in this case the settlements the civil settlement what he agreed is that i am not going to do that it wasn't contingent on the on that portion thank you wolf before i dive into talking too much about coke mindful of my time i want to make a broader point about the rest of what the defendant is arguing here because  is an equitable civil remedy it's not even a fine it's not even a civil fine much less a civil in rome forfeiture much less criminal which are in criminal force secured by the way as it is a whole different animal than civil discourse and criminal forfeit e is imposed following a criminal conviction and it reaches far broader than discourse it can get into facilitating property for example seizures of homes that are used to facilitate drug dealing it's not even in the same ballpark but even looking at civil fines imagine a civil fine for example in the intellectual property realm where it's levied per violation that has nothing to do with the defendant's own profits so it's closer to the line of what's punitive and so with the defendant or is arguing here is that this equitable realm is transformed into a criminal punishment your honour's if that is true then it would be the rare civil fine or the rare civil in proceeding that would not also be a criminal punishment  the supreme court was trying to avoid in hudson it was correcting the earlier decision and helper which led to this flood of double jeopardy claims that all the simple things civil fines and civil penalties were at jeopardy events and the court in hudson said no that's not the case hudson itself is a great example because in hudson the court was dealing with a civil fine closer to the line of criminal than the civil forfeiture proceeding that i'm sorry the civil discordant proceeding that we have here and in hudson the court went through the entire analysis the same analysis of the other courts that we've cited in our review of the in the context of discordant and the hudson court found quite easily that that civil fine structure was not punitive in the sense of criminal punishment in the sense of a jeopardy event and so that's the backdrop to this argument the other rub issue here d is that the f c c has civil enforcement authority but no criminal enforcement authority the congress set up and the thirty three and thirty four act this dual jurisdiction do in force one mechanism civil on one hand and criminal on the other and if the defendants argument is correct then decades of practice in the securities and force and realm are going to be undone because opening argument and his point was well that's all well and good but we're dealing with a criminal proceeding and this is a the ability to enforce a civil liability and criminal proceedings are obviously much more important as a matter of  fact and and and and so the solution for the government should be simply to focus on the criminal proceedings st and let those take their course and then then proceed step about something going on that's improper and then they move to enjoin that action so they stop it from happening and as part of that as part of the crux of remedies ancillary to the injunctive remedies in and as you seem foresman action i just record can information to the prosecuting u s attorney's office or d o j for a follow on criminal enforcement and so a lot sometimes the case that a criminal foresman happens st it's usually starts with the f c c and then and then ends up in the criminal and not still something that the f c c could continue to do and simply defer any imposition of civil sanctions until after the criminal proceedings are completed that may not be the most efficient way to proceed but it would seem to resolve the issue and at the same time protect defendants from being as from the defense point of view unlawfully criminally punished your honor obviously because it's our position i don't agree that this is anything like a criminal punishment but i'd say as to the point as far as which because you drafted the waiver and you mentioned words like double no no sir that that's an f c c waiver i'm sorry i mean is the government means the government  civil and what you're doing is totally criminal why would you have a way to something that may impact a criminal right or potential defense we shouldn't be just this is this corpsmen period question i think i do your honor let me try to respond to it and you correct me if i had if my response was i didn't understand the question but but this is a parallel civil and criminal regime so that as you see is focused d in the civil enforcement side on stopping these actions and then on getting back the profits that were on lawfully taken that the government has its own interest where appropriate criminally prosecuting securities law violations those criminal prosecutions can lead to jail time which the civil enforcement proceedings cannot and as far as that as far as how this was drafted i'm not aware of of how was drafted or who bargain for what all i know is that that's the final product that came about between the defendant and the s e c and the defendant it's you give up an important constitutional question right that but your honor i'm and apologize but that's exactly what the government is asking him to do because of that the possibility of a future criminal prosecution the government doesn't want to have the fact that the defendant had to give back by the way only his own all lawful profits in this case it wasn't for that you know he's got to get back into lawful profits the government is saying that cannot be an immunisation from future criminal prosecution for the bad ac are shortened from even have to and we have to inform they would you tell them i mean that's what i'm asking as far as the correct interpretation of that consent agreement your honor the supreme court has held in much more serious cases serious criminal waivers can be enforced including in rickets which ended up the waiver ended up leading to a retrial and a death penalty conviction so here we're talking about about the security context much less drastic if you will see that over time arizona sets forth the total amount that the defendant bank received from this endeavor was that four point five million dollars so in essence they have doubled the amount of the money that is now been ordered to give back and that's why it becomes a penalty and that's why it becomes a punishment and that's why it becomes a success of criminal punishment in the context of double jeopardy because it's not designed to put the investors back into the status quo and it's fast discords with the money doesn't even go to the investors the money goes either into the quarter into the treasury and then it's up to the court or the treasury to determine how to divvy up those funds maybe the investors get some of it maybe the investors don't maybe the government keeps all of it so under those circumstances to talk about  that case is supposed to answer footnote three in cocoa which is whether or not there is any statutory authority for the court even order to score judgment that decision obviously will impact the husband since analysis because