case it has to show there was sufficient evidence to establish the two requirements for the sham exception and rd it has the problem that the jury instructions didn't require the jury to find a sham exception seppi back to the  of those the court's order and asked us to be ready to address whether affirming mr ko's yields conviction would create a split in the circuits the answer is it would and it we created a very lopsided split there are seven circuits that have held that a threat for a law suit even when filed in bad faith and with total lack of marriage cannot be criminal extortion or extortion under  held i'm talking about it basically recognized or assume for purposes of argument that the lawsuits there were sham they use different terms they used bad faith marriage meritless groundless but they were basically saying it doesn't matter whether there's any beaches for the lawsuit it doesn't matter whether it's even functional four of the seven circuits had situations where there were allegations of falsified evidence  very similar to what there were allegations back to mr kozel in the kim case there were allegations that there'd been false documentation of trademarks in the prendergast case there were because i've been doing this kind of work going on forty years now thirty five dollars plus cases like this you're very rarely charged criminally that's one thing but to go back to your honor's the distinctions that your honor's questions suggest  reach the point that that i want to ask you about which is we know what the case is from the other circuit say and it seems to me that most of them were decided on a policy basis we don't think that this erowid interpreter i thought about what wrongful could mean and came up with a list of four or five different possibilities your honor it could just mean something immoral it could mean something that violates it written r criminal so i think the pressure of all interpretation here is wrongful and fear are ambiguous words and that kicks in both of them and considering the end policy considerations like  think it is but on the other side of the coin of course is the concern about chilling really valid plaintiffs imagine a small time trish or stan person who has a valid good faith claim against a big movie mogul and imagine her getting this threatening letter from the former head of the white collar crimes division of the united states attorney's office southern district of new york and imagine her saying oh my god they're never going to believe me they're yes judge i'm working on thank you sounds like judges just calling back in by audio on nothing that says it does include a threat to file a lawsuit any more than says it doesn't and so that's where i think the rule of limited in the policy reasons kick in i've got a quick question the supreme court has interpreted that were wrong well consist of using a wrong well means to achieve a wrongful objective is it your position that the wrongful means element is not satisfied here yes your honor well i think it's both is my position is that i don't know if that's the extortion statute specifically or not your honor i'm not sure if she in that language in that and extortion context but it's that the word constitutional protection your honor but because of the ambiguity in the word principle of construing criminal statute narrowly and the policy concerns that would be raised if you did apply it that the of the sherpas have recognized i'm sorry your honor so i had myself minute can you hear me now yeah ok your honour's i want to begin by addressing the courts question affirming that defendants conviction in this case would not result in a circuit split and the reason for that your honor is that this you prosecution the differences are many i won't go through them obviously some of the most obvious ones one of you have already pointed out which is that these disputes except for pendergraph were mainly business disputes so the courts in those cases did not engage in the nor pennington cham exception analysis but the main dispute is that in each one of those cases notwithstanding some of the language including and pendergraph in each one of those pasted the par court proceeding and that's important because once you do that you subject yourself to the scripture controls and procedures of the court and that is why the courts have no trouble or i guess that is why the court w trouble in finding had the conduct that was alleged in those cases was extortion that's not the case here mr coetzee goal was not engaged in and the actual litigation so he was doing is sort of hanging the threat of litigation over the entertainer's head in hopes of forcing him to part with a one million dollars that was the case and pendergraph is well aware let me back up extra to extortion charge because we have ways of dealing with that and we also don't want to make people afraid to engage to be witnesses and to participate in judicial proceedings mr kozel wasn't participating in any thousand and eighteen case called kuya which mr dunne cited in his opening three and in that case you had people making threats against the victim saying that if you don't give us money  you don't you don't get any cover from pendergraph because all you're doing here is clothing your threats and legal eat and we're not going to sanction that and it's cited to it's a case that united states versus we where the parties in that case threats that you arguing that is mail fraud and you can be prosecuted for mail fraud and you know it in yet in cool yeah i agree with your interpretation of it is an unpublished case know all they were doing was making threats of brigades and they and and even if you know we want to talk about the other things they were hearing that seizures and detentions but that's all sort of litigation activity that's all threats of litigation activity and the living designed case both of those cases involve truly the creation activity and the court the th circuit had no problem saying that still mail fraud and you can be prosecuted under the criminal code for what you're doing even when honor and that's important because none of the strictures and procedures and controls that courts have to control parties in litigation apply here and that is something because mr cole you have never engaged in litigation and that's something that mr interpret the statutes well that's right just even if the petition cause was at issue lead still have to do the sham analysis and so are you saying that the sham analysis is different from trial be very much established that as well so your honor that's standard really depends on the circumstances of what is shown that it has a lot of flexibility but i think whatever standard you know we talked about in the  here with some very strong evidence to support obviously the jury didn't believe it but because of the right struction there was some very strong arguments to suggest that whether or not it was correct mr kozel honestly believed it was entertainer there were letters or else that were addressed to the entertainers st and there was the fact that you're settled like three weeks for almost the full amount allowed and then express the included entertainer in the release