three minutes for rebuttal thank you your honors the g rap program which was a fiasco it was a rudderless ship so devoid of supervision and control that it devolved into chaos and scandal and ultimately senate hearings the government rather than fixing it just dismantled it and that same government i anticipate today will argue that it was characterized by ample supervision and controls or at least sufficient to sustain this conviction a question i am the primary i think the  foundational questions here are really what the proof in the record shows and then you get what you do with that did this company the contractor ha business other than this program yesterday and so it had other contracts that were not with the government right i believe and it did what it was obligated to do to the government and we don't have the contract that shows what it was to do but apparently there's some testimony when a task order reflects what the obligations were going to we do have the task order that they claim was sort of substantially identical to the one that was  in play at the time of the of the alleged offense understand that but any why the point at which the government money comes into it is is a reimbursement is that right that's pretty but they're using some presumably other government funds to run the program i mean the specific money that would have been tat to mr osbourne's activity doesn't enter the picture until after mr eisenberg is completed he is criminal activity if it is criminal i believe that's correct is that make any difference i think it's very confusing here i mean i think you're pointing to these these questions that i would argue should have been answered trial by the party that had the burden of proof there is very reimbursements from the government but i'm not sure exactly when or how they came out turning to this question of supervision and control unless the court has specific questions i would propose to do to address the an issue that hasn't been fully discussed in the briefs we discussed what the  evidence of control and evidence of supervision in the contract but i don't think that we've discussed sufficiently over whom the government is exerting control and that is an issue that is vitally important to every case cited in both my brief and the government's brief and i think that that's really the driving question in this case and i've cited extensively to the whole opinion from this court but i want to use that as sort of a touchstone in there and halt you had the department of energy contracting with national laboratory which is itself a sort of quasi government entity and then there's a sub contractor a i am as and the one of the key elements in that case is that the contract between oak ridge and i m s i says he and i am as i you are subject to audit at any time not by us not by oak ridge but by the department of energy and so if we if we sort of analogize our facts today you've got a contract between the department of defense you've got doc you back and there is a contract here and it doesn't even have an audit required the only mention of an audit in that suppose a contract says hey we dock you pack are permitted to audit ourselves occasionally that's it so so there's no no real control there but if we set up the analogy the important question is what did government control was there for the sub contractors which in this case was were the recruiting assist answer is none we don't even really have a contract between docu packin the recruiting systems we have an online quiz and so the this question and the reason this is important is is that in order to be to be supposedly stealing from the government the the all of these cases every case we've cited has said that the supervision and control isn't just generally over the money of course the government wants to control the money it's been but that has to be exercised over the people who are allegedly stealing it and this plays out in every case that we have and i'll just well there's the reason for that would not lots of money out there has some sort of federal strings attached to it but but you know i would submit that if someone if an employee of a i m s or even a you know a subcontractor of theirs had stolen money you know there's a point at which it has to end that this is no longer federal money it or else we can we can anytime somebody steals something you get federal jurisdiction and i would submit that that we we just can't  he be expanding the domain of this statute so far and i want to just emphasize this point but i would suggest that the worst case for our side is the is the mackay case from the second circuit and  income housing funds from a local housing authority that contracted with hud and control of the systems by virtue of cranes when he testified that he told them never offer to split money with  told to do that by the government well there's no evidence that they were told to do that by the god couldn't the jury infer that from his testimony i don't i don't think so and i mean the  witness essentially misrepresented that that was a that that was in the contract he said that's definite in the base contract with the government it's not it's not thinker and so so you know we demonstrated stuart and what's so remarkable about that is that there are two witnesses from a private entity no one from the government not no one who could testify about the nature of this of this  about what was in that contract and again the contract is important here because every case says what's in the contract and specifically how does it apply to the defendant and  again in this mckay case what what they found is that mckay was the brother of the head of the local housing authority and the second circuit says look at the the hud contract with the housing authority and then look at the contract the housing authorities contract with the landlord leave your issue understand if there was a contract that governed the overall relationship if there were only task orders i mean task orders would relate to a particular use i would think of a recruiter i desperately wish i could answer your honor i mean we didn't even have the task order in that issue here but we see there was some there and again that could have established any assumption of a relationship between the government and the ultimate subcontractors but it just wasn't there and one last point i'd like to make is i think it's important to look at who complete control over the purchasing of food for this emergency program that was funded by the team in johnson it was they said this is the ninth circuit johnson case and the appellant as president of the union and as the director scipio of the government finding and who has some relationship with the government where where the control and supervision is exerted on that person or the entity that they in almost every case the just in general preserving the sufficiency of the evidence so if you for example preserved the issue of whether whether the property was government made a specific if you set forth a specific basis for your room quite in the motion but didn't cover all those you were saying that some of the issues of sub issues might have been the way and i'm wondering what you have to say about i be familiar with that case law i don't know what to say other than that i don't like it i think it sets up lousy incentives to say as little as possible in your motion put it on the court and then you preserve everything whereas in this case the parties went back and forth on this question of of you know is this government property and i think knowledge that the wider issue relate about whether it was government property or not simply that's what you were concerned with from the very beginning that that is specifically addressed and not that it's the issue that was arguably way right the issue that was arguably waived is whether it theft and again i think it's in an issue where we were hotly debating this specific question i just think it's odd to suggest that you know we should have been we should've said less and that would have preserved government exhibit three page twelve which is the training that they received one of my recruiter tells me he will split the money if i say i brought the person into the g rap program this is theft in cost for immediate term a nation and civilian criminal prosecution for you as a civilian the recruiter will face possible separation from service and prosecution there are a number of different this this is the full time recruiters such as mr osbert or the recruiting and the recruiting assistants work receive that training but there was also testimony from individuals like harold virally who was mr osborn supervisor another nother man a mystery absolute is also a full time recruiter who testified that this was something that super that that full time recruiters like mr osborne were aware of that they had received training on this this barley also testified that mr osborn had a truck attended training seminars and that it was a well known fact that this was a condition of the program that someone like mr osborne with thirty years of experience with in the air national guard would have been familiar with but on top of that your honor the two discrete questions are there was there any any paper documents supporting their testimony or are they just giving testimony about what somebody else would have known and i mean that is in t n is not an issue here but it just didn't stand to me like that a man had to much well there there is testimony one from as as is discussed in the briefs and as mr osborne discusses from the president of doctor back mr crane and from another supervisor of the program that document that this that was an aspect of the program there was government exhibit three which is a printout from the training that recruiting assistance received there is also significant evidence about mr osborne's consciousness of guilt when it was discovered that there was an investigation into this that he told mr engel sac to basically cover it up to claim these recruits this is all but in addition to that your honor the crime that mr oswald was convicted of was eating and abetting mr and that mr engel sec pleaded guilty to conspiracy to violate section six forty one he testified at trial specifically that he made false entries in the g rap electronic diaries and he did so because he knew that the government would not give him money isn't it is not in question you know you i mean i don't really see why it matters what the recruiting assistants need a million if there were mr osmond's intent is not an issue anyway so no your honor it's not at issue look i mean i think it's appropriate to ask you about the evidence that supports contro here i mean it's it's you didn't try the case you did or did not did not run or now you're not on fact exercise a little supervision little if any perhaps it could have exercise more but it is that it seems pretty much like dr was on it  i'm unclear which put it seems to me why dr pat was reimbursed so there wasn't any government money until after the fact i don't know that makes any difference or not but if dr pat is not using government phones to pay the recruiting assistance and it's not reimbursed till after the fact that it's pretty hard for me to say exactly have now mr osbourne stuff government money unless dr pac is in some way you can determine that d is doing other business and i don't think there's anything in the record that really shows that traces the land between money from the government money that went to mr osbourne so what proof is in the record ok so i won't give me a name to that says anything other than the evidence is that's where you begin what was the ultimate source of the funds the department of defense created the g rap promo i think i've got it i'm talking about the docu pac did yes and initially pay the finders fees to recruiting assistants but the department of defense reimburse those funds it was the federal government that was stuck with the check at the end of this process not document and again mr crane testified to that on page fourteen eighty six and sixteen seventy seven of the record section whether docu paquin was required to maintain and report on different financial information the management of the already funds and this is in the task order on page thirteen the management of the recruiting system funds including interaction between the g rob database d o d systems and docu packs financial system is a critical factor to the success of g rap so that shows that it was important that the computer systems between of the of the d and as administered by dr pack interacted and the actual process whereby already is signed up and were paid is also important before an airman could even become a recruiting assistant docu pac had to run that all raise name through a database if that database that was run by the d o d said that they were qualified then they could become an r a then they had to go through the training that i previously discussed where they were informed that if they split proceeds with a full time recruiter they could be prosecuted then after that before any recruiting assistant could be paid for uprooting a potential airman docu pac had to submit that potential airman so that recruits information to the d o d it was run again through d o d system and the dia de did not return verification to docu pac unless that person was qualified and mr crane testified that as well on page fifteen zero one sixteen seventy six and seven hundred fifty two and fifty three mr stewart who is the manager of the of the program or directly testified about it on pages each hundred thirty in thirty one and it was in the task order in appendix page twenty five and here's another critical factor on or which is mr crane testified specifically that in order to get reimbursed by the air national guard for the money that they forwarded to the recruiting assistance that they had to submit invoices and i quote mr crane if you don't submit a form you don't get reimbursed but there's you don't have a contract underlying you don't have the task order for this particular transaction you don't have any invoices right we don't have that's not that anything that pertains to this guy but that is the contract for purposes of the appellate record your honor mr crane testified that it's substantially similar in material fact to whatever agreement docu packwood have been entered into previously in fact defense counsel is the one who entered the contract into evidence and said during the trial that this is the binding document that sets the parameters of the rules that's page id's sixteen ninety three two three sixteen ninety six is when this was discussed the purpose so for purposes of this case and what the jury was presented that task order was the contract between the parties and the provisions that were set forth or would governed the d o d s oversight of this particular program what evidence to go through in order to become a recruiting assistant to be trained to receive money for document to reimburse which was all run through the air national guard on appendix page sixteen the national guard bureau soldier was assigned to monitor the process and quality of docking packs performance docu pack was required to submit annual semi annual and quarterly reports budget reports and monthly payment analysis reports mr stewart testified on government exhibit five is the recruiting assistant overview for mr andal sack in which it indicates payments that were made via the thousand dollar prepaid visa card to mr andal sac  recruiting certain individuals and many of those individuals are the ones who testified at trial were those prepare these cards they were they were funded by the government the government provided money to government reimburse did but the i mean dr pac wasn't performing this program out of the goodness of its own heart it was a business that will iron vital you know that it makes any difference that the money came subsequent but it modeled in so is there out this money then it paid out the money and then it was reimbursed after the fact for the funds that were provided to the government it's not clear it whatever we don't see why it's not clear at what point if i could amend that if i can amend that there there is information within the record in the task order that there were funds that were supposed to be provided to be paid upfront but the way that the program was administered according to the testimony from mr crane and mr stewart was that docu pac would pay money upfront and then submit an invoice to the d o d which was consistent with the government required process sees for how contractors are paid for these types of contracts asking for the money back that there was a line item in the task order that had provided for several million dollars to be sent to docu pac but what the testimony indicates in this case is that as i said mr crane specifically testified if you don't submit a form you don't get reimbursed and at the end of the day what happened in this case says as mr says that the evidence to the law in any of the cases out there reimbursement yes a number of the cases involve reimbursement which just tell me which ones i mean about which one should we look at to get the best view so i think i mean the whole itself is a case where you were supposed to submit invoices in order to maintain money that had been forwarded to you previous as a hall isn't ha one of the direct transaction cases well that was the individual who is the direct recipient of government  of the question that ask you which is whether ha involves somebody who is the director scipio of government funds no it doesn't involve that it involves a subcontractor of a subcontractor of a subcontractor that's all you you think your honour's briefly on on rebuttal to two quick points one is i can't help but be be frustrated that we're trying to get so microscopic about issues that just absolutely we're not really trial and the evidence that was not put on this i agree with you that presumably there is some true based contract we don't have the we're trying to read tea leaves here based on evidence that does not exist and i want to clarify one quick point the government is correct that the defense it was it was her codefendant but the defense put this contract into evidence but the reason is important in this case we thought if they got a new contract then we win and the the court in fact excluded the prohibited the government from putting it on because it was the wrong contract the court did not however preclude the witnesses from talking about that contract so the government put these witnesses on they spoke about the contract and i don't know how best to say it but they said the wrong thing i want to say they lied but they they said things that were not true about the contract provisions that were not in the contract they said the contract says that you can't get kickbacks from the from the recruiting the system it doesn't say that and so all of a sudden that's in evidence and we could go up there and impeach these witnesses with that but then the proof against that would not be in evidence we just have have undermined their credibility and so we had to put the contract that we had on and we we had always made the point that this was whole trial was frustrating in that sense because we were forever trying to get any evidence that could show what the government needed to show to make its case that that not just docu pact was subject to some government evidence they just said oh well they would have had to have taken i mean that there was nothing there and we were constantly fighting against that and by no means is that mean we think that this task order was just just the