during the course of his representation trial counsel was representing him as well as murray hoover felt who was a coconspirator on assist the case i think the paramount issue to really know of and with that said the hoover feld representation as well as the right representation there should have been a hearing which we respectfully submit probably could have been on w at that time the government concedes in their opposition that the court could this court could remand the case for a limited inquiry on the on the curse you know issue we respectfully submit that that that is you know that has other opportunities that he may have utilized you know there were other things that he could have done with conduit conflict counsel when you're certainly that means you could that means you could have cooperat if you have the same counsel for both co defendants you can't cooperate against one another both mr hoover felt and mr right burke so he was without conflict free counsel which various hearings in the district court on the you know that is that you would have interest of justice you know for each particular defendant so i think not having conflict free counsel at that time precluded mr reich burke from having the opportunity issue yes it was not raised below at all but it was disclosed doring a hearing that trial counsel was representing the mist of hoover felt the same and stated on the record that she was helping out on the case you know she's a you know when attorney so i think it was it was it should have there should have been a hearing the government should have written a personal letter like they always do or the district acknowledged a dual representation this is within the same district judge the case i believe the who befell case was both in front of judge carter and judge as well as the representation is on the record at the us at the trial court level i think that that that is a strictly significant although there was no count you know record of being counsel put in the public record but it was it was kno this court saying saying at the district court that you know he knew he would leave it up to the nd circuit to decide that is mr right burke's th amendment issue was it was also violated the advances that's coming down you know with you know just just how the tech companies are handling everything and how an individual has their entire life on and on technology technological or cellphone or computers we think this is a cutting edge issue that this court should decide what the remedy was for this violation that judge woods acknowledged you know i'm not smart i'm just you know have any support for that sound like basically said that the district court specifically stated would leave this issue to the government's conduct a nd circuit you know we believe your honors that you know it was a violation of the th amendment clear and there should have been attain team that should have been a protective order and you cannot just disseminate what you have you know without that you know there potentially was of a lot of improprieties by the trial counsel's looking at potential privilege materials and so forth and so on so you know i'm not smarter than anyone on this phone call so you know i think i really would leave it up to you like judge wood said leslie if i can move on to the next issue there's no honest services must be vacated count one and two there was no quid pro quo and there was no official act the government has conceded there is no official act there was no agreement between right berg and the police and the acts that the government presented to the jury were not official acts pav and they were not a fiction official acts per se they have yes yes it goes through a process through the licensing division but they always know it was you know mr wright berg actually qualified for the license what did happen your honour's is that his file was taken from below the pile to put on top of the pile it wasn't issued because he did not qualify i think in the testimony on one thousand nine hundred and six it says you know they understood meaning the cooperating witnesses with the license of the vision they understood that right jimmy grant guy you know i think you know in the term of art in the police department jimmy grant's guy is you know you could that's you know i guess it's a you know it's like a local new york thing it's like you know a friend that's jimmy grant's friend so it's not an official act by mandatory da te so it doesn't mean anyone can call down to the precinct and ask what's going on and in fact that's exactly what happened but there was no special benefit given because it was you know if you read the that's a courtesy if we look at page ten and page eleven i cite testimony from from both the individuals who testified for the government and you know there were you know having a fly over i believe it was jim cohen who testified one hundred percent sure but i believe the testimony was that if of play if the helicopters in the air and a community is having a function whatever community it may be you know whatever religious or creed and someone's asked to fight over they will do that and actually missed the call and i believe says that he encourages that because it helps the pilots you know because they're just circling around the city so i think if we look at that also you would see that and the boat right it was a community event there was testimony to that that there was a community event and that happens frequently i mean it's what's called your honor it's called community policing you know that's is what has been encouraged for decades to stretch break the law yes we believe that your honor was improper but as an official act you know what today what there is no there is no agreement that was asked and it was given and and we believe that was improper and what usually happens for a police officer they get ten days vacation i guess docked from from from the internal affairs it's not a federal crime it does not is a few things that i just like to go through i think that we were perfectly suited he was precluded mr riper got a trial for calling experts specifically a police experts which we could have explain to the jury certainly you know what happens with the community policing and we think that was detrimental to to our case in addition to that he was going to call a rabbi gluck as an expert also a world renowned you know someone member from the community for you know he's the former deputy mayor of our great city and we were perfectly it was precluded from doing that also that we believe was abuse abuse of discretion because if the jury heard those two experts we believe that the result would have been different thank you so much for your time yes thank you your honor my name is jessica lonergan i represent the united states on this appeal as i did at trial and i'd like to start with one of the issues that the that the panel spent the most time on with my post and coun which is the question of whether the government sufficiently proved that there were official acts at trial and i would submit that the government definitely did and i want to walk through both if it helps i'd like to walk through the framework that was set forth in mcdonnell and how that was presented to the jury so the jury instruction to hear she would incredibly closely to mcdonnell in other words what what judge would say is that he  procedure as forth in that donal that the question of whether there is official action should be presented to the jury the framework as i know this court is well aware is that a step or two mcdonnell is that to find official action  st you have to identify a question or a matter that is either that is a pending or maybe a law by law be brought before a government agency and be it a formal exercise of government power that is focused in concrete and then the official must make a decision or take action on that question or ratter or agree to do so or pressure or advise someone else to do so i'd like it because i don't i'm having difficulty understanding why the gun permit was a specific and focused question or matter that was pending you know it took all the favoritism was shown other than possibly in timing or even if we can see if it is at that social act but how was that a specific focus question or a matter that was you know on anyone's horizon if there was no application even pending case as that doctrine was clarified by silver and so under the silver analysis which is two part st is whether the jury was properly instructed as set forth in silver and then secondly whether there was testimony in the record that because my sim was issued in a way that it would not normally have been without the influence of iran with a typically the was he eligible for well your honor there was paperwork that was missing from the file and the testimony was that a gun license would not be approved without that paperwork for example that there need to be tax returns to establish that he in fact has the kind of employment that rip wired him to have a full carry license because that was what he was applying for which is the license to carry a gun on him at all times which is a very difficult type of license to get and very rarely issued a with their testimony that he was not eligible and i certainly agree that a carry license is special and that that the supporting paperwork needs to be in order and showing needs to be made that cases it doesn't matter alternately if the official who made the decision on this pending matter what have made the same decision appel the bride that's not the test for official action the question is just whether the bribe was that same question or better right and i just i'm having difficulty understanding how with all these gifts and payments were made and an application was casting what the record to the jury have relied was complaining that right burke and wreck nets were no longer showering him with the same types of gifts that they used to shower him with because they had moved on to other officers and so i think that does show same type of gun license for mr reckon it and that is the gun license that was being discussed in these calls so the print also refers back to have big essentially assisted specially to to write books gun license one and that the requisite particularity of that force in silver existed with respect to one so if i can return to the question i'm sober that was raised that we kind of got diverted from so if the court looks at the at the jury instructions delivered here they were the jury was properly instructed on the as opportunities arise theory judge would instructed the jury that they needed to fight particular that that the at the time that the that the prize was made or promise that there were particular kinds of influence that we're in to support it that the on on on pending questions or matters that to the framework that is set forth in silver is an appropriate definition of official act in addition judge what's instructed the jury but simply seeking generalized goodwill or generalized access with insufficient and so the jury here st of all was properly instructed and then secular requires an understanding of the matter right so is this instruction you think good enough to convey that i  think it is your honor and in fact in in in silver in a footnote the court essentially approved an instruction that is nearly identical to the instruction that judge wood gave to the jury in this case and that is an instruction that the nd circuit had approved in canada and in this series of cases and in silver the court recognized that that is the type of instruction that would explain the requisite particularity to the jury this type or two thousand and thirty what were the particular kinds of with that yes your honor so so so i think that the record shows a number of ways that you can show what what type of influence following arrest and that it's actually very unusual to have that type of coconspirator testimony and in fact the evidence of that type of understanding is usually ringback much more circumstantial such as the evidence wasn't silver so that's officers providing assistance after the arrests so that corroborate and shows that that is the type of assistance they were asking for from the police there in the called about gun licenses as we've discussed and there were also the a call about correct just about the fact that in exchange for all of the bribes they paid the banks and harrington that they caught promoted we also have more circumstantial evidence in that there's a pattern  the years right broken record made right to police officers and that in between those bribes they repeatedly requested the same type of official action in particular in that is exceedingly deferential the jury verdict shows that they found that there was pressure by higher ranking officers to exert official action they found that the police officers had or at least it's contemplated or conspire to drive officers to get that official action there is no requirement that the actions by the official be illegal and again there is no requirement that the actions by the officials be it for lack of a better term bad policing what happened here is that there were suspicions to be made by the police department the decision about whether to issue a gun license a decision about how to use the limited police resources which is the type of official action that was that for it mcdonnell itself and in each of those areas those concrete areas the fissions on matters and questions that were pending before the police department the bribe went into the decision making process and we can i want to say that  limited lenient is not necessary because on the record as it currently exists this court can find that what ever potential conflict there was that that conflict did not cause mr right but any prejudice the advocacy at trial and proof prior to trial was incredibly vigorous there are there were no avenues of you know of defense arguments or motions that were not pursued by there's there's there's no there's there's there's nothing to that argument at this point but more importantly i think that there is really no identification of any prejudice to mr rice for that in new york from any potential conflict that i guess i'd like the government's position as to whether there is a remedy at all well your honor the st thing i want to say is that there is no precedent that production of discovery of which the government was properly in production and so for that reason among other suppression it's not warranted and in addition the fact that judge was found that the government overproduction was based on a reasonable misunderstanding and that the government acted in good faith and for that we said also that suppression would not be born to and i think it is worth pointing out that since that time the government the u s attorney's office as a whole has adopted  more conservative approach which is the one that was not taken here which would be to in left there is an expressed waiver from defense counsel to perform the response of miss review before producing documents or other materials but here the government in some some was in a position in which we had to either we knew the responsiveness through he would take quite some time period of many months and on the other hand we had were faced with discovery requests from counsel and so in an unsettled area of law given the policy and law that that was in it it was in place at that time in the government the situations to produce yes to two actually but this one is the point that you're making that the government hasn't but revisited this whole question and adopted a more conservative approach an indication of why suppression should not be ordered because it was or or any remedy should be ordered because it is that there's nothing to really castigate the government for given the circumstances and therefore there's no from my standpoint to to understand when to to put myself inside miss necklace this hat about when she became aware so and i also was not counsel of record in the hebrew consumer felt case so i want to i want to speak very  specifically about what what i know so miss necklace that on the record in the right for pay that she had i think it quote assisted before trial there was no further development about what that  consequential nobody else raised the issue of the potential conflict at that point you know that that's correct your honor and also the record should be clear that the government was you know did raise and it's a separate potential conflict issue and and and so you know of course that's not the answer the question here but it just shows that of course you know conflicts are something that were on everyone's then i'll be very brief on the currency zero issue and i thank my opposing counsel for laying a few things out for the court the court meaning the district court has an independent duty to inquire about curse you know i mean i'm not an expert but defense counsel or even the government although the government in my experience has always written a letter i think the th amendment issue of the suppression that was discussed here ms necklace that's when it came up she should have you know if it was hard duty she should have done it before so that's just my point with the kirsty oh hearing back to the honest services and i think you know the gun license the government cannot t a gift to the gun license and i think the evidence at trial and i know the evidence at trial because i was grant's attorney that the evidence at trial it showed that this friendship between jeremy like berg and jimmy grant was playa to the conspiracy spotting doring the conspiracy and it is till this day and they will be till they die so if you or have a friend as a cop it is common sense and you're applying for a license or anything they could say they can cool down there's nothing  is your argument that instruction given was inconsistent with silver or are you just preserving a challenge we have preserved we're preserving it but i'm just giving you the common sense you know what happens in the real world you know this is not an official act number one number two if you look at copa my opposing counsel did not bring up the rule sixteen argument nor i did but if you look at the rule sixteen on human very briefly the government did not turn over all the evidence from the licensing division during our trial so we don't know if germany like berg's license was there a was not there because they were missing documents from the sister case with the gun license you know i think i think your honour's resnick said that he paid for access but there was no connection whatsoever between the gifts and the acts all the gifts for supposedly grant was in two thousand and thirteen and then you know counsel said that they were busting you know b a was it's an inflammatory thing and i understand the government there are excellent lawyers but it's just not an official act and you cannot tie any gifts to that act and nothing was done long if you put that on top mean it's done every day and that's not an official act i'll just look at my notes and i believe i'm done thank you so much