and so security fraud under forty two u s c four zero eight and had both of those counts gone to the jury that the intent issue in some sense would have been settled by the requirements under forty two u s c four  zero eight on that the government proved certain things about the defendant's intent when we're faced with a situation where it's a failure to disclose so this is not you know the kind of case where someone walks into the social security office and grabs a bundle of bills off the calendar and we call it theft and it really doesn't matter i guess if those are the government's dollars or some other person's dollars who got left on the counter in this case that the alleged stealing took place in a eligible and that's a little different comes out a little differently what he does wrong and i actually did try i know something but not a lot about social security law and i actually did sort of try to go through i did not write the briefing in this case i'm handling it for a lawyer from our office  is on her honeymoon but i did go through all of the documentation to try to figure out for myself where exactly at which times she was ineligible for you know versus eligible and had not made a disclosure and i think that the problem in this case is that the itself charge two specific you know years to disclose one was the one i believe the one property the other was the marriage and that those were two things she was supposed to have disclosed on that count didn't go to the jury there's at least that one month where the money from the sale of the property went over that first of the month to date so she has money in an account in her name that's not the power of attorney or anything where it goes over the first of the month and i think that's pretty clear under this law security reds that had she at that point disclose that information that would have disqualified her for at least that month so at a minimum there's one month there that i easily identified where she was ineligible had she made the disclosure to receive the benefits that isn't really so that's a still security fraud issue in terms of her overpayment and i you know the so security mystery she made the determination that you know had they known about all of these properties of the specific times that she had them and they would have made a determination i assume that she had however tourney so that was her money and not her son's money if they don't know that they made a determination that the overpayment was the seventeen thousand dollar amount but i'm not at all clear that that was sort of what they charged when they originally charged the security fraud and i think that's one of the reasons that this is as complicated as it is in terms of the factual basis because the government just as it was stealing to take the money at all  because she owned property from one thousand nine hundred in one thousand nine hundred eighty eight that she didn't disclose on the original form but that's actually it's very hard for them because of her you know original language not being english  if it's their burden to prove that she knew that they're relying on forms some of which were not even her form to prove that and i think that the argument that defended making on appeal is that at a minimum  playing a review i understand that at a minimum there had to be an instruction to the jury that she knew that what she was doing was illegal and when the  not forget and i think there were you know had i done that you know been the trial attorney i might have crafted some different instructions based on those security law but i think at this point before this court with the record that we have at a that the and i believe we agree that that is good enough had the port not been gone on to instruct on knowingly the problem is the government the court then instructed the government is not required to started and so it's if you take the two parts of the instruction i think i understand it's a fairly nuanced argument you're making on plane air review if we kind of look at it in context i'm kind of hard pressed to figure out where the error would be precisely you're saying by having the two parts of the instruction that that they take the court gave the six forty one instruction and have the court only given the six forty one instruction i think that i'm playing error of you we are out of luck i mean we didn't ask for three defense instructions etc but what the court did in this case that we're arguing was playing error was to go on and then give an additional knowingly instruction in addition to the six forty one instruction and to not delete the second sentence which this court has stated that the second sentence of instruction should not be given where an element of the offense requires the government to prove that the defendant knew that what the defendant did was unlawful and in this case when you have asked by omitting to make disclosures which appears to be the government theory which would have to be it's an overpayment case i mean that the case against the defendant is that she received an overpayment of social security funds which is clearly a civil problem the question is whether it's a criminal offense and in order for the government to prove that  i believe that under the case law in this court for six forty one they had to prove that she knew what her what her acts were were unlawful and that is wrapped up in the term stealing if it's defined correctly for the jury and i think that had the second sentence not been there there is a reasonable probability or at least some evidence in the record that would have supported an acquittal rather than a conviction and if the court has no further questions i would say the balance of my the court eric silver on behalf of the united states i'd first like to start with i respectfully disagree to some extent with what the government had to prove in this case i believe what the government had to prove was that the thought it was not entitled to these benefits and therefore that she took money from that she was not entitle to her fellow disclose assets as we indicated in our answer brief was relevance of that because it showed her intent to steal but it was not directly relevant to the question of whether i and a check shows up in the mail which looks to me like it might be more than i'm entitled but if the government sends it to me and i don't send it back i'm guilty of stealing it well i do think she respectfully disagree in that circumstance because in the scenario that you presented the person knows they're not entitled to the money and nevertheless keeps that it would be no different than or at least only slightly different than going to someone's house and seen some money out lying around and well i think i just might get closer so there is some ways that your house has a friend of yours and you see ten dollars fall out of their pocket and you decide to keep it i think in that circumstance given that you know that there are ten dollars you would be stealing and it really would be no different than the scenario you have here you've got this money you know you're fellers close showed intent to steal so it was relevant only to rebut that evidence that the government established so it wasn't directly related to one of the elements the government had to approve the trial i do think it's important also turning to the instructions that we have here die they change they whatever and sometimes the social security administration doesn't know and they send in the check and if the person knows and it's was to have the check you're supposed to send it back they're not supposed to say no you made  do understand that so that would be stealing in your view right yes i do understand that people are charged for that type of conduct numerous on numerous occasions i'm simply not aware of any published decision that's ok talking about this situation i think when it's when we're looking at the instruction what's issue apart from the idea that this actually factual type of claim the and that includes a claim that you didn't know a kind of legal operative fact which is what the fear of this case is talking about i think live forever provides a good example of that which is is it a case that  when you're dealing with receipt of stolen property you have to know that you were and are receiving stolen property but what you don't have to know is that it's unlawful to receive stolen property and this instruction allowed the senate present a kind of factual defense that one was based on a legal  she had to disclose this information or whether her assets to render her eligible for these benefits it was never presented to the jury as a legal claim at the outset they were never given a statute and said this is what she didn't comply with that's because the had to show she knowingly receive benefits to which she wasn't out so she knew she wasn't entitled to them and that's a factual claim it's a dressed up as a legal claim here is actually because it involves a legal issue but it really is a factual claim it's kind of quote from getting them and why i'm isn't a prejudicial i think let me take a step back and say before trial the government had two theories on which that they would be relevant which was that she owned them through the relevant time period and she was required to slows them on the form i don't think either of those actually proved true with the evidence trial she didn't know them during the ellen tigh period and the question itself directly didn't require an answer i made to some extent the shows why you need to raise the evidence rejections a trial but a trial with the evidence was it's not from the from andrews was not that you know whether all of this dissolves because when exhibits fourteen eighteen are being admitted which seem to be inclusive of these so called irrelevant or quasi relevant properties they were in meeting without objection is that correct by her past no that's correct i mean that the words of counsel said no objection not just nothing so my question is for i cannot represent that i did an exhaustive review but i did look at this question as there must be lots of cases like this you know why are we having so much trouble finding a case on point and there is you know a lot of cases but they're all under forty two u s c for a wait and many of those cases also charge this statute the six forty one statute and i believe there are one or two maybe a few more cases in this circuit that are unpublished on that don't go into any of the details that we would need for purposes of this discussion but i think the reason the issue doesn't come up in a published decision is because there are usually charged in tandem and that the forty two u s c for a weight has those specific intent requirements sufficient specific intent that in order for to know she wasn't entitled to the benefits judge know her conduct was unlawful and that's why it's that second sentence in the second instruction that's the problem which contradicts this phrase that it is very odd and think i'm fortunate i can't disagree with opposing counsel's description of the record as it currently stands but to clarify that i believe that the factual information about those properties is that they were sold before the ninety eight interview and that they there original position which was that she was supposed to report on the form is not correct but i thought that it was actually asked for an interview i would have to i mean i would have to apologise according to my familiarity the record is not as as complete as it should be but i thought that was one of the interviews where they talked about what would have been asked and that there were several of those occasions where we did light on what the so security administration normally does rather than someone testifying i did ask her that question then take a look let us go back on the record thank you very much think most counsel for your