may please the court i'm jane meyers and i represent israel gold rush on the subpoena the first point that i'd like to stress is that there was not legally sufficient evidence to show the element of ownership is that the defendant himself believed that the government agent knows a government agency larson had control and and that the government believed that it retain control over those funds that it was that their account their money i would say that mr gold rush clearly by his actions did not fact believe that the government retain control over th had no idea of the government involvement and in addition to that he was simply spending the money on you know paris lonely and whatever when i'm not trying to get a medal and it's a matter of luck as a matter of law does he does the government have to prove that he knew that the government thought it was its money that absolutely no absolutely not i think that was pretty well taken care of during the trial but after a time the government had no actual control over the money it was in an account that needs to go right solely controlled no one else had any access to at and for that reason we're going to ask the court to find that that was legally insufficient evidence to support view that is our argument and that's the second argument relates to the jury supplemental charge and that is actually the judge gave a charge that was confusing judge kogan basically element i i don't know how no one picked up on this you know so my question fundamentally is how is a defendant prejudiced by an instruction erroneous say assume that as an element for the government to prove now i understand that there is some tension in that i simply think that i'm relying on cases such as united states cops that where the charge is confusing the jury comes back gives every indication that they are fluxed by the charge and then the judge instead of giving the very simple answer that the jury appear to want simply says go try that with this charge again and then almost immediately the judge comes back with a burden of guilty that because the court did not in fact clarify what the jury needed to have clarified to render a fair decision under the law my client should get a new trial because mars is our jurisprudence basically to the effect that not only does there need to be some objection but also object or have to object to the charge but also offer what is a legally correct charge and order for this argument to be cognizant of all i think that's true right what was charged it is the defendant acted knowingly and willfully with the intent to deprive the government of use and benefit of the property the jury comes back and they said lesson for what this third element does that need to be proven that the property belong to the united states government and the correct answer is through this whole case everything have to show that the property belonged to the united states government so what mr keller which who represented the defendant in the court below said judge answer yes and the judge says yeah i think that's right but i'm concerned that i will point much you know the potential ambiguity i'll say in the charge if i do that and i will therefore just tell them to re read it the court didn't fulfill its function and basically told the jury that had a very specific astron that had one legally correct answer which was yes because it has to be owned by the government the judge didn't do it then point out the lingering ambiguity no but the judge objection you know there were three objections that this press size to that you know coming in rapid succession and i simply don't at this moment when member of what came right after or if they all came right every time they were just calling to me after yeah i don't think that and then but i'm simply going to say that i'm not entirely clear on the backyard but i think we had a hopelessly confused jury with a clear answer that simply was not given by the court and since we don't have any way was the charge as given now from side to side the question was the charge that was given and as repeated correct legally i don't believe the charge was correct or legal genuinely do not believe that i think they element the third element that the judge was talking about that i recognize that this is a fairly standard charge that the defendant acted knowingly and willfully with an intent to deprive the government of the use of the benefit it seems that there is a very specific intent which is really not what the laws that this defendant didn't even have to know specifically and willfully intended to deprive the government of money she's that's sort of hard but conviction doesn't doesn't didn't then help your client i recogni that that is a a difficult point for us to overcome you know i will state that i am yeah thank you very much welcome you've reserved two minutes for a bottle m it please the court my name is ian richardson i was the prosecutor at the trial below i'll take the second point first and that relates to the supplemental instruction the judge kogan did which essentially was to go back and review the instructions as a whole that was not error in this case because he correctly identified the jury's confusion stemmed from their reading one of the instructions on one element third element of the offense  isolation from his instruction on the first element in offense by instructing the jury to go back and read the instructions as a whole he clarified the instructions in clarified the jury's confusion which makes a good point that third instruction even if read in isolation by the jury only would have helped the defendant it would not have prejudiced him in the miss rich and the thought of with the error point was there  objection the first time to the second so this so this reading there was no objection to this instruction only a rose when there was a possible when the jury note comes out and they ask questions and cogan i think recognizes them might be some ambiguity but there was no no challenge to the instruction as a vigil together that's correct your honor there was no instruction and there was no contention until the argument here that there was are other ways to put that but it's a shorthand reference to the true owner of the property so read it in context the instructions are legally correct there was no objection to the instructions when they were initially given and there was no claim even after the jury no it was given that those instructions were incorrect so the real question here is whether the district court erred in its supplemental instruction and in choosing to refer the jury back to the instructions as a whole the district court made clear that it identified the source of the jury's confusion as the jury's failure to read all of the instructions that was apparent from the note which referenced the thirty instruction on the third element of the offense but asked a question that was already answered by instruction on the first element of defense so even though the defendant didn't the defendant didn't preserve its objection on jury his objection on jury confusion in the district court by stating that was the basis of his request for the simple yes he didn't explain how a simple yes would have resolved jury confusion better than the instruction the court gave but even if this court were to view it under an abuse of discretion standard the district court appropriately exercised its its discretion and gave a legally correct