[00:00:01] Speaker 03:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
We have, I believe, four matters on calendar today for argument.

[00:00:07] Speaker 03:
As I always say, when we're before the Ninth Circuit, there is no extra credit or bonus points for using all of your time.

[00:00:14] Speaker 03:
So if you make your points and you're not getting any questions back, nothing wrong with sitting down.

[00:00:22] Speaker 03:
And with that, I'll call the first case.

[00:00:24] Speaker 03:
Unites the various versus harder.

[00:00:26] Speaker 03:
Counseling may proceed.

[00:00:28] Speaker 02:
Good morning.

[00:00:29] Speaker 02:
Because time is short, I want to start off with an issue.

[00:00:33] Speaker 03:
State your appearance, please.

[00:00:35] Speaker 02:
Alex Kaczynski, law appellant.

[00:00:37] Speaker 02:
John Harder.

[00:00:38] Speaker 02:
Thank you.

[00:00:40] Speaker 02:
I want to start with an issue that I think categorically precludes affirmance here that requires at least a remand and possibly more.

[00:00:50] Speaker 02:
As the court knows, there were $154 million of expenses spent by the receiver in this case.

[00:01:02] Speaker 02:
There were numerous claimants.

[00:01:05] Speaker 02:
Some of them were MVRA victims, but a substantial chunk, perhaps as much as a third or maybe more, were not.

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There's no theory under which John Harder should be charged for expenses, receivership expenses, that were devoted to claimants who are not MVRA victims.

[00:01:30] Speaker 02:
We raise this in our brief on page 59.

[00:01:35] Speaker 02:
The government has not responded, and therefore has waived the issue.

[00:01:40] Speaker 01:
Just give no response at all.

[00:01:41] Speaker 01:
Counsel, let me ask you a question.

[00:01:44] Speaker 01:
My understanding of the restitution award is that it essentially awarded the victims the amount of money that they invested in one of the three ways.

[00:01:55] Speaker 01:
That's right.

[00:01:56] Speaker 01:
All right?

[00:01:59] Speaker 01:
When the receiver and the forensic examiners went through all the records and so on, they determined what portion of the expenses had originally been allocated and

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reduced the amount so that, in essence, what the victim is getting under the restitution order is no more than what he or she invested.

[00:02:28] Speaker 01:
So is your argument really you're entitled to a credit for the $155 million?

[00:02:35] Speaker 02:
Absolutely.

[00:02:36] Speaker 02:
I think we're entitled to the entire $155 million.

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And that is our argument under LOMO, which is circuit law binding on this panel.

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But aside from that, this was a giant enterprise, the receivership.

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It served the MVRA.

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claimants.

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But there were other claimants.

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As much as a third, or maybe more, there were not.

[00:03:03] Speaker 02:
This was a machine that was there to benefit various kind of kinds.

[00:03:08] Speaker 01:
Well, the problem is that we have multiple.

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I don't want to call them victims because that's not right.

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Multiple claimants.

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That's right.

[00:03:14] Speaker 01:
In the two bankruptcies, the corporate bankruptcy and the personal bankruptcy.

[00:03:19] Speaker 01:
And those expenses were basically, as I understand it, incurred.

[00:03:24] Speaker 01:
in trying to determine the legitimacy of the various claims that had been submitted.

[00:03:30] Speaker 01:
So clearly he would not be entitled to the entire $155 million because many of those claims would have been, for example, banks that lent money to Sun West,

[00:03:41] Speaker 01:
And they are not the victims of the fraud, as I understand.

[00:03:46] Speaker 02:
I'm talking about claims of investors.

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There were investors who were... I'm treating their bank claims and lenders and so on as expenses of their state.

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But there were people who actually had claims as investors.

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Some were MVRA victims.

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A substantial amount were not.

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And the state was operating for the benefit of all of them.

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There's no theory under which hardware should be charged for the expenses of running the estate for the benefit of non-MVRA victims.

[00:04:26] Speaker 01:
But in a normal bankruptcy or receivership,

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the race, the bankrupt estate, is properly charged with the expenses of administration, is it not?

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That's right.

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And that $155 million came out of the race that the receivers were able to gather

[00:04:46] Speaker 01:
from selling it portions of the property to the Blackstone Group and however else they converted assets into cash.

[00:04:57] Speaker 01:
Sometimes, as I understand it, they offered stocks of interest.

[00:05:02] Speaker 01:
Absolutely.

[00:05:03] Speaker 01:
Absolutely.

[00:05:04] Speaker 01:
I guess where I'm going with my question is I'm not sure it's as simple as you're trying to make it sound.

[00:05:10] Speaker 02:
Well, the government did not respond.

[00:05:11] Speaker 02:
And therefore, under this court's case law, de Leon versus Garland, United States was drier.

[00:05:17] Speaker 02:
It has waived their argument.

[00:05:19] Speaker 01:
Well, I'm not sure about the waiver.

[00:05:22] Speaker 01:
But I am concerned about the fact that, as I understand it, there were 25,000 man hours that went into the creation of Courts Exhibit 1 through Version 7.

[00:05:36] Speaker 01:
in order to try and determine how much each individual investor had invested and how much money had been returned to the investor.

[00:05:45] Speaker 01:
And then a restitution award was entered for the difference between what the investor had invested and what he had received.

[00:05:53] Speaker 01:
So I'm still trying to figure out.

[00:05:54] Speaker 02:
Well, but again, there were investors who were not part of the MVRA class.

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So all this work that was done benefited all investors.

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a third of which, something like a third of which were not MVRA investors.

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There is no justification.

[00:06:12] Speaker 02:
There's no theory under which Harder should be charged for servicing those investors.

[00:06:19] Speaker 02:
It's in our brief.

[00:06:20] Speaker 01:
Could that be a consequence of the fraudulent scheme that he set in motion by violating the law?

[00:06:31] Speaker 02:
It is true, and many other people were hurt as well, but the NVRA

[00:06:38] Speaker 02:
limits compensations to expenses and to losses directly caused by the defendant.

[00:06:54] Speaker 01:
But again, the restitution award is entered to make the investor whole, to return, let's say it's $100,000,

[00:07:04] Speaker 01:
And my understanding is that they paid back, ultimately, $0.76 on the dollar, right?

[00:07:09] Speaker 01:
So $76,000 went back to the investor.

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And then a restitution award was entered for the difference, the $24 million, between $170,000 and $160,000.

[00:07:23] Speaker 02:
John Harder gave over a billion dollars to this estate to make a whole judge.

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Hogan, who supervised the estate, praised him.

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I mean, he came clean.

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He made some mistakes.

[00:07:36] Speaker 02:
He gave his entire interest, 75% of the interest he gave to the estate for the benefit of the investors.

[00:07:52] Speaker 02:
There were expenses afterwards, but there were people who benefited who were not NVRA victims.

[00:07:57] Speaker 02:
He shouldn't be charged for the expenses of returning their money.

[00:08:02] Speaker 01:
Expenses would be properly chargeable to the bankrupt estate, would they not?

[00:08:06] Speaker 02:
That's right, and allocable to

[00:08:09] Speaker 02:
the non-MVRA victims.

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He should only be charged for the expenses, if at all, expenses for the MVRA victims.

[00:08:18] Speaker 02:
Because time is short.

[00:08:19] Speaker 02:
I think I've said what I can say about this.

[00:08:23] Speaker 02:
I want to move to the LAMO issue.

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This court in LAMO

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Lomo said categorically that expenses of running a receivership are not directly caused by another direct result of the offense conduct.

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And this was an outlier.

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This was a case that relies on a strict reading of directly

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caused, going back to at least 1986 to a case by the name of Kenny.

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And if you follow Kenny, it goes back even further than that.

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And what this court said is we construe directly caused

[00:09:12] Speaker 02:
by the offense strictly, and it says, the district court may order restitution only for direct losses caused by lawnmower fraud, and the receiver's expenses are not part of the funds fraudulently diverted by lawnmower scheme.

[00:09:33] Speaker 02:
It is circuit law.

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It is binding on this court.

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The government has not offered a Miller versus Gammie analysis to explain why this panel is free to disregard it.

[00:09:49] Speaker 02:
And in fact, it's not free to disregard it.

[00:09:51] Speaker 02:
The language that LOMO, LOMO,

[00:09:54] Speaker 02:
interpreted, and the prior cases, and there are dozens of them going back to at least 1986 or 1985, is exactly the same under the old sentencing statute as a new one, as MVRA.

[00:10:09] Speaker 02:
What Congress did is it took the language from the old prior sentencing statute, moved it around,

[00:10:19] Speaker 02:
incorporated it, but the language is absolutely, if you compare it, and I have a comparison, I've done a comparison, and it is absolutely word for word the same.

[00:10:30] Speaker 02:
So what Lomo says is you cannot

[00:10:37] Speaker 02:
the receivership expenses are not directly attributable.

[00:10:41] Speaker 02:
It's binding on this panel.

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Now, the government, and I think the district court, said, oh, well, but this new statute has a new philosophy.

[00:10:50] Speaker 02:
It's supposed to help victims.

[00:10:52] Speaker 02:
But the Supreme Court rejected exactly that argument in Lagos.

[00:11:04] Speaker 02:
The government made the same argument in Lagos, the United States Supreme Court, and said, well, if you construe the statute, if you don't construe the statute broadly, then some victims won't get reimbursed or won't get reimbursed enough.

[00:11:18] Speaker 02:
And what the Supreme Court said was,

[00:11:22] Speaker 02:
Broad general purpose of this kind does not always require us to interpret restitution statute in a way that favors our word.

[00:11:32] Speaker 02:
It rejected that argument.

[00:11:34] Speaker 02:
Again, if this court is thinking of departing from Loma, which I think is binding,

[00:11:40] Speaker 02:
It needs to do a Miller versus Gammie analysis.

[00:11:43] Speaker 02:
And if you do a Miller versus Gammie analysis, you'll be looking at overturning a line of precedent going back 85, well, I remember 85, 40 years, 30, 40 years, 40 years, at least 40 years.

[00:12:02] Speaker 02:
It's unwise to do so.

[00:12:03] Speaker 02:
The government has not offered a Miller versus Guiami analysis.

[00:12:08] Speaker 02:
And one final point.

[00:12:09] Speaker 02:
I know I'm over my time.

[00:12:12] Speaker 02:
Judge your own.

[00:12:16] Speaker 02:
Yes.

[00:12:16] Speaker 02:
I want to clarify.

[00:12:18] Speaker 02:
This is on the question of who has the burden on showing prejudice.

[00:12:28] Speaker 02:
And there was a dispute with the government as to the meaning of McIntosh, a Supreme Court case, McIntosh, that says that in this kind of case, in a time-related, directive kind of case,

[00:12:45] Speaker 02:
It gets reviewed on appeal under Rule 52A, Harmless Error Principles.

[00:12:51] Speaker 02:
And we think that applies in the trial court as well.

[00:12:56] Speaker 02:
The government says no only on appeal.

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But it doesn't matter, because I have gone back and looked at what this court has said about a harmless error review.

[00:13:08] Speaker 02:
And if you go back to Judge Kleinfeld's opinion,

[00:13:13] Speaker 02:
in a case by the name of Mitchell.

[00:13:19] Speaker 02:
United States v. Mitchell.

[00:13:20] Speaker 02:
And I'm sorry, I found this preparing for our argument, but it references the case with Ducide, which is O'Neill v. Ainich Supreme Court case.

[00:13:34] Speaker 02:
And the panel there, and this is United States v. Mitchell, 172 Feds, 3rd, 1104.

[00:13:42] Speaker 02:
And what the panel says is, this court, the Court of Appeals, needs to be convinced

[00:13:49] Speaker 02:
needs to be convinced that the air is harmless.

[00:13:53] Speaker 02:
No difference to the district court.

[00:13:56] Speaker 01:
Well, I thought the district court made that determination after a two-day evidentiary hearing.

[00:14:01] Speaker 02:
You have to be convinced.

[00:14:03] Speaker 01:
There was an evidentiary hearing on that issue.

[00:14:08] Speaker 01:
There was an evidentiary hearing.

[00:14:09] Speaker 01:
And the court made a specific factual finding.

[00:14:12] Speaker 01:
That's right.

[00:14:13] Speaker 02:
There was no prejudice.

[00:14:13] Speaker 02:
We disagree with that.

[00:14:14] Speaker 02:
We think it's unfounded.

[00:14:16] Speaker 02:
But it doesn't matter, because on appeal, this panel needs to be convinced that, in fact, the air is harmless.

[00:14:26] Speaker 02:
That's what circuit law says, United States versus Mitchell.

[00:14:31] Speaker 02:
No deference to the district court.

[00:14:33] Speaker 02:
You have to look at the record.

[00:14:35] Speaker 02:
And that's what Justice Sotomayor said in McIntosh.

[00:14:41] Speaker 02:
On appeal, it is governed by harmless error principles.

[00:14:47] Speaker 02:
Thank you, counsel.

[00:14:48] Speaker 02:
And Judge Rollins is looking.

[00:14:50] Speaker 02:
I know that look.

[00:14:51] Speaker 02:
Appreciate it.

[00:14:52] Speaker 02:
I am going to, if the panel wishes to give me a minute for rebuttal, I'll take it.

[00:14:59] Speaker 02:
We'll see.

[00:14:59] Speaker 04:
You're almost five minutes over.

[00:15:01] Speaker 04:
Counsel.

[00:15:10] Speaker 00:
May it please the court, Katie de Villiers for the United States.

[00:15:13] Speaker 00:
This panel can confidently affirm the district court's second amended judgment finding a restitution amount based on two critical concessions made by the defendants and one important finding of fact by the district court.

[00:15:25] Speaker 00:
I'll start with those two concessions by the defendant because they bookend the restitution proceedings below.

[00:15:31] Speaker 00:
In his very first filing in June of 2021, after the government discovered its omission, the defendant conceded that this delay in finalizing restitution was due to negligence and nothing more.

[00:15:46] Speaker 00:
And that was supported by the fact that this receivership had been making distributions for three years after sentencing, and also supported by the fact that both criminal AUSAs and all but one of the agents who worked on the federal prosecution had left government service before the defendant's sentence was commuted.

[00:16:03] Speaker 00:
There was therefore no reason for the district court to have further developed the record on that point.

[00:16:08] Speaker 00:
We're all here today still because of that mistake and not for anything more egregious.

[00:16:16] Speaker 00:
The second concession that the defendant made that's very important was captured by the district court in its October 2023 order providing for a restitution amount at ER 20 where it noted that by the time of the evidentiary hearing, Mr. Harder did not challenge the accounting accuracy of any details in the government's victim list and MIMO spreadsheet.

[00:16:38] Speaker 00:
And that's very important for this panel because, of course, this court needs to review de novo, the accounting accuracy of that restitution spreadsheet.

[00:16:46] Speaker 00:
The defendant has already conceded that that Version 7 of the MIMO spreadsheet is what it purports to be.

[00:16:52] Speaker 00:
In other words, that it accurately captures the amount that those 1,488 victims invested minus the amount they have gotten back from the four distributions that the receivership made.

[00:17:04] Speaker 00:
and therefore captures that the defendant, Mr. Harder, still owes those 1488 victims $74 million.

[00:17:13] Speaker 00:
I'll move now to the most important finding of fact that the district court made when it provided the restitution amount.

[00:17:19] Speaker 00:
And that is that these 1,488 victims invested cash with Sun West and not real property.

[00:17:26] Speaker 00:
That's crucial.

[00:17:27] Speaker 00:
The rest of the restitution judgment flows from that finding of fact.

[00:17:31] Speaker 00:
And that's for three reasons.

[00:17:33] Speaker 00:
First of all, it simplifies this court's application of the MVRA for this case.

[00:17:38] Speaker 00:
We are operating under subsection B1A, which simply requires that a defendant needs to return the property to the owner.

[00:17:48] Speaker 00:
And Robers, the Supreme Court in Robers and this court, as recently as Holmes, in February of this year, have clarified what that means.

[00:17:56] Speaker 00:
When an investor has invested cash, he needs to get that cash back.

[00:18:01] Speaker 00:
End of story.

[00:18:02] Speaker 00:
There is no reason for this court or for the district court to have moved on to subsection B, 1B, which goes through evaluation method if return of that property under subparagraph A is impossible, impracticable, or inadequate.

[00:18:17] Speaker 00:
It's not impossible here.

[00:18:19] Speaker 00:
They invested money.

[00:18:20] Speaker 00:
They need to get their money back.

[00:18:22] Speaker 00:
My opponent has dismissed the Holmes case in a footnote in his reply.

[00:18:26] Speaker 00:
That's simply not appropriate.

[00:18:28] Speaker 00:
Those investors in Holmes, similarly, put their money into Theranos.

[00:18:33] Speaker 00:
They got back shares of Theranos, and the defendant there tried to argue what they've lost is the value of their shares in Theranos.

[00:18:39] Speaker 00:
This court disagreed.

[00:18:41] Speaker 00:
What they lost was the money that they put into Theranos.

[00:18:44] Speaker 00:
What these 1,488 investors lost is the money that they turned over to John Harder.

[00:18:51] Speaker 00:
The second reason that that finding of fact is so important is because it shows why Mr. Harter's most compelling prejudice argument here, the destruction of some of the documents as part of the receivership, just holds no water.

[00:19:04] Speaker 00:
He was not prejudiced by the destruction of those documents, and we know that because even for those 103,000-some files that still existed,

[00:19:13] Speaker 00:
that were in Mr. Winkler's possession after the destruction of those documents, the district court quashed those subpoenas, finding that all of the reasons that the defendant wanted to examine those documents were irrelevant.

[00:19:26] Speaker 00:
He wanted to conduct valuations of various Sun West properties at various points in time.

[00:19:32] Speaker 00:
But again, under robers, under Holmes, that just doesn't matter.

[00:19:37] Speaker 00:
The third reason that that finding a fact regarding these investors investing cash is so important is because it also demonstrates why this argument about the $155 million in receivership fees fails.

[00:19:49] Speaker 00:
Those victims didn't receive any portion of that money.

[00:19:54] Speaker 00:
It went to paying that staff of 25 who spent 10 years fixing the enormous mess caused by Mr. Harter's fraud.

[00:20:03] Speaker 00:
It went to feeding residents, to keeping the lights on.

[00:20:06] Speaker 00:
It went to paying non-victim investors, those people who invested in SunWest, but outside the time frame found by the district court for investors who qualified as victims, only those between January of 06 and July of 08.

[00:20:23] Speaker 00:
I take issue with my opponent's suggestion that the government did not respond to this argument about the $155 million in fees.

[00:20:30] Speaker 00:
There's a lengthy discussion about that in the government's brief and an explanation why the victim simply should not bear the cost of that.

[00:20:38] Speaker 00:
The only case that my opponent can port to here is Lamao.

[00:20:42] Speaker 00:
And there are a number of reasons why that is distinguishable.

[00:20:46] Speaker 00:
First of all, the facts there did not arise under the MVRA.

[00:20:50] Speaker 00:
The restitution order in Lamao was ordered under 3663 that preceded the MVRA.

[00:20:58] Speaker 00:
And that's important because even though the language is very similar as the Supreme Court found in Dolan, that prior restitution statute, this is a quote from Dolan at page 612, left restitution to the sentencing judge's discretion.

[00:21:16] Speaker 00:
There is no longer any discretion when it comes to ordering restitution under the MVRA.

[00:21:21] Speaker 00:
We know that because of the M in MVRA.

[00:21:23] Speaker 00:
It's mandatory.

[00:21:24] Speaker 00:
There is no discount for the cost of receivership.

[00:21:28] Speaker 00:
There's nothing like that that could be done like could be done in Lamau.

[00:21:33] Speaker 00:
Lamau was also factually distinguishable because it was the receiver who was being treated as the victim, essentially, and that receivership had arose subsequent to a prior state court civil proceeding.

[00:21:45] Speaker 00:
here and I think Judge Tom Uzu was pointing out that the receivership was a consequence of Mr. Harder's fraud.

[00:21:53] Speaker 00:
That is also a finding of fact that the district court made at ER 26.

[00:21:58] Speaker 00:
It found that this hardest fraudulent sale of investments in the Sun West assisted living facilities and his related commingling and diversion of investor funds caused Sun West to fail and caused the subsequent receivership.

[00:22:11] Speaker 00:
A receivership was the only way to marshal the assets of a nationwide multimillion dollar company and sell them to compensate the victims of Mr. Harder's massive fraudulent scheme.

[00:22:23] Speaker 00:
Mr. Harder did benefit from the receivership here.

[00:22:25] Speaker 00:
He benefited from that $155 million that was spent on professionals, spent keeping the lights on, feeding the residents, selling properties to compensate his investors.

[00:22:35] Speaker 00:
That's why he was able to commit a nearly $300 million fraud scheme and be ordered to pay only $74 million in restitution.

[00:22:44] Speaker 00:
Because that receivership was so successful,

[00:22:47] Speaker 00:
Those investor victims have already been paid back about 76 cents on the dollar.

[00:22:52] Speaker 00:
The restitution order captures the remaining 24 cents on the dollar that those 1,488 victims must be paid.

[00:23:00] Speaker 00:
Unless this panel has any questions, I'll submit.

[00:23:04] Speaker 04:
Thank you, counsel.

[00:23:05] Speaker 00:
Thank you.

[00:23:06] Speaker 04:
We'll give you one minute for rebuttal.

[00:23:09] Speaker 02:
We do not dispute the bottom line, once the calculations are made and constant is correct.

[00:23:15] Speaker 02:
We do dispute the process by which the bottom line, those figures were acquired.

[00:23:20] Speaker 01:
He had counsel who represented him in the receivership proceedings, did he not?

[00:23:26] Speaker 02:
That's right, he did, five years earlier.

[00:23:29] Speaker 01:
He had the opportunity to review all the records that you're complaining about and make appropriate objections to the computations in court's exhibit one that you're now challenging.

[00:23:40] Speaker 01:
And why hasn't that argument been waived as a result of the fact that he fully participated?

[00:23:46] Speaker 02:
Well, he didn't have the same incentives or the same reasons for challenging.

[00:23:52] Speaker 01:
He knew when he was sentenced that a mandatory restitution order was going to be

[00:23:56] Speaker 02:
I'm not talking about challenging whether money was spread out.

[00:23:59] Speaker 02:
I'm talking about the question of where things entered correctly.

[00:24:03] Speaker 02:
Were they allocated to the right?

[00:24:06] Speaker 01:
I guess what I'm questioning is why would the motivation be any different if he knew from the get-go and was represented by counsel that if he had

[00:24:16] Speaker 01:
dispute about how the money, the cost of the receivership were being established, that was the time to challenge those computations.

[00:24:28] Speaker 02:
Well, those computations were, I mean, he didn't challenge a person's receivership.

[00:24:34] Speaker 02:
He had been told that a restitution hearing would be five years earlier, and he was entitled to rely on the

[00:24:44] Speaker 02:
fact that the government never raised it, the court never raised it, and not counting on not having to answer for them.

[00:24:54] Speaker 02:
But aside from the delay itself, we got no information at all from the government.

[00:25:01] Speaker 02:
They put together this spreadsheet.

[00:25:03] Speaker 02:
They had Mr. Wint.

[00:25:04] Speaker 01:
You're saying that now, but he was represented by counsel at that time.

[00:25:09] Speaker 01:
that this exhibit was created.

[00:25:11] Speaker 01:
So to the extent that he has an objection, that was the time to raise it, not now.

[00:25:18] Speaker 02:
Well, the exhibit was revised a number of times and counseled without benefit of the records.

[00:25:26] Speaker 02:
Didn't even have the records that the government has.

[00:25:29] Speaker 02:
The government provided nothing, a way of records, any way for us to check.

[00:25:33] Speaker 01:
But the response to that is to go to the court and say, we want these records.

[00:25:39] Speaker 02:
We did.

[00:25:40] Speaker 01:
We issued subpoenas.

[00:25:49] Speaker 01:
I'm sorry?

[00:25:53] Speaker 02:
But by the time the restitution proceedings started, all those records were gone.

[00:25:59] Speaker 01:
But then, now we're back to my concern about what's the difference in the motivation between then and now?

[00:26:05] Speaker 01:
He still has an interest as an interested party in the receiver.

[00:26:09] Speaker 02:
Well, he gave over his property.

[00:26:11] Speaker 01:
Legitimately calculated.

[00:26:13] Speaker 02:
He gave over his property.

[00:26:14] Speaker 02:
There was nothing else for him to give in the receivership.

[00:26:18] Speaker 02:
So his interest in

[00:26:22] Speaker 02:
You know, micromanaging receivership was not, he wasn't going to be tagged with anything else.

[00:26:29] Speaker 02:
He could count on the fact that there was no restitution hearing for five years.

[00:26:35] Speaker 02:
It only happened after President Trump committed his sentence.

[00:26:40] Speaker 01:
And then probation wanted to contact the U.S.

[00:26:46] Speaker 01:
Attorney's Office and said, we want to set up a restitution.

[00:26:48] Speaker 01:
Well, we don't know.

[00:26:49] Speaker 01:
Somebody said, oh my god, restitution.

[00:26:52] Speaker 01:
What happened to restitution?

[00:26:53] Speaker 02:
We don't know what happened.

[00:26:56] Speaker 02:
But we do know that it's a five-year delay.

[00:27:01] Speaker 01:
It was negligence on the part of the government.

[00:27:03] Speaker 02:
It was negligence.

[00:27:04] Speaker 02:
We're not disputing.

[00:27:07] Speaker 02:
It was negligence.

[00:27:09] Speaker 02:
And I had one other point, but I think, as far as Lemaux is concerned, what matters is not all that other stuff that the statute changed.

[00:27:23] Speaker 02:
The language Lameau was interpreting has never changed.

[00:27:27] Speaker 02:
It was moved.

[00:27:29] Speaker 01:
I thought Lameau involved the receiver for the district, in the sanitation district.

[00:27:35] Speaker 01:
And the money was actually paid to the receiver.

[00:27:39] Speaker 02:
Well, actually, no.

[00:27:41] Speaker 02:
Actually, three times in Lamo, the court says, one is the receiver, and therefore the district.

[00:27:49] Speaker 02:
The district is the victim.

[00:27:50] Speaker 02:
It has control of the assets.

[00:27:53] Speaker 02:
Lamo must receive credit towards restitution obligation.

[00:27:57] Speaker 02:
Therefore, Lemaux must be credited for all funds that he transferred to the district care of the receiver.

[00:28:06] Speaker 02:
Clearly, the Lemaux court saw the receiver and the victim as being equivalent.

[00:28:13] Speaker 02:
Three times they say, this is on page 1020 to 1021 of the federal reporter.

[00:28:21] Speaker 02:
So there's no difference there.

[00:28:23] Speaker 02:
And it's not like the receiver could keep the money.

[00:28:27] Speaker 02:
That's all I have.

[00:28:29] Speaker 03:
Thank you for your patience.

[00:28:30] Speaker 03:
Thank you to both counsel for your briefing and argument in this interesting case.

[00:28:34] Speaker 03:
This matter is submitted.