i'm going to ask to reserve three minutes of my fifteen minute argument for rebuttal and in those twelve minutes i intend very briefly to address three issues the first issue with good faith second issue dealing with the requirement in instructions on the left of pension funds on the last four counts and very briefly on the statute of limitations issue on the good faith issue especially the government's position is that the defendant requested instruction could be refuted the court's instructions were the same adequately and what i'd like to point out is that changed if not requested by the defense and let me just give a quick call a straight if we have a situation in which a contractor is negotiating with someone about painting a house and a contractor he wants five thousand dollars to pay house and the owner says he'll pay five thousand only if the garage is included and there is some vagueness about the discussions and at the end of the completion of the house the contractor asked for the five thousand and the owner says no hired to paint the garage as well and he says well give me the five thousand today and i'll paint the garage tomorrow it's an absolute lie he knows that he's not going to come back and paint the garage but he's convinced that the contract the final settlement was for the case would have to do for the garage if he honestly believes that the contract is for five thousand dollars for the house but he is not committing the crime of fraud when he takes the five thousand dollars even if he makes a f definition of good faith and that the defense was intitled to what is really a different instruction and that is the one that request let me the subject of questions let me just very quickly go  a theory of transistor understanding and what i'm saying your honor is that if that theory had been incorporated in the indictment i wouldn't be here necessarily arguing that the government had not charged and proven that element of the charge crime and the court said it wasn't instructing on it then either that means the indictment was sufficient for failure to leave out that element or alternatively that the court added elements and changed theories when it instructed and that's a construct of amendment of the indictment i'm not here to argue that that there aren't series of steps that this evidence certainly on appeal might not be sufficient to sustain i am simply arguing that the theory that the court eventually decided should go to the jury contained elements that had not been charged were not in the indictment and therefore the indictment was necessarily expanded is the sum total of the the argument on th point this is apparently an issue of first impression not only in this circuit but from what i've seen in all circuits and it has to do with the meaning of the the amendment of thirty two eighty eight which allows a ca be recharged within a six month period after it's dismissed this court decided the paladin case under the prior version of the statute and ruled that under the prior version which talked dismissal if the defendant the indictment was defective or insufficient for any cause and said well even though that's true if you dismissed on speedy trial grounds and then you're past the appropriate statute of limitations for any reason doesn't mean for any reason because there's further language in the new statute that says well not if there's a statute of limitations violation that it was dismissed for or any other reason that would bar the prosecution based on the notion that you can dismiss an indictment for many reasons get a six or year but the very reason is a failure to act quickly enough under the speedy trial act when you combine that with the statute of limitations d submit to you that if it was the congress intention to make a statute of limitations violation the only exception to to the six month grace period it wouldn't be included the language or for any other reason that would reasons and that's why i'm directing my question to that time well there is an element of the dividing feelings in this your honor but but i suppose one could say that that congress could have been aware of the exhausted my twelve minutes and i'll reserve the remaining three minutes  court my name is lawrence lay i'm an assistant united states attorney here in san francisco and i represent the united states in this case to let me enter into dress the good faith instruction issue first  two points i want to make the first is that the district court's elements instructions in this case made the premise propose good faith instructions are necessary and the second point is that instructions were unnecessary the general rule which we cited in our brief is that the court where the court has adequately instructed on in fact to the fraud that defenses and entitled to with a good faith instruction and the jury was instructed on the intent to the fraud here in the standard instruction can't deceive or cheat in addition there were two other mens rea elements that we don't  our brief but i want to take the opportunity to call to your attention now there in the excerpts of record you could see it with respect to each of the offenses in question the senate also said with respect to mental states that the government ha hypothetical he gave us a far distance from the factual context that we have in this case and but for you before you i understand that you don't agree that the t conclude that his hypothetical defendant had not intended to cheat they would look like what they would have allowed a jury to do is construct factors that the friends in that hypothetical would want them to consider namely case would allow in our case what allow a court in that case to consider those points but what they would not and what's wrong with the defendant's instructions here that they would not allow the jury to seize on an isolated point not fact and use that the presumptively resolve the case and here is what's wrong with the fence instructions that they propose d when i say the storage the meaning of intent to the fraud and they equate the defendant's disclosed belief which we don't have in that hypothetical by the way they  instructions here equate that offended disclose belief in his in title meant to the proceeds with a lack of intent to defraud now what that does is negate the government's intent to the fraud no matter how strong the let me be specific about it the instruction instruction the fed has given the course has not been adopted by any any federal court his principal citation for his support for the instruction is to general common law principles in his instructions don't take into a fact factors that the common law in the factual context of this case the defense never disclosed and never intended to disclose his whole leaf in his in title months in fact he he lied about it and when he was asked about it by a representative of the bank first california mr hands he was he said well let me read the and mr chips he denied that and said it was nothing but mudslinging and bad eggs and said that subcontractors trying to lean on the project for other reasons unquote the defendants instruction in this case would cancel addressing at but if i don't complete that before i'm through here let's talk about it some more in the factual text of this case the defendant since proposed instructions take out don't take into account the fact that the friend was creating a substantial risk of harm to the project this is something that the common law would take into account if we were ever really want to refer to the common law  the project in this case was cashed our way over budget the defendants kept on taking money for the building of this very large residence they were on the bills and one subcontractor golden state lumber over one point three million dollars at the end of the construction of the pension funds for closed projects that the pension funds collateral for that foreclosure was impaired i thought they were building putting sticks of lumber and and pipe on a pension and condominiums in santa rosa instead they were partially building a residence in months but no indictment may be returned where dismissal was for the statute of limitations reasons or quote some other reason that would bar prosecution there's not a lot of ambiguity in that language that i can see and there's no room for a rule of one of the which only applies when there's ambiguity the the reasons that would bar prosecution should not under this language include a dismissal with how prejudice under the speedy trial act they might include dismissals for double jeopardy for other reasons that were found to be where the cases that talked about that old statute in any grade so we don't have a lot to turn back to there that at least i found and so what what conclusions if any can we draw from what congress did with respect to our old well with i mean why is it one way to look at it is they didn't like our case and they changed it one our most important one of our most important point with respect to whether or not the court's instructions and then to constructively amended the indictment in this case is that each indictment in a federal case incorporates the principle section to a theory of liability theory of liability of causation specifically that if a defendant causes an act to be done by another which if done by him or her with a criminal act then t  in this case and successive amounts over a two year period of time  indictment when a release of money from pension funds accounts a transfer occurs there was no construct of the matter that language did not substantially change the indictment had come to the conclusion from my prepared remarks in this matter i still can't remember that point i was going to make with the court sound like unless the court has another question i'm going to i think that thank you thank you or not the defendant had a good faith belief in the truthfulness of representations made by him so it is then saying that it's an intent to deceive and you can consider faith the belief as to any deceptions in the truthful list of nder any meaningful definition because he has a belief in title ten and that which is correct even if it were i'm correct if it's honestly held his misrepresentation does not constitute fraud and as a matter of law there's a big crunch between the instruction requested and that given by the court what mr lay is actually saying is well but look at these facts even under a proper instruction there would be fraud here but that's  question for the jury under proper instructions he made correct that a jury would say you know what this guy is saying he honestly believed it was his property it's hard wash in tax cases the supreme court has said someone is entitle to a defense that they don't believe that their salary is income if they honestly don't believe that they are not guilty of tax evasion a jury is likely to say that's nonsense that's hogwash you know we he did he knew that it was income but but the defense of a belief in good faith in title meant a belief in the entitlements that the property is a valid proposition of law and it was not given this case and in that sense the trial court erred and we believe that the issue of whether  convicted under proper instruction is one for the jury in this case under a proper instruction