these guys thank you for being so welcoming and we have four that are scheduled for argument this morning in the st as united states of america versus day that roberson and i see mr  thank you then please the court yaakov rothbart david roberson your honour's what the jury could have concluded in this case is that the defendants hired all of the robinsons foundation because they believe that robins name his reputation his credibility his political connections could help them shift the public debate in their fight against an overreaching federal agency now maybe that's an ethical maybe that violates some alabama rules governing the conduct of public officials but the supreme court has been clear that the federal bribery statutes are not all purpose ethics codes for state and local officials and this conduct was not federal bribery because the defendants did not pay robinson for the powers of his office his legislative powers at most the jury could have found that they paid him to attend the meeting and asked him questions and to make a public  statement the pay him to vote on resolution ninety seven they did not when the official act after mr wright representative robinson performed in return for the money that was ation it was an official act your honor it was not an official act that the jury could have concluded it was part of the agreement with the defendants and so i just want to separate out there are two different pieces to this case the st piece is these two meetings and then the nd piece is the vote and i think they present different issues with respect to the meetings which are the st two acts the ones that are discussed with the defendants where there is coordination where they're close in time to the hiring of the foundation the found beyond a reasonable doubt is that the defendants had paid robinson to take that vote and that's true for a few reasons st of all unlike the two meetings it's undisputed in the record there was never any discussion between the defendants and robinson about legislative leaders talk to church leaders talk to residents talk to other politicians about the e p a s initiatives and the concerns that drive and had with them he did not say he never testified that he was paid for legislative activity in fact he testified he had never discussed any legislation including jr ninety seven dollars with the defendants this resolution came up months and months after he was hired well after his foundation was hired and in fact it's undisputed in the record from both sides that robinson had told the defendants he would not vote on any matters that implicated the foundation's partners because of conflict of interest rules let me ask you this we have a different statute than donald sure let me take the st part of it st your honor yes it's section sixty six is different it uses different words in section two hundred and one however the words that it does use are you have to be paying a state agent in connection with state business and we think interpret ing those terms consistent with the constitutional principles and the canons of construction that mcdonnell applied to section two hundred and one lead you to a similar place which is you're not acting as a state agent on state business unless you are somehow exercising state authority you're not acting as an agent of the state when you say just simply make a statement or have a meeting or make a phone call if you could if you were to construe those terms more broadly you'd reach the conclusion that what governor mcdonnell did in fact violated the statutes and the only problem in that case was that they had charged the wrong statute i don't think that's consistent with the that the principles that the mcdonnell decision  mcdonald they made it pretty clear that they had charged it differently and they they matter gotten them well i don't think that's correct or i think there were there were ways they could have argued the case differently in other words they could have said that government the governor mcdon now no i don't think it turns on i don't mean that that changes the fact that you need to be paying in some way for an exercise of state power now what mcdonnell said was that that includes using your office to advise another official to take an official act if priorities list the legislature did not have a role the agency a dam was tasked with that by the governor with that role of deciding whether to concur that agency a d m alabama alabama department of proceed requirement part so there's the concurrence and then there's the issue of whether the state will fund ten percent of the cleanup costs that was never a subject of anything that ever talked about with anybody but the state funding i mean that may present a different issue if he had said i'm taking the position i'm going to vote to deny the ten percent cleanup costs that may be different but he never did that all he did at the meeting with the p a was ask a few basic questions all he did at analog to that does the fact that the agreement between your client and the legislator had a provision that said the legislators are obligated to comply with all laws does that in any way protect your clients for this resolution i think it does because i think it confirms that everyone understood this was not intended to touch his legislative activity remember these are part time legislators they all have outside work and there's nothing wrong with that the problem is if you then stra into that the domain of official powers and not only had they never talked about anything legislative related they actually put in the contract that he would comply with applicable laws and he told them that he would not vote on any on any matters that touched the foundation and i think that for the same reasons as in the silver decision from the nd circuit release just last week they said this resolution that was voted on after the fact that affected the don't or that didn't mean that the prior payments had been it please the court jeff dawson behalf of appellant joel gilbert in this case the district court constructively amended the indictment by unconstitutionally broadening the factual basis on which the jury could convict mean what facts were and in regard to that your honor in the district court's jury instructions it advised the jury that in addition to convicting based on payment in exchange for the three specific actions alternatively the jury could convict based on payment in exchange for placing mr robinson on retainer so this was a divergence from what was actually charging document on retainer to do something it could be but no actual specific official action need be completed under the retainer theory so it's a lesser burden for the government if the retainer theory is allowed if the jury is allowed to consider the retainer theory the way count two is structured it locks the government into the three discreet official actions and we notice from this court's decision and united states versus neighbor rog in that case it was a drug offense t defendant was charged with having possessed sudafed trenton with the intent to manufacture a controlled substance that is methamphetamine the government here followed that same charging language it used the general statutory language that we find in section six hundred and sixty six it's so your argument is that this indictment has the use the words retainer theory your honor even if the indictment has alleged retainer theory as the government claims that language appears in count one the conspiracy count by the time we get to count two we have the general statutory language we have a that is and then we have the three way count two is structured it excludes the retainer theory by limiting it to just those three specific acts payment in exchange for meeting with the e p a payment in exchange for speaking to the amc and payment in exchange for s j r ninety seven so even if the retainer theory is alleged if we assume it's alleged in count one the conspiracy count by the time we get to count two the substantive it's been excluded by the that is language and that comes from united states versus neeraj united states st weisman as well in both of those decisions there was something specific alleged in the substantive count by the time it got to the jury though the district court instructed on something different than what followed that that is language in the substantive count even if it is consistent with the broad understanding of the statute it's still a constructive amendment by allowing the jury to convict based on anything other than what follows that that is language and so here the jury was told not only could it convict based on a belief or evidence that the defendants had paid all over robinson in exchange for the performance of the three actions but also could convict based on payment in exchange for placing him on a generalized pertain or without the actual completion of any official action that lesson the government's burden and it constructively amended the indictment in addition the district court erred by declining to instruct the jury in this case that it vice must flow from an official's duties instead the jury instructions simply provide that all the jury had to find was that oliver robinson was paid to give advice in a general sense without regard to whether it flowed from his official duties that instruction lessen the government's burden and it's inconsistent with macdonald and birds  st the government it made it to the district court pretrial that oliver robinson's actions with respect to the amc and the meeting with the e p a flowed from his official duties in fact in opposition to the motion to dismiss indictment the government took that position that official duty is the test for whether the action is official or not the government succeeded with that argument before the district court but by the time we get to the jury instructions in this case the government opposed any inclusion of qualifying advice with whether it flows from official duty or not i thought well look i'm sorry but wasn't robinson attending these meetings in his capacity as legislator there's a distinction your honor between capacity and official duty and that's the distinction the mcdonald's rule in that case the government urged the supreme court to affirm the conviction because mcdonnell was acting in his official capacity when he was engaging with various members of government the supreme court said capacity is not enough what we have to focus on is the exercise of formal governmental power official duty takes into account whether there has been that exercise of governmental power more so than just appearing in one's capacity as a legislator in the district court the precise instruction of our position is that instruction though it is correct in a general sense fails to qualify it with important language that it vice is not just the generalized everyday understanding of the term but instead it has a technical meaning and we who led all aspects of the defense and he provided detailed billing reports of everything he did to in house drum and lawyers we believe that mr gilbert had been negligent in terms of sufficiently protecting the client but that he would not admit that in his own criminal trial were not only his license but his liberty were it issues we asked for severance pre trial we weren't precisely sure how everything would play out during the course of the trial but in any event we forecast that there would be prejudice by the jointer of a lawyer and his client in this context can i ask yes ma'am beginning at trial what did you tell the judge did you just tell him that mr robertson wanted to testify now we didn't tell him that he wanted to testify we basically told him that we weren't exactly sure how this prejudice was going to play out but we had hoped if we got a severance and the lawyers that proceeded st that we would be able to call them in our own defense ok we did not know for mr geller testifies he did he testifies he gave this advice right the only thing that's missing is testimony of reliance personal reliance ok and so that's  element of r a o c defense i know that you never told anybody you wanted to put him on this house is going to prove reliance without testifying i'm sorry how many prove reliance without testifying i'm trying to figure out the prejudice here by the it by the admission of the nd portion of the paragraph in the three o two interview of my client that talks directly about my client talking with mr gilbert and mr gilbert reporting that he had spoken with ethics  tracey a joke when he says that they've already checked when when when mr gilbert says he's checked with his ethics experts etc and not only is hiring the legislator legal but it is ethical as well say that paid all over robinson to use official position to protect the drummond company from superfund liability as macdonald makes clear this is a highly fact intensive question and in this case the government put on close to thirty witnesses and nearly three hundred dollars exhibits the verdicts in this case reflect nothing more and nothing less than the defendant's factual guilt aren't the result of any legal with this court's permission i'll begin by discussing the mcdonnell issues that have been raised and then moved to the retainer and the severance slash mistrial issues so starting with mcdonnell i think it's important to note at the outset is just judge point that these arguments affect only the honest services fraud counts section six hundred and sixty six remains unaffected by mcdonnell mcdonnell is not a general discourse on the nature of bribery it is a statutory problems the most obvious problem is s t r ninety seven there is certainly enough evidence for reasonable dirt to conclude that all of a robinson was paid to vote to move that resolution forward to the encompass his legislative role and his votes and more to the point at the time he cast this vote he had been paid twenty one thousand dollars under a contract for community outreach in which the only community outreach that took place was roughly the distribution of ninety three letters and he had appeared before the amc alabama environmental management commission in a meeting where he had initially expressed concerns about the politics of his appearance and then shortly afterwards was rushed the payment for fourteen thousand dollars they say all he did was give advice right that's what they said and that's not enough macdonald says that giving advice knowing or intending that an agency will rely on that advice is an official act and it gives the example of this as mcdonnell used the word giving advice it's a providing advice and so that is i believe the defendant's argument is that mr robinson wasn't even providing advice he was simply asking basic questions but as the testimony makes clear the theory that we're traveling under is that mr robinson is a state legislator is in a unique position to give advice that these statement veyron mental agencies would rely upon there as a state legislator to he's in a unique position because he's a part time legislator correct that's right so state legislators and in a state where it's just part time typically have businesses outside of their duties as state legislators that's correct your honor so what i'm looking at is we have these two meetings and then we have the resolution which is are the theories you're traveling under if robinson for the two meetings had disclosed hey i'm here because i have a client and if  walked into that vote and announced to the committee hey my client was involved in the preparation of this resolution it would benefit them i'm disclosing that before i vote would we be here today no we wouldn't because you wouldn't so does that not just mean that it's an ethics violation by the official it doesn't because he's a period when he appears before the amc for example he says point blank i'm here to protect my constituents and so he is there and government's exhibit number one the letter drafted for him by mr gilbert that explains that he is there because he believes it is his duty as a state legislator to make this appearance before the amc and i think it's really important to focus on the facts and the allegations of what the e p a is considering here which is that the environmental issues that we're talking about this isn't contamination in some remote area of the district this is so that that is allegedly causing widespread public health problems depositing arsenic lead and carcinogens on everybody's doorsteps which is to say that these are allegations affecting thousands of people and exactly the sort of thing somebody would expect a state legislator to know and indeed and heard the one of the administrators for the e p a testified that's exactly why state legislators role word carries weight and the e p a under the relevant superfund statutes is required to consult with the state and provide substantial and meaningful involvement and so all of this shows that a robinson has a unique role to play a special role in convincing the community or convincing the e p a that the that his constituents believed the robinson's role in compass more than simple the simple asking of questions he registered that all the robinson was opposed to the e p a s actions in north birmingham and at a meeting later that spring with the e p a officials in washington with the group yes there was because there was the question of how exactly and what are the grounds that a d m should adopt for opposing the e p a s actions in north birmingham and but had  meeting with the e p a in the spring one of the points he makes is that we want to be on the same side as the e p a and he notes that the grounds that a d m has for opposing the e p a s actions are different than those of the attorney general and i think it's important to note that what the what atum was doing was it was invoking its rights to appeal under the fields member of the e p a and so that's just the start of a lengthy soil samples from and that the defendants oppose the air deposition theory that the e p a was advancing but that wasn't part of a dems case so there are a number of different grounds that  supposed to press and amc is the supervising body has authority to pressure them to do these things for example in october of two thousand and fifteen amc receives a letter drafted to be a strong advocate for its people and be more forceful and lancelot floor responds and he shortly afterwards sends the e p a a letter reminding them of alabama's opposition to their efforts and attaching opposing counsel argued that this theory that we hired him to do whatever needed to be done as the needs arose that that was only in count one and not in count t and to look at the indictment and the consider this argument about the construct of amendment and it said says in there when you allege count to me here by real ad blah blah blah blah blah yes it does and when we give a simply occur from december th team to june of two thousand and fifty it doesn't make a whole lot of sense to say that this is a scheme that begins with bribes to attain three acts and then payments toward mr robinson for again committing those three acts instead the more common sense reading is that this is a simple retainer agreement and going back to the question about mcdonnell and the sufficien to recognize the question here isn't whether official acts were performed or not because that isn't strictly speaking the missing element that the defendants have to establish in sufficient challenge they have to show that there is no evidence of an intent to obtain official acts and so we get to look at other things such as the fact that there were other consultants working for the drum company on these very issues and they didn't know that all of a robinson was in fact one of their colleagues and engaged in outreach as a consultant instead they just thought he was working there as a state legislator and so when we consider the evidence as a whole there is certainly enough for reasonable juror to find that the defendant intended for all of robinson to perform official acts someday and i'm a little confused on and fishel acts it's not of the statute he was charged with but you're hiring him to do something because of his legislative capacity so when you say official acts what do you mean do you mean official acts in the sense of two of the other statute or you mean something lesser i don't understand what you mean sure so we mean in the jury instructions we agree with the defendant that we could define the honest services counts with reference to bribery that involves official acts as defined under section two not now in the indictment we referred only to bribery as defined under section six hundred and sixty six but we're happy to that was raised about that doll and the advice jury instruction the central challenge that the defendants are making here is that the definition of advice that was given in the instruction lacks a link to a formal exercise of governmental power and that simply isn't the case because to convict under an advice theory the jury had to find that the advice pertained to a formal exercise of governmental power that is all that is required under under mcdonald's and this question about official duty that they raise i think cuts the other way because as i pointed out before the government's exhibit number one was drafted by joel gilbert and it uses the word duty it says that as a state legislator all of a robinson had a duty to appear before the  represent his voters that i think reflects the ambiguity in official duty and whether it means official capacity or whether or means a formal requirement to provide advice mcdonnell is explicit that advice can be  official who doesn't have such a formal requirement and indeed the higher up of official is for example a senator or a governor the less likely it is that that person is going to have a duty to provide advice but the more the greater the interest in protecting that advice from political corruption so tell me again what role the bama legislature played and terminating whether or not this  authorize funding for the ten percent cleanup cost that so that in theory if things were to progress they would have a legit they would have a bill and they would have a debate and they would have a on whether or not authorize the state to spend tempers were going to ever took place all we have here this record is a resolution that's right and in terms of legislative but beyond that as a legislator all of a robinson also had the authority to vote on the budgets for all of the state environmental agencies that are involved here and so that is another form of control or pressure and and again as i discussed that the role of a state legislator in the super fun process is as somebody who can give advice knowing or intending that these agencies would rely upon it because as i think and heard said we look to legislators because they know about facts that people in atlanta or people in washington d c aren't going to know they know the day to day troubles of the people the e p a is trying to help and as a superfund lawyer joel gilbert is aware of this and so he is aware of the role that state legislators play and the defendants thus can be charged with intending to influence these agencies through all o how can any body hire a part time state legislator as a consultant and not run afoul of federal criminal laws so if if if a person wants to hire a state legislator and i guarantee you then in all the states with part time legislators they have consulting contracts is the line that they can't meet with any government agencies is the line that there has to be something in the agreement that says the legislator will disclose before any such meetings that the legislator is acting in a private capacity how how can these consulting agreements exist and not run afoul of federal criminal law i think disclosure is generally the key your honor and it's going to be i don't think we'd be able to draw a bright line as macdonald says these are going to be fa specific fact intensive determinations about whether somebody is acting in official capacity or not but here we can look at all of the secrecy that was taken to ensure that nobody outside of the defendants and all of the robinson knew that he was actually working as a state legislator or excuse me as a lobbyist for the drummond company rather than as a state legislator i see that i'm getting close to running out of time so i want to just briefly discuss the severance slosh mistrial ation greg so as we said this motion for a mistrial occurred near the end of the government's case and to to allow mr roberson a new trial in these circumstances they have to show compelling prejudice and they have to show that this these three redacted statements w exculpatory and substantially so but they can't do that because we don't even know when the advice that they refer to was given they claim that the advice was that the timing of this advice is irrelevant but it's actually dispositive because  trouble mike hubbard trial occurred in the summer of two thousand and sixteen and so if this advice was given at the time it just came too late to provide any basis for good faith that i see that i'm out thank you we have your argument clear in skilling in other cases these statutes are not about disclosure disclosure and disclosure requirements are an issue for state regulation that's not the province of the federal bribery statute with that said i'd like to just a briefly address this issue  official acts and it was not him he could not have been bribed to take those acts because a vote sure if you disclose your you've been bribed to take a vote you're going to be indicted it may mediately but if you can go to this meeting and say just you know i have a contract with dr if you are representing your can stay but you're arguing for a specific line right it's telling the other people in the meeting something different right i grieve your honor it's it was deceptive in that respect that does not mean that it was an official act does not mean it was bribery and i would just point the court to that this critical distinction between the mcdonald's through between using your office to provide advice which is official and expressing support for an action with th not official now we think these two st meetings did not cross that line as a matter of law but certainly the jury had to be told that that was the line and the jury was never told that expressing support for an action is not official action within the meaning of mcdonald we asked for it it's a direct quote from the supreme court's decision and it was omitted and that was the critical line in this case with respect to these st two acts as a result of that omission the jury could well have found that all robinson did with the e p a or at the commission hearing was expressed support express a policy position and that and convicted on that ground even though as a matter of law that is not enough to ground a federal bribery conviction so for that even though we've robinson testifying i consider it was a bribe your honor he said that he considered it a bribe thin exchange for using his influence as a legislator to talk to people about the the e p a issues talking to people about issues within the meaning of mcdonnell is not the fischel action it is at most expressing support and certainly a properly instructed jury could have found that it was just expressing support had they ever been told that that was the line and i would just refer your honour's to the van buren decision that from this court from a few months ago where the court ordered a new trial because the jury had not been told the examples that macdonald gave and the court this court said that was enough to require a new trial because without the examples the jury might not have appreciated what a matter was the here what was omitted was a important substantive parameter of official action that expressing support does not cross the line it was critical to the defense case with respect to these st two acts the only two that were ever discussed with the defendants and as a result the jury may well have convicted on grounds that for conduct that is not unlawful is under the statutes briefly in response to the government concerning the constructive amendment of the indictment the cross and corporation reference doesn't cure this problem with the way this indictment is charged merely stating at the beginning of count two that all preceding allegations are incorporated does nothing to change the way that this substantive count is charged it's the specific statutory language followed by that is and three items and only three items but what the district court did was a a th option for the jury to convict on that runs afoul of this court's precedent in terms of the advice jury instruction and it's linked to official duty as i hear the government's argument today they claimed the government that the evidence sor should have supported that all over robinson was acting consistent with his duty but the problem here is the jury was never told that that was a key consideration for whether the advice is sufficient for purposes of official action the evidence was not so undisputed as the government suggests there was evidence to the contrary success suggesting that this had nothing to do with his official duties as a legislator or for that reason there's a real risk that innocent conduct was captured by the district  this case that was blocked by mr gilbert so we were not able to present that the government capitalized on that in his rebuttal closing argument it specifically said there is no evidence of personal reliance in this case that's what they told the jury in closing now the government suggests that the three hundred and two report that reflects that my client consulted with mr gilbert who told him he had also talked about recent pilcher about ethical issues there's some timing problem briefs i thought the main argument was leaving the fat things out was misleading you know this is a piece of hearsay and if you're going to get it in it's because it's misleading if you put the st parts in and not the nd parts but that was the main argument well that's part of that's part of the argument clearly clearly was admissible hearsay under rule one of six it completed the fought that mr robinson mr roberson had ethical concerns at some point during the relationship and how he addressed those concerns was what the omitted three sentences related to anybody and he obviously did that by consulting with a lawyer and asking for his advice th