now the question that we've raised they're not making a derivative claim they're making a first party claim the congress is making a first party claim to the co defendants or the participants but this is not a this is not a derivative claim your whole argument is that they are their claim to victim status and therefore entitled to family members and the funeral homes and therefore the losses tribute able to your clients conduct they're not standing in the shoes legal sense they're standing in their own shoes as victims of your client's conduct i understand what the court saying i think the problem is is that when you look at the plain language of the statute that it seems that congress was attempting to not have these funds redistributed even to the the families start opening up the restitution to the families of the drug cases the list of victims can go on far stilt even if you look at his mother his mother is victim because she has to pay funeral costs you wasn't there she wasn't at the scene there was nothing that places her there she is a victim  i would like to point out that when we look at the kings that the money that was ordered for restitution part of the funeral expenses that was included by the government was for the the purchase of a headstone in  properly included under restitution and the court wouldn't have authority to order something to be paid in the future challenge the restitution as a whole the government came back and started talking about each of them separately and we responded in the reply i think that we clearly had set out from the beginning that all of the restitution that we were challenging  restitution order right but the argument the sole argument that was made have to do with this interpretive question about whether these folks were participants and what that there had to  meant the withdrawal argument was made by the government we did not make the strong argument you really do not feel that there's any expression under the participant on limitation for withdrawal for minor person purchases and that there's nothing restitution and that the government was essentially skirting that by ordering that same amount that would have bent to a purchase spent two family members and the funeral home right now we're unsure that but you never having at least three opportunities to make an objection to the restitution request in the district court did not do so not at the sentencing hearing not in response to the written filing that the government made and then not at the hearing for restitution worked a full time job she was working a legitimate job not in the drug business whatsoever and at the time of the murder which was in december twentieth left then mr holden had withdrawn from the conspiracy for at least three months at that's that's in the nature of a measure of damages for wrongful death claim and then that's a first party claim that that's it's a claim that belongs to the estate of the deceased and the deceased is a participant so then you're squarely within the statutory prohibition i think that goes to church last question here we do have as our secondary argument that because mr holden did withdraw from the conspiracy that he's no longer deemed a participant and there is in fact case a case cited in the reply brief that does support that it's the same guy case and in that particular case the victim there was once a participant in the crime of alien smuggling and at some point during the crime she changed characterizations from a participant to a victim and the court there held that restitution was appropriate there so if there is some cases where however we're on a plane error standard here and so when we're trying to determine whether or not what it means to be a participant the question that we have to ask ourselves is is this air or this this what draw theory is that something that is so outrageous or obviously wrong that a reversal is necessary and the argument here is no it's not when you're having a situation where the reason that mr holden was murdered w question that he wasn't a participant at that point he was murdered because he wasn't a participant and so rat would not shock the conscience it would not be so outrageous to order restitution in a situation like that so hold that the definition of participant  means that you can withdraw do you have to get into any of that here no you don't because our first position is that the victims here stand in their own she is as you put it that they did suffer losses that were directly in proximity related to that the killing of great holding the i do want to address the two issues one with with respect to the funeral home and the second with respect to the headstone with respect to the funeral home issue here is that the family didn't have the funds to pay the full amount so basically they owed a debt to the funeral home and the funeral home subsidized a portion of the funeral because the family couldn't pay it all compensated by a third party and then later when they're ordered restitution the third party can claim restitution it's often used in situations of insurance payout argument here is that  similar situation where a third party can get paid under a plain error standard it was never challenged in the district court that it wouldn't be so obvious that the funeral home couldn't get paid obviously powers that nine tend that people without means couldn't get restitution or people who don't have the means to run through a full funeral couldn't get reimbursed for that and that the funeral home should be out and that only people who can afford it conduct the restitution that have to do with financial fraud cases that contrast actual loss of intended last this is not a situation where we're looking at actual loss versus intended a headstone is a normal and customary process associated with a funeral there's nothing outrageous there's nothing unusual about getting a headstone for for someone during when they passed away it's a normal expense and it should be included it's actually very modest expense here that was that was claimed and ordered by the district court as it was laid out in the government's filing that the three quotes that were taken for the headstone was only for a thousand dollars but again few that was put on a credit card let's say so well then we would be getting into a situation where they just a court would have to make a factual finding about what's reasonable and under the law under the statute and if i don't think that it would be unreasonable and here's why ron are there are there are cases that do explore that issue they're not cited in that race because that wasn't an issue that was raised however i see those areas and what the judges will do will look at what is customary for those particular types of religious services and there are different types there is they have different expenses instead or what the courts do are they  make a factual finding about what is reasonable and customary under the circumstances and if something seems to be out of the ordinary or unusual the district court has that discretion to determine that that's not fair her small part in the conspiracy she was actually brought over and then used as human slave and they said just because she had something to do with entering illegally didn't mean that she was agreeing to be a slave and so therefore she was entitled to restitution that's very different than what we have here and to your point what are the outer limits i think that is the question here is where does it end at what gramley how many family members i see my time is up  really respond to what the family members are included why should it just be the mother and the fiance what where did it end and i think that that is the question that that is here especially when under this