evidence on which the jury could have made that determination the evidence that we are challenging is is evidence of the defendant's less seemly pursuits and interests that turned that decision into a credit into character decision well but isn't the essence of this case who certainly took money out of the phone and put it in general  because had you could see did that you would have given up the whole case but at that point isn't his lifestyle directly relevant to that and should i don't think so i think the there was enough evidence with with in purchases for the jury to have said there was no good faith here we didn't have to add a but of yeah there might have been evidence that was less scurrilous about him and there was evidence that was we kept out evidence of prostitutes because one it was illegal but two it would cast a balancing he thought that the evidence of prostitutes was even more prejudicial and therefore exercise its discretion to keep it out before the reason though that if if the jury heard that he was cheating on his wife they would find against him because of his adultery but then allowed in a considerable amount of testimony of a girlfriend an apartment that he kept for her and and a life that he proven seemed likely to have been paid for from the company proceeds that then looted or reduced all the company assets and left no place to go but the pension fund so it's part of the whole the overall picture here absolutely it but it's a category my argument is it's a category of expenses that was unnecessary and character but he was also arguing good faith he was saying i was acting in good faith we needed the money we took it out to help support the company wasn't the government entitled to done show that in fact he was using it on his girlfriend that undermined his argument of good faith but if we look at mccallum as there as there is not a reasonable argument it's a reasonable argument but i think the balance was wrong because i think mccallum requires the court to say if there is a question of balance as you just said haven't you just told us that then it's up to the district court i mean it is a question of balance is it enough to show some of his outlandish purchases is very nuff to show that he didn't have a good faith and he wasn't doing it most of it does he have to show instead that some of it was really for things which had nothing to do like a girlfriend but not go to prostitutes because that really goes beyond the cocaine use because it really goes well i think it's some point then we say that for three decisions can't be appealed because a court is always making some balance well i got to say that there are darn few that we reverse and i've had problems with that in the past but you can show me an awful lot of them that we've reversed where record has clearly made  sea i wouldn't disagree i would not disagree if i can touch on just as two things briefly the restitution point i don't think it's axiomatic that that the first crime that occurred before the statute of limitations is part of a continuing course this could very well be three individual episodes the company had a negative balance he saw money in the arista fine he took it to cover the balance almost almost to the dollar at the first one eleven months later now inside the statute of limitations the company had a negative balance and he did it again this is very different than a continuing scheme where where where what  please the court daniel trani for the government i represent represent the government on appeal and representative government trial i'll be happy to answer any questions the court may have about the defendant's pro se arguments but most importantly question so i will focus on the counsel arguments  as the court noted judge and them are carefully consider the evidence that is being challenged now on multiple occasions and did not abuse his very broad discretion in concluding private purposes right you are just one aspect of the of the evidence and that was evidence that the so there were a number of categories of evidence that has been that are being challenged all coming in primarily through the government's final witness who is the fenton's driver and so there was there was evidence presented about the nature of the spending sort of frivolous entertainment travel real estate and the like there was also evidence that certain of that spending was for and went through a particular individual who was the defendant's public girlfriend the government stipulated to two offered to stipulate around the fact that he had this public girlfriend so the evidence would have come in the stipulation would have been that without without describing her as a girlfriend to to eliminate any potential and any potential prejudice well be around a bit no but and i'm not saying that you didn't have a right to do that but i don't quite see we are human to say oh well he could have done that in there for have avoided because i don't see how he could have avoided that without pleading guilty so you know i'm not saying your ultimate argument that this was admissible vales i just don't but i don't understand the weight given that oh well he could have accepted something lives because of something louis was saying i plead guilty thank you hang me that that's that's that's very rahner except this is the way the defendant chose to spend his money and this is the way the defendant chose to argument it's a way just to defend himself at trial there was plenty of evidence that the that the money went to himself through other means for he there was evidence that for example he took cash out of a company that's different from saying that the spending was for him personally and that the defendant that the spending was not for the benefit of his employees that the stipulation i take your point on i just wanted to elaborate a little bit more the purpose of the stipulation was just to say that this money that's going over here is effectively his and whatever he does with it at that point it's just it's not being used for the benefit of his of the pension plan plan employees i also want to test the restitution argument place in the statute of limitations the notion that restitution order was too broad because it included takings have that happened before that were not actionable not charged in the indictment i mean there this was a series of different  withdrawals and they were all of a similar type but you know unlike an embezzlement that was occurring monthly ongoing basis there were interruptions here and some paybacks in between why is it appropriate for us to for the district court to order restitution as to the amounts outside of the statute certainly honor so the dish reports decision was correct and a certainly was not plainly erroneous and as you've described the scheme it was it was a series of embezzlement that was one of the one of the charges count one was was embezzlement from pension fund we are not suggesting here nor do we suggest in this report that the  a continuing offense however he was also charged with wire fraud which is charging the scheme and while that scheme involved the same transactions the same embezzling transactions it's a different offense and so the offense here was that he engage a scheme to defraud his employees that scheme involved the embezzling transactions it also involved the statements that were provided to employees that did not represent in any way that money had been taken out what exactly is the what is the scheme it's an idea that he acts on several different times that he's engaged in a scheme to take two to fraud his employees and that scheme was carried out through a series of transactions and  courts have suggested numerous done it ten years before as well and taken money out of the pension fund that that would be properly included in the restitution order it could be your honor depends on the sense of the gaining from not making the objection then when you don't bring in evidence a will it wasn't there so i'm kind of interested in what you could have shown had they actually me in the book you were at you know a little bit of a different in any event the evidence would have come in for any number of other purposes but the indictment charged it as a scheme from two thousand and nine to july two thousand and twelve that that's correct your honor and won in one count that's correct roger and so and so there was litigation over whether the indictment needed to be redacted there was a litigation over whether evidence of the june two thousand and nine transaction should come in at all in the course of that litigation judge an determined that this particular wire fraud scheme was a continuing offense it's an offense that began in truth june two thousand and nine and it's a fence that continued throughout the at a minimum the last embezzlement but frankly probably consider continued past that so so given that determination it is not plain error for the district court to have concluded that for calculating restitution the entire amount of that fraud the entire amount of the embezzlement should be included in restitution and one other point i'm playing a review here if there ever were a case to uphold a decision on planar review under the fourth problem of play in our analysis it's here what the defendant is trying to do is to avoid paying compensating the victims of his crime fully for the for the amount of his his embezzlement the amount of his fraud there is no way there's no there's no possibility you're now getting away from your for wrong because you are if you want is to hold it of the four prong then you can't be say that it's to be other figured it was correct and there was no where it to be