number one hundred and seventy two thousand one hundred and fourteen francis h woodward versus the united states morning mr segal morning your honor may i reserve one minute for rebuttal please yes you may thank you may it please the court bruce segal representing frank woodward your honor this case began when my client mr woodward was indicted on july 27th one thousand nine hundred and ninety believe it or not that's twenty three years ago tomorrow to the day and when one reviews the course on services law and the evolution of line services laundering during the twenty three years i've had the privilege of representing mr woodward it is evident that there has been a dramatic shrinking of the scope of that law most recently in the mcdonald decision by the supreme court and our position is that the two counts remaining out of the twenty eight on which was to woodward was originally charged are now rendered invalid as a result of fundamental errors in the trial created by the mcdonald decision those fundamental errors take two forms one is the sufficiency of the evidence and the second is on the instructions given both of which are deficient under the newly refined standard imposed by mcdonald so in terms of the sufficiency of the evidence it is our position that the conduct for which mr woodward was convicted no longer constitutes a theft of laundered services as redefined under mcdonald and the beginning of that analysis is the twopronged mechanism which mcdonald's sets out for determining what an official act is and then twostep process is at first you have to identify a particular matter or cause a controversy that is within the jurisdiction of the public official and secondly you have to show a particular actions or decisions he took or he made with respect to those causes or concerns in evaluating the evidence in the woodward trial it falls short on a number of grounds first of all i'll deal very quickly with the type of evidence which i think clearly is no longer an issue under mcdonald it was a great deal of emphasis on the greater access that mr sawyer the lobbyist for john hancock had to mr woodward as a result of the gratuities allegedly all the meetings he had with him and generalities of that sort that's the evidence there was evidence to that effect what was the instruction the instruction instruction didn't reference access at all did it the instruction did not reference actions at all your honor the instruction access did not no the instructions did not emphasize access it emphasized an intent in receiving the gratuities to be influenced in the performance of official duties but not any requirement of actually performing official acts within the parameters of mcdonald but judge woodlock pointed out in his opinion denying pointed out several official acts that he felt the evidence reasonably related to woodword's conduct they were bills that were introduced into the legislature and either passed by the committee that woodward coach in or bottled up by that committee he did your honor and respectfully we believe the district judge abusive discretion in arriving at that conclusion and i say that for a number of reasons where the evidence that the district judge pointed to in support of that conclusion falls far short of the mcdonald's standard is in the second prong of that standard showing that woodward made a decision or took action with respect to those particular bills i don't think there's any question but bills themselves constitute a subject matter or concern within the first stage of the process of the mechanism and it's the second step where the problem lies because look at the evidence that we're talking about here the evidence was that as the cochair of the insurance committee woodward carried bills in the legislature mcdonald doesn't address that issue though does it i thought mcdonald makes it clear that access showing access alone is not enough mcdonald does not say that an official act cannot be the act of one does as the chairman of a committee in doing those things that wouldn't nix to bill that's correct your honor so it's not a big problem if your coram nobis i don't think it does your honor because again i'm focusing on the we can only rule for you of the extent of mcdonald i'm sorry we can only rule for you if we extended mcdonald from the case of access to the case of carrying legislation right and what i'm suggesting is that a fair reading of mcdonald requires great rigor and precision in evidence that woodward took action or made decisions with respect to particular identified matters causes a concern and where the other i thought some courts have accepted this stream of benefits idea post mcdonald the steady stream of benefits idea concept may have some vitality in the wake of mcdonald but only to this extent your honor it would still have to be the actions of the legislator would still have to be tethered to the gratuities received and you'd have to show some specificity and precision in terms of what actions were engaged in in the future with it was the lunches and the life for him carrying legislation as the head of the committee there was no evidence your honor of any action that mr woodward took in carrying legislation they were generalized descriptions of what happened in the nature of carrying legislation the problem is when it got to the specifics it's inferential basically it was two problems number one is there was an assumption piled on assumption piled on inference that we assume if woodward was the chair of the committee that he must have done a b and c with respect to carrying the penalty that's a sufficiency point that's not a mcdonald point well i think it's a combination of the two your honor because mcdonald requires that kind of specificity and precision in terms of the action of the legislature and we don't get it where it is it's very generalized here i'm sorry but not only is it inferential point but that fact finder has got to have some room to make some reasonable inferences but it seems to me that your argument completely overlooks or extinguishes the difference between coram nobis review and direct review if this were a direct review of woodward's conviction some of these arguments might have some persuasive power might but on coram nobis review we have a much more rigorous standard coram verses described quoting indecisions of your honor or is it an extraordinary remedy and there's no question that it is designed to be such i do believe however that in meeting the standard of fundamental error if one can show that in the wake of a us supreme court decision that comes after the trial the evidence on which the defendant was convicted no longer was criminal that does rise to the level of fundamental error that warren said extraordinary remedy but as judge barren pointed out mcdonald doesn't say that the acts described in judge woodlock's most recent rescript was not criminal you can make an argument that an extension of mcdonald might lead to that result but you can't say that mcdonald doesn't deal with the passage of legislation or the carrying what it means to carry a bill through the legislature on how that relates to the hobbs act at all those would certainly relate to meet the standard of the first crime your honor or describing a cause for concern or question within the jurisdiction of mr woodward as a legislator the evidence however is remarkable in how generalized and amorphous it is rather than demonstrating specific actions or decisions on the part of mr woodward on the instructions i'd like to emphasize one point we did not make in the brief and that your honor and that is that the description of what an official act is in the context of the mail fraud statute came only in the description of the state gratuity statute requiring that gratuity be received for because of an official act this is not a requirement and was not described as a requirement time is up if you did not make it in your brief i don't know how you're gonna make it now i suggest you file a 28j letter try it that way okay thank you your honor thank you good morning your honor may it please the court sonia ballston for the united states as this court said in george the writ of coram nobis lies at the far end of the continuum ranking from direct appeal to initial as successive collateral attacks it requires an error of the most fundamental character and that must denote something more than an error simpliciter as my opposing colleagues seems to concede at this point that requires a showing of insufficiency that the act that the defendant committed no longer constitutes criminal activity we would agree that if that could be shown that would satisfy the standard but the evidence here was more than sufficient as the district court pointed out in its opinion instructional error is not enough and that's i think what he's conceded here at oral argument the instructions in any event were sufficient i'm just not following now you seem to be just applying the same sufficiency standards that you would do on direct if there is no evidence in the record demonstrating that the defendant committed an act that remains criminal so don't have to start with that part remains criminal just under mcdonald yes yes okay right i will before you get to sufficiency what does mcdonald mark off as the kind of things yes that are not criminal and does mcdonald tell us very much about whether this type of thing is or is not that's right your honor and it doesn't mcdonald has nothing to say about what happened in this case this case was a bribery case about the enactment of legislation about the defendant's votes about his actions in the legislature and the arguments to the contrary at this point are essentially all the tax on the stream of benefits idea of which this court has reaffirmed in the wake of mcdonald and the tabaris case and he keeps talking about specificity that there's specificity required like we had to identify the one particular thing that got bought by this bribe and that's not how bribery law works that rule would be simply absurd it would be easy to avoid and no one would ever be convicted of bribery again but our government will be sold down the river that's not what the law requires it's not what mcdonald requires i think the district court's opinion clearly lays out all of the evidence here and did a wonderful job of explaining why relief is not required unless the court has further questions what are the official acts that we are talking about here now his actions as chairman of the committee yes so there were several categories of official actions one would be carrying bills through the legislature which is not necessarily flowing from his responsibility of chairman but something that he did with most of the insurance bills that were before the legislature during his time as chair testimony can be found on appendix one hundred and twenty eight to one hundred and twenty nine his votes are clearly official acts you look at the evidence on j appendix one hundred and two hundred to show that an all but thirty one out of six hundred insurance and bills he voted the way john hancock wanted him to vote his role was a gatekeeper as sheriff the committee that he had the power to keep bills off the floor you can find evidence of that in joint appendix one hundred and sixteen to one hundred and twenty five and two hundred and fifty three and his role in blocking the nonsmokers bill time and time again which was a particular concern to his benefactor you can find evidence of that at joint appendix one hundred and thirty to one hundred and thirty two the record here was replete with official acts but still qualifying for mcdonald and those were the things the government was arguing in this case if you look at the closing argument in pages nine hundred and thirty four nine hundred and thirty five nine hundred and thirty seven nine hundred and forty three those are the things that government is hammering on to get this conviction and the government didn't argue access mcdonald just puts assets off the road and it doesn't even say it's irrelevant it just says it alone is not enough so you have to have access going towards something else but the joint appendix here at seven hundred and seventy one and seven hundred and seventy six there was discussion about whether the government is gonna argue access to the jury and the district court says i don't think that's the theory the government says no that's not our theory we're not gonna argue that so even before the jury instructions came out that was off the table that wasn't the theory of conviction so this has nothing to do with mcdonald it's very unlike that case do you have a view about the collateral consequences part of the district court to ruling sure so the district court i don't think they are folding one way or the other it just said i'm not gonna deny relief on this basis and i think that's sufficient you don't have to get to that to deny the relief here for the same reasons the district court didn't both because of the fundamental error and the interest of justice point this court has never decided and georgia specifically reserved the question about whether these state pensions can qualify and it's not necessarily to decide here so again it would be an advisory opinion but i think the key issues there unresolved in this record they're are factual questions about whether the contributions were refunded and how much that was and so what the marginal difference between how much of an annuity that would buy at the time that it was refunded versus what the monthly pension is and those faster just undeveloped so the defendant bears the burden he hasn't carried that burden there's no evidence in the record that would carry that burden and on the address ability point he hasn't shown one way or the other but it necessarily would be automatically reinstated that opinion that he cites the skelly opinion is about an appeal of someone who's on the verge of getting kicked out of the program who hasn't yet been kicked out there are no cases that i'm aware of and he hasn't cited any about somebody who's been kicked out and trying to get back in you should have found the district court thank you my sister neglects the fact that the type of descriptions and evidence of carrying bills or that woodward bills were reported favorably of the committee between one thousand nine hundred and eighty five and one thousand nine hundred and ninety joint appendix one hundred and thirty four to one hundred and thirty six gives a flavor for the amorphous and generalized type of evidence that is untied to any specific action that woodward took in terms of making a decision or taking an action on a particular question matter or concern all of these actions when i read the record there were approximately six hundred bills of interest in the life insurance industry of which he only opposed thirty one well that is a i don't believe perspective that's a fair reading your honor because we show thirty one specific instances with the bill numbers bill dates bill information that was not the case the government showed no specifics and all of their evidence was outside the statute of limitations no specific actions by woodward were shown after july twenty seven one thousand nine hundred and ninety thank you thank you