extramarital affair she was authorized to use the business card as she saw fit dish your honour's was her defense at trial however because of the district court's ruling the jury was never given ample opportunity to consider th at the district court abused discretion in two ways one when it prevented a key witness from testifying and two when it failed to instruct the jury on her sole theory of defense so i gather these  you know even if the jury believed her defense that she was in this kind of force sexual relationship with her boss she still violated the statute is what is your response to so therefore there was no intent to deceive or attempt to steal any money because she was acting within the authorization that she would get and for that reason that's why we believe that their witness should have been testified as well a testify and then asked the jury should have been instructed on good faith because based on her testimony and then that was her theory that she was authorized and she didn't bat like the statute well you know it was his and that covered the just the general intent to defraud charge i mean that is to act knowingly on the specific intent to see what someone gets the same benefit from that general charges she would for a more specific good charge which you know i don't think so in this andrea testified that although she was having this affair and she hid those purchases on the leisure from the credit cards she was doing that to hide her failure from the rest of the company and the employees one being mr witness of what so therefore she did make some intentional acts that she ordered or to hide or to deceive but those acts were done in good faith of the arrangement that she had with her boss so based off of that testimony the willingness to knowingly february of two thousand and eight she borrows six thousand dollars from mr wood right and she repays it through payroll deductions well why would she have to borrow six thousand if she had hoarding to her fairy unlimited use of credit cards including cash advances and that inconsistent with your innocence there the loan was a different was a different set of circumstances when she was caught into the office he overheard her talking about her financial troubles and then offered her the use of the credit card the loan she may have needed a large sum of cash at one time but i cannot speculate because those facts didn't come out on the record at the time so i don't know why she would have needed a large sum of cash at one time versus the use of credit cards to maintain her daily over the serving year she took out almost four hundred sixty seven thousand dollars us like eighty three thousand a year she could easily have covered the six thousand with the amount she was taking out every year on these credit cards oh yes and i understand that your honor but without that was not given in to test that was matt dived into in  me day to day that i think they could be two different circumstances and they can live together and still suck but our will is what barbara greiner was a witness and she said that your client said she had quote done a terrible gates her defense and her testimony at trial thank you even save some time for rebuttal so we'll hear from you again questions there is no question in the record the loan from mr whitten to miss andreotta occurred before the sexual relationship started and then her testimony at trial and i guess i don't represent this andrea but i want to clear this up was that she admitted to ms greiner i used the money she also admitted to a police detective that she had used my purchases with company credit cards but her testimony was that she thought until the case was brought into court on the federal charges that mr whitten was going to want to take care of it if i could we have raised four issues first we challenged the conviction on count one which is conspiracy because we contend there was no evidence to establish a meeting of the minds what judge abrams found in denying our motion for directed verdict authorize use of these credit cards now the fact is the testimony not just from his andreotta who took the stand and completely exonerated my client was that mr ricks had no checking account he didn't handle the finances every week and this is what testimony he would take his check on thursday or friday to miss andrea and she handled all the finances one thing that is extremely important our second argument which i would like to focus on here is that in during mr witness testimony he it was kind of a odd exchange between he and the united states attorney what did mr and this is what's important the unauthorized use of the credit card was discovered in august of two thousand and thirteen stacy rix continued to work at industrial management until november of two thousand and thirteen on that day mr whitten brought him in and his testimony at trial was that stacy admitted he knew tammy had used these car this is the united states attorney started bearing down on him well tell us exactly what mr rich said mr whitten finally said he told me that he knew that tammy was making these charges on his credit though that is the only direct evidence linking stacy rix to the authorize use of these credit cards why is that important because on cross examination confronted explanation did mr ricks give you mr whitney only a few months after he fired stacy rickson nov twenty third paine said he didn't say anything he just turned and walked away now after that what do you think about stacy i don't know whether he did it or not but he's live in whether i can have him here the same day that according to his trial testimony mr whitten says i don't recall making that statement in my case in chief i said i want to tell him he said it sounds like something i couldn't say that is that is that there mark you're talking that no he says i don't remember statement and then my next two minutes i just like to address the authority on that and to establish that the failure to admit failure to recall making a statement does not bring it outside of the was more than one loan that was the first loan that i saw that according to ms andreotta triggered mr witten's propositions but there was also a later loan and there were a couple of later loans and there was also  and this is important the point at which to stacy rick's used his credit card to purchase personal supplies and then paid that money back and that was all in that period between two thousand and six and two thousand and eight and evidence really showed their financial need and it after that it's i mean it is like two thousand and eight after those loans after he he demonstrates his he that he understands that he can't use these credit cards for personal use that all of a sudden this incredible change in their financial situation comes about and these incredible dollar figures start coming in in terms of the cash three thousand dollars in cash you know that suddenly shows up and these you know all of these lavish trips that just four years you know less than four years ago they were taken out these loans i think is very important and i think you know it it demonstrated to the jury that mr is really important to him because his his willing to say i should say to ignore it was was very is instrumental in why the jury was willing to convict him and his his he had this knowledge of all this money and that there will be i just knowledge you can be married to the and that doesn't mean you get convicted for being the i thought the way the indictment was structured with words that these payments were made for his benefit car insurance for his car car payments on his car that joint phone bills and utility bills and did not your evidence of stablish in one instance he actually swiped a card that's right we often talk so your case is more than just he knew his wife was a knowledge was established by the evidence i also the jury got it right and the jury had the opportunity to see is lack of knowledge and that the district court got it right when it was declined to overturn the jury's verdict and we respectfully would request that the court do the same do you ha n just to quote you know why did the government object to the good faith instruction when in the been better if the instruction had been given yes i do i do agree that it would have you know i think that and when you read the part of the transcript where that takes place he says was just it's a it's a he said she said thing and so they he just saw it is more or less a credibility determination he talking about i'm sorry the prosecutor who tried the case you know when he when is that when asked about whether or not the good faith his position on the good faith charge said you know this is a he said said she said kind of thing it's not really he didn't see her claim as evidence of  exactly what the court said earlier which is that the judge's charge on willfulness and knowingness was sufficient and that there's there's a a lot of solid case on the circuit as you recognize that holds that as long as the charge covers the points that would have been brought out by the good faith defense that that's sufficient and and we believe that it was sufficient and more questions from the court thank you thank you for your  time as far as with the gift instruction i want to be clear that it's not a credibility issue that's what the jury to decide it's whether there was sufficient there is a foundation for the instruction to be given this was her that's not a person a rule in this court has been very clear on there and you have to look at the facts of the case and to determine whether they negate it south and so when i again look at the facts of the case the instructions in the way the court to find intent to defraud the jury meets him know that good faith is at the complete defense to intensity of fraud but it's opposing counsel just said i didn't mention this extra instruction when i ask you my question before but willfully other arrangement the jury should have been able to give that instruction and consider that evidence along with that instruction but if you don't get that instruction then the jury never had a roy quick my client so it's not just the credibility issue here that's for the jury to decide so if the assistant u s attorney when he's trying is saying that he is a he said he said she said situation then the jerry should have been given the instructions on her side of the story and his side of the story but they weren't were the trial counsel no i wasn't i did try and counsel i would assume argued this very language and said my client is and riata did not but if you believe her testimony did not do anything purposely to disobey the law i'm sure i would suspect you made that argument you know he did it but as we are no juries you know jury deliberations are long they're intense but they take back that charge and that charge is what judge barnes if i might i just want to point out that there was no direct evidence that mr ricks actually schweik that card goodyear the manager goodyear said he didn't recall the specific transaction there were some distance differences between as a credit card company credit card in his nine you know he didn't do it she did it and he gave his wife the credit card and also the handwriting matched his handwriting is that well there were some differences in hand right there's garnett but the fact is that credit card was a lot of testimony he didn't have access to the credit card the other evidence was that when these party separated in the fall of two thousand and twelve he borrowed five thousand dollars from his mother to open up an account he didn't get a cash withdrawal the whole time they were separated he started making payments on his vehicle that she'd evidence came in like there was a gentleman who had accompanied the defendant to colombia and he testified that we just went down there to buy some leather goods and we were going to start a store when we got back unbeknownst to this gentleman mr shanti he a few much later had met with the d e agent act in under cover and told him all the specifics about it when he was asked by the you next sister united states attorney and he recalled making this statement you recall making that statement he said no no no and of course then the fifth circuit held that clearly is evidence it was proper like mccormick prior c statements may have been oral in an unsworn and the making of the previous statements may be drawn out in cross examination of the witness himself or if on cross examination the witness has denied making the statement and i underline this or has failed to remember it the making of the statement or maybe proved by another witness it was reversible error to prevent miss dean from testifying there's no question which side of the blue case is consistent with the law in a circuit is consistent with the fundamental rules of