is that mr renzi entitle to a new trial of those charges first because of the substantial risk that the thing of value found by the jury differs from the thing of value found by the grand jury as the government always had the well that is the what they point the language in the indictment that they point to is actually even more general than that it's that sandlin was in rich that renzi enriched sandlin and personally benefit himself not the government's position is that what that means is across the matter and what their theory was throughout the trial was that the money paid by aries to sandland for the sand property four point five million dollars and then the two hundred thousand dollars that was paid by sandlin to ransey is the thing of value whether that means they're both a thing of value or one of them is the thing of value that is the government's position but tellingly it seems to us when you read the appellate brief in the section of the brief in which they're defending the verdict against the sufficiency of the evidence challenge they introduced a host of new possible theories their first position of course is that you don't have to prove anything more than an equal value exchange to prove the elements of extortion and bribery all you have to show is what i just described the four point five million dollars transfer and two hundred thousand dollars transfer but then they argue as a fallback position even if we did have to prove more than equal value with change there are all these different ways in which a jury could find that on a trial record in this case and it's our submission that virtually all of those theor certainly some of them differ in a material way from what i just described as their firy a trial well i have is that here i thought the theory was essentially a quid pro quo no property no bill so that the extortion was complete when the property sale was tied to the promise of a future introduction of a land exchange will and there's no question that the property had value do we really need to to get into this debate over whether it was two hundred thousand or four point five million or five hundred thirty three thousand or i mean there's no question that the government has to prove a qui but what they also have to prove is that the thing that was exchanged for the official act was a thing of value and what we say is that when you are giving something to an official or to a third party on behalf of an official and you're getting back something that is legitimate services goods or property you're not giving a thing of value in return for the official act but i think i thought the theory was that there wasn't any need to include the sandlin property what what the purchaser of the property really wanted were the surface mineral mining rights of the government land that was to be exchanged and the testimony i guess it was from mr aires was that had it not been for  insistence by your client that the sandlin property be part of the deal there was no particular interest by the purchaser in that property isn't that wealth there i mean i think that's just another way of characterizing the government's first theory which is essentially a but for theory their theory is but for the corrupt promise of some official act this transaction would not have taken place and what we say about that is that that perfectly describes  crime that's not a federal crime which is called coercion and this distinction between extortion and coersion is drawn in the last few supreme court cases on extortion and they talk about how the  offense under this old law which is the worst but if the testimony from the aries group was we would not have parted with four point five million dollars but for the insistence by congressman renzi that we had to acquire this property or he would not sponsor our land exchange bill for other property that we were really interested in why isn't that explores well i think just for the reasons i just described that you can say that to buy something as long as the requirement to buy something gave him something of equal value then that doesn't count as extortion or bribery is that is that kerry that is our case so there's not a case that actually directly is directly on  is that correct there aren't cases that are directly on point there are some old cases in different contexts that we say support our position the model penal code adopts a version of this theory and we think well and so in judge thomas saying well if in order to get the legislative act done that you aren't you have to buy something we guileless of it's value that you don't want and you wouldn't otherwise have thought that that falls within the definition of bribery or essentially laid down a challenge to the government in our opening brief and said as far as we are aware there is no case in the annals of you know reported federal decisions on the hob zakk were for that matter roger statute that would allow a prosecution  conservancy provided that test i disagree that it's sufficient evidence to permit a jury verdict that there was more than an equal value of changing of course this gets to the government's fallback argument which is that even if there has to be proof of more than an equal value exchange there was such proof here and what the government points to his testimony by manning tyrus who worked at the nature conservancy who said that in early two thousand and four an appraisal was done of the property because the nature conservancy was considering  and then the critical point for purposes of our discussion right now is that there were a number of values reflected in the appraisal one of them was for conservation use which is of course what the nature conservancy would have used the property for that property for and it was in the neighborhood of a million a half dollars i think but then there was a separate valuation which was for development use and that number was three point eight six million dollars that was in february or thereabouts of two  transaction occurred between aries and sandal that i don't see how this makes a difference because i mean look the land is not the same as honey so so areas bought land too hard to get something done from the legislator and the failure of the property was say is that that's not a thing of them because the four point five got in return for property of at least that value in fact we think it was worth more and the two hundred thousand dollars was for a preexisting legitimate debt so as far as the trial theories concerned there's nothing of that now the government has the fallback theory in their brief which is that well even if you think we have to prove more than equal value of strange we did and one of the arguments they made was that there was evidence that the property was actually worth less than four point five million dollars so he overpaid for it and i just responded to that argument but there are a bunch more and i'm happy to address them one by one  right whether they made the argument or not correct i think that's i think that's fair yes but i don't think the evidence well as far as the sufficiency of the evidence claim goes that may be true as far as our variance argument jury to return the verdict on the basis of is you know has no basis in law we've got all these other brand new theories that sort of the whole point of our variance or this may be getting back to the point you were making about coercion but let's assume a hypothetical legislator says in order to sponsor this land transaction bill land swaps you're going to have to purchase this piece of property and donate it to the nature conservancy and but for that seller or the buyer would never have purchased that he's a property crime if i'm understanding the hypothetical correctly i think that would be a different case just because if you're directed to buy something and immediately park with it you are not obtaining anything of value well the thing of value that that the well i guess that may be the answer that the the the quote unquote well the defendant doesn't obtain a thing of value even though he has coerce using his office the purchaser into acquiring this piece of property that it really didn't want in order to get the land exchange building or right i mean in your hypothetical if a public official says you have to buy a piece of property and the they don't need it so you store the person buys it at market value and holds onto it that would be our case but if there's a further direction to to give it to a third party i think you could say that person is parting with a thing of value so if that if the demand had been you must purchase this piece of property and treat it as if it is in a conservancy for environmental preservation purposes that then in return for sponsoring the bill then you would agree that is extortion i think you would have a thing of value there just because you're not getting the full value of the property i think i think we understand your argument if you want to move on to i would like to do that and what i'd  just now if i could is the speech or debate clause and there are two pieces of testimony of the issue which are related both from joe and he who was the district director for renzi and this was both of these were discussions between a member of congress and a senior staffer well would you agree that the statement about him not being very excited and interested in the resolution copper exchange is that the weaker of your two arguments for speech bank i mean that one seems like that seems a little weight that may was the right yeah and they will be and in fairness i think you could say the government certainly feels that way because before trial the government conceded that the other piece of testimony testimony haven't i haven't talked to the other panelists but in my view that's your stronger one that may well be but i think there are they fall in the same basic category which is as i say there are conversations between a member of congress and senior staffer about whether to support legislation think respectfully i mean i think that some species of a waiver argument opening the door whether you call it waiver or not it is sufficiently tied to a waiver that it has to be covered by this principle and what helps us he says is we the supreme court are not even sure there can ever be a way for so so help us case a lot of different things i found it somewhat fraught and not totally consistent but it also said that the exchanges and the various you united states attorneys indicate a willingness to waive the protection of this the fifth amendment the speech or debate clause provides a separate protection which calls for at least as clear an eye and make us an expression of wa i how i read hell stuff he is that the the factual setting of the case is that a member of congress voluntarily testified before a grand jury i think sometimes voluntarily produced documentary evidence to the grand jury the government's position is that that using i mean if anything's clear from alsace you know i think what's clear is that the court says if there ever can be a waiver of speech or debate rights it has to be an explicit and unequivocal waiver and we think there's a very short answer to the government's waiver argument explicitly so your position is that this is a unique privilege which cannot be way you've through opening the door at trial when the defense interview says it affirmatively on cross examination even though if it was an attorney client privilege a priest penitent privilege of physician patient privilege those are all privileges that can be forsaken through that means that's absolutely right that's absolutely this is a unique privilege that exists why because it's an expressed clause in the constitution because it has structural and in it has a structural institutional dimension and that your standard criminal defendant protective rights that you find in the first several amendments of the bill of rights don't this is not only meant to protect in fact it's hardly not even primarily one thing we do talk a language about legislators are not super citizens and on the language that you can't use it as both a sword and shield i mean it just seems to me that if you try to rely upon it as a shield or as a sword that you cannot then erect a shield when the government comes back and says well you you started this whole line of inquiry by cross examining hegner keene and whatever the other fellow i mean the i think the super citizen language was used by the supreme court in the context meaning whether particular conduct is covered by the clause not in the context of waiver i think the supreme court's pronouncements on waiver couldn't be clearer as i say waiver has to be explicit this is a theory of implied waiver to us that's the beginning and the end of the analysis the third i see that my my time is almost up when fisher you're sent the third point on the speech you to because the government's third argument is essentially harmless our argument although they don't call it that they say that if there's no effect on the outcome there's no violation i don't think it really matters whether you call this harmless error or something else i think your position has to be that it's structural or that we don't we don't look at the  constitutional or is harmless beyond a reasonable doubt so at the very least the government would have to show that we think it would have to show more because of the you unique nature of the speech or the bay error but but our basic submission on prejudice it's structural or you don't have to show me that you don't have to show any effect on the outcome but recalled joe in keene was the government's star witness i don't think there's any question about that they had four witnesses on their public corruption charges three of them were strangers to renzi showing cain was his trusted confidant she was telling the jury about the words he said she was the only insider to testify about what and so far as his motivation is concerned the as you point out judge how had the the the cunningham testimony i think was sort of uniquely powerfully prejudicial and it's no accident that the government relied heavily on this in its summation all of which together whatever standard you think is the right one whether it's almost beyond a reasonable doubt or something more or whether there could never be on this hour we think that's more than adequate argument would call for a balancing to the extent of making an argument that the speech or debate is anything less than absolute on that when we disagree let me start with the waiver argument which is where mr hill farm ended up the waiver issue supreme court reversed the conviction of the conviction was reversed principally on the basis of the united states government's crossing that is the department of justice and cross examination of johnson's direct testimony out of his own mouth in his own describing the purpose for which he made the speech which was the basis for the prosecution he testified in his own defense the government cross examine him on that and on that basis the supreme court reversed the conviction i think that can be tried the question is whether they can be tried with whether they're protected from having legislative evidence usual gets them so miss her under what circumstance could we declare that the privileges had been waived if it's not waived when and a current or former congressman gets up on the witness stand and and opens the door by testifying about it when if ever could we see would you agree that it was there i think i think you could find a waiver if a member of congress executed a document saying i am waiving the privilege i think you could find a privilege of a member got up on the stand in the past and made a statement or oath that he was waiving the privilege i think it's got to be just about that explicit in order to s into your mind doesn't subject a person to impeachment i'm not sure i follow the question well but i mean you're essentially saying they can to if they don't say i waive it then they can say whatever they want and they and there's nothing out there that can ever impeach them that can't be right you mean if they lie about their legislative activities i mean i got i'm not i'm not sure i'm following your question here well i mean it would  not ask a question did you not have a conversation with mr hegner in which you said words to the effect of no sandlin property no bill well certainly they could because in this court in this case you are not you this court has held that that was not legislative act was activity that was protected this court has held that that's unprotected activity so of course you could be cross examined about that well suppose even testified and i never said to anyone that i was putting the brakes on introducing or going forward on the legislation because of what was happening to congressman cunning you're saying that the government cannot then cross examine him on a conversation he had with ms keenan which he said just the opposite yes i think that's right the government could not cross would not i could not and what we've what we've suggested below balance i understand the harm that you're seeking to avoid by preserving the privilege but give me the factors that the trial i suppose the trial court would balance the harm to the government in being unable to conduct the cross examination how important that evidence is to the case the other types of things that the court would ordinarily but i think your position would be in that case that even if he wasn't asked on cross examination the government wouldn't even be allowed to call m himself did not do anything illegal he took no illegal acts if he is guilty of anything it's only assisting mr rins e to commit and if the illegal acts that the government has doesn't that make him punishable as a principle you've just described aiding and abetting well i'm not and i'm not i'm not saying that that fact alone has any effect on what i'm getting at is that he's guilty only if the government proust he is knowingly involved in the in the conspiracy with mr ramsey what do we do with all this evidence of you know pages of telephone conversations or telephone calls between the two running scripts by witnesses what to say to reporters planting stories that were contrary to what the evidence showed where you want to let me take those one by one if i could for of all the main issue in this case is concealment it's a question on the conspiracy yes to whether or not there's concealment now i'm not here to argue that mr rins he didn't engage in concealment but mr did not engage in concealment then and there's evidence that he was telling people for instance he told the r c c people the hegner people when they were initially negotiating that he described dealings with sam one so that shows they're on a different page and in order to be in a can but what about i'm fixated on this conversation that he had after he was contacted caught off guard by the press and then essentially called and got instructions as to you know stick to this message it was really the nature conservancy who suggested the sandlin property that it wasn't the syringe ok she ought to understand that  the fact is is that it was the nature conservancy that was initially pushing the acquisition of sandman's property so what you're talking about is voice mails that were tape sandlin was leaving aries voice mails and just giving him information about this reporter and the general the most important thing that was said in those voice mails was that the nature conservancy was pushing the acquisition of the same land that is in fact true and i believe there were three or four witnesses from the nature conservancy who testif the government witnesses in the trial that described their longstanding interest in acquiring this land both from sandlin and from the previous owner of the land so that was in fact her mom i'm having with your argument is viewing the evidence in the light most favorable to the verdict that the jury returned they didn't buy your theory instead they found a more sinister reason for those conversations to deflect the fact that it was mr ransey who had been pushing the aries group to peru with the property and so mr aries was being instructed to lie to the reporter as to who the prime movers were behind the  that is is that even if that is the interpretation of those voice mails that the jury put on them that does not rise to the level of sufficient evidence that the context of the of those voice mails in particular were that it was this alternative newspaper i believe was called the phoenix new times so why did he write the shack to patriot insurance company rather th it was for a premium for now and that's an important point because the government argues in their bury that there is a document that says that the five hundred thirty three thousand dollars check was for an insurance premium to patriot that is a document that had a signature line for mr sandlin and for his wife that neither one of them signed and there is another document that's in evidence that we that we pointed out in our brief that is actually end mr sandlin zone riding instructing that a check please be made out to to placate insurance but it doesn't say anything about it being for an insurance premium that still doesn't satisfy me as to why i guess that that thing as i'm sitting here listening any have to now that when you discuss two different views of looking at something so much and come back and forth at some pretty difficult  and i understand and i agree but the point that i'm making is these like for instance the document that the government points to the says this is for an insurance premium it's an it doesn't it doesn't affect the sufficiency because it's a document that had a signature line for mr sandlin and he didn't sign it so it seems inappropriate for the court to hold that as a piece of incriminating evidence when he didn't sign that you kind of say like you know what this probably isn't appropriate for summary judgment and the problem with that is from the evidence you're a standpoint on this case is it is that everything the government sites as their evidence to support the verdict interpretations the fact that the checks were made out that like one check was made out to pay three to insurance and other checks right made out to rinse the know both companies clearly in the public domain identified with but but there's no proof that sandlin is engaged in the conspiracy with with renzi writing shacks to an insurance company or to a wine company when it's supposed to be the  personal promissory note and the jury convicts on money laundering as well as conspiracy why don't we look at the entire record of all the evidence that was before the jury and do it judge callahan was suggesting and ask whether a reasonable significant if it's done to hide the fact that saying one is writing a check to ribbons if he wrote a check to some company name that had nothing to do with renzi then it would be hiding the fact that he was giving money response to how deep you have to dig is you don't have to dig deep at all i mean renzi is patriot doesn't mean it's not fraudulent i think the problem i'm having with your argument is that we've got to look at the evidence in total and ask ourselves whether  if let's assume that frenzy is successful and his argument with this court about the speech and debate clause what's your best document that your client who doesn't have that privilege gets to write on the trial as to either defendant and even if sandland was tried separately that evidence would not be admissible because it's a privilege that rince he had that he wouldn't  if if this is a privilege that renzi had and the government wanted to call joe in pains to testify then she these particular questions she would not have been allowed to testify as to those questions because and he wasn't y e v it and that's true regardless of whether say in one's being tried by himself or not so it's not really a question of saint sandal and doesn't assert the all right let's hear from the united states don't have very many people on your side at the table as are we setting out earlier try to make it look on and may please the court i'm stephen a striker on behalf of the united states i like to start if i might with the questions about thing of value in this case mr renzi correctly points out that we don't have a case that's directly on point we think it's uncomment on him to come up with a case where the proposition is so novel the proposition in this case is that the money that mr salmon received and that the money that mr salmon then passed on to mr  case we can really imagine where money suddenly becomes not property because you're paying fair market value for something and if i might combat some of the hypotheticals with a hypothetical of our own if i go to my neighbor and i say my house is worth a million dollars i have an appraisal right here that says it's worth a million dollars and i put a gun to his head and say pay me a million dollars for my property because i need a million dollars right now that might be a fair market value of change but that is a classic extortion that money at a minimum that money is property and it target here you've come up with several things and value well i think those are the variation to the extent there is any is within the indictment the very as i said i think your honour's pointed out only the indictment is fairly general in that allegation at page four twenty nine of mr re four point five a million dollars to mr salmon actually was more than that it was four point you know seven two five three or whatever it was with the with the interest and with the extension of closing fee so this isn't a new theory encapsulated within the money that salmon received was this extra two hundred fifty thousand dollars and you know encapsulated in within the fact that mr mr renzi received the payment in may of two thousand and five to two and a half years early or actually i th as well on that same page it says mr ramsey wanted a cash infusion in two thousand and five conduct in this case is perfectly consistent with that and that's the government emphasized that fact and you can see it your theory was that that's one of reasons why he was misappropriating two thousand and two and actually in throughout aren't she was always in financial straits pardon me so we think actually the cases we've cited the government case for example the defendant made a fair market value argument there he said you know i i took out this loan i paid it back with interest that's it that's a zero sum sort of a thing in the sixth circuit said that's not really what you look at you look at the subjective value to this particular defendant and this had value to this particular cloud the defendant's judgment in a way that he's acting in his own interests instead of the public's interest that's what we want we don't want to blow a hole in the statute that's going to you know that's going to allow  can be wrong and there isn't always they don't always feel that i mean you know that i mean it can smell like a big pile if you want to and it's like it doesn't look right we don't want people doing that knowledge that but it doesn't mean you can shoehorn it into a particular point we don't but in this case it sort of blinks reality to say that money isn't property it doing it and as i think your honour's question before you know the areas group the r c c group over a barrel and was able to insist on onerous terms as aries put it precisely because of mr frenzies position in congress and precisely because of the relationship and the money that mr salmon owed renzi so we think that that is enough we not a point that mr renzi made below he did in his extortion instruction proposed seven hundred thirty three thousand dollars the property at issue in his on the services instruction he didn't even propose that he didn't propose that as a thing about it so under any even under rule thirty under his reading of rule thirty days which is that you don't need a specific objection as long as you proposed an instruction his on a services challenge would still fail because it released would be subject to a plan or stand our brief we think is perfectly on point on this you don't want to just report having to to to sort of guess at which instructions the defendant is still seeking you should make specific objections tests to streamline the process and streamline the claims  i only saw evidence of him being a broker which the arizona courts say it's not an agent of the insurance company right we didn't we didn't offer any evidence about specifically what the state law said on this and it wasn't really i don't think the state law question was really presented in the pleadings and i don't think and i think we should have been clear about this in our brief there are actually three ways to satisfy the statute beyond you know the one of them is to show that our unseen was an agent of safeco but the that's tied to being an agent of an insurance company so it's not really you're looking at the statute in how the statute defines it not with state law so i think that's right that your past argument it is it is our best argument and i think the cases that we said in our brief the peterson case the siegal case and the net coders as being were actually being rich is not go especially the in of course there isn't a lot of law in this area and so i'm relying on a district court decision that's not presidential but the beamer case agent of say that point was not developed thoroughly there there is a point developed the thoroughly in our record excerpts that pages eighty four to ninety five of our record excerpts those pages say again this is gordon felt's testifying about the int course the worst the worst fact for us but we also think that the the way the statute is we're in business of insurance it's worded as acting as an agent we think the breath of that language is sort of just suggests are you authorized to act on behalf of right well and there's actually and the third way is again the way the statute is worded in terms of business of insurance it says the business of insurance can be the acts of of and agent of an insurer or the people who are authorized our n c quoted insurance prices she bound clients to insurance policies she issued certificates of insurance that seems to us as the business of insurance now we acknowledge that there are there's this and it's kind of congress to find this in a very indirect way to find things through the lens of an insurer rather than just people engaged in the business of insurance and but that phrase x incidental to the writing of insurance seems to us very broad and it seems to the second circuit in the peterson case is very broad because if you're acting as an agent even totally without authorization which is so even assuming that brokerage agreement was somehow the somehow otherwise was you know somehow devastating  you don't have to see didn't have to have authorization they just could act as they could you know pretend to be and in fact they pretended to be you know as far as the gym the gym for insurance company they're issuing certificates of the jim kor surance company which doesn't exist but they're pretending to offer insurance through them and that's that's in gauged in the business of insurance under the peterson case even though again this is without any authority so unless there are further questions about business of insurance i would turn back to the to the speech or debate clause questions we would start with the idea that and i think our strongest point on this and mr ramsey is weakest is the point that in you c can frame it as he wasn't question because the verdict was not affected but we think the evidence in this case as your honour's went through with mr sam's counsel the evidence in this case is powerful of a conspiracy it was powerful that whatever mr renzi even assuming he had some sort of mixed motive even assuming he was trying to benefit the fort in various ways there can be no question on this evidence and he never really comes to grips with some of the documents that you were mentioning that there can be no question that he was introduced in may of two thousand and five which was after this conversation so these are these are embryonic private negotiations at this point to the sense there was any bill at the time of these conversations they were discussion bills passed between mr and private parties so we do think that's right and we would add there in there's almost sort of a totality of circumstances because there are other people you know part of renzi one is that brewster doesn't foreclose anything that has some facial validity putting the brakes on the aries exchange and under other circumstances might have some facial realty and it might be you know sort of tangentially related to the to the legislat process but in this particular case it was clear that this was mr renzi covering up the corrupt promise that he had already made so of course we don't concede the point but we do think i mean there is the simplest way something a structural error and you elevate it to that then you just don't even ever get to that discussion again and there shouldn't be a lot of structural errors obviously because people make mistakes about every three second senate trial and agreed about the structural or point there's no point that would be person reversible if there were any or if that were the approach the court were to take we would say there was no error because he wasn't question within the meaning of swindle or within the meaning of doubting those cases stand for the proposition that a member isn't question where there is nothing more than a slight likelihood that the jury relied on that particular evidence and we think that runs the one actually is good analogous in already from the grand jury cont the one the government inadvertently offered legislative act evidence in the grand jury but it didn't it didn't expose mr renzi to liability it wasn't what caused the grand jury to indict mr renzi doesn't i don't think there's  renzi offers a really good reason to treat the questioning inquiry differently for these purposes as far as whether it goes to the indictment or whether it goes to the conviction at trial so we think under any standard and if it's if it's you know treated as a swindle case which is if it's if you're not relying on the evidence it's not questioning and therefore no where or if you're treating it as a harmless error type of inquiry we think under any standard the evidence would be overwhelming enough and more to the point the government didn't there's this mr renzi makes this point that we relied so heavily on this alleged legislative act testimony the r c c seeming disinterested conversation to the sense it was a conversation by that point he could very well have been under his view of the evidence you can simply argue well obviously i was disinterested in that point because i wanted the salmon truck included so that it would help ford so it's hard to see how that piece could have affected the outcome of the trial and well let's just assume for argument's sake and i just say that that we were to find that it was fair and that instructional error how does that affect  codefendant doesn't i mean he i made that point he seemed to want to ride on that you know fit the coattails at even though it's not your privilege so what sure argument on that well i think and in response but the point of the speech are to make laws as a structural matter is to ensure the legislative independence of individual members mr semi so technically you're saying that when he could if he were successful can make a structural  argument and get reversal but that salman could not and so the evidence you take that evidence out and look at it and decide when you've been convicted anyway and you can do a harmless error analysis on h with me very well in a conspiracy theories where maybe that was the strongest piece of evidence that the jury relied on in determining that there was an illegal agreement as between the two men which sandl in and helped to conspire with renzi over and if we were to declare that it was structurally error to introduce that evidence against frenzy why wouldn't we also order retrial  type of a case it was a conspiracy case and in that case the supreme court said just because this other the defendant himself would have had this evidence offered against him just because he could have written the coattails as it were that's not enough for us to introduction of any evidence at all and the evidence is introduced in a rico conspiracy against all of the coconspirator and we conclude that that was structural error i just i'm having a hard time understanding why the error wouldn't also in your to the benefit of everybody else who got convicted on the same that well again i mean i guess sure we tease this out far enough so that i know what i'm doing here whichever way i go we just don't see any argument that mr salmon's offer to treat the legislative privilege any different for these purposes than any other privilege of the attorney client  the the fifth amendment right against self incrimination miranda all of those as trial rights and those privileges don't seem to operate that much differently than the speaker to make laws does   and in any event when i think judge tom and you asked about this being strong evidence of conspiracy i don't think this really doesn't go to the heart of the conspiracy at all the you know this idea that mr ramsey wanted to put the brakes on the areas exchange because of duke cunningham i mean it does go to his intent and doesn't even really actually go to mr salmon's intent very well and i think again if there is a harmless error analysis to this it would be even even less prejudicial to mr salmon  was instructed when you get inquiries from the press tell him it wasn't renzi who was pushing the sandland deal it was the nature conservancy it all seems to be in are talking well but again i would say that that evidence especially those evidence of the phone you know the october two thousand and six phone calls those are particularly devastating because they do loop in both defendants they loop in their conversations i mean there are nine com or actually i think eleven conversations between the two of them at at the same time conversations that mr kerry's is having with sandlin and to respond to mr salmon's points about sort of the whether what he was saying to mr areas was true we don't think that that holds water because for one thing mr salmon specifically explicitly told areas to deny that renzi had conditioned the land exchange on the areas groups purchase of this property so that in clearly i mean and really that's what you know that's really what so much of the claims that mr renzi is making on appeal so much of it goes to what we think are sort of side matters i mean the computer claim for example seems to go to the side matter of whether mr area and i'm not saying this wasn't important to the trial i'm just saying it wasn't it wasn't really all that disputed the idea that mr renzi wasn't pushing this land on to mr areas clearly he was in clearly there was independent evidence of that totally apart from the testimony that mr ramsey challenges on the few grounds and the phone records themselves show up their phone records show that the moment that and the government apologizes for missing this call on april fourteenth that occurred and that's why this that's why we're here discussing this claim at all if the government hadn't you know had had researched the phone records better we would have noticed this call but it's actually it doesn't really exculpate mr renzi in any way because as soon as mr aires and salman got off the phone on april fourteenth the first person that mr i'm not sure if it's salman cauldrons or the other way around but they clearly had a discussion right after that clearly they're discussing you know here's what we're going to do in this deal here's how we're going to you know here's how we're going to good cop bad cop mr aries and we think that mr aries is testimony on that point is actually very powerful so i think that's our main line response to the to the  claim i know there are so many issues in this case i'm not sure where to turn next if you're honest have specific questions about any specific issue i would i would be happy to address them i don't think i have anything more i think no fireball give you a couple minutes and rebutt thank you just to begin with the thing of value when my friend mr a striker first that up here the first thing he said was that it was incumbent upon the defendant to come up with a case and this was a novel proposition to us this gets things exactly backwards the whole point of the role of lenity is that if there's any doubt any question about whether criminal statute reaches a particular conduct the doubt gets resolved in front of the defendant not the government and this isn't you know some rule that's some argument that gets tacked on at the end then is the last refuge of him who lacks any serious argument the rule of one of these taking stream we seriously about stream court in recent years and most pertinently here it's been taken seriously in on a services case as in mcnally relied on the rule of lenity and holding that property doesn't include on a services and after congress enacted thirteen forty six just a few years ago it decided skilling and relied on the rule of lenity in holding that on the services fraud is limited to of thing can cloud the judgment of a public official well that was precisely their theory before skilling was decided that there was a conflict of interest that clouded renzi he's judgement but of course that can't be their theory and isn't their theory anymore is that this was an interest bearing loan it was not an interest free loan so the early repaid repayment deprive mr renzi of money he would otherwise be entitled to so that's not proof of more than an equal value exchange as far as the warman and related briefly on the point of whether the testimony elicited from joint team was legislative or not i think what i would point the court to specifically is language in renzi one on page ten thirty one this is the part of the opinion where you dealt with the grand jury evidence and you specifically referred to a document i believe was an e mail on r c c e mail that referred to quote unquote actual legislation as being legislated protected therefore should not have been admitted before the grand jury what ms kean is talking about here is exactly the same thing actual legislation in march as i recall he was to the r c c bella's in march the conversation with mr keene was right there after the question is is that future proposed legislation it's certainly not pending legislation i don't think it matters or on it because the count we're talking about here is miss ke talking about not promises to anyone he's talking about congressman when's he's motivation intent support for those bills he's making the decision i still have to decide when it becomes pending versus future legislation do i suggest in the quote it's very dangerous to drug lines in the sand about when these temporal lines in the sand but but if it's not a legislative act too if it involves future legislation we have to draw the n and talk to one another for a moment and let you know if we need further argument on classified matters so we'll stand in recess for a few minutes and