diminished capacity in this case dr little presented the defense that he suffered from brain injury which affected his ability to remember and also affected his ability to understand that he did not remember and informs the jury that it may consider that on intent but there was nothing promised in stressful here there was nothing to tell the jury how to treat this evidence of diminished mental capacity  was an instruction that said you may consider evidence of defendant's brain injury and abnormal mental condition on a ladder or phrase got struck ok so what if instead you ask for an instruction to consider the defendant's necessary because we don't know what first of all we don't know what happened in the jury room but the jury is always instructed on intent specific intent but we don't just don't necessarily know how to deal with evidence family resemblance but you are actually it was didn't diminish the past year struction that i mean i understand your point but it is just past instruction in the ninth circuit and in fact they did ask for more specific instructions which i am not arguing  the instruction that was given to the jury included the overall mental intent of the grass i referred to earlier the jury if they were listening to your experts presumably would have been able to understand that and to proposing is that it is the same rule that we have for good faith instructions which is that if you have if you if the defense asked for a good faith instruction he's entitled to it but as long as the court instructs on specific intent we won't reverse that's what the district court rather reports he didn't he never he didn't really rely on the foundation he just started saying he came out he said no specifics you can't go there and you know perhaps and adequately covered the defendant's defense theory was it reasonably understandable to the jury and i think that it was here and the government did cite three cases they are out of district from the age of love and has circuits but they're really directly on point and i think they're very helpful in this context and i know the judges have noted some of the the language in there but basically the thought was or the holding was is that so long as you give a specific intent struction it may be plausible to give diminished capacity but it's not fair to not give a diminished a separate diminished capacity instruction and that's because again it's a new approach to an old element that's a quote or it's a gloss on a specific intent issue a bad memory dispensed and the court held that it was sufficient to give instruction regarding knowledge because that would cover a bad memory i think the defendant's cases are distinguishable here some of these issues they're dealing with affirmative defenses like government authorization and entrapment that require separate instruction because the jury simply hears the elements of the fans and they believe the defendant was authorized by the government they still have to convict unless they have a separate girls seem to suggest that the standards should be applied what's the government's position on that well i think that that is the case i know that was cited that for instance the tenth circuit has a different holding in the context of an alibi but i jury that was the defendant raises an alibi defense does the burden of proof switched to the senate to stablish that defense and that there was confusion and that what in this way by instructing specifically on alibi the court construct jury that no the burden of proof is not so much the defendant the defendant doesn't have to prove alibi the burden of proof remains on the government to establish all of the elements of the offense in this case we're talking about diagnosis codes he fabricated records records he lied under oath at the california medical board proceeding i got all these things showing and intention of fraud i like to touch upon the scope of the expert witness  issue this is something that's reviewed for abuse of discretion just because the district court obviously has broad discretion determine the admissibility of expert testimony in a trial and there really were t issues here there was a seven zero for the issue but secondarily i actually think more importantly was i really started thinking about it further issue about whether they were going to be overreaching and going beyond the scope of their expertise and i think that's the case here and and the district court that is one of his issues and he raised that if you look at the transcript that's what the district court was saying he said we can't make you can't make that specific link linkage you can't testify that defendant or can't can or cannot do x or y was this language because that's an impossible link for you that expert to make because it takes a doctor out of what he does normally testify about the testing they did their diagnosis and the characteristics of that disease that you diagnose the defendant with and then you're going to have the proper witnesses the wife the office manager testify about actual behavior in practice how his office was disorganized how he would forget dates and that way you actually you make that linkage and that's the proper way to do it and i think that's what happened here is going to look at dr can read this on an x ray and that means we're going to act this way in practice on medical billing and submitting claims to medicare in very specific things but the district court actually though did not deal with his expertise at least on the record  according to the this is february eleventh two thousand and four starting at line nine the counsel for the defense said well one thing i would like doctor testify to is that i would like him to testify to the fact that he's read the indictment he knows what the factual basis for the charges are like the billing in china and whatever or where ever sees me and billing for services not rendered that in his opinion that pattern of billing behavior is consistent with the brain injury that he believes and then the court came off and said no he can't get specific he can't get into this case he can say generally that people have problems for instance was sorting or generally keeping track of general symptomology but what he can't do is get into this case in terms of record keeping and then relate it back specifically to an opinion so your conjecture about whether he was qualified