the conviction in this case violates the th amendment because it is based on a standard of conduct that appears in a workplace rule rather than a criminal statute in the words of the trial court the work rule barring political activity by judicial employees was quote the crux on unquote of the commonwealth's case and the reason it was the crux of the commonwealth's case is because members of the judicial staff did not work any set number of hours they had no minimum hour requirement they is a workplace rule but i understand the argument from the other side in this fabio speak for yourself to be essential on the lines of you can use workplace rules you can use a lot of things to help establish intent or knowledge or guilty state of mind that doesn't mean that that's what the crime is it means that that's evidence from which you can conclude that one element of the crime intent for example has been satisfied what's wrong with that argument but two points your honor and the st is that that's not how this was used in this case in this case the prosecution theory was anytime you violate a work will anytime you do something that's outside your job not a criminal act and the trial court's instruction of a jury said the rules a work rule it is not a criminal law violation of the work rule is not a crime you are instructed you may not base your verdict of guilt or innocence in any way on any alleged violation of a court rule which is the way with which the case was prosecuted the theory of prosecution and what the prosecutor said in closing argument is the rule tells them you're not supposed to be doing political work and all of these in court court employee should have been and you know it is that that was not permitted by virtue of the rule and i contention why isn't there just going to the point of intent and knowledge what you your assertion is that that is making a crime but the prosecutor also said that the work rule isn't the crime of the court clearly instructed that it isn't a crime are you saying that the prosecutor was no not allowed to use this ready piece of evidence to argue intent yes we argue that it was irrelevant and shouldn't come in and the superior court by the way also found it was irrelevant didn't go so far found it was irrelevant because the issue here is diversion of services what was the court entitled to did it over pay or did it not receive what it was entitle to and the evidence was undisputed that the court received all it wasn't vital to because all of the traditional work and thirty four she was in custody so but you have to say more than just this is irrelevant as a state law matter you have to say this violates due process because your conviction was based on the guidelines and i think that most are saying this might have been distracting maybe it should have failed a little th rebalancing does that's not a constitutional issue that's before us on  said even without the statutes it was still a violation of the theft of services statute to use commonwealth paid employees read committees in your ng to her personal benefit and we as a federal court have to take this state court statement of state laws as accurate so what's the how can we review this the problem is there was no diversion that's what the superior court got wrong because these staffers were salaried employees because they were entitled to their full pay regardless of the number of hours worked it was a pure fiction to say they were overpaid it was a fiction to say that some of their for the common will to argue that some of their time shouldn't have been compensated again there were salary they were entitled to their evidence was again unequivocal that john murray now that his staff was more productive or at the top of the productivity on level four the other judges on the superior court at the time of this alleged conduct and where federal law issue in the op or up the standard in the work rule as the equivalent of that when you make that false equivalency that's what violates due process and that's what makes it a federal issue we contend can you speak to the in re barry case and the matter cases seem to indicate that under pennsylvania law you can have a theft of services and you can have it with salaried employees including proceeding and mary in the course of that did not the the the panel say and this would be chargeable a chargeable offense what the court did but again the context of that was imposing judicial discipline so if there is a violation of the work well that's the place where that issue is properly and should properly be decided here but i thought that barry maybe maybe i'm mistaken but i thought there was a miami area said not just that this is a workplace problem but this would be a charge for you know some authority for the proposition that this is more than workplace issue this is this is behavior which also constitutes a theft of service and is chargeable as a felony no well again the rule itself says if there is a violation of the rule it's up to the president judge of the court to police those violations and if there's a violation what happens is the employees toward your violating their will and then if they don't cease their to disagreeing with you ms walsh that you can have behavior which would be treated down as disciplinary infractions to be addressed in that manner the question is whether that kind of behavior can exist the question i guess we're dealing with right now is can you have behavior that's bad enough which it is both subject to disciplinary action by under the workplace rule and a felony under pennsylvania law and if the state chooses to pursue it as a felony it can do them do you have some authority for it and the barry case seems to say yeah that can happen and this is a case where it could have happened do you have a forty for the proposition that if something would be a workplace violation it just can't be charged in an approach by the state by the commonwealth as a felony i don't think the court has to go that far and that's not what we're advocating what are avid our argument is that when there are no time records and there are no time sheets and i'm not sure what the three hours in the prison when he was in fact someplace else and in those circumstances there could be a crime and a violation of a worker although now do you know there was no reference to any work well so we're not advocating that there could never be a charge  these facts which are that these employees were entitled to the same rate of pay regardless of what they did that they did all of their judicial work we contend there can be no theft of services and that's why the commonwealth in this case resorted to the use of the  accolades yes ok so if we're doing that what in your argument would tell us that the way that the trial court approaches the instructions he gave and the way the commonwealth any of the crimes charged that would put anyone on notice that if they transgress the work will they might be subject to criminal prosecution or or penalty and that's the st two parts i put the rabbit at the head there when you say if you transgress a workplace rule because argument from the other side is that may have been a workplace rule to true but it's also a felony under so under state law to steal the services of state employees and we've got a law that  her personal benefit you said that violates due process it does in these circumstances where these employees did not keep time records to not keep time sheets do not have the minimum work hour requirement and the testimony was also disputed as a judge in superior court joinery naaman had complete authority to decide how many hours these new cleaves needed to work so that when there are no time requirements no time records there is no diversion of services to the court got all that it was entitled t the statute says is the disposition of services of others to which is not entitled so you could work forty hours of work two hours but you can't take any of those hours for yourself he knowingly divert such services to his own benefit or to the benefit of another not entitled there to i don't understand why time records are necessary before you can have any diversion under this section only a diversion if the court doesn't get what it's entitle to if it doesn't get  knowingly diverts the services tor own benefit so whether the state had a right to it or not she didn't have a right to it that's the state's theory here what's your response while the theory was actually that services were diverted by states theories that yet if the services are going to go anywhere they're going to go to the state that's the theory maybe they don't have to work sixty hours but if they work in the forty hours those forty hours are going to the state and so their theory is this got diverted from the state to your client and so you're saying that there can never be any diversion of anything for which there is no ready fixed requirement of a number of hours as long as the work is done as long as the state value is picked to what was obtained or deferred it so as long as you can value what she obtained or what was diverted that's enough you can have a value but here was again with deception on prevalent staff time right that's right ok that's  pursuant to some workplace rules was prosecuted for theft of service dept of services from taking money from the college for pennsylvania and diverting it to benefit herself and her sister that's what she was prosecuted for that's what years ago what's your response to this argument that since there's no specific quantum that was required for the state that there could be no diversion would they like to point out the idea that she didn't ship her work and her office didn't go down she she would have the most opinion whoever it was she could produce more it's not just the idea big she produced a nothing she could have produced more her attorneys could have written more opinions they could have used less government resources they were diverted to her family for example copiers phone calls trips there were of trips to different political functions all these things were charged back to the states for taking her to meetings political functions meet and greets a law firm all these things all the charge back to the state that's where the theft of services comes from it's everything she did it benefited herself or her sister in their political careers that's what was stolen here and in fact i can't put a put a you know they didn't clock in it one and two and they called him from one to four and that one before diverted doesn't matter because it's a terrorist want version mean then i mean if you have to you have to address the diversion argument in other words i pose it to y as judge beavis did to your colleague does it matter whether or not the state lost something or is what matters that she got something she wasn't entitled to is that she got something she wasn't entitle to and i mean in the state lost because the state lost because that time was important for the state activities but she also gained by by the idea of georgia true that it was important for state actors because that's i think that could be their very central argument if you if we take the approach you're arguing right there i take you to be fighting on their grounds they'll say no the state lost nothing i was the the justice was just melvin was she was doing everything she was supposed to do she got everything done her staff was not just productive they were more they were the most productive so the state got everything it was entitle to and then some and the fact that people did some stuff to help her should be irrelevant i just have a segue nerves are the ok we jumped and when i was going to say was is but she didn't have to pay to hire a staffer of her own to do the political activity she didn't have to pay her driver she'd have to pay for all those things all the functions that senator or staff did in their judgment or just a story moment staffed it were things that she didn't have to hire somebody to do because she was using the state's resources to do it for her and that's what it boils down to just like so you're saying it it is it is diversion is as well as  it appropriately obtained benefit the just the story melvin got things she would have been entitled to and she got them from the state and so the state was losing money they pay for it's they pay for her political campaign and if you have any further questions my copiers or things of that nature you she was purely staff when are you saying that there was no evidence put before the jury that there was a car in a drive or use for political purposes but there was no no car no driver the issue was staff misuse of the staff they did they didn't they didn't put evidence or for the jury that said hey she was she had staff people taken her to political corruption she used office equipment to produce things for her political benefit none of that that wasn't evidence is what you're saying well with regard to the court staff there was no argument that a car was provided or that that he quit and then there's no cost put on to any i mentioned to you during my earlier argument but the problem here is to criminalize a violation of the work will really invite arbitrary enforcement of the type that led to invalidating statutes and skilling in other cases that we've cited so leave up to the prosecutor the discretion to decide which deviation from a job description will work what will would result in criminal prosecution or punching is a kind violation of due process in every workplace every day and clearly has deviated from their assigned work duties and well that's true but that's a little like saying there's no judgment that's vested in prosecutors to decide where something goes from bad judgment to criminal but that happens all the time in all kinds cases that's the very definition of prosecutorial discretion right which he did may have been they had been dishonest but we're not going to charge you for that because it's not bad enough but over here two notches up it's bad enough and we charge what how what reason rule can you give us that would say well what justice were melba did was not bad enough and therefore as a matter of federal constitutional law this conviction should be struck down when we leave it we give discretion to prosecutors to decide when there's a bright line rule in a statute we give them discretion to decide when to prosecute according to that bright line rule the problem here is the bright line rule isn't in the statu it's in a workplace rules new point policy and those type out what about the statute she was charged under and convicted on which makes no reference again to political activity and makes no reference to job descriptions or employment policies  does nothing to tell managers that remain are you saying as a matter as a general matter there could never be a theft of government services based on political activity because the statute doesn't mention political activity no we're not asking the court to go that far but here in this case where the prosecutor held up the wounds that here's the standard and when you violated this rule you committed to that that's to due process problem and the slippery slope argument is that to rely on a workplace rule is the standard of liability just