counsel honors my name's r j a long fly colleague michael bryant were a point i was appointed by the court to represent ronald johnson with respect to one specific appeal the appeal that i'm representing him on deals with his trial his conviction and after he was sentenced there's a whole series of forfeiture proceedings that continued on and mr johnson has appealed those there should be at least two other matters that he appeal with respect to those i specifically told mr johnson i cannot represent him and  seven cars and then it continued to another property and then it continued to numerous bank accounts and checks it was roughly forty one thousand dollars chuck there are various are talents that had a few one hundred dollars and a few one thousand dollars  court talks about going back to the magna carta the english bill of rights and it says that forfeitures are the penalty are ok so long as in magna carta language you save to a free man also a free person you say for them their continent free people had they had to have property have standing back in old english time and in those properties next to their home sort of court back then i would say look you could have a fine but the fine cannot take away the ability to continue livelihood the magna carta continues and talks about merchant and merchandise you can find them you could do forfeitures but you can't take away his merchandise then it says with respect to all others villains as it's called and there's as with those people you don't dollars in restitution and after the taking of all the personal property and real property that he had is grossly disproportionate to the crime that he has so the forfeiture of the amount of the property three financial obligations you're saying that there's restitution to the victims there's a two million one hundred thousand dollars personal judgment and separate from all of that there's just a straight out forfeiture of the property that's correct the forfeiture the property it go toward the restitution then you said it might i don't i don't believe so there's nothing to indicate that what's the total value of the forfeited property we believe at least that the total value of the four for the property we know that the government million seventy thousand dollars the government indicated that all the cars that they took during trial was worth another two hundred and ninety thousand so say the total taken by the government roughly half a one million somewhere in there but i do not have unfortunately the record but what about the fact that the amount though it was based on how much the court found that he was personally enrich by the crime shouldn't that make it by definition doesn't that make judgment this guy is sort of a double counting argument that's mr johnson's in his fifty's he's going to serve and when the court looks at excessive fines you need to look at sense as well for part of the penalty that is facing he's going to be in prison restitution knowing is there any dollar amount that would be all the art i think that's hard to answer because the case was unclear it says that the fine has to be tied in some way to  fine imposed because the defendants are indigent and have no ability to pay even though the fine in ranges from zero to two million or whatever certain like in drug cases things that nature that i think would be go to the discretion of the court in terms of ok when you come out how old are you going to be you know what are the chances of success on this and i don't know the answer to that really because it sounds like given what you're what you're saying is that realistically would he be able to pay the two million three hundred thousand dollars restitution it is that sort of your argument is that even that ten years down the line when someone's into their sixty's to be able to pay that two million three hundred thousand seems not realistic is that what you're saying that is that is what i'm saying so i what i'm hearing is that there's just no other to be constitutional there's just nothing else the court could add on i'm not sure that you know maybe that's something that we if the court remands that we could have a hearing on that to life a little  ability construction worker things of that nature but look i guess my point is any kind of hearing was unlikely to show that he could pay back anything more than two point three if i'm understanding your argument my argument is basically yes your honor that he doesn't have anything more to give you collectible but in the event the person does come in the money they're collectible i appreciate that you know when you're imposing at least twice what was relatively taken and you're sending somebody away for over ten years that's an issue all right what about these cases the government sides say that both forfeiture and restitution are mandatory and that they don't offset each other well that's my argument is that as applied here i'm making a challenge it's unconstitutional as applied in this case the combination of various taxes as applied to mr johnson have violated the th amendment so i'm making as a as a pipe argument to that ok very quickly on venue your honor the burden is on the government they have the proof by the preponderance and specifically the only evidence they offered is that mr johnson from minnesota up there for the event either started in minnesota the burdens on the government the government argues waiver but there's no waiver we need a rule twenty nine motion there's absolutely no bird zero on the defendant to present any evidence to present any jury instructions or to make any argument that your it's a matter of law it's the burden is on the government to prove there was no jury instruction on this that's correct so we're just looking at whether if it had been instructed any reasonable jury could that that's great whether any reasonable jury could have found by a preponderance of the evidence that the venue was satisfied that's correct on one about the fact that johnson is a minnesotan given day isn't it more likely than not that a person is at his home in leicester some contrary evidence well if if you're traveling businessman i would say not necessarily i think the cover of the burden means something the government has to show more than that this person's in minnesota otherwise you've basically this raided the venue requirement if the if then you can be satisfied strictly because the defendant is from a state and that doesn't matter about the transactions does it well  understand your point it can't be just that he's from the state but it the fact that he's from the state may support an inference that he was in the state that's correct and i don't disagree but you know i think that may be what it comes down to do you think here whether that's enough to  time for a bottle or to perceive thirty seconds on the search warrant he's in a farm is isolate it wait till his family he leaves his house cost thirty miles away and he when he pulls in there they pull him behind  they constrain him as they're walking up to the barn they see the cell phone in the truck they see a computer and or truck and they say ok we need to get that he wants to talk to his wife he calls his wife and it's us learns from his wife that going to search if you consent to the truck i'll take twenty minutes you can go home that was course very well thank you for your  of the consent of the search of the truck but it sounds like there are some points that i can clear up with regard to the excessive fines are human st of all at least the th in the th circuit of both held that the imposition of both the restitution amount and  fraud you have a perfect match between the money taken from the victims and the money that's ordered forfeited the context where forfeiture amount has been found to be excessive is when the property was involved in the commission of an offense for example i know i think there was a case a number of years ago where a motel was used to run some sort of a drug operation or a drug business and that motel was then forfeited by the government because  used in the commission the offense even though the owners of the of the motel weren't particularly involved in the drug offense and so in that regard you have the taking of property involved in the commission offense that might do or for be grossly i am aware of a couple of cases and i don't want to make sure whether you're stating the law correctly in these other cases or whether this is a question of st impression if i may your honor i do think there are two additional cases that were newman case is all i have a my fingertips right now where the court held that forcing a defendant to pay both forfeiture and restitution at worst forces him to disgorge twice the value of the proceeds of his crime which is in no way disproportionate to the harm inflicted upon government and society which are two different interests that there's an interest in forcing someone to disgorge the proceeds of the crime that's a societal interest and there's an interest in forcing some to repay the victims of the crime which is a victim interest and i think i can maybe provide a hypothetical that illustrates this fairly well as for example someone steals a one million dollars and then takes that to the casino and doubles up and realizes two million dollars there would be nothing excessive or unconstitutional or disproportionate about forcing the person to disgorge the one million dollars in fraud proceeds through a forfeiture and also use the one million dollars gain from the  hypothetical how well i'm not well i am not aware of any test that requires the court to consider the likelihood that a defendant will be able to repay restitution or forfeiture in deciding  whether to impose forfeiture or restitution that does apply in a fine context the court can take into account the likelihood of a defendant being able to pay a fine but in the context of forfeiture in restitution as your honor those are mandatory and i'm not aware of anything in the law that says that the court is permitted to disregard those mandatory aspects in light of the induced c of the defendant and there's good policy reasons to argue your honor that if someone  aren't just hypotheticals this is real world examples where individuals ordered to pay both forfeiture and restitution they later come into money through maybe an inheritance or something like that and the government where it was previously maybe would have just used forfeiture proceeds to satisfy the restitution obligation will go after that additional money so that both the victims can be more made whole and society can be made whole from the forfeiture perspective the last when you say society committee made whole what do you mean by that our society ben other than the members of the society who lost the money who are be who will be compensated through restitution how did society lose two million three interests of making sure that there is just punishment doled out for crimes irrespective of whether the victims are made whole or not the last point that i'd like to make to clarify with regard to mr since comments  the most of the government could collect on the personal money judgment it sounds like would be about one million eight hundred thousand dollars so it's not as if he's going to be double paying on the forfeiture turning to the issue of how do we verify that is that in the record are is there a statute that says that or how do we verify that this forfeited property will reduce the money judgment i'm not aware of it in the record because this is something that happens well after the these various laws interact that i think it may be articulated in the forfeiture order as well but also in the various statutes that would have been cited in the government in the indictment discussing the interplay between the forfeiture of direct the project he implemented the scheme in minnesota by depositing investor funds in the bank accounts in minnesota and spending most investor funds for personal purposes purposes that were inconsistent with what he had promise his victims all of those spending was in minnesota even under the other test the court doesn't even need to weigh in on the circuit split because under the other test the evidence was sufficient to show that that venue was proper in minnesota as your honor noted there is testimony that mr johnson both lived and worked in minnesota and i would argue that that by itself is enough to support the inference that in any given day absent any indications to the contrary it's more likely than not that the person is in minnesota i think it's important to note too that the strength of that inferences buttressed by the fact that corcoran in maple lake corcoran is where the home was maple lake was where the cattle ranch was  the metropolitan area so it's not as if they are near a border such that the inference of the weekend to think that perhaps mr johnson occasionally crossed over into a different state in addition we also have bank records that show that the vast majority of mr johnson's time was spent in minnesota you can see him making purchases at retailers menards gas stations things of that nature all not surprisingly in the communities in and around corcoran in maple lake how of the record in the trial there was testimony that corcoran and mabel lake were about thirty minutes from the metropolitan area and i think perhaps jurors using their common sense could have a guess about how far that is to south korea iowa and wisconsin but i don't think there was any specific testimony about how long of a drive it would be from corcoran say for example to south dakota the bank records also showed mr johnson spending money here in minnesota and around the times that these e mails occurred that were the wire fraud counts back down a lot of them there was spending clearly in minnesota on the same day that mr johnson sent the e mails and in two of the other instances there was spending in min nesota within a day or two of mr johnson having sent an e mail now mr johnson's arguments on appeal are really just questions about the strength of the inference not whether that inference could be made the mere fact that mr johnson lives and works in minnesota that by itself is enough to make it more likely than not that on any given random day that he was in minnesota and all of mr johnson's arguments are really just alternative inferences that could be drawn from the evidence or maybe to be more precise they're just claimed weaknesses in the strength of the inference urged by the government for example mr johnson claims that he occasionally travel outside of minnesota or that it's possible that is wife may be is possible but the question is whether it's more likely than not and given the evidence that was presented it is more likely than not that he was the one using those those bank accounts he was a signatory and that given that they were occurring in minnesota in a timeframe in close proximity to when the e mails were sent that he was in minnesota when he sent those e mails do you agree that it wasn't the defendant wasn't obligated to submit a jury instruction on the list in order to preserve the issue for appeal it appears that that is so that's a little bit unclear but it appears that the case of the mistress cited does seem to indicate that merely arguing it to the to the district court even if you don't press that argument to the jury is enough to preserve the question of whether there was sufficient evidence to submit the matter to the jury i would know that this idea of ruling out the possibility that that he could have been somewhere else isn't require that's not even required under a proof beyond a reasonable doubt standard where the government's not required to eliminate contrary inferences to the one that's offered by the government but just to be sure the government did rule that possibility out there was evidence presented that when mr johnson did leave minnesota there was an obvious commonsense predictable pattern of him spending money in states outside of minnesota and during that the proximity of the e mails that form the basis of the count there wasn't any that type of a pattern showing him to be outside of minnesota with very little time to go left or turn to voluntariness of the search the narrative constructed by mr johnson is just incorrect he was never denied the opportunity to go to the truck he was never denied the opportunity to live in the truck because he never asked that their hypothetical questions posed to the agent at the suppression hearing about had he asked to leave would he have been prevented in the agent said yes but he was never actually asked to leave nor was there any evidence that mr johnson knew about the aggressive tactics used that his home there were arrests of tactics used at his home but there is no evidence that he actually knew about it and sorry for that amount of time so i will ask the court to affirm were able to pay more than a one hundred dollars per month then you must make restitution payments and the amount directed by the probation officer yeah that's what it talks about restitution or so one hundred dollars a month for restitution but then there's a personal judgment that's still out there is there any payment schedule on that not that i see that all it says is the property done five in the st and nd preliminary order for forfeiture and a personal money judgment of four for turned him out of two million one hundred thousand dollars base underfed this conviction