good morning i should i don't know that i really said this yesterday because we we reconstituted the court yesterday but judge martin and i are very very pleased to have  colleague from the th circuit judge jeff sutton visiting with us yesterday and today to assist us with our work that's he's taken on an extra responsibility for no extra pay in coming down here and we are very very grateful for that you know there's no pay for it and i said no extra i think you're still getting authorities cited in your briefs portions of the record at least if not the entire record so you only have limited time and you should feel free to get straight to the heart of your argument when it's your your time to speak pay attention to our traffic lights when it's when the red light shines it means what it does outside and you can just assume that there's there's a traffic camera at every red light so if you want to take your chances you know go at it but not only is there a traffic camera there's also a police officer waiting with a pad of tickets so if you're answering a question from the court that the officer will exercise some discretion and let she will finish your answer so well start this morning with united  it please the court my name is spencer woody and i represent mr gregory bank one of the two appellants in this morning's case since the government in their brief have conceded that the supreme court decision in honey covers united states announce a subset of retroactive rule the where we might affirm the denial of relief here it seems to me one of which is that there's been a procedural default your honor that is one way this court could say that there was a problem but if this court does agree that this was a jurisdiction where and that being the fundamental i don't see how it can be true stiction your honor this court has said that it jurisdictional error exists when looking at the face of the indictment the government alleges something that is not authorized by the statute and in this case the indictment for mr gregory b held that it was a jurisdictional error for an individual to be charged with conduct that wasn't actually a crime that shows that jurisdictional error can take place on the conviction side and on and united states versus terminate this court held that it was a valid jurisdictional er challenge when this is really just like the scope of the remedy issue isn't it no your honor i don't believe it is because as i was saying tillman a the court said that it was a valid jurisdictional error change challenge when they were saying that  there can be joint or several live and joint several liability your honor based joint stubble i believe he was the only tool that the court could have imposed any sort of for control mr gregory bank because as a district court found mr gregory bay didn't benefit from any of the proceeds of the crime so even if two of joints of a liability was not available tool as honey cut has said the court did not have any authority under law or under the facts to impose any sort of forfeiture on greg bain because he didn't benefit he's exactly like the brother and honey cut and that way it seems to me this is simply you know a quick question of statutory interpretation it's not a constitutional issue if you're wrong that it's jurisdictional about it being a error procedure to follow to apply this right your honor it would there be a way around procedural default in this case because of what the supreme court has articulated and read versus ross the exception to procedural default and in this case in two thousand and eleven when mr gregg brain was sentenced it would have been both novel and futile at the time for him to bring a claim challenging joint several liability of this court for twenty five years and up till two thousand and eleven had held that join if there's a circuit split it's a pretty good idea to preserve the issue wherever you are yes your honor but there was not a circuit split in two thousand and eleven every case every court that had decided the issue of joint civil liability when mr greg bain was sentenced in two thousand and eleven had decided the joint civil liability was ok it wasn't until two thousand and fifteen that if the resorts are wrong i mean that's the hope oint this is keep pressing on tell him you know that's what we have rehearing on bond for that's what we have supreme court petitions for and lawyers are ross and isaac versus england sure as said that there are exceptions to procedural default and if this is this has to be one of those cases where there is an exception to proceed what's your best authority for what we've said that on the structure of it and you got a good argument that that doesn't satisfy the novelty requirement your honor it was novel at the time in two thousand and eleven although you're saying that it was just a statutory interpretation question no one had everyone that had maybe brought that argument had faith everyone that had said you know let's look at the statute and see of joint civil liability was involved had failed in this circuit and every circuit that existed that had dealt with the issue in two thousand and eleven supreme court says futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time yes your honor that's true but it wasn't just this particular court at this particular time was every court that had dealt with the issue this is this is a big this is why this is a different case when it comes to procedural default than many of the cases the government side in their brief version united states there was a circuit split those they could have latched on to a successful claimant in that case and mccarthy and there was a circuit split between the night than for a circuit the court could have that one of the implications of your argument that everybody can bring these claims no your honor there is the government is what is the limitation yes your honor there is a limitation when it comes to applying quorum notice and that comes to the diligent portion that i mentioned earlier and diligence of this court has not completely defined what that means but it has to be something along the lines of what a b s requires of a one year one year bringing the we just met we just but we're still going to borrow some things from for maybe a statue when we need it your honor this court in united states versus peter applied corm numbers and peter had brought his claim with the thirteen months of decision being handed down so the line for diligence when it comes to court n you're looking for you're not asking for the government to return or are you asking for the government to return the money that your client already forfeited in his house one hundred and forty eight thousand in the in the forfeiture the government said in their brief that they don't plan to pursue any more of the forfeiture money that's available out there i don't have the exact number but the government said they're not going to pursue any more forfeiture so it's pretty much a closed world haas that's correct your honor yes mr may have please the court i name is lynn and haas and i represent mr ben bain greg ben's father mr bayne joins in the jurisdictional or in procedural default arguments made by mr woody but i also want to talk about mr baines forfeiture stipulation that stipulation bars neither review nor relief because mr bain only stipulated to the amount of money tainted by the conspiracy for which he and others were convicted he did not stipulate that he actually acquired that same amount of money because that latter finding was never otherwise made we asked that this court vacate his forfeiture judgment and remained for a determination of how much tainted property mr bayne actually acquired honey cut says that for property to be forfeit a bill has to be two things has to be one tainted by the conspiracy and two actually acquired by a computer plot which the mastermind of the fraud he had been responsible for the entire of the proceeds of the entire fraud so the proceeds here flowed through a corporation and corporation was not purely the product of the conspiracy had legitimate businesses or legitimate business it had legitimate employees some of the proceeds that came into the corporation could have for example flowed out to an employee in the form of wages that could have flowed out in the form of a payment to a vendor not all of the money that went into the corporation necessarily went into mr brains going around the corporation who own the corporation and if your honor and it is i mean there's no evidence is there that he was paying his employees for example his son salary was thirty thousand dollars a year i mean exact so i'm you're saying maybe the money while other have to look to the language of the statute in the language of the stipulation the statute requires that a court order a person convicted of healthcare fraud offense to forfeit property that constitutes or is derived directly or indirectly from gross proceeds traceable to the commission of the offense mr bayne stipulation only includes that latter part of the statute the natural meaning of traceable to suggest conspiratorial taint not personal possession and honey cut helps us again here it refers to tainted property as property flowing from the crime itself and flowing from untainted to speak to a connection between property and a conspiracy not a connection between property and a conspiratory that was just to make sure i'm following you you're making the point we need a hearing to figure out exactly how this all worked out we need a hearing to determine how much money mr bayne actually acquired from this conspiracy yes or well if if we somehow get around the waiver and more in forfeiture land it means we're plain air land and why don't you have to show that there's been an egregious violation of money i mean that as opposed to saying let's go have a hearing and see exactly what happened but we can't we can't at this level make that showing and we're not we're not able to bring additional facts and at that point that to me also creates another problem if this is subject to procedural default then you have to you would have to show cause and prejudice you're admitting you can't show prejudice well i don't know your honor i don't say i'm conceding that he can't show presents i'm saying we don't know what the presidency suffered because those findings were never my times these things are done through ineffective assistance claims right they can be yes that's a viable  viable path but but in this case i think that allows you to be at the trial to get the evidence out there yes your honor that's a possible path i don't think it's a possible path here unfortunately and greg procedurally defaulted by failing to show causes and prejudice as john has indicated but ben ben has conceded that he cannot show prejudice and in fact if this case were to go back for reconsideration the united states would seek to hold him responsible for the entire seven million dollars that was paid to buy medicare and medicaid on fraudulent claims the only reason that the for my judgment was limited to five million eight hundred thousand dollars was because of the stipulation that was entered into a no most likely but if the united states were able to prove that the great being had obtained those assets then we would be able to forfeit the forfeit assets to satisfy the forfeiture money judgment but there would be a funny cut issue there because we would have satisfied that he had personally obtained those proceeds but no for all practical matters in this case we will not be seeking but this is not by and i mean somebody could come next year and do have a different view of it right i mean  property to satisfy the forfeiture money judgment but also with and with respect to prejudice to greg again he had a restitution obligation of over a one million dollars and the united states and he paid virtually no money towards that restitution obligation had he objected to use but that's not the way the government chose to proceed at me chose to proceed by allocating the money the way you did and so to come back now and say it would have been ok if we did it the other way i don't know when we chose to pursue that way because there was no objection we had two pools of assets for which is satisfied two different obligations restitution and forfeiture and the fact that we chose restitution from the forfeiture sue the policy of restoration or remission so the funds are really treated interchangeably to the extent that they are st being used to satisfy restitution but even if the court even if the band had somehow shown prejudice they haven't shown cause to excuse their procedural default because as court no there's nothing novel about the rule that became the rule in honey cut when the supreme court decided honey cut it did so based on the plain meaning of the statute and a nationally d s i just don't understand why someone's not saying trying to fifty five occupied the field that was just let me say straight let me say that now a federal district court blacks and haron authority to modify a sentence outside the framework provided by statute and the federal rules of criminal procedure congress has only authorized a direct appeal of a forfeiture order and has specifically limited collateral review of the sentence to issues pertaining to custody so a coroner was cannot be used t challenge a final order forfeiture or any other monetary penalty included in a sentence to exempt form no survives at all it is only available the only difference between it and he b s is whether the defendant is in custody as the supreme court has recognized and other circuits have held and in other words if corners relief is available at all it is only available to the extent that the same relief would have been available to a defendant who is incarcerated to review where no right has existed in the st place and now i would be happy she the defenders didn't really address whether this is a fundamental error in their case i'm happy to address that if the court is  honor there's a few things to note about but the government is just they've argued that the could have used forfeiture without joints of a liability but against mr gregg banging that's not true because mr gregg benefits many of the proceeds of the fraud the only reason they were able to go after him at all was because of joints of a liability the district court found out they said they could have obtained through arrest to sion your honor that what they could have done we don't know because the restitution has been satisfy your the burden is on you to show prejudice i think that's the point and yes your honor prejudice was found in this case because they took his home and they took his car without having the statutory authority to do so at all if they would have had that authority to get it through restitution what difference does it make your own agenda they couldn't have your honor we don't know whether they could have done it the restitution that because that's the problem for you you can't stablish prejudice your honor it was prejudice by taking his heart his car in his home without having the authority to do so and as the court as a seven circuit shown and united states versus mischler it was similarly prejudiced to have a faulty audit that granted a faulty restitution and that was prejudice in that case additionally  what about her her argument about corum nobis and forfeiture and in forfeiture you know her point is if you want to challenge that congress has given us the right of direct appeal and limitations so this works it just seems very funny your honor i want to be clear about that we're not using havey as to say that maybe it's there for gives no it's just that they track each other very closely and this court has done that in the past when applying court notice cases they've looked to ha except in the appointment and and mr haas understand you also accepted this appointment we appreciate you doing so and helping us with our work this morning i think we understand the case thank you