cases should be charged and tried in the wake of the supreme court's decision in mcdonnell it was clear after macdonald that the conduct charged in the indictment in this case was not a crime because the alleged quid pro quo agreement did not involve any valid official acts rather than seeking a superseding indictment however the government simply pursued a different theory a trial or edging only that appellant made payments with an intent to influence  public official that constructive amendment of the indictment was invalid but the district court compound it its error in allowing this case to proceed when it dispensed with the requirement of a quid pro quo from the jur instructions and it gutted appellants defense by preventing him from presenting evidence concerning his intent in making the donations at issue and also evidence concerning the motivation of the government's star witness what across a second before we get too deep has a second circuit effectively decided the case i know doesn't bind us but had they effectively decided the issue in this case that's the boylan case no i don't think so and this is on the obviously there are lots of six six six as they are in all of the other public corruption statutes indeed the government has taken that position as we indicated when its auditor instructions in the scholars case and i would respectfully submit that the best exposition on this issue is the jennings case from the fo which talks about this issue in great detail which sets out the history of the enactment of section six six x and i would just note to make the affirmative argument for a sentence or two that the reason why we think that official action be required is first because it would be anomalous for section unlike all of the other public corruption statutes to admit such a requirement in light of the concerns expressed by the supreme court and skilling about chilling otherwise permissible conduct and second because if you look at the history of the enactment of section six six six i don't think that congress and not using the words official act intended to emit that requirement where what you're talking about is bribery of public officials section six six six is somewhat broader because it extends to payments not only to public officials but also to certain private officials as this court's decision and read sick and decades and so i think for that reason congress did not specify an official x requirement but we think that that is in fact a requirement and this goes to two of our sub arguments what would be the textual basis for such a requirement well judge col and i think first of all there is the argument as there was with the honest services statute in scaling that withstanding the fact that the honest services statute does not have an official x requirement there are concerns about the vagueness of a statute that does not contain such a requirement in light of the undersea underlying concern about showing permissible activity viz a viz government officials and second and then you think you would be unconstitutional to require or not read in the six x six and i think so but i also think that section six six six intends to capture traditional bribery and potentially traditional gratuities as well though that's an open question and as a for circuit lays out and great detail in the jennings case if you look at the traditional requirement of bribery it is that the you have a quid pro quo that you have the offering of money in return for an official act and again i think that to the extent that there is not a statutory reference to official act stretch cotton it's because the statute in the words of the statute refers to offering to give something of value to any person with an intent to influence or reward an agent of an organisation or of a state local or indian tribal or tribal government or any agency of their of and so therefore you know the official acts requirement obviously only would apply to those individuals who are in fact officials so again i don't think the congress is a mission was designed in any way to dispense with that and the reason why this is significant is that it goes both to argument concerning the constructive amendment and to our argument concerning the instructions and if i can say just a word about the instructions and i want to make sure to cover argument on constructive amendments because that is our argument for outright reversal on the instructions here the district court refused to give the quid pro quo instruction that both we and the government requested and that the model instructions from this circuit seem to contemplate and with regard to the federal funds bribery count the sections six six six count in the travel act count the district court simply dispense with any requirement of an official act all together so if for sure  district court didn't give any instruction requiring a quid pro quo why what does the record show as to why the district court declined to give the the model instruction on quid pro quo or the in exchange for life so the record doesn't really indicate the district court's thinking on that i think with regard to section six six six the district court seemed to take the more expansive and textualist view that official acts weren't required under any of the statutes at all and i think that that's why they say any statute i'm sorry to interrupt but either six six six or the honest services yes that's harassment and as i said to judge cotton you know the the whole point of the supreme court's decision in skilling of course was a a concern about vagueness and a particular concern about showing otherwise permissible activity between citizens and their elected officials and that is also the reason why the failure to g the quid pro quo instruction was so troubling here it allowed the jury to convict and indeed it allowed the government to argue for a conviction based on a mere intent to influence a public official on the sort of generalize theory that mr sule could be convicted if he viewed the public official at issue as an insurance policy and the concern about that is precisely the concern that the supreme court justice scalia noted in the opinion in sun diamond namely the concern about taking garden variety activity you know a group of farmers in justice scalia's example  who you know take out to watch the secretary of agriculture knowing that there are various things that the farmers would like the secretary of agriculture to do a quid pro quo requirement a jury can return a conviction for that sort of conduct and of course our whole defense in this case was that first mr sewell intended to give this money to the church for charitable purposes he did not intend for this money to go to mr jones the a state official in question and th second to the extent that mr sewell had an intent to influence mr jones that was the ordinary intent of any citizen who has matters before a public official for that public official to take favorable action sun diamond does have language defining defining that in intent to influence is part of that paragraph trying to decide to define what in exchange for means your position is that that's not accurate and that's what law has somehow changed since then no i think that judge kelley i think there's a little bit of ambiguity in justice scalia's opinion in sun diamond about where the quid pro quo requirement is located i think that requirement really has to be located in the separate requirement that the defendant act corruptly with a corrupt intent and not in the separate requirement that you have an intent to influence and i think again the four circuits decision in jennings i think this out as clearly as anything that i've seen i think there has been some understandable confusion and this is reflected to some extent in some of this court's other model jury instructions that seems to equate those two requirements but it's quite clear from the text of section two one in particular that these are separate state of mind requirements and that the criminal intent is really the requirement of a corrupt and tat again because the intent to influence an official action in and of itself is not criminal that is an intent that many ordinary citizens half so you know again i think that that's probably where the district court went wrong here and i think it really matters in this case given the government's theory and given the state of the evidence i think this is a quite different case if the government bore the burden of having to show that mr sewell in fact intended to offer something of value in exchange for particular official acts given the obvious deficiencies in the government's case let me be sure i understand what you're saying because in sun diamond justice scalia has a sentence that says bribery requires the intent to influence an  that is not correct really again for the reasons that the fourth circuit says to say that that flows from the intent to influence requirement i think it really does clo from the term corruptly which is what conveys the requirement of that exchange in other words judgment and i think you have to prove both of those things and i think that the government recognizes much when it submitted its model its proposed instructions that contain such a requirement now i want to say one last thing on this and i do want to circle back to the constructive amendment argument i think that the government  attempts to kind of resuscitate the judge's instructions by pointing to the fact that on i believe page twenty one of the a dent there is a conclusory sent it concludes that concluding sentence at the end of the instruction on official acts to the effect that the jury may consider all of the evidence in determining whether or not there was an exchange but that instruction that sentence did not in any way purport to lay out the elements of the offense that was simply a procedural instruction that was an instruction that merely told the jury that it should consider all the evidence and i think even if you had a jury of twelve sophisticated lawyers never mind a jury of twelve laypeople they would not have realized from that sentence alone that in exchange is in fact an element if you like a couple of pages earlier at the instruction on the scheme to defraud which is really the relevant element that is where both sides proposed the quid pro quo instruction and those instructions conspicuously do not require that element now all of this is i think also relevant to the argument concerning the constructive amendment and i do want to say a little bit about that because i think that there is you know perhaps some confusion as a result of the way the government as presented to us the government attempts to suggest that to the extent that we're relying on these repeated allegations involving an agreement to look into various issues that those were somehow not essential allegations in the indictment in fact those are really the critical allegations if you look at the section of the indictment intitled official acts and if you look at each of the five categories of official acts that are in play here that is that allegation is contained in the ultimate paragraph of nearly all there is one exception of the various issues and the government attempts to say that well the reason that that allegation was in there was simply because we had a conspiracy count and that allegation was somehow limited to the conspiracy count but i simply don't think that that's a fair construction of the indictment to be sure all of the factual allegations in the speaking indictment for contained under count one under the conspiracy had but they were all incorporated in the later accounts as well and there's a reason i would submit why the government charge the case in this fashion it was because this was a case where there is dispute that jones in fact did not take any official acts and so the government i think in an understandable effort to overcome the implausibility of a theory under which mr sewell would repeatedly pay money and return for nothing attempted in the indictment to suggest that mr sewell made payments in return for this agreement merely to look into the issues it does isn't the alan if the allegation were that i asked him to look into it your argument may have carry more weight but here he's asking for something else right he's asking for an official act isn't that a fair reading of the indictment i think that there is no doubt that there are allegations to that effect prior to the allegations concerning the agreement but the allegations concerning the agreement judge kelly really do narrow the government's factual theory they narrow it to a theory in which this agreement is somehow central and if you look at the evidence at trial you will see that the defense went to great lengths to defeat the allegations concerning the existence of an agreement and it only really became clear through the course of the presentation of the government's case that the government was attempting to move away from that of course it's important to remember the timing of all this mcdonald did come out prior to the trial there was a motion to dismiss and indeed this issue had been raised even before mcdonald but the defense of course relied on mcdonnell after it came down and the government had ample opportunity to fix this problem it wasn't as if this was somehow a surprise the government could simply have gone back and attempted to obtain a superseding indictment and what what what would how would that indictment charge have looked in your mind based on what the evidence was that came out at trial well i think that the government would have had to obviously omit all of these allegations concerning an agreement and attempt to reframe its claims in terms of an intent and the requisite intent and it's not entirely clear to me what the government could have done with the conspiracy count the conspiracy of course requires an agreement a different kind of an agreement agreement to violate all of the various public corruption laws but instead the government chose to roll the dice not the honest services what would that tell you what that would look like in your mind had they gone back and amended so we're not disputing that the indictment you know in various points sets out you know the statue three elements of the various offenses but at a minimum those counts would have needed not to rely on this factual theory concerning an agreement that's really the fog that we're identifying here and you know i think it's established a lot that where the facts alleged in the indictment go to the essential elements of the offense where the government alters the facts pertinent to those essential elements at trial that's a constructive amendment this court has said so as recently as a few days ago in the macdill case i think that's in a stablish formulation for a constructive indictment and of course where you have a constructive indictment a constructive amendment and where you have a constructive amendment that gives rise to structural err i do think that this argument that's an open question in the circuit i think with its structure and not well i don't think the question of whether a constructive amendment constitutes structural error is an open question of course there's a great deal of ambiguity about  where exactly the line falls between a constructive amendment and a variance you know those are really just labels we'll check that yeah whether it's an open question mitt there is a question in the briefs about charge i think that it can it is altering let me use the court's formulation and then explain why it's satisfied here this court has said i think this dates back to the big no decision that an indictment is constructively amended where essential elements of the offense set forth in indictment are altered and i think that this court's cases like the cases of other circuits make clear that it's not just about how the government in the indictment states the l i think it's an established principle that where the facts relevant to the elements are changed sufficiently significantly at trial that that's a constructive amendment and judge constructive amendment invariants are just labels that courts apply to distinguish between those sorts of minor errors that require a showing of prejudice and those sorts of significant errors that require an outright reversal in other words that are structural now i do want to say how this relates because i know that there are a lot of issues floating around in this case i do think as i indicated earlier that the constructive amendment issue goes hand in glove with the instructional air because it's not simply that the government pursued a different theory at trial on which we had no notice namely a theory that did not require the existence of an agreement it's that the government was able to argue simply that if mr sewell gave money something of value with an intent to influence a public official without the additional requirement of a qui pro quo that would be sufficient for a conviction and that's where the district court's instructional error comes in so you know that i say that just to sort of underscore that there's a relationship between the constructive amendment argument and the instructional air at a minimum if you agree that the district court's inexplicable dispensing with that vital requirement in the instructions was erroneous that a new trial is therefore choir here and i really don't think that the government can argue given the difficulties that the government had with the facts here that the failure to give a quid pro quo instruction was somehow harmless on this record you know i'm a few minutes behind you you said you like the judeans case right from the fourth circuit yes that's current it has a sentence that says the qui requirement is satisfied so long as the evidence shows a course of conduct to fail gift flowing to a public official who chain for a pattern of fish will activities favor of the donor isn't that enough here well you've got to have the in exchange for in the instruction and you know to be sure there's no magic words requirement there's no requirement that the instruction somehow use the words quid pro quo but that concept of a specific intent to give something of value in exchange for the official act is critically important there has to be some ne know first of all i would focus on the exclusion of evidence that really went to the motive of what turned out to be the government's really sole materially helpful witness philip carter in testifying against appellant what the district court did here was really two fold and not withstanding the government's effort to sow confusion on this score i think there can be no doubt that the district court excluded evidence in two respects first it excluded evidence that the government in fact agreed not to prosecute carter were committing election fraud on fourteen other occasions and second at that carter was given a sentence reduction for his cooperation on the only count of election fraud to which he pleaded guilty as a result of those exclusions which  not only occurred in limon a but also occurred during the testimony of the government's first witness agent philip spann how are the the defense was only able to point to the bare facts th carter had in fact pleaded guilty to one count of election fraud and this court's cases make clear and i would rely primarily on this court's decision in the wally case that evidence of additional criminal conduct covered by a non prosecution agreement is relevant to show bias because in the work of court so in words quote the witness is motivation likely depends on the magnitude of the benefit that he expects to receive for cooperating both saying the only thing they were able to show is that he pleaded guilty to one count yes we had a will to show that he was seeking a sentence reduction so we were up to be released immediately after the trial yes and i think you're referring to the exchange that took place around about page four twelve of the transcript and that related to his conviction for the conduct in this case so in other words it's important to keep in mind he was he pleaded guilty of the one count of election fraud and he also pleaded guilty to one count of public corruption in connection with this case and we were able to elicit testimony that he was hoping for a sentence reduction in that case as a result of his cooperation here but we were not able to expose the size of the benefit that he received the magnitude of that benefit from the earlier alexion fraud deal and of course that was the deal that took place in the wake in the immediate aftermath of his actual cooperation with the government's investigation and so again we submit that that was plainly erroneous and given the fact that carter was really the central witness in the case that that was plainly prejudicial and indeed as we note in our brief the district court acknowledged that the government was in his own words taking a chance in pressing this issue and that he might be wrong on the issue when government to ask him whether he was whether the government agreed to forego certain other charges sorry you wanted to ask carter whether the government had agreed to forego certain other charge well we actually wanted to present to be specific in spain are assessed money we wanted to present evidence that the government believed that carter had in fact committed election fraud on these fourteen other occasions if that six o eight b situation is and i mean you're trying to introduce experience a given in syria an agent about what carter did i thought but it's one thing to say you want to ask carter isn't it true that you weren't not in connection with the earlier election fraud investigation and i would know judge collin that was not in the heart of the police grima in this case or part of any agreement in this case well that he wasn't charged in an earlier there was the earlier plea agreement in the election fraud case which i think did in which the government decided not to prosecute and there was a similar provision in this case from cross examining him about the earlier yes we believe that we were as a result of judge wilson's earlier ruling and i  that the government really took advantage of this when it proceeded in closing to paint carter as you know a hard worker who had been taken advantage of by sewell's so the government really exploited this exclusion what about same sex life here because this is  these were election fraud convictions and so it goes to character for truthfulness judge collen and so even if you thought the rule six away it would otherwise be triggered you know a conviction for fraud i think is a period of magic example of a conviction that falls within that category i see my time either action or i'll be very quick how many times to your knowledge did they say cross when they talk to carter agreed not to prosecute you for crimes in the plural that the government knew about transcript the jury heard that the government agreed not to prosecute her for crimes plural you know the plural word as opposed to a singular or yeah i mean i haven't searched the transcript was it often or not at all well to the extent of that happened it would have been in connection with in other words not in connection with the earlier election fraud i want to say just a word and i realize i'm already into my rebuttal time but i want to say just a word about the the other exclusion the exclusion of the evidence concerning mr sewell's charitable giving to other christian causes in our view that simply goes to the element of intent and mr sewell if he had been able to present the evidence of the extensive contributions of his own and of his family would have been able to establish that his intent here was an intent to benefit the west memphis church as a christian cause that was critically important because the jury may well have wondered why mr sewell a white man was making contributions to a predominantly african american church in a place where he did not live when you couldn't prove that he gave to seventy different charities and churches and all this kind of stuff and they were there was an they were not able to quantify the fact that he gave one point four million dollars to a variety of different christian causes that was the defend these a lot though that was the defense is exhibit one and so while that they were able to present generic evidence of his giving they were able to present evidence of the pattern of giving and what about the general reputation for giving a christian cause there's a lot of testimony on that apparently there is reference there certainly reference of the to the fact that was a christian man who supported christian causes but again if mr sewell had been able to quantify this and point specifically to evidence that he gave money to other christian churches that might have answered the jury's very first substantive question which was whether or not mr sewell had in fact given money to other churches and again the government exploited this when it said that mr sewell's generosity quote depended on what would come back to  companies and schools ultimate pocket this evidence and exhibit one would have belied that but it was nevertheless excluded therefore prejudicial and i would like to reserve whatever remains of my time for a bottle to her well you may well hear now from counsel for the government you just called and yes john keller on behalf of the government please the court i want to start with the jury instructions here because as counsel noted the defendant is not entitled to a particularly worded instruction that's clear black letter law  circuit and in every circuit and there is nothing sacrosanct about the word exchange in bribery in structure so the omission of the phrase in exchange for is not a problem with these instructions where the concept of a corrupt intent was adequately stated in the jury instructions by the language of intending to influence jones or intending to induce an official act putting that aside for a counsel also noted it's actually a page twenty of the jury instructions in the official act instruction which the court specifically incorporated into counts two three and four the honest services fraud counts the court require that the jury find an exchange of money for official acts in order to convict sule appellant argues that that was a permissive statement because the court started that sentence with you may consider all of the evidence in this case in order to determine whether sewell intended an exchange of money for official acts but the permissive nature of the beginning of that sentence was limited to the universe of evidence that the jury could recall could consider because of course as always the jury can consider some evidence or or reject other evidence and only be saying it's permissive you saying it's a procedural instruction tells the jury about what it may consider but it isn't the sort of instruction that would cause the jury to think that it's defining an element of the cry i think that was the argument this morning your i just call it and that was that was the are going this morning that is not the argument in the briefs what do you say to the argument this morning the argument th was a procedural instruction i think is belied by the fact that the beginning of that instruction says counts two three and four require you to find an official act and then goes through and defines official lag in accordance with the language of mcdonnell and ends that requirement that the jury find an official act with the statement that the jury is required to find an exchange of money for official act when you put something like that in the verdict director it's what i call the verdict director that's page seventeen right closing instruction fourteen why would you put something like that in the director itself tell me if i don't get what your argument is judge ben you know as to the specific location where where that sentence should have been inserted work could have been sorted in other locations if this court could could disagree with the way that the judge formulated the structure of the instructions but the content is there in the court is required to consider the instructions as a whole and so the fact that it was here in this instruction the official act instruction i think sufficiently require the jury to find this this exchange that that appellant is so concerned  with further of course the judges in turn official act is is it in the i'm sorry i'm trying to skim it now is it in the verdict director the term official act at all i'm sorry i don't i don't know exactly what i will make for how as the verdict director i get word searches but i don't think i need to be referring to an instruction that lists the one that lists the ins the elements of honest service is fraud your honor and fourteen is the one i'm looking at tell me if i'm looking at the wrong one fourteen is  i think that's the brian it's the bribery you have for sure so you're not going to bribe or you're framed on a service yes the instructions on a services fraud which are i believe it pages seventeen eighteen and nineteen of the jury instructions did require that the jury find official at the language of official act is included in those instructions the only the only substantive elements from which official act was omitted was in the jury instruction on six hundred sixty six which is that page twenty one that's fourteen official act and that mcdonnell's holding with regard to on a service is fraud does not need to constitutionally be extended to sixty six because of the language of that statute and that's precisely what the second circuit is held in boyland as we know in our twenty eight j letter but then why are you trying to say it's in fifty c why i'm confused are you trying to say official act is in fifteen and that's enough i was i was pointing out that the language of exchange was incorporated into the honest services fraud counts ok at page twenty of the instructions through the official act instruction to be sure you're saying the official act of the struction  applicable to the services sounds but not to the sick sick sick that's absolutely correct and and the reason why official act did not need to be included in the sixty six instruction is because unlike the very general language of honest services fraud thirteen forty six says something like for the purposes of these statutes the money and property includes the intangible right to honest services that's the language that the court was dealing with in mcdon here section sixty six is much more specific the language requires that there be something corruptly given with the intent to influence business transaction or series of transactions  in in the realm of the of the public officials responsibilities who is who is accepting the bribe and so there's there's the language of sixty six narrows the universe of quote unquote official action that the statute could address in the first place without needing the court to import the requirement of official act into that statute it's already narrowed by the language of business transaction or series of transactions and as a poet points out jennings has further narrowed six sixty six by requiring that the court include a description of what that business transaction or series of transactions is and that description was included in this case in the jury instructions the court specifically described the business transaction or series of transactions as the depart of human services oversight of the defendant's businesses and its reimbursement of medicaid billing for the defendant's businesses and so with that level of specificity in the jury instructions the court's concerns about vagueness in mcdonnell under the historical interpretation of official act is just not present  with respect to that point also address of the other point raised here this morning on corrupt intent again counsel sides jennings for the promise that this exchange for language is necessary because simply informing the jury that they had to find an intent to influence a business transaction or series of transactions does not fully capture the corrupt intent requirement but what jennings said is that  had nothing to do with the language of intent to influence or in exchange for in fact jennings used the language in intent to influence in the opinion it in describing the quid pro quo and corrupt intent what jenning said is you have to specifically  define what the individual intends to influence and the problem in jennings was that there was no description of what the defendant in that case intended influence here as i just noted the instructions d point the jury to what the defendant intended to influence and that was medicaid reimbursements flowing from the department of human services to his businesses and their own and the department of human services oversight of his businesses and so the concerns raised in jennings about ensuring that corrupt intent was sufficiently stated in the jury instructions was was adequately addressed by the jury instructions here you are the address the claim of destructive amendment agreement a corrupt agreement between appellant and steve jones a public official but what the circuit requires is a fair reading of the indictment and that's united states versus soules spelled differently as c w e l l five thirteen f thirty eight twenty that case requires that if the indictment is sufficient under any reasonable construction then it should be upheld and here the only reasonable construction when you look at the actual allegations in the indictment is that the indictment alleged that appellant intended to influence jones in the performance of official acts the language of agreement was included in the conspiracy allegations in the in the very first pages of the indictment at pages three and four that that appellant and jones agreed to exchange or that jones agreed to exchange official acts for for payments but the actual substantive descriptions of the official acts that were requested come at page at page twenty one of the indictment in paragraphs one forty nine one fifty one fifty one one fifty two and one fifty three and as judge mcdonald so the idea that the that the indictment only alleged an agreement and that the evidence at trial proved intent to influence is belied by the very allegations that the language of the indictment i would also say that the evidence at trial was not inconsistent with an agreement the government put on evidence that these individuals talked on the phone in recorded conversations the government admitted the recorded conversations in which these individuals discussed their understanding discuss the official acts that appellant was requesting and discuss the payment that jones would be receiving and discuss their meetings to to address these issues the evidence include a video of these three individuals appellant the middle man and jones sitting down at a restaurant together to discuss opponents requests for official acts and on that video appealing to seem to slide a bribe check to the middle man philip carter that the jury may have rejected the agreement in terms of the conspiracy and acquitted on the conspiracy count because of jones's inconsistent testimony at trial but there was evidence of an agreement of an understanding put forth at trial there was surprise there was no change in in strategy or in theory by the government at trial and so the idea that certainly there was no constructive amendment because no one central element of the offen was was modified or changed to trial and agreement is not an essential element of any of the offenses of conviction on a service as fraud sixty six or travel act that that is a simple fact an agreement is not an essential element of any of those crimes and so there is no construct of a moment here i'm really talking about whether there was even a variance and there was not a variance because the facts that were alleged in the indictment were facts that the government presented at trial  including jones's response to appellants request that he'd look into the matter that he'd look into it that in the indictment and in the testimony at trial was clearly jones's  expressing his agreement to look into these or to take official acts and so the fact that that agreement may have been superficial and that jones actually had no subjective intent to carry out this agreement is immaterial for the purpose of defendant's guilt because defendant's guilt rests solely upon his intent and his intent was sufficiently alleged by the allegations in the indictment and by the evidence at trial carter was cross examined as to on day three volume three of the trial transcript at page's three forty four through three forty seven carter was cross examined as to his desire to please the government as to the fact that he told the f b i he would help them get as many big fish as possible all he wanted to know is how the f b i wanted them fried blackened or grilled as to the fact that he used an expletive a as to the fact that he expected and hoped maybe not expected but hoped that in exchange for his testimony he would be able to walk out of the courtroom a free man after testifying in this case what exactly were you carter's prior vote buying conviction facts such as the fact that he gave people an offer chicken dinners and cheap vodka and whiskey to absentee voters in order to get them to give that give him their absentee ballots or fill out their ballots in a certain way those facts underlying the conviction which are clearly precluded under six o nine and six await word the fact that the government sought to preclude its motion women say that the government's motion limon never references charging concessions such as because that was part of the deal for him for carter was both of those convictions were part of the deal carter had to separate polygamists he pled to vote buying early on but but at the time he pled to vote buying the government was already investigating this case and so carter's cooperation in this case was and was a consideration in the plea agreement for that earlier vote line case so was there anything that the district court ordered that precluded the defense from eliciting from carter that he received charging concessions in the vote by case absolutely not the only could have asked him that he could ask him about how he committed x number of other voting fraud violations and wasn't charged with them yes that was yesterday when they could have on cross examination asked carter whether he understood that he could have been charged with twelve counts of vote buying and was only charged with one they could have asked carter about the fact that he received a fifty percent reduction in his sentence in that earlier plea in that earlier case the vote lying case and there is no ruling in the record no ruling in the record that precluded them from asking those questions the only ruling that gets close is the one that that counsel referenced this morning in his reference in their brief where they sought to elicit the charging concession from the f agent during trial and the judge ruled to sustain the government's objection at sidebar because the government was unclear exactly where that testimony was going and objected to any underlying facts coming in about the conviction the government sustain the objection did not allow them to ask the case agent about those about those charges actions about the fact that carter could have been charged with twelve or thirteen counts i thought of fourteen or fifteen or fourteen counts of vote buying in addition to the first or only you would ask carter that that's exactly that's exactly right the but i think what he's saying is they wanted to get this evidence of the facts in in addition to the concessions to show charging concessions should have come in to show his bias and i don't and i hear you saying there is nothing that prevented the charging sessions from coming in on cross examination of carter that's that is accurate or not to ask him or not we don't have to check they did they did not ask him but what about the facts the first point whether they should have been allowed to get into the facts the facts for a under six away be or a discretionary decision by the trial judge here the judge decided that the facts underlying the conviction such as the fact that he was offering people chicken dinners and cheap liquor for their votes was was not relevant or was were prejudicial than probative in in this case and that that is clearly a discretionary call by the about this kind of unrelated criminal conduct that carter engaged in that had that had no bearing on the criminal conduct at issue here about the charitable contributions i was the first response and again i know the court has addressed this to some extent this morning but is that appellant got in significant evidence of his charitable donations he got in evidence that he donated to made over seventy donations to the exact church at issue here the church the fifteenth street church of god in christ that he made over seventy donations to that church leading up to the charge bribe scheme in this case those are certainly the most relevant as to what his intent was in this case not what he and his family may have given to other charitable organizations including churches starting in two thousand and two nearly a decade before the crimes charged in this may certainly the note indicates that at least one juror was interested in this issue i think jurors are often interested in issues which may not be relevant and may not be admissible at trial here though the evidence actually showed that the defendant had made donations to other churches so at on day four volume four of the trial transcript at page six fifty four a witness named tina smith testified for the defense and this was a young woman who had been counseled had received mental health counseling at appellants one of appellants businesses the lords ranch she came in and testified as to her positive view of a and his reputation and she testified specifically that the defendant gave two other churches though that those were the words that came out of her mouth then appellant testified in his own defense on day five at pa seven fifteen of volume five of the transcript that he and his family gave to many ministries both in the country and outside the country and he referenced a specific ministry in l a that he remembered when he was a young child running around in that his father supported financially he also his mother also testified that same day and testified that there were a number of charitable organizations that they regularly donated to and so that evidence was in the record  not denied the opportunity to present that evidence now what what appellant wanted to introduce which is which is on the first page i believe as of his motion for new trial was a chart outlining two hundred fifty charitable minute donations made by him and his family members between two thousand and two and two thousand and fourteen totaling approximately one point four million dollars that evidence was irrelevant cumulative and it was certainly not an abus discretion for the court to preclude that evidence argument is that the indictment here again alleged a mere agreement to have jones consider engaging in official acts but again that is a mischaracterization of the indictments allegation indictment clearly alleged that appellant sought true action by jones and that's perhaps the best displayed at pages twenty two and twenty three of the indictment where a phone call appellant and his middle man philip carter a transcript of that call is included in the indictment that call was recorded when neither appellant nor carter knew that they were being recorded and in that call says to his middleman philip carter the d h s s which was the agency were jones was the number two the d h s s in northeast arkansas they give all their referrals to mid  this competitor company in outpatient and that needs to have a stop to it he says he says jones could put the stop to this because that's under his purview all he'd have to do is send out a memo or start telling his department heads don't do it anymore and he says in the beginning of the conversation he asked carter i wish you would ask him because he could put the stop to this without making it about us there is no clear allegation or evidence of appellants intent the nose conversations about the official acts that he was requesting when he didn't know he was being recorded and those conversations show clearly both in the allegations  indictment and the evidence that was presented at trial that appellant intended to influence jones in official acts that he was paying jones for action this is this semantic ploy by the appellant that the indictment only alleged an agreement for jones to consider official action is simply belied by the actual allegations in the indictment be honest services where do you think if you were to the jury and looking at the instruction where's the key point where they would have to find the in exchange for if we use that  phrase to answer your question the in exchange for is listed at page twenty of the instructions in the official act instruction at the bottom of the instructions so you think is that is that it your position that scuse me that's where it is well that is that is the place where exchange appears but it's my position it's the government's position that the the corrupt intent was sufficiently alleged in the  services fraud instructions where they say appellant sought pay jones to induce the performance of an official act this is so in your in your view that phrase eola g is the equivalent of in exchange for that's exactly right as long as official act was sufficiently defined which it was here a appellant does not dispute that as long as official that again the whole question of whether in exchange for is  with intent to influence really comes down to what comes after those words in exchange for what with intent to influence what and here the what is an official act an official act was properly defined in the jury instructions in accordance with mcdonnell now on the on the sixty six instruction official act is not included but what was included instead as i mentioned earlier is the language of the statute which is a business transaction or series of honest services count in the elements one two three four is it your position that in the first element saying that he made payments with the intent that mr jones would take official actions that that's essentially in exchange for that that's the language that sufficient absolutely absolutely and that is because it's not an official act it's official action is we have to define right the official act yes judge kelly so it is it is my position is the government's position that the jury instructions were only required the the jury instruction does not need to list the factual allegations that were listed in the indictment or the factual allegations that were presented at trial the jury instructions simply need to define official action or official act in a way required the jury the elements were that appellant paid jones with the intent to influence an official act or with the intent to induce official action and official action was defined in the language of a dollar something specific pending before the public official at the time that required a decision or action and that the and that that the public official actually took action on that on that pending matter that was before him that was all set out in the in the official act instructions so that there was no additional factual recitation needed in the in the thirteen forty six instruction and in fact the pattern instructions don't require any detailed factual recitation of what the official act rebuttal thank you judge cotton i have three points on or about so all all talk relatively fast first with regard to the instructional issue the problem here is with the instruction the judge benton refer to as the verdict director's number fourteen excuse me just second we probably should start the clock so go ahead in this instruction number fourteen the instruction on a services fraud was fatally flawed in the best evidence of this is the government's proposed instruction on that issue this is docket number ninety one at page nineteen where the government says that the phrase scheme to defraud means any plan of action intended to deceive another out of the right to honest services quote where a bribe is paid in exchange for official action or an official act and then it proceeds repeatedly to refer to an exchange in the  take official action or an official act that is the point at which an exchange should have been required and yet the judge omitted that the sole remaining question is whether you can somehow cleave off that flaw with the instruction on a services fraud from the federal funds bribery count section six six six and on that issue i would just make two quick points first the government does not acknowledge this court's decision in zimmerman which at five hundred nine f third nine twenty seven says quote section six six si prohibits both the acceptance of bribes and the acceptance of gratuities intended to be a bonus for taking official action are you sure that official action just doesn't mean anything under the statute and doesn't really mean an official act is kind of a shorthand well i would refer to the four circuits decision in jennings again and there's been a lot of back and forth on that but i would really urge the court to look at jennings because jennings locates this notion you know not just in the term official act what we're talking about is the requisite exchange and section six six six does judge call and get back to the text of the statute it does require a corrupt intent just like section two zero one does and to the extent that section six six six was designed to reach bribery in the context of a public official what that has to mean is that you give something  value in return for an official act of some sort namely an act by the official and so we believe that the district court should have given the same instruction with regard to section six six six as well and that that instruction therefore cannot stand second on the evidentiary issues i would simply submit that mr keller is incorrect about what the district court actually did and i would urge this court to look at the exchange beginning at page one eighty four of the transcript and running to page one ninety seven and this was in the context of agents be that the district court ruling ultimately obviously reached subsequent cross examination of carter as well well hold on i know you want to make one more point i'll let you do that but did you try to cross examine carter about charges that were foregone in the first police green i think the district court's ruling by page one ninety seven plainly made clear that the district court thought that its earlier in limon a ruling reached this as well mr kerry unambiguously sought to present evidence that  mr carter was involved in election fraud fourteen to fifteen times page one eighty four on page one eighty five he tried to bring in the fact that mr carter got his sentence reduced for cooperation we prematurely strangely the government denied that that had actually happened but then the district court of page one eighty eight wonders whether that evidence is relevant and then proceeds to sentences later to sustain the objection and if i could very quickly make my third point this was a very unusual case for the simple reason that jones conceivably took no official acts and indeed did not receive most of the payments that mr sewell made to the west memphis church and judge wilson really did make a series of idiosyncratic rulings both on the instructions and on the evidence than our view prevented mr sewell from fully presenting his defense so at a minimum we think that this judgment ought to be vacated the case remanded for a new trial and of course we think that ultimately because of the constructive amendment the judgment should be reversed thank you very well thank you to both counsel for your arguments the case is submitted the court will deliberate and file an opinion in due course thank you very much please call in