the language of the statute and there's substantial evidence to support that the conviction then corman oldest relief must be denied because there is no fundamental a or that is not really what the case law focuses on what the case law focuses on is whether it appears the defendant may have been convicted for conduct that did not constitute a crime now certainly if there are instructions or in some cases  head it's whether there's a high degree of probability that the jury did not rely on the legally incorrect theory you have to rely on the government's closing argument to make your case not only on the closing argument no i think we start we start as early as the bill of particulars argument where they brought a bill of particulars in the furloughs and the day trips in connection with the that is they responded on that in t erms of the bribery i'm going to bribery the in closing argument there's the disavowal of specifically relying on those two elements to factual aspects but there goes on to talk about the day to day decisions that santiago was was responsible for presumably making the every day the every did you read the closing argument saying that the jury couldn't consider the furlough and the day trips as part of the kinds of acts that would be flowing  trips at the time the crime was committed i think what what happened here is that because these instructions merely track the language of government and judge  simply term and that there weren't later official acts in santiago's role as a as a camp administrator and because they proved those later acts they had satisfy the requirements of the of the  but at the at every stage in the trial the government took the position that they didn't have to prove that part of the seal had any official act in mind when he committed the crime and at every stage judge lucas denied our motions based on their judgment because then refused to give what turned out to be correct instructions under some diamond and the government was allowed to argue as they did the sun diamond said it's not enough to have a what they call a reservoir of goodwill and in fact that's up until three months after the gratuity was given there is no way to predict that mr leask feels mother would be sick he just want to go to case law a little bit in those cases they were simply jury instructions but the point here is that when you go to the nice circuit you look at the nice circuit opinion in the ny circuit opinion says there was overwhelming evidence but what was the overwhelming evidence of far it did tie to an official act well it defined the the definition of fish a lack but it didn't allow us in every stage he rejected the notion that you had to have a  contemporaneous contemplation of a specific act in mind that's really what some diamonds focused on and and what happened here was the government was allowed to argue that you know contrary to what some diamond later held simply they came back and argue all you need to know all you need to find is that he's in a position and then of course there have to be overt acts but but at least you didn't have to contemplate any of those acts in if you go into the record you'll see the fertile application there's no way that that anybody was contemplating the for a weapon with respect to the town trips there only been one town trip was a two hour work detail that occurred with several other prisoners and and in fact mr santiago had told everyone including the prosecutors in the f b i before the trial that an associate warden had told him that it would be ok for the  took his the cases and during those three weeks there was simply one work detail a couple hours along with a bunch of other prisoners and this is true at least your father had been assigned to so there's no reason why mr santiago number one would know that he's getting a gratuity for for for that and there's no reason for mr alisa to know that his his father had even taken time for trips or that it was a policy on town without having it in your mind they acquitted him but on the count where the government argued wait a minute all we need to prove is what there was really no dispute about that that he was who he was a correctional official i mean the government was arguing that this guy uses the secretary of agriculture dealing with a bunch of trade associations he's the supervisor in a prison setting where every day he's going to be making in a position to make a variety of decisions and you're saying that that's the same thing as a sunday name and there has to be some isolation of a particular anticipated act even though in the normal course there are probably any number of acts that the warden or surrogate warden would be taking favorable to one prisoner over another right well i don't just as a matter necessarily whole panoply of remedies here and if you're if we're going to invoke a felony remedy that what we need to make sure that the defendant is actually contemplating a specific act it isn't good enough and in fact we made and cause and effect circumstances than the supervising warden in a prison well that's just i mean there's a common sense well distinction there i know they're there makes a legal difference i don't know that's that's exactly it and in fact when we start talking about you know the factual distinctions and common sense distinctions you've got to remember we're dealing here with we're not dealing with businesses and in the you know dealing every day before the agriculture department with the secretary of agriculture we're dealing with people on both sides not santiago but mr friedman and we're talking about mr leask you know they're both in the hospitality industry when you know when somebody asks you who's an appropriate person ask you to comp somebody you company without even thinking about it and in fact you know mr friedman arranged for alaska hotel in two or three las vegas other las vegas special prisoner in that in that institution is a very special prisoner period we go through what you know the difference is what happened here in fact is there we inequitable if you think about it which the instructions explicitly invited the sort of arrogant interestedly invited the jury to rely on one of two alternative theories one of which did not constitute a crime we think that's very different from the circumstances here where what you have is a ca act for what she was getting additional compensation or reward at the time of the value was given the government should fail to make such a show you must find the founder not guilty on both counts the indictment was wrong without instruction i don't think there is anything wrong with that but i think if you look at the instruction the court did give both initially and then also the ones that in its conference agreed to give again when they were instructed on count two it did cover that because it instructed both on the union of act and intent you repeatedly said that for a conviction on count two you had to before because of some official act and find some official act according to the language of the statute so it included but you know this i think the defendant's instructions in paris really tracks one and the court's instruction although i think and i think when you look at the evidence here it does support that what those what do we make of the government's so explicit argument to the jury and disclaimer of trying to link it to the furlough and to t troops what was what was the official act other than just the notion that santiago was in a position to do something day to day that might be sorry i don't necessarily think it is more important but i do think it is helpful to consider that they did at least initially get it correct but just because the jury goes out and at a time when the defense can't respond at all the government argues an impermissible s inferences i'm not sure i understand what you just said the specific statement to the jury was that the government doesn't contend that at the time the guests were given they were given with the purpose of influencing santiago from day to day would make decisions as camp administrator there would affect his father figures and say the guests were given because of his position the government has conceded that that's an improper argument  so what would the jury be led to have been led to believe it should be looking to wit it not consider the furlough not consider the day trips and therefore more softened to just the general notion that santiago was in a position in some fashion day to day to do something good for his father happened afterwards but specifically point to the fact that during the vacation when they were going on the tour of the lassie offices at one point said you know we're hoping to have my dad home soon you father i think it's legitimate to sort of carry that back to make appropriate inferences about what his intent was at the time i think petitioner indeed testified at trial that he didn't count people simply out of goodwill or sheer random generosity two items that were referenced in the indictment but they weren't willing to to the gratuity and indeed the jury was in specifically told me if they can just give it its answers so to create goodwill for future unspecified acts and i think that's very different from a track it there was nothing in the elements saying that you could go ahead and convict based solely on a theory that this was given to something go because of his position and their arguments simply didn't go far enough and we think when you consider the evidence trial when you consider the instructions about the unity of act in intent defining an official act and the repetition of the language for because of an official act combined with the fact that both the court and the government told the jury to rely the that they were quite specific acts i think there's some question however as to how clear that identification has to be and again because there's a dearth of subsequent law clarifying that it is somewhat unclear at this point structure nonunion of the act in intent simply does not address the issues that we have here it's that simple i would not suffering from some time and some time i didn't have that so it's a distinction yes you're right you're  rodriguez a case that the government cited for the notion that there's a presumption that the jury followed the instructions of the court specifically at one fifty nine particular the the the ninth circuit sure that the prosecutor does not speak as a mere partisan he speaks on behalf of the government interested in doing justice and it went on to point out that where there are no pit where there objection and the court intervenes and gives a curative well and with cites in cases like this at that point judge lucas had ruled time and time again including daily failing to get the instructions that we  industries and for thirty five years he has been limited in terms of how he can and what business opportunities he can even take advantage of because and this is in his declaration because he has a felony conviction he served six months in prison as a result of this conviction and that's why it's a you know we certainly long since this thirty years ago twenty five years ago he ended his you know probation since but of running his way in for sheriff of san diego county in the other side king and and said this man's a friend of a convicted felon i mean this continues to poison it's like thirty years later so i mean the government doesn't dispute under here by yasi and in some of the other cases mean there was a case where you know it was decided ten years later and frankly they didn't have the record in maine galland terms of of the continuing impacts you know we got an acquittal on that one sole but i think the answer is under either statute you have to have a specific act in mind certainly that's a heck of a local only as a heck of a loophole in the statute isn't it you can go ahead and drive somebody or give it to somebody with a very specific intent to influence the official arks well of the person administrator and say but if i don't specify which one i'm ok well you know and the vines cited the are in case the on case was a gratuity case but it was a case where the defense was and this was again people from a conviction but the defense was well you know i went in there time and time again and again money every time but you know i didn't have anything really in mind and they you know they convicted him except in the gratuities i mean you know that the way you phrased the question you know you were really asking about it may be that if you're talking about bribery where you have the corrupt intent to influence maybe you don't need me to have that be the specific act in mind that's a very good question i think it's open under some time but sometime and in this case and i mean we're we're all gratuity cases in the end and they convicted him in the court of appeals affirmed the conviction you know they said the jury could see what was going on here you don't accept money every time you go into this you know massage parlor that's more of a mistype more than a massage parlor you know it's second third or fourth time at some point you know you know what you're getting your money for that's what really distinguishes that face from this