issue of section thirteen forty six and section six six six and on behalf of mr bryant on pension issues just briefly if the court wishes to hear them i'd like to reserve it pursuant to our division of intent in an acting section thirteen forty six and it approved of bribery theory only if it comports with that core concept of bribery as reflected in the prima what was the fact  she did your honor and what is defective are not the statements of quid pro quo themselves but then the definitions of quid pro quo that were given later in the instructions and two in particular fatally undermined it was not your honor although it did contemplate the taking of action in the future the flaw in the as needed instruction is that it does not require any link between the thing of value and the official action at the time of the illicit agreement in other words an as needed theory is essentially a retainer theory it's a theory that encompasses the concept of purchasing a supporter rather then purchasing an official  specific tax but those specific types and they were performed the specific acts your honor that were eventually performed could not have been identified or identifiable at the time of the agreement now this court had presently and frankly ahead of a number of courts of appeal previously recognized that section two a one is the key to interpreting section thirteen forty six bribery and skilling validates that analysis by this court in fact instructing the courts of appeal to use section two one and section six six six when interpret ing bribery under the otherwise vague on a service is fraud so well so that means so good lawyer it doesn't your honor for this reason as the government points out skilling did cite kemp however the government urges this court to conclude that that citation was specific indorsement of the as needed concept but actually cited six pages in kemp several of which embrace the conflict of interest theory which is skilling very clearly over rule so skilling citation to camp if one examines the skilling opinion one will see that interpret thirteen forty six and said see for example kemp got him in whitfield the court not only cited six pages from kemp but two pages from ghanim and three from whitfield or the other way around one of those discussions that given instructions saying that you need to find a quid pro quo here what was what was wrong the instruction your honor went on to say that quid pro quo in compass is the concept of availability quote as needed for future official action that is not identified at in time an exemption much unsaid in other words when payments are accepted by a public official from a payer with the intent to obtain that official's actions on and as needed basis so that when the opportunity presents itself that public official takes specific official action on the payer behalf in return for those payments that constitutes a breach of the your honor your honor just use a critical word which is alter his official action and the government all very different than influence the government's conceded that it's not your honor and i agree with that and i'll tell you also with me that influences enough influence and alter are the same your honor and therefore intent to influence and intent to be influenced are the definition of quid pro quo and here's why that undermines or why as needed to undermine that because one cannot intend to influence an action that one doesn't even know will come to pass if the action is not identifiable reman it is impossible to have an intent that that action in fact the court what was the evidence about say what mr bryant what senator pryor was expected to do i mean it was pretty wasn't laid out on the evidence he was supposed to direct additional monies to the to the school the last known the evidence your honor certainly showed that at the same time that senator bryant was employed by you and d and j that trenton was advanced was the evidence to that effect yes your honor in fact the evidence was legion that in the course of his employment senator bryant was led to learn a lot about the very worthy program and this gets into our six six six arguments where we contend the six six six instruction permitted conviction on your simultaneity of an intent to influence that may or may not have been wrongful because the intent to influence senator bryant was by exposing him to the valid and worthy programs that as a whim was supplying to his longtime constituency the under served of south jersey so the concept your honor of availability as needed to return to your honor's original question permit it conviction on the theory that as so when i have gotten itself a supporter in trenton as opposed to purchasing specific official actions by that jewry could conceivably draw a quid pro quo inference from these facts but this jury was not properly instructed and the proof actually fails on  contend separate but in terms of the instruction his mirror of bail ability as needed or the intent to obtain his of his official actions on an as needed basis whenever the opportunity present itself actually fits wearily within the definition in sun diamond and later in the kemp case of a future official action that a public official may even already have determined to take and that's language right out camp because camp had already determined as the supreme court now encourages the courts to use section two one and section two zero one the gratuity theory that the sun diamond court construed justice scalia in that decision cautioned that it's essential to distinguish between bribery which is the purchase of the action and gratuity which is payment to the public official in the hope of encouraging future official action and the camcorder endorsed that concept future of official action that the public official may already have determined to take is a gratuity concept and this is an important point your honor is because the government  for suggesting that courts juries judges cannot punish conduct of the sort at issue here the question is not whether this conduct is a crime or whether this conduct undesirable or whether this kind of should be prohibited the question is whether it's this crime and the supreme court in skilling has cautioned the courts of appeal to return to the core concept of library and that core concept is the purchase of an identifiable official action as justice scalia explained in sun diamond absent an identifiable official action there's no way to determine whether the action in question the action that's being traded for the thing of value is in fact within the definition of official action and why isn't why isn't he as needed simply referring to the timing of the actions senator bryant hair because your honor you have to have it doesn't have to induce a media interaction i don't know your honor in fact the temporal connection is not implicated by the as needed language the camp where it made very clear that a bribe may even be paid after the official action but the question is causation and essentially the quid pro quo concept is a causation concept but i thought the court was pretty clear when the court s not every payment made to a public official constitutes a bribe a payment made a general attempt to build goodwill or curry favor with a public official without more does not constitute a broad what distinguishes a bribe from other payments that would not constitute violations is that a bribe is offered or accepted with the intent to influence or to be or to be influenced in an official act that's when forty four nineteen  did the court here on the concept of as needed and that's where camp went beyond facts because the facts and kemp were a series of payments in a series of official actions and not a retainer agreement and the court will see in reviewing the record here that the government in this case repeatedly emphasized a closing argument the concept of retainer we've got him on retainer let's just roll him out for an hour for a future official ac and to go to judgment ask is points about the intent to alter that's the reason that the concept of retainer of as needed is inconsistent with quid pro quo because when one is convicted of being on retainer the official action is not identifiable and therefore may or may not actually be altered or their main aren't we don't need an actual alteration i think we're clear about that in our briefing but the intent to alter the official action is essential it's identical to intent to influence the official action and when the official action has not yet been identified it's impossible to say whether one intends to influence it that's why the first circuit archaeology to decision the first court of appeals decision as far as i know to post skilling actually approved a jury instruction that referred to intent to alter or to cause an official action that would not otherwise have happened and identified that intent to alter the action as the key distinction between bribery and a conflict of interest theory now the district court here and the government on appeal use this concept of thumb on the scale that a retainer agreement with a politician which we concede is undesirable and should be prohibited probably could be a hobbs act explore some theory certainly could be a gratuity theory may violate a confidential conflict of interest statue in the case of a federal public official any rate the the retainer agreement is not an exchange of the thing about you for the official action in the retainer agreement is the exchange of the person's ability to take unspecified future official action and that is squarely within the definition that the supreme court costs or to it i thought the case law says you don't really have to complete the  action that you intended to influence that's true your honor here the action was completed and the person took action pretty quickly to make sure that bryant kept up his end of the bargain your honor we do not contend that the action need be completed what we do contend is that there must be an intent to alter doesn't that action being completed look back to a jury and say hey there is  here no your honor because the action being completed was in fact just the proof showed perfectly consistent with senator bryant's ongoing legislative priorities in fact just for one example with respect to the eight hundred was restitution point about another ten million it does but your honor again we don't contend that there's nothing wrong with this we admit that the government perhaps could have pursued for act very perhaps could have been pursued a gratuity theory but all of these concepts of the retainer of purchasing a supporter in trenton are undermined undermine the concept of pro quo because they are squarely within what son diamond would call a gratuity theory and skilling instructs this court to return to the core bribery now the government says that the seventh circuit in the  mcnally had in fact endorsed an as needed stream of benefits concept in an honest services case but corney actually supports our point of view here because corny applied in illinois statute that did not require reciprocal intent in other words the illinois statute consistent with hobbs actiq source than actually and the supreme court's evans case required only that the public official accept a payment knowing it was intended to influence him knowing it was intended by the pay or to influence and as distinct from intending to be influenced in other words corny applied a statute that did not require reciprocal intent and in a context that does not require reciprocity that causation concept that's at the heart of quid pro quo it may make sense to endorse a retainer theory however it is only in that context where a no your honor pardon no not that's our contention and to expand upon that a little bit your honor there was certainly no information that senator bryant got in the course of his employment that certainly informed him about some of the worthwhile programs that as a weapon was pursuing well then winning and to the dual purpose exactly and to move into that i'll take that segue your honor the dual purpose test fails for the same reason as the as needed has to because it's undermines the concept of quid pro quo and action that would have happened anyway in the absence of the thing of value is not exchanged for that thing of value and as that the evidence demonstrates that that is so i would have gotten that additional ten million dollars  i don't think i could say the evidence conclusively demonstrates that your honor but neither does the evidence demonstrate the opposite which is the concept of the salary having been exchanged for the official action of voting funding for us when the evidence did demonstrate for example your honor that the president of the university testified that he himself had intended to take measures to restore per student parity the funding in question the carve out that you're on a referred to actually originated in the assembly senator bryant was in that was in the senate but the language in the budget originated in the assembly and so we contend that the evidence did not it's leader of the appropriations committee there was no evidence to that effect i mean isn't the government correct that if it need not prove that in the fischel act was undertaken at all in response to a bribe that we talk about that it certainly can't be required to prove that the official act was undertaken for one reason as opposed to another or over another but has to be correct as if it does your honor i think we agree with that because we say the government does have to prove that the official action is taken in response to the bribe and that i know to be the predominant reason i thought what is your door purpose argue the dual purpose argument your honor is that it does have to be the causal factor and if it's not a causal factor then it's not bribery because taking an official action one would otherwise have taken for any other reason might be gratuity might be object expression might be any number of other theories but it's not bribery because then that official act is not traded then it's the difference between purchasing the official action and purchasing the possibility isn't there a whole case to the jury that there was a trade here and the jury jury agreed with that the government's theory they emphasized repeatedly your honor in closing argument that they needed to show only one basically one drop of corruptness and this is a quote from closing argument for example this is in the appendix of forty five fifty six even if he did some legitimate things the job was still corrupt they quoted the dual purpose instruction at forty nine twenty three where they told the jury that the presence of a legitimate purpose whether for the official actions or for what the actual jury instruction was a forty four in that was you may find any salary and other financial benefits accepted by way that yes and let me just make one factual clarification here the district court treated the salary and the other benefits that we in bryant received as a unitary pride and i think this is important for this concept of dual purpose because this is not a question of thirty thousand dollars a year in salary twenty thousand of which may have been for the judgment action ten thousand of which may have been a bribe that's not how the evidence played out and in fact the district court declined to apply an enhancement for more than one private trial because she said the government had proven the stream of benefits as a unitary state so the question is would wayne bryant have gotten the salary his official action and would wayne bryant have taken these official actions absent the salary the presence of competing motivations either one of which might have been a sufficient causal factor for the quitter the quo negates the concept of exchange and not to denigrate your honor but i had the example of the pizza delivery enough in the brief but you know the difference between paying to have your food delivered and tipping the delivery person is the difference between pride and gratuity if they would have paid when bryant for the legitimate services that he rendered then that's not a quick thirty five thousand dollar low show job is just a both angles your honor legally and as a matter of proof that the government failed to demonstrate that the job would have happened without the official actions and more critically from the perspective of bryant's counsel failed to demonstrate that the official actions would not have happened absent the salary because the official actions were perfectly consistent with senator bryant's legislative priorities now the government points to the reason the the first circuits second arche only decision and some language in that that appears to approve a dual purpose theory but it's important to examine the context in which that arose and it goes to your honor's point in turkey only they were not examining a jury instruction in archy only the jury had been instructed explicitly that it had to find an intent to alter an official action or to change an official action that would not otherwise have taken place that properly instructed the jury was able to examine the competing motivation the evidence of competing motivation and in fact the erkki all the language the court said this jury could find that the compensation nominally for marketing was in reality for the official's misuse of his powers and that reference to in reality suggests that what the court is referring to is the jury's ability to weigh competing evidence of legitimate and illegitimate motivation the court goes on to refer to payments primarily intended in as the court knows we did requested to minimize instruction as a fallback and we do persist in that i see my time is up i would love to address the six six six if i like you to address the restitution issue before with the date it was charged that sixty six required would not it was not your honor the six six six instruction which is in the record at fifty four forty eight jury instruction number thirty three and then those that follow actually required a mere temporal overlap because it referred only to taking official action while is the language quid pro quo with respect passive state legislator legislature legislation or the quote yes your honor but the while is the critical problem now because while intending to be influenced is not the same as intending to be influenced by the salary influence intending to be insolence gesture on her part that commits conviction of legitimate influence because it does not say intending to be influenced by the thing about you it simply says intending to be influenced at the same time  working there and that's by the way she flipped it around with respect to gallagher to do the inverse what was the quid what was i mean i thought she was very careful that your honor she was very careful there as the statute requires to distinguish between gallagher and bryan both instances she used the term y o which in common parlance as a juror would apply it is a mere temporal concept instead of saying intending to be influenced by the salary or intending to perform the official action in exchange for the salary what she said is that the intent to influence co exist temporarily while with the receipt of the salary and and the official action and that's exactly what the facts permitted here your honor for the reasons i described  distinct areas has used this temporal language and recognized its effect on jurors as being a temporal concept as opposed to the causation concept that quid pro quo actually  requires and in this case although the government says that the jury necessarily found with respect to the on the services counts that is not true for the reasons described earlier the on a service is instructions actually undermined qui the burdens on the government here in terms of harmlessness to demonstrate harmlessness beyond a reasonable doubt that's no reasonable probability that the jury was influenced by this common sense temporal term while and although the government mentions and the morning's my name is ralph jacobs i represent dr gallagher and i'm here to argue on behalf of both appellants that the prosecution improperly peter impeded defense access to witnesses and prosecution to write a letter to the grand jury witness to inform them that they were free to speak to the defense if they wanted to and if this had been merely an informational error or confusion that kind of prospect of remedy might have been adequate but this was not merely a question of confusing or even improper information this was an effort of  deliberate effort to impede defense access to witnesses what else would you have had a judge will do to remedy the request it was it wasn't in some cases there were instructions of cases there  were you know hints of dire consequences if you testified but here was just a request and get the court said hey write a letter telling they're free to testify what else would you have to do or have respectfully this was much more than a request this was a use of the court's subpoena which starts out saying you are commanded and then there's an endorsement of this language in the essentially parroting the language of a federal criminal statute but it's not only the prosecution's use of the grange reese of pina it's then in the grand jury room where witnesses are there without counsel and essentially the prosecutor tells them that the grand jury is requesting that they don't disclose anything and frankly there's nothing on record that that suggests the grand jury made any such decision or vote to make that request nor the nor would they have the authority but what   the remedy would you suggest here the appropriate remedy in this case is to exclude witnesses who receive this pervasive repetitive institutional so i can't hear it in your view it can't be cured under the circumstances of this case and there was prejudice and there was prejudice and in particular it's important to understand what happens in these cases this is a grand jury investigation that was going on in two thousand and six there's not any question that there was any particular reason to keep things secret the scope of the grand jury investigation was was well understood this was an institutional decision as it came out it at the hearing on this motion that in every case every grand jury subpoena issued out of out of that u s attorney's office was going to carry this this said there was some specific need here it might be a different case there are some courts which have held on a any on a very high threshold that yes with court approval the court process the courts grand jury might be able to make this request there's no suggestion on the record here no effort to justify this kind of conduct and in fact at the argument below  our adversary really drew the bright line says on page three forty nine of the record that the government is not supposed to discourage contact what showing your prejudice what we showed is that there were efforts to speak to witnesses and those efforts were frustrated now what we don't have is we don't have the specific testimony that was lost but the problem is in these effective cross examination indeed when counsel fail to make efforts to do interview that's often viewed as ineffective assistance of counsel so what is so fundamental that when that right is impeded and it is impeded deliberately and it is impeded in violation of rule sixty which says very clearly no obligation of secrecy can be imposed except pursuant to this rule the court below found compulsion the defense i'm sorry the prosecution says this was quote unquote merely a request but this was no more a request then when the patrol car pulls up behind you and the loudspeaker says please step out of the car the court below is absolutely right saying this is compulsion and the cases say that this should be approached in a commonsense way de'monte says any reasonable witness would have understood it this way were frustrated but we don't know exactly what testimony there wasn't given the mean it seems like you've reached a dead end on on this particular issue let let let me try articulate what's so important about being able to speak to two witnesses because this is a case in particular in which there were nuanced conversations tone of voice particular word choice that was critical to the state of the defense did speak to the witnesses that needed to speak to did it  no it it didn't in some cases it continued to be unable to if there had been an evidentiary hearing there might have been further inquiry as to specific witnesses say so which which testimony did you not get you think would have been critical to your case what i'm saying is if we could have interviewed witnesses much earlier on we would have been able to get details that are now lost if the government were obliged to turn over a box of documents but for whatever reason shredded them instead and you said how was i harmed i would have to say i can show you how these documents are in general material to the case but i can't unshredded the documents the identifying any witness that the granted so that we could demonstrate the specific prejudice but what we have here is we have witnesses all the crucial witnesses or virtually all the crucial witnesses in this case being given this improper for two reasons first the mandatory victims restitution act only allows restitution to victims you would be in jail was not a victim in this case the case was indicted and tried on the theory that this conduct was for the benefit of us did monies that were increased to s o m were they then carved out of the budget of the the main entity if you are speaking of allocation among you know it the institution there was the evidence at trial and i don't think the judge m finding on this particular point for restitution the evidence at trial was that that those carve out funds those those make up funds because south jersey had been slighted in the funding formula were approved of by the highest officials  it u m t n j but regardless the theory of this case is that bryant's salary was part of a scheme under which you indian j was a net beneficiary the prosecution argued that the funding from the state legislature was the actual loss and the court rejected that on grounds as it analyzed the statute and that  ruling is not under appeal so the only loss if there was a loss at all in this case is bryant salary but the statute talks about real petunia every last suffered by the victim and there was no real  something like that was that basically the salary that was the entire salary the second reason that we think that restitution order in this case is inappropriate and at least warrants a rematch and is that we urged at sentencing that the court consider how much of this quote unquote low show job not a not a no show black and white theory but a but a low show job in which there was evidence that that senator bryant showed up did some work completely unrelated to his status as a legislator and the court did not evaluate if the court had said i find x percent of his salary reflected legitimate non bribery work and y percent otherwise we would be here on a different record with a different issue but  the burden on this that is we contend that that the government had the burden but even if we had the burden there was ample evidence in the record we're not looking for a new evidentiary hearing we're saying that there was ample evidence in the record that showed specific things that senator bryant did there was also a distinction between how would you value that i mean how is it just a value what those services were  the court to consider this issue and the court as a threshold matter says no i'm i'm ruling that the entire salary is the amount of the loss and so we think that there has to be at the very least a remained for a consideration o instructions and that the the basis of attack of course is the supreme court skilling decision which came down after the trial in this case now what's going said this one didn't really say anything about the minuteness do intent or any of those instructions what skilling said was that bribery and kick backs were in the core of honest services fraud that was established by the courts before mcnally was decided it didn't say that there was core bribery and kickbacks and bribery and kickbacks that were not part of what it said on a service is fraud as a core of kickbacks and bribery so the easiest way to resolve this case is to conclude to to to read skilling for what it held which is the government can't proceed on a concealed conflict of interest theory either on a service is fraud but theory at the motion to dismiss stage judge wolfson knocked out our concealed conflict of interest theory in this case and she did not instruct on that theory we did not argue that theory what we argued was a quid pro quo bribery theory now i'm not going to belabor the precise language of the instructions i think that you're honest have demonstrated that you're very familiar with th languages but with respect to thirteen forty six the judge did instruct that we have to prove a quid pro quo an exchange and exchange for official actions now the defen theory as i understand it is that if bryant comes in to gallagher and says i'm the chairman of the senate budget committee and i'm willing to perform official acts that will result in a whopping increase in your budget if you give me a low show job with thirty five thousand dollars and by the way you don't even need me to perform i'm just asking for a job even though universities not advertising for a job but let's not talk about what those official acts are now let's let those official acts arise on an as needed basis because by the way we're not really in the middle of the budget negotiations at this point that's down the road and there are other circumstances by which i might be able to shovel more money to s l when there is the mac accounts there is i could perhaps get involved and how the state's going to allocate funding for cancer research but we won't talk about those now we won't reach a specific agreement of this for that at this point i'll just be on retainer well it's not surprising that no court has ever said that that doesn't fall within the ambit of quid pro quo bribery you know the law has to take into account common sense and practical realities in this case demonstrated that in practice when people engage in this sort of quid pro quo bribery this is precisely the way that you would expect it to go well two arguments that  gratuity nor did the court instruct that the jury could convict either of these defendants if the payments were simply given for or because of an official act as madison talked construed a particular gratuity statute that section two a one c and the language in that case is what drove justice i believe it was just a sto needed a specific act to link up with the pain but here the the bribery statute that's incorporated into honest services fraud bribery requires a from the seventh circuit the agast you know case that said that it was permissible for the government to request the grand jury witness not to talk about what happened in the grand jury the reasons for that obvious that an investigation that is able to maintain the confidentiality of information that's going that being collected in the grand jury is more likely to succeed because if from ation gets out the  targets of the investigation they may try to influence other people who they know are witnesses there's another beneficial aspect of grand jury secrecy and that is if people are speaking in the grand jury about possible targets and those people are never indicted it would be detrimental to those people to have it disclosed that they were mentioned in the grand jury so the government you know there was a lot of accusations hurled here about th government but obviously it's it's one end of the over the edge of the sword but the other edge is that it did you know discourages a reasonable law abiding person from from speaking to the defense in order to allow the defense to prepare and that clearly presents a problem now the question here is was there significant prejudice to be the judge said look you got to send out a letter telling them that they are free to talk to the defense but i take it this policy has is it ceased all right we haven't we have addressed the issue of this policy and it it is now the policy of the u s attorney's mister the mr jacobs is advancing which is you know there can be no cure for this because we don't know what the witness would have said if they spoke in defense counsel earlier it is really a structural error kind of argument a kind of error the can never be cured you know those are the only errors in which this court says that no remedial action in the supreme court said no remedial action is and what is a structural error that is you know the absence of a neutral tribunals that complete absence deprivation of counsel without the defendant's consent i think structurally has also been applied to the equal protection violations in the selection of the jurors but but that is not affidavit in this case sr and this is why judge wilson appropriately did denied the evidence here and what she said during the the argument on this matters and they were almost precisely three years ago today judge will see and said that and basically giving you your remedy now without you having to prove that there was actual interference but but this court in hindsight case that outside of in one of my unfortunately several twenty a j letters the court said that if there's no material issue a fact that needs to my employees not to speak to you is because i'm getting pressure from the government or the monitor it may have been in the mind of un d m g council that it would be helpful to us n ot to cooperate with us the poplar but that was their decision counsel for us d and j is not a government actor in in this case unless and can and their actions can't be attributed to us unless we direct them to do something it's the same as in a fourth amendment case where a private party goes in and searches an area and then turns the information over to the police there's no fourth amendment violation unless we directed the private individual to undertake that action there were numerous questions i think every member of that let's go back go back to the jury charge again on thirteen forty six and then i guess get the second get the six six six but i gather that the defense is saying that the part of the requirement here is an intent to alter official action and that language that word influence comes straight out of section two a one the federal bribery stature and skilling said that the federal bribery statute section two hundred one in section sixty six  form a basis for the bribery offenses that should be part of this national law on a services fraud bribery and so whether we charge intent to alter or intent to influence there's no significant difference there if the argument is that there was and i heard this now this and say today for the first time i believe that we didn't have to prove that there was actual alteration mr bryant's conduct in other words we didn't have to prove that he did something that he otherwise wouldn't have done i think i heard or can see that if she's not conceding that we've set forth in our brief and i think judge amber a touched upon that if we don't have to prove that the bribe taker did anything at all it's disemployed illogical for us to have to prove that he took action that he wouldn't otherwise have taken now as for whether there was sufficient evidence that was that that senator bryant was influenced by the thirty five thousand dollars a year he was getting for the slow sure job there was and there's some there was arguments throughout the defense reform a sufficient cl on on the question of whether dual intent is permissible and had this to say we have recognized especially with respect to public officials that evidence of the receipt of benefits followed by favorable treatment  circumstantially that the benefits were received for the purpose of being influenced in the future performance of official duties thereby satisfying the quid pro quo element of bribery well we had a lot more than that case on the payroll because it was consistent with his legislative priorities there was simply no testimony by anybody with personal knowledge about what senator bryant's personal legislative priorities were and even if there was the jury was not required to credit that on sufficiency review so the instruction was accurate and the evidence certainly was sufficient to show that thirty thousand was in effect saying you need to disgorge the un just a ritual that you got and that's not usually what is a good way to this have restitution your honor if that was the theory then that would have been correct i agree that restitution does not proceed under discords good theory but you m d m j was the victim and i think it's it job this is a job that u n day d n c i didn't need it hadn't requested anybody to fill and as a result because the university was rightfully concerned plus in salary payments bonus senator bryant that they should not have paid senator bryant was exercising his official power to steer money either money that had already been allocated to u arguing the facts when she says that senator bryant didn't originate this there was plenty of testimony from people involved in the legislative process that senator bryant was instrumental in that car fou senator to do it he shouldn't have had to get a bribery payment in order to work on legislation that decided how this money was spent all senator bryant was doing was in forcing his legislative priorities he's supposed to do that for whatever his senate salary is and not for payments that you're b m j have to make  in order to in order for senator bryant to take those legislative acts there recent cases from the courts of appeals if there is one that we cited crawly i believe if the circuit case another that says in these contexts that when a public official violates his duty of honest services through bribery that those bribe payments represent the los result of the increase in funding to as well if you look at the entirety of you and d and what's included s o s i don't think the evidence showed that that un d m j lost any state funding what they lost what they should have had to pay was that corrupt salary so from from your point of view and his irrelevant that and so on that benefited millions of dollars if they had benefited the fact that well they benefitted as well you're saying don't look to if there was any benefit to the to the medical center and that's irrelevant that that whatever benefit they got was benefit that they should have received by senator bryan performing his official duties for his official salary and not this this quit  that he extorted from the university for for doing for doing the work that he should have gone and even if they had not gotten any benefit off he was unable to get them additional money it should have made any difference so particularly  and that there actually was a legitimate work in the context at the sentencing hearing of the discussion about restitution judge walton said that senator bryant did virtually nothing in return for his substantial salary other than perform official acts now if if the defendants wanted an offset for encouraging commencement speakers or speaking  one day a semester to classes for which there was some evidence which judge wilson did not have to credit then it was incumbent upon the defendants to at least give judge wilson some framework for what those services were worth dr gallagher was the dean of the school of medicine and administrator there and he certainly could have presented evidence or at least some theory to say judge wilson you know when we get a commencement speaker we pay them x or we don't pay them x but we would pay them x it has some monetary value which is other than just press these are good well something some dollar amount that we can set off a gets this hundred thirteen thousand dollars and they simply didn't do that in the cases that we cited and there's no contrary authority is that the burden of proof for establishing the offset is on the different unless the you want to seventy anything else you want to tell us just very briefly am i'm sorry didn't mention it on the sixty six count there is some division between the courts of appeals on whether a quid pro quo language in exchange language has to go in the instruction what your position is they got they got something they were entitled to perhaps they did what judge wilson charged the language of the statu what is sixty six required it requires a payment given to influence and this matheson's argument is bribery is bribery is bribery i'm quoting from her reply brief well there are different statutes that prescribe bribery and they describe it with different statutory language and sixty six is a bribe or stature and it describes it as a payment given with the intent to influence and payment picks up to do with the intent to be influenced that's what was given in this case and to charge the statutory language just can't be improper it that it follows this court's model instructions and sixty six but this court doesn't even have to decide whether or not those instructions were the jury may express finding that there was a quid pro quo exchange with respect to counts one through six and unless you're honest accept the snuffy since arguments that those instructions were deficient for the reasons that she stated i submit that you have to affirm the sixty six count because this had to have been any error would have been harmless because the jury found that element based on proper very briefly your honors in just under thirteen forty six twenty unless the court which is to hear anything else first our reply brief the page two states as explicitly as it's possible to state we do not contend that there must be an actual alteration in the official action because that would be equivalent to saying that the scheme must come to fruition and that's not the way mail fraud works what there must be is an intent to alter the official action and that's what these instructions alighted now it's true that skilling did not have occasion to actually define bribery because it wasn't before the court but it told us where to look and that's the payment now the case law and section two zero one and section six six six  in the hypothetical that mr gross just proposed to the court about would he be fair to interesting lee as extorting a low showed job he said that it's still bribery without the this or that this for that is the english translation of quid pro quo this court has already held that bribery requires a quid pro quo and mr gross's argument illustrates that the proof in this case was not consistent with that justice scalia and sun diamond told us that we needed to firmly delineate bribery from gratuity from legal payments because of the danger of ambiguity in section two why is this court follow the go back to the it's case law that does so in recognition of the availability of the court to what he theory which the government including mr gross expressed lee disclaimed before the district court so the only question here is how to define that influence prong and this court has already stated that intent to influence or to be implemented is what instruction would you have given six six six to be absolutely everything you wanted the instruction in your honor should have been the intent to exchange a thing of value for an official action if it were to be everything we wanted your honor it would include a specific official action and it would perhaps  define the intent to influence further as including the intent to alter or to cause an official action that would not otherwise have happened in accordance with the first circuits instruction that was given in a few holes or if you were explaining this to a jury how would you put this in about twenty that here's what you need to find in order to convict michael the formulation that i often use with juries your honor is that this or that is different from this and that and the exchange is a causal link that the thing of value causes the official action and the official action elicits the thing of value that sounds like the quid pro quo instruction that was good it's not the quid pro quo instruction that was given in six six six your honor and even the quid pro quo instruction that was given in thirteen forty six was then undermined by the as needed concept which mr gross continued to describe to the square in his argument as echoing your honour's hypothetical about demanding a low show job he calls it extortion your honor but that's not trading the specific official action he told this court that it can be bribery absent that this or that this for that is qui