instruction that was given under the circumstances of this case was plain error whether or not the government violated due process and deprive the defended of a fair trial by vouching for its most important fact witness and whether or not the trial unusual and those circumstances include this this instruction was requested by the government and i don't know how many appeals this panel has heard where the defense has complained that they didn't get a good faith instruction but the government almost the firefighter who was overstating the fact in making a bank loan claim that he'd done so by mistake in other words was arguing negligence rather than intentional lying but claimed that he did not believe the pensions funds interests would be harmed either in the short run or the long run and and i'm i'm using those that phrase from the government in order to try to crack at what i think that the distinction between the parties arguments are here about this good faith instruction the government seems to be saying that here the defense was that wow we're going to commit fraud but we think that ultimately you'll be paid back and that's clearly not the only possible defense version interpretation of the evidence that the jury could have drawn if the jury believed that mr parker had had fooled the appellant these you burlingame here into believing that he really had all that collateral that twenty two million dollars and the power of attorney and all of all that yet all those again which he testified he didn't really have but he had all this all these artifacts to fool people about if the jury believed the burlingame believed that there would be no intent to defraud in the short run or the long run but the government and you can see this room the entire way the government handled this case in their opening statement the government i believe discloses its concern that the jury might think see burlingame believed in this scheme that she thought it was really supported by the collateral and the people would get loans because you believe part or so what they told the jury was you know these cases law is all about lies and  elements that ways of false statement and i submit that virtually any intentional for statement is made with the intent to deceive but that doesn't really address whether enough that the defense is still available understood record it certainly was a possibility that the jury believed she thought there was collateral she didn't think she was defrauding people into parting with their advance fee in order to get a loan that was never going to be given but that she told othe took the extraordinary step of asking for a good faith instruction that was worded exactly this way from an avid circuit model instruction was because the government realized that what they really couldn't prove convincingly was  for parker the question really is you know i think that i think that's a difficult question here but i think the course of look at a couple of things one everything almost everything that the prosecutor did the reasonable inference would be that this prosecutor was saying he didn't lie to you folks and i'm going to have to stand up and make that argument so that this judge though i wouldn't be able to tell you if i part i'm lying either for things you've heard or things i know he's not going to get  felching and what we're concerned about is that the jury will just take the prosecutor's word for it rather than making their own assessment about the credibility of the witnesses the strength of the evidence and that they'll do that either because it's the government and we just believe what the government tells us or because the prosecutor must know something that we don't know and that's and that's what we're afraid that the jury's going to do and i think that if you look at the prosecutor's opening statement and the challenge opening statement in that context what you see is that not only was this not improper about showing it was very very nearly the opposite of improper about you because that the prosecutor was not saying sit back relax on this point you don't have to worry about this you just take my word for it and he wasn't saying up with this whole scheme i mean he's not an honest person but it's your job to test his credibility it's your job to make that determination and the way that you do that is you compare what he says to what all of the other witnesses said you compare the evidence that has with all of the other evidence before you and only on the basis on solely on the basis of the evidence before you when you do your job of the stressing his credibility you're going to find that on the key points what he says matches what other people say now yes the prosecutor used he didn't just say you will find he said i guarantee you will find in the context of that statement i would say that the use of that phrase i guarantee it was a predictive it was a rhetorical predictive here's what the evidence address the truth provision of a plea agreement in response to attacks on the witnesses credibility by the defendant based on the plea agreement and that's what happened in this case of course the prosecutor didn't mention the plea agreement at all until the defense counsel was of fairly sustained attack on hamas examination wait a second you've got this plea deal doesn't that mean you're going to tell him you're going to say whatever the government wants you to say and only after that cross examination on redirect to the prosecutor elicit from mr parker his understanding that under the terms of his plea agreement he is obligated to tell the truth just going back to that so the opening statement though i think i really do believe that there's a difference between between saying i hear  v that this person is credible i take my word for it i guarantee he's credible and saying i guarantee that at the end of the day you're going to find you when you weigh the evidence when you look at it and what he says and you compare it with everything else in front of you you're go find that he's credible and if you look at that things that were concerned about i mean the two concerns of improper vouching are that the government that was jury is not going to make its own assessment and you're you've got the prosecutor assessment and you're going to find that what he says matches what what the other witnesses if you have any other questions on vouching are all talk just briefly about the the good trade instruction i think the first thing i'd point out about the good faith instruction is that even within the instruction itself it does make very clear and it's reprinted on page fourteen of our brief that the government must establish beyond a reasonable doubt that the defendant acted with the specific intent to defraud as charged in the indictment that was said it within the context of this good faith instruction itself it was also said at least five other times in the jury instructions and that's a little bit later on in our brief the good friday defense i think there might be just sort of a misunderstanding about the scope of the good faith defense and what the good friends defense is is that if you actually believe what you're saying you can't be intending to defraud someone if you actually believe what you're but that's just because you believe that in the end everything's going to work out ok that doesn't make it ok to lie to somebody with a specific intent to get them to turn over money that they would not have given had you told them the truth and so if you look specifically  i don't get any i don't get a penny until your loan is funded and i've made thirty million dollars unfunded loans she said she said that i don't get any money until you until your loan is funded she says we've been in business for thirty five years she says will fund and she she told one client one victim we are right now funding loans at the rate of three billion dollars a month now these are things that she that she had to know were not true i mean certainly about her commissions and certainly when she told these defendants that her own projects have been funded well the way that the way that she told the victims that the payment system works she got a percentage of the actual loan you know once the actual loan was funded she's going to get millions of dollars right and so by telling these victims yourself in many other cases relaying lies from mr parker about oh it's just going to be another week it's just going to be another month you know she did she got half a million dollars out of these to her share of the retainer that was being paid by these by the guidelines well i mean she got sixty three months so it would have been a whole lot less i mean it sounded to me like it could have gone down as much as from sixty three to forty five but i don't think it was limited leaning and is actually appropriate in this has he was clear enough in denying her i think it was when he denied her motion for bail pending appeal he was clear enough that if he had had the discretion he would have liked to go down to somewhere in the forty five to fifty range