[00:00:05] Speaker 04:
Uh, good morning to your honors and may it please the court.

[00:00:08] Speaker 04:
I've asked for 10 minutes and I'd like to keep three of those for rebuttal if possible.

[00:00:13] Speaker 02:
Just keep your eye on the clock.

[00:00:14] Speaker 02:
Thank you.

[00:00:15] Speaker 04:
Thank you, your honor.

[00:00:16] Speaker 04:
So, um, I'll dive right into what I think is the most important question here, which is why this case is not Huffhines.

[00:00:25] Speaker 04:
because I think analyzing that distinction throws light on all of the issues that are at stake here.

[00:00:30] Speaker 04:
First, I think it's important to note that Huff Hines is what I would call a zero federal involvement case.

[00:00:39] Speaker 04:
So very briefly, the facts in Huff Hines, you have the Beverly Hills Police Department searches the defendant's residence.

[00:00:46] Speaker 04:
They get a bunch of property.

[00:00:48] Speaker 04:
one item of which is a gun.

[00:00:50] Speaker 04:
And they hand over the gun, and only the gun, to the federal authorities.

[00:00:54] Speaker 04:
And then he's prosecuted in federal court for being a felon in possession.

[00:00:58] Speaker 04:
He's convicted, and then he moves under Rule 41 for the return of all of his property.

[00:01:03] Speaker 04:
Not the gun, all of the other property.

[00:01:06] Speaker 04:
And Huff-Hinds essentially says, well, you, the federal government, has no connection whatsoever to this property, and therefore it's inequitable to haul you into court and to apply Rule 41.

[00:01:19] Speaker 04:
Now, our case, very, very different from that.

[00:01:22] Speaker 04:
There is substantial federal involvement.

[00:01:25] Speaker 04:
Right from the beginning, when defense counsel approaches the AUSA, the AUSA begins negotiating the return of the property,

[00:01:34] Speaker 04:
He assumes a position of authority with respect to the property.

[00:01:38] Speaker 04:
He investigates its origins.

[00:01:40] Speaker 04:
He has agents sent to interrogate the defendant's family members.

[00:01:44] Speaker 02:
What are you characterizing as investigating the return of the property?

[00:01:48] Speaker 02:
What are you including in that?

[00:01:49] Speaker 04:
Well, he's investigating the provenance of the watch, and he is asking questions to the defense counsel about where the watch came from.

[00:01:56] Speaker 04:
Yes.

[00:01:57] Speaker 04:
What evidence do you have to support the proposition that it was given to the defendant by his grandfather?

[00:02:03] Speaker 04:
He sends the two federal agents to speak with the mother and the sister to ask them the same sorts of questions.

[00:02:10] Speaker 02:
But none of that results in the federal government taking possession of this watch, right?

[00:02:14] Speaker 04:
None of it results in the federal government taking actual possession of the watch.

[00:02:18] Speaker 00:
Let's be clear about that, right?

[00:02:20] Speaker 00:
Because I read the legal rule that applies here to be concerned about government control or possession.

[00:02:26] Speaker 00:
Yes.

[00:02:26] Speaker 00:
And I'm struggling as I read the facts here to find government control or federal government control or possession, right?

[00:02:33] Speaker 00:
This is in the physical possession of the state.

[00:02:36] Speaker 00:
The state is the one that seized it, pursuant to a state warrant.

[00:02:39] Speaker 00:
Where is federal government control or possession?

[00:02:42] Speaker 04:
Well, there are two kinds of possession.

[00:02:44] Speaker 04:
I hope we can agree on that.

[00:02:45] Speaker 04:
There is actual possession and there is constructive possession.

[00:02:48] Speaker 00:
Sure.

[00:02:49] Speaker 04:
And the law doesn't really distinguish between the two of them.

[00:02:52] Speaker 04:
And constructive possession is access to and control over the disposition.

[00:02:57] Speaker 00:
But don't we have a case that distinguishes when the federal authorities and the state authority, well, when the state authorities are working with the federal authorities versus when the state authorities are working for the federal authorities?

[00:03:09] Speaker 04:
Well, we have, I don't know which case specifically you're referring to, but we do have cases.

[00:03:13] Speaker 00:
I think this is the Marshall case.

[00:03:15] Speaker 04:
We do have a case like Marshall, but Marshall stands exactly for,

[00:03:21] Speaker 04:
the same proposition as Huffhines, which is that the federal government did not have possession or control.

[00:03:27] Speaker 00:
It doesn't... And one of the theories for that was because the state officials who had actual possession weren't working for the federal authorities.

[00:03:35] Speaker 00:
They were just cooperating, working together.

[00:03:37] Speaker 04:
That's right.

[00:03:38] Speaker 04:
And that speaks to the absence of any federal involvement in control over the property.

[00:03:43] Speaker 04:
And that was absolutely true in Marshall and it's absolutely true in Huffhines.

[00:03:47] Speaker 04:
But here you have much more than that.

[00:03:48] Speaker 04:
You have the state law enforcement officer saying, we're deferring the decision on the disposition of this property to you, the federal government.

[00:03:58] Speaker 04:
We're giving you the authority to decide what we're going to do with this.

[00:04:02] Speaker 02:
Well, wait.

[00:04:03] Speaker 02:
Where do they say that?

[00:04:04] Speaker 02:
Well, I think that's not how I read the record.

[00:04:07] Speaker 02:
There's a report of the state investigator who says, we understand that the federal prosecutors are going to seek a court order to sell this watch, basically, and apply the money.

[00:04:14] Speaker 02:
That's quite different than what you just paraphrased.

[00:04:16] Speaker 04:
But that's not all he says.

[00:04:17] Speaker 04:
He says, I don't want to get in the middle of this.

[00:04:20] Speaker 04:
The AUSA is dealing with it.

[00:04:23] Speaker 04:
And he says something to the effect of, it'll stay with us until he decides what to do with it.

[00:04:28] Speaker 02:
Well, isn't that consistent?

[00:04:30] Speaker 02:
I know what part of the record you're talking about.

[00:04:32] Speaker 02:
It seems consistent with the AUSA seeking

[00:04:34] Speaker 02:
or planning to file a motion.

[00:04:38] Speaker 02:
I don't know if that was ever filed, by the way.

[00:04:40] Speaker 02:
Did the federal government ever file a motion?

[00:04:42] Speaker 04:
To liquidate the property?

[00:04:44] Speaker 04:
Right.

[00:04:44] Speaker 04:
Not that I'm aware of.

[00:04:47] Speaker 04:
I do think it's quite different.

[00:04:49] Speaker 04:
At the point at which

[00:04:52] Speaker 04:
the state authorities are saying, we're going to let you handle this, the AUSA is handling it.

[00:04:58] Speaker 04:
Now, whether he's, there is a spectrum, right?

[00:05:01] Speaker 04:
It's certainly true that if the AUSA begins by saying, well, we're going to sort of explore the possibility of maybe doing something with this property, or we want to somehow facilitate the, or liaison, be the liaison between the state and the defendant and so on.

[00:05:16] Speaker 04:
But the point at which the federal government has the ability to access and dispose of the property – and I don't think there can be any reasonable dispute that if the federal prosecutor under these circumstances had gone to the state law enforcement and said, actually, we're going to give the property back to the defendant, they would have done it because they had agreed that they would let the federal prosecutor do it.

[00:05:38] Speaker 04:
So he had the power.

[00:05:39] Speaker 02:
We don't have that in the record, counsel.

[00:05:41] Speaker 02:
We don't have that in the record.

[00:05:43] Speaker 02:
We don't know what would have happened.

[00:05:45] Speaker 02:
It's not great.

[00:05:45] Speaker 02:
I think the best fact for you is that AUSA's statement, I would give it back to you if.

[00:05:52] Speaker 02:
I mean, there's an implied statement that the federal government had the ability to give it back.

[00:05:56] Speaker 04:
Yes, certainly.

[00:05:57] Speaker 02:
And wouldn't because he thought that your client was guilty, basically.

[00:06:01] Speaker 04:
Yes, that's right.

[00:06:03] Speaker 02:
Isn't that your best fact?

[00:06:03] Speaker 04:
Well, I think that's a great fact.

[00:06:05] Speaker 02:
But I do think it's very much... Why is it enough?

[00:06:09] Speaker 04:
Why is it enough?

[00:06:10] Speaker 04:
It's an assertion of authority over the property to the extent that it becomes equitable to allow for a Rule 41 motion.

[00:06:19] Speaker 04:
And that is another point I wanted to get to, is the question of jurisdiction.

[00:06:23] Speaker 04:
It's equitable jurisdiction.

[00:06:24] Speaker 04:
And so the question we ask is, is it fair and reasonable to hold the federal government to account for this property?

[00:06:33] Speaker 04:
Many cases have said no, because they've had absolutely nothing to do with the property.

[00:06:37] Speaker 00:
Can I ask a practical question right here, which is why didn't you just ask the state?

[00:06:41] Speaker 00:
What's the big deal about just going and asking the state for this watch instead of all of us being here?

[00:06:46] Speaker 04:
Well, I do have an answer for that question, but it is outside the record.

[00:06:51] Speaker 04:
You know, we don't know.

[00:06:51] Speaker 04:
I'd like to hear the answer anyways.

[00:06:53] Speaker 04:
Certainly.

[00:06:54] Speaker 04:
So, well, I was the CJA counsel appointed to Mr. Gasparian's direct appeal.

[00:06:59] Speaker 04:
And as a courtesy to Mr. Gasparian, as part of that, I went to the federal district court to try to secure the return of his property.

[00:07:06] Speaker 04:
Now, I don't practice in state court, and I couldn't really go and do it there for him.

[00:07:11] Speaker 04:
And I did think under the circumstances it was proper to get it in federal court.

[00:07:15] Speaker 04:
I don't know what would have happened in state court.

[00:07:18] Speaker 04:
I don't know how well-oiled the machinery is for the return of property there.

[00:07:23] Speaker 04:
And I do want to bring that to the court's attention, because it's interesting.

[00:07:27] Speaker 04:
One of the cases that we both cite is Ramston.

[00:07:30] Speaker 04:
And in Ramston, the federal government said, well, you know, he has an avenue to get his property back in the United Kingdom.

[00:07:39] Speaker 04:
And Ramston, the Ninth Circuit said, well, we don't really know how effective that remedy is.

[00:07:44] Speaker 04:
You know, we can look at those statutes, and we can say, yes, he might be able to get it back there, and so on and so forth.

[00:07:49] Speaker 04:
Now, of course, but ultimately, we don't know.

[00:07:52] Speaker 04:
So we're not going to treat that as a bar to his recovery in federal court.

[00:07:56] Speaker 04:
Now, obviously, California and federal court are much closer sovereigns than federal court and the United Kingdom.

[00:08:03] Speaker 04:
But I think the same principle applies.

[00:08:06] Speaker 04:
The federal district court doesn't know exactly how things are going to play out in state court, and that should not then be a bar to seeking recovery.

[00:08:13] Speaker 02:
But aren't you essentially asking for an order that directs the U.S.

[00:08:16] Speaker 02:
attorneys to go get the watch and return it?

[00:08:19] Speaker 04:
No, I'm asking for an order that the United States attorney make all reasonable efforts to return the watch to my client.

[00:08:26] Speaker 04:
And if it should happen that they take that order to the state and the state says no, well, then we cross that bridge when we get to it.

[00:08:34] Speaker 04:
But under these circumstances, there's no way that's going to happen.

[00:08:37] Speaker 03:
What troubles me, Counsel, of course, you rely on constructed possession.

[00:08:41] Speaker 03:
But if you look at the tests adopted by the other circuits on that issue,

[00:08:46] Speaker 03:
I don't see how your client would be able to show the federal government constructively possesses the Rolex in this case.

[00:08:52] Speaker 03:
Why is that wrong?

[00:08:54] Speaker 04:
Well, I think, Your Honor, that it's wrong for two reasons.

[00:08:58] Speaker 04:
One, because the federal government asserted, I think, unequivocally, or at least I think this is what your colleague was getting at, the federal government asserted that they had the power to return it.

[00:09:10] Speaker 04:
And we don't have any reason to dispute that, and I don't think they can back off from that statement.

[00:09:15] Speaker 04:
On top of that, as I said earlier, the state law enforcement officer indicated that they were going to let the AUSA make a decision about it and that the AUSA was planning to liquidate it to satisfy the defendant's restitution obligation.

[00:09:29] Speaker 04:
I think if you add all that together, it becomes impossible to believe that the federal government did not have access to and control over the property.

[00:09:37] Speaker 03:
But basically, again, back to my point, it seems to me that under current law you really don't have anything

[00:09:43] Speaker 03:
that we can rely upon to get the result you're looking for, do we?

[00:09:48] Speaker 03:
Aren't you asking us to, in effect, adopt new law?

[00:09:51] Speaker 04:
No, absolutely not, Your Honor.

[00:09:52] Speaker 04:
I think the principle of constructive possession is exactly what confers equitable jurisdiction on the court to grant this motion.

[00:10:02] Speaker 04:
The principle of constructive possession is well established

[00:10:07] Speaker 04:
It's been vetted in the courts.

[00:10:10] Speaker 04:
It's very clear what it is.

[00:10:12] Speaker 04:
And I think we have it here.

[00:10:14] Speaker 04:
Or at minimum, we have the ability to analyze whether we have it.

[00:10:16] Speaker 02:
And you think we have case law that adopts that theory?

[00:10:19] Speaker 04:
But we don't have case law that adopts the theory that constructive possession creates equitable jurisdiction for a Rule 41.

[00:10:26] Speaker 02:
That's what Judge Smith's question is.

[00:10:27] Speaker 04:
In that sense, I'm asking for something new, I would agree, but not for a new rule that, in terms of what constitutes constructive possession.

[00:10:35] Speaker 00:
Got it.

[00:10:36] Speaker 00:
I have one last quick question.

[00:10:37] Speaker 00:
I mean, do you have any authority that establishes constructive possession exists when the person in actual possession could say, no, I'm not giving it to you?

[00:10:46] Speaker 00:
Because you just acknowledged that the state could do that.

[00:10:48] Speaker 00:
State might say, you're not getting this watch back.

[00:10:50] Speaker 00:
We have our own reasons for having it, or we want to use it for something else or whatever.

[00:10:54] Speaker 00:
So if that's a possibility that exists, do you have authority to say that that is an example of constructive possession?

[00:11:00] Speaker 04:
Off the top of my head, I don't have authority for that proposition.

[00:11:03] Speaker 04:
But I would urge the court that we don't have to make that inquiry because the statements of state law enforcement make it very clear that both entities have access to this property.

[00:11:17] Speaker 04:
If that factual scenario were to come up, I would be happy to research it in any case to find such case law.

[00:11:24] Speaker 04:
But I just don't think we have to answer that question in this case.

[00:11:29] Speaker 02:
You have your time.

[00:11:30] Speaker 02:
So I'm going to ask you to take a seat, and we'll hear from opposing counsel.

[00:11:33] Speaker 02:
When you come back, we'll put a minute on the clock.

[00:11:36] Speaker 02:
You bet.

[00:11:44] Speaker 01:
Thank you.

[00:11:45] Speaker 01:
Good morning, Your Honors.

[00:11:46] Speaker 01:
Amy Pomerantz on behalf of the United States.

[00:11:49] Speaker 01:
The district court in this case did not abuse its discretion in declining to exercise its equitable jurisdiction.

[00:11:57] Speaker 01:
Rule 41G is a limited, equitable remedy against the federal sovereign.

[00:12:03] Speaker 01:
And it only reaches property, as we've discussed here today, that the federal government either possessed or controlled, or that in its most furthest reaches, a state agent sees when they were acting under direct federal authorization.

[00:12:16] Speaker 01:
So what do we have here?

[00:12:18] Speaker 01:
Well, there's no actual possession.

[00:12:20] Speaker 01:
Nobody disputes that.

[00:12:21] Speaker 01:
The federal government does not have the Rolex, never had the Rolex.

[00:12:25] Speaker 01:
Actual possession is out.

[00:12:26] Speaker 01:
We also don't have the kind of agency theory that was at issue in Huff-Hines and Marshall for the same reasons that Judge Forrest correctly pointed out in Marshall.

[00:12:37] Speaker 01:
So defendant Hanks' hat here on this theory of constructive possession, which as the court has already noted, has never been recognized as a theory for purposes of 41G by this court.

[00:12:49] Speaker 01:
Now there's some language suggesting that maybe there could be some situations where

[00:12:54] Speaker 01:
the federal government effectively controls.

[00:12:57] Speaker 01:
But what defendant is asking for is broader than that.

[00:13:01] Speaker 01:
And the record in this case does not

[00:13:03] Speaker 01:
establish constructive possession under any standard.

[00:13:07] Speaker 02:
Why not?

[00:13:08] Speaker 02:
Why not?

[00:13:09] Speaker 02:
I've indicated, not very subtly, that the strongest argument, fact, I think for them, is a statement from the AUSA strongly implying that the AUSA did have the authority to effectuate the return and wasn't going to do so for the reasons that I paraphrased earlier.

[00:13:25] Speaker 01:
I disagree with that characterization, Your Honor.

[00:13:29] Speaker 01:
First, I would just remind the Court that

[00:13:31] Speaker 01:
The question in this appeal is an abuse of discretion standard.

[00:13:34] Speaker 01:
So what we're looking at is what the district court clearly aired.

[00:13:38] Speaker 01:
And if you're talking about the, there's an October 2024 email where the AUSA says that he would

[00:13:44] Speaker 01:
The watch should be sold for restitution.

[00:13:47] Speaker 01:
Is that the email that Your Honor is referring to?

[00:13:49] Speaker 01:
So that is a statement of intention.

[00:13:52] Speaker 01:
And wanting to reach an asset for restitution is not the same thing as having legal control over it.

[00:13:58] Speaker 02:
You heard me voice that response to opposing counsel, but he couples this with his efforts to talk to the state investigator, and the state investigator says, we're staying out of it, implying that they're waiting for the

[00:14:09] Speaker 02:
the U.S.

[00:14:10] Speaker 02:
Attorney's Office, which is why I asked the question, is the U.S.

[00:14:12] Speaker 02:
Attorney's Office doing anything?

[00:14:14] Speaker 02:
Have they filed a motion?

[00:14:15] Speaker 02:
But there – if you put those facts together, I don't know why they're – that I can square that with your statement that there is no evidence of constructive control.

[00:14:24] Speaker 01:
Yes, Your Honor.

[00:14:24] Speaker 01:
Well, a couple – I have two points in response.

[00:14:26] Speaker 01:
Those are – what you're talking about there are the April – the April – mid-April emails between defense counsel and the

[00:14:34] Speaker 01:
state highway patrol investigator that are following a conversation.

[00:14:37] Speaker 01:
The order that's on appeal, the first point is there's a timing problem with those because the order that's on appeal is the March 13th, 2025 order denying defendants rule 41 G motion.

[00:14:49] Speaker 01:
And so just as a practical matter, a conversation that was had a month later cannot be the basis for finding that the district court

[00:14:57] Speaker 01:
abuse its discretion by failing to consider statements that hadn't even been made at the time.

[00:15:03] Speaker 02:
But in any event... I'm responding to a different point, which is your point that there's no evidence in the record to indicate that the federal government had constructive control.

[00:15:10] Speaker 02:
Right.

[00:15:11] Speaker 01:
Those statements don't move a needle on constructive possession, and here is why.

[00:15:15] Speaker 01:
What the highway patrol officer said is he communicated with the AUSA, we are working on an order, we are dealing with it and working on an order to get a restitution proceedings going.

[00:15:31] Speaker 01:
That means

[00:15:32] Speaker 01:
that supports the government's view, that the government does not have the property.

[00:15:36] Speaker 01:
And then he says, therefore, the watch will remain in evidence pending the order being completed.

[00:15:42] Speaker 01:
And so what I take from this, Your Honor, is that this shows that as of April 2025, again, after the district court made its order that's on appeal, the highway patrol officer was aware that there was a fight over the Rolex being played out in a federal forum.

[00:15:56] Speaker 01:
He knows the defendant wants his Rolex back, and now the feds are interested because

[00:16:00] Speaker 01:
Yes, we want the watch.

[00:16:02] Speaker 01:
Yes, we want to sell the watch.

[00:16:03] Speaker 01:
Yes, we have a federal interest in compensating the victims of defendants' egregious fraud.

[00:16:08] Speaker 01:
So why hasn't the federal government filed a motion?

[00:16:10] Speaker 01:
I'm just trying to figure out... We have not begun the writ proceedings, Your Honor, out of respect for this legal process.

[00:16:17] Speaker 01:
You know, defendant appealed the 41G denial order, and so...

[00:16:22] Speaker 01:
MS.

[00:16:38] Speaker 01:
1536, I want to say, where the defendant can seek the same remedy and try to get the return from state court or try to get the watch back with the state court's orders.

[00:16:47] Speaker 01:
But again, the question before this panel is not what should happen with the watch, who should get the watch.

[00:16:53] Speaker 01:
The question is, does the district court abuse its discretion in declining to exercise equitable jurisdiction?

[00:17:00] Speaker 01:
I would submit on this record, it did not.

[00:17:03] Speaker 03:
Judge Smith, anything?

[00:17:07] Speaker 03:
If you indicate that the actual possession by federal officials of property seized by state officials would support federal jurisdiction under 41G, why should constructive possession be any different?

[00:17:22] Speaker 01:
Constructive possession is different, Your Honor, for the reason that

[00:17:26] Speaker 01:
What Rule 41G is, is a motion to return property.

[00:17:30] Speaker 01:
It presupposes that the government has, if not possession, then legal control over it.

[00:17:35] Speaker 01:
And so the government cannot be forced to return something it doesn't have.

[00:17:41] Speaker 01:
And so if constructive possession is read to mean legal control,

[00:17:47] Speaker 01:
then I think we could agree that there may be a valid construction possession theory in the same way that the Seventh Circuit and the Tenth Circuit have sort of tenuously endorsed that idea there.

[00:17:58] Speaker 01:
But even in that context, as Your Honor pointed out, for Rule 41G purposes, no one has imported the sort of criminal liability standard of constructed possession that's used in Terry.

[00:18:12] Speaker 01:
They're talking actually, the cabinet actually more narrowly.

[00:18:15] Speaker 01:
to situations where we're talking about constructive possession over evidence that is held by the state but is going to be used as evidence in a federal prosecution.

[00:18:25] Speaker 01:
And I think, although there hasn't been any case law really exploring this, I think the reason is in those situations what's happening is the state is essentially acting as a custodian for federal evidence.

[00:18:37] Speaker 01:
And so in those circumstances we might be able to say that yes,

[00:18:42] Speaker 01:
the federal government could be legally compelled to get that evidence if it was ordered to do so.

[00:18:47] Speaker 01:
But in an ordinary, in the kind of situation that we have here, the federal government doesn't have the ability to order the state to do anything.

[00:18:57] Speaker 01:
And that is why constructed possession for 41G has to require more than conversations.

[00:19:03] Speaker 00:
I want to make sure I understand the distinction that you're trying to draw, which seems logical to me.

[00:19:08] Speaker 00:
Does the federal government have more authority when something is going to be treated as evidence as opposed to not evidence?

[00:19:15] Speaker 00:
I mean, it seems like you could have the state in a custodial role, even in a non-evidentiary situation like this one.

[00:19:22] Speaker 01:
And again, that's an interesting question.

[00:19:23] Speaker 01:
It hasn't been fleshed out in case law.

[00:19:25] Speaker 01:
I would imagine that because we would be able to, I don't know, subpoena the evidence somehow or get that evidence, then maybe there's an argument that we would have more legal control if it was evidence that was expressly being held for purposes in a federal prosecution.

[00:19:40] Speaker 01:
And certainly, that's not what we have here.

[00:19:42] Speaker 01:
I mean, the point here is that constructive possession is more than conversations.

[00:19:46] Speaker 01:
It is more than coordination.

[00:19:49] Speaker 01:
You know, what constructed possession has to require for 41G is the legal power to direct a state custodian.

[00:19:57] Speaker 02:
But that's why I asked the question of both of you.

[00:20:00] Speaker 02:
Isn't this opposing counsel's best bit of evidence that the record can be read that the U.S.

[00:20:06] Speaker 02:
attorney, the AUSA, implied that the AUSA could return the watch but wasn't going to do so for the reasons that I mentioned?

[00:20:15] Speaker 01:
I don't think he implied, I think he said, I would be happy to return the family photos to you.

[00:20:20] Speaker 01:
I would be less happy to return the watch to you because we want to- But Counsel, you know what he said.

[00:20:25] Speaker 02:
You know that he implied that he wasn't going to turn it back because he said, because your client's a crook or a thief or something, he's not a drug dealer.

[00:20:34] Speaker 02:
So the implication was that he could but wasn't going to do it.

[00:20:37] Speaker 01:
And I understand that when you read the record, that may be how it sounded based on the language that the AUSA chose, but there was not the legal power to compel it from the state.

[00:20:47] Speaker 02:
So the statement, you think it was a hollow statement, a statement made without authority?

[00:20:54] Speaker 02:
Essentially.

[00:20:54] Speaker 00:
All right.

[00:20:55] Speaker 00:
Can I explore a little bit of practicality again?

[00:21:00] Speaker 00:
In this case, if the federal authorities had just called up the state police and said, we want to use this watch as restitution in our case, and please, we're sending somebody over to pick it up tomorrow.

[00:21:12] Speaker 00:
Could you do that?

[00:21:14] Speaker 00:
Maybe.

[00:21:15] Speaker 01:
We'd like to think that, you know, there's good federal-state agency relationships.

[00:21:20] Speaker 01:
The point is that Rule 41-G cannot depend on the particular relationship between the agents that are involved.

[00:21:25] Speaker 00:
So I'm just, again, I'm focused on practicality for a second.

[00:21:27] Speaker 00:
You could do that.

[00:21:29] Speaker 00:
You could just make an informal request and say we're sending somebody over.

[00:21:33] Speaker 00:
And if you did, I think your answer was you could do that and maybe the state would comply with it.

[00:21:39] Speaker 00:
The state, so from your perspective, the state has the ability to comply with an informal request like that?

[00:21:44] Speaker 00:
Your honor, I'm not familiar with what the state's okay fair enough would be if the state said So then your other option that you've talked about as you file a motion So a formal more a more formal proceeding and then you serve some sort of order from the federal court on the state authorities That says we need to watch for restitution proceedings Could the state say no I?

[00:22:09] Speaker 01:
Don't again.

[00:22:09] Speaker 01:
I I don't know

[00:22:11] Speaker 01:
the state's obligations at that point, I would sort of imagine if there is a writ of attachment, a rate of garishment that meets the standard, that they would comply with that as an order.

[00:22:23] Speaker 00:
It also suggests, I mean, now that I think about that,

[00:22:26] Speaker 00:
If getting the watch back requires getting an order from the federal court, I'm not sure how that shows that the US Attorney's Office has constructive possession over this thing.

[00:22:34] Speaker 00:
We don't.

[00:22:34] Speaker 00:
Because it takes a court order to get it.

[00:22:36] Speaker 01:
That's exactly right, Your Honor.

[00:22:38] Speaker 01:
So unless there's anything further, thank you.

[00:22:40] Speaker 02:
Nothing further.

[00:22:41] Speaker 02:
Thank you for your patience with our questions.

[00:22:45] Speaker 02:
I'm right on that, please, for your rebuttal.

[00:22:49] Speaker 04:
Can I have a couple moments, though?

[00:22:50] Speaker 02:
What?

[00:22:51] Speaker 04:
Can I have a moment to rebut?

[00:22:52] Speaker 04:
Yes.

[00:22:53] Speaker 04:
Oh, OK.

[00:22:53] Speaker 02:
Yes.

[00:22:53] Speaker 02:
I invited you to the podium to do exactly that.

[00:22:56] Speaker 04:
Yes, indeed.

[00:22:56] Speaker 04:
So to address what Your Honor was saying earlier about needing a court order to get the property back from the state, I mean, I don't think that's true at all.

[00:23:07] Speaker 04:
Certainly, you might need a court order to liquidate the property for restitution purposes.

[00:23:12] Speaker 04:
You definitely need some kind of order to do that.

[00:23:14] Speaker 04:
They don't have the power to do that at will.

[00:23:17] Speaker 00:
But do you know if they just made an informal phone call and said, we're coming over to pick up the watch?

[00:23:22] Speaker 00:
Do you know if the state police could just be like, here you go?

[00:23:25] Speaker 04:
I don't know what the state police would do, but I know that this occurs all the time.

[00:23:30] Speaker 04:
What occurs all the time?

[00:23:31] Speaker 04:
The transfer of evidence or property from the state to the federal government.

[00:23:34] Speaker 00:
But it's the mechanism that that transfer happens by that is what I'm asking about.

[00:23:37] Speaker 00:
I don't know exactly what that mechanism is, but I have... Because if it's a formal mechanism, it really undercuts the idea of constructive possession.

[00:23:46] Speaker 04:
I disagree.

[00:23:48] Speaker 04:
Whether it's a formal mechanism or not, I don't know.

[00:23:50] Speaker 04:
But I think the reality is here that you have the state having said you can come and get it, you can dispose of it, you can give it back if you want to.

[00:23:56] Speaker 04:
I think that's the implication from the words of the state police officers.

[00:24:01] Speaker 04:
I don't think there's any real practical question about whether the AUSA could get this property back to the defendant.

[00:24:08] Speaker 04:
I just don't think that's a real practical issue in this case.

[00:24:11] Speaker 04:
I want to address one other matter, which is the subject of equitable jurisdiction or jurisdiction in the abuse of discretion.

[00:24:19] Speaker 04:
My colleague said that the district court – we're asking the question of whether the district court abused its discretion, and the answer is very clearly yes, in part because the district court did not understand what the equity's analysis was.

[00:24:34] Speaker 04:
The district court engaged in a long discussion about whether or not

[00:24:38] Speaker 04:
it was appropriate to exercise equitable jurisdiction to return the property to somebody who had A, committed a substantial fraud, and B, had declined to represent the Rolex as one of his assets when it came to filling out his probation report.

[00:24:53] Speaker 04:
The court did not properly analyze the question of whether there is sufficient basis on which to bring the federal government into court for the purposes of a Rule 41 motion.

[00:25:03] Speaker 04:
So it didn't understand the equitable analysis and therefore it abused its discretion.

[00:25:07] Speaker 02:
When did you first raise this argument?

[00:25:11] Speaker 04:
In the district court.

[00:25:13] Speaker 02:
When in the district court?

[00:25:14] Speaker 04:
At the hearing on the motion.

[00:25:15] Speaker 02:
I thought you didn't raise it until the reply.

[00:25:17] Speaker 02:
Is that right?

[00:25:19] Speaker 04:
On the question of whether or not the court had abused its discretion?

[00:25:21] Speaker 02:
On the basis for the equitable jurisdiction.

[00:25:26] Speaker 04:
Well, Your Honor, maybe... Because there was a legal... I think it was a response to the government stating that the availability of another remedy was a bar.

[00:25:36] Speaker 02:
And then you came back and said... Yes.

[00:25:37] Speaker 02:
You had this conversation about the standard that you're just explaining now.

[00:25:42] Speaker 02:
You may be right about that, Your Honor.

[00:25:43] Speaker 02:
I think that's the way the record reads.

[00:25:46] Speaker 02:
Anything further, Judge Smith?

[00:25:48] Speaker 03:
No, thank you.

[00:25:49] Speaker 02:
Judge Forrest, thank you both for your arguments.

[00:25:51] Speaker 02:
We'll take that case under advisement, and now we will hear the next case on the calendar, United States versus Quintero, 23-1350.

[00:26:01] Speaker 02:
Just for planning purposes, we'll hear this argument, and then we're going to take a short recess before we hear the last three.