decision to try mr mcdonald in orange county rather than in los angeles county under the district court's general order a criminal case may be tried in the southern division of the central district which is orange county only if at least one of the crimes charged or a part of the crime is alleged to have been committed within the southern division now there's no dispute the twenty of the twenty one counts in the indictment were committed entirely within los angeles county which is the western division of the central district as to the twenty first count which is count sixteen that charge mcdonald with conspiring with members of the carson city council to commit extortion under color of official right now carson city is in los angeles county and there is no allegation in the indictment that macdonald or any co spirator committed any part of the crime in our inch county there were allegations that an employee of a company called transportation concepts committed to overt ac the conspiracy but it's common ground in the government agrees that this charge a conspiracy to extol art under color of official right doesn't require any overt act it's not an element of the offense so this was not a part of the crime the government's only answer is to say well when it comes to venue and overt act is a sufficient basis for laying venue well so this overt act was not a part of the crime and this little speck of orange county content that is all the government is clinging to is the basis for trying the case in orange county really doesn't count manipulates a case assignment system for the purpose of influencing the outcome of the proceedings that raises a serious due process issue here well the manipulation here your honor case over to orange county and that's something they should not have done that was not appropriate under the court's general water it was it was not a neutral assignment system like show a violation angeles county where you're more likely to get a mixed jury with a number of the african americans in an orange county where she is pretty much kasia way well we  could make that argument judge white but before we get there before we get there been in the cruise against a boquet case the issue was simply that the chief judge in guam was assigning cases to whichever judge he chose and there was no question of race there it was arbitrary vlady of the dav raises at the very least a serious to process problem and in the pearson case i mean here we have an additional element which is the prosecutor which is not who is not neutral and is not expected to be neutral they're an advocate if they are manipulating the system in order to affect the outcome i mean we're a district judge just keeps the good one for of self when that might not be for the purpose of affecting the outcome but where you have a party to the case using the system in order to in order to affect the outcome the peterson case that that is a very serious due process proffered and here the evidence of manipulation the indictment the unnecessary allegations i think the most serious was that the prosecutors made misstatements to the judge when the defense said we'd like to have this case transferred to los angeles it's a western division case the prosecutor said and you can find this in the record excerpts at page thirty they said that mcdonald caused rogers he was this transportation concept employee to draft consulting agreement and they also said also a page thirty but without the faxing of right information by rogers macdonald would not have been able to accomplish his criminal design so they made those representations to the district court in fact those representations were not true the government doesn't contend they were true based on the information that was known to the government at the time it was rogers who had the idea of drawing up and then judge wright we do have finally there is this issue that by transferring the case from los angeles county to orange county was a transfer guy and i i'm sorry i misspoke your honor by bringing the indictment in orange county rather than in los angeles county the government was create a bill to create a situation where it was partially certain that there would be no blacks no african americans on the jury and this is really what gets to the same bottom made batson was mentioned but we did not specifically making bats an argument as of course as you know under for the federal government because protection is an aspect of fifth amendment due process the arguments are closely related but there was not a direct argument in the district court and i want to be very honest about that the district court concluded there was no merit in appeal ation i think i think the district court rejected district court so i don't think this violated the general order and we think that's just an error of law it's an abuse of discretion standard but of course under kuhn against united states and other cases errors of law are abuses of discretion i think the was acceptable under our general order if the district court concluded that there was no manipulation are we required to look at the facts in the light most favorable to the prevailing party on that issue well i think if the district court had made findings of fact on this yes of course you would defer can we imply of finding based on the court's decision well it's i don't think this is a fair situation to imply findings be if you can of course  you will decide but i think i think what it's fair to say is that the district court said well i think this was ok under the general water i hear your constitutional argument i think it doesn't make sense to me because i think this was ok under the order of the pearson case the tenth circuit case you know there are the it really there really was no argument that the prosecutor have violated any rule there was no rule that said you can't manipulate the order of the names on the indictment in order to hand select your judge but nevertheless the court said that's still a due process problem if the prosecution is manipulating the system if the system is one that law ends itself to manipulation in order extortion and then through well that's an excellent way of getting into the second issue which we raise which has to do with this count sixteen in the conspiracy to extort  jury instruction that the court gave there i think created a great deal of confusion about this question you raise of who exactly was involved this was jury instruction number twenty two it's in page one seventy three of our record excerpts what happened here was that the government started with a model jury instruction that's a perfectly fine jury instruction for this conspiracy to extort directed solely to the public official but on this count the allegation was that keith mcdonald as a private citizen had conspired with three public officials three members of the carson city council in order to extract these payments  and what the instruction did was to insert the words for a coconspirator three times and i'll just read you the instruction and you can see how this really transformed this charge into something totally different it turned it into a a bribery charge which is a different crime this court has said in the ag you won case that bribery is committed by both the bribe giver and the recipient but extortion is committed only by the recipient and the court repeated this more recently  case where it said a defendant could not conspire to extort money from himself that's the nature of extortion that's the difference between bribery and extortion but now listen to instructions twenty two and i'll  obtain money which the defendant or a coconspirator knew that the defendant or a coconspirator was not entitle to in return for an official act so the government admits that this instruction was not a model of clarity to their credit they say right in their brief that this was not a model of clarity that may be some understatement but if you parse it out it's clear that if mcdonald gave money to these public officials the members of the carson city council knowing that they were not entitled to the money in return for an official act he could be convicted under this instruction number twenty two but that is bribery that is not and brand of starvation has a much higher penalty and the government's main answer to this they say yes the instruction was not a model of clarity they admit that as i say to their credit but they say look you know the evidence supported the notion that there was a conspiracy to extort here and so that ought to be ok well we think the evidence of a conspiracy to have stuart was thin the real evidence w that macdonald paid money to these three individuals but but the point is we're not challenging the sufficiency of the evidence we're saying there were two possible views here that the jury could have taken and it's very well public official he was an elected official of the west basin you know simple water district and los angeles and he was charged with using the mails in furtherance of a scheme to defraud by depriving another of the intangible right of honest services and here are the government's evidence showed here it is essentially a sufficiency of the evidence argument you're making although it really goes to the meaning of this statute the interpretation of the statute so ultimately th and when he reported this on his california form seven hundred which requires state officials to disclose all their income sources of the income that he was untruthful about the source of the income that it actually came from a different source there was no evidence about what this payment was for whether it had any connection with any of mr macdonald's duties as a director of this my space and water district it could have been something personal it could have been a business matter unrelated to his his official duties and that he was not sufficient and that in the case we would stand on there we would simply ask you to look at the sawyer case from the first circuit eighty five f thirty seven twenty four and there are three the first circuit has a lengthy decision and it's there comes out quite clearly that for this kind of mail fraud deprivation of the honest services of a public official you have to show that there was some that provision of honest services that did that it was a material misstatement it had something to do with the discharge of the officials duties and if you look at  the they're very clear the first circuit says intent to deprive of honest services is not equivalent to or subsumed within intent to deceive the public that's put twelve of their opinion now the words the government's theory here is well he didn't tell the truth on this disclosure form that's that's deprivation of honest services right there that's that's the end of the case but it's not the first circuit says it's not it's not they cite an judge right need which is a similar kind of a case where you may have a violation of state law it may involve someone truthfulness but if it's if it's not depriving the people of your honest services it doesn't violate the statute and if you still do you still intend the reserves from time yes your honor so i think perhaps i'd better do that i thank you for that good morning your honor as i'm assistant united states attorney kevin smith and i'll be arguing on behalf of the government this morning and what i'd like to do with the court's permission of course is to address the question by justice alice horn with respect to whether the district court accepted this manipulation argument by the defendant in fact your honor and this is in the record is also cited a number of times in the government's brief the district court rejected the argument that the  government's trying the case in bringing the case in the southern division was arbitrary or capricious in fact the court found that both during the pretrial motion to change venue brought by the defendant and also post trial when the motion of new for a new trial was brought by the defendant so the court rejected any such claim made of manipulation by the government and found in fact as the court said during the pretrial motion to change venue there's a reason for filing it here and the court  found both before and after trial that general order ninety five asked you which is the order at issue here the court's order general order issue here was met by the government in this case now the defendant makes a spends a lot of time in the brief and even here this morning arguing that for a hobbs act conspiracy overt acts are not necessary to prove that particular crime we don't dispute that but as we argue in our brief that is of no moment here the reason is simple a district court has a very very broad discretion in interpret its local rules in general orders and so because of the nature of the fissions in the like of running the particular district court in this case the court was well within that discretion to find that the overt acts alleged in paragraph forty seven and fifty one of the indictment were any part of the crime as required by general order ninety five deaths two regardless of whether or not they were overt acts necessary to prove the offense that was in the discretion of the district court and the district court found that those particular overt acts met the general order and therefore found that there was a sufficient reason to have the case heard in the southern division and i would also like to make clear there was no transfer in this particular case of this indict and i think that was eventually clarified by counsel for the defense this case was charged in the southern division where it was ultimately tried so there was no transfer before we had the three divisions in the central district we now have the western division which is los angeles county many other counties you mentioned that draws its jury pool from grand jury pool from that area we now have a and eastern division which is riverside county and san bernardino county ninety five asked to make no distinction as to how much of the indictment or how much of the criminal activity is actually in the southern division somebody as that is correct your honor in this particular case the decision was made to try the case that was the decision made there and it was permissible under ninety five gesture one other reason that was actually set forth and it is in the record it's on page seven hundred seventy nine of the government's excerpts of record dropped in a footnote in the government's opposite other any other retarded orange or if it's as i work in the orange county office if we have a connection to orange county in our cases and we are the prosecutors prosecuting the case then we utilize general order ninety five das to to bring the cases in orange county as i was referring to the government's opposition to the defense a motion for change venue a footnote on the final page of the opposition  contract at issue in paragraph fifty one of the the indictment one of the overt acts was at the heart of the conspiracy scheme because the monies at issue here were to come from transportation concepts which is located in irvine california and one of the other reasons of all that was certainly put in the record by the government in opposing that motion to change venue that was opposed by the defense was the convenience of the prosecution and they set forth a couple of the defense motion pretrial the the government's position is in the district court found there was no violation of general order ninety five dash t so we've had a lot of changes and make sure i try to address your question in a few different points in the green did the actual individual members that are selected for the orange county grand jury are selected i believe they were all those selected by the chief judge wright i believe they have they're told to report to work to los angeles where the chief judge selects them but i will point this out this very court in united states versus kennedy the issue of whether or not the southern the southern division which is an orange county has a fair representation of minorities west challenged back in the ninety's in the u s b canada case and in that case and the defendant's challenge the the fact that the jurors at that time were selected for cases in some division were selected from southern division and eastern division that's before there was a i believe there was an isa division court so there was a challenge made at that time by those defendants that there should have been a potential trial there was also drawn from the western division this court rejected that argument on equal protection grounds and so i think that does address the issue that the court was referring to with respect to the changes  i the grand jury the penna jury was improperly selected and violate the equal protection clause now in fact there was no there was no challenge whatsoever by the defense in this case on racial discrimination ground twice they made a pretrial motion for change of venue racial discrimination the composition of the pension potential composition of the jury in the like never raised then that was a simple violation of the general order and also asking the court t went on motion for a new trial if you process playing was raised then but again at that point no racial discrimination argument made that argument was merely that the general order was upright applied in a previous an arbitrary manner by the  an argument that was rejected by the district court so there's been no evidence developed in the in the district court of any type of racial discrimination this factual record is completely void of any such evidence in this case and i think the ninth circuit has addressed that issue a number of times and found simply they want to hear that type of argument for the first time on appeal because it wasn't perfected and it wasn't preserved in the lower court and there's nothing to determine at that particular point that in this case because the defendant was a private citizen a the defendant's coconspirators were the carson city council members in other words they were the one who would have to be taking the money  improperly that they weren't that they were not entitled to in return for an official act and so what you have here is you have a private citizen the defendant conspiring with three carson city council members to extort money from a company that was going to be applying for the bust in contract in the city apartment and so the instruction that was given right before the end the instruction that was cited by the defense was that the defendant had to become a member of a conspiracy with the in this particular case an agreement to extort under color fish all right with the knowledge of this object and the intent to further the object in this case there was only id in exchange for their vote for transportation contracts to get the busing contract in the city of carson so that was very clear the issue here the standard is was a reasonable likelihood that the jurors would apply this instruction and it that's in contention in violation of the constitution and that is not something that is evaluated in a vacuum in the cases are very clear if you look at the trial record you look at the other instructions in this case the and also the indictment you also take a look at the you can look at the government of the prosecutor's closing arguments or arguments to the jury in this case there's no question that the government's evidence that was present was presented to show that the money in this case was not coming per se from the defendant but was coming from transportation concepts and that that was the money that the defendant was going to once he received it based on his consulting contract payout to the three carson city council members who had agreed before the vote to receive payment in exchange for the vote so that was the evidence in this case there was no fieri or any other evidence that that money could come from some other source and that the defense the out in the brief where he makes it very very clear that he knew the money he was going to receive from the defendant for in change or his boat was coming from transportation concept in fact the particular discussion there is the fact that he didn't get paid right away after is that taken in totality as the court is in entitled to do and evaluating instruction and trying to determine whether or not there was a reasonable likelihood that the jury's misapplied instruction in this particular case  circumstances the evidence and efficient than the government's closing argument where the government talked going through those elements and that instruction discussed with the jury that the defendant had a consulting contract with transportation concept but that that i understand whe issue was whether or not the defendant had a material duty to disclose material information and ivana says that's sufficient for it to satisfy the fraud and will and on services mail from in this case the evidence was clear and pointed out in the government's read that the defendant was seeking to hide the source of a hundred thousand dollars what he termed political contribution because he had a political difference and this was the testimony of laura shall the person that he enlisted to help him do this because he had a services that he deprived them of that with respect to that particular transaction because he's trying to hide a very very substantial hundred thousand dollar payment that he was going to receive because he didn't want or could not be seen to be receiving that money for political purposes of political differences and so it's not nearly the government's argument that the violation of the failing to be honest on the california fair political practices form seven hundred that alone constitutes the crime highlighting of that particular source of that money and i don't think there's any argument that constituents are entitled to know when their elected officials are receiving contributions or payments of one hundred thousand dollars and what the true source of that that  addition he also falsely stated on the form seven hundred that he was a consultant or independent contractor with this ocean sky when in fact he was not the evidence was clear he had no he had no interaction with that particular business not enough and it's would be a very dangerous precedent i submit for the court to say otherwise than any misstatement by a government official even if it's about a purely personal matter would become federal mail fraud a very serious federal felony these matters may be covered by state law this one is the question here is whether this automatically becomes federal honest services mail fraud and we submit it's it does not  the extortion question i think where we are on that is that the instruction was i guess the government they're not quite concede that it was a improper instruction but certainly imperfect we say it when when you read it i think you will agree a flawed instruction that there be an argument is well it was harmless error and it absolutely was not harmless error i mean if you look at the evidence on this count the the evidence was that this company transportation concepts hired keith mcdonald as a consultant as a lobbyist to help them get this contract renewed they were this even today i mean the testimony at trial was transportation concepts thinks this was a perfectly proper law beginning consultancy arrangement and now there was a lot of that evidence that keith macdonald made the of five thousand dollars to these three city council members and we're not contending that that was proper by no means but that is primary and the jury could very easily of thought and the instructions certainly allow them to conclude well if there's primary that's enough i can convict of this count so it absolutely was not harmless and then very quickly are additional claim of the location of the trial i do just want to make the point we are not making a fair cross section argument that's not the claim we're making which we say that the rule was violent general order was violated then we have this claim about manipulation of the selection process w not depend on somebody's skin color they could have purple polka dot skin and if the government is trying to move the case around to get a conviction cruz against apothecary and pearson say that's a due process problem now when we do get  and we do get there the argument that we're making is a that's an argument that's not the kind of argument where you have to build your case back in the trial court all we have to show is that mr mcdonald is a member of a cognize of all minority he is he's an african american that a procedure was used that allows a person who is of a mind to discriminate to discriminate it was i don't think there's any dispute that this process complex you weed out african american jurors just as well when we get there i want to be clear we're making these prior arguments we don't think you have to get to bassam but that's our final argument this batson it's not a fair cross section argument we think it would be sufficient to grant a new trial to psylocke this general order was violated yes the district court has discretion but if discretion has limits errors of law or abuse of discretion it's just clear that no part of the crime is alleged to have happened in orange county these few act that's fine with us i don't see how you could possibly conclude beyond a reasonable doubt that the outcome of this trial would have been no more favorable to mr mcdonald with a jury from los angeles county i just don't think you could make that conclusion as i say we are happy to be think under harmless error analysis this you there's no way you can conclude that this was harmless beyond a reasonable doubt obviously having a trial in los angeles county versus ahrens county makes a big