Legal Case Summary

Thank you, Your Honor. Good morning. I'm Marvin Miller from Mr. Blackman. In our reply brief at Section 3C, we talked about Green Law, Party, Proclusion. That really doesn't apply. We're not going to address it or rely on it. If you're honest, please. I really don't think it's appropriate in this case. The three things really that have to do with this case are encounter the brandishing. We're aware of the actually decision. We believe that in light of both apprandy and the more recent alien case that they have an impact on Ashley, which Ashley didn't address. The other issue is on the conspiracy, which is sharp. We essentially trying to get us to overrule one of our cases. No, Your Honor. Yes, you are. I'm trying to get you to, and not say that it was wrongly decided, but in the sense of we made a mistake, and the way we looked at it, other than for the fact that you did not consider either apprandy, which is not mentioned in there, nor alien, which wasn't decided at the time, and on page 143. It doesn't implicate any of those. The brandishing statute refers to the charge, refers to a conspiracy. The body..

. in which the gun was brandished, during which the gun was brandished. Count two charges, 924C and 18 USC two, specifically, as Aiding and a Betty. Except 924C has as an element, what's the language of that? 924C is the use of our brandishing refiner arm, and of course, of a crime of violence, which would be a robbery. I don't understand how it's conspiracy. That's what, what, isn't it? No, 924C does not require a conspiracy. That doesn't require it. Requires crime of violence. That's right. Requires crime of violence. What was charged in this case? It was in count two, was charged that he brandished and Aiding and a Betty. Brandishing was the charge of count two. That's exactly what it was. I'm just not sure how you think these sentencing decisions go in and affect the actual conviction. And it seems to me you're transposing the contacts there. I will respectfully disagree, Judge Boroson. Count two says that Blackman did normally an intentional use in carrying brandishing fire on him and a crime of violence. And it sites. Except that's what you left off, and then we didn't finish our discussion. It says, namely, the conspiracy to interfere with commerce by robbery. That's, that to me is an explicit incorporation of agency. In other words, it's, you don't need to have a citation to Pinkerton

. It's a conspiracy is the basis of this particular brandishing. But they say no to the defense lawyer at the time, because they say, we're charging you, the grand jury says, with Aiding and a Betty, the use of the firearm and the further and so the conspiracy. So the pistol arrow. That's another, another issue of demonstrating liability. But the point is that the brandishing was in connection with a conspiracy, not with just the robbery as you just suggested. And that's key because if he's brandishing in connection with a conspiracy, he's a member of that conspiracy. And he doesn't have to be a member of the conspiracy to have a- He's a search to be a member. We're not talking about Aiding. We're talking about the actual offense. Well, count one is separate from count two when considered by jury, isn't that correct? No. Count two, take it alone, is brandishing in connection with a crime of violence, namely conspiracy to commit robbery. And it says that- And he was- Does not have to be a member of the conspiracy to Aiding a Betty. That's a fact. Look, forget the Aiding a Betty. Let's just stick with the main crime. No, your honor to Aiding- Just forget the Aiding a Betty and address why he wasn't a member of that conspiracy. He doesn't have to be a member of the conspiracy to Aiding a Betty, a conspirator's use of a firearm in count two. Sir, you're double talking. The statute says that you brandishing in connection with a crime of violence. The charge in this case was a crime of violence was conspiracy to commit robbery. The question is, why isn't that to answer your case entirely? Because he was a member of the conspiracy to commit robbery, which included the use of a brandishing firearm

. I don't understand, forget the Aiding a Betty. That's just a method of proving a case through a different mechanism. The method of proving under Pancerton is different than the method of proving under Aiding and a Betty. Let's see, this is where I depart. Because the whole point of Ashley is that Aiding and a Betty and Pinkertotons conspiracy are very related in that they both hinge on facie ability. In order to be liable under Pancerton conspiracy doctrine, you have to be able to facie the acts that the conspirators are going to commit. And in order to be liable under Aiding and a Betty, you would have to understand or know what you were Aiding and a Betty. But what I'm saying is they both, and the reason that you can try to make this as Byzantine as you want, but they both ground out and they both bottom out on the whole notion of facie ability. And that's true, whether you're talking about Aiding and a Betty, where you have to facie the acts that the principles are going to undertake, or you can't be guilty of Aiding and a Betty if you're ignorant, completely ignorant of what you're Aiding and a Betty. And it's the same thing with Pinkertotons conspiracy. One of the elements of that is you've got to be, the brandishing has to be reasonably facieable. And then you get down, Mr. Miller, to exactly whether these elements, whether it's Aiding and a Betty, or whether it's Pinkertoton liability, whether these elements were met. And you look at Blackman's place in this whole scheme, and in terms of facie ability, he knew exactly what was going to happen. They talked to him about the fact that firearms were going to be used to rob those Apple vans. The discussion was head in his presence. There's... May I address some of that, Your Honor? Yes, you may, but what I'm saying is there's more than sufficient evidence for Judge Brinkham at a fine that these elements were.

.. were satisfied because he... I understand the fact, Your Honor. That's not the issue. They knew they were armed robberies. He absolutely knew it. That's not the issue. Part of the group, yes it is. Not in my appeal, it's not. In my appeal, the issue is that there is... And for seeability is not a factor in Aiding and a Betty. Knowledge is plus an action with that knowledge to make it happen. That's a closely related doctrine to facie ability. It's not the same as. And in the law there's a difference because the courts have said..

. The argument is that they didn't charge Pinkerton in the indictment. That's correct. They used the word conspiracy. Now what does that mean? What the indictment says, and I understand where the court is on this, but what the indictment says is, you aided and abetted the use of a firearm in a conspiracy. And under the law, a defendant can aid and abet the use of a firearm in a conspiracy without being a conspirator. And that's clear. Except they charged him with being a conspirator, an aid of a conspiracy, that's charged. You're on notice, you can defend it. Your whole issue is whether I got Pinkerton notice. It's right in the indictment. I understand your position, Your Honor, but Judge Neemar, he was told... He wasn't told that he was a member of the conspiracy. His membership in the conspiracy isn't mentioned anywhere in count too. He is told. Sure it is. No. He said he'd brandished a firearm in connection with a conspiracy. He did it by aiding and abetting the brandishing of firearm in a Hobbes Act conspiracy. Exactly

. He did it much more directly. He didn't brandish the firearm. That's an agreed fact. Oh, the conspiracy did, and they talked about it. They unloaded the guns. They didn't use bullets. He put the clip in. They talked about how they're going to use the gun to intimidate and get them out of there. This is just no question that that was part of the conspiracy. Whether it's part of the conspiracy or not, and whether or not he was a conspirator, the indictment told him that he was an aider and a better of a conspiracy. Why don't you address that? It also said he was a brandish in connection with a conspiracy. And it said the way that he brandished, since he didn't do it himself, the way he did it, according to the grand jury, was he did it by aiding and abetting its brandishing in the conspiracy. It did. You know, in the indictment, there are many, many other circuits that have said that you don't need in the kind of magic words that you want. I happen to agree with Judge Neymar that the conspiracy theory was charged, but you didn't even need to charge it. The cases that have said that, which are at 143 of Ashley in page 19, String site in their reply brief, do not address a trendy, and in a trendy, the court said, that what needs to be proved, any fact, which needs to be proved for punishment is an element. That's, you're not contesting the punishment here. It's not, no, but the facts needed to punish include the facts needed to convict. That may be true, but what I'm saying is that you've got a long string of circuit law, and we're talking about the conviction here and conviction and sentencing are very, very different things. I'm talking about the conviction. Yeah, you're talking about the conviction

. That's right. And the question you have is, did Pinkerton conspiracy need to be charged in the indictment? And the response is, number one, a conspiracy theory was charged in the indictment. And number two, it didn't need to be because the law of this circuit, the law of many other circuits are, that it isn't necessary to explicitly cite Pinkerton theories of liability in the indictment. And none of the cases that have said that, all of them rely on pre-apprendy and pre-alene decisions, none of them have addressed whether or not the any, the any fact is the issue. Actually came up to the Supreme Court, I think, well after a prendy had been handed down, it was a quick denial of search theory. They're not buying it. But they overturned Harris after Ashley in 2010, 2013, in the Alene case, and under, and in Ashley, the apprendy issue was not raised. Well, it wasn't briefed, it wasn't argued, and it wasn't addressed by the court. I'm saying to you is that you, you know, you have a, with a lane, that's a question of whether you're eligible for some mandatory minimum, but you're not contesting a mandatory minimum here. And you're not saying that the judge exceeded the statutory maximum, and you're not, you're not bringing in an apprendy question. You can't be sentenced period if you're not guilty. And so the facts necessary to convict or the facts necessary to punish, and that issue hasn't been addressed in any of the cases, and I'm now getting into the little bit of time I've got left rebuttal, yes, Your Honor. I just wanted to, I assumed from your, the way you broke up your time that you were, you're going to address forfeiture on rebuttal. I do want to address it on rebuttal. Very briefly, they... I, I, you put your, you're out of time, so you're at the, I, yeah. Um, I want you to, I want to talk about the forefeiture part of it too, which you have some time for rebuttal, and we'll give you a chance to do the, to, to, to take up the five-page amount. You can't, you can't. To make, to pull out my argument with out in your honor

. I appreciate it, thank you. Morning, Your Honor. I'm wind grant with the U.S. Attorney's Office here in Richmond. I plan to talk about all three issues, but it's a court would like to move right to the forefeiture. That's really why I'm here, because that's my, uh... I would, I would like to move right to the forefeiture question. Yes, sir, I'm, I'm happy to do so. The, the forefeiture in this case is, is mandatory, and the reason we're here is because the district court apparently believed otherwise that it was discretionary. We made every effort to try to, uh... fix that before, before coming here with the motion that we filed after sentencing where we asked the court to correct it under rule 35, and that was unsuccessful, so that's, that's why we're here. The applicable statute is 28, USC 2461C, which provides it, if the defendant is convicted of an offense giving rise to forefeiture, the court shall order forefeiture of the property as part of the criminal case. The forefeiture was noticed appropriately in the indictment under rule 32.2, that's the only requirement at the conclusion of the trial, the district judge ask, is there going to be any forefeiture in this case? There is a forefeiture charge in the indictment, the prosecutor responded, there is your honor correct. I believe it's 130,000. I believe Ms

. Landino testified to approximately 130,000, so whether your honor, which wants to take it up at this point, or at sentencing, as either forefeiture or restitution, we would ask to take it up at the appropriate time. Was the district court under the apprehension that it was in either or a matter? I don't think so, your honor, but I understand. What was the misapprehension that led to the error in your, in your view? The misapprehension is, I believe the district court believed that forefeiture was discretionary, not that it was forefeiture or restitution, but that forefeiture is always discretionary. And I believe from the comments by the district court at the rule 35 hearing, the district court was also under the apprehension that it would be discretionary with respect to some offences. I mean the question is whether something's elisted a fence? Correct, it's really not discretionary. If the offence is covered by a forefeiture statute, it's mandatory. If it's not covered by a forefeiture statute, it's not permissible. In Rico here is the statute that takes the forefeiture provision and covers the property. It's actually this provision in Caffer the Civil Acid Forfeiture Reform Act in 2000, which is found in title 28, curiously not title 18 of United States Code that I just referred to, which says the court shall order forefeiture of the property. If it's an offence covered by a forefeiture, it's a very circuitous question. What was the question was whether something was a specified unlawful activity? And that is determined, that's the, what you decide before you get to 28 USC 2460. And I thought that the, where is in your view is the definition of specified unlawful activity. That's in 18. It's the question of what's listed in 1961, isn't it? Correct, you're on. That is correct. And, and, and in section 1961, section 1951, which is the, which is a robbery, right? It's specifically mentioned. That is correct. I mean, you have to go through the different steps, beginning with the forefeiture statute in, in 981, and then going to 19, then going to robbery, which is under 1951, and then finding if 1951 is included in 1961. And I gather that's the sort of, the, the various steps that we need to undertake. Is that correct? That is correct. It's, it's footnote five and air brief on this, and it's a security route

. I don't understand why I was putting a footnote, because that's a pretty important point. I guess because I do it all the time. I've become accustomed to it, but I understand it's an arcane and security route for anybody who doesn't. No, I should have been in the text of your report. And I will heed that advice for the next time around. But it clearly is an SUA offense. It's mandatory. It was charged in the indictment. And I think the other rationale that the district court suggested without really saying it was, she thought that the defendant was unable to pay the forefeiture, and therefore she wasn't interested in imposing something, but she thought probably didn't have any real meaning when he didn't have the financial ability to pay, because she made that comment as well. The views for the future and restitution there? Well, she did to a degree, but both are mandatory and both do not allow for the consideration of ability to pay. And certainly, 981A talks in terms of is subject to forefeiture and talks in terms of shall. And 981 is a civil forefeiture statute, Your Honor, but it's the 28 USC 24-61C, where Congress said for every statute for which there is a civil or criminal forefeiture, the court may now impose criminal forefeiture and didn't say it may. It said the court shall impose forefeiture. So 24-61C is where the mandatory aspect is reinforced in the statute. So again, I think it was the district court's misapprehension that ability to pay- The defendant is convicted of the offense giving rise to the forefeiture. The court shall order the forefeiture of the property. Correct, Your Honor. And that's consistent with, you know, Monsanto, which said that 25 years ago in the context of of 853- You still need to go through those other steps to find out if it's whether the offense is a qualifying correct Your Honor. And in this case, the robbery conspiracy qualifies as the court just said, because it's listed as a rico- Under the different provisions in title 18. Yes, or 1961, the Rico Predicates is where that statute is specifically listed as an SUA or specified on lawful activity. And the shorthand method that Congress used to bring in to criminal forefeiture, all of these offenses was with that cross-reference to the SUA definitions. There are a lot of different statutory provisions that feed in here, aren't there? There are. It's 2461 and 981 and there are at least four. Correct. 1951 and then 1961. I mean, is Mons standing correct in your view that we have to take a count of all four of those? I think you do. I mean, it's like a road map. You have to follow the map to its conclusion to get to that. On 2461, from 2461, we get the mandatory element. And then from 981, we get the idea that what's critical is the specified on lawful activity. And then we get from 951, the definition of robbery, and then from 956, and section 956 defines specified on lawful activity as something listed in 1936. In 1961, and then when we go to 1961, we find that 1951, which is robbery, is explicitly listed. So I've counted at least five different steps that probably need to be taken. I gather that's your view. Correct. But the fact that there are these different steps, it might seem to make it unclear, but it actually isn't. The steps follow quite logically from one another, and they incorporate my reference. And the road map, even though there are five turns to take, the road map is still pretty clear. And I would add to that, it's mandatory. It's clear, but there's only one destination that you can arrive at if you follow the map. And you don't have an option to detour, to not get to the end of the line, which says the court shall order for sure, of the proceeds of the offense. And as I said, I believe the district court believed that it had discretion or that it was of no point

. There are a lot of different statutory provisions that feed in here, aren't there? There are. It's 2461 and 981 and there are at least four. Correct. 1951 and then 1961. I mean, is Mons standing correct in your view that we have to take a count of all four of those? I think you do. I mean, it's like a road map. You have to follow the map to its conclusion to get to that. On 2461, from 2461, we get the mandatory element. And then from 981, we get the idea that what's critical is the specified on lawful activity. And then we get from 951, the definition of robbery, and then from 956, and section 956 defines specified on lawful activity as something listed in 1936. In 1961, and then when we go to 1961, we find that 1951, which is robbery, is explicitly listed. So I've counted at least five different steps that probably need to be taken. I gather that's your view. Correct. But the fact that there are these different steps, it might seem to make it unclear, but it actually isn't. The steps follow quite logically from one another, and they incorporate my reference. And the road map, even though there are five turns to take, the road map is still pretty clear. And I would add to that, it's mandatory. It's clear, but there's only one destination that you can arrive at if you follow the map. And you don't have an option to detour, to not get to the end of the line, which says the court shall order for sure, of the proceeds of the offense. And as I said, I believe the district court believed that it had discretion or that it was of no point. She made a couple of comments both at the sentencing hearing, but primarily at the denied-air request to correct this before coming here, that she just didn't think there was any point in that, and she declined to really consider the forfeiture. The amount was never contested. The amount was what it was. It was a conservative amount. It was the amount of money that the only witness who testified, and there was no even cross-examination of that witness, Ms. Landino, said it was $136,000 and some change. Yes, Judge Brinkham, it didn't get to the Eighth Amendment claim, but these Eighth Amendment claims are not fairing all that oil and forfeiture cases. And especially when Blackman is not a minor player, he had some peripheral or incidental part to play in the conspiracy and was thought not to be culpable and was unaware of the full extent of what was taking place or the full extent of the proceeds that were going to be derived. Maybe, maybe, you could have some sort of Eighth Amendment challenge, but this seems a particularly inappropriate case given his awareness of everything that went on. I quite agree that the Jaloram case out of this court a few years ago suggested that there may be that rare instance where someone who gets a very small portion of the proceeds, but is charged with the joint and several liability with his co-conspirators. I mean, this person was the Founce. He was. He clearly got, I would presume, an equal share of the proceeds along with everyone else, and we don't know precisely, but he was... The Fence is a pretty important cog in all of these conspiracies, because that lets you cover your tracks and realize the proceeds and everything else. The Fence, you could say, is almost as important to the completion of the conspiracies, the government. Well, I would take that one step further and say that the Fence is absolutely essential, because this was not a crime of some sort of political statement or some crime of passion. This was a crime of greed. It was to achieve financial gain. If you can't sell the property that you've just stolen

. She made a couple of comments both at the sentencing hearing, but primarily at the denied-air request to correct this before coming here, that she just didn't think there was any point in that, and she declined to really consider the forfeiture. The amount was never contested. The amount was what it was. It was a conservative amount. It was the amount of money that the only witness who testified, and there was no even cross-examination of that witness, Ms. Landino, said it was $136,000 and some change. Yes, Judge Brinkham, it didn't get to the Eighth Amendment claim, but these Eighth Amendment claims are not fairing all that oil and forfeiture cases. And especially when Blackman is not a minor player, he had some peripheral or incidental part to play in the conspiracy and was thought not to be culpable and was unaware of the full extent of what was taking place or the full extent of the proceeds that were going to be derived. Maybe, maybe, you could have some sort of Eighth Amendment challenge, but this seems a particularly inappropriate case given his awareness of everything that went on. I quite agree that the Jaloram case out of this court a few years ago suggested that there may be that rare instance where someone who gets a very small portion of the proceeds, but is charged with the joint and several liability with his co-conspirators. I mean, this person was the Founce. He was. He clearly got, I would presume, an equal share of the proceeds along with everyone else, and we don't know precisely, but he was... The Fence is a pretty important cog in all of these conspiracies, because that lets you cover your tracks and realize the proceeds and everything else. The Fence, you could say, is almost as important to the completion of the conspiracies, the government. Well, I would take that one step further and say that the Fence is absolutely essential, because this was not a crime of some sort of political statement or some crime of passion. This was a crime of greed. It was to achieve financial gain. If you can't sell the property that you've just stolen... He's got the property in his hands and he's selling it. He knows what the proceeds are. And to raise an eighth amendment argument, it's a little jargon. I would say he is the least eligible person to raise an eighth amendment argument under the circumstances. One is the court just said he actually received 100% of the proceeds. There is an irony in a Fence raising an eighth amendment argument. I think you've made my case for me. I won't have to belabor that point. If there are no other questions on the forfeit, Chair, I'll respond to. I have a couple of minutes I reserve for a bottle on this point. Thank you. Council alluded, Your Honours, to the Rule 35, but they said in their reply brief that they weren't going to rely on the Rule 35. So I'm a little confused, I don't understand. I was right. The opposing Council and your view is wrong on the forfeit to point. Two things. First of all, they waived it. As in the Alamundi case in which you participated, Judge Neymar, that they cited in their 28J letter on Tuesday, the court recognized that the government can limit forfeiture and can waive forfeiture. You referred to the Arnette case where they breached a plea agreement on a supposedly mandatory forfeiture by seeking a forfeiture that was inconsistent with the agreement

... He's got the property in his hands and he's selling it. He knows what the proceeds are. And to raise an eighth amendment argument, it's a little jargon. I would say he is the least eligible person to raise an eighth amendment argument under the circumstances. One is the court just said he actually received 100% of the proceeds. There is an irony in a Fence raising an eighth amendment argument. I think you've made my case for me. I won't have to belabor that point. If there are no other questions on the forfeit, Chair, I'll respond to. I have a couple of minutes I reserve for a bottle on this point. Thank you. Council alluded, Your Honours, to the Rule 35, but they said in their reply brief that they weren't going to rely on the Rule 35. So I'm a little confused, I don't understand. I was right. The opposing Council and your view is wrong on the forfeit to point. Two things. First of all, they waived it. As in the Alamundi case in which you participated, Judge Neymar, that they cited in their 28J letter on Tuesday, the court recognized that the government can limit forfeiture and can waive forfeiture. You referred to the Arnette case where they breached a plea agreement on a supposedly mandatory forfeiture by seeking a forfeiture that was inconsistent with the agreement. So if it's mandatory, it can't be mandatory and discretionary where they get to waive it or not. It's like they can't waive a seven-year mandatory minimum on a brandishing charge. In this case, when the case came on for sentencing, and if you look at Rule 2460 at statute 28, USC 2461, modes of recovery, it says when the forfeiture is addressed and it shall be part of the sentencing order, it doesn't say that forfeiture shall be ordered, it says they shall be part of the forfeiture order. If you want mandatory language about what must be forfeited with no discretion for the judge whatsoever, you find that in 3554, which says, in addition to the sentence, you shall forfeit. You find it and they cited 21 USC 853. It also has language that says in it that they shall forfeit. I mean, you're very creative, but I don't understand. Here's the points, Your Honor, if I may. I like when you come up here, but I don't understand how you get around to sentence. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order, the forfeiture is part of the sentence in the criminal case. There are two parts there. One, they have to ask for it and they waived it because before sentencing, they filed nothing. At sentencing, they filed nothing. They did file later the affidavit and you're going too fast. At the sentencing, it says, is there anything further you need? And Ms. Bernrohm says, recalls the indictment included a notice of forfeiture. I know Your Honor has addressed the issue with regard to restitution, but if I could pass forward documents, I say, relate to forfeiture. Correct. Court, what are you seeking forfeiture? What are you seeking in forfeiture? Your Honor, the same amount. There have been no specific assets identified, however, at this point. Court, well, then I'm not entering a forfeiture in this case

. So if it's mandatory, it can't be mandatory and discretionary where they get to waive it or not. It's like they can't waive a seven-year mandatory minimum on a brandishing charge. In this case, when the case came on for sentencing, and if you look at Rule 2460 at statute 28, USC 2461, modes of recovery, it says when the forfeiture is addressed and it shall be part of the sentencing order, it doesn't say that forfeiture shall be ordered, it says they shall be part of the forfeiture order. If you want mandatory language about what must be forfeited with no discretion for the judge whatsoever, you find that in 3554, which says, in addition to the sentence, you shall forfeit. You find it and they cited 21 USC 853. It also has language that says in it that they shall forfeit. I mean, you're very creative, but I don't understand. Here's the points, Your Honor, if I may. I like when you come up here, but I don't understand how you get around to sentence. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order, the forfeiture is part of the sentence in the criminal case. There are two parts there. One, they have to ask for it and they waived it because before sentencing, they filed nothing. At sentencing, they filed nothing. They did file later the affidavit and you're going too fast. At the sentencing, it says, is there anything further you need? And Ms. Bernrohm says, recalls the indictment included a notice of forfeiture. I know Your Honor has addressed the issue with regard to restitution, but if I could pass forward documents, I say, relate to forfeiture. Correct. Court, what are you seeking forfeiture? What are you seeking in forfeiture? Your Honor, the same amount. There have been no specific assets identified, however, at this point. Court, well, then I'm not entering a forfeiture in this case. And she talks about there as she did in the later June hearing about that he's an indigent. I'm appointed because he can't afford the cost of appeal. He had no assets as the PSR establishes. He couldn't afford to pay anything. She talks in terms of eighth amendment. She doesn't say that on. She says, I'm not entering forfeiture. Mr. Bernrohm, yes, Your Honor. The Court, all right, Mr. Miller. Mr. Miller, yes, Your Honor. Anything other? On the restitution, would Your Honor like to waive interest? Court says yes. That ends it. But later in June, when they're coming back to her and asking her to enter a forfeiture, she does say about it. She does address his indignity. She does address the fact that she ordered restitution. And the eighth amendment is not based on the knowledge and culpability of the defendant because in the Bajikakin case, which I'm sure I'm mispronouncing in the decision by Justice Thomas, where the guy was taking $357,000 out of the country. And they can't say that to forfeit all of that amount, which the law allowed. And he knew how much money he had

. And she talks about there as she did in the later June hearing about that he's an indigent. I'm appointed because he can't afford the cost of appeal. He had no assets as the PSR establishes. He couldn't afford to pay anything. She talks in terms of eighth amendment. She doesn't say that on. She says, I'm not entering forfeiture. Mr. Bernrohm, yes, Your Honor. The Court, all right, Mr. Miller. Mr. Miller, yes, Your Honor. Anything other? On the restitution, would Your Honor like to waive interest? Court says yes. That ends it. But later in June, when they're coming back to her and asking her to enter a forfeiture, she does say about it. She does address his indignity. She does address the fact that she ordered restitution. And the eighth amendment is not based on the knowledge and culpability of the defendant because in the Bajikakin case, which I'm sure I'm mispronouncing in the decision by Justice Thomas, where the guy was taking $357,000 out of the country. And they can't say that to forfeit all of that amount, which the law allowed. And he knew how much money he had. He had it there. So you're arguing that this is an eighth amendment. There are two issues. There are two issues. There are two reasons. The question to you was, why shouldn't the forfeiture have been entered? And now you're talking about eighth amendment. Two reasons. There are two reasons why shouldn't have been entered. One is they waived it by not pushing that it was mandatory at sentencing. And they've just read you where they said. And she denied it. They did not address the fact that it was a mandatory and they didn't offer for the record or proper for the record. What they would have established by putting forward the documents that they said they had. You're on them. We filed these in the record. If a defendant fails to put forward something in the record there and you don't know what the witness would say or what the evidence would be, then the defendant's forfeiture the issue. How can this be an eighth amendment violation? As I understand it, the maximum fine here is $250,000 per count. The fine, and I just finished one. Yeah. And I thought the government requested forfeiture in the amount of $136,000 and that's well below what the statutory maximum is. The fine range in this case was between 60 and 150

. He had it there. So you're arguing that this is an eighth amendment. There are two issues. There are two issues. There are two reasons. The question to you was, why shouldn't the forfeiture have been entered? And now you're talking about eighth amendment. Two reasons. There are two reasons why shouldn't have been entered. One is they waived it by not pushing that it was mandatory at sentencing. And they've just read you where they said. And she denied it. They did not address the fact that it was a mandatory and they didn't offer for the record or proper for the record. What they would have established by putting forward the documents that they said they had. You're on them. We filed these in the record. If a defendant fails to put forward something in the record there and you don't know what the witness would say or what the evidence would be, then the defendant's forfeiture the issue. How can this be an eighth amendment violation? As I understand it, the maximum fine here is $250,000 per count. The fine, and I just finished one. Yeah. And I thought the government requested forfeiture in the amount of $136,000 and that's well below what the statutory maximum is. The fine range in this case was between 60 and 150. The restitution and fine together would have been $260,000.000. And that in a combined situation, if you do the analysis that Justice Thomas did, where the amount forfeited would exceed the fine. And I would contend that the fine range that the I say that just as a positive. But it seems to me there's a difference where you use the farmhouse to distribute drugs and they try to forfeit the farmhouse, then you can make that argument. Here the entire assets seeking to be forfeited were stolen. They stole a billion dollars from the bank. It seems to me they have to forfeit that back, don't they? He doesn't get to keep the product of his crime. He's not keeping the product because he's paying it to the victim. So he's not keeping it. Hold it, that's restitution. Or you're talking about forfeiture. The idea forfeiture here was to forfeit what he gained as part of the crime. Now the amount $136,000 seems to me can never be related to a fine when it's the product of the crime itself. If I steal the diamond, this world's most valuable diamond, don't I have to forfeit it back? I don't get to keep it. If you stole the diamond, then the diamond goes back to the victim. The government's forfeiture encompasses loss to the government. Here, there was none. The government's forfeiture is to make the government whole for things that it lost. It is a punishment. They agree in their brief that it's a punishment

. The restitution and fine together would have been $260,000.000. And that in a combined situation, if you do the analysis that Justice Thomas did, where the amount forfeited would exceed the fine. And I would contend that the fine range that the I say that just as a positive. But it seems to me there's a difference where you use the farmhouse to distribute drugs and they try to forfeit the farmhouse, then you can make that argument. Here the entire assets seeking to be forfeited were stolen. They stole a billion dollars from the bank. It seems to me they have to forfeit that back, don't they? He doesn't get to keep the product of his crime. He's not keeping the product because he's paying it to the victim. So he's not keeping it. Hold it, that's restitution. Or you're talking about forfeiture. The idea forfeiture here was to forfeit what he gained as part of the crime. Now the amount $136,000 seems to me can never be related to a fine when it's the product of the crime itself. If I steal the diamond, this world's most valuable diamond, don't I have to forfeit it back? I don't get to keep it. If you stole the diamond, then the diamond goes back to the victim. The government's forfeiture encompasses loss to the government. Here, there was none. The government's forfeiture is to make the government whole for things that it lost. It is a punishment. They agree in their brief that it's a punishment. As a punishment, it has to have some reason to this to it. It's not as though they went to his house and he had the goods or he had the money. He had nothing. He was impucunious. So he is restituting the victims. They want to take the same amount. Your argument now is shifted to say they can't impose both restitution and forfeiture for the same amount. I'm saying that in this case, that's a different argument altogether. I'm saying in this case what the judge said was at the June hearing that he's got the restitution and he doesn't have any assets. I think she's right about that. What I'm saying is that that is an eighth amendment issue because the eighth amendment doesn't apply because you're not really guilty. The eighth amendment applies about whether or not the punishment, which is what the fourth amendment is. Greater than necessary under the circumstances for the defendant and the crime. There is an eighth amendment basis in this case for this impucunious individual to be able to pay the victims there do, which he's obligated to do once he gets out. Then to impose on him an additional obligation to pay the government, which gets paid first, the victims come in second. It's not. Oh, the whole reason does the statute make any kind of this sort of exception that you're talking about. It says that the shallot of forfeiture and the part of the reason the statute says that shallot of forfeiture and it doesn't talk about all these exceptions and restitution with forfeiture and in relationships of restitution and forfeiture and part of it is that if you're under a restitution order, the victims don't often collect and part of the reason they don't collect is because they don't have the resources sometimes to go into court and collect. The government simply has superior resources in terms of collection and I don't see in the statutes where Congress has made restitution and forfeiture mutually exclusive. The 2461 statute says it shall order forfeiture and you can you know you can you can take it from there and you can debate the amount and you can do these other things but I don't see the district court is the district court is not permitted just to rely exclusively on restitution if this is a forfeited offense. The district court is entitled to rely as did the district court in the Bajakaki in case on the forfeiture being requested being excessive in the district court's view and they're entitled to make that decision not withstanding the Congress's statutory requirements

. As a punishment, it has to have some reason to this to it. It's not as though they went to his house and he had the goods or he had the money. He had nothing. He was impucunious. So he is restituting the victims. They want to take the same amount. Your argument now is shifted to say they can't impose both restitution and forfeiture for the same amount. I'm saying that in this case, that's a different argument altogether. I'm saying in this case what the judge said was at the June hearing that he's got the restitution and he doesn't have any assets. I think she's right about that. What I'm saying is that that is an eighth amendment issue because the eighth amendment doesn't apply because you're not really guilty. The eighth amendment applies about whether or not the punishment, which is what the fourth amendment is. Greater than necessary under the circumstances for the defendant and the crime. There is an eighth amendment basis in this case for this impucunious individual to be able to pay the victims there do, which he's obligated to do once he gets out. Then to impose on him an additional obligation to pay the government, which gets paid first, the victims come in second. It's not. Oh, the whole reason does the statute make any kind of this sort of exception that you're talking about. It says that the shallot of forfeiture and the part of the reason the statute says that shallot of forfeiture and it doesn't talk about all these exceptions and restitution with forfeiture and in relationships of restitution and forfeiture and part of it is that if you're under a restitution order, the victims don't often collect and part of the reason they don't collect is because they don't have the resources sometimes to go into court and collect. The government simply has superior resources in terms of collection and I don't see in the statutes where Congress has made restitution and forfeiture mutually exclusive. The 2461 statute says it shall order forfeiture and you can you know you can you can take it from there and you can debate the amount and you can do these other things but I don't see the district court is the district court is not permitted just to rely exclusively on restitution if this is a forfeited offense. The district court is entitled to rely as did the district court in the Bajakaki in case on the forfeiture being requested being excessive in the district court's view and they're entitled to make that decision not withstanding the Congress's statutory requirements. The statute is key to whether the individual is convicted in the offense. The same language applied to that Supreme Court decision and they said that's what the statute says is to happen but we believe applying the statute under the circumstances of that case violated the constitution which trumps the statute and that's what Justice Thomas wrote in his opinion. The statute is clear and the circumstances here could not be less sympathetic. I mean honest goodness it's as Judge Neymar pointed out it's stolen property the request is relatively modest in terms of the statutory maximum. This person was the fence he knew exactly what they were doing if you can't if there's no forfeiture here we've simply shredded the whole statutory scheme. Not necessarily your honor in a situation where court has discretionary authority to apply constitutional principles not withstanding a statute which is what the court did in this case. Your argument is that ordering restitution and forfeiture in this case is excessive fine. It would be in this case an excessive fine and the other issue would be that the government's failure to provide the court with information at the time of sentencing which is when these issues are to be addressed that would justify a decision for forfeiture and the amount is a waiver of it their failure to say to a court that in their view it's mandatory is a waiver. She ruled that it she just basically said it's denied. She did not get from them a it's mandatory she did not get from them the proof of the amount they had the documents they didn't tender them to the court they didn't file them before court they didn't serve them on the defense before court they didn't serve them on defense in the courtroom thank you honor mr. Grant you've got three minutes I promise not to take it on could you just address that last point the waiver he says you waived it because you didn't present the papers to the court well that's just simply not correct is is our response we did present the papers to defense counsel in the courtroom that day we tried to offer them up and I think the record reflects that we we tried to offer them up and the district judge was like I've made my decision don't don't waste my time I don't want to see it and confirmation did you ever file the papers we attached them to a rule 35 motion as an exhibit when we file the motion five days later explaining why the district court was wrong and forfeiture was mandatory that's that's in the record and a third confirmation of what we tried to do was at the rule 35 hearing the judge made that comment like you didn't push back enough you didn't you know do what you needed to do and mr. burn bomb specifically corrected the court and said your honor that's not correct we had the papers in court we offered them to the court and you had already ruled and did not receive the the motion but the other point I would make is that there's no requirement of a motion rule 32.2 the forfeiture rule doesn't require the government to file a motion for a forfeiture because again it's a mandatory provision of a sentence there's no requirement to file a motion for a restitution or a motion for a mandatory minimum sentence or a motion for a mandatory special assessment the law requires the court to impose it and and could we have done a better job to maybe argue more forcefully of course we can always do better but I think we did more than enough to preserve the point in this case and I could say more about the eighth amendment analysis but I don't think I need to this this was a forfeiture of the proceeds of the offense well below the the test which the court also argues that restitution and forfeiture are duplicative and they're for excessive there that is that is that view has been rejected by every circuit that has addressed that I think nine circuits have concluded that is absolutely not the law no circuit has ever held that to be the law and forfeiture is punitive restitution is compensatory they serve two different ends and it's just well-concentred noted we often use forfeiture because of the much better tools to collect property from a defendant to recover assets many times you give those assets to the victims we do that that you don't just necessarily you're not obligated to but in but in many instances that's what happens the victims of a crime can't often they don't have the legal wherewithal they don't they can't hire attorneys many times the victims of crime sometimes are they're very impacunious they're poor and they can't hire attorneys and go through the long legal slug to get what's coming to them and to collect on the restitutionary judge and the government does sometimes have the additional resources and it turns those funds over to the victims and it's one way in which people who've been victimized by crime are able to to have some of those financial proceeds that are rightfully theirs restored to them I couldn't have said it better and I see my time is up thank you very much Will a Jiren Court come down and recount this all of a court stands adjourned son of dark guys think the United States and it's all of a court

Thank you, Your Honor. Good morning. I'm Marvin Miller from Mr. Blackman. In our reply brief at Section 3C, we talked about Green Law, Party, Proclusion. That really doesn't apply. We're not going to address it or rely on it. If you're honest, please. I really don't think it's appropriate in this case. The three things really that have to do with this case are encounter the brandishing. We're aware of the actually decision. We believe that in light of both apprandy and the more recent alien case that they have an impact on Ashley, which Ashley didn't address. The other issue is on the conspiracy, which is sharp. We essentially trying to get us to overrule one of our cases. No, Your Honor. Yes, you are. I'm trying to get you to, and not say that it was wrongly decided, but in the sense of we made a mistake, and the way we looked at it, other than for the fact that you did not consider either apprandy, which is not mentioned in there, nor alien, which wasn't decided at the time, and on page 143. It doesn't implicate any of those. The brandishing statute refers to the charge, refers to a conspiracy. The body... in which the gun was brandished, during which the gun was brandished. Count two charges, 924C and 18 USC two, specifically, as Aiding and a Betty. Except 924C has as an element, what's the language of that? 924C is the use of our brandishing refiner arm, and of course, of a crime of violence, which would be a robbery. I don't understand how it's conspiracy. That's what, what, isn't it? No, 924C does not require a conspiracy. That doesn't require it. Requires crime of violence. That's right. Requires crime of violence. What was charged in this case? It was in count two, was charged that he brandished and Aiding and a Betty. Brandishing was the charge of count two. That's exactly what it was. I'm just not sure how you think these sentencing decisions go in and affect the actual conviction. And it seems to me you're transposing the contacts there. I will respectfully disagree, Judge Boroson. Count two says that Blackman did normally an intentional use in carrying brandishing fire on him and a crime of violence. And it sites. Except that's what you left off, and then we didn't finish our discussion. It says, namely, the conspiracy to interfere with commerce by robbery. That's, that to me is an explicit incorporation of agency. In other words, it's, you don't need to have a citation to Pinkerton. It's a conspiracy is the basis of this particular brandishing. But they say no to the defense lawyer at the time, because they say, we're charging you, the grand jury says, with Aiding and a Betty, the use of the firearm and the further and so the conspiracy. So the pistol arrow. That's another, another issue of demonstrating liability. But the point is that the brandishing was in connection with a conspiracy, not with just the robbery as you just suggested. And that's key because if he's brandishing in connection with a conspiracy, he's a member of that conspiracy. And he doesn't have to be a member of the conspiracy to have a- He's a search to be a member. We're not talking about Aiding. We're talking about the actual offense. Well, count one is separate from count two when considered by jury, isn't that correct? No. Count two, take it alone, is brandishing in connection with a crime of violence, namely conspiracy to commit robbery. And it says that- And he was- Does not have to be a member of the conspiracy to Aiding a Betty. That's a fact. Look, forget the Aiding a Betty. Let's just stick with the main crime. No, your honor to Aiding- Just forget the Aiding a Betty and address why he wasn't a member of that conspiracy. He doesn't have to be a member of the conspiracy to Aiding a Betty, a conspirator's use of a firearm in count two. Sir, you're double talking. The statute says that you brandishing in connection with a crime of violence. The charge in this case was a crime of violence was conspiracy to commit robbery. The question is, why isn't that to answer your case entirely? Because he was a member of the conspiracy to commit robbery, which included the use of a brandishing firearm. I don't understand, forget the Aiding a Betty. That's just a method of proving a case through a different mechanism. The method of proving under Pancerton is different than the method of proving under Aiding and a Betty. Let's see, this is where I depart. Because the whole point of Ashley is that Aiding and a Betty and Pinkertotons conspiracy are very related in that they both hinge on facie ability. In order to be liable under Pancerton conspiracy doctrine, you have to be able to facie the acts that the conspirators are going to commit. And in order to be liable under Aiding and a Betty, you would have to understand or know what you were Aiding and a Betty. But what I'm saying is they both, and the reason that you can try to make this as Byzantine as you want, but they both ground out and they both bottom out on the whole notion of facie ability. And that's true, whether you're talking about Aiding and a Betty, where you have to facie the acts that the principles are going to undertake, or you can't be guilty of Aiding and a Betty if you're ignorant, completely ignorant of what you're Aiding and a Betty. And it's the same thing with Pinkertotons conspiracy. One of the elements of that is you've got to be, the brandishing has to be reasonably facieable. And then you get down, Mr. Miller, to exactly whether these elements, whether it's Aiding and a Betty, or whether it's Pinkertoton liability, whether these elements were met. And you look at Blackman's place in this whole scheme, and in terms of facie ability, he knew exactly what was going to happen. They talked to him about the fact that firearms were going to be used to rob those Apple vans. The discussion was head in his presence. There's... May I address some of that, Your Honor? Yes, you may, but what I'm saying is there's more than sufficient evidence for Judge Brinkham at a fine that these elements were... were satisfied because he... I understand the fact, Your Honor. That's not the issue. They knew they were armed robberies. He absolutely knew it. That's not the issue. Part of the group, yes it is. Not in my appeal, it's not. In my appeal, the issue is that there is... And for seeability is not a factor in Aiding and a Betty. Knowledge is plus an action with that knowledge to make it happen. That's a closely related doctrine to facie ability. It's not the same as. And in the law there's a difference because the courts have said... The argument is that they didn't charge Pinkerton in the indictment. That's correct. They used the word conspiracy. Now what does that mean? What the indictment says, and I understand where the court is on this, but what the indictment says is, you aided and abetted the use of a firearm in a conspiracy. And under the law, a defendant can aid and abet the use of a firearm in a conspiracy without being a conspirator. And that's clear. Except they charged him with being a conspirator, an aid of a conspiracy, that's charged. You're on notice, you can defend it. Your whole issue is whether I got Pinkerton notice. It's right in the indictment. I understand your position, Your Honor, but Judge Neemar, he was told... He wasn't told that he was a member of the conspiracy. His membership in the conspiracy isn't mentioned anywhere in count too. He is told. Sure it is. No. He said he'd brandished a firearm in connection with a conspiracy. He did it by aiding and abetting the brandishing of firearm in a Hobbes Act conspiracy. Exactly. He did it much more directly. He didn't brandish the firearm. That's an agreed fact. Oh, the conspiracy did, and they talked about it. They unloaded the guns. They didn't use bullets. He put the clip in. They talked about how they're going to use the gun to intimidate and get them out of there. This is just no question that that was part of the conspiracy. Whether it's part of the conspiracy or not, and whether or not he was a conspirator, the indictment told him that he was an aider and a better of a conspiracy. Why don't you address that? It also said he was a brandish in connection with a conspiracy. And it said the way that he brandished, since he didn't do it himself, the way he did it, according to the grand jury, was he did it by aiding and abetting its brandishing in the conspiracy. It did. You know, in the indictment, there are many, many other circuits that have said that you don't need in the kind of magic words that you want. I happen to agree with Judge Neymar that the conspiracy theory was charged, but you didn't even need to charge it. The cases that have said that, which are at 143 of Ashley in page 19, String site in their reply brief, do not address a trendy, and in a trendy, the court said, that what needs to be proved, any fact, which needs to be proved for punishment is an element. That's, you're not contesting the punishment here. It's not, no, but the facts needed to punish include the facts needed to convict. That may be true, but what I'm saying is that you've got a long string of circuit law, and we're talking about the conviction here and conviction and sentencing are very, very different things. I'm talking about the conviction. Yeah, you're talking about the conviction. That's right. And the question you have is, did Pinkerton conspiracy need to be charged in the indictment? And the response is, number one, a conspiracy theory was charged in the indictment. And number two, it didn't need to be because the law of this circuit, the law of many other circuits are, that it isn't necessary to explicitly cite Pinkerton theories of liability in the indictment. And none of the cases that have said that, all of them rely on pre-apprendy and pre-alene decisions, none of them have addressed whether or not the any, the any fact is the issue. Actually came up to the Supreme Court, I think, well after a prendy had been handed down, it was a quick denial of search theory. They're not buying it. But they overturned Harris after Ashley in 2010, 2013, in the Alene case, and under, and in Ashley, the apprendy issue was not raised. Well, it wasn't briefed, it wasn't argued, and it wasn't addressed by the court. I'm saying to you is that you, you know, you have a, with a lane, that's a question of whether you're eligible for some mandatory minimum, but you're not contesting a mandatory minimum here. And you're not saying that the judge exceeded the statutory maximum, and you're not, you're not bringing in an apprendy question. You can't be sentenced period if you're not guilty. And so the facts necessary to convict or the facts necessary to punish, and that issue hasn't been addressed in any of the cases, and I'm now getting into the little bit of time I've got left rebuttal, yes, Your Honor. I just wanted to, I assumed from your, the way you broke up your time that you were, you're going to address forfeiture on rebuttal. I do want to address it on rebuttal. Very briefly, they... I, I, you put your, you're out of time, so you're at the, I, yeah. Um, I want you to, I want to talk about the forefeiture part of it too, which you have some time for rebuttal, and we'll give you a chance to do the, to, to, to take up the five-page amount. You can't, you can't. To make, to pull out my argument with out in your honor. I appreciate it, thank you. Morning, Your Honor. I'm wind grant with the U.S. Attorney's Office here in Richmond. I plan to talk about all three issues, but it's a court would like to move right to the forefeiture. That's really why I'm here, because that's my, uh... I would, I would like to move right to the forefeiture question. Yes, sir, I'm, I'm happy to do so. The, the forefeiture in this case is, is mandatory, and the reason we're here is because the district court apparently believed otherwise that it was discretionary. We made every effort to try to, uh... fix that before, before coming here with the motion that we filed after sentencing where we asked the court to correct it under rule 35, and that was unsuccessful, so that's, that's why we're here. The applicable statute is 28, USC 2461C, which provides it, if the defendant is convicted of an offense giving rise to forefeiture, the court shall order forefeiture of the property as part of the criminal case. The forefeiture was noticed appropriately in the indictment under rule 32.2, that's the only requirement at the conclusion of the trial, the district judge ask, is there going to be any forefeiture in this case? There is a forefeiture charge in the indictment, the prosecutor responded, there is your honor correct. I believe it's 130,000. I believe Ms. Landino testified to approximately 130,000, so whether your honor, which wants to take it up at this point, or at sentencing, as either forefeiture or restitution, we would ask to take it up at the appropriate time. Was the district court under the apprehension that it was in either or a matter? I don't think so, your honor, but I understand. What was the misapprehension that led to the error in your, in your view? The misapprehension is, I believe the district court believed that forefeiture was discretionary, not that it was forefeiture or restitution, but that forefeiture is always discretionary. And I believe from the comments by the district court at the rule 35 hearing, the district court was also under the apprehension that it would be discretionary with respect to some offences. I mean the question is whether something's elisted a fence? Correct, it's really not discretionary. If the offence is covered by a forefeiture statute, it's mandatory. If it's not covered by a forefeiture statute, it's not permissible. In Rico here is the statute that takes the forefeiture provision and covers the property. It's actually this provision in Caffer the Civil Acid Forfeiture Reform Act in 2000, which is found in title 28, curiously not title 18 of United States Code that I just referred to, which says the court shall order forefeiture of the property. If it's an offence covered by a forefeiture, it's a very circuitous question. What was the question was whether something was a specified unlawful activity? And that is determined, that's the, what you decide before you get to 28 USC 2460. And I thought that the, where is in your view is the definition of specified unlawful activity. That's in 18. It's the question of what's listed in 1961, isn't it? Correct, you're on. That is correct. And, and, and in section 1961, section 1951, which is the, which is a robbery, right? It's specifically mentioned. That is correct. I mean, you have to go through the different steps, beginning with the forefeiture statute in, in 981, and then going to 19, then going to robbery, which is under 1951, and then finding if 1951 is included in 1961. And I gather that's the sort of, the, the various steps that we need to undertake. Is that correct? That is correct. It's, it's footnote five and air brief on this, and it's a security route. I don't understand why I was putting a footnote, because that's a pretty important point. I guess because I do it all the time. I've become accustomed to it, but I understand it's an arcane and security route for anybody who doesn't. No, I should have been in the text of your report. And I will heed that advice for the next time around. But it clearly is an SUA offense. It's mandatory. It was charged in the indictment. And I think the other rationale that the district court suggested without really saying it was, she thought that the defendant was unable to pay the forefeiture, and therefore she wasn't interested in imposing something, but she thought probably didn't have any real meaning when he didn't have the financial ability to pay, because she made that comment as well. The views for the future and restitution there? Well, she did to a degree, but both are mandatory and both do not allow for the consideration of ability to pay. And certainly, 981A talks in terms of is subject to forefeiture and talks in terms of shall. And 981 is a civil forefeiture statute, Your Honor, but it's the 28 USC 24-61C, where Congress said for every statute for which there is a civil or criminal forefeiture, the court may now impose criminal forefeiture and didn't say it may. It said the court shall impose forefeiture. So 24-61C is where the mandatory aspect is reinforced in the statute. So again, I think it was the district court's misapprehension that ability to pay- The defendant is convicted of the offense giving rise to the forefeiture. The court shall order the forefeiture of the property. Correct, Your Honor. And that's consistent with, you know, Monsanto, which said that 25 years ago in the context of of 853- You still need to go through those other steps to find out if it's whether the offense is a qualifying correct Your Honor. And in this case, the robbery conspiracy qualifies as the court just said, because it's listed as a rico- Under the different provisions in title 18. Yes, or 1961, the Rico Predicates is where that statute is specifically listed as an SUA or specified on lawful activity. And the shorthand method that Congress used to bring in to criminal forefeiture, all of these offenses was with that cross-reference to the SUA definitions. There are a lot of different statutory provisions that feed in here, aren't there? There are. It's 2461 and 981 and there are at least four. Correct. 1951 and then 1961. I mean, is Mons standing correct in your view that we have to take a count of all four of those? I think you do. I mean, it's like a road map. You have to follow the map to its conclusion to get to that. On 2461, from 2461, we get the mandatory element. And then from 981, we get the idea that what's critical is the specified on lawful activity. And then we get from 951, the definition of robbery, and then from 956, and section 956 defines specified on lawful activity as something listed in 1936. In 1961, and then when we go to 1961, we find that 1951, which is robbery, is explicitly listed. So I've counted at least five different steps that probably need to be taken. I gather that's your view. Correct. But the fact that there are these different steps, it might seem to make it unclear, but it actually isn't. The steps follow quite logically from one another, and they incorporate my reference. And the road map, even though there are five turns to take, the road map is still pretty clear. And I would add to that, it's mandatory. It's clear, but there's only one destination that you can arrive at if you follow the map. And you don't have an option to detour, to not get to the end of the line, which says the court shall order for sure, of the proceeds of the offense. And as I said, I believe the district court believed that it had discretion or that it was of no point. She made a couple of comments both at the sentencing hearing, but primarily at the denied-air request to correct this before coming here, that she just didn't think there was any point in that, and she declined to really consider the forfeiture. The amount was never contested. The amount was what it was. It was a conservative amount. It was the amount of money that the only witness who testified, and there was no even cross-examination of that witness, Ms. Landino, said it was $136,000 and some change. Yes, Judge Brinkham, it didn't get to the Eighth Amendment claim, but these Eighth Amendment claims are not fairing all that oil and forfeiture cases. And especially when Blackman is not a minor player, he had some peripheral or incidental part to play in the conspiracy and was thought not to be culpable and was unaware of the full extent of what was taking place or the full extent of the proceeds that were going to be derived. Maybe, maybe, you could have some sort of Eighth Amendment challenge, but this seems a particularly inappropriate case given his awareness of everything that went on. I quite agree that the Jaloram case out of this court a few years ago suggested that there may be that rare instance where someone who gets a very small portion of the proceeds, but is charged with the joint and several liability with his co-conspirators. I mean, this person was the Founce. He was. He clearly got, I would presume, an equal share of the proceeds along with everyone else, and we don't know precisely, but he was... The Fence is a pretty important cog in all of these conspiracies, because that lets you cover your tracks and realize the proceeds and everything else. The Fence, you could say, is almost as important to the completion of the conspiracies, the government. Well, I would take that one step further and say that the Fence is absolutely essential, because this was not a crime of some sort of political statement or some crime of passion. This was a crime of greed. It was to achieve financial gain. If you can't sell the property that you've just stolen... He's got the property in his hands and he's selling it. He knows what the proceeds are. And to raise an eighth amendment argument, it's a little jargon. I would say he is the least eligible person to raise an eighth amendment argument under the circumstances. One is the court just said he actually received 100% of the proceeds. There is an irony in a Fence raising an eighth amendment argument. I think you've made my case for me. I won't have to belabor that point. If there are no other questions on the forfeit, Chair, I'll respond to. I have a couple of minutes I reserve for a bottle on this point. Thank you. Council alluded, Your Honours, to the Rule 35, but they said in their reply brief that they weren't going to rely on the Rule 35. So I'm a little confused, I don't understand. I was right. The opposing Council and your view is wrong on the forfeit to point. Two things. First of all, they waived it. As in the Alamundi case in which you participated, Judge Neymar, that they cited in their 28J letter on Tuesday, the court recognized that the government can limit forfeiture and can waive forfeiture. You referred to the Arnette case where they breached a plea agreement on a supposedly mandatory forfeiture by seeking a forfeiture that was inconsistent with the agreement. So if it's mandatory, it can't be mandatory and discretionary where they get to waive it or not. It's like they can't waive a seven-year mandatory minimum on a brandishing charge. In this case, when the case came on for sentencing, and if you look at Rule 2460 at statute 28, USC 2461, modes of recovery, it says when the forfeiture is addressed and it shall be part of the sentencing order, it doesn't say that forfeiture shall be ordered, it says they shall be part of the forfeiture order. If you want mandatory language about what must be forfeited with no discretion for the judge whatsoever, you find that in 3554, which says, in addition to the sentence, you shall forfeit. You find it and they cited 21 USC 853. It also has language that says in it that they shall forfeit. I mean, you're very creative, but I don't understand. Here's the points, Your Honor, if I may. I like when you come up here, but I don't understand how you get around to sentence. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order, the forfeiture is part of the sentence in the criminal case. There are two parts there. One, they have to ask for it and they waived it because before sentencing, they filed nothing. At sentencing, they filed nothing. They did file later the affidavit and you're going too fast. At the sentencing, it says, is there anything further you need? And Ms. Bernrohm says, recalls the indictment included a notice of forfeiture. I know Your Honor has addressed the issue with regard to restitution, but if I could pass forward documents, I say, relate to forfeiture. Correct. Court, what are you seeking forfeiture? What are you seeking in forfeiture? Your Honor, the same amount. There have been no specific assets identified, however, at this point. Court, well, then I'm not entering a forfeiture in this case. And she talks about there as she did in the later June hearing about that he's an indigent. I'm appointed because he can't afford the cost of appeal. He had no assets as the PSR establishes. He couldn't afford to pay anything. She talks in terms of eighth amendment. She doesn't say that on. She says, I'm not entering forfeiture. Mr. Bernrohm, yes, Your Honor. The Court, all right, Mr. Miller. Mr. Miller, yes, Your Honor. Anything other? On the restitution, would Your Honor like to waive interest? Court says yes. That ends it. But later in June, when they're coming back to her and asking her to enter a forfeiture, she does say about it. She does address his indignity. She does address the fact that she ordered restitution. And the eighth amendment is not based on the knowledge and culpability of the defendant because in the Bajikakin case, which I'm sure I'm mispronouncing in the decision by Justice Thomas, where the guy was taking $357,000 out of the country. And they can't say that to forfeit all of that amount, which the law allowed. And he knew how much money he had. He had it there. So you're arguing that this is an eighth amendment. There are two issues. There are two issues. There are two reasons. The question to you was, why shouldn't the forfeiture have been entered? And now you're talking about eighth amendment. Two reasons. There are two reasons why shouldn't have been entered. One is they waived it by not pushing that it was mandatory at sentencing. And they've just read you where they said. And she denied it. They did not address the fact that it was a mandatory and they didn't offer for the record or proper for the record. What they would have established by putting forward the documents that they said they had. You're on them. We filed these in the record. If a defendant fails to put forward something in the record there and you don't know what the witness would say or what the evidence would be, then the defendant's forfeiture the issue. How can this be an eighth amendment violation? As I understand it, the maximum fine here is $250,000 per count. The fine, and I just finished one. Yeah. And I thought the government requested forfeiture in the amount of $136,000 and that's well below what the statutory maximum is. The fine range in this case was between 60 and 150. The restitution and fine together would have been $260,000.000. And that in a combined situation, if you do the analysis that Justice Thomas did, where the amount forfeited would exceed the fine. And I would contend that the fine range that the I say that just as a positive. But it seems to me there's a difference where you use the farmhouse to distribute drugs and they try to forfeit the farmhouse, then you can make that argument. Here the entire assets seeking to be forfeited were stolen. They stole a billion dollars from the bank. It seems to me they have to forfeit that back, don't they? He doesn't get to keep the product of his crime. He's not keeping the product because he's paying it to the victim. So he's not keeping it. Hold it, that's restitution. Or you're talking about forfeiture. The idea forfeiture here was to forfeit what he gained as part of the crime. Now the amount $136,000 seems to me can never be related to a fine when it's the product of the crime itself. If I steal the diamond, this world's most valuable diamond, don't I have to forfeit it back? I don't get to keep it. If you stole the diamond, then the diamond goes back to the victim. The government's forfeiture encompasses loss to the government. Here, there was none. The government's forfeiture is to make the government whole for things that it lost. It is a punishment. They agree in their brief that it's a punishment. As a punishment, it has to have some reason to this to it. It's not as though they went to his house and he had the goods or he had the money. He had nothing. He was impucunious. So he is restituting the victims. They want to take the same amount. Your argument now is shifted to say they can't impose both restitution and forfeiture for the same amount. I'm saying that in this case, that's a different argument altogether. I'm saying in this case what the judge said was at the June hearing that he's got the restitution and he doesn't have any assets. I think she's right about that. What I'm saying is that that is an eighth amendment issue because the eighth amendment doesn't apply because you're not really guilty. The eighth amendment applies about whether or not the punishment, which is what the fourth amendment is. Greater than necessary under the circumstances for the defendant and the crime. There is an eighth amendment basis in this case for this impucunious individual to be able to pay the victims there do, which he's obligated to do once he gets out. Then to impose on him an additional obligation to pay the government, which gets paid first, the victims come in second. It's not. Oh, the whole reason does the statute make any kind of this sort of exception that you're talking about. It says that the shallot of forfeiture and the part of the reason the statute says that shallot of forfeiture and it doesn't talk about all these exceptions and restitution with forfeiture and in relationships of restitution and forfeiture and part of it is that if you're under a restitution order, the victims don't often collect and part of the reason they don't collect is because they don't have the resources sometimes to go into court and collect. The government simply has superior resources in terms of collection and I don't see in the statutes where Congress has made restitution and forfeiture mutually exclusive. The 2461 statute says it shall order forfeiture and you can you know you can you can take it from there and you can debate the amount and you can do these other things but I don't see the district court is the district court is not permitted just to rely exclusively on restitution if this is a forfeited offense. The district court is entitled to rely as did the district court in the Bajakaki in case on the forfeiture being requested being excessive in the district court's view and they're entitled to make that decision not withstanding the Congress's statutory requirements. The statute is key to whether the individual is convicted in the offense. The same language applied to that Supreme Court decision and they said that's what the statute says is to happen but we believe applying the statute under the circumstances of that case violated the constitution which trumps the statute and that's what Justice Thomas wrote in his opinion. The statute is clear and the circumstances here could not be less sympathetic. I mean honest goodness it's as Judge Neymar pointed out it's stolen property the request is relatively modest in terms of the statutory maximum. This person was the fence he knew exactly what they were doing if you can't if there's no forfeiture here we've simply shredded the whole statutory scheme. Not necessarily your honor in a situation where court has discretionary authority to apply constitutional principles not withstanding a statute which is what the court did in this case. Your argument is that ordering restitution and forfeiture in this case is excessive fine. It would be in this case an excessive fine and the other issue would be that the government's failure to provide the court with information at the time of sentencing which is when these issues are to be addressed that would justify a decision for forfeiture and the amount is a waiver of it their failure to say to a court that in their view it's mandatory is a waiver. She ruled that it she just basically said it's denied. She did not get from them a it's mandatory she did not get from them the proof of the amount they had the documents they didn't tender them to the court they didn't file them before court they didn't serve them on the defense before court they didn't serve them on defense in the courtroom thank you honor mr. Grant you've got three minutes I promise not to take it on could you just address that last point the waiver he says you waived it because you didn't present the papers to the court well that's just simply not correct is is our response we did present the papers to defense counsel in the courtroom that day we tried to offer them up and I think the record reflects that we we tried to offer them up and the district judge was like I've made my decision don't don't waste my time I don't want to see it and confirmation did you ever file the papers we attached them to a rule 35 motion as an exhibit when we file the motion five days later explaining why the district court was wrong and forfeiture was mandatory that's that's in the record and a third confirmation of what we tried to do was at the rule 35 hearing the judge made that comment like you didn't push back enough you didn't you know do what you needed to do and mr. burn bomb specifically corrected the court and said your honor that's not correct we had the papers in court we offered them to the court and you had already ruled and did not receive the the motion but the other point I would make is that there's no requirement of a motion rule 32.2 the forfeiture rule doesn't require the government to file a motion for a forfeiture because again it's a mandatory provision of a sentence there's no requirement to file a motion for a restitution or a motion for a mandatory minimum sentence or a motion for a mandatory special assessment the law requires the court to impose it and and could we have done a better job to maybe argue more forcefully of course we can always do better but I think we did more than enough to preserve the point in this case and I could say more about the eighth amendment analysis but I don't think I need to this this was a forfeiture of the proceeds of the offense well below the the test which the court also argues that restitution and forfeiture are duplicative and they're for excessive there that is that is that view has been rejected by every circuit that has addressed that I think nine circuits have concluded that is absolutely not the law no circuit has ever held that to be the law and forfeiture is punitive restitution is compensatory they serve two different ends and it's just well-concentred noted we often use forfeiture because of the much better tools to collect property from a defendant to recover assets many times you give those assets to the victims we do that that you don't just necessarily you're not obligated to but in but in many instances that's what happens the victims of a crime can't often they don't have the legal wherewithal they don't they can't hire attorneys many times the victims of crime sometimes are they're very impacunious they're poor and they can't hire attorneys and go through the long legal slug to get what's coming to them and to collect on the restitutionary judge and the government does sometimes have the additional resources and it turns those funds over to the victims and it's one way in which people who've been victimized by crime are able to to have some of those financial proceeds that are rightfully theirs restored to them I couldn't have said it better and I see my time is up thank you very much Will a Jiren Court come down and recount this all of a court stands adjourned son of dark guys think the United States and it's all of a cour