Legal Case Summary

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. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first What this Court did was it said two things. There is, you could say, an ambiguity and inconsistency. What the Court did with the mandate. The mandate. The mandate was, we affirm Fumos conviction, vacate the sentences of Fumos and Arnau and remand for further proceedings. The mandate vacating the sentence vacates the entire sentence. That's the law from the Supreme Court in Pepper. It's the law of this Court. This Court has often said the restitution is part of the criminal sentence. Most prominent in the embanked decision in the United States versus Leighi in 2006. So the mandate was vacating the sentence and that's how we read it at the time. We recently read it that conclude that you waived the restitution increase. No, Your Honor. We, we in our brief repeatedly over the course of 200 pages linked the law to the restitution and said that the courts and the stakes in the law, which this Court found also required reconsideration of restitution. There was a case where there is no basis, I would say, Your Honor, which it could be said that the government waived its position when it was said over and over again throughout the briefing in that case. What was also said over and over again throughout this case, Your Honor, is that loss and restitution were inextricably linked. This was a case in which the government engaged in quite an extensive somewhat extraordinary effort to list to the penny what was taken from citizens of the alliance and from the other victims. Now, Fumos position is that you're, you're confusing level of contribution to the victims' loss with gain or loot. You're confusing it

. And we don't think we are now. This is moving away from his waiver argument, Your Honor. It's a certain argument, it's the same theme. Well, sure. Well, in this case, loss and restitution are the same and no party ever defeated that. In fact, at the recent thing proceeding, once we got past the defendant's argument that we had somehow waived this on a piece of paper, we had to say, well, it's a very important thing. There was no dispute at all regarding restitution, regarding the number. Even if they get down to the dirty gritty of it though, we're still left here. This court with a highly deferential standard of what the District Court wax off as contribution here. Absolutely, Your Honor. And that's why this is such a rare appeal. There is an abusive discretion standard. But what we have here is the district court had to make a judgment on two factors. Contributions of the loss and the economic circumstances of the defendant. And in this case, there is no evidence, none, supporting the district court's result regarding either. And that's why we're here on the unfortunate. The record is clear that I forget exactly where it is. I think even you had been, the government did it, that this couldn't have come forward without her being involved in the looting. I don't believe we ever said it couldn't have happened. Well, that was a key or I forget exactly, but she was essential or something like that. Well, she played an important role. That's why she was prosecuted

. But he could have easily committed the same crime by having someone else do it or write the checks himself. What she did was, she wrote the checks she carried out his orders. What was essential to this? This crime never happens. If Mr. Fumot doesn't concede it, direct it, profit from it. She is the person that carries it out and she's rightly prosecuted for that. But we never ever have said, and nor did anybody else in the case say, that she was essential or what the district court found was that she was quote equally culpable. No one agreed with that. Not Fumot, not our nail, not the government ever. And it's not supported in the evidence as we explain at length in our brief. We even gave up her on her appeal on her case. We did. In this matter, there's nothing to be gained by it. What we could appeal here would be to get a double the uncollectable judgment we already have. There was no reason to pursue that. What you could get was what, sir? Excuse me, sir. I didn't understand. What you could get was what? She has been ordered to pay half of the restitution owed to citizens, which is 780,000 with him. No, severally, right, separately from him. We didn't appeal to make her responsible jointly and severally for the whole thing because we're not going to collect half. And so we're not burdening the court with that part of the appeal. We're here to say that Mr

. Fumot is the one who took all the money, received all the money, directed the full. Does have some significance in our. Doesn't have some input into our decision making here that that that appeal was discontinued. I don't think so, Your Honor. It was our judgment that there's nothing to collect there given what we know are the economic circumstances. She is now being paid without to speak by any party. She is paying $1,000 a month at that rate to pay the half she was ordered to pay would take 65 years. There's no reason for us to come to this court and say let's make it 130 years, which is what we would be doing. But does it have any bearing on Mr. Fumot's responsibility? No, the district court abused its discretion in letting him off from repaying to the victim half of what he personally took and he put in his pocket. That every what we've explained that over 96% of the one and a half million dollars that was taken from citizens alliance we traced directly to him not just by a ponderance of the evidence but without dispute. And he is being allowed not to repay three quarters of a million dollars that he took from this victim. That's unprecedented in the law of this court in my experience. I think in anyone else's experience. That's what we're here to appeal and the other important point looking at the economic circumstances of the defendants is that if this is done properly as it almost always is if he's ordered to pay the money he personally took we will we could collect that faster than I could walk out of this court. This is someone who has all of this money. This is not Miss Arnau where we have to wait 65 years. That's why it's an abuse of discretion. Can you address the waiver issue? The waiver. Well, I'm not clear where the defense stands on that right now. They are I think they argued waiver and their brief and then sort of backed off on that in the in the reply brief as I understand the argument right now. The argument is that the government in its first appeal did not argue restitution and they have said in our brief we may have asked for it in our prayer for relief but it wasn't argued

. It wasn't explained. That's wrong for reasons I'll explain but then the argument goes further than that and I think it's quite remarkable in saying that this court essentially made that decision that the government had not argued the restitution without saying it and that this court sub-Solensio decided that it wouldn't address restitution I guess because the government wrote a poor brief and wouldn't say anything about it and would let Mr. Fumma walk off with two million dollars that he took not just from citizens alliance but from the Senate and from the Independence and the C-Port Museum as well that would be a stunning mandate for this court without explanation to let somebody not repay half of what they took. Now did we argue it in our appeal absolutely you can look at the government's brief as well as we can page after page we linked lost to restitution we explained for over 50 pages what was wrong with the precise lost calculation this court agreed with us on every aspect of it. I want to get this straight you want two points on the appeal you want Mr. Fumma to be liable for all of the restitution whatever it is and you think the restitution amount is too low. No, Your Honor not exactly if I may. The court found the correct amount of restitution which totals 4.2 million dollars. The original judgment which we appeal was 2.3 million and so the court added 1.9 million based on this court's finding now the cross appeal. So you would be satisfied if he was liable for the whole works correct because because you already got the remedy as to the amount. That's correct and the interesting thing is your honor there's no dispute about the amount the only argument being made in the cross appeal is that it should have stayed at 2.3 million because we didn't properly argue it in our brief. I'm confused that is your position. Judge Greber's question so that we should order joint several liability so that you could collect the whole thing from either one of them or that we should order a full loan of pay 96% I think was the figure that he rate rate off and she took 4% to play that. Our position is the Mr. Fumos should be ordered to pay joint and severally all of the restitution all 100% including the 3% that Mr. Arnaugat because he's the one who dictated that as well. Well you are him responsible. We want him responsible for all of the loss jointly and it would be jointly and sever with Mr

. Arnaugat as to the first half because neither us nor Mr. Arnaugat has appealed that aspect of the decision. We order the district court you want to know do you want to direction the district court that we should do that. Well that's ideal it doesn't have to go that far this court could explain the error that the district court made on the only two factors based on the evidence and ask the court to redo it. Do we consider should we tell the court that it should be jointed several or 96% or what? Ideally jointing several. In any case in which? Well we're going to be in trouble when the district court said this is something highly deferential. In fact I got reversed some time ago by reversing the district court settings and it's not easy to step on a district judge's toes when he exercises that discretion in the setting or whacking up. Retribution retro retro you know the payments here. So what should the mandate from this court read if you had your ideal with my ideal mandate, Your Honor, is that the while there is an abusive discretion standard what we're dealing with here are two factual judgments regarding the contribution of each defendant to the loss and the economic circumstances of each defendant. That's what the statute directs the court to look at and both of the factual findings by the district court are clearly around us because they are based on no evidence. And so the district court should therefore be ordered to either reconsider and reach an appropriate decision based on the evidence or given the fact that the evidence is so overwhelming and plain here. I believe this court can direct an entry of an order of jointing several liability and say this litigation has gone on long enough and this is the issue. That's the ideal. We would be satisfied with the direction to reconsider a given but but noting of course necessarily the fact that the decision that was made is clearly around us. As of now she's only liable for half of the restitution and you didn't appeal from that. Now analytically then you know in a technical sense how could they be jointly and separately liable for the whole amount if she's not liable for half of the amount. Well they can't the argument that we favor is that Mr. Fumo must be held responsible for all of the restitution balance and it would be joint and several as to the first half of to citizens alliance given the fact that that was the judgment that was not appeal by either side. But fundamentally what we're here to say is that Mr. Fumo ran this scheme he initiated it he directed it it wouldn't have happened without him. Well you're looking at the big picture. You're looking at the big picture the way you as you pose it

. Yes runner and the big picture again is that the way all of this needs to be interpreted and analyzed is based on the fundamental purpose of the mandatory vacations restitution. That's what this court has always said the purpose of the act is to make victims whole it's not to let a criminal walk away with two million dollars that he took. And when you look at this decision in light of the purpose of the act which this court says you have to look at you can't justify that having Mr. Fumo not pay what's owed. But if the judgment stays the way it is mark my words with all respect citizens alliance will not receive back what Mr. Fumo took what he put this pocket and what he still has and can pay back today. Well yeah it would be impossible based on our nails economic circle. Exactly it will never be collected if the judgment stays the way it is and that cannot be reconciled with the mandatory victim restitution act. Again it's worth pointing out if I know I'm over my time but if I can say one thing this is not a remedy that was asked for by anyone. This was something that the district court announced on its own at the end of a very long sentencing proceeding with regarding Mr. Fumo. The original judgment of the district court at the first sentencing was jointing several liability as it has been in every other fraud case that I've ever been involved with in which you have joint features. This was a surprise we don't know the basis for it but we do know that there's no evidentiary support for it whatsoever. I don't have any further questions. Okay thank you very much. Thank you very much. Mr. Goldberger. May I please the court my name is Peter Goldberger. It's my privilege to represent the Apolleen Cross appellant Vincent Fumo who was the defendant below. I would like to ask if the court would permit to reserve a minute for rebuttal on our cross appeal and limited to the cross appeal. What that would be one minute thank you sir

. On the government's appeal which is the out the apportionment of the restitution. It's very clear that Judge Buckwalter did not abuse his discretion under this court. Well one of you in the court is the sourced most point that there is such a disparity between the actions, the focus of the criminal activity between Mr. Nau on the one hand and Mr. Fumo on the other. He's used the 96% number first you dispute the 96% and then generally the dispute the notion that he is much more culpable. I don't dispute the 96% number you know give or take minor amount. We go 94. In no way that would depend that would affect this argument. Yes. The point is that the statute offers the judge whenever there are multiple defendants who may be partially responsible for the same loss to have an even greater and more complicated set of discretionary decisions to make at a sentencing then the judge already has. As long as the judge orders 100% restitution which he did the judge then has discretion to apportion the that restitution amount between responsible code of finance. According to the abuse his discretion no by one of the factors he must keep in mind is the victim being reimbursed and according to his record there's no way as you heard for the reimbursement to take forward go forward when I don't accept that when she doesn't have the money to pay and she's paying a thousand dollars whatever is you know it's never going to happen. It's not going to happen if they choose it for it not to happen collection is on the government. This is she is in a wealthy situation with her with a husband I don't know the form of the ownership of all their property we don't know whether there have been fraudulent transfers she's positive. The court disagreed with you they gave a figure for her to pay restitution which is never going to be old and that is the figure that the court deemed that she was capable of. Yes, exactly. Where if we don't change that the victim is not going to be reimbursed. Oh no to the contrary judge Buckwalter found that she had this is page 201 of volume two of the appendix the finding that they have to find is the show is clearly aronious is judge Buckwalter's finding she has the ability to pay and should. She has the ability to pay doesn't mean she has the response to she has the amount that he ordered to pay about a 750,000. Which will take the rest of her life in your life in my life the government there's a statute that says that a certain that to send with her ability to pay while she's on supervised. And then there's a judge not the error when the way this comes before this court that victim is never going to be reimbursed

. I don't accept that record now stands actually what happened what will happen. No, it's my question. How can we let the stand when as the record now appears the victim is never going to be reimbursed unless we make this joint in several or 60 96% 4%. That is not what the record shows and the judge Buckwalter's finding the country is not clearly aronious. She can satisfy this by making payments of how much is it a thousand or probation has asked her to pay a thousand a month. I'm not agreeing that that's all she's going to have to live a very long time. If that is the most that she could pay but I don't know that and the point is that's her judgment and the government didn't appeal it and she didn't appeal it. And this is the key thing. Judge Buckwalter had before him a complex sentencing decision on two defendants. What the government seeks to do here is to overturn the judge's decision on her sentence. Let me ask you this question then. I believe earlier in our discourse you agreed that with regard to the government's point on contribution to loss that you would concede that Mr. Fumo contributed to the loss vis-a-vis his criminal participation. Now I presume that as to Mr. Zalzmer's second point. Excuse me. I have been interrupted. I shouldn't have. I presume with regard to Mr. Zalzmer's second point with regard to the economic circumstances of each defendant. He's taken the position obviously that you know this is all we're going to get and you've obviously been in the middle of a collage with my colleagues on that point. So if you concede that there was error with regard to contribution of loss. Oh, no. Well, if he's more, if he's clearly more liable or criminally liable or responsible or whatever term you want to use, right, the criminal activity involved, how could you not concede that? Because it doesn't have to be measured in dollars. This is part of the discretion. It can be measured in the essential action and responsibility of the code. So each play is a role to disagree with Mr. Zalzmer's characterization with regard to the law. Who is the initiator who's the main player, so to speak, and so forth? No, not who's the initiator or main player either. You're on the green screen. But was the dominant person behind this fraud? Of course, no one would disagree with that. The question is whether her responsibility is sufficiently large and important that the judge could weigh that culpability that she had. And her ability to pay which the pre-president's report shows that she has, if the government would be more focused on her and not on him on collection. And the factor that makes it clear. Yes, the factor that in to the 3553 A factors of which A7 is the need for restitution built into all the others to determine a sentence which would be properly balanced for her. And what the government proposes to do is to undo her sentence by doing this. And let me explain why. Because as we heard Mr. Zalzmer admit, if Mr. Fumow is made 100% or jointly and severly liable, they will collect 100% from him as soon as they can. I don't know if it would be within the next minute, but it would certainly be within the next month. They will collect 100% from him and she will have zero to pay. But the judge buck Walter in deciding how much imprisonment to give her, how much supervised release to give her, how much of fine to give her, decided that she ought to pay about three quarters of a million dollars as part of her sentence package. How can that should be? Mr

. Oh, no. Well, if he's more, if he's clearly more liable or criminally liable or responsible or whatever term you want to use, right, the criminal activity involved, how could you not concede that? Because it doesn't have to be measured in dollars. This is part of the discretion. It can be measured in the essential action and responsibility of the code. So each play is a role to disagree with Mr. Zalzmer's characterization with regard to the law. Who is the initiator who's the main player, so to speak, and so forth? No, not who's the initiator or main player either. You're on the green screen. But was the dominant person behind this fraud? Of course, no one would disagree with that. The question is whether her responsibility is sufficiently large and important that the judge could weigh that culpability that she had. And her ability to pay which the pre-president's report shows that she has, if the government would be more focused on her and not on him on collection. And the factor that makes it clear. Yes, the factor that in to the 3553 A factors of which A7 is the need for restitution built into all the others to determine a sentence which would be properly balanced for her. And what the government proposes to do is to undo her sentence by doing this. And let me explain why. Because as we heard Mr. Zalzmer admit, if Mr. Fumow is made 100% or jointly and severly liable, they will collect 100% from him as soon as they can. I don't know if it would be within the next minute, but it would certainly be within the next month. They will collect 100% from him and she will have zero to pay. But the judge buck Walter in deciding how much imprisonment to give her, how much supervised release to give her, how much of fine to give her, decided that she ought to pay about three quarters of a million dollars as part of her sentence package. How can that should be? Mr. Gover, how can that possibly not be error? When you have, she's no bargain, but compared to his conduct and what he did, he was the overwhelming, dominant force in this criminal scheme. But he did. And today, your client, she is property, but he is a multi-millionaire. She does not have the funds, near the funds that he has. So that balancing these, how to the district court not have, joint and severable or their liability, having in mind, in addition, that victim is the most important person or one of the most important people to keep in mind in this sentence in your regiment. Only if you allow the government's myopic focus on this small piece of one part of the sentencing when what Judge Buck Walter was doing was putting together a complicated sentence. So it's for two people. And that's, there's very little precedent in this court, but the precedent that there is is a case called Hunter, which as it happens, Judge Howell wrote in 94. And in which the court held that the allocation of restitution between co-defense need not reflect the relative culpability if the Judge exercises discretion in the sentencing picture. And it has to advise, it doesn't have to reflect it, but it has to advise. He did. He certainly was not unaware of that. He sat through a five-month trial, he knew very well what how sensual Ruth Arnau's contribution was. Even applying the, shall we call it the Hunter doctrine? I'll take credit. Even applying, you know, the rubric that you've mentioned from Hunter, it's clear that whether you think about it, you know, holistically as, you know, what was just crime all about who's involved. Or whether you think about it, you know, statistically 96% you know, or 94% whatever number that you thrown around, that that's clearly not reflective of 50-50. I mean, if you don't, when you look, when you, you know, you mentioned 35-53-a, you know, I always focused on a six back in the day. And, you know, in thinking about a six and a seven, I'd say, well, I want to think about the victim, and I also want to think about, are these defendants really similarly situated if they're not, then how do I address that issue? And here, like, I get your argument, 50-50 is the absolute best that your client can get. The question is, you know, is that really reflective of, you know, a fair assessment of what went on and the two critical factors that were to take into account the economic, you know, ability to pay the restitution and the relative culpability or contribution to the criminal enterprise. In the big picture it was, Judge Buckwaltor delivered detailed borrow sentencing speech at the second opinions, runs 46 pages of transcript. And this is a small part of it, but in a key part, an essential part for the, are now sentenced that he imposed. He did not want her to be free of the obligation to pay and for the payment to be directed to the citizens' alliance

. Gover, how can that possibly not be error? When you have, she's no bargain, but compared to his conduct and what he did, he was the overwhelming, dominant force in this criminal scheme. But he did. And today, your client, she is property, but he is a multi-millionaire. She does not have the funds, near the funds that he has. So that balancing these, how to the district court not have, joint and severable or their liability, having in mind, in addition, that victim is the most important person or one of the most important people to keep in mind in this sentence in your regiment. Only if you allow the government's myopic focus on this small piece of one part of the sentencing when what Judge Buck Walter was doing was putting together a complicated sentence. So it's for two people. And that's, there's very little precedent in this court, but the precedent that there is is a case called Hunter, which as it happens, Judge Howell wrote in 94. And in which the court held that the allocation of restitution between co-defense need not reflect the relative culpability if the Judge exercises discretion in the sentencing picture. And it has to advise, it doesn't have to reflect it, but it has to advise. He did. He certainly was not unaware of that. He sat through a five-month trial, he knew very well what how sensual Ruth Arnau's contribution was. Even applying the, shall we call it the Hunter doctrine? I'll take credit. Even applying, you know, the rubric that you've mentioned from Hunter, it's clear that whether you think about it, you know, holistically as, you know, what was just crime all about who's involved. Or whether you think about it, you know, statistically 96% you know, or 94% whatever number that you thrown around, that that's clearly not reflective of 50-50. I mean, if you don't, when you look, when you, you know, you mentioned 35-53-a, you know, I always focused on a six back in the day. And, you know, in thinking about a six and a seven, I'd say, well, I want to think about the victim, and I also want to think about, are these defendants really similarly situated if they're not, then how do I address that issue? And here, like, I get your argument, 50-50 is the absolute best that your client can get. The question is, you know, is that really reflective of, you know, a fair assessment of what went on and the two critical factors that were to take into account the economic, you know, ability to pay the restitution and the relative culpability or contribution to the criminal enterprise. In the big picture it was, Judge Buckwaltor delivered detailed borrow sentencing speech at the second opinions, runs 46 pages of transcript. And this is a small part of it, but in a key part, an essential part for the, are now sentenced that he imposed. He did not want her to be free of the obligation to pay and for the payment to be directed to the citizens' alliance. And she would be freed of that obligation if the government were to prevail on our appeal without her having appealed or them having appealed that judgment. Well, it goes back. That can't be right. Well, that may be, but she's still, this I understood, you make an interesting point because in effect what you're saying too is that she's really, if you do this, she's getting off easier than he intended. Yes. In a sense, but couldn't he have done it would, you know, maybe a lesser division, you know, 75, 25 or something because when you pick it up, it, you just don't expect to see 50, 50. Right. But as the court said in a complicated case, it calls for an imaginative restitution scheme and the court has considerable discretion that this court will not disturb. But the problem that the victim would not be reimbursed, the person will be disrectorate the way it stands. I don't think you can refute that the way this stands now, the victim is never going to be reimbursed by the code of payment paying $1,000 a month. Well, if you build $1,000 a month into it as the assumption that I'm not going to disagree with you, but I don't accept that assumption. But the point is that it has substantial collection powers and it's a 20-year lean of judgment, even after supervised release ends that the government can collect. Can the government, the probation department, requires a 1,000 a month, can they also issue levies for more while that's pending? The government can, the probation can, government can, they have all the power that exists in the federal statues to collect any federal debt. Because it has the force of a civil judge. Yes, exactly. It does, literally by law. Well, yeah, but the court has adopted probation's recommendation. So, you know, the government can't act in contravention of the court's order. I mean, if the court orders 1,000, that order doesn't exist. Then it's going to be 1,000. The government would have to petition to the court to do any of the things that you're suggesting. Well, that's between them and this are now

. And she would be freed of that obligation if the government were to prevail on our appeal without her having appealed or them having appealed that judgment. Well, it goes back. That can't be right. Well, that may be, but she's still, this I understood, you make an interesting point because in effect what you're saying too is that she's really, if you do this, she's getting off easier than he intended. Yes. In a sense, but couldn't he have done it would, you know, maybe a lesser division, you know, 75, 25 or something because when you pick it up, it, you just don't expect to see 50, 50. Right. But as the court said in a complicated case, it calls for an imaginative restitution scheme and the court has considerable discretion that this court will not disturb. But the problem that the victim would not be reimbursed, the person will be disrectorate the way it stands. I don't think you can refute that the way this stands now, the victim is never going to be reimbursed by the code of payment paying $1,000 a month. Well, if you build $1,000 a month into it as the assumption that I'm not going to disagree with you, but I don't accept that assumption. But the point is that it has substantial collection powers and it's a 20-year lean of judgment, even after supervised release ends that the government can collect. Can the government, the probation department, requires a 1,000 a month, can they also issue levies for more while that's pending? The government can, the probation can, government can, they have all the power that exists in the federal statues to collect any federal debt. Because it has the force of a civil judge. Yes, exactly. It does, literally by law. Well, yeah, but the court has adopted probation's recommendation. So, you know, the government can't act in contravention of the court's order. I mean, if the court orders 1,000, that order doesn't exist. Then it's going to be 1,000. The government would have to petition to the court to do any of the things that you're suggesting. Well, that's between them and this are now. And my other clients, but I'm not sure that that's so. But in any, I mean, let's speak a moment on our appeal that the, our argument is pretty clear that, as I think, I don't know why Mr. Osher didn't understand it, is about the mandate. You're not asked to read the briefs from the prior appeal and decide whether you would have deemed that issue waived by them. The issue is, are we going to assume that Judge Fuente's opinion in the prior decision did not say what it meant? And if it was unclear, if it didn't seem to say what the government wanted it to say, then it was for them to file a motion then to that panel at that time to clarify that mandate for rehearing whatever they needed to do. But once that was done and over, it doesn't matter if it was right or wrong. I'm not talking about the mandate, but it completely evades the subtabetic restitution issue, which was part of the case that was before the Court. It was not before the Court because the government didn't put it before the Court in the way in which any litigant on appeal is obligated to do state that it's an issue and argue why they are right. They are sure there was 50 pages of briefing about the measurement of the laws, but only a footnote repeated several times, but a footnote repeated several times, not an argument heading. The government pointed out the relationship between the guideline, the law's calculation and the restitution amount in grief. They asserted that they wanted the restitution reversed also. They never explained the relationship not once. They were conclusory. One sentence footnote of exactly the kind that this Court has repeatedly held that the desire of a party, sorry, is not the way it does not entitle you to have an issue decided on appeal. How do we accept your reading of the mandate when we found reversible error with respect to the several laws calculations? How can we accept that? And the guidelines and where there is an obvious undisputed connection between the calculations of laws and restitution. Because in that appeal, the government asserted in these one sentence footnotes that they thought the restitution should fall also. And in response, in our brief, we said that doesn't put restitution before this Court. It's not an issue for decision. And then when the decision came out, the opinion does not address the government's claim of error in restitution. And it states literally the restitution is affirmed. And when my friend, Mr. Zaws, quoted the mandate, he left off the keywords

. And my other clients, but I'm not sure that that's so. But in any, I mean, let's speak a moment on our appeal that the, our argument is pretty clear that, as I think, I don't know why Mr. Osher didn't understand it, is about the mandate. You're not asked to read the briefs from the prior appeal and decide whether you would have deemed that issue waived by them. The issue is, are we going to assume that Judge Fuente's opinion in the prior decision did not say what it meant? And if it was unclear, if it didn't seem to say what the government wanted it to say, then it was for them to file a motion then to that panel at that time to clarify that mandate for rehearing whatever they needed to do. But once that was done and over, it doesn't matter if it was right or wrong. I'm not talking about the mandate, but it completely evades the subtabetic restitution issue, which was part of the case that was before the Court. It was not before the Court because the government didn't put it before the Court in the way in which any litigant on appeal is obligated to do state that it's an issue and argue why they are right. They are sure there was 50 pages of briefing about the measurement of the laws, but only a footnote repeated several times, but a footnote repeated several times, not an argument heading. The government pointed out the relationship between the guideline, the law's calculation and the restitution amount in grief. They asserted that they wanted the restitution reversed also. They never explained the relationship not once. They were conclusory. One sentence footnote of exactly the kind that this Court has repeatedly held that the desire of a party, sorry, is not the way it does not entitle you to have an issue decided on appeal. How do we accept your reading of the mandate when we found reversible error with respect to the several laws calculations? How can we accept that? And the guidelines and where there is an obvious undisputed connection between the calculations of laws and restitution. Because in that appeal, the government asserted in these one sentence footnotes that they thought the restitution should fall also. And in response, in our brief, we said that doesn't put restitution before this Court. It's not an issue for decision. And then when the decision came out, the opinion does not address the government's claim of error in restitution. And it states literally the restitution is affirmed. And when my friend, Mr. Zaws, quoted the mandate, he left off the keywords. It didn't say remand it. He said remanded for further proceedings. It said remanded for further proceedings could not inconsistent with this opinion. And it is inconsistent with the opinion which says the restitution is affirmed to treat that restitution as an open question on reading. I think we have a case case that says when you read a mandate, you have to read the opinion with it. Yes. And it can strobe together. Exactly. Exactly. And the opinion said the restitution is affirmed and did not address the government's argument that it should be reversed. Thank you, sir. Thanks so much. So you do have one minute. I have a number of points I'd like to quickly address with regards to the mandate issue. The notion that the government did not appeal this. You can read the briefs in the record as well as I can. And that notion is simply breathtaking. Well, I'm curious. He says, Mr. Goldberger says that, well, the court affirmed the restitution. The amount, is that right? The court said we affirm the order of restitution in a passage of the opinion that only dealt with an issue raised by Mr. Fummo in his cross appeal that said, pre-judgment interest should not be imposed on restitution

. It didn't say remand it. He said remanded for further proceedings. It said remanded for further proceedings could not inconsistent with this opinion. And it is inconsistent with the opinion which says the restitution is affirmed to treat that restitution as an open question on reading. I think we have a case case that says when you read a mandate, you have to read the opinion with it. Yes. And it can strobe together. Exactly. Exactly. And the opinion said the restitution is affirmed and did not address the government's argument that it should be reversed. Thank you, sir. Thanks so much. So you do have one minute. I have a number of points I'd like to quickly address with regards to the mandate issue. The notion that the government did not appeal this. You can read the briefs in the record as well as I can. And that notion is simply breathtaking. Well, I'm curious. He says, Mr. Goldberger says that, well, the court affirmed the restitution. The amount, is that right? The court said we affirm the order of restitution in a passage of the opinion that only dealt with an issue raised by Mr. Fummo in his cross appeal that said, pre-judgment interest should not be imposed on restitution. This court disagreed with that. It rejected that argument. And at the end of that, one section said, we therefore affirm the judgment of restitution and the order of pre-judgment interest. Then it gets into all the loss error. And then at the end it says we vacate the sentence. So as I said before, I best you have an ambiguity. The important thing about the mandate, the thing that I fall back on, your honor is absolutely correct. You look at the judgment and connection with the opinion, but the fundamental rule that this court and the Supreme Court have said over and over, is that you look at the letter and the spirit of the mandate. Now how can it be the spirit of this court's mandate to say that the district court aired in imposing $2.3 million of loss, the real loss is $4.2 million. And our mandate is Mr. Fummo, you get to keep that extra $1.9 million that you saw. How can that be a reasonable interpretation of the mandate? And if it is, if that is the law of the case, the Supreme Court has gone further and said the law of the case is not a binding jurisdictional rule. A subsequent appellate court can correct a miscarriage of justice. That is a miscarriage of justice. If Mr. Fummo took $1.9 million from the Senate of Pennsylvania, from the Independence Airport Museum, from Citizens Alliance, and keeps it. And that's what they're arguing here. So step after step, it just doesn't work

. This court disagreed with that. It rejected that argument. And at the end of that, one section said, we therefore affirm the judgment of restitution and the order of pre-judgment interest. Then it gets into all the loss error. And then at the end it says we vacate the sentence. So as I said before, I best you have an ambiguity. The important thing about the mandate, the thing that I fall back on, your honor is absolutely correct. You look at the judgment and connection with the opinion, but the fundamental rule that this court and the Supreme Court have said over and over, is that you look at the letter and the spirit of the mandate. Now how can it be the spirit of this court's mandate to say that the district court aired in imposing $2.3 million of loss, the real loss is $4.2 million. And our mandate is Mr. Fummo, you get to keep that extra $1.9 million that you saw. How can that be a reasonable interpretation of the mandate? And if it is, if that is the law of the case, the Supreme Court has gone further and said the law of the case is not a binding jurisdictional rule. A subsequent appellate court can correct a miscarriage of justice. That is a miscarriage of justice. If Mr. Fummo took $1.9 million from the Senate of Pennsylvania, from the Independence Airport Museum, from Citizens Alliance, and keeps it. And that's what they're arguing here. So step after step, it just doesn't work. It's creative, but it doesn't work. We repeatedly linked restitution to loss. And this, by the way, your honor, is an issue that Judge Buckwalter, who we respect a great deal, agrees with us on. He explained that length. We said in saying how he couldn't understand how the Third Circuit could issue a mandate like that. That found him wrong to the tune of $2 million about loss, and yet affirmed the lower restitution number. So that's our position on that. I'm running out of time, and I do want, if I may, to just address a couple of the other issues. The hunter doctrine was a valid doctrine. At one point, it's not relevant here. It was under the Victim Witness Protection Act, as I know Judge Kahn recalls. And the Victim Witness Protection Act did not have a correlate provision telling the court how to apportion among joint wrongdoers. This notion now that we look at the economic circumstances of each defendant, the contribution to the loss wasn't there. And that's why the hunter doctrine was essentially the district court uses its discretion and does the best it can. But the U.S. Congress had something to say about that, which is mandatory restitution, putting the interest of the victims first, and doing it in part through this, through this order. As far as the contributions of the loss, I'm okay with what Mr. Glover says that we can look at acts as well as money. The dollars are very important. When the split is 96 to 4, that's a pretty good sign of who's in charge. But if you want to look at the acts that took place, and not just who got the money, that's overwhelming

. It's creative, but it doesn't work. We repeatedly linked restitution to loss. And this, by the way, your honor, is an issue that Judge Buckwalter, who we respect a great deal, agrees with us on. He explained that length. We said in saying how he couldn't understand how the Third Circuit could issue a mandate like that. That found him wrong to the tune of $2 million about loss, and yet affirmed the lower restitution number. So that's our position on that. I'm running out of time, and I do want, if I may, to just address a couple of the other issues. The hunter doctrine was a valid doctrine. At one point, it's not relevant here. It was under the Victim Witness Protection Act, as I know Judge Kahn recalls. And the Victim Witness Protection Act did not have a correlate provision telling the court how to apportion among joint wrongdoers. This notion now that we look at the economic circumstances of each defendant, the contribution to the loss wasn't there. And that's why the hunter doctrine was essentially the district court uses its discretion and does the best it can. But the U.S. Congress had something to say about that, which is mandatory restitution, putting the interest of the victims first, and doing it in part through this, through this order. As far as the contributions of the loss, I'm okay with what Mr. Glover says that we can look at acts as well as money. The dollars are very important. When the split is 96 to 4, that's a pretty good sign of who's in charge. But if you want to look at the acts that took place, and not just who got the money, that's overwhelming. There's no evidentiary basis for saying that there's 50-50 culpability here. Mr. Glover talks about the government's vast collection powers. You simply cannot get blood out of a rock. Mr. Glover has not addressed the facts of the pre-sentence report, which show very clearly that Mr. Arnau's personal worth is less than $100,000 back in 2009. Before she went to jail, before she lost her job, before she took a new job paying $3,000 a month, where there's money was the joint assets that she had with her husband. They had boats at their houses. And the government can't reach that, as your owners well know. We can't reach joint assets unless there's death or a divorce. So once again, we're telling citizens alliance, wait around for a couple of decades, and we'll see what we can do for you. This notion that we have collection powers, and therefore we can get something out of nothing is wrong. There is no evidentiary support for the idea that she can pay this judgment. And finally, the most shocking thing here, I think, is that the argument that we have from the defense, which is that we would be undoing the sentence, that this is an important part of Mr. Arnau's sentence. There are ways to punish Mr. Arnau, that there's imprisonment, and with respect to money, there's a fine. But what we're talking about here is restitution, and what we're talking about here is making the victim pull and giving it back. That's true, there are ways, but at this point, there was a total package, and we couldn't say to the court, well, since we're not going to make Mr. Pharma a libel, and then, well, several, and jointly, for all the restitution, you can increase the sentence on the other defendant in terms of length. But again, because it's uncollectable, there's no reason to touch the sentence of the other defendant

. There's no evidentiary basis for saying that there's 50-50 culpability here. Mr. Glover talks about the government's vast collection powers. You simply cannot get blood out of a rock. Mr. Glover has not addressed the facts of the pre-sentence report, which show very clearly that Mr. Arnau's personal worth is less than $100,000 back in 2009. Before she went to jail, before she lost her job, before she took a new job paying $3,000 a month, where there's money was the joint assets that she had with her husband. They had boats at their houses. And the government can't reach that, as your owners well know. We can't reach joint assets unless there's death or a divorce. So once again, we're telling citizens alliance, wait around for a couple of decades, and we'll see what we can do for you. This notion that we have collection powers, and therefore we can get something out of nothing is wrong. There is no evidentiary support for the idea that she can pay this judgment. And finally, the most shocking thing here, I think, is that the argument that we have from the defense, which is that we would be undoing the sentence, that this is an important part of Mr. Arnau's sentence. There are ways to punish Mr. Arnau, that there's imprisonment, and with respect to money, there's a fine. But what we're talking about here is restitution, and what we're talking about here is making the victim pull and giving it back. That's true, there are ways, but at this point, there was a total package, and we couldn't say to the court, well, since we're not going to make Mr. Pharma a libel, and then, well, several, and jointly, for all the restitution, you can increase the sentence on the other defendant in terms of length. But again, because it's uncollectable, there's no reason to touch the sentence of the other defendant. The important point is that you have to look at the interest of the victim. If you're going to say that we're going to put an uncollectable judgment on a defendant, because it punishes her, because as part of her punishment, let the person who took another $800,000 walk away with it, and not give the victim back, I would submit, that's an error, law. That's not just an abusive discretion, that is violating the mandate of the mandatory victims restitution act. Thank you very much. Mr. Goldberg. Let me just say on a strictly limiting myself to the Crossfield, which is the scope of the mandate question, that even in the Pepper case, in the Supreme Court last year, where the Court talked about the importance of discretion on a remand and reopening of sentence, even then, which the government quotes in their brief, they leave out, and so we pointed out, and I will end with this, that they attach to that subject to the mandate rule and the law of the case. Would you, this Court has often, often, refused a balance, the benefit of perfectly valid legal arguments that of errors that they, that they mentioned, because they did not make it an issue in their appeal, in the way that this Court has required for decades. As line in a brief, a footnote in a brief does not put an issue before the Court for decision, and when the appellant does that, especially an experience, well, whether it's not an experience that knowledge will defend it, this Court has done that to experience the appellant, knowledge will appellant, and ignorant, bad appellants both. It's a very important rule that appeals be structured and organized, and the mandate reflects that this matter was decided by the prior panel, should not be reconsidered now, restitution, the principal amount of restitution was not remanded by the prior decision. And if the government wanted that mandate revised, was in the prior appeal that they should have done it. We just remind you there is one point that we made in our brief that the government has conceded that a remand is required. So I don't know what the court might be inclined to do, but at least some are remanded at least for, for to reopen the error in the calculation is required. Thank you very much. Thank you, Council. This case was obviously extremely well brief. We enjoyed the argument this morning. Have a good day.

Good morning one and all. Nice to see you all. Hope everyone's well. And Mr. Zalzmer is going to get to do something he doesn't usually get to do. He gets to go first today. Thank you. How much time are you reserving? You don't get to reserve time. Thank you for reminding me. I was there three minutes for a bottle. Three minutes very well. Go ahead sir. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first. I'm going to go first What this Court did was it said two things. There is, you could say, an ambiguity and inconsistency. What the Court did with the mandate. The mandate. The mandate was, we affirm Fumos conviction, vacate the sentences of Fumos and Arnau and remand for further proceedings. The mandate vacating the sentence vacates the entire sentence. That's the law from the Supreme Court in Pepper. It's the law of this Court. This Court has often said the restitution is part of the criminal sentence. Most prominent in the embanked decision in the United States versus Leighi in 2006. So the mandate was vacating the sentence and that's how we read it at the time. We recently read it that conclude that you waived the restitution increase. No, Your Honor. We, we in our brief repeatedly over the course of 200 pages linked the law to the restitution and said that the courts and the stakes in the law, which this Court found also required reconsideration of restitution. There was a case where there is no basis, I would say, Your Honor, which it could be said that the government waived its position when it was said over and over again throughout the briefing in that case. What was also said over and over again throughout this case, Your Honor, is that loss and restitution were inextricably linked. This was a case in which the government engaged in quite an extensive somewhat extraordinary effort to list to the penny what was taken from citizens of the alliance and from the other victims. Now, Fumos position is that you're, you're confusing level of contribution to the victims' loss with gain or loot. You're confusing it. And we don't think we are now. This is moving away from his waiver argument, Your Honor. It's a certain argument, it's the same theme. Well, sure. Well, in this case, loss and restitution are the same and no party ever defeated that. In fact, at the recent thing proceeding, once we got past the defendant's argument that we had somehow waived this on a piece of paper, we had to say, well, it's a very important thing. There was no dispute at all regarding restitution, regarding the number. Even if they get down to the dirty gritty of it though, we're still left here. This court with a highly deferential standard of what the District Court wax off as contribution here. Absolutely, Your Honor. And that's why this is such a rare appeal. There is an abusive discretion standard. But what we have here is the district court had to make a judgment on two factors. Contributions of the loss and the economic circumstances of the defendant. And in this case, there is no evidence, none, supporting the district court's result regarding either. And that's why we're here on the unfortunate. The record is clear that I forget exactly where it is. I think even you had been, the government did it, that this couldn't have come forward without her being involved in the looting. I don't believe we ever said it couldn't have happened. Well, that was a key or I forget exactly, but she was essential or something like that. Well, she played an important role. That's why she was prosecuted. But he could have easily committed the same crime by having someone else do it or write the checks himself. What she did was, she wrote the checks she carried out his orders. What was essential to this? This crime never happens. If Mr. Fumot doesn't concede it, direct it, profit from it. She is the person that carries it out and she's rightly prosecuted for that. But we never ever have said, and nor did anybody else in the case say, that she was essential or what the district court found was that she was quote equally culpable. No one agreed with that. Not Fumot, not our nail, not the government ever. And it's not supported in the evidence as we explain at length in our brief. We even gave up her on her appeal on her case. We did. In this matter, there's nothing to be gained by it. What we could appeal here would be to get a double the uncollectable judgment we already have. There was no reason to pursue that. What you could get was what, sir? Excuse me, sir. I didn't understand. What you could get was what? She has been ordered to pay half of the restitution owed to citizens, which is 780,000 with him. No, severally, right, separately from him. We didn't appeal to make her responsible jointly and severally for the whole thing because we're not going to collect half. And so we're not burdening the court with that part of the appeal. We're here to say that Mr. Fumot is the one who took all the money, received all the money, directed the full. Does have some significance in our. Doesn't have some input into our decision making here that that that appeal was discontinued. I don't think so, Your Honor. It was our judgment that there's nothing to collect there given what we know are the economic circumstances. She is now being paid without to speak by any party. She is paying $1,000 a month at that rate to pay the half she was ordered to pay would take 65 years. There's no reason for us to come to this court and say let's make it 130 years, which is what we would be doing. But does it have any bearing on Mr. Fumot's responsibility? No, the district court abused its discretion in letting him off from repaying to the victim half of what he personally took and he put in his pocket. That every what we've explained that over 96% of the one and a half million dollars that was taken from citizens alliance we traced directly to him not just by a ponderance of the evidence but without dispute. And he is being allowed not to repay three quarters of a million dollars that he took from this victim. That's unprecedented in the law of this court in my experience. I think in anyone else's experience. That's what we're here to appeal and the other important point looking at the economic circumstances of the defendants is that if this is done properly as it almost always is if he's ordered to pay the money he personally took we will we could collect that faster than I could walk out of this court. This is someone who has all of this money. This is not Miss Arnau where we have to wait 65 years. That's why it's an abuse of discretion. Can you address the waiver issue? The waiver. Well, I'm not clear where the defense stands on that right now. They are I think they argued waiver and their brief and then sort of backed off on that in the in the reply brief as I understand the argument right now. The argument is that the government in its first appeal did not argue restitution and they have said in our brief we may have asked for it in our prayer for relief but it wasn't argued. It wasn't explained. That's wrong for reasons I'll explain but then the argument goes further than that and I think it's quite remarkable in saying that this court essentially made that decision that the government had not argued the restitution without saying it and that this court sub-Solensio decided that it wouldn't address restitution I guess because the government wrote a poor brief and wouldn't say anything about it and would let Mr. Fumma walk off with two million dollars that he took not just from citizens alliance but from the Senate and from the Independence and the C-Port Museum as well that would be a stunning mandate for this court without explanation to let somebody not repay half of what they took. Now did we argue it in our appeal absolutely you can look at the government's brief as well as we can page after page we linked lost to restitution we explained for over 50 pages what was wrong with the precise lost calculation this court agreed with us on every aspect of it. I want to get this straight you want two points on the appeal you want Mr. Fumma to be liable for all of the restitution whatever it is and you think the restitution amount is too low. No, Your Honor not exactly if I may. The court found the correct amount of restitution which totals 4.2 million dollars. The original judgment which we appeal was 2.3 million and so the court added 1.9 million based on this court's finding now the cross appeal. So you would be satisfied if he was liable for the whole works correct because because you already got the remedy as to the amount. That's correct and the interesting thing is your honor there's no dispute about the amount the only argument being made in the cross appeal is that it should have stayed at 2.3 million because we didn't properly argue it in our brief. I'm confused that is your position. Judge Greber's question so that we should order joint several liability so that you could collect the whole thing from either one of them or that we should order a full loan of pay 96% I think was the figure that he rate rate off and she took 4% to play that. Our position is the Mr. Fumos should be ordered to pay joint and severally all of the restitution all 100% including the 3% that Mr. Arnaugat because he's the one who dictated that as well. Well you are him responsible. We want him responsible for all of the loss jointly and it would be jointly and sever with Mr. Arnaugat as to the first half because neither us nor Mr. Arnaugat has appealed that aspect of the decision. We order the district court you want to know do you want to direction the district court that we should do that. Well that's ideal it doesn't have to go that far this court could explain the error that the district court made on the only two factors based on the evidence and ask the court to redo it. Do we consider should we tell the court that it should be jointed several or 96% or what? Ideally jointing several. In any case in which? Well we're going to be in trouble when the district court said this is something highly deferential. In fact I got reversed some time ago by reversing the district court settings and it's not easy to step on a district judge's toes when he exercises that discretion in the setting or whacking up. Retribution retro retro you know the payments here. So what should the mandate from this court read if you had your ideal with my ideal mandate, Your Honor, is that the while there is an abusive discretion standard what we're dealing with here are two factual judgments regarding the contribution of each defendant to the loss and the economic circumstances of each defendant. That's what the statute directs the court to look at and both of the factual findings by the district court are clearly around us because they are based on no evidence. And so the district court should therefore be ordered to either reconsider and reach an appropriate decision based on the evidence or given the fact that the evidence is so overwhelming and plain here. I believe this court can direct an entry of an order of jointing several liability and say this litigation has gone on long enough and this is the issue. That's the ideal. We would be satisfied with the direction to reconsider a given but but noting of course necessarily the fact that the decision that was made is clearly around us. As of now she's only liable for half of the restitution and you didn't appeal from that. Now analytically then you know in a technical sense how could they be jointly and separately liable for the whole amount if she's not liable for half of the amount. Well they can't the argument that we favor is that Mr. Fumo must be held responsible for all of the restitution balance and it would be joint and several as to the first half of to citizens alliance given the fact that that was the judgment that was not appeal by either side. But fundamentally what we're here to say is that Mr. Fumo ran this scheme he initiated it he directed it it wouldn't have happened without him. Well you're looking at the big picture. You're looking at the big picture the way you as you pose it. Yes runner and the big picture again is that the way all of this needs to be interpreted and analyzed is based on the fundamental purpose of the mandatory vacations restitution. That's what this court has always said the purpose of the act is to make victims whole it's not to let a criminal walk away with two million dollars that he took. And when you look at this decision in light of the purpose of the act which this court says you have to look at you can't justify that having Mr. Fumo not pay what's owed. But if the judgment stays the way it is mark my words with all respect citizens alliance will not receive back what Mr. Fumo took what he put this pocket and what he still has and can pay back today. Well yeah it would be impossible based on our nails economic circle. Exactly it will never be collected if the judgment stays the way it is and that cannot be reconciled with the mandatory victim restitution act. Again it's worth pointing out if I know I'm over my time but if I can say one thing this is not a remedy that was asked for by anyone. This was something that the district court announced on its own at the end of a very long sentencing proceeding with regarding Mr. Fumo. The original judgment of the district court at the first sentencing was jointing several liability as it has been in every other fraud case that I've ever been involved with in which you have joint features. This was a surprise we don't know the basis for it but we do know that there's no evidentiary support for it whatsoever. I don't have any further questions. Okay thank you very much. Thank you very much. Mr. Goldberger. May I please the court my name is Peter Goldberger. It's my privilege to represent the Apolleen Cross appellant Vincent Fumo who was the defendant below. I would like to ask if the court would permit to reserve a minute for rebuttal on our cross appeal and limited to the cross appeal. What that would be one minute thank you sir. On the government's appeal which is the out the apportionment of the restitution. It's very clear that Judge Buckwalter did not abuse his discretion under this court. Well one of you in the court is the sourced most point that there is such a disparity between the actions, the focus of the criminal activity between Mr. Nau on the one hand and Mr. Fumo on the other. He's used the 96% number first you dispute the 96% and then generally the dispute the notion that he is much more culpable. I don't dispute the 96% number you know give or take minor amount. We go 94. In no way that would depend that would affect this argument. Yes. The point is that the statute offers the judge whenever there are multiple defendants who may be partially responsible for the same loss to have an even greater and more complicated set of discretionary decisions to make at a sentencing then the judge already has. As long as the judge orders 100% restitution which he did the judge then has discretion to apportion the that restitution amount between responsible code of finance. According to the abuse his discretion no by one of the factors he must keep in mind is the victim being reimbursed and according to his record there's no way as you heard for the reimbursement to take forward go forward when I don't accept that when she doesn't have the money to pay and she's paying a thousand dollars whatever is you know it's never going to happen. It's not going to happen if they choose it for it not to happen collection is on the government. This is she is in a wealthy situation with her with a husband I don't know the form of the ownership of all their property we don't know whether there have been fraudulent transfers she's positive. The court disagreed with you they gave a figure for her to pay restitution which is never going to be old and that is the figure that the court deemed that she was capable of. Yes, exactly. Where if we don't change that the victim is not going to be reimbursed. Oh no to the contrary judge Buckwalter found that she had this is page 201 of volume two of the appendix the finding that they have to find is the show is clearly aronious is judge Buckwalter's finding she has the ability to pay and should. She has the ability to pay doesn't mean she has the response to she has the amount that he ordered to pay about a 750,000. Which will take the rest of her life in your life in my life the government there's a statute that says that a certain that to send with her ability to pay while she's on supervised. And then there's a judge not the error when the way this comes before this court that victim is never going to be reimbursed. I don't accept that record now stands actually what happened what will happen. No, it's my question. How can we let the stand when as the record now appears the victim is never going to be reimbursed unless we make this joint in several or 60 96% 4%. That is not what the record shows and the judge Buckwalter's finding the country is not clearly aronious. She can satisfy this by making payments of how much is it a thousand or probation has asked her to pay a thousand a month. I'm not agreeing that that's all she's going to have to live a very long time. If that is the most that she could pay but I don't know that and the point is that's her judgment and the government didn't appeal it and she didn't appeal it. And this is the key thing. Judge Buckwalter had before him a complex sentencing decision on two defendants. What the government seeks to do here is to overturn the judge's decision on her sentence. Let me ask you this question then. I believe earlier in our discourse you agreed that with regard to the government's point on contribution to loss that you would concede that Mr. Fumo contributed to the loss vis-a-vis his criminal participation. Now I presume that as to Mr. Zalzmer's second point. Excuse me. I have been interrupted. I shouldn't have. I presume with regard to Mr. Zalzmer's second point with regard to the economic circumstances of each defendant. He's taken the position obviously that you know this is all we're going to get and you've obviously been in the middle of a collage with my colleagues on that point. So if you concede that there was error with regard to contribution of loss. Oh, no. Well, if he's more, if he's clearly more liable or criminally liable or responsible or whatever term you want to use, right, the criminal activity involved, how could you not concede that? Because it doesn't have to be measured in dollars. This is part of the discretion. It can be measured in the essential action and responsibility of the code. So each play is a role to disagree with Mr. Zalzmer's characterization with regard to the law. Who is the initiator who's the main player, so to speak, and so forth? No, not who's the initiator or main player either. You're on the green screen. But was the dominant person behind this fraud? Of course, no one would disagree with that. The question is whether her responsibility is sufficiently large and important that the judge could weigh that culpability that she had. And her ability to pay which the pre-president's report shows that she has, if the government would be more focused on her and not on him on collection. And the factor that makes it clear. Yes, the factor that in to the 3553 A factors of which A7 is the need for restitution built into all the others to determine a sentence which would be properly balanced for her. And what the government proposes to do is to undo her sentence by doing this. And let me explain why. Because as we heard Mr. Zalzmer admit, if Mr. Fumow is made 100% or jointly and severly liable, they will collect 100% from him as soon as they can. I don't know if it would be within the next minute, but it would certainly be within the next month. They will collect 100% from him and she will have zero to pay. But the judge buck Walter in deciding how much imprisonment to give her, how much supervised release to give her, how much of fine to give her, decided that she ought to pay about three quarters of a million dollars as part of her sentence package. How can that should be? Mr. Gover, how can that possibly not be error? When you have, she's no bargain, but compared to his conduct and what he did, he was the overwhelming, dominant force in this criminal scheme. But he did. And today, your client, she is property, but he is a multi-millionaire. She does not have the funds, near the funds that he has. So that balancing these, how to the district court not have, joint and severable or their liability, having in mind, in addition, that victim is the most important person or one of the most important people to keep in mind in this sentence in your regiment. Only if you allow the government's myopic focus on this small piece of one part of the sentencing when what Judge Buck Walter was doing was putting together a complicated sentence. So it's for two people. And that's, there's very little precedent in this court, but the precedent that there is is a case called Hunter, which as it happens, Judge Howell wrote in 94. And in which the court held that the allocation of restitution between co-defense need not reflect the relative culpability if the Judge exercises discretion in the sentencing picture. And it has to advise, it doesn't have to reflect it, but it has to advise. He did. He certainly was not unaware of that. He sat through a five-month trial, he knew very well what how sensual Ruth Arnau's contribution was. Even applying the, shall we call it the Hunter doctrine? I'll take credit. Even applying, you know, the rubric that you've mentioned from Hunter, it's clear that whether you think about it, you know, holistically as, you know, what was just crime all about who's involved. Or whether you think about it, you know, statistically 96% you know, or 94% whatever number that you thrown around, that that's clearly not reflective of 50-50. I mean, if you don't, when you look, when you, you know, you mentioned 35-53-a, you know, I always focused on a six back in the day. And, you know, in thinking about a six and a seven, I'd say, well, I want to think about the victim, and I also want to think about, are these defendants really similarly situated if they're not, then how do I address that issue? And here, like, I get your argument, 50-50 is the absolute best that your client can get. The question is, you know, is that really reflective of, you know, a fair assessment of what went on and the two critical factors that were to take into account the economic, you know, ability to pay the restitution and the relative culpability or contribution to the criminal enterprise. In the big picture it was, Judge Buckwaltor delivered detailed borrow sentencing speech at the second opinions, runs 46 pages of transcript. And this is a small part of it, but in a key part, an essential part for the, are now sentenced that he imposed. He did not want her to be free of the obligation to pay and for the payment to be directed to the citizens' alliance. And she would be freed of that obligation if the government were to prevail on our appeal without her having appealed or them having appealed that judgment. Well, it goes back. That can't be right. Well, that may be, but she's still, this I understood, you make an interesting point because in effect what you're saying too is that she's really, if you do this, she's getting off easier than he intended. Yes. In a sense, but couldn't he have done it would, you know, maybe a lesser division, you know, 75, 25 or something because when you pick it up, it, you just don't expect to see 50, 50. Right. But as the court said in a complicated case, it calls for an imaginative restitution scheme and the court has considerable discretion that this court will not disturb. But the problem that the victim would not be reimbursed, the person will be disrectorate the way it stands. I don't think you can refute that the way this stands now, the victim is never going to be reimbursed by the code of payment paying $1,000 a month. Well, if you build $1,000 a month into it as the assumption that I'm not going to disagree with you, but I don't accept that assumption. But the point is that it has substantial collection powers and it's a 20-year lean of judgment, even after supervised release ends that the government can collect. Can the government, the probation department, requires a 1,000 a month, can they also issue levies for more while that's pending? The government can, the probation can, government can, they have all the power that exists in the federal statues to collect any federal debt. Because it has the force of a civil judge. Yes, exactly. It does, literally by law. Well, yeah, but the court has adopted probation's recommendation. So, you know, the government can't act in contravention of the court's order. I mean, if the court orders 1,000, that order doesn't exist. Then it's going to be 1,000. The government would have to petition to the court to do any of the things that you're suggesting. Well, that's between them and this are now. And my other clients, but I'm not sure that that's so. But in any, I mean, let's speak a moment on our appeal that the, our argument is pretty clear that, as I think, I don't know why Mr. Osher didn't understand it, is about the mandate. You're not asked to read the briefs from the prior appeal and decide whether you would have deemed that issue waived by them. The issue is, are we going to assume that Judge Fuente's opinion in the prior decision did not say what it meant? And if it was unclear, if it didn't seem to say what the government wanted it to say, then it was for them to file a motion then to that panel at that time to clarify that mandate for rehearing whatever they needed to do. But once that was done and over, it doesn't matter if it was right or wrong. I'm not talking about the mandate, but it completely evades the subtabetic restitution issue, which was part of the case that was before the Court. It was not before the Court because the government didn't put it before the Court in the way in which any litigant on appeal is obligated to do state that it's an issue and argue why they are right. They are sure there was 50 pages of briefing about the measurement of the laws, but only a footnote repeated several times, but a footnote repeated several times, not an argument heading. The government pointed out the relationship between the guideline, the law's calculation and the restitution amount in grief. They asserted that they wanted the restitution reversed also. They never explained the relationship not once. They were conclusory. One sentence footnote of exactly the kind that this Court has repeatedly held that the desire of a party, sorry, is not the way it does not entitle you to have an issue decided on appeal. How do we accept your reading of the mandate when we found reversible error with respect to the several laws calculations? How can we accept that? And the guidelines and where there is an obvious undisputed connection between the calculations of laws and restitution. Because in that appeal, the government asserted in these one sentence footnotes that they thought the restitution should fall also. And in response, in our brief, we said that doesn't put restitution before this Court. It's not an issue for decision. And then when the decision came out, the opinion does not address the government's claim of error in restitution. And it states literally the restitution is affirmed. And when my friend, Mr. Zaws, quoted the mandate, he left off the keywords. It didn't say remand it. He said remanded for further proceedings. It said remanded for further proceedings could not inconsistent with this opinion. And it is inconsistent with the opinion which says the restitution is affirmed to treat that restitution as an open question on reading. I think we have a case case that says when you read a mandate, you have to read the opinion with it. Yes. And it can strobe together. Exactly. Exactly. And the opinion said the restitution is affirmed and did not address the government's argument that it should be reversed. Thank you, sir. Thanks so much. So you do have one minute. I have a number of points I'd like to quickly address with regards to the mandate issue. The notion that the government did not appeal this. You can read the briefs in the record as well as I can. And that notion is simply breathtaking. Well, I'm curious. He says, Mr. Goldberger says that, well, the court affirmed the restitution. The amount, is that right? The court said we affirm the order of restitution in a passage of the opinion that only dealt with an issue raised by Mr. Fummo in his cross appeal that said, pre-judgment interest should not be imposed on restitution. This court disagreed with that. It rejected that argument. And at the end of that, one section said, we therefore affirm the judgment of restitution and the order of pre-judgment interest. Then it gets into all the loss error. And then at the end it says we vacate the sentence. So as I said before, I best you have an ambiguity. The important thing about the mandate, the thing that I fall back on, your honor is absolutely correct. You look at the judgment and connection with the opinion, but the fundamental rule that this court and the Supreme Court have said over and over, is that you look at the letter and the spirit of the mandate. Now how can it be the spirit of this court's mandate to say that the district court aired in imposing $2.3 million of loss, the real loss is $4.2 million. And our mandate is Mr. Fummo, you get to keep that extra $1.9 million that you saw. How can that be a reasonable interpretation of the mandate? And if it is, if that is the law of the case, the Supreme Court has gone further and said the law of the case is not a binding jurisdictional rule. A subsequent appellate court can correct a miscarriage of justice. That is a miscarriage of justice. If Mr. Fummo took $1.9 million from the Senate of Pennsylvania, from the Independence Airport Museum, from Citizens Alliance, and keeps it. And that's what they're arguing here. So step after step, it just doesn't work. It's creative, but it doesn't work. We repeatedly linked restitution to loss. And this, by the way, your honor, is an issue that Judge Buckwalter, who we respect a great deal, agrees with us on. He explained that length. We said in saying how he couldn't understand how the Third Circuit could issue a mandate like that. That found him wrong to the tune of $2 million about loss, and yet affirmed the lower restitution number. So that's our position on that. I'm running out of time, and I do want, if I may, to just address a couple of the other issues. The hunter doctrine was a valid doctrine. At one point, it's not relevant here. It was under the Victim Witness Protection Act, as I know Judge Kahn recalls. And the Victim Witness Protection Act did not have a correlate provision telling the court how to apportion among joint wrongdoers. This notion now that we look at the economic circumstances of each defendant, the contribution to the loss wasn't there. And that's why the hunter doctrine was essentially the district court uses its discretion and does the best it can. But the U.S. Congress had something to say about that, which is mandatory restitution, putting the interest of the victims first, and doing it in part through this, through this order. As far as the contributions of the loss, I'm okay with what Mr. Glover says that we can look at acts as well as money. The dollars are very important. When the split is 96 to 4, that's a pretty good sign of who's in charge. But if you want to look at the acts that took place, and not just who got the money, that's overwhelming. There's no evidentiary basis for saying that there's 50-50 culpability here. Mr. Glover talks about the government's vast collection powers. You simply cannot get blood out of a rock. Mr. Glover has not addressed the facts of the pre-sentence report, which show very clearly that Mr. Arnau's personal worth is less than $100,000 back in 2009. Before she went to jail, before she lost her job, before she took a new job paying $3,000 a month, where there's money was the joint assets that she had with her husband. They had boats at their houses. And the government can't reach that, as your owners well know. We can't reach joint assets unless there's death or a divorce. So once again, we're telling citizens alliance, wait around for a couple of decades, and we'll see what we can do for you. This notion that we have collection powers, and therefore we can get something out of nothing is wrong. There is no evidentiary support for the idea that she can pay this judgment. And finally, the most shocking thing here, I think, is that the argument that we have from the defense, which is that we would be undoing the sentence, that this is an important part of Mr. Arnau's sentence. There are ways to punish Mr. Arnau, that there's imprisonment, and with respect to money, there's a fine. But what we're talking about here is restitution, and what we're talking about here is making the victim pull and giving it back. That's true, there are ways, but at this point, there was a total package, and we couldn't say to the court, well, since we're not going to make Mr. Pharma a libel, and then, well, several, and jointly, for all the restitution, you can increase the sentence on the other defendant in terms of length. But again, because it's uncollectable, there's no reason to touch the sentence of the other defendant. The important point is that you have to look at the interest of the victim. If you're going to say that we're going to put an uncollectable judgment on a defendant, because it punishes her, because as part of her punishment, let the person who took another $800,000 walk away with it, and not give the victim back, I would submit, that's an error, law. That's not just an abusive discretion, that is violating the mandate of the mandatory victims restitution act. Thank you very much. Mr. Goldberg. Let me just say on a strictly limiting myself to the Crossfield, which is the scope of the mandate question, that even in the Pepper case, in the Supreme Court last year, where the Court talked about the importance of discretion on a remand and reopening of sentence, even then, which the government quotes in their brief, they leave out, and so we pointed out, and I will end with this, that they attach to that subject to the mandate rule and the law of the case. Would you, this Court has often, often, refused a balance, the benefit of perfectly valid legal arguments that of errors that they, that they mentioned, because they did not make it an issue in their appeal, in the way that this Court has required for decades. As line in a brief, a footnote in a brief does not put an issue before the Court for decision, and when the appellant does that, especially an experience, well, whether it's not an experience that knowledge will defend it, this Court has done that to experience the appellant, knowledge will appellant, and ignorant, bad appellants both. It's a very important rule that appeals be structured and organized, and the mandate reflects that this matter was decided by the prior panel, should not be reconsidered now, restitution, the principal amount of restitution was not remanded by the prior decision. And if the government wanted that mandate revised, was in the prior appeal that they should have done it. We just remind you there is one point that we made in our brief that the government has conceded that a remand is required. So I don't know what the court might be inclined to do, but at least some are remanded at least for, for to reopen the error in the calculation is required. Thank you very much. Thank you, Council. This case was obviously extremely well brief. We enjoyed the argument this morning. Have a good day