the prosecution of my client a volunteer fire department chief who outhere and devoted over ten thousand days as a necessary public servant as as a volunteer fire department connecticut's enabling municipal law allows towns and cities to create fire departments now they can either create a fire department by having a town fire department where the firefighters are paid hired by the town they can have a volunteer fire department which they have some control in this particular case this was a volunteer fire department where the town of middlebury had virtually no control what i mean by that was it was a separate five on one c three uncontrolled by the town in other words the town my client was deci for approximately eighteen years every two years it was in fact an election and the firefighters would meet and they would elect a chief my client was elected i believe nine straight times he could not be hired he could not be fired his eye hours could be controlled by the town of middlebury they had absolutely no control when you say he said a moment ago you started off actually saying that he was a necessary public servant i think that was the phrase that you used yes who was he a public servant for well there's a public purpose in the minutes of the statues that allows the town to fund an entity like this so the town  middlebury did fund it he was a public servant for the town of middlebury eye for the town of middleton for the benefit of the town a little bit all right he was an elected official by the firefighters but he also a w two and he was paid every single year for his years a stipend and he got a car and he got a cell phone yes they were they let me explain that part of it what it was is that he and the town could do this on that in a civil law for on this but he had no he could not even have the answer to anyone there was no control in the element of control is very important in this case the government in their in their indictment charged in as being an agent employee however when they submitted when this was submitted to the jury by the government the government chose to charge him as an employee of the t and that was what i mean i thought that they also said he was an agent i mean didn't didn't the instructions say that at one point that the statute that mr prodi is charged with violating requires and not an agent and i can explain to you why they did this in two thousand and five it was an agreement between the town of middlebury and its town lawyer and mr pride he and his counsel that mr parady could never be an agent of the town of middleborough it was an agreement after ten two by all parties and he could never find the town as an agent the government had to show that he was an employee and had to prove he was an employee beyond a reasonable doubt now our issue what you're  saying he wasn't an agent of the time middlebury he was not independently being an employee it was not an agent and he couldn't be an agent since two thousand and five and prior to i thought your argument was prior to someplace where you actually took the position that he was was an agent as well as an employee i mean separately from his being an employee he was he was never you know i'm guessing that where in the record we find that submissions had that document submitted i am ok well and left the government i'm sure they'll have an answer for that and the in the other important issue and he received the w t only in the past few years he received the ten ninety nine your honor for that's stipend for the majority of the time he was elected fire chief but there's nothing to prevent with a ten ninety nine from somebody be going from an independent contractor and later on becoming an employee right correct and if the jury is making a determination as to whether he's an employee and they have a w two in front of them isn't that it couldn't a reasonable inference be said i don't know if i'm correct and i think you'll see that on the record i don't know if i should've cemented as you requested the garden test because this is an issue of first impression it's never been decided in a in a case involving this particular statute the who is an employee or what is an employee and barry and the government it's the government yet the government i right and the gov and the government to get to the five thousand they submitted numerous articles if they used in the fattah call here over one hundred and with a much less standard of proof good morning may it please the court sarah carwin for the united states your honour's picking up the open question that the appellant left off the government is not aware of any evidence in the record that in two thousand and five an agreement was made where mr purdie could never be an agent so i'm afraid i don't have that citation for you and the government had understood at trial the argument to be that mr parady was not an employee and therefore was not an agent your honor not that i'm aware of you know the record and my record i believe i do your honor i am i cannot cite to you too and nothing is coming to mind and certainly the government never took the position that there was such an agreement in two thousand and five the evidence was focused on to use you this doesn't make any difference here in this case whether the judge gave the charge you gave or gave the order should have given the dardenne charge would it make any difference in this case you know i think ultimately based on the overwhelming evidence that mr purdie was an employee i think it would be harmless that that judge meyer didn't give that because i think if if he were to have given what he described as a multifaceted multipronged test of the jury i think still examining all the evidence before the court the jury would likely would have come out the same given the overwhelming evidence this was the  department who paid for the equipment for the fire department really evidence was that the town of middlebury did your honor they own to the building all the firefighting apparatus and it was a line item in the town budget which was government exhibit six firefighting equipment along in that budget was also listen listed the salary for the fire chief in the town of middlebury approves that budget annually by referendum but your honor i would i would leave that decision making authority to my superiors but i think that judge meyer in addressing the sufficiency of the evidence was comfortable with the fact that in any of the years of conviction two thousand and twelve and two thousand and thirteen no matter which path you took the government had shown in excess of five thousand dollars prodi was not authorized to do that in the statute not only prohibit for purposes of restitution or the number might be zero i think in terms of obtaining by fraud it would be ten thousand dollars your honor the statute prohibits not only embezzlement but misuse of funds in obtaining by fraud there was also no evidence your honor that what was alleged to have been done by mr had any certain value and your honor i would cite you to the testimony of max begins as well as interview balde who were employees of the electric company who were working for the electric company but receiving town checks for that combined with the with the government called disguised billing exceeded five thousand dollars in each of the years of conviction permit there's a procedure for inspection to make sure the work is done was done correctly and even assuming that mr prodi had done that work none of those procedures were followed so none of those inspections could be made in the town couldn't satisfy itself that the work was done was done to code and was done correctly that whole process was circumvented when mr parady decided a project had to be done awarded himself the work and then disguise the fact that he was the one ultimately being paid for that that could never be determined whether that work had been done in years prior and that was the the theory that the government had presented to the jury that it was not only funds obtained by fraud but also  presented as someone else's work issue other than that sense but if you think if you took that out you still be ahead of five thousand we would your honor as your yes one of the points you made earlier was that there was an error on the jury instruction would be harmless because the overwhelming evidence would have supported factors in the darden or some other test that was more elaborate for employee the standard that the was set out in the jury instruction was really sort of wages and salaries plus the common english language usage of the word employee in order for there to be a analysis as to whether or not the evidence would have supported a broader test would there have to have been some word instructing the jury to look at things like control or supervision of any kind in other words while you may not have to go through all of the darn factors do you need at least a control factor in there someplace to capture the rest of it well your honor there's nothing in the jurisprudence of section six six six which would suggest that that was was necessary and that was one of the issues i think that the court struggled with in trying to adopt in a what the  in terms of a jury instruction obviously the district court has to correctly frame the law to the the jury and what was presented was first the state of connecticut department of labor test that was withdrawn then the darden test was offered a any legal citation that the appellant offered either below or here to suggest that congress in acting six six six had any of these factors in mind but instead having the broadest possible definition of agency in mind do the work knew mr parady did the work and was satisfied mr parady did the work this whole issue came up because there was a generator project your honor it was bid on by mr with the permission of the town he got the lowest bid he did the job and lost the money that was paul parady on it thank you