with the answer is actually simple the district court found that it was not that we had not stated ineffective assistance claim with regard to counts one through twelve or or for count thirteen for that matter that was a finding that i don't believe respectfully the district court was entitled to make on this cold paper record because the district court assumed without strategic claim to abandon a constitutional argument for who does no risk i don't get that makes other people have nothing so forget that let's assume that the strategic claim which kind of that's weird let's assume that that's not not is i submit that it was constitutionally ineffective assistance not to raise a skilling claim on direct appeal and a corollary to that would have been and should have been the spillover prejudice to count thirteen we rate yes in his own bumbling pro se way parking articulated a skilling challenge during his trial he didn't say skilling he didn't say void for vagueness but he kept objecting to testimony to evidentiary rulings like to jury instructions that him pursuing his own undisclosed and secret self financial interest in these companies without more couldn't meet the definition of the honest services fraud he repeated that objection over and over again and you see the district court and even the government recognizing the type of argument he was making in their responses and in the district court's ruling because the district court repeatedly would ask the government is this a case about bribery or kickbacks in the government saying no we we don't even think this case is about bribery kickbacks to me that of yes and so that the government's brief here and before the district court is really an attempt at retrofitting i call it or fitting the square peg of the trial of events into the round to get in there for a conviction that's right and even at sentencing parkin is saying use the guideline that involves thefts and the government is saying no we're going to use the guideline enterprise that applies to intangible rights the government is saying sentence mr park and not based on theft of money or property which we hopefully can identify some value to but sentence him under the intangible loss of the right  services and the count thirteen argument your honour's is as follows either parken sufficiently raised the issue so that it's preserved in the district court on the hay vs twenty two fifty five action aaron just not considering it or if he didn't sufficiently raise it below on appeal on direct appeal it was due to his ineffective assistance of his a because the district court recognized that there's a certain procedural tension on the one hand i don't even see if you have an ineffective assistance of counsel claim well if there was an available skilling claim the district availability of of the break the question to you is why should we consider it i think you have to consider and i hope the court doesn't think that i've been brief and i did i did reach the issue of the availability of a concurrent sentence doctor here and it's ill suited respectfully to address a claim of a constitutional deprivation of rights that you stand convicted of twelve counts and all the collateral consequences that go with a criminal conviction that through especially to parker who was a was an attorney and say that we're not going to even address that you were convicted of twelve counts under a theory that the world doesn't even recognize is valid just because you were convicted of another count that we're going to just treat that as as the overwhelming guy posed by which to judge your entire conviction even if even if parkin still remains after all said and done even a parkin still stands convicted of count thirteen i suggest that this court in the law is to mr park and someone to consider his claims as the counts one through twelve that they were unconstitutional pain you know there's the mandatory assessment issue which courts have relied upon to say that he's entitled to some relief even if it means the funding of mandatory assessments but the fact that you're sin in other contexts as as a sufficient basis for the court to consider claims albeit on direct appeal judges i think would be a terrible injustice to mr park and to sweep arguments about counts one through twelve which i think are really substantial i think someone sometime ought to address his arguments with regard to counts one through twelve but they just ignore those under this  he can say that this is a frivolous claim i mean this whole case as i said reeks of of evidence and the theory predicts by skilling and respectfully somebody ought to consider that at some point in time  be saving lives skilling and the overwhelming prejudice caused by that the evidence on those counts completely tainted any ability for the jury to consider count thirteen well why do you say that i'm sorry  a lot of warmonger yes and all admissible under the then prevailing wisdom of the honest services fraud of ethical lapses of lying on financial disclosure forms breaching the public trust  parking was cross examined extensively on those and all admissible before the jury because the honest services forward statute in effect at the time permitted it today if this case were retried today i suggest that eighty five or ninety percent of that evidence does not comment on  again i would ask the court to consider the ineffective assistance claim by not making a skilling based claim which in my mind was the best claim that he had on undirected appeal and i don't think the court can find on the cold record that the city not to pursue that claim was strategic job she thought she could but sometimes we make mistakes and i think not raising a skilling like claim here was a mistake and to just castaways a strategic decision without evidence to support i don't think it's correct i think i don't know if i asked the court to reserve two or three minutes liberties with the record in the case the way it's presented in the brief i would just to read the brief and not leave mr gubb is really i would get the feeling that this was basically a economically driven fraud in the sense of bribery well i'm sorry let me let me let me take it slowly in context what was happening at that part where it looks like counsel is conceding that this case didn't involve drives mr park and was making an objection and it was an objection that the district court itself couldn't understand and it said to the prosecutor can you understand he's saying and and the president said i can't understand either but what they gleaned was that mr parking was arguing that there were two different arguments going on here one involving bribery and one bobbing something else and then let me go exactly to the record essay some of had exactly no nine you know right now is ok this point yes and so the argument didn't quite make sense to the court the court says well again the question is are they are these two different things or are they the same thing so the court says well whether you have an undisclosed interest and your steering contracts to benefit that undisclosed interest or you're receiving some benefit from an official action that's two sides of the same coin and then they go on in the next page and this is where there's a line left out before the i agree the court says i don't think they're the government arguing that there was some sort of pride separate and distinct from an app an effort to benefit the undisclosed interests i don't think they were saying that you know somebody came along and offered the dependents the money or benefits so what they're talking about that's what he says correct it wasn't separate and distinct from the solicitation of a bribe or the extortion now we never talked about it a bribe  solicitation of money he was trying to get i mean this this certainly was motivated by your honor this is all about money he wanted to get it is you know what you want to get a one third ownership interest in the in the company i mean if we were to retry today and i will candidly concede and i thought i did in my brief that the overwhelming majority of the argument went to the honest services fraud but we also had in the charge on money and property theory we also had extortion proper they were argued to the jury they were in the instructions and they were well pled and the jury could come to that conclusion but i will concede you know before anyone that ninety percent of the time was talking about on the services but on a service is what we have here and i i ask the court to look at in particular the the jennings case out of the eighth circuit which i think is are these facts about as close as you can possibly  were driving it arguably the demolition contract that as i said mr gove that gets a bit tenuous but i can see it probably is for the jury saying what was driving the deal behind the demolition contract which was a joke i  skilling is talking about i mean what skilling is trying to do is differentiate between somebody who just has a conflict of interest that's undisclosed and maybe shouldn't be making a decision versus somebody who's trying to funnel money into his own pocket and that's what's going on out it was a carrot and stick sort of scheme he wanted he was looking at this as a potential retirement plan for him he wasn't sure his boss was going to get reelected he needed a business to sort of retire on and so he steering you  your probably have a good thing handling actually i mean i'm just guessing the record doesn't reflect that your honor but but clearly he's trying to get a substantial business interested in what he considers to be a very lucrative business they have a multimillion dollar contract with with the you know they have a multimillion dollar contract and he wants a third of that and everything he does is a step to get one third of that interest so he's steering i mean originally they just drew up a contract and he was going to pay a certain amount of money but it turned out that didn't work out for them they didn't either they didn't have the money or it just didn't work so he said well the new way he's going to do it is going to start steering money to the person that he wants to get the one third interest from so he gives them this this  you know these demolition contracts on broad and firm and street then he offers them that one point four million but he says that he says there this is can tinging on my getting the ownership interest but i think it's almost implicit on everything that's happening serious about that judge mckee i mean dolly doesn't understand the the legal distinction that i think we understand which is that he never offered anything to parking but parking was extorting him he was the extortion victim so in his mind he's not he's not thinking when he thinks pride he's thinking i gave him a pile of cash and he never gave them a pile of cash i mean i think yeah well he never actually got it  isn't foresee everything here is charges an attempt the scheme never quite worked out for and when the airport contract didn't go through he never got his one third interest and the fee emma freddo brothers came in and screwed up the plan there's a lot of stuff that went wrong here but what you see that what we know is this is not a plan that's just about a public official who you know didn't dot his i's and cross his t's and fill out a form what i think the jury clearly saw is a public official who is and i'm just going to get a life trying to line his own pockets in whatever way he can by steering public contracts and i think that's what the supreme court meant should be i mean if we were to try this because it was all white and scheme and you saw that's how it was argued in closing it wasn't sort of you know it was serious yeah i mean it was just it was a progression of how to get that one third interest but that was always the terribly helpful and they said that was the quintessential case as well and i know through what you think back by schooling but that's one thing i think we need to differentiate between those cases where it's merely an undisclosed interest and there's a conflict of interest and you should have been deciding that because you had an interest there to control property and that's why the definition you cited to instilling is just really it's a while there yeah well i guess what i'm suggesting is even if you don't consider the broad and firm in st the demolition contracts to be the extortion or the bribe or the kickback it's certainly relevant evidence to show what is in fact that the bribe and the kickback it's hard to explain the story of what's going on without showing the progression throughout so you could you could just introduce evidence of the airport contract by itself and that would give you everything you need for a separate aside from the explosion the rices of it it would also give you everything you need to allow the jury to consider whether or not there's a kickback because you're there such as to constitute well if you don't have the undisclosed interest then you don't understand why it is he's trying to listen at least part of why he's trying to get this money to a dollar certainly that explains and in the early stages he's worried that when the in he's not going to get his money back because they're never partial owners and they weren't part of the deal that he had made and and so there's a problem there for that what about the concurrent sentences doc i'm glad you asked i'm a big fan now of the concurrence that you  at you now even though you didn't like it or you didn't even know about yet well you know i happen to have been in that group of people who thought that it had died when the special census came in and i hadn't considered as the seventh circuit properly did in ryan and his judge i read this properly did ha accepting the premise that the special assessments are irrelevant then that i don't need i don't need ryan for that i think ryan establishes that that you can't rely in special assessment standing alone on a concurrent sentence doctrine other other than that i think it's it's just you've got what i consider and what i consider being a rock solid extortion conviction for which he received a ninety month sentence and you've got these other convictions for which he received a sixteen month sentence that he wants to challenge but if alleged in in the in the moving papers here and that's going on yeah i mean there's just nothing that he's going to suffer given it's not going get his pension back if those twelve counts you know are assuming he lost the pension he is voting rights back he's there's nothing he's going to get back there's no relief this court can really give him and frankly in a time one of the things that the court is entitle to discretionary doctrine so judge i read this could have reached it if he chose to but i think one of the things that i assume this court is taking into account and i think that i mean this is taking into account is we're living in a sequester world where you know i see the public defenders who are representing people today are on furlough so you know when the court has to decide how to spend its scarce judicial resources do we want to spend it examining a case that's going to have no practical effect and appoint an attorney and i mean this case unfortunately and it's no one's fault but this case has gone on for several years it's been through four district court judges pronounce the fact that the convictions are unconstitutional well absent actual innocence is important your honor i don't think they have it here for the reasons we've already discussed but i also think that the concurrent sentence doctrine recognizes that the court should invest its resources where they're where they're best using will actually make a difference view you raised in a twenty eight j letter us versus time i did but on a actual innocence question which is the dicta that you were writing about in your letter this isn't really a tired case in your viewpoint is it not if you have