first is jurisdiction whether or not the district court had jurisdiction based on the affirmative evidence developed under eighteen u s c sixty six the nd of adultery specifically whether allowing a lay witness testify that you received an e mail and then later testified that this e mail was fraud whether that was improper late opinion testimony as well as improper prepared we argue that it was and finally the issue an issue on all offenses against the laws of the united states that your client was indicted here under eighteen u s c six hundred and sixty six clearly a law of the united states it seems to me what you're arguing is respect for that argument is that we're not contesting the sufficiency of the evidence as it relates to the elements of the crime what we're saying is that what came up during the trial was an issue that its burden of proof on that particular element we would say oh well we don't have jurisdiction we still have jurisdiction it seems like it's a it's approved element because the issue it was raised was specifically that no federal funds were able to be flowing was bawling was convicted of stealing from gary what's missing and this is kind of what a kind and been answered question is that correct me if i don't but i'm trying to get the point the point the reason the statute at issue was given to the courts to as a start was established as an offense against the united states and they aren't giving court's jurisdiction under thirty to thirty one to protect sums of money distributed for federal programs so the action must implicate in some way federal funds only ask you this question could you have i don't you can represent ms bolling in trial court right but could her could her counsel have moved to dismiss the indictment on the day it was returned for lack of subject matter jurisdiction on the day it was turned no because it was out this evidence when it was filed right so the district court and she appears for her st appearances arraigned on it could her council have stood up and said there's no federal jurisdiction here proceed with the prosecution we move to dismiss the indictment no because the indictment itself states that the elements of the crime ok if that's right how do you define the word jurisdiction as you're using it the reason i'm out i'll tell you want to ask that ok if you if you go jurisdiction is a funny word right the supreme court has observed that in some of the very steel company monitor cases that you identify ok if jurisdiction is defined here to relate to the authority of the district court to proceed beyond indictment ok if that's what the term means ok i think you have to be making an argument about sufficiency of evidence even though i understand why you want to resist that characterization because you have a stipulation that is not a good card in your hand ok but if what you're meaning is jurisdiction means something else maybe you have an argument so that's why i'm trying to figure out what do you how do you define it what do you mean with as you argue it here as we're arguing it here if there is no longer as a do stand trial evidence which would not have been known at the time of indictment which comes up and states firmly and that's what i'm bringing up that no federal funds were affected the jurisdiction as a matter of fact as a matter of proof without a deuce to trial correct because you can argue that pretrial just on the face of the indictment for the reasons you articulated right ok and i guess i'm trying to get at the point that was you're making you'd be making a factual argument at that point mindful of the trial evidence life of the trial evidence i guess and on top of that if jurisdiction can be a challenge at any time why does it stop it indict if things are developed along the way that show that in fact of facts certainly i'm not clear that despite their facts that there is no evidence that a crime against the united states existed which gives a federal court meaning if there is no federal funds  maybe you might not think it is but what's a little bit odd about it is most defendants in that situation would react a little bit differently most defendants would say this is a terrific development the government has not proved the elements beyond a reasonable now acquit me they would not say dismiss the prosecution for lack of subject matter jurisdiction embezzled etc from from the government entity or say no something what was not a do is throughout the entire time and again in our brief we talk about why this case as distinct factual differences from our very cases which say there must not be a positive connection just because a court isn't have to establish a connection doesn't mean that it whether it is affirmative evidence of no connection that nothing can be done i guess in the way but how does that strip us of subject matter jurisdiction as opposed to they haven't met their burden of proof and if this connection has to be made and your argument is the government didn't prove it why does that strip the court of subject matter if you had a bank robbery case and it turned out that the bank wasn't the argument at trial would be they haven't proven their case and have proven that the deposits were insured by the f d a i see it wouldn't be ok we have to take this out of the district court because you don't have subject matter jurisdiction it's an element  and that's an element of the crime that it's insured by the f b i see and that's a fair yes yes that's not happening here where there's no connection so we're we're left in this as a defendant with a difficult circumstance where we couldn't challenge there's this unique issue that comes up that says we can't stipulation erase it ok she could have argued she would have had a hard time factually i think that she could have argued the city of gary the i t department and all other departments received no federal  funding i must be acquitted because six hundred and sixty six dollars only applies to programs that receive federal funny i must be acquitted there's there's an element of that united states congress has put in title eighteen it's not been met right so she knew she couldn't argue that in fact that's why she stipulated to it she says she had every opportunity it talk to challenge that is just what that was you she had other fish fry in here that were  at the time got the e mail and in response to that question she said i thought there was some kind of fraud going on she did not answer what you said a moment ago and corrected yourself on oh this is fraud or she is testifying about her perception of the e mail at the time she received it why isn't that perfectly appropriate under seven hundred and one it's appropriate for her to do that not to use the phrase but that's what she thought at the time when she got it it would be different if if they showed it to somebody during the trial that witness it was not testifying about what she thought when she received it at the time and she looked at it and said oh this is fraud that would be a different situation but she is testifying firsthand direct knowledge based on her perception at the time she got the why isn't that perfectly appropriate under the rules of evidence because it's her thought is the question was very carefully asked what did you think when you received the e mail that as you sit here today how do you characterize she says earlier as well i thought there was something wrong well that's not what you're challenging you're challenging the fright but i'm saying that's a that's an appropriate way to do that this is not someone who understands but why isn't the i thought there was some kind of fraud going on at the same time because we're going through a legal issue you're stating something that as opposed to again the case use as lack of the talk where bank employees who were viewing a bank loan start using the races misrepresentation fraud because the specific information at issue that was falsified was material not having to make a decision so they said the reason why i made this decision was this fraudulent information i guess implant a little bit into maybe the nd part of the argument which is the they said no this didn't establish anything it didn't trigger any instances and or knowledge of any kind in other people who was charged as part of the the fraud scheme she's responding to an e mail that is was sent in connection with the fraud how could that not be probing him her response when she got it this was part of a cover up so that nobody had the department would find out what was fraud promised that it's been this and they're using this as a way the human form of what was presented to at trial was that this woman stole from the city of gary but the statute says obtained by fraud and that was the way it was charged as well as how it was charged the way it was instructed to the jury was whether it was obtained by fraud or so claim in front of this court at this point the reason stated a brief it would fail anyway so unless this court as any other questions on subject matters to action i move on to the nd issue which is miss cruz testimony and judge saying if i think you hit the nail right on the head which is this is  cruz mental impression at the time she receives the e mail so she gets this case and she's an employee for c w which is the school provider of the hardware she's essentially that the bulldog to go after get the one  from see green saying essentially trying to explain away the discrepancy between what these two parties are saying in this group at that point she testifies she didn't think it was on page thirty two said i read the i'm sorry trial transcript volume page thirty two i read the email i felt there was something wrong i didn't believe it came from sleet or green on page thirty three i thought there was some kind of fraud going on on page thirty five my impression was there was something wrong but i did not believe  came from selena greene and then even a cross examination on page thirty nine she says i questioned it yes she's not saying that it's fraud in the legal sense she's saying it's fraud meaning i thought there was something rotten in the state of denmark essentially i thought this didn't come from a screen because it's inconsistent with what miss green said and the relevance of that is that explains why ms krug subsequently took the steps that she did which is she sent that e mail again to ms screen because miss green called and said what are you talking about essentially she reset the fed ex invoices that miss bowling had impersonated someone to sign and steal and she didn't accept this secret e mail at face value she continued to try to collect the money from the city of gary so there's relevance it's not for a for b as judge cheney said this is part of the cover up the jury was instructed on fraud the government instructed the jury on fraud in the rd volume of the trial transcript of page one of three court instructed them any other court that's rule to the contrary so she's i think asking you to overrule wellborn and create a circuit split putting you one verse seven and i think this court should reject that inquiry or that request in terms of so lingering does constitute obstruction under this court's case law under the guidelines in terms of the question of whether she was milling bring that's a question of clear air or the district court had the testimony for dr correia at the p o p who observed her for about forty five days milling that's in her report that's in her testimony front of the district court the district court chose to credit that as evidence of the lingering you chose to credit the fact that she was talking to her st defense counsel she talked in court and she only stopped talking at the time and i'll simply address the issue of sentencing  but the court issue with other circuits but i would think if there is the facts that put you at issue i would defer i would think that will not be afraid to do that are you asking us to overrule wellborn or asking if not find work completely on point at particularly with the facts at i time he'll be absent and it could come back in sentencing and he then has an outburst he stands up and yells at a cooperation witness who's testifying you have any doubt at all about whether a district court can impose an obstruction and handsome and sentencing to the offense conduct yelling at a cooperating witness now you don't threaten on the offense as long committed that's the point you're making your brief and that's where i have a hard time with it because the abstraction enhanced meant invision circumstances beyond the actual commission of the crime the defendant can engage in that would be obstructive impeding the prosecution through repeated outbursts in the courtroom lead then let me states that point the facts accepting that as the truth that post that doesn't make a connection as in that sense almost blowing did was not speak to him there's a huge difference in the