[00:00:00] Speaker 03:
We're here for United States versus Sufuentes Lopez, and this is 24-6177.

[00:00:05] Speaker 03:
Ms.

[00:00:06] Speaker 03:
Shen, you may begin.

[00:00:10] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:12] Speaker 00:
My name is Kathleen Shen, and I represent the appellant, Mr. Rolando Sufuentes Lopez.

[00:00:17] Speaker 00:
The law in the Circuit is clear.

[00:00:19] Speaker 00:
To obtain restitution under the TVPRA,

[00:00:22] Speaker 00:
The government has to prove that the defendant's offense of conviction was a but for cause of the loss being compensated.

[00:00:30] Speaker 00:
And in a child sex trafficking case where the victim has been abused by multiple perpetrators or as a result of multiple offenses, the government has the burden of isolating the losses that were caused by the defendant's offense of conviction from other losses caused by other perpetrators or other offenses.

[00:00:48] Speaker 00:
That didn't happen here.

[00:00:49] Speaker 02:
Well, isn't that precisely why the government got Ms.

[00:00:56] Speaker 02:
Wong's report was to isolate the post-trafficking trauma losses attributable to Mr. Cifuentes Lopez?

[00:01:08] Speaker 00:
Your Honor, I don't think Dr. Wong's report does the work of isolating the, does that work of proving but for causation, and let me explain why.

[00:01:20] Speaker 00:
What Dr. Wong does is she first applies accounting principles to Dr. Misar's evaluation, which has nothing to do with causation.

[00:01:27] Speaker 00:
And then she does estimate the losses that were due to pre-trafficking trauma versus post-trafficking trauma.

[00:01:33] Speaker 00:
But what she doesn't do is isolate the amount of the post-trafficking losses that would not have occurred, but for Mr. Cifuentes Lopez's offenses.

[00:01:42] Speaker 00:
As she flatly testified at the restitution hearing,

[00:01:46] Speaker 00:
She could not link the amounts to his direct actions.

[00:01:50] Speaker 00:
That's an, I think, record volume 3337 she just admits, she doesn't know how much of the losses that she estimated were caused by Mr so front his offense.

[00:02:03] Speaker 00:
She does come up with a number that she assigns to Mr. Cifuentes, but again, that number was not a calculation of how much of the losses were directly caused by Mr. Cifuentes' offense.

[00:02:16] Speaker 00:
Rather, what she does is she calculates that he's going to serve 26% of the prison time in this case, and then she says he should pay 26% of the losses.

[00:02:27] Speaker 00:
There's no attempt.

[00:02:29] Speaker 00:
The district court didn't adopt that.

[00:02:32] Speaker 02:
That's correct.

[00:02:36] Speaker 02:
My question is, is this a direct application of Anthony 1 and 2, or is this an extension?

[00:02:44] Speaker 02:
Because in Anthony, we required this disaggregation of pre-trafficking and post-trafficking trauma.

[00:02:53] Speaker 02:
It seems here

[00:02:54] Speaker 02:
where you're asking for another step, which is to isolate even further the post-trafficking trauma after it's been disaggregated from the pre-trafficking.

[00:03:05] Speaker 02:
Is this an extension of Anthony or a direct application of the case?

[00:03:09] Speaker 00:
I don't think it's an extension, Your Honor.

[00:03:10] Speaker 00:
I think it's a direct application.

[00:03:11] Speaker 00:
To the extent that Anthony is talking about pre-trafficking and post-trafficking trauma, that's because there the different offenses are occurring sequentially, whereas here,

[00:03:23] Speaker 00:
the multiple defendants are all being prosecuted at the same time, but in both circumstances, and I think Anthony one and two are clear, what has to be shown is a direct causal link between the defendant's offensive conviction and the amount of restitution being requested.

[00:03:39] Speaker 00:
And here the pre-trafficking and post-trafficking trauma doesn't do that work because it's undisputed.

[00:03:46] Speaker 00:
It's completely open from Dr. Misar's report that the post-trafficking trauma that

[00:03:51] Speaker 00:
or the trafficking trauma that he's calculating is an amount that results from all four defendants offenses, and there is no attempt whatsoever to isolate which portion of that loss is caused by each defendant.

[00:04:05] Speaker 00:
It doesn't appear anywhere in the documents.

[00:04:08] Speaker 02:
So if I understand your argument, and I'm getting a little stuck on how 3664H fits in.

[00:04:14] Speaker 02:
So if the district court were to have done it right in your view, it would have

[00:04:20] Speaker 02:
either discerned a direct but for a number and then proceeded to 3664H, right?

[00:04:32] Speaker 02:
That's the sequencing that you're suggesting did not happen but should have happened.

[00:04:36] Speaker 02:
Is that right?

[00:04:38] Speaker 00:
I don't think 3664H has any application in a case like this where the defendant's offensive conviction.

[00:04:46] Speaker 00:
So here, you know, 3664H is really a statute that's about

[00:04:50] Speaker 00:
a case in which you have multiple defendants whose offenses of conviction are causing the same harm.

[00:04:55] Speaker 00:
So the prototypical example would be a conspiracy, right?

[00:04:59] Speaker 00:
And if Mr. Sifontis Lopez had been convicted of conspiring to sex traffic these victims with their mother, you know, the alternate theory that the government put forth, and it's assuming what's undisputed, it's the same conspiracy, then

[00:05:16] Speaker 00:
You know those two defendants would be liable and restitution for all the losses resulting from that conspiracy and they would be a but for cause right there is a restitution order they're liable then in that situation where you have multiple defendants.

[00:05:30] Speaker 00:
who are the but for cause of the same harm, the district court has two options.

[00:05:36] Speaker 00:
They can either hold them jointly and severally liable, or the district court has the discretion to order some defendants to pay less based on assessment of relative culpability or ability to pay.

[00:05:48] Speaker 00:
But where there isn't that shared causal

[00:05:52] Speaker 00:
you know, where you're not in that situation, where they're not both responsible for the same restitution loss, I think 36, 64-H just isn't relevant.

[00:06:02] Speaker 00:
And since in this case, Mr. Sifuentes Lopez's offensive conviction is just the single instance of patronizing the sex or the sex trafficking victims one time each, there's not really any defending he shares his loss with.

[00:06:16] Speaker 00:
I think conceptually,

[00:06:17] Speaker 00:
You could say that if the mother had been ordered to pay the total amounts of restitution, there would be a small amount that might overlap.

[00:06:25] Speaker 02:
So just to be clear, I wasn't getting this from your brief, but I think that your response is addressing my question.

[00:06:33] Speaker 02:
Is it your position then that if you prevail on your argument that either the record and show the government did improve,

[00:06:44] Speaker 02:
there's an absence of but for cause here for your client to support restitution.

[00:06:50] Speaker 02:
3664H just is not relevant.

[00:06:54] Speaker 02:
It doesn't serve as a proxy for but for causation, nor is it relevant here where there is not a conspiracy count.

[00:07:02] Speaker 02:
That's right, Your Honor.

[00:07:03] Speaker 02:
I agree with that.

[00:07:04] Speaker 03:
Does there have to be an adjudication of guilt for conspiracy or can relevant conduct serve as an adequate substitute?

[00:07:13] Speaker 00:
So it's clear that it has to be based on the offense of conviction.

[00:07:16] Speaker 00:
So relevant conduct isn't part of the restitution calculation that comes from the Supreme Court.

[00:07:21] Speaker 02:
And why is that?

[00:07:22] Speaker 02:
I just don't mean to interrupt Judge Baccarat, but I had a net.

[00:07:25] Speaker 02:
Why is that?

[00:07:25] Speaker 02:
Why is the offense of relevant conduct?

[00:07:28] Speaker 02:
Is it because it's not in the plea?

[00:07:31] Speaker 00:
Your Honor, it comes from the Supreme Court's decision in Huey, which this court applied in Mendenhall.

[00:07:37] Speaker 00:
And I think the exact language, we just want to get it right, because I think it's very helpful,

[00:07:41] Speaker 00:
Legally restitution is owed only for losses caused, and I'm quoting here, by the specific conduct that is the basis of the offense of conviction.

[00:07:49] Speaker 00:
That's this court's decision in Mendenhall, 945 Federal Third at 1266.

[00:07:54] Speaker 00:
And again, they're quoting the Supreme Court's decision in Huey.

[00:07:58] Speaker 00:
And I think Anthony wanted to both specifically refer to the offense of conviction.

[00:08:02] Speaker 00:
So again, we're limited to the offense of conviction.

[00:08:04] Speaker 00:
To get to Judge Bacharach's question, I think it's

[00:08:08] Speaker 00:
You know, there could theoretically be a situation where you have conspiracy-like liability, where two defendants' offensive conviction are causing the same harm that's not charged as a conspiracy.

[00:08:20] Speaker 00:
But I think, generally, this is really 36, 64-Hs for the conspiracy-type situation, where multiple defendants' convictions cause the same harm.

[00:08:29] Speaker 00:
Does that answer your question, Your Honor?

[00:08:31] Speaker 03:
It does.

[00:08:32] Speaker 03:
Do you mind if I ask another?

[00:08:34] Speaker 03:
Judge Rosman, were you going to ask something?

[00:08:36] Speaker 02:
No.

[00:08:36] Speaker 03:
Can I ask a question?

[00:08:39] Speaker 03:
I don't want to throw you off track, Ms.

[00:08:40] Speaker 03:
Shen, but, you know, in Anthony too, my memory was Judge Hartz wrote a dissental, you know, saying, this is an impossible burden.

[00:08:54] Speaker 03:
I mean, how in the world do you do this?

[00:08:57] Speaker 03:
You make a very compelling argument that, yeah, there's no way that a judge could look at

[00:09:05] Speaker 03:
Dr. Messar and Dr. Wong's analyses and say, okay, well, this is how much of the future treatment for these two young girls is going to be attributable to these one-time, not to minimize it, they were very serious, but these two totally improper criminal sexual incidents with these two very young girls, what could the government have presented in order to satisfy

[00:09:36] Speaker 03:
Burden, at least under Anthony to.

[00:09:40] Speaker 00:
Your honor, I think there's I've got 2 responses 1 sort of general and I think kind of embedded.

[00:09:45] Speaker 00:
In this your question is something I'd like to push back on the, which is the fact that we have this appeal shows this is really hard and I just don't think that's necessarily the case.

[00:09:53] Speaker 00:
I mean, Anthony 1 and 2 in this case.

[00:09:56] Speaker 00:
all come from the same office and they all involve the same experts.

[00:09:59] Speaker 00:
So I don't think it's necessarily evidence that there's like a broader systemic problem with finding restitution in these cases.

[00:10:07] Speaker 00:
But to your second point, I think Anthony too, you know, footnote 13 on page 953, you know, it states the government could have met its burden by presenting an expert who apportioned some loss amount to the one-time abuse and under a but for causation standard.

[00:10:21] Speaker 00:
And they cite to the human trafficking Institute amicus that was

[00:10:26] Speaker 00:
filed in that case.

[00:10:28] Speaker 00:
And again, I'm just a lawyer.

[00:10:31] Speaker 00:
I'm not an expert in how you would estimate these damages.

[00:10:33] Speaker 00:
But I think it's certainly conceivable that there's some methodology where you could reasonably estimate just the increased harm or the increased risk that the victim suffered as a result of this additional trauma.

[00:10:45] Speaker 00:
I would observe that there certainly is a body of scholarship about, for example, the number of adverse childhood experiences and the

[00:10:53] Speaker 00:
harms, you know, how that increases the harms to the victim.

[00:10:57] Speaker 00:
And, you know, I assume that there's some way, or I think at least this court can't assume there is no way to estimate that with a reasonable amount of precision sufficient to satisfy the same.

[00:11:08] Speaker 03:
Let me just play devil's advocate, but your answer is very good.

[00:11:12] Speaker 03:
But let's assume that Judge Hartz was right, that this is outside the capability of psychological expertise today.

[00:11:22] Speaker 03:
And so then if there was a satisfaction in that footnote, and let's say Dr. Bissar gave that sort of testimony, then we really would be in no different position than we are now where a judge might say, okay, like you said, it's hard, but not necessarily impossible.

[00:11:45] Speaker 03:
I know what the mother did.

[00:11:47] Speaker 03:
I know what this other individual did in perpetuating the sex trafficking ring, but I, as a lay person, as a judge, can say, well, let's say with DH, this one-time sexual incident would cause, let's say, 14% of DH's future medical costs

[00:12:14] Speaker 03:
And coupled with the deferential standard of review for factual findings, why would that be outside the domain of a judge if Judge Hartz is right that psychological expertise isn't at that level today?

[00:12:36] Speaker 00:
Well, Your Honor, I don't think this court could affirm on that theory.

[00:12:38] Speaker 00:
I mean, that's exactly what was rejected in Anthony Wan.

[00:12:40] Speaker 00:
What you're proposing is essentially the para line.

[00:12:44] Speaker 00:
sort of rough division of the harm in a case where but for cause is really impossible.

[00:12:50] Speaker 00:
And again, I don't accept that that's impossible here, but I take your question as is.

[00:12:55] Speaker 00:
I think looking at the child pornography restitution issue and how it's proceeded post-paraline, I think Congress amended the statute to just set a statutory amount, but the statute that we have here currently provides for results from

[00:13:13] Speaker 00:
for direct or but for causation.

[00:13:15] Speaker 00:
And so both under this court's prior decisions and just applying ordinary principles of statutory interpretation, I think but for causation is required.

[00:13:25] Speaker 00:
And to the extent that leaves some gap that there's a policy problem, that's up to Congress to fix.

[00:13:32] Speaker 02:
Is there any reason that we should think that footnote 13 and Anthony too suggested that 3664H could be a proxy

[00:13:42] Speaker 02:
for finding of but for causation in circumstances like this, because it speaks about apportionment.

[00:13:49] Speaker 02:
It doesn't cite the statute or anything, but is there anything that we should be thinking more broadly about what we suggested there in terms of how the government could satisfy its burden?

[00:13:58] Speaker 00:
Your Honor, I don't think it is talking about 3664H.

[00:14:03] Speaker 00:
Even though it uses the term apportionment, I just take that as apportionment in the general sense can refer to breaking something down into smaller pieces.

[00:14:11] Speaker 00:
If it did permit 3664H to be used as a proxy, that would eviscerate Anthony 1.

[00:14:17] Speaker 00:
I mean, it would just basically restore us to a paralyzed system where you're using your sense of relative culpability as a substitute for buffer causation.

[00:14:28] Speaker 00:
And that's exactly what Anthony 1 rejects.

[00:14:30] Speaker 02:
So I don't think that- Thank you for your answer.

[00:14:34] Speaker 02:
Do we have any cases that tell us that 3664H doesn't apply?

[00:14:39] Speaker 02:
if there's not a conspiracy count?

[00:14:43] Speaker 00:
Your Honor, I don't think there's any cases that say that, but I think it's implicit both.

[00:14:47] Speaker 00:
Otherwise, Anthony 1 would have come out differently.

[00:14:49] Speaker 00:
It just would overrule Anthony 1 to say that there's this alternative to but for causation.

[00:14:54] Speaker 00:
And I think if you look at the restitution statutes as a whole, it just makes sense to read the loss reference in 3664H to mean the loss that is

[00:15:03] Speaker 00:
ordered in restitution right so if and of course any restitution order requires proof of but for causation so I just don't think it gets make sense to think about dividing up the restitution order until there's a restitution order and any restitution order requires but for causation I say I'm out of time thank you.

[00:15:20] Speaker 03:
Judge Rossman did you have any additional questions.

[00:15:22] Speaker 02:
I don't thank you.

[00:15:24] Speaker 03:
Judge Murphy.

[00:15:25] Speaker 03:
No.

[00:15:26] Speaker 03:
Okay, thank you miss miss Shan will hear from us miss Walters.

[00:15:31] Speaker 01:
Thank you, your honor.

[00:15:31] Speaker 01:
Good morning and may it please the court.

[00:15:33] Speaker 01:
My name is Mary Walters and I represent the United States of America in this matter.

[00:15:36] Speaker 01:
There are two issues before the court today.

[00:15:39] Speaker 01:
First, given the integral role that the defendant played in this case, did the district court clearly err in determining that he was a but for cause of the victims losses and that the victims would not have

[00:15:50] Speaker 01:
incurred a subset of the aggregate losses without the defendant's conduct.

[00:15:55] Speaker 01:
There is also a issue that is foreclosed by precedent in United States versus Burns, and we agree with the defendant's acknowledgement of that foreclosure.

[00:16:05] Speaker 01:
In hearing the arguments by counsel, we did, in fact, in this case, grow from Anthony one and two and did apportion the but for cause of the victim's losses, which were caused at least in part by Mr. Cifuentes Lopez.

[00:16:22] Speaker 01:
It is clear from the record and the facts found by the court in this case that, and I'm thinking about the question about relevant conduct,

[00:16:30] Speaker 01:
While the defendant did plea to one time raping each of the victims in this sex trafficking that was going on continually with different parties throughout the trailer that the victim and the mother lived in, the victims and the mother, excuse me, he also pled in the documents it shows to acts such as harboring, providing, and maintaining.

[00:16:54] Speaker 02:
Where did he plead to that?

[00:16:56] Speaker 02:
I mean, his plea seems pretty specific as to the two acts.

[00:17:00] Speaker 02:
And I'd be very curious if you could direct me to exactly where those words appear.

[00:17:06] Speaker 01:
Yes, Your Honor.

[00:17:06] Speaker 01:
In the indictment itself, that is what is... That's in the charging statute.

[00:17:12] Speaker 01:
Yes.

[00:17:13] Speaker 02:
And then... That's one of the plea agreements.

[00:17:16] Speaker 01:
Yes, Your Honor.

[00:17:16] Speaker 01:
And looking to the plea documents, I believe there is some

[00:17:22] Speaker 02:
And if I may back up, yeah, I'm not, I'm not sure that that's right.

[00:17:27] Speaker 02:
Uh, but we'll, we'll certainly confirm that before, uh, before, before assuming as much.

[00:17:32] Speaker 02:
Let me ask you a question that you, you know, you started your presentation by saying we're on the clear error standard of review with respect to the evidence of but for cause.

[00:17:41] Speaker 02:
And I was struck by a colloquy

[00:17:44] Speaker 02:
that the court had with government counsel, where the court understandably, as Judge Bacharach pointed out, as Judge Hartz's dissental points out, it's very difficult to prove up the loss in these cases.

[00:17:57] Speaker 02:
And the district court says, can I make a bottom line conclusion where I say, all right, even if I don't think all of these costs have been shown to meet the standard of but for cause, surely at least some amount would, and then make that finding of restitution.

[00:18:11] Speaker 02:
And the government says, yes, Your Honor.

[00:18:13] Speaker 02:
That seems to be directly contrary to what Anthony 1 and 2 require.

[00:18:19] Speaker 02:
So help me understand how this doesn't teach, this moment in the record, it doesn't teach that actually the district court agreed there was an evidence of but for causation and was struggling as a legal matter with what to do about that.

[00:18:36] Speaker 01:
Your Honor, I would say that the court did have

[00:18:43] Speaker 01:
The court did struggle and we all struggle because, as stated earlier in the dissent in Anthony, I believe it was Anthony, won by Justice Hartz.

[00:18:55] Speaker 01:
This is a difficult thing to do.

[00:18:58] Speaker 01:
However,

[00:18:59] Speaker 01:
The court record and the judge in this case, the district court judge, did make a very good record about what facts led to finding that this person was a but for cause.

[00:19:10] Speaker 01:
And in fact, defense counsel did not contest that there was some restitution owed.

[00:19:15] Speaker 01:
And in fact, the defendant would be culpable for some of that restitution.

[00:19:19] Speaker 01:
However, there was a dispute.

[00:19:21] Speaker 01:
The dispute was how much he would be culpable for.

[00:19:25] Speaker 01:
In looking to the but for cause, we do have evidence that a but for cause was found in this case.

[00:19:33] Speaker 01:
And looking at Bostock versus Clayton County, it is a sweeping standard, whether or not but for causation has been found in a case.

[00:19:42] Speaker 03:
Well, yeah, I don't know.

[00:19:44] Speaker 03:
At least for myself, I don't know that anybody questions but for causation.

[00:19:49] Speaker 03:
But it's how much the future costs, I think, for me.

[00:19:54] Speaker 03:
So can I ask you a question, Miss Walters?

[00:19:57] Speaker 03:
So based on Dr. Missar's testimony, Dr. Fong, I think, is a forensic economist, so we can include her, but I don't know that that is anything to the equation.

[00:20:11] Speaker 03:
So if I'm a district judge, and let's say, take DH, one of the two girls,

[00:20:18] Speaker 03:
What mental, what analysis would I go through to say, okay, from Dr. Missar's testimony or from his report, this is how much the future medical and psychological costs for DH are going to be, um, disaggregating what, uh, what Mr. Cifuentes Lopez did with the rape of DH.

[00:20:45] Speaker 03:
versus what the mother did, what the other defendant did in perpetuating sex trafficking.

[00:20:52] Speaker 03:
How much of those medical and psychological expenses are attributable to Dr. Cifuentes Lopez?

[00:20:59] Speaker 03:
I as the district judge, what analysis do I go through to process Dr. Minasar's testimony to figure that out?

[00:21:08] Speaker 01:
Yes, Your Honor.

[00:21:08] Speaker 01:
And the reason why I know that Your Honor sounds skeptical of Ms.

[00:21:14] Speaker 01:
Wong's apportionment or at least how she plays a part in finding what losses are attributed directly to the defendant in this case.

[00:21:23] Speaker 01:
However, Dr. Misar

[00:21:26] Speaker 01:
Did an evaluation on what losses would be expected to have have occurred and what losses would be expected to be in the future psychological losses.

[00:21:37] Speaker 01:
And it's important that we find the whole of what the losses are before we decide.

[00:21:42] Speaker 01:
We can't decide who owes what until we decide what is owed and okay.

[00:21:48] Speaker 03:
Let's say it's a hundred million dollars.

[00:21:50] Speaker 03:
Uh, so let's say, so, so, so what percentage, um, as a judge figuring out restitution, I have to figure out to figure out the amount, what percentage of that million dollars true, the denominator has to be the total loss.

[00:22:08] Speaker 03:
So now how do I do that?

[00:22:12] Speaker 01:
As a district court judge, your honor?

[00:22:14] Speaker 03:
Based on Dr. Binsaur's and Ms.

[00:22:16] Speaker 03:
Wong's testimony, Wong's testimony.

[00:22:19] Speaker 01:
Yes, Your Honor.

[00:22:21] Speaker 01:
Finding that Dr. Missar did determine the amount of loss that would be attributable to all the trauma sufferers, psychological losses of the victims, that is why the government secured the testimony and report of Ms.

[00:22:37] Speaker 01:
Wong was based on the guidance from Anthony 1 and Anthony 2.

[00:22:42] Speaker 01:
We acknowledge in Anthony 1, there was no attempt to aggregate.

[00:22:46] Speaker 01:
And in Anthony 2,

[00:22:48] Speaker 01:
the aggregation fell short in that the apportionment said that it was insufficient that it did not identify a subset of treatment costs.

[00:22:59] Speaker 01:
So what Ms.

[00:23:00] Speaker 01:
Wong's report did was take the analysis of Dr. Missar, because as Ms.

[00:23:06] Speaker 01:
Wong stated in her testimony, she is not a psychologist.

[00:23:09] Speaker 01:
She is not there to opine on what treatment costs or what treatment would be needed.

[00:23:14] Speaker 01:
So therefore, Ms.

[00:23:15] Speaker 01:
Wong did

[00:23:17] Speaker 01:
than apportion, and as was stated earlier, the court actually, based on the record, decided that there would be a different apportionment when pushed back.

[00:23:28] Speaker 02:
Counsel, you keep using this word apportionment, and I must admit it confuses me, because apportionment is not relevant in the but for universe, right?

[00:23:38] Speaker 02:
But for cause is a standard of proof for restitution.

[00:23:44] Speaker 02:
and apportionment is relevant to 3664H.

[00:23:47] Speaker 02:
Would you agree with what I just said?

[00:23:50] Speaker 02:
Yes.

[00:23:51] Speaker 02:
Okay.

[00:23:52] Speaker 02:
So when you're saying apportionment, do you really mean that disaggregation from the whole in order to determine but for cause for a particular defendant?

[00:24:03] Speaker 02:
Is that what you mean by using apportionment?

[00:24:06] Speaker 01:
And you're, I apologize.

[00:24:08] Speaker 01:
I was talking about the, uh, the amount as far as, uh, after we've decided that he was a but for cause regarding whether or not the defendant was a but for.

[00:24:16] Speaker 02:
I see.

[00:24:17] Speaker 01:
Okay.

[00:24:17] Speaker 02:
Uh, that, that, that makes more sense to me.

[00:24:20] Speaker 02:
Um, Ms.

[00:24:23] Speaker 02:
Wong was asked if she could determine, if she could link an amount to Mr. Cifuentes Lopez's actions.

[00:24:32] Speaker 02:
And she said she could not do that.

[00:24:34] Speaker 02:
So if she was not proceeding from the point of departure of a but for number, what do we do with whatever testimony and opinion she provided to the court?

[00:24:53] Speaker 01:
Your Honor, as far as Ms.

[00:24:55] Speaker 01:
Wong stating that she could not link an amount, that's the issue, right?

[00:25:01] Speaker 01:
That is the issue that we run into in these cases.

[00:25:04] Speaker 01:
And she did attempt to apportion out who would owe what and to the district court's credit.

[00:25:12] Speaker 01:
They said, look, you went off of amount of time that this person is serving and the sentence that he received.

[00:25:19] Speaker 01:
A lot goes into that that you were not privy to.

[00:25:22] Speaker 01:
And then the district court took the facts relevant to the

[00:25:28] Speaker 01:
what would determine Mr. Sifuentes-Lopez to be a but for cause and said, OK, this is how you were involved.

[00:25:37] Speaker 01:
This is what Dr. Missar said the treatment needs would be and the cost of those treatment needs, both current and future.

[00:25:44] Speaker 01:
And then Ms.

[00:25:44] Speaker 01:
Wong said, OK, based on my analysis, this is what would be attributable to Mr. Sifuentes-Lopez.

[00:25:53] Speaker 01:
But yes, it is.

[00:25:54] Speaker 01:
It is hard to do.

[00:25:55] Speaker 01:
And that's why we are asking the court for the guidance in these cases.

[00:26:00] Speaker 01:
And since this case was submitted on the briefs, we have the results of Coulter, which may have, in fact, changed the analysis even more based on the fact that one of our minor victims had ADHD.

[00:26:15] Speaker 01:
proceeding being raped by Mr. Sifuentes Lopez and by others.

[00:26:20] Speaker 01:
And based on the ruling in Coulter, that may have actually caused another wrinkle, so to speak, in determining whether or not there was an appropriate amount.

[00:26:30] Speaker 02:
Is that why the government wants it to, you know, should the appellate prevails?

[00:26:36] Speaker 02:
Is Coulter the reason the government is suggesting the remand should be on an open record?

[00:26:43] Speaker 01:
Yes, Your Honor.

[00:26:44] Speaker 01:
Moving to that portion, we again acknowledge Anthony 1 and Anthony 2, no effort to determine individual liability.

[00:26:54] Speaker 01:
And then as we go forward with the ruling in Coulter, this is an area of law that is definitely quickly developing, quickly and

[00:27:05] Speaker 01:
in a way that we would ask the court to remand with further guidance in order to allow the government to apply that guidance appropriately.

[00:27:16] Speaker 02:
What exactly is the guidance that you think is missing?

[00:27:21] Speaker 02:
As to what question, I guess, to ask you more specifically, what specific question would additional guidance help

[00:27:32] Speaker 02:
the government or help parties in this case, in response to what specific question?

[00:27:38] Speaker 01:
Yes.

[00:27:38] Speaker 01:
Thank you, Your Honor.

[00:27:40] Speaker 01:
Well, we do have, again, culture was after these briefs, so we do have that additional guidance now, but also the fact that the government believes that they have met their standard.

[00:27:52] Speaker 01:
They took Dr. Miser's report, not Dr. Ms.

[00:27:56] Speaker 01:
Wong's analysis, and we

[00:28:01] Speaker 01:
Because this is a moving target, because psychological losses are something that is very hard to analyze and identify with exact precision, we have a situation where if we did not get it right, we would like to know why, and we would welcome any additional guidance to try to make these victims whole after being raped.

[00:28:25] Speaker 02:
Counsel, do you agree with Appellant's position that, as I've understood it, that 3664H really doesn't have anything to do with cases like this where you only have an individual, you don't have multiple defendant conspiracy liability?

[00:28:48] Speaker 01:
Yes, Your Honor, we originally did ask for a joint and several liability, but based on our theory of the fact that this was all happening at the same time and there was some overlapping culpability, but based on looking at it as just, I say just, I don't mean to minimize, these two instances of raping these two children that we would agree.

[00:29:13] Speaker 02:
We would agree with what?

[00:29:14] Speaker 02:
That 36, 64-H apportionment

[00:29:18] Speaker 02:
doesn't apply in cases where there's not a conspiracy count?

[00:29:23] Speaker 01:
Oh, I apologize, Your Honor.

[00:29:24] Speaker 01:
I misunderstood.

[00:29:25] Speaker 01:
I apologize.

[00:29:26] Speaker 01:
I think it could, but I understand the appellant's argument.

[00:29:35] Speaker 03:
Well, I just want to make sure I understand.

[00:29:39] Speaker 03:
Generally, we address the arguments that the parties are making.

[00:29:43] Speaker 03:
Are you making an argument that 3664H

[00:29:48] Speaker 03:
as a bearing or not?

[00:29:51] Speaker 01:
We did ask.

[00:29:52] Speaker 01:
I will say yes, because we asked for joint and several liability.

[00:29:55] Speaker 01:
However, I do understand the court's ruling in this case, and we are with the record that we have now as far as Mr. Cifuentes Lopez, Your Honor.

[00:30:05] Speaker 01:
I see I'm close to time.

[00:30:07] Speaker 01:
At this time, I would ask for the court to affirm the district court's rule.

[00:30:11] Speaker 02:
Can I ask you one other question?

[00:30:12] Speaker 01:
Of course.

[00:30:12] Speaker 01:
Of course, Your Honor.

[00:30:13] Speaker 01:
Of course.

[00:30:14] Speaker 02:
I just thought of something

[00:30:17] Speaker 02:
connected to what we were just discussing.

[00:30:20] Speaker 02:
In the event this case gets remanded on an open record as the government seeks.

[00:30:26] Speaker 02:
And let's say that there is proof put on to establish the but for loss for Mr. Cifuentes Lopez.

[00:30:36] Speaker 02:
At that point, if the district court had that record and said, yep, I see it, this is the number, this is the restitution I've determined, would 3664-H apportionment have any role to play after that initial but for loss finding was made?

[00:30:54] Speaker 01:
After the initial but for loss finding was made,

[00:31:00] Speaker 01:
I think it could, Your Honor.

[00:31:01] Speaker 01:
But I would want to hear the testimony and see the record at that point.

[00:31:05] Speaker 01:
That's fair.

[00:31:06] Speaker 01:
Thank you.

[00:31:06] Speaker 01:
Thank you.

[00:31:07] Speaker 01:
And we would ask for this court to affirm the district court's ruling in this case.

[00:31:13] Speaker 03:
Judge Rossman, did you have any other questions?

[00:31:15] Speaker 02:
I don't.

[00:31:15] Speaker 02:
Thank you.

[00:31:16] Speaker 03:
OK.

[00:31:16] Speaker 03:
Judge Murphy?

[00:31:18] Speaker 03:
I have none.

[00:31:19] Speaker 03:
Kevin, did Ms.

[00:31:21] Speaker 03:
Sheen have any additional time left?

[00:31:27] Speaker 03:
No, she didn't.

[00:31:29] Speaker 03:
Okay, thanks Gavin.

[00:31:32] Speaker 03:
Very well presented by both sides.

[00:31:33] Speaker 03:
This panel will be submitted.

[00:31:35] Speaker 03:
Thank you.

[00:31:36] Speaker 03:
Thank you.