defined the fact that the subject matter must be official and involve a formal exercise of governmental power and in addition the act must be either an act by of the public official him or herself or that official pressures or advises another official to take official action but the court was clear that even in the pressuring or and advise ing situation of the person exercising the pressure advice has to themself be using their official position and indeed me interrupt you for a moment because the scientist and the government's response to your argument and i want to know your view on why we should not accept it da mcdonnell in involved a person who was then holding public office and so the court's opinion was all written in that light that it never actually considered the question that you raising about whether someone in the period when they were not a public official sandwiched between two terms of public service where the back conduct could inform this action and the government argues that's established circuit precedent here and so they argue not a close question tell us why we shouldn't we shouldn't be persuaded certainly or are first of all it is true that the p se question certainly was not directly before the court nonetheless the supreme court has never in any case held that a private citizen in this type of situation can zero a duty of honest services to the public the only case the government has cited in that regard is an old case which involved a very different situation involving a grant holder that by law under a federal statute was exercising got actual government power and i might be persuaded that that that is a novel question except for the government's argument that we have i considered it pretty mcdonnell and ruled that a nonpublic surfing can be responsible so how i mean we're not deciding the merits of the case obviously all we're deciding is whether this is either a close question or novel question the randall standard how do you deal with the fact that they point to precedent pre mcdonald that seems to go against you well i think that even the district court submitted that some of the language in mcdonnell that we rely on quote can arguably be read close quote to mean that a private citizens pressuring an official is not official action and i think there is a close question at a minimum and that the district court statement suggests that it's debatable which is another word in the randall opinion for the before skilling and all of these cases raise serious constitutional questions about this theory particularly since we are dealing with a broad and somewhat amorphous statute that the supreme court in subsequent years has narrowed in several different ways in the skilling and the mcdonnell case and i would submit also that you mcdonald talks in detail about three different types of constitutional concerns that lead the supreme court to narrow the statute and those concerns apply here and in particular the among other things the first amendment concern and the concern that a private citizen in a position like mr per coco during the time period we're talking about how do you distinguish that from a lobbyist who's salie left government and someone retains to help them with a problem with government and  the evidence in this case shows that mr aiello in an e mail during the period that mr percoco had left the governor's office specifically asked can joke he help with labor issues for a few months while he's off the second floor so i would submit all of that at a minimum establishes that i'd like to give you a little bit more time here he said not to worry about the red light that the district court opinion suggested papers but during the charge conference and i should add that the it was clear that on the record that the defendants all joined in each other's objections that mr propose counsel went into some detail objecting to a draft of the charge that included the private citizen theory the language was slightly different originally at pages five seven seven ninety eight zero of the transcript he objected and said only someone who was a government official can perform an official act the court disagreed said that wasn't a correct statement the law again it pages five eight to four to five mr parker cocos coun repeated i think it should be honest services as a public official and again raise the issue he raised it again i won't bore the well with all the court with all the quotes transcript five eight three three transcript five eight three six subs to flee the it was raised in the district was and asked anybody to rule on yes it was raised in the district court repeatedly and then the court made clear it disagree and then at that point mr propose council proposed specific language from the marjorie on a case given the court's response and then after that mr yellow's counsel also repeated again that that mr aiello preserved his objection on this ground so i think there is no issue about that and indeed the government doesn't pick up on that point in their opposition papers i see my time's up could i just have one additional minute to say a few words about the as opportunities arise which as i indicated i think any one of these is sufficient so the the argument here is and the second substantial question is whether the stream of benefits or as opportunities arise theory of bribery  circuit survives mcdonnell and mcdonnell identifies official act in a very specific way it requires the jury to identify a matter involving the formal exercise of governmental power which is specific and focused and pending or could be law by law be brought before a public official and the official has to take an action and critically the court said the jury must determine whether the public official agreed to perform an official act as defined at the time of the alleged quid pro quo and here and in addition to that the court sent the case sent the case back for further proceedings either dismissal or new trial because the instruction in the macdonald case did not inform the jury that the question matter cause suit etc must be more specific and focused than a broad policy objective and here the instruction clearly did not require the jury to make that finding the instructions said the government does not have to prove that there is an express or explicit agreement that any particular official act would be taken as long as the payments are intended at least in part to be in exchange for official action as the opportunities arose and i respectfully submit that at a minimum it's a substantial question whether this court's theory survives mcdonnell and although not precedential i note as we do in the papers that sheldon silver has appeal presented this as one of two issues and the court granted  i'm not sure how much there are things you can find out from it but i'm not sure i'm saying this for reasons i'm not sure how much you should read in to things that happened there it was an order it was a one page order but re i say that as i want to ask you a question and i want to make it clear i'm not implying anything but the question is how long would it take to brief an appeal like this and do you have any suggestion of how long the appellate process you know up to argument you can't do anything about it after you have any sense of how long well it's a little bit complicated in this case because these two opponents are joined with three other appellants and so i don't know if the court defendants were indicted together and then the district court over my client's objection actually severed it into two trials one with mr perk oco and several other defendants including mr aiello and his partner and then a second trial involving as it turned out a total of four defendants and that part of the case is not at issue here because the district court agreed that or in the trial that your client well there were two trials so there were but the people that are left from one trial are the first trial or mr aiello and mr percoco who's also here arguing for bail and then there was a second trial that involved four defendants who were all appealing with respect to the judgment in the case in which your client was was tried and convicted how many people earn so i don't mean to be difficult your honor there's only one judgment as to my client so that's what there were two trials but there's only one judgment because it was originally part of one indictment there's a total of five appellants joined in one consolidated appeal the court could i suppose even though there's only one judgement as to really mistrial split it into two different appeals  bribery conviction as well as the conspiracy of on the services fraud convictions because the jury was instructed with respect to that fertility bribery count that they could convict on the basis of nonspecific future conduct second to underline the private citizen point to government witnesses testified that mr percoco intended to transition to the private sector after the campaign so in addition to his inability as a legal matter to him to perform an official act as a private citizen as a matter of just the evidence he had no intention at any future point but to the evidence show about how quickly he in fact we entered the government after the election well the election was early november at some point during that month the governor prevailed upon him to return to government service really for two reasons there had been departures of see how quickly was my question yes i think he transitioned back around december eighth but there was a certain period to doing sort of paperwork and that sort of thing  but initially when he left in april his intention was not to come back after the two thousand and fourteen election in in november and so as i say not only was he legally incapable of performing  official act as a private citizen he was in no position to do so in terms of his own intention in the future until after the election as our per briefing demonstrated as well the government relied on evidence with respect to all of mr for cocoa's three convictions during the period that he was a private citizen both on the so called c p b side of the case and the core side of the case  and the you know more margie yada instruction did not cure this fact the instruction requires domination and control of governmental functions and there was no evidence in support of that particular charge you may recall from the briefing that marjorie yada according to this court held a stranglehold over local government and county government in nassau county all the government can point to here to satisfy the marjon instruction that was given was that while mr rococo was managing the campaign he coordinated private of political and and public events of the governor with people in albany and he had discussions with his some of his former colleagues about postponing their plans to leave government service new you're now saying the evidence was insufficient as a matter of law to just allow that that's that seems to me to be a harder argument for you to make is as the basis for bail than some of the legal arguments that we've just heard do you do you want to tell me why you don't think the jury could have found this well as i as i pointed out here on of the record was insufficient to justify and instruction merits panel will hear that i guess but the instructional error or other errors at the trial were not harmless because they were not overwhelmed by record evidence of guilt in this particular case fourteen counts went to the jury the jury convicted on four counts returned eight counts of acquittal and deadlocked on two counts and therefore those circumstances do not allow for  from any government asks us to look at the particular scheme of the county in which they argue the vast majority of your client's actions were taken while he was on the government payroll and only a modest they argue amount of actions were taken while after he left and so they're saying it would be inconceivable that a jury would convict him based only on the actions he took as a private citizen when you know whatever they're saying seventy ninety percent of the actions were taken on the government payroll what's what's your response to that well my response is that is there a plausible way a jury could have convicted him based only on the actions he took as a private citizen well even if the jury the jury was certainly invited you know to convict on that basis but even if even if you look more broadly at the government's evidence of official acts it seems to be at least a substantial question whether during the period that mr percoco was back in government service he engaged in any conduct the could be called an official act in a civil question right you're now arguing though that they could since that will have to be looked at in the light most favorable to the government then the question is whether we can conclude that no reasonable jury without the private citizen actions would have done anything but but to convict him no i was i was trying your honor to to respond to your question about the other parts of the case when he was in government service and my view is that that's the basis for their harmlessness argument isn't it that the evidence of his misconduct while in government service was so overwhelming that they would have convicted even without the evidence on that one scheme of the relatively small number of backseat took in in as a private citizen honor i was i was trying to be responsive by by turning my attention to those particular allegations of official acts while back in government service and and you know where and we  that the government alleged in there that there were two official acts that mr percoco directed other government officials to approve something called the reciprocity agreement and he pushed that referring a constituent and here a constituency lobbyist to another official is one of the myriad decisions customarily performed by public officials that do not amount to an official act turning to the power purchase agreement we previously brief the as as having participated in judge her promise basically said under the circumstances where there is no risk of flight no risk of danger this was a question put to the government why not join issue on the merits before a merits panel while the defendant remains at liberty thank you my brief is due next month mr percoco has been on bail since two thousand and sixteen he's been on bail for a year since his sentence he's been on bail nearly six months you know since we've since we filed a notice of  appeal i don't see the harm in him remaining on bail pending appeal which will be in a briefing almost immediately thank you i think we have i will hear from the government may please the court my name is matthew but all ski and i represent the united states now this court should reject the motions by both defendants and affirm the order of the district court bigger is that in your view were different between the two defendants for these purposes are your honor and actually that's a point i want to make right up front so thank you for asking on the legal questions there's very purely legal questions i think there is very little difference but when we get to harmlessness there is a they are two separate defendants and they're situated quite differently for mistrial we've argued in our brief and i'm happy to go through it in more detail why his arguments even if accepted would not lead to a new trial or reversal but certainly as to mr percoco certainly as to mr percoco any of his arguments even if accepted would be harmless and the reason is that he was convicted on three separate counts that span two schemes both  instructions on either the as opportunities arise issue or on this what they've termed tried to phrase as a private citizen issue and that's because taking the second one first the private citizen idea that the c p b plan was conceived and completed and acted out over years before mr percoco left government it started in two thousand and twelve it continued up to the point he left government and actually he managed to continue to receiv coconspirator even after he left but the point is that the agreement began in two thousand and twelve when his executive deputy secretary to the governor of new york he agreed to take official action at that time and he did take official action while serving as opportunities arise question for mr judge could probably have an advantage that we don't have which is he of course presided over the trial and was intimately familiar with it the question for us here is we are not the merits panel and so in deciding whether the question is close in the sense of whether it panel could decide it differently from how your change you're asking us to get pretty deep into the record of the case to try and assess whether this could have had any weight in the jury somai and very frequently when we say that a case the question is not close or whatever it's because you know there's a precedent that's almost directly on point you may in fact persuade the merits panel on just the point you're making among others that you argue but how do we how do we conclude here that it would be impossible for another panel or that it's unlikely that another panel would could could find differently so let me try to separate a few of the issues on the legal issues and the legal issues our point is exactly the one you just made which is there is controlling circuit precedent on each of these issues but as to the factual issue we were just discussing the harmlessness issue and in particular whether there could be any harm caused by an error in the jury instruction at this private citizen idea you can rely on judge to promise decision because as you noted she was intimately familiar with the facts in this case and she found on this issue that there would be no difference there could not be a difference if the if mr review i believe on that question because it involved factual findings by the judge and in particular the judge was intimately involved with the facts of this trial a minor standing as you would defer the judge could probably findings on that hard pressed to understand that because harmless is an error which you're saying for purposes of this part of your argument you say even if there was error whether it was harmless i would i would think would be a dyno overview question in my am i missing something well you are right on this on the standard to apply in these bail pending appeal proceedings is maybe not fully developed as much as it is in other areas but there are numerous cases that refer to the furring to  the to the judgment of the district court on issues with which a district court is intimately familiar i think in most cases it has to do with risk of flight and danger but this is one where the district court knew the case and made a finding and let me point out that even if there wasn't some even if you were to take dinner over a view of this nonetheless you have an opinion by the district judge that was carefully thought out it was careful the judge not only south of the trial was it was clearly fully aware of the record carefully thought through these issues when they were briefed after trial and you can rely on that opinion in the reasoning in that opinion to reach your conclusion on the issue today i don't want to keep you on facts and not let you argue about the legal  isn't the question that a merits panel will have to consider whether those precedents have to be reconsidered now in light of especially mcdonald's possibly other cases that followed it and that it's possible merits panel might look at it differently i mean the question of whether someone can be liable for denying the public honest services when one is not on the public payroll is is a challenging question and so they're arguing that we'd have to relook at march to and the other cases you've cited why why isn't that at least a question on which another panel might might come out differently from from  mcdonnell but the fact is the panel made may not do that but now the question is now which side the merits panel is going to come on but whether there's really only one way the merits panel could come out and i'm not sure how how we would reach back with that's right here are the questions is it close is it a close question one that could easily go go either way and our position in the position articulated very clearly by the district court as well as it's not it's not a close question so much trying to oversimplify but you're saying of course it could go either way but you know everything go either way but it couldn't easily go either way because the was clear  would take something some more difficult i think that's fair in the sense that it is true a panel of this court could decide not withstanding precedent simply to change the law and on it it's it's possible but that's not what the case is randall in the cases relied on randall asked for the question is as you say it's a close is it reasonably likely that this could go either way and result in a new trial can i ask you a question bail pending appeal but the but the but what you do know is the difference between is the difference between the silver case in which the bail was granted and this case where you're arguing should be and i thought perhaps you could compare that to the two cases in the hopes that will be consistent running our answers to our response to the other needed to be an agreement essential in both sides of the quid pro quo whether both parties had to understand there was an agreement in order to sustain conviction that latter question is is not raised here  o that latter question would have been the close one in your view if if i did not actually concede it was close i'm just asking you whether that's the difference is they had that issue was there and it's not there is another difference look at you in a moment but without the privilege of knowing the thinking of the panel and that in that case all i can say is our view is is profoundly that the as opportunities arise question is not close i will i think make clear why looking for a legal precedent upholding that theory other than i understand this so let me say this i don't think it's a set of facts that have appeared again in this way in the circuit until now and i think it's because it's not  common for people who don't have a formal relationship with the government to be given the kind of duty that fiduciary duty answer is to you know if not but i do want to make one point on that i don't know the precedent other than owed a fiduciary duty or a duty of honest services the fraud of that victim of his or her foot on a services that's exactly what happened none or none of those occurred in the right but that's correct that's correct ron i don't mean to quibble at that that is correct thank you and indeed i mean my understanding is that your position in this case is that this is a step removed from our who'd never held any kind of public office that m r coco anyways power was directly attributable to his once holding public office and then resuming it now see the problem is again you may persuade on that i can't predict that but it's seems to be a novel question in the sense of we haven't we haven't specifically considered whether that would be a circumstance where yes he could deprive the public of honest services even in the is somebody who was the but by people estimation second or third most powerful person by by his title in the executive department of new york state for a brief period moved over to run the campaign of the governor who he was serving as executive deputy secretary and during that period the evidence showed in the jury found continue to act in the precisely the same capacity so it is much more it's not  the person owes a duty of honest services so you look at cases like dicks in power in locked in the seventh circuit patillo in the third circuit all of these look at the facts what were the facts they don't look at the contract in fact lupton specifically says you can't look at the contract i think in that case there was a contract between real estate agent and the government that specifically said he's not an agent of the government and they said that doesn't matter it's not up to the state to define it's up to the statute the statute sets forth  there to whether or not recognizing him as having a duty when he wasn't holding office ran into first amendment problems mcdonnell now has cautioned that even as to people holding office there there are these concerns so won't that be a new analysis that the panel the merits panel will have to entertain my recollection of margy on his arguments and i don't want overstate i don't think it was raised exactly this way at all  recollection is there was some discussion about sort of over breath of criminalizing activities that might be traditionally political which i think really bleeds into the same type of argument that that you're that you're discussing here but i think what's important to official because that's require class of people who can be defendants but in six six six an agent or representative of the government or under on a services fraud who owes a duty of honor services it simply doesn't speak to  that and i think that's important because i think you opened up the argument with mr pirro by by pointing out that mcdonnell himself was a public official and therefore it wasn't raised in that case but i actually think it's more than that is that under section two a one section two one actually has the phrase baked in a public official must be defended free and that's not the case under the statutes here that you say the c p p is the one in which is is is the one of the two in which this issue is inclined to think that the legal questions are close enough to merit bail which we don't agree with but for inclined to think that then certainly as to mr percoco he still wouldn't marry bail because it would not overturn all of his convictions thank you very much thank you for your arguments will try to get you a decision shortly but will be served a decision for now