it please the court i represent james to morrow in this case juries task in this case that bribery case was to decide whether mr to morehead criminal intent making inferences from all the circumstances which is just as this court described in united states versus terry the jury's task but the jury here wasn't equipped to do so because of district court errors it was given an inaccurate picture of the facts and it was misinformed on the lines that separate federal bribery from not first on the facts central to the government's case was that mr de moore a concealed receiving things of value from alleged robbers and that showed that they were criminal intent as concealment point i take it that's not an element it's not that's absolutely correct it's it's it's facts from which the jury could infer amongst other evidence that mr moore had criminal intent or received or the value of them what they require him to do is list the people that he received things from if they if they exceed a certain dollar amount one hundred dollars for things of value seventy five dollars for meals and he would he reported  the allegation with miss coppers was that he received sacks and that she paid for a hotel room when they were in the midst of a sexual relationship with mr paine it was that he received limo services that mr paine had sort of a bartering arrangement with that receiver access to a condominium that mr paine had access to out of well the government says fifteen bribery schemes and people right that's right and and those i point out those two schemes had some of the weakest direct evidence neither ms coppers nor mr paine testified and there is this kind of a full for effect then with all the rest of the schemes which is if he's concealing receiving things from all of these people well or you say it simply wasn't hearsay he was introducing the forms for the facts that he was disclosing these people he certainly wasn't introduce them to prove that he did receive things of value from these people or any other assertion that that could be gleaned out of the forms it was already an act of disclosure the relevant facts just to make sure i'm getting the answer to judgments question are wanting the fact of filing ethics report two listing names that's right that's  or listing names is a guess is that three what's the listing names as people that he received things of value from or meals over those certain amount so it's irrelevant that it was under a category that said gifts absolutely irrelevant as far as mr morris purpose for introducing it was if the district court felt that that would be confusing the fact that it's of the word gifts there'd be no objection to a living instruction to redaction i mean everything else could be cut away that's the purpose that is introducing them i didn't conceal my relationship that i was receiving things of value from those people even though the government says i did sixty times through their witnesses is disclosure form lists that the five individuals receive gifts from them are the subject of the bribery and i guess the other forty four would be maybe legitimate but eleven are all intermixed with the other ones that's right and it doesn't say what the gifts w for how much the amount was all you got is a bunch of names correct so that's really not full disclosure is it i mean it's just having to leaven names within fifty five and it doesn't show a heck of a lot does it i mean it shows the exact opposite of what the government told the jury which is the government twenty nine times in there was eleven can be buried in here w true really about pay much attention to it so that's absolutely true but they're there and the government told the jury he didn't disclose receiving things of value from these people twenty nine times with the words things of value not with a specific thing or a dollar amount or anything like that and that was just locker room he wasn't going to assume the trial court corrected that at the end of the trial when that did not or you would know that you would get an instruction that ladies and gentlemen you may only consider the evidence that was rendered there was no evidence and whether or not he disclosed it oh no there was no instruction like that while there should have been you didn't you didn't request one he he requested i mean arguments of counsel are not evidence no absolute if not so if counsel for the prosecution says things that are not supported by the evidence you have a right to have that argument struck from the jury and the jury jabs lewdly and yet to be clear the government introduced through their witnesses twenty nine times he didn't disclose receiving things of value through the questions that we compiled a list of questions at the end of the brief and then argued from that evidence that that established he was concealing from everyone from the public from everyone that relationships with these nine people i mean this hiding thing seems a little funny the hiding goes to the hiding the bribes hiding the conversations there was no hiding about to morris relationship with these nine people i don't understand the question i'm just making the point you tell me which one of the nine everyone didn't know was an acquaintance of the more and did business with tamara that's not part of their theory their peer theory was the hiding of the phone calls and that it was this you know clever way of putting things you scratch my back i'll the other evidence of ten of intent was circumstantial and the direct evidence was weak that's i mean that's what seems harmless i still think there's a four zero three way of thinking about this which gets abused discretion review but this idea that the rest of i would both take it pretty happily oh absolutely no no question and that goes at but that also goes directly to resolve role wasn't established for and it goes to the line that separates federal bribery from not which is his words there do an agreement they established that he was hoping mr de moore would give would be would help him out if he could in the future terry itself shows that you don't have to pinpoint the exact thing you're going to get absolutely not and i'm not disagreeing with that but there still has to be an agreement and you just you just said something that was consistent with what i was trying to say earlier several in and tomorrow were known friends yes it means nothing to say i got more than seventy five dollars in the sky in the year in terms of why does that prove there wasn't a bribery scheme i don't understand it doesn't prove it but when the evidences of his intent is is mixed i mean honestly there were phone calls when morris told someone i hope you're locals then you'll get the contract but if not you want the other the other guy who's really involved in this is russo it's rest of isis is just a i mean he has on and on about this is how we did things that's clearly admitting what he was doing involved drives right and mars the other guy doing a million dollars of schemes that had nothing to do with them or i mean that's that's there's no dispute about that but secondly russo concealed all of his bribes on these ethics reports he put nothing down that was the way the russo approach that i'm taking bribes i need to ok this is complicated do we really want to have these many trials and then you have to go to the income and what's not reported as income and zero and my response to that is there's no reason we have to get into any of that first of all man this statement here not the government the district court says the statement here that would confuse the jury keep it out none of the things that that she pointed to to morrow said that it was crucial in and having evidence about what ethics reports are and how they were and what you're supposed to report and that was that and most of that was stipulated to which is these are the ethics reports that are required to be publicly filed that are available to any member of the public investigator a journalist anyone even anonymously they're authentic and and again everything else i buy have to file public ethics reports that stipulated to and on these reports i disclose receiving things of value from these people directly contrary to what the government introduced into evidence and what they argued to the jury they should infer criminal intent from amidst other mixed evidence a package you wanted it with the russo ones to that's absolutely that's another whole set of things it's the same i mean the same argument there's no hearsay there if anything that shows it more starkly more certainly wasn't trying to prove russo didn't receive things he already said he did he was trying to prove that he concealed them on there and the relevance is clear once they're both in which is if these are suppose coconspirators and russo is hiding everything and more is listing everyone but what about the fact thinking about it i mean all that it showed was the more it didn't violate another law i mean it's almost it's almost a little bit like good character evidence in other words it doesn't go these things do not go to the elements of the offense it go and so all this did was show he didn't violate another law why is that something that criminal defendants entitled to get in it goes to his intent and by the government's argument the government argued people who are taking bribes they need to keep that a secret he their lead investigator agent massey testified that great measures taken to conceal these relationships and he was looking for evidence of con value that's a twenty two for two two four three seven and the government are using that same argument governor mr gilmore could say both what the government told you jury it's wrong here i disclose these things i wasn't keeping it a secret but secondly using that same argument people who are bribes need to keep that a secret need to keep these relationships a secret i didn't that same argument i would i'm not taking right see that you can infer my intent he didn't disclose these things all he did was he just had fifty five names there didn't say right what he took that's that's correct how much the value was just a general eyes laundry list of people that's correct and it includes but it includes the alleged  who the government argued you would want to see actually specified what he took from might be a little bit more relevant that's all it would be more powerful no question about that but it's directly contrary to what the government argued and what they introduced into evidence ok thank you direct the court's attention to the amount of loss calculations used by the district court in most specifically to the amount attributed to him for the alleged job by mr bork maintains innocence he denies that he ever purchased the job that being said this was a also a rico predicate act not specifically try to the jury you know that being said even assuming you know that there was enough reliable and specific evidence the government presented scant evidence at all and certainly did not present any evidence to cover the entire term of mr gabor's employment gabor began in september of two thousand and five two thousand and five his employment ended in september of two thousand and ten the district court did fifty percent of that time period that the government actually presented no evidence whatsoever regarding what michael gabor work was after may of two thousand and eight additionally they did not present a single supervisor of mr gabor to testify as to what his duties were or that he ever failed in any of his duties the government takes great pains in its brief to assert that what they had testified and russo was kind of a supervisor roof so was too full hierarchal levels above  defending the board he was michael supervisors it is more knowledge and ability judge i would argue that it gives him less because he specifically testified that he didn't do a lot of micromanaging he let the individual managers handle their own departments he had many departments and it would be impossible for someone at that high of a level to what some low level county employees actually doing on the job either i guess maybe i don't think there's any any argument that russo wasn't on the job which actually is another one of my points is you know later he talks about seeing michael at pool parties all the time but you know russo was the head of the department and i don't recall hearing any allegation that he was not filling that  out in the field well yes he does michael de boer was he worked in the weights and measures department he would go to grocery stores he would go to gas stations check to make sure that the pumps were measuring things accurately that's what weights and measures is all about you can't do that job he didn't have a cubicle there he didn't have an office space there he was not required to check in and out every day take a board did not put in evidence it's just a question of how little the government put in says that was the way this works other than a cross examination  not specifically testify but this is the government's burden of proof they must prove the amount of loss existence and the nation other than cross examination of or some such in oh cross examination of russo and the other government witnesses but mostly this isn't you can't prove a negative it would be difficult to prove that michael was working he didn't maintain all of those evidence all that all those records were seized by the f b i and have a witness that says i saw him every day that's where his office was he was there and what they're talking about twenty percent of this time he was there one hundred percent well it was a government spurned proof and that's why that's that's why i said at the wes at it that your main point is that they didn't put in enough evidence to support this absolutely rousseau specifically also mentioned he mentioned briefly singapore pool parties that started at ten and went into the evening that some of these were on weekdays but he doesn't mention ni or ten in the morning ten in the morning till like six seven o'clock at night different testimony i think russo actually testified they started it but russo worked every day so if he showed up i mean anybody who has a pool party or any kind of party you know people don't show up all at the same time and mass and part of the repeated problem with both kelly pumper and russo regarding the pool parties they are tested by roughly the same thing there were pool parties sometimes they report parties during the week sometimes you go showed up around ten sometimes michael was one of the people and so putting inference upon inference upon inference the government argued that michael was always someone who always showed up at the beginning of every one of these parties that he was always  h people at these parties and that simply wasn't supported by the evidence there really wasn't much testimony of any that he was ever actually at a pool party when he was supposed to be at work on any specific date or any specific time just in general these parties could have started at ten and he was there at some point time he was scheduled to work of three thirty so easily could have been there after three thirty but it was cleveland parties what three weeks of the year this year maybe this year maybe that is additional part that's probably the most specific objective evidence that the government had regarding michael's work schedule was these poor parties and you're correct there are only a short period of time during the year that that could have been and only up through it would really only be the use of two thousand and six in two thousand and seven and only a portion of those years so even taking fifty percent of the summers wouldn't go to fifty percent over a five year period but to just remind me where the lines are that would make a difference here so you have this two hundred forty two thousand dollars figure what's that one does argument become a terril well so it the two hundred ten thousand dollar figure he's a twelve level increase disregarding the i believe in our brief we said that at most they show ten percent that brings him down for four levels which the way the progress of sentencing guidelines are once you get up to a certain level and mike was you know started at fourteen for rico plus two for high level official so when he's at that level every additional level is almost a year so we're really looking at between two and four years based upon the numbers just just on this one issue we have other sensing issues we've raised but just on the amount of loss for the i that's you know four levels and possibly close to four years additional time in prison for mr kapoor who is a very low level county employee he's very gregarious he doesn't deny that he hung out with these people after hours  you know can't deny that with in terms of bruce kelley improper that he had bad choice and friends but the actual evidence coming in regarding his work was was insufficient to carry the burden  please the court and when i begin i'm senior litigation counsel for the united states attorney's office for the northern district of ohio and i'm the lead trial counsel on this case on behalf of the united states judge lawyer a judge in this case who spent thirty seven days presiding over trial found that the breadth and depth of the more is construction corruption was staggering the reach of this corruption was far and wide he prevented others from having any opportunity to play on a level field and cause business men caught in the schemes to lose their livelihoods and their liberty the court found this is exactly the type of conduct that undermines the public's confidence in their government  much of that was there were two primary defenses your honor that which seems permeated trial the first was that the government's witnesses who pleaded guilty to their participation in corruption were all liars and the second was that it was friendship that these things of value do more received over ten years was friends or were you know and that's correct your honor the absolutely not your honor absolutely not for several reasons first is the court did not wholesale the exclude the zigs these exhibits these out of court statements of commissioner to morrow the court said not this way that they didn't do more to try to introduce them one way and one way only and that was to admit them offering them for the truth of the matter asserted based solely on an authenticity stipulation and that based on that alone without the opportunity for cross examination the court found that they would be it was one rank hearsay into the prejudicial value here that's right but it's not over for the truth of the matter asserted their wholly irrelevant to this trial the issue in this trial never was that more his associations the government conceded to more of did not hide his associations the case agent were to keep them out this way your honor to keep them out the sole way that the defense tried to admit them and the reason was because they were more him to prove there were several ways that the trial counsel for defendant a more recognized they could be admissible as did judge leroy and her many thoughtful detailed fact intensive rulings on this issue but the fact of the matter is due more i didn't want them admitted another way because he understood really he was concealing on a for example at two three seven nine six in the record when kevin kelly called about china did he disclose that he returned from las vegas the answer was no it was a very specific bribe that the government questioned at two three seven one three to decide to more or disclose to sweeney that you various claim had just given him a rolex watch a refrigerator and a t v the answer was no it was very here summarized his testimony and the agent did not say it would be easier if the subject disclosed all associations agent massey testified at two three zero eight zero it's not necessarily the associations it would be easier if they had disclosed the official acts done in return for the things of value so the issue was not whether or not to more a broadcasted to the public he was out to dinner with these people indeed the government produced ample evidence that that was one of  such as the four thousand dollars dinner party that fair is clean hosted in majorca and the eight hundred twenty six dollars dinner party that eight sponsored way to think about this i mean obviously there was concealing but the consuming didn't go to the friendship  irrelevant why the district court did not its abuse its discretion in finding that in many men based on os based on authenticity alone was one rank hearsay into overly prejudicial least based on my reading of the record i wonder if you overstated things and responding to judge merit i mean i agree with you initially but i thought initially she said they can come in you just gotta figure out a way to do it right then when they tried they couldn't seem to get agreement but i will say by the time that they're the closing you know their case is over and you look at that conference it's so does seem to be a case focused down to all we want is we just want the reports filed we're not using them for the truth of the matter and we want to just say we acknowledge these names so i know i feel like when you get to that it seems to me they're hearsay arguments a little better that point not much better your honor and for these reasons the government offered to redact the names and at transcript number two seven one six six the defense demurred redock which means what you mean read back the name the defendant repeatedly explained to the district court three different times the primary person purpose of these forms was to show he did get meals from these certain persons which was the truth of the matter asserted namely that these persons were the ones who gave him these things and critically important your honor it was it was meals in connection with his government business and gifts puranas not bribes from these other people and when we offered to redact th names or to suggest perhaps that every name was replaced with john doe the forms no longer become relevant and that's how we know maybe maybe i just don't understand hearsay but i guess i had an instinct that they were right about two things they could get in the fact of filing because that's the documents true it's the only point is it was filed and here's what that means under shariah law then the second thing was the fact of identifying names why why couldn't they get in the fact of identifying the names in an ethics report because that's hearsay but what truth of the identity of the person who gave that thing that gift or gave the meal in connection with government business is hearsay i know the truth is but the purpose is that he h file whether or whether or not it's true he listed these people and that doesn't that's not hearsay but that's a that's an act itself irrespective of the truth and they say it has relevance because it goes to the fact that he didn't conceal it and that's to parse your honor and this is where the district court did not abuse her discretion in finding that the forms would be overly confusing it were misled the jury that's another issue because it's part of the house or judge griffin of your question which is that the fact of whether or not he filed a we fought it this way your honor the way that he wanted to introduce it with the out the opportunity for cross examination a critical factual difference in this case is not that he just omitted to bribe payers he admitted kevin paine samir mohammad gina  single company that gave him things of value most by pay yours were the companies so the fact that he listed some individuals who may also have given him gifts does absolutely nothing to move the ball on the defense that these were not bribes  gifts or not whether the gifts are legal or not so i think the judges on keeping it out of hearsay but then the second thing is she also ruled for three analysis that the probative value is substantially or weighed by the danger of unfair prejudice which i think you're a little footnote here but you know you're the trial counsel here and you know this is going to be an issue you have a lot of evidence against and i'm just kind of surprised that you fought so hard to keep this document out when it may or may not have made any difference you created the appellate issue here and if you if you if you had a lead it in let the chips fall where they  fought hard to keep it out the way they wanted it made it it's critical the district court's findings of facts and judgment on this night invite your honour's to read those especially exhibit a document nine thirty in her response denying the motion for new trial is that the way they wanted mid without any witness to test the credibility of this document and explain it would have been so confusing would have misled this jury would have brought us down this rabbit hole and it's critical remember your honor this is a thirty seven day trial of eight to six trial days eight o'clock in the morning to six at night the judge understood better than anyone what putting this form this preprinted form would do to the jurors and her first concern was that while the statement was that disclosure does not a complaint with compliance it suggests that disclosure equates with transparency in doing so the statement would have the effect of asserting the jury's province by suggesting the ethics commission has already passed on this she had for other reasons why the court believe that this was going to be so far afield especially when your honor he did not list every bribe pay or for some of them he didn't list every year he the government was ready to produce evidence we put this on the him from these guys and i respectfully disagree around her because the federals of evidence provide that the district court should be a gate keeper and they charge a district court for being a gatekeeper on evidence that is otherwise an unmissable chambers said the federals about it in supply to both sides and that is that district courts duty it was her duty to ensure that the defendant did not lead this jury down a road that was completely irrelevant to the issues at trial to two to seven six that there are very well times about the issues of the ethics forms that will arise during the government's case and we would like to use the forms and the courts established a protocol moreover the district court recognize she said it near the end of the case as judge griffin was referring that this was a moving process at the end of the case she said it's not only through your own client's testimony which is one way but there are also innumerable other ways that i can imagine it but my job is not to tell through divorce testimony and the court recessed sent the jury home consider the issue for the night this was not a fly by the seat of the pants ruling the court recessed to take careful time to consider the issues called counsel that evening late into the evening to give the ruling and again gave the defendant extra time to consider the different ways if not admit to say that it's not admissible this way not this way one way would have been admissible there are several  obviously is through the defendant's own testimony the second could be the cross examination of the people who gave him the things of value he could have been peached steve pumper or famous claim and said you do you bring in the morals ethics report verse somebody else i mean days leading up to make sure i understand why you said something earlier which bears on for three harmlessness ok yes your honor that you said the even when he did identify certain names of alleged bribers he didn't do it every year that's correct don't tell me what you mean by that have many because i mean that's the hard one inquiry about harmlessness is you would have opened the door to devastating in other words it would have been very hurtful at the end of the day years but also it is critical to understand that the bribe so that would be nice six people that would there would be a discrepancy between the evidence and trial of what was done the ethics report yes your honor and you said something about companies yes the ethics reports require companies to be listed no your honor and indeed well i should not say that i didn't i did not read the up its report closely enough to know whether or not a company is required to report but most of the bribes came from companies in this case so far but i'm not sure we're communicating with each other is would do more under the ethics rules have been required to list a company providing a dinner i do not know that your honor but i do know is that most of the bribes in this case came from companies and to illustrate various claim was one of the people listed on the ethics report but the ca some of the bribes and most of the bribes came from cleans businesses same with pumper the work being done under morris house was the work being done by d s construction the most tickets came from d a s development and none of those relisted  evidence a rough estimate of the alleged bribes and what percentage came from companies versus what percentage came from individuals as opposed to the individual using his or her company it's most your honor it's not it was most of the percent well over ninety percent thinking of the individuals offhand that gave things just the individuals off hand that gave things of value pay for the hotel room and obviously gave sexual services she's won some of the end clean sometimes reimbursed their companies for the work so that could have been an individual that would have given it but charlie rangel as it was came from a financial network of an america which was his company several relic aim from will have to operate through the individual that's correct your honor and it's noteworthy that the individual bribe a orse in many of the cases we're in and all of the cases except for john valentine were not the sole owners of the companies and with respect to fairness claim he was at one of the either equal or slightly minority partner and one of the company's phoenix men which received or that would which was trying to receive it did receive one of the j c contracts so these are not just individual so proprietorships with the exception of sell the stone which was the brock issue that was raised in this case so these forms to judge sutton's point your honor is that even if they would have been admissible they are not the keys to the kingdom because the government not only would have produced evidence that the forms are incomplete but also critical testimony as to why as to do more is knowledge that the information on the forms was incorrect the government had to exhibits marked in the rebuttal exhibits and we intimated these to the district court that following than a grain prosecution a case with which this court is familiar to more received an e mail that says joe jones was prosecuted because he had false statements on his ethics reports and e mailed them next time you have an ethics report that is incomplete or misleading make sure you don't send it through the u s mails following that e mail every single year or more i handle live or those forms which would have been critical evidence to the jury to show that the more wasn't in fact disclosing everything to everybody argue that's correct together with the fact that we would have had a witness from the ethics commission to say that if these were bribes and he was properly report of them as bribes they should have been under the income section and not the gifts section which was another got yes your honor and that's all i want the government briefed in limon a to go to judge griffin's point we were trying to avoid a problem and briefed in limon a the type of evidence the government would submit in rebuttal to avoid any surprise to the defendant so he had time to decide whether or not in opening statement he wanted to mention those forms and with regard to your honor's question about truth of the matter asserted i invite you to reread the opening statement of counsel at two to six seven five were jim morris said that people gave him gifts people bought him dinner and those are the people he put on his ethics report in their opening statement the minute it's for the truth of the matter asserted that he is disclosing all of this when in fact the government's point was not that he concealed friendship that he concealed the case because i mean it's a preponderance but you do have to put the evidence in so what i mean what's the best piece of the best place for us to go to get a comfort level with this estimate i realize it's an estimate over ten years none of this was going to be easy no matter what you had but what's the best witness or best place to look our best places to look to show that the district court did not commit clear error following her half day sentencing hearing on this case your honor is to six to zero seven which was trial testimony whe michael getler told kevin kelly i work an hour or two a day for frank russo and spend most of my time working for demoralise that's the defendant's own statement the second best is the statement the testimony of frank russo where he said this job didn't exist i created this job knowing there was not enough work to do knowing that the boy would have a quote a new life which is what he wanted because he was slaving away in the deli and indeed that could have proven or could have supported the district court's finding that one hundred percent of the that judge roy made an error in excluding the morals ethics report as opposed to russo's why would not that error be a harmless error in view of the overwhelming evidence  the government produced to get your client right and that's the tell me why it would not be harmless error committed error search who is to look at it i think one is the government's own statements in the district court's own statements during trial which is the government said their evidence of concealment which was asking to disclose things of value you heard the way i looked at i mean i think you're saying conceal that is the way you keep saying and it's not the concealment does not go to friendship everyone knew they were friends i don't even think their doubts their having meals together it's concealing the key thing with the bribe and the quid pro quo i also i want to be very clear on that to the government a step out tried to establish criminal intent by asking questions and then arguing to the jury did he disclose that he received things of value sometimes specific things of value but twenty nine times not not just if you disclose the arrangement if you just awarded the contract what happened the weekend before that was the vegas trip the ethics reports do nothing with that because the whole point is timing that's what shows that's what's the circumstantial evidence of an agreement absolutely and the time the time is another issue absolutely and the timing varied widely i mean we summarize this in our brief sometimes it was a lunch meeting that led to a call what's going on with this contract sometimes it was years after or before but the district court observing all of this in response to d objections when they're asking do you disclose these things of value observed i understand it's important to the government's case to be able to indicate there wasn't any disclosure of the things of value that was the district court's observation watching this happen all how this would tip about and that's my first point which is the district court itself said this was important observing everything at trial the second point is we can go through the scheme by scheme point by point but the general point is there are all these phone calls forty four thousand over fifteen hundred hours there's not a single one not a single one what is the discussion of an agreement which is by itself yet or are not about agreements no absolutely but we're all about all of this is about inferring intent did you have criminal intent or not there was no agreement there so then it was testimony as important in our brief most of the witnesses did not say they had an agreement that they had any discussion with to morrow where they said i'll do this for you if you do this for me would and covington which says in less the court is sure that the that the error didn't have an effect on the verdict than should reverse the not beyond a reasonable doubt not beyond a reasonable doubt right reasonable probably and i'd point out within is a reasonable probability isn't it it's whether the court is sure that it didn't have an effect on the verdict yeah and doesn't ok probability stand it's a reasonable probability although there's there's a few different standards expressed honestly they're all getting that to the seven effect that in response to that they they said in opening statement we're going to show you his office requests right and i can address those arguments if you like i think there's a fourth in our briefs so just what's the rule and ethics reports in terms of gifts from and it sounds like companies want to dennis fight what's your answer to that point the the government's own case was that these things came from these people that's what they told the jury it's only after and it's only actually going to feel that the government's check is from a company that's a vial absolute of it's rules absolutely and if you're if there was a check from a if there was a check from a company i would agree with you there is not there is people doing work there is there is travel where those people build those things to is is  company comes in and builds the pizza oven and does the porch and does all that stuff right the company the company bills the company doesn't insist on payment how is that not something if was to be disclosed in the ethic absolutely it would be if  well that's a different ok i'd like to address both of those if i could yes three individuals were accounted for and years they should have been given the evidence the trial to explain why that's certainly kelly first of all what counsel's referring to was an were says he discloses everything he didn't disclose everything that he's not the purpose for this isn't i'm disclosing everything always it's i'm disclosing these very people the very things charge think you would that would of been very fortunate to have it go that way that you could they could argue these other things well i understand the government could actually absolutely come in and argue to the jury well on this unindicted thing from pre that before the indictment period he didn't disclose that nor would say ok i'm fine with that you didn't get opportunity to go into any of that stuff that's true too of it was in it that's absolutely right with with mr valentine mr valentine wasn't sure about when he did work for mr moore so there were two years from the moore would be well he wasn't sure he just closed in two thousand so in two thousand and eight he's not hiding it he's getting things from him and then with ryback i'm not sure what counsel's referring to i don't recall in the briefs as to where there was evidence don't my impression was that mr ruddock was disclosed on the forms and every year and i don't recall any argument to the contrary but i mean my general point judged for me answer your question still originally is with all of this there was evidence from which a jury could infer criminal intent but we're not arguing sufficient evidence with most counts but there was also countervailing evidence we cited some in our briefs the phone calls were to morris says well i hope you're low then you'll get the contract but not if you're not but when the jury was wayne this evidence it was left to ask but why would he conceal these things if they were bribes and with credibility determinations with inferences that would tip the balance for me so it sounds like there was some testimony from your client on this issue what ms bacon was referring to was a telephone call that was in her actually no not a telephone call that was intercepted that she was referring to a comment that  mr kelly made which i would say was not on the best evidence but the only evidence the government support presented which was support the across the board figure the question was did michael ever tell you specifically in the timeframe of two thousand five to january of two thousand and eight what hours mr kapoor actually worked in the weights and measures department and he was and the question was what types of things to mr gabor tell you about his work schedule answer he was basically working an hour or two a day that's it that is the only evidence that could possibly support you know an across the board number we don't have any idea what the context of this conversation was  if it was even made kelly testified that this wasn't even a job that was just invented no state on those lines i believe russo said that there there was an opening the fact remains that it is still th of the government to show up or did get a job he definitely worked in weights and measures there was no question about that research testified that michael did work in the weights and measures department the the  two cases that the court relied upon united states versus barons and ever get the other case but correctly determined that in a bribery type of situation you do look at you still use the same role that you look at the net benefit or the net loss and here that would be the difference between you know the salary that michael capone was earning versus the time that he wasn't actually working and it was the government's burden to prove  that there wasn't a loss and this isn't a question of two different views of the evidence this is a question of no evidence at all being presented which would support fifty percent for a five year period there are no further questions now thanks to all three of you for your helpful briefs and all arguments we really appreciate it will work through the case and thank you he said he submitted the curtain call the last case