morning please the court my name is john kline and i represent the appellant anthony rutledge senior there are three issues that we raised in this case all going to a quick conviction restraint of assets but those issues have certain things in common the first is that the district court here did not interpret these two forfeiture statutes that issue eighteen u s c ninety one and twenty eight u s c twenty four sixty one the court did not construe the ambiguity as in favor of the defense in fact the district court gave these statutes a reading that goes beyond their plain language and beyond any permissible reading  the what the district court did through this interpretation is give the government a weapon through the combination of ninety one and twenty four sixty one see that effectively allows it to seize in forfeit the assets of an entire corporation if the government alleges that a single officer of the corporation scheme to defraud the corporation itself out of assets for the benefit of the officer which is the allegation here was an act in two thousand as part of kaffir extends to mail fraud and wire fraud at all the only two courts that have considered this issue with your district courts and different districts in pennsylvania have held that the statute does not reach mail fraud  the way the courts came to that conclusion was fairly simple they looked at the plain language of twenty eight u s c twenty four sixty one c and twenty four sixty one see applies when there is no specific statutory provision for criminal forfeiture upon conviction and the the two courts the croce court and the grass court in the middle district in the eastern district of pennsylvania found that there is in fact  because they got this i don't know well in there that's the government's position here and i think there are a couple of problems with that one is it's an odd way for congress to accomplish the result it wanted if it met through twenty four sixty one c to wipe you think so yes they'd be no need for the other the other bit of legislative history that sort of counters or cuts against the government argument here is that the approach the government itself took when it drafted the predecessor to cap to twenty four sixty one c now if you buy the government's argument that the reason the expansion of the criminal forfeiture stats you didn't make it into the final bill because congress already did that through twenty four sixty one and it wasn't necessary then why did have it in there in their version of the statute they had it in there because that was not the purpose of twenty four sixty one see at all what twenty four sixty one c accomplishes is two things and you can glean this to some extent from the house report on which the district court rely twenty four sixty one c solves the problem when you have a criminal statute that that has a forfeiture provision in it but doesn't specify whether the forfeiture is criminal or  and the house report itself cites two examples there are eighteen u s c five forty five which is a smuggling statute and there's eighteen u s c nine hundred fifty five which is a gambling statute twenty four sixty one  allows the use of criminal forfeiture in that circumstance where you have a criminal statute that has a forfeiture provision in it but it doesn't specify whether it's several or criminal the other thing that twenty four sixty one c does it takes care of the situation where you have a criminal statute you have a civil forfeiture provision for that type of criminal conduct and you don't have any criminal forfeitures that you at all and example of that is securities fraud and this this is the cause in case that the government relies on the the enron related case from the southern district of texas there you have securities fraud which is a criminal offense through a civil forfeiture provision for it in ninety one but there's no criminal forfeiture provision at all and in that situation twenty four sixty one c applies that's what the statute accomplished it did not set about to wipe out without telling us without amending i need to the factual predicates that ninety two requires a government approve two affecting a financial institution telemarketing or f b i c r t c property then it can go under ninety two if it can't meet its roof under ninety two then according to the government it goes through the backdoor twenty four sixty one say that can't be what congress had in mind and to the extent there is doubt about it an ambiguity in the principles of interpretation we talk about in our brief those have to be in our view resolved in favor of the defendant in favor of  situation they have alleged forfeiture in the indictment we're not contesting that you know the sufficiency of the indictment or anything like that what we are saying though is that the statute that they rely on in this case ninety one in conjunction of twenty four proceeds is defined in ninety one and i'm paraphrasing here but essentially as property that is obtained as a result of the commission of the offense so to have proceeds to have something that is for credible you have to have ought to be given the statute here obtains means to gain possession of and the evidence in the district court we had a brief hearing in the district court and the evidence was undisputed that these assets that we're talking about here are titled in the name of unity house which is the nonprofit corporation we're talking about here they the money is in the unit he has bank accounts the property the real property is titled in the name of unity house the notes receivable are given owing to you know the house that haven't been assigned to anyone all of this property is in the possession entitled to unity house none of that is in the possession of mr rutledge he never obtained it and and this your honor gets to the point about but you have there a situation where a corporate executive is charged with using his power over the corporation and his domination of the board of directors to loot the corporation to wind his pockets and allegedly m took millions of dollars out of tyco by his dominance of the board to get them issue him bonuses basically do whatever he wants with the corporate assets under the government's theory here because his scheme allegedly mr  obtain control of the corporation through deceptive means under the government's theory it would be able to forfeit seize pretrial and then forfeit not just the money that mr cuz ascii actually took out of tyco those millions of dollars that found their way into his possession if you have a conman who preys on a widow an elderly widow and takes her into his confidence and convinces her to do whatever he wants with his money and let's say she had a million dollars and he gets gets her to send five hundred thousand of that million dollars to his bank account the other five hundred thousand dollars are still sitting in her bank account and he gets picked up arrested for his for his offense and charged under the government's theory not only couldn't forfeit the five hundred thousand dollars that he diverted into his bank account which makes sense it can forfeit the five hundred thousand dollars still in her bank account because he controlled it he had through his influence over her through his deceptive conduct toward her he had convinced her to do with that money whatever he wanted now that's just wrong that can't possibly be what the statute means and of course it is wrong because if you look at the plain language of the statute there have to be proceeds and there are proceeds until the property is cites involve people who have taken the things that are already proceeds and put them into an alter ego corporation and then try to say you can't because it's not money that doesn't work but still you can imagine a situation but not on these facts here boiled down is basically a garden variety case of a allegedly this is the government's theory where an executive through for whatever reason to force a personality or more time on his hands on the other board members or whatever dominates a morning i mean please the court patrick murphy on behalf of the united states we agree with the defense that the three issues in this case are all somewhat related but that is actually how where we diverge paths with respect to the first issue raised by the defense on whether or not for sure itself is available the way the statute is written makes that if a forfeiture of property is authorized in connection with a violation of an act of congress and any person is charged an indictment or information with such violation but no specific statutory provision is made for criminal forfeiture upon conviction then th all those statutes if those statutes didn't exist and there was a civil forfeiture and criminal forfeiture and you read the statute it would apply you think forfeiture of property that's not limiting civil or criminal  authorized in connection with a violation of act of congress and a person is charged as he was here this language clearly covers both situations the defense refers to the croce case out of  eastern district of pennsylvania that case decided by judge sauls out is just a he didn't have the benefit of any of this argument before he made that decision b there are a number of the surgeons in that case fifty years ago it only started with rico and then we had the advent of fifty three and it has and then congress added particular statutory and demonstrate probable cause if you want to restrain something all of which was done here and then prove it at trial which is yet to come so the development of the law over time certainly indicates congress gaps the title of section twenty four sixty one in the bill was encouraging the use of criminal forfeiture as an alternative to civil forfeiture the title tells us what they wanted to do here and tells us that this doesn't crack the plot different well i think i think it will either the stack there or the legislative history with respect to this particular bill also indicates any time anybody spoke about it they said hey we need to expand criminal and also pretrial restraints which is the second issue in this case are are necessary the defense is interpretation of twenty four sixty one he would have it be that congress enacted a law that it's designed to encourage the use of criminal forfeiture but in fact only expanded civil forfeiture and didn't provide any mechanism to provide to preserve the assets  sightsee fifty three which is the statute we're talking about here now the defense's argument in this is well there's the supine conviction language in the statute says upon conviction the court forfeiture of the property that is what happened upon conviction the court orders for future of the property there's nothing really remarkable about that what congress did in this section however was exclude which says you paid back the people who were the victims of the crime there are twelve thousand people here whose money this was right there get nothing out of it and thought going into the you didn't name or you didn't name or and you didn't you say i don't believe we did i mean misspeaking on that but let's assume she was the fact still demonstrate we would assert if this were back down to actually be addressed by the  incorporation which the defense put in them in the record during one of the multiple hearings they had and those are up to seventy five of the excerpts of record say that to you know a bank account which is something which has the banks has the money right could you can afford you can for from the bank account depending on the nature of the crime alleged absolutely wrong i really am confused lay or any other officers or directors that is a fundamental problem with their complaints now they never said oh what about what about us and also not a single member of unity you didn't bring them into the court room that you know anyway shape matter of form we have no need to and but of course not if i don't have any one of opposing what i want to have happen i'll get my way through that's wonderful but into the court room yes or no not other than they were well aware that the the how were they well aware they were served with the you served twelve hundred copies of  you you're saying that the real state of that corporation was that changed by right like correct all control over every membership or whatever after you take everything and that is the point of forfeiture law under kaplan prize dalan just generally we're supposed to try to give it back to those who were victims whatever they do they file a claim operating in such a way that that everybody's getting the benefits and there's you know putting a part internal for financial improprieties it's actually being done exactly as it should be done exactly  he's been part of for many years has been taken over by the i r s he has a right to indemnification which was approved by the board of directors in accordance with the holy law on the advice of counsel that has been that was terminated the day the i r s took the institution over they terminated that which means he's not able to pay for his defense in this case that's part of it and his plans and his salary was cut off so he was of course fired from his job as was by the way miss healey if you want to know four mr murphy cited to page one fifty two of the excerpts of record as something ms eally was involved in well what she was involved in according to this affidavit was as part of the executive committee the committee of unity house which is one of the duly formed subcommittees of the board she approved with other members including the general counsel a consulting contract that's the extent of her wrongdoing here and yet she's been taken out of her job by the i r s and put out on the street  the other thing i wanted to say in this is in response to judge duffy's point the third parties in this case the beneficiaries of unity house this this property becomes the government's property if it gets for can file if they have the wherewithal to to hire lawyers to make claims to meet their burden of proof they might be able to get something out of it but it's going to be their burden they're going to have to file the wares and these are not wealthy people these are working people who are going to have to try to do this the bottom line is