Government Responds to EcoVest Opposition in Easement Case

UNITED STATES,
Plaintiff,
v.
ECOVEST CAPITAL, INC., et al.
Defendants.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES' REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT (RESPONDING TO ECOVEST'S OPPOSITION)

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TABLE OF CONTENTS

ARGUMENT

CONCLUSION

TABLE OF AUTHORITIES

Cases

Emanouil v. Comm'r, 2020 WL 4747529 (T.C. 2020)

Lawton-Davis v. State Farm Mut. Auto. Ins. Co., 2015 WL 12839263 (M.D. Fla. 2015)

Lemay v. Comm'r, 2020 WL 2498427 (U.S. Tax Ct. 2020), aff'd 2021 WL 3930279 (10th Cir. Sept. 2, 2021)

Palmer Ranch Holdings Ltd v. Comm'r, 812 F.3d 982 (11th Cir. 2016)

Rothman v. Comm'r, 2012 WL 3101513 (T.C. 2012)

Stobie Creek Invs. LLC v. United States, 608 F.3d 1366 (Fed. Cir. 2010)

Top Tobacco, L.P. v. Star Imps. & Wholesalers, Inc., 2021 WL 4081627 (N.D. Ga. 2021)

TOT Prop. Holdings, LLC v. Comm'r, 1 F.4th 1354 (11th Cir. 2021)

United States v. 480.00 Acres of Land, 557 F.3d 1297 (11th Cir. 2009)

United States v. Alexander, 2010 WL 1643425 (D.S.C. 2010)

United States v. Cartwright, 411 U.S. 546 (1973)

United States v. Delgado, 321 F.3d 1338 (11th Cir. 2003)

United States v. Est. Pres. Servs., 38 F. Supp. 2d 846 (E.D. Cal. 1998), aff'd, 202 F.3d 1093 (9th Cir. 2000)

United States v. McCorkle, 321 F.3d 1292 (11th Cir. 2003)

United States v. Schulz, 529 F. Supp. 2d 341 (N.D.N.Y. 2007)

United States v. Stover, 650 F.3d 1099 (8th Cir. 2011)

Weir v. United States, 716 F. Supp. 574 (N.D. Ala. 1989)

Zoslaw v. MCA Distrib. Corp., 693 F.2d 870 (9th Cir. 1982)

Statutes

26 U.S.C. § 170(f)(11)

26 U.S.C. § 6700

Other Authorities

26 C.F.R. § 1.170A-14(h)

Fed. R. Civ. P. 12(f)

IRS Notice 2017-10, 2016 WL 7422633

S. Prt. No. 98-169 (Vol. 1)

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The correct value of a conservation easement is the fair market value of the easement at the time of the contribution. This simple rule, oft repeated, is the crux of the legal dispute at the center of the United States' motion for partial summary judgment: whether Defendants can value unimproved property as if its proposed highest and best use has already been achieved. Rather than meet this issue head on, the EcoVest Defendants (“EcoVest”) have opted for distraction and obfuscation.

The Defendants' opposition briefs are littered with red herrings in an apparent effort to make the United States' motion about something it is not. For example, they spend a great deal of energy defending Clark's use of the subdivision development method, with a discounted cash flow analysis (DCF), to determine the values of the properties in the before scenario. But this motion does not challenge whether Clark's use of a DCF is appropriate.

Similarly, Defendants purport to dispute straightforward assertions of material fact with meaningless distinctions and improper narrative responses that lack citations to the record. Indeed, EcoVest submitted a response that includes a whopping 650 exhibits and over 77,000 pages, most of which is immaterial and non-responsive. But a “party may not prevail in opposing a motion for summary judgment by simply overwhelming the district court with a miscellany of unorganized documentation.” Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982).

Despite their Herculean effort to hide the real issues from view, the elements of 26 U.S.C. § 6700 are satisfied by reference to undisputed facts, and the Court should conclude that each Defendant violated 26 U.S.C. § 6700 as a matter of law. In addition, EcoVest has failed to show that their affirmative defenses (laches and estoppel) should survive summary judgment.

ARGUMENT

I. DEFENDANTS' STATEMENTS WERE FALSE OR FRAUDULENT.

A. “Qualified appraisals” under the Treasury regulations.

1. Appraisers value property in its current condition.

While there is no dispute that the Treasury regulations require the appraiser to consider the property's “highest and best use” in determining value, i.e., what might the property be used for and how that might affect what a willing buyer might pay for it, 26 C.F.R. § 1.170A-14(h)(3)(ii), Defendants wrongly suggest that determining a property's highest and best use is unique to conservation easement appraisals. In fact, as EcoVest's own materials unequivocally demonstrate, determining a property's highest and best use is endemic to all real estate appraisals. (See ECF No. 365-39, The Appraisal of Real Estate (15th Ed.) at 34 (“Whenever a market value opinion is developed, highest and best use analysis is necessary.”).) See also United States v. 480.00 Acres of Land, 557 F.3d 1297, 1307 (11th Cir. 2009) (value “includes any additional market value it may command because of the prospects for developing it to the 'highest and best use' for which it is suitable”) (emphasis added).

Nor does determining a property's highest and best use allow an appraiser to value something other than the donated property as it exists on the date of donation. See TOT Prop. Holdings, LLC v. Comm'r, 1 F.4th 1354, 1369 (11th Cir. 2021) (quoting 26 C.F.R. § 1.170A-14(h)(3)(i)) (“The correct value of a conservation easement is 'the fair market value of [it] at the time of the contribution.'”). In other words, although the appraiser must consider how various uses affect the property's current value, the appraiser may not value the property as if those uses were already achieved.

The Defendants take a radically different view of these same regulations. For starters, there is no dispute that all 70 properties were undeveloped, vacant land and that Clark determined the highest and best use for all 70 properties to be some form of residential development. (US Reply in Support of US Stmt. of Undisputed Material Facts (“US Reply in Support US SUMF”) at ¶¶ 72, 74.) From there, Defendants argue that assessing a property's “highest and best use” is, in fact, a license to ignore fair market value, and instead appraise unimproved property as if the proposed development were actually achieved. (See ECF No. 369 at 19 (“In such a situation, the willing buyer is not paying for the vacant land”); US Reply in Support US SUMF at ¶ 83; see also ECF No. 365 at 26 (arguing conservation easement appraisals “value the property in its HBU state, rather than its current state”).) However, the routine determination of a property's “highest and best use” does not replace or modify the required definition of “fair market value” (i.e., what a willing buyer would pay and what a willing seller would accept).

To support their warped view, EcoVest relies heavily on the so-called Greenacre example from the Treasury regulations. (See ECF No. 365 at 30 (citing to 26 C.F.R. § 1.170A-14(h)(4), Example 7).) According to EcoVest, the Greenacre example proves that to determine fair market value, an appraiser must value the property as if the proposed use is already achieved. (Id.) EcoVest's legal arguments regarding Greenacre are wrong because that example merely demonstrates that appraisers consider how the property's highest and best use (which may differ from its current use) can affect the value of the asset in its current state. The Greenacre example makes a simple point: even though the land is intended to be preserved, the appraiser should consider how the potential for other (non-preservation) uses of the land affects the value of the asset in its current condition. What the example does not say — or even suggest — is that the appraiser should value the land as if it has achieved its highest and best use, i.e., home development.¹

2. Clark valued the properties as if they were fully developed.

In some places, Defendants suggest that Clark did not, in fact, value the properties as if the highest and best use had already been achieved. For example, they state “it is untrue that Mr. Clark simply assumed that the various properties were developed as contemplated.” (ECF No. 369 at 17; see also ECF No. 365 at 33.) But Defendants do not genuinely dispute that, in every single appraisal, Clark stated:

(US Reply in Support US SUMF at ¶ 77; see also id. at ¶ 78 (in 50 appraisals, Clark imposed a hypothetical condition that certain improvements had been made to the subject property that did not exist as of his valuation date”).)

Moreover, Clark's attempted sales comparison analysis readily reveals that he was attempting to value a fully constructed development. This is because, although in all cases the subject properties were indisputably vacant at the time of Clark's valuations, Clark did not look for sales of vacant land with similar development potential. Instead, it is not genuinely disputed that Clark only looked for sales of fully developed parcels. (Id. at ¶¶ 102-103.) Moreover, Clark's admissions that he only determined what a willing buyer would pay for the fully developed property should end any dispute about Clark's erroneous application of fair market value principles:

(Id. at ¶ 88.)

Further, Defendants' arguments reflect their continued efforts to defend the bogus assertion that the Treasury regulations relating to highest and best use modify the Treasury regulations' definition of fair market value to allow appraisers to value the asset “as if” the highest and best use had actually been achieved. For example, Defendants argue that, in an EcoVest sales pitch, McCullough correctly drew a sharp distinction between a “traditional fair market value appraisal” and the value of a conservation easement in which he, like Clark, assumes that a development has been constructed. (Id. at ¶ 115 (admitting that “McCullough's description is entirely consistent with” Clark's valuation methods).) Defendants further argue that EcoVest correctly stated in submissions to the IRS that a determination of the before-value for a conservation easement appraisal “must assume the property is in its highest and best use state,” which is what Clark did in valuing the properties in this case. (Id. at ¶ 114.)

The Court should reject Defendants' effort to muddy the factual record to create a dispute about whether Clark valued the properties as if they were fully developed. But, even if the Court were to conclude there is a dispute of fact as to what Clark actually did — or attempted to do — in his appraisals, the Court can and should still rule on the pure legal dispute at issue in the United States' motion. This legal issue — do the Treasury regulations permit an appraiser to value conservation easements as if the proposed highest and best use in the before scenario were already achieved? — is amenable to a pretrial ruling regardless of Defendants' efforts to muddy the factual record.

3. The qualified appraisal practice rules.

The Defendants also suggest the qualified appraisal rules are merely a reporting obligation, and accuracy is irrelevant in determining compliance with those rules. (ECF No. 365 at 26-28; ECF No. 369 at 14-16.) First, the qualified appraisal rules are not just a regulatory reporting requirement but instead are codified law. See 26 U.S.C. § 170(f)(11) (“Qualified appraisal and other documentation for certain contributions”). Second, Defendants' attempt to characterize the rules as a mere “reporting requirement” that can be achieved with “substantial compliance” is contrary to the very purpose of those statutory requirements. See S. Prt. No. 98-169 (Vol. 1), at 444 (“in recent years, opportunities to offset income through inflated valuations of donated property have been increasingly exploited by tax shelter promoters”). See also Emanouil v. Comm'r, 2020 WL 4747529 at *13 (T.C. 2020) (the qualified appraisal rules at issue in this motion were specifically designed to “deal more effectively with the prevalent use of overvaluations”) (citation omitted).

In short, the “effect” of the defect in Clark's appraisals “deprives the Internal Revenue Service of sufficient information to evaluate the deductions claimed.” Rothman v. Comm'r, 2012 WL 3101513 at *4 (T.C. 2012). See also United States v. Cartwright, 411 U.S. 546, 551 (1973) (“willing buyer-willing seller test of fair market value is nearly as old as the federal income, estate, and gifts taxes themselves”). The Defendants' attempt to subvert the very purpose of compliance with the Code as well as accompanying Treasury regulations should be rejected.

B. No sales “involving” the properties within the last three years.

Clark falsely stated in 46 appraisals that there was “no sale involving the tract within the last three years.” EcoVest does not meaningfully dispute that, in each instance, there was a MIPA transaction that “involved” each property being appraised; instead, they quibble with the United States' identification of the parties to the MIPA. (US Reply in Support US SUMF at ¶¶ 58-60; see also US Resp. to EcoVest Stmt. of Add'l Undisputed Material Facts (“US Resp. to EcoVest SAF”) at ¶¶ 24, 28, 30, 31, 34-36, 262-63.) There is no dispute of fact as to what Clark said — or did not say — about the MIPA in his appraisals. Even Clark acknowledges, as he must, that the MIPA was a sale “relating to the property.” (ECF No. 369 at 22.) Thus, whether the MIPA is a “sale involving the tract” is a pure legal dispute, ready for summary disposition in favor of the United States.

The Defendants attempt to resist this argument by setting up several strawmen and knocking them down. First, they insist USPAP does not require an appraiser to disclose a MIPA transaction. (ECF No. 365 at 40.) But this motion is not about whether Clark's purposeful omission of the MIPA price constituted a violation of appraisal rules.

Second, although Defendants admit they made and furnished the statement that there was “no sale involving the tract” they argue those statements are not false if “understood within their context.” (ECF No. 365 at 38; see also ECF No. 369 at 22-23.) They ask this Court to ignore the plain words that Clark wrote and instead evaluate new words that state “none of the properties at issue” “had been sold within the prior three years.” (ECF No. 365 at 38.) But Clark did not write those words; instead, he opted for a broader statement that falsely ignored the existence of a MIPA transaction that “involved” the property being appraised. No rational factfinder would accept the Defendants' “that's not what I meant” defense.

Finally, Defendants argue the “MIPA transactions involved sales of membership interests in business entities, not sales of property.” (ECF No. 365 at 39; ECF No. 369 at 21-22.) As a result, Defendants suggest the MIPA price had no bearing on the value of the property upon which investors relied to claim a tax deduction from Defendants' scheme. Not so, according to the Eleventh Circuit. The MIPA price indicates the value of the real estate at issue. See TOT Prop. Holdings, LLC, 1 F.4th at 1371 n. 23 (“When the partial interest is a 99% ownership interest and complete control, as here, and when the property is the only asset of the entity (besides $100 cash), it is clear that the parties considered the price paid to be the fair market value of the property.”).² (See also US Resp. to EcoVest SAF at ¶¶ 133, 139.)

II. DEFENDANTS KNEW (OR AT LEAST HAD REASON TO KNOW).

The EcoVest Defendants claim they had no reason to know that their statements were false because lawyers told them these statements were true. (ECF No. 365 at 13-20.) That argument fails for numerous reasons.

First, regardless of the comfort they purportedly received from their lawyers, the EcoVest Defendants actually knew of the willing buyer-willing seller requirement in the Treasury regulation definition of fair market value. (US Reply in Support US SUMF ¶¶ 135-140 (admitting that EcoVest's attorneys identified the Treasury regulation's definition of fair market value and explained that was the required type of value for all conservation easement appraisals); see also US Resp. to EcoVest SAF at ¶¶ 133, 139.)

Second, the EcoVest Defendants suggest there is no basis to infer they “knew or should have known the regulatory definition of fair market value.” (ECF No. 365 at 21-22.) There is no dispute that EcoVest is a self-described real estate company led by tremendously successful executives with years of experience in land development transactions. By their own admission, the EcoVest Defendants are sophisticated actors, with deep knowledge of the real estate industry. (E.g., US Resp. to EcoVest SAF at ¶¶ 1-23.) As a result, they knew, or at a minimum had reason to know, the definition of fair market value, including the willing buyer-willing seller requirement.³ Because the definition of fair market value is not a malleable concept, the circumstances of the individual projects are not relevant to determining the EcoVest Defendants' “reason to know” on this issue. Thus, it is simply not true, as EcoVest suggests, that the Defendants' “reason to know” can only be determined by “weighing the facts and circumstances for dozens of distinct projects.” (ECF No. 365 at 24.)

Third, the EcoVest Defendants insist they were repeatedly advised that Clark's appraisals were “qualified appraisals.” In fact, however, the counsel they now seek to rely on merely assumed that Clark would issue a qualified appraisal:

(ECF No. 349-79 at 7-8.) In other opinions, EcoVest's counsel stated:

(ECF No. 349-80 at 21.) Nowhere did EcoVest advisors provide unequivocal guidance that Clark's appraisals were, in fact, qualified appraisals within the meaning of the Treasury regulations.⁴ (See generally US Resp. to EcoVest SAF at ¶ 45 and §§ III through VI.) Advice that reiterates Clark's statements or makes assumptions about what he might prepare do nothing to negate the fact that the EcoVest Defendants had reason to know that Clark was not applying the correct definition of fair market value.

Likewise, the advice the EcoVest Defendants claim to have received regarding Clark's repeated statements that there was “no sale involving the tract” does not negate their reason to know. They cite to an explanation one of their lawyers provided in a deposition in this case. (ECF No. 365 at 14.) But, whatever the quality of that “explanation,” it could not have affected what the EcoVest Defendants knew or should have known at the time they furnished Clark's appraisals. They also contend a review appraiser advised them that Clark's appraisals adequately discussed the history of the properties. (ECF No. 365 at 18.) Again, however, this “pass/fail” examination (see, e.g., ECF No. Ex. 366-94 at 6 (Azalea Bay Review Appraisal); see also US Resp. to EcoVest SAF at ¶¶ 176-206), only states that Clark's appraisals were USPAP-compliant, and is silent as to whether the MIPA is a “sale involving the tract.”

The EcoVest Defendants point to additional advice they received on a host of issues that, yet again, have nothing to do with the issue at hand. Indeed, they cite to legal counsel on “tax law, securities law, corporate law, real estate law, and environmental law.” (ECF No. 365 at 14.) They explain in elaborate detail that “counsel were intimately familiar with and involved in, every aspect of the transactions,” (ECF No. 365 at 15; see also id. at 16-20) but none of that has any bearing on whether they had reason to know Clark's appraisals contained the false statements at issue in this motion. In fact, such involvement invalidates the reliance on counsel argument EcoVest seeks to invoke. See, e.g., Stobie Creek Invs. LLC v. United States, 608 F.3d 1366, 1382 (Fed. Cir. 2010).

Finally, the EcoVest Defendants argue they had no reason to know of Clark's statement that there was “no sale involving the tract” because it amounts to “a single sentence in only some of the 100+ page Clark Appraisals.” (ECF No. 365 at 23.) In other words, despite their deep collaboration with Clark on the appraisals, they claim they could not possibly have been aware of these statements. As set forth in the United States' response to Clark's statement of facts, EcoVest provided information to Clark to be inserted into his appraisals (including calculations and assumptions, and Excel spreadsheets), reviewed and checked the Excel spreadsheets Clark used in his appraisals, paid for and provided documents to Clark for use in his appraisals, provided feedback to Clark regarding his appraisals, and collaborated with Clark regarding appraisal methodology. (See U.S. Resp. to Clark Stmt. of Add'l Undisputed Material Facts at ¶ 4.) The undisputed facts make clear: the Defendants must have known or had reason to know the statements set forth in Clark's appraisals were false. No rational factfinder could find otherwise.

III. DEFENDANTS MADE FALSE STATEMENTS.

The EcoVest Defendants claim they “cannot have made statements about the availability of a tax benefit” because they “took great care to ensure that the investors were aware of the potential for IRS scrutiny.” (ECF No. 365 at 42-43.) A purported disclaimer is not absolution for making a false statement. See United States v. Schulz, 529 F. Supp. 2d 341, 351 (N.D.N.Y. 2007) (finding promoter's disclaimer regarding tax risk “irrelevant” for purposes of § 6700 liability); United States v. Alexander, 2010 WL 1643425, at *6 (D.S.C. 2010) (“As to the Defendant's disclaimer that his customers should conduct their own research, courts have long rejected such disclaimers when the materials claim to be based on legal content and directly cite legal authority.”).

Moreover, the authorities that EcoVest offers simply do not support that position. In United States v. Stover, 650 F.3d 1099, 1109 (8th Cir. 2011), the court held that a statement can be false not only due to what a promoter says, but also because of what a promoter fails to say. Similarly, in Lemay v. Comm'r, 2020 WL 2498427, at *22 (U.S. Tax Ct. 2020), aff'd 2021 WL 3930279 (10th Cir. Sept. 2, 2021), the Court cited Stover in concluding that because the promoter “failed to inform prospective and current clients of” risk, the promoter “made false statements as to the tax benefits incident to participation in the tool use plan.” No honest reading of those authorities remotely supports EcoVest's sweeping argument. Moreover, EcoVest's argument would impermissibly allow tax shelter promoters to elide penalties and affirmative civil enforcement by simply including disclaimers in their promotional materials.

IV. LACHES AND ESTOPPEL FAIL AS A MATTER OF LAW.

EcoVest opposes the United States' motion with respect to the affirmative defenses of laches and estoppel on three grounds — all of which fail. First, EcoVest wrongly claims (ECF No. 365 at 44) that, in denying the Government's motion to strike those affirmative defenses under Fed. R. Civ. P. 12(f), the Court has already ruled that those defenses are valid as a matter of law. In fact, though, the Court only decided that EcoVest's affirmative defenses were not “at present patently frivolous or clearly invalid as a matter of law.” (ECF No. 149 at 3.) Upon a further developed factual record, and with the benefit of lengthier briefing, the Court may certainly consider at the summary-judgment stage the legal validity of affirmative defenses that it previously refused to strike. Lawton-Davis v. State Farm Mut. Auto. Ins. Co., 2015 WL 12839263, at *2 (M.D. Fla. 2015); see ECF No. 149 at 3 (“This Order does not prevent the United States from arguing on summary judgment why these defenses do not apply. . . . ”).

Second, EcoVest erroneously asserts (ECF No. 365 at 37-38) that laches may apply whenever the Government seeks equitable relief. That has never been the law in the Eleventh Circuit, which generally follows the Summerlin rule barring the use of laches against the Government whenever it seeks any relief to “protect[ ] public rights vested in the government for the benefit of all.” United States v. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003). The Eleventh Circuit has recognized a narrow exception for unlawful discrimination suits brought by the EEOC to vindicate the rights of individual victims and others similarly situated. Id. But it has refused to consider the doctrine of laches as a general factor in determining equitable relief, such as restitution. See id. (“The doctrine of laches should not be used to prevent the Government from protecting the public interest.”)

Third, EcoVest incorrectly maintains (ECF No. 365 at 38-40) that genuine issues of material fact exist regarding these defenses. The only “fact” that EcoVest offers to support the undue-prejudice element of its laches defense is inadmissible speculation. (US Resp. to EcoVest SAF at ¶¶ 308-329.) It offers no admissible evidence of any opportunities that it declined because it was promoting conservation-easement projects instead. Privileged IRS investigative documents will not tell EcoVest anything about its own business history that it does not already know. And the mere fact that it continued selling these projects while waiting to be sued does not constitute prejudice. Top Tobacco, L.P. v. Star Imps. & Wholesalers, Inc., 2021 WL 4081627, at *12 (N.D. Ga. 2021). Perhaps most importantly, EcoVest cannot show any prejudice that “likely would have been prevented by earlier suit” (ECF No. 365 at 48) because it continued promoting syndicated conservation-easement projects even after the IRS designated them as “listed transactions” (published on January 23, 2017, see IRS Notice 2017-10, 2016 WL 7422633) and even after the Justice Department filed its complaint (on Dec. 18, 2018, see ECF No. 1.). (Ex. 365-98 (identifying 20 deals that EcoVest organized in 2017 or after); Ex. 371-27 at 311:12-15 (identifying 3 deals that EcoVest organized in 2019 and 2020). EcoVest's actions thus belie its farcical suggestion that it would have stopped misbehaving and minimized its financial exposure if only the Government had sued it earlier. For all these reasons, the Government is entitled to summary judgment on laches.

As for EcoVest's estoppel defense, accessing privileged internal IRS documents to fish for evidence of alleged Government misconduct would be futile because estoppel against the Government also requires detrimental reliance. United States v. McCorkle, 321 F.3d 1292, 1297 (11th Cir. 2003). If EcoVest does not learn of hypothetical misconduct until some future time when it first views these IRS documents, then it could not possibly have relied on the (then unknown) misconduct in the past as a reason for continuing to promote its scheme. Similarly, even if some IRS agents had wrongly concluded, years later in post-transaction audits of partnerships formed by EcoVest, that the partnerships had not committed fraud by claiming charitable deductions for easement donations, that would not estop the Government from asserting that EcoVest had committed fraud years earlier in promoting the projects. That is especially so given that the United States is not even required to prove that EcoVest committed fraud — much less that the partnerships did so — in order to obtain its relief. (See ECF No. 344 at 30-37.)

In addition, EcoVest provided no admissible evidence from which a rational factfinder could conclude that either the IRS partnership audit findings or any other IRS representations constituted intentional misconduct meant to deceive EcoVest. (ECF No. 365 at 48.) That is the high bar that EcoVest must hurdle; negligence or silence by its employees is not enough to estop the Government. (ECF No. 349-1 at 43-46.) Given EcoVest's evidentiary failure as to affirmative misconduct, and that additional discovery would be futile due to the reliance requirement, and that the Government filed this suit in its sovereign capacity, the Court should enter summary judgment on EcoVest's estoppel defense.

CONCLUSION

For the foregoing reasons, and those set forth in the United States' opening brief, the United States' motion should be granted.

Dated: March 31, 2022

Respectfully submitted,

DAVID A. HUBBERT
Deputy Assistant Attorney General

ERIN R. HINES
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GREGORY VAN HOEY
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RICHARD G. ROSE
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Local Counsel:
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United States Attorney
NEELI BEN-DAVID
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