government at the state and local levels its theory this time is that the defendants committed property fraud by reallocating to traffic lanes from one public road to another without disclosing their real political reason for doing so this theory turns the integrity of every fishel action at every level of government into a potential federal fraud investigation it ends runs mcnally and skilling by subsuming on a services fraud within property fraud and by criminalizing all teary or motives even without bribes or kickbacks it would effect the sweeping expansion of federal criminal jurisdiction into a particularly fraught area this is not the law this court in cleveland held that regulatory authority is not property so an official who induces a sovereign decision through deceit has not obtained property by fraud only when the official lies to divert state resources to private use as he stepped outside the regulatory realm and committed property fraud this rule distinguishes property fraud from honest services fraud and from routine political conduct here because the defendant simply reallocated the traffic lanes from one public use to another the port authority at most was deprived of regulatory control not property and that's true regardless of whether as the government now alleges the defendant lacked the authority in some sense to order the real line mr levy will explain why the government is wrong to say that but it's ultimately legally irrelevant because the fraud statutes do not prohibit lying to take unauthorized state action they prohibit lying to obtain property and that simply is not what occurred in this case and if the resources were diverted to private  prosecution may be ok but why isn't data private to benefit defendants politically your i'm trying to distinguish the use of the property from the motive for the decision so here the decision was to realign the lanes from one set of public drivers to another set of public drivers both our public uses of the lanes now it's true the motive the alleged motive for that regulatory decision was improper it was political right that's the allegation in the case but that doesn't mean that that it's that the use of the lanes was private it's not you are the typical case in which the government has prosecuted property fraud against a public official is where the official lies to take property from the government for his own use so situation where you lie on your expense report you say you incurred this expense for business reasons and you did not in that situation you're lying and you're taking the property out away from the government for yourself that is obtaining property here what the defendant influenced through their deceit was the decision about the alignment of the lanes and if there is anything that is regulatory in nature so mr rudd and that theory would it or would it not make a difference if the defendant here rather than doing everything that they did for a political reason if they had done it to make their commute easier or their families commutes easier so it wasn't anything about politics it was their own personal interests but they did exactly the same thing is that covered or is not is that not covered on your theory that on my theory that is certainly not property fraud the officials even in that case of not obtained property by here not making just a distinction between private uses and public uses you know private purposes and public purposes maybe but i'm certainly not making this ancient in that type of purpose what i am trying to distinguish is the use of the property and is it a regulatory decision to realign the lanes for whatever purpose because if work if what we're concerned about is the integrity of the purpose behind the decision that really sounds in on a services fraud right because we're concerned about is not the government being cheated out of property that it has or that it owns what we're concerned about is the good faith of the official in making the decision was how that's a hard can be a hard line to draw i mean if the rerouting of the traffic is done for the commercial benefit of the individual in whatever way that would be a violation right we are if you want he's got a you know a development or something is building a hotel in fort lee and he wants the traffic redirected there or directed away from whichever because he thinks it will increase business and his your honor if the court were to consider that as a kickback then that would be on a service is fraud would not be property fraud because again the decision there is a public is a decision about allocating scarce public resources among public uses again the concern in your honour's hypothetical is well what was it a good reason  benefit the public or was it to benefit himself and what this court said in skilling is if you make a decision because you were paid a bribe or because you're going to getting a kickback that is a violation of your honest services your duty to provide on a services to the public we what we're doing here is interpreted in a statute and it's not quite clear to me how your argument fits into the language of the statute so property money is property and money was lost how does this fit into the on the language of the regulatory interests that is not property within the meaning that the congress had wanted and that that was there a loss of money and in cleveland well there wasn't it's not clear if there was a loss of property certainly i would say there was an official in that case who was processing the fraudulent application and if he had not been given the fraudulent applications process he would have been doing useful work for the agency and maybe he would have gone home an hour earlier and been paid a little bit less i don't think any of that would have mattered flawed i think it's two steps here either the st step is to establish that the decision of the realignment is not property because that's control that is regulatory power the nd step is to say well then what about the costs of implementing it and i would say the costs of implementing in implementing that regulatory decision are part and parcel of it and it's the scheme is not to obtain that property the purpose of the scheme the object of the scheme is to sending city maintenance people to paint your own house if you're a public official i was under the impression that you thought that that would be a crime is that right if if the if you're sending the public employees to do private work yes absolutely that's not regulatory at that point you're just taking the city property and using it for private use which is not that's that's you're painting the property i would distinguish even though both are diversions of city resources or state resources whatever it is it's just one is regulatory and one is not because one involves personal benefit personal use yes or i mean everyone every regulatory decision diverts resources in some way i mean every time a public official makes a decision there are implications for the bureaucracy and their implications for public property so there is diversion going on and maybe the decision was made for a bad reason and if it's a bad enough reason maybe it's an honest services violation who's your theory that the word obtain is what does the work in response to justice kagan's hypothetical i think it's a painting property together i don't think it's one or the other cleveland focused on property and what did congress mean when it said property i think said we're concerned with cheating people out of their property rights and you can do that with a government entity you can certainly cheat the government out of its property paskin tino's the example of that where the court said you owe tax revenue zero taxes to the government you live to avoid paying your taxes you've committed property fraud the same by the way could have occurred in a port authority situation you always toll and you lied to evade paying the toll you have cheated the government out of property that  but if what you're doing is making a regulatory decision like allocating public resources among public uses and there's no question that the mainline is a public use just as much as the special access roads are a public use of the property that is not obtaining probably i can understand the distinction between a regulatory decision and the deprivation of property when the regulation when the regulatory decision doesn't cause a loss of property but when the regulatory decision costs the la property i find it more difficult to see the distinction we're honoring it to mean your honor i think that every regulatory decision is going to have some consequences for public employee employee time for example which is the species of property that the government has invoked but in this case let's take this case just as an example with a focus on the additional money that was spent was the talk of the toll keeper had to do an additional shift but the toll keeper was doing her job of collecting tolls for the public so the port authority was not deprived of her salary she was earning her salary that the objection is if this regulatory decision had not been made we would not have had to hire that told people for that work right well try this one last time tell me how this fits into when we write the opinion if we were to write one in your favor how would we explain your result within the language of the statute i think the court would say the statute prohibits schemes to obtain property when you are using the seat to influence a regulatory decision to change a regulatory decision that is not obtaining why when a public official says you do a city maintenance worker you should paint my house before you do anything else why isn't that similarly an allocation of resources because ething maybe i may have led to some confusion if you're planning public roads and you say i want to plow my street st in my neighborhood st that is not obtaining property by fraud because that is an allocation of resources to a public use it's a public use that happens to benefit you and maybe that was your motive and that's very bad but it's not obtaining property by fraud if you instead trick the public employees not into plowing the public road but into plowing your private driveway driveway which is not the job of the government that's not what the government does the government is concerned with public property in clearing public property if you tricked the gov the employees into plowing you private driveway then you have taken their services for your personal use which is fundamentally different that's no different from saying i worked overtime when you didn't please pay me you know my hourly wage for the hour time that i didn't and that difference is just to go back to justice alito is question where in the statute the difference is in the scheme to obtain property that's that's where it is in the statute and so you look at what is the object of the scheme and if the object of the scheme is to influence a regulatory decision it's not a scheme to obtain property under that's just follows from cleveland otherwise every decision that public official makes is on the table and the only thing that is separate  of government property to accomplish your goals why is that any different then taking the maintenance worker to plow your road your private street you're one of the difference is that here the alleged purpose the alleged motive was what your honor said right to increase with the scheme yet the scheme was to do that through a regulatory decision right by realigning the lanes from one public use to another public use so what we're but what the objection is to the conduct here is an objection to the purpose not the objective use of the property nightmare that's the problem is it's i don't think i could see a headline that would say it's ok for officials to use government public money in a way that is plainly can use government resources you're their private hands right we are all not mixed motive which is the interesting question here with the traffic study and whether you have enough and whether they have enough evidence that there wasn't a traffic study but you're seeing what it was when what the government has said you're not authorized to do it there's a question about that and you didn't have even a mixed motive you had only a personal so you're going to let mr levy speak a little bit more length about unauthorized because actually the government's theory throughout the case was that he did have the authority and that he abused his power by making the decision a much more difficult couldn't quite yet but what i will say is i'm not trying to suggest that this is ok we don't want public officials acting for personal reasons we don't want them acting necessarily for partisan or political reasons but what i'm saying is the remedy for that is not the federal property fraud statutes we have certainly political remedies that were very much had pretty substantial repercussions here there may also be state law constraints on official abuses of authority in fact new jersey has a statute called official misconduct that is specifically directed toward unauthorized decisions with bad purposes that's not what the federal property fraud statute is concerned with federal property fraud statute is concerned with cheating the government out of its property rights and that's just not what we have here what we have here is an abuse of power a political abuse of power  me mr chief justice and may it please the court a public official who is acting politically and not for personal gain does not commit fraud by lying about his reason for an official decision if the decision was generally within his authority the government disputed that below but now urges that as the rule in this court that concession requires reversal the government alleged improved the mr brown he was the co had of the port authority responsible for supervising all aspects of its operations the government itself elicited that there was never any policy that precluded mr burr any from using his plenary authority to alter a traffic pattern for the government's rule to work this court should require an objective lee clear lack of authority something not even arguably shown here otherwise any official who conceals his political motivation risks being convicted of fraud if a prosecutor or jury later disagrees about the scope of his authority if the government's role is to provide any limits this case must live beyond those limits i'd like to begin by discussing what the government alleged argued and proved below about mr brownie's authority before it decided in this court that in officials authority is the line between guilt and innocence under the fraud statutes in the district court and the government alleged in the indictment that mr brony was responsible for the general supervision of all aspects of port authority business including the operations of its transportation facilities from its main cooperating witness mr wildstein the government elicited that exact statement precisely ticking off one of the allegations from the indictment it elicited from mr wildstein that the that the title deputy executive director was a misnomer that within the port authority authority that's from the government soliciting from its own cooperating witness the government also the arrangement is always that the new year there's a new york representative who is the executive director on the new jersey representative who's the deputy is that right that was at the time the the arrangement it was it was always appointed by the governor of new jersey for the deputy executive director and the governor of new york for the executive director and it was understood within the agency by everyone every day of the all the witnesses the government call testified that that was the arrangement they called mr barone his successor who testified that that was the arrangement that one did not report to the other and then i says this is a by state agency why why would except that the structure within the port authority was that that was not the case so they in fact as it actually played out didn't agree to play nd fiddle it was understood that within the port authority the deputy executive director had equal authority the vice chairman testified about these parallel chains of command that were understood particularly four four decisions made with the new jersey it was understood that that would fall within the deputy executive directors scope of authority i think one of the government's mean arguments for on this efficiency of the evidence which is clearly pro government in this situation was that mr wildstein had to lie to the port authority employees about the executive director knowing about this lane change if infer that the reality of the situation was that mr bruni couldn't do this without the executive directors acquiescence or acceptance doesn't that show his lack of authority isn't that so why isn't that sufficient if so so two are st of all i don't believe we're here on a sufficiency ground and for reasons we've argued our reply brief but even within that we're not saying that the why might not be a piece of evidence but even the government concedes in this case that the law does not show a lack of authority the government concedes that an authorized official is permitted to lie to their subordinates and so it cannot be that circularly that lie automatically a stablish is the lack of authority here all of the evidence at trial was that mr brownie had planted the already over the operations of the port authority mr wildstein actually testified his st answer when he was asked why did you come up with this traffic study his st answer was for purposes of the media and for purposes of explaining it to local officials when pressed by the government he said also to give a reason to career officials but the fact that he has to not be asked you that he chooses to tell a lie to career officials to make this go over more smoothly in the same way that a public official wouldn't tell the world that they're doing something for a political reason which you spend the moment on the strafford study certainly ironic that the government has conceded that if mr and again this is new in this court all of these concessions that if mr brony had authority to order a traffic study then he could do so even with the intention of causing traffic fort lee and they concede that he had the authority to order a traffic study so all of that is conceded what they say is he lied about the existence of a traffic study and as we point out in our reply brief there was no lie about the existence of a traffic study there was no representation at all about the existence of a traffic study mr wildstein went to the bridge supervisors and told them i would like to know what will happen what the effect on traffic will be if we switch these three lanes police which these three lanes or maybe not with the please and and studied the results collect the numbers and tell me what the results are the only part of that is a representation is the st part i would like to know my motivation is my purpose is and the government agrees that's not capable of being alive for purposes of a fraud conviction of money and property fraud conviction the other two parts are an instruction they were an instruction to do a traffic study and the employees of the port authority did that that's what the government spent a great deal of time at trial proving is that money was spent on a traffic study that they say was illegitimate because nobody ever cared about the results but the government agrees now that caring about the result is not an issue they said the traffic study didn't exist and that's just flatly contrary to what the state level is it your position that i suppose mr irani had said i'm giving you no reason at all or suppose mr bernie had said we're going to do a traffic study but it's going to be a traffic study would he still have had authority certainly the st he certainly had at any point the discretion to say as somebody had done very early on in creating these three traffic lanes they weren't required by anything at any point in time could it could have said i think they should have a th or i think they should have only two or only one and that was fully within his authority and as the government argued and prove this case below that was their point that was their summation was he abused the authority he was in trusted and the nd we're going to do a sham traffic study i i think he can he can do that i think as a functional matter who knows what actually results from that but yes he has the authority to say we're going to do a traffic study because i want to do this thing and and for public reasons it's easier to do a traffic study and you said that this was not a sufficiency question but what is it if it's not a sufficiency question because as i understand your arguments you're not pointing to any instruction that was incorrect  defendants in the district court said the line is authority and if we were authorized then then that is a complete defense and the government told the district court do not give that instruction in the district court said i'm not giving that destruct instruction because it is not a defense and i don't want to confuse the jury into believing it is now in this court the government is saying actually it turns out the hinge between guilt and innocence is whether or not he was authorized and get the benefit of a sufficiency of the evidence deferential review even though we told the district court that this issue didn't matter at all the government has forfeited the opera to prove that mr brown he lacked authority we offered to have that fight in the district court and they said it didn't matter now in this court this court should assume that there was no lack of the sort of any any reason to think that the jury actually made a finding about veronese authority no there's no reason whatsoever that the district court was attempting to make sure that they didn't consider that to be relevant or that that was what we pressed was that this is the relevant links in the district court one too to be sure that the jury did not believe that it would be a defense and nothing in the jury instructions you mr chief justice may please the court the defendants in this case committed fraud by telling a lie to take control over the physical access lanes to the george washington bridge and the employee resources necessar realign them unless they lied about the existence of a port authority traffic study none of them had the power to direct those resources and realign the lanes because they told that lie those resources were answering to vem to their own private purposes rather than to the public officials who were duly appointed to decide with those resources should be allocated to do this their actions in this case were fraud in just the same way that it would be fraud for someone with no connection to the port authority to impersonate port authority supervisors and order port authority employees to realign port authority lanes or if we want to put this in the private context for someone to usurp the authority by deception of a taxi cab companies dispatcher and order of the cabs and the drivers to go wherever the fraudster pleases they don't get a free pass simply because peroni work for the port authority when the evidence showed that he didn't have the power to direct these resources in this way without telling the lie they don't get a free pass because they're hypothesizing that legitimate decision makers might in theory precise point of their scheme was to take these resources out of the legitimate decision makers hands and put them into their own hands and they don't get a free pass simply because their motive happened to be political let me start with the legal argument that was made by kelly's council which seems to be drawing a distinction between public uses and private uses and i think there are two main problems with that actually probably th one is i don't see where a license for that is in the statute and that gets me right to the nd problem which is that it seems to draw a distinction between fraud where the victim is a public entity and fraud where the victims a private entity in the court rejected that distinction and pas clinton no i don't know in the taxicab hypothetical what it means to say that it's only fraud if those cabs then go to private use we're talking about a private company in that context and the rd problem is i don't stronger than in your brief that if you have authority and you work for a government only if you say and tell them in the law truth then you don't have authority my goodness the code of federal regulations the rules of any department the i mean the government is filled with rules and there are numerous instances where person might say something untrue about something related to a rule that gives them authority for that that's enough to take where we're back to on the services and that's also true of the nd if in fact i can there are two separate parts to the nd about it will get both questions out is that fair one on authority is i don't know where that comes that if you have authority to do something in government but you can't where you lied about some anything that wouldn't you would without it well then you're in the property stealing statute and the  problem with your nd claim is if you don't have authority but you put what you take to a public use now either that is does i is it is and conversion of property and a a obtaining the property within the statute or it isn't if it is i don't see how honest services fraud the nd part of your question st and then i'll try to get back to the st part to answer the nd part of your question i don't know as i was saying i don't think there distinction between private and public uses orks because that's not a distinction that the statute or use some paper or use a telephone in order to achieve that dishonest thing all right if you're going to count that as property well fine you could do it i guess under some statute but if you do it under this statute this statute then prohibits the taking of a dishonest service is exactly what the court is held it doesn't do so your honor if i might answer they'll take me a nd to play this out i think it's a very important distinction they're trying to lump a bunch of different kinds of frauds together and make them all sound as if they're the same this case is about a very specific kind of fraud commandeering fraud is when defendant tries to take over property that is in the hands of the victim and manage it as if it is his own property that's what they were doing with the lanes on the bridge and the employee resources so for example if there's a snowplow sitting there and i take the keys to the snowplow and i drive off in the snowplow everyone would agree that i've obtained the snowplow if i instead put on one of those masks from the mission impossible t v show or the movie and i impersonated the boss of the snow plow driver and i tell the snowplow driver to drive around in the snow plow and do the exact same thing that i was going to do i have obtained the snowplow and the driver services by fraud but not every fraudulence scheme and not every deceptive scheme works that way sometimes there deceptive schemes in which somebody simply wants an agency to do something or wants a private victim to do something on his behalf and then you have to look at what is actually the object of the scheme and how the scheme works to see if the agencies do deprived of property but the difference between taking the snowplow is that the official has no authority to take the snowplow for his private uses the official does have a but also i don't think that it's fair to call this a public use what we would say is a public use is the use to which the lead should admit supervisors of the port authority have decided to put the port authority's recent you're saying your theory is that by the actions in this case they have commandeered the lanes on the expressway yes your honor that's a good thing coming to the lanes and the resources necessary to reality were being used for public purposes your honor i'm not sure what they mean when they say they're being used for public purposes so this is really what people want to use the highway to get into fort lee they can so they have nothing to do with the scheme at all so you're going to i guess i would i would push back on this to this extent if they decided to close the bridge is that a public use or private use if they decide that only kelly can use that lane is that a public use or private use if they decide that only red cars can go down that lane is that public they did decided any of those things so that anybody who was just a problem getting there which a quite a problem i grant you quite a problem but they used it for cars going down well snowplow all day long there is a law here a rule a rule no rule create every street alike and you know what the snowplow operator did he snow plowed the mayor's street st now that is not a good thing to do it is really undesirable and maybe it should be a crime but thirty years in prison that i'm not sure and that this statute has to do with property fraud and is taking the snowplow and putting it to the use of the public streets in violation of a rule creating the mayor better is that a property crime your honor in that law in that hypothetical there is there we would not say that is fraud there is no why there's nothing material is where are you going i am going to th street st and then i will go to the grocery store now the street and then i go up and you know what he did he went to the city councilman street all right there is a lie it's easy to make up cases that there's a law in and that's my problem same problem we're back into honest services fraud which is fraud and bad and and the question is does this statute get it we are not in on the services fraud your honor st of all the law in your hypothetical was not a lie that was told to obtain property was just a lie about what he was going to do but here's the reason we're not again that this is what troubles me about your your argument your argument is that if peroni was authorized he could not be convicted and i write if you have the money had the authority to do what he did then he's not committing fraud all right you know and ok and you say that takes care of a lot of these hypotheticals that seem just that are disturbing to some people you say but the jury found that he was authorized and there's sufficient evidence to support that finding that story found he wasn't authorized i'm sorry the jury that it was not authorized and this is the shots evidence viewing the evidence and all the most favorable of the verdict to support the finding but i see no indication whatsoever no reason to believe the jury made any such finding a couple things about that one they did not make an objection to the jury instructions properly even in the court of appeals it's not part of the question i know that but i've never paid never seen a criminal case where you are asked to  defer to a jury's finding on something that the jury didn't find putting aside the question of whether there's any evidence to show that he lacked authority so let me point you to a couple places and let me talk a little bit about the evidence of lack of authority st of all there's the instruction that the court of appeals deemed adequate and that's it page eight hundred and seventy five dollars of the joint appendix which is the instruction on obtaining property which the court of appeals  efficient to notify the jury that when someone is acting on behalf of an organization acting as the agent of that organization he's not obtaining property when he exercises the authority that the day agencies do we conferred on him but even better than that is the materiality instruction from pages eight hundred and seventy five thousand eight hundred and seventy six which says that if you find that the representation that the lane tollbooth reductions was for the purpose of a tro for the was for the purpose of a traffic study was false you must determine whether that representation was one that a reasonable person might have considered important in making his or her decision to commit port authority resources for that endeavor including the services of port authority personnel what does that what does that say about about authority to your honor of reallocate the lines if peroni actually had the authority to reallocate the lanes for any reason or no reason as his counsel just stated to this court that he did i don't see how the jury could have found th lies that they told were material ferociously didn't everybody has authority to spend or to do their act on behalf of the agency anybody who does it for their own personal per purposes telling the law and i can explain why if you'd like in when wildstein st proposed the idea of realigning the lanes brownie's immediate response was to ask wildstein how he was going to do that wildstein then came up with the idea that they would have a traffic cover story on the cover story of a traffic study and he explained at the time to kelly that one purpose of the traffic study cover story was in order to list the port authority officials that they would need in order to he then had to lie to both the manager of the george washington bridge and the manager of tunnels bridges and terminals but the executive director was aware of this and apparently had tacitly approved of it where in fact they traffic remained the same or maybe improved would you still have the case your yes your honor it's not about the baggage of illegal though the effect was catastrophic and that was a reason why the prosecution was brought because of the incredible danger in which they put the citizens and commuters of fort lee but they would still have committed the same crying and they were hiding it from the executive director wildstein testified directly that there were processes in place to use the port authority resources and he didn't follow them and when the executive director found out he immediately canceled it and he stated that the process had been quote subverted you know the only clearly had significant authority within the port authority organization but when someone questions how they're going to do something has no idea how he's going to do something has to lie in order to accomplish it has to lie that his bosses approved it has to conceal it from his boss and has to avoid not everyone who does and i suppose there is a myth often the case that somebody who has the authority to do something may lie about why the person is doing the thing because if the real reason was exposed there would be a lot it would cause a furor people would be angry but that doesn't show the person doesn't have the authority to do it a person hires his brother in law for a position why did you hire this particular person while this person is the very best qualified person for this chop when the real reason is his wife wants him to do it he doesn't want to say it does that show we didn't have the authority to fill this position number on a vent but that's not the only piece of evidence for lying on and it's a different kind of lie this isn't a lie about why they're doing it this is a lie that wildstein directly testified that they needed to tell in order to get the resources that they that they needed it was clearly important to the george washington bridge manager and the manager of tunnels bridges and terminals but this was something the executive director knew about both the executive director and the vice chairman of the port authority board of commissioners testified that they would expect to be notified about one something that was even an order of magnitude less disruptive than this was ever going to be and they weren't notified and why would you about this is the same but i don't want to lose what the question was in light of the instructions given and what i have so far found is that the defense did ask the jury to be instructed to do just what you want it they asked the jury said judge tell the jury that if the poor to authority granted or bestowed on the defendant the power or authority to control the property the bridge etc and that they acted within the bounds of that authority then you can't find the scheme to defraud i think you really thought out and the problem is the judge said no i won't give that instruction then what the judge gave is an instruction in so far as the court of appeals and we're reviewing the court of appeals insofar as the court of appeals said well they gave the essence of it this was the the essence of what he didn't give no i mean i haven't read the two instructions you richard but the one that i read i think is the one that the court of appeals relied upon so you don't know what do we do about  honor i would look back at the materiality instruction i was discussing with just a bit that is what the court of appeals relied on well your honor i think if the court of appeals got the substance of it right and you don't agree with its particular reasoning there's no reason to reverse particularly when the question hasn't even been presented to this court this question at this point was only really raised in the reply brief of peroni who didn't even petition but let me address the authority instruction that was rejected by the district court directly that instruction was proposed in the already itself contains a reference to authority both the government and the district court were quite clear in the district court and you'll see this finding by both the court of appeals and the district court that browning kelly were free to argue the authority issue the only question was whether the juror was going to get a specific instruction on that point and the government believed the instruction was unnecessary it was and it would have been a novel addition to the rd circuit's pattern jury instruction on section six hundred and sixty six and moreover i don't know that their instruction was in fact correct because it would might have confused the jury into thinking and this goes back to my colloquy with justice sotomayor that if brownie had some authority under some circumstances that that would exonerate when you see the construction you thought the instruction was unnecessary that may have been the case in light of your theory at the time but surely after your focus here on the authority point you would make that same statement well your honor i think that in retrospect it may have been better to instruct the jury somewhat more specifically on authority i don't know the summer is more significant than the central point of your argument before is today i don't know that their specific instruction would have accomplished it and i don't know that the instructional issue is before the court is before the court today but we are defending this these convictions on the same ground that they were found to be valid by both the court of appeals and the district court which addressed the authority issue the district court addressed the authority issue before trial telling the defendants they could argue to trial it rested after a trial saying it believed that  already had been proven and then the rd circuit addressed it and we have been consistent throughout and that we have never argued to my knowledge and i certainly haven't identified a place where we have argued that if peroni in fact had the make any decision for no reason that's a misnomer in terms of people have authority to do things only in the interest of the agency so give me a line drawing of a reason or no reason meaning i don't think anybody in the port authority including the executive director could on women say you know i like playing on a board let's change it to one lane because i just like to see a different pattern today so my apologies i don't have a so so give me your definition of what authorized means if he had the ability and when i st read your be brief it was if he had the ability to change the lanes on his own that he had  whether there should be three lanes or one such that his decision under these circumstances would govern then he had the authority i think the evidence showed that he was not that person again combination of circumstances again as i was saying earlier if when an idea of something to do with my organization resources is raised to me and my initial reaction is how are we going to do that and then the idea is to tell a lie that will get everyone on board with it and then we lie about the fact that my boss is aware of it and tacitly approves of it we avoid every legitimate process and we conceal it from my boss clearly says that the scheme of deception has to be the object of it has to be to obtain property so we talk about that for a minute because if i look at this and i'm an ordinary juror i'm thinking you know the object of this deception was not to obtain property the object was to create a traffic jam the object was to benefit people politically you can frame the object in lots of ways but notwith standing that some employee time was given over to this scheme that was not the object of the scheme was it to appropriate that employee time well your honor i think it was because this was this gets back to what i was saying to justice prior earlier this is a particular type of fraud where it's commandeering fraud were what they're trying to do is to take property that's in the victim's hands here the port authority and convert it to their own uses it may be that if i take a knife off a table and stuff that doesn't belong to me and stabs one my end goal is to stab someone but i've still stolen the knife that wasn't the commandeering here completely incidental indeed unnecessary to the scheme being carried out and then there was you know there was a little bit of time for an extra toll person actually to mitigate the problems of the traffic jam or there were some people running around counting cars  conceal the purpose for what they were of what they were doing but that was not the object of the scheme no your honor the object of the scheme was for them to take control of real property physical waynes accessing the george washington bridge and have those lanes be allocated the way ok well that's a different theory that's not the employee time and labor that something about like appropriating the george washington bridge is that right that it's not appropriate in the george washington bridge it's reallocating lanes on the george washington bridge and i would have thought the cleveland makes clear that that's not an appropriation of property either i think your honor i think it's both because they needed the employee resources in order to accomplish what they were trying to do with the bridge and if i can address cleveland for a nd this case and cleveland do both involve governmental decision making but that's where the similarities end in cleveland the object of the scheme was to obtain a license under a regulatory scheme that had no private analog whatsoever the court rejected every private analogue of the government offered for it and the license wasn't property in the government's hands here you're talking about real property physical lanes and who can access those lanes and access rights to physical property are quintessential forms of private property probably one of the oldest forms of property we have and then you have the employee resources necessary to reallocate the lanes which i think even they acknowledge are property under the statute they've knowledge that if you send painters to paint the mayor's house that that's going to be property fraud because you're taking the employee services they're using the employee labor as if it were there is not as if it were something that the port authority gets to use again in the private context if i were to him personally the boss and start ordering around the company jet i think i have obtained the company jet and probably going to time as well you're picked an example that is easy for you i mean the example that's hard for you i think is you tell the employee to pick up the phone and call somebody and say this that's a bad thing and then immediately you say ok it's property fraud because i've used to tell the employees use the telephone or i've used the four minutes of that employee's time necessary to convey the message your theory would say that that's taking  property so it's covered by the front statute we wouldn't your honor and i'm actually glad to have a chance to to make this perfectly clear and this gets back to justice kagan's question as well incidentally uses of property that are not the object of the scheme are not going to be sufficient for property fraud and i think the easiest place to look for that is this court's decision in law for and which involved bank fraud and the court said there that if you tell a lie and the object of your life is to obtain money it's not bank fraud simply because unrelated to your lawyer you didn't really care how the money came to you the money comes to you in the form of a check which is bank property as opposed in the form of cash which isn't if someone is if someone tells a lie and the object is to obtain a license from the state of louisiana to up read a video poker machine which is not property they are not committing property fraud just because some employee needs to spend some time processing the life w object the object of this scheme was not to commandeer lanes on the bridge the object was to cause a traffic jam in fort lee and if they could have done it some other way they would have done it some other way the use of the traffic you know altering the traffic lane configuration was just the incidental means of achieving the objective i don't think that's right your honor the lie they told to the port authority to get the port authority resources was a lie they told in order to get those resources the causing of the traffic jam was what they wanted to accomplish with those resources if i tell a lie to get access to the company jet it may be that my goal is to take it on a vacation trip to macau but that's not the object of the scheme as far as the frauds concerned and the victim of the fraud thank you thank you council two minutes mr ross thank you your honor the fed the federal property fraud statute prohibits schemes to obtain property and  government's theory of property here as we think we just heard is that the officials by making this decision about lane alignment commandeered the control over the george washington bridge that is exactly the type of regulatory control that cleveland set is not property cleveland referred to the intent of all rights of allocation exclusion and control and the sovereigns intangible rights of allocation exclusion and control are not property for purposes of this statute and therefore if what the officials did was use the seat to influence the exercise of those rights they have not obtained property from the port authority if that is not correct then everything an official does is falls within the scope of this statute and the only question that is open is was there some deceit involves and if that is right i think the chilling effect on honest public servants is going to be severe you responded to one half of their theory and one  their theory is the allocation of lands in the other half is the employee time yes so what's your response to that my response to that why it's actually what he said again which is that the incidental costs of a decision are not the object not its object and it's what your honor because it's incidental your honor in that it it was the implementation cost it flowed as as a result of the regulatory decision the regulatory decision was to realign the lanes that required some employee time in terms of taking tolls and studying the traffic effect  but that was not the object that was how it got done would have to cost a one million dollars would it be incidental that no a yes your honor would still be incidental it's not a de minimus test it's a question of what is the object thank you council the case is submitted