good afternoon your honour's name is chad's breaker and i'm assisting united states attorney and i intend to reserve about three minutes for a battle between the briefing and argument in this case this court district court committed legal error when it held the huey versus united states prevented it from ordering restitution for the defendants entire scheme to defraud this court has repeatedly stated that huey versus united states was partially overruled by the one nine hundred ninety amendment to the victim restitution act indeed as the last chance today rest into sion for an entire scheme is mandatory under the mandatory victim restitution act as recently as october of last year and united states versus low this court stated that when a crime for conviction is mail fraud or other crime requiring proof of a scheme a court is authorized to order restitution on a related but one charge conduct that is part of a fraud scheme is not limited to the harm caused by the particular counts of conviction so i have a question because obviously you tried to get some evidence of other conduct and the district court  denied that and so i'm just wondering how that relate to this case if the district court  assume the district court was correct on that does that in any way limit you in terms of presenting that same evidence for the overall scheme to defraud on the restitution it doesn't and the reason why is that with the amendment to the victim witness protection act in one nine hundred ninety congress established that a defendant may be required to pay restitution for an entire scheme even for conduct that was not the subject of a conviction indeed for conduct that was in fact acquitted and the other cases have repeatedly stated that holding thompson also decided last year brock davis bussell lawrence meredith i'm bright though ok let's say let's say we agree with you that the district court erred in not allowing you to go beyond that relied well miss interpreted healy and that and what had happened after but now can the panel just direct the district court to include the non count non montana related conduct in its restitution award or must we direct the district court to first make factual findings as to whether this conduct is part or brought davis the court's primary request today is that the case be remaindered for recalculation of restitution under the mandatory victim restitution act without the limitation placed on the case by huey as it is and overruled case is it possible that some of the out of his conduct is not related as to the government's point of view it it is not however the district court did not make a finding as to all of the defendant's conduct outside of montana that's really the right you don't think i'm sorry you're a specific or district court go back and have an actual evidence you're going to make sure that all of the conflict is your clue you in this large basket should be looking for restitution or you know the worst if i just simply take your word for it when we would just have this massive amount but it seems to me that there could be other un charter conduct or other activities are gone then they'll not be subject to restitution in this particular case that is a possibility and at the sentencing in this matter the government presented a fairly  large amount of evidence that the defendant scheme existed outside of montana and we're not asking for the court to reopen evidence in this case we're simply asking that the court apply the law as it stands after the one nine hundred ninety amendment to the victim restitution act  there is discretion the court has in finding whether that conduct is related but as to what you take with the district court yes as to the amount of restitution that should be included as part of the scheme the district court itself found when it was calculating the amount of relevant conduct that in fact the defendant scheme extended outside of montana in fact as i wrote in my twenty eight day letter there was approximately fifteen thousand dollars or restitution that extended outside of montana that the court considered part of the defendant scheme to fraud as a concern the issue of relevant conduct i seem to say i think it seems to be that counsel for the defendant in this in this case for a couple reasons first is that the issue of restitution was not decided until the very end of the case and the court misapplied hughey to exclude and awarded restitution for the defendant's scheme to defraud as it existed outside of montana therefore the issue restitution was not decided until the very end of this case at sentencing the other problematic part of applying collateral stoppel dr in this case is that for collateral stoffel to apply there has to be a final judgment and the government has appealed this case and therefore the issue of whether restitution was properly awarded or properly denied this case is right before this court therefore there is not a final judgment dependent that we need to address that issue and  district court i don't believe the court does have to the reason being that the issue is ripe and it was properly preserved at sentencing and therefore appealed in this case as to  the defendant's argument that there was insufficient evidence of the his scheme to defraud in this case the government would simply point out that the evidence was on controverted that the defendant represented that he was a grammy nominated artist that he worked for sony when he in fact did not that he was collecting money for charity when he would in fact was spending money on himself and also that he was attempting to sell grammy tickets that he was not authorized to sell to the public i'll save the remainder of my time for persisted in wanting to get more inter evidence in terms of the scheme that was alleged and in the excerpts that volume to it for three four for the government tells the court that it's concerned that mr johnson will be able to claim double jeopardy because the scheme that's being proved over and against the limitation that the court imposed is different from what was alleged so i mean that's a legal issue on the restitution the other as we review for abuse of discretion if we were reviewing it which we're not really well i understand that but i mean i have a jurisdiction claim here and i want to argue  that you know we went through different iterations on this evidence the government's evidence there were three orders and i have the record reference cites to them the first call kind of soft in response to my pretrial motions and the government came in which generated the second order asking for clarification and that along order was stronger and then because we went through a couple of failed pleas changes we wound up with a very strong order that said look here's the deal the government is not going to be able to put this evidence on this scheme was alleged is is this scheme and outlined the contours of  scheme and my argument here is that at that point just like in loftus the government should have taken the appeal they had no other alternative they were at risk of not proving the scheme that they alleged indictment and that's exactly what happened explain it it's pretty simple this this scheme that was alleged in the indictment was that mr johnson had contact with people from big brothers and big sisters in galveston county sort of insinuated himself into a golf tournament that was up coming that there were certain representations made by mr johnson about his coming to the golf tournament playing music donating some grammy tickets etc mr johnson went to the event played as agreed was prepared to follow through with the grammy tickets and big brothers and big sisters the record doesn't tell us exactly what happened but all we know is that there is the deal never came to fruition as i understand it when the indictment is actually much broader than that there was no it was talks about the means and methods and what it actually even in a temporal sense i think it started in two thousand and eleven when maybe to two thousand and fourteen something like that but it was at the trial the evidence was narrowed to a very precise point in time that dealt with just a few weeks that was because the judge christensen right that's correct he made that order correct and that order is in your say in relation to sixty eight if you're saying they should have appealed that order they should have appeal that order that was the basis for should have been the basis for the appeal and what the government was at risk of and what their risk of here today is the claim can't be brought now you can't take something that should have been part of the trial proper and then turn on i want to dive in your honor and say these are sensing factors now well we'll talk about restitution which is part of sentencing well right and that may complicate the analysis a little bit but that restitution separ you know it was so he is found guilty of wire fraud he was found guilty of wire fraud in a specific sense for involving big brothers and big sisters and the order made that well it's a separate inquiry is that let me take it another run at it this way there is one single wire alleged in the indictment that occurs on one occasion between two parties now if this scheme and that's in july of two thousand and twelve i believe now if the scheme alleged in july of two thousand and eleven and coming up to two thousand and twelve including big brothers big sisters and then moving on into other areas other states and so on that single wire transaction under this court's cases that are cited in the briefing  can't support all of that alleged fraud can't do it each of those events are said separate separate what the government wanted to do was  things that didn't belong together and support them with a single wire transaction that had something to do with a very specific allegation or for our climate like to be prosecuted separately and face consecutive sense no your honor his jeopardy doubt on that now that's what was alleged and then the proof was altered the government went through a very substantial alteration of its allegation by document number sixty seven in the each time the government went to get into those matters all of that effort that was shut down for close no none of that evidence killed when they look let me still the scheme was he had th it wasn't the same one and i think even the sense that now and this the sensing transcript alludes to that and even uses that as a marker at the sentencing and says you know some of these other matters didn't involve the grammy tickets they were different but i don't want to make the other alleged victims nonprofit i don't know the answer to that i don't know the answer to that all i can tell you is going to raise money if well people i guess trying to raise money that may be going to council also this is this is district court in this case started the sentencing hearing at ten fifty three in the morning and went until six ten pm at night they the district court heard extensive evidence and really went into great detail and obviously all of the other factors that we're talking about which i'm still trying to keep focused on i'm thinking it's about restitution to all that into consideration is that correct that's correct but i guess might come back to that your honor is that that's all the evidence that should have been put on at the trial as a result of the judge's order all of that evidence was excluded and correct that's correct the evidence was presented in the scheme that they alleged they did not prove as a result of an evidentiary order correct yeah well you know conviction and i'm trying to take full value of that from jones to booker we've lived through various iterations of what sensing factors and so on and i know the courts for mill you're with that line of reasoning the government alleged a particular scheme here and they were confronted with a ruling that said you're not going to be able to prove that by way of evidence and they can't jump ship on it now and make them sensing fact in the indictment today specifically say they were going to ask for restitution now you don't claim that they can it is well that they can ask for restitution it's has to be tethered to the offensive conviction that restitution that district court was extraordinarily patient in that sentencing hearing that day and listen to everything i mean my last argument would be that there's not even a change that should be occur there even if everything i say doesn't prevail today ok thank you your honor as i think the defense counsel's last statement is probably the best illustration of why the government has appealed this case his assertion was that the restitution has to be tethered to the offense of conviction and that was precisely what was partially overruled by the victim witness restitution act amendment of one nine hundred ninety the district court was required to order restitution of the defense entire scheme to defraud in this case and it failed to do so under a case that had been overruled if there's nothing further i have nothing else thank you ok thank you