[00:00:02] Speaker 05:
May it please the court, my name is Robert Ruyak on behalf of the appellants in this case.

[00:00:08] Speaker 05:
We're going to split our time.

[00:00:10] Speaker 05:
I will take the first 10 minutes.

[00:00:11] Speaker 05:
My colleague, Hilary Potashner, will then argue and reserve two minutes for rebuttal.

[00:00:20] Speaker 05:
I'm going to address the issues of voir dire, the customs fraud, and wire fraud issues in this case.

[00:00:28] Speaker 05:
And I want to state that the single most important issue for this court to resolve on appeal

[00:00:32] Speaker 05:
is a judge's abuse of discretion and failing to ask questions of void that are designed to road out Asian and Chinese bias, which we believe violated the appellant's Sixth and Fifth Amendment rights to a fair trial.

[00:00:46] Speaker 05:
We believe this trial was compromised from the very beginning because of that.

[00:00:51] Speaker 05:
The Supreme Court's standards are clear that when there is a significant likelihood that racial prejudice may infect the jury trial, then it's constitutionally required to ask those questions.

[00:01:02] Speaker 05:
That's Rostano.

[00:01:04] Speaker 05:
Again, in Rosales Lopez, where there's substantial indications of the likelihood of racial ethnic prejudice affecting the jurors, they are required constitutionally.

[00:01:14] Speaker 02:
So why was there a substantial likelihood here?

[00:01:17] Speaker 02:
You have six US companies as defendants.

[00:01:21] Speaker 02:
And there are allegations about a conspiracy involving Chinese nationals and companies.

[00:01:27] Speaker 02:
But what puts us in the line where something more specific has to be done?

[00:01:31] Speaker 05:
Because in this particular case, we have to know where we were at that time.

[00:01:34] Speaker 05:
And we all know where we were.

[00:01:36] Speaker 05:
The day the trial started, more than 600,000 Americans already died of this disease.

[00:01:42] Speaker 05:
Millions more were sick and injured.

[00:01:45] Speaker 05:
Nearly every American knew of someone who was sick or injured or died.

[00:01:50] Speaker 05:
We were shut down in our homes.

[00:01:52] Speaker 05:
Many people lost their jobs.

[00:01:55] Speaker 05:
The officials, including the President of the United States, called it the Chinese virus.

[00:01:59] Speaker 05:
There was xenophobia raging all over the country, and even Congress had to pass a law.

[00:02:04] Speaker 02:
Every case that tendentially connected to China needed specific voir dire instructions?

[00:02:09] Speaker 02:
No, Your Honor, I think this... So what makes this case different?

[00:02:12] Speaker 05:
This case is different because in this particular case, at that point in time, our U.S.

[00:02:17] Speaker 05:
clients were clearly owned by Chinese nationals and Chinese Americans.

[00:02:22] Speaker 05:
That was clear.

[00:02:23] Speaker 05:
And the allegation was that we're in conspiracy with a mainland China company, a massive company, $14 billion company, owned by mainland Chinese.

[00:02:33] Speaker 05:
And they were the perpetrators of this conspiracy.

[00:02:36] Speaker 05:
The government used that to define that this was a China versus US.

[00:02:43] Speaker 05:
This is what they used.

[00:02:44] Speaker 05:
China versus US.

[00:02:46] Speaker 05:
And maybe that was the case.

[00:02:48] Speaker 05:
But this particular bias clearly existed in the general population.

[00:02:53] Speaker 06:
What questions should the judge have asked?

[00:02:56] Speaker 06:
I looked at your proposed instructions, the proposed questions that were given to the judge.

[00:03:03] Speaker 06:
Two are related to COVID-19, numbers 24 and 25.

[00:03:08] Speaker 06:
That's right.

[00:03:08] Speaker 06:
And of course... So if he would have given those... If he would have asked those two instructions, you would have said, ah, perfect, he did his job.

[00:03:14] Speaker 05:
No, Your Honor, because what would have happened is if someone believed that the COVID virus was a Chinese virus, and if they were responsible for the lockdown, we would have had the opportunity, when those jurors raised their hand, to ask questions in private in front of the judge.

[00:03:27] Speaker 05:
That's how it works.

[00:03:28] Speaker 05:
And we could have asked.

[00:03:29] Speaker 06:
Did this judge inform counsel that they were going to be allowed to ask more dire questions?

[00:03:34] Speaker 05:
No, but he did say that.

[00:03:35] Speaker 06:
Because I understood from the record here that he was going to do the voir dire.

[00:03:39] Speaker 05:
True, except one.

[00:03:39] Speaker 06:
Which is the way, in the central district, that's basically the way it's done.

[00:03:44] Speaker 05:
Except, Your Honor, when a juror raises their hand that shows a bias, we go up in front of the judge in private and go further voir dire of that particular juror.

[00:03:53] Speaker 05:
That's how it works.

[00:03:54] Speaker 06:
So my understanding is, well, not my understanding.

[00:03:59] Speaker 06:
This is the way I would tell counsel when I was a district judge, look, I'm going to do the questioning.

[00:04:07] Speaker 06:
You can submit questions to me.

[00:04:08] Speaker 06:
I'll take a look at them.

[00:04:09] Speaker 06:
If I think they're appropriate, I'll ask them.

[00:04:12] Speaker 06:
If I don't think so, I'm not going to ask them.

[00:04:15] Speaker 06:
Well, yes, Your Honor.

[00:04:17] Speaker 06:
I don't understand where the judge went wrong here.

[00:04:20] Speaker 05:
He certainly went wrong, because in this environment we're in, we were standing there with masks and plexiglass, Chinese viruses all over the place.

[00:04:29] Speaker 05:
The general population, there was bias.

[00:04:31] Speaker 05:
And when I say it's wrong for them to be biased, they lost loved ones.

[00:04:35] Speaker 05:
And you're sitting here accusing our clients of a conspiracy with a Chinese company.

[00:04:41] Speaker 06:
So let me ask you this.

[00:04:42] Speaker 06:
Are you saying at rock bottom these defendants could not have gotten a fair trial during this particular time?

[00:04:49] Speaker 05:
They could have if we had unbiased jurors, if we had the opportunity to ask them, are you blaming the Chinese for this virus that may have killed one of your loved ones?

[00:04:59] Speaker 05:
This was a very unique situation.

[00:05:01] Speaker 05:
What indication do you have that any juror actually harbored any bias?

[00:05:05] Speaker 05:
Because of the results of the case.

[00:05:08] Speaker 05:
because of the results of the case.

[00:05:10] Speaker 05:
This jury was out a very short period of time on multiple claims and they came back right down the line for the government every one.

[00:05:17] Speaker 05:
Let's take and let's get into the customs fraud.

[00:05:20] Speaker 05:
The government admitted that there was no intent to violate the customs laws.

[00:05:26] Speaker 05:
They've admitted it on appeal now.

[00:05:28] Speaker 05:
But the jury disregarded all of that.

[00:05:30] Speaker 05:
Even though the government switched their theories in the middle of the case, they just went with the government on those and every other claim.

[00:05:40] Speaker 05:
Even the wire fraud was just totally an ex-territorial issue.

[00:05:46] Speaker 05:
Had nothing to do with the United States.

[00:05:49] Speaker 05:
The jury went with them on that claim.

[00:05:50] Speaker 05:
I think that shows that this jury, some members of this jury, and together there was the potential for bias.

[00:05:59] Speaker 05:
Your Honor, I practiced a long time.

[00:06:00] Speaker 05:
Maybe I'm the oldest person in this courtroom.

[00:06:02] Speaker 05:
I doubt it.

[00:06:03] Speaker 05:
Three quarters of a century.

[00:06:04] Speaker 05:
Three quarters of a century old I am.

[00:06:07] Speaker 05:
Maybe you beat me a couple years.

[00:06:09] Speaker 05:
But I've never seen anything quite like this.

[00:06:11] Speaker 05:
I must say, why wouldn't the judge ask those questions when the midst of this, when you know every witness was Chinese?

[00:06:19] Speaker 05:
Everyone.

[00:06:22] Speaker 05:
The credibility issues, would they accept the credibility of the Chinese witnesses?

[00:06:25] Speaker 02:
The court did ask general bias questions, didn't it?

[00:06:28] Speaker 05:
Yes, Your Honor.

[00:06:29] Speaker 02:
So why wouldn't that have gotten to it?

[00:06:33] Speaker 05:
Because the Supreme Court has ruled that, and Rodriguez versus Colorado, that you can't just do that when you have very specific biases like this.

[00:06:42] Speaker 05:
Look, we all know where we were then, right in the middle of this pandemic.

[00:06:47] Speaker 05:
We know that the general population was biased, maybe for good reasons.

[00:06:52] Speaker 05:
But why couldn't we have the opportunity to see that occurred with these jurors?

[00:06:57] Speaker 06:
Let me ask you this.

[00:06:58] Speaker 06:
Now, I haven't read the entire transcript.

[00:07:00] Speaker 06:
I looked at parts of it that were raised on appeal.

[00:07:02] Speaker 06:
But I gather when the jury came in, when the panel came in, the judge explained to the possible jurors what the case was about, correct?

[00:07:16] Speaker 05:
Yes, in general terms, yes.

[00:07:17] Speaker 06:
In general terms, it's about Chinese companies and customs fraud and whatnot, wire fraud.

[00:07:25] Speaker 06:
And at any point along the way, did he ask the jurors whether they could be fair and impartial?

[00:07:31] Speaker 06:
Is there anything about the case that would prevent you from being fair and impartial?

[00:07:34] Speaker 05:
Well, yes, a general question.

[00:07:36] Speaker 05:
But my god, in a situation where there's, and the Supreme Court has said, look, the standards are pretty clear, I think.

[00:07:44] Speaker 05:
And I refer to those three cases I mentioned, because they set the standard.

[00:07:50] Speaker 05:
If you consider, it's directly bound up in the conduct of the trial.

[00:07:57] Speaker 05:
It was bound up in the conduct of the trial at this point.

[00:08:00] Speaker 05:
This was not a normal situation.

[00:08:02] Speaker 05:
This was an unusual situation in my lifetime.

[00:08:05] Speaker 05:
And we know Congress even had to pass a law, because people in this city, Asian Americans have been accosted in the streets.

[00:08:13] Speaker 05:
Now, if you have that and you're trying to get a jury to come into this courtroom and be unbiased, you at least have to ask those questions and give me the opportunity, which I didn't have in this trial, to challenge them.

[00:08:26] Speaker 06:
Any individual defendants in the courtroom?

[00:08:30] Speaker 05:
Individual defendants?

[00:08:31] Speaker 05:
Yes.

[00:08:31] Speaker 05:
No, these were corporations.

[00:08:32] Speaker 05:
Oh, corporations.

[00:08:34] Speaker 01:
Council, you said that the government had conceded there was no customs fraud on appeal.

[00:08:39] Speaker 01:
Yes, Your Honor.

[00:08:39] Speaker 05:
Where did they do that?

[00:08:40] Speaker 05:
They did it on pages 14 and 15 of their second brief and on page 78, because what they said there was changing their story from the

[00:08:55] Speaker 05:
from the story they had in their indictment.

[00:08:56] Speaker 05:
In the indictment they said they brought, what happened was these extrusions were excluded.

[00:09:00] Speaker 05:
They took extrusions, put them in the form, temporarily in the form of a pallet, brought them in to disassemble and sell in the United States as extrusions.

[00:09:07] Speaker 05:
That's not what happened in trial because they couldn't prove it.

[00:09:09] Speaker 05:
They failed.

[00:09:11] Speaker 05:
Even their own experts said, no, that's not what happened.

[00:09:14] Speaker 05:
So now they changed their theory to, well, they brought them in,

[00:09:17] Speaker 05:
for the purpose of melting them down as raw material in the United States, which carries no customs duty.

[00:09:23] Speaker 01:
That's the case.

[00:09:24] Speaker 01:
That's your support for the comment that they conceded there was no customs fraud on appeal?

[00:09:29] Speaker 05:
That's right.

[00:09:32] Speaker 05:
Because if you look at US versus Davis, which is the case that we have to rely upon for the customs fraud, there's three elements.

[00:09:41] Speaker 05:
Importation, contrary to law, and the defendant knowingly imported these contrary to law.

[00:09:47] Speaker 05:
They said in their indictment that the intent was to bring them in, disassemble them, and sell them in competition with US products.

[00:09:56] Speaker 05:
At the trial, they said, no, that was not it, because they couldn't prove that.

[00:10:00] Speaker 05:
So now they're saying they brought them in to melt them down as raw material.

[00:10:06] Speaker 05:
That does not transgress the customs laws.

[00:10:09] Speaker 05:
There is no duty if it's raw material, and only a 2.5% duty if you bring in a product to melt it down to reuse it.

[00:10:17] Speaker 05:
The key is that the anti-dumping countervailing duties are to protect U.S.

[00:10:22] Speaker 05:
competition in the sale of a similar product.

[00:10:25] Speaker 06:
So there is no law here that the defendants violated?

[00:10:28] Speaker 05:
They did not.

[00:10:29] Speaker 06:
They didn't violate anything?

[00:10:30] Speaker 05:
They did not, because the basic premise is that the anti-dumping orders apply to products being brought in and sold in commerce, and so the only intent here

[00:10:42] Speaker 05:
that the government alleged was intent not to pay the appropriate duty.

[00:10:46] Speaker 05:
That's what this case is about.

[00:10:48] Speaker 05:
This wasn't contraband.

[00:10:50] Speaker 05:
You could bring these things in all you wanted.

[00:10:51] Speaker 05:
You just have to pay the anti-dumping duty.

[00:10:53] Speaker 02:
So you're cutting into your co-counsel's time at this point.

[00:10:56] Speaker 05:
OK.

[00:10:56] Speaker 05:
Thank you, Your Honor.

[00:11:07] Speaker 00:
Thank you, Your Honor.

[00:11:07] Speaker 00:
Hilarie Ftashter may please the court.

[00:11:11] Speaker 00:
Your honors, I'm going to turn to three different issues, and I'll leave that issue behind for a moment.

[00:11:17] Speaker 00:
The three things that I'd like to address are the restitution order, the jury instructions, and if we have enough time, the hearsay issues, which I think infected the entire trial.

[00:11:27] Speaker 00:
Let me start with the restitution.

[00:11:32] Speaker 00:
If this court finds that there was a customs fraud violation or multiple violations, which we do not believe this court should, but if it does, then there's no issue in terms of the amount of restitution.

[00:11:46] Speaker 00:
We will concede that if there's a customs fraud violation.

[00:11:49] Speaker 00:
Our position is there is no customs fraud violation because at the time,

[00:11:53] Speaker 00:
of the importation, our clients do not have the intent to evade.

[00:11:58] Speaker 00:
They had the intent to comply with the ADCVD orders, but not to evade.

[00:12:06] Speaker 00:
Setting that aside for a moment, if the conviction stands and if the conspiracy conviction stands,

[00:12:12] Speaker 00:
no issue in terms of the total amount.

[00:12:14] Speaker 00:
However, the government is now seeking to, requesting that this court abandon and disregard the court's decision in terms of the restitution payment schedule.

[00:12:30] Speaker 00:
As this court is well aware, it is within the trial court's discretion to set that schedule, and this court should only disturb that schedule if it finds that the trial court abused its discretion in setting the schedule.

[00:12:44] Speaker 02:
Well, it seems like it may have, because there's nothing that suggests to me that the court made a finding as to the defendant's ability to pay, and there was a dispute before sentencing

[00:12:55] Speaker 02:
as to what the value of the warehouses were and other things that the district court did not resolve.

[00:13:01] Speaker 02:
So why isn't that an abuse of discretion in setting the scheduling order?

[00:13:05] Speaker 00:
There was no dispute with respect to the revenue coming in, the income coming in, the bank accounts are lack thereof.

[00:13:14] Speaker 00:
In terms of the operating costs, there was absolutely no dispute.

[00:13:16] Speaker 00:
There was information in the PSR, in all of the PSRs, that both sides had the ability to object to.

[00:13:24] Speaker 00:
The government did not object to any of that information.

[00:13:26] Speaker 02:
But as I understand, the government had a different view as to the value of the warehouses,

[00:13:31] Speaker 02:
and of the value of the excess aluminum pallets that were in other places that had not been seized.

[00:13:37] Speaker 02:
And that that affected their ability to pay the restitution schedule as opposed to giving them a nominal payment schedule.

[00:13:43] Speaker 02:
So if the court doesn't make any findings with regard to those disputed issues, it seems to me that would be an abuse of discretion.

[00:13:51] Speaker 02:
Tell me why that's not the case.

[00:13:53] Speaker 00:
Thank you, Your Honor.

[00:13:54] Speaker 00:
And I would disagree that it's an abusive discretion.

[00:13:56] Speaker 00:
And here's why.

[00:13:57] Speaker 00:
There was no dispute as to whether or not those warehouses were valuable.

[00:14:01] Speaker 00:
There was absolutely no dispute.

[00:14:02] Speaker 00:
They were worth $50 million each, or the government's estimations were higher.

[00:14:09] Speaker 00:
But they were worth a substantial amount of money, regardless of which value the court adopted.

[00:14:15] Speaker 00:
The court nonetheless made the decision, and it's clear from the court's actions and what was before the court,

[00:14:21] Speaker 00:
that the court was not going to force the immediate liquidation of those warehouses.

[00:14:26] Speaker 00:
The court had that ability, the government was asking for that, and the court did not do it.

[00:14:30] Speaker 00:
So whether each individual warehouse was worth $50 million or $500 million, that's a distinction without a real difference.

[00:14:40] Speaker 00:
The court made the decision based on the information before it,

[00:14:43] Speaker 00:
that it was not going to force the immediate liquidation of those warehouses.

[00:14:46] Speaker 02:
But even if that were the case, wouldn't that present a problem if the court makes a finding that defendants are unable to pay and there's nothing in the record to support it?

[00:14:58] Speaker 00:
There is substantial information in the record to support it, absent forcing the immediate sales of those warehouses, in which this court, in many, many cases, has accepted that a defendant need not liquidate their entire assets in order to pay a restitution fine.

[00:15:19] Speaker 02:
What about the other aluminum pallets that separate the warehouses?

[00:15:24] Speaker 02:
I think the government said there were some $800 to $900 million worth of other aluminum pallets in defendant's control.

[00:15:31] Speaker 00:
The court found that there were $60 million worth of pallets and the court did order that those pallets be forfeited and then used for restitution in this case.

[00:15:41] Speaker 00:
There was no information put in front of the court that the warehouses were in possession of any

[00:15:50] Speaker 00:
pallets or any aluminum.

[00:15:52] Speaker 00:
There was just absolutely an absence of information with respect to the warehouse defendants.

[00:15:56] Speaker 00:
Now I know we are representing six different entities, but I'm focusing on the warehouse entities and whether or not the court abused its discretion in not forcing the warehouse defendants to liquidate their warehouses.

[00:16:11] Speaker 00:
And in this case, it is important to note that there was extensive briefing

[00:16:15] Speaker 00:
prior to sentencing in terms of the restitution issue.

[00:16:19] Speaker 00:
We filed papers.

[00:16:20] Speaker 00:
We filed objections.

[00:16:21] Speaker 00:
The government filed objections.

[00:16:22] Speaker 00:
The government supplemented their objections.

[00:16:23] Speaker 00:
It was quite clear to the court that there was an issue.

[00:16:26] Speaker 00:
It was quite clear to the court through the entire trial that there were valuable warehouses at issue and in the possession of the warehouse defendants.

[00:16:34] Speaker 00:
The court had all of that information.

[00:16:36] Speaker 00:
The court had the multiple PSRs.

[00:16:40] Speaker 00:
The court had probations, recommendations to either order immediate payment

[00:16:44] Speaker 00:
or order a payment schedule, which, by the way, was 10% of the gross revenue or $100 per month, whichever was greater.

[00:16:53] Speaker 00:
So the court did not order just $100 a month.

[00:16:56] Speaker 00:
The court ordered, frankly, probation to monitor the revenue.

[00:17:00] Speaker 00:
Should the revenue change, then probation would be well within its discretion to bring it back to court and say, Your Honor, the revenue has now increased.

[00:17:08] Speaker 00:
These warehouse defendants now have

[00:17:09] Speaker 00:
substantial revenue or some revenue that should be paid on a monthly basis.

[00:17:15] Speaker 00:
This court set a restitution schedule that is quite consistent with many schedules that are set in the central district.

[00:17:26] Speaker 00:
The central district or any court is not required to order immediate payment and to order immediate liquidation of all assets.

[00:17:35] Speaker 00:
That is within the court's discretion should the court want to, but that is not required.

[00:17:40] Speaker 00:
Therefore, it's not an abusive discretion for the court after listening to all the testimony for nine days, reading the briefing that went back and forth and back and forth, looking at the PSR, which by the way, the government did supplement the information that went into the PSR,

[00:17:54] Speaker 00:
in terms of revenue and money coming into the warehouse companies by providing the parent company's tax returns to probation.

[00:18:03] Speaker 00:
With all that information, armed with all that information, the court made the determination that the court made.

[00:18:09] Speaker 00:
It was not an abusive discretion to make that decision.

[00:18:13] Speaker 00:
It was a measured decision based on all of the information in front of the court.

[00:18:17] Speaker 02:
Did you want to reserve any time for rebuttal?

[00:18:19] Speaker 00:
Yes, Your Honor.

[00:18:20] Speaker 00:
Thank you.

[00:18:36] Speaker 03:
Good morning, Your Honors.

[00:18:37] Speaker 03:
May it please the Court.

[00:18:38] Speaker 03:
Roger Shea for the United States.

[00:18:40] Speaker 03:
I'm going to address all the non-restitution arguments and plan to spend about 15 minutes before turning it over to my colleague, AUSA Patrick Fitzgerald.

[00:18:48] Speaker 03:
I'll start with the vaudeer customs fraud argument that Mr. Ryak addressed and then any other questions Your Honors have.

[00:18:54] Speaker 03:
The district court did not commit plain error in conducting Blodier.

[00:18:58] Speaker 03:
The case we cited, Blosfern, noted that the defendant must put forth reasons for particular questions that he or she deems essential.

[00:19:07] Speaker 03:
And in Blosfern, that defendant submitted 18 questions and after conviction challenged five of them.

[00:19:13] Speaker 03:
Here at 5ER-995-98, defendants proposed 40 questions, including subparts, prior to trial.

[00:19:22] Speaker 03:
And they did not put forth any specific reasons as to why these particular questions needed to ask.

[00:19:28] Speaker 03:
These topics range from prior service, practical considerations, burden beyond a reasonable doubt, and questions regarding climate change and are corporations too powerful.

[00:19:40] Speaker 03:
As Your Honors have noted, courts have ample distraction in conducting voir dire.

[00:19:44] Speaker 03:
And under Rosales Lopez, racial issues were not inextricably bound with the trial and substantial indications of likelihood.

[00:19:52] Speaker 02:
So what do you make of counsel's argument that in the period of time in which the trial took place, there needed to be some special care and attention paid to Chinese-related cases?

[00:20:02] Speaker 03:
We certainly were in special time, Your Honor, but what the Supreme Court has shown in all these cases is counsels raised these specific issues before the district court.

[00:20:10] Speaker 03:
The district court is conducting voir dire,

[00:20:12] Speaker 03:
with the information it knows at the time.

[00:20:15] Speaker 03:
At the appellate level, they're submitting a request for judicial notice years after the conviction.

[00:20:19] Speaker 03:
They should have done that and flagged specific questions for the court and the reasons so the government could have considered them, the court could have considered them.

[00:20:27] Speaker 06:
In timing, when were these questions submitted to the district court?

[00:20:32] Speaker 03:
I believe a week or so before trial.

[00:20:35] Speaker 03:
The court ordered us to file joint proposed jury instructions.

[00:20:39] Speaker 06:
And questions?

[00:20:40] Speaker 03:
Yes, excuse me, questions.

[00:20:43] Speaker 03:
And in all the Supreme Court cases, whether the Supreme Court found the district court abused its discretion, all these counsel raised specific questions with court.

[00:20:53] Speaker 03:
Rosales-Lopez, request for specific questions, and there was a sidebar.

[00:20:58] Speaker 03:
Rizantanio, a written motion, and there was argument.

[00:21:02] Speaker 03:
The defense counsel raised four specific questions, and there the court found questions were necessary because a black defendant alleged that he was framed in retaliation for advocating for his own civil rights.

[00:21:15] Speaker 03:
And as your honors have noted before, just for your citations, the court did note that this was a case to inflate the value of a Chinese company and exports to the United States, and noted it as customs fraud of 1.8 billion.

[00:21:27] Speaker 03:
That's ER 1420.

[00:21:30] Speaker 03:
Also ask questions, can you be fair at both sides?

[00:21:32] Speaker 03:
That's at 1444.

[00:21:34] Speaker 03:
And be objective about the evidence and the law, also at 1444.

[00:21:39] Speaker 03:
Give instructions that you must follow the law and not be influenced by personal prejudices at 1502.

[00:21:45] Speaker 03:
And I think before closing, not be influenced by race, national ancestry.

[00:21:49] Speaker 01:
Was there any discussion about these questions with the judge?

[00:21:52] Speaker 01:
I don't remember there.

[00:21:53] Speaker 03:
No, so at sidebar, defense counsel said there's some other questions and the judge said to the extent they've been proposed, they have been considered.

[00:22:03] Speaker 03:
And the appellants in the reply brief at 11, note 6, quote the court stating that he's not going to entertain objections.

[00:22:10] Speaker 03:
But if you look at that full quote, that's in the context of hearsay evidentiary objections and said, you will not argue the law before the jury.

[00:22:18] Speaker 03:
We were at sidebar.

[00:22:19] Speaker 03:
doing preemptory challenges.

[00:22:21] Speaker 03:
So counsel certainly could have pushed that issue and they raised no issues until after court citing things about covid things of that nature.

[00:22:28] Speaker 03:
And again, the power point we provided that the opening with the pictogram of China to defense counsel prior to trial in our opening statement, they made no objection there.

[00:22:38] Speaker 03:
It was on Ken Liu himself who described himself as an emperor.

[00:22:41] Speaker 03:
And to correct the record, at Appellants' Reply Brief at 12, they cite numerous times where the government purportedly brings up these terms.

[00:22:48] Speaker 03:
But in fact, at 1629, 9 to 10, it's the defense counsel's cross-examination using the repeating one of those terms.

[00:22:56] Speaker 06:
So let me ask you this, moving on.

[00:22:58] Speaker 06:
So did the government change its theory of the case to the extent that it effectively, with the evidence presented, constructively amended the indictment?

[00:23:08] Speaker 03:
Not at all, Your Honor.

[00:23:10] Speaker 03:
There is no substantial alter or facts distinctly different.

[00:23:13] Speaker 03:
The indictment alleged a complex wire fraud, and I'll focus on the customs fraud scheme because that is what is being challenged here.

[00:23:19] Speaker 03:
The indictment alleged, I think at ER 1357 to 58, that defendants, as part of their custom fraud scheme, after the 80 CBD duties came out,

[00:23:30] Speaker 03:
willfully and intended to defraud the 18 USC 545 by marking that these pallets were finished merchandise when they in fact knew they were not.

[00:23:42] Speaker 03:
Defense cite to this language, I believe they kind of lash on this language in the ADCVD orders and in the indictment, the quotes, fully assembled.

[00:23:50] Speaker 03:
And they have latched onto that to show that the government must have shown that these extrusions were pulled apart.

[00:23:55] Speaker 03:
But that's not an element of the crime.

[00:23:57] Speaker 03:
And we alleged simply in the indictment that defendants willfully intended to vey the customs law.

[00:24:02] Speaker 03:
And that's what we did.

[00:24:03] Speaker 03:
And that was a proof that was shown at trial.

[00:24:06] Speaker 03:
There's substantial proof at trial shown

[00:24:08] Speaker 03:
One of the co-conspirators, Eric Shen, knew that these were not finished merchandise.

[00:24:14] Speaker 03:
He told the ringleader of the conspiracy, Zhongqian Liu, that these were not finished merchandise.

[00:24:19] Speaker 03:
There's witness testimony that out of 2.2 million pallets that were sold, or excuse me, exported from China to the United States, not a single one was sold.

[00:24:28] Speaker 03:
There's witness testimony from an employee of Perfectus that she sent Johnson Xiao, one of the co-conspirators, an email, this is why we're not selling any pallets.

[00:24:37] Speaker 03:
They're too expensive.

[00:24:38] Speaker 03:
Here's a plastic one for $13.58, and they still didn't sell any.

[00:24:45] Speaker 03:
The lies to CBP, there's testimony that they melted

[00:24:49] Speaker 03:
thousand pounds.

[00:24:50] Speaker 03:
To correct something in appellant's brief, also there is ample testimony that the pallets, we did not need to prove this, appellants admit at their opening brief at 59, the offense is complete at the time of importation, that these pallets and scrap could be remelted into billet and then excrucians.

[00:25:09] Speaker 03:
That's at ER 1680.

[00:25:11] Speaker 03:
While the government doesn't need to prove that, they certainly showed that there's an intent to fraud CBP.

[00:25:20] Speaker 03:
Vaudeer, customs fraud.

[00:25:22] Speaker 03:
I'll briefly address, if your honors have any other questions, I will address them, or I can briefly touch upon some of the jury instructions or co-conspirators' statements.

[00:25:32] Speaker 02:
I guess I have a question about the extraterritoriality argument.

[00:25:36] Speaker 02:
I take it your argument is, because these were domestic wires that occurred out of the Central District of California, we are not dealing with an extraterritoriality issue.

[00:25:47] Speaker 02:
And that, and I take it the government's position is whether or not victims might be foreign or domestic, that's enough to be included within the scope of the wire fraud statute?

[00:25:59] Speaker 03:
That's correct, Your Honor.

[00:26:00] Speaker 03:
So as we know in our briefing, Hussein begins and ends the analysis.

[00:26:04] Speaker 03:
It's a domestic application of the wire fraud statute here.

[00:26:07] Speaker 03:
All nine wires charged against the defendants are either emails coming into or out of the Central District of California or wires, I believe, payments going from the Central District of California to China or Hong Kong.

[00:26:21] Speaker 03:
And the merely incidental test that has not been adopted by the Ninth Circuit

[00:26:26] Speaker 03:
It does not need to be adopted.

[00:26:28] Speaker 03:
And in those cases, even if this court was considering, those both involve foreign defendants and foreign victims.

[00:26:35] Speaker 03:
Here again, we have domestic defendants.

[00:26:38] Speaker 03:
They're all six US-based corporations.

[00:26:41] Speaker 03:
And we put in the record at SCR 32 to 36, there are US victims, including Fidelity, Geo Capital, which I believe is in Boston, and Vanguard.

[00:26:50] Speaker 03:
And the indictment alleges a stock

[00:26:53] Speaker 03:
posted on the Hong Kong Stock Exchange, which is actually global and available to investors around the world.

[00:27:03] Speaker 03:
So for these reasons, the vaudeer was not plain error or even an abuse of discretion, and the customs fraud was properly alleged.

[00:27:14] Speaker 03:
I'll note for the record, just on some of the co-conspirator statements, that these

[00:27:20] Speaker 03:
The government cited Castaneda.

[00:27:22] Speaker 03:
You can use a party opponent statement as independent evidence of a co-conspirator's statement.

[00:27:28] Speaker 03:
And I'll note, we try to look at appellants brief.

[00:27:30] Speaker 03:
They challenge what appears to be a

[00:27:32] Speaker 03:
their opening brief, note 22, 23, 35 exhibits and days of testimony.

[00:27:37] Speaker 03:
Going through the government's closing PowerPoint to ER 240 to 367, out of the 57 plus exhibits, only appears that eight of those are challenged.

[00:27:47] Speaker 03:
And the trial court who sat on day five of trial noted that Zongtian Luz noted, there's no question he's a co-conspirator on this, on the evidence we've heard so far.

[00:27:58] Speaker 03:
That's at ER 2310.

[00:28:00] Speaker 03:
And all these folks could also be considered party opponents.

[00:28:03] Speaker 03:
Johnson Xiao was CEO of Perfectus from 2008 to 2014.

[00:28:08] Speaker 03:
Eric Shen was the CEO of the warehouse.

[00:28:11] Speaker 03:
Zongtian Liu, there was uncontroverted testimony that he's the beneficial owner of the warehouses.

[00:28:16] Speaker 03:
There was no objection to Shen's testimony before that.

[00:28:19] Speaker 03:
Zongpeng Liu was the CEO of Scuderia and at Perfectus at some point, and AluminumCaste.

[00:28:25] Speaker 03:
and Zizhi Wang was CEO of Scudaria in 2013, and later in the warehouse defendants.

[00:28:31] Speaker 03:
There are four different individuals that authenticated Johnson Xiao's email address.

[00:28:39] Speaker 03:
Mark Li at ER 1903 said Xiao would send him wire instructions for pallets.

[00:28:46] Speaker 03:
Bill Riley, a sales manager at 1574, asked Xiao if Zongtan Lu would approve a large purchase.

[00:28:53] Speaker 03:
Kim Wen in 1987 told Johnson Xiao were too expensive.

[00:28:58] Speaker 03:
Plastic pallets that I mentioned before sell for $1,875.

[00:29:01] Speaker 03:
And Christian Robles at $1,847, Xiao instructed him to create pallet orders.

[00:29:07] Speaker 03:
So there were no actual real orders for these pallets.

[00:29:10] Speaker 03:
And I believe that last email at $1,847 was the only one that I saw that's actually challenged on appeal.

[00:29:17] Speaker 03:
There's also significant independent evidence.

[00:29:19] Speaker 03:
There's uncontroverted witness testimony of Zhongqian Liu

[00:29:23] Speaker 03:
own both Perfectus and China's Zonghuang, a picture at SCR 144 of Zonghuang and PCA being in the same building or a sign.

[00:29:34] Speaker 03:
There's testimony that the entire Zongtian and Liu family would conduct audits twice a year at each warehouse.

[00:29:40] Speaker 03:
That's at 2197 to 98.

[00:29:42] Speaker 03:
uncontroverted financial documents that showed a $200 million loan was not a real loan.

[00:29:49] Speaker 03:
And if you look at SCR 331 to 32, these are two perfectus operation reports from years 2015 and 2016.

[00:29:56] Speaker 03:
These are telling and the government highlighted them in closing that showed

[00:30:01] Speaker 03:
the exact same amount of loan, $1.283 billion to the exact same $0.09 from one year to the other to show that Perfectus was getting the money from China's Zonghuang, and it was not an actual loan.

[00:30:14] Speaker 03:
They just kept it on the books as loan.

[00:30:16] Speaker 03:
And you'll look, their sales in 2015 on that report in SCR 331 was only $136,000 in sale, and the following year was $0.

[00:30:29] Speaker 03:
Unless there are any other questions about any other non-restitution issues, I will turn it over to my colleague, Patrick Fitzgerald.

[00:30:37] Speaker 02:
No other questions.

[00:30:38] Speaker 02:
Thank you.

[00:30:57] Speaker 04:
Good morning, and may it please the court.

[00:31:00] Speaker 04:
It is certainly true that the district court had wide discretion to set a payment schedule for the restitution.

[00:31:10] Speaker 04:
Nonetheless, under this court's authority, for example, in Novak and under the text of the MVRA itself, it did need to consider all of the assets of the defendant.

[00:31:25] Speaker 04:
And in setting a restitution schedule, the district court could not abuse its discretion.

[00:31:32] Speaker 04:
It could not come up with a

[00:31:36] Speaker 04:
schedule that was implausible, illogical, or not supported in the record.

[00:31:42] Speaker 02:
Well, counsel, I want you to respond to counsel's argument that if the court was not planning to order liquidation of the warehouses, did it then need to consider the proper value of the warehouses themselves for restitution purposes?

[00:31:57] Speaker 04:
Yes, your honor.

[00:32:01] Speaker 04:
At some point, all of the assets of these defendants needed to be considered for restitution.

[00:32:10] Speaker 04:
And essentially, it would be an abuse of discretion.

[00:32:13] Speaker 04:
It would be clear error for the district court to say that hundreds of millions of dollars are not available for restitution when, in fact, the MVRA requires them to be considered and to be made available

[00:32:29] Speaker 04:
for restitution.

[00:32:31] Speaker 04:
Again, if it's a matter of months, that's one thing.

[00:32:34] Speaker 04:
375,000 years is quite another matter.

[00:32:42] Speaker 04:
And ultimately, of course, what matters is that customs get reimbursed.

[00:32:48] Speaker 04:
The government does not have the ability, and frankly, from a restitution standpoint, is not interested in how it gets the money.

[00:32:57] Speaker 04:
The defendants, they can obviously liquidate their assets.

[00:33:02] Speaker 04:
They can get an infusion of capital.

[00:33:04] Speaker 04:
They can perhaps get another mortgage.

[00:33:08] Speaker 04:
But ultimately, they do have to pay over a reasonable amount of money in a reasonable amount of time.

[00:33:16] Speaker 06:
Does the district court order them to take specific action?

[00:33:21] Speaker 06:
Your Honor, we- Then just to say, you know, you gotta pay 10 million a month or something.

[00:33:27] Speaker 04:
I believe as far as having its order done, at some point if the defendants did not make the payment according to the schedule, that our office through our financial litigation section would seek specific means to get the payment done.

[00:33:54] Speaker 04:
So, but ultimately, what the district court has the right to do is say that, you know, the money should be paid to customs.

[00:34:04] Speaker 04:
And of course, in this case, there are very valuable assets and therefore, there.

[00:34:10] Speaker ?:
Again, I can't, I don't recall.

[00:34:12] Speaker ?:
What are those assets?

[00:34:13] Speaker 04:
The buildings themselves?

[00:34:14] Speaker 04:
The buildings themselves and then,

[00:34:16] Speaker 04:
most particularly the buildings themselves, but then to the extent that they're being rented out and there's the income coming in from the rental.

[00:34:26] Speaker 04:
All of that is assets to each of the

[00:34:29] Speaker 04:
defendants and therefore ultimately is available to pay restitution up to the amount that's set.

[00:34:37] Speaker 02:
What about the other aluminum inventory?

[00:34:39] Speaker 02:
Was that, maybe I misconstrued the record, but was that also something that the government was putting into the mix as subject to restitution?

[00:34:49] Speaker 04:
It was, Your Honor, and that was in regard to the perfectus defendants

[00:34:55] Speaker 04:
And that is not a matter that we have appealed.

[00:34:59] Speaker 06:
What happened to those, just as a side?

[00:35:04] Speaker 04:
Some were subject to a forfeiture order, and some were re-exported to Vietnam as part of the ongoing fraud and sort of Ponzi scheme of this fraud infrastructure.

[00:35:18] Speaker 02:
So then before us is mainly the issue of the value of the warehouses.

[00:35:23] Speaker 04:
Any potential income?

[00:35:25] Speaker 04:
That is correct, Your Honors.

[00:35:27] Speaker 02:
And I understand there was a dispute as to that value between probation and the government's filings?

[00:35:34] Speaker 04:
Yes, Your Honor.

[00:35:35] Speaker 04:
We took a market view and think that the four of them are close to $1 billion.

[00:35:42] Speaker 04:
The probation office was very candid about this.

[00:35:46] Speaker 04:
They took a more formal view and looked at the tax assessment

[00:35:51] Speaker 04:
which, of course, was still vastly more than a nominal amount, but was more around 100.

[00:35:57] Speaker 04:
Collectively, it was about $161 million.

[00:36:05] Speaker 01:
But doesn't the court have the right to determine not to require liquidation of the warehouses?

[00:36:12] Speaker 04:
Your Honor, again, it has the right not to require that, but it needs to take into account the value of the

[00:36:21] Speaker 04:
that the value of the assets of the defendants

[00:36:26] Speaker 04:
and needs to come up with a restitution number that reflects the value of the assets.

[00:36:34] Speaker 04:
And if in the real world that means the only way the defendants can satisfy their judgment is to liquidate their assets, then yes, the mandatory nature of the MVRA would require them to take the steps that are necessary, which in the real world could

[00:36:53] Speaker 04:
and in this case could well be that they have to sell the warehouses.

[00:36:56] Speaker 01:
Then I think you're arguing that the court had to order liquidation because it couldn't be paid otherwise.

[00:37:03] Speaker 01:
And it doesn't matter how much the warehouses were worth.

[00:37:06] Speaker 01:
They have to be liquidated.

[00:37:07] Speaker 01:
That's really, practically speaking, the only source of repayment except potentially income that they make.

[00:37:14] Speaker 04:
Again, Your Honor, that is probably correct based on what we have in the record.

[00:37:21] Speaker 04:
To be precise, I don't believe that it has to order a liquidation.

[00:37:26] Speaker 04:
It has to, based on the value of the assets, it needs to say, in some reasonable time period, you need to pay the government the value of these.

[00:37:39] Speaker 04:
And how you do it is up to you, realizing that selling them is going to be the most logical and effective way to get the money to pay customs.

[00:37:55] Speaker 04:
And again, we've

[00:38:00] Speaker 04:
dealt with the other issues and said there was no issue as to the amount of the restitution.

[00:38:07] Speaker 04:
And I'll just emphasize then that even while the restitution issues were hotly contested, the idea of a nominal payment schedule was never really raised prior to this coming out at the end of the sentencing.

[00:38:26] Speaker 04:
hearing what, in fact, even the defendants argued was, for example, at 3ER 452, they asked for a reasonable payment schedule.

[00:38:41] Speaker 04:
At 3ER 584 and 85, they said that they asked for a reasonable and periodic payment plan

[00:38:51] Speaker 04:
But in that argument, until the district court came up with its ruling, there was no discussion, and certainly not in the PSRs, of a nominal payment plan where, again, they would have 375,000 years to make the necessary payments.

[00:39:10] Speaker 04:
And there's no other questions from the court on the rest of the issue?

[00:39:13] Speaker 02:
No other questions.

[00:39:14] Speaker 02:
Thank you.

[00:39:28] Speaker 00:
Your honors, if I may start with the last point first.

[00:39:33] Speaker 00:
The payment schedule was actually in the PSR.

[00:39:36] Speaker 00:
The PSR at paragraphs 80 and 81 in each of the PSRs indicated the probation office recommended that the district court should either order restitution paid within 90 days, which is in effect liquidation and pay right now, or

[00:39:55] Speaker 00:
sent a nominal payment schedule of 10% of gross revenue, but not less than $100 per month.

[00:40:02] Speaker 00:
The government did not object to that.

[00:40:04] Speaker 00:
The government argued about the value, assuming, I guess, hoping that the court would take the first of the two options.

[00:40:11] Speaker 00:
But the government certainly didn't object to the second of the two options.

[00:40:15] Speaker 00:
It is well within the court's discretion to decide not to order immediate payment.

[00:40:21] Speaker 06:
Was there evidence that the warehouses were in operation?

[00:40:24] Speaker 00:
Yes, Your Honor.

[00:40:25] Speaker 06:
And that there's income?

[00:40:27] Speaker 00:
No, Your Honor.

[00:40:28] Speaker 00:
There's a management company that controls the use of the warehouses and the revenue, the warehouses indicated and the PSRs reflected that there was no income.

[00:40:41] Speaker 00:
There was no expenses and there were no incomes.

[00:40:44] Speaker 00:
Has anything been paid?

[00:40:46] Speaker 00:
Yes, Your Honor.

[00:40:47] Speaker 00:
How much?

[00:40:48] Speaker 00:
$100 a month per defendant every single month in a timely fashion in compliance with the court's order.

[00:40:56] Speaker 01:
And can the government go back and ask that the restitution order be paid in light of the fact that only minimal payments have been made?

[00:41:04] Speaker 00:
If the government believes that there's a violation of the court order, which is 10% of the gross revenue or $100, whichever is greater, the government can go back and ask.

[00:41:16] Speaker 01:
That's not what I mean.

[00:41:17] Speaker 01:
Does the court have the ability to modify the restitution order in light of the fact that nothing but nominal payments have been made?

[00:41:27] Speaker 00:
The court has the ability, if there's a showing of a change in revenue, Your Honor, and the court considered the revenue at the time of sentencing.

[00:41:35] Speaker 00:
If the government has evidence or if the defendants have a change in revenue, then probation can initiate that change.

[00:41:44] Speaker 00:
So could the government, so could the defendants.

[00:41:45] Speaker 06:
How is the government supposed to find out that there's a change in revenue?

[00:41:49] Speaker 00:
probation takes the lead in monitoring the money coming in and coming out.

[00:41:54] Speaker 00:
And probation is entitled to look at all of the books, look at all the records, have a monthly check-in or more with the defendants should they want them.

[00:42:04] Speaker 00:
And so there is transparency in terms of the economics of all of those LSEs.

[00:42:09] Speaker 06:
The problem here is we- Anything in the terms, in the conditions of supervised release that specify that there's cooperation regarding the

[00:42:19] Speaker 06:
operation of the warehouses?

[00:42:23] Speaker 00:
I believe that it's a standard condition of probation and supervised release that the defendant should work with the probation officer.

[00:42:32] Speaker 00:
And should the probation officer believe that the defendants are not being transparent and honest, then that would of course go back before the court.

[00:42:41] Speaker 02:
Is the revenue solely from, where is the revenue coming from?

[00:42:46] Speaker 02:
Income from the warehouse rentals?

[00:42:49] Speaker 00:
That would be where the revenue would come from in terms of the physical space.

[00:42:54] Speaker 00:
To be frank,

[00:42:56] Speaker 00:
These warehouse defendants are entities that are single purpose entities.

[00:43:03] Speaker 00:
All they do are hold title to the warehouse.

[00:43:06] Speaker 00:
They do not operate the warehouses.

[00:43:08] Speaker 00:
They do not oversee the warehouses.

[00:43:10] Speaker 00:
That is another company that has a management company.

[00:43:13] Speaker 00:
The government could have, should the government decided to

[00:43:17] Speaker 00:
could have charged the management company.

[00:43:19] Speaker 00:
The management company is not a defendant in this case.

[00:43:21] Speaker 00:
The management company is outside the purview of this case.

[00:43:25] Speaker 00:
The government charged whom the government believed they should charge, and in doing so, these warehouse entities, the court and probation and the government should all be looking at the revenue coming in,

[00:43:38] Speaker 00:
the amount of money coming in, that is fair game.

[00:43:42] Speaker 00:
The court looked at that, probation looked at that, and probation determined that the revenue generated at the time of sentencing was zero dollars of gross monthly income.

[00:43:52] Speaker 00:
That's what probation's report said.

[00:43:54] Speaker 00:
The government didn't object to it.

[00:43:56] Speaker 00:
The government didn't say that's not right.

[00:43:57] Speaker 00:
The government didn't say we want to have an evidentiary hearing for them to prove it up.

[00:44:00] Speaker 00:
it went uncontested and under those circumstances it made sense for the court to accept that as the revenue coming in because it was not it wasn't put at issue by the government at the time of sentencing if the government didn't believe that to be true so be it the government could have asked for an evidentiary hearing instead the government affirmatively objected to an evidentiary hearing

[00:44:21] Speaker 00:
because for whatever reason, I don't want to speculate, but they objected to an evidentiary hearing, didn't object to those paragraphs in the PSRs and accepted those numbers.

[00:44:32] Speaker 00:
Now the government comes to this court and says, because of the large amount of money that is due, that the court's discretion should be changed somehow, that it's an abuse of discretion for the court to set a payment order, whatever the payment order is.

[00:44:47] Speaker 00:
That isn't correct.

[00:44:48] Speaker 00:
There are many cases before this court where there are

[00:44:51] Speaker 00:
very high restitution orders that the defendants never are able to pay.

[00:44:57] Speaker 00:
It does not mean that under those circumstances, take it in an individual defendant's circumstance.

[00:45:04] Speaker 00:
That does not mean because there's a high restitution number that the court should say,

[00:45:07] Speaker 00:
You know what, you need to sell your house, you need to sell your car, you need to sell your clothing, you need to sell your wedding ring, you need to liquidate 100% in order to make the restitution order under the Mandatory Restitution Act.

[00:45:21] Speaker 00:
That is not the state of the law.

[00:45:22] Speaker 02:
But if the person maybe has a second house in Santa Barbara and in a yacht and other things, doesn't the court have to take that into consideration as to their ability to pay?

[00:45:31] Speaker 00:
Of course.

[00:45:32] Speaker 02:
I mean, I think that's the government's contention, right?

[00:45:35] Speaker 02:
defendants are sitting on a pile of assets that are far larger than what the court contemplated.

[00:45:40] Speaker 02:
And I think it was objecting to that aspect of it, maybe not the revenue stream, right?

[00:45:49] Speaker 00:
Yes, Your Honor.

[00:45:50] Speaker 00:
But whether or not in total those warehouses are worth

[00:45:55] Speaker 00:
200 million, 500 million, 1 billion, any of those numbers are substantial numbers.

[00:46:02] Speaker 00:
And the court knew that, even taking a conservative figure, the court knew of those assets and the court made the determination not to order, in effect, immediate liquidation.

[00:46:12] Speaker 00:
That was within the court's discretion.

[00:46:13] Speaker 00:
Should the court, this is different than a second home because that implies a first home.

[00:46:17] Speaker 00:
These warehouse LLCs, they have one asset each.

[00:46:22] Speaker 00:
one warehouse each.

[00:46:24] Speaker 00:
If that's ordered liquidated, in effect, those LLCs are gone.

[00:46:27] Speaker 06:
I thought over, you know, if a restitution order is not paid within a certain number of years, I forget what it is, I mean, I used to, I remember when district court days, that if the defendant did not make restitution, ultimately there comes a certain point at which the government can reduce the restitution order to a civil judgment.

[00:46:48] Speaker 06:
Isn't that right?

[00:46:49] Speaker 06:
That is correct.

[00:46:50] Speaker 06:
And then they can use all the tools, the civil process.

[00:46:56] Speaker 00:
That is correct.

[00:46:57] Speaker 06:
They could force a sale, they could do anything to collect.

[00:47:02] Speaker 00:
They can avail themselves of whatever is available under the law in terms of litigating that on the civil side.

[00:47:08] Speaker 00:
That is correct.

[00:47:09] Speaker 00:
It becomes a judgment.

[00:47:11] Speaker 00:
Whether or not down the road that is ordered an immediate liquidation, that's a question for litigation in that scenario.

[00:47:18] Speaker 00:
It's executing on a judgment in the civil realm like any judgment.

[00:47:22] Speaker 00:
That is correct.

[00:47:24] Speaker 00:
But during the period of probation, it is within the trial court's discretion to set the payment schedule regardless of the total.

[00:47:34] Speaker 00:
I know the government puts in a big number.

[00:47:36] Speaker 00:
It's going to take 375,000 years for this to get paid.

[00:47:39] Speaker 00:
I get that.

[00:47:40] Speaker 00:
That has some kind of immediate appeal to it.

[00:47:44] Speaker 00:
But that's not really the question before this court.

[00:47:46] Speaker 00:
The question before this court is whether or not the court in having all of the information about the assets, about the revenue coming in, about the expenses going out, having all that information

[00:47:57] Speaker 00:
It briefed in multiple rounds of briefing, whether it was within the court's discretion to order what the court ordered.

[00:48:04] Speaker 00:
And it was within the court's discretion.

[00:48:06] Speaker 00:
The court knew that at that rate, it was- You're repeating yourself.

[00:48:10] Speaker 02:
I think we've taken you over, but thank you.

[00:48:14] Speaker 02:
If you want to give a concluding statement, you may.

[00:48:19] Speaker 00:
The one thing that I wanted to point out before the restitution issue was raised, the court was asking whether there were specific questions about Chinese nationals and prejudicial feelings about China or Chinese nationals and whether that was

[00:48:35] Speaker 00:
requested specifically, it was requested.

[00:48:38] Speaker 00:
That's at 5ER-995 to 998.

[00:48:42] Speaker 00:
We had multiple questions specifically on Chinese nationals, on China, on COVID, whether there was any prejudicial feeling.

[00:48:49] Speaker 01:
I think he was making the point that you never asked for that.

[00:48:53] Speaker 01:
You put it in your submission along with countless other questions.

[00:48:56] Speaker 01:
Did you ever raise that specifically with the judge, other than to put it in your written submission?

[00:49:01] Speaker 00:
Yes, Your Honor.

[00:49:02] Speaker 00:
We went sidebar and said we had additional questions.

[00:49:05] Speaker 00:
The court cut us off and said to the extent that the court was going to ask any of those questions, the court has and basically move on with all due respect.

[00:49:13] Speaker 00:
We raised it.

[00:49:14] Speaker 00:
We put it in writing before the court.

[00:49:16] Speaker 00:
The court had it.

[00:49:17] Speaker 00:
We went sidebar.

[00:49:18] Speaker 00:
We reiterated it.

[00:49:20] Speaker 00:
And so, yes, we did not waive.

[00:49:21] Speaker 01:
I want to make sure I'm understanding you.

[00:49:23] Speaker 01:
You're saying at sidebar, and it is in the record, you specifically asked for these questions to be submitted?

[00:49:30] Speaker 00:
At sidebar, we requested that the court consider the additional questions that we submitted.

[00:49:34] Speaker 01:
That's not what I'm asking you.

[00:49:35] Speaker 01:
Did you refer to these specific questions?

[00:49:37] Speaker 01:
No, Your Honor.

[00:49:38] Speaker 00:
We did not.

[00:49:41] Speaker 00:
And if I may just?

[00:49:43] Speaker 02:
Counsel, I think we should wrap this up.

[00:49:44] Speaker 00:
OK.

[00:49:45] Speaker 00:
Thank you, Your Honor.

[00:49:46] Speaker 02:
Thank you.

[00:49:47] Speaker 02:
The matter will stand submitted.

[00:49:48] Speaker 02:
Thank you, Counsel, for your arguments.

[00:49:50] Speaker 02:
And court is adjourned.

[00:50:01] Speaker 00:
This court for this session stands adjourned.