designed to avoid arguments just technical arguments about whether something happened on a tuesday when maybe it happened on a monday or a wednesday or possibly even on a sunday but on or about can't cover six months differential and so what we have here is basically a situation where mr wood was indicted for one crime but he wasn't convicted of that crime he was convicted of a different crime and the problem with that  plain reading of that is that the scheme began on or about january of two thousand and one but the proof do you agree that he was indicted for robbing not robbing scheme honor about january two thousand and one to steal from more but then evidence came in of what he was doing back in june of two thousand think that the government's entitled to prove relevant background information to the charge that they've alleged the problem is is that when it came time for the rule twenty nine motion and it was pointed out the district court that they have appeal that was the government's argued the district court on appeal they've abandoned that claim basically and said well look at this is that as a variance but this court's cases and various basically say variance problems can cover a couple  differential we're not concerned about the technicalities whether something to get to january second or january third of january fifth but to go back and resolve this and say well june is close enough for government work june of two thousand close enough for why wasn't there sufficient evidence to prove that because there was no evidence to demonstrate that began in january of two thousand and one so the stuff happened but you're saying there's no evidence that it was that's right that's of two thousand and one and the wire is money sent to a person named don courtney and the government argument is that because the money for the wire went  fifty thousand dollars for two thousand one more money to be put into p t h because he's promised that he's going to put up two point one million of his own hundred million or more because the money that he's thinking about getting out of courtney is going to cover the hole that he's already started in the p t a each bank account by populating that would be a compelling analysis your honor if there was one fact that in the proof which there isn't which was that courtney at the time the wire was sent had to slightest inkling that that was what was going on but the proof was no  that wire to be part of the scheme because here's here's my view of the matter if mr wood takes five thousand dollars and for example buys a sub zero refrigerator or a fighting stove with it that doesn't make the purchase of the viking stove and essential part of the scheme that's just how he spent the money yet mr wood takes p t a just five thousand dollars which was the allegation here and uses it to induce courtney to come to hawaii in order to discuss the purchase the white approved country club on maui which courtney testifies was the only reason he cane and what the matter was about entirely a far as he was concerned then you essentially the same thing you don't have any proof that the wire transmission is an essential part of the scheme to defraud proto hawaii may be part of a different scheme to try to separate courtney from some of this money or to induce them to have something to do with with the purchase the white the pool but it's got nothing to do with the fraud of approach to hawaii because there's no evidence of it in the government's answering brief essentially says that that's their view as well because they seem to suggest that they prove the case on this point when they prove that the wire transfer was woods own private business purposes which is their  and their argument is essentially that after proving that would stall the money made the wire transfer an essential part of the trial but that's that can't be the case because if the wire fraud is part of the scheme there has to be some demonstration of the wiring as part of of the scheme and your honor is a suggestion would be fine except that there's no evidence of that listen i scored the do you want to address the sentencing issue ye minimal planning maybe when the district court said that more the middle planet has nothing to do with this case the court was saying basically it doesn't have any do with the case on the two thousand and five book i thought that it was and if that is a factual finding is how we read it but i wanted to suggest that there's a little ambiguity there and used in the two thousand book would have been advantageous to would be i thought there was my question it seems to me it's not clear that there was such a finding and if sensing statement objecting to the use of the book at least to the extent that using that book would disadvantage the defendant which it would yes the court factual findings on more than minimal planning came out three of the defendant so it's not plain came up or don't judge just said i'm using the two thousand and five book by adopting the p s r one could take the view that once you determine that you're not going to make any more rulings on what would have been fine even the two t back to redo it on the two thousand and book two thousand books and my almost as good case is that it should go back for the district court to determine whether the two thousand book would vanish the defendant or disadvantage was proven at the trial was a scheme that began through the introduction of the fund that to mr moore and paragraphs one through seven which is the preliminary matter through the scheme once mr ward  that this game began in january two thousand was when the it does indeed your honor but it also incorporates in the charging paragraph check to further still another scheme on related to this case which was the funding dream he had money from the wars that's clear his purpose in stealing the money was to commit yet more fraud but there was fraud he obtained the five thousand by virtue of the fraud charged in the indictment and he misused the money for other fraudulent purposes and that's what i'm saying  and taken precisely i take my note after which you said the purpose of the wire thrown the defendant used five thousand dollars to further another scheme wire fraud was unrelated to the scheme of bilking the movers now no your honor if i said that and i'm sure i did if you took those notes not arguing with that that is moore partly wrong again that mr wood stole five thousand dollars from the mortars and p t h to stand up to mr courtney at the time of that theft and that transmission the evidence suggests mr wood was trying to use the stolen money to take a step forward in yet another scheme but there is no doubt that he took it due to mr wood's false representations i what i'm trying to communicate apparently very an artful play is that if a con ma stole through false representation ten thousand dollars from the victim and use the money he stole to buy a  scheme is perfected at the time of the fast it doesn't matter what he does with the money and i that's what happened here would took the money without permission an effort by the defense than to take advantage all of the moore's by virtue of his false representations concerning great wealth through those representations controversy until we were on appeal in fact counsel for the defense even told the judge that this was a procedural problem not a real problem and in the future if the pre sentence report was going to be offended perhaps there should be some early notice but at the sentencing proceeding it appeared everybody was perfectly happy and the bookie issue was not a problem and i think that primarily is because had the court use the two thousand book and as to what it thought of the nature of the fraud in this case and the nature of the conduct of the defendant suggests that a more onerous substance under the two thousand  may well have been the result and that by may i can't infer things to mr wolfe but i can say that the defense never argued for the youth of that book procedure that is really relevant to future cases is this i thought it was a bit unusual that we changed from the two thousand guidelines to the two thousand and five guidelines between the draft report and the final report and of course the court doesn't get the draft report and nobody objected to the use of the old guideline but then it just changed and the actual late i had overlooked it until i was reviewing this thing just last weekend mr osborne when i called him about it hadn't noticed it either at that point so it seems to me that just maybe as a matter of procedure if that kind of things happened the whammy the court did not clearly opine on the issue of minimal planning it didn't find i find minimal planning here that was not articulated but the court's comments on the defendant's conduct seem to imply that this was a plan and fraudulent conduct it was not you know taking advantage of the moment or two spontaneous sort of thing thank you thank you the answering brief i think really carries our argument on this point the government says in the answering brief the following things at no time prior to courtney's departure from california was there any conversation with wo and the government said at twenty three of the answer in brief there's no evidence is just it would intended to involve courtney p p h at the time he sent people that he takes money and then i met it just by wire to court is attorney that's twenty three so i think the government made those concessions thinking they weren't relevant but i think they are relevant because if the wire is just evidence of how would spend money that is told in the wire is not essential part of the scheme and then you don't have wire fraud you have a  what bothers me is that the government kept going back to the wire as being instrumental in a new s