receive receive extremely extravagant and lavish gifts from a third party by virtue of his position without a constituting on a services front there's no doubt here that the payments that meter received were extravagant  after receiving these payments or around the time or before there's no evidence that he performed any official act didn't he make sure that access got paid  creative creative press yes and they are even though it wasn't his primary duty didn't he go down and make sure they got paid so there's the evidence wasn't that shocked the evidence wasn't correct but this was not this was not favorable treatment these invoices were not something that were these were due and owing bills these were access had no formal  process for paying its vendors and what it would do would strip was the string along its vendors many months after they were their bills were due and in what what prompted their payment was either access access his own clients requiring the services that these vendors needed or in the other in the alternative when the clamor from the vendors became too loud so in these instances there were times where madison contacted people at the finance department for bills that were many months overdue didn't get any response and then contacted me to show this was something that at least one  other vendor of accesses another printer testified happened with them as well if you if you're referring to a clamor of vendors it means that access is not paying you to do it's bills as they come due and therefore you would be  very sensible from one of those vendors to do an expensive favor for somebody who's in a position to to put the payment of creatives bill head of the payment of other people his mistress i mean did he did he think he was just that that was the equivalent of a christmas turkey the evidence show that meter oh you know we have to look at this in context of access his own business and meters experience with access his business access was a company that paid its own clients very lavish gifts and then these were not you know tickets to a baseball game either these were these were lavish gifts themselves they were rolex watches and payments for home renovations and you know high end vacations for the clients families so from each of those perspective it wasn't a lawyer and who saw these these clients accept payments over the over many years without any indication that they were doing anything wrong and in fact payments that his employer monitor clipper when they came along signed off on major had no reason to believe that there was anything untoward was isn't an issue of intent expenses and client entertainment obviously of the lavish sort but expenses that didn't come along with any expectation that he was supposed to do anything with it and i think the it's important to look at this in the history of the access screen of press relationship as we indicate in our brief joe's we know who is an employer and employee had access and control of the labor marketing campaigns and access  was the one whose hand selected creative press at some point he left and switched into a role as a consultant for creative press but there he played the exact same role and protecting creative process business in the same role access so any sense that what what madison was doing was paying paying mito because he was concerned about the business is undermined by that time frame it was leno madison sort of the payments w findings of fact and we give great deference to his findings of fact after hearing testimony so you have to tell me where he was wrong the one thing i'll note is the  the district or did hear testimony but what it infer it didn't make any credibility determinations that were relevant to it was either from reading is opinion that he didn't believe mr matre there were several findings was it conflated with respect to madison's intent in making the payments it conflated a vague hope of a future benefit with a proof of an expectation that the payments would lead to favorable that he was using access using creative press as a means to funnel access money back to himself but the evidence didn't show that the evidence in fact showed that me true didn't know anything about how creative press funded its business or how only occurred after the payments from madison had seized that occurred at some point in two thousand and nine when the payments the last payment at issue in this case and in january two thousand  my name is alex robins appearing on behalf of the united states when he showed up to clear up at the at the outset your honor i believe i heard my colleague in response to judge poulos question about the official act  decision in mcdonald didn't say that there was no official act and that in this case and that's the first time that i've heard that argument from the defense at all in this briefing in our in our brief on page twenty seven footnote fifteen we flag macdonnell issue for this court and and stated that there doesn't appear to be any dispute that mitra's use of this position to send future business to creative press would be an official act under the defense until a few minutes go has never been any argument that sending a vendor millions of dollars in business would not constitute an official act under the mcdonald decision or under the that the case d the just a court found an implicit undertaking and i think fundamentally argument is not that any payments are sufficient to satisfy the quid pro quo requirement as your honor pointed out this question of intent argument is that in this case payments given the size of the payments the timing of the payments and the nature of the payments are extremely strong circumstantial evidence that there was an implicit quid pro quo so the size of the payments we're talking about one of a a half million dollars almost four annual salary over the course of the year we want this money go if the government prevails here does it go to access or does it go into the treasury it goes to access your access  the court the size of the payments one point five million dollars the time of the payments i think is significant to the payments from creative process to meet roe were currying while there was an ongoing regular business relationship between access greater press so during two thousand and eight the record shows that page four four fifty three of the appendix governs exhibit twenty three there were twenty eight payments i'm sorry there were twenty one payments totaling two point eight million dollars going from access to creative press so it's an average of about one hundred thirty thousand dollars every two weeks while this was happening there were payments one point five million dollars in payments going back from creative press t meacher oh and not even for future jet travel or for a future vacation but for jet travel he had already taken the pay off his million dollar jet bill to pay four hundred thousand dollars to his holding company to pay one hundred thousand dollars to his girlfriend's husband's l l c and these are not gifts these are not christmas turkeys the gift in this case there was a gift in this case by way of counterexample julie glover the project manager for access felt sort of with creative press on the union mailing campaigns when her child was born she testified that she received a two hundred dollar nordstrom's gift card from robert madison that we submit under the circumstances of this case is a gift one point five million dollars to your girlfriend's husband's l l c engineer pay off your jet bill is not a gift any more than it would be a gift if hype up ranking public official were caught in his office at midnight with someone giving him a million dollars in cash the payment itself is very strong circumstantial evidence of the underlying arrangement or deal or intent between parties absolutely you are in many cases where the official act theory of the mcdonogh case has been imported into a civil case or with a non government defend non government victim is one purely a fact which is did the district court clearly or in finding as a matter of fact that mitchell excepted this want to have million dollars believing that he was supposed to do something that there was a and that's a question intent it's a question of fact that just a court had before it to arguably two plausible interpretations the first most plausible one was that the one point five billion dollars was as a just about found in exchange for future business or at the very least for not taking away that future business that would otherwise come the other possibility is is this pattern that you're citing a large payments is that is that proved is at least in other words the government proved an implicit quid pro quo it could be that there was an explicit arrangement that we don't have evidence of the evidence at the very least proved an implicit agreement so it's not the said there conspiracies are often proved by circumstantial evidence and this case we have extremely strong circumstantial evidence nor are we even in a context where you're looking at a jury verdict where a jury had to find beyond a reasonable doubt that there was  and your honor just to clarify a point and i apologize if i suggested that we were disputing and the that an official act was satisfied that is not our point our point is that there was no agreement of any xpect or any expectation of a quo there was no understanding between the the two between madison and meter that there was some plan by which mutual would change the way he did his job so that the government is correct that we are not disputing the official act  element here it also bears emphasizing my colleague brought up the this timing of payments by which access you're saying that there was no official act we're saying that there's no there was no arrangement here no quid pro quo no understanding between them that mito is expected to do something that he was expected to take an official act in exchange for the pay except circumstantially which you just said circumstantial evidence the timing of the payments that they were all personal that they were alive this there are these your honor in a in an appropriate case those could be elements from which a court could infer the existence of a quid pro quo but not based on this record guy who is involved in selecting accesses vendors again the history of the payments is significant here because they began at a time when madison was aware he was going to get all of the business  receiving a lot of payments from access but it's important to note that mito was not aware of that he was not generally involved in this relationship and so he had known insight into what into how much money created press was being paid by access and in fact as i