the government need not prove that the defendant was involved in fact they merely have to prove that the defendant as a active member eight or in a better or a coconspirator agreed to transport property that he or she knew was stolen but it is not uncommon that the government's theory they do have to prove that the property was stolen and it is not uncommon go it causes confusion at times to have a situation where the government's theory necessarily is that the defendant was involved in the theft and in that situation of course to prove it stolen if their theory is that the defendant stole it or was a part of the conspiracy that stole it they have to prove that the defendant is guilty or whatever the underlying form of theft is this was charged as an interstate  transportation of property case and government rose in closing argument and said that their theory of staff was that the illegal taken had been accomplished by bribery we raise this on a new trial notion that this was not a theory that was either pled well or or instructed on the government's position even though and i have the quotations or in the brief even though that time and time again they had know i agree with you and let me let me move to that because you can have a situation in which someone is private and they get a contract actually to the best well qualified competitor there's no loss to the employer can have a situation where someone is by then they deliberately give it to this case well that that is property fraud that can be property fraud all i'm saying is that if you're getting into that situation and we've excluded honest services fraud as the government's theory which the government although it argued it disclaims now then we're into the property fraud theory and the problem there your honor is simply that the instructions on fraud were constitutionally deficient because they left out for two reasons one the indictment did not contain a reference to a theory of misrepresentation or specific misrepresentations and equally of perhaps more importantly when the trial judge instructed on on fraud property for what they left out the materiality requirement of another so the instructions on property floyd are missing a critical element materiality and we submit although it is very clear that the council did not object to the instruction or request a proper instruction it's got to be dealt with on the plane or a test or materiality as a requirement yes or no i mean if you  the government will say well i t s p it's the property merely has to be stolen right but if you were a theory of why it's stolen is that the defendant in gauged in they'll fraud to obtain it then you have to prove the underlying if the defendant said no i didn't rob then the jury has to decide whether robbery has occurred in this case the government is saying our theory was fraud the court instructed on crimewatch i have two  silvio gallo took computers and hid them in her coat and walked out of the plant she might have engaged in an act of theft but she did not engage in an act of thought fraud involve misrepresentation and in a material misrepresentation of known the theory of embezzlement was offered to the jury the theory that was instructed on it was fraud and if you have fraud you have to have a material representation and your honor frankly from this record it is not clear she may have engaged in a number of acts that were dishonest in one sense embezzlement is dishonest but not every form of  before this court on this question that on the net or there had does have to be a material misrepresentation what we have chosen to focus on is that there's a clear absence of instruction on the element of materiality a sense bribery is the relevant the government argued bribery but by the time of the new trial motion which i did bring it had forsaken that theory bribery is out of the picture it said no this is a property fraud case the problem with property fraud is that not only is there an absence of instruction on materiality but it isn't very clear what the material represented misrepresentation was and to end a preface to answer judge traders question yes i agree that there could be all forms of sorts of forms of  but if there were if it was intentional mental or something else sort of conversion you have to instruct the jury on nose because without instruction on the form of theft they're not in a position to decide whether in fact the property was stolen  obviously this is not an insufficiency of the evidence case but it's is important that the government offer sufficient evidence as important as that requirement is the fact that the case was decided under proper instructions and full instructions from the jury and we would on which the jury was constructed which was fraud but there is convincing evidence of a material misrepresentation this may be a case in which the government would have been better off arguing a form of stuff such as embezzle transactions by putting a price on by omitting to acknowledge that they were not standard price transactions which was she had no authority to engage in any transaction below set a price transaction without express authorization  choir to start the bidding at two hundred dollars and the choir starts the bidding quite openly at one hundred dollars they may have transgressed their orders but they have not committed a well your honor i haven't gone through the government's reply then we're talking not about the change we're talking about an affirmative misrepresentation that she didn't do what she did do and i haven't seen evidence of that in the record  i mean the it rises and falls on whether the government has been able to prove a point to undernet or overwhelming evelyn's of the element that's been admitted in this book which is in this case materiality  and i will just correct it is not the case that the law in this circuit is that you don't need a representation or a material representation you know what would says is that you can have a material representation as much by silence in certain situations or half statements they can be equally misrepresented tenant misrepresentative as an affirmative  is required as opposed to merely deceptive conduct which i view the year ago in this court room so  know it's definitely you know the mail for context definitely we have and you know the final point on that is just that you could not have a situation where a court said you have to find the property stolen and did not inform the jury in any way of what the notion of theft is i mean whatever theory of theft the government relies on is one that has to be instructed on how it's going to jury i don't think you can operate simply by use of the english word stolen and make an assumption that that the lead the property holder to surrender property and i'm not saying that is a matter of law that couldn't satisfy them it's sciri ali required but i certainly would think that there is that that is not another political