may please the court my name is timothy abbey from the federal public defender's office for the northern district of ohio and i'm pleased to be here on behalf of my client and the appellant as bernice miller i would like to reserve three minutes of my amount of benefits that she received from his compensation her previous employer and also the so security administration for the total duration of time that is alleged in the indictment there was no effort on or any evidence presented on the part of the government to show what the value of the services that miss stevens miller had provided  services that it's worth is there any period within the restitution period where she was not disabled and i know you argue that there are some parts of that time i take it that she wasn't disabled although there was evidence for example that at point one point she said the store had been operating for nine previous years which would seem to cover the gap that you claim so can you tell us exactly what time she would have been entitled to benefits for work and what your basis is given the jury's verdict on the charges sir the first i think it's important to understand the nature of her disability there's no doubt that she was found to be both have a physical disability as well as a mental component to the disability and back to pre who testified for the defense indicated  that misstatements miller's psychological problems make her variable she is not consistent on a consistent basis of being able to to not have psychosis overtake her and function normally particularly for employment in the public sector what the government did in this particular case and they did various back checks they did not demonstrate that this misting his mother was at this door functioning in this capacity and disabled throughout this particular period of time the spot checks that took place in this case were in june of zero six once two months later in august  six seven months later they spot checked in march a few other places in two times and two thousand and seven and they only looked at the outside to whether she went in and that didn't go in then they did timeless sounds like you're making the jury argument in general can you specify what i asked you what the period that you claim she was actually disabled for and what evidence did you present to the judge on that point she was actually in that particular case suffered a physical injury claim with the perp probably totally disabled but then it turns out during that time period that the  determination as to whether the opposite as to what the defendant would have been entitled to had he been honest it's not an all or nothing proposition she could have been still found partially disabled the government in the  didn't that or end it sensing then that present any evidence contrary to what dr perricone testified to as to the transit nature of her condition when she can work and when she can't they merely just said well if one the rep specify any particular periods from what you're saying he said generically she might be up and down but i didn't hear you say that there was some particular period were you had a medical psychosis and recommended that she go to this this establishment for so so have any evidence either at trial or at the sentencing where you said this is a period of time when she was not operating the business in the face of the for example the statement that she had been operating it for the previous nine years or the statements from the landlords that she had negotiated these leases at different times in the past you're correct agents were only there i think starting in zero six but there was definitely evidence about what went on in the business earlier on wasn't there yes  could not recall many details about this store but he indicated in testimony that he only ran it to her for three to four years the the store it was in operation evidence from  five to nine hundred ninety eight there is no spot check there is no landlord there is no photo there is no any type of evidence to show between one nine eight and two thousand and five when the subsequent boutique was opened first on main street in britain wrote that the story was in operation and off the government merely relied on this statement by misstatemen miller that i've been in business august time this is an individual who admittedly has psychosis and this is in this place as a pivot point of socialization so there's no spot checks there's no undercover work there's no landlord there's no lease there's no prior customers there's no evidence of income there's nothing whatsoever showing between one nine hundred ninety eight and two thousand  miller was working providing services to this boutique or even a location where it was located during that particular time so from ninety eight to two thousand and five we have nothing yet and still the amount of benefits that she received to that point in time is added to the restitution amount and considered in the last amount for for restitution e on the argument in our first one of the good faith instruction that we had requested be given for our three charges in this particular case we acknowledge  that the pattern jury instructions only mandate it to be given in this case for the mail fraud and the government relies on a couple arguments essentially to that one the case law indicates that if in fact the in instructing on the actual crime that the mens rea or the mental state is adequately or sufficiently explained to the jury in the jury instruction then the good there's no need for the good faith instruction to go and that's kind of implicit the second one is the government cites to different persons in the record in the closing arguments when i made arguments to the jury sense of the sort of in the gating the mens rea element of the crime talking about good faith i think that's a problem for two reasons the first one is is that in this particular case most of the cases cited in fact i believe all the cases cited by the government on this particular point indicate a deal with charges where there's a single charge and single charge  an instruction may have been read requested for good faith that wasn't good in this particular case however the court granted the good faith instruction on the mail fraud and specifically instructed the jury was for that charge only so therefore when mile i think it you can turn and government didn't establish the amounts for the entire time or form for the relevant portions of the time that there should have been for which there should have been read or heard turn into time of some saying submit any information as to what time period that the restitution should have covered my understanding is instead of presenting a specific information you just said the government didn't show the didn't provide the relevant evidence to show the river the amount of restitution but you didn't and you didn't present in the evidence indicating that she should have been subjected to restitution for particular time frame but not in the not over time frame you just left the entire burden to the government is that what you did essentially because i believe it's the government's burden but i also relied i thought it would light upon the evidence that we had deuce to trial about her i think i focused  good morning honors may it please the court my name is laura for now i'm here on behalf of the united states i'd like to begin by briefly addressing the twenty eight j letter that was filed yesterday with respect to the district court's use of the pattern instruction on willfulness it's the government's position that that issue is procedurally barred because stevens miller is raising it for the first time in a twenty eight j letter she didn't object below in the trial court she didn't raise it in her initial brief and she didn't file a reply brief and i think the case law in this circuit is pretty clear that a party abandons an argument when it's not raised initial brief and in support of that i have two cases  first is united states versus johnson citation is four forty fed thirty eight thirty two specifically pages eight forty five and forty six which is a two thousand and six six circuit opinion and united states versus graham citation four eighty four fed third four thirteen specifically page four eighteen and that's a two thousand and seven decision by this court and in that case the court refused to consider an argument that was raised for the first time in or argument and that's essentially what stephen miller's attempting to do here by raising a new argument in a twenty eight j letter the day before oral argument it's our position that the issue has been abandoned because of twenty  think it would be your position that is my position because it's not a new issue i mean the cert petition was pending it had been filed a month before stevens miller filed her brief i mean she could have made the same argument she chose not to but even even if this court chooses to consider the issue she can't prevail on the plane or test and the reason why is because there's the pattern instruction did not affect her substantial rights in this case there was evidence in the record that she knew her conduct was unlawful with respect to the false statement charge government exhibit forty three page eight which i'm happy to supplement the record of the court would like to see that trial exhibit that is a signed report of continuing disability interview in which she signed it dated it was in august of two thousand and six about seven years before the interview at issue and in in that  document she acknowledged it is a federal crime to make a false statement for use in determining social security eligibility and during the interview a question clarke identified herself clearly as a special agent of the social security administration stevens miller certainly knew what the topic of the interview was going to be she brought a worker's compensation attorney with her and they reviewed her disability claim and she  note that the supreme court has not made a decision on the merits of this they simply except at the solicitor general's confession of error and sent it back to the ninth circuit for determination i think that's consistent because it just are significant because the district court did not have the benefit still doesn't have the benefit of a supreme court decision on this and so i think certainly the district courts use of boilerplate the six circuit pattern is directions thirteen zero two and this court  which has probably been used thousands of times for years does not rise to the level of calling into question the fundamental fairness or integrity the judicial proceedings below  even when an incorrect instructions used so it's the government's position even if this court considers the argument in the twenty eight jail letter the stevens miller can not satisfy the third and fourth promise that the player test  the only issue with respect to jury instructions that is properly before this court is whether the court should expand the good faith instruction to the non fraud counts and on that point i'd just like to call the court's attention to pages thirty eight thirty nine of the government's brief where in the government cited page twenty two seventy two the record for the proposition offense had tied all three counts to the good faith instruction in looking at that particular peaches appears that defense counsel was actually still discussing mail fraud but as noted on page thirty nine of the government's brief by page twenty two seventy three defense counsel had tied the good faith instruction to all three counts and it's the government's position that certainly it that the district court had sufficient authority to refuse to expand the instruction to all three counts because the plain language of the sixth circuit pattern as your actions committee commentary in six point zero one specifically says of the good faith instruction across references instruction ten point zero four and says that the pattern instruction only applies to mail fraud wire fraud and bank fraud it's not a general good faith defense so the pattern instructions do not support stevens miller's position and regardless expanding the instruction would not have helped her and in this case the court emphasized that the defendant could argue that she lacked intent and the jury heard the good faith theory during the evidence and stevens miller provides a  good summary of what she believes a good faith defense was on page thirty two of her brief and while she began the closing arguments began with focusing on that good faith as struction in regards to the mail fraud by the end of the  arguments defense counsel was arguing does this sound like you know intent to defraud or she simply acting consistent with her doctor's advice and in a few lines down on twenty two seventy three says and i think you'll find that this is not someone who commits mail fraud and theft of government property in likes of the jury heard the defense position the good faith rely related to all three counts but certainly the jury heard the instruction as to mail fraud in the jury rejected and i think with good reason even if you accept her doctor's testimony at face value he told her to visit the store not work at it and he evidence showed that she was working at it and i think the jury saw that she was feeding her doctor half truths and i think the best example of that is when she returns from a buying trip in las vegas in the summer of two thousand and five and the very next day she's complaining about being depressed and having low energy and being angry about not being able to function it simply wasn't supported by the evidence it's not good faith it's the opposite of good faith and i think there is plenty of evidence to show that she was in fact working i think the most damaging aspect of the case for her was her own admissions in this case you have in august two thousand and eight or two thousand and six police report where she identifies herself a self employed and for the for the owner or for her occupation she identifies herself as an owner in a speech i d sixteen thirty nine you have to admissions in september two thousand and six she says she's been in business for nine years before moving to the night the main street location and that lease started in three or four years what's the evidence on that from your point of view well it seemed like the landlord was kind of fuzzy on the issues i are fuzzy on the date and we have heard mission  we also one of the agents recalled her being at the prior location i think it was the friday analysts bryant had testified that  and i there was a question about the nine hundred ninety six would have been after the end of the lease i thought that was still during the lease already during the lease i'm sorry maybe i misunderstood you i thought they were there they're trying to this point to carve out the period between what they see as the affirmative end of the lease and as though things been appeared just other than the statement that she had at least as you as you stated not in quotations at page fifty four that she had been at the east cuyahoga falls location for nine years before moving to north main street i said is that the is that the only thing that covers much of that period you also have charlene darkens who said that stevens miller let her into the store the old location that would have been 's kind of her partner in the later years correct so that's before the partnership but i think her own admission is a strong evidence in this case and i would say this case is not at all like walter and boring where the court i mean in those cases you had a benefits period that was only three to four years it's unclear where the indictment covered that whole period but certainly the last calculation covered the entire benefits period and we don't have that in this case we have nearly thirty years of on period rather than focusing on the entire benefits period period that you claim what was the starting point that you might say triggers the starting of the of the last and restitution period it's a nine hundred ninety six because that's her commission covers that period you have the bridal magazine and it's advertising for her services so i think that's definitely the start of it and it really goes to to two thousand and eight  and i think the court did make a reasonable estimate given heard mission given that you have this bridal magazine and you have surely it's dark testimony about being let into the store that there's certainly and when she makes this admission about being in business for nine years before moving to north main street location that's in two thousand and six and we have undercover operations in two thousand and seven and she's receiving benefits until two thousand and eight and the police started when in ninety five you know i bought that's what i heard him say that that that the lease was ninety five to ninety eight but i might be wrong about that that's what i thought it i don't recall when the leas credibility problems given that he'd only seen her in a clinical setting he did medically never visited the store and i really had no basis to judge whether or not she was working the one from ninety five to ninety eight the filings with this secretary of state the business records and everything show those stores were owned by donald miller and the first one  along with miss miller's daughter april in frances perkins who testified was the one that was working at that primarily when they talk about this article in one nine hundred ninety six this article in one nine hundred ninety six associated with this wedding did not say stevens miller was the owner and operator of this store it said miss demon's miller designed a crown for a wedding in that particular situation when the government sou had no release but he indicated that when he sued for back when he sued john miller only in his rent record only listed donald miller then we got a briton wrote miss darkens and mr miller are the ones that finalized the owners of the business all the checks all the all the business records and everything they were introduced in this trial were done or written by mr darkens or mr miller none by misty even smell there which is so i think that there has not been this this presumption that goes on here that she's just working full time they only did sporadic checking into this business only twice did they actually go inside to see what misty was mother was actually doing in these businesses she was there as the doctor advised her to do and so for purposes the doctor testified that her her condition persisted throughout this period so i believe season