acceptable method of calculating the loss here or the district court improperly interpreted the limitation against credit money returned in furtherance of the fraud and arbitrary excluded you don't want to reward the defendant for the fraud by letting him set off amounts that he was able to garner from outside sources to make up for the money he had stolen from the co the district court held and the government has argued that the two loans obtained by mr stone are in are legible for credit because they were obtained and paid into the company in furtherance of the fraud in that case the defendant admitted that her purpose and repaying money was to enable her to keep stealing which she did for three more years the opposite is the case here mr  first clown to purchase a new property something he would not have needed to do to keep stealing and the december two thousand and eight loan was followed by over one year of mr stone paying money back into the company dollars thousand dollars twenty seven thousand dollars and it appears that at least with respect to the number two thousand and eight loan it was followed by a lengthy attempt to repay the funds he had misappropriated either from new investors or from repeat investors mr stone did not use either loan to obtain any new money the one case that bears similarity  now and this case supports awarding the offset for the loans and brownell judge would held that the defendant would be entitled to credit for a line of credit that was if the government had a better timeline about he took a million dollars or whatever took out five hundred thousand dollars i would have had a better grip on exactly what happened you stated another frustration i had  of the hearing such as your sentencing hearing that yes yes it appears that the court's holding is a direct result of the district judge of confusion for certain funds that were transferred from his wife's bank account as to the mortgage payments it appears that the district court was similarly confused about the transaction and again arbitrarily rose the company was a bit of this particular transaction we've argued that mr perry's declaration and support the contention that the mortgage payments were paid because  sham and that the promissary note was some sort of last ditch effort by mr stone to hide the fraud first the transaction was not a sham and that property today or as if the sentencing hold a five million dollar value to the investors and second there was a lot of emphasis placed on the date of the promissory note but the promissory note doesn't simply represent  events the stone rose mortgage it actually represents a transfer of ownership beyond what mr stair with mr perry had and actually held in the seventeen in the property and it represents mr may please the court it is the defendant's burden to shoulder the last amount to be offset by payments or properly property allegedly returned to the victims in the district court in this case the probably found that the defendant had not met his burden to do so first with respect to the two loans that the court concluded that no offsets would be allowed because those loans served to facilitate  ongoing fraud against investors of the partnership he injected those bonds into the company in order to look place money that he had taken it to make it appear that the company was continuing to operate normally and in fact prosper and he used the five hundred thousand dollar loan and may of two thousand and seven to purchase a property or apply towards a down payment of a property the seven thousand acre property that was later sold to the entity o economic slowdown that was beginning at that time with the kind of noted in their brief even more saw the payment of the interest the use of the three hundred fifty thousand dollar loan to pay interest in december of two thousand and eight certainly victims of the overall loss mouth would not have changed in this case i say that because of the victims in this scheme also included the lenders the defendant attained those loans fraudulently in th perry in connection with the mortgage seventy eight per property those payments were made by mr perry because he had an interest in the entity that owned that property he did matt make those payments on the behalf of the defended he did not make those payments on behalf of the investors still rose he stated that he believed what he was making those payments he was increasing the equity or the interest of himself in th entity that control but owned the property in other words he was protecting his interest in the property and he was increasing its interest in the property the defendant never made a single mortgage payment in connection with their property he never paid mr kerry anything in return for the payments he may instead what he did isn't of temper of two thousand and ten he gave mr perry a promissory note for nine hundred thousand is not of the investors nor mister stone mr the fenice had any money at that time stream was the underlying mortgage liability a liability held by the partnership the under want line for this liability to big house investment so the property was sold from the partnership to the big house it was an entity that was created by the defend it and mr perry fifty fifty now mr perry explained in his interviews with the f b i there were attacked rose on both the buyer side and the seller side in other words you can't sell something to yourself and the bank wasn't willing to do a revitalizing at a later point in time the defendant basically appropriate for purposes of calculating the loss amount for the guidelines and the restitution amount and here here's what i'm getting at ok the proceeds of go along ok i totally understand your argument on the last part of it but the proceeds of the loan did they not went to stone rose the pen isa you are going with this in terms of is is it possible that we have a case here where you may be right on last amount on restitution but that's the question i have read and certainly the commentary that talks about the return of property is a diet line provision not a restitution provision right but i would note here that it would not affect the overall amount in this case because  considered as part of the wosm out in retrospect they should have been and but they were not what that means as we stand here is if you were to provide a offset on the guideline provision the last be the same and the  because by september of two thousand and ten the defendant knew or should have known that the investors rant was fraught that was supported in the record by the fact that the county action at the filed in circuit court by the investors that very summer and loans i think we've argued that there they were not attained to facilitate ongoing filing the government's argument would lead to the result where any minute that paid back into the company during the course of the front would necessarily perpetuate the fraud and that's not the case that's not what the law is with regard to the government off for those amounts and i note that the circumstances surrounding those loan payments are a little murky there's no fraudulent document there is you know really no documents at all so i don't know why the government did not introduce more about those to the district court and with regard to the restitution and the government did state at the district court position is not not the other way around that you use in other words what i think you're saying is that if we went on the last amount argument we're going to win on the restitution but what if you lose on the last amount argument can you still win on restitution