last evidence that i'm aware of of any value was from december two thousand and one or thereabouts where the accountants said that there were negative twenty eight thousand dollars of assets and and and well there is value to what value there could be two sources a look at your honor recently somebody who had invested in the company sold their shares and the district court made no effort to inquire into the value making this with all due respect that both the government the district court make they're saying defendant you show us the value the burden is on the government to prove loss and here an auditor said there was value securit i'm repeating myself just less can you believe in my mistake just say there's value doesn't make it so well the president of the company not mr taki but the current president of the company of time with sentencing came in and said we are going concern if there's are going to want to leave the concern that was going to the extent it's going at all is a different entity philly one point eight million dollars to tacky and for his only corporation that was set up essentially to be used as a personal account and that's a lo that's what the district court determined the loss to be yet it didn't look at how much of that money flowed back into the company venue tax which was still operating which the president said was a going concern he said that the much as it was no evidence to me that the appreciated i mean i can't look at this and say that they did or didn't it's not an open market problem on the market kind of case where you've got a measure of what shares are being exchanged for you have three experts saying that there's value and one of them said there's appreciated value the government's expert the f b i agent who first tracked the flow of money said that mr taki through quel corporation which is the corporation that the there was one point six million dollars right on down the entire accounting of the kilo account and i didn't add it exactly but i bought and it's very clear that a whole bunch of sentencing as for the money invested in the club if you have the investors that when they invested they understood that money would be used for venue tax which was the company that was manufacturing marketing was in this value tech most investors said overwhelmingly the number of investors said we understood that well we purchased shares for a while that that money was going directly to mr taki because that was his own personal company that you know you you lost the trial and in so that means there was a fraudulent scheme and that means that a million eight dollars and using it first to pay off your divorce or cars or all or if that were trading accounts and just blowing that much of the shareholders money or at least a good part of that young the grand jury issue your honor i'm not here saying that my client going to get a fair trial that he should have a new trial i'm saying primarily that his with errors because the district court just took this broad brush approach you lost a trial therefore we're going to ignore all the testimony at trial we're going to ignore the testimony it's something which the district court o terminations with the number of victims determination with its restitution determinations those all conflict with one another don't have to be the same they don't have to be the same as a matter of log you matter of reason well he didn't try to sink the company you have to look at into the actual loss which again goes to there need to be some valuation of what the investors actually receive in this ongoing business and you have to compare that with the restitution has to be what's directly caused by the fraud and that's what the district court didn't do here it just confused fraud slash money invested with all that money must be lost not do you understand what i'm saying because if the question is was it worth two million and the only thing that your witness to say is i don't agree with that where do you go with that well still their burden because we call that into question but is it really called into question when the evidence is simply we don't agree with that number there's no other number there i would have approached it differently your honor i would have brought in a securities expert somebody from the business school most likely in this or the graduate business school to come in and value this company company through some sort of forensic i wasn't that was not done but the mistakes that were made still don't mean that the guidelines were complied with and for instance using the two million dollars that the amount of lost from by the court was one point six million dollars yet from investors who were solicited by the probation office certainly have worked hand in hand with the and so even accepting that maybe the defense didn't do enough to prove valuation there's still air and with respect to restitution there restitution figure was the nine hundred something thousand dollars that the people who  invested one hundred something thousand dollars and of that nine hundred and something thousand dollars not all that went to quell some of that was used to purchase shares directly from venue tests and that's why i'm saying as a matter of fact as a matter of being reasonable these guidelines calculations conflict with themselves and then also conflict with the restitution of not and you see that with respect to the number of victims determined by visits records the district court vaulted from one point six million dollar  again that shows that the act the last of terminations for guideline amounts conflicted with the victim's determination conflicted with the restitution determination do you accept that two hundred sixty six figure of number long going to rule and they say they got it from the auditors office for the state of montana and therefore there's an issue of that is correct but if it's objected to by the defendant under rule thirty two of the law this court the government has to come in with more evidence it didn't do that how i own my personal stock holdings so i don't know the exact legal process to transfer book entry holdings but it could be done and not legally i said that yes it could be done legally and that's another issue with respect to valuation counsel for the united states in this case and for mr rhodes to assert that the trial court sentencing proceeding is riddled with errors certainly indicates that he is ignoring the record we created a trial and the record the judgment lawyer relied on in fashioning the sentence as a drummer has noted throughout the sentencing proceeding judge lloyd reflected on the trial record talked about the trial record and the record that we made at trial that we presented to this court were to get the number of victims out of them that paragraph twenty two well there was some testimony by the montana state auditor's office expert eakin that we used and she talked about that page will forty three of the record of approximately two hundred persons being identified that information became more refined as the trial progressed and as a group probation officers did their investigation and we did come up from the one ten of the authors office with the two sixty six thirteen states i can't tell you that they had up to sixty six so my question is really what is the corroboration as for the hearsay testimony coming from the auditors office well i think i think it really when you're when you're looking at the district court burden we offered plenty of evidence regarding individual investors and those those tabs that we made excerpts of record you can see the money coming in to quell victim by victim by victim and the only complicating factor and i think the reason it became somewhat ambiguous as to the exact number was the way tacky set this up was to have his friends like curtis barton solicit out of hairdressing salon and collect all the money and send it to tacky as a as one investor so the curse barton group while he's listed as one investor under perhaps takis records we also have the fact that that in fact was forty one separate investors based on the records we've shown so this is what the district court was faced with in trying to determine an exact number of victims and the best information we had was from the state of montana auditors office that was of her testimony yes and then the official records were submitted to the c s r writers afterwards and i never sensed really that jackie took the position of sentencing that the number of victims to sixty six was wrong that's the way we dispute about you know the number of victims really his position was there's not a victim these people are all going to be rich someday if they just follow me so i think that the district court properly made and had enough evidence to determine that there was at least two hundred  concerted effort throughout his life as well as all the serious and detailed documentation that we offered at trial gave the district court the factual background to make all the fact to the jury in my opening statement as explained to the jury during closing arguments in the district court during the course of the dream struction settlement conference these two counts counts one and two that allege mail and wire fraud described th scheme as selling or offering for sale unregistered securities thereby avoiding the reporting requirements so the scheme as mr taki well nuisances was third time around the block in montana the scheme was to solicit as much money as possible without having to disclose to the investors what he was really going to do with the money but in a way the fact that it was in registers not   or construction right you know the judge did actually make instructions on these exemption requirements i had jackets of those but he did give the jury some instructions about the application of certain exemptions under montana law the defendants requested those and he did he did give some instructions on on how the exemptions my plot but we did always characterize those whether or not these were registered as a red herring direct contact with tacky and they said look you can't sell you can't give promissory notes you can't sell for ventures unless you register these three state in montana his next effort is on the canadian stock exchange and then his next effort is back in montana and the reason the reporting requirements are important is because if he had ag actually registered the state of montana would have been on notice attack us back in montana doing business and those registration requirements require him to tell investors look i'm going to take your money and spend it on my girlfriend arma take your money and blow it on the stock market and all the investors that testified during the course of the government's case that i never would have made this investment had he told me what is really going to do with the money and that was the essence of the fraud here and those registration requirements are in the law to protect those relatively small time investors that made up a substantial number of investors victims in this case and so the failure to register really was the manner in which taxi was able to do so many investors slash victims in montana because then he didn't have to follow the requirements of state of montana was no where he was around and he obtained three point six million dollars by lying to people in guards it seems like you may have addressed the issues of concern to the court i'd be happy to answer any questions you have if there are any questions i think i have fully addressed the grand jury issue in my brief as well as the reasonableness of the sentence and will stand on the briefs in those regards thank you your honors honor the district court's loss ruling presuming that the stock of the company is worthless the government get up here and explain why it's worthless it's their burden of proof to carried the district court's valuation and the district court started from the premise when it laid out its possibilities that every premise was based upon a worthless share yet it's not worthless the company is still going also the district or the government spent most of the time talking about the number of victims what he didn't explain is how the district courts in congruity rulings with respect to law victims in restitution are consistent so even internally within itself with this record contradicting itself half of the money invested was the guidelines lost when it came to the number of victims every investor lots of people stepped forward and said we are not victims we have a share in a company that's going forward and one person put it best you know if it becomes the next google i'm certainly going to take my money to value the stock and it was somewhat ironic that the government brought that up a sentencing and then the district court threw that back at mr takis face and question why he qualified for appointed counsel when the happened because the government went oh mark it came out that they we needed we indict materiality need to be in there when the motion to dismiss was filed before the district court saying material is omitted the government has said oh yeah you're right under omar which we were involved in so we know we need to have materiality will go to new grand jury the government resisted the motion for this and then before she judge will i could rule the government two weeks before trial to a new grand jury and got