the court based on what you might call a division of labor based on time considerations mister vague will primarily bear the laboring or on the sentencing issue and it relates more  with the four counts which we challenge i would point out that they were grouped for the purposes of our point was analysis conjunctive leave because it is always been my conception and generally the configur think that the honest services fraud statute can be struck them and also not touch upon the general conception of baleful but the particular problem in this case is that there was no demonstration fashion inconsistent with the basic problem of the prosecution that his comment then this regard and you know unable to be tested was in some fashion with they were made on the basis of his agency relationship which are james  and well and you say well it doesn't shouldn't have come in under a one day to the but it came in i mean if we don't get into that there was evidence and why i'm asking you to receive any special consideration but were to be very good just isn't as if they were any other private citizen sorry you're not answering the direct question you're trying to say that we should this regard that one i'm  benefit whatever that might be and knowing participation in the answer you honest question is no you know some some type of benefit absent knowing participation in the deception does not place one in a force and that is the problem in this particular case and that's why i said imprecise or that's the franklin testified that sharpe james no time during the course of implementation is program sought to intervene on a piece of anybody including to make particular species of fraud about which one is talking because this court said in two thousand and nine and mcgee and what you're talking about in the government's position is what happened here was an undisclosed conflict of interests in mcgee in your honor said that developed what i would call a moonlight understand every saturday what this case was about and what he said was this case was about an undisclosed personal interest he received no gain and but for the fact that you know he had this financial interest there's no crime mr yes right how could we overturn a jury verdict when there is no claim by james that the jury instructions were incorrect well your honor very simply there was abjectly lacking record with respect to evidence what i would say aggravated by the other errors that followed including your honor joining of miss rallies tax offenses a mistrial right i mean  that her financial problems and her reputation as you know a wastrel in a check sheet as it were and you know aggravated the general concept that a man once shown have been involved in any deception not having any personal intervention anything of that deprive the citizens of newark of his honest services as mer and with respect to that judge martini when he charged the jury with respect on a service for a didn't have the benefit of this court's decision in the court of a case which we've cited in our reply brief and specifically corbo held that we're private citizens like to make or riley is charged with conspiracy to commit on a service is fraud by a public official the prosecution must prove that the defendant knew that the public official was required by law to disclose the conflict of interest and that was clearly not instructed here and there was clearly no proof were alternatively we would claim plain airier on our on that point there was nothing you say orders that well we would submit that the court should have instructed the jury that they that the prosecution had the burden of proving that miss reilly knew that mr james had a duty as a matter of law to disclose a conflict of interest and he talked about the duty to disclosure to disclose in a nondisclosure case must be clear and unambiguous and that the nist the non disclosure of information must relate to a material matter he did not in his instruction address the critical point of carbo which was that the government also needed to prove as as a matter of miss reilly's actual knowledge that certainly a case where it was phrased by the trial court and tried by the government as a failure to disclose case a conflict of interest case and with respect to that it's our position that really under carbo  us if i may briefly on the sentencing issues because they're appealing so i think yes or on the government's cross appeal from judge martini sentence and with respect to that we would submit the judge martini did well it was clearly within his discretion your honor to determine as he did that the that a proper guidelines analysis that is taking into account the gain to miss reilly from the sales of the property as he found overstated the seriousness of the crime in this case and the guidelines to be one point one particularly comment one thousand see specifically permit the district court to make that determination and so so w he may not have articulated it precisely he was clearly making the god he was taking into account the guidelines analysis and argument that the government made and he was implicitly if you will making a departure in that second guidelines and even if i were to fashion a guideline sentence i wouldn't adopt the government's argument so he may not have used the word departure but he clearly there result was the saying how much that you know i would go down the many levels are before you get that thirty five i think implicit in a sentence your honor was that he would have reached the same result in terms of the the actual sentence honor your court as well where he also found that he couldn't say with confidence that the last figure would have been the same had she not flip the properties and had she done the rehabilitation in other words i think he was really good morning or good afternoon there please the course i'm norman grossest united states attorney and what made counsel table is my colleague judith tomato she was one of the trial prosecutors in this case you're right chance time and again your honor we don't want  chance to try this again we just want to chance the recency the case because the district court judge made a grievous error in the first step of the sentencing process and that is that he sentence these defendants as if miss reilly's game was a zero when in fact the the testimony that we presented that wasn't really seriously contested by the defendants was that miss riley's game was approximately four hundred  didn't miss rally's attorney submitted a sensing letter in which he conceded that there should have been a twelve level enhancement because he said he conceded that the game was between two hundred thousand and four hundred thousand but he he argued that it didn't exceed four hundred thousand because of certain expenses that this rally accrued that we claim we took into account is not true that new or you can't show that new york lost any money as a result of this alleged life no one of the actions by james and what the city last year on are were a couple of things first of all they lost the on a services of their mare who was using his official power to behind the scenes transfer very indirect victims were people like wendy bailey who was at the gym at real estate developer and a witness in this case who testified that she attempted to participate in this program as a qualified person and she could not get any of these properties that were supposedly set aside for a legitimate real estate developer so they in fact would be developed the only way that she could get properties was by going to someone like to meet her riley who had a twenty four hour connect in a hook in the city in her own words because she had an intimate relationship with the mayor and she had to pay the corruption tax to miss reilly she had to pay much more money to get these properties from mr riley and she would have been able to purchase them for at th a departure and and he said that he would have come to the same result well that's simply not permissible under the three step procedure that this court has laid out the following book or there's th three discrete steps and they have to be handled discreetly and the first step is that the court has the correctly calculate the guideline range and here the guidelines and the you know there were there were a number of arguments that we made  regarding which books should be applied and whether there should be a role we haven't appealed those issues although we have arguable claims with respect to those but that the clearest there that the district court judge made here was assigning zero levels for the enhancement and the court tried to justify that by saying the amount of benefit was speculative well first of all there's nothing speculative about our proofs we put in the documents that showed how much mr rahman paid for these properties and we put in the documents that showed how much she sold them for and then according to this court's recent opinion and leonidas it would then have fallen to miss reilly to show that she had some expenses and what the net benefit but judge martin he said that somehow this mathematical evidence that we put forward was so speculative if you determine the benefit was zero it's clearly insupportable and  because we argue that that was an error of law he refused to apply the guidelines as written that this court should review that and apply to review it and send it back for recency and at that point if judge martini wants to entertain arguments about departures and puts us on notice which which wasn't done in this case that there he was contemplating departure then we'll be able to thrash those things out in front your honor it's not meaningless for two reasons first of all meaningless meaningless it's not meaningless for two reasons your honor we can assume that the judge martin is going to give the same sense if he has to start off at a guidelines offense level that's fourteen levels higher that that's almost twice as high as the offense level they start out with he gave a sentence within the guideline range for mr james and he very downward a little  really exacting in requiring district court judges to follow the three step process booker of course through federal sentencing into some disarray and made the guidelines advisory not mandatory but it didn't say that we are returning to a pre book or regime where the district court can basically impose whatever sentence he or she wants for any reason that he or she wants it has to follow the prescribed procedure of the government you are gets i only hear that the jails are overcrowded anyway well you know we asked for a sentence substantially higher than this and we thought that the guidelines supported a much higher sense than this and we're going to ask judge martini when he uses the you know if this court remains this case and directs him to apply the proper guidelines analysis we're going to ask him to impose a sentence within the guideline that the honest services charges are not cannot be sustained what charges in this case would remain what you are i mean  section thirteen forty six and so it's really impossible to determine what the outcome of three of those cases will have but assuming the worst possible outcome for the united states and that is that the supreme court will decide that thirteen forty six is facially unconstitutional for vagueness and that no one should be convicted under the statute now i should point out that this isn't the claim that the defendants raised in this case but if the supreme court came down and said that no one should be convicted of a thirteen forty six even though they didn't raise it that they probably could get relief from the plane there but that whole thing would say that that particular statute thirteen forty six not the not the fraud statute thirteen forty one but thirteen forty six is unconstitutionally vague because it doesn't define what on a service is are you on a services are not the government does not have to prove the deprivation of hon services for counts one through three the mail for counts nor does it have to prove a deprivation of honest services for count for the sixty six count so those counts would be unaffected by anything that the supreme court  vacated that the government would be under a different god line and it would be under the general fraud guideline which is to be one point one rather than in this case to see one point seven the two thousand and one version so so we may have a an entirely different guideline calculation in that circumstance it wouldn't so in other words what i'm saying is the loss of the cat five conviction for whatever reason would not affect the convictions on services yeah i think that probably would be the wisest thing to do i mean we really can't anticipate what the landscape is going to look like until the supreme court decides this and of course the court could ask for yeah it would involve a long to life i mean that's with respect to count five the other one thing the court could do would could be that i was thinking you could you could rule on the other claims but if you get to issue a single opinion it makes sense to wait for all i'll get to that in just a moment i'd like to point out that it's hardly the only evidence of sharpe james involvement in this case there is there is a plethora of evidence of mr james involvement the side this statement by mr failure to mr franklin  the fact that mr james is the person that miss reilly is running to every time she encounters problems the fact that that mr james then takes action and that he directs his underlings to to to do things for the benefit of miss reilly the fact that mr james is up to his elbows in this program he's trying to allocate properties to his former chief of staff to here if it was not inadmissible hearsay you're out of the the district court judge properly exercised his broad discretion under eight zero one d two d and finding that mr fail a statement to mr franklin was the statement of an agent made in the scope of his agency during the course  woman get properties now what's mr fail us job he's the head of the department of economic and housing development and he's talking to mr franklin about this s w r p program which is under that department so this is this is right in the wheel house of his duties to oversee this particular program and mr file is talking to mister franklin about a direct order from their  attorney's office and and and don't go to the other parts of newark i do hear mention of of elizabeth that knows one of the places where some of the renovations were done and i don't think that that is close to the federal courthouse which is  r p they could not give it away that appears and up and they created some i don't know maybe even some degree of a loser excitement about this property when there was a sort of but i will rely upon the wisdom of this quote with respect to have not some other option is more propitious thank you