[00:00:00] Speaker 04:
Good morning and welcome to the Ninth Circuit.

[00:00:05] Speaker 04:
Glad to be here with my colleague Judge McCune and Judge Boggs has kindly agreed to join us as a visiting judge and we're certainly grateful for his work to help us manage our caseload.

[00:00:20] Speaker 04:
We have three arguments set to be heard this morning, so just watch your time.

[00:00:27] Speaker 04:
Let us know if you want

[00:00:29] Speaker 04:
to reserve rebuttal time and just try and sum up as your time is concluding.

[00:00:34] Speaker 04:
If it's red and counting upwards, it doesn't mean you've got extra time.

[00:00:37] Speaker 04:
That means you're out of time.

[00:00:41] Speaker 04:
Obviously, if we take you over, that'll be fine.

[00:00:43] Speaker 04:
But with that, we'll go ahead and get started with the first argument set, which is United States versus Myers case number 23-1034.

[00:00:57] Speaker 04:
And who do we have?

[00:00:59] Speaker 04:
We have Mr. Pope first?

[00:01:01] Speaker 04:
Yeah.

[00:01:02] Speaker 04:
OK.

[00:01:03] Speaker 04:
From Boise, Idaho.

[00:01:04] Speaker 04:
All right.

[00:01:04] Speaker 04:
Well, good.

[00:01:05] Speaker 04:
A good state.

[00:01:06] Speaker 04:
So hopefully that will bode well for you.

[00:01:08] Speaker 04:
All right.

[00:01:08] Speaker 04:
Go ahead.

[00:01:12] Speaker 00:
Thank you very much.

[00:01:13] Speaker 00:
Miles Pope for Ronald Myers, and I'd reserve two minutes for rebuttal.

[00:01:18] Speaker 00:
Interpreting section 364 in to apply only to windfalls and not to gradual accumulations of resources offers the best reading of that provision and avoids numerous interpretive and practical problems that the government's interpretation creates.

[00:01:34] Speaker 00:
Limiting 3664N to windfalls first provides a principled explanation for why, as is common ground in this case, 3664N excludes prison wages.

[00:01:47] Speaker 00:
Second, it minimizes surplusage in this.

[00:01:50] Speaker 04:
So can I ask about that?

[00:01:52] Speaker 04:
Because I understand the practical arguments, but I'm trying to look at the language.

[00:01:57] Speaker 04:
And I just want to be clear about where the windfall except because it has been adopted, including from the Great Circuit, the Sixth Circuit, I guess, in a way.

[00:02:07] Speaker 04:
And I'm trying to figure out linguistically where that comes from.

[00:02:11] Speaker 04:
Does that come from the substantial or does that come from the three examples

[00:02:16] Speaker 00:
It comes from, in my view, it comes from three examples.

[00:02:19] Speaker 00:
So, I mean, you have to read them in tandem, but essentially, as I think the courts have analyzed it, and I think they've got it right, the POF panel, as well as the Sixth Circuit and the other courts that have weighed in, basically you're trying to give effect to every word in the statute.

[00:02:33] Speaker 00:
So you have substantial resources from any source, any sources naturally read as singular, and then- Well, but, okay, so, I mean, we've got a host of problems, because that's not necessarily true.

[00:02:44] Speaker 04:
Source singular is commonly,

[00:02:46] Speaker 04:
Any source is almost inevitably a plural as well.

[00:02:51] Speaker 04:
Any source is any source, whether it's singular or plural.

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It doesn't say a source.

[00:02:56] Speaker 04:
It says any source.

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Singular includes the plural.

[00:03:00] Speaker 02:
That's a common canon of construction, isn't it?

[00:03:04] Speaker 00:
Well, so I think, again, two points in response to that.

[00:03:09] Speaker 00:
The first is Congress had available any sources, including, and they could have said that.

[00:03:14] Speaker 00:
But secondly, if the court views any sources essentially, if not ambiguous, at the very least unhelpful to resolving this problem, I think you go on to look at the enumerated list of examples.

[00:03:28] Speaker 00:
And you ask, OK, what is the purpose of those examples?

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

[00:03:34] Speaker 01:
The difficulty with that analysis is you have to start with any.

[00:03:39] Speaker 01:
And that has a very clear meaning.

[00:03:40] Speaker 01:
It doesn't seem ambiguous.

[00:03:43] Speaker 01:
But to the extent that inheritance settlement or other judgment is clarifying, it's not limiting.

[00:03:52] Speaker 00:
Agree.

[00:03:52] Speaker 00:
Well, it's not limiting, but I think we

[00:03:55] Speaker 00:
I think the court needs to look at those words, those three enumerated examples, and ask, OK, well, what is their function?

[00:04:02] Speaker 00:
What is their purpose in the statute?

[00:04:04] Speaker 00:
And it seems to me that, as a previous panel of this circuit and courts have held, you look at something that they all have in common.

[00:04:12] Speaker 00:
And what they all have in common is that they are essentially a form of windfall.

[00:04:16] Speaker 00:
They're sort of out of the ordinary.

[00:04:17] Speaker 04:
I want to push back on that a little bit, because I'm not sure that I buy into that.

[00:04:23] Speaker 04:
I mean, I'll bet you could look at a lot of inheritances that aren't windfalls.

[00:04:27] Speaker 04:
I mean, there's a lot of inheritances where you just get a nominal amount of money, you know?

[00:04:32] Speaker 04:
And so I'm not sure why inheritance... You're right.

[00:04:38] Speaker 04:
Other courts have said that, but it's not intuitive to me why inheritance means windfall.

[00:04:44] Speaker 00:
Well, so I think...

[00:04:47] Speaker 00:
To address the question from a slightly different angle, there is this beginning data point, which is that we have courts that have held that prison wages are not subject to seizure under subsection A. I mean, that's a whole separate question.

[00:04:59] Speaker 04:
And I'm going to ask the government about that, because that's not intuitive to me either.

[00:05:04] Speaker 04:
But that appears to be what the government's clear position has been.

[00:05:07] Speaker 04:
And you're right.

[00:05:08] Speaker 04:
That's where they've interpreted it.

[00:05:10] Speaker 04:
But that seems to be a different issue.

[00:05:12] Speaker 04:
I mean, prison wages are, what are we talking about?

[00:05:15] Speaker 04:
It's like a dollar an hour?

[00:05:17] Speaker 01:
not substantial in any event.

[00:05:19] Speaker 00:
Well, but if there are accumulations of, so let's say you're in unicorn, you're making a $1.15 an hour over, and you're working full-time five days a week, you know, that's, in six months, that accumulates to the equivalent of what the government sought to seize in this case.

[00:05:33] Speaker 00:
And so I think you do, there is a problem there, like, in terms of, you know, the government, there's,

[00:05:38] Speaker 00:
There is one way this court could go, and it could say, if it accepts the government's concession and it doesn't want to create a circuit split, it could say, look, prison wages are its own unique beasts.

[00:05:46] Speaker 00:
There are a bunch of policy reasons for us to basically carve them out of the statute.

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But that's not how statutory interpretation is supposed to work.

[00:05:52] Speaker 00:
You need to provide a coherent interpretation or construction of the statute that actually has textual integrity.

[00:06:00] Speaker 00:
And my interpretation, the interpretation I've advanced, where you limit subsection N to windfalls, to large, single, out of the ordinary grants, accomplishes that objective.

[00:06:11] Speaker 02:
Let me ask you, in linguistics, about in the inheritance settlement, the phrase is inheritance settlement or other judgment.

[00:06:21] Speaker 02:
And to me, an inheritance requires a judgment, settling a will, or an intestacy settlement.

[00:06:29] Speaker 02:
of a case is a judgment.

[00:06:31] Speaker 02:
That's why those things were put in, not to make a windfall definition.

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but just to put them in to make sure that we are including things that are judgments.

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Those are the three things.

[00:06:44] Speaker 02:
Other judgment.

[00:06:45] Speaker 00:
I mean, so that's certainly... Does that make sense?

[00:06:48] Speaker 00:
Absolutely.

[00:06:49] Speaker 00:
That's one thing that all three of those examples have in common.

[00:06:52] Speaker 00:
I think that the POF Court, the other courts that have interpreted this more broadly to apply to windfalls writ large, have been trying to give effect to the expansive phrase at the beginning.

[00:07:01] Speaker 00:
To substantial resources from any source, specifically.

[00:07:06] Speaker 04:
To me, substantial is where this case...

[00:07:08] Speaker 04:
The focus has been on these last three examples, but to me the focus really should be on substantial.

[00:07:14] Speaker 04:
Because if windfall is going to come anywhere, I think it's got to be shoehorned into substantial.

[00:07:20] Speaker 04:
I'm not sure it fits, but it seems to fit more clearly there than it does in these three examples.

[00:07:28] Speaker 04:
You'll take the argument however you can get it.

[00:07:30] Speaker 00:
No, I love that.

[00:07:32] Speaker 00:
But the other thing I would say is that I appreciate the desire to really hone in on, okay, what is the exact snippet of text in this statute that we want to look at?

[00:07:43] Speaker 00:
I do think it needs to be read in context as a whole, which brings me to...

[00:07:49] Speaker 00:
It's sort of resisting the court's line of questioning a little bit, and I don't mean to do that.

[00:07:54] Speaker 04:
Well, no.

[00:07:54] Speaker 04:
I mean, I get your point.

[00:07:56] Speaker 04:
But to me, context would be totally different if substantial wasn't there.

[00:08:02] Speaker 04:
I mean, then I think you, I mean, obviously, if it didn't say substantial, then the inference would be anything.

[00:08:10] Speaker 04:
You know, any amount of money could come in.

[00:08:12] Speaker 04:
Substantial has to mean something.

[00:08:14] Speaker 04:
I agree.

[00:08:14] Speaker 04:
I just don't know that it means windfall.

[00:08:16] Speaker 00:
So I agree, it needs to mean something.

[00:08:18] Speaker 00:
And I think that if you read that entire phrase, substantial, the Sixth Circuit is noted, substantial means large, significant.

[00:08:23] Speaker 00:
I agree with that.

[00:08:25] Speaker 00:
Resources from any source, which again, push back on this, but singular, including, and then there's this list of things, all of which have in common a, you know, it's basically a single, out of the ordinary grant.

[00:08:38] Speaker 00:
I think that that reading gives effect to every word in the statute.

[00:08:43] Speaker 01:
Well, I would argue the opposite.

[00:08:45] Speaker 01:
I think it would mean

[00:08:46] Speaker 01:
that don't exclude this, these three things, just because it's an out of the ordinary, I won't call it windfall, arrival of resources or money.

[00:08:59] Speaker 01:
So that's the other way to read this is to, that if you say resources from any sources, well, you know, it's not really fair if I got this inheritance, you know, that's my family, or I settled my lawsuit.

[00:09:13] Speaker 01:
And basically,

[00:09:15] Speaker 01:
the statute is saying no, even though these things might seem near and dear to you because they're special, they're included.

[00:09:24] Speaker 01:
So it's like flipping it instead of trying to find its cousins or its brothers or sisters because it's got these three words.

[00:09:31] Speaker 01:
So I would go at it backwards from where you're going at it.

[00:09:35] Speaker 00:
Well, it's unclear to me why.

[00:09:36] Speaker 00:
I mean, I'm not entirely sure that Congress would have thought that if they just deleted that list of examples and just said substantial resources from any source.

[00:09:45] Speaker 00:
I mean, I don't know if there's any.

[00:09:46] Speaker 00:
Certainly, the government hasn't pointed to any sort of background assumptions or beliefs that would say, well, you'd exclude judgments and settlements from that language, and the language would be clear.

[00:09:53] Speaker 00:
So it doesn't seem to me that Congress is doing much.

[00:09:55] Speaker 04:
I thought they had, because I thought there was some other statutes that had actually excluded

[00:10:02] Speaker 04:
inheritances in certain circumstances from a judgment collection.

[00:10:06] Speaker 00:
Absolutely.

[00:10:07] Speaker 00:
And that illustrates that when inheritances are excluded, the legislatures act to affirmatively and explicitly exclude them.

[00:10:14] Speaker 00:
I think that actually supports.

[00:10:16] Speaker 04:
Can I just ask quickly on the circuit split?

[00:10:19] Speaker 04:
Because you suggested that we would be creating a circuit split.

[00:10:22] Speaker 04:
And I'm not sure I agree with that.

[00:10:24] Speaker 04:
I want to hear your response.

[00:10:25] Speaker 04:
As I tally this up, we got the Fifth Circuit, I mean, and the cases aren't exactly cohesive.

[00:10:31] Speaker 04:
They're all coming at this from different ways, but we got the Fifth and the Sixth Circuit and maybe the First Circuit that sort of adopt at least some portion of your analysis, but we also have the Eighth and the Seventh and the Tenth that go the other way.

[00:10:44] Speaker 04:
Now, granted, some of those are unpublished.

[00:10:47] Speaker 04:
So, I mean, isn't there already at least some tension in the circuits, if not a clear split on

[00:10:53] Speaker 00:
Well, with respect to the, the Eighth is the published case that I think I need to address most firmly, because that's actually published.

[00:11:01] Speaker 00:
And I resist the government's reading of that.

[00:11:04] Speaker 00:
The government sort of suggests, well, there's some ambiguity.

[00:11:06] Speaker 00:
But the Eighth Circuit's, you know, the language in the Eighth Circuit case in US v. Kidd essentially asserts that it is substantial resources from an outside source.

[00:11:18] Speaker 00:
And then it is true that later on in Kidd,

[00:11:22] Speaker 00:
You know, they note that additionally the $5,000 at issue could include the receipt of substantial resources from outside sources that would be subject to Section 3664N.

[00:11:36] Speaker 00:
But if you read on from there, the next sentence, and that's a sentence that the government keys in on in its answering brief,

[00:11:41] Speaker 00:
The next sentence is, or perhaps more likely, the 5500 may be an accumulation of small amounts received from various sources that together amount to a material change.

[00:11:50] Speaker 00:
So I think what the Eighth Circuit is doing, again, to solve the prison wage problem, is saying, look, you cannot, you know, a single outside source may amount to substantial resources.

[00:12:03] Speaker 00:
That single outside source, even in the context of $5,500, if you get $4,500, maybe that's substantial resources, but that's a single outside source.

[00:12:11] Speaker 00:
I don't read that as walking back from the analysis that it leads with earlier on when it's trying to explain why prison wages are not subject to seizure under subsection A. And so from the published cases perspective, I do think this court will be opening up a split based on the analysis that those cases undertake.

[00:12:30] Speaker 00:
I'm blinking red.

[00:12:31] Speaker 04:
Yeah, you are.

[00:12:33] Speaker 04:
But again, we took you over, so you're fine.

[00:12:35] Speaker 04:
We'll give you some time for rebuttal.

[00:12:36] Speaker 00:
I appreciate that.

[00:12:37] Speaker 00:
We'll hear from the government.

[00:12:38] Speaker 00:
Thank you.

[00:12:52] Speaker 03:
Good morning.

[00:12:52] Speaker 03:
Brian Donovan on behalf of the United States.

[00:12:56] Speaker 03:
Um, if it may please the court, this is a, as the court has already honed in on, I think a very simple statute with some very relatively clear language that I think.

[00:13:05] Speaker 04:
Well, you say it's clear and yet we've got about six opinions that all come out different ways.

[00:13:11] Speaker 03:
Yeah, I agree.

[00:13:12] Speaker 03:
But I think that's like you said earlier, your honor, the opinions are coming at these from different directions.

[00:13:16] Speaker 03:
And I think this is the first case that's coming at it from this direction.

[00:13:19] Speaker 03:
And I would disagree with my opposing counsel about his overstatement.

[00:13:24] Speaker 03:
I think of.

[00:13:25] Speaker 03:
creating a circuit split here.

[00:13:27] Speaker 03:
If you look at Carson from the Sixth Circuit, it didn't really wrestle with this question.

[00:13:32] Speaker 03:
In fact, it talked about how the problem in Carson was the court didn't do the analysis that this court did where it looked at the entire ledger.

[00:13:39] Speaker 03:
It didn't look at the ledger.

[00:13:40] Speaker 03:
It didn't know where the money was coming from in the inmate's account.

[00:13:44] Speaker 03:
And send it back.

[00:13:44] Speaker 04:
Carson was focused primarily, maybe solely, on whether prison wages

[00:13:50] Speaker 04:
were substantial.

[00:13:51] Speaker 03:
Correct.

[00:13:51] Speaker 03:
And the district court hadn't done an analysis of what the money was.

[00:13:56] Speaker 03:
And it sent it back.

[00:13:56] Speaker 03:
And it actually talked about if there was a few dollars put in a commissary account, that would be one thing.

[00:14:02] Speaker 03:
But if there are thousands of dollars placed in by family and friends, that would be another thing.

[00:14:06] Speaker 03:
And it sent it back for remand to do that analysis.

[00:14:10] Speaker 03:
That is what we have here.

[00:14:11] Speaker 02:
Did anything come of that remand that you know about?

[00:14:15] Speaker 02:
I don't know the answer.

[00:14:16] Speaker 02:
Because I did spend a good bit of time with this ledger.

[00:14:20] Speaker 02:
And the practical question I have is kind of, how did you glom onto this guy this particular year?

[00:14:27] Speaker 02:
He's been in prison for 10 years.

[00:14:30] Speaker 02:
He's been getting the same kinds of money all along.

[00:14:34] Speaker 02:
If you win your case,

[00:14:39] Speaker 02:
I presume that the family will quit sending him money.

[00:14:42] Speaker 02:
They'll put it in a bank account in wherever he's from, or he'll spend it down every time so it never becomes substantial.

[00:14:51] Speaker 02:
So is there a new drive to do this to all the prisoners in Eastern Washington or in the whole US?

[00:14:59] Speaker 02:
As a practical matter, how did you get this started?

[00:15:02] Speaker 03:
As a practical matter, Your Honor, it's something that we've done for a while, the Department of Justice, but after

[00:15:07] Speaker 03:
to be frank, after the COVID stimulus checks were sent to prisoners across the country, there was more information was provided to our offices about prisoners who had substantial resources.

[00:15:18] Speaker 03:
Partly that was we would look and see what the balances were.

[00:15:21] Speaker 03:
And again, it goes to the substantial resources that Judge Nelson was talking about.

[00:15:25] Speaker 03:
Maybe 12 or $1,600 might not seem substantial to some people, but when somebody's paying $25 a quarter or $100 a year,

[00:15:32] Speaker 02:
$1,200 is a substantial recovery to the right, but do you agree with me the only reason he has a balance?

[00:15:39] Speaker 02:
You the ledger doesn't tell what the balance was at the start of the year But he obviously spent a good bit of money in prison.

[00:15:47] Speaker 02:
That is three or four thousand dollars kind of I presume went to commissary or sneakers or something but

[00:15:56] Speaker 02:
he could have easily kept that balance even lower and you would never have noticed it.

[00:16:01] Speaker 03:
Yes, I agree.

[00:16:02] Speaker 03:
That's also part of the collection difficulties that the government faces with not just this case, but thousands of cases, right, as defendants are spending money.

[00:16:11] Speaker 03:
And if we catch the bank account at the right time, get the commissary at the right time, or the retirement account at the right time, terrific.

[00:16:18] Speaker 03:
we're taking action.

[00:16:19] Speaker 03:
We look at a lot of other defendants who may have had big balances, but they spent them down before we could.

[00:16:24] Speaker 02:
And is it true that the sort of pre-release balance that is mentioned occasionally, that's not really a separate thing?

[00:16:33] Speaker 03:
I am not as familiar with the way BOP does his counting.

[00:16:36] Speaker 03:
Opposing counsel says that this is a specific account, but all the money goes into one commingled account.

[00:16:43] Speaker 04:
They were segregated, because he had to have some that was set for savings for when he was released.

[00:16:49] Speaker 03:
Yeah, and he can tell the BOP to the counselors to parcel off some.

[00:16:53] Speaker 02:
So does that mean you're not trying to go after pre-release balances?

[00:16:58] Speaker 03:
I believe all this money is within both with his in his account.

[00:17:01] Speaker 03:
So then you are.

[00:17:02] Speaker 03:
So it could be both.

[00:17:03] Speaker 02:
But at least from a penological point of view, you're saying there's no there's no point in saving for your release because we're going to grab it.

[00:17:13] Speaker 03:
I'm not sure that's the case, Your Honor, because, first of all, this defendant is not being released until 2040.

[00:17:20] Speaker 03:
So we have a significant amount of time for him to continue.

[00:17:22] Speaker 04:
Well, he owes 2.6 million on another judgment.

[00:17:25] Speaker 04:
Maybe you'll be able to collect by then.

[00:17:27] Speaker 03:
I believe I did the math.

[00:17:28] Speaker 03:
I think his current rate of payment in this case, just our case with $35,000 in restitution, would take about 116 years at the rate that he's paying it off right now.

[00:17:38] Speaker 01:
Let me ask you a different question.

[00:17:40] Speaker 01:
And that's if we look at the word substantial from any source.

[00:17:47] Speaker 01:
And that would suggest that you would link substantial to source.

[00:17:53] Speaker 01:
Has there been a determination that each of these deposits was a substantial source?

[00:18:00] Speaker 03:
I think there is.

[00:18:01] Speaker 03:
If we reference the ledger for that year, he had nine deposits of $300, nine deposits of $100, a deposit of $200, one of $150, and one of $50.

[00:18:12] Speaker 03:
Those are all from outside sources, from family and friends.

[00:18:15] Speaker 01:
But is each of those substantial, $300 or $150?

[00:18:19] Speaker 03:
Well, again, it all goes into context.

[00:18:22] Speaker 03:
He earned, through prison wages in that same time period, $388.

[00:18:27] Speaker 03:
So a single deposit of $300 is fairly substantial.

[00:18:31] Speaker 03:
That's a year's worth of earnings for him, almost a year's worth of earnings.

[00:18:35] Speaker 03:
He got $4,000.

[00:18:37] Speaker 03:
He only got nine deposits of that amount.

[00:18:39] Speaker 03:
I would posit that that is substantial.

[00:18:41] Speaker 03:
And it's substantial not only just from his perspective, it's substantial from the victim's perspective who is not receiving much money at all from this defendant.

[00:18:51] Speaker 01:
Do you agree that you need to look at each deposit individually rather than cumulatively?

[00:18:58] Speaker 03:
I don't believe we have to look at it.

[00:18:59] Speaker 03:
I think opposing counsel keeps using the word single source.

[00:19:05] Speaker 03:
He reads the word single into a statute where the word single doesn't exist.

[00:19:09] Speaker 03:
I think that there can be an accumulation of money.

[00:19:11] Speaker 03:
Because the examples in the statute talk about settlements and judgments, and a lot of those things that the government put in free hand.

[00:19:16] Speaker 01:
But those are singular.

[00:19:18] Speaker 01:
You get a settlement usually.

[00:19:21] Speaker 01:
You get a lump sum, and there may be some payout.

[00:19:23] Speaker 01:
You get an inheritance.

[00:19:27] Speaker 01:
Different family members or friends, former colleagues, sent money individually, 150 here, 100 there, 150 here.

[00:19:40] Speaker 01:
Don't you think you have to look at each of those individually to determine if there was, as they say, substantial from any source?

[00:19:52] Speaker 03:
I don't think you have to look at them in the individual, just a single one, because we're not talking about just taking the single $300 payment.

[00:20:00] Speaker 03:
We're talking about, the panel mentioned earlier that any source is plural, any sources, and that we're looking at whether they have substantial resources combined.

[00:20:12] Speaker 01:
That's a different question.

[00:20:13] Speaker 01:
I mean, I think that we don't really know the answer here.

[00:20:19] Speaker 01:
How do you make the judgment that something is substantial?

[00:20:24] Speaker 01:
And what do you benchmark it against?

[00:20:28] Speaker 01:
And it looks to be from, when they say any source, I think what they're talking about is that it could come from anywhere.

[00:20:39] Speaker 01:
It could come from God.

[00:20:40] Speaker 01:
It could come from a friend, family, whatever.

[00:20:43] Speaker 01:
And then they have these three examples, which we'll get to.

[00:20:51] Speaker 01:
Don't you have to look at each of those individually to determine if it's substantial?

[00:20:59] Speaker 03:
Again, I think that you look at whether the defendant has substantial resources in their inmate account from any source.

[00:21:06] Speaker 03:
And at the time we're looking at it, he had received over the course of the year $4,000 and spent it down to $1,600.

[00:21:15] Speaker 03:
I think you can look at it that way.

[00:21:16] Speaker 03:
I think you could also look at it from the individual sources.

[00:21:19] Speaker 03:
And like they said, a $300 payment might not appear substantial and necessarily, but you have to look at it in the context of the prisoner from their earnings and also what the victim is receiving.

[00:21:30] Speaker 04:
Where do we draw the line?

[00:21:31] Speaker 04:
And this goes back to your apparent concession that prison wages don't fall under the statute, just categorically.

[00:21:41] Speaker 04:
That's because prison wages can never be substantial.

[00:21:45] Speaker 03:
Yeah, I don't believe that they would be substantial in this situation.

[00:21:47] Speaker 01:
So if those numbers are equivalent to what somebody's sending a friend sends, then that also should have the same equivalency, no?

[00:21:56] Speaker 03:
Yeah, but he has much more than just one friend payment in there.

[00:22:00] Speaker 03:
He has four thousands of dollars of friend payments in there, not just one payment.

[00:22:05] Speaker 03:
I would agree with your honor.

[00:22:07] Speaker 01:
How much prison wages is he making a month?

[00:22:11] Speaker 03:
He made three in that year.

[00:22:12] Speaker 03:
He made $388 a year.

[00:22:13] Speaker 03:
So that calculates about $35 a month.

[00:22:17] Speaker 04:
But if you're saying that the accumulation, say he, say he got no other money from anyone else.

[00:22:22] Speaker 04:
He just got prison wages.

[00:22:24] Speaker 04:
He's in till another 15 years.

[00:22:27] Speaker 04:
It sounds like, um, he could have, uh, uh, $4,500.

[00:22:33] Speaker 04:
That would all be prison wages.

[00:22:35] Speaker 04:
And you would say, no, we can't touch that.

[00:22:39] Speaker 03:
I think that in that scenario, given the way that the case law has gone, and I would agree that this is where there is no circuit split, because Kidd also talks about prison wages being excluded, and Carson talks about prison wages being excluded, and the First Circuit in Samish talks about prison wages being excluded.

[00:22:59] Speaker 03:
We have other avenues like 3664K or 3664M that we could, I think, at that point use.

[00:23:07] Speaker 03:
Here, we're talking about substantial resources from any source in his account in 3664N.

[00:23:12] Speaker 04:
So you would say that even under the scenario I gave, where he say he doesn't touch his prison wages for the next 15 years, he has $4,500, you would not be able to touch that under this provision.

[00:23:26] Speaker 04:
You'd have to go at it under K or M.

[00:23:29] Speaker 03:
Yeah, and I think that goes to, I'm over time, but I think that goes to the overall context of the MVRA as well, that Congress is giving the government numerous tools to go after any property.

[00:23:41] Speaker 04:
Here's the problem.

[00:23:42] Speaker 04:
Because if you're right on that, and your position is $4,500, you couldn't do it under this provision, then I don't understand how you can go after $1,300, or would the $1,600 here

[00:23:59] Speaker 04:
under the same theory.

[00:24:01] Speaker 03:
Well, I think it's, I think that's more being, I think that's being too focused on the amount, the equivalence of the amounts rather than the sources of them.

[00:24:09] Speaker 04:
I mean, how else do we look at substantial?

[00:24:12] Speaker 04:
I mean, you're right, there's a whole bunch of variables, but substantial at the end of the day has to be pegged to the amount.

[00:24:20] Speaker 03:
It does, but there's also the any source aspect of it as well.

[00:24:23] Speaker 03:
And I think that, I think,

[00:24:27] Speaker 01:
the limitation of the it'll read literally would include would include prison wages I mean that's the problem is the case laws going over here for understandable reasons that collide with the statute so another question I have is in your view how to how does subsection K intersect with subsection and I believe it's just that there they can be overlapping provisions and I think that

[00:24:57] Speaker 03:
The government could have gone to the court under both theories.

[00:25:02] Speaker 03:
We felt that 3664N works just fine in this area.

[00:25:05] Speaker 03:
N requires a material change.

[00:25:07] Speaker 03:
And K requires a material change.

[00:25:10] Speaker 03:
And there's notice, slightly different notice provisions, which are easy enough to deal with.

[00:25:15] Speaker 03:
But when you look at, partly I was getting into the context, when you look at

[00:25:20] Speaker 03:
the combination of 3664M, which talks about any unavailable means, and 3664N, which talks about this, and 3664K, which talks about if there's a material change, we can go in there and have the court order it.

[00:25:32] Speaker 03:
You're looking at a comprehensive scheme where the Congress is repeatedly saying, if a defendant has resources, there are various ways for the government to get it, and we're going to put very few limitations.

[00:25:45] Speaker 03:
The opposing side is trying to do here is to read in limitations that Congress clearly did not put in the statute.

[00:25:52] Speaker 03:
They're trying to add a word windfall into there that's not in the statute, like your honor's talked about.

[00:25:57] Speaker 03:
They're trying to add the word single in there, which is not in the statute.

[00:26:00] Speaker 03:
And in preparation for today, I was reading Judge McEwen's, Hinken's decision, where you talk about giving the MVRA the force of it, and not rewriting statutes to limit the MVRA, but actually to fill in the gaps, to give it the force and effect that it's required.

[00:26:18] Speaker 03:
And I think that's what is warranted here in this case.

[00:26:22] Speaker 02:
In talking about what is substantial,

[00:26:27] Speaker 02:
Do we need to take inflation into account?

[00:26:30] Speaker 02:
Isn't the MVRA, when was it, a 1980s law?

[00:26:34] Speaker 02:
1996.

[00:26:36] Speaker 02:
So three times as much.

[00:26:37] Speaker 02:
And any given dollar is only worth one third of what it was when the law was passed.

[00:26:45] Speaker 02:
That $300 had been substantial back in 1980.

[00:26:51] Speaker 03:
Well, I'm not the best position to answer that.

[00:26:53] Speaker 03:
But yes, I believe that you could look.

[00:26:57] Speaker 03:
But again, I think it's kind of the comparison to the context and what the person is paying, what the victim is receiving.

[00:27:04] Speaker 03:
The courts talk about that.

[00:27:06] Speaker 03:
And so again, I'm going to go back to the example.

[00:27:08] Speaker 03:
For this defendant, if he's paying $25 a quarter or even $25 a month,

[00:27:13] Speaker 03:
That's $100 to $300 a year.

[00:27:14] Speaker 03:
A $1,200 recovery for the victim, that's four years, at least four years worth of recovery in one hit.

[00:27:22] Speaker 03:
I would say that's very substantial.

[00:27:24] Speaker 03:
Maybe $300 is it?

[00:27:27] Speaker 02:
Victim in this case?

[00:27:28] Speaker 03:
I'm sorry?

[00:27:29] Speaker 02:
Who is the victim in this case?

[00:27:31] Speaker 03:
The victims, he did, he, the victims, car dealerships.

[00:27:34] Speaker 02:
These are people who dealt with them in the car.

[00:27:37] Speaker 03:
OK.

[00:27:37] Speaker ?:
Yeah.

[00:27:38] Speaker 03:
And I'm way over time if this court has any other questions.

[00:27:42] Speaker 04:
Thank you.

[00:27:43] Speaker 04:
You've been very helpful.

[00:27:44] Speaker 03:
Thank you.

[00:27:44] Speaker 04:
We'll give you two minutes for rebuttal.

[00:27:49] Speaker 00:
Thank you.

[00:27:51] Speaker 00:
I don't know if you can cut multiple Gordian knots, but it cuts a ton of them to just deal with this under subsection K and reserve subsection N for windfalls.

[00:28:00] Speaker 00:
You deal with the penological problems that Judge Boggs has identified, where there's all sorts of perverse incentives involving families deciding, let's not provide economic support to our incarcerated family members.

[00:28:15] Speaker 00:
You cut.

[00:28:17] Speaker 04:
But that always exists for anyone who has a judgment against them.

[00:28:20] Speaker 04:
I mean, whether they're in prison or not.

[00:28:22] Speaker 04:
I mean, why should we exempt a prisoner and say, oh, you're entitled to receive funds of support.

[00:28:28] Speaker 04:
But if you were outside of the prison and somebody gave you a lot of money, you could go collect on that.

[00:28:32] Speaker 00:
You're not exempting the prisoner.

[00:28:34] Speaker 00:
You're letting a judge step in under subsection K and make an interest of justice determination that weighs all these factors, weighs the victim's interest and the victim's rights, but also weighs the penological concerns about,

[00:28:47] Speaker 00:
it's true mister meyers has uh... you know until twenty forty in in prison and so what's what's he doing saving up money that you know that he's receiving in his pre-release custody account he's making sure that the folks who are giving him money right now they may not be there when he gets out because it's a long time from now and so he's making sure i've got enough money uh... so that i can get on my feet uh... when i finally get out of custody that should be encouraged at the very least a court should be allowed to look at it it from an interest of justice perspective and should be allowed to decide you know do we

[00:29:16] Speaker 00:
Do we want to encourage that?

[00:29:19] Speaker 04:
I think all that is true, because it does say may, right?

[00:29:25] Speaker 00:
N is shall, K is may?

[00:29:27] Speaker 00:
Correct, N is mandatory.

[00:29:29] Speaker 00:
So holding that you can seize this as a shall mandatory, we've got to take it.

[00:29:33] Speaker 00:
It creates the problems that Judge Boggs identified.

[00:29:35] Speaker 00:
You know, it also creates the government was really struggling to draw a line, OK, maybe $200 as substantial resources.

[00:29:42] Speaker 00:
That goes against a ton of district courts that have said it's not the case.

[00:29:46] Speaker 00:
Maybe $500.

[00:29:47] Speaker 00:
Again, you're asking judges to do this, you know, how many grains of sand is a heap problem with no equitable backstop, no interest in justice analysis that can actually inform that assessment.

[00:29:58] Speaker 00:
If you reserve it for windfalls, much easier for a judge to make a non-arbitrary determination.

[00:30:03] Speaker 01:
Isn't there some reasonable determination between windfalls and zero?

[00:30:09] Speaker 01:
I mean, it doesn't have to be a windfall to go down your route, right?

[00:30:14] Speaker 01:
Aren't you kind of cabining how the court could exercise the mandatory requirements?

[00:30:21] Speaker 00:
I think, so windfall may be a triggering word.

[00:30:23] Speaker 00:
I use it because the courts use it and I recognize it's not ideal.

[00:30:26] Speaker 00:
You could just say a large single source out of the ordinary grant or something like that.

[00:30:30] Speaker 00:
Something that really focuses the analysis and says it's much easier to make, as a practical matter as a judge, much easier to make that call than to do this fine line drawing of like, okay, when did this aggregation of stuff become substantial versus, you know,

[00:30:43] Speaker 00:
not quite substantial.

[00:30:45] Speaker 00:
That line drawing needs to happen, regardless.

[00:30:48] Speaker 00:
Like, judges are in the business of line drawing.

[00:30:49] Speaker 00:
But when you want to do that kind of line drawing, you want to have equitable backstops.

[00:30:53] Speaker 00:
You want judges to be able to grasp onto something, like the interest of justice.

[00:30:56] Speaker 04:
I'm not sure we do.

[00:30:57] Speaker 04:
I think we want statutory backstops.

[00:30:59] Speaker 04:
And unfortunately, Congress... This is not unusual.

[00:31:03] Speaker 04:
We're trying to interpret what Congress did.

[00:31:06] Speaker 04:
But I don't think they put equitable backstops in that.

[00:31:08] Speaker 04:
I think some courts have read that into it, but that seems to have created more of a problem than helping.

[00:31:13] Speaker 00:
My view is that Congress, in its inestimable wisdom, put the equitable backstop in subsection K. That's where courts must consider the interests of justice.

[00:31:23] Speaker 00:
I use, again, that's an interest-of-justice analysis, which is how courts can draw lines in a sensible, rational way.

[00:31:32] Speaker 00:
Congress, recognizing that there's how many grains of sand make a heap problem and saying, okay, let's let judges make that decision in a way that actually, like,

[00:31:41] Speaker 00:
sensibly can draw a line, which you have to draw the line through applications of interest and justice principles once to avoid arbitrariness.

[00:31:48] Speaker 01:
What you're saying is that you've got to get some credence to K. It's got to play some role.

[00:31:54] Speaker 01:
Otherwise, it's surplusage if you can always go in under these multiple sources.

[00:31:59] Speaker 01:
under N, correct?

[00:32:01] Speaker 01:
Totally.

[00:32:01] Speaker 01:
Is that the bottom line?

[00:32:02] Speaker 00:
That is the bottom line.

[00:32:04] Speaker 00:
And I rest on that articulation of my case.

[00:32:07] Speaker 00:
Thank you.

[00:32:09] Speaker 04:
Thank you, counsel.

[00:32:10] Speaker 04:
Thank you to both counsel for your arguments in the case.

[00:32:11] Speaker 04:
The case is now submitted.