please the court opposing counsel your honor is raised here today because there occurred mr hugs trial a constructive amendments to the charging document to the indictment in this case  i would like to begin my argument by stressing that this court does indeed have jurisdiction to review the constructive amendment that i actually heard in this case now the government does argue that this court is unable to review the those cases have been modified by united states versus a no which the circuit has recognized on at least two occasions first in the united states versus prayers and again in the united states versus byrd essentially what this court recognized is the fact that review is allowed even if as happened in this during hugs case there was an accident or and a curtain in the state on the part of the defense which occurred at trial leaves relinquishing that right in this case mr hugs did not affirmatively relinquish his right to have his gaze reviewed by the grand jury and then had the exact same elena's and charges presented to the jury in support of its argument that a constructible minute did not actually occur in this case the government relies on united states versus key in that case this court reversed reversed in the action for involuntary manslaughter because the indictment fails who allege to essential elements of the offense in the charging document in that case the indictment charges the defendant was driving without due caution and circumspection which connotes jury and all the judge chance to the district a chance to read it read that juries instruction at trial it went beyond the simple charges that were contained in the indictment irony in fact i'm sorry your honor that you have any impact on this trial is your client prejudiced as a result and your honor i think that's the critical question here and i believe that he was the reason being is that we don't know what happened in that jury room we know that at trial the government's expert might and can a highly patrol officer who made his determination as to who was driving at the time of the accident was  because the the additions to the indictment less than the government's burden of proof such that when that when the pay t v generated with her leaving this case and hind the facts and circumstances of the government even though the jury had the indictment in front of it it also had this instruction that the district court he gave and which which went beyond the simple charges in the indictment it went beyond the  grand jury and that includes the right to have all of the charges brought against him as trial reviewed and approved by the grand jury the only part of the only part of this case that we know for a fact had been manslaughter cases basically states that a court needs to define what gross negligence is and again the government needs to prove gross negligence and an involuntary manslaughter case that's however on top of that the united states still needed to prove the gross negligence and the ninth circuit jury instruction basically that was given by the court that basically in the first element goes on and defines watch a unlawful manner or with wanton and reckless disregard for human life so actually there are three ways to look at it but the bottom line is the courts still needs to instruct and define what gross negligence  decided there wasn't an unlawful act committed instead there was another alternative and under the instruction that appears to be sufficient so how can you say the burden is just the same if you don't have to prove an unlawful act under that scenario and under the indictment you  while being intoxicated now that may have something that the talk about the proof of trial might help there's no prejudice but on the first step in terms of whether the construction actually made it harder for the government i just don't understand how it possibly could be said to be harder it seems to be on the face of it that defendant complaint is valid that there is this alternative possibility that at least theoretically the jury could have reached a verdict of guilty without ever finding the unlawful act which is the promise of the indictment so if that radically possible then you better move to why it was not the case here and why there was no prejudice here absolutely no prejudiced the defendant was charged with involuntary manslaughter on a certain date at a certain indictment is specific like being one of the three really need to refocus on the proof for that and the reason that we can safely infer that the jury didn't go the other way there wasn't a combination of other ingredients or standard evidence that makes the plausible of the jury by the accident which was again caused by the defendant driving while being a chance to get the court also instructed in one of the instructions i do not know which number it is that what that  was obligated to read the other alternative bases for connection because the government because the district court was obligated to describe the gross negligence of teenage to the teacher and in fact the government was obligated to include that in its indictment and the government was obligated to bring that to the grand jury under the fifth amendment accordingly your honor we submit this case to the court stressing the fact that a constructive