good morning may please the court i'm michel martin and behalf of p j lopez and i'd like to focus today on the issue raised in the first two arguments in the brief namely that mr lopez may have been convicted of a crime that he wasn't indicted for and the risk that this happened arose from the final jury instructions and that the instructions for something are much cheaper and over by the district court and there was some puzzles  caused by a few things one is that mr lopez was indicted for where i have receiving a stream of benefits in exchange for diverting directing excess towing revenue to this one particular tow company so it was a stream of benefits rather than any one particular incident bribery and the other issue was that the specific benefits that the government alleged at trial formed this stream or not really supported by evidence that they were connected to a qui and then finally a much confusion arose because of this court's decision in new well which had recently been issued which required unanimity instructions in certain circumstances and so the court credit whether  restruck instruction was required in this case now what should have happened is a unanimity instruction should not have been given and that the jury should have been instructed on the stream of could have constituted the offense in and of itself this would be a different case but the fact is that if mr lopez was convicted just on the basis of one of these benefits which i have to say this is because that was the one that was most clearly proven by the evidence mentioned the stream of benefits and says it only has to be one benefit and then goes on to describe the unit in the instruction that you need to one benefit he has now focused on agreeing on a one benefit rather than says that the that the once received in exchange for the towing business is relevant to determine the value of telling business that was diverted to them so if the you know they the problem here arises if mr has was did not involve five thousand dollars worth of towing revenue or at least that's the question for the jury you know the court is saying where's the evidence this went beyond this is where's the evidence that this didn't and in december and and that's a question raised on the evidence at trial how do we know that there was any agreement that i went on that this was some grand plan both parties agreed to and it was bribery from december to do and that's the only way that i say that this becomes a federal case perhaps at least i can say that that's what gerry said at the grand jury did not indict for one suzuki in december i don't know if i've answered your question  indictment i think the most direct answer to that question i think that the challenge feels for three reasons i think the most straightforward is the one identified by the court just now which is that if you read the jury instructions actually given there was no way that the jury could have convicted based only on the suki unless the jury also concluded that that suzuki was part of the new created to accept a larger stream of benefits that prove the complication that appears to their peers in these restrictions comes from the nature of federal program by three cases like this one where you have two distinct moments in time that sort of matter there's a moment in time when the agreement for the corrupt agreement is made and then there's a moment in time at which that corrupt agreement may or may not come to fruition and so here you have the initial agreement to accept a stream of benefits going forward and then at some future time those benefits are actually provided as a part of that agreement and i think that's what's  instructions there is the initial instruction about the stream of benefits agreement itself and then there's the follow on instruction requiring the jury to find beyond reasonable doubt that a benefit was actually handed over as part of that agreement co instruction was not required but as i think was mentioned earlier the church was also not prejudicial just to provide clarity on what the government's position is as to this structure it was not required but it was you know the judge decided to give it for a reason and that reason i think was explained during the charge conference when the transactions for were discussed the judge indicated that he understood that you could have a case in which you had a stream of benefits agreement in which no benefits were ever received because the agreement itself is the violation of the statute but he said that that was never the theory of this case and because this case always proceeded on the idea that benefits were actually handed over as part of that agreement he decided to give this instruction and again to be perfectly clear the government's position is that the unity instruction was not required and that this conviction could have been obtained without it it was requested below and pursued below i think out of an abundance of caution in light of some uncertainty as to how far this court's decision in will would reach i think it was also  process considerations that seem to me to be obvious right well i don't think the government's understanding of mr lopez argument in this case is not that he's not making a variance argument i think the only argument made in the briefing was this construct an argument  an indictment whereas a variance is an entirely separate now says that has to do with prejudice and it focused on focuses on whether or not factual differences between the indictment and what's proved to trial you know cause some prejudice to the defense and so i think again i don't take history making a variance argument and i think maybe part of the confusion here is from that sort of missing piece i don't think the government disagrees that if there was the inconsistency discussed between the indictment and what was allowed through the jury instructions that that would be a variance and then the proper analysis would be whether it was a presidential parents and i think the answer to that is clearly no but but it unite the government doesn't understand  they had to find beyond a reasonable doubt and you know mistake that one particular benefit was accepted as part of this agreement and so i think to the to accept there is any sort of inconsistency there it isn't raised by the fact of this case and i would also just you know note that even assuming there was some sort of error in the instructions with respect to the instruction or the stream of benefits instructions none of this was objected to a trial so this is all stipulated to with the federal program was or stipulated that there was a federal program that's correct it was just the record tell us what the program was no and i'm afraid i actually don't know the answer to that i did what was in the stipulation