good morning your honors please the court my name is benjamin brenner and i represent david the appellant in this matter i'm going to ask that i reserve two minutes for rebuttal in this matter and understand i'll be keeping track of my own that is correct the court did give a good faith instruction that it's not right to yes and so what you're telling us is that you have some kind of a right in this case to tailor your own good faith defense instruction as compared to the district court you know that's not our contention we understand that the defendant is not entitled to an instruction in any specific language that he's not entitled to the specific instruction that he requested what we are arguing are is then the court's good faith instruction was defective in some way well we're arguing that in addition to the good faith instruction that that the court gave mr sprowl's entitled to an instruction that helps to pinpoint what his actual theory of the defense was they want what case are you relying on that specific point obviously research that did not discover what you're asking is just so hold in this case we're asking you to recognize that mr spry was entitled to an instruction that directed the jury as to where  good faith lay that gave them guidance in terms of understanding what his theory of the defense was our course not with the good faith instruction that was given and so with that considered cumulatively the instructions that the jury was given did not allow him to present his theory of the defense to the jury you could certainly argue it did in fact correct he did argue it but i think that in this manner the only the only and this links in with the other issue in this appeal which is his inability to put on his expert witness the only testimony the only evidence that mr spall had in support of his theory was coming out of his own mouth and realistically as soon as he takes sprowl had the requisite intent here that is the intent to answer in response to a judge's questions that he would not advise any of his clients to do what your client that he did he did and i think that that's in that sort experience as an a t f agent and his experience with the regulations at issue here and looking at how mr sprowl behaved at the invoices and his understanding what mr sprowl did that was nonetheless miscible it may not been smart and might not have been a because the key was that mr sprowl had an agreement with mr boehner court regardless of the presence of the receiver mr boehner corps was still running that business mr bone of course still receive those invoices he looked at them he saw what the excise i'm recommending that these the government into the council i think probably the argument will benefit if we hear the other side then we give you a full opportunity to respond thank you tony order to induce someone to part with money that straw i that's exactly what mr spruill did in this case whatever the a t f regulations said about who is eligible for taking that excise tax if there was some agreement the fact is that that theory might work here if mr school had not made direct misrepresentations to the receiver are you talking about the letter that didn't answer the question exactly i don't see how that's a direct misrepresentation it's a failure to answer a question well it was a direct question put to him and he explained how the excise tax work but i really don't have trouble understanding your case it seems that mr bought a car sprawl have a deal but a car comes you know he can't pay the four thousand dollars and the school says ok well i'll make up the difference in this the difference between the two taxes and they agree that's perfectly ok then the receiver comes i'm going to  what happens to the to the four thousand dollars that went out the window when they made this deal i mean it seems to have been a quid pro quo well there is there is no written physical evidence of that that is purely through the testimony mr s he given immunity now but but that wasn't part of our case our case was that mr spruill made direct misrepresentations to the receiver what i don't understand is if what was seven cents a gallon why isn't this a case where special instructions involved this is a little bit off the beaten track in terms of a receiver coming in and taking over for somebody who had a lawful agreement with somebody else and all of a sudden the minute the receiver takes over it necessarily becomes unlawful well i can't i can't speak to why a different procedure wasn't used shouldn't there but what about an instruction in this case it seems like it's off the beaten track of the usual kind of a fraud mail fraud case an instruction of what type faith well that the defense got a good faith instruction in spades i mean that the i think the court made a very valid point that the defense had all the tools it needed to argue good faith to the jury closing argument could have handled them didn't handle in closing argument and the only thing that gives instruction would have added to the mix here is for the judge to highlight specifically and perhaps in the jury's view of the court's approval do for this reason as as we stand here today we can't tell exactly what it is that the defense was complaining about before the district court and i'm prohibited from going outside the record was that this is of marginal relevance and i think he was being polite there to counsel what he actually said was when he got counsel defense counsel to agree to this that  the receiver could have asked him what's what do i owe you there well four thousand dollars to receiver came out ahead with their documentation of the four thousand dollar demonstrated three there were not nope no bank account other four thousand four thousand four thousand zero that was that was not not presented trial to my knowledge these are two this is when they're longtime friends they are working in a relatively informal manner using oral agreements and that's why there is no documentation i want to respond to unavailable to us certainly we would have loved to put this about a koran on here to provide what is the missing link i think in terms of this is the substance of their agreements and the proof of those agreements and unless the court has further questions