[00:00:02] Speaker 04:
Good afternoon and welcome to our Richard Chambers Courthouse here in Pasadena.

[00:00:10] Speaker 04:
This is the time set for the case of hearing the case of United States of America versus $1,106,755 in United States currency and Oak Percelli.

[00:00:30] Speaker 04:
and Gina Pennock.

[00:00:32] Speaker 04:
If the parties are ready to proceed, you may begin.

[00:00:44] Speaker 09:
May it please the court, Alyssa Barnardiani for Appellant Oak Porcelli.

[00:00:49] Speaker 09:
I'd like to reserve five minutes for rebuttal.

[00:00:52] Speaker 09:
The government accuses Mr. Porcelli of being a drug dealer, but rather than actually criminally prosecute him, it seeks only his money.

[00:01:02] Speaker 09:
A serious problem for the government in this forfeiture action is that Mr. Porcelli challenges the underlying search and seizure as unconstitutional, but the district

[00:01:14] Speaker 09:
Refused to resolve the pending suppression motion and instead dismissed the case as a discovery sanction based on a misinterpretation of rule g6 That decision not only fails to deter

[00:01:29] Speaker 09:
unconstitutional police practices, but affirmatively rewards and incentivizes them, laying the roadmap for operationalizing textbook unconstitutional seizures to profit to the tune of millions of dollars.

[00:01:46] Speaker 09:
This court should reverse and could do so on any of three grounds, sequence, scope, and standing.

[00:01:55] Speaker 09:
On the sequencing issue, motions to suppress in a civil forfeiture action must be decided before a court dismisses the case as a discovery sanction.

[00:02:04] Speaker 06:
Counsel, do you think that should be a categorical rule or do you think that should be the rule only if the district court is going to consider and the government is arguing an aspect of what was seized as support for its sanction?

[00:02:25] Speaker 06:
or support for suggesting that the interrogatory answers were not sufficient.

[00:02:32] Speaker 09:
So I think it should be a default rule and I think the rule needs to be a little more broadly than Your Honour was suggesting because it's not just whether the government is directly invoking the suppressed evidence as support

[00:02:44] Speaker 09:
for the sanction motion, but it's whether the suppressed evidence is going to affect the admissible evidence at summary judgment and at trial, which is then going to inform the relevance of the interrogatories and the responses.

[00:02:58] Speaker 09:
And this case, in the panel majority's decision, illustrates that point and crystallizes it.

[00:03:03] Speaker 09:
Because the only piece of information that they think Mr. Porcelli should have provided in the interrogatory responses that he didn't provide was his annual income.

[00:03:13] Speaker 09:
But if Mr. Porcelli's suppression motion were granted, the amount of money seized from his vehicle would be suppressed.

[00:03:21] Speaker 09:
It wouldn't be admissible at summary judgment or at trial.

[00:03:24] Speaker 13:
Well, within the time we have, what I struggle with here is the standard of review on the district court when it's abuse of discretion.

[00:03:33] Speaker 13:
And if people, you know, I agree that standing's a pretty low bar, but if someone

[00:03:40] Speaker 13:
You know, but if we just allow people to say anything, hey, it's my money, and that's it, and nothing more, why did the district court abuse its discretion to say, hey, we need a little more money, we need a little more information before I decide you have standing?

[00:03:56] Speaker 09:
So I think there's a lot packed in there.

[00:03:57] Speaker 09:
And one is that standing is assessed differently at different stages of the proceedings.

[00:04:01] Speaker 09:
There's no dispute that Mr. Porcelli has standing at the pleading stage.

[00:04:05] Speaker 09:
He's made an unequivocal claim of ownership in his claim.

[00:04:08] Speaker 09:
that establishes pleading stage standing.

[00:04:13] Speaker 09:
It's also important to back up and see that there's multiple different categories of forfeiture claims.

[00:04:20] Speaker 09:
So Mr. Porcelli is in a particular lane.

[00:04:22] Speaker 09:
He is alleging an ownership interest in property that was directly taken from him.

[00:04:27] Speaker 09:
But that's not the only category of claim.

[00:04:30] Speaker 09:
There are people who assert possessory interests.

[00:04:33] Speaker 09:
That's a different lane.

[00:04:34] Speaker 10:
And there are people who- Also, can I have you go back to Judge Wardlaw's question?

[00:04:38] Speaker 10:
Because I think I understood your answer, but I don't understand the rationale behind that answer.

[00:04:45] Speaker 10:
So if the district court doesn't consider any evidence that could potentially be suppressed,

[00:04:51] Speaker 10:
in considering the motion to strike or the sufficiency of the interrogatories, then why does the district court need to hear the motion to suppress before ruling on the standing question?

[00:05:02] Speaker 09:
So I think the point is that it doesn't depend on what the court is considering or not considering.

[00:05:07] Speaker 09:
It depends on what's actually informing the relevance.

[00:05:09] Speaker 09:
And so here, I think part of the problem is that the court wasn't thinking about the relevance issues that were expressly teed up below.

[00:05:17] Speaker 09:
So here, the amount of money

[00:05:19] Speaker 09:
seized from Mr. Porcelli is not admissible at trial or at summary judgment if the suppression motion is granted and that is going to dictate

[00:05:27] Speaker 09:
the relevant scope of discovery that can appropriately be sought from him.

[00:05:32] Speaker 10:
Well, not in every instance.

[00:05:33] Speaker 10:
Let me turn to the facts of this case.

[00:05:35] Speaker 10:
So the first response, Parcelli said, I own all of the defendant's currency, seize from the vehicle I rented, and consequently, I have and have a right to possess it and otherwise exercise dominion control over it.

[00:05:48] Speaker 10:
If the district court says that's not enough and grants a motion to compel further response, that's fine, isn't it?

[00:05:56] Speaker 10:
There's no consideration of any circumstances of the stop or any potential evidence to be suppressed.

[00:06:02] Speaker 10:
This is a purely discretionary call at that stage.

[00:06:05] Speaker 09:
So I think that that question gets at the separate question about the scope of G6 and when you can issue a G6 interrogatory.

[00:06:12] Speaker 09:
And that gets at, I think, the heart of what is standing.

[00:06:15] Speaker 09:
And standing is an Article III consideration.

[00:06:18] Speaker 09:
It's about ensuring the existence of a judicially cognizable case or controversy.

[00:06:23] Speaker 09:
And when Mr. Porcelli says, I am asserting a claim of ownership in property that was taken from me, that is the inherent nature.

[00:06:31] Speaker 09:
It's a concrete and particularized injury.

[00:06:33] Speaker 09:
He's alleging that the government took his property.

[00:06:36] Speaker 09:
That is the crime.

[00:06:37] Speaker 09:
So that's all anyone has to say.

[00:06:38] Speaker 09:
It's mine.

[00:06:39] Speaker 09:
So no, that's not all everyone has to say.

[00:06:41] Speaker 09:
And that's because there's different lanes of forfeiture cases.

[00:06:44] Speaker 09:
And so Mr. Porcelli is in the ownership of property seized from him lane.

[00:06:50] Speaker 09:
And so in that lane, what you have to show under this court's substantive standing precedence is unequivocal claim of ownership that was seized directly from you.

[00:06:59] Speaker 09:
That's a concrete injury.

[00:07:00] Speaker 09:
There is a tangible dispute between Mr. Porcelli and the government because they literally took property from him.

[00:07:06] Speaker 09:
Would that make rule G6 redundant?

[00:07:10] Speaker 09:
No, again, because there are different categories of cases.

[00:07:12] Speaker 09:
And so rule G6 is doing important work in the other two lanes.

[00:07:17] Speaker 09:
And one of those is the assertion of possessory interests.

[00:07:21] Speaker 09:
So you think G6 only applies to possessory interest and not to ownership?

[00:07:26] Speaker 09:
No, it also applies in cases where you are alleging an ownership interest in property that was not

[00:07:32] Speaker 07:
Physically seized from your possession so those are the money found at the park for example a bag of cash The rules are going to be different in a sense for that case than the case where the money is found in Someone's car exactly and so there are there are your authority for

[00:07:46] Speaker 09:
So that's this court's standing precedence.

[00:07:48] Speaker 09:
133,000, this court's decision, walks through the different lanes of standing cases and the different substantive standing principles that apply in all of them.

[00:07:58] Speaker 09:
And so in the cash found in the park lane, what you have to allege at the pleading stage is just an unequivocal claim of ownership.

[00:08:06] Speaker 09:
But at summary judgment, you have to come forward on standing to show some kind of particularized connection to the property.

[00:08:13] Speaker 09:
You have to show some

[00:08:15] Speaker 01:
Evidence of owner why can't the government ask broader questions than just a standing question and Say for example.

[00:08:22] Speaker 01:
We want to know more about the possessory interest, but it wouldn't go toward Standing it would just go perhaps to tribal to trial issues something that survives so many judgment But but the government has a right to try to seek information about that the government can absolutely Do that with the general discovery devices in the federal rules of civil procedure?

[00:08:41] Speaker 09:
They are not displaced.

[00:08:42] Speaker 09:
They are available so when you're talking about

[00:08:45] Speaker 09:
evaluating the case at summary judgment, there's going to be discovery for that purpose, and it's going to be done with depositions and subpoenas and requests for production and general interrogatories under the federal rules.

[00:08:56] Speaker 04:
If we follow or adopt your rule, would we need to overrule Lewis?

[00:09:03] Speaker 09:
No, Your Honor, our position doesn't require the court to overrule the holdings, I don't think, of any of this court's precedents.

[00:09:10] Speaker 09:
I think Lewis was the claimant in $133,000.

[00:09:17] Speaker 09:
So we think that that case has some loose language describing the scope of

[00:09:22] Speaker 09:
describing the scope of rule G6.

[00:09:25] Speaker 09:
For example, it describes it as broadly authorizing discovery.

[00:09:29] Speaker 12:
We don't think that's consistent with the text of the rule, which is, quote, limited to the relationship to property, but... When you started and you articulated these three grounds that you think this court could rule in your favor,

[00:09:43] Speaker 12:
You're now talking about scope, which, if I understand you correctly, what you're stating is that we can limit the applicability of G6 in the context of a claimant seeking ownership interest to not be applicable in the first instance because it's clear there is standing, and so G6 would be irrelevant?

[00:10:01] Speaker 09:
Right.

[00:10:02] Speaker 09:
So that's the standing point.

[00:10:03] Speaker 09:
The standing point is, insofar as G6 is about discoverability and information that goes to standing, it's not relevant and not appropriate.

[00:10:10] Speaker 09:
where standing is not a dispute.

[00:10:12] Speaker 09:
And that's our lane of case.

[00:10:14] Speaker 09:
It's not all cases.

[00:10:15] Speaker 09:
It's our lane of cases.

[00:10:17] Speaker 09:
And the reason for that is because the seizure of property from someone alleging an ownership interest is a judicially cognizable dispute.

[00:10:25] Speaker 09:
That's a concrete, particularized case or controversy.

[00:10:29] Speaker 09:
Whether Mr. Porcelli is right or wrong about who owns the property, whether it's forfeitable, those are all merits questions.

[00:10:35] Speaker 09:
They're about entitlement to relief.

[00:10:38] Speaker 09:
and are not standing questions.

[00:10:40] Speaker 03:
So can I go back to the chief's question about whether we would have to overrule Lewis?

[00:10:43] Speaker 03:
You were talking about one piece of the language, but what about footnote 5?

[00:10:48] Speaker 03:
This is the 133 case.

[00:10:51] Speaker 09:
Yes.

[00:10:51] Speaker 09:
So I don't think that footnote is a holding, because I think it's dicta.

[00:10:57] Speaker 09:
What the claimant was alleging, the argument textually that he was advancing about rule G6 there was that it only authorized

[00:11:07] Speaker 09:
discovery interrogatories about ownership and your identity.

[00:11:12] Speaker 09:
And what this court held correctly is that that can't be what rule G6 requires, because that's just rule five already requires that.

[00:11:19] Speaker 09:
So that was the actual argument that the court rejected on the scope of rule G6.

[00:11:24] Speaker 03:
But the court said that interrogatory two was proper.

[00:11:28] Speaker 03:
And interrogatory two is broader than I think what you're saying would have to be answered in a case where there's a claim of ownership and possession, which I thought was true in Lewis.

[00:11:36] Speaker 09:
All right.

[00:11:37] Speaker 09:
So when the court said that in footnote five, it was just making that statement in relationship to the particular argument that the claimant was making in that case.

[00:11:46] Speaker 09:
And so the argument was different here.

[00:11:50] Speaker 09:
So I don't think you actually have to overrule that.

[00:11:52] Speaker 09:
I think that observation is dicta.

[00:11:53] Speaker 09:
But to the extent your honors disagree and think that that case is setting a particular line in terms of the scope of rule,

[00:12:03] Speaker 11:
G6 than I think he would and should overrule it in these circumstances Other than I guess the the first interrogatory which just asked for personal identification information about him Do you think any of the other interrogatories?

[00:12:18] Speaker 11:
Directed to mr. Portelli were appropriate

[00:12:22] Speaker 09:
So no, and there's two reasons for that.

[00:12:24] Speaker 09:
One is the standing point.

[00:12:25] Speaker 09:
Standing's not reasonably in dispute.

[00:12:27] Speaker 09:
But if you go to the scope point, I mean, what all of the government's interrogatories in this case are doing is they're going at the source of Mr. Porcelli's money in his car.

[00:12:38] Speaker 09:
And that's the forfeitability question that the government has the burden of proving.

[00:12:42] Speaker 09:
That's not a standing question.

[00:12:44] Speaker 09:
And you can see that with the hypothetical of somebody owning an illegal gambling business.

[00:12:50] Speaker 09:
They make profits from that business.

[00:12:52] Speaker 09:
They own that money.

[00:12:54] Speaker 09:
They're the owner of the money.

[00:12:55] Speaker 09:
But it's forfeitable.

[00:12:57] Speaker 09:
And that's why the forfeitability analysis and where this money comes from is just not speaking to standing.

[00:13:02] Speaker 09:
But that's what all of these questions are directed at.

[00:13:04] Speaker 13:
So does the amount of cash have anything to do with the standing?

[00:13:08] Speaker 09:
So it doesn't for, I think, a couple of reasons.

[00:13:10] Speaker 13:
And one is... And if it doesn't, why do we have to do the motion to suppress before tell the court that you have to do it first?

[00:13:17] Speaker 09:
So there is a little bit of path dependency here.

[00:13:20] Speaker 09:
I think if you narrow rule G6 and you narrow the scope of standing, then I think the universe of cases, like in our case, it wouldn't be relevant at all because you wouldn't be adjudicating a motion to strike.

[00:13:31] Speaker 09:
And so then you wouldn't have to address the motion to suppress.

[00:13:34] Speaker 09:
But there are... I'm sorry.

[00:13:36] Speaker 10:
Go ahead and finish your question.

[00:13:37] Speaker 10:
Then I'll ask my next question.

[00:13:39] Speaker 09:
But in other lanes of cases, and in particular, I think this is going to do work at summary judgment with respect to

[00:13:45] Speaker 09:
people who claim an ownership interest in property that was seized not from their person, so the park cash example.

[00:13:52] Speaker 09:
And in that circumstance, it is appropriate to ask some basic questions about the relationship to the property.

[00:13:59] Speaker 09:
And I don't know that it's appropriate to ask the source of the information for the reasons I was saying before, because that's a forfeitability question.

[00:14:06] Speaker 09:
But I do think that if the amount of money is relevant, that might affect, in some sense, what's proportional, what's relevant, how much information this person is going to have to put forward at summary judgment to establish standing.

[00:14:20] Speaker 09:
And so in that lane of case where you have

[00:14:22] Speaker 09:
And this is the lane that the courts are concerned about, that people are just going to read forfeiture notices online and then come out of the woodwork and claim property that actually they have no connection to.

[00:14:33] Speaker 09:
So that you do have to come forward as summary judgment with additional evidence of ownership.

[00:14:38] Speaker 09:
That's a case where rule G6 interrogatories are appropriate.

[00:14:42] Speaker 09:
And our view of the scope of rule G6 in that category of case

[00:14:46] Speaker 09:
is that the claimant should be required to assert or allege or describe the facts that it intends to prove about its relationship that would be sufficient.

[00:14:58] Speaker 13:
Somehow I know that on a previous occasion, your client didn't challenge the forfeiture of a whole bunch of money in plastic wrappings that had to do with the FedEx case.

[00:15:09] Speaker 13:
Was that in front of the court, too?

[00:15:10] Speaker 13:
When did that come to everyone's knowledge?

[00:15:12] Speaker 09:
So that allegation is in the forfeiture complaint.

[00:15:15] Speaker 09:
So it's in the complaint.

[00:15:16] Speaker 09:
It's before the court.

[00:15:17] Speaker 09:
That goes to forfeitability.

[00:15:18] Speaker 09:
It doesn't really have anything to do with ownership.

[00:15:20] Speaker 09:
And it doesn't have anything to do with standing.

[00:15:23] Speaker 09:
And so it's just not something that's relevant at this stage of the proceedings.

[00:15:27] Speaker 10:
Let me ask you a related question to that line of questioning.

[00:15:31] Speaker 10:
To what extent, if at all, can the government test the credibility of the assertion for standing purposes?

[00:15:37] Speaker 10:
So for example, let's say it's a car stop.

[00:15:39] Speaker 10:
They find a bunch of money.

[00:15:41] Speaker 10:
We don't care how much it is.

[00:15:43] Speaker 10:
And the claimant says, this is my money and I earned it through five years of employment, the past five years of employment.

[00:15:53] Speaker 10:
And the government knows that this is an unemployed individual.

[00:15:57] Speaker 10:
Can the government then seek the answers to be supplemented with, well, who were you employed with?

[00:16:04] Speaker 10:
How much were you paid?

[00:16:05] Speaker 10:
Questions of that nature to basically test the credibility of the possessory.

[00:16:11] Speaker 10:
interest for standing purposes.

[00:16:13] Speaker 09:
Those issues are general discovery issues and they are absolutely appropriate to be resolved and explored, but they're going to be resolved and explored at the summary judgment phase with the general discovery devices.

[00:16:24] Speaker 09:
This court held in 999,000 that, you know,

[00:16:31] Speaker 09:
Conflicting evidence, prior disclaimers of ownership, none of that is relevant to standing at the pleading stage.

[00:16:37] Speaker 09:
That's all a question for summary judgment.

[00:16:39] Speaker 09:
So this is going to get litigated at summary judgment.

[00:16:42] Speaker 09:
And what I think the panel majority and the district court don't really appreciate is that G6 is not covering the waterfront at summary judgment.

[00:16:49] Speaker 09:
It is an extremely narrow device.

[00:16:51] Speaker 09:
Interrogatories are not very helpful for actually testing.

[00:16:55] Speaker 09:
the claimant's assertions.

[00:16:56] Speaker 09:
That's why you have access to a deposition where you're actually going to test what the claimant is saying if you get all the way to summary judgment.

[00:17:03] Speaker 03:
So can I ask, though, if you could ask the same questions under the normal rules instead of these G rules, is it just a labeling problem?

[00:17:11] Speaker 03:
I mean, why couldn't we construe what happened here as, OK, they got past the motion to dismiss stage, and now he wasn't responding to discovery, and so there was a discovery sanction.

[00:17:21] Speaker 03:
Why can't it be just relabeled

[00:17:23] Speaker 03:
What's the practical difference between what happened here and what I just said?

[00:17:27] Speaker 09:
I think the Fourth Amendment overlay is a really important component of the practical difference.

[00:17:31] Speaker 09:
So what the government is trying to do here is frontload as much as it can in G6 to make onerous interrogatories so that people won't answer them because it's not an appropriate discovery device at that stage.

[00:17:43] Speaker 09:
They want to put as much as they can in the front stage of the case.

[00:17:46] Speaker 09:
So that deponents claimants don't answer the questions.

[00:17:50] Speaker 09:
And then if you flip- So they lose early as opposed to lose later.

[00:17:53] Speaker 09:
No, and so then if you flip the burden of the sequencing here and you address the suppression motion early in the way the district court did here,

[00:18:00] Speaker 09:
then cases where the government should lose because they have no admissible evidence, they have no constitutionally sound evidence supporting a forfeiture, end up reaping a benefit to local and federal law enforcement agencies to the tune of a million dollars, as is the case here.

[00:18:14] Speaker 03:
And so that's- OK, so let's just hypothetically back to the-

[00:18:17] Speaker 03:
reframing relabeling question so if if the court here which I actually am not sure the court the court talked about the facts of the stop and they but the analysis was more just you didn't respond to this discovery so let's just have a hypothetical where we say we're past the motion is miss

[00:18:33] Speaker 03:
They serve the same questions, but under the regular discovery rules.

[00:18:37] Speaker 03:
He doesn't really respond.

[00:18:38] Speaker 03:
The court gives him a few warnings and says, you're going to get a discovery sanction of, without talking about the amount of money, you just haven't been responding enough to the rules, to the discovery requests.

[00:18:49] Speaker 03:
So I'm going to kick you out as a discovery sanction.

[00:18:52] Speaker 03:
Could that happen and just be relabeled?

[00:18:54] Speaker 09:
So at General Discovery, Rule 37 governs discovery sanctions, and the Rule 37 sanctions, the advisory notes and Rule G make clear, are sort of less harsh than the G6 remedy, which is supposed to be uniquely powerful and strong.

[00:19:10] Speaker 09:
because of the importance of proving standing in particular.

[00:19:13] Speaker 03:
But you could have a case terminating with warnings and everything else, which there were actually some warnings here.

[00:19:18] Speaker 03:
I mean, you could have a case terminating sanction for not responding to discovery.

[00:19:23] Speaker 09:
Sure.

[00:19:23] Speaker 09:
I think that's exactly right.

[00:19:24] Speaker 09:
And that's part of Mr. Porcelli made that argument to this district court.

[00:19:28] Speaker 09:
The government below were the people who were opposing discovery here.

[00:19:31] Speaker 09:
And Mr. Porcelli's consistent point has been, it's not appropriate to put this in G6.

[00:19:36] Speaker 09:
There's a sequencing problem.

[00:19:38] Speaker 09:
There's a scope of g6 problem.

[00:19:39] Speaker 00:
There's a standing problem These all kind of converged in this case to create if it happens in general discovery though We we have a line of cases suggesting then there's kind of a five-factor test for terminating Sanctions and so there's kind of a separate high bar there without which we would find an abuse of discretion

[00:19:58] Speaker 00:
You actually have to look beyond just the conduct and discovery and say, well, was there prejudice to the requesting party and so forth.

[00:20:08] Speaker 00:
But that didn't come up here.

[00:20:09] Speaker 00:
That would be an additional overlay in general discovery.

[00:20:12] Speaker 09:
Exactly right and again I think that's why the rule 37 sanctions it's harder for the government to get sanctions and it also the interrogatory device when you look at the interrogatories here at 68 to 79 they're burdensome and there are things that are just strange to require an interrogatory about.

[00:20:28] Speaker 09:
I mean, what the government sort of wants is bank records, and they want transaction by transaction data.

[00:20:33] Speaker 09:
And if you were in general discovery, you could respond to the interrogatory and say, you know, I'm not going to list this in this interrogatory.

[00:20:39] Speaker 09:
Please see, like, these Bates numbers of our document production.

[00:20:42] Speaker 09:
That's what you do in general discovery.

[00:20:44] Speaker 09:
And so that's the kind of thing you could do.

[00:20:46] Speaker 09:
You could say, I'm not going to, you know, it's burdensome.

[00:20:47] Speaker 09:
It's not proportionate for me to actually answer this question by listing this all out.

[00:20:51] Speaker 09:
I'm going to give you the relevant document.

[00:20:53] Speaker 12:
And that's not something that is a- Under the hypothetical that Judge Friedland presented,

[00:20:58] Speaker 12:
And assuming you know that there had been an early this this would have happened in an earlier motion to dismiss stage and then there was discovery under the normal discovery rules as opposed to g6 your position is still that there needs to be a Resolution of the motion to suppress before discovery sanction is entered.

[00:21:16] Speaker 09:
Yes, absolutely So my understanding of the hypothetical was that there wasn't a suppression motion pending but absolutely the suppression of

[00:21:22] Speaker 12:
needs to be decided before summary judgment merits obviously because it's going to affect the universe of admissible evidence at summary judgment.

[00:21:41] Speaker 09:
need this court to address the sequencing issue yes the sequencing question is really critical and I think it's it's again I think that can the confluence of errors here create a perfect storm of creating a really terrible incentive but a lot of this derives from the suppression motion and the subordination of Mr. Porcelli's Fourth Amendment rights to the discovery sanction and again you know the there the the suppression motion is analytically antecedent to

[00:22:07] Speaker 09:
the motion to strike, because what evidence is appropriately requested for Mr. Porcelli is going to depend on the resolution of the motion.

[00:22:16] Speaker 09:
And again, the income example the majority of the panel used proves the point, because that information is totally irrelevant.

[00:22:24] Speaker 09:
It can't be admitted at summary judgment or at trial if the suppression motion is granted.

[00:22:30] Speaker 09:
And so it's wholly irrelevant.

[00:22:31] Speaker 09:
And it would be error for the court to issue a terminating sanction and kick Mr. Porcelli out of court

[00:22:37] Speaker 09:
failing to provide a relevant and there's no way to carve all that out and just focus on on the on the motion to strike so there is so I think the three issues sequencing scope standing the court could address any one of them so the scope issue

[00:22:53] Speaker 09:
would also resolve.

[00:22:54] Speaker 09:
If you just found that he complied with rule G6, that removes the case.

[00:22:58] Speaker 04:
In your view, standing equals ownership or ownership equals standing?

[00:23:03] Speaker 09:
So standing is distinct from ownership or the existence of a property interest.

[00:23:09] Speaker 09:
The existence of a property interest is an inherent aspect of all property claims.

[00:23:13] Speaker 09:
It's not specific.

[00:23:14] Speaker 09:
to this kind of civil forfeiture action.

[00:23:17] Speaker 09:
Claimants, plaintiffs asserting property rights have to prove the property right.

[00:23:21] Speaker 09:
That's a merits issue.

[00:23:23] Speaker 09:
Standing is separate.

[00:23:25] Speaker 09:
It's about if your claim is true, are you injured?

[00:23:28] Speaker 09:
And so you think about Luhan.

[00:23:29] Speaker 09:
You think about organizational standing.

[00:23:31] Speaker 09:
Even if you're right on the merits, even if you prove your case, you're just not injured because the merits have nothing to do with you.

[00:23:37] Speaker 09:
That's not what this is about.

[00:23:39] Speaker 09:
This is if you are right that the government took your property, you're claiming ownership.

[00:23:43] Speaker 09:
This is a judicially cognizable dispute in this lane of cases.

[00:23:49] Speaker 09:
And so in the ownership case where the property was seized from a public park or from a UPS warehouse or something like that,

[00:23:59] Speaker 09:
There is more of a complete overlap.

[00:24:02] Speaker 09:
There's no particularization to you.

[00:24:04] Speaker 09:
The property wasn't taken directly from you in the same concrete way.

[00:24:08] Speaker 09:
So there's more of an overlap there.

[00:24:09] Speaker 00:
On the sequencing point, so 8A, any party with Fourth Amendment standing can move to suppress.

[00:24:20] Speaker 00:
Do you take that?

[00:24:21] Speaker 00:
Let me know.

[00:24:24] Speaker 00:
Is that just an intervener?

[00:24:25] Speaker 00:
There's some disconnection there, right?

[00:24:26] Speaker 00:
In other words, the motion to suppress is under the rule separate from any question of standing.

[00:24:34] Speaker 00:
Does that support your sequencing point that not just grammatically, but logically 8A and 8B are kind of independent and one follows the other?

[00:24:43] Speaker 09:
Right.

[00:24:43] Speaker 09:
So they are independent.

[00:24:45] Speaker 09:
Fourth Amendment standing is different than Article III standing.

[00:24:48] Speaker 09:
So Fourth Amendment standing is about your relationship, your privacy in the searched object.

[00:24:54] Speaker 09:
So here it's about Mr. Porcelli's relationship to the rental car.

[00:24:57] Speaker 09:
It's not about his relationship to the money.

[00:25:01] Speaker 09:
And so, for example,

[00:25:02] Speaker 09:
You have money, and you've lent it to a friend, and it's in their house, and then their house is unlawfully searched.

[00:25:08] Speaker 09:
You don't have standing to contest the search of their house.

[00:25:11] Speaker 09:
That's the Fourth Amendment overlay, and it has nothing to do with your ownership interest or your property interest.

[00:25:17] Speaker 00:
So why should the merits of that suppression motion turn on whether the claimant has standing?

[00:25:21] Speaker 00:
They're just different questions.

[00:25:23] Speaker 09:
So they're different questions.

[00:25:24] Speaker 09:
There's Article III standing, Fourth Amendment standing.

[00:25:26] Speaker 09:
Fourth Amendment standing isn't in dispute here.

[00:25:29] Speaker 09:
Everyone agrees Article III standing

[00:25:31] Speaker 09:
is the irreducible constitutional minimum to have a dispute adjudicated.

[00:25:35] Speaker 09:
Everyone agrees it's satisfied at the pleading stage.

[00:25:39] Speaker 01:
But just to put a finer point, the moment that Mr. Porcelli asserted that he had an ownership interest in the property that was seized from him, that was sufficient to establish standing.

[00:25:51] Speaker 01:
And the court needed to have gone to the motion of suppression, to the motion to suppress issue next.

[00:25:57] Speaker 09:
Yes.

[00:25:57] Speaker 09:
So on the sequencing point, we agree there needs to be pleading stage Article 3 standing to consider the motion.

[00:26:04] Speaker 09:
That's just Lujan.

[00:26:05] Speaker 09:
But once you have made an unequivocal claim of ownership, that satisfies the pleading stage requirement.

[00:26:10] Speaker 09:
And then you need to adjudicate the suppression motion.

[00:26:13] Speaker 01:
Exactly.

[00:26:13] Speaker 01:
Is there any case?

[00:26:15] Speaker 01:
I know, you know, the Seventh Circuit case, 239,000, I recall, I think the District Court had addressed a Fourth Amendment legality of the search issue before it went on to deal with issues about discovery, you know, responses and summary judgment on standing.

[00:26:32] Speaker 01:
Is there a case like this that has resolved a claim where there was a pending Fourth Amendment issue that was not resolved?

[00:26:41] Speaker 09:
So I'm not sure that I'm familiar with a particular case that involves these specific sequencing facts.

[00:26:47] Speaker 09:
I mean, the parties don't identify them in their briefs.

[00:26:49] Speaker 09:
And I think we haven't otherwise found them.

[00:26:51] Speaker 09:
But I think the principle is twofold.

[00:26:52] Speaker 09:
One is about the supremacy of the Fourth Amendment.

[00:26:55] Speaker 09:
One is, again, the analytical necessity of evaluating this first.

[00:27:00] Speaker 09:
You just can't decide that Mr. Porcelli's annual income is relevant and required unless you know whether or not the amount of money is going to be seized.

[00:27:07] Speaker 09:
And so that's, I think, the analytical independence

[00:27:10] Speaker 09:
is doing, the analytical dependence is doing the work on that point.

[00:27:15] Speaker 03:
So if it went in the right sequence according to you and he won the suppression motion, would he have to respond to any discovery?

[00:27:22] Speaker 09:
So if he won the suppression motion, I mean usually what happens at that stage is you either move to dismiss the forfeiture complaint because it's founded on inadmissible and suppressed evidence or you do a summary judgment motion on that point or

[00:27:35] Speaker 09:
Frankly, the government usually just drops the case and dismisses the claim.

[00:27:38] Speaker 09:
So you don't have to submit yourself to discovery in that case, because the entire forfeiture action is the fruit of the poisonous tree at that point, unless the government has independent evidence, which it doesn't have here.

[00:27:50] Speaker 10:
In seeking that independent evidence, can the government propound additional discovery?

[00:27:55] Speaker 09:
So I think the scope of the exclusionary rule here is not really briefed.

[00:28:00] Speaker 09:
And I think it's not really well developed in the law.

[00:28:02] Speaker 09:
I don't know that it could.

[00:28:03] Speaker 09:
I don't know that the government could leverage suppressed evidence to unlawfully initiate this action and then leverage that to take discovery.

[00:28:12] Speaker 09:
I think that would all be tainted by the search, unless there was sort of pre-existing independent evidence.

[00:28:18] Speaker 09:
I think that's how the fruit of the poisonous tree doctrine would work out here.

[00:28:21] Speaker 09:
They can't use discovery to remove the taint.

[00:28:24] Speaker 09:
of the proceeding that was wrongfully initiated.

[00:28:26] Speaker 09:
But that's not briefed, and I don't know that it's really developed in the law in this context.

[00:28:31] Speaker 04:
Do you want to reserve the balance?

[00:28:33] Speaker 09:
Yes, please.

[00:28:55] Speaker 08:
May it please the court, Mina Chang for the government.

[00:28:58] Speaker 08:
This is a case about the appellant's calculated refusal to engage in aspects of litigation when it was not helpful to him.

[00:29:05] Speaker 08:
And the district court was within its discretion to ultimately strike his claim when the appellant made clear that he would not comply with these orders.

[00:29:13] Speaker 08:
This court, as well as other circuits, have recognized that there's a higher risk of false claims in civil forfeiture proceedings.

[00:29:20] Speaker 08:
And consistent with that understanding, Congress authorized the government to investigate claims

[00:29:24] Speaker 08:
and claimants assertions through these G6 interrogatories, and they require claimants as well to respond to them.

[00:29:32] Speaker 08:
And if claimants do not respond, then the district court has a discretion to strike these claims.

[00:29:36] Speaker 13:
Well, is there a scope?

[00:29:38] Speaker 13:
You know, Rule G6 allows for interrogatories limited to the claimant's identity and relationship to the defendant's property.

[00:29:45] Speaker 13:
What are the limits to the scope of this inquiry in your view?

[00:29:50] Speaker 13:
Yes, Your Honor.

[00:29:51] Speaker 13:
And why wasn't this beyond that?

[00:29:54] Speaker 08:
So the interrogatories that the government is allowed to issue in this case are narrowly tailored to the question of whether Regarding the claimant's identity and his relationship to the property that was seized so counsel if I could jump in question for Interrogatory for state whether you ever been convicted of any criminal offense and if so provide information for each offense How is that relevant to standing in this case?

[00:30:18] Speaker 08:
In this event it would go to Mr. Porcelli's identity and whether he has a relationship to the property which he initially claimed was not his it was somebody else's or that he was carrying it.

[00:30:29] Speaker 07:
Whether he's been convicted of jaywalking in the past would shine light on that?

[00:30:36] Speaker 08:
It would be relevant in terms of establishing who this person is and whether for example his character or his history has indicated anything that leads to

[00:30:46] Speaker 08:
the government identifying him with the property that he was found with.

[00:30:51] Speaker 13:
It sounds like you're evaluating credibility.

[00:30:56] Speaker 08:
Less so credibility and more so a potential item of identity.

[00:31:00] Speaker 08:
But to that end, in this case, Mr. Portelli's argument for why he should not be answering these interrogatories were not about the language of these interrogatories so much as he said that his assertion was that whether he had

[00:31:13] Speaker 12:
Standing at pleadings would be sufficient to answer every single interrogatory and that would be determined that Mr. Porcelli's claim of ownership based on the fact that the money was seized from him and his car

[00:31:28] Speaker 12:
was sufficient to establish standings and thereby limiting the scope, I think, as your friend on the other side suggested, of G6 applicability in the first instance, if we were to hold as much, would we need to overrule any of our precedent in concluding that G6 is limited in that way?

[00:31:48] Speaker 08:
I apologize, Your Honor.

[00:31:49] Speaker 08:
Would you be able to rephrase?

[00:31:50] Speaker 12:
Sure.

[00:31:51] Speaker 12:
So your friend on the other side is asking this court to expressly limit the applicability of G6 in cases where there is when we're in this lane of a claim that is made based on an ownership interest from money that was obtained directly from the person.

[00:32:11] Speaker 12:
Thereby, standing is not reasonably in dispute.

[00:32:14] Speaker 12:
The standing is established based on the facts and circumstances of the way that this money was possessed or obtained.

[00:32:21] Speaker 12:
So in that way, if we were to then say G6 couldn't be used as a vehicle for obtaining standing discovery because it's so clear it's not reasonably in dispute that this individual who's making the claim has standing, would that require us to overrule any of our prior cases?

[00:32:38] Speaker 08:
Yes, Your Honor, because it is insufficient to simply state that you have standing at the pleadings stage.

[00:32:46] Speaker 08:
The interrogatories?

[00:32:47] Speaker 12:
That's not exactly the facts of this case.

[00:32:49] Speaker 12:
It's not simply that he's asserting that he has standing or I own the money.

[00:32:53] Speaker 12:
There are other facts that establish that the money belongs to him, including the fact that it was seized directly from him and his vehicle.

[00:33:02] Speaker 08:
Yes, but there is a reasonable dispute as to a standing.

[00:33:06] Speaker 08:
The government has also asserted that the government believes that perhaps Mr. Portelli could prove at the pleadings stage, but that anything beyond that, the government... Well, if there's a dispute about standing, then isn't that assessing credibility?

[00:33:19] Speaker 13:
He says it's mine.

[00:33:22] Speaker 08:
The government is not obligated to accept on face what the defendant is saying or what the claimant is saying.

[00:33:28] Speaker 13:
So you're saying you don't believe him.

[00:33:29] Speaker 08:
So it is a credibility issue less so credibility and more so that the interrogatories are a tool that enables the government to separately Validate or to separately identify whether his statements are what he say them to be that seems like credibility That is credibility what you are saying listen to yourself.

[00:33:49] Speaker 04:
Is there any information that You saw via rule g6 interrogatory interrogatories that you could not have

[00:33:59] Speaker 08:
Sought through the usual discovery process no there is an overlap and I believe that the reason why these interrogatories are particularly salient is that The government is able to test this early on in litigation and so for example the district court Determined that in these instances were standing or there's reasonable dispute about standing and would have to evaluate it at a later stage It would be more judicially economical if he already had standing and

[00:34:28] Speaker 04:
and are already established as standing, why do you need more information at this point in the proceedings?

[00:34:35] Speaker 08:
The government did not agree that Mr. Portelli had standing and that was up to reasonable dispute.

[00:34:42] Speaker 08:
And so to the extent that the government was entitled to then seek discovery in order to ensure that they were able to rely on this information, to that extent the interrogatories would be.

[00:34:54] Speaker 01:
Do you not, tell me what you think is the appropriate standard for evaluating standing, because many circuit courts have said, you know, to borrow your friend on the other side's argument,

[00:35:05] Speaker 01:
If you're in this particular lane of claiming ownership over property that has been seized by law enforcement against them in particular, that is enough to establish standing in different circuit courts, including some of our prior cases.

[00:35:19] Speaker 01:
Are you suggesting a different standard?

[00:35:21] Speaker 01:
Are you making an argument that something more needs to be established to establish standing?

[00:35:27] Speaker 08:
Well, standing is evaluated at different stages of the litigation.

[00:35:31] Speaker 08:
And so these interrogatories would enable the government to seek discovery.

[00:35:35] Speaker 13:
for example at the tribal stage and so... But you can go from one to the other and I think what people are saying is why didn't what he said establish standing and then move to the discovery and then you get to ask other questions and then move to whether the government can prove by the proponents of the evidence that it's ill-gotten goods.

[00:35:59] Speaker 13:
It's why do you get to conflate all of that in the first part?

[00:36:03] Speaker 13:
It's easy to throw things out right out the gate.

[00:36:05] Speaker 13:
I understand it's easy, but you got called out on you're not doing it in the right order.

[00:36:11] Speaker 13:
You're conflating things.

[00:36:14] Speaker 08:
Well, I think the first part, specific to this case, even if we did take, for example, the motion for suppression first and evaluated that, that actually doesn't end this case.

[00:36:26] Speaker 08:
Because the rule G6 actually requires that

[00:36:30] Speaker 08:
The government is able to issue these interrogatories and is not required to answer a motion to dismiss.

[00:36:36] Speaker 13:
Is the amount of money, does it matter, in the first part of standing?

[00:36:41] Speaker 13:
Was that considered in the first part of standing?

[00:36:43] Speaker 08:
It can be, but in this case, that's not what the district court ultimately determined was problematic about his responses to the interrogatories.

[00:36:50] Speaker 13:
All right.

[00:36:51] Speaker 13:
So if that wasn't considered, then you could do the motion to suppress later.

[00:36:55] Speaker 08:
Yes, Your Honor.

[00:36:56] Speaker 13:
Is that your argument?

[00:36:57] Speaker 13:
I don't want to make it for you.

[00:37:00] Speaker 13:
But if it was considered, if that was part of the reason of whether or not he had standing, shouldn't you do the motion to suppress first?

[00:37:11] Speaker 13:
To decide if that's going to be suppressed or not?

[00:37:13] Speaker 13:
Because if it's suppressed, then you can't bring up the amount of money, right?

[00:37:17] Speaker 08:
I think this case is distinguishable insofar as there was no determination about standing or standing was not a... Okay, so does the amount of money have anything to do with standing here?

[00:37:27] Speaker 08:
In this case, the government would argue that what was important for the district court and ultimately in granting the motion to strike was that he was evasive and distinct.

[00:37:40] Speaker 08:
So it was less about the inconsistencies between what the government could- I guess I'm getting frustrated because I don't understand why you can't answer that question.

[00:37:50] Speaker 13:
Was the amount of money relevant to the standing inquiry in this case?

[00:37:56] Speaker 08:
Not in this case, Your Honor.

[00:37:58] Speaker 11:
So under the ordinary discovery rules, we've said that there's five factors that the district court has to consider before imposing a case terminating discovery sanction.

[00:38:10] Speaker 11:
And the court also has to find that there was willfulness or fault or bad faith.

[00:38:16] Speaker 11:
Do you think that those principles apply to G6 interrogatories?

[00:38:21] Speaker 08:
To some degree but in the event that for example the district court provides different opportunities, and you have an recalcitrant Litigant for example then the district court can weigh certain factors again, okay, but the district court here didn't or at least I certainly know I mean you can say he was recalcitrant and

[00:38:42] Speaker 11:
Maybe he was, but the district court didn't make a finding of willfulness or bad faith.

[00:38:47] Speaker 11:
There's no discussion of how you were prejudiced or any of the other factors.

[00:38:51] Speaker 11:
Is there?

[00:38:53] Speaker 08:
Your Honor, I think this goes to why Congress imposed or permitted the government to file a motion to strike.

[00:39:01] Speaker 08:
And then the court would then have the discretion to evaluate whether it would be an appropriate measure.

[00:39:07] Speaker 08:
And I think it goes.

[00:39:07] Speaker 11:
There's no question about that.

[00:39:09] Speaker 11:
The court has the discretion to do that.

[00:39:11] Speaker 11:
But the question is what factors

[00:39:12] Speaker 11:
How is that discretion supposed to be guided?

[00:39:14] Speaker 11:
And we've said, and I understood you to agree a moment ago, that the district court in this context is supposed to do the analysis under the five factors.

[00:39:25] Speaker 11:
It doesn't seem like it did.

[00:39:26] Speaker 11:
So why isn't that, just on the face of the order, an abuse of discretion?

[00:39:32] Speaker 08:
In this case, because the rule authorizes the district court to do so, and in particular because issues

[00:39:38] Speaker 08:
regarding civil forfeiture, particularly rife with unmeritorious claims, that this is a process of the district court being able to expeditiously call out unmeritorious claims.

[00:39:50] Speaker 08:
And so in that regard, perhaps it requires the district court less consideration in terms of walking through the factors.

[00:39:58] Speaker 08:
But again, it appears that the district court ultimately decided that in this case, it was less about

[00:40:06] Speaker 08:
In this case, it was not particularly about standing or this rule, but the ruling was specifically because the litigant was being evasive and wasn't responding.

[00:40:16] Speaker 01:
Can I ask about that?

[00:40:19] Speaker 01:
He served discovery requests on the government.

[00:40:22] Speaker 01:
and the motion to suppress also went to the issue of the legality of the search.

[00:40:28] Speaker 01:
And the government was never required to answer any of those questions or produce any information or records or any type of discovery related to that.

[00:40:37] Speaker 01:
If this case is, as you're suggesting, boiling down to recalcitrance, should the district court have considered that there was recalcitrance on both sides, that there was never any response by the government in terms of any of this information as to the conduct of the search itself?

[00:40:53] Speaker 08:
No, your honor, because the district court's decision to stay discovery was not based off of the government gets priority, but rather because the district court identified that standing was going to be at issue regardless of what stage.

[00:41:05] Speaker 08:
And so because it was a threshold dispositive issue, the district court ultimately decided that it would handle.

[00:41:11] Speaker 08:
the issue of standing and interrogatories in that regard first.

[00:41:15] Speaker 02:
Can I ask you to clarify, are you actually contesting that at the motion to dismiss stage, it's not enough to say I'm the owner and it was taken from my possession?

[00:41:25] Speaker 08:
No, Your Honor.

[00:41:25] Speaker 02:
In this case, that would satisfy the pleading standard.

[00:41:29] Speaker 02:
And so he had standing at the pleading stage.

[00:41:32] Speaker 08:
Yes, Your Honor.

[00:41:33] Speaker 02:
So I'm not sure I understand what you mean when you keep saying standing was contested.

[00:41:37] Speaker 08:
Because by the phase that we reach discovery, we are past the pleading stage.

[00:41:41] Speaker 08:
And at that point, it's the mechanism through which the government is now testing whether these allegations are true.

[00:41:49] Speaker 04:
You are in discovery.

[00:41:52] Speaker 04:
This was under G6.

[00:41:53] Speaker 04:
Am I incorrect on that?

[00:41:54] Speaker 04:
This happened at G6 before.

[00:41:56] Speaker 04:
before discovery started.

[00:41:58] Speaker 08:
Yes, Your Honor.

[00:41:59] Speaker 08:
Maybe I'm conflating the terms, but rather that these limited interrogatories are a process for which the government can collect evidence and then also pursue.

[00:42:07] Speaker 06:
But you conceded standing.

[00:42:11] Speaker 04:
So if you say that he had standing at this stage, and I'm not sure I understand.

[00:42:17] Speaker 08:
I apologize, Your Honor, maybe.

[00:42:18] Speaker 08:
I didn't mean that he had standing.

[00:42:20] Speaker 08:
The government did not concede that he could.

[00:42:22] Speaker 06:
You just said that he had standing at the pleading stage.

[00:42:27] Speaker 06:
at this point because he said the money was his and it was directly taken from him.

[00:42:33] Speaker 08:
That was sufficient to satisfy the pleading standard, but then the next stage in which the parties were facing would be either for the government to move to strike or to convert into a motion for summary judgment.

[00:42:44] Speaker 06:
So the next stage would be discovery.

[00:42:47] Speaker 06:
And then the government should have to use the general discovery rules, not the specific testing standing discovery rules.

[00:42:57] Speaker 08:
The special interrogatories were devised particularly because in civil forfeiture there would be... You're beyond that.

[00:43:03] Speaker 06:
You're beyond that because you're at the pleading stage.

[00:43:07] Speaker 06:
You can see the head standing under Ninth Circuit law.

[00:43:12] Speaker 06:
And so you're at the next stage now.

[00:43:16] Speaker 06:
And so G6 doesn't even apply because that rule is for testing standing and identity.

[00:43:24] Speaker 06:
But you conceded at that point, you already had it.

[00:43:27] Speaker 06:
So next stage, general discovery, right?

[00:43:30] Speaker 08:
Not quite.

[00:43:32] Speaker 08:
I believe that there's an interim period because, for example, the claimant can't file a motion to dismiss until the government is able to issue these interrogatories and then the government then has time to respond to, for example, a motion to dismiss.

[00:43:45] Speaker 00:
But there wasn't a motion to dismiss pending.

[00:43:49] Speaker 00:
I mean, the ball might have been in the claimants' court.

[00:43:52] Speaker 00:
But you've said several times that standing was disputed.

[00:43:57] Speaker 00:
But it seems that the remedy there would be the government's motion for summary judgment, which I think you'd concede you'd lose because there is a dispute as to standing at the summary judgment stage.

[00:44:07] Speaker 00:
So why should the government be able to get that relief in this different way?

[00:44:13] Speaker 08:
I don't believe that the government conceded that the claimant would have survived a motion for summary judgment, but rather that this is a tool to quickly call out in the beginning whether he would be able to ultimately be successful and also to litigate standing issues on the front.

[00:44:31] Speaker 12:
The G6 can only be used as a tool to evaluate standing early, not the merits of the claim.

[00:44:39] Speaker 12:
Yes, your honor, and so this would be a process for the government to then take this as a lead to then pursue additional investigation as to whether... You're conceding that standing was not reasonably in dispute, but G6 was used as a mechanism to obtain additional information, or in your words to get a lead on information that would help the government in its ultimate claim on the merits.

[00:45:05] Speaker 08:
No, Your Honor.

[00:45:06] Speaker 08:
The language of G6 states that the government is able to issue these at any point after the claim has been filed and before the close of discovery.

[00:45:15] Speaker 12:
But for a purpose.

[00:45:15] Speaker 12:
I think you're missing sort of a critical part of G6, which is not that it can just be filed at any point early, but for the purpose of establishing standing.

[00:45:25] Speaker 12:
But when standing is not reasonably in dispute, as I think you've acknowledged now a number of times because of the circumstances

[00:45:32] Speaker 12:
of this case and the assertion, which under our case law is sufficient to establish standing, that he owned the money, then it can't be used in the way that the government is using it.

[00:45:45] Speaker 08:
Because standing has to be, there are different levels of proof in terms of standing.

[00:45:49] Speaker 13:
Well, I think what, because you keep backing up, what comes out is every time there's a pushback on it, you keep backing up, you just want to end this early.

[00:45:58] Speaker 13:
And there's a process to end it.

[00:46:00] Speaker 13:
And if the first part on G6 is determined standing, that doesn't mean you don't get to do discovery, but it doesn't mean G6 can be used as discovery.

[00:46:10] Speaker 13:
Would you concede that?

[00:46:12] Speaker 13:
There's G6, there's discovery, there's summary judgment.

[00:46:16] Speaker 13:
Of course, everyone would love to go in court and win on the first day.

[00:46:19] Speaker 13:
And I'm not saying Mr. Porcelli is going to win, okay.

[00:46:25] Speaker 13:
when you say there is standing in the pleading, then you move to discovery.

[00:46:29] Speaker 13:
But then you're saying, oh, no, no, we get to do discovery under G6.

[00:46:34] Speaker 13:
So you're not making me feel relaxed that you understand that there are separate processes that you just want to do it all at the beginning and when the first day you're there.

[00:46:47] Speaker 08:
It's more so because of the nature of frivolous claims or unmeritorious claims that G says could be used, not necessarily.

[00:46:56] Speaker 13:
But you don't doubt the car.

[00:46:58] Speaker 13:
The money was in his car, the car that he was driving, and he says it's my money.

[00:47:04] Speaker 13:
So that isn't really that.

[00:47:08] Speaker 13:
There's not really any dispute about that, right?

[00:47:12] Speaker 08:
Yes, your honor and that goes to his level of pleading what he needs to show at the pleading stage and I understand your honors argument that this Should that potentially that this is only a tool that could that could apply at the pleading stage But that would obviate why the language would it's Good if you want to finish that but I wanted to just ask even if we assume your view that

[00:47:38] Speaker 04:
How much more did he need to state in his interrogatory to satisfy the government?

[00:47:45] Speaker 08:
Not necessarily the government, but what the district court's language makes clear is that it wasn't the issue was that he was being evasive and Indistinct so it was less about the volume.

[00:47:55] Speaker 04:
So what did he what what I'm just curious.

[00:47:58] Speaker 04:
What would in your view have satisfied?

[00:48:01] Speaker 04:
the inquiry the interrogatory Your honor for example

[00:48:07] Speaker 08:
He claims that he has full ownership over the seized money.

[00:48:09] Speaker 08:
And then with response to interrogatory number six, for example, he's referring to vague time frames, rough estimates, without providing disaggregation in terms of where this money is.

[00:48:24] Speaker 08:
Coming from he's stating that this money is based off of projects for work that he did, but he's not identifying the different projects.

[00:48:31] Speaker 13:
That's why he ultimately loses.

[00:48:33] Speaker 13:
That's why when you have the burden of the preponderance of the evidence, that's how you show that that's not how he earned the money.

[00:48:39] Speaker 13:
It's not how he shows he has standing.

[00:48:42] Speaker 13:
That's why he loses later.

[00:48:45] Speaker 08:
Perhaps, but in this situation, I believe that the district court ultimately determined that it was his unresponsiveness to the interrogatories rather than his lack of standing.

[00:48:53] Speaker 07:
So if there was a spreadsheet you're saying, saying I worked on this movie for Disney and this movie for Amazon, then all of a sudden the case changes?

[00:49:01] Speaker 07:
No, Your Honor.

[00:49:01] Speaker 07:
That's what this case turns on?

[00:49:03] Speaker 08:
I think that in this very specific case, it was less so that, but because he intentionally crafted his responses to the interrogatories in a way that essentially made it impossible for the government to then follow up.

[00:49:15] Speaker 08:
He thumbed his nose at the district court.

[00:49:17] Speaker 07:
But he says right here, he lists his IMDB page, which lists every movie project he's worked on.

[00:49:22] Speaker 07:
That's pretty extensive.

[00:49:23] Speaker 07:
Couldn't you then gone and looked at every single movie he'd worked on and followed up there?

[00:49:27] Speaker 07:
Why isn't that enough?

[00:49:29] Speaker 08:
It would be impossible for the government to reverse engineer.

[00:49:31] Speaker 08:
For example, he links his IMDB page, but he doesn't list what projects he worked on or whether even the source of his money that he received from working on the list, for example, of IMDB, links to the seized money.

[00:49:43] Speaker 13:
Couldn't you take a deposition in the discovery stage?

[00:49:46] Speaker 08:
Yes, your honor, but that would obviate the need for g6 interrogatories.

[00:49:51] Speaker 07:
The purpose of the g6 interrogatory is to establish standing.

[00:49:55] Speaker 07:
Now, to establish standing, you have to go back and go back to every single movie project you worked on and list exactly what you did and exactly where the movie was filmed and exactly what you got paid to establish standing?

[00:50:08] Speaker 08:
I believe that it's more instructive to

[00:50:11] Speaker 08:
To see for example the central district of California's case United States versus two hundred and ninety five thousand seven hundred and twenty six dollars and there it was the problem was that the claimant had provided incomplete and invasive answers and for example he listed Citibank or

[00:50:29] Speaker 12:
But that discovery sanction only comes into play if G6 is an appropriate tool to be using in the first instance.

[00:50:35] Speaker 12:
I mean, your argument is circular in the sense that you keep pointing to the discovery violation for failure to adequately respond to the G6 interrogatories, but if that mechanism is not proper to use in the first instance because you're not actually testing standing,

[00:50:52] Speaker 12:
then I don't understand how we can keep looking at the failure to respond to an interrogatory that wasn't properly promulgated.

[00:51:00] Speaker 08:
If all that was required, it would essentially obviate the point of G6 to ask anything beyond, did you own the money and did you have, did you own the money or was it yours?

[00:51:12] Speaker 01:
Council, what you're proposing is the government can always say, you know, this is not adequate enough and you can end every single case that way.

[00:51:20] Speaker 01:
Because it seems, you know, why wouldn't the government have an incentive to say, no, you know, that's an insufficient answer, and because we're doing this through G6, we move to strike and end it.

[00:51:30] Speaker 01:
At what point does something become sufficiently detailed enough in order to survive for standing purposes, getting to a later stage of the proceedings?

[00:51:41] Speaker 08:
I believe that in this case, it would be the government's ability to reasonably and independently verify.

[00:51:47] Speaker 08:
But ultimately, regardless of what the government believes satisfies the interrogatory response, it's ultimately the district court that makes that determination.

[00:51:58] Speaker 08:
And the district court would be in the best situation in this case to make that determination of whether it was satisfied.

[00:52:03] Speaker 01:
But not if we conclude that the district court is abusing its discretion because it's shifting the burden onto Mr. Porcelli

[00:52:10] Speaker 01:
to prove up his case and say, I'm the legitimate owner of this property as opposed to the government's burden of proving by a preponderance or the evidence that this has been rightfully forfeited.

[00:52:22] Speaker 01:
And so I think that's, you know, and if it's all washed through a discovery response process, it seems that the government would have carte blanche to always call something inadequate.

[00:52:31] Speaker 01:
What is the limiting principle you would apply to make sure that abuse doesn't happen?

[00:52:37] Speaker 08:
In the first instance, the district court is in the best position, but also because these interrogatories are limited specifically to the claimant's relationship to the property.

[00:52:47] Speaker 13:
So, for example... Okay, I admit, looking at this, I have probably $40 in my wallet, okay?

[00:52:57] Speaker 13:
I don't have a million plus in wrapped paper in my car.

[00:53:02] Speaker 13:
Okay, very suspicious.

[00:53:05] Speaker 13:
But on the other hand, I do have, I could show standing it's my wallet.

[00:53:11] Speaker 13:
Then it moves to the next stage of discovery.

[00:53:14] Speaker 13:
And you can ask me, where did I get the money that I put in my wallet?

[00:53:18] Speaker 13:
And then the government can, and then if I show, okay, this is where I got it, then you can prove that you can put in the evidence that another time he had a whole bunch of money in plastic with FedEx and all of that.

[00:53:31] Speaker 13:
and at the end of it.

[00:53:32] Speaker 13:
But just because it's all suspicious at the pleading stage, and we don't want judges to look at and say, oh, that's suspicious, and I'm just going to jump ahead and knock you out of court right here.

[00:53:43] Speaker 13:
That seems like what you're asking.

[00:53:46] Speaker 13:
You want the money, but without the process.

[00:53:50] Speaker 13:
And you probably can win.

[00:53:51] Speaker 04:
Doesn't that go against CAFRA reform?

[00:53:56] Speaker 04:
It seems like, as Judge Sanchez, Judge Callahan pointed out, the burden should be on the government.

[00:54:04] Speaker 04:
to establish, do you agree it is on the government ultimately to establish my preponderance of the evidence that this was tied to drug, some sort of unlawful drug activity?

[00:54:16] Speaker 04:
And so here, by doing it this way, it's impossible, even though there may have been an unlawful search, that this case is thrown out at this stage because of this additional sort of information that I'm having trouble

[00:54:33] Speaker 04:
figuring out where it's authorized or what, how, on what basis you're asking for that additional information, especially at this stage of the proceedings and the case is even out before there's a motion to dismiss.

[00:54:47] Speaker 08:
Because parties have to show at different stages what level of, the appropriate level of standing, and if they can't show that, even if, for example, a defendant won a motion to suppress purely on the basis of an unauthorized search, if he doesn't demonstrate that he has standing at that stage, or subsequently.

[00:55:05] Speaker 00:
Well, Ms.

[00:55:05] Speaker 00:
Chang, on that, I guess, to take you to the sequencing place, 8A doesn't require, 8A says, if you've got standing, if you've got Fourth Amendment standing, you can move to suppress.

[00:55:17] Speaker 00:
8b requires standing to contest the forfeiture.

[00:55:20] Speaker 00:
So you're worried about frivolous cases, but any party can intervene and move to suppress, not just the claimant.

[00:55:32] Speaker 00:
So why doesn't the motion to suppress necessarily precede any further inquiry into the claimant's standing?

[00:55:42] Speaker 08:
Because the district court still has to determine whether somebody has article three standing right, but the but that's been determined.

[00:55:49] Speaker 00:
I think we've all conceded the claimant had article three standing at the pleading stage and and after that anyone.

[00:56:01] Speaker 00:
who has Fourth Amendment standing, and Fourth Amendment standing isn't contested here.

[00:56:04] Speaker 00:
So we have Article III standing uncontested for the pleading stage, Fourth Amendment standing uncontested.

[00:56:12] Speaker 00:
Why doesn't he get his suppression motion decided before turning back to his standing?

[00:56:22] Speaker 08:
In this case, the courts had

[00:56:24] Speaker 08:
Ultimately decided that because if they had to address standing at any later stage if they were to address it earlier on it would.

[00:56:32] Speaker 00:
it would be then the... But if he doesn't move to, there is no pending motion to dismiss the forfeiture action at this point, right?

[00:56:43] Speaker 00:
So that next stage is summary judgment after normal discovery.

[00:56:46] Speaker 00:
8A, right, or G8A provides for a motion to suppress early on, regardless of the claimant's standing to contest forfeiture.

[00:56:59] Speaker 00:
They're just separate provisions.

[00:57:00] Speaker 00:
So why do you have to satisfy 8B or standing at summary judgment or do anything else for him to bring the 8A motion and get that decided?

[00:57:14] Speaker 13:
Do you have a case if you lose the motion to suppress?

[00:57:19] Speaker 08:
was not on the district court level and so I don't know the particular facts in this case and moreover the district court actually didn't evaluate but my understanding would be that if the depending on the district courts ultimate conclusion if the evidence were suppressed the government can still theoretically bring a case if it will theoretically but I mean I've seen the I'm assuming you've read what the facts are in the case just like I've read to come here today right yes your honor

[00:57:49] Speaker 13:
You read the officers what the officer said, right?

[00:57:52] Speaker 13:
So you don't know if you lose on the motion to suppress your answer is theoretically there could be a case, but you don't know, you're not prepared to say whether there would be.

[00:58:03] Speaker 13:
Is that your answer?

[00:58:05] Speaker 08:
Yes, Your Honor.

[00:58:06] Speaker 08:
In terms of how the district court would ultimately rule on that and what pieces of evidence the district court would have found to be suppressed, what use in that regard the government may still very well have a case.

[00:58:20] Speaker 08:
And ultimately, because of that, if the government was still... Does the government care whether evidence is lawfully obtained or not?

[00:58:30] Speaker 08:
Of course, Your Honor.

[00:58:32] Speaker 13:
So you don't really...

[00:58:33] Speaker 13:
You don't really want to avoid a challenge on a Fourth Amendment.

[00:58:37] Speaker 13:
If you think you're right, then you win, right?

[00:58:40] Speaker 13:
If you're wrong, then you lose.

[00:58:44] Speaker 13:
But you seem to want to avoid that by doing everything at the G6 level.

[00:58:52] Speaker 08:
Because ultimately in these cases where this is just another tool in which both the district court and the government can help

[00:59:00] Speaker 08:
streamline the process of screening for meritorious claims.

[00:59:03] Speaker 08:
And I understand your honor's point in terms of we should be mindful about the government overreaching or trying to capitalize on illegal seizures.

[00:59:13] Speaker 08:
But again, in this case, in this specific case, the district court actually had made absolutely no determination as to the merits of the suppression motion.

[00:59:24] Speaker 08:
Thank you.

[00:59:25] Speaker 08:
Thank you very much.

[00:59:37] Speaker 09:
Just a few points.

[00:59:38] Speaker 09:
On sequence, it's not about what the district court considered.

[00:59:42] Speaker 09:
It's about what the interrogatories are asking for because the analysis is whether the information the government is seeking and the information Mr. Porcelli provided is relevant.

[00:59:52] Speaker 09:
that depends on what evidence is admissible.

[00:59:54] Speaker 03:
So can I ask, G6 actually does say that these interrogatories can be used any time before discovery is closed.

[01:00:01] Speaker 03:
So there's been a lot of questions, like we have G6 and then we shift to discovery.

[01:00:05] Speaker 03:
But what do we do with this language that says until discovery is closed?

[01:00:08] Speaker 03:
It seems like it overlaps them.

[01:00:10] Speaker 09:
Yes, so they can issue at any time.

[01:00:11] Speaker 09:
But the purpose that G6 is serving is it's focusing discovery.

[01:00:15] Speaker 09:
It's giving the government some notice about what is it that it has to do general discovery about.

[01:00:20] Speaker 09:
And that's important because forfeiture proceedings are different from ordinary civil litigation.

[01:00:25] Speaker 09:
There's no, like, rule eight notice pleading requirement for the claim.

[01:00:28] Speaker 09:
The claim is at ER 257.

[01:00:30] Speaker 09:
It's one sentence.

[01:00:31] Speaker 09:
It doesn't say what the claimant intends to prove at summary judgment with respect to their standing.

[01:00:37] Speaker 09:
So that's the interrogatory mechanism.

[01:00:40] Speaker 09:
What is it that you are going to try to prove at standing about standing at summary judgment?

[01:00:45] Speaker 09:
Depending on what lane you're in, that's going to depend.

[01:00:47] Speaker 13:
Would you concede that we can get past the standing without doing the motion to suppress?

[01:00:55] Speaker 09:
So you have to have pleading stage standing to file the motion to suppress.

[01:00:58] Speaker 09:
But you don't have to have summary judgment stage standing to brief the motion to suppress.

[01:01:03] Speaker 09:
And in fact, you can't, because you can't get to summary judgment until you litigate.

[01:01:07] Speaker 13:
Am I understanding you, though, that you want the motion to suppress to be held before any standing or any discovery occurs?

[01:01:16] Speaker 09:
Not before any standing or any discovery.

[01:01:18] Speaker 09:
You have to have pleading stage standing

[01:01:21] Speaker 09:
to be in federal court.

[01:01:22] Speaker 09:
We don't dispute that.

[01:01:24] Speaker 01:
So we can delay the answer.

[01:01:25] Speaker 01:
I mean, it can come after the answer.

[01:01:27] Speaker 09:
Yeah, so here it can come after the answer.

[01:01:29] Speaker 09:
But the motion to suppress was filed the day that this action was filed.

[01:01:35] Speaker 09:
This action is unlawfully initiated from the get-go.

[01:01:37] Speaker 09:
It's been pending for six years now.

[01:01:39] Speaker 09:
And this court should reverse.

[01:01:41] Speaker 09:
And it should hold that the court has to resolve the pending discovery, the pending suppression motion before discovery dismissal.

[01:01:48] Speaker 09:
And it should hold that a G6 interrogatory is the vehicle to request the allegations that would be proved about standing at summary judgment.

[01:01:56] Speaker 09:
And it should hold that standing is not reasonably in dispute in this lane where someone's alleging an ownership interest in property directly taken from them.

[01:02:04] Speaker 09:
Can I ask you a question?

[01:02:05] Speaker 04:
Is this case distinguishable from the Eighth Circuit case on the 154,000

[01:02:13] Speaker 04:
or the Seventh Circuit case of United States versus funds in the amount of $239,000?

[01:02:18] Speaker 09:
So I think that those cases are correctly decided and informative.

[01:02:22] Speaker 09:
I confess I don't remember every fact about them to say whether they're exactly on all fours, but we think that the analysis there is helpful to us on

[01:02:34] Speaker 09:
the distinction between standing and the merits, the role of the Fourth Amendment in all of this, and the appropriate way to think about it.

[01:02:42] Speaker 09:
And one last point, on the scope, I urge the court, this is an easy case.

[01:02:47] Speaker 09:
Look at ER 74.

[01:02:49] Speaker 09:
It is not evasive.

[01:02:50] Speaker 09:
It is not indistinct.

[01:02:51] Speaker 09:
It is extremely detailed, and it provided way more information than Mr. Porcelli should have been provided.

[01:02:57] Speaker 09:
All of the information he provided is about forfeitability.

[01:03:00] Speaker 09:
It's not about standing.

[01:03:02] Speaker 09:
And that was inappropriate from the get-go, and it's certainly error to require even more than that.

[01:03:07] Speaker 09:
This court should reverse.

[01:03:09] Speaker 09:
Thank you.

[01:03:15] Speaker 04:
Ms.

[01:03:15] Speaker 04:
Barnard, Yanni, really appreciate your oral argument presentation today.

[01:03:18] Speaker 04:
Ms.

[01:03:19] Speaker 04:
Chang, thank you very much.

[01:03:21] Speaker 04:
The case of United States of America versus $1,106,775 in United States currency, Oak Porcelli and Gina Pinock is now submitted, and we are adjourned.

[01:03:40] Speaker 04:
Thank you.