legislature to appropriate technology companies to the region western pennsylvania region where it was a dearth of industry after the steel was required in western pennsylvania they're good but the you're question is just because he  company where would you brought in their regard however i see what you're suggesting to us at the least that certainly not every breach of an employment relationship or of them to an agreement is going to rise to the level  what other what other source of out of state do positive war should we look to at there that can provide some bounds to what is otherwise available to federal prosecutors under thirteen forty six which i would agree with you franklin was contracting with another company and he was making profit with your company that would be a breach of future duty on the allegation was that he was misusing these these state funds for his own personal benefit should have been used for the benefit of the corporation maybe he was using the performance to form before going after he had gotten into trouble with a conference that they're paying off congress which didn't raise enough money for us she was actually o ben franklin but who the courts are where my position are give me questions the concept of honest services so often it does involve self dealing i guess what we're trying to find a way apart his look talks about breach  but are you saying that we have to look at the nature of the breach oh it's you know it involves the failure of honest services to another entity in that they were essentially didn't didn't get what they were paid for much in the way that the public official who does this robs the   i'm probably thinking outloud but i thought i would use the rest of your time since you did and you very much so hold on hoops but nothing but let me ask you just one other question with respect to the charges involving the navy made let me make sure that i understand your position on that my position simply is he does not own the navy  law are submitted points for charging the jury was specifically instructed that the defendants had an obligation to act in the best interest of the corporation so if i pay if i spend money over and above the budget for the corporation and my board of directors is upset on the c e o they go to the local prosecuting attorney and i get i sense something through the mail i pay more than i should for something and they don't like it i get indicted no you criminal law where someone's got to wonder whether it that twenty thousand dollars over expenditure for the picnic versus a forty thousand dollars it's really something we should criminalize well it would have to be part of a scheme an artific wrongful you know i think what we have to do is look at the facts of the case what evidence we have here i mean you know there was a wanted in whole still circumvention of certain physical controls that the board of directors had in place to be sure the funds are being properly expended you had dr mcgee and having underlings pay for social events charging a keel over saw their credit cards knowing full well that the board of directors was going to scrutinize his credit expenditures you had  the meter but when checks over the amount of ten thousand dollars of war member had to sign them mr dr mcginn did to the undermine that charge this is effectively underlying relationship but that's correct how do we take it back to say that these two individuals thereupon because their entity had this contract that they had therefore that well they do share dut i have to take you back to something you said about three minutes ago and i think this is what i heard you say that every agency relationship is inherently a fiduciary relationship well he did he's not coextensive with the specific relationship of principal agency or perhaps more correctly the other way around well i suppose that what is required is that there is honesty between the agent and the principal and there is a degree of trust it's a ball the need is a relationship on the statute meeting if you are correct if every agency relationship is h relationship then why isn't the position that i think your adversary suggested that potentially under thirteen forty six every breach of the an employment contract might not respect that there be a limiting principle one thirteen forty six and courts have indicated that the statute could have a seemingly limitless reach so what should what you know limiting principle be in these types of cases had and i do that other courts in the sinus have taken into account the fact that thirteen forty six obviously must be read in connection with case longbowmen thirty forty one bill for thirty forty three wire fraud and i think that the overall knitting princip if one is simply applying materiality within the employment contract setting and what constitutes a material provision of an employment contract may be sufficient for purposes of a civil misrepresentations those that are not material for example we go back to the example of the hourly employee in our early i mean it's a de minimis infraction but if that same ploy he has fifteen ghost brief and i think why the courts have examined thirteen forty six in the context of the neter decision as well as other cases line valving thirty forty one and thirty forty three on how do you read our murphy  murphy case i think murphy is distinguishable on on the facts that it did involve state political actors why should that make a difference officials that is you know a public official knows or ought to know and is on notice it's say that there are certain things that they should or should not do when you get into the private actors it gets a little bit different and it would seem to me there's even greater the greater need for a limiting factor in the private area than there is with the public official  relationship and then went on to cite the seventh circuit case and saying in defining what fraud is deceit includes the deliberate concealment of material activity that underlie the you know what the is in the title or so that last and i think we said this in panama unless we start criminalizing everything imaginable i think it jeopardy in that event i think is more than sufficient what do you get by by charging the services that you wouldn't get wouldn't be able to allege if you were leading straight mail fraud and artifice to defraud separate apart from service but that's a good question and i was not involved in the charging decision in this case i as to what he did what they did the go back to judgment question i mean does the government need honest services and honest services theory and order to prevail in a case like this i believe so you're yes i do mean clearly it all stems from their failure to render on the services are their ability to deprive the need want to services so i think that that's what we get that we would not typically get in a regular thirteen forty one or thirteen forty three prosecution what case would be close to this terms fact pattern if i tell you i haven't found one  snow and both can both see ben franklin case situation and navy situation you're saying that the underlying right or duty here is the that was an argument that we made that's what the evidence shows now what if we did not have that what a contract be sufficient i believe that well obviously it would depend on the terms of provisions of the contract you know prosecution the problem with looking at it that way is that there don't seem to be any standards that people can can guide their conduct but i'm not saying that that was the case and the facts in this particular case where some of th some of the things seem to be pretty egregious but if we were to say that some contracts might be some contracts might not and you get and to close questions then you really get into a situation where there's no real limiting factor to the scope of the honest services theory and i can appreciate the concerns which is why predicated my my argument with we have to look at case law involving the mill fraud statutes and the principles for thirty forty six case if if it's going to be predicated upon the breach of a private contract both are no further questions i'd ask that the court from the judgment best interest but it's certainly not a crime none of this is taking this is using state funds intended for one purpose this using is whether the put he was taking state funds that he was using it as