involved in the trial proceedings i will only be able to cover a few points in an argument and point one in particular is the point i want to focus on although i would like to touch on point for an eight if time permitting all the points of press for the reason stated in the brief rather than get distracted by such matters as mr little's personal income taxes this case could have been and should have been limited to the much disputed claim that in two thousand and one little agreed to assist the children of harry segment to avoid a state and come taxes on funds and foreign accounts that issue involving the nd children was tried on account that was constructively amended at trial nine was a three pronged conspiracy charge limited to the nd segment children conspiracy allegations but both the government and some ation the district court and its charge told the jury that problems two dollars and three dollars in particular could be satisfied payments the government claims these references were to the elements of the false statement charges and counts ten the nineteen rather than to the charges themselves but if you look at what the government the court said that's not true and the government some nation the not in describing count nine as the conspiracy count the prosecutor specifically referred to filing false thirty five dollars twenty's as embraced within that conspiracy charge even though those were the only at issue on the other counts ten the nineteen the port in that charge did not cross reference elements but told the jury that the rd object in the conspiracy was quote the crime charged in count ten through nineteen and that's to object to the court unmistakably refer to those counts when it stated a tax return may also be false as a result of false of occasion of the nature or source of the funds reported on that return such as falsely claiming transfers of funds were gifts when in fact they were not that's the issue i want counts ten the nineteen ok no am i correct no there was no object the charge or to the nation this is playing out correct this is playing error review absolutely there's a different constructive amendment argument we make where there was an objection but on this one there was no objection your honor thank the references i just made created an unacceptable risk that the jury might convict the jury the defendant of a crime materially different than the one allege indictment under the plane air task the jury was plainly and ironically invited to do that and i just want to point to emphasize since we are talking about plain error that this court has said multiple times that prong three of is not simply wrong that is that you know we can certainly we could say that edna objected to we could certainly read it seems to me the judge's instruction as having been runny is but but  is is so clearly right could not be read no the jury couldn't read it the way the government now says it should be read as a reference to the elements exactly that's what you have to establish though to win here right yes exactly that's that's my point i think because if there had been an objection it would been very easy to clear this up right if someone had said at the time no that's not what the rd object of the conspiracy in the indictment talks about and the judge would either have said oh it isn't well what you suggest or the judge might have said well i didn't mean to suggest the way you read this i meant just to refer to the elements and then the defendant has said well if that's what you want to say say it and here's some language you could use it would have gone away as an issue but no one did that and it was left hanging with some ambiguity there was no objection your honor i can't disagree with you that if there had been an objection it might have been cleared up but i do think this clearly satisfies the plane air attacks that was planned i don't know how the jury could have taken these comments any other way it's not the comments are not what the government says the oh it's just cross referencing the elements that's not true the judge referred to the issue of gifts the the  you know count nine involved allegations going to whole way back to two thousand and one that mr little doesn't have to show prejudice but it's worth pointing out that that that was very much disputed and  dated charges seventeen years old when the case between that and when the case was tried and it these comments gave the jury an easy way out to to ignore oh and two of the segment children in some respects supported mr little position that he was not involved in these charges back in two thousand and one but the jury was given an easy way out through these these comments by saying oh we can we can   i'd also like to point out on this issue the government said well it's a three pronged conspiracy and you know maybe they maybe the jury convicted on on probably one for example which  did not involve these constructive amendment issues but but that's the case they cite which is the no as i believe that's that has to do with issues of sufficiency on a multi pronged conspiracy this is not because mr little's already asserted that time but it would affect the restitution obligation significantly isn't that what's really at issue here exactly your honor mr little has served his sentence and but it  does affect restitution because mr little has been directed to i don't i don't have the exact figure in my head right now but it's i believe it's over four million dollars restitution joint severally with the before s count nine if we went that way then the judge would be able to impose a restitution obligation under some of the other counts but only as a condition of supervised release right right if i understood your question correctly your honor there's two components to restitution this is point which i might as well jump to with you so there's the restitution related to the to the segments which we were just discussing and then ssion obligation gets make a the only real consequence in most of these cases is that i've seen this a lot when people have very long prison sentences that the mandatory restitution can take place immediately and money can be taken from their prison account and stuff like that but then if it that's vacated the district court typically will go back and impose a restitution obligation as a condition of supervised release and then the defendant has to pay it in installments while he's on supervised release but that would be available as a part of the sentence for various of these counts including with respect to the segment money the to the cyberman children i'm guessing you're asking me if the court could impose restitution on that count even if it's been vacated no no no no no one other counts if there were other counts that really i thought and i may be misinformed or but put it so count nine is gone now and on your argument that you've made so far counts ten to nineteen you have arguments about those two but unless those counts are overturned with the government not be able to seek  restitution because those counts contributed to the government's inability to properly collect state taxes from the nd children she received over the years were trust or or gifts so it may or may it may or may not the government may try to make arguments and you would have answers to those arguments if this issue came up on  helped the segments conceal their inheritance secretly bringing their money into the us and falsely filing the state tax return for every segment and filing false thirty five dollars twenties so the reference to thirty five dollars twenties is explicitly the to the comment that was made by the government just now is is what judge len said which is when you read these comments in context they're clearly referring to counts ten to nineteen especially if you read them together because because the very next sentence from when the government some nation cross references the thirty five twenty's to those counts now that last sentence in isolation is not inaccurate because ten the nineteen are about the false three thousand five hundred and twenty forms that's true but when you read that together with the sentence beforehand where were the same counsel says that count nine is also about these thirty five twenty's i don't know how the jury could get any other impression than that ok this count nine we can convict him on if we convict on counts ten the nineteen yes the mystical i think that i'm not sure i'm not expressing agreement with it but the government's response was that the three thousand five hundred and twenty s are relevant and the jury could convict on count nine according to her under the st object of the conspiracy that that was her argument she is saying that putting aside the instructional issue which is about defining the rd object the government's summation was talking in general about what count nine was about and she maintains that that's accurate because the s are relevant to the st object so i think to you know that may be wrong but if it's wrong it would have to be because she's wrong that the th government's comments but even on that last point your honor this gets into the griffin issue where the government says well it's ok that could have convicted on the st prong of the conspiracy but but we don't know what on what basis the jury there was no special verdict here and i thought that i get that and i get your argument about the jury instructions i think that the government was simply defending its summation and saying that it's a nation is not tying the thirty five dollars twenty's to the rd object of the conspiracy now that may or may not matter i think that's a defense of you know whether the government was improperly expanding or constructively amending the indictment charge by thinking an event your principal argument relates to the judge's instructions to both both your honor i understand what the government saying here but i think when i think the government was i'm not saying this was deliberate or anything it may have been callous but i think i think the government statements gave this jury the absolute impression or to cite the case law and an acceptable risk that that the jury with would go to those charges ten dollars to nineteen dollars especially when you read the government's summation together with what the judge said and and just a reminder that this was a case where the judge charged the jury before summations not after so the government's comments were more or less the last word on the topic i had hoped to get to a point for but i believe out well over now so i would just rest on the brief since to all the rest remaining arguments and thank the court for its