e payments to the wounded career going to marine career foundation were not benefits for purposes of the statute but there was more in this case it wasn't just the payment of benefits that occurred here it seemed to that the government almost co managed them while they were getting started you know them special advice and they were coddled in a way that is beyond just sending a check does that make any difference if it does not your honor first of all the benefits question is decided as a matter of law second of all it what does that mean that it's decided based on what the evidence was here as to what constitutes a benefit and then whether they got it right what i meant your honor is it would be it would be an odd circumstance for v r e payments to an institution to be benefits in one particular case because they were a start up more established institution like a stanford or a brooklyn college they wouldn't be but that's but that's assuming that only the payment is the benefit that's my my point and not benefit means hands on help for example th in stanford's case they won't get a benefit and maybe in this case they will but it doesn't mean hands on help i mean within the context of the case law within the context of the statute it's clearly financial benefit so for example in the fisher case we have the supreme court talking about medicaid payments that the costs include payments that will benefit the community at large it's not quo payments in really all of the cases for example the virgin islands case that the government sites it's a grant to the virgin islands it's a benefit that's a large us it allows them to fund the government or in the case of the aids benefit to puerto rico again these are not quid pro quo financial services it's not a benefit in the sense of we're going to you know maybe help you by giving you some advice as to how you pencils even though they were the government and therefore be liable under the section right and because of that there is a danger in six six six being interpreted in a particularly broad way because it doesn't have to be t honest point that is correct what what about the government accreditations of of this group of your client's business as eligible to to provide education and therefore have the have the students have the area benefit very benefits is that accreditation a benefit no it's not a benefit your honor because that is any time the government sped they sped up the accreditation of this group because they liked what they were doing they may you know they they worked with them together to make sure they would be eligible there's that does that it bundle of things and up to a benefit no your honor because the statute in all the case law confirms it's focused on a financial benefit and it's not that we and your clients financially benefit or the organization from its eligibility to receive  educate people with federal funds your honor the reason i was going back to the first principle is because that is true any time the government enters into a contract lockheed martin by the fact that they are deemed eligible to build a joint strike fighter benefits tremendously lockheed martin could not exist but for the defense contractor is not that not clear on the record to me after all lucky martin and boeing built build commercial airliners one of the problems with this case in my view is that your client's business exists solely to provide services to the veterans correct and would not be viable without things that have just in the absence of accreditation by the department of veterans affairs and their cooperation that when your clients would not be in business there is there aren't any there are any veterans with their own dollars on the street seeking this service portion a significant portion of the budget wound up or the funding wound up coming i think the first class was eight of twenty five students receive v r e benefits but let's look at what the v r e counselor actually set she's the director ruth fanning of the v r e program for the v a she says quote it v ry program it doesn't fund schools we don't provide grants we don't provide payroll we provide payment for participation of a specific veteran or transitioning service member to attend a program in accordance with its course catalog e works the same in terms of the financial benefit to the service member these are the any institution whether the veteran wants to learn to be a truck driver wants to go to a four year college wants to go and get a teaching degree they pay the commercial rate charged by that institution hands down across the board yes that institution needs to qualify but any government contractor needs to qualify i mean we can posit we don't you know check our car our experiences at the door that you know whatever the janitorial service is for the ninth circuit go through a government contracting process everything does it's our taxpayer funds but that does funds commercial funds are not synonymous with benefits if they were the statute would have said funds could you could you distinguish fisher for oh absolutely your honor so it really goes to and just a sufficient fissure we're dealing with medicare right let me quote allow will costs include amounts which enhanced the organization's capacity to provide ongoing quality services not only to eligible patients but also to the community at large so i can tell you as you just told me that only eight of twenty five of the eligible people in your claims program the first year of i'm interested so it's a program that provides medicaid they pay for not just reimbursement right for example in medicaid they're allowed to to write off portions of medical equipment that they'll pay they'll pay for things like programs for hospitals to put on for the general community it's not every cent be different if your clients built separately for and they said your tuition is a thousand dollars or five hundred medicare medicare start adequate payments and assistance to the health care provider is itself one of the objectives of the program and that's a quote from fisher that's what really what the supreme court focuses on go back to judge gr have and i don't think i think the government over overstates the nature of partnership in their briefs but but given the cooperation that the that the v a entered into with with your client's business think i'm doing a poor job of explaining it all i know you do have good cause that their medicaid or medicare payments the amount of money is not limited to reimbursements they pay hospitals for more than services rendered they pay them in order to benefit the community at large there is a there is a delta so let's just say that the actual fee for service is ten dollars well medicare medicaid allows twelve because they want to they want the service of the hospital to benefit the community at large it's that delta it's we see it in the case law as we are we're in fissured do you see that as a requirement it appears to me that there was a great deal of discussion in the case about congress's intent to make this a very far reaching and broad statute and they talk about looking at the purpose and the structure and the nature of the operations but i didn't see anywhere where there was a requirement that there be extra money that isn't reimbursement or isn't given to an individual for health care or you know training for jobs or whatever am i missing something i mean that may be correct but i didn't see where that was a requirement on the part of the court well i think that is that is passed to be the nature of the distinction between a commercial trans action that's what most of the analysis focuses on is look we're medicaid is not a medicare medicaid is a benefit a medicare excuse me is a benefit to the hospital because it's not limited it again they say the pen that's that happens to be how they analyze it in that case but the question here is whether the programs purpose is one of public benefit and it seems to me that it is primarily to benefit individual veterans but has a greater social benefit by getting people off welfare and uniting getting them productive in the community which is a public benefit but not to the institution because again it's the financial monies to the institution that they are not paying there is no delta there nothing beyond but that's why i asked the question before every institution of education that i know of that has a single charge some of it's money to educate the students some of it's money to build the building so me the money services given to veterans so if if the wounded marine colonel said look you know what here's the tuition is ten dollars we want twelve because we want to do community outreach the ari by it is illegal if they if you only get to tend to use to for community outreach is it would it be illegal no but it wouldn't be so in the real world what the tuition does is building institution does it not but that is true of every i mean the same is true of northrop or any government contract the point is it's not government funds just any time you pay with our tax dollars not you your honor but our government your hunter pays a contractor that is a benefit in a larger sense to that contractor and that's what fisher says look the government funds in some contexts are always benefits they are benefiting the person but what we need is something other than a commercial transaction other than fees for services rendered we need something like a grant something like a subsidy something that showing hey we are not just benefiting our service member we are going out for our purpose to benefit your institution and the the the testimony better for their institution or to benefit the the benefit that the community at large via the institution not just fees for services rendered i have one separate question on this issue and that is to what does it matter that this year she was not preserved below in a little twenty nine motion where your basic theory the lowest that the evidence was insufficient on the state of mind but i don't believe you raised this benefits question  so does that make any difference no it doesn't not and last night i was reviewing your honour's concurrence and you up because i know that i thought this might come up it doesn't because this is clearly the jurisdictional provision and even as your honor noted in jew that is one clearly recognized exception to the plainer rule that when it's all a legal matter as to the jurisdictional component of a criminal statute do nov here the question is whether the government can establish the jurisdictional element they did on this record establish the jurisdictional element i mean i understand there are wants of it but i would say two things that if it doesn't fall within the jurisdictional exception and we think it does then there are two reasons why it would still remain to novo review the first one is again as your honor noted in jew this court at some point will have to take up on bonk whether or not the pure legal pure question of law is good law your honor no it's not another circuit it is currently the law of the circuit that's why your honor concurred i assume rather dissented in jew so if that's the deciding characterize this the rule twenty nine is doing anything other than preserving it and if i could just answer i know i'm over but the reason why is because the district court says basically do me a favor we're going to presume that the rule twenty nine is is a prop is deemed properly may the close of the government's case ok nobody objects by rule twenty nine a general rule twenty nine all counts are elements you can serve th efficiency of the jurisdictional challenge so for those three reasons the jurisdictional exception the pure question of law exception and the rule twenty nine as set up in this particular case by the district court it's d thank you we used up a lot of your time so you can have a minute for a bottle think you're on  or recognized w m c f in this case was uniquely situated as the witnesses described receive special treatment it was unique there was one vendor per year why why is that a benefit within the thousand dollars there was a notice sent that there was an overpayment of approximately twenty thousand dollars in the invoices but at a minimum that there was a six thousand dollars overpayment for each of the eight students that's a forty eight thousand dollars benefit the w m c testimony was that the w m c f received special treatment i guess i'm asking a different question if if your colleagues characterization of the program is correct all they can pay for is to issue correct that's correct but we know in this case that wasn't the ok so is it a government benefit if the v a gives you money it's not supposed to when i should say well there's two answers to now one if you look at this for example the second circuit case from one thousand nine hundred seven there an organization received funds it wasn't supposed to receive at all because the veteran was no longer at the at the home but that's left of funds that misappropriation of funds was nonetheless considered the benefit that brought the organization within the statute same can be said here we also have evidence that f at the time of recertification change gets to wish an from eighty eight thousand five hundred dollars for a ten week course to sixty four thousand dollars for a fourteen week course there was no explanation of why the tuition had diminished but that twenty four thousand dollars a reduction in price alone could support the jury's verdict that the c f in its inaugural course received a twenty four thousand dollars benefit for each of the students that had been rolled because of the overpayment sought so let's once go back for a second let's assume there were no over payments and all that the agency did was help them set up this organization because they thought they were going to be a good vendor would there be benefits under that circumstance even without the overpayments in this case there is evidence that have you on c f receive benefits when what is the what's said if if you look at the language of fisher the point of fisher was are the providers being propped up by the program so that they can provide ongoing services to the individuals that the government deems worthy in this case w m c f was propped up by the v a in order to provide specific training for veterans and a cohort of their peers for the worthwhile purpose of ensuring their training and rehabilitation the w m c f entire viability is your honor recognized at the beginning of this argument depended on v a funds in check out of every sort of technical college educational institute out there today they hairdressing institutes the institutes that teach people to be kirk's whatever they all depend on government funds and if they depend on government funds they may fall within the scope of six six six be your honor the point here is that the  much testimony both in the documents as well as it trial that the v a treated the w m c f specially they provided retroactive benefits and approval for that for veterans who had accepted the program as a gift that could not ordinarily happen but with the v a did for w m c yes because of the special training it provided was provide that retroactive accelerated approval for the inaugural benefit that eight inaugural veterans unrolled in the program it also held the v a c s hand in selecting students who were appropriate for this training program the testimony from ruth fanning was initially but that's not something that the v a ordinarily does if a veteran comes to them as part of the rote rehab program and says i'd like to go to stanford or berkeley or san diego state there is no coordination with those universities your colleague says the benefit must be financial not simply well and in this case it's not just we're going to be nice to you it's the financial viability of the organization the seven hundred eighty thousand dollars it received in two thousand and eight of the of its one point two million dollars budget that's a financial benefit it received because of this different just because the government it was more liberal and give the tuition to the people who went there because of the instructions that the supreme court provided in fisher and fisher the supreme court said the hallmarks of an organization that recei organizations that are essentially propped up by the federal program so if the b n c own operations are one of the reasons for maintaining the program then that recipient is a recipient of a benefit within the meaning of the statute that is precisely what happened with w m c f the regional office of the v a here in san diego saw the w m c f as a unique training opportunity this transcript is replete with references to it as being unique and special and in that sense it's similar to the special treatment programs that fisher identified in the medicare program for small rural hospitals for example or hospitals that primarily treat low income patients those hospitals rec more in the level of funds than they would have otherwise in this case each veteran still got only the same jewish and funding that he would have gotten even if this wasn't a special well there was certainly evidence that the  more than its tuition would demand for example they claimed that the students were taking home tens of thousand dollars of worth of equipment that didn't happen right so in this case those funds as your honor noted did go to the ongoing viability and operation of the c f it was not simply the salary for instructors that went out it was eighty eight thousand five hundred dollars per student for a ten week course there was as as one of the board members and instructors noted in a letter that was submitted as one of the exhibits that was an exorbitant price that didn't meet or match what the training was in that ten week program and we know that the devil you m c f recognize that because they reduced their tuition by twenty thousand dollars per student the very judith pike shall ask you to move move move on the invoices and how did that impact your work and her testimony was that they would have to close their doors because they were contingent on v a paying those invoices that caused concern because we want to make sure that they would be able to complete their programs so we went and assisted w m c effen paying those invoices in other words what the v a did was prop up the death you n c f so that the veterans who had already whether their own businesses businesses are propped up and that's what happened here with the c f i would just note that the exceptions contain for non benefits of surely for commercial ordinary course of business transactions and ongoing concern is dependent on those loans and grants and if the universities is held in their hand is help throughout that entire loan approval process if there is retroactive approval you're making it this case i'm trying to find out how for your argument goes let's assume all that happens is somebody applies to the government gets a grant to be used for education and then goes to institution and spends it for education or do those circumstances is the government's not engaging a consumer transaction there it's the it's the benefit individual is that enough to qualify under the statute perhaps but you know we don't need to extend that far because of the specific instance or specific facts of this case i just i guess i would leave this with this example the example that my colleague had posited was the food stamps example are all grocery stores ensnared within six six six simply because they receive food stamps from recipients who are purchasing groceries if the grocery store is like the devil that serves only individuals who use food stamps and the organization the u s d a props up that grocery store because it serves a specific population that they would like to assure ensure receives healthy food then answer there is yes they are the recipient of benefits and what we have seen it's violence if that and if it's vaughn's then you know there may be other reasons for example the universities example i suspect that almost every large university is going to be the federal funds within the meaning of six six six so it's not the book rehab program that's doing the work of ensnaring those funds into the scope of the statute but whether revoke we have funds alone as for one student at stanford university would constitute benefits or not the context of their relationship the dems received benefits on the plane error question i think it does make a difference to the extent that this is even debatable at all to the extent it's debatable it shows up in our how is it different though because if we're looking at the the evidence review there still has to be sufficient evidence to enable a jury to convict beyond a reasonable doubt in a rational way so what in the real world would be different i think the real world difference is that under prong to what you have to show for plain errors that it's clear clear cut and plain and again it to the extent that this is debatable about whether the evidence here about the w c f specifically was sufficient  mischaracterization of what the district court did it was the defendant's request and that's it you are seventeen zero eight or twenty one sixteen and then later at three three eight is the defendant's attorney's request to reserve on their rule twenty nine motions and in part it was because at the close of the government's case perhaps they didn't want to signal what it is that they thought the government's case was missing right there strategic reasons that defense attorneys will not put razor rule twenty ninth in full form and so the defense attorney himself said i've done this in another court can we just reserve and raise this later in the court asked the government is there an objection there being no objection the court that ok you can raise that later and at the conclusion of the verdict what the court said it you are two three three eight is there is a pending rule twenty nine motion i understand that and if counsel desire you can notice any rule twenty nine motion that's pending or otherwise or any other post trial motions such that it may be heard as well on monday october nineteenth issue of c i may be just misremembering this but it seemed to me that the issue that was raised have to do with state of law and that's correct and your two six zero one through forty six the motion that the defendants filed their rule twenty nine motion that had been reserved that the court said you can file it your two three three eight was solely on me on the intent issue i see him over my time your honor so with that united states that's not the inquiry the inc fisher doesn't say medicare is a benefit to the but to kill or defendant organization in fisher fisher says medicare is a benefit to hospitals that receive medicare period but it tells us to look up the purpose organizational structure of the particular entity that is the land of the program you're on the special languages look at the structure purpose and organization of the program so why  person of this program the v r e program to encourage the development of institutions like the ones you call it was involved in that will provide reentry and other education to veterans because the purpose is to fund veterans well you say that but i would think i said well i don't care what i'm looking at this is a question of interpret in the statutory purpose and so my question is why wouldn't we interpret the statutory purpose here as one that encourages the building of institutions that will provide services to veterans well so if i could just quote the veterans the united states appeals court for the veterans claims the purposes of the rehabilitation program the v r e program are to provide veterans all services and assistance necessary to enable them the veterans to achieve maximum independence in daily living and to maximum extent feasible to become employer ball and to obtain and maintain suitable employment that is the purpose the ari is not set up like medicare to provide make sure the community at large has access to hospitals that's what fisher is looking at is the medicare program necessary for hospitals and i would just point the court to his year at six seventy three three six seventy four of their discussion of what medicare does the financial benefits and how it relates to the community at large to educational processes within the hospital and their ability to purchase other items that are unrelated to actual reimbursement for medical care none of that is in v r e fisher says look at v r e program it's the federal program the benefit here is to the service person that  is my friend says well the government didn't get anything in return like an airplane with all due respect the government did get something it got wounded marines training that many said saved their lives and just like to the if they if no patients showed up for treatment who are eligible for medicare hospital with still get money because the us that wants it through to serve the people in the community yes and that's what i was asking the court to look at six seventy three three six seventy four allowable costs include amounts which and i'm just quoting which enhanced the organizations capacity provide ongoing quality services not only to eligible patients but also to the community at large just cos have to be which a hospital a provider may receive reimbursement there are no there are no allowable course per patient but what i ask you is if there were no where is the hospital theoretically that that doesn't serve the also only with people under thirty five they are under sixty four if they didn't have another words the reimbursement is the pendant on the patient and they they're willing to throw in a kicker knew your honor at necessary to have and we can we can examine that separately from from here you have exceeded your time and i think you understand your position thank you for your case just argue to submit it and we very much appreciate the arguments from both of you on this interesting case and with that standard turn for