the government is essentially conceding that the prosecutor urt in arguing conversion to the jury and i think they're pretty much conceding that it was error to give the conversion instruction their contention is that well what happened in this case though was that the judge the judge also instructed on the stealing theory in the united states those that were found correct and but i don't see why there should be they do have that were found but theoretically if the social security ministration was on  notice if they knew that this woman had passed away there i think sort of equitably there should be the same argument i would note that the government hasn't disputed in their briefs the only argument they can raise was waiver they never contended that i was wrong as to these national imitations argument so to the extent that the court has now addressed an issue that hasn't been briefed before i would at least like the opportunity to research and briefing the government in their briefs never made that argument so to the extent that the court is going to reject the statue of limitations argument based on your honest reasoning that the word found distinguishes thirteen twenty six from the social security what i would at least like the opportunity brief it because the government never raised it and i think that the court should just consider that argument waived because they never raised it maybe they  by the government look the second argument as to count two is the representative payee argument and the i think one of the important issues of principles of statutory construction i think both sides agree on is  there and i believe that the insertion of those specific words is an indication that the statute only applies to representative payee s and if the quote agree is i think it's undisputed that mr newsome was not the representative payee for his grant for his mother and therefore there was insufficient he would like to know felony convictions on his record that's his main concern right now and the final issue that like to raise is i just want to talk a little bit about the prosecutor's cross examination tactics of the government concedes that it was playing error for the prosecutor to ask  assuming hypotheticals of the character witness and in addition there were comments that were made by this prosecutor during the cross examination of mr newsome that i think the government can see there are totally uncalled for for example on one occasion a prosecutor said i take issue with that mr knew some of the agents testified contrary to that there is when you combine those types of errors in the cross examination of mr newsome with the guilt assuming hypotheticals what you have here is essentially a prosecutor who is stating i know you're lyin is right i know my agents are telling the truth and he's impermissibly valjean for the government's case and we have a case right here where the government concedes plain error on the guilt of some hypotheticals and we can see that some of the prosecutors cross examination  i agree i can see that it's playing now rests the guilt assuming hypotheticals and i believe that there were some of the questions of mr newsome there were objections to others there weren't to the extent of the court want to say it was insufficient to preserve the night it was playing our i still think we've met the playing our test here in particular if you look at some of these cases on prosecutorial cross examination for example gaston which is the case we cited that was applying our case so this clearly is reversing for these types of errors on playing our review and again well there's a risk let me tell you this and i've seen that's the thing happened well i get the point i make is if there is no double jeopardy problem with that happening in there maybe and i would need to research that i don't know you're going to be record it's hurting his employment opportunities and he's given the fact he said no problems on probation this entire time that we're up here i think it's highly it would be unusual for the judge to impose prison time the second time around if you were to be convicted the affects both counts pertaining to cross examination of the character witnesses the parties agree that the questions were improper the question is whether there was an effect on defendant substantial rights and whether the fourth prong is mad here this case is exactly those facts would not change my opinion and that's what the witness consistently said here it would surprise me it would surprise me it would surprise me but it was as a player this is a player issue the part that's the government's point it's not plain error because essentially the witnesses answers bolster the defendant's case and as this court court pointed out in schrader there's every reason to believe that the defense made a tactical decision not to object there were errors made but ultimately the question that this court has to decide is to those errors mean that the defendant did not get a fair trial and in the proudest pro we've seen from the u s attorney i agree your honor that this is not the proudest performance but nonetheless the question that this court has to decide is does this performance require reversal and in order to do that we have to examine whether there really was  whether that was plain error and look at the prejudice with respect to the cross examination of the defendant that cross examination was not improper this is not the same sort of situation as in combs and gaston sanchez those cases stand for is the proposition that it is improper to ask one witness to a pine that another witness is lying and the reason for that is essentially that it is not the role of a particular witness to make that determination that's the jury's role that is not what happened here at all what happened here is that the prosecutor asked questions concerning documentary evidence the government had a particular interpretation of that documentary evidence and the defendant claimed that that documentary evidence had a different interpretation and those are perfectly fair questions as the cases that we've cited in our brief indicate and we started some cases of pages forty six and forty seven of our brief from other circuits as well as the decline of he's from this circuit which really differentiate between the situation of point blank asking well if a government witness testify contrary to you are you saying that that witness lied that's improper but to say well are you contesting the documents that's a perfectly fair question and that's what happened here if you look at for example page one hundred six of the e r the questions were well did you hear the testimony that the social security records that the change to direct deposit didn't occur until one thousand nine hundred ninety six and the defendant says i heard the testimony but that was not the case question so the social security records are wrong that's a fair question again at page one ninety seven there's nothing in the social security records to show what you're stating in the defense says but according to the bank statements there is these are fair questions about the documentary evidence and therefore there was no error there  y the prosecutor did make two comments that may have been inappropriate but those were not questions they were not ever answered one of them was stricken and if they were argumentative the jury was instructed to disregard statements that was stricken to disregard questions and to disregard statements of counsel so that is no basis for a reversal with respect to the claim specifically concerning count one constructive amendment of the indictment this record there is simply not a realistic likelihood that the defendant was convicted for a crime that was not charged the district court in its instructions to the jury and chant one regarding the theft of property only instructed on stealing at page three twenty three of the e r there are three elements first the defendant stole money or property with the intention of depriving the owner of the use or benefit second the money blocks the united states and third the value of money was more than one thousand dollars so the jury was only instructed on the theory of stealing they were also given us also explain that conversion is in the statute and the conversion is something different from stealing and then argued that this was a conversion well the prosecutor didn't directly argue that it was conversion there were some references that the prosecutor made alternatively to stealing or conversion there wasn't a portion of the argument where the prosecutor specifically argued this was a conversion and you should consist on that theory the reason the defense objected to a definition of conversion was that all the evidence pointed to stealing and that is exactly what is true in this case there was no evidence here that the defendant lawfully acquired these benefits that there was that the there was any authorization for the benefits that the mother died in december of hundred ninety three which is the earliest that the record shows the payments could have been made so they were never authorized the can to a lawful acquisition which was then converted the government's theory and it seems that the conviction on count two would support that would be these payments were consistently an authorized there was stealing i'm referring to the closing argument defense theory that these benefits were ever lawfully acquired the government's theory was that they were never lawfully acquired because the defendant had fraudulent we failed to disclose the mother's death and subsequently receive the benefits that was the theory of count to one which the jury convicted so really only know the difference between feeling and conversion and that is certainly possible but ultimately the  court has to make is whether there's a realistic likelihood on these facts and these instructions that the jury convicted on a conversion theory and the facts in terms of the evidence the trial and the instruction that was given by the district court which referred only to stealing simply does not create a realistic possibility that there was a conviction here based on a conversion theory only in the same question i asked mr coleman the practicality of this if we were reversed on count one what would happen goes back and retried or you are i can't really speak for sure to what he would retry the defendant on count one but if the conviction on count two were to stand certainly sentence could be imposed on that conviction and whether that would be the same sentence in all honesty i don't recall exactly what sentencing argument that the government made are two claims that go specifically to count two one is basically whether the statute must be interpreted to sort of have an overlay that only representative payee are covered under the statute and essentially what the government's response is that the defense is calling on the rule of lenity and the rule of lenity simply doesn't apply here because it applies only if the statute is truly ambiguous this statute is not truly ambiguous simply because there is a possible other or narrowing construction if congress really intended to limit the situation so  representatives pays it would have said that in the statute instead they did create some other limiting language the on behalf of language which probably in most cases would refer to a representative payee but it can also cover broader situations like that here if you took out that language entirely then the coverage would be found broader than what we have because the defendant suggests that essentially any person who has knowledge that some other party time is on the source and thank you very much if you call me back to you are vital thank you on that last issue i believe the representative payee issue was preserved now the specific argument wasn't raised but a rule twenty nine motion was made it was a general of the evidence claim so i think that that issue is is preserved on that particular issue also we have cited the beni case from this court which basically says that for fraud which there is a requirement a fraudulent intent here that generally a to be convicted on a failure to disclose theory for fraud there generally has to be a statutory obligation to make the disclosure and that's why that reinforces our argument that this particular statute only applies to represent the piece plane there on the cross examination again it's a cumulative effect and when you have a prosecutor saying well defendant is testifying to his own innocence even though their testimony referred to the agency you heard here indicates that's not true he's making flat out state