i'm here to convince the court that the conduct did not violate the specific federal criminal statutes at issue which is a very different question and to be specific i'm going to be addressing this morning be civil rights and section sixty six  substantive due process right to intrastate travel is relatively uncharted territory even in general that's why the prosecutors told the district court they have to cobble together the jury instructions on th and why isn't it a crime in good trouble was stopped me thank goodness no one was god as a result of the but it was it was on the first day of school and it was cases are sort of similar to lots in the sense that there would be if you know there's a f u a ringworld you know if you're out at this time we will put you in jail if you traveled here we were fighting you was a very traditional classic court concluded twenty years ago that there is a fundamental right to troff state trial and there are cases that say well maybe not because he was at the carroll case of the screen court says that we even assuming for the sake of argument that a certain decision have been clearly established and are central part is you can perhaps draw an analogy between a prohibition and ordinance that says don't go here at a governmental action that makes it more difficult to travel there because it increases traffic and therefore makes it take longer to argue that analogy that's the government's argument but you can't seem to clearly established it's just a very different set of facts and again given the way the supreme court has good i think with respect to section sixty six of basic point can be captured by a set of contrasts and hypotheticals on the one hand take a mayor who uses city resources to repave driveway  home pretty straightforward violation of section sixty six such a lot of cases and wrong facts like that second scenario the same mayor uses the same public resources to repave the public streets in the neighborhood in which she lives i don't think anymore you could call that an abuse of power i don't think the government would stand up and tell you the score but that by the late section sixty six could still theft maybe bad maybe waynes that were allocated to one set of drivers have a drivers move them to allocate them to another set of public drivers if that's a legitimate decision out of space because it's a public use of the reins and i think it clearly is and that's why the government i think admits that if the decision had been made based on sort of good faith public policy reasons but there would be no crime then because having the people take time to implement that can the government's argument as i understand it is if you didn't have a good reason he didn't have the best interests of a jury to make that in effect factual decision the tribulation that he did not have a good reason well the jury could have i don't think we actually know whether the  correct and the question is what does it mean to misapply misapply can be read very broadly to cover any badly motivated decision that's the government's argument but the care and the construction tell us that's not how you should interpret this very open and would term  his opinion after the fact that decision wasn't made in the best interest of the port authority but one question about critics studies is that it isn't every single critic study that's ever been there with regard to the you know that right yet but your honor i think the traffic study especially is a bit of a red herring because our argument is not this was a legitimate traffic study and therefore it wasn't a crime but it didn't have to be sud my motivation is to get even with me the mayor of fort lee and guess who really saw first everybody who's trying to get into manhattan from fort lee your honor again i'm not saying this was a traffic study the point is there government would be making a different argument some sort of the recruiting difference to safety argument i don't see how that plays legally into these statutes and you know again perhaps maybe you could imagine a situation where the port question of which constituency if this was going to be done and you were going to go outside the simulation traffic study wouldn't there be as in the past a lot of notice given or else we've completely open the door to every decision made by every public official state official in the country to federal prosecution on the grounds that they didn't have a good reason but they had a bad knees and are tearing about it for what they did a didn't have to know what this specific property was that was being sort of let me let me take it in two parts because there's two separate instructional issues i think the first is that the basic instruction on what it means to this case is if you tell the jury you violate the statute if you engage in an unjustifiable around for use of property in the context of this case that does not explain to the jury where the  between the rock the activity in the crime and it's we know from the jury's question to the coroner about whether they have to find political punishment as a motive but they were not sold on that theory stead applied it to something other than x and it was unjustifiable and the monies that we're talking about here are for the top keepers acting the necessity to do the center in the morning they are some other way i mean it i think when you were talking about c when you're talking about deriving a direct personal private benefit from the property and that's what all the other cases about misapplication  heads if there was no criminal act if there was no diversion of property to a private use and a resident because they were open at all times to the public where there was a diversion of the body you ha allegedly misappropriate it's a complete happenstance but there happened to be this study going on at the same time as a result of this unintended on sourcing an unknown out consequential ross to the port exactly what scope it has because if you read it to broadway it's required as everything can be generically it doesn't do any work but i do think if it has any application at all it's got to be in a case like this where the these people were told keepers unforeseen what i think more importantly just the present but value of any of them the supply property the employee services that was foreseeable and so far as we're talking about the total keepers and engineers and so on maybe the question is whether they're actually evidence of it head does the applied compensation exemption and shield it because these were people lacking in good faith being paid what they would have been paid were potentially bad effects i'm not sure it was clear there actually were the types of facts like public safety issues but there were potentially those effects and you know like most favorable to the government from a moral perspective  i think it would be fair for your honour's award of the jury and this is largely all they were asked to opine on to conclude that that was a bad that it was wrongful that it was unjustifiable that is not the standard for a federal crime however your honor asked what was the primary reason why these defendants were put on trial it was it was that there is no  previously clearly established constitutional right to travel that that this very clearly violated there was no property crime that the government cared about here they never even discussed the property in the  people could not travel as they would wish because of the actions of one of two people that that's right your honor but that's different from saying that there is a constitutional right at that level there's a circuit split over whether and i don't want to get too deeply into civil rights gone not and i'm not as well prepared for that but there's a certain split as to whether the right exists at any level but on a on a criminal civil rights standard we're prosecuting tool for we're never told the public trivial that adds to the perhaps badness of the conduct but it doesn't do anything to say that it was an offer i think he had the authority that really was no position is there was no sufficient basis at all for them to conclude that it was an authorized it was perfectly obvious from the evidence and in front for his own testimony would only be done  notice read it think and that is kind of the nub of the whole thing the government says that this can't be done at all that shifting away names was illegal because it was done for a political purpose to take something away from fort lee to punish me or so coach politically that that is a personal purpose by definition is the government's argument that political purpose is personal and even the government doesn't contend that that's what makes this a crime they say you can't do it at all and that's a wrong there is the we just can't be a restriction under sixty six that says that a public official can't decide that he's going to reallocate public resources from one group to another group for political reason to favor the other group to punish the group but it's taken away from and to say that broke faster for them than it did before as a as a group as a as a society we could say it's not a great decision it can do as much for the mainline drivers as it harmed before we drivers  case is that the defense side because pushing the conservative position that courts have thrown this out it's only been tried twice chico tried something similar to this and when a mayor retaliated against two special police great i think again and it's actually fits nicely in the point i was about to make but the defense position has cases behind it maybe i mean this has been done before the government's position is an unprecedented week they can ask them what their case is that sa this is ok and there isn't one on our side on the wire fraud the supreme court justice who we have and then indorsed by the solicitor general has said it would be laughable to have a crime from then say we're not conclude that an honest services notwithstanding that the government has come up with the approach that well every decision that would be an honest services violation inherently carries with it some amount of time to think about it to decide on it and to execute on it and so we governments are going to charge that as a money and property we're going to take them but the time it took to think about in the clue that they include builder these time they include david wildstein time i'm just thinking about in planning this and services violation that has been rejected and that in that context the time it takes people to go in carry it out but every decision from the mallee to skilling to you know every honest services fraud violation that has ever been brought involves the time that somebody took to think about it and then to tell somebody to go do it you could always do that and the reason why again we position is backed up by actual case was we cited cases where courts have said we're not doing that but we get it it's cute but charade because you've already been bought off and the district court and then affirmed by the circuits is that that's just on the services again you can always find the bad it's not anything different from that yes maybe the board meeting was a charade two seconds say you know what it's a crime is there some stuff that got used they don't value it and we can discuss the five thousand dollars but maybe never value it and that's an issue we don't care about the property at all they say that the crime here and we and we discussed this in our brief they say the crime here was but these defendants didn't separate politics from their jobs in public service and they say they violated a responsibility to make every decision in the best interests of the people of new jersey and that's on a service for that second part is quoted almost directly from what the solicitor general disavowed in real life and what justice scalia much that's the case they brought so our position is i that if we get past this pretext to shut in discussing and we really are talking about the money or property we don't think we should get there but if we knew he didn't deprive the port authority of any right to control anyways because logically and under sabur fortunately the courts already found that there is he had the way to control he was the decision maker souter is a case in which the right to control theory was offered by the government the traffic study was used as a ruse to get the employees to carry out their armies directive so he person in complete control she had to that the conversation with her way happens after four discovers it on the last day and when he gets home he sells the truth he says this was important to trenton that's his explanation government says he didn't you know he didn't work up some sort i am doing this for a political reason i'm you know the same could be true of the buses the three hundred thousand dollars for the buses for our for fort lee if the person writing the check said is this really the highest and best use of three hundred thousand dollars requirement that public officials make clear their political motives when they win a transfer of property from one set of constituents to another so on the issue of deceit to the subordinates  it's just not fraud it didn't deprive the port authority of anything because mr brown e r d had the right to control it could be a different case had he deceived ford but he did not when asked by froyo he gave a legitimate reason that it was it was important to trent that it was political and for oil shut it down and then again the normal ordinary political process that one would want took hold and everybody's thought and makes politics unworkable because it means that in every instance a public official who has the authority to allocate resources to fund something to cite a military base somewhere  prison somewhere to distribute any number of things has to tell everybody below him the honest reason because if he did not post it because by not telling them he's depriving them of the opportunity to tell somebody to disturbing but not conduct that is criminal and the jury was asked was whether it was wrongful which allowed them to render a moral judgment if just a moment on the issue of the five our point is the center of the morning study which was the civic we called out to the jury by name you mean consider the sensor in the morning study as the value of whatever was taken even though it's downstream consequential damages  objected to that it was error and when you read that out that was one of the two numbers that was ever actually presented to the jury all that was presented to the jury was here's the value of the talkee person it comes in under five thousand the value of center and one morning and it was i think over four thousand four hundred forty and when you went back and when you add those together you are over five thousand dollars now you take away center in the morning because it was wrong it should have been included and you were left with a number that is below five thousand dollars and then also these numbers that the government comes up with in sentencing without ever saying any evidence and i don't know nobody knows really sort of vague references to how much time they spent on it nobody knows what those people made per hour but the salaried employee there were salary i don't know to be honest that's the problem i don't know if they were if their annual if they were salaried the government may have dumped in a bunch of documents in the last minute of it's case and it may be buried in there somewhere i don't know what the jury ever saw those are going to the jury it was never discussed with them it was never added up use the low end of the estimated ranges of all of this testimony while students at nine hundred fifty one up the record so through a combination of the stipulations government it's a big thousand the payroll records which our government exhibits one one for because as we know the way that you measure the money controversy for purposes of six six six is fair market value and i think it's the height of irony that big for lawyers would quibble that hourly rates to not represent fair market value be clear we do so it's not an issue that you can eat terry wrong on it's all in the record it was resolved principally through stipulations on the very first day at trial and so now i'd like to start clarifying the following not encourage you to do so because frankly we all know that the definition of fair market value is willing seller and willing buyer and we use the example in our brief hypothetical but there's been a lot of them hypothetically started sites to rent out access to the george washington bridge will be production company how would you crisis what that is you price all the costs imbedded in using what would be normally the bridge to cross the hudson for a movie set and center in the way it is fairly included just on the fair market value analysis which is the only analysis in and there are many ways to calculate fair market value but there's no reason why this isn't one of employee tile if obtained by fraud in use for an unauthorized purpose doesn't fall far as property in fact ryecroft is one way to get to the fraud six six six is another way to get to the fraud there's an exception  but the point that i think is most important is that the fraud cuts across all three statutes of conviction and was absolutely essential to the conviction because the jury was told we were pages forty one forty nine shows the diagrams of how reducing from three to two to one would back traffic up into four equate so it was an absolute fraud used to obtain isn't the same thing and i think the reason is not the same thing that is that each one of their hypotheticals is missing something very important in all hypotheticals in their briefs in all hypotheticals that were discussed earlier this morning affirmative misrepresentation is not necessary to get paid enough that is the use of paving resources to pave roads and that is very different from this case so the problem with each of these hypos and a cover up we're is that in any of the hypotheticals that you've heard today we've seen in the piece it's not there this is no slippery slope your head was simply don't meet the challenge of dealing with the evidence that was put to the jury any motive to the towns that he was dealing with that's not why he was convicted the second time around because that was not on the surface for a case notwithstanding the failure to disclose instead he was convicted american fiction was a d as a result of an affirmative misrepresentation that i have no interest in these organizations in these in these companies you can hire o'mara you know if that was an outright affirmative  these are cases in which the government after mcanally had to retrofit on the services cases that were conceived as honest for services cases that were charges on the surface cases that were tried is on the surface cases that are retrofit different from the case we have here you've heard earlier mr rauf suggest that this is so different from any other case including loss that nobody could reasonably understand that gridlock in a analysis you have to go through to determine whether the right has been filed because first you needed or stricken and there is nothing in the law that says it has to be in this union restriction and then you have to measure the n that was put to the jury the question of whether or not there was fraud here and i think in this case just so i don't forget the plate six six six for a crime clearly satisfied and in this particular situation twin towers came down on nine eleven and you have to shut the george washington bridge everybody was affected in the immediate area or thousands of people were and some probably were trying to get across the bridge but the scheme  and that it was too greedy to rob the barrel of people trying to get from point a to point b not necessarily across the george washington bridge so the answer is we thought about it we petitions of six fifty six that is exactly this case and the reason mysteries that the core of misapplication is that's the definition that's derived from six fifty six and what's clear about this is benefit to the owners not of the feds because that takes you into the purpose for six six six which is what to protect the integrity of the urbanization is that are receiving federal grant money and congress has made a decision traveling we don't have that here i get the analogy i get that algae that well it was hard for people to get from point a to point b that they were prohibited from going from point a to point b and we're talking about the jew process clause fundamental right to liberty against the government parolee could not change the rate allocation without some side off and he didn't get the sign off that would be an argument about rock of authority and there's actually circuits put on that question this i you had the authority to control the allocation of lanes then you can't convict and the district court rejected refused to give that instruction that's a j a forty five ninety five so we really don't know  free as a matter of raw had the power to override any decision because he's the only recognized official under the bylaws but everyone testified including government witnesses the really did not report to  buy votes this is really the favor of special interest this is really to protect the incumbent any other number of things and doesn't say that doesn't announce that to the public course you never do then all the sudden it's a one day may have sent a message why go for days and then when you're told to stop by for worry try to go over for his head and say you know i don't have to stop indicated that this was going to go on there's the other employees that we didn't know where the evidence was a sort of group but apparently exists or having taken members word for it at this price and the question is at the back it over the five thousand that could be adds up to five thousand if you put them all together the problems disregard those for example mr rudd see work way more than forty hours a week mr bernie worked way more than forty hours a week adric very easily have said it no more cheat the port authority out of their time for them to spend a few hours thinking about this  for them to spend a few hours surfing the web at their desk is doing is he's putting in a full week or so month to be a full month off for year adric could very easily have disregarded that the time spent for the other people said out loud i taking these two weekends away from fort lee and giving them to me drivers because i don't make the split and frankly for me is out of political favor nobody could argue that that is a crime the government has argued that that is a crime they say all political is personal and personal is misuse that is the core fallacy of their argument but had mr bruni done that it's removed from that sort of decision making and i point out in the water fraud context there they were talking about concealed political interests of the second part of the government's argument if ok he why he didn't get that that was what he was political interests are just something we have to deal with in this country politicians don't come out and say i am giving you this because i like your representative and you voted for me on something or endorsed me and i'm taking this away because he didn't do those things we don't there if their argument is there are fraud cases and this is a fraud case that's about as close as it gets chico throws out a case like this thompson throws out a case like this mcdonnell two years ago chico's analysis for the fine reason they were dealing with a different part of that statute there is clearly an intention by the federal government to have an extensive view of the federal ness of whatever's going on with these programs so that was the and i want to say on final point and goodrich that mr kohut had to distinguish away are cases in which we say that honest courts have recognized when the government is trying to use money or property in a pre text or a way to get over an invalid on a services fraud situation and he said all the cases we have a cases where it was already in fact did and it was a matter of weeding it out on appeal goodrich is not that good