keeping track of this jumping up for two minutes or four minutes or whatever however she well and and we will be looking for the lights i think on some of the shorter citations when it's clear from the pleadings and from the governing law that the pennsylvania system for traffic regulation is largely regulatory the ticket holders are presumed not guilty throughout the entire process let me ask you today to look at the allegations allege that one of the key problems in this case is that there is not a single allegation of in fact kill the hypothetical that your honor posits is really very simple  such facts were included in india indictment then there would be at least an allegation of in fact guilt i'm not entirely certain sir that even under that scenario until there's an adjudication that there could be a vested property interest  here is why even if you are in the defendant in this case and you are in fact guilty and you tell your lawyer you're in fact guilty and you then ask that the process be manipulated because for whatever reason you wish to avoid you know the consequences in this case the government alleged consequences some future fine you wish to avoid that consequence of being guilty as the statute provides i would imagine it is to start i'm i haven't really thought of it in that sense i guess it certainly is the commencement of a legal proceeding so i feel as though i'm being obliged to consider this sufficiency of the pleading here i mean i could go outside the record as the government did in his brief in no shiftiness talk about how there was an adjudication of not guilty for all of these charges and so forth and so on but that wouldn't be an appropriate consideration the consideration here is whether the dollars the city the fines and costs that the government says or that that the financial consequences of the education process is property you know if you  just an it was a circumvention of a bidding process so that's exactly what's happening here there's an allegation of circumvention of a process however that the right to the property does not work is not created until the end of the process that's that and that is it least in my humble view readily apparent from the pleading the government essentially acknowledges that in the way it please it talks about a process it just speaking on behalf of all six of the appellant's because all of them joined in that motion to dismiss the motion was denied on the same grounds for everyone but then to reserve the issue on guilty fraud counts so we're on the premise the mistress a drone that we will prevail a mistress the drones argument for the protesters of what i'm going to talk about now over yes the question i have is when the jury has gone through the i would pose the question just the way your honor did why are they how can they be prejudiced if they were acquitted of those very charges so what happened to trial is everybody is acquitted of all the conspiracy and fraud counts and convicted of false statements and perjury counts and this court has a four part test for determining whether there's prejudicial still over with respect to counts that should have been dismissed and that's very much the starting point i agree with you but when you analyze it it really comes out the same and that is the four point test devised in political applied by this court in cross and most more recently in right well certainly not all of them and i think it's fair to say not now we're getting somewhere unless you are talking to these are somewhere in the territory but i will say there is not a federal district judge alive and not judge stengel for sure who would have tolerated a twenty five or twenty eight day trial well i had many trials of particular traffic tickets with the case agent testifying over and over again as a summary witness because the case was so complex and multi layered with dozens and dozens of witnesses with hundreds and hundreds of exhibits to prove whether four defendants on one two or a half dozen occasions depending on which one you're talking about made either false statements before the false declarations before the grand jury or false statement to an f b i agent on the general on  particular questions that arise out of the general circumstances which were the scheme as your honour's pointed out before it would not have unnecessary and would not have been tolerated to present a trial similar to this one and that's  least three of the four points of the pollute test go to that question so the first question is whether the charges are intertwined well in a way of the charges are intertwined but when you look at the specific specifics of what it takes to prove perjury or false statement and miss mathewson will be addressing that in detail in a moment you can see that they are only slightly intertwined not intertwined at the level of elements second and more important the was the evidence the second separate or the same the evidence needed to prove perjury to prove the particular false statements was this question was this answer to that question false by younger reasonable doubt would not have taken the whole proof of schem evidence but here is no mathematical test would never have been admitted and a hypothetical separate perjury trial and if i may there's one other point and then i'll sit down which it is now before you get the ok really i'm really  trial on the perjury counts and they are entitled each to a separate trial because in the perjury only case there would be no glue under rule he to permit joinder of defendants so their trials would be entirely different each would be on trial for his or her own false statements and it would be a new trial at which the judge would exercise discretion under rule four zero three to exclude waste of time cumulative and confusing evidence of a larger scheme which was not necessary to prove the particular false statements or false declarations charge so against any other time so each of those separate trials that have to be  would be overage support of course there is no perjury trial charge at this at any of these hypothetical separate trials the there is no conspiracy i'm sorry there's no the government would have to show that the particular each particular statement alleged in each particular count was false and would the judge would have discretion about how much context under rule for a three to allow to show that and there is it is in will refer to these as perjury although they were technically charges under sixteen twenty three false declarations for the grand jury your honour's a perjury conviction fails unless there is proof beyond a reasonable doubt that both the witness understood the witness understood the question in a way that made his answer both subjectively knowingly false and objectively false the premise of the government's position on both spillover and with respect to perjury is each of these questions asked the witness essentially did you engage in take it fixing and in the government's view because they did engage in ticket fixing each of the questions was answered falsely but that conglomeration of a theory is entirely in permissible in the perjury context the principles of the bronston case and this court's own president both applying bronston and separately from it agree that precise paragraphs thirty and thirty two attempts to define ticket fixing that definition is noteworthy for a number of reasons it starts with the term preferential treatment which it then defines with reference to another term consideration which then defines with reference to the term ticket fixing and then provides for defined actions which it then circles back to connect to preferential treatment for and this is a quote well connected individuals that was not available to the rest of the citizens me as your honor see in the indictment it was entirely possible for the prosecutors to formulate a specific question about particular actions for example find someone not guilty when they were guilty because you received a request on an index card as the record shows that's how these requests were transmitted the prosecutors understandably you're honest bear in mind piers that the grand jury testimony at issue took place only weeks after the initial search one of the prosecutors testified at trial or didn't testify but mentioned at trial that the government had not even known the word consideration for example at the time that i question my client miss tines in the grand jury the prosecutors were exploring a theory of mail fraud that is novel we say is invalid they say it's valid whether it's valid or invalid it was a novel theory that yes question so th to examine those that statement occurs only in cases the us vs long case for example in which the term is subject to differing interpretations but not what this court calls fundamentally ambiguous when the question is fundamentally ambiguous the failure to ask for clarification has no bearing under this court's jurisprudence to hold otherwise would flip the burden to the defendant to clarify the prosecutor's questions the prosecutor is the one that has the burden to clarify these questions and it's important to bear in mind here precisely what we came with a fundamentally ambiguous questions there was a reference to favorable treatment with respect to did you did anyone ask you for favorable treatment that term doesn't even suggest preference saying one group of live events over another but simply treating somebody favorably in court which is of course what doctors are asked to do all the time mr lowy was asked do you give special favors notably your honors it is highly significant that neither of those terms need their way into the indictment and they didn't make their way into the indictment because they are meaningless there is no way ryan is could this word be used absent could this word be used with mutual understanding by questioner and witness absent a definition or absent context now here the government goes immediately to contacts they can see that they never defined the term favorable treatment when your honour's look at the record your honour's will see that there was no definition before the grand jury and likewise they go directly to context for mr lowy they can see that they never defined the term special favors these witnesses had no notice sitting in that grand jury weeks after the initial search what this novel theory of mail fr because your honor the way that the burden to tell the truth works is the prosecutor is obligated to pin the witness down to the precise topic of questioning and that is from boston and it is it occurs in myriad cases your honor what would be the truth if a judge is asked has anyone asked you for favorable treatment i am presently asking this court for a favorable treatment reversal and judgment of acquittal for my client you i'm certainly not suggesting anything untoward but i am asking the court for a favorable disposition and when i judge is asked do you give favorable dispositions do you give favorable treatment naturally the answer to that is yes no his time said words that was not charged she was not charged with answering that question possibly in addition and it would be a due process alienation for this court to affirm the idea that she the way that the indictment charged that count seventy two falsity was referring back to the favorable treatment so the first question was were you asked for favorable treatment and the grand jury charges her answer was false in that she was asked for favorable treatment and then she said exactly which is also literally true your honor because there is no evidence of her having been asked for favorable treatment in those terms her answer your honor might appear nonsensical given that she had just spent time talking about her adjudicative process of course people asked her to find the not guilty that's what she does  it's both your honor it's about now there was no motion to dismiss the indictment on this basis for any of the appellant's but at this stage the evidence was insufficient for the trial jury to determine what these witnesses had in mind when they answered the question and speculation is prohibited we all but when the court assesses the mental state of these appellants the court has to look at the time of their grand jury testimony not what they later learned about the investigation they knew nothing if your honor looks at the record on  because the government keeps talking about the consistent questioning for example in the grand jury there are two points on that one it is forgive the term literally false as to miss times your honour's will see in my briefing in my reply brief the question came out of the blue after question about socialising with other traffic court judges do you give favor you asked for favorable treatment second in terms of the actual proof that the way that it unfolded there was in fact the only thing that the trial jury heard about the grand jury testimony was certain excerpts that were read into the record three pages of mr hines's testimony that essentially began almost immediately before the charge question as to lowy they had one page of his grand jury testimony so the government cannot rely on the context of the questioning to say they knew it because the trial jury didn't have that information from it and to turn briefly to the object question because each appellant who has a false declarations charge also has a false and objective falsity issue and it is in fact the only issue from all grow as i said as i started perjury requires both knowing paucity and objective falsity you can call objective falsity literal truth mr mulgrew for example points out that he was asked about calls in fact so was ms tines in the excerpt that your honor referenced although she wasn't charged with that excerpt there was no evidence about calls requesting consideration the only evidence was about index cards now it is not on the witness to say the prosecutor well i know what you're getting at and neither may the trial jury say i know what the prosecutor was getting at and much less made the trial jurors say i know that the witness knew what the prosecutor was getting at everybody thought at the end of the is the jury certainly thought that these questions were about to get fixing but there was nothing that gave notice to these witnesses later dependence now balance that the government was asking about this novel exactly what let me let me take that into pieces your honor one of course not what they are required to do is ask the witness precise questions that pin the witness down this isn't my language this is  witness down to the object of the inquiry the object of the inquiry may be for example the types of actions that the government eventually identified in the indictment did you receive an index card with  name on it and in response to that index card reach a more lenient outcome than the facts would have dictated that's a very specific and easy to ask question now the second point for your honour's consideration here is of course the prosecutors may have been exploring they didn't indict this case until eighteen months after they had question these witnesses in the grand jury they were exploring their legal theory and understandably we want grand juries to be able to ask broad questions because we want our investigating grand juries to get all of the information but that doesn't mean overshadowing policy consideration is that witnesses not be deterred from testifying if you have the suggestion that it's on the witness to clarify what the prosecutor is asking or it's on the witness to infer what the prosecutor was asking or as in mr motorist's case it's on the witness to say well you asked me about calls and there were no calls but let me tell you instead about the index cards that is a thousand percent contrary not only to bronson but to the public policy of encouraging people to come in and testify to the grand jury thank you and if i may i believe i have two minutes to talk specifically about i'll try to focus on things that i have not already covered first the ambiguity of the term favorable treatment and the fact you didn't give notice that it was asking about ticket fixing in particular i just want to point out rhonda that it actually applies to both counts because of the answer i gave earlier to judge fisher count seventy two actually incorporates by reference the use of favorable treatment it's not referred to the word leaders question that preceded that second on the objective falsity question when ms time said no not favorable treatment that is a literally truth statement under bronston and i refer the court to its to nellie decision where the answer to the question gave notice of the limitation that the witness was putting on it when ms time said not favorable treatment it was incumbent upon the prosecutor to ask her how do you use that term this isn't a case like long where the term is a term in common usage it is a case where favorable treatment gave no notice that they were talking about a novel theory of ticket fixing finally on the objective reference to the record which one could call the bronston issue literal truth or one could simply look at as the failure of proof beyond a reasonable doubt of falsity there is in fact testimony in the record that nobody gave mr heins paper because she had memory failure the government asked her judicial assistant to explain what she did with the index cards that were incoming requests for consideration she said she gave them to the court officer who was in the courtroom every single day and the judicial assistant also said nobody gave miss time's paper because of her memory problem the government never called that court officer there is no evidence in the record that those index cards made their way to ms times and that is fatal both to count seventy one and seventy two the government cherry picked by its own admission a few favor of all let's call them dispositions he says that worked out well and by their own admission they examined only cases in which consideration requests they  false declaration to the grand jury the only count on which he was convicted so again to reiterate what miss mathewson said the defense might well have had valid motions to dismiss these counts before trial they didn't make them into the amendments rule twel those that that question is by the courts so we are looking at it as a question of sufficiency of evidence could the jury of found beyond a reasonable doubt that the answer is given and it was too interesting way to go answers to questions not this not even continuous to one another in the grand jury testimony grand jury transcripts which were said to constitute a single false declaration mr mo group for the grand jury the first question how both questions  to me very simple literal truth truth question no evidence that the assistant had received any calls as telephone calls and in context calls cannot mean anything here other than telephone calls as so far as the record shows this answer it was entirely true the second question covered in the same count whether mcnasty ever conveyed to mr mo grew that anyone had asked her what she might do in a case to give  motorist special treatment not what the judge might do not what she might do in what she would tell the judge what she could do to help a sighted motorist get special treatment and again mr mulgrew said no and once again there was no evidence presented that any such request for special treatment was ever made to miss mcnasty that's the question and the answer is literally true it's not the precise question i'm sure that the prosecutor wished he had asked but is the question that they did ask and the answer they got cannot support a perjury conviction may please the court my client on behalf of michael lowery the defense of perjury in the grand jury conviction here can't be sustained simply because it was based upon a fundamentally ambiguous question that contained a fundamentally and big us phrase which in this instance was give out special favors the question it issue from the grand jury transcripts of which only one page was presented to the jury which gave no context to all of the questions and answers posed to my client by counsel for the government before there was a break in the action and counsel for the government mr zork took over the next part of the questioning it was for the first time at that point the question about giving out special favors whatever that term special favors might mean came about and the question was i'm just asking your testimony is you don't give out special favors is that right the in artful nature of the question the fact that it's leading the fact that it was compound are issues that the court looks to as well as the fact that it could have multiple meanings the answer of no in its literal form could be no that is not right i do give out special favors it could be no i disagree with the idea that i get out special favors or it could be no i never testified to anything previously in my grand jury testimony about special favors nor was i asked about special favors it when there's a fundamentally ambiguous question or phrase within that question as we have here the burden is on the government to ask  an end to follow up if there's a lack of clarity in the answer and the specific nature in the answer itself shows in essence that he didn't understand what was being asked the answer was no and then i treat everybody in that courtroom the same which was completely non responsive to the question that should lead the prosecutor to ask a follow up clarifying question which the prosecutor then did not do the prosecutor then moved on to another issue  question applies to him only his lawyer asked at trial for additional an additional question an answer from his grand jury testimony to be admitted into evidence invoking the rule of completeness which is federal rule of evidence one of six the government's objection was hearsay that objection was sustained and i have here to say two things it wasn't hearsay because went into you offer another question to provide context to show what you were thinking and what you meant i agree i agree it's not harmless because this is the sole count on which he was convicted this is the evidence which were shown that he did not have a guilty mens rea with respect to the one count of perjury that he was alleged to have given a willfully false answer to so in it's a right on the heart of the only conviction it's favorable defense evidence  going to his state of mind that in fairness clearly should have been allowed this court has yet to say specifically that hearsay is not a valid objection for one of the six offer the court if it reaches this issue the government begin unless the court which is otherwise with the property issue and the sufficiency of the indictment we are dealing mr sharon is correct we're dealing with the sufficiency of the indictment not of the evidence of a trial though in fact the trial evidence was pretty overwhelming as to the property theory but with but with the indictment our argument really begins and ends with the allegations of the indictment mr sharon said to this court this morning that there's no allegation  in the indictment of an attempt a scheme to obtain property and in fact what it says appendix page one ninety seven paragraph thirty eight of count one it says in exceeding to requests for consideration defendants were depriving the city of philadelphia and the commonwealth of pennsylvania of money which would have been properly due as fines and costs in other words what somebody said here your honour's the parties have been speaking past each other the argument has consistently been  friends on the defense side is that allergy to get it taken or not properly in the hands of the commonwealth i don't dispute that as a theoretical matter that's not what this case was about this case was a scheme to deprive the city and overall elaborate long running scheme in an effort to reduce the amount of money is owed by people who are connected to the judges or their personals or other court staff well to that extent mcnally is not applicable here me now is that intangible rights this is an effort to assure that many of these people will not pay the money that they owe will it always be successful no  with the knowledge that many many of these people will be found guilty and they're going through this effort in order to stop those guilty people from having to pay let me use as an analogy a counterfeit check a sick ace that your honour's  dealt with many many times some of the principal pile of counterfeit checks and they go to different banks and they present a tellers and they try to get the money they don't have the money until the teller falls for and the honors the counterfeit check but but the scheme is that somebody is going to offer it and so you maybe make an effort to get a million dollars and you only get a half million dollars under the law that person is guilty of a scheme to deprive these banks whether he succeeds or not and in fact the sense of guidelines would look to attempt a loss and hold them accountable for the whole thing that's what we have here they're not doing this for fun they're not passing these index cards and waving at each other and you know getting continuances to get money for in the right judges they're not doing this day in day out and thousands of cases just so that they can mess with the traffic or it's ability to detect that they're doing this for a very specific reason which is if they don't do it which is more of their friends will all more money unless they do this there's no rational reason that people would go to all this effort of this other than to accomplish this to get their friends so a less money that is a scheme whether it works or not that is a scheme to deprive the city a commonwealth of money which is proper and again i'll repeat it may not work every  but not until the smuggling of the failure to disclose takes place the other answer to your honest question which has been alluded to in the argument is looking at this if you're not looking at it as an effort to gain property that you know will exist in the future which is how i a claim is a species of property so you can look at that way by the argument i've made is that this is an effort to deprive the city and state of a property interest of the parties know will exist if they don't engage in th not in the ultimate certainty that many of these claims o the parties are acting it's completely discretionary is was going to happen that's when you deal with the scheme here because there is no one certain say and many people testify traffic tickets absolutely the officer might not show up the officer might not remember there might be a mistake on the ticket absolutely but again these defendants are not doing all this be to avoid that they're doing it because fifty sixty seventy percent of these tickets are fine globally the property interests here isn't the money that will be paid on the successful test the of mary ann it does not deal with anything like it deals with a couple incidents in which civil penalties are going to be discretionary here we have to look at the case that was charged and where the indictment explicitly alleges is that this was an effort again day in day out thousands of tickets fifty examples are provided in the indictment in an effort to reduce the through there are many instances that are cited there and then in the trial evidence of people who don't show up people who are found guilty and then they get into the system and the adjudication is reversed everything happens here  connected and again they're not doing all this to because this is a fun activity of the traffic or are they doing this to reduce the amount of money that will be paid by their friends they doing this to deny a property interest in the city and state have either in the claim or this is a scheme again an effort to reduce the amount of money that will be owed by these friends to the city simple as that and it's a skins a scheme to defeat causes of action that the city has and which will propose ordinary it will prevail in many many of those cases if that were the case these people are all it has to do with they did day in and day out of all these tickets were going to be found not guilty anyway and this whole thing is point or your honour's pressed them on what is the evidence that would not have been made it he said seventy five percent without without identifying what that is it's hard to imagine what different case would be presented this is not the right working with each other much of the evidence here would have to show that these people help each other because that's how these things were the consideration requests were passed the law does not favor severance unless the jury cannot compartmentalise the evidence is jury had no problem it's just it's just not correct with all due respect to miss matters and these questions were not fundamentally and they give us the question as we know from this court's president fundamentally ambiguous means just that it is cannot be discerned by a person of ordinary intelligence  jury is permitted to determine whether a question is ambiguous or not it's very very interesting very interesting that if you read through the closing arguments as i have word for word he's defendants never argued to this jury to the twelve reasonable people we're counting on these questions were fundamentally ambiguous in any way that you're not ready to stand up in front of a jury and say nobody could understand this it takes a bit to stand up in front of this court later and say that but the most interesting  thing i've just read about lowry from that because i think you do have to go through these questions individually to answer the allegations that are made but the larry thing and i'll be frank i noticed this last night i sort of run out things to do to get ready and i was reading through the appendix and this is t and he says no and what we're being told now is that's ambiguous janitor stand with them now if you read the grand jury transcript that can't be sustained because he's asked for sixty pages about this to confess and so of course he knows what it's about but what's really amazing is pay sixty two of the appendix in the opening statement this is what mr de stefano says to the jury and in a nutshell members of the jury the evidence is going to show that michael are eight didn't give out any special favors didn't fix any texts or rather treated everybody in the courtroom whether he be a working man or a woman who didn't know anybody or somebody who knew somebody in exactly the same manner even handedly thoughtfully and with due consideration so here you have his lawyer arguing the same term to the jury that they say a person of reasonable understanding can't understand this is not much of an ari this is what this comes down to everybody in the grand jury i'm sure and certainly a trial understood as did mr lowry when he's asked that i'm just asking your testimonies you don't give us special favors is that right answer no i treat everybody in that courtroom the same and this is surrounded by pages of other of questioning about the how this works with the personals and consideration and all jury the so the trial was not ambiguous you have to look at the four context here the district court decidedly rejected this argument after trial it said the terms the prosecutors used were simple direct and capable of being understood by anyone with a basic working knowledge of the english language that's of pages thirty three and thirty four of the appendix and i don't believe there's a basis here to dispute what church stengel concluded and then finally he didn't mention this morning but mr lowry argue so that one so we get mr hines let me do that and then i'll come back to mr magoo with regard to ms ties again if you look at the grand jury testimony it's obvious what we're talking about this has been said something this morning i thought was interesting she said had just been a few weeks since the traffic court was searched and i stopped and thought my gosh he imagine if you're running a judicial institution and federal agents swoop in to search the building are the people in that court going to talk about anything else for those quote few weeks that follow an incident like that but she's saying of this time she comes in blissfully unaware of what's going on here after engaging in this effort with others for years as part of this consideration effort and doesn't know what she means by we do not agree with that position with regard to any of this being fundamentally have they given us finally mismatches asking you know now i mean obviously in the general sense much of this is for political benefit  because you're doing this with politicians and world leaders and these people have to get elected skilling has left us in a difficult spot with regard to that but here you happen to have a clear fraudulent scheme the violates the mellon wire for us with a great you did sufficien evidence she highlights as she says in her brief evidence that this claim that judge hines really didn't understand she was entering her duty i suppose or saying and she was losing it and she wasn't understanding that that's up to the jury you can read her grand jury testimony and see she's a very smart woman who under who speaks very articulate and answered all the questions in the grand jury there was lots of evidence including from her personally now it's true there are pieces of the evidence  that the defense could rely on the government to ryan the fact that her personal miss warren said she actually talked to judge hines about this consideration scheme as well as handing cards to her court officer that went into the courtroom and you look at the results which is that there are numerous people we show the trial numerous people who who either didn't show up and their tickets were dismissed and judged him squirm or they showed up and one recounted to actually recounted that they sat there and they were the last people in the courtroom questions in counseling in seventy one they are not arguing here that the questions were ambiguous in any way the only argument with regard to morrow is literal truth and the only argument that's being offered with the business about literal truth and examination of the new argument fails in any of that the what he's first asked is how about your personal has your personal received any calls like this and so the argument  ok it's literally true if she didn't get any phone calls now if that's where the charge stopped that would be an interesting issue because it's not clear that the only relates to calls is referring back it's a to b c the calls like that and what the previous moment realize i've got to pin this down a little bit more after he said cause and so the other part of this county is the next part of the question let me make sure that i got your testimony correct you're saying that other people whether they be political leaders friends and family anybody is approaching your personal and asking her specifically to look after a case she what she can do in a case give preferential treatment however you want to phrase it that she's not relaying any of that information on you is that correct and he said no she has as of a little truth argument now is that focuses on this preferential treatment and says mystic nasty who's the person that we're talking about here cannot give preferential treatment she not a judge she can't adjudicate the take and therefore it's a literally true answer that  bar judge dangles phrase that borders on for us because of course she's taking action of course she's doing preferential treatment she's taking this index card that says find this guy not guilty and handing it to the judge which is something she should not be doing in the ordinary course  then that answers that question and again it's quite striking and this again is true for larry and tynes as well none of this is argue to the jury he can't stand in front of a jury and say oh they just met phone calls or whether this earlier question has been offered now it's true the judge did not permit this to be read to the jury trial but then admitted the whole grand jury transcripts but but putting that aside it's very important to look at the actual question and answer there the one th jury over and over again the real defense here by all by all of the defendants had nothing to do with whether they understood questions or a little truth the defense and perhaps the work because the jury acquitted on the conspiracy charges the defense over and over  we didn't give any preferential treatment to anybody that take a fix it didn't happen everybody got a fair shake tons of people walk out with favorable educations that was the defense that's what the case was about and that's what they argued over and over and that's what it says in this question and answer like that for people in traffic court and the answer was people have asked me for consideration but i give consideration to everybody that comes in my courtroom so it doesn't make a difference asked every which way about whether he gave favorable treatment he denies it every which way using all the different terms it happens that the government charged a later passage there's nothing here that's inconsistent with it they say oh well it shows his understanding of the word understanding of the word consideration doesn't mean anything i look at this now i'll never question my my colleagues who may be better trial lawyers and i am but i look at this question and i think i think the government should read this questions of the jury is all part of this  mulgrew throughout his testimony to deny in whatever way he brings up the work consideration himself which is the term that many people use because he's there to deny relief of what he doesn't believe right but why does he first the statue in fact refers to a scheme to obtain we all tend to use the phrase scheme to deprive but it is not in fact a scheme to deprive it is a scheme to obtain property that is in the hand of the victim the bank for example th victimized by a counterfeit check has the money in the vault and a scheme to deprive the bank of that money is a scheme to obtain property the problem here is one of timing a scheme to deprive the commonwealth of something that may eventually become property may be an honest services fraud as just fisher points out and yet if it were an honest services fraud it would need the link to something tangible something of value and as we know there was nothing of value exchange sure there was no bribery so the government's honest services fraud theory didn't work but what it has ended up with is a completely intangible crime because it is a scheme in theory to check prive the commonwealth  potential property but that is not could under the now fraud statute moreover the defendants would not have knowledge at the time of the scheme that any given ticket would result in a given outcome bear in mind your honour's that although we think about traffic tickets is something that just in the government says well when you're found guilty you pay the fine there's no discretion the problem is we have to back up a step these are tickets that accusations or honors and upon the importation it is not that the good sitting in the united states represented potential tax revenue to canada their imported taxes due here the government is suggesting if the government were in nineteen on this theory they'd be saying that diverting goods in the united states and preventing them from crossing into canada was cheating canada out of revenue and it is absolutely crucial that again the court looks at the indictment mr hoffman just said in the deprive canada of the potential taxes before the goods cross the border in past when she know the tax was due because the goods were there something had happened that created a property right that canada held charge just as had they found bribery here which they didn't they could have charged in a service is fraud the point is there has to be some nexus to property or else we end up with these completely intangible offenses there are equivalent to saying a court's entitle to restitution you know as soon as the indictment is brought out of it with great pressure your honor with the court's permission just briefly we will go back to the court on the question of the record because my firm understanding is that portions importantly mr thousand or says things like everyone understood at trial what was going on here this points to the spillover problem in fact mr is almost making our argument on spillover right now when he says trial counsel didn't raise these question by question issues about the perjury counts trial counsel couldn't because even though bronston requires mr thousand or admits a question by question analysis it was impossible given this conglomeration of evidence and the government's consistent theme that we asked about ticket fixing and they denied it it was impossible for a trial counsel to do anything other than attack the ticket fixing scene in the first instance that proves the spill over prejudice from the inclusion of these in the accounts fundamentally your honor the government is asking the court to require grand jury witnesses to read the minds of prosecutors who are exploring a novel theory of ma