cases really troubling from the defendant and defense attorneys for a number of reasons first of all i think i want to talk about count one because that was the letter of august twenty first two thousand  and it developed after it was clear that the v a was not going to be able to fulfill this road servicing materials contract government characterize that as a claim and that it was material and then say that it is and characterize it as a man in their briefs and that's not accurate and if you look at the exhibit to the appendix and there are a couple of drafts of that letter that s s i is asking for a stockpile of requests it's not of demand it's not a request for payment in the context in which it occurred it was in response to communications saying if you want any money then you have to put in a stock at any time because they have adopted a long term improvement program structure program that this particular road section that was the subject of this supply agreement was actually scheduled for rebuilding in the future and the supply contract was really a temporary maintenance until they go in the context of a stockpile request it is a ridiculous way of handling a nonperformance issue under a seasonal contract for road maintenance materials the reason for that those that asphalt materials are not the type of materials that are subject to a stockpile just as that term ordinarily used and good ministration of government contracts you just don't stockpile asphalt either deliver it or you don't deliver it because it takes minutes and you have to mix the material and then take it to the drivers to be applied there is no contractor who supplies asphalt materials who will put together in a tank a mix of asphalt materials they can't do it they need the plant resources to hold the raw materials encouraged to submit real short term a proposal and they got a contract remedies and they could have sued for breach of contract what i think happened here that this was a wink and a nod arrangement you know your good guys you your promise to deliver this we decided that we didn't want to use it couldn't use it we should make a stockpile request for make use of we'll get you some money and it's not a confrontation confrontation issue although that's the best analysis that proposition it's actually a fifth and then the search and seizure violation if the u s attorney commissions and individual who is offering up a fraud case or written proof documentation to prove their fraud case in exchange for unity and the guy goes out steals it i think relationship with a bookkeeper and they went in there and got it without the consent or permission of the owners i characterize it as a theft that's a little heavy handed but they sure as heck didn't have authority to remove it and it does constitute a simply very it was over nobody would have gone back to that particular deal file because it was closed out but he says not there's a problem there's a problem here and i'm sure accusations and then we're going to take his word for that was that that was one of the real problematic things that we're dealing with the other thing the other problematic thing and i don't know how the two thousand contract season and contract season construction season two thousand and one is a base for the stockpile you want your material for when you want your materials they were never given an answer of course and there was never ever ever any demand for the structural and and i suppose that doesn't excuse taken money from the government that it didn't actually earn but the idea was that these guys were told how t and also i think that he should have instructed on the issue of subjective good faith subjective reasonable belief the people that the government was dealing with here were not sophisticated people should've had an objective standard and i think there was enough evidence even though we didn't get out of the fans that early should have at least been given an opportunity to consider partial untrammeled because we did put in the evidence that this was an invitation from the submit a fictional contract from his employer ought to be somehow suppressed and that that should have come out in relationship to his communications with his attorney i believe this is how it came up to trial and really there's a couple issues that need to be raised there first of all if it was a cross examination issue with regard to mr nelson and he was already permanently excused at the time that this issue was raised but more importantly the defendant was attempting to number one cross mr nelson with some evidence of bias some evidence that somehow he was alf's to get the defense that he was really going to bring evidence for encourage the government to make this enforcement to that so clearly that element of bias is already established in the record and there was no need to breach an attorney client confidence or to go investigate further to raise that issue well the second finally on the point that mr stevens raised the valve whether or not the government ever actually intended to prefer in this contract you know some of that testimony did come out of trial there was quite a bit of collected if they had properly raised some form of breach of contract or a claim further down the line but at the time that would have come up the defendants had already submitted blatantly fraudulent documents to clearly the entrapment issue is something that the judge or trial needs to weigh based on the facts and actually test the test for that is whether or not there are rational whether the court can zimmerman the misleading impression that somehow he can submit something that wasn't true and i think the final point to be made on that issue is that if in fact is that a cost purchased for this project was sold and in fact it was gone by the fall and winter of that year where in fact there were telling us that it was still stored but you do raise a very good point your honor and i think it rai agree there is there is a real conundrum here as to what to do with these cases that went in before the blakely decision and in were sentenced very well the law came down and i think the best examples of what we can do are found in the stevenson this issue was not raised in the opening argument and i didn't hear the government response to it if you do wish to address that i would be inclined to allow the government to respond so it's to make sure i understood what you said you're suggesting that mr johnson did something today that was unprofessional and and misrepresented something to the court a draft that i had requested to review the standard we consented to be obviously because when we got indicted so there was no sense to it but it was not a voluntary disclosure the rule seventeen return and in that return was specifically stated that this return is being made without any waiver of rights objections or motions for the governor of suggestion that we either  purpose for that in this case which i think i'd like you to understand the purpose for having that letter in the discovery was to show that the defendant had been telling the same consistent story about whether this material was next blend or we would go back and realize and come to the realization that the defendants have been telling a story all along on that subject and the problem became well they wanted us to see it and the problem we came at trial they