that his employer was going to enter into that theory was pursued in front of the grand jury it is the basis on which an indictment was returned it was the basis on which the entire trial was tried up until the very last moment when decision in adams and it requires reversal and even if it's not if the court does not agree that it's a constructive amendment but that it is a variance of that was offered a trial i submit that it was a prejudicial variance because again the jury heard something reference to the biosphere you know it does go on after an objection timely made by the defense the prosecutor goes on to say this news was exciting enough and important enough that it generated not just one but several was not told beforehand that this would be introduced as a theory he was never given the opportunity of introducing evidence to rebut the very name right what were the key pickles like were they bigger were they small were the cubicles next to him occupied or not well you tell me that there is no case that would transform called an argument into a minute of indictment so we have to make new law in order to make that rul such a close your honor so i don't know where i am in my fifteen minutes but i do want to read two minutes before you i have only five left calculation and i don't think the district court understood it had that discretion and on that basis i think the court could say you did have discretion you could have used a different measure but you did not i think court has discretion we have to find a court abused  because he didn't give any shrift at all to our argument because he rejected your argument you think he didn't understand it's not that he didn't understand it but i think he didn't believe that he had any just to do anything other than do the simple subtraction method he certainly didn't say of review should be plain error because it was not a timely objection on this basis at the time that the comments were made in closing argument the only objection by the defense was that there was no evidence in the record about it no objection was made on the bas closing when reviewing this which puts the a prosecutor's comments that are issue in context if you're trying to say i did not the government repeatedly emphasized that the jury next one if it was hidden in his email somewhere and he hadn't opened his email and he hadn't looked at his email he wouldn't knowingly thats it now but when you look at all of the circumstances in this case all of the lie he's guilty those comments were scattered throughout the closing and i think it's also important to understand that the entire opening closing argument was over an hour there's a comment about that near the end of it and that the dispute in this case must have taken at most thirty seconds to stay and i also want to say although it may hurt my argument to some extent that there was some evidence in the record about the office atmosphere act or the fact that mr forgot had been in the office for several hours that he worked in a cubicle that he had been by the receptionist that this was big news that came in the cafeteria and whole theory presented in the case in chief was proving that circumstantially that the defendant read the e mail that he received and that he used e mail that it was sent to him all of those things and there was not any evidence regarding the buzz theory or anything like that presented by the government in case it was all of the student on cross as a means to challenge defendants credibility that he knew nothing about this contract that he didn't read the e mail because i think a fair inference from the argument being made in the closing is that this was big news if you had to have heard about it and that would have let him i mean if nothing else that would have led him to read that e mail and short response to opposing counsel pointing out that the prosecutors didn't get to credibility in a moment but then talked about the opposite but before talking about credibility well i think you have to keep in mind just the realities of the way people speak and how they get closing arguments i mean it's not to say that the prosecutor wasn't staying exact you know that he doesn't say what he means but i also think people have a tendency to sort of i grasp and they have an idea they start speaking about it even though they may be intended to speak about it later and the fact that she says that right before he says it doesn't mean that it's not going to credibility and that's why i say i think you need to read the entire closing and put into context the entire closing where time again after time again he's emphasizing that the defendant read indictment charges one specific theory the evidence was presented on the different theory the court instructed on a different theory and the prosecutor argued the different theory no no i'm saying there was no evidence presented by the prosecution in its case in chief alleging this theory there was no rocks examining your can only argue causing arguments with raised in the government's case intreat is that what you're telling me now an instruction on that that's different from this case and it's some evidence that it wasn't pretty that it wasn't present it's also circumstantial evidence that in the closing it wasn't presented as an alternate theory it was a perfect attack on credibility as that is also details that were in the e mail that the prosecution also argue in closing was the material nonpublic information that was all the information in the e mail that included not just that in the contract but how big the contract was the timing of the contract what it meant for the company correct correct and i think it's also significant when you looking at could this really have confuse the jury given the context of the trial and the way the information came out given the emphasis in the prosecutor's closing about how they needed one that i think really mandates reversal in this case and which i really don't think the defense can get around and that is this the district court had no authority to depart based on the seventeen disparity because cases state unequivocally that a departure based on sensing disparity can only apply when the defendants being compared are convicted of the same offenses faced a similarity of conduct is not enough conduct arising from things that a fact is not district court would impose the same sentence absent reliance on the invalid factors but we know in this case that the court relied on both factors and would not have departed on any one because it said with respect  one is that the just record need only come up with a reasonable estimate to it really doesn't matter the methodology i mean the court used the most standard which was to take the purchase date and the sales date which were close in time but the reality is there were no argument that there's nothing in sentencing transcript i think if you read that to suggest that the court didn't understand its discretion the fact is the expert testimony and the test mourning the case establish that the vast majority if not the whole increase in stock  due to the x box contract and the government asked for and he was not contested on this issue did specifically look to see whether the overall market conditions and or the and videos being added to the stock index contributed to the stock price increase on those particular during that particular time line and said i look at that and the answer is no to the extent that adding an index may have had an effect it would have been minimal so there was nothing for the court to subtract out here even if you would have to subtract out known factors that were unrelated to the criminal conduct there were no known unrelated factors in this case the testimony was that the increase in stock stocks constant so therefore the l calculation was completely proper and there's no reason to change the date that you take the price that from other than to be i'm sorry other than the purchased one defendant used his entire information to gain a what we have is that they were friends and that were in close contact regularly they had just been to a party together a couple days before what we had is that the tip be made  average purchase that the defendant had ever made before and three times the average person purchased that the to be had ever made before and you have the fact that although we don't have evidence of any communication prior there then you could infer that from the very close timing of the purchase of the stock you do have that the very next day the defendant sent forded an e mail to his friend about the x x time track and i think a fair inference from that is that he had told him about the information told him to buy the stock his friend did buy the stock and so the next day he's sending him information about it thinking won't you be interested in that because he probably just bought the stock like i did and i think that's where the old ana testimony also comes in because that gives a further circumstantial evidence the defendant denies that he told anybody before march tenth but we have a witness who didn't have an interest in the case you know who was in charge of the to me who in fact didn't trade on the information saying well he told me before it was public information he told me before the open trading window and he even told me that it was inside information basically that i was he wasn't supposed to tell me so to me that put up red flags and i didn't buy it so it goes to the defendant's credibility again as to whether he was telling people that they should go on by i mean if he told his real estate agent hey i got it you know you should go out and buy this is going to do you well that runs more confirmation of those rumors by the players and the public announcement that yes in fact this had occurred and confusing that with what the employees obligation as i mean the trading window was closed until march fourteenth or march thirteenth i can remember a couple you returning to the construct of the moment point i do think it's significant that the government now raises the plain error point although i don't have it with me i am aware of case law that says if you raise an objection that generally encapsulates the grounds you want to raise an appeal that's efficiently preserved this court has never been extremely picayune in insisting that the objections be directly on point and again given the circumstances there was an immediate objection issue there is no case in the circuit that a court cannot use a combination of factors where one or the other of those factors is not fully allowable in other then that argument that's not the argument here finally with respect to the point that speculation and rumor and trading window obligations the t