good afternoon may it please the court my name is katherine windsor and i represent the appellant in this case george will i'd like to reserve three minutes for rebuttal i did in the brief i thought i'd start with the constructive amendment issue that is a very odd situation i remember seeing anything quite like that but i wonder if that is the best way to frame the issue because the indictment actually doesn't name any individuals at all  it's not a change in that perspective just says bribery of a public official and the issue came up by way of instructions and in fact instructions that you would agree to it were so three question is why shouldn't we view this as a question of instructional error and potentially invited her well because this really does when you when you look at what happened in this case this really is the classic story of what happens with a constructive amendment case typically and in that sort of case the indictment charges something fairly narrow and then maybe uses a generic the instructions point the jury to activity that is outside what is charged in the indictment and that's what this instruction did here it wasn't outside the indictment it was outside the proof because the name the wrong person lee and he was supposed to give it to a known public official and that's why that the name wasn't wasn't listed there but in this case what the instructions did was they they brought they took they took the they took the jury outside of what had been charged to evidence that was charged in no one but it was not evidence that was charged in count three and so as a really the classic thing that instructions do in the context where they point the jury to or allow the jury to make a finding based on conduct that was not charged in these camps and in fact the evidence that they say there was this narrow charging and then the instructions said hey instead of looking at what we charge government was talking or two specific events that had to do with bribes that were paid through john lee who was cooperating with the government and said and then because he was cooperating there wasn't actually a government  there's not we're certainly not claiming a sufficiency issue at all what we're saying is that the instruction by by telling the jury actually don't look at john lee you have to make a finding that fred were narrow bit in the wrong direction they were telling the jury to to consider this one charge conduct and so i really i think it fits best into the constructive analysis i also think it's really close to those cases  where there's legal and possibility where some of the charges are outside of the statute of limitations for some surprise you say that there is no sufficiency problem here seems to me that from your perspective your client right handed but what they what the jury was asked to find now in a reasonable doubt was what was listening counts three and four right right and the parties agree and will confirm with mr o'brien that there was no evidence of that counts three and kate but i thought that as accounts three and four your argument was that as instructed the jury was to find beyond reasonable doubt whether bribes were played to more amos and i thought the parties agreed there was no evidence that on those on this erroneous instruction the both parties agree that the defense has to prove that it was prejudiced by the outcome and that it violated the fairness integrity of proceedings and i'd like to point out to a quote from page five line seven through eight of th finance reply brief and they say quote the government shows that approve the acts charged in counts three and four the defense does not dispute this so i don't see how the defendant can possibly prove prejudice when it can see the guilt was proven on counts three and four based upon the evidence at trial that despite an instructional error the defense defendant concedes that the crime was proven and that means there's no prejudice and if i could as i cited as both parties cited in their brief that instructional error there's also plain room error of you i'd like to get to the question that was already kind of posed to me before i came up here this is not a case where  efective instruction expanded the charge to some other theory of conviction it actually suggested another theory that couldn't possibly be proven and that's how we know that the jury didn't rely on this jury instruction because had they relied on this jury instruction they would have acquitted this is a situation where the parties didn't dispute that money was paid on a specific day to a specific individual in specific amounts the parties agreed to that and so the jury didn't focus on that instruction for the same reason neither party focus on this instruction and made an error the jury convicted based upon the evidence that was submitted at trial and also the indictment that was charged and how know that the jury didn't proceed down this theory postulated by the defense well it's not just a question of the dates being wrong it's the number of acts that are involved there was only one bribe in connection with the n y jang application that was offered to mr molt months later one bribe and yet there's two counts of conviction it being i think three or four months later and i don't know how you can pub pigeon hole one bribe into two bribery counts on different days it's clear that the jury did not go down that road we know that the jury relied on the indictment because they asked for it the first jury note in fact i think the only jury know came from the jury was they asked for the indictment so they could specifically link up the evidence to those chart acts charged in the indictment and then pretty clear with regard to what happened with regard to the alien and wising set forth the events in a very linear fashion there were two bribes paid to mr lee and as a result of those two bribes the government issued a conditional green card that presented a problem for the defendant and his client because it's just a conditional mean card and it doesn't do him much good and so then when the defendant approached another person mr molt yes he offers a single bribe to clear up that condition so it's not a confusing indictment with regard to what transpired with regard to this immigrant  rather clear we also know that the jury relied on the evidence because they listened to this evidence these recordings for a week it might be difficult for this court to assimilate all the data in sterile briefs and excerpts of record but the jury heard the recordings that were played they had transcripts to read from the time they were played the government actually paused the recordings and then inquired of the witnesses with regard to what happened in the transcript the government also cross examined the defendant with those specific transcripts and also and in an unusual stipulation the parties agreed that the transcripts could go with the jury back into the jury room by stipulation we agreed to that so this isn't a case where the evidence was confusing or the jury might have gone down the wrong  road the evidence at trial was consistent with what was in the indictment and also the arguments were consistent what was presented at trial and also what was in the indictment this is not a situation where the government fails on one theory and then adopts a plan b through jury instruction i think we all agree with that which is why this case is so on this is not the cement steel it's to rome it seems to me this is the kind of case where the guy rob a bank of america on february first in the jury instructions said rob wells fargo on april third exactly and i just don't know of any authority i've never seen this happen before and that's usually not great if for the prosecution usually want some something to support us on that so what is your take then on the rule of jury instructions in a case like this if we didn't really matter because anything as long as the indictment says what it says could they say you know he killed the guy or he broke windows and it was the indictment is there were  that the jury has read the instructions it is applying the instructions but like any presumption it can be rebutted and i think the facts that i've set forth that they would have acquitted if they had relied on that instruction and that the fact that the evidence linked up to the indictment linked up to the argument and even more importantly i think the way you resolve this is that the parties agree that the defense has to show prejudice and they've admitted that the conduct alleged in krauts three and four was proven by the government they don't dispute that i could move on to the life i better move on to the other argument and that is with respect to the cross examination of the defendant i haven't much time so focus on some highlights all the questions that the government asked of the defendant during cross examination were pertinent to show predisposition with the defendant having a raise raise the entrapment defense in addition to the bribery charges the government charge the klein conspiracy that is to interfere with the government's functions through dishonest means and the questions pertain to many dishonest acts committed by the defendant as a government employee that struck did citizen and immigration services i s the defendant on cross examination admitted that he swore an oath to uphold the law he admitted he knew he was prohibited from both accessing and leaking immigration records and he nevertheless admitted that he illegally accessed files for his employees for his family members and for others all of whom had pending immigration applications he also admitted to the agents that he leaked information from these immigration files and so it was dishonest for the defendant to violate his oath by accessing and leaking information that had been entrusted to him and also in a feud with government functions when he did so people aren't supposed to get green cards by illegally accessing government files through the backdoor it's dishonest and it obstructs the government's functions and that's why it's relevant to the predisposition on the klein conspiracy these questions were also relevant to predisposition on the bribery charges because the government asked questions not only about improper official acts committed by the defendant but also his suspicious receipt of cash during the same timeframe he admitted that he had been offered a bribe in return for citizenship while he was a government employee and he also admitted receiving an interest free of a roth loan from the same individual he admitted that from two thousand and eight through two thousand and eleven he unlawfully accessed immigration records and he admitted at the same time frame two thousand and nine he received cash deposits that were deposited into the kiki beer houses restaurant also point out that the standard of review here is abus discretion and the court only permitted this evidence to come in under very conservative criteria the court said not only did the government the did the defense have to submit an entrapment defense for this evidence to come in but also he had to testify and so that raised both predisposition issues and credibility issues on the part of the defendant the court also exercise discretion under four o three to exclude some of this evidence that the government had tried to submit that is these cash deposits into his developmentally disabled brother in law's account which then found its way to the keep your house through security circuitous  means just to wrap up i've got about forty seconds left the defendant complains there's no limiting instruction the defense never requested one the government argued for the jury to consider the evidence only on the issue of predisposition and credibility and even if somehow someone would think that the cross examination was too thorough there's always a harmless and there error analysis in this case th king case came down to entrapment and it was refuted in so many ways during the cross examination of defendant there were multiple instances of prior dealings prior to the government's undercover operation in which the defendant what the government is saying is that we should assume that the jury caught the mistake that the lawyers and the court missed and i really take issue with the argument that the jury would have acquitted if they had relied on the mold evidence  know i'm not saying the evidence was overwhelming on that for none of this was an overwhelming i'm just saying the government did present evidence of a wedge brides concerning malt on two there were two overt acts that were listed where there were conversations and were money was offered or suggested you know i'm not saying that those were slam dunk cases but when the jury is told as well i write this court has held that i have to meet the plane error standard you have to show prejudice what what is the purchase in light of the fact that there was no evidence of the exact crime was indicted because it's entirely possible that the jury would have acquitted of can on count three and four had they been properly instructed because the john lee w exactly what was charged well i i mean i certainly at what i've always wanted to make clear was that i'm not saying that the evidence was insufficient that they didn't present any of i'd know that but i'm certain i definitely don't think it was overwhelming by any means and i  precluded in bear in fact which is a different fact pattern but that this court reversed based on this similar level of evidence where there was sufficient evidence but not overwhelming evidence