inappropriate and must not be given where there is substantial evidence of an exaggerated response or at a minimum if there is a lease the material you would ask for whether defendant's response was exaggerated the instruction must be somewhat ended by an available a response is exaggerated here often provided substantial evidence that defendants response was exaggerated substantial evidence upon which a jury could have concluded that the defendants response was exaggerated for one cost and introduced evidence in the form of the testimony of defendants on connolly correctional officer boggs that suggested that the medication in question was not delivered to him properly all of the time  for the fifty pills found in his cell defendants had a whole host of alternative less extreme responses short abrupt discontinuation that they could have taken to address both their security concerns and cost as medical needs so for one and most obviously they could have simply disappeared moving forward so the proper protocol for delivering medication as prescribed by the president's own guidelines which is not by the trial were correct yes your look when you talk to me about the relationship between that excluded evidence and this issue of exaggeration only connected they're absolutely connected your honor and the fact that mention that as a matter common sense and this is also testimony that was introduced that could have obviously taper him off the medication etc so very much like in the shorter cost and introduced evidence substantial evidence  exaggerated response the jury could have concluded that this was an exaggerated response if not for the fact that it was instructed to defer to prison officials in there so their in their with instructions to the court that either not give the difference instruction at all given the substantial evidence of exaggerated response or shorter or at a minimum to supplement it with an additional destruction making it clear to the jury that then if they find that the response was exaggerated they shouldn't but as it was the jury did not get that instruction and i was highly prejudicial because it essentially directed the jury's verdict because even if the jury had so long as they justified their actions based on security concerns and the instruction he misses in their judgment defer to their judgment so the instruction took away the central questions in this case from the province of happened is that not only was the jury instructed to defer based on defendants judgment about security concerns they then went to were deprived of much of the evidence because to stop introduced to refute their their security and disregarded three that and also he made clear to the court that you wanted to ask questions about what had happened before of the discontinuation meaning he'll deliver e of the pills to his empty cell which her  regarding their absence also just made for cause i'm being deprived of his opportunity to present his case his opportunity to have a fair trial and therefore this case should be reversed and remanded so that he can the security concerns were so grave and as well let me ask you this because when you say it wasn't a policy but it was a practice and looking at our court's decision in shorter versus baucus in two thousand a team which by the way i didn't evidence of the policy and frankly isn't the best evidence of what the policy was on these issues the excluded piece of evidence namely operational procedure the medical management procedure including but there needs to be some attempt maybe to see is there some middle ground you can reach here i didn't see in your briefs any effort to address that argument sol one had he wave response to the argument that mr kerry just made about how they they are allowed to have an instruction about his proportionate effectively and nd assuming it's not waived what is your response oh you are doesn't have here in the model instruction at all and the cases are are excited so we believe that that argument is really appropriate here because we do have these security based concerns that even if there is a legitimate security concern to be proportionate and i think what mr costin is arguing is that it was for force here that even if you needed to restrict the morphine in some way there are ways  to testify that if you have a trial to them they happen within forty eight to seventy two hours and there is no evidence that mr kaufman sought medical care or any any complaints that withdrawal symptoms in the window and there