relocated from oklahoma to mexico in this course decision perrette is the court sharply distinguish between a relocation of the defendant himself and a relocation of the fraudulent scheme and here mr wick relocated only himself to mexico and not the ski so to defer to the district courts fin novel home a versus what he did in mexico and the only question is whether as a matter of law that adds up to a relocation of the school and what happened in mexico let's think about what happened in mexico completed that there's no more to be done there whether it's needed enough homa or whether he went to mexico so the only remaining part of the fraud was concealment and picking the receipts and not giving  back and it seems to me that that that is the conduct we have to ask was relocated or not reappeared because there was nothing else on the scheme to be done at that point so st of instead he kept the money in mexico and spent it there so why isn't everything that was going to be done by the fraud during that segment of the fraud moved to mexico so what's going on in oklahoma while he has in mexico the oil has been pumped you know klahoma the company that's purchasing the oil is purchasing it and oklahoma the company you know oklahoma city hit to an oklahoma mexico and how many times did he send instructions out my recollection is that there was a plan to do it a number of times but that it only happened once that was in october when she went out there and brought down money to him and then maybe it was twice but there was a place and to bring in money a number of different times but my recollection is it only happened once then there's also during the  scheme as it existed after the underlying solicitation fraud there's also the fact that part of the alleged scheme was not filing these documents that should have been filed in oklahoma so the omissions didn't occur in mexico they occurred in oklahoma because that's where all of the paperwork was but again i think that what what a scheme to defraud is and this is looking from this course jury instructions is taking property through deception right there taking occurred in oklahoma both at the beginning of the fraud and at the in the fraud but because the money is being sick to his bank accounts in oklahoma that deception also occurred only in oklahoma because that's where he made a false representation to the investors that they were going to get these proceeds so not only  is what happened in mexico not these schemes are a fraud that was charged which is what's required it wasn't a scheme to defraud at all because both the deception into taking occurred in oklahoma now were telemarketing schemes where people would call folks and talk them out of their money and then when the authorities got wind of it they would pick up a stablish a new call center in a new state or a new jurisdiction and they'd make new calls and talk more people out of them so there's nothing approaching that that happened here what would be the n y r to that here is if mr witt picked up went to mexico and then so a little bit more investments talked to more of the investors out of their money and said you guys getting more investments and i will give you money from oil proceeds and that just didn't happen it's also useful i this and hansen has involved the defendant perpetrating a new fraud against new people d in the new jurisdiction so you know you have a scheme where somebody would swindle jewelers out  of risk watches and they did it in one state and then they went to another state and committed new swindles or d somebody who wouldn't bezel money from a corporation that they were hired to be a bookkeeper and then they went to a new state got a job with a new company as a bookkeeper and took more money so that is what we're looking at here this case is more like the heinz flack case where it was a stolen i did it he and identity theft case and they stole the identities and created fake identification fits all the goods in detroit but then they would go to another jurisdiction and use the fake identities to get goods and then bring them back to detroit and th circuit said in hines flatwork guess you you went out and did some stuff in support of the scheme in another jurisdiction but the heart of the enterprise never left to detroit and similarly here the heart of the enterprise which is where the oil is being pumped where it's being sold where the money is being diverted to mr ricks bank account where the omissions occurred where the corporate books were everything's safe again oklahoma i think in applying loss and restitution you know what the victims were are entitled to was how much better off they would have been and if mr witt had done everything he had promise and what they would have thousand dollars threshold but the problem is even the mimic forty seven percent or something on restitution as well we're not no restitution he just ordered pure revenue which it plainly erroneous but the other problem is with the loss capital a sion there was no basis at all for the court to guess that production costs were forty seven percent or less of revenues and this right but what the judge relied on was testimony that it's a very small amount and he said when you're looking at the guidelines range you have to have a pretty big swing to it to take you down to a lower level and even if i assumed forty seven percent it's not going to make any difference isn't that what happened and that's exactly what happened and that's crucial because there was no testimony not that the production costs were a relatively small amount not in fact the only thing we know is that the production cost we don't know what they were exactly but we know they were big and we know that because it includes stuff like pay people to pump the oil pay people to haul oil and waste water pay insurance electricity making it eight and crucially the only testimony really that we have about production costs is that they sometimes exceeded revenue in its entirety they were sometimes so high that there was no readily left over then we also have evidence that mr witt in fact paid mountains of expenses to keep the oil wells run so all we have really is again just a judge's speculation that these production costs are small and if you cite even that we're talking minute last i want to ask you quickly on your evidentiary objections they're harmless even if we agreed with you isn't a problem i don't think it's harmless at all st because the government waved the harmless air defense by inadequately proving it but because it's only in a footnote we don't get away with just raising arguments in a footnote they should need it but even if it were preserved the issue of fraudulent intent was close enough that it could have made a difference and it's crucial to minute episode where not a better spent all the money after the fact and assumed that there was so much money that it would somehow all work out and it now that might have been criminal somehow but it certainly was not the investment it impacted their view of whether he was behaving fraudulent absolutely and the reason he has that hearing that somebody beats his wife just categorically changes how you think about that person if you heard that about order to address mr leask point in order st i'd like to address this relocation and hasn't because that is what he has spent the most time on the judgment she's point this was a factual finding of the district court made that these essence of the scheme was to receive payments from investors and then simply not repay them and spend the money that's found at the record volume three a five hundred and eighty eight dollars that is a factual finding th an opposite to this case in that th circuit case this scheme was never really located because it was always meant to operate in multiple locations with one city is home base here mr witt relocated to mexico and continue the counts in the indictment occurred prior to the move to mexico so the scheme as it was alleged and charged is not a scheme that was relocated to so before you move on so are you saying that well maybe just precisely tell us what our operating the scheme happened in mexico i mean that's the phrase you used u he was operating the scheme from mexico what precisely did he do in mexico that was part of the city operating the city certainly your honor so st mr wick instructed m yes your honor the nd part of being handsome and is that the relocation is i think to evade law enforcement all regulatory  right that's part of the task and here i think the argument by mr witt is that he was avoiding outstanding dui warrant and not and in fact at that time the investigation of this fraudulent scheme hadn't even be gone by the government you have a response to that to your honor st in the sentencing transcript the district court found that the purpose of also note that the trial evidence supported the facts mr winnick explained to her brother robert the night before leaving this was in august th a month before the assignments were filed that he was leaving for mexico  are no other questions on this point i would like to address a lot of restitution because i believe there's a bit of confusion based upon a reply brief so st i'd like to start by rebutting what is included on page nineteen of defense counsel's reply brief that makes much of that five hundred and ninety thousand dollars that would pay to investors to clarify that five hundred and ninety thousand dollars included startup costs and production costs and it was a b amount for all three dollars wells including the dry hole which never produced or oil and for which investors with were never repaid in addition or that amount extends from january twenty four teams through only a warning based upon the percentage that easton each investor owned in wealth that they actually bought an interest in and because we only have an aggregate costs for often really well there's no way to determine based upon the not new testimony the production costs are limited and there's stagnant so based on our f b i analyst calculation how method arrived at repayment that was exactly the same to the sense in most cases that mr witt actually repeat investors so it matched what mr wick actually thought investors should be receiving well i don't i don't know that i buy that because he was paying investors in a way that you've alleged was trying to lure them in to make more investments find giving them a win off that that necessarily means that we should calculate this guideline level and calculation we simply made our own calculation and it happens in memphis we have a mill better way because of the lack of accounting they did to accurately more accurately assess restitution and we have to arrive at a simply an allegation or should they be receiving their investment back we're saying no we're only getting that what they're expected return would be wells are the oil and gas industry is volatile and there's no way of knowing what am i how can you say that there are men i'm all on and we can assume that for all wells when we have well number three where they the revenue was zero so the production value ha and they took that gamble and they're not being awarded a windfall for investing in a well that in thirty years i'm simply saying based upon mr wix bank records and based upon pacer which is the oil transport company records we have to the percentage that they owned in the well yes and so you need no differentiation between a welder with a bigger producer versus a level was less productive that's true well actually i shouldn't say that because it's based on the yes no that we separated out piece or preceded by by well one and by wealthy the key producing wells that we came up with a percentage based upon the production for each well we don't know the production cost for those two dollars well because mr rick with jane cross across well we don't know what goes to well three which didn't produce it all for which investors got nothing we don't know proposition of of harmless error you just mentioned in the flick oh so you either win or lose on whether we agree or disagree whether this was a reset is that what you're saying  the court disagrees with me that the  even you you don't put on a case about it not being prejudicial your honor i believe we do state that and conceivable prejudice is minimal because they are simply evidence was abuse that he was a drunk that he defrauded people that he lied to people i do not think that she words in over thirty pages of testimony that was highly probative in rebutting the defense's theory that making that the government says that this is that this spousal abuse testimony was relevant to approving fraudulent intent but i just don't see how that's possibly so again all of these  what shape the oil business was in and her bring him up and i came back and he said well how the oil wells do how they go in and she doesn't want to tell him that there's no money because she thinks he's going to be mad when there's no money she tells him and are the whether it was more prejudicial than probative i cited a number of cases that say when the probative value is minimal even a modest possibility of prejudice  minimal we're all scratching our heads to figure out how this has anything to do with anything a good for the jury to hear that he is a wife abuser made them more likely to convict him on grounds that have nothing to do with whether he committed