[00:00:01] Speaker 03: Case number 22-5255, United States of America versus Barry Fisher Law Firm LLC et al., Elizabeth McKay as Joint Official Liquidators of Trade and Commerce Bank, and Gordon McRae as Joint Official Liquidators of Trade and Commerce Bank at Balance. [00:00:18] Speaker 03: Mr. Bono for the at balance, Mr. Bronstein for the appellee. [00:00:23] Speaker 05: And please note that Judge Rogers is participating telephonically. [00:00:31] Speaker 02: Good morning, Your Honor. [00:00:32] Speaker 02: May I please report? [00:00:34] Speaker 02: My name is Craig Bono, and I represent the appellate here, the liquidators of Trade and Commerce Bank. [00:00:41] Speaker 02: Through this appeal, we ask that this Court reverse the District Court's decision on a motion to dismiss, finding the interpleader that was filed originally in the Southern District of New York and a variety of procedural steps made its way to the District Court here in the District of Columbia. [00:00:57] Speaker 02: I'm going to show you a little bit of what the procedure is. [00:01:16] Speaker 02: The procedure is very complicated. [00:01:21] Speaker 02: I'm going to attempt to identify [00:01:30] Speaker 02: you through this process. [00:01:32] Speaker 04: Let me ask you a question. [00:01:33] Speaker 04: So there was no appeal from the 2467 judgment? [00:01:39] Speaker 04: Correct. [00:01:40] Speaker 04: So that judgment forfeited the property to the United States and said any other claims against the property were in default? [00:01:48] Speaker 04: Correct. [00:01:48] Speaker 04: So why doesn't that move the interpleader here? [00:01:53] Speaker ?: Because [00:01:53] Speaker 02: as walking through the Second Circuit opinion. [00:01:57] Speaker 02: What that process did was to provide Brazil a pathway to create an exception to the penal law rule, which otherwise prohibited their ability to establish their priority in the end of the year, which was filed far prior to 2467 for any of those proceedings back in 2010. [00:02:15] Speaker 02: So if Your Honor will indulge me, it sounds like you understand the procedure. [00:02:22] Speaker 02: how we got to where we are. [00:02:23] Speaker 02: But the Second Circuit on an appeal from the liquidators and a motion for summary judgment. [00:02:28] Speaker 04: I'm asking about the Second Circuit case. [00:02:30] Speaker 04: I'm just asking about what is the effect of the 2467 judgment. [00:02:35] Speaker 02: So I guess I'm attempting to answer your question, because the 24-67, the only reason it's relevant is because of the Second Circuit case. [00:02:44] Speaker 02: Because what the Second Circuit said was Brazil and the attorney general, if you want to have any rights within the interplier that we're planning on here, the one and only way for you to be able to establish those rights is to go get the 24-67, thereby allowing you to quote unquote [00:03:02] Speaker 02: bypass the penal law rule that is otherwise prohibiting you from pursuing your claim in the interpleter, which is what the Second Circuit determined. [00:03:11] Speaker 02: That is why the 2457 was never initiated. [00:03:14] Speaker 02: The only reason that any of this came up is because in the interpleter, in that appellate briefing at the Second Circuit, one of Brazil's arguments was, [00:03:25] Speaker 02: that there was an exception to the penal law rule established by merely the initiation of the interpleader by the United States. [00:03:33] Speaker 02: Because the United States and the Attorney General, as the executive branch were speaking, that it was fine for the judicial branch to determine whether or not this criminal proceeding in Brazil was a legitimate basis to establish a claim to the funds in the US. [00:03:49] Speaker 02: The Second Circuit said, no, that wasn't enough to establish the exception. [00:03:53] Speaker 02: Instead, what you had to do [00:03:55] Speaker 02: was go through the 2467 process to establish the exception. [00:03:59] Speaker 02: What I think you're getting at is what I perceive to be a priority argument, which would be in the interpletor, Brazil is free to argue. [00:04:09] Speaker 02: Look, we have our argument. [00:04:12] Speaker 04: My question, though, is why? [00:04:15] Speaker 04: So do you think the United States would have standing to bring an interpletor today? [00:04:22] Speaker 04: after the 2467 judgment? [00:04:25] Speaker 04: Because to bring an interpleter, you have to have some kind of reasonable threat of competing claims. [00:04:33] Speaker 04: And after the 2467 judgment, would there even be jurisdiction in the United States to bring an interpleter? [00:04:41] Speaker 02: I absolutely believe there would be, because in an interpleter, the question is, [00:04:46] Speaker 02: Which of the claims has priority? [00:04:49] Speaker 02: One of the ways in which you establish priority in the interpreter is first in time. [00:04:52] Speaker 02: Who had the first in time claim? [00:04:54] Speaker 02: Now, what? [00:04:55] Speaker 01: I was just gonna try to refocus you on the language of the June, 2021 order, which as Judge Rao pointed out said, your client's claim is held in default. [00:05:07] Speaker 01: Now, what do you think that, assume we know all of the background, and at least my concern is, [00:05:15] Speaker 01: When that order came out, it says the property is forfeited, it may be seized by the US, and that your claim is in default. [00:05:22] Speaker 01: What do you understand that language to mean? [00:05:27] Speaker 02: As I attempted anyway to try to answer, I think that language is an arrow in the quiver of whomever it is that is going to go forward and attempt to establish that their claims are legitimate based upon that 2467 order in addition to the criminal proceedings that underlies. [00:05:46] Speaker 02: I guess my point is, today we aren't here arguing that because the court, rather than allow us to argue that particular point in a priority discussion, which I think goes to many things, including the fact that under 2467, the relation back doctrine that you see in 18 USC 981 F and 18 USC 881 H [00:06:10] Speaker 02: wherein when the United States orphans property pursuant to those, either of those statutes, the title to that property vest in the United States as of the time of the underlying conduct, whatever it was that led to the forfeiting. [00:06:24] Speaker 01: So that's the that's the merits argument you'd like to be able to make on remand in this case, an inner pleader about priority. [00:06:30] Speaker 01: And I appreciate it's a little bit odd that there was never a [00:06:34] Speaker 01: priority determination made except for the initial district court decision in the case. [00:06:39] Speaker 01: But it seems, maybe to sharpen this up, your basic theory is that all that happened in the 2467 case is that Brazil was granted a potentially enforceable judgment, sort of a potential right on par with the judgment that your clients had. [00:06:57] Speaker 01: But when I look at what actually happened in the 2467 case, we have the March 31 order, document 27, which seems to describe what you think was the end of that case. [00:07:10] Speaker 01: But then in the court's opinion, it says the government should now move for a final order of forfeiture. [00:07:17] Speaker 01: And they did. [00:07:17] Speaker 01: And you opposed that. [00:07:19] Speaker 01: on the ground that you wanted explicit language in the final order saying that the 2467 order was contingent on the interpletor, right? [00:07:31] Speaker 01: And the district court rejected that and entered a final order of forfeiture holding your claims in default. [00:07:37] Speaker 01: And whatever else your clients hoped would happen, it seemed to me at that point you had to appeal [00:07:43] Speaker 01: because what happened was a final order disposing of all the claims in the case. [00:07:50] Speaker 01: So what am I missing about that history? [00:07:55] Speaker 02: Well, so I understand your question. [00:08:00] Speaker 02: And I understand your position. [00:08:05] Speaker 02: The answer is that the interpleeter, the inlet [00:08:09] Speaker 02: opinion can't be viewed in isolation in a vacuum. [00:08:14] Speaker 02: It has to be viewed in the greater context of how we got to where we were in that situation. [00:08:20] Speaker 02: And certainly the order says what it does. [00:08:24] Speaker 02: And we would [00:08:25] Speaker 02: be happy, again, to argue within the interpleter context what that means vis-a-vis priority. [00:08:31] Speaker 02: But what the order doesn't say is that the interpleter is now moved. [00:08:38] Speaker 02: That order didn't say that the interpleter was moved. [00:08:40] Speaker 02: What the district court did in this case, whenever it cited just the Second Circuit opinion on the motion to dismiss, that is what it cited to in footnote one in this case. [00:08:52] Speaker 02: It said that, [00:08:54] Speaker 02: The Second Circuit told it, it being the district court, that our remand, if Brazil went and got that 2467, therefore the interpleader is moot. [00:09:05] Speaker 02: That is not what the Second Circuit said. [00:09:07] Speaker 02: And so while I understand your focus on what the MLAB order states, the Second Circuit's opinion is what should govern what happens in the interpleader itself. [00:09:17] Speaker 02: Because that is, first of all, it's the law of the case. [00:09:20] Speaker 02: It's what has already happened in this case. [00:09:22] Speaker 02: The reason that there was no appeal is because the Second Circuit gave permission for Brazil and the United States to go forward through that process, and that is how it happened. [00:09:34] Speaker 04: Would your clients have a claim against the United States outside of the interpletor? [00:09:38] Speaker 04: So say we affirm and find the interpletor is moot, would the liquidators be able to bring a claim against the United States in a separate action? [00:09:52] Speaker 02: The answer is I don't know. [00:09:54] Speaker 04: OK, so if the answer to that is no, then the United States isn't facing conflicting claim on this property. [00:10:03] Speaker 02: Right, so I said the answer is I don't know. [00:10:05] Speaker 04: Oh, you said I don't know. [00:10:06] Speaker 02: Sorry, I don't know. [00:10:08] Speaker 02: Off the top of my head, I don't know the answer to that question. [00:10:10] Speaker 02: I think that as we sat traditionally when the two competing judgments existed, if the United States had just given the money away rather than [00:10:21] Speaker 02: make an attempt to determine whether our judgment was set equally with or in priority to Brazil. [00:10:28] Speaker 02: I think, yes. [00:10:29] Speaker 02: I would have to do a little bit more research on what happens whenever there's several court orders that have happened in the interim as to whether there's a legitimate claim or not. [00:10:38] Speaker 02: But certainly, I think, but for having been ordered to do things by a variety of courts, there would have been a claim. [00:10:45] Speaker 02: I don't know the answer, as I sit here today. [00:10:48] Speaker 04: Right. [00:10:48] Speaker 04: But so so I mean, I guess I asked you this question. [00:10:51] Speaker 04: I'm not sure if you answered is, do you think the U.S. [00:10:54] Speaker 04: would have standing to bring an interplator claim today after the 2467? [00:10:59] Speaker 02: Yeah, yes, I think that they would, because if they had for the same reasons that we think that we have a priority because the claim to the funds. [00:11:11] Speaker 04: I know you have a priority claim, which would be, you know, as opposed to Brazil, but now title [00:11:17] Speaker 04: has been given to the United States. [00:11:20] Speaker 04: So from the United States side, not from the competing claimants side, I mean, would the United States have some reasonable belief that it would be subject to complete competing suits? [00:11:30] Speaker 02: I do think so. [00:11:31] Speaker 02: And even in the 981 or in 881 case where overture occurs, [00:11:36] Speaker 02: If third parties still have the right, even when title does best pursuant to the section after section eight, third parties still have rights to bring their claims and say, wait a minute, we still should be allowed to pursue whatever rights I have against the asset because I'm an innocent third party and it's not fair that you're taking those assets away from the government. [00:11:55] Speaker 02: Here, 2467 doesn't have that language. [00:11:58] Speaker 02: So as a third party, innocent to all of the underlying the criminal forfeiture proceeding in Brazil, [00:12:07] Speaker 02: The liquidators absolutely have a right to this. [00:12:09] Speaker 02: Maybe the government has a separate view of how Brazil's judgment should stand in relation to it, but both of them are legitimate judgments. [00:12:17] Speaker 02: One of them was issued by a Southern District Bankruptcy Court in New York in 2010. [00:12:21] Speaker 02: One was more recently issued by the District Court in the District of Columbia and the Brazilian Court in Brazil. [00:12:27] Speaker 02: and then a determination between those two should be made. [00:12:30] Speaker 02: And there is absolutely, I believe, there is standing in order for the court to give that to a district court and say, please figure out which one of these two claimants has the greater claim. [00:12:40] Speaker 01: One thing the government says is essentially that if you had a priority argument, you should have gone to the Brazilian court and made that argument there. [00:12:53] Speaker 01: What is your response to that? [00:12:57] Speaker 02: First of all, it's not clear that that's even would have been a possibility. [00:13:00] Speaker 02: But leaving aside whether it was a possibility or not, we were the funds that we were seeking to obtain in relation to the judgment that we have sat in the United States held in a U.S. [00:13:11] Speaker 02: Marshals account at the time. [00:13:13] Speaker 02: We brought our claim to the U.S. [00:13:15] Speaker 02: They then interpleaded those funds in the United States court, named us as the interpleader defendant and asked the court to determine the priority of argument vis-a-vis everyone else. [00:13:24] Speaker 02: So we participated in that litigation all the way through the Second Circuit back and all the way to here. [00:13:29] Speaker 02: There's no reason why we wouldn't [00:13:33] Speaker 02: pursue the lawsuit and pursue the money where it's that versus having to go to Brazil and there's no into a criminal proceeding that we weren't party to unrelated to what our judge having nothing to do with our judgment. [00:13:46] Speaker 02: It just wouldn't make any sense for us to have gone and done that there when we were already here. [00:13:51] Speaker 02: And so there's the money we were seeking to execute. [00:13:54] Speaker 02: I think I have a minute and a half left. [00:13:59] Speaker 04: Judge Rogers, do you have any questions? [00:14:02] Speaker 04: Not now. [00:14:03] Speaker 04: Thank you. [00:14:05] Speaker 04: We'll give you some time. [00:14:06] Speaker 04: Thank you. [00:14:22] Speaker 00: Morning. [00:14:23] Speaker 00: May it please the court shy Bronstein for appellee of the United States of America. [00:14:27] Speaker 00: This court should affirm the dismissal of the interpletor action because the 2467 action definitively disposed of the funds at issue in this case. [00:14:37] Speaker 00: The judgment in the 2467 action, which was not challenged, which is not an appeal, vested the rights entitled to the Venus account in the United States, it declared it forfeit, and it held all other claims to those funds in default. [00:14:53] Speaker 00: There is no further relief that the court can issue in the interpletor action, and therefore it is moved. [00:14:58] Speaker 04: So why can't in the interpletor action, the court simply determine the priority? [00:15:04] Speaker 04: And perhaps the United States wins because of its 2467 judgment. [00:15:08] Speaker 04: But why shouldn't that have to be resolved in the interpletor court? [00:15:13] Speaker 00: The reason for that, Your Honor, is that section 2467 is a mandatory statute. [00:15:18] Speaker 00: It is a statute of exceeding deference, and it puts priority on the 2467 action. [00:15:24] Speaker 00: It says, for instance, in section D, the most important language of the court shall enter orders to enforce the 2467 action. [00:15:32] Speaker 00: It also cabins the judiciary's discretion. [00:15:35] Speaker 00: It says in subsection E, the court shall be bound by the findings of fact in the foreign judgment. [00:15:40] Speaker 04: And so maybe that's all, but why wouldn't that have to go back to the interpleader? [00:15:46] Speaker 04: I mean, this is a very peculiar situation because obviously the United States brought this interpleader action during the sort of six months between Tiger Eye and the amendment to the statute allowing the restraining of funds. [00:15:59] Speaker 04: So it's kind of a strange circumstance, but now that the interpleader has been initiated, why shouldn't it determine the priority? [00:16:08] Speaker 00: Because of the nature of the judgment, Your Honor, in the 2467 action, the forfeiture order is a forfeiture order. [00:16:17] Speaker 00: It is an order in rem with respect to specific property. [00:16:21] Speaker 00: It is to be enforced per subsection C1 as if the judgment were entered in the United States. [00:16:27] Speaker 00: And so the court, in its thinking, can look to domestic forfeiture law and what an in rem process looks like. [00:16:33] Speaker 00: This is a process by which all of the rights to that specific property are decided exclusively in that action, and as to the United States as against the entire world. [00:16:45] Speaker 00: So it is an in-rem process, and it is a forfeiture. [00:16:48] Speaker 00: Now, as to the argument about could they have brought the claims, they absolutely could have and should have. [00:16:55] Speaker 00: in the Brazilian action. [00:16:57] Speaker 00: The liquidators, as the record makes clear, did have notice since at least June of 2010, in fact, before the interpletor action was filed, that they could have brought a claim in the Brazilian action, and they were instructed about the ability to bring that in for their filing. [00:17:12] Speaker 04: So let me ask you conceptually about mootness. [00:17:16] Speaker 04: So one way the interpletor can be moot is if there's no longer an injury to the United States, which is the party that brought the interpletor. [00:17:25] Speaker 04: Another way it could be moot is if there's no longer any redressability and the court can't order relief. [00:17:33] Speaker 04: And so I'm wondering which is the better conceptual way to think about mootness here. [00:17:39] Speaker 00: And I think I think the court can approach it in either direction. [00:17:43] Speaker 00: There is no relief that can be offered by the court because what's being disputed in the interpletor action is effectively who gets who gets these funds. [00:17:52] Speaker 00: The court in the twenty four sixty seven action has already said the United States has them their forfeit. [00:17:58] Speaker 00: And so therefore there's no live controversy effective that the court can grant the fund in the interpletor. [00:18:05] Speaker 00: An interpleader action in this context is also incoherent because the very nature of an interpleader action is where the plaintiff stakeholder disclaims any right to the property that it is interpleading. [00:18:16] Speaker 00: Because of the 2467 judgment, which vests title in the United States, the United States is no longer a disinterested plaintiff stakeholder. [00:18:25] Speaker 00: It's now a very interested holder and has a claim to that property. [00:18:30] Speaker 04: So maybe that is the better ground for mootness then. [00:18:34] Speaker 04: that the United States no longer has the type of article three injury that makes it appropriate to seek interplator. [00:18:42] Speaker 00: Your honor, the government believes that either path to mootness is equally valid. [00:18:47] Speaker 00: There does not seem to be a dispute. [00:18:49] Speaker 00: And so there is, or excuse me, there does not seem to be relief granted. [00:18:53] Speaker 00: And so there is mootness on that ground. [00:18:55] Speaker 04: But as you- To determine that there can't be relief granted, we would have to make a number of pronouncements about how 2467 [00:19:04] Speaker 04: works in this context where there is one there is a judgment for the liquidators from one court and there's a 2467 judgment from the district court and maybe perhaps that is a perhaps it would be more minimalist to say you know probably maybe it might be a more narrow decision to determine that there's no longer an injury here [00:19:24] Speaker 00: That would be a narrow path, Your Honor. [00:19:26] Speaker 00: We would agree with that. [00:19:27] Speaker 00: Because as the court raises, there is no longer Article III standing in the sense that there is no longer an Article III controversy, because the United States would stand as both the plaintiff's stakeholder and a defendant interest holder. [00:19:42] Speaker 04: And do you agree that you need Article III standing for interpleader? [00:19:47] Speaker 04: There are not a lot of cases about this. [00:19:48] Speaker 04: And there are very few cases involving the US seeking interpleader. [00:19:52] Speaker 00: That's correct, Your Honor. [00:19:53] Speaker 00: We're not aware of any. [00:19:56] Speaker 00: There are very few cases, as the court will note, on both Section 2467 and Interpletor in this context. [00:20:02] Speaker 00: And that's, of course, exactly the issue that the court has raised. [00:20:05] Speaker 00: This is a very unique circumstance. [00:20:07] Speaker 00: where Section 2467 said one thing, Tiger Eye came and said the United States is interpreting it wrong. [00:20:14] Speaker 00: And then there's only about a five-month doughnut hole between when that happens and when it gets fixed, which should show the court how important Congress understood that to be. [00:20:23] Speaker 00: That's a remarkably quick period of time to amend the statute to fix that issue. [00:20:29] Speaker 00: And so, in this case, the 2467 action does definitively dispose of the assets unless there is one of five enumerated exceptions that the liquidators could have raised in that action. [00:20:42] Speaker 00: It was not to they could have raised the due process arguments they could have raised the lack of notice and ability to challenge it and yet they did not in fact the proposed order the judge Garcia you referenced earlier I dock at 30 they effectively concede all of the enumerated exceptions to 2467. [00:21:00] Speaker 00: So the liquidators knew that they were going to end up with this judgment that says that the property is forfeited. [00:21:07] Speaker 00: In fact, they almost asked for that by not challenging and not raising any of the enumerated exceptions to 2467. [00:21:14] Speaker 01: You mentioned normal domestic forfeiture proceedings. [00:21:20] Speaker 01: And you said, I think, that essentially the forfeiture proceeding is dispositive and final. [00:21:27] Speaker 01: Are there any exceptions to that, for example, if someone just doesn't receive notice of the proceeding? [00:21:34] Speaker 00: Of course. [00:21:35] Speaker 00: There are due process requirements baked into and as part of domestic forfeiture proceedings that ensure that potential claimants have notice to initiate a claim as against the potentially forfeited property. [00:21:49] Speaker 00: And so 2467 is actually a close analog to those due process protections in the United States. [00:21:56] Speaker 00: It requires that there be a system of due process, that the court have jurisdiction, that the judgment not be entered by fraud, and the potential claimants have notice. [00:22:05] Speaker 00: And so all of those were met. [00:22:08] Speaker 01: So it's effectively your position is, and maybe we don't have to resolve these questions in this case, but that what 2467 envisions is that everybody with a priority claim would actually litigate that in the foreign court, not in a domestic court. [00:22:24] Speaker 01: And once we're in a 2467 proceeding, their only argument will be lack of notice. [00:22:29] Speaker 00: That's exactly right, Your Honor. [00:22:31] Speaker 00: The liquidators could have brought that claim of priority in the Brazilian litigation. [00:22:37] Speaker 00: Brazilian law does allow for the relation back doctrine, just like the United States, and that was raised in several of the filings in this case. [00:22:45] Speaker 00: But the proper place to raise that challenge was in the forfeiture action in Brazil. [00:22:51] Speaker 00: The liquidators had notice of it. [00:22:52] Speaker 00: The liquidators acknowledged that they had notice of it. [00:22:55] Speaker 00: And they could have raised exactly that defense. [00:22:57] Speaker 00: So by the time the Brazilian government, Brazilian courts have issued [00:23:01] Speaker 00: an in-rem forfeiture saying that this property is forfeit and title should vest in Brazil, all that's left for the 2467 action, because of this deferential language, is first for the attorney general to decide whether that system was fair, whether it had due process, and then whether it's in the interest of justice in the United States to enforce that forfeiture order. [00:23:24] Speaker 00: Once the Attorney General makes that decision and certifies it, that decision in B2, subsection B2, is final and not subject to judicial review and not subject to administrative review. [00:23:37] Speaker 00: The court in subsection E shall be bound by the findings of fact of the foreign judge. [00:23:41] Speaker 00: And in subsection D, the court shall enter orders to enforce. [00:23:46] Speaker 00: And so as I said, section 2467 is one of exceeding deference. [00:23:50] Speaker 00: It's as if in subsection C, the US court had issued a forfeiture judgment. [00:23:56] Speaker 00: And so all of the concerns that the liquidators raise about priority or things like that, they're baked into the Brazilian forfeiture proceedings. [00:24:05] Speaker 00: And it's part of the statute to consider that those have to be available. [00:24:10] Speaker 05: So following up on a question asked, I think, by Judge Rao, there is no interpleader action left, in a sense, in connection with this particular controversy. [00:24:25] Speaker 05: That's the United States position. [00:24:28] Speaker 05: So it could not bring an interpleader action at this point. [00:24:33] Speaker 00: That's exactly right, Your Honor. [00:24:35] Speaker 00: At this point, the United States has titled to the property and per the 2467 order and per its treaty obligations and Section 2467. [00:24:45] Speaker 00: Once the stay is lifted, it will transfer that property to Brazil. [00:24:53] Speaker 04: Um, let me ask. [00:24:55] Speaker 04: I'm interested in your view. [00:24:56] Speaker 04: Question. [00:24:57] Speaker 04: I asked the liquidators as well. [00:25:00] Speaker 04: Um, if the interpletor is moot, would the US be subject to a suit from the liquidators for this property? [00:25:07] Speaker 04: Could they be? [00:25:08] Speaker 00: But I apologize. [00:25:10] Speaker 00: I couldn't. [00:25:10] Speaker 04: I mean, if the interpletor is moot, do you think the bank liquidators could bring a suit against the United States for this property? [00:25:19] Speaker 00: they would not have a claim against the United States. [00:25:21] Speaker 00: At this point, the United States has an in rem. [00:25:26] Speaker 00: It has a forfeiture of the property. [00:25:29] Speaker 00: And as the court held in the 2467, all claims to the property are held in default. [00:25:34] Speaker 00: And so that would extinguish the liquidator's claim as against the United States. [00:25:38] Speaker 00: And that is yet another reason why the interpletor action is rendered incoherent by the decision in the 2467 action. [00:25:46] Speaker 00: The United States effectively would have to stand on both sides. [00:25:50] Speaker 00: The property is no longer within the court's ambit because the district court has said that the property is forfeit. [00:25:57] Speaker 00: And there's no relief that can be granted. [00:26:00] Speaker 00: And so whether the court takes that approach as there's no relief or whether there's no controversy, the government's position is either way it leads to the same conclusion. [00:26:09] Speaker 00: The action is incoherent and unconstitutional and should not be allowed to proceed because the court lacks jurisdiction. [00:26:18] Speaker 05: So basically, you view the intercollegiate concern here arising simply from the fact that [00:26:27] Speaker 05: It litigated this for years, had a judgment, and then the law changed. [00:26:32] Speaker 05: And of course, it says, well, the government changed its position, but. [00:26:38] Speaker 00: So the government did not change its position about the interpletor. [00:26:42] Speaker 05: No, I understand your position, but from the liquidator's point of view, there was a change. [00:26:50] Speaker 05: And the government says, well, we're simply following the law as it's now been. [00:26:56] Speaker 05: articulated. [00:27:00] Speaker 00: That's correct. [00:27:01] Speaker 00: I think there's two responses to that. [00:27:03] Speaker 00: The first is the government is following the laws that's been articulated in the change 2467, but also following the order of the Second Circuit, which was instructing the government about the penal law rule effectively. [00:27:16] Speaker 00: It required that if Brazil is going to bring its forfeiture judgment into the United States, it has to happen through 2467. [00:27:25] Speaker 00: And so the government, far from changing tactics or things like that, is simply following the Second Circuit's requirement in this regard. [00:27:32] Speaker 00: Now, in terms of the liquidators arguing, well, we've been litigating this for a long time, that may be the case. [00:27:39] Speaker 00: But they've been on notice for 13 years now that if they wanted to challenge the Brazilian forfeiture order, they should have done that in Brazil. [00:27:47] Speaker 00: That's baked into those proceedings. [00:27:49] Speaker 00: It's part of Section 2467. [00:27:51] Speaker 00: They chose at their own peril to litigate exclusively in the interpleader action, which now that there is a foreign final judgment and now that the court has decided to enforce it, [00:28:01] Speaker 00: and forfeit those funds, disposes of their claims. [00:28:06] Speaker 00: See, my time is nearly up. [00:28:07] Speaker 00: If there are no further questions, the government would respectfully request that the court affirm the dismissal of the Interpreter Act. [00:28:13] Speaker 05: Thank you. [00:28:21] Speaker 04: I'll give you two minutes on rebuttal. [00:28:24] Speaker 04: I said, we'll give you two minutes on rebuttal. [00:28:26] Speaker 02: Thank you. [00:28:27] Speaker 02: I'd like to just make two points and then answer any questions. [00:28:30] Speaker 02: One of the points is that both the governments, many of the questions here today and the government just appears to be that once there's a forfeiture, the game is over for everyone. [00:28:39] Speaker 02: That is it. [00:28:39] Speaker 02: Like pay to complete. [00:28:41] Speaker 02: But that isn't the case. [00:28:42] Speaker 02: And that's not what the, in fact, you can look to actual domestic for forfeiture law to determine that it isn't the case, right? [00:28:50] Speaker 02: If it was the case that once a forfeiture occurs, [00:28:53] Speaker 02: all as to everyone else in the globe the United States has greater title then why is the relation back doctrine incorporated in both 981 to section F and 881 to section H which best title in the previous time then when the forfeiture occurred because you wouldn't need to which improves the priority of the government right [00:29:14] Speaker 02: that's why the game isn't over and why we have to now go do a priority termination to determine whether the claim was over or not. [00:29:23] Speaker 02: So that's why the game isn't over and why we have to now go do a priority termination to determine whether the claim was over or not. [00:29:40] Speaker 02: So that's why the [00:29:43] Speaker 02: whether the 2467 and underlying criminal proceeding in Brazil governs and has priority or the liquidators. [00:29:53] Speaker 02: The other point I want to make is that while I understand that we spent a lot of time not talking about the Second Circuit opinion, it is the opinion that governs the interpleter, which is where this appeal sits. [00:30:02] Speaker 02: It is the opinion that describes how this whole process was supposed to play out. [00:30:06] Speaker 02: And in that opinion, it explicitly says that what Brazil tried to do the first time by asserting that the initiation of the interpleter was an exception to the penal law rule was to quote unquote, bypass the actual exception to the penal law rule, which is the 2467 process. [00:30:22] Speaker 02: The only place where an exception even matters is if the rule itself is going to be applied. [00:30:27] Speaker 02: Otherwise, you don't need an exception because you don't have a rule. [00:30:30] Speaker 02: The only place the rule applies is the interpleter, because the penal law rule has nothing to do with the 2467. [00:30:36] Speaker 02: It's not a defense there. [00:30:38] Speaker 02: So for the exception, as the Second Circuit described it to matter, we have to go back to the interpleter. [00:30:44] Speaker 02: We have to, the liquidators have to say, [00:30:46] Speaker 02: penal law rule blocks you, which has already happened. [00:30:48] Speaker 02: Then Brazil or the United States has to say, wait, we have an exception to the penal law rule. [00:30:53] Speaker 02: Here's our 2467 that we did pursuant to what the Second Circuit told us to do. [00:30:58] Speaker 02: And now we should win. [00:31:00] Speaker 02: And then we will say, we should win. [00:31:02] Speaker 02: And then the district court should determine who, in fact, does win. [00:31:05] Speaker 02: That is how this should play out. [00:31:06] Speaker 02: That is the course that the government set in 2010 when they initiated this interpleader and the course the Second Circuit outlined in its opinion. [00:31:14] Speaker 02: And that is what should govern. [00:31:15] Speaker 02: this course decision on the motion to discuss. [00:31:18] Speaker 03: Thank you. [00:31:18] Speaker 03: Thank you. [00:31:22] Speaker 03: It's a submitted.