good morning morning my name is steve jagger and i represent the appellants and dragons i would like to reserve three minutes for everybody you may and raped during the sentencing hearing the district judge stated if i had to do this case all over again i may have done it differently mr drugs is here today to ask you to grant that request for the fall first the court erred by failing to enforce his own orders under the power of inherent authority second the court erred by finding saddam unity precluded sanctions against the government and third the court incorrectly determine the scope of the forfeiture order turning to the first issue and the district court ordered the government to return or compensate mr dragons for his lawful property on at least three different occasions throughout this case however such orders were never complied with by the government nor were they either enforced by the court the supreme court has recognized several focuses for inherent authority among which include the preservation of judicial integrity to maintain the authority of a miti of the court the district court in this case has marred the integrity and dignity of the court in fact this case is similar to a parent creating rules for a child and then failing to enforce those rules i don't believe that there is i believe there's two separate issues first of all there is whether or not the court could enforce his orders and then there's the issue of whether or not sanctions can be imposed i don't necessarily think that they have to be lumped together even if they a together i think you can find circuits throughout the country that have said that in cases such as this the government can in fact still be sanctioned for instance the fizzer kit has held as well as the eighth circuit in whole or supervisory power in criminal cases when confronted with extreme conduct they left open the possibility of sanctions but they found that sanctions one appropriate under the facts of the case also if you return back to the fifth and the eighth circuit they go say that mr drove ins should be entitled to be put in a position that he would have been had the court complied with or have a government complied with the court's orders from the beginning so that would include compensation for the items destroyed you know as well as and you don't seem to embrace maxim do you want us to be i don't want this court to say that when there's a clear finding of bad faith by the district court when there's complete clear orders by the district court for the government to do something and then that bad faith and that faith the government fails to do it that sanctions can be imposed upon the court or upon the government by the court in those circumstances i think that several other circuits throughout the country do that even two weeks ago the fourth circuit just found that when a court sanctions the government in a criminal case for its failure to obey court orders which is what we have here it must use the least severe sanction possible to adequately punish the government and secure future compliance well part of the problem is i think it's unclear as to what the plane will be because you know until two days ago we didn't even have the list of what items were actually returned to mr programs so now we can finally start the process of going through that list and comparing it to what he document that we literally got two days ago that mr jordan's needs the time to go through and compared to what was actually returning which list it came from and let's not forget that this case became so convoluted by the government that they had to produce a list of lists just to keep track of all the different things that they were actually doing so i think the government kind of even lost track throughout this case as to what was legal what was illegal and part of that reflects back on you know i don't want to say incompetence but it has to be something and if the government appropriations clause article one in the richmond case the supreme court stated that the payment of money from the treasury must be authorized by statute is there some and in light of this expressed wording is there some other statute that we should look to to but this really well i don't necessarily think that there's an expressed action that's on point here but i do think that article three of the constitution by the very nature of the court's existence has to have some sort of impact on this court's ruling without the ability for the court to enforce some sort of order against the government then it seems that the scales of justice are basically the federal tort claims that is one way however again in this case you know it's been so confused by the government since the beginning that we wouldn't have any kind of firm ground to move forward on the fed federal tort claim act and to return to your question about you know whether there's any explicit statute let's not forget that in this case in march of two thousand and nine the government offered reimbursement mr dragons for the wholesale price of the consumer fireworks they then later claimed ok well we're not going to do that but even after claiming immunity they again returned in january two thousand and eleven and you fifty percent for the of the value of fireworks that we took so arguably you could say by that offer they'd waive their hooty or at least agree to compensate him for those things and again i think you can draw the line between the  sanctions issue which can and our eyes would cover the attorney fees and costs from the ability of the court to just and force the order that it set forth against the government three times what we spent some time on the sanctions issue and sovereign recommendation mr regain is only one sort of very limited narrow objection to that and therefore he's waived objecting to all kinds of other things and then you've got the  the standard the standard is that a policeman has to be knowing intelligent and voluntary in this case it's difficult for us to understand how mr drones can be held to the standard of knowingly agreeing to forfeit something that the government at the time of the p responded yes sir i do right and the court says if something has been determined to be a display fireworks so to me that would only cover up until the april plea agreement not anything that happened after that fact and most of the items in this case agreement that the defendant agreeing to forfeit fireworks that you guys determined to be illegal and death to display fireworks so everybody understood at that time to all of said several times on the record that the scope of the forfeiture was a separate matter that they we're going to have to take up at a later date and he flat out said i'm not sure how we're going to deal with that yet we got to remember there was eight hundred thousand pounds of finally taken in this two hundred and some on talent and these are the consumer artwork those are some of the consumer fireworks some of the consumer fireworks were destroyed and you know none of that gets into the whole classification issue that we think that they're testing process was and correctly done so what w deemed consumer versions of to really challenge the testing process in any way you haven't suggested any other testing process right we did we actually suggested that the c p s the standards that govern consumer products including consumer fireworks should have applied in this case because that those standards are first of all directly over consumer products and second of all do a more fair assessment in terms of weighing and how they go about their testing procedure ok for the salt let's see if your time this expired and think i would give it please the court i'm candice hill i represent the united states in this case and it is confusing and i'd knowledge that it's confusing so i brought a prop with me and like the fireworks that were seized in mr drug case i've marked and seized fireworks length of the case is directly attributable to the huge quantity of illegal fireworks that were seized in this place but it's taken them over over two years to sort these five words out have it started here and two thousand and seven when they were first sees the original seizure the original search warrant allowed them to search for and seize illegal fireworks that were in mr dragons warehouse that turned out to be only approximately one half of what a t f learned were in route to mr dr delays in this case didn't cause problems but the question of whether there is some legal requirement for a t f to have the mediately begun testing those fireworks there simply is no law to the fact yes contests that the consumer using them to test at the in october of two thousand and eight about three months after mr drug and i suppose indicted he moved for return of his legal fireworks and that's when it became evident that the return or it hasn't been mentioned payment for those legal fireworks would be the remedy that he would be entitle to under criminal rule of criminal procedure forty one she has only remedy was return and we acknowledge that that is a concern that that i have obviously addressed in our brief there was a lot of mistakes made there were mistakes made on both sides in this case and those mistakes did not rise to the level of bad faith the court in his rulings concluded that his of the government's failure to comply with his orders constituted bad faith but i made a note when counsel is speaking because he reflect he said that the the court had failed to enforce it clear orders well with all respect to judge bunning judge manning himself had orders that said you can you must either return the fire the consumer fireworks the green fireworks or pay for them and that was a mistake compound it in many ways but both parties belief that that was possible and it was and i would like to clarify one thing here the green fireworks and those were determined to be green fireworks when a t f finished their assessment of the fireworks and determined which ones were just plain far as demonstrated by the red list in the question of lists and orange final determination to make one thing clear to he had that they returned to him in two thousand and twelve once the court made its decision he got a bill of ladi got a shipment of hundreds i think it was in the order of two hundred sixty two thousand pounds of fireworks he got a list called a receipt and released from a t f this week but that is not the return of the fireworks they were returned over a year ago when the court determined that a t f determination of what was and that was that consumer of what was a display fireworks was appropriate and that gets to the question of whether the district court made any kind of mistake in determining that the display found works as determined by a t f were subject to forfeiture and of course too there's this question of the orange fireworks and i can briefly discuss that mr drogue gains did not object when the  said those fireworks on the red list which had been in the record since two thousand and ten this wasn't some new list it was produced at least bastien saying unusual and i believe it was sometime before sentencing but at the very latest that red list existed in two thousand and ten in i think it was in july up on some of april when he was sentenced to two thousand and ten the magistrate judge after here after two years of litigation hearing the record said the re list that the united states produced back in two thousand and ten accurately lists those things which are subject to forfeiture and the preponderance of the evidence put on by the government in this case supports that forfeiture mr dro ere too far past that at the orange bus did not exist at that time any or solicit existed but the orange list represented those fireworks that simply never been tested by anyone for reasons that are not of the record in some cases where the   works that could be payment and in an effort to settle this having not tested these the united states also thought let's just pay him for the orange orange fireworks as well well the magistrate judge said the orange fireworks part of the fireworks had to be returned to mr drogue gaines and it couldn't be told whether these were display or whether they were consumer fireworks which are explosives under the criminal laws of the bureau of alcohol tobacco firearms and explosives we couldn't just give him back to splay fireworks so in june he was put on notice that the government was going to have to make an assessment about whether the orange fireworks were consumer fireworks display he knew that he was put on notice of that in august of two thousand and twelve at the oral argument the court heard on the objections to the judge a report we produced to mr drug gangs and to the court a letter and an assessment of the testing or the assessment that had been done between june and august and the judge accepted that letter accepted that evidence there was no objection to the letter or to the evidence and i mean i know that there's been a lot of delay in this case and there you argue that it's reasonable in your counsel opf that argues that it's unreasonable but i need a perfect example of when the law allows sanctions to be opposed against the government but i believe the position of the united states that's at issue there is the position of whether or not the defendant should be charged with in his ultimately liable criminally for the for the offense with which he is charged and i believe the hot intimate specifically is about whether or not an indictment or criminal charge against a defendant is that satiates or unreasonable and that of course there's no question in this case that it was a reasonable prosecution it just took a long time to get involved so so yes that is an example of when congress has specific authorized sanctions against the government there is no such such expressed way for sovereign immunity for this kind of behavior and again so  you're absolutely correct that there was no discretion what there was has the legal bar to the payment that the judge thought and the united states thought and the defendant saw one of that in one of the options was invalid being the government's only alternative took their time it took fathi is no sir it did not take five years it took from the time they were seized in two thousand and seven until before he was sentenced in two thousand and ten for the government to make that decision but they didn't judge mark with all due respect if you as a district courts judge said return or say and that's what the orders were in this case and the government believes that it's plausible to record in this case shows that the united states knew for destruction of the fireworks because the value of the part of the cost of storage exceeded fifty percent of the legal power and god knows case is astronomical it's not that we'll pay percent that we could but even if the value of storage became an issue in that whole calculus was there consideration of just returning because willing to store and relieve the government expense but i know that the light is on and i'm just making that comment but i want to have one final question so if what the court is talking about contempt power it's two fold either a fine or jail obviously can't jail you know the government so so what going back to judge marcus questions if we find content what do we live with here well in a criminal case for everyone who's tried criminal cases there are lots of things that can be done in any criminal case if there was a significant delay that warranted speedy trial relief if there is a significant delay in discovery i don't know the facts of this case and that's what exactly we need to come back to none of those remedies were sought in this case mr broking student claim that he was denied a speedy trial in fact he moved for continuances he never said i want that x that evidence excluded from my case because of discovery violations because i don't yet have the all due respect your honor when the judge when it was found me determined that payment was not an option as a matter of law that's when it was clear to the a t f that return was the only option i know when my time is up but i do want to add one thing and that is that complicating factor of the condition of the green fireworks of the fireworks that have been along with red and orange fireworks subjected to more easter and to exposure that could risk the safety of people who were going to use those as consumers and that is why among among the reasons the government was reluctant to return them but there was no refusal to return there was an effort to try and resolve the government come back to the court and say judge we're trying to comply with the order but and examining these fireworks we found that they had been voiced they were damaged and we're concerned about public health and safety that was exactly what we meant to went to the magistrate judge with when these were referred to the magistrate judge the suggestion that there was a concern and the original letter that was written on march eleventh of two thousand and eight said we are concerned that the condition of the fireworks makes them unsuitable for putting into interstate commerce which was a reference to the public safety as well as the transportation the united states argued to the magistrate judge that all of the flowers ought to be destroyed because of the risk that they posed and that was what in fact the magistrate judge rejected because she rejected the opinion of the agents who had voiced that concern but as having been about the impact they were all or most of the green list fireworks ultimately returned they have all been returned to mr douglas all this concern about instability of the fireworks and possible danger as some point this was was allayed it was never allayed that concern is still there but unfortunately there is absolutely nothing in the law that allows the government to withhold from the in the fireworks explosives law that allows the government to withhold from return to mr drove  items that may pose that danger that's one of the things that took a long time in this case to explore some way and there simply is none and the stroke against himself has never suggested that they might not the the means that were consistent with the department of transportation's shipping acquirements which is with the plaque carting in with appropriate separation within the shipping it was done and of course the question of shipping and the question of whether they still pose a danger basis upon which the government should prevail in this case this case is a criminal forfeiture it's a criminal case in which the defendant pled guilty to selling display fireworks which he had no license to sell they are explosives he agreed  f could determine which routes display fireworks and the a t f did that and with respect to both the orange and red listed fireworks this case does not involve anything more than that at bottom obviously there's a lot more involved in it he's gotten back the green fireworks that were not display fireworks and he has no basis for seeking money to have the money sanctions against the united states under the doctrine of sovereign immunity his efforts to recover money from the united states were through the federal tort claims act in which he filed claims with a t f that were the equivalent of administrative claim what's troubling about this case is that we have a businessman who yes he pled guilty but he was without his lawful property for over five years the economic impact on his business was catastrophic how the government just done what the district court order to do when the district was ordered to do it the impact on him for the legal stuff that would have been much less let's not forget that the report recommendation that the government focus so much on by the  magistrate found but the actions of the government were just short of fraud they didn't come out and say that it was fraud but they she did find that it was just short of fraud the magistrates opinion also and i have a little bags up here but she she also ordered that the orange i don't be returned with the green items and it was kind of arbitrarily thrown in at the last minute at sentencing when the district court judge said well there's really nothing in the record t what how this was determined to be unlawful at this point but i'm going to assume that you did it the same way that you did everything else and find that you have that subject to forfeiture so all the way up until sentencing it was the impression that you weren't items were going to be returned as well those are still not returned those were stoned and sees me the government's possession another underlying factor in this case is that the a t f really has no jurisdiction over consumer products they have over explosives the c p s see is what governs consumer products so for the a t f to come in and say ok well we have a search warrant for illegal items they did but they also took legal in that they didn't have a search warrant for and in any other taking by a governmental agency the conduct in this case would not have been upheld or allowed to continue the district court would have done something to do it then judge marley hit right on one of my main points that i wanted to get back to was that you know if this was a private litigant doing the same type of conduct they could have been jailed or fined and how the court can adequately function if the government is hands free of any kind of misconduct appreciate your arguments you've obviously spent a lot of time together on this case one way or another and i sounds to me like that's going to continue the way the case will be submitted and the other cases that we have for today are on the briefs there's no need to