Legal Case Summary

One in your honors. May I please the court? There are three uncontested facts in this case, which compel the reversal. If fairness is to prevail in this case. The first fact, Mrs. Lamid is an innocent spouse who had no connection what's so ever to her husband's come. In fact, she suffered from severe mental illness, schizophrenia, and had been interdicted for some 12 years. That interdiction was on the public record. Second, the property in question was not a fruit of the crime and had been owned for years, decades, before the criminal case. And Mrs. Lamid had a community property interest in that property. A vested undivided interest. Third fact, the government concedes and admits at page 27 of its brief, and I quote, quote, the United States does not dispute that under federal case law, an innocent spouse's property interest, and a substitute asset is not subject to forefature under 21 USC Section 853, citing the luster case. I don't know if we have any tennis players on the panel, but in the tennis world, we say game set match. Where I think there are some other scoring that we need to deal with. Why don't you move on? I'm going to do that. These facts and substantive law in our view, the honors, compel the reversal. The government, however, in our view, relies upon technical alleged violations of procedural provisions to deny what is clearly the right result to let this lady and her heirs have her property. Well, Calcice, you see, to be argon, justice requires recognition of this, but I would say, in court, those issues had to be brought up properly. Are you saying this overarching sense of that she was entitled to this makes these procedural issues irrelevant? No, sir. What I'm saying is that if there are procedural issues here, which somehow in pair or defect, the ability for her to have made a proper claim in proper form, etc

., then the district court should have allowed an amendment in the exercise of its discretion. Because- The address seems to be one of the keys to the case. Was the question of amendment solely brought up in the response to the pleading never brought to the attention of the district judge beyond that, either before the initial ruling or in any reconsideration? No, sir, it was brought to the detention district judge in certain way. Well, we had a status conference of the district judge in which I participated and we discussed that with him directly. He didn't address it in his order, but- There's nothing in an order about it, but you're saying orally at this status conference prior to the ruling, the initial ruling by the court. The possibility of an amendment was raised. Yes, sir. And I can't tell you're on it definitively that that's in a pleading in front of the district judge, but it surely was before the district court because we asked for it. Weeding you asked for it beyond just having it as a few sentences in your- Yes, sir. Responsive pleading. Yes, sir. Okay. The government argues that because Dr. Lambert was found to be incompetent, incapable, not incompetent, he was found to be incapable of assisting in his own defense, that the power of attorney he gave to his son to protect Mrs. Lambert's property interest is invalid. They're all. The level of competence required to assist in a criminal defense is much higher than the cognition required by an individual who's impaired and knows he needs someone else to handle their affairs. The level of competence required of a criminal defendant to assist his counsel in preparing a defense, in preparing testimony, et cetera requires a pretty sharp cookie. To understand as an individual as Dr

. Lambert was, you know, I'm not thinking so clearly, and I need to give my power to do things for my wife and my children to someone else. I suggest to the court is a different level of cognition. The other criminal case was stayed because of a finding of incompetence on the defendant's part. Why didn't you ever ask to stay, I guess it was already at the sentencing stage, but to stay sentencing here and raise an issue of competence? Because I believe the competency issue was not raised in the first criminal case. It was raised in the second criminal case. I'm asking, that's exactly what I'm asking, but why wasn't it raised in this case? You're out. I can't answer that. We were not counsel of record, no criminal counsel for the defendant at the time, and no relationship with the defendant that was separate counsel. Let me ask another question about what happened below. Your client files the notice of the claim. It takes over two years for the government to file the motion to dismiss. Basically, nothing is going on in the docket for two years. What in reality was happening? Well, in reality, these people, Rudy Lambert and his disabled brother, were struggling to make ends meet. I mean, there was nothing that the government was filing against them that was trying to dispossess them of their interests in their mother's property, and they were hopeful that the government would come to realization, this is enough. I mean, we've extracted enough from these people, and we're going to let this matter pass and let their property pass to Mrs. Lambert's property, a separate undivided interest property, pass to her children. And then the government reared its head and said, oh no, we want that too. And that's the chronology as best I know it's a general place. Again, the government wants to, in this instance, as we've told you, wants to have it both ways

. Either Dr. Lambert was incapacitated and could not execute the power of attorney, nor accept service on behalf of his interdicted wife, or he had the capacity to execute the power of attorney. You can't, you can't, you can't, you can't, you can't, you can't, you can't, you're one who was appointed, given the wife's status. And if he is no longer competent, your client could have gone to the Louisiana court and asked to be appointed in his place, but that never happened, right? That's the right. And there's a reason for that. The reason for that is he had 30 days to do it. And this is a period of time where we were not in the case, and the landage on the civil side were without representation. And what's the 30 days? He had 30 days from what to do? What? 30 days to file the client to perfect the claim once the government filed its notice of intent to seize the property and 30 days to do that. So all you know about was, was, was, what about, we're probably headed the same way. So once you do that, you still would have time to go into Louisiana court, get the appointment, file some amended pleading in federal court. It's not as if the door was closed to try and to, to correct whatever the Louisiana procedure required. No, sir. It wasn't closed, but it was not one that we could walk through with competence and knowledge and understanding. And my suggestion to the court is- You didn't do it. You didn't do it that much. It's clear. Even if you couldn't do it practically in 30 days, you could have told the federal court, this is what's going on. We're letting you know, can you extend our 30 day window, but the problem is the claim says nothing about the status of Mrs. Luminade or anything else

. But the government knew that. The government knew that Mrs. Luminade was incapacitated. The government, when they checked the records of the Jefferson parish property, which they now want to see, is in take from her and her children, all on the face of the public record is the fact that she is an addicted. So when they did their record search, all they had to do was look at the property and see she was an addicted and incapable legally of the term- Where in the record does it show that the- I know the property records would often show that, but where in the record does it show that that was actually in the property records in this case? It does not. What is in the record of the case is that she was an addicted for 10 years prior to this. It is in the record of this case that that interdiction is on the face of the public record which I'm assuming the government checked. I don't have a fact or an evidentiary point that they checked the public record before trying to grab somebody's property. That's what's done in all instances when somebody is trying to grab somebody else's property. You check the public record. Let me talk about the signing requirement for a moment. 21 USC 853 does require a signing on a penalty of perjury and is strictly construed. We agree with that. However, the reason for strictly construing the provision is to discourage the filing of false or frivolous claims. That's the reason behind the requirement. In this case, the claim is neither false nor frivolous and the government do that. The government listed these assets, this property, and knew that she had an interest in it. For instance, if you're out of place at record citation 30208702, the settlement agreement and final order of forfeiture at page 1, paragraph 3, I quote, the United States recognizes that Mrs. Lamont has a valid interest in these properties based on the community property laws of Louisiana

. So they knew that she was disabled and they knew that she had a valid interest under the community property laws. Period. Once again, we submit that this is another example in this case of the form of a substance. The substance being that I come back to because it's of course true. This is an innocent incompetent spouse, period. And what the court should be doing is figuring out a way to get the heard that through which she's legally entitled, not figuring out a way to prevent it. And that's what we told the district court. Let me ask you this. If we said you're arguing the district court should have granted leave to amend, let's say we agree with you on that. What would you go back in? How would you amend the claim? We would amend the claim by having Mr. Lamont's signature attested to file them in proper form with an affidavit and notarized none of which got taken place at the time and put that affidavit in proper form and put it before the court. And what role would he be filing? Well initially he would file in the role as for his mother who was interdicted under power maternity. And now he would probably file as the executor of the estate and a beneficiary of the estate of his mother of which there is no estate of this property taken away from her. So he would file in that state. I'd in test state. He did. So there is no executor, but that may not be Louisiana term. I'm not sure, but there's no will to administer him. No, he's but by operation of law

. Right. So I just want to not share what his title would be. I think it's executor. Administrator. Okay. So he would come in as administrator and say this estate has a claim to this property. Perfect that claim technically and let the district court rule upon whether or not they're entitled to it. And I'm not other than these technical violations, other than we didn't cross that tea, we didn't dot that eye. What is the government's substantive opposition to this separate property? To have a property. It's a pathetic, but I would say the problem we have it may be beyond tea being crossed and eyes. I mean, we need a claim actually filed on her behalf. And obviously what we're talking about is whether a claim was ever filed on her behalf. Well, sir, but we're not I think what was verified notice of claim and application for adjudication of a litany of interest in for the property is in the record. It's at record citation number 302 08635 in which there is a verified notice of claim for adjudication and validity of her interest in the for property and there on page one with the four pieces of property that we're talking about. And attached attached to this verified claim is Mr. Rudy Lambert's verified affidavit of which they have a problem with which they have a problem of which they complain. So we did file a claim. They were on notice. They knew it all along

. And for some reason as you're out of pointed out after a delay of a year and a half and two years, they said, oh, wait a second. Give us that property too. And more importantly, counsel, here's one of the things I think thinking about is I listen to Judge Southwick ask these questions is if it's true that he had no authority to file a claim on behalf of his mother at the time the original claim was filed. And he were allowed leave to amend and then come in as he suggests as the administrator of the estate. That capacity drives from the time she died which would have been at some date later than the time when the original claim was filed. And I think if my memory serves me correctly, the government uses the phrase new claim in some of this briefs. Why wouldn't it be then a new claim as opposed to an amended claim and how do you say that it relates back again? Because it derives from a claim of which he was possessed before his mother died. And it would simply be sort of like substituting his new role for the same piece of property for the same allegation. It'd be a substitution in his role, not a substitution of parties and not a new claim because the new claim relates to the property. It relates to the property. So the claim is not new. The person who's starting to claim is not new. It's his role may have changed, but that again, where I come from, it's kind of a hopefully a technicality. Let me address your honor's question about the curator issue. The undecurator, he could have gone and done the things that he did, but the undecurator statute, the code says, and we cited the court to the helm case, and Louisiana for a circuit and I quote, so the law clearly sets forth that is the duty of the undecurator to act whenever he or she believes that the best interest of the interdict are contrary to the proposed action by or on behalf of the interdict. So that's a compelling statement which I suggest to the court as a sort of a catch-all provision. I mean, we're in a very difficult situation here, that that gives him that authority to act in the best interest of the interdict, and he tried to do that. And he tried to do that. I'll give my time as expired

. Thank you. We'll see if your game set, match, stands up. I hope we have that eye in the sky that tells where they're not. It's on the line or not, because if it's on the line, the ball's in. Thank you, Hon. Good morning, Your Honor. Catherine Maurey. Your Honor, I'm sorry. Catherine Maurey, on behalf of the United States. I do want to address somebody. Thank you again. Maurey. Maurey. I should know this. Thank you. South Louisiana, Your Honor. The United States does not dispute the fact that Mrs. Lamid, I say if I'm pronouncing correctly, Lamid, has a community interest in the property that was subject to forefeature. And we also do not dispute that in the context of a forefeature, ancillary proceeding that the innocent third party has a right to claim and claim that interest, we do, however, take issue with the fact that this claim was obviously effectively filed on her behalf, because no one with the power to file the claim filed the claim on Mrs

. Lamid's behalf. Under Louisiana law, the curing- The government argued that it would be entitled to seek enforcement of the money judgment against the doctor under the Federal Debt Collection Procedure Act, and the separate obligation of the spouse, the husband, could be satisfied from the community property. Does that mean in your understanding that under the Federal Debt Collection Procedure Act, you could have collected the entirety of the community property? We still can, Your Honor. And I will explain that in great detail, because that's one of the points I'm going to get to, but since you're interested in it, I'm going to ask you to ask you to ask me, I'll get to it now. Under the Federal Debt Collection Procedure, in the Mandatory Victims Restitution Act, the United States is entitled to you state law to satisfy any debt that's owed to it. There are two things going on this case, and I'll find them to be extremely confusing in the context of sentencing. We have an order of restitution in which a restitution lost to the victim in this case Medicare was ordered in the amount of $2,000,000,000, plus. That's the order of restitution. We go through our financial litigation unit, which is called in our office, the asset recovery unit to recover that amounts. And we use the Federal Debt Collection Procedure Act and the Mandatory Victims Restitution Act to collect that money. We also have a criminal, or for sure, money judgment. It's in the same amount, because it represents the proceeds of the crime, which in most cases will, at least in a fraud case, mirror what the order of restitution is. So in this case, we actually have two judgments totaling a total of $5 million. Once the Ancillary Forfeiture Procedure is over, it's our understanding that we have still have the criminal money judgment to the extent it's unsatisfied, we can collect in our financial litigation unit. More importantly, in this case. I haven't done that, so how does that affect this forfeiture proceeding? Other than maybe just saying, even if this forfeiture doesn't go through, we're ultimately going to get the same result anyway. Basically, that's what we're saying. We're also saying under the Mandatory Victims Restitution Act, or even under forfeiture, and we can leave that alone, we're going to get the money anyway. And the law is clear, and the law is chicased, I've cited in the briefs, make it clear that under the Mandatory Victims Restitution Act and the Federal Debt Collection Procedure Act, we are going to be able to seize the spouses of the former community property

. But so how's your argument to be in the district clearly, is that there's no, that the equity here, and I don't mean that in the sense of money, the ethics equity here really isn't in favor of the other side, because the money would be the government's regardless of whether a proper claim had been filed in this forfeiture. And Council for the Appellate Reference to Status Conference, and he had filed, after we had filed the motion to dismiss the claim, and there had been the force to respond to the opposition, and he had filed a supplemental memorandum, and he argued again the innocent spouse, and you can't take through one hand, which you can't get on another way. And we went to the status conference, one of the arguments was like, you're on, we're going to take it anyway, it's a matter of whether we take it in forfeiture or not. And I do believe, although it doesn't go to the technicalities of claim, it does go to whether the district court abused its discretion in disallowing the claim in forfeiture, because after all, the district court will look at the equities. If your otherwise denying a spouse, what she would be entitled to for some mere technicality, but knowing full well that this goes to collection afterwards and that we're going to get the property under the Mandatory Victims Restitution Act in conjunction with the Federal Debt Collections Procedure Act, and it's clear that we do that. I will also note that in a separate garishment proceeding, the United States has already garnished $140,000 in the form of assets and held in bank accounts and in retirement, which is referenced in the Pristense Investigation Report, as is assets. And we've taken 100% of those, even though that was community property, because again, State Mall allows us to do this. So when you're looking at the equities, and of course, if you're looking at whether the judge is going to exercise his discretion to allow an otherwise defector claim to be filed, that's what the judge was looking at, what Judge Brady was looking at. Again, that does go to what's in the court's mind and of course what's fair and what's not fair. As far as this case and the claim itself, Your Honors, I will point out that there was a lot going on in the district court. I know Judge Costa, you ask about the two-year period, why did it take so long? The United States Marshall Service has a policy of not wanting to go forward on actually forwarding and selling real property until there's been a conviction that's been affirmed on appeal. In this case, the United defendant, Mr. Limit, appealed his underlying criminal conviction and sentenced to this court, which was affirmed in March of 2014. I think the mandate issue at the end of March 2014, at that point, that's when we begin an earnest to look at forfitting the property and going through and seizing it, actually selling it. Before that, the Marshall Service won't do it. And there is a deal. We don't want to incur the expenses of upkeep in everything else. And it becomes a logistical nightmare for both the Marshalls and, quite frankly, the U.S. Attorney's Office and our financial litigation unit. Once we've sold property that now has been vacated because of a conviction. But we could seize, we seized, in fact, we went ahead with the cars. And as far as making that settlement on the cars, the cars themselves all together in Globo had $30,000. That was in 2012, rather than litigating any claim in Forfiture at that point, we ended it into a quick settlement about a month and a half after, in 2012, just to get the cars off the books. Because the storage fees alone, three or four years, are going to eat up the car, any profit we would get from the car. I would also just note, and this is an important thing to note in terms of Forfiture, that the more we can get, the more money we can get or a car, the more credit a criminal defendant is going to get than the judgment. So it's not in anybody's interest to sit around and let fees and storage fees and these things occur, because the criminal defendant's going to be tagged without as well in the sense he's not going to be credit to the police. There's loss. Another concern, again, and this is a policy concern, is that although we have another mechanism, and a lot of times it's actually in the defendant's favor for us to proceed and the third party's favor for us to proceed in Forfiture as opposed to asset recovery, the collections route, and this is why, as I mentioned before, we have two judgments. We have an order of restitution, the $2.5 million that goes to the victim, mandatory restitution act, we have to collect it. And we also have the order of Forfiture, those are two judgments. When someone, when the amount of $2.5 million is satisfied in Forfiture, the policy of the Department of Justice is to move to restore those funds to the victim. So, anything that we will get in Forfiture will be restored to the victim and be credited against that $2.5 million judgment of restitution or the restitution. If we collect it under restitution, it doesn't get credited for Forfiture. So in other words, a lot of times we're successful in telling a spouse who has a legitimate interest in Forfiture, look, if we take it in Forfiture, you're going to get credit under the restitution

. Attorney's Office and our financial litigation unit. Once we've sold property that now has been vacated because of a conviction. But we could seize, we seized, in fact, we went ahead with the cars. And as far as making that settlement on the cars, the cars themselves all together in Globo had $30,000. That was in 2012, rather than litigating any claim in Forfiture at that point, we ended it into a quick settlement about a month and a half after, in 2012, just to get the cars off the books. Because the storage fees alone, three or four years, are going to eat up the car, any profit we would get from the car. I would also just note, and this is an important thing to note in terms of Forfiture, that the more we can get, the more money we can get or a car, the more credit a criminal defendant is going to get than the judgment. So it's not in anybody's interest to sit around and let fees and storage fees and these things occur, because the criminal defendant's going to be tagged without as well in the sense he's not going to be credit to the police. There's loss. Another concern, again, and this is a policy concern, is that although we have another mechanism, and a lot of times it's actually in the defendant's favor for us to proceed and the third party's favor for us to proceed in Forfiture as opposed to asset recovery, the collections route, and this is why, as I mentioned before, we have two judgments. We have an order of restitution, the $2.5 million that goes to the victim, mandatory restitution act, we have to collect it. And we also have the order of Forfiture, those are two judgments. When someone, when the amount of $2.5 million is satisfied in Forfiture, the policy of the Department of Justice is to move to restore those funds to the victim. So, anything that we will get in Forfiture will be restored to the victim and be credited against that $2.5 million judgment of restitution or the restitution. If we collect it under restitution, it doesn't get credited for Forfiture. So in other words, a lot of times we're successful in telling a spouse who has a legitimate interest in Forfiture, look, if we take it in Forfiture, you're going to get credit under the restitution. If we take it in Restitution, there's still that Forfiture judgment out there that needs to be satisfied. Well, let me ask, if one thing to say what all the government might be entitled to do, there's some indication of the briefing, well, I mean, I don't know that direction. Let me just state, had a proper claim in Forfiture for the wife in whatever way that could have occurred. Would the government necessarily have proceeded, and that claim presumably would have been recognized? Does it necessarily follow under, I mean, sort of to make this moot under DOJ policy otherwise that you would proceed to use the Fairdeck Collective Procedure Act or something else to fight her claim, to mute her to make her claim irrelevant? If she had filed a timely claim, if she had filed a valid claim, because the claim was not valid, the initial claim was filed within the 30 days. It just wasn't a valid claim, because Berlinia was never, I'll say that again, I'm not quite hearing you. The initial claim was timely in the sense that a claim, a purported claim was filed within the 30-day period. Our contention is there is no timely claim, timely filed claim, because there's never been a proper or legitimate or valid claim in front of the court. Because no one with authority to represent Mrs. Limit legally has filed such a claim. Were you sort of skipping ahead? What I was saying, it had a valid claim been filed on her behalf. Does the mere fact that the government might have some other remedy still to collect necessarily mean, they would have used that remedy and would have allowed instead, not the widow yet, the wife to have a half interest in this property? There's a lot in that question on our packet. We don't have much discretion in whether we collect or not on the Mandatory Victim Restitution Act. In other words, we would have recognized her claim in forfeiture. We would have just seized the half interest in those properties in forfeiture. Then when you get to the Mandatory Victim Restitution Act and the Federal Debt Collection Procedures Act, we're going to go forward to do what we can to collect as much as we can. However, I will have one provisional in that. We look at each case on a case by case basis. We are dealing with an interdicted spouse, which we knew later, of course, was interdicted. We're dealing with a son who also is mentally capacitated

. If we take it in Restitution, there's still that Forfiture judgment out there that needs to be satisfied. Well, let me ask, if one thing to say what all the government might be entitled to do, there's some indication of the briefing, well, I mean, I don't know that direction. Let me just state, had a proper claim in Forfiture for the wife in whatever way that could have occurred. Would the government necessarily have proceeded, and that claim presumably would have been recognized? Does it necessarily follow under, I mean, sort of to make this moot under DOJ policy otherwise that you would proceed to use the Fairdeck Collective Procedure Act or something else to fight her claim, to mute her to make her claim irrelevant? If she had filed a timely claim, if she had filed a valid claim, because the claim was not valid, the initial claim was filed within the 30 days. It just wasn't a valid claim, because Berlinia was never, I'll say that again, I'm not quite hearing you. The initial claim was timely in the sense that a claim, a purported claim was filed within the 30-day period. Our contention is there is no timely claim, timely filed claim, because there's never been a proper or legitimate or valid claim in front of the court. Because no one with authority to represent Mrs. Limit legally has filed such a claim. Were you sort of skipping ahead? What I was saying, it had a valid claim been filed on her behalf. Does the mere fact that the government might have some other remedy still to collect necessarily mean, they would have used that remedy and would have allowed instead, not the widow yet, the wife to have a half interest in this property? There's a lot in that question on our packet. We don't have much discretion in whether we collect or not on the Mandatory Victim Restitution Act. In other words, we would have recognized her claim in forfeiture. We would have just seized the half interest in those properties in forfeiture. Then when you get to the Mandatory Victim Restitution Act and the Federal Debt Collection Procedures Act, we're going to go forward to do what we can to collect as much as we can. However, I will have one provisional in that. We look at each case on a case by case basis. We are dealing with an interdicted spouse, which we knew later, of course, was interdicted. We're dealing with a son who also is mentally capacitated. We have, and we do, and we have in this case, in particular, gone through very lengthy settlement negotiations to ensure that no one's thrown out in the street. It is really not the policy that the Department of Justice to do that. It's not even our policy to leave people homeless, so to this extent, and it's reflected in our pleadings at the court below, there were four properties. We have actually just dropped out forfeiture interest in one of the properties, which is South Peters condominium. It's about less than a mile from here. We're not, it's a property worth a good deal of money, and it's not very little debt on it. And so we are not taking that property, and we wouldn't take it in the Manitory Victims Restitution Act. However, we do, Your Honor, have a real obligation under the Federal Debt Collections Procedure Act, but especially the Manitory Victims Restitution Act, to do what we can to get as much money for the victims in these cases. Well, let me ask you about the amendment, which might have been a way to get a proper claim filed. My understanding of it was that it was mentioned in a response to pleading, no motion ever filed. Do you agree with what Mr. Cobb said that this was raised orally with the District Judge at some status conference? Were you not participating at the trial level to know, or is there any evidence of how this was presented to the District Judge as opposed to just appearing in some paragraph of a pleading? It was never done in the form of motion. I was participating in a supervised recupacity at the Court of the Law, Your Honor, so I was aware in real time as things were going on. And there was, there was mention that the remedy could be to let us amend the complaint. That's what's in the pleading, so it's not necessarily a bit, by the way, please let us do it. There may have been some mention that now you could go back in the status conference. The memory is not clear on that or not, or on our end, or on our course. It was not transcribed. And so we don't have a clear record of what happened

. We have, and we do, and we have in this case, in particular, gone through very lengthy settlement negotiations to ensure that no one's thrown out in the street. It is really not the policy that the Department of Justice to do that. It's not even our policy to leave people homeless, so to this extent, and it's reflected in our pleadings at the court below, there were four properties. We have actually just dropped out forfeiture interest in one of the properties, which is South Peters condominium. It's about less than a mile from here. We're not, it's a property worth a good deal of money, and it's not very little debt on it. And so we are not taking that property, and we wouldn't take it in the Manitory Victims Restitution Act. However, we do, Your Honor, have a real obligation under the Federal Debt Collections Procedure Act, but especially the Manitory Victims Restitution Act, to do what we can to get as much money for the victims in these cases. Well, let me ask you about the amendment, which might have been a way to get a proper claim filed. My understanding of it was that it was mentioned in a response to pleading, no motion ever filed. Do you agree with what Mr. Cobb said that this was raised orally with the District Judge at some status conference? Were you not participating at the trial level to know, or is there any evidence of how this was presented to the District Judge as opposed to just appearing in some paragraph of a pleading? It was never done in the form of motion. I was participating in a supervised recupacity at the Court of the Law, Your Honor, so I was aware in real time as things were going on. And there was, there was mention that the remedy could be to let us amend the complaint. That's what's in the pleading, so it's not necessarily a bit, by the way, please let us do it. There may have been some mention that now you could go back in the status conference. The memory is not clear on that or not, or on our end, or on our course. It was not transcribed. And so we don't have a clear record of what happened. As a practical matter, I believe the Court was led by the fact that understanding the interplay between the Manthor Victims Restitution Act and the forfeiture proceedings that, and the fact that there have been no real ask of the Court in the months and months and months. Since the claim had been filed, to just amend it and do it the right way. There was a lot that was very... There's never any ruling, or there's never an order by Judge Brady that referred to a motion to a man. Where they ruled on it or not, there was never any reference in a ruling by his on his part. There was no written request, written prayer for the leave by the lamids, any of the lamids that they must go through. The response to the motion to dismiss in the prayer at the end, it says, you should not be the motion to dismiss. Alternatively, if you don't, you should let us amend. When I was on the district board, that's how in the normal civil litigation context, that's a common way that people ask to replete. If you're not going to throw me out, or if you're going to throw me out, let me replete. Why shouldn't that be enough? Your Honor, even if it were enough, it would be untimely. And that's our point. He does not step into the role that his interest... But isn't it untimely because you all waited more than two years to file the motion to dismiss? I mean, they didn't know there was a problem until you filed the motion to dismiss more than two years after they filed their claim. Your Honor, we had raised with them during the go-shades beforehand that there was

. As a practical matter, I believe the Court was led by the fact that understanding the interplay between the Manthor Victims Restitution Act and the forfeiture proceedings that, and the fact that there have been no real ask of the Court in the months and months and months. Since the claim had been filed, to just amend it and do it the right way. There was a lot that was very... There's never any ruling, or there's never an order by Judge Brady that referred to a motion to a man. Where they ruled on it or not, there was never any reference in a ruling by his on his part. There was no written request, written prayer for the leave by the lamids, any of the lamids that they must go through. The response to the motion to dismiss in the prayer at the end, it says, you should not be the motion to dismiss. Alternatively, if you don't, you should let us amend. When I was on the district board, that's how in the normal civil litigation context, that's a common way that people ask to replete. If you're not going to throw me out, or if you're going to throw me out, let me replete. Why shouldn't that be enough? Your Honor, even if it were enough, it would be untimely. And that's our point. He does not step into the role that his interest... But isn't it untimely because you all waited more than two years to file the motion to dismiss? I mean, they didn't know there was a problem until you filed the motion to dismiss more than two years after they filed their claim. Your Honor, we had raised with them during the go-shades beforehand that there was... We thought there was a problem with the claim because of the power of attorney. It's not even so much the addiction issue. It's the fact that you can't do power of attorney give away rights you don't otherwise have. The interdiction was in the public record in Jefferson Parish. None of the four properties that were owned and subject to forfeit are located in Jefferson Parish. There in Orleans Parish, Harvey's across the river, but it's not in Jefferson Parish, I don't believe. And then you have the Domesill Mrs. Lamont's Domesill is in Angerville, which is in the even St. Tammy Parish. But be that as it may, the defect we pointed out long before we filed the motion, because again, we're not going straight to the forfeiture proceedings. We're going straight to settlement talks on these kind of cases because we understand what's going on here. And we pointed out this is not a valid claim. Even before we filed the motion to dismiss, that was not a surprise to the defendant in any sense. In no time during those negotiations, we pointed out was an attempt made to amend the complaint, nor was any attempt made after we filed the motion to go back and say, and it really was incumbent, under curator does not have the ability to file anything on behalf of the interdict. If the under curator sees a problem, he is charged to act by going to the district court in Louisiana saying, hey, the curator is not protecting this interdict's interest, which was incumbent on the appellant to do so as the curator in this case. He was also under a duty, and as duties as under curator are specific in this in the Louisiana code, to inform the court if the curator was no longer able to act on behalf of the interdict. Mr

... We thought there was a problem with the claim because of the power of attorney. It's not even so much the addiction issue. It's the fact that you can't do power of attorney give away rights you don't otherwise have. The interdiction was in the public record in Jefferson Parish. None of the four properties that were owned and subject to forfeit are located in Jefferson Parish. There in Orleans Parish, Harvey's across the river, but it's not in Jefferson Parish, I don't believe. And then you have the Domesill Mrs. Lamont's Domesill is in Angerville, which is in the even St. Tammy Parish. But be that as it may, the defect we pointed out long before we filed the motion, because again, we're not going straight to the forfeiture proceedings. We're going straight to settlement talks on these kind of cases because we understand what's going on here. And we pointed out this is not a valid claim. Even before we filed the motion to dismiss, that was not a surprise to the defendant in any sense. In no time during those negotiations, we pointed out was an attempt made to amend the complaint, nor was any attempt made after we filed the motion to go back and say, and it really was incumbent, under curator does not have the ability to file anything on behalf of the interdict. If the under curator sees a problem, he is charged to act by going to the district court in Louisiana saying, hey, the curator is not protecting this interdict's interest, which was incumbent on the appellant to do so as the curator in this case. He was also under a duty, and as duties as under curator are specific in this in the Louisiana code, to inform the court if the curator was no longer able to act on behalf of the interdict. Mr. Limit had one clear disqualification, which was he was a convicted felon. As a convicted felon, you cannot serve as a curator. He also may be, of course they dispute whether it was mentally incapacitated, and so much as being representing her as a curator. But at any rate, your honor, this was not a surprise. This was not a surprise when the motion was filed. The delay was two things. Number one, we just didn't move on the property. It sat there until the court decided on appeal. And number two, we followed about five or six months after this court gave its ruling in the criminal judge and the criminal conviction. At that point, that whole time was spent working on working out the logistics of the possible summit. I mean, if the proper claim was filed within 30 days, improper for some procedural technical reason, do the procedures for forfeiture recognize the right to amend or correct that claim if it's filed by the wrong person? Is there case law or procedures that recognize a new claim can be filed? I mean, part of the problem here is the long delay, the two years. But I'm asking in a more usual situation, I would thank you so much, Charles in federal court, that if you don't do something quite right, general interest to allow a just result does, it'll allow a correction. Is there anything in the procedures of what we're talking about now that would prohibit that? Just as a generic matter, not saying two years, not talking about all the specifics of this case, but just generally, is that permitted? In other words, does a district court have the discretion to allow a claim at this point? I'm not saying at this point, I'm trying to get into an air situation of what the government's seeking to forfeit. Someone files a claim within a 30-day period saying I have an interest in that property, but files it defectively, whether because of something like what we have here or for some other reason. Are you saying that the door closes after 30 days, or does it just judge how the right to recognize an amendment by the proper person filing this time, or some other correction in the claim? I think the judge for good cause could do so, Your Honor. I believe that's the case law, in the cases we've cited. The cases we've cited, at least, say they failed to show good cause or excusable neglect. And I would submit that if they could show good cause or excuseable neglect, we might be there, but they don't show real good cause or excusable neglect, because they never at any time that the deficiency of the claim was brought up to them. Did they attempt to correct the deficiency by filing a motion to amend, until we filed a motion to dismiss the claim after several months of discussions on the matter? Number one, number two, the attorney who represented Mr

. Limit had one clear disqualification, which was he was a convicted felon. As a convicted felon, you cannot serve as a curator. He also may be, of course they dispute whether it was mentally incapacitated, and so much as being representing her as a curator. But at any rate, your honor, this was not a surprise. This was not a surprise when the motion was filed. The delay was two things. Number one, we just didn't move on the property. It sat there until the court decided on appeal. And number two, we followed about five or six months after this court gave its ruling in the criminal judge and the criminal conviction. At that point, that whole time was spent working on working out the logistics of the possible summit. I mean, if the proper claim was filed within 30 days, improper for some procedural technical reason, do the procedures for forfeiture recognize the right to amend or correct that claim if it's filed by the wrong person? Is there case law or procedures that recognize a new claim can be filed? I mean, part of the problem here is the long delay, the two years. But I'm asking in a more usual situation, I would thank you so much, Charles in federal court, that if you don't do something quite right, general interest to allow a just result does, it'll allow a correction. Is there anything in the procedures of what we're talking about now that would prohibit that? Just as a generic matter, not saying two years, not talking about all the specifics of this case, but just generally, is that permitted? In other words, does a district court have the discretion to allow a claim at this point? I'm not saying at this point, I'm trying to get into an air situation of what the government's seeking to forfeit. Someone files a claim within a 30-day period saying I have an interest in that property, but files it defectively, whether because of something like what we have here or for some other reason. Are you saying that the door closes after 30 days, or does it just judge how the right to recognize an amendment by the proper person filing this time, or some other correction in the claim? I think the judge for good cause could do so, Your Honor. I believe that's the case law, in the cases we've cited. The cases we've cited, at least, say they failed to show good cause or excusable neglect. And I would submit that if they could show good cause or excuseable neglect, we might be there, but they don't show real good cause or excusable neglect, because they never at any time that the deficiency of the claim was brought up to them. Did they attempt to correct the deficiency by filing a motion to amend, until we filed a motion to dismiss the claim after several months of discussions on the matter? Number one, number two, the attorney who represented Mr. Lamid and the criminal proceeding was the same one who prepared the pleadings. New Mr. Lamid knew his wife was incapacitated. That his wife was schizophrenic, as reference to the person's report, that she was interdicted, was not. We never knew that. We presumed confidence as the law does, but he is the one who prepared those pleadings. And he's working with this client who was the curator, and they were the client, the criminal defendant, had the duty to protect his wife's interest, and the under curator, the appellant had the duty to protect it, and make sure the claim was filed right. There was no excusable neglect in this case. They did not do their duties under Louisiana law to make sure their claim was properly filed in her claim was properly before this court. I'll see you then after a second. Thank you. Judge Schaffner, if I could answer your last question to counsel of the government, about whether or not a claim can be amended, I would direct the Court's attention to page 14 of our brief. Courts have instead recognized that where a claim has satisfied the other requirements of section 853, but simply was not signed on the penalty of perjury by the petitioner, that claim can be easily corrected by an amended claim, citing United States versus war, the petition on page 15 of our brief. I hope you are. Are we talking about a much more significant defect? I mean, you're saying, I mean, we didn't have somebody in the proper representative capacity following this on her part. The wrong, there never was a claim, it's not just the absence of the signature. Well, there was certainly an attempt at a claim. Well, my good faith attempt. That's helpful to you, but it doesn't seem to me that it answers how we ought to resolve this

. Lamid and the criminal proceeding was the same one who prepared the pleadings. New Mr. Lamid knew his wife was incapacitated. That his wife was schizophrenic, as reference to the person's report, that she was interdicted, was not. We never knew that. We presumed confidence as the law does, but he is the one who prepared those pleadings. And he's working with this client who was the curator, and they were the client, the criminal defendant, had the duty to protect his wife's interest, and the under curator, the appellant had the duty to protect it, and make sure the claim was filed right. There was no excusable neglect in this case. They did not do their duties under Louisiana law to make sure their claim was properly filed in her claim was properly before this court. I'll see you then after a second. Thank you. Judge Schaffner, if I could answer your last question to counsel of the government, about whether or not a claim can be amended, I would direct the Court's attention to page 14 of our brief. Courts have instead recognized that where a claim has satisfied the other requirements of section 853, but simply was not signed on the penalty of perjury by the petitioner, that claim can be easily corrected by an amended claim, citing United States versus war, the petition on page 15 of our brief. I hope you are. Are we talking about a much more significant defect? I mean, you're saying, I mean, we didn't have somebody in the proper representative capacity following this on her part. The wrong, there never was a claim, it's not just the absence of the signature. Well, there was certainly an attempt at a claim. Well, my good faith attempt. That's helpful to you, but it doesn't seem to me that it answers how we ought to resolve this. I understand. In another case, in a case where the Court considered the appropriateness of claims on the behalf of the competent individuals pursuant to notarized power of attorney, the Court stated that it would have permitted the petitioners to satisfy the procedural requirements of 853, or not for the fact that their claims must fail in the merits. This claim doesn't fail in the merits. This is a claim that they've acknowledged on the merits, which is quite extraordinary. Counsel, let me ask though, you know, the case you just referenced talks about procedural, and I guess that kind of gets at what we're asking about here is the fact that at the time this claim was filed, apparently the son did not have legal capacity to assert the claim. Is that procedural? Or is that something a little more substantive? Is that what you're arguing? Is that it's purely procedural? I'd say that it's procedural in a sense that he's the only person in this entire family that could possibly file it. His father was incapacitated and convicted. His mother was indicted, and his little brother is disabled. There's only one person left, and it's him, and he did the very best that he could. And I consider that procedural. If I could also— Counsel, reference that there was no property—reference to Jefferson Parish—respectfully submit that's incorrect. From page one of the verified notice of claim and application with adjudication, property number two is listed. 3837, Sukher Drive, Harvey Louisiana, Harvey's in Jefferson Parish. So there is property in Jefferson Parish. Counsel talked about restitution of the Federal Debt Collection Act to the best of my knowledge. The first time the Federal Debt Collection Act is raised for the first time is here. In the last two pages of their brief, I haven't seen it before in the pleatings or any place. So it's sort of their position is if you don't believe we went on column A, then we go to column B. She says that was mentioned in the district court, but regardless, I think the argument is, you're asking now for this chance to amend, and I gather the government saying it'd be futile because under the Debt Collection Act, this is going to get taken regardless

. I understand. In another case, in a case where the Court considered the appropriateness of claims on the behalf of the competent individuals pursuant to notarized power of attorney, the Court stated that it would have permitted the petitioners to satisfy the procedural requirements of 853, or not for the fact that their claims must fail in the merits. This claim doesn't fail in the merits. This is a claim that they've acknowledged on the merits, which is quite extraordinary. Counsel, let me ask though, you know, the case you just referenced talks about procedural, and I guess that kind of gets at what we're asking about here is the fact that at the time this claim was filed, apparently the son did not have legal capacity to assert the claim. Is that procedural? Or is that something a little more substantive? Is that what you're arguing? Is that it's purely procedural? I'd say that it's procedural in a sense that he's the only person in this entire family that could possibly file it. His father was incapacitated and convicted. His mother was indicted, and his little brother is disabled. There's only one person left, and it's him, and he did the very best that he could. And I consider that procedural. If I could also— Counsel, reference that there was no property—reference to Jefferson Parish—respectfully submit that's incorrect. From page one of the verified notice of claim and application with adjudication, property number two is listed. 3837, Sukher Drive, Harvey Louisiana, Harvey's in Jefferson Parish. So there is property in Jefferson Parish. Counsel talked about restitution of the Federal Debt Collection Act to the best of my knowledge. The first time the Federal Debt Collection Act is raised for the first time is here. In the last two pages of their brief, I haven't seen it before in the pleatings or any place. So it's sort of their position is if you don't believe we went on column A, then we go to column B. She says that was mentioned in the district court, but regardless, I think the argument is, you're asking now for this chance to amend, and I gather the government saying it'd be futile because under the Debt Collection Act, this is going to get taken regardless. How do you respond to that? Well, we disagree. First of all, they're talking about restitution and getting restitution. Restitution ceases at the death of the defendant, I believe is correct, and at restitution ceases at the death of the defendant, they don't have to go after anything. I can't go after anything of his or his families because the defendant is dead. If that's the case, then we do have an argument. And by the way, just so we're clear, the victim in this case is the government. Well, the taxpayers, you fund Medicare, it was a Medicare case. Government in the United States that these are the tax prescriptions, right? And the people who get treatment from Medicare? Correct. People. Now, the government acknowledged the claim by selling the vehicles. I think this is important. The government sold the vehicles, took half the money, gave the other half of the money Mrs. Lamont. So to now say there is no claim here, and it's not valid, we think, even though they reserve their rights, we think is a little bit disingenuous. Let me close, if I might, by referring to a sentence from the government's briefed page 23, in which they state, and I quote, and while the United States recognizes that a court may look favorably upon a disabled innocent spouse in such situations, Mrs. Lamont is now deceased and no such equities favor the appellate. I would hope that we can do better than that on behalf of the government of the United States of America. And I thank you for your time and attention this morning. All right, Councilor

. Thank you both sides for helping us