eight counts involving allegations of honest services wire fraud counts one and two how object violations counts for in four and perjury count seven eight while he had been a city councilman and the vice mayor of the signal of prior to his election a city treasure he was acquitted of counts five and six which were also perjury counts somewhat related to the counts seven eight that of which he was convicted as the court kno has been discussed there are a number of issues we have race in the time i have of course it would not be possible to cover them all those are cover of the ones i'm going to try to hopefully emphasize to the court not to suggest that the others aren't just as important and that we're banning anything but up for practical reasons i will discuss what i can in the time alloted first issue yong's i'd like to bring to your attention is issue number two which is founded pages seventeen and nineteen bringing this is our route twenty nine motion to dismiss count one into the wire fraud serves as wire fraud convictions and three and four the hobbs act convictions on the grounds that the government's evidence even in the light most favorable to it established not a bribery skiing with the tie this company that was the central focus of those counts but established at most a conflict of interest between  burfoot and his duties as a city councilman and as the mayor of the city of norfolk now the government's evidence in the case was that mr ford was a silent partner in the tie this company in two thousand  that the defendant's two hundred fifty thousand dollar interest would be paid through in suing profits what did he what did he give in exchange for that interest mr burfoot or mr burfoot according to the evidence cast certain votes on ordinances that were argued were favorable for the best company and to some extent why isn't that the bird definition of bribery well it's because of the way  scheme arose in this case the agreement was according to the evidence that he had an interest in this company he was cashing it out in the way it would be but you haven't seen just indicated that he got the interest of casting certain votes in favor of the company and it's that's true but he did that because he had an undisclosed conflict of interest with his duties because what he was told us that may be an additional point but i'm still struggling as to why his casting of votes in favor of the company and its owners in exchange for an interest in the company is not bribery well it's our position your honor again that without without arguing with his honor that the circumstances of this case again the genesis of disputed by the defense of course but i thought you just conceded that your client received his equable interest and the entity accepting a favors i can see all i was saying is that we contested that he did anything but yes i can see that the evidence that the government presented was that the remuneration for his cashing out were things that he did as an official but as i read skilling and it's a  e it's a fine distinction we would submit that and i guess just to give the court the specific language from skilling the court said undisclosed self dealing by a public official repri fall within the statute so yes skilling said you can take an official action which the government says mr berger did and that you can receive some thing some benefit to yourself which is not disclosed to the public that you're giving it because you're government's theory of the case was entirely different it was that mr berg was demanding less money in return for him giving a support and why doesn't the evidence support and why wasn't the jury entitled e in smaller amounts he was the one who was setting the terms of how he was going to be paid and he was doing it the timing was critical in that case the numbers of times he and two white conferred before them in town vote all of this is is the factual yes basket that was put before the jury so your theory was rejected by the jury and it seems to me you're what you're asking on a promise many many officials testified dozens of people attorneys city officials former city officials council members that mr ford never did any of these things that these this group of felons and people with promises for reductions of state that notwithstanding our trial defense theory as a matter of law the jury's verdict could not be supported as a matter of well by skill but then you get back to turns diaz's right but you can have both a conflict of interest and be accepting bribes so they're not mutually since a proposition so how do you answer that i would answer that in this case the even in the worst the best light to the government the only theory that  was not that he was have a competent interest and was taking bribes they argue they do was taking bribes only they didn't argue conflict of interest at all really is have to prove a violation statute no but what we're saying is that based on skilling he took one of the alleged one of the developers who mr burford supposedly had an illicit relationship now mr mr burns testimony was central to the government's case and the government admitted that themselves at mr boo's own candid and compelling so the government can argue that mr boone wasn't critical to their case and now that and in addition the testimony we objected to was this mr tommy smee go a city council member and former colleague said there's always been a perceptions inside been on council that ronald boone and the boone family have been able to get whatever they want and it doesn't matter that they aren't following the same rules as everybody else that was in illicit relationships with other officials is inadmissible the trial judge agreed there was no issue there he sustain the objection however i also asked for a mistrial because i felt that it was too prejudicial to be cured even by a curative instruct issue that mr bush testimony was central to this case i mean it sat no issue at least the trial judge found that it was improper to sustain the objection and gave a cautionary instruction the only question before the court on this issue is was it bad enough there is there is quote a reasonable possibility that the jury's verdict was influenced by the material that improperly came before which count of conviction relied on testimony i would of this case the core of it for the government really was still the sort of traditional immunize defendants people with horrible criminal records mr etheridge admitted that he wholesale perjured himself in the prior trial bank of the commonwealth where he was convicted of fraud i mean that was just on oh that was an contradicted and they relied on this who are about four or five people who are all either convicted felons or admitted according to them members of a scheme of bribery so it was like there was any real independent evidence other than those people in this case that mr burkett was doing something wrong and weighed against that i've never seen in my career we have i can't remember the number of well it was thirty or thirty five public officials former city manager present city manager former council members present council members attorneys with the city attorney city attorney present city attorney for an office plumbers attorney for n r h j attorneys for the who negotiated deals a whole host of these people all of whom would have been in a position to know if the allegation that mr berg was there trying to help these people get job get projects and things not a single witness i don't think any government witness other than those five or so who are people testified to that in all the people you'd have to go to to influence it's also mr berg never solicited us or advocated for tavis so my point is simply that this prejudice this was a closer case i think then perhaps maybe the government would like to admit it was a much closer case and they came down to the credibility of these witnesses as often dozen cases but mr he's doing it with mr perfect it corroborates the government's case and the court found it shouldn't been admitted sustain the objection and i say to the court that there is a possibility that the jury's verdict was influenced by this central figure the government argued to you is not this was not overwhelming evidence there was a lot of immunized and convicted felon testimony not overwhelming evidence it was a close case the centrally the issue affected by the arab central figure the government  that and the steps taken to mitigate the effects of the air you have to balance those and in this case the court gave the curative instruction but there are some cases where the bell cannot simply can never be unrung as they say this bill rang too out the jury heard it they shouldn't have and it's our position very respectfully ours that it affected that there's a possibility as this court has held the standard that the jury verdict was influenced by what they should not occur and that this case should be tracking those transactions and there was a particular witness who testified that the defendant had thirty thousand dollars of unexplained cash deposits in his bank accounts in addition there were particular transactions that were that dwight etheridge testified where he withdrew eight thousand dollars and three minutes later deposited one thousand dollars into mr burfoot car loan account three minutes later and he testified that he did that  in addition to those those records there were seven cooperating witnesses who testified about their participation in a bribery scheme with mr berg that testimony was corroborated by multiple other witnesses and over two hundred exhibits additionally burfoot testified in his own defense over the course of multiple days in which he was confronted with his own incriminating statements his own oral statements written statements and these records only on that evidence the jury a rational jury could easily find convictions on six of the counts that he was convicted on let me address the the two two points that mr sacks raised in his or in his opening the first issue is that the such and such developer the two are not mutually exclusive the facts are also important in this case with respect to the two hundred fifty thousand dollar bribe related to typhus the evidence at trial from multiple speculated why would we pay you two hundred fifty thousand dollars when you put nothing in so mr mr sacks argument that this is somehow an undisclosed payout of his shares there were no real shares he had the hit there was nothing that he had invested in it was merely a sham to cover up his how he was going to receive these bribes in addition there were there were bright payments after the two hundred fifty thousand dollars were satisfied when we moved to the  s in addition with respect to count to count to involve more than the time this relationship involved the army relationship and the boom relationship and mr brief mr upsets does not argue that there were any sharers or some sort of undisclosed financial interest related to the only relationship that was to simply restarting meeting him at a location asking for twenty five thousand dollars for the mother of his children in order to satisfy qualify for a bank loan and then it same thing with mr brown there's no preexisting the evidence proved a bribe street scheme not a conflict of interest and the jury was charged that the only way that they could convict on the bribery charges was if they found a quid pro quo relationship the second issue that mr  and sort of bad incidents related to mr boone's bars in ocean view and offhand mr schmidle made a comment that you know he always wonder why you never met mr who never correct it was opinion testimony it was unnecessary but this was this was a stray comment in a five week trial with over ninety witnesses over two hundred exhibits the idea that particularly after a cautionary limiting instruction with the testimony was stricken and it limited instruction at before clip before the jury deliberated that any stricken testimony should be disregarded the idea that this straight comment impacted the summer was an honest person high caliber criminals impeccable standards correct correct and there weren't many i mean and it's not a numerical balance but it was way out of kilter in terms of  you can have consideration and a partnership is not cash based can you correct yes goodwill for example a lot of people have example former military or do pretty well and you know sometimes we call corrections and things he was involved in typist was so that he could steer government contracts to them and to himself and that they would pay him in exchange for those for those official acts that was the evidence on the jury was entitled  one witness they could have the government could prevail but they were just for typist i mean there were five six seven witnesses who all testified about this illicit agreement and the various payments that it occurred and i let me also stress even if is correct with respect to the two hundred fifty thousand dollars deal anti this the government prove beyond that after the choice of fifty thousand dollars was extracted there were additional payments thousands of dollars it was hard that was  even if we are wrong on which we don't believe we are on the two hundred fifty thousand dollars we still prevail on the other acts of bribery that will want to the conspiracy for wired for all now before the last vote for the midtown office tower members of the public during a community session found out that typists hadn't caught up on the city taxes and they were understandably concerned about that mr burfoot had sent somebody to watch that meeting and report back he immediately upon learning this concerning information told wired etheridge i won't be able to get the votes for you if you don't get your taxes paid and i can't even vote for it so he directed  taxes and against treasurer's office policy he used another person's credit card to make those to make that tax and how was that reasonably foreseeable to mr burt well it's reason for civil because he directed mr perfect mr etheridge to go and make payment he didn't direct the mode of payment correct but it was recently foreseeable to him he understood that there were probably three different modes of payment in the treasurer's office you could pay by check cash and credit card payment the undisputed evidence in this card that it was reasonably forseeable that when he showed up that he would try to do it by credit card correct and that's all that's necessary africa and that's certainly in that was one in three make to work on both to pay off these are city taxes he first brought a check mr that's rich but it was insufficient he didn't have enough funds to pay for the entire thing so he borrowed his sister's credit card and pay the remainder of give me please the court several brief rebuttal points first of all returning to the motion for mistrial which affects all counts as i said the pervasive i think of the reasonable possibility that this prejudice this jury on everything mr boone was sent into this case to the to the allegations of corruption against mr mr burfoot and it was not i submit to you the case was much much closer than the government will admit and in fact as  first of all the comment was no straight comment as judge keenan pointed out it at a bare minimum the innuendo you have to read in the content of this trial of this case the whole thing is that mr burfoot has got these corrupt relationships with these developers and that's exactly what tommy smith said mr bush does he corroborated through and inadmissible piece of evidence that was i submit so prejudicial you can't cure it the very theory of the government's case to support all these other convicted directed right at the heart of the core of the government's case now that weighed against that is as his honor judge gregory has pointed out there are too many references to the record for me to cite them in the time i have i would respect recite pages seven and eight of my brief the opening brief at the bottom of page seven the top of page eight i summarized every joint appendix reference to the following the defendant presented dozens and dozens of present or former city officials as well as other professionals attorneys who open all testified i'm talking about dozens that during the pertinent period of time the defendant never advocate who are solicited for or otherwise sought help or inadmissible evidence comes in the closeness of the central and the efforts to mitigate and what i'm saying it's a balance what i'm saying is this case was far from a lot by the government far from it was overwhelming defense  we could not possibly we wouldn't do it anyway but if you read it we have some corrupt defendant wanted to marshal a bunch of people to lie it would be impossible the number of these are so yes i understand your argument with respect to this opinion testimony but i understand that it was inadmissible was improper should not have been given but i don't i'm struggling to find why it's so significant import given all the other evidence in this case and his direct testimony that in fact your client was engaged in criminal behavior well and i want to say th not arguing with you but i don't think the record supports it's not mr boone didn't see my time is up there my answer you mean that the record doesn't show that was just me who made any kind of really any direct allegations of criminal conduct he testified about some circumstances involving the i misspoke he testified about some some circumstances about one vote that the government tried to argue ported the the position their position mr smith  e in terms of numbers as opposed for but if the jury believed what those few people saying at if they believe it was not enough evidence to convict your