that jury instruction constitution an improper commentary on the evidence and it did in two specific ways that if the true plain reading of the english language demonstrates that it did the fact is that chart specifically modify government money or property at the source of the money been made an issue in the case it had but there any evidence that the money came from any source other than government agencies there wasn't evidence that it came well the evidence that it came from the state agency it was administered by the state agencies so there wasn't any evidence contrary to that the debate offered that at least some of the money had originated with federal agencies no there wasn't evidence that it didn't originate so what difference did this make while i was a say or not harmless because this is not i believe this this was not the most simple issue for the jury to decide you had relatively low level  functionaries from the state government agency saying with this money alternately trace back to the federal government and you had twelve people on the jury that had to believe that in fact this money that he was receiving was the money from the federal government and there was no evidence to the contrary there was an evidence physically saying it didn't come so hard is it to believe that i think that doesn't strike me as a tough finding well i think the evidence to the contrary was the fact that the jurors walked in and they said this money came from the seattle housing authority that the seattle housing authority that is not the department of housing and number this money came from d s h not the federal department of agriculture and they needed to be convinced by the government the government's burden to show that that money was indeed the federal money in that state governments get money from washington from washington d c is not an exceptional one i mean i don't know what proportion of the population reach newspapers anymore but i pick up the newspaper this morning and see reference to federal funding for local programs and i just kind of background noise so why somebody would disbelieve that when there's no evidence to the contrary i have trouble understanding i don't necessarily think it's a matter of them believing in their disbelieving but to the point that they understand this money was the federal money that was being taken i think is is what's at issue here i think people when they first see that seattle housing authority they think that money is coming from seattle and i don't think that what the government presented was enough for them to prove beyond reasonable doubt to these twelve people that it necessarily was the federal money that was being taken care of so there are a number of cases that say it is the court's discretion whether the indictment goes back to the jury how is this any different in that i think this is much different from the indictment going back to the jury because the indictment is something that is clearly stating this is the indictment this is what the government is alleging i think if the government if  specified this is what the government is alleging everything would have been fine that's what they did with regard to the other charge the problem here is that it only said that that's were alleged it did not say this is what the government is laying out on the indictment it's saying these are the alleged theft of government money or property and then the second way in which i think this was particularly problematic is if you look at the way in which it identified these government agencies with regard to the first two it said seattle housing parentheses department of housing and urban development which i think to most people would be kind of as an aside saying you may read that as seattle housing authority but really believe me that's the department of housing and urban development but then if you look you c fourteen it doesn't even mention the state d s h as it just says department of agriculture so they can't have their cake and eat it too they're either they're using the panther to cause an aside to say this is really that a whole lot of contentious issues in this case and i think this was one of the more contentious issues that there was and this was an issue that wasn't necessarily clear to the jury they did not have someone saying ok here's how you trace the money this is the bank account the money goes into it goes from this account or that account and then it goes out to the people and it's clearly the federal money that is going to these people i think this is a question that when you're talking about twelve people on the jury there's more than a reasonable probability that they would have said i don't know that that was the federal money you know this is the state agency i'm not sure that that particular money that we're going with the federal money when i get it is in the record to show that it well they introduced the testimony of four people who were relatively well off functionaries saying you know the money is one hundred percent from the from the federal government and they had a chart that said how much is federal money and how much is the money but again i think what they needed to do to make it harmless beyond a reasonable doubt would have been to spell out exactly how the money went from the federal government to the recipient and to kind of say look there is no transfer of the money to the state to convince the people of the jury that the money was actually federal in nature so i think that ultimately what the judge did here was much more serious than what happened in these other cases that we cited in our brief in which the court said this is my opinion here what you have is the judge laying out what happened here as there was a fact saying the alleged theft of government money and property so it's more  this is my opinion and then the jury could say well that's his opinion i'm going to disregard it so the relief you're seeking in this case is effectively a recent saying yes you're well ultimately i think it would be a recent thing i think it would be to pick at the conviction on those counts but i think please the court benjamin diggs of united states appellant's argument depends on his mis characterization of his appeal as an issue of judicial commentary it's not the district court did not comment on the evidence but simply summarized the government's allegations and only after accurately instructing the jury on the elements they must find proven beyond a reasonable doubt the court should affirm appellants conviction on the three appeal counts of theft of government money because the court clearly and correctly set forth the elements of that crime and was well within its discretion in formulating the instruction in a way that guided the jury's deliberation now in attempting to wedge this into the framework of judicial commentary appellate relies on distinguishable cases where the court does insert itself into the proceedings makes comments or observations gives opinions sometimes permissibly and sometimes not but appellant cites and can cite no cases where the court insidiously to uses his word comments without commenting as is asserted here and as your honour's have raised even if the inclusion of this chart were error it's harmless error the evidence of the federal source of the stolen funds in counts nine ten and fourteen came through essentially unchallenge testimony of four government witnesses and appellant raised no evidence sufficient to support any contrary finding i was just curious how i've never seen a chart like this as a jury instruction i'm not telling you i think it's right arrives never seen it done before was this something that the was submitted as part of the government's proposed jury instructions or the court come up with this it was submitted as part of the government's instruction your honor and as your honor asked it would have been appropriate and  de more traditional for the indictment to go back to the jury but in this case it was a detailed fraud involving a number of agencies a twelve page indictment where frankly the government's feeling was this was telling the jury that that's where the money came from and i do find this to be misleading when you probe or it i don't know if you call it commentary i think it's a wrong struction i mean i don't ever jury that that's where the money came from we're on i think it is clear from the plain language of the instruction that this is the government's allegation and is a summary of the government's allegation and it's not clear because it says alleged that they didn't say alleged source of the money or her alleged property but i can't so it is not it's not just a summary of the allegations that the court had introduced the crime just moments earlier saying the defendant charged counts one through fourteen of the indictment with theft of government money or property so that theft the government money or property is the name of the crime and by saying the below charge lists the alleged theft of government money or property it's just orienting the then the judge emphasized that in his verbal introduction to the jury by saying you'll see the counts again you'll see the counts on the left the dates the government's alleging the amounts and the government agency involved oh let me just put it this way don't i have no debate in my mind over whether this was harmless or not but i definitely think this is wrong and i've never seen it done before and i was a district court judge and i wouldn't have done this and fact that it's an allegation as i mentioned it's said twice within the instruction itself both in the written introduction of the chart and in the verbal introduction of the chart but again when you look in the instructions in their entirety not taking one in isolation but in the context of the entire charge that's where the government's argument about the mail fraud instruction is helpful because a nearly identical chart is introduced in that in that crime and the judge gives nearly identical language saying you'll see the dates the government's alleging the addressee the sender and the item mailed so let me let me jump in here i think maybe a better answer to judge rod last question is i understand your concern judge wardlaw but he's right in this case it's harmless ok so while we take that a person is going she says she's made a point here i don't want to make sure you get that point she's making but then explain to us why doesn't matter in this case it doesn't matter in this case your honor because the evidence was clear beyond a reasonable doubt that no rational jury could have found could no rational jury would have  acquitted on this charge with or without the chart at issue that's because for government witnesses testified essentially on challenge that this was federal money and only federal money first we had a program manager from pod who ran the program for this low income housing program that appellant used who testified that there are only two sources of rent here the discounted rent paid by a pallant and the federal money that is the subsidy that is the lawsuit issue next the property manager for the building involved came and gave the same testimony that the tenant pays the discounted rent and the balance of the balance of the rent between what is paid and what is market is hud subsidy there was essentially to two identical questions asked on cross examination to the program the hud program manager that essentially confirmed that this was federally sourced money said so hud pays the money to seattle housing authority yes yes and seattle housing authority provides the subsidy but made clear on redirect that there are two and only two sources of this money what is paid by the tenant and what is paid by hud as far and then in closing argument defen raised kind of an aside that we don't know where this housing money came from but that comment is simply not supported by the record we do know and there was testimony about that as far as the food subsidy that's the subject of count fourteen  to government witnesses testified about the source of those funds one testifying that the food stamp program is federally funded another testifying that that money comes from u s d a department of agriculture and that can only be spent  a sanctioned locations there were no questions asked to either of those two witnesses on cross examination and there was no mention made in closing argument about the source of the federal funds for the food program an exhibit was also introduced regarding the  there were no questions or disputes about that exhibit nor about the testimony supporting it unless you're owners have further questions the last of the convictions be affirmed thank you very much counsel i'll be very brief just two quick points one with regard to the actual propriety of instructions i just wanted to clarify is the government pointed out they the judge went on to clarify clarify his points orally and in doing so made it more modeled not last because he said he said the dates location again broken up an account from the outside the dates the government's alleging the amounts and the government agency involved so there he said the dates they're alleging and again didn't imply allege to the government agency involved no and i appreciate your i think mr dix makes a pretty strong point that this was never really an issue at trial was it i've read the transcripts and pretty perfunctory testimony without much cross examination i understand your honour's you're on this point but i still say that of the state that they have some budget from the state and even if you have witnesses saying well i'm my understanding is that all the money comes from the federal government and then it goes straight through to the to the recipients i don't think that in the minds of twelve people that necessarily proves that this was the federal money that he was but in closing for example did you argue that i forget who are in the case but did the did the trial counsel argue that was the government said he the attorney that they're closing simply said it's not clear where the money was coming from i think they were relying on rules residual doubt on the part of the jurors regarding that issue because i don't think that those four witnesses as adamant as they may have been yes this was federal money that it was enough to overcome the doubt in the mind of a juror that this state agency may not entirely be giving out federal money and because of that i think that these convictions on these counts should be once they're more questions thank you very much thank you counsel very much thank you both for your argument in this case this matter submitted