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United States Court of Appeals for the ninth

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Good morning.

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I'm Judge Gould, and I'm presiding today.

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I'm delighted to be sitting with my colleagues, Judge Talman on my right and Judge Christen on the left.

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We have several cases submitted on the briefs.

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I'll just mention that for the record.

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Move that closer.

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on the U.S.

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versus, what's that name?

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Weiberg, submitted on the briefs.

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The U.S.

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versus Garcia, submitted on the briefs.

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U.S.

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versus Bradford Semidon Briefs.

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And then Sing versus Bondi Semidon Briefs.

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And Trejo Campos versus Bondi Semidon Briefs.

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So our first case for argument today, let me see.

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First case for argument is Randall's, that USV Randall's.

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And so the appellant can proceed.

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This is set for 10 minutes per side.

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So if an appellant wants to make a rebuttal argument, try to stop before you use it up all 10 minutes.

[00:02:34] Speaker 01:
Thank you, Your Honor.

[00:02:36] Speaker 01:
Good morning.

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Miles Pope for Mr. Randall's and I'll reserve three minutes for rebuttal.

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My plan is to make two quick points about the breach issue and then, unless the court has a different preference, to focus on the restitution issues because they have more moving parts and will in all likelihood be relevant even in the event this court remands on breach.

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What's your strongest breach argument?

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Strongest breach argument is, first of all, with respect to breach itself, this was an express breach.

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The court asked a question, what might the government recommend?

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Not an express breach.

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Mindful of your time, on my scorecard, this is not an express breach.

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The government only ever argued for the high end, 240.

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I think you have an argument about implied breach, but I don't see an express breach.

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The core of the breach argument, just on the facts, is that the government answered the court's question, I would recommend life, and couples that... And that's what Friar Charis talks about, right?

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The sequencing.

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So it is very meaningful that the judge asks the question.

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You wouldn't suggest that the AUSA was free to disregard the question.

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Ferreros Contreras says that you cannot use the court's question as a guise for breaching the plea agreement.

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The question here was conditional.

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Council, a guise?

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18 U.S.C.

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Section 3553A2 requires the court to fashion a sentence which is sufficient but not greater than necessary to comply with subparagraph A6, which is the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.

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What's wrong with the court asking the parties to talk about comparator cases in trying to fashion an appropriate sentence in this case?

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Well, that argument is a subsidiary argument that I raised, but the core of the breach here, and I will concede that I think if this court doesn't agree that saying affirmatively life in response to the court's question, I've got a much harder argument with respect to breach.

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I think you've got a difficult argument in the face of the statutory command

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not to the government, but to the sentencing judge, as to how the sentencing judge is to consider and apply the 3553A2 factor.

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The prosecutor is governed by his own separate set of principles regarding what he can and cannot argue to the court.

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And if he promises to recommend 240 months... He refused to answer the court's question.

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Does your argument really come down to he should have prefaced it with, well, Your Honor, I am constrained by the terms of the plea agreement, but in answer to the court's question, my answer is, if not constrained by the plea agreement, I'd recommend life.

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My argument is the court asks, what might you recommend?

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And his response is, I would recommend life, even though he promised to recommend 240 months.

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What is your next argument?

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And I'm going to turn to restitution at this point.

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OK.

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Actually, just, I mean, I understand your implied breach argument.

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I understand your implied breach argument would be premised on the life, the response life, and also to the string site, to a bunch of cases that were more severe.

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Just quickly, is there more that I should be considering on that argument?

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Those two factors, the one additional thing that I would consider is that some of the inflammatory rhetoric in the sentencing memo.

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Violent, meditative, modern-day slavery.

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Modern-day slavery, I think, informed by the response life.

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That's the core of my argument.

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Got it.

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Okay.

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Turning now to the restitution issues, and I'm going to begin with the back pay issue, or the ill-gotten gains issue, and then turn to the $100,000 issue.

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In my view, the back pay issue turns on whether the plea agreement can serve as an alternative basis for the district court's plainly erroneous decision to rely.

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Why wouldn't it?

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Why wouldn't it?

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We're going to, after four hours contrast, actually before four hours contrast, we're going to treat that plea agreement as a contract, right?

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And you know that.

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And so why wouldn't it be the basis?

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Well, because the plea agreement didn't, Mr. Reynolds didn't promise to pay back pay in the plea agreement.

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He promised to pay restitution and the quid pro quo was that we're not going to pursue charges for even more violations that we could hit you with.

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Why is that improper as a matter of contract law?

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The government gave up something, he gave up something.

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But what he gave up is what's at issue with respect to the plea agreement itself.

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He stipulated that he owed restitution.

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He did, but he said specifically in the restitution provision, it says, you know, the parties agree pursuant to 18 USC section 2429, the court shall order, pursuant to 2429, the court shall order the full amount of losses incurred by the victims.

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Victims' losses under 2429 are not the same as back pay.

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And the government concedes that in its briefing.

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Well, the victim lost at least whatever the value was, although frankly I'm not sure what objective standard we apply to the value of her services, but clearly there was money that exchanged hands in return for sex.

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He took some or all of it.

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And why isn't that a loss of pay?

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It's not a loss of pay.

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It's not defined as a victim's loss under this court's precedent in interpreting analogous back pay provisions.

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So your strongest argument that this contract should have given him an expectation, right, for performance of a contract that should not have included ill-gotten gains is what?

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The contract itself says, it's just the plain text of the contract.

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It says the court shall order restitution for the full amount of the losses incurred by the victims.

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So Mike, I appreciate that and I've got that right here.

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So my question for you, sir, is given that that's the contract term that we're enforcing, what is it about that language that should cause me to decide?

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that this would not have been an expectation.

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Full amount of her losses should not have included ill-gotten gains.

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Because under Section 2429, as the government concedes as it's answering brief pages 52 and 53, losses are distinct from ill-gotten gains.

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2429 distinguishes between victims losses and ill-gotten gains.

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It says there's victims losses that you can be required to pay.

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But why wouldn't she be entitled to some or all of the, as I understand it, there were two components to her pay.

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One was the, I joined the club, the club admission fee, right, $100,000, and the other is she was being compensated for each liaison.

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Why is that not,

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two components of loss to the victim.

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I don't understand your argument.

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It's simply because this court has interpreted loss to not include back pay.

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Maybe we're not saying something that we should at the top of the decision tree.

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Aren't we going to review this for plain error?

[00:09:36] Speaker 01:
Yes, well, you'll review the broader issue for plain error, yes.

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And let me, I appreciate the court's implicit question.

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So the government are asked below, the government relied on a statute that concedes plainly does not apply in seeking the back pay or the ill-gotten gains.

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It relied on the TVPA.

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It now in its briefing says that does not apply.

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The government flip-flopped in its briefing, I'll give you that.

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But the district court didn't.

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The district court's looking at the sentencing agreement, right?

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The plea agreement, sorry.

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The district court in its comments on

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So when the district court orders restitution, this is at 1 ER 46, it says the statutes regarding restitution in these unfortunate matters are clear, and those statutes are 2429 and 2259.

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2259 actually does not apply here, which make it clear that the court shall order restitution.

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My view is that the district court, and why would it have relied on the plea agreement, because the government urged it to rely on a statute, relied on statutes did not apply the plea agreement.

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Did you say why would the government

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rely on the plea agreement?

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I appreciate the government made a different argument, but is that what I just heard you say?

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Why would the court rely on the plea agreement?

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We have to interpret that agreement as a contract, so how are we missing each other on this?

[00:10:57] Speaker 01:
Well, I'll say two quick things.

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First, just looking at the record, when I see what the district court said with respect to why I am ordering restitution, it does not reference the plea agreement.

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It references statutes, just the statutes directly.

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Yes, I've got it right here.

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Yes?

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Yes.

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And so just reading that record.

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And your argument is that we've interpreted those statutes to cut your way, that there's this distinction.

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That's your argument.

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Correct.

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There's a distinction between backpaying.

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And your best plain error argument is what?

[00:11:28] Speaker 01:
So I have four plain error points.

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The first point that I would make with respect to plain error is obviousness.

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I think the core is going to be the obviousness prong on this one.

[00:11:39] Speaker 01:
What about prongs three and four?

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Because that's where it gets tough for you, prongs three and four.

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Manifest injustice, clear error.

[00:11:47] Speaker 01:
So if the court agrees with me that losses do not encompass back pay, then it was illegal in this case for the district court to order restitution for back pay.

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You're focusing on was it error, was it plain, but Judge Tomlin and I are trying to get you to focus on the last, right?

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Fairness and integrity of the proceedings manifest in justice.

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Could you look at those two factors?

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Why do those cut your way?

[00:12:10] Speaker 01:
For two reasons.

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The reason they cut my way is because, and this court has held this to be the case in previous sort of analogous cases that I cite in my brief.

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Cases applying plain error to, you know, applying the TVPA to a case where it does not apply, and also ordering restitution contrary to the ex post facto clause.

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If restitution is ordered,

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that is illegal.

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This court has not hesitated in the past to say that that is prejudicial because the defendant has been required to pay restitution.

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He wasn't legally obligated to pay.

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In those cases, did any of the written agreements call for application of the incorrect statute, what you claim to be the incorrect statute?

[00:12:54] Speaker 01:
No, but from my perspective, that issue, the question of does this written agreement actually require the payment of ill-gotten gains under that statute, that would strike me as an issue for prongs one and prongs two.

[00:13:09] Speaker 01:
Got it.

[00:13:10] Speaker 02:
I understand your argument, and I think I've taken you over your time.

[00:13:14] Speaker 01:
Okay, thank you.

[00:13:16] Speaker 03:
Thank you, Council.

[00:13:18] Speaker 03:
Bids for your planning purposes.

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You're out of time, but I'll give you a minute for rebuttal.

[00:13:27] Speaker 01:
Okay, thanks.

[00:13:30] Speaker 03:
And now we'll hear from Appellee, please.

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Council, please proceed.

[00:13:53] Speaker 00:
Good morning, Your Honors.

[00:13:54] Speaker 00:
David Herzog on behalf of the United States.

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I was counseled below.

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May it please the court.

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The heart of a plea agreement is that both sides get what they bargained for.

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And Judge Talman hit it right on the head.

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The defendant got the ability to argue for a non-mandatory minimum sentence, right, 135, 135 months, rather than the charged mandatory 15 years in exchange

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the entire perhaps not the entire but a large portion of what the government was seeking was back pay restitution and that's clear from the record that it was that if the government was not going to get back pay for this human trafficking victim that the defendant violently traffic for years

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he would have had to eat the 1591.

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He would have had to plead to the 15 years.

[00:14:36] Speaker 02:
Well, one problem I have with that, forgive me for interrupting, is when you say, you know, we're looking at the record, I think you're arguing that we should be looking at some emails.

[00:14:45] Speaker 02:
Why would we do that?

[00:14:47] Speaker 00:
Yes, Your Honor.

[00:14:48] Speaker 00:
Even ignoring the emails, if the court says the emails aside, the charge bargain itself makes it clear that 1591, that requires back pay under 1593, and has a 15-year mandatory minimum, was dismissed

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in favor of a charge with no mandatory minimum.

[00:15:02] Speaker 02:
OK, so I don't need to look at the emails because I'm not going to look at the emails because they're not part of the record, right?

[00:15:07] Speaker 02:
So why would we do that?

[00:15:08] Speaker 00:
Your Honor, that's correct.

[00:15:09] Speaker 02:
OK.

[00:15:10] Speaker 02:
All right.

[00:15:10] Speaker 00:
Thank you.

[00:15:11] Speaker 00:
Then with regard to the overall restitution losses versus back pay, my friend on the other side is correct that losses is therapy.

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Essentially, it's therapy bills.

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It's what the defendant herself would have paid out of pocket.

[00:15:29] Speaker 00:
back pay or the ill-gotten gains, that is under the 1591 restitution statute, 1593, under that human trafficking statute, it's always been given to victims.

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Prior to the AHTA 2429, back pay was not available unless the person pled to the 1591 charge.

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So Congress fixed that, the same impulse the court has, which is how could she not get back pay?

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Congress fixed that.

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And that's what the defendant agreed to in the plea.

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in exchange for getting

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victim M's testimony credible.

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He believed her.

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And he corrected the math.

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He corrected $6,000 a month for I think 33 months, which was consistent with her declaration or testimony.

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But at any rate, I don't have a question about that.

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When he asked, what is the evidence, he said, is there anything else?

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Basically, I'm summarizing.

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Is there any other evidence in the record for that?

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And the government responded that there had been a ledger that was seized.

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I can't find the ledger.

[00:16:45] Speaker 02:
Was that in the record?

[00:16:47] Speaker 00:
No, it was not.

[00:16:48] Speaker 00:
It was produced in Discovery.

[00:16:49] Speaker 00:
It was essentially a pay-o book.

[00:16:51] Speaker 02:
But did the district court have it?

[00:16:52] Speaker 00:
No, Your Honor, I don't think so.

[00:16:53] Speaker 00:
Okay.

[00:16:54] Speaker 02:
So the evidence that we have, that the district court added that we have, is that victim M's testimony.

[00:17:03] Speaker 00:
And her sworn declaration, yes, her testimony by declaration.

[00:17:06] Speaker 00:
Right.

[00:17:07] Speaker 02:
Okay, that was the answer to that question.

[00:17:09] Speaker 02:
So we looked everywhere.

[00:17:10] Speaker 02:
My law clerk definitely wants to know if she missed that.

[00:17:12] Speaker 02:
And I couldn't find it and she couldn't find it, so you've made her day.

[00:17:15] Speaker 00:
You couldn't find it either.

[00:17:16] Speaker 02:
Yes, okay.

[00:17:17] Speaker 00:
Yes, that was referenced because it was in the discovery.

[00:17:19] Speaker 00:
But then, Your Honor, just to get to the heart of, I think, what the court's looking at right there is, what did the district court determine that lump sum based on?

[00:17:25] Speaker 00:
On the one hand, the court had the sworn declaration of the victim.

[00:17:29] Speaker 00:
Right.

[00:17:29] Speaker 00:
On the other hand, the court had nothing.

[00:17:31] Speaker 00:
The defendant put nothing up to compete against that and, as the court noted, did not take the opportunity to cross-examine her.

[00:17:36] Speaker 00:
So facing some evidence against no evidence, the court did not abuse its discretion in crediting the victim, who, of course, knew the value of her own body.

[00:17:47] Speaker 00:
She was the person who was trafficked.

[00:17:48] Speaker 00:
She was the person who the defendant was charging X amount of dollars per date over months into years.

[00:17:56] Speaker 02:
I'd like to ask about your waiver argument.

[00:17:59] Speaker 02:
I don't see a valid waiver argument here.

[00:18:03] Speaker 02:
He had the right to appeal a restitution order that was over $20,000.

[00:18:07] Speaker 02:
This certainly was.

[00:18:08] Speaker 02:
I think you only get to waiver through the emails, which I've already pretty well signaled I'm not looking at.

[00:18:12] Speaker 02:
Do you have another waiver argument?

[00:18:15] Speaker 00:
I would just ask the court to look at the word amount in paragraph 16, which is the appellate waiver.

[00:18:20] Speaker 00:
The defendant agrees.

[00:18:21] Speaker 00:
that he may challenge the amount of restitution, not the application of the wrong statute.

[00:18:27] Speaker 00:
It's the amount.

[00:18:28] Speaker 00:
And that is the battle that we had in the district court over, is she credible?

[00:18:31] Speaker 00:
Should it be 300,000?

[00:18:33] Speaker 00:
Should it be 100,000?

[00:18:33] Speaker 00:
The amount.

[00:18:34] Speaker 00:
I would just submit to the court that under the contract principles that the court previously referenced,

[00:18:39] Speaker 00:
What is in the contract was in the plea under paragraph 16 is the defendant may appeal the amount not so that's in your brief and I and I'm only one of three, but I I am not persuaded by that argument.

[00:18:51] Speaker 02:
Do you have another argument?

[00:18:52] Speaker 00:
No, that's our best way.

[00:18:53] Speaker 02:
Okay, so I didn't I didn't miss it.

[00:18:55] Speaker 02:
All right.

[00:18:55] Speaker 02:
Thank you.

[00:18:55] Speaker 00:
But I do think that based on the state of this record, what was before the district court was evidence on which the court could rely without abusing its discretion.

[00:19:08] Speaker 02:
He relied on victim M for the $100,000.

[00:19:12] Speaker 02:
He had documentary evidence of the loans and the bankruptcy filing fee.

[00:19:17] Speaker 02:
He corrected her testimony.

[00:19:18] Speaker 02:
She testified incorrectly, I think, about the student loans and that was corrected.

[00:19:25] Speaker 02:
right?

[00:19:27] Speaker 00:
Yes, your honor.

[00:19:27] Speaker 00:
That's correct.

[00:19:28] Speaker 02:
That's it.

[00:19:31] Speaker 00:
Yes.

[00:19:31] Speaker 00:
And I would submit to the court and the government submitted the Williams case at three er 3 33 here, which talks about in a trafficking case, it's going to be the evidence of the victim accounting for what happened because this is by design of business in which no records are kept.

[00:19:48] Speaker 00:
Um, and so I think the court was within its discretion to say, especially in a case where the defendant put up nothing,

[00:19:54] Speaker 00:
that this victim's sworn testimony, this is my recollection of what I was trafficked for, for how long and what the rate of my body was, that I think the court could act within its discretion to find that credible, especially when it was counteracted by nothing.

[00:20:12] Speaker 02:
I don't have any other questions.

[00:20:14] Speaker 00:
Fairly, Your Honor.

[00:20:15] Speaker 00:
If I then may address the breach issue.

[00:20:17] Speaker 00:
Sure.

[00:20:19] Speaker 00:
It sounds as though the court is

[00:20:21] Speaker 00:
hesitant to go with the breach.

[00:20:23] Speaker 00:
I think that's the right answer here.

[00:20:25] Speaker 00:
With regard to the single statement, it was a life sentence.

[00:20:28] Speaker 00:
I just want to remind the court that this was an 11C1C plea.

[00:20:35] Speaker 00:
240 was the top of the range.

[00:20:36] Speaker 00:
To the extent that, Judge Christen, you're concerned about the implicit breach cases, all of those cases have a low-end promise.

[00:20:44] Speaker 00:
The breach in Farias Contreras, in Murray, the other cases, the government promises to recommend low-end.

[00:20:50] Speaker 00:
and then winks at the court to get higher.

[00:20:52] Speaker 00:
Right.

[00:20:53] Speaker 02:
And so that's his argument, his argument that this was a wink.

[00:20:56] Speaker 02:
Right?

[00:20:56] Speaker 02:
That's his best argument, that this was a wink because of the response to the question about life, right?

[00:21:02] Speaker 02:
And because of the string side to a bunch of cases where the sentences were quite a bit longer.

[00:21:07] Speaker 02:
What's your response to that, please?

[00:21:08] Speaker 00:
To both of those.

[00:21:10] Speaker 00:
To the first, because this was an 11C1C, there was no possible breach because 240 was the top of the range that wouldn't give the defendant the chance to withdraw, right?

[00:21:20] Speaker 00:
If the court had said, ah, the government said life, I should really sentence higher here.

[00:21:24] Speaker 00:
The court would have said, I'm going to sentence higher.

[00:21:25] Speaker 00:
And because it was an 11 C1C, the defendant could then withdraw.

[00:21:29] Speaker 00:
So there's no way to get to the prejudice error, the prejudice part of plain error there.

[00:21:33] Speaker 00:
With regard to the string citation, Judge Tallman articulated the government's position, which is the government, the court specifically said,

[00:21:43] Speaker 00:
I want comparator cases.

[00:21:44] Speaker 00:
Give me citations from other trafficking cases.

[00:21:47] Speaker 00:
The government has to be in the ability to respond directly to the court.

[00:21:50] Speaker 00:
That's Maldonado.

[00:21:51] Speaker 00:
And I would also say Maldonado resolves.

[00:21:54] Speaker 00:
Must the USA answer the court directly and candidly?

[00:21:57] Speaker 00:
The answer is yes.

[00:21:58] Speaker 02:
Yes, but it would be very different, and I'm not sure that I saw this acknowledgement in your briefing.

[00:22:03] Speaker 02:
Maybe you wouldn't have anticipated the question.

[00:22:04] Speaker 02:
But what, for us, Contreras talks about when we talk about sequencing, we said that we're going to look to sequence, because it's a gestalt, right?

[00:22:11] Speaker 02:
We're looking at the transcript, and we've said we're going to look at the sequencing, severity, and purpose of the statements.

[00:22:16] Speaker 02:
So, per Judge Tallman's point, purposes of government wants the high end of that range, for sure.

[00:22:23] Speaker 02:
But on this response to the question, I think that life, that the prosecutor would have recommended life, I think that's the point of the sequencing.

[00:22:34] Speaker 02:
If the government had come in with a sentencing brief that had offered up, gee, but four, we would recommend life.

[00:22:40] Speaker 02:
I'd be looking at this skeptically, very skeptically.

[00:22:46] Speaker 02:
It's quite different to answer a judge's question in court.

[00:22:50] Speaker 00:
I think you're exactly right.

[00:22:51] Speaker 00:
And I highlighted in my briefing that the government said 240, 21 times across the briefing and at the hearing.

[00:22:59] Speaker 00:
And the reason why that's important is Judge Gould's concurrence in Farias Contreras, which is,

[00:23:04] Speaker 00:
You have to tether it, right?

[00:23:05] Speaker 00:
You have to tether the recommendation to something in here.

[00:23:08] Speaker 00:
But for the court asking a hypothetical counterfactual question, the government, right, what would you do if there were no plea?

[00:23:15] Speaker 00:
The government, I can submit, would have stuck with the recommendation that it made 21 times, which was 240 consistent with those.

[00:23:23] Speaker 02:
All I'm trying to say is if the government had posed that hypothetical in its own brief, I would think that flavor is very different.

[00:23:30] Speaker 00:
I think the court's absolutely right.

[00:23:32] Speaker 00:
And I think that Farias, I think the overall takeaway from the majority opinion in Farias and the first concurrence is that that's right.

[00:23:39] Speaker 00:
court had the government has to act in good faith and if I was counsel below if the government had said boy judge the the C1C is 135 to 240 but this guy should get life but for the plea agreement that my hands are bound by if there be any indication of that in the briefing or what the government said prior to the court's interruption I think the court would be exactly right that could be construed as

[00:24:02] Speaker 00:
of version of breach.

[00:24:03] Speaker 00:
It's not cleanly implicit because there's no low-end promise, but I think the court would be right.

[00:24:08] Speaker 00:
But here, that did not happen.

[00:24:09] Speaker 00:
I think the record is very clear.

[00:24:11] Speaker 00:
That did not happen.

[00:24:12] Speaker 00:
The briefing and everything else at the hearing said 21 times, 240 is the right sentence.

[00:24:19] Speaker 00:
And the last thing the prosecutor said was 240 sentences, the parsimony principle, is sufficient but not greater than necessary, and I emphatically urge the court to impose it, emphatically.

[00:24:31] Speaker 00:
I don't know what else the government could do given that Maldonado required the government to answer the court's question directly.

[00:24:39] Speaker 02:
So I just have one final question.

[00:24:41] Speaker 02:
You're over time already.

[00:24:42] Speaker 02:
Farias Contreras was an en banc decision that was a very close call for our court.

[00:24:46] Speaker 02:
We did not.

[00:24:47] Speaker 02:
We were, I think, quite overt about that because when we read that transcript there was

[00:24:52] Speaker 02:
We weren't so sure it was a hard harder question Is there anything we could do in this case any reason to publish anything that you think is left has left?

[00:25:00] Speaker 00:
We've left murky on the breach question on the breach question I Don't think so because for Rias Contreras said no plain error and if that was not plain error this doesn't the

[00:25:14] Speaker 00:
even the rhetoric in the brief, which, to be fair, unlike Farias, had to cover the spread between 135 and 240.

[00:25:20] Speaker 00:
I don't think there's reason to publish this.

[00:25:22] Speaker 04:
And we also have case law that says that you can consent as a contractual term to the application of law

[00:25:31] Speaker 04:
as a quid pro quo for reduced charges.

[00:25:35] Speaker 00:
That's correct, Your Honor.

[00:25:35] Speaker 00:
That's in red dough is that case.

[00:25:37] Speaker 00:
And then I would just submit on that final point, Your Honor, Rose versus Palmatier, I think, gets to the heart of what the court's saying, which is, if you get a benefit and you negotiate for it, then you're held to it, even if later, appellate counsel says that's ex post facto.

[00:25:49] Speaker 00:
And I think my best cases on that are obviously Rose versus Palmatier, Gilchrist, and Navarro Botello.

[00:25:58] Speaker 00:
OK, counsel, thank you.

[00:26:00] Speaker 03:
You're two minutes over time now, so we should bring your argument to a close.

[00:26:05] Speaker 00:
Thank you, your honor.

[00:26:07] Speaker 03:
Thank you.

[00:26:08] Speaker 03:
And we'll hear from my opponent.

[00:26:14] Speaker 03:
So I said earlier I'd give you a minute, though your time was up.

[00:26:18] Speaker 03:
But I'll give you two minutes instead of a minute.

[00:26:22] Speaker 01:
Thank you for the windfall, I appreciate it.

[00:26:26] Speaker 01:
So I wanted to flag two quick points on the back pay issue.

[00:26:30] Speaker 01:
First, my friend conceded that back pay is distinct from losses.

[00:26:34] Speaker 01:
There is no agreement in this case about whether ordering back pay versus ordering losses is different.

[00:26:40] Speaker 01:
So that is something that I think the court, it's important.

[00:26:42] Speaker 04:
But I'm still struggling with the two components because let's assume that she were in business for herself and she didn't have a pimp.

[00:26:50] Speaker 04:
Wouldn't she be entitled to it all, the $100,000 club entry-level fee and the cost per transaction?

[00:26:59] Speaker 01:
I'm just going to respond that under the law, and my briefing goes into this, the way losses are defined, it is different from back-pay losses.

[00:27:09] Speaker 04:
I mean, it's ill-gotten gains to the defendant, clearly.

[00:27:15] Speaker 04:
You don't have a right to keep that money because it's basically

[00:27:19] Speaker 04:
tainted money.

[00:27:22] Speaker 04:
And the question then I guess is does it go to the government or does it go to the victim?

[00:27:26] Speaker 04:
But he doesn't get to keep it.

[00:27:28] Speaker 01:
So I think there's a forfeiture dimension.

[00:27:30] Speaker 01:
But in any event, I just wanted to emphasize that I think all sides in this case, and I understand the court's puzzlement, and I heard the government's sort of... Well, I just don't see why it's not a component of the value of her services.

[00:27:43] Speaker 04:
I guess that's what I'm struggling with.

[00:27:46] Speaker 01:
It is, but it's not losses as losses are defined in federal restitution law.

[00:27:50] Speaker 04:
Well, it's money that would otherwise have gone to her, but for the fact that the pimp took it.

[00:27:55] Speaker 04:
I don't know how else to describe it.

[00:27:58] Speaker 01:
I'm afraid I have nothing further for you, but just accepting that that distinction is in fact real, I do just want to emphasize that the language in this plea agreement is unambiguous.

[00:28:09] Speaker 01:
If there is a distinction between losses and back pay, it says, quote, pursuant to 2429, the court shall order restitution for the full amount of the losses.

[00:28:18] Speaker 01:
That is what Mr. Randall's agreed to in the plea agreement.

[00:28:22] Speaker 01:
An analogy would be if a plea agreement said pursuant to, you know, some of the... But you have to convince us it's not recoverable pursuant to 2429.

[00:28:33] Speaker 02:
And I think we have your answer on that.

[00:28:36] Speaker 01:
But it's not recoverable pursuant to the... 2429 doesn't apply to Mr. Randall, so it's not recoverable pursuant to the plea agreement.

[00:28:42] Speaker 01:
I think we got it.

[00:28:44] Speaker 01:
Okay, thank you.

[00:28:45] Speaker 03:
Thank you, counsel.

[00:28:46] Speaker 04:
Thank you very much.

[00:28:48] Speaker 03:
The Randall's case will now be submitted.

[00:28:54] Speaker 03:
And I thank both counsel for their spirited and excellent arguments.

[00:29:02] Speaker 03:
And so the case is now submitted.