morning please the court mike patillo on behalf of defendant appellant christine but we are here on this bit of his motion for bail pending appeal if bail is denied and accomplished architect with no prior criminal history will end up serving out her entire three hundred sixty six day sentence before receiving a ruling on the merits of her appeal would we expedite the peel to deal with that consider we would certainly appreciate that we've made efforts on our own behalf to do so we're filing our merits brief on our to get our appeal brief on file in the time we have to minimize the potential prejudice to our crimes but over the only question before the court now is whether ms but of his appeal will raise a substantial question that does not mean that we have to show we are likely to win we're not asking you to predict the outcome a substantial question under the circuit's law is merely something more than not frivolous a close question that well could be decided the other way and we believe m standard here i would like to focus on the jury instruction argument this is not a typical embezzlement case this is not a case where ms butt of it is alleged to have dipped in to any of the plan existing for a one k plans two point seven million dollar account instead the allegation was that she failed to remit over a two year period roughly one hundred twenty five thousand dollars from the company's operating account to the four one k plan account the government's theory was that so long as so long as any for a one k plan and funds have not been remitted that any funds that miss bid over had paid out of the operating account was embezzlement his defense however was that she believed she was authorized to make the expenditures out of the out of the company's operating account because the company was in dire financial straits it could not meet its obligations through its own operations and so her family was pouring millions of dollars of personal into the company's operating account when she authorized payments out of that account her belief was i'm using my family money that we're put into this operating account to pay these expenses i did not believe i was misappropriating for  salaries in fact millions of dollars were paid for salaries and benefits other other expenditures were paid for personal expenses such as the bit of as golf club memberships a membership in a yacht club things like that and in fact that's exactly what the government highlight out the four on one case be paid but we are not the fact finders yes your honor so tell us what the errors were that you think are meet the standard of  was as i was getting to the entire case turned on the critical distinction of intent and whether or not ms bizarre bit of a possessed specific criminal intent to deprive users of the plan fine as is required for a section six six four violation or whether she merely believed that she was failing to comply with the rissa only a minute yes your error the error was that we requested an instruction that would have specifically tied the element of intent to the we requested an instruction that the plan to find knowledge they must prove that the assets had unlawfully been taken by theft or embezzlement the district court acknowledged that was a standard in her own in limon a motion the language was taken directly from sand federal jury instructions the district court however did not ultimately give that instruction instead she instructed that it was sufficient if you find that the planned funds were wrongfully taken she i nstructed but the problem is in this context what you wanted were the words investment that they were wrongfully taken by theft or embezzlement yes your honor because in this context wrong the jury well could  reading the charge as a whole simply compounds the problem the court instructed the jury that the intent is satisfied if you found that the defendant acted with a bad purpose here the jury well could have understood that to mean the bad purpose of violating the judge specifically instructed them that it couldn't be that that that part of the instruction is is in the charge now your honor i respectfully disagree what the court instructed the about a recess violations not was inadequate because it wasn't specifically focused on intent after the charge no instruction was given excuse me no objection was given made but my point was to ask you whether after all this has been raised an objection in the answer is no excuse me your honor but no excuse me respectfully if i could say after after the government went on to make that and the district court refused to give a clarifying instruction saying i believe what the judge has we understand that's a separate error claim all right thank you let's hear from the govern please the court my name is dina mcleod i'm assisting united states attorney in the southern district of new york i represent the government on appeal and i represented the government in the proceedings below judge the pony did not err in denying his motion for bail appeal this is not a close case for bail pending appeal nor are any of the three claimed errors close questions that would likely lead to a reversal or a new trial just to focus on the jury instruction argument which was two words or something to that effect and be that by the time you reach the third element it's clear that at that point you're defining the mens rea of the first element the actus reus and therefore it's because you argue that wrongful ariston violations manifested the culpable intent that when they heard wrongfully or wrongfully taken they they could have thought it meant theorist violation i think with i think given that there's a clear record here that there's essentially no way the jury could have understood that as as that support tell us how that record because he was the because  the charge on intent made very clear in fact there was a fairly substantial paragraph in the charge that discussed so how the arisa violation or the violation of a recent duties could play into consideration of intent and in the charge judge when i think the words at themselves were let me be very clear this is a criminal case you cannot convict on a civil violation orissa however you can take into consideration as i don't want to use the word frivolous i would say it is without merit and a lot of this is because this wasn't a national substantial argument certainly not in this one this is a question and i had to judge roger's point this would be reviewed for she sent around a red line of the revised charge to the parties which have the charge that was to be given the next day in that red line and judge probably refers to that on the very first line of the july twelfth transcript is is there any objections from the parties to the charge that i sent around last night there was no specific objection your honor actually we really need out by factor in belsen and language in there makes a huge difference earlier questions with us from the government's point of view no i think i personally would have to speak to appeals but i don't think that that would be an issue i'm sorry on will consider it promptly and try and get you a response as quickly as we can thank you very much