case number five appeal sixteen thirty one thirty four united states versus anderson government has conceded that to the district courts restitution order in this case exceeded that which was allowed by law the restitution order was four thousand one hundred thirty one dollars the government now states that the correct amount of restitution is four thousand and ninety one dollars and on that basis alone we believe the court should remain on the case for the district court to recalculate restitution now given that the bills reach amaj as a result of mr anderson's criminal act given he why does the bank's ability to eventually we slate those bills matter for purposes of restitution he not only helped steal those bills but he was in a real sense responsible for the fact that they were marred by the red you know the dye pack and the bank has lost the use of those bills for some period of time at least so why not include them in the restitution amount well i think they were returned in a sense and that the government now has  statute states that if returning the property is impossible impracticable for an adequate then the defendant must pay restitution and we do not believe that the record as it stands shows that it was impossible or impracticable or an adequate for the bank to recoup the those those bills from the department of the treasury based on  the information that we have provided in the opening brief regarding the treasury department's regulations for replacing damaged money now we believe the record  sufficient for the district court to to make that or i'm sorry for this court to make that finding that it was not impossible or impracticable or an adequate for the bank to recoup that money however i think we would and we would not oppose if this court were to remain and the case for restitution to make for the district court to make additional factual findings on that issue specifically whether it is impossible impracticable or an adequate for the bank to recoup that that money i mean trying to imagine the district judges response to that remains and over a two thousand dollar difference about its damage bills will let me ask you if i could mr moans about waiver here yes this is an adversary process in the district court you seem to be arguing that unless one can divine the strategic reason for letting the issue go then we should not treat it as a knowing and intelligent waiver of a right that is one one aspect of our our are we ever was i confess something of a mystery to me but if if in trial the prosecutor says i offer government exhibit one the defense replies no objection that's a waiver of any objections right correct without asking whether there were strategic reasons or whether the counsel explained all potential objections to his client and the client agreed right correct same thing with jury instructions the judge says here's how i plan to instruct no objections we treat that as a waiver right again without then of exploring the strategic or psychological aspects of that decision correct so why should this be different since it's very clear that there were opportunities to object in both of the sentencing hearings and the defense may no objection well i think there's a general response to that question and specific response and my general response is going to help us straighten this out i would well my general response is that courts construe waiver in favor of the defense when it comes to issues on appeal and that is a long standing short what what about the trial exhibitor the jury instructions and it turns out there was a hearsay objection that could have been raised and you know oftentimes that issue would be reviewed for plain aries so there is the difference between waiver and forfeit and we can see that this case should be reviewed for plane air you know i think in the case of evidence that is admitted over or without objection by counsel that issue would often be reviewed for plane air rather than a finding of waiver so i thought we just agreed in the no objection means well i'm there are plenty of opinions where people try to get out of that and will say well it doesn't matter because it would be x and we'd affirm on both grounds as well on this issue we are arguing that really two things one is that there could not have been an intentional waiver because the amount was never properly calculated by either the pre sentence report which came up with an amount of on three thousand six hundred seventy six dollars in restitution and then the government at the sensing hearing came up with the amount of four thousand one hundred thirty one dollars and  now the government says the correct amount is four thousand and ninety one dollars so we do not believe there can could have been and knowing waiver of the issue because the proper amount was never presented to the defense in this case and then there's also more of a legal issue which is based on the cases that we have cited from other circuits holding that if rests if the  argument is that the restitution order exceed exceeded that which is allowed by statute that issue cannot be waived because it's similar to a sentence that would exceed the statutory maximum  and we're asking the court to to follow those those holdings or are you suggesting that a factual dispute about the appropriate amount of restitution can never be waived resolved by agreement if you you if if you're going to stick to your analogy to a sentence above a statutory maximum well i think that is you know i think it depends on the factual dispute  but you know i think that is the holding of those courts they don't seem to make any limitation if if the issue is that restitution exceeded that which is allowed by statute it cannot be waived doesn't mean it can't be forfeited and reviewed for plain error but that it cannot be waived now it could be i believe part of a plea agreement where it's waived and is usually an indisputable court record identifying the offense of conviction right right right what you're telling us is that all sorts of messy factual issues about just how much particular victims lost in particular financial crimes whether it's a robbery or a fraud or you know i mean causation and fraud cases can be just god awful messy that that can never be resolved by agreement it's always available to dispute again on the theory that it's above the statutory max and that can't be right can it we're not saying it can't be resolved by agreement certainly a plea agreement could come up i thought you just told me that if you're using the statutory maximum sentence analogy that cannot be resolved by agreement and the court could restitution case is the value of the property on the date of the loss so if the argument is that the restitution order exceeded the value of the property on the date of the loss that would be comparable to the restoration order exceeding the statutory why the government's fight because because and if you tried to exchange the money for new bills no judge so how do you know they can't be replaced i don't know but i think that the pressure that the defendants position here really unfairly puts the onus on the victim bank to go to navigate through that process which which you know on its face appears to be one that is discretionary subject to this sort of special review process and also subject to settlement it's not at all clear bank would be made whole by virtue of that process well and i can't guess yeah why are we guessing well because the money was used it was introduced as an exhibit at the defendants at trial the defendants co defendants and brothers trial and it's you know it's the government's prerogative to introduce what it used to be the most compelling evidence in this case and this case was tried by one of my colleagues that in this case my colleague decided that actually showing the jury that burned and dicing money was had some value so it's actually in the in the court record but the reason you know i want to talk waiver just because i agree with you if this case doesn't constitute waiver it's hard for me to imagine one you have made way you've made your position clear i still don't understand why you're arguing about of the money is in the government's custody right because been no attempts to try to determine whether it's it's due to be heard let's suppose you weren't damaged and and what we're talking about here is not set right we're not talking about the total loss we're talking about an offset the defendant bears the burden of establishing his entitle me to one side this wasn't an illegal as the defense has suggested and legal restitution order which you know ordered the kind of pay more than what he took from the bank that's a very different issue what we're talking about here is whether he's entitled to have that amount reduced by a certain amount that's where the dispute lies here yeah but court and i'll be honest your honor i never heard of this exchange program before the first time i ever heard about it was when it was raised in this brief and this and his second appeal before this are tempted to tear this dollar bill in here but there's a difference just between tearing a bill  destroyed by fire chemicals or an explosion and that's so that's not the same thing and that's that's why it's anybody you look to see whether there's more than half of the bills worked you know i have not your honor isn't that kind of the crux of this issue i don't think so because again we're talking first we're talking waiver and we're talking plain air and forget about the waiver for a minute this is i can't believe we're having this argument frankly and nor can i be you travel here arguing about something we don't know the least bit about factually and over twenty one hundred but you're right and it's because the defendant never brought this to the district  address it and that's on the defendant's maybe the judge should have said can raise bills be replaced i don't know if that was the judge's obligation or not it's not that this was hidden from the judge first so we have two different judges here we have judge  we were at you know again i'm admitting my forty dollar math error we have a reference to twenty one about twenty one hundred seven dollars was recovered but they were burned and stained there are nine usable so you know it's brought to the court's attention the defendant signs off on it there the judge says is that right mr anderson and mr anderson's attorney at the time says yes i you know miss watts can talk to us about it this morning we agreed and i talked to my client and  we agree and then it's later be forged you know we go on appeal this issue is never raised on his direct appeal and then we come back for recent unseen on a thompson issue in the meantime it's been reassigned to judge edelman who has also who also in the interim presides over the codefendant and brother's jury trial and some of those bills going into evidence and knows that they're now in the courts possession and so again at the recent insane hearing is there any issue with restitution mr anderson no there's not so i don't think the onus is on the government under those circumstances or the district court the onus is on the defendant to raise the issue it's his burden to establish that he is entitled to an op set and i know it's twenty one hundred dollars and it's the government's burden to establish a proper amount of prostitution and where the government has had possession of this money that was stained i think it's it's not unreasonable to us the government to take that stuff for determining if it's for place simple it is within the same executive branch with the treasury department so so you know further burden shifting the initial burden is on the government and twenty one hundred dollars it's not insignificant i don't believe mr anderson he is indigent i think he's serving a prison sentence i believe money is is already being suppose subtracted from his personal account so so the twenty one hundred dollars is not an insignificant to mr anderson as we sat it when we believe that we do not oppose if the court mans the case for further factual finding which we believe the government's presentation demonstrates