and i'd like to reserve three minutes  ah i'd like to first address in this argument the issue of venue which i believe is a nice tidy issue uncomplicated by the name of the factual arguments  second and able to any four thousand nine hundred ninety seven there's no question that my client did not make those calls so there's also no question that those calls were not originated in pass through or received in the central district of california so the next question is whether there was proof by the government to sustain its burden of preponderance that mr by oaky cause of those phone have done to cause those phone calls it's pretty clear that miss greene said that the phone call that she received for completion money he's came from mr mcclintock who was at that time running the oil company  mr by lou depending on who asked him questions that the call the that came from canada a salesperson in canada or it came from a clinton now we're did your client run his business from accent ran his business from the central district by the venue question assumes we can assume for the sake of argument the existence of it of a scheme that extended to the central district but that does not establish the venue venue is very particular in a while wire fraud case to the point of origin the pass through the reception or somebody who caused that now in this case the government is well had a two part investment they would invest the originally and nine hundred ninety six and then the question was if the well was determined to be commercially productive they would be asked to make a completion and the problem was my client did not participate in the completion of southbury because he had left his his job with this oil company stating that he would no longer do completions and he didn't do the southbury completion nor did he do the completion that preceded it on a well called one that three despite the fact that he was asked to do the two completions which were in fact his job association with the oil wells so there'd be some guaranteed income so by nine hundred ninety six december there was a completion that he refused to do that's one of three in april that's the completion on south prairie he refused to do that one as well mr mcclintock sent out the mailings for the completion to both mr green and mr by lew those were mailings in march seven in ten evidence that my client caused him to make that phone call and whomever called mr by lou unable to any fourth there's no evidence my client caused that person to make a phone call without evidence of causation there is no was prosecuted in arizona he said he had sent money from mexico to his office in ohio there were two wires that were at issue there in two counts and that money went from mexico to ohio those are the two wires in the two camps of the question was well what did mr pace do in arizona that gave arizona jurisdiction and this court said there's no proof that he did anything from arizona he was in april when i can take all of one thousand nine hundred seven there's no evidence that he was in any particular place to tell these people to make phone calls because the only way the causation could expand to venue in the central district is that mr by oki did something in the central district somewhere close in time to get these people's get these completion phone calls made and of course we have a whole argument that he was out of the business by the end of one nine hundred eighty six and and that's that's a separate argument that the people did not prove beyond a reasonable doubt that he was even still in business because of the hostilities between them and his refusal to participate in the let me let me try this on you cause is a complicated proposition in many areas and i think slightly complicated in this area to add one and one level it's child's play to show that he caused these calls to be made by your very own narrative he refuses to make them and therefore somebody else makes them that sounds like cause to me but then your argument is going to be but the fact that he refused to make them is evidence on his side that he is not involved in criminal activity but the criminal activity charged here is conspiracy and if you missed it is mail fraud and he's arguing that he withdrew from the  organization that was not doing this but that that's been rejected on the merits so that the argument the argument that's a venue argument made them collapse into the substantive argument as to whether he's guilty  well in place the assumption was mr pace for the venue argument the assumption is he's guilty that he instructed his secretary to send those wires from mexico to ohio so the venue issue has nothing to do with guilt or innocence quite a statement of any question at the moment that he was sufficiently involved in the scheme that he can be held criminally responsible for these phone calls and from the mail fraud i think it's child's play to say that he caused them because the fact that he would make them cars going to be made by these other people well i would say there still has to be the most real evidence that he did something from the central district in april of april january february march april to temporal and paste does contain the other factor pay specifically says the evidence suggests the fax was sent from pasadena california campuses izing that he had two offices in the one that he did this from wasn't arizona your client  given the context of this case where it's undisputed that my client ceased doing business with petro in the end of one nine hundred ninety six to say that in april he must have caused something central district for your client well it's that's a matter of speculation as to where he would have been some time in the first part the first quarter of one thousand nine hundred seventy let me address the withdrawal issue than did the r issue concerning whether the people the prosecution prove beyond a reasonable doubt i realize the standard is not beyond reasonable doubt here in jackson versus virginia standards could reasonable jury find that he didn't withdraw one of the issues we raise in the instructions is that they were not given  claim there's no one of the things about telemarketing is you don't work for nothing and in my client after he refused to participate in the raid the completions on the last two ninety six now in order for there to be a call for completion funds on the south ferry well which is the only well that's really at issue here there had to be some conditions proceeded like the well engineer h nevertheless mcclintock went ahead with course without my client doing any of the completion calls and that's mr mcclintock got to pocket all the money the he did drill the well and it was a dud now how could my clients contemplate in when he left in one thousand nine hundred ninety six that mcclintock would go forth lie to these investors and say that we've got a commercially productive well here in south kerry and go forward with it there was no requirement for these investors to pay completion calls in any event but there was per the contract that my client had with the the oil company they weren't supposed to go forward on wells that were not deemed commercially wells and no longer does it no longer is really talking to these people and then some conditions preceding come along is the well is now drilled south korea is it worthy of commercial production the well engineer says no it's not yet mcclintock goes ahead and tells everybody oh this to be a great win let's let's have your completion money so i would say that there is no factual connection between my client and those phone calls because he was out of that and it was it says that those are two out of circuit cases we cited if you make it clear to the coconspirators or schemers that you're out that is withdraw all of the second half and that is the foreseeable result right and that the analogy there is to the ticking time bomb if if in december he my client helped light a fuse that was going to go off and he says well now i'm out and of course it's forseeable that bomb is going to go off and so despite the fact that he ma withdraw and a bomb went off that's a foreseeable event in this case the foreseeability is interrupted by a number of independent intervening factors for which michael i could not forsee how could he forseen number one that when the well was drilled in the existence of gas wealth with respect to the existence of the tax write off the only person who said that it that he would not have suggested that as mr ross who was an oil well man and not a tax person there were as are briefs indicate there were tax familiar financial experts who came in and said seventy percent seventy six percent right off are are the are the rule now the question is whether it's intangible where there is no evidence in the record to refute the fact that they were entitled to the right house and we cite in our reply brief maybe even in the opening brief a number of investors who came in and said i took the write off and i got it another one said i took the write off i got audited by the i r s and i got so there i think i will look forward to hearing from responding where there is testimony indicating that seventy six percent write off was inappropriate but the record doesn't support that and the fact that you know that the investors who took it got it the last question was on the gas wells there is a the deal between my client who was raising the money for the oil well people was that the oil well people were required to get gas wells it's in the prospectus it's called the p p m the breeze that there would be the purchase of existing gas wells in the first couple of pages the opening brief  when we recite what mr ross the oil man told the investors he told them i am now into fields which have wonderful gas wells and we're going to get them now that's what michael my client had no control over getting gas was his his obligation was to get the money and the wells would be dug in the gas wells would be purchased that's what ross promised he reluctantly said yes i did raised at the trial and it's factually incorrect the three main misrepresentations as alleged in the indictment and as conclusively proved beyond any reasonable doubt a trial where the following first not just that the were sixty percent commissions that were coming in off the initial investment in going to the defendant and that that was not disclosed but specifically that it was concealed by the defendant personally on a phone call where he was take saying when you go through me is the tape with a potential investor when you go through me and use me and you're my client he won't pay a penny more it's completely untrue it takes a completely outside the box that the council is painted is falling within lines words factually and legally improper that is completely proper and as the witnesses testified time and again at trial if they had known about that commission and had not been misrepresented to them they would not have invested one of the reasons for that brings us to the second allegation which is the tax write off that also has been misrepresented it isn't that you are misrepresentations not that you're able to take a tax write off of seventy five percent of intangible drilling costs everyone agrees that that's true at the trial the well things that go into the drilling of the well sixty percent of the money invested never went to the well so the seventy five percent would only be of that remainder and with that is that is an important factor in understanding why that was a misrepresentation to the taxpayers of the third misrepresentation was not again to be clear it was not that gas wells would later be acquired and that they would try and find them as mr ross had promised factually i having trouble finding and regardless at the time the defendant was making representations himself personally and his telemarketers that i t s he was representing to the test to the investors that they already had the gas wells that the gas wells were already producing and importantly because there were gas wells there were already existing in producing that the investors were paying into this was no longer risky investment oil and gas is very speculative very risky and there was a lot of pushback by investors on was with what he called his clients which were the people that he would mail these various letters that we referenced in our brief to the investors where he said to our clients we have a number of different programs that we're going to recommend to you and we the defense company ha responsibility to you and we will keep you fully informed as to these projects the petrel resources isn't the business i ts is the business and you never withdrew from my ts which was located in orange county and he had voted those investors into those programs and there's evidence i don't want to just go over what's in my brief but very very briefly there is evidence of a continuing involvement by the defendant that does not indicate withdrawal such as the conversations with victim investors like mr tarling who testified about hundred seventy trying to get ahold of the defendant and then eventually getting a hold of the defendant there's no statement to mr charland the defendant's client to me as if it is your responsibility about any fraud or withdraw from the scheme merely eventually tells him we're going to try and find these gas wells to which mr charlie shows surprise because he thought they already existed and that's why it was safe and then later tells him when mr tarling thinks there's fraud and this is in a heated relationship between mr mclean talking this right by ok the defendant it's clear i think from the record including an audio tape that was played at trial between the defendant and mr mcclintock that that that he relationship had everything to do with an s and with respect orchestration and as it says in that opinion to a causal connection the government's argument is that the calls were placed these two individuals will talk about the two investors in their testimony and one minute but the government's argument is that there was a causal connection firmly established between the defendants operation and the canadian operation that was placing calls to various investors and were also being placed by the defendants office within orange county found him guilty the facts in support of and the venue issue is a preponderance of evidence standard the facts to support of that as laid out in our brief are all the facts stablish in the connection between the entirely on mr by okee because he was twenty one years old and just had a history of employment with hamburgers and things like that that was wholly run out of the office entirely in orange county the brochures that went out the calls that the pitches were identical made the call to him for completion of the one that was charged and he had very specific recollection on cross examination or several questions about say mcclintock those were in leading questions that was not from m austria and her testimony she had initially said that she believed she got a call from canada she later said that she thought it might be from oklahoma and she can remember the names of all the states her testimony was a closer matter for the court  received the same misrepresentations as the others and she we did have her check which identified she said that she would have received a call before sending in that shack and so the governments are going to answer your court's question is premised upon cosima liability in causing an act to be done based upon all the argument i do have a question although i'm not sure how relevant leo's the defendant would like us to think that is very relevant there are several candidates for being bad guys in this story story two of them sitting somewhere with lots of money in their pocket drinking gin what's what's happening it's a very good question your honor unfortunately i'm not i could go outside the record to explain to you some of what occurred with that maybe i can just put it involvement a proffer agreement knowing there was no immunity given or anything like that but he did come in very early and talk to the government there's also history involved as to the difference between this defendant and his having done this kind of thing in the  past with respect to tell marking this not in the record and i do believe it should be irrelevant to the these proceedings but there there is a factual background to that decision are they going to be prosecuted i think it's extremely unlikely and i do believe the statute respect to those two individuals i will say that mr mcclintock at the time that decision would have been made i believe he was in jail at the time that any indictment would have been brought at least that's my recollection but it does proceed my time in the case but he trying to imply something by that the point of that commentary during the rebuttal argument was the entire defense or argument had been focused on ross mclean talking all the evidence against them but had ignored critical evidence against the defendant the import of my  anything by that finally i did want to loop back around to the foreseeability prong because i think it is important in understanding the government's position with respect to withdraw the government  like i said the government believes that there is a an argument a very strong argument that the defendant did not indeed withdraw because as he said on the tape is real intent was to try to evade the f c c inquiry  and as he said on a tape with mr mcclintock in late one thousand nine hundred six his motivation was to keep his name out of it to have mcclintock not refund any money to the south ferry investors to have a clean talk finish it was about he would get the completion  it he would throw him to the dogs and they had more on mr mcclintock than he ever knew and that that was the true motivation the s e c portion that the defendant suddenly withdrew from the skiing that in fact he was trying to keep his name out of it and there was plenty of other evidence  that the jury could certainly have inferred that same motivation including false letterhead that had been created by the defense company with four signatures and saying sure stamp of mr mcclintock that was not legitimate the defendant telling his telemarketers  thought to be introduced was what the letter proport had to do which is to say purported to withdraw it's neck graph i believe and if and if the letter is being introduced for what it purports to accomplish rather than for the truth of the statements therion about will i do the asking you to death why was the judge correct in keeping it out on grounds and in this will here say well your honor i believe there was some discussion about  and well he didn't quite say that he says i don't really remember that's correct you are there was there were two portions were mr stern testified and proffer outside presence of the jury and at trial and he said he did not really recall what was said he did leave that have got a slightly different argument which is in trying to do something now you can argue in various ways that it's not very convincing that this is in fact what they're trying to do and i'm not sure how powerful a piece of evidence it is but i'm not sure it was properly also untrustworthy i don't know if you specifically said this but i think a proper basis to affirm also is again the historical context before this letter in january is that the the f c c was already involved and  letter that was produced long after he'd been aware of that claiming that he had suddenly become aware of some problems that might have been occurring and there was no evidence by the witnesses being offered through that that witness  motion for a new trial brought as to why more specifically it should have been admitted but clearly he was the argument was he was withdrawing it was relevant to show mr vaile his position in december and early january and with respect  trustworthiness every statement or most of the statements that he made about his concerns at the time that is i want to independent geologist to confirm wells are drilled and commercially viable that proved up because mr mcclintock went ahead and drill well that was determined not to be commercially viable to see if it would justify a call for completion calls completion funds he asked for an accounting to show that investor money was obtained and that diverted the deal that oil company had with the investors was that they could not take any cash no money all the money was to go into the project and and the pet the oil company got twenty five percent of the investment that is they would reap twenty five percent of the royalties and own twenty five percent of the wells in the investors of the other seventy five percent that's the way it worked out except mr ross and mr clinton mcclintock looted the place of hundreds of thousands of dollars that should have gone for gas wells so that was a statement  that was proved out to be true and then he said stop demanding more money from investors and can didn't think till conditions meeting completion are our verified and that came after he this came right after he said he was not going to participate in the hundred three well and proceeded south kerry again that proved out because mr mcclintock went ahead and sought money when he shouldn't have so in terms of its clearly relevant to show mr aoki was pulling out  tted on the briefs we have one last case on the calendar which one counsel was delayed but i gather is now in the courtroom