your honour's the government appears now to be conceding and you sure that it can be tested below with respect to this issue that is whether mr white had actually received the benefit and although it seems to be conceding that he did it in its briefing i would still like to touch on it the holmes case says that the witness benefit instruction is justified when a witness may have testified in order to leave open the possibility of  eighty so that any personal advantage to the witness is a benefit and mr white here did receive an enormous personal advantage he did testify in order to leave open the possibility of a future benefit according to this hundred twenty five thousand dollars that wasn't backed by funds and that mr whyte the bank manager then wire transfer back two hundred ten thousand dollars to mr chatting but nobody except mr white testified about what really meant as far as the prosecution was concerned in order to find mr cheney guilty the jury has to find that he had had fraudulent intent and the jury was instructed that it could not find fraudulent intent if mr chatty reasonably expected that the department deposit would cover that two hundred twenty five thousand dollars check by the time it was presented for payment and mr the check would be covered either by the finding of the mortgage refinancing loan on his personal property his house or by a one hundred million dollars development loan and it was only mr white who refuted that testimony for the provided the evidence of guilt that the jury needed to convict on count three as you know the jury acquitted on counts one and two let's move a little bit farther along let's assume for discussion the instruction if the witnesses testimony is unreliable for other reasons that's a significant enough statement to have made its way into the commentary on this witness benefit instruction in the ninth circuit's model jury instruction what do you mean unrivaled unreliable for other reasons the example that's given in these cases and that's also found in the commentary your honor is that if for example an addict and there's a standard how unreliable he was he was an accomplice for one thing he had to sustain two felony convictions in connection with his conduct with mr chatty and his conduct with vanessa richardson he hadn't was i think in both cases they were addicts at least arguably but also in both cases they were accomplices and in both cases the circuit said that on reason and if trial heard the district how do you reconcile that argument with the morgan case which says you don't have to cover every possible base or at least it's not reversible error if you don't i think the morgan is can be distinguished your honor on a couple of grounds for one thing it involved witness for six different reasons and the jury is told five of them yes is it is reversible error for not told the sixth one i believe that it is your honor because when you look at those statements in bernard and dollar oh so you think why is it more important to tell the jury of the sixty reason they've already been told that he's been reliable for these five reasons and that's what those cases do say and so when you think about it one way to think about it that i would suggest to the court that the jury has been given five different reasons to question mr white's testimony the jury has not been told a blanket watch out for this man's testimony and regard it with caution it's told why and so white's testimony and you can see you can imagine that someone in the jury room might say might not even venture to express or rely on i feeling of skepticism to see his testimony for  court also gave the accomplice witness instruction which the court in morgan sat is an adequate substitute for the informant instruction that said that because both of those instructions to the jury that is to view the informant's testimony with great caution instructions provide the same type of warnings one of the two instructions is the same if you give them one you don't need to give the other and that's the same with bernard bernard started morgan said there is no difference instructions between the informant and the witness instruction that was given as i noted it was the plea as the agreement is structured and then another instruction that mr white had been convicted of a related crime arising from the same series of events that instruction also tells the jury to view mr white's testimony with caution giving it the way you think it deserves the same language that the morgan court the lower court and bernard court said was the operative or the substantive point of the informant and the accomplice of structure so we have two different and that the jury to consider other elements just the general credibility instruction that was also that was also given so even assuming that mr white was an informant which we were happy to do i think that that is a  mr white had done was illegal that makes this case quite similar to the holmes case which is a bank robbery case in which the defendant was convicted in part on the basis of informant testimony but the district court that there was no abus robber and there were surveillance photos showing the bank robber robbing banks so in light of the holmes case the defendant not entitled to the instruction here even apart from the five other warrants that the jury received let me ask about that in the context of what we know now which i understand is not there's no known but the jury's verdict where he was in fact not convicted on all counts he was acquitted on the other counts like leaving the stamps of perhaps the testimony of mr white in the context of what he was convicted of is interested in anything about housekeeping matter on the blakely issue because as you can imagine and all the criminal cases were sentences that all the issue we've received requests to consider the impact of likely this panel is highly unlikely decide in the those questions because other panels have priority i know in this case there was a request by the government for leave to respond to the supplemental brief of defendant have we and we received your supplemental brief but have we ever even assuming that there are that the court did not instruct the jury to find specifically what the amount of loss was which is now officially the rule and even though the judge the government didn't allege the amount of loss in its indictment which is now the rule the defendant admitted the that doesn't require a reversal of the sentence can stand there is at least one element that was contested i guess at the stage of sentencing the enhancement or the argument that the last amount should be reduced by the amount of money that was returned to the bank and as i understand it that would affect a potentially affect on one level and handsome and change now else all as i understand it the ultimate sentence that was imposed w still fit within the range even if you reduce the enhancement by a level but is that something that should be left to the district court in any of the we think because that argument whether we should the doc twelve thousand dollars from the last amount is a legal argument  very brief your honor i'm trying to talk very fast and make two very quick points first as to the evidence of guilt in the chinese admissions he did certain things to the agents it's true but i think it's a general perception among the lay public which and state of mind that were fraudulent intent and that the district court instructed the jury fraudulent intent what is negative if the defendant reasonably believes that the funds will exist in the bank account at the time what he feels about you know his conduct in writing the check it was an act and the actual legal definition that a jury had to find facts to support in order to convict him number