mr georgescu is entitled to a new trial because the erroneous and prejudicial jury instruction on his entrapment by stoppel defense to make out this defense in the second circuit the defendant is not need to show that he was actually authorized by a government official he only needs to show the government officials statements or conduct seemingly authorized him to act however the district court here did not follow this well recognized rule when it instructed the jury when it instructed the jury oh you are entitled to an instruction at all in this case there was a conversation with the telephone with the with the operator in which he said he wanted to report information and the operator took listened and said and and so forth and then after that there was no further contact at all no request by the government no with nothing and so under those circumstances why was there even sufficient evidence to request a charge  to point to our first i think in terms of the role of the cia official on the phone line the cia for person who mr george as he spoke to identified the first caller as investigator as opposed to say a simple telephone officer like someone you call from you know fries and customer service and that's the point of the actual content of the conversation mr georgescu first did give the official information on what he believed to be a a plot to obtain weapons by people he believed to be in the fark the cia telephone operator expressed great interest in this information but explained that he needed confirmation he needed to vet he needed more to get to actually confirms to george gascon account he wanted to than nine times in the context that conversation going to say he the guy's talking yes ok i understand however however i will get back to you i have to talk to people about it again was he recruited under those circumstances looking at the totality of the conversation looking to begin to think that he was recruited under those circumstances and even then there's no reporting when he's engaged in all the meetings he's not meeting with the cia he's not meeting with anybody at that point  he just goes through with with all the meetings and the transactions and ultimately you know the deal is yours is yours is advanced well your honor over years in a case like for instance a cases where again there is no express authorization but there is a conversation that could be a reason we understood a request for information i question is reasonably understood and and being able to mount a defense on that basis given the response that was given well again there was sufficient evidence to get to a jury instruction because of this conversation because of his prior experience as a collaborator because of his testimony regarding his own internal belief and our argument for reasons but as far as the actual statements are concerned i just don't see it i mean i'm looking at the at the transcript and here and you know you have  various various statements here but you know what what he planned to do you know the operator responded ok i understand as he was talking about information that he wanted to  give ok i understand and then he offered to assist the cia if they wanted it and the operator said if we need to reach back out to you we can do that and that was the end of the conversation there was no further conversation this think this is a base this really is an issue of fact for the jury to decide under the appropriate legal standard whether he did make out the case that he recently relied on any of that that was my initial concern driscoll was still entitled to an accurate jury charge and here the district court in relying on united states versus miles for its entrapment charge relied on language that was in effect dicta miles does not address the jury standard issue it deals with a very narrow issue entirely unrelated to this case and that's whether defendant must be induced to engage in the illegal or must be induced by a federal official as opposed to a state or local official more importantly miles does not reflect second stoppel rather the government cherry picked the one case from this court's entire jurisprudence with the word affirmative in it but no other case in the circuit has accused or even recognize the added element of affirmative conduct or statements not of cases gil george given or williams include this language in the standard and neither does mergen which post dates miles and is this court's most recent entrapment by style decision merkin required seeming authorization without the added element inserted by the district court and is the merging court recognized entrapment by stop only requires implicit authorization district courts from the circuit thomason time i want to quote are also in a court put simply affirmative government officials conduct and the defendant must show that the government officials conduct or statements seemingly authorized him to act the added element of affirmative conduct or statements in the jury instruction here impose a much higher burden on mr georgescu to a j statements could mean explicit authorization in other words based on the instruction here a jerk could have been misled into believing that mr georgescu could make out his defense only if you prove that the cia official said yes you can do this or use other similar affirmative language but that's the required showing for actual authority which requires a defender prove that he was in fact authorized to act in cases like pat it's integral hollis appellate courts reverse convictions where like hear the jury instruction impose an elevated burden this is a case where a single word like affirmative doesn't matter because mr georgescu the entire defense was based on his honest and reasonable belief that he was authorized to act based on his conversations with the c officials at trial defense counsel on a number of occasions told the court he would object to an instruction as long as the word affirmative was in there because he knew would limit mr georgescu defense to explicit authorization by insertin to act and had the district court properly instructed the jury a juror plainly could have found the mr georgescu honestly and reasonably believed that he was authorized to investigate the weapons deal on the basis of the cia official seeming authorization accordingly me please the court my name's graf i'm an assistant u s attorney in the southern district of new york i represent the government in this appeal and i represented the government at trial i'm going to try and focus the bulk of my time arguing before the court on why the instruction that was given was wholly appropriate and consistent with second circuit law but i do want to begin speaking to what judge walker walker identified as his initial reaction i think if you look at the defendant's testimony in this case and in particular the portions described on pages twenty and twenty one of the government's brief you see the strained interpretation that the defendant in presenting his version of how this could be read is authorization  how far he had to strain words like ok or we'll look into it in order to come up with any plausible and ultimately is the jury determined implausible and unreadable determination that he was in fact authorized to engage in the clandestine and international a gun trafficking operation that he represented to the jury was his true undertaking notably defense counsel has not and cannot on this appeal identified any case involving similar facts a call to a tip line or a crime stoppers line or any interaction of this nature that appropriately gave rise to the defense and to the extent that to counsel both in their brief and in their argument moments ago highlighted georgescu as prior experience as a government informant as a fact militating in his favor and underscoring the reasonable miss of his interpretation in fact the opposite is true as reflected in the a dent into the government's brief on pages forty nine this defendant and making his assessment had the benefit of an understanding of how an informant operation worked he had previously been tasked he understood that he could commit no crimes without listed authorization because he had signed a document to that effect appropriate from miles just to be outset it is clearly stated in miles that is a second circuit decision in the circuit it is law in this circuit and there is no intervening ball in the supreme court or the second circuit that has undercut it separate and apart from that even if miles did not exist given as counsel noted in footnote thirteen cited approvingly to the first circuit and the third circuit decisions in pardieu in west indies transport the first circuit decision using the word affirmative with reference to an affirmative representation and the third circuit decision indicating that the doctrine was appropriate where a government agent told the defendant that certain criminal conduct was legal  as talked about at forty five f third forty three indicated that an agent had to have quote effectively communicated in assurance a word that in this context seems synonymous with affirmatively it also cited approvingly to the tenth circuit's decision in nichols on the same page which uses the language where a government agent affirmatively misleads the defendant again that was in articulating the doctrine in the circuit similarly corso which predated a  indicated when quoting the for the ninth circuit that the doctrine was appropriate when an authorized government official tells a defendant that certain conduct is legal and the defendant believes the official that's the law that is the doctrine in this circuit that is embodied in sands instruction and that's how the jury was properly instructed in this case the defendant's conduct here illustrates why this prudential limitation on law is appropriate precisely or i think the affirmative assurance from the government or conduct by the government one could imagine and the cases in which the doctrine has been allowed have been circumstances where either the defendant has like of cases where it's the defendant's contention that the appendix that one sixty that he wouldn't take action until he was directed to do something you just give me a call or someone and tell me you go forward and i go forward so there was no kind there was no contact between the cia or any other government agency with  and to the courts point there was no effort by georgescu to renew conduct either in the two years between when he placed the call to the tip line or at any point in the mall time on clandestine operation in which he engaged but what about his past history your honor as i was suggesting earlier i do think that his past history is relevant it was one of the factors that the government noted in seeking a below guideline sentence in this case but while it might be relevant to his individual characteristics with respect to the which asks what an objective we reasonable person sincerely desirous of obeying the law might do that experience cuts wholly against the defendant cuts wholly against georgescu here as i mentioned earlier he had signed admonishments he had been task had participated in investigations he knew what that looked like and he knew that it did not look like a passive call to a tip line it looked like as he testified it looked like a regular interactions with a government agent in which the government agent told him that he should do certain things at the government's direction he had twenty to one signed a document and a second time received the same admonishments from an f b i agent many years before the conduct at issue here many years before the tip line call in which he  rms that he knew that he could not commit log commit crimes just because he was working with the government so he did the deal and he he with the profit of the deal got her in this case because he was arrested before the deal was completed he didn't meet the prophet but as the government argued to the jury and as the evidence at trial clearly showed he was certainly contemplating profit in this case he in fact inflated the contract in concert with the cooperated witnesses which serve no evidentiary purpose if one bought his suggestion that he was doing this to gather evidence for the us government but certainly serve to line his pocket and to increase his perspective profits unless there are other questions by the court from the court  the court there was rejecting the argument that we're not making we're not arguing as i mentioned earlier we're not arguing that silence is authorization and that was really the issue that they were talking about in that footnote in giffen so it's not necessarily a political to the facts here we're arguing instead that the statements and conduct by the cia official the ok is the i understand the request for confirmation would have been sufficient to create a reasonable leaf that he was seemingly authorized to act at about the point  client wanted some sort of confirmation and said to the fact just let me you know i'll go ahead you know he certainly said that but the argument is that we're making is that looking at the telephone operators inspector through investigator sorry route his plan if you want me to go and let you know how was that statement consistent with the fact that he had a belief that you didn't really have instruction and mr gore just was entitled to have that decision made by a properly instructed jury the scores were p to be reversed convictions were based on defective instructions in order to ensure the fair case and these facts of this of this skimpy very skimpy nature of the contacts with the with the government it's just you know it's that well before the activities undertaken he goes forward there's no  communication nobody from the cia calls him he doesn't call the cia afterwards and he engineers over a period of years a very elaborate arms deal you know without without any communication to anybody how would how would the cia have possibly benefited from this well your honor his stated intention is he said several times in the calls i'll let me go deeper i'll come get that i'll get that information for you so that you can know about what the what he believed to be fark members trying to obtain weapons and so again as the as the as the transactions unfolded nothing at all about any effort by he had to contact them and to let them know has not been an intervening decision that after miles it is incorrect because murder in which discussed the issue of entrapment by a stop all did not use the affirmative language in the instruction used the language seeming authorization and again by raising this bar by by elevating the standards something looking like an actual authority defense the district court effectively precluded the jury from finding that mr georgescu could make out his defense based even based on the evidence that he presented thank you both the reserve decision