the court now is the sentencing issue if we were to go back to that issue and under amalie three has the corps indicate is probably well aware the program procedure would be a limited remain and mr cook received originally when he was sentenced on the defendant is i don't know if the court has a record of the letters that it has received over the last year and a half but most of them go up to mr shaw in san francisco but he likes to communicate more with the court that he does not self so i mean i'm in formulated his closing argument is basically the theory that the fact that the prosecution is going after mr cook is that he was the person that personally prepared and executed the forms the question was served as the grounds for the for the fraud against the administration and in this particular case there as the defense was prepared to argue there was not sufficient evidence to support a theory by the government so after the facts that argued and they were discussing jury instructions they usa again made a request for a jury instruction on  and abettor liability and the district court granted that request and that allowed the governments essentially argue or have the jury find mr cook guilty not is the principal not is the person actually personally executed the farce but maybe his wife did it maybe  him to receive the benefits on the other hand if he was aiding abetting assisting are encouraging the act to somebody else were to sign it on his behalf and he was not acting as a principal at that point but he's acting as an aider and abettor but it's a complete series of different series or different type of acts or conduct that are underlying that and i believe that's where the defense is prejudiced the defense attorney basically got up and told the jury you're not ladies and gentlemen i my client did not sign a document he's not guilty they didn't prove it ok well then the court turns around and  defense counsel request permission to reopen a closing argument wants it was discovered get this instructions on thinking and i don't really know if he made that actual request or not i know he made the new trial motion and he was airing his complaints and sens motion that he was denied the opportunity under rule thirty to reopen and that was his argument in support of the new trial motion based on my recollection from a practical standpoint if your client decides he doesn't want to leave the question strongly desired to have a new trial if you were to prepare prevail on the rule thirty argument however is true with regard to the new sentencing argument i just don't believe it's in his best interest because he's already completed the time and if the court were not to reverse on the rule thirty ground or the other ground however defendant was not unfairly prejudice in arguing his defense to the jury nor was he substantially misled in formulating his argument his defense in this case was that someone else filled out the forms he at cross examined the case agent and said was it possible these forms were signed by someone else and that and the case agent said it is possible and in closing argument that is what defense counsel argued that large that the thrust of his argument was that it with defendant's wife could have filled out the forms and the fact that the aiding and abetting instruction was not resolved prior to closing did not prejudice him because or contradict his argument that it was an error for the court not to do that correct the court should have resolved the jury instructions before before argument but i think in this whether he filled out the forms or his wife filled out the forms so i think it didn't it didn't contradict his defense while obviously it would have been better for defense counsel to have known the aiding and abetting instruction w going to be given for sure i don't think that his defense would have been different and we know that because he never asked for the opportunity to reopen his his argument and at the motion for me to try it's back to the bidding argument that the government think it made a difference well after the after closing arguments the court actually held a further conference on the jury instructions and at that point defense counsel did not ask to reopen his argument and did not state that he would have given a different directly address that other than to say to the jury use your common sense who's the person who's receiving the benefits and the government also made a statement to be a fact that  defendants defendant had had not introduced any evidence that his wife had filled out the forms and that was also objected to by defense counsel the government didn't pursue that any further so the government's main thrust of its argument in closing was that you know the jury should use their common sense defendant was the one who received these benefits defendant they were made out to defend and they were signed and defendants named therefore the jury should conclude that conclude that def principal so it's it's different than a typical i know in britain libel is a principle doesn't really answer because that's true of aiding and abetting generally right there right now even if i mean if somebody  s the fact that the aiding and abetting instruction was given did not contradict or eliminate his defense while it could have maybe changed it in a small way his defense still would have been somebody else sign the forms of he's his defense was i mean he never came out and said that but it was the jury really it was basically that the jury had to consider whether or not the government had actually proved it was his that's true if he if he presented offense he had absolutely no knowledge or never received the forms or something to that effect it would make a difference although i don't think that defense was possible based on the evidence that was before the jury man indicates that it would have been better for the defense counsel to have anticipated or have known that the instruction would have been given the district court had already indicated that such instruction was not going to be given i don't believe that the appropriate when defense counsel is formulating his closing argument basically trying to surmise the other is trying to have paraphrase everything that occurred during the trial and the weaknesses in the government's case and what was proven it was not prevent to anticipate that the district court will subsequently give another instruction basically presenting another theory opening doors that had never been addressed and i believe that's where the defense was prejudiced in this particular case the statute eighteen u s c section one hundred twenty required as a knowing and willful element that the defendant made of would formulate there but they're based upon different types of acts different types of conduct and different types of mind set by that you choose and in this particular case the government did not or the court excuse me did not indicate it was