evidence was completely insufficient to show any connection or any link or any exchange of a thing of value for an official act and the remaining counts counts two dollars and four dollars on which mr berger was convicted should be  vacated and he should be retried because of the government's improper conduct in rebuttal that influenced the jury's decision on the key issue in the case the credibility of the two cooperating witnesses turning st to the insufficiency of the evidence the case never should have been charged as a bribery this was a highly unusual case where the public official who was supposedly bribed actually testified as the government's cooperator but never says cleanly i was bribed i that the evidence doesn't cross the threshold it's not sufficient because the things your honor is referring to and i agree there are certain statements in the record none of them draw the connection between the official act and the thing of value he says for example yes one bills for preventative maintenance that wasn't done to be paid because i was getting were careful about it i mean there was discussion i mean maybe they weren't explicit certainly a jury could interpret the words  to establish a connection and this was the government's cooperator i think i want to talk specifically about what he actually says what he says is one of my reasons for approving the invoices i was getting free repairs they weren't free he was being bill they were doing that and that there was a quid pro quo this is very different from the question of whether the who it was a promise or suggestion that something might be done in the future or something was done and forty seven thousand dollars at that time you know something like twenty seven thousand dollars there is an accounting entry in the exhibit on page four hundred dollars of the appendix your honour's where there's a forty seven thousand dollars entry and then a reversal where it subtracted it it's an accounting  by the look of it on the run up of twenty seven thousand dollars one thousand dollars in this kind of a setting this doesn't make any sense this was happening for years and it was happening with dozens of people based on the evidence in the trial record and whatever the reasons are it's not in exchange for committing fraud in the idea that mr bragg what is some point in the future do something favorable or that mr popular will do something favorable in the future thanks to this work that was being done simply as the exact gave testimony is not sufficient on its own to draw the connection that your honor is drawing and was not a sufficient basis for the jury to draw that inference inference the jury can draw and that's what they do they can but when the evidence is equally to go one way or the other it's not sufficient to convict in the fact that the government relies on the forty seven thousand dollars accounting entry where there's no testimony about it even and it's reverse engineering the evidence to make it look as though it's sufficient when it's not just on the rebuttal point briefly  honour's this case all came down to pop case credibility as as we've been discussing he was the key witness and if i'm mad reserve time for a bottle but if i can discuss this for just a moment the  pressured by the government and she didn't give in to the pressure the government could have responded to that in myriad ways including in ways the government's own briefs suggest by pointing to the record saying the evidence doesn't support what defense counsel saying or that the jurors observe the demeanor of the witnesses and could infer they weren't pressured but that's not what the prosecutor here did what the prosecutor did was essential a we the people at this table right here those were the words our career government employees who just seek justice he said it twice we question but this is not just a matter where the prosecutor came out and said these things unprovoked it is a often the case that the defense argument is that the cooperators were not credible and changed their story at the justice department of public prosecutions your honor i think that there is a way that they can respond that is consistent with this court's precedent in a way that is not and what you and it may be that what they did went beyond what is most appropriate but then the question is in both circumstances is with a degree to which we went beyond reach a best level of outrageousness which we have said is necessary for and that's one question before us and you know i think we all understand what that was delivered and i think it did here because the jury deliberated longer than the trial itself there was a split verdict with an acquittal on count one on count five and a hung jury on count one and it went to the central issue here your honor i reserve the time for a bottle thank you when you're from the  embassies director of transportation would send regular lists of buses and their mileage knocks on the buses into practice facility to be inspected regular doctor invoices and paperwork to make it look as if the buses had in fact been brought to his friends cars parked his family's cars now this was a document intensive case it wasn't a case simply dependent on the word of a cooperator and i think that it helps just to walk you through a couple of documents so that way the court can see this was kind of a no brainer for the jury to walk you through one example because one of the things that the jury saw with that the same pattern repeated itself over and over with the fraud if you look at page forty one of the supplemental appendix you'll see a worksheet that was created on the rock and post his parking lot under temperature fifteen i understand that yes i'm a little troubled by your saying it's in no brainer for the jury when you find this rather sophisticated you're not finding a conspiracy and hanging on something else and not finding obstruction of justice so that you know i think it was a very interesting brainer for a jury and it was i'm i'm not trying to demean the brains of the jury in any way your honor and i would point out that the document intensive side of the case didn't reach the obstruction where although there were text messages that was also based in large part on the testimony of william poppy what i'm talking about is the fraud itself was absolutely clear from the documents and the one thing that the jury got hung up on and they did hang on count one but if you look at the jury notes what they were asking about was what has to be in mr braggers mind in terms of agreeing to whether or not there's a mailing for whether or not he has engaged in the conspiracy to commit wire fraud so it's a sophisticated jury but it wasn't a question of whether the fraud was committed or whether the bribery was committed there the jury found very quickly that the fraud was committed with the bribes were committed and that both agreed to to use an bribery theory of bribery was committed there that happened very quickly and early on the deliberation was over the conspiracy count almost entirely so if we go back to page forty one you see that this is an example of these worksheets that pop cave men would create in the parking lot of rockland postings where they would go through all of the buses and chart these are the buses here's how many miles are on the buses and here is whether we put in say when shield wiper fluid so for these purposes if you look at forty one bus forty three under some are th two thousand thousand four hundred and sixty nine miles if you look at page one hundred and sixteen dollars of the supplemental appendix that's an invoice from december st to six days after the bus was looked at  populous people purporting to inspect bus fifty three giving it the exact same number of miles that pocketed had emailed the following page as a backup work sheet purportedly by the mechanic now this can be among other things even a but hadn't been used between december th and when it shows up at brady what it has to get driven to break a law which the testimony was was about nine miles away that shows that this bus isn't actually coming in he simply taking park of sense now would be possible that one time he was lazy and just wrote down the wrong number although it doesn't explain how his mechanic lives down the wrong number since the mechanic is actually inspecting the bus but you see this over and over so let's look at bus nine thousand three hundred and forty three of the appendix shows that  done in exchange for something and so far your documents don't go to that's right well there are documents that do go to that and i will point out that on the mail fraud the jury found a property in money fraud as well as on the services fr even if there were an issue and we contend there's not but even if there were an issue with honest services fraud the count would still stand because there's no question and nobody has targeted the money and property fraud that was also found for count two as for the bribery as you pointed out judge calibrated there was in fact discussion between brave and poppy linking these two but there was also documentary evidence in the form of the account worksheet was also back to what was the conversation the conversation was that early on poppy was told and this was not a conversation with i don't want to make it into something it wasn't but rather to set the background for what happened later poppy was told by another local official you know you're going to brag or will take care of you you take care of him just send your your own vehicle to him and what he found is that what he was promised actually happened now it's not a claim that break aside that we are not saying that by any means if that's all there was and it ended there there wouldn't be enough but what happens is in two thousand and twelve rego comes in and confirms that this is in fact the deal how does he do that he proposes the fraud to poppy and when he does he says he keeps on reminding and puckett said it happened whenever  bragger talked to him about the fraud reminded him what his bill was up to at that point so he says part of his personal bill which by two thousand and seventeen the end of to answer the end of two thousand and twelve was up around forty five thousand that that is a quid pro quo that's right they should be allowed to say that's a quid pro quo and break it himself has linked the two by doing that and doing it every time and then he confirms that there's no misunderstanding when he cancels out the bill and to be clear there was testimony about the accounting statement if you look at the transcripts starting at page five hundred and forty and going on for about i think it was about fifteen pages or so valerie casket who was braggers own bookkeeper testified at length about the accounting statement and what meant st of all she said there was forty seven thousand dollars of debt it only showed about twenty seven thousand dollars could be accounting statement only went back to two thousand and eleven and she said they had a system before that that was reflected on the counting statement and as your hon thousand dollars for action she said she had nothing to do with that she said i wouldn't have done it because poppy wasn't paying any bills we didn't get any checks i saw this on the accounting system i said this is crazy this should not be i went to brigham and all br had any number of other bills of the order of this because he was slow in billing and that the fact of all these lovers suggested he just did that number there was no no that's not in the record and in fact valerie kafka said that this was a unique situation and she was the bookkeeper for break so that's not on the record that is something that is simply taken from thin air right here and what justifies telling the jury that you know where we are so busy enough prosecuting crime than has the time to be prosecuting innocent people that's what was going at that was what the government said in friedman that is not what the government said here here the question is whether it was improper and if so so improper that it amounted flagrant abuse and fundamentally undermine the confidence of this court and the public in the verdict verdict that again mr berger confirmed when he when he confessed after the trial  thirteen of the transcript to the place where he pleaded guilty himself for his conduct to five felonies because he was strong armed by the government to get there because the government wants to get the defendant richard big break  and to that i would say to the defense please do not flatter yourself don't flatter yourself we're not that interested this is career government folks looking for justice you go over that the case takes you you look for justice this is and then the next line puts it in context merely and so not not the finest statement says i made an unfair invitation but what you read is not exactly creditable it's not perfect but the next line helps to explain what was being said there the context matters this is not about strong arming people into getting anybody any particular person there is no evidence that anybody here knows richard bragg or cares about richard bragg or has a personal stake in this case in this matters mr lawrence was calling out the prosecutors by name during his closing he repeated over and over you should be angry at the government the government has strong armed these people these people came in and they understood that the prosecutors wanted them to name mr breda and they ended up doing it your a says that the witnesses conceded that they had been subject to government pressure one witness said that she had felt pressured when she met with the government the cooperating with us in the non prosecution witness did not say that at all that was bobby or lapore who started out her cross examination by saying i've known richard brautigan since we were kids he's always taken care of me this was his good friend and she said i didn't feel pressured but i didn't change my testimony as a result there was no testimony from the other witnesses that they were pressured and in fact an f b i agent catherine patton was put on the stand so we put in charts on direct and on cross it turned into an attempt to get her to effectively confess to pressure and the witnesses and she did not do so either nonetheless defense counsel during it says well ladies and gentlemen gets to decide whether he's telling the truth or not it's not you it's these two guys mr alley and mr mayor who decide that about on page nine hundred and fifty five dollars of the transcript he says the pop cave he's a sick man who was strong armed and pressured into pointing the finger at mr bragg and that's at page nine dollars of the transcript he says at page one hundred and fifty dollars that the government strong armed witnesses into falsely accusing richard breda of illegal acts and that this is a carefully engineered case that should leave you angry at the government he said that mr sweeting's testimony was quote a result of coercion by the government he said there is not and this is a page nine hundred and sixty five there is not a shred of doubt you can have that mr sweeting knew what the government wanted him to say in connection with his testimony against mr sweeting i think he meant mr bragg that they wanted him to say that mr bragg is guilty and that he participated in improper acts and in fact when he was finishing his  rebuttal he said in fact ten years as a prosecutor in the same office as mr maimane and mr ali this is belching for his own credentials where he says i've worked with these guys and then he says but you don't want to convict him and then wake up one day and say i shouldn't have relied on what i heard from the government or the government's conduct in squeezing witnesses to testify against mr bragg this and that there are no other questions we rest your honor i think the confusion with friedman is not surprising because the statement was highly similar to the statement that the court had to stay inside and and surely the hard on exactly the grounds of attack your honor i think there's still an obligation to point the jury at the record refer to what's in the record the prosecutor's under no circumstances no matter how hard they're poked under no circumstances can they give what is effectively an sworn testimony that all they do is seek justice and follow the evidence that that is not permissible in any context and there's no case the government side that is authorized that kind of statement the statement from the government saying test is whether this crossed the line that this court has drawn between what's permissible and impermissible and there is no authority that we're aware of that says hard enough they can say whatever they like or essentially vouch for themselves and their