great i want to start by briefly framing where we are in this case this appeal represents a rd iteration of a one trial to come before this court this court has twice baked heated counts one into on the help of mr argument relies on a few lines of a bank account statement that that post dated the mailing these were not transactions that were discussed at trial the government put on no evidence in terms of what those transactions represented nor did it endeavor to or did it actually establish that this bank account was so be put to the purposes of conspiracy business if that's the case because the government proved no subsequent overt act that followed the december of acquittal to be entered a six help five we have made an alternative argument that even if even if the evidence were somehow barely sufficient on count five the jury instructions went so far astray that would be another hearing but for a clean sweep of constructions while we start there are so there's two errors and respect with respect to the instruction the st is the error in the failure to convey the requirement that the jury find an overt act that followed the mailing so the jury instructions that replace the overt act requirement with a statement that require the jury to find that mr carton a lie at quote performed or attempt to perform conspiracy it's our submission that that for is not require conduct i mean st of all performing conspiracy orders on nonsensical extent that it has any meeting it would be provided by the conspiracy instruction which of course requires only an agreement and no that certainly whatever it means it doesn't convey the requirement that there be an over active mailing and for that we think there may need to be a retrial on the travel at that and it also doesn't have the other party instruction doesn't have this business at a price it doesn't have the business enterprise language either which of course requires a continuing course of conduct and so really in that the jury instruction here simply missed the mark compounding that error with the government's argument that said a mailing was sufficient as to counts four and five it was and that was in the closing testimony that was in the closing argument and there was no there was no objection to that so that's also complainer there was no objection to that oh no that's not really it's not writ you're not could i'd like to briefly address the cell phone issue that too is is yet another place where this trial kind of went off the rails after carefully extracting only a few texts from the big fish and cell phone that would go back to  but jury received the cell phone itself which was not has been protected which still had a charge in it and the jurors admitted that they they have these six of them admitted in these and he's written answers that they had viewed what was on the cell phone and that evidence and unless it can be shown beyond a reasonable doubt that the beyond a reasonable doubt that there was no reasonable likelihood that affected even one jurors deliberation then and that's how really is that going to be at this point  there's six jurors i mean do we know that it was only six jersey or does that still need to be established and can you find out which are still so i think that is relatively well established i do agree that there would be some i mean this trial w docking twenty four teams so it would be i think you know if he of course alternatively the government could simply put on evidence of everything that was in the cell phone and say that there was nothing in the cell phone would have possibly affected the verdict in th case but don't you know that's not true i mean we are you know from that if they didn't come in that really couldn't be true right i mean that will certainly be our position but in terms of answering the question about how difficult it will be i agree it a it was you know six years ago trial it's a relatively small voter but how i think you know finding it is different than finding jurors in manhattan perhaps but still if the government can't meet its burden on that it would ins in situations like this well your honor i think that that allows the discretion statistic judges but it comes down to is the fact that they're really limited in what information they can ascertain under federal rule was in a position a court just a court judge in an evidentiary and could ask that question right what information did you see if they remember it six years later if they're a member six years from now but at the end of the day that really you've added that much more to the district court's fashioning a remedy this is not a case where this was discovered after the verdict this was actually discovered before the projects and in this case the parties were in a position could that be right i mean if they saw if they saw a very probative evidence on the phone that had actually been in evidence i just don't understand how how something that might be very persuasive to the naturalists to proceed in a manner it did there was often concern again that questioning them further about it ah the court to discuss they were concerned about trying too much attention to the issue and so they were trying they're really having a balancing act to have a jury is deliberating it's not after the fact as it was not as this was during deliberation that they discovered this and so the district court in this case was really in gauging in a balancing act of trying to figure out that the extrinsic evidence did not affect the birth so i think you sort of seem to be suggesting that well we can just kind of look the other way if everybody agrees the government has the bird here to show that did not affect the birds beyond a reasonable doubt so tell me how the government without knowing what the extrinsic evidence is can prove beyond a reasonable doubt that it didn't affect the  instructions they are getting on and if so that's how you distinguish in those cases i mean you look at it you view it so your position is this would be different if it were after the verdict no instruction were able to but we should carve out an exception to those right that in certain circumstances we allow instructions to you know pure additional evidence but as far as i'm aware that's always in the circumstance where the district court judge and the parties know exactly what evidence was presented to the jury and that seems to be the problem here is that there's but there's just no knowledge of what that experience of governance is and so i'm not sure that your distinguish the way you're trying to distinguish those cases actually works because at the end of the day we've got to be convinced it seems to me that beyond a reasonable doubt that extensive governance didn't affect them and without knowing what it is it's pretty hard to know whether litigation over like the contact of the phone and any voice mails i didn't understand there to be maybe i missed it i didn't see anything that showed that the district court knew everything that was on that  maybe you can do a questionnaire and ask follow up questions but if you don't figure out what the extent of governance was that was seen why isn't that just abuse of discretion defense theory what could have been well this is a one off this guy was a small player in this thing and he just did it one time we did it one time we can you really say he was part of the business enterprise or at least was the jury of were asked that question clean air i would dispute that because the government didn't argue for clean air and under mchenry where the government doesn't make an argument the playing there should apply the court does not save the government from its mistake if it if it does not raise that offensive that instruction the government you know addresses the one error about the business enterprise i i just want to clear there's two errors here the business enterprise and the overt act apartment d the overt act requirement to me is the bigger one and  one that's more clearly harmful to business enterprise one however as a judge jones i think was was pointing out of the it doesn't require long term for to some peace and participation it does require intent to participate in an intensive facilit continuing course of conduct so if it was simply a one off you're there i don't think that that would be clarity that would clearly be the element here mr prince's ally is defense was that well yes he allowed his friends to your bank account and he mailed this one or two packages but he didn't know what was in them it's unclear based on the air and how one what the jury believes because of that defense count that included all of these different conspiracies i don't think it can be said i'm happy to address anything else that the court has but i don't have anything else to look at my colleagues i think i think we're all set so i want to thank you very much both counsel for your arguments you briefing today very helpful very interesting case  i'd never think of and i feel the same way after this policy that much so this matters been submitted i will now move on to the next case henry versus athens just health care medical center