federal benefit requirement to the jury in this case the government presented no evidence of the structure operation and purpose of any federal per program that dispersed its funds nor did it present any evidence of the intended use of that federal programs funds at the local level just so we're clear your view is that the articulation fisher has to be given as a jury instruction and the jury has to make that finding in every case yes and it's not just my own juries might agree with the supreme court that medicare payments constitute such a benefit and others might disagree with the supreme court and disagree with each other and there i wouldn't say that's federal song it in each case we're not asking the jury to define what that federal program is what we're asking is the jury to evaluate the treat it as a question of a court no your honor and hell the defendant specifically argued that he was improperly convicted because the district court lacked subject matter jurisdiction which is a purely legal issue the bell well court did not decide because it was not asked to decide whether the benefits under the united nations participation qualifying benefits be treated as a legal course it was treated as a legal question for determining whether or not the court had subject matter jurisdiction the court was announced to decide whether the government subsequently methods out of jury trial that's not really subject matter jurisdiction right talked about how that sometimes people use that word when they mean just as an element of the offense what fisher describes as a relationship between federal programs and their use at the local level it is that relationship that's subject to both a factual determination and a legal determination elements of the offense that's correct it's an element of just follow up on what you sufficiency of the evidence contacts yes because none of these questions are per se a legal question set in some kind of statutory stone of any case where a judge has instructed a julie along the lines of what you're proposing when well i'm over sixty six cases anybody ever taken the language from fisher and given that to the jury and said ok you guys figure it out but i don't know specifically and the case say bravo fernandez in the first first circuit or in the case of mclean in the eleventh circuit whether or not a specific jury instruction was given that mirrored the language in fisher however we do know that the courts that have kept checked in on this issue including the queen and bravo fernandez have all treated the federal benefit element as a mix question of law and fact subject to a jury determination and they did so for good reason because it is not enough that the government proved that the organization received federal funds rather the government must prove a federal benefit was conferred and a federal benefit is only found after certain facts are established the way that the fund for such and i know the defendant did not ask for such an instruction but the jury instruction issue is an issue that is separate and apart from the sufficiency of the evidence issue  know not on the sufficiency of the evidence issue on the jury instruction issue it would be but the sufficiency of the evidence issue is not a plain error issue and the defendant rape a priest the claim that the the ground of the rule twenty nine motion in order to preserve the claim of sufficiency on appeal the argument i'm making is just an argument in support of a claim and it's also reflected in what happened below before the district court at appendix nine seventy eight defendants trial counsel said at the close of the government's case yes your honor we do have a rule twenty nine motion to make the short version is that we move pursuant to rule twenty nine to dismiss each and every count of the indictment on the grounds instructed on the official language the sufficiency argument fails no your honor it doesn't fail because regardless of whether the trial attorney requested the perfect instruction that packed all of the elements for the court the government still bears the burden of proof in the federal benefits requirement in its case and i have about seven seconds left and i'd like to reserve my remaining time for a bo good morning i represent roxana in seydoux and i do have his business the argument that's specifically preserved this is a very busy record and it's very document heavy i've set forth all the relevant details of my claim in the brief and i note that the government hasn't hasn't complained that i've left anything out there are two main themes that the government raises  opposition to this sufficiency argument one is the miss is in say it is performance of services in order to earn the money that was given to her over this long period of time she the government points to snippets of testimony in their brief on pages thirty two and thirty three one of them is they claim that the board chairman  unaware that mrs inside do performed any work at uva after she left her job in two thousand and seven and went to ghana and they cite a page of the record transcript three sixty six in fact that is not what that page of the record states the questioning of the of the chairman at that point was about whether he had been told at in two thousand and seven that mrs unsay do had left and he said no she didn't tell me but her husband did and then i also learned from other people that she wasn't around he never said that he that he was unaware that she ever performed any work after two thousand and seven and even if he had been asked a question which she wasn't it would not be surprising if he said no since he was virtually never there he was the board chairman they had meetings once a year he specifically said he left basically everything up to mr inside you and he didn't have any hands son  if the in faces were falsified but there's no evidence that she participated in that with respect to allied and i feel this is a great length in my brief mr and say do i was the one who signed all of the checks  to allied he was the one who filled in the payee of all the checks allied he was the one who endorsed all of the checks that she use of the funds that she got for personal expenses well that was the ally bank account but as i also point out in the brief there was a lot of money that was deposited in that count that had nothing to do with u b a thousands and thousands of dollars meant for me to these specific organs were not made to the jury i did a very detailed review of the proof and if you look at the defense motion and the judge's decision it's much sparser than i've presented to this court but but back to her performance of services for on her own behalf to the to the senior centers miss mayor and herself testified to more than the government stated in their brief she said that she only recalled this is inside to being at her center for about six months do it at the three other centers as well the nepotism meeting was called for by the department of of the aging because there had been a complaint that mrs inside who was working a full thirty five hour week at one of the centers there was also evidence that there was consulting agreements that were signed that were found with the search warrant that she was being paid xin independent consultant to work at all for centers all of that evidence and she endorsed all the checks that are made out to her and none of them were made out to her when she was in ghana so if she was to she would so the the theme of the government that this was a low show job which is their quote is actually not supported by the record there is and there's much more evidence in the record that she worked for these services and there's certainly evidence that she was more than competent to do so i mean that makes your jury address now when you say that with more evidence of what you're arguing than what the jury concluded but the standard for overturning a jury verdict on insufficiency of the evidence grounds requires you to establish that no reasonable jury could reach this conclusion yes your honor but but but the this court has has hel d many times that it's in it's not enough for the judge for the prosecution to a deuced meager evidence of guilt it has to be substantial evidence and i'm just pointing out that there's a lot more evidence in the record that the government's claim that she did not honestly earn this money and again the money she earned was over many year period was one hundred ninety five thousand dollars over this long period and with respect to the allied account again her husband was in charge of stamens were mailed to him only to his name at their at their house he was the woman asked bookkeeper to make the allied income tax returns which understated the income and he supplied all the information to the bookkeeper in order for those returns to be prepared so he is all over the allied payments and there is there is no hands on evidence that  inference that her husband was the mastermind of the scheme and that she earned money doing things that she was competent to do and did not know that he was making payments to their son or to allied not it please the court my name is eli mark i'm going to sustain eight states attorney in the southern just from new york i represent the united states on appeal and i also represent the united states below at trial as an initial matter  district court properly instructed the jury on the federal benefit requirement under section six six six the defendant did not object to that instruction in the court reviews that for clear error for honors that instruction largely tracked the statute and the requested addition that defendants now make that there should be an additional instruction on the structure of the operation and purpose instruction ought to just track the language from fisher that's basically the argument correct so and so a number of points your honor first there is no evidence that that instruction has ever been given before to is this is definitely a legal inquiry it was legal inquiry for the supreme court in fisher when they considered whether there were federal benefits there was a legal and clearly for this court and by how when we can the court considered whether there were benefits  they were given to the un and as your honour's noted it would be that inquiry of sort of a statutory structure and a connection of funds to a program is necessarily illegal inquiry and it would lead to inconsistent results if that could then be argued differently essentially that litigants could attempt to argue to a jury something that is contrary to what the supreme court of the second circuit has decided so that on that first matter there was no there was not there was no error in the jury instruction let alone any plainer the second issue is whether there is sufficient evidence as to there being a federal benefit here there  was definitely evidence in the record that indicated that it was received significant fines hundreds of thousands of dollars of federal funds the programs that received it for under the grants that were provided so there sufficient evidence as we detail in our brief even if the court was to consider whether the question of whether there was evidence of the structure operation and purpose of the program and the nature of those payments would war to be considered a factual question for the jury to the extent that the first circuit considered this might be some sort of issue for the jury that's contrary to second circuit law second what's particularly noteworthy there is in the discussion of will what is sufficient for federal benefit  the first circuits or took the government to task for just saying well ten thousand dollars in federal funds is enough that was all that was showed in the second trial and fran as was the third appeal in that case that is not what was the jury instruction here and that was not what the evidence was here was more than just that there was funds there was evidence of programs in grants what those were how they were distributed through the city and those were critical to the purpose of  organization here and the first circuit in brother fernandez sort of looked back at since he was a retrial what was proved at the initial trial and they actually said well that minimal evidence there would have been sufficient but the second go around the government just didn't even produce that minimal bit of evidence they just said ten thousand dollars of funds and that wasn't enough so even in the view of bravo fernandez and the first circuit of all what is enough on their view there was there was more than sufficient evidence in here has essentially argued is that all inferences should be rendered in the favor of her on appeal that's plainly not the standard the standard here is all inferences have to be rendered in favor of the government to support the jur determination here the government proved at trial through witness testimony through documents that roxanne and sided received hundreds of thousands of dollars from u b a both directly and through allied and viewing the evidence in the light most favorable government there was only minimal specific evidence as to roxana as to as to roxana yes so first she received one hundred thousand dollars and the evidence was at most cheap she did a few hours of work for a few people for a few months at that point in time in twenty twelve there was concerns about nepotism they were raised to the city  she the chairman of u b a spoke with her and there was also a meeting with the city at that time that it was represented that she didn't receive money and that was relayed to the city and that was then a source quelled the issue quite to the contrary she'd received hundred more than a hundred thousand dollars already and she actually continued to receive money and it's detailed in a special appendix and some of the charts after the city basically said no go with with her receiving any money and it had been very clear to her so she we submit that the money that she received directly is evidence of embezzlement there but  also as judge chin asked about allied allied was she now wants to argue that she had no connection to allied it was just all her husband but the evidence viewed in light most favorable to government is that she that was her company with her husband she helped found the company shoes a signatory on the bank account she wrote some of the checks from u b a with her husband to our lot she spent money from allied she lied about allied to her hamp mortgage application to reduce the mortgage a charge that she doesn't actually contest here it was not included in their tax returns and then there were false statements that were made to the new york state attorney general's charities bureau about that all of those are her statements and all evidence of her concealment of a lot which is evidence that this money and that she knew this morning again the only courts that have checked in on this issue about whether the sufficiency claim is a matter of mixed question a long fact type universally determined that it is a mix question of law in fact it should be submitted to a jury and that's because a federal benefit is only found after certain facts are established which were not the stop wish in this case we don't know what is the federal assistance program here how that federal assistance program operated how that program was structured and none of these questions are legal questions that are set in some sort of statutory stone these are fact based single question about it the chart doesn't tell us any of the facts that we need to determine if these funds constitute a federal benefit how did the way operate we have no evidence no document no testimony disperse the funds at the local level these are factual questions and it's a gaping hole in the government's case and it's fatal to its prosecution so that putting all  aside we're assuming that a title is good enough if you accept the government's position the government never argued that the titles of these federal programs which were sent to you the government has stated that one of the things held against my client is that she allegedly told mr a socket that she had not worked for uva all the years prior  meeting and they cite some testimony on page thirty four of their brief in fact the testimony is not that the the meeting was called because mr asako wanted to send i engage in a letter to mrs insiders saying she wanted to be a nurse testimony that she was working only a couple of hours a week and that she received hundreds of thousands of dollars yes but but the judge didn't know or the jury's verdict because as i said there is a lot more evidence in the record affirmative evidence that she worked much more than that one snippet of testimony that the government hangs their hat on and i've already gone through that but in any event that she never said to mr asika that she had never worked there prior to two thousand and twelve she was she was speaking about the five thousand dollar she was going to earn on the latest independent contractor contract that she signed and i will just finally say this the yes i understand the standards of review for sufficiency claims but if there is more evidence in the record than the government acknowledges and my brief is full of it then the jury is can be considered unreasonable to make the determination that they did that my client was guilty of intentionally embezzling money by not considering all that extra