now we have that the complicating factor here that even though no attempted kidnapping was indicted and tried mr long and was acquitted on that charge and we bring to the court  distraught nature of allowing that to go forward we contend in the brief that the trial would have been different would have been otherwise handled maybe by the defense we had to make a decision mr wong i did whether or not he was going to testify given the existence of the attempted kidnapping charge he had to get up at least in in his mind before that jury and tell the jury just really all crowded together i mean it was just it was one incident and it's true you know as players and judges we break it down but it was one incident that he just one of not it's just sort of seems that if he wants to can pass that incident he's got to make a decision one way or another how he's going to approach it i don't i i'm having a hard time seeing how you just pull that out of there well actually or i think that's kind of unfair it's unfair for the government to charge something that they have no business charging in the first place and then take this to trial want to make the guy incorporate that into his analysis of whether or not he's going to testify so he has to get up before the jury and say no i didn't ever attempted to kidnap this woman there was no question from the trial evidence that there was no kidnapping in the back and there was no kidnapping on the back of this this continuous event as the court described it as your honor that's right when you're talking prejudiced what are the worst parts of these facts because she had a whole bunch of injuries she did that were sort of know each other that had there was no long ongoing saga between the two of them no no question about that i'm i'm struggling with how that kidnapping really was and if you believe what the state's case was what was the kidnapping pulling her into the bathroom well i guess  now pulling into the bathroom i guess we did convince the jury by the testimony and from the government's evidence that he didn't that he didn't do that that there was no kidnapping on the front and on the on the front end of the incident and it did resolve itself i'll agree with your honor to whether or not there was a kidnapping around the bathroom incident and that's what he got in the box to talk about was that i never intended to take this woman from one place to another i never intended to keep or in a place against her will and he suffered because he had to get up and deny those things and he suffered by the fact that his negligent homicide conviction came up that was prejudicial we got to spend less time as the defense or on hammering home to the jury the fact that there are the injuries could happen to different times the woman's memory was not altogether maybe what it should have been there have been a lot of franking involved circumstances alter cases and i think that given the way the case was presented to us by the government we had to act in a set fashion and really couldn't deviate from that course you take out the thank you kidnapping charge we defendant maybe a little bit of a different style and the government says well it's not prejudicial and that's sort of mantra like in their brief but why did they get to charge something that we contend they should have been charged to begin with and then come in under the no harm paradigm and say no harm no foul the west issue we bring involves the jackson instruction and the district judge in this case it instruct in one style we requested specifically under this court's decision in jackson for an express direction to the jury that they could go right to the lesser included offense where they inclined to do so because trick judge rejected our instruction in favor of an oral instruction that we can stand the jury would have been hard pressed to figure out that they were entitled to go right to the lesser included here i would only point out in terms of the record the fact that the jury did send out a note fairly early  deliberations wanting to know the difference between the two offenses the western the greater at least in terms of definition so they were looking at that subject whether or not they believe that they were entitled to go right ahead to the west or deliberate on that and compromise the greater offense in the process is anybody's guess and i guess here i want to harp on the fact that this particular district judge does not hear of written instructions to the jury does not give them a copy fairness to the government if the to destry has a copy of the district judge's instructions and reach them and he's able to consider them in sort of a deliberate fashion they can parse that out and they can figure out what the jackson rule is and what their entitlements of the jury are but that's not the case here it was just an oral instruction to the jury it's kind of wispy and if they didn't get it on the first pass they just don't get  so that's where we are thank you brief we certainly believe that it is attempted kidnapping as a portion of the kidnapping statute under federal law such a level fifty three which enumerates the crimes the numerator of or a number of crimes which also include in their substances attempted kidnapping like arson and robbery both do also and we believe it would be an unreasonable parsing of the statute to suggest that when section eleven fifty three says the foll separately defined and separate statutes for the sex offenses which is which is what congress simply wrapped them all up by citing kidnapping we would argue the wrap up attempted kidnapping also with for mr long there seems scientist in the gist of his argument is that he wouldn't have testified his defense would have been different if the kidnapping charge had not been properly and properly had not been improperly joint and i asked him about well how do you really separate that out in one instance what's your response to the prejudice argument well response is that it is just one big instance it's all in the same day an ongoing dispute between these two people and that happens at a variety of different places and i responses the united states would have introduced all that evidence anyway to show this whole picture of this ongoing dispute on this day so i don't think there's any evidence in the record or any reason really to believe that the senate would not have taken the stand in his own defense specter that's excuse me that he spent most of his time  countering the charges of assault and with respect to the kidnapping i think just said i didn't do that and obviously the jury believed him mr donahoe suggested that his challenge was to separate it out and we would suggest that he did a very good job of separating that out based on what the verdict was the jury apparently was able to separate it out acquitted on the kidnapping and convicted on the other charge with respect to the and i would say your honor with respect to  government's theory of the kidnapping and i think if you look at the beginning on page two seventy three of the excerpts of record where mr thagard trial counsel for the government is arguing that what mr longneck did here to kidnap  kicking woman was deceived her into coming with him saying that i'm not going to give you a beating come on let's go home and then says that he is going to give her a beating when they're in a dispute later on at the convenience store he's again no now come on the same sort of activity trying to trick her into coming with him as a means of kidnapping and the attempt of course is that he was not ultimately successful because he was arrested with respect to the jury instruction i would argue also that that if if it's the felony proposed instruction i think would have been just as wispy as the court course given instruction since the court reads instruction and does not provide a copy there's no reason to believe that the court would have provided defendants proffered instruction in a written form with the court either and i don't think the defendant has challenged the district court's decision not to provide written instructions to the jury finnan argues in his reply brief that the issue boils down to the jury whether or not the jury understood that they u bodily injury before considering guilt or innocence on the lesser included offense the given instruction says if any of you are not convinced beyond a reasonable doubt that the defendant is guilty of assault rep resulting in stronger for the defendant than his proffered instruction that says if any of you considers him not to be guilty you may consider this other one in other words no requirement of unanimity of acquittal and also at the very best for the defendant i think those instructions state sanctioned the same thing and i would argue that even says it more strongly at least the part that he's concerned about is more strongly offered by the courts given instruction so unless this court has for the questions