evidence of allegations explicitly made an indictment under a rule for a four b of the rules of federal federal rules of evidence the indicted in this case charges the defendant joseph loftus with a scheme to defraud that left from two thousand and eight to two thousand that the scheme to defraud occurred in montana texas oklahoma and elsewhere yeah although your specific allegations you've got five of them they're really only montana focused right no that is not correct defraud took place over the entire country and i understand you've got five counts correct describe those five counts in the three individuals with respect of those counts those three individuals were involved in a scheme to the fraud that arose in montana over the wires and further insight extended from montana to other districts in the united states but then that's obviously what was worrying the district judge was that the five counts charged armaan town based and that's just part and parcel to venue considerations when you're dealing with the wire in furtherance of a scheme there always has to be a montana nexus when you're charging the time the crime of wire fraud because the wire has to touch montana however that by no way limit the scheme to fraud in that according sense united states the evidence of other wires would be admissible to sport the general allegations and the government could introduce evidence of the scheme alleged in the indictment if the government can prove the proffered evidence is in extra intertwined in other words it can be other places but it's got to be something that is intertwined get to montana somehow right and then that seems really what the judge suggests then he says for now we get to the second part which  use the wires and further ends of the scheme it's got to be in montana yes the wires absolutely do have to have a montana nexus and so i guess i'm in a tough time why what he said is so wrong the judges definition of the scheme to fraud is a montana scheme to defraud was not the scheme alleged the indictment the scheme alleged the indictments one that took place in montana texas all oklahoma and elsewhere the judge however limited the government scheme to one that was an extra intertwined with the scheme occurring in montana and that allegation was never made in the indictment that was the judge's construction of the indictment but that's not the indictment that was returned by the train jury and we would agree that the inextricably entered the intertwined doctrine would apply to evidence that was not in support of allegations contained in the indictment for instance that the united states is attempting to introduce evidence that took place in two thousand and seven or two thousand and fifteen per tentatively that could be inextr however that what he said was as relates to the existence of the scheme the wire can be outside of the state of montana but you've got to have some that finally gets to montana in other words it's got to be something that is going to get to making the montana stuff which is the second element important that's all he's saying is that w and that's not what he's saying with respect to the wires we would certainly agree those have to touch montana and that's just part of the venue considerations that this crime and in the related case that the government listed in its brief in fact that's the same factual scenario that we had a scheme to defraud that took place over the entire country but eventually the judge excluded witnesses that were not involved in montana fraud and here in the things situation we're dealing with a case that took place over the entire country but now we're limited to a fraud that occurred in the district of montana that's simply not a scheme to fraud that was found by the jury the grand jury so you know relying on in the strict of intertwined  than one one place and well that again i guess i'm going to put put put you down just make is think about it just a little bit i'm not sure that the district judge says that the scheme can't take place anyplace else i think put the district judge says and i'm reading as i'm now reading what he wrote he says manner duce evidence of in the diamond but the manner in which the court treats the evidence will depend on whether the government can prove the evidence is in fact an extract plea in or trying with the scheme underlying the montana frauds what he's saying is it can take place anyplace he doesn't care but it's got to or it's got to somehow if you will intertwine itself with what happened in montana and it can't be a scheme that has to do with every place except montana and not have anything to do with montana it's got to have something to do with montana someplace that seems to be what he's saying the scheme itself doesn't actually have to touch montana i know that seems like perhaps an unusual proposition but the wire and further and says the only part of that scheme that have to take place in montana and fact as long as the the wire has some nexus to montana scheme can extend to the entire united states and that's what the government thinking to do with evidence of here of course but think what does dorsey say dorsey says sixty seventy seven fed thirty nine fifty two evidence directly relevant to the charged offense is inextricably intertwined with those crimes and outside the scope of four o four b so he says if it's relevant to the crimes it is in extracts federal idaho can try to say that word intertwined will do all i'm trying to say is i'm still trying to understand why you think what he said was wrong it's because the scheme that's defined is the one he's defining as a montana scheme and this wasn't just a montana scheme it's the next it's a scheme that extended to districts all throughout the united you give us an example of the kind of evidence that you would like to present that wouldn't fall within six trick of glee intertwined so much as going to the proof of the overall scheme of which the montana wires were a subset so you can show us and specifics why it is answer joe's most question s some further into the scheme and that those wires were employed i think in two thousand and nine two thousand and ten but the scheme continued to continue with with mr loftis so although he wasn't present in montana this game continued on and on and tell his of false statements eventually ended about two thousand and fourteen but the evidence that took place of that that scheme wasn't occurring in montana anymore was occurring and elsewhere states for instance texas oklahoma and are suggesting then that evidence is not an extract yes intertwined it is the case that was charged by the grand jury and that i understand it's a charge by the grand jury but i'm not but again i'm asking you straight laced why is not the evidence you just explained to me intertwined because that doctrine only applies when we're seeking to introduce evidence that is not alleged in the indictment and  are only seeking to introduce evidence that is alleged in the indictment and that's the problem with the inextricably intertwined doctrine it doesn't apply in a case like this it only applies in a what case says what you just told me it is the my worry  to if you will introduce and lease the evidence you talk to me about how the scheme progressed i don't know how that wouldn't be any intertwined at all in the the case i'm relying upon as nena states versus  mom selling on s o l i m a n eight thirteen s second two seventy seven there this court says that the policies and what page jaan i got the case page two seventy nine not a very big page so just what's the language and the language is that the policy is underlying the rule they're referring to all four for b are simply in a flexible when some offenses committed in a single criminal episode become other acts because the defendant is indicted for less than all of its actions with the court there is saying is that the policies behind rule of four four zero four be referring to the inextricably intertwined doctrine or in a political just because the defendant is indicted for less than all of the actions that's not the case here he was indicted for all of his actions and that's all we're seeking to introduce we're not thinking of bringing something that's outside of the scheme that with the lens and that's why i said why isn't that intertwined because i mean it seems to me that everything you've talked about thus far is intertwined with the scheme i mean in fact solomon says i'm charged transactions that are part of the scheme are admissible to prove the existence of the scheme the reason they are is because they're intertwined right uncharged actions and that's the rub that these are actually charged action will but even if they're charged it seems to me then they're certainly intertwined well i guess i would rule on these things i don't want to rule on him right now and he and he recites the law right now and you guys are just worried he's going to rule against you when the time comes well experience shows that that's what is going to happen when it hasn't happened attach but i'm trying to understand your argument and what happened in the johnson case is that eventually the other victims were unable to testify and they were eventually denied restitution because the judge limited the scheme to montana even though extended throughout the entire united states so this is really the resort that we have to come to is living from the other side we've taken your overtime nine give  good morning i'm john rhodes from missoula office of the federal defenders of montana i represent joe loftus i'm going to start with how this issue became an issue we were preparing for trial my office was there's ten thousand plus pages of discovery in terms of what the government's produce and documents that we're going to produce to the government as part of our discovery obligation there's three named investors who are alleged to be victims of this fraud and then going through the discovery we identified potentially eighty four more investors and the way the second superseding indictment is worded there's ten paragraphs where my client joe loftus supposedly made fraudulent representation to investors to investors to investors so we're getting ready for trial i there to find out who he was going to call as witnesses beyond the named supposedly defrauded investors he wasn't sure so that's when i filed this motion eliminate with the court and the court fully complied with this circuit flaw in saying that if you show me that these whoever you want to call these other investors that they are inextricably intertwined with the name defrauded investors then i'll let it comment so what's your thought or news that's the dorsey case is one case that's the case that the district court judge cited somewhat fully complied with that solomon used the phrase single criminal episode that's a sentiment for inextricably intertwined government you come in and show the trial court that these that other evidence which i presume will be these other allegedly defrauded investors were part of the same scheme to defraud and that is the scheme to defraud that has been alleged to happen in montana but extends outside of the district montana then those people can testify obviously so does this would play out of because the scheme is charged with the more than montana yes ok so that's the indictment characterization and it's not unusual for the really multi state drug particularly in montana we've had many of those cases you know they're coming from california and so on and so forth so they want to call a non montana investor and so what are they allowed to show through him i'm not sure if the judge will want it will call the named allegedly defrauded investors and at that point the court knows what this government's claim the scheme to defraud is so they know th respect to the montana based investors or components that was going on in montana but if they want to show he's part of a broader scheme that's involves texas how can they prove that well first of all the the named alleged victims some of their testimony is going to relate to things that happened outside in montana so i think the government will have objecting then that's why the government's bringing this appeal because what they're trying to say is as it relates to the existence of a scheme to defraud i'm going to be able to call witnesses outside of montana and as long as it's the same scheme it's in extracts of it's yes it's hindered twined and therefore i get to call them are you going to object to that that's this question yes i i don't like this pretrial ruling i was surprised the government appealed this isn't good for my client but what do you have any case that says it's wrong because you're even telling me solomon which i agree solomon and dorsey are the same and so as long as they could show their enix yes intertwined then at that point your objection is not worth it and that's what the government's evidence rebase says will be getting back to your question judge fisher it will be a matter does the government do a narrative proffer perhaps the judge will have these other investors testify outside the presence of the jury and once it meets that threshold of inextricably intertwined no matter what i this inextricably intertwined and what the government has to show is that these investors were defrauded by the same alleged scheme what the name what happened to the names investors is the same thing that happened to these other investors and once that threshold met then i think the judge will let it i do think it's some point given that we've identified eighty four other investors there's going to be a four zero three cap on it but that's the threshold that has to be met and that goes to your question judge fletcher is it's unclear what these other people are going to say at this point and in fact even the basis which is what the three named investors are going to say is unclear i mean i know what's what's in the discovery we've done our own investigation to a certain degree although we stopped once the government filed this appeal but the judge doesn't know and that's why i think the judge was incredibly judicious incredibly savvy in just saying this is a tentative ruling i can't commit to anything because i don't know what i'm dealing with i don't know what the suppose it fraudulent scheme is in terms of the details and once i comprehend that then i can start determining if these other investors are inextricably intertwined so going to your question judge smith i see this ruling this wasn't something i was like herat this is great you know this is exactly what we wanted it's like no the battle is just begun this is all going to play out at trial and then we'll see what judge christensen does and i do intend i'll be prepared to object at some point my objections are probably going to become few tile if the judge is finding inextricably intertwined inextricably intertwined then i'll switch to for all three the other part was trying to limit the evidence that's coming into trial and at this point the judge is as i said was very judicious he was smart about this he's keeping his options open until he knows the facts but again i intend to object in objecting object and we'll see what the facts are it's incredibly fact dependent and i will agree that even the names investors who have been supposedly defrauded some of their activities occurred outside of montana which i think have brought into this technique the common scheme which makes it more possible that these other eighty four investors are inextricably intertwined with the named criminal let's you have more questions that's what i want to say ok thank you outer skin let's give the government a minute you give the government your man and when you sa should not be treated as other crimes evidence when the evidence concerning the other act and evidence concerning the crime charges or in an extract of glee intertwine and then you read the policies thing and  the the goes on so the record suggests that solomon was the did for less than all of his actions and then these mail fraud activities were closely in a why closely it's easier a case that we're trying to prove and we shouldn't have to go through the four for the analysis give notice go through the four elements of whether this is actually a myth was for for be when in fact this is just the case that we've charged and it makes it a great difficulty for us because we don't know which of those other eighty three or eighty one investors that we can actually bring to trial when we have no assurance they're going to be able to testify and that's what happened in johnson you brought other witnesses and they just weren't permitted to testify asking the court for is ruling that we could introduce direct evidence or a case of me and ok thank thank you very much they both said for their arguments nice days versus last submitted for