of the government's case quote going back to the way i heard the testimony come out here i mean as law enforcement officers were going about their business in this case it's pretty apparent to me that there was probably confusion even amongst law enforcement  about exactly what they were going to do in this case and how to go about doing it and while i know that the government is arguing that law enforcement either told or sent a message to mr honey got to stop doing this actually what i heard more from the evidence is law enforcement didn't tell him that at least not explicitly probably because they didn't know if they had the authority to him partially because they didn't know if they wanted to do what i heard more was law enforcement saying not only condoning but perhaps even encouraging continue sales of this product if you keep a log for them and when it became apparent that he wasn't going to be enlisted you know as their agent they changed their mind and said well ok then let's prosecute him so i mean it was a confused based it ties into pretty much all of our issues we have nine issues and i know that i will not be able to get to you all of them here today in the fifteen minutes that whatever qualifications there were as far as that goes that has absolutely nothing to do with the knowledge of illegality that applies to the list one chemical well it does have it has something to do i mean i think if i were still and i die in somebody tell me the reason you well that's that's just simply not really what occurred here in essence they did telling that may have said do it if you feel comfortable with it they may have said keep a lot but they also said  yes but i mean anybody can see that iodine is a product you know that is used in the manufacture of methamphetamine there are many many many products that are used to i believe there are various ways t hat use different products that's correct but i mean as far as we're looking at here we're looking at in the context of the statutes that he is that he's been charged  know behind the counter so that it was hard to reach when it was the best selling product that that was just their security measure that they put in place and if you look at some of the photos are ready for what  reason basically the way the stores set up is the smaller products that people could just pick and take out they put behind the counter and had you know top and around the side if they have anything else on the counter be the brand they say oh there there it just had a bunch of the basically they come in little box packages they're bright bright blue and it's kind of just like a cardboard box like a little juice thing for a child yes except on the inside then you have the the bottle which is basically it has a capturing mechanism on the inside you poor little bit of water in there you can let it sit around and then you put it into drinking more  need to purify and then you're able to drink that but this was i mean also wouldn't the jury properly be able to infer from the place that i died behind the counter  that when it was the best selling product and they were making tons of money on it that there was a reason why it was back there and that the reason was that they knew it was illegal to sell it to be used to make back that  methamphetamine absolutely not i mean first off they didn't know that it was illegal in all our client terry honey cut each and every time that he spoke with long for he particularly brought this to their attention before they even knew about it and said you know i've been noticing some you know people come in buying it in their little i can't hardly keep it on the shelves you know are there any issues with a kit you know can we sell it and then eventually they reach the director of the tennessee methamphetamine task force who tells them yeah you know it can be used to do that but you know i mean and then he's looking for guidance you know some sort of you know guidance as far as it goes on what i'm supposed to do  you know as far as this goes i mean do i need to do you know it just and that's when he says you know just don't do it if you feel uncomfortable about it he's brought then to the other part of law enforcement who says we haven't seen any of it anywhere with when they were going basically was put on hold and then he was by i guess it was the secretary at the time and then he was they asked around everyone if they had heard of any issues with it or if there's anything he needs to do and they all hadn't heard of anything and just said you know now go ahead so all you want to it when in fact this is a list one chemical that is in the same class as pseud e it is absolutely required by the d n a that in order to possess and sell to distribute this product you need to be registered with them otherwise you must cease activity any any distribution you can it's prohibited and the only way that you would know this is by looking in the federal register where it was published back in two thousand and seven before this and that is one of the reasons why we cited two  as your honor i believe wrote that opinion is that in the supplementary information polar peer was specifically listed as a product that must be registered with the d n a or else you cannot sell it and in order to do  that you know and so that that's why it's so significant that when he speaks with d n a agents shelton and agent sheldon said well i think they should just you know outlaw it just outlaw it and terry honeycutt says well if they do that we would have to sell it all in just a few days prior to this he is essentially encouraging them to have some sort of you know law like database where they can just scan it and then they  w terri honey cut is encouraging them to have a sort of yes yes and say well do you have because it's a lot to do and maintain to the just basically if they're having this problem can you do like you do with the pseud rea which we've talked about here is far as the list one chemical is is what they need to have prove here because it's subject to the twenty year maximum as opposed to the list to chemical which is subject to a ten year maximum and so here that that accounts for the the notice provisions and the requirements that are in place that you know that you're presumed to be acting with or not presume that you have better notice and responsibility and that you're already registered you know these requirements you know you're supposed to do and then you know when you exceed that then you're subject to that greater punishment but you're saying that that the court heard instructing under the standard deduction well no other circuit in the united states requires that  y and prior to conviction that we must prove to the jury that our conviction would be unfair to presented this instruction that this is that this court standard pattern struction this course standard instruction is the only pattern struction in the united states and i've we've outlined this specifically if i direct you to issue five in the third brief those idea was it to put it in was that decide the prosecution or the judge or somebody else it was it was our request we had an alternative request to comply to basically align with our due process  given it all you did well and as for that right now what we need we needed the defense and we couldn't be deprived of the so first our request was that the government must prove beyond reasonable doubt that either a an agent of the united states government did not announce that the charge criminal act was legal the charge criminal act being the position or distribution of polar pure or although an agent the united states government announced the charge criminal act was legal  so that we would not be deprived of the defense at trial as we had acknowledged that the lower courts you know bound by this court's holding in that regard but this court in levon derive the fourth element you know which says that given the defendants reliance prosecution would be unfair and so it's really just these first three which is entrapment by stopping and then given one to three  statute is clear and unambiguous forfeiture is mandatory when the united states meets three particular requirements and the united states met those three requirements here however the district court failed to order forfeiture in this case and in doing so the district court committed to very precise errors the first was an error of as a matter of law is that it district court required to declare forfeiture here or is there is there any discretion there is no discretion for the district court where the united states meet the three hampton requirements that are both in the case law and were there in the statute but there teased out in the hampton case three is a defines the broad nature of the statute but it's the title twenty eight code section that mandates forfeiture here but my understanding is that there is an issue under age fifty three whether we have property constituting or derived from proceeds the person chained as a result of such a violation in this case what we have is a conspiracy and the defendant that's involved in this conspiracy is obtaining proceeds for the conspiracy and it doesn't say a paint and retain it says up paint proceeds so when the fraud liability that comes with c conspiracy it is but it requires forfeiture of any property derived from any proceeds so hypothetically let's assume that this defendant and i think this is the facts but is he selling them dying it's going to be used in that but he is just a sales person he is not an owner he does is not getting anything at all does he have any property obtained directly as a result of such a violation and my understanding of the d c circuit in this case that i stated can of for us my understanding of that is that the d c circuit says no you cannot use conspiracy law to to say well there were other people in the conspiracy who in fact had a lot of property or should have had a lot of property as a result of all of these sales you cannot you know sort of prod on top of the conspiracy theory now i can understand that there are circuits that go the other way but why shouldn't we go the way the first the d c circuit has done first if i could address the factual issue the defendant was a salaried employee that we don't dispute that the record clearly establishes that he's a salaried employee however the record also establishes his role at the business where this conspiracy was occurring his responsibility was to order inventory to maintain that inventory and al and he in hypothetically he's not retained anything he's not taken anything even if he had taken it in and spent it he is just working away because his brother is the manager and store and has this bright idea hypothetically it's brother who is there is another way of looking at this legally and the question is why should we look at it the way that some of the other circuits have looked at it rather than the way the c circuit has looked at it and of why the other circuits have looked at it rises real practical problems because if your house in imposing what is essentially joy and several liability among coconspirators your and if you're imposing pinkerton type rules on a fork at your step keep it's a pretty impractical thing because you have no i think that the closest that we have to a published case on this topic that gives us direction is to worship case six thirty one f third to sixty six and in that case it observes that proceeds that are indirect or direct that even those that come from with sales which is not the argument that i want to make here but all the sales that result indirectly or directly are for for the who has to be responsible for the poor for tears in the only other answer i have here dealing with the broad scope of the conspiracy and taking that analogy to interest the first this here in the united states all forfeiture of only the proceeds very proportional response that only the profit that was made from selling this list chemical was sought so no there's there's not a percentage there's not a we're not looking for a brick and mortar building or anything like that we're looking for only the proceeds the profit that was made here in the second it's issues that cd someplace i mean is that  act here by the court saying for two hundred fifty thousand dollars but you don't have it in a bank account or something or was it safe place it was not seize no sir i don't know that this defendant has any money i mean are we just talking about  interesting and important academic issue i know that if it has real property i believe you when you would seek the forfeiture of that real property as a substitute asset yes ma'am ok so so to get back to the last question which is of course a very very important corrado is the case that you mentioned in the problem with corrado it's a different statute than than this particular one but the problem in response would be that the statute that's involved in corrado is using the same language is using consistent language with the position that we're taking it to mean that there would be that the government have a burden to establish that cro didn't go to the particular defendant against whom you're seeking for a cure i mean i can proceed for example if you establish that his salary was increased as a result of the profitability of the  something like that then perhaps you'd have an argument but is it is you're forced to rely on a purely legal argument that doesn't give you any  requirements that are teased out in hampton i believe does give us the burden of proof if we had failed to convict the defendant we would not have met our burden of proof and this would be completely moot well of course so we did go through the process of salary but you're not limiting the poor picture for him to his salary you're saying for him you can use substitute assets and you can look at the whole amount of the conspiracy profit and go out like say he has a beautiful because it's joined several liability under your theory and that that's one of the things i do want to draft because doing so reliability doesn't apply in this case the defendant the first offender that pleaded guilty in negotiating his plea agreed to forfeit his interest in the proceeds and so the remainder of that isn't subject to a joint and several argument if the remainder of that proceeds is the defendant's obligation there are only the two of them there were only two different that were torched in this case but there were others it's part of the conspiracy so then this defendant would be liable under your theory for the other defendants not the one who's settled there was an unindicted coconspirator who was the wholesaler for the list chemical who was under investigation in california thank you first as far as the forfeiture issue we'd simply i mean we would just simply direct the court to our response in the third brief and you know in the event that this court reaches it which we submit that it should not and then as far as a as for talking about conspiracy the conspiracy that tony honey cut the brother pled guilty to was eight four three a six and eight four three a six charge is chemicals products materials well that as a matter of law is not polar peer so what he pled guilty to as a matter of law is is has nothing to do with polar peer because polar peer at all times it is a list one chemical which basically enlisted chemicals are punishable only in eight for one c two this is addressed in and as far as that goes a list one chemical means her list of chemical means any list one chemical or any list to chemical and chemical is not to  there is on is used chemical we submit based on reading the stat sheet as you know the statutory scheme as a whole simply means that it's unlisted and maybe used  and i'm wondering what conspiracy you think he pled guilty well as a as a matter of fact and law the polar peer which contains i don't what what what mean we that's what our appeal centers in large part about is that the district court read these statutes in a manner that says that you know there ambiguous there are redundant basically a list of chemicals the same thing is a chemical and then on the verdict form he put precursor chemical removed all the mens rea and just submitted to the jury and you know the jury and the district court i mean and in the me the government says well this doesn't give the kind of direction that the jury needs that the jury needs basically in order to convict the defendant with you know any way i see my time's up thank you thank you when the defendant engages in that conspiracy the consequences of that conspiracy that are foreseeable that the defendant or or help against him in a prosecution that same logic in several unpublished opinions by this court supports the government's argument here where we are seeking a we're seeking the foreseeable proceeds from the defendant's actions that's the amount of money that we're seeking to fourth and that's absolutely true as a matter of conspiracy but the step he doesn't necessarily contemplate taking that approach to that be a fair state that would be a fair statement the statute does not contemplate the idea that a defendant who contributes to a conspiracy but does not directly benefit may be in this exact situation where the court said that it could find that the defendant profited from this enterprise right yes or the court did observe that he could not find and there is no evidence on the record other than his salary so i can't stand here in argue that he directly profited though if he didn't directly profit the court still has to have a porch or a judge as a matter of law that is our position that as a matter of law the liability of the conspiracy extends to the forfeiture and is a court have to terminate how much words of this polar peer were so for illegal purposes as against legal purposes because that's one of the problems it and that would have the air a fact that we believe that the district court committed here in this case the district court determined that there may have been some legitimate sales the fact of the matter that was the record does not support that at all there is no evidence in the record of a lawful or legitimate sale of iodine all of the sales that were prosecuted in this case that were you know maintaining these records that the that the defendant was responsible for generating all of the sales were made with a reasonable knowingly or reasonably believing that the possibility that i  needing to purify their water right it was once a legitimate product for that purpose these days technology is far suppressed iodine as a water purification