think there's a lot of evidence that in fact number one the evidence was that it was medical people testify that the rush program was unnecessary was kind of trumped up came out of nowhere you know the fact that it was very of drinking at lunch multiple witnesses said no that wasn't the case there wasn't any  a difference of opinion as to whether it's necessary or not but that wasn't what was charged what was charged was book you said eight dollars a day and i mean there were multiple witnesses i have a list of maybe five six witnesses who said eight dollars that meant the total cost labor material everything that's what i thought when he said eight dollars that was the total cost the better then goes before the union says the same thing eight dollars now why would anyone care what the food costs are eight dollars i mean that's the whole cost everyone thought it was the total cost the investment is placing her on a salary at jury was entitle to disregard that and i would point to a couple of different areas where that shows that that doesn't make any sense number one the testimony that the trustees were giving this is eight dollars total it's estimated that the union was given this is eight dollars why would they tell them if they weren't trying to mislead them record that she received money for these other things she did ellen's you from show that she was the right you know there's other people testify look she was getting paid for this again she claims it's just costs but again the jury was free to find you know which i the way they want it there if she was really the about my receipts that was just not true mcmanus testified that they repeatedly complained about these receipts and the jury was free to look at them and say this doesn't show us anything i mean this is just kind of a post hoc rationalization that she was the in unions in house care just didn't make any sense on the salary where she you know basically there was no oversight whatsoever and as unbundle testified he's a current business manager about her and just because of their positions would have been the only two people to really know what was going on on the other side of the house and if you look at on the other side so it really wasn't she was in the sense that he broke it up but it could have been this side higher on the side and nobody knew nobody was any better what about the letter from voted to reimburse that they got it approval and of course the money was taken before the letter came in and it was taken before they even approved it which i think all goes to intent as well i guess in the point i'm trying to make though is that that money was they came from the union two years earlier and difference in this case from cases where appropriate proof has been provided of fraudulent intent under section five of one c daryn and as the court observed was a clear double dipping case what the government cannot do is ask a jury to speculate based on labels based on assertions without grounded substantial evidence in the record ultimately or that we recognize this is an unusual posture and we have a substantial burden when we're talking about insufficiency on a jury verdict the government opened on that theme they told the jury that they were going to prove that with an id was paid twice that she doubled it and that's the burning case and we would concede that we would have a much greater uphill battle if there were evidence of that what i commend to the court is on page eighteen of the government's reply brief the government lists their sites for their contention that it was disputed but with denied it was not in fact reimbursed only for expenses but that she in fact received compensation from that expense advance reimbursement process a central claim that she made profit from that expense reimbursement process if you look there are a string of fourteen cites didn't have to prove that up though to get a conviction on one side and in other cases the courts have found that proof of authorization is not sufficient for acquittal proof of benefit is not sufficient and replace that standard we're not saying but that's not the standard what we're saying is under the tests here benefit disclosure authorization whether genuine services were provided and and the reason that the government is contesting the benefit right strongly and can dress and yes i will judge   reasons offered for that himself said that the program did in fact benefit the school day he acknowledged that it reduced tardiness and that it shortened lunch hour that it may have improved focus and countr government's contention and we're not asking the court to weigh he records rumors instances in which drinking had been a problem his own apprentice class he testified had gone out drinking he said i didn't drink with them but i recall that was an issue he recalled an incident where a group of a wait a group of apprentices after he became assistant training director came back from hooters and went to mr to batter the training director's office and presented him with some kind of t shirt it's  answer every single witness those who disagreed with the merits of the program i would have done it differently not surprising in a three thousand member rambunctious political union you never going to get consensus but every single witness acknowledged that there were benefits to the program it i performed any service for the local in two thousand and eight and her answer was no and then the prosecutor asked was that and it accurately answered and she says in two thousand and eight yes right so how  service in two thousand and eight which would seem to play directly into the theory that she did not earn any of that forty six thousand dollar salary but what we know when we look at the for most of the record is that she testified for the when allowed to included their holiday parties their new dinners their retiree ranches the hackensack university hospital children's program outreach effort which was live in iran and and was responsible  for it also ties into the evidence and it goes back to the central theme in the government's case as to whether she doubled it or whether she did if she were paid a salary by the union and was getting it it is both a challenge for the government it's a challenge for the defense because it asks us not to look at one factor necessity is is a matter of disagreement among factions within the union but well when we have evidence of benefit when we have evidence of genuine services there's no question that she provided the ranchers as the court said you can't you can't fake that she showed up every day she worked the hard wrong day she provided lunches to anywhere from twenty five to forty five apprentices  a benefit to the union to have the spouse of the business manager travel with the business manager so could could that he could bend never be a conviction  under those facts and under those circumstances that that was an appropriate expenditure of union funds our position here is that under the totality tessa you have conceded benefit when and this i think it's a little bit lost in the british when we have driven dynamic this is the trustees who are controlled by the chairman who is a management trustee this is not authorization when a corrupt union official authorizes his or her own actions this is an independent board that voted reform the program to go forward and to pay the fronts and what it brings us back to full circle is the question about double dipping the government has a burden on this standard obviously the court has to take a hard independent look as the trial court without weighing evidence without balance and without making credibility determinations as to whether there is substantial evidence of fraud or intent beyond a reasonable doubt page eighteen of government's reply brief fourteen different citations not a single one of those citations explains anything about how the reimbursement expense process worked not a single one of those citations stands for the proposition  collected and nickel of profit most of those citations in fact are to people who say i don't know how it worked i'm on an across the street mr trial attorney asked that of a number of union officials and in a number of those cases are they say  someone saying i don't know how to process work the government has simply not a do sting didn't do the work and i'm not saying the work would produce anything but vindication for the way in which ms with an item was reimbursed but they were unable to prove did not that that was not profit or something that the jury could push regarding this court should disregard and they say because it was for cross of utilities and read again if you go to the three record sites that they put in that footnote not to run supports that the first is to union official who said i don't know how the process worked the other two are to the argument by the prosecutor to the court below during the rule twenty nine process there's no look at that record because it's just not fair and under that circumstance under the totality circumstance there is insufficient evidence from which you jury could find that mr dresser acted with fraud you intent in creating a genuine program a real program approve it two years later again under a leader that doesn't matter that's not a determinative factor because again we're looking at the union what would the union have done if they had mel if they had known that this wasn't eight dollars a day this was really i mean if you work out her salary was probably more like twelve sixteen district court did not like this case and made it very clear on the record of the person who was doing it well that and i would say the trial prosecutors here today has been tried being cases longer than i have and i do think that the district  multiple occasions where maybe he shouldn't have and revealed an opinion about the case that maybe wasn't what we're used to seeing so i think that that is reflected in the opinion which doesn't really follow the rules for