s this court has ruled in numerous cases consent judgments such as this one are to be in need and to be enforced as contracts in december two thousand and thirteen frederick aaron entered into an agreement with the securities exchange commission in which he conceded the truth of every allegation in the complaint against him number one and number two he also consented to the entry of substantial injunctive relief against him including permanent injunctions against enforcement of the securities laws a five year officer and director bar and a five year bar participating in the issuance is penny stocks and in exchange for agreeing giving up the substantial concessions aaron received one thing from the securities and exchange commission and that was that the decision monetary relief that would be imposed against him would wait until the conclusion  aaron's criminal case which was then pending in the eastern district of new york this case the securities and exchange commission case was proceeding in the southern district of new york and that is what i submit is clearly provided for  section five other december two thousand and thirteen judgment what relief you want from us in this regard september first two thousand and fifteen judgment of the district court finding imposing approximately two million dollars in and civil penalties should be vacated the matter should be remanded to the district court mr for it to go through this exercise one more time and reach the same conclusion well your honor at the district court i submit may well not reach the same conclusion this time because now at this moment mr aaron can testify in his defense as to the issue of monetary policies something he could not do previously but he could well he could do do so by putting himself in jeopardy of his criminal cases criminal cases now been resolved and is there a case that you can tell us from the supreme court over this court that is that's essentially anything that the court needs to worry about has signed off on and that it it is bound by those contrite in the consent judgment didn't say specifically and said you guys were going to come up with a schedule if i'm remembering correctly it did but if you read the can the entirety of section five and proceed only after the conclusion of the criminal case if you take out of that paragraph five only the provision that the district court shall proceed upon motion by the securities and exchange commission that is the commission's argument but that would render mere surplusage ninety percent of that that paragraph and it would completely defeat the purpose of that agreement on the part of mr arrow and which was to reserve decision on monetary policies the mechanism for the briefing to get married at an appropriate time without specifying that any other time would be inappropriate and if this were really a substantive concern is as opposed to a procedural mechanism for moving the case forward after the criminal case concluded the judgment would have been more explicit on that point and the district court with us have been put on better notice that this was a substantive part of me meant well you're right i do have to disagree with the commission and i do think that consent judgment is very explicit on that point and on the timing of monetary policies and to address a couple other concerns are raised by that argument i mean first it seems to suggest that the district court is not bound by the consent judgment which this court has who clearly how that is not the case  secondly that is i don't believe any fair reading of that provision of the contract in this court has held that consent judgments are interpreted to ordinary contract principles under the law and third and probably most importantly if that had been the understanding of the district court at the time that it could move forward on its own motion which it ultimately did in february twenty fifteen to set a briefing schedule out of fairness to frederick area and the district court should inform fredricka are not the time if this is the commission how that view of the agreement they should have informed frederick aaron of that time because i believe any reasonable person reading this agreement at the time it was written would believe that the monetary polic that it needed to do additional fact finding in order to assess monetary penalties and that's in the appendix of five seventy three it issued specific and tori's to mr aaron and to the commission in twenty is that his invocation of the fifth amendment should be held against him and finally in reaching its decision on the monetary policy is the district court did hold mr aaron's invocation of the fifth amendment and his general failure to provide evidence we where is that in the language of this in the in the twenty thirty in judgment your honor is not spelled out in the twenty thirteen judgment but i would isn't that a shortcoming of the twenty thirteen judge i don't believe so your honor i think an ordinary contract does not need to manifest the motivation of the parties in order to be enforceable it may have been a better idea to include it but it renders it no less than forcible for any reason or no reason frederick aaron bargained with the commission to get this judgment the ability to set and amend briefing schedules in the district court's order setting briefing on monetary relief here was a reasonable exercise of that discretion and in weighing in on this issue there are a few important things to keep in mind first is that mr aaron has not identified either below or before this court any cognizable harm let alone shown that a manifest injustice has occurred as a result of the district court's order he has suggested to us today we have nowhere else that if mentioned a lot that this has something to do with the civil penalties and the entirety of the judgment and that's in fact also not accurate the only to the extent there was there was any effect it effected only the one portion of the judgment related to the approximately one point zero five three million dollars in cash withdrawals from accounts containing defrauded investor money from which an unknown pay was at withdrawn cash and which we know mr aaron had it had signatory authority over those accounts and so to the extent he's talking about the ability to introduce evidence it only would have been too in so far as he could show that that undisputed one point zero five three million dollar amount could be  apportioned in some way other than to him because it's a joint and several portion of the judgment but the other two aspects of the discourse meant judgment the two hundred eighty two thousand five hundred dollars and the two hundred twelve thousand five hundred dollars of interlink shares those figures are not disputed and he has only challenge those the legal basis for those and the civil penalty which is based upon those two figures also would not have change with the consent judgment what is your but as we stated in our brief your honor the first i would say we believe this is an abuse of disk question case and not a contract case as my friend has characterized it we're not here talking about what the words mean within the district court's sporter we're actually talking about the legal effect of the order setting the briefing so just to make that point clear and i think even if we were to look at the terms there's nothing explicitly stating that the district court could not do what it did here in fact district court set that amend briefing schedules all the time and those briefing schedule orders have language very similar to this the party shall submit a brief on x day repo on the state and a reply on that on the next date and then the district court in its discretion has the ability to amend that this isn't the case in a vacuum there's a criminal case in the eastern district there's this case a civil forfeit case in effect in the in the southern district and all of the appellant's assets have been frozen right yes that's true so what from the point of view of the f c c what is the harm in waiting a green to wait until after the eastern district case is resolved even if it takes a little longer than we would love in our you know best case scenario ninety days seventy  to try a case well certainly you raise a good question what what would be the harm but this is a this is a question that the district with a falls within the district courts ability to to assess both the district courts independent interests and ensuring the swift resolution of cases on its docket and balancing those interests with the party's interests and i think the district court took what benefit the appellant get from the consent judgment other than this particular allege  benefit that the district court here in the in the southern district would not proceed with the crime with the forfeiture process well i mean just an empty agreement that we really didn't you really didn't  to engage well there's a lot of talk about the fact that this was purportedly bargained for this particular provision was bargained for by by mr aron and that's the only reason why he entered into this consent judgment there's nothing in the record to support that at all and certainly i think if this was a provision that he had bargained for there would have been additional language in the consent judgment itself perhaps even making the consents to liability contingent upon the resolution at a later date of monetary  relief but again the we also have to point out that the district court that that mr aaron received after the consent judgment was entered into he had fourteen months during which he could resolve his criminal case before monetary relief was even touched and during that time there were five continuances of the criminal case and then at the at the meeting with the with the judge counsel trial counsel for mr aaron informed the judge that he expected the the criminal case to be resolved within a matter of weeks and the judge again gave him that time to resolve the case but what happened was that the just that the district judge in the criminal case then continued the case for another year so he got he said there's no evidence that he bargained for this in the first place but even if you even if there were he did get a bit of what he bargained for he got fourteen months where he could focus entirely on the criminal case and yet what happened was fourteen months of nothing and then an additional year of waiting again i think under those circumstances it was reasonable for the district court to take the steps that it did and i should also remind the court your honor that the district court took affirmative steps to mitigate any potential harm that could come to mr aaron as a result of the parallel proceedings the district court called for a dollar for dollar reduction in any civil or any criminal penalties or restitution that would be ordered in the criminal case it's my understanding as he's pled guilty he now has a he has agreed to pay restitution judgment in that he will get a dollar for dollar reduction from the civil judgment and the district court also delayed the enforcement of the civil judgment here until the criminal judgment so this really shows that the court was trying to balance its own independent interests of resolving the case on its docket while maintaining and ensuring that the harm to the to the defendant was minimal  and there's nothing in the record that that occurred your honor is my understanding that that the judge called the parties asked about the status of the criminal case inquired as to why the fourteen months before monetary relief was was even begun and another year and a half after monetary relief had been fully briefed to devote solely to the criminal case and while monetary relief the briefing on monetary relief was taking place again the criminal case had been continued for another year so he didn't have to devote any resources toward his defense in the criminal case so the harm is if any is quite minimal the effect of the district court's order also is minimal and for those reasons the district court didn't  the overall grab them and here was fraud and he can't parse out what portion might have been legitimate and what portion illegitimate so wouldn't that also be a context in which his ability to testify might have affected the the size  stake or am i missing something i don't believe so your honor um first when briefing when monetary and when briefing on monetary relief was ordered he never raised his fifth amendment argument there in fact he only raised his fifth amendment  rights in response to the court's into raga tori's which again related only to those accounts in the in the cash withdrawals so he certainly fully briefed monetary relief without regard to any fifth amendment concerns so i don't think that that would come into play here for an entirely fraudulent enterprise so he's not entitled to any for any fees associated with that work and even so far sam over my time i finish thank you even in so far as as there were legal sort of not per se illegal acts that were done as the undisputed allegations in the complaint and i'll refer the court to paragraph thirty seven and fifty four among others show that those actions of incorporating the permit paid entities and drafting the conversion agreements although not per se illegal were done specifically for the purpose of perpetuating the fraud and so that is another reason why he should not be entitled to receive any fees dollars in legal fees discords meant specifically noted that aaron had quote failed to come forward with evidence of compensation for lawful work the most likely source of evidence obviously being mr aaron himself and that is repeated with regards to the other  numbers that are in the discourse and remedy he failed to come forward with another value for the interlink shares which the district court valued at two hundred twelve thousand five hundred dollars and similarly with regards to the million dollars plus to the quote on known payee he noted that mr aaron had failed to identify amounts that he had not received as a result of the fraud all of those were issues that mr aron could have and could still address were he able to testify without obviously the criminal case looming over him which was why he entered into the two thousand and thirteen judgment in the first place and just to address very briefly the commission's argument that the district court has the ability to run its docket into schedule motion practice that's obviously true for the district courts are vested with great discretion in doing so this however was not a scheduling order this was a judgment this was a judgment that was entered conditioned on mr aaron making very significant concessions about his liability conceded it and as to the appropriate act which will remedies which were severe and which were imposed judge the one benefit to mr r and he did not receive and he should have and i