auburn smith to marie marie may please the court what business of the federal governments are local political parties own internal affairs local governments are public entities that receive and administer federal funds at least typically in corporations though regulated by the state when they have a lot to say who's going to be on the ballot for mayor of new york city that's kind of an important role isn't well your honor this is not an election fraud case in the charge was not that the public was deceived in anybody's rights thomas services the charges expressly framed in the indictment and that's what makes this case among other factors so novel this is not a marji on a case that theories expressly disavowed by the government and what you have year is an allegation that mr smith conspired aerated in abetting the defaulting of members of the republican party and their committees  regulated by the state are private entities in gauged in core economic activity squarely both of these things within congress's cause commerce authority local political parties and that's the victim here the alleged victim another story entirely while also state regulated these are private entities in gauge to include more expressive activity that implicates and enjoys first amendment protection at least in the state couldn't regulate this conduct either no no so this state clearly can read well and i don't understand what's the first amendment not to do it well because in fines the states as well and of course it binds the states around but the law is very clear in new york and federally out of the supreme court and the new york court of appeals and that's just the point that the proper entities for regulating this sort of activity or for in the first instance the party itself and in the second instance the state this is an argument about who prosecutes the conduct not whether it's prosecut e and you're not you're not making a first amendment are you making a tenth amendment or i'm making a tenth amendment argument but of course what informs the tenth amendment here is among other possibilities the prospect of these statutes being used for political mischief and motivated by improper purposes and to that degree of course the first of many pay it plays a role although i'm not contending that this particular prosecution suppressed first amendment activity but the fact that it's expressive political activity informs certainly the tenth amendment analysis while i don't get it why wouldn't there be as much process believe for first amendment mischief if the state brought the same prosecution that's her that's the reason i would i would surmise that the state has not used the statutes in issue here in the fifty years since they've been and yet i find it may have more to do with the fact that the state legislatures permeated by corruption and that may have something to do with the not that may well be or may not be the case but with all respect that's entirely irrelevant to the question of whether the conduct issue here falls within the terms of the statute or the federal government's ability to prosecute as spelled out in great detail in the br if that's the case there are numerous remedies at hand for the states to combine is it my is it permissible to defraud the members of the republican party again it's not it's not a question of whether it's permissible or not engaged we're wired communications and interested in and instrumentality to defraud people right well the united states supreme court repeatedly imposes limiting constructions on these statutes to guard against the but skilling was an entirely different application skilling in no way said that every application to every bribe in kickback is constitutionally permissible i would say it was only that it wasn't vague as applied to bribes and kickbacks but here you have a situation where the predicate for the entire prosecution is a disused state statute which indicates a de facto pattern of not enforcement that is a policy judgment made by new york prosecutors and the new york legislatures it's no coincidence respectfully that these statutes have been on the but wait wait now it's let's think like colorado has made a decision about marijuana but the congress has made a different decision about marijuana  but the fact that the state has chosen not to prosecute certain things or even to it to officially legalize them let alone to have a law against it that you maintain is and force her under and force does that prevent the federal government from enforcing federal laws i don't duration versus gonzales but the d o j has announced a policy that they're not going to do that they're not in their discretion that's that's not good but ridge says they have the discretion to do exactly the opposite is it entirely the different situations not a question of whether the conduct is legal or not you have a statute saying it is not legal but the state for valid policy reasons of his own has decided not to enforce rigid you where you get alan policy reasons it may be that that state laxity in enforcing a political corruption statute is a reason in favor of federal prosecution not if it's what the what the policy reason that says the state should go on already corruption well that's for the state to figure out a ya know what a why should that and maybe if the state wants to be corrupt it may be they get to do that until such time as the federal government notices they're viol fear not if the defendant has no notice that he could be prosecuted under the no notice no notice no notice it's never been added now that bribery was a federal crime not that not that it's not no sort of the only still up federal  prosecution that would give him any remote inkling of that would be margie not but he is not a political actor but there are two state statutes the york state statute that specifically prohibit this critic and that is a pretty good expression never of never been prosecuted never been enforced never been used against you or your party or alters your argument really has quite a fine implication if if state corrupt people are sufficiently corrupt to persuade state prosecutors never statutes that have been invoked to prosecute this conduct that they're not predicates to use the travel so mr meter statute cited in the brief other federal statutes that other states statutes that don't entailed bribery per se and are not predicates under the travel we where do you get the conclusion that this pattern of not enforcement is some sort of policy choice it's a de facto policy choice it goes one way we wait in the late one nine hundred seventy s in new york city there were virtually no prosecutions for auto theft one of that was legal in the city of new york effectively why because the city made a decision that they didn't care about cars now because they didn't have the resources in light of the other law enforcement priorities to prosecute that kind of case they were unable to uncover the the criminals in these cases they were too busy worrying about the two thousand plus murders a year why does why does the fact that a statute is under in force imply that there has been a high level policy decision not to bring any cases that you have any evidence of cases where the state authorities were aware of this kind of behavior had the evidence in hand and said no we have a policy of not prosecuting this case that's not my burden sir the supreme court cases are crystal clear when a prosecution implicates school or state parag it is and there's no question under the case law that the internal affairs of a political party or core state parag if the government has to show that this was clearly congress's intent to usurp a state police power that's what this is no matter how abhorrent the cond up may seem you cleveland cleveland versus united states two thousand u s supreme court mcdonald all the cases that have come in the last five years that bob and i mean you cannot confer upon the federal government a police power that it does not  please the court my name is eric nelson i represent on appeal vincent tbone the former vice chairman of the queens republican party good morning your honest mayor proceed yes i submit to this court that the question at hand and i will deal with the honest services fraud aspect of the conviction my position on the travel act has been established in the brief and in the reply brief however with the court's permission i would like to move on to the issue with honest services act once again queen's republican party and i submit to the court that with all due respect to iran a judge lunch in terms of your decision in united states versus how and i submit under the facts of this particular case mr tbone did not oh if i do cherie obligation to either the citizens of new york or the queen's republican party you know you don't know any particular respect to  that the question is are you are you saying that there is something that distinguishes mr to from the phones case from situations resolve our and on the front i do your honor and what is what is that the difference different position then and in fact i suspect that in some degree he was one of the people who was part of that litigation right heller and didn't know the duty power and dissipated in bribes to the people who didn't know the duty with the republican party officials who flew to vote so what's different here the difference is your honor is if we if we look at mr two bones and we look at the new york primary law under the election law it is not mr to bones decision nor would it be to decision of any of the party leaders of that we look at his testimony the recording of what he said i'm the chief operating off of the party i run the queens county republican party nobody else runs the party i run the party i am a bird dispute that he says that iran or that is the evidence or trial i do not dispute that but i submit to the court that the fact that one there's no dispute about that your honor my position on this is the fact that under the new york primary law and under the new york election law first the if a person is given for example in this case mr smith was given the will supercool by three out of the five county chairmen in new york city then he would still have to submit i believe at seventy five hundred petitions signatures petition within thirty seven days of the fact that he is is assuming that he's approved in this particular case would ultimately be up to the individual controlled wilson pakula and so it was only a potential advance and then we have the whole argument about what may means in the statute the what you just articulated and in terms of the breach of loyalty i submit to the court that in everyday life any of us may have a loyalty for example we may have loyalty to our bank we may be a if you are an officer of the bank you owe something to the shareholders you do you want to but you are in a different position i would not equate this to de bone to being the president of the bank because ultimately the president of the bank is is the head of the bank but an official of the of the republican party are you saying to me that an official of the repub we're going to party under state were federal law and no fiduciary duty to the members of the party to exercise his judgment for the benefit of the party rather than to mind his own pockets that's the argument you're making that he does not do such a duty and i'm not talking about the lining of his own pockets which obviously occurred in this particular case b with the undercover present and on the what do you owe to the prince of the principle is i take it and that the leadership of a political party is in elected by the members of the party in the border to further the interests of the party not their personal interests is not wrong am i wrong to think that know you do not want to think that iran is however i submit in this case that the the powers that is t bone claims that he had and which appear which may appear on paper to believe that but he had and we all realize in the new york city system that ultimately the decision of the the head of the party will carry a lot of weight however the question that still remains is whether or not there creates a fiduciary obligation and i submit to you essentially had to control every aspect of the nassau county government in the quick looks at the we only know that because the jury found it and here the jury evidently found the same thing about and i agree with you completely that the fact that he said his i'm the king here doesn't mean he is but it's evidence that the jury can consider in deciding whether he is in that kind of states versus murphy very very similarly factual scenario as marjah and even under the facts of that the take a look case third circuit held that a party official who conceivably in murphy still immersed himself in businesses and with various businesses and kickbacks we still don't know for i do sherry obligation under the under situations talk about a public official so the question your honour's is whether or not it's an obligation to the citizens which all the cases have held that there is an obligation to decisions or just to the federalism grounds but those arguments are controlled by other cases biggest challenges to section thirteen forty six have been repeatedly rejected in cases such as skilling and again in mcdonald when a recently came out  they have been rejected by narrowing the statute but mr smith's conduct falls squarely within that statute it is a bribe and kickback scheme he did agree to trade an official act and therefore he can't claim any biggest concerns there moreover leaves only the possibility of a narrowing and destruction or construction of the statute that somehow limit federal power but all the statutes here are either state statutes the state bribery statutes where you wouldn't limit or construe narrowly to constrict federal power or they've already been interpreted by courts with an eye to making sure they're properly limited and yet smith's conduct still falls squarely within them the only other thing i'll turn to very briefly one of them were about this argument that ram the reasoning that absent any evidence the state actually identified a wilson the cool scheme and said we don't want to prosecute this it's not really evidence of the state has any policy to not prosecuting this sort of thing it simply hasn't noticed it i think it is as judge lynch pointed out these are generally applicable statutes that are implicated here for example the honest services fraud statute and there's good reason to think that the federal government would be in a unique position to detect violations of these laws as we see in this case and also are you in a unique position well largely by virtue of her interested in prosecuting these cases or that you have access to information the state prosecutors would not have or to like in connecticut there's a problem because there's no grand jury for state prosecutors so a lot of the corruption prosecutions are done by the us trees office because they can use the grand jury to help them do that is there some particular thing you can point to that shows that you are a special place i think so you're leaving aside the systemic issues that the judgments i think of as it will to prosecute the federal government has significantly greater resources particularly for things like developing cooperating witnesses uncovering the scheme took a very lengthy investigation that was where the government had access to a federal cooperating witness who was able to essentially approach mr smith it took a lot of actual cash over one hundred thousand dollars were paid in bribes in the f b i i was starting to worry about whether it had enough money to pay the bribes you state law enforcement has less resources it often is also more constrained because it does by virtue of the police power have to prosecute day to day violations and it often doesn't have the resources to do the kind of year long investigation with consensual wiretaps with  cooperating witness who's been dealt developed over the years with an f b i agent who could be on call at all times to answer his phone pretend to be an out of state real estate developer which is itself important that we can bring someone essentially from outside the state mr smith would have known who was a big player in the real estate market in new york it was useful to this investigation that the f b i agent referred to as raj would say oh i'm you know i'm from the south i'm beginning there you wouldn't have heard of me but i want to pay you some bribes to get into the new york market so the federal government did bring a lot of tools to bear here that a state prosecution couldn't necessarily bring to bear and because it did so to prosecute what are very plain violations of law both state and federal law there's really no room for federalism o have to show plain error but i actually don't think they even get to the first step of plane or which is where the instructions between mcdonnell in this case are going to be somewhat different because the facts were different mcdonnell's the case it was soley about meetings the government  media if they had any other problems because i don't believe so he did say that the meeting could be all the evidence you needed but that is exactly what donna proves mcdonnell says express and you can use a meeting of evidence so one point when he's laying out after covering some other piece of evidence says and look smith also agreed to set up this meeting that's the ever you need evidence you need to show you the agreed to perform the official act but again and again the government argued that the official act alone of something else but that's a very subtle distinction if it's not called to the jury's attention that they could they are not permitted to rely on setting up the meeting as the sole basis for a conviction then i'm having was setting up a meeting he's guilty and but actually the argument was if you could rely on that evidence alone to infer that there was something else that would be sufficient that's a lot to expect of a jury of the judge  so i think in this case or because it was so consistently argued from start to finish that the official act was the allocation of state funding it was never argued that the official act was getting this meeting if i could sort of walk through that and you can start with the indictment which doesn't say anything about a meeting it only says help to establish state funds and then you can start an opening under sort of going through transcript sites here at page twenty five i think it's the first time the government open it came to the it says what happened here is that roger stern asked for five hundred thousand dollars in transportation money no mention of meeting at age thirty three of the transcript again the government's opening this is about a meeting then forward to the  official actis in the government's summation is just smith agreeing to give raj and stern transportation money that's it eight hundred twenty nine even the defense knew that meeting wasn't the issue this is the attorney for mr smith making his claim which  to blow was well there's not enough evidence that the money was for the corrupt acts with performed so asking you to take a meeting and it's true that it doesn't matter whether senator smith went to carlucci for the project or didn't go to college for the project  meeting that was an argument that was made me in the primary argument they had a lot of other evidence to deal with my understand that's of course they made other arguments about that evidence but their whole goal was to narrow it down to a meeting and then say well a meeting is no big deal and then in the rebuttal we hear the government's the all the knowledge he needs is knowing they expect him to help get state money so smith used his office he used his office to arrange  meeting between stern and college and in that context where he's saying all the knowledge you need and i won't keep going the transcript just want to point out that it twenty two zero two in this rebuttal on this subject and again it ends on the subject here's how you  know he smith is doing it this is a twenty two two that's how you know he knew that he was spector to do it in the context of the case that made a huge amount of sense the way this whole meeting in this business with carlucci came up and you can see this most clearly in government exhibit one twenty two which is a meeting between smith rajan stern is stern essentially asks smith you know can you help me with my project can you help me get road funny and smith responses it's doable we're probably going to have to do it a meeting with not that's all you get i'm going to get you this money we're going to do it through carlucci and so it's evidence in that sense once mrs look i'm going to do the script thing for you let me tell you how i'm going to do it probably through incorporation of to one of the facts of backtrace but the supreme court's summary of sort of what instructions overall need to convey are and i think this is really at twenty three seventy two the supreme court's concern was two things that an official exercise of smith's official powers that's a twenty three nineteen if you look at the jury instructions actually given in mcdonald they contain none of that the jury's instruction there are essentially official acts means something in the course of duties it can be routine meetings alone was preserved as a claim yes your honor there was extensive direct argument in the district court the parties very expressive i saw those sort of cautions that meetings alone are not enough that it well let's not think that this issue that mcdonnell just came out of thin air mr shargel who tried the case made rule twenty nine motion at the end of the case and this is before mcdonald was in the pipeline and even a glimmer so the battleground in the case was the meetings  will twenty nine motion at the end of the case was this is just politics as usual always doing is setting up meetings and that's not enough and if it is enough he said to judge cares you're going to have to build more jails if that's enough and judge caris an evidentiary argues because meaning smith setting up the meetings i don't see him attempt to attempting to pressure exerted pressure or anything like that so this is not something that came out of thin air now with respect to   so let's let's review how the charge is factual is legal in factual iranians under mcdonald first of all no definition of a fictional official action whatsoever which is something that exactly the supreme court pointed out thought in fact throughout this case the government contrary to my friend's assertion argued over and over again that they did not even have to prove that smith agreed to take an official action over and over again it's a it's a it's a battle line in the summation all they have to prove the government says is that mr smith knew that raj and stern thought that he would commit an official action whatever that is plainly wrong in light of macdonald because mcdonnell although the parties did charge there was not there was not there was no horn objection after charge but there was and there was not because it was pre mcdonald but i would submit that under either a plain error or a modified plan or standard especially especially when you factor in mr sugar sure deals rule twenty nine motion is this was a key defense theme throughout the case that all he was doing was setting up meetings and this was just politics as usual i'm not saying the objection to the charge was preserved but it's clearly in play it did not come out of left field and judge mentions hit on the key portions of the summation but that's not off on twenty two zero two as my friend cited the prosecutor actually affirmatively equates setting up the meetings with official action now there's a little bit more evidence in the record but not much the meeting was the prime evidence to show the existence of an agreement and the government consistently allied at this point throughout the trial they they sort of glossed over the fact that he needed to agree to commit official acts and the primary circumstantial evidence from which one could infer the existence of this necessary agreement was the arranging of the meetings he talked about the donald the say that you can make as evidence of a larger plot that is true first of all they did say that it was an official act second as your honor pointed out that's an exceedingly subtle distinction and third of all nothing in the donald remotely suggests that if this is the key if not the sole piece of that it's it's pretty close to that that would suffice to sustain the conviction when you put together when you put together search not just one of these things when you put together the errant instruction the very questionable and not not willfully question arguments that the government made summation that turned out to be not entirely accurate in light of mcdonnell and then the nature of the proof which primarily focused on the meeting you have a real problem under the case of their own i don't want to have to show us appreciate your view you're emphasizing the meetings in order to get to show arabs but in order to get plainer don't you have to persuade us that a properly instructed jury one that said meetings aren't enough wouldn't would likely not have convicted him with the money evidence before the area is not your burden reasonable possibility or reasonable probability it is my burden and when you break down what the evidence is that they emphasized in the summation the meeting was the prime part of it they also said as my friend pointed out that i think that meeting the meeting two of the arranging was more important to the jury then the money up with respect to that that that's the quid on the quo side the meeting was what smith agreed to do was clearly the most important evidence to show that he entered into a corrupt agreement i mean the money is the quid this is on the  he says i can show him where in the budget and how to do it is no suggestion in that statement no necessary suggestion and judge could probably point to this as made a similar point in her order for bell for silver there's no suggestion that he was going to put the thumb on the scale with respect to whether that money should be allocated or at least a reasonable jury could so infer that all he was talking about is how to do it if carlucci chose to so and then the only other piece of evidence that they cited in th summation was that later on march twenty first a smith said well i can find an off budget way to do it and there's really very little explanation of what it's about so those are the only three pieces of evidence that they cited and any place clear reliance on meeting so i properly submit to the court that the executive committee has oversight over any proposed selection honor judge lynch that talked about a corrupt new york state legislature however the policies excuse me the the checks that are in place do not create if i do show you obligation what goes on in the real world in terms of a fight to sherry obligation i submit is different from what went on  i submit that that significant because when one it compares marciano from the facts of this case they're completely different and that is the basis of my arguments before your honest thank you if you will reserve decision on this case