requires proof beyond a reasonable doubt that benefits the statutory term in excess of ten thousand dollars was received by the state in this case the commonwealth of puerto rico and that these benefits  dollars in federal funds first there was no evidence at all from the perspective of the federal or gregg to our side as to whether or not there was any federal program from which these funds originated and from the recipient side there was absolutely no evidence within the stipulation as to what became of the funds whether that was ago and ization that spent them in a manner that was consistent with this court's precedent but the institute payments that help services received constituted benefits and whereas the fisher test and the mandatory requirement to make use of type terms that there must be evidence and in a way because there was no evidence as to how the funds were used one seven been received in the coming off of puerto rico whether it's  benefit but were disciplined to look at the four corners of the record and without going outside the record there is nothing but a stipulation of one sentence stipulation in terms of federal funds and the amount happened to be the to the jury which the government considers consented to would now says the biggest so much the only yes the jury has no basis to evaluate benefits no basis to evaluate whether or not there was a federal  those funds are payments for goods or services on the one hand which case the sectors not traded for their benefit in which case the statute is when we have not an organization like a hospital issue that we have a governmental entity is and twenty five talks about the importance of federal programs not just a federal form and totally absent from the stipulation and then on the other hand just no basis for a jury or a judge to determine how this money to some of the questions i just heard the first is when in fisher and other cases the supreme court and in your cases this court raises the issue of making sure that we don't breach the proper cutoff of federalism because it mean this case is what it means it means that in six six six when you have already the ability to expand the definition of agent across three branches without necessary regard of matching any funds or benefits to one branch or the other where the government is now doing is saying you can eliminate one more element to make with the supreme court said you shouldn't to a common law for state and local bribery and corruption because you've basically now eliminated the one thing of which six hundred six was intended which was to protect the federal program funds without that element writing it off as the government did in this case you have basically created that baron with a vent the supreme court morning hence the second thing i want to point out is that governor and then the court doubled down after they realized that they had done this and i don't think it was inadvertent on the part of the government because they were given the opportunity when the stipulation was created to be told this does not fix the problem this does not satisfy the element what happened next is very instructive even that both parties had an instruction which had the proper phraseology benefits the court on its own change the word benefits to funds which not only is it an error but it emphasizes that this was not harmless and also emphasizes the gap in the evidence that the court and then the government realized it had to make up not with the evidence but with a change of instruction because then the government said yeah you're right even though we submitted this issue that was the instruction that says benefit me now think it's a fun the third point i'd like to make is the one that comes out of mclean teller i want to read what the court said because it's difficult the court said it must be emphasized that it was the government's failure to produce evidence on this element that leaves us with no opportunity to examine the federal programs quote structure operation and purpose  choose among conclusions to be done from the evidence because only one conclusion can be drawn there was no evidence of federal benefits that's what's significant about the decision of the government to take this case a bridge too far into a true list because make believe world right so why should we do that just for the sake of the role the question really becomes two elements matter the difference between creating six six six was a federal crime and any other thing in this state or puerto rico any other state is that the elements matter so if you are saying by make believe world as the government argued in closing that four point seven billion is a heck of a lot more than ten thousand that is literally true as a mathematical form statute and there was no evidence that a mailing took place and there was no evidence that a wire took place but of course we all know that in a transaction of which something is paid or something is transferred there would have had to be a mailing and there would have had to meet that common sense dictates in this modern world you can't get from there they're without it but we don't let the government do that you would immediately reverse a case in which that element had not been satisfied this is no different  according human being to whether or not in a very specific statute that creates federalism versus state provocative interesting that's not the apter stick to the analogy how about this one though what if the government in this case did not put on evidence that my client was a member of the state legislature but simply had the piece of legislation as a piece of evidence but decided that it was intuiting to the jury then it would be somewhat similar you have to of course draw the line someplace but i would suggest to this court based on the principles of both countries of federalism but the specific statutes in mind of the elements the elements matter for whatever reason they were warned that this was an error that they were inviting and they decided to do it anyway honor is that the evidence of the senate child care program the issue is a red herring with due respect to my colleagues here is why in the first trial the government presented two independent theories for the ten thousand dollars jurisdictional element the first was four point seven billion dollars in federal funds to the commonwealth as a whole the second theory which was independent and was based on the government's knowledge that the defendants were going to challenge and had already challenge pretrial their agency the commonwealth the government presented separate evidence of the senate child care program now let's move forward to the first appeal the defendants themselves on appeal in this court characterized these as two theories that from their then went on to challenge both of these theories on independent grounds as to the commonwealth receiving corps point seven billion dollars in fines they said this court can't rely on that because we were not agents of the commonwealth this court rejected that argument as to the senate child care program the defendant said this court can't rely on that because this was a department of education program not a senate program now the way this court resolved the issue is critical this court never touched the senate child care program after having found concluded that the defendants were agents of the the commonwealth only had to look at the four point seven billion dollars in federal funds to the commonwealth then said after noting that the statute requires not just agency of the government but agency of a government that receives over ten thousand dollars in federal benefits that the elements of the statute were satisfied that is exactly why this court's holding in fernandez established that at least in the circumstances of this case evidence that the commonwealth of puerto rico received over four point seven billion dollars in federal  was sufficient to satisfy both the agency element of the statute and the ten thousand dollar jurisdictional element and instead to last point you need to really focus in on because it is i've read at least the union  fernandez's which seemed to be at issue was whether they were agents or not in the court decided that they were an agent and went on building something i didn't see any indication that the finding that benefits but then to essentially mandate such a finding so as to eliminate it from the jury instructions right here and i agree that the defense did not raise a specific funds vs benefits argument in the first appeals right and we can argue whether that constitutes a lot of the case bar to raising it now as i realize that's a separate point but the bigger point is that this court did implicitly find that the evidence was sufficient with the evidence that was presented in the first trial which is for our purposes i exactly identical to the evidence in the stipulation in the second trial was sufficient because the court started by saying and this is at seventy two or thirty nine the court said presented in the first trial and once this court essentially said that the second theory was unnecessary because the defendants were agents of the commonwealth in other words we didn't have to prove that the defendants were agents of the senate specifically why didn't put benefits in your specifically held that the term benefits and six sixty six is used in its ordinary sense this is not a term that has to be defined to the jury juries can use their common sense and reasonable inferences can you point to any other case from the supreme court the circuit where a statute has had expressed requirement of an element such as here that if it and that element can be left out of an jury instruction intentionally over objection honor i understand the instruction issue is is slightly different i do agree that the jury instruction should have used the term benefits the question is still whether a properly instructed jury overwhelming evidence would have supported a properly instructed jury finding that benefits were involved would like points to work through that mind game had the judge not stricken it and in why the prosecutor didn't jump up and support defense i think what's important here you are and when i said that the defendants did not challenge the benefits element of the statute in the first trial i'm sorry the second trial i stand by that they challenged the language of the instruction they never put on evidence or otherwise argued to the jury that as a matter of fact the commonwealth of puerto rico did not receive at least ten thousand dollars in federal benefits disproving it now no they don't have the burden but in the end this court in determining whether the evidence was overwhelming looks at whether there was any contrary evidence and the fact that they now had an erroneous instruction that they could challenge doesn't mean that they put anything in front of the jury argument wise or evidence wise that would cause any reasonable juror to conclude that the territory a federal territory did not elements of the statute the question is what specific words have to be in front of the jury in order for it to find it an example i might give the court is a bank fraud trial which requires a material misrepresentation now the government has to prove materiality doesn't use the word material we stand here and say that that stipulation was insufficient because it didn't use the word material when the jury had in front of it everything including reasonable inferences to conclude that the misrepresentation was material now this brings me back to judge howard's chief judge howard's first question to my colleagues which is is there anything in fisher or do bono terrell that speaks of what a jury has to be shown or what has to be presented to the jury no now i think it's important to look at fisher very carefully that case did not contract liability under section sixty six or contract or diminish the definition of benefit it actually expanded it and it expanded it significantly to reach that sorry profit making private entities that receive government benefits just simply by virtue of being part of the federal program now in doing that the court understood that it was creating some risk that all federal shown in this type of case where we've got a territorial government entity directly receiving billions and billions of dollars of federal money and any rational juror could conclude nothing but that at least ten thousand and so the jury instruction issue requires you it seems to need prove that not only was the funds evidence sufficient but that it was sufficiently strong the jury almost certainly would  it so i don't think fernando's ties our hands at all on that issue we could conclude that there was a clear error in the jury instructions here over objection to admit a benefit and we find that the funds alone even if in light of the jury instruction claim we are left with having to argue that the evidence was overwhelming on this issue but of course the outcome would be different if there were jury instruction error which would be of a caterer in a potential retrial i think context of fischer just above that the court spends page after page speaking of what's carved out of the definition of federal benefits and the only thing it carves out of that definition are point of sale transactions it gives the example of it didn't mention right and i think that would be a i think it would be an issue for a court to consider and to look at in that case the court might have to look at the purpose structure organization and operation of the program to determine whether that was sort of a point of sale transaction or not it might not be a benefit i think also really i admit that what i'm asking the court here to do is to conclude that no rational juror that all but your point and i can't even go through the numbers all but ten thousand dollars for everything other than ten thousand dollars of four point seven billion went to those types of transactions jury how much money it would if it was one hundred billion would then be reasonable for a jury to assume that some part of the four point seven billion that is mentioned in the stipulation is benefits if that was a total of one hundred see that is in the record well i think if it's over four point seven billion or a jury would have to find that nine thousand nine hundred ninety nine of the money was benefits and the other four point funds talks about four point seven billion what's the frame of reference that has to decide about how much of the four point seven billion were benefits or not benefits well i think the frame of reference is simply the delta between four point seven billion or whatever the number is a ten thousand hundred billion well that's just a great it's just a greater delta you're on and i think it just would further underscore i think that i think the question in the other direction is a tougher question for me which is what if the they could be for commercial payments they could be to maintain federal lands or buildings but the principal point is with discipline to look in the record it's their burden they fail to meet the burden benefits an terms of funds the jury had no ability to determine the essential element of a federal program or the essential element of a benefit when it was wrongly instructed but most importantly the government has a burden following way the pack say ok says when the government try to make a distinguishing argument between pratt benefits and funds an interesting phrase it said this is a context specific inquiry how can you make that context specific inquiry given the mandate of fisher unless you have evidence of what is the program so that you can examine every court keeps saying as fisher's the program structure operation and purpose with no evidence you can't make that examination as to whether the jury has to do it if you look at the fisher case again in the quote right after what you were quoting it says this inquiry should be examining the conditions under which the organization who makes the inquiry if it's not going to be the jury and the last point is the one as to even the trial court recognize at the end of the analysis that something very in this it happened when