the court here in imposing four thousand dollars in restitution for lost income i believe the government's going to concede that air even if it doesn't regardless that lost income is a consequential damages testing had nothing to do with the methamphetamine vestas testing included the roommate issue room one zero seven as well as a handful of other rooms throughout the hotel including a storage area w there was no testimony on that my guess your honor is that that was an outstanding issue because they had the sealing popcorn tile to stick tile and since they were having the methamphetamine testing done they went ahead and had the  done also but that issue really wasn't explored it was just lumped in with the methamphetamine testing well what kind of testing went beyond room one zero seven so there's certainly extra labor involved it removes the tiles from those other rooms in the storage area also there was in the w t r report that was submitted to the court and is part of the and specifically the owner mr bissell was a victim in order to be a victim under the restitution act yes to be directly harmed in the course of the criminal conduct that was part of the conspiracy here the government made the decision to charge the conspiracy as occurring in missoula on a specific date obviously the court seen many hundreds if not thousands of indictments that talk about  conspiracies ranging over a span of geography charging such as a language that says in missoula and elsewhere or in missoula and throughout the district of montana here all of the indictments that was missoula moreover the court has seen hundreds if not thousands of indictments that allege a span of time beginning and continuing through speaking in years speaking in months here the indictment alleged a very specific date and for that reason alone what happened in callisto all day separate from the day a legend indictment and callous falls roughly one hundred twenty miles from missoula is not part of  conspiracy moreover why can't it be concluded where the relevant conduct will relevant conduct is for guideline purposes your honor and i don't think that informs restitution analysis restitution is a question of statute so you have to look at the language of the statute also at the just record level the government maintained and the district court although it somewhat contradicted itself both of those entities said that it didn't matter if there was a meth lab or not in this hotel room  the problem with that is in order to be a victim it has to be this rock davis criminal conduct that harmed the hotel room and if there wasn't a meth lab there was no criminal conduct there was no testimony in court that there was criminal conduct in that hotel room and we called an expert who basically said you couldn't say one way or the other that there was a meth lab you couldn't say one way or the other how the methamphetamine  contaminated the hotel room and so we believe there was simply a failure of proof by the government but moreover because the government backed away from proving that there was a meth lab there was no manufacturing activity in the hotel room that the government failed to prove that there was criminal conduct that was part of the conspiracy that directly harmed the hotel room even if the court finds that thirty six sixty three large a subsection a two applies the department environmental qualities on reasonable ridiculous incredibly poor judgment is what caused the harm here is the government p as opposed to the person that you know started the whole thing which is you know in this presumptively in this situation if your client correct he would have to recover from the d h you are from his i'm sure i think we have that argument well in mind do you want to reserve the think if one looks at the excerpts of record pages ninety six ninety seven is where this issue was touched upon the court and that's a little bit the understanding from the owner and i think it's clear in the record are fairly clear although in hindsight certainly a person that would have brought it out more fully had it known this was going to be an issue but his point was that if asked if the ceiling tiles or something attaining asbestos also had methamphetamine and therefore had to be removed as contaminated it would have required special contractors to remove its disposal therefore they had to do both they were not only checking for methamphetamine but in the case of the ceiling on the record whether that is part of getting some type of average or something with the ceiling tiles that aspect of it was not explained and that is in the schedule your honor it looked like there were three possibly four other rooms some adjoining some even look like on another floor that they did check for asbestos why should this defendant think that if that if that cross could if it is not part of an overall asbestos cost in other words to determine what the of seven whether or not they were contaminated with asbestos as well as methamphetamine i think the united states would probably concede that that if it was completely unrelated to the remov methamphetamine contaminated products if it was purely just an asbestos check i don't think it would have anything to do with the with the methamphetamine but the understanding from the record on page ninety six ninety seven is they were joint no one was saying that asbestos causes methamphetamine or the reverse it was in the decontamination aspect the disposal aspect that they had to learn about whether or not asbestos was pre clearly provides a structure for this it provides for any victim who is harmed in this case he definitely had the harm the conspiracy to manufacture his conduct that extended up t only charge when the indictment only charge a conspiracy in missoula on a given day the way the defense counsel is actually correct as to the charging document i think what is important is that the right and then it says in and including when an offense has as an element a conspiracy pattern or certainly the pattern of criminal activity any person directly harm by the defendant's criminal conduct in the course of the scheme right so that's the broadly in language that's the brightening language that's precisely correct your honor and because of the close proximity in time and in location as you referred to it's only hundred twenty miles apart there is no dispute they had been in that room that is not disputed they had only been there a short time previous to their arrival in missoula as they did have the precursors in the methamphetamine in the trunk of their car i think most importantly codefendant upon their arrest in missoula started this whole thing by alerting the local police to missoula right telling them you had better check room one zero seven at think that i think defense counsel is correct as far as if you subtracted the four thousand from i believe it is some thirteen thousand two hundred some dollars four thousand would come off that directly and then you would be looking at one hundred twenty dollars of ceiling tile arguably should not have been included if in fact it was purely an asbestos test and had nothing to do with the methamphetamine disposal beyond that that would be that would be the reduction much went to the asbestos testing versus the methamphetamine again based on what the owner stated it appears that all of the asbestos testing was arguably part and parcel of the overall testing for the disposal issue they whether they view any hazardous waste site as an excuse to further check for the ongoing asbestos concern there's no evidence of that but i could not state one word other whether or not that was what records the evidence in the record seems to indicate that first of all this was fairly early in the stages of this department you know coming up with regulations trying to determine all these things should be handled right so that there was sort of still in the you know in the hit or miss stage of developing their regulations and testing procedures so it's hard to tell what it was that that is correct your honor unfortunately they had yet to promulgated rules this was one of their this was one of their initial times out of the chute that is  were based on solid facts underlying and based on that we would urge this court to uphold the district court's germination regarding restitution this matter thank you f the point and i would agree that following huey congress brought into the statute but here the indictment had very specific and narrow language and the government's trying to run away from that now but it's got to live with its charging document moreover in terms of the criminal conduct extending to kalispell the government simply failed to prove that if basically backed away from happening from its burden to show that there was a meth lab  codefendant thought that the conspiracy extended to kalispell and the government said presumably so and that's what's going on here the government's just relying on a presumption that the criminal conduct extended to kalispell because it can't i