privileged by federal election law and that for the police level it's preempted well essentially the argument is that federal election law creates a privilege for him to steal this money if he had said if his laws were well before i get into that i'm going to reserve two minutes of my think thank you if you had said i'm collecting money for charity and it wasn't right that's fraud that's easy i'm collecting money for cancer research whatever any lie you tell in order to get people to give you money that's a crime and that's what he was convicted of but here because the law he told well had some connection to the federal presidential election his argument is which the district court accepted that now you're in an area where the state of michigan loses its power to protect yeah i mean it was yes it was obligated to i suppose that's an interesting question your honor yeah i think it was and it did it did consider the preemption argument now one of the the big one of the two major  considered it and then we're getting our next analysis is whether it determination was reasonable or not reasonable exactly your honor and it is the result this is one of the major mistakes that the district court made here is that it is the result that talked about the unreasonableness the entire thing was a critique of the analysis engaged in by the machine court of appeals the length of it the cases that side of the cases it didn't etc none of this has any basis in it but this is a complete violation of sit to grade the quality of analysis of state court decisions they are to look at the result reached and to consider to affirmatively consider any arguments that supported or could have supported that result and to consider whether fair minded jurists could disagree that these were contrary to unreasonable application of clearly established federal law as set forth in united states supreme court holdings the district court didn't do any of this instead it said well these cases don't apply that you cited these cases you could have cited which are not u s supreme court decisions these are lower court federal court decisions and in fact it got the case the district court identified as most on point the district court actually got the holding of the case wrong and this was friends of phil gramm said well so first off the state court wasn't even required to consider that because it's not a u s supreme court case it's a case out of the eastern district of virginia and second friends of phil gramm the eastern district virginia didn't hold that the fraud claim was preempted by the federal election campaign act it said we i have to answer that question because there are other issues with the plaintiff's claim there's not enough evidence on it so there was another claim that they did find preempted but the fraud claims it didn't hold were preempted the other sort of the other fundamental problem with the district court's decision aside from violating at is that it fundamentally misunderstood the nature of the underlying criminal prosecution or the state of michigan did not prosecute the petitioner for violating federal election law this was as i started the argument by telling you judge gilman  this was a prosecution for theft for fraud for false pretenses and for larceny by conversion you will acknowledge that as a part of the prosecution the prosecutors typically couched predicate for the criminal action and you can look go back to the transcript and look at the jury instructions and they don't have anything to do with election campaign the petitioners knowing violation of these rules was probative to show  basically for a for be evidence of an essentially it was intent motive lack of mistake things like that so if the petitioner argued well i was you know just doing this which is fine the prosecution can say well no no what you did here it actually violates the federal election campaign act that's not the basis for the prosecution but it shows the jury ok this wasn't just something that was being done in good faith it's probative of his intent it's not an element of the crime the crime again is tricking people into giving you their money by pretending that you're affiliated with al gore pretending you're affiliated with george bush when you're in fact not that was the question that was given to the jury and the jury believed that the prosecution had proven that beyond a reasonable doubt or any case directly on point hol supreme court saying whether state prosecutions fourth after these kind of rounds is or is not preempted by the federal election campaign there is not your honor there is no u s supreme court case considering the preemption provision of the federal election campaign act which is a huge point in the state's favor in this case because without that all you're left with because again the district court has to look at clearly established federal law which is u s supreme court holdings and you can't look at any u supreme court holdings on this provision because there aren't any and so what you're left with and now the district court says well we're saying that you have there's no case of the exact same fact pattern that's the straw man we're not saying you have to find same fact pattern we're just saying there's no case basis the district court didn't recognize that you have to give maximum leeway to the state court here because this is a general rule that they're applying analogous to like strickland infected with of it yes you're anything i would i would argue that it is actually more general than strickland so stricklin as a general rule that's entitle to a lot of leeway i would i would say that this one i would argue is more general than strickland i mean what the u s supreme court has said about preemption and  what's they said that when you look at these questions what you have to look at the intent of congress and this is a quote they said there can be no one crystal clear distinctly marked formula this is what the u s supreme court said about express preemption  i think the closest case on point now the district court cited pennsylvania versus nelson as an example of the u s supreme court upholding a are excuse me finding a state criminal conviction preempted it's exceedingly rare that a state criminal  conviction state criminal prosecution is going to be preempted by federal law in fact pennsylvania versus nelson is the only case that i've seen and i think it's the only case identified by the district court or by the petitioner but pennsylvania versus nelson  couple of other cases and i think fox versus ohio is a case that is the closest to a point as you'll find now in this case ohio sought to prosecute someone for passing counterfeit money is clearly borders on a federal interest here so there's clearly a preemption argument to be made and the supreme court rejected that and said and i'm going to with the court's indulgence i'm going to read from the case because i think this is applies very closely to what we're talking about here the us supreme court said the punishment of a cheat or a misdemeanor practiced within the state and against those whom she is bound to protect is peculiarly and appropriately within her functions and duties and it is difficult to imagine it interference with those duties and functions which would be regular or justifiable that's what we have here we have a cheat by within the state of michigan and the state of michigan is punishing that and it's difficult to imagine an interference like the district court imposed here that would be regular or justifiable  similarly the pennsylvania versus nelson court cited its own decision in gilbert versus minnesota which was a state prosecution for interference with u s military recruiting again a federal interest at stake a preemption argument raised the u s supreme court said no minnesota can prosecute that the state can prosecute that you have an interest here this is not preempted you know as i understand it the f e c a has this expressed preemption pr supersede it and present any provision of state law with respect to election to federal office yes and there's just one very limited exception and it's just donald and her questions reliance here by the  i'm still having some difficulty with the argument that this is not it wasn't clearly established that there would be preemption here it wasn't clearly established that there would be preemption because the the criminal prosecutions were not predicated on violations of federal election campaign and these violations were probative of the defendant's intent but the actual elements of the crime the prosecution could have proven its case even without any violations of the federal it might have been more difficult they might have had a tougher argument but this is just probative evidence of his absence of mistake of his intent and i'm i'm glad you brought up the statute because as the district court recognized the supreme court said to look are nine sort of categories of state laws that are not three that are preempted and nine are i'm sorry six that are not preempted this prosecution does not fall under any of the categories identified and b he wasn't prosecuted for any any problem with organization or registration disclosure of receipts and expenditures limitations on contributions of expenditures none of that had any role in the prosecution if anything this conduct fell under now our argument is this doesn't fall this isn't a state law with respect to election a federal office at all but if you're going to consider the regulations and look where this fell i would look to subsection c four where the state is allowed to have laws prohibiting false registration voting fraud theft of ballots and similar offenses not preempted so the state of michigan can criminally prosecute voting fraud not a preempted by the f e c yeah but the argument here is that when it's just regular fraud which is always within the state's power to prosecute now it is preempted by the f e c and it doesn't make any sense the prosecution wasn't based on b one b to b three this was simply the petitioner tricking people into giving him their money just as if you were lying about being affiliated with a charity just as if you were asked and said wouldn't have been reasonable for the district court to see that this was a even if i can see that that's reasonable and i responded to i said it's not result but even if it were reasonable that's not enough to grant he vs relief if there are two reasonable ways you can resolve this case the state has to win because it has to be on reasonable and error in law be on any basis for reasonable disagreement for a fair minded disagreement for the state court to hold is that it so even if it's reasonable for the district court to say oh this is a election campaign prosecution it's also reasonable for the state court to say it wasn't the statute is ambiguous with respect to the language that it expressed that this place is any provision  courts holding was objective leon reasonable a mistake the words from harrington versus richter or any one of a number of recent u s supreme court decisions on how you have to show that the state court there's no way any fair minded jurist could agree with what the state court did so if it's ambiguous we would know our position it's not ambiguous this was not a state law with respect to election to federal office and so we went on those grounds as well and i see that i'm out of time so unless they're for the questions i'll see you again on republic i think you fraud i think there's a huge distinction between the word privilege and the word preemption i have certain privileges as i'm standing here making my argument in open court but if i get outta line you're not preempted from holding me in contempt so there's a huge difference between the two is that privileged to commit fraud because the f e c can step in and they have a variety of  there are two policy points that i want to emphasize i know this court doesn't you don't set policy but i want to emphasize two policy points that congress gave us  the preemption is to promote and insist on consistency and uniformity of application of rules and interpretations to federal elective office and it this process that they've created prevents individual states from interfering in that and causing federal candidates to have to respond to different standards in different issues in the various places and this is obviously even more important with a presidential election to some extent congressional but obviously the presidential because they would be dealing with fifty different sets of standards the second policy issue is the first amendment concepts that are built into campaign finance that has been litigated there have been a lot of changes over the last several years it's obviously a very important public policy issue and it's our position and i think congress is position that we're building in a structure to protect and recognize those first amendment rights by having the f c c first usurer medial measures and resorting to criminal sanctions only as a last resort so those are the two the key policy things that i think have to stay in the forefront as this is considered so when you look at the typical scenario that we all learn initially in law school what does the constitution say constitution never reserved this particular power to the states that's important when we look at the case law that talks about where is this presumption that the power can be exercised for this issue it was never granted to the states by the constitution you don't have the election clause of the constitution but you know what about how do you deal with a supreme court case of cook versus greylock from two thousand  which says the interpretation of the election does grants the states the ability not quote to regulate notices registration supervision of voting protection of voters and the prevention of fraud and corrupt practices in this prevention of fraud and corrupt practices that your client was prosecuted for by the state and i'm sorry i was the year in that case two thousand and one i think that applies to the ability of the states it's in that narrow area of congressional elections where they can regulate certain aspects of congressional actions like the place of voting and certain other instances of the qualifications of the candidates i believe that that is limited to those narrow areas and the prevention of fraud and corrupt practices is what the supreme court that when we have in this is interesting i noticed they're trying to define voter fraud broadly they being the responded here i looked at forty two u s code section one nine hundred seventy three which is the listing of prohibited acts related to voter they're trying to say that voting for audit but i looked it up and it's talking about the casting of a ballot when you're talking when you see voter fraud in literature i think of the casting of ballots interfering with people showing up at the polls the id law issues so i think when they're using that in that case you decided to obscure when i think we're talking about the fraud related to the eligibility to vote in the casting of ballots as opposed to campaign finance which is clearly something that congress wanted the f e c to take care of so i think that's how it would have to answer maybe less focus specifically on the federal election commission regulations though the deal with the very act we're talking about you know there clearly you have to concede that there are certain actions that the state can take that are not preempted by the federal election campaign that right because the regulations specifically talk about what's not preempted and so three right exactly and i think there are four categories i don't know if i can rattle off the top and i had voting fraud and similar offenses are things that the regulations specifically says are not preemptive right right ok so maybe this isn't voting fraud because it wasn't casting a ballot what about though a similar offense i mean here your clients going around saying hey give me money for bush give me money for gore when in fact most of the money ends up  came back because it was rejected that's the math that the state did but i think the percentage is higher because one hundred seventy two thousand of them were seized so when you do the math you subtract that out the percentage is much higher whatever it is the when you're talking about or similar conduct it follows the phrase voter fraud and i i think that's a good debate your honor but i think at the end of the day because we are dealing with express preemption as opposed to a field that's been occupied or a direct conflict with a state law can you cite me a supreme court case that holds that the federal election came back payin the direction of our legal principles that flow from united states supreme court decisions but the council i think you just acknowledge that alleviate it that the supreme court if never rude or that a state cannot preemption those general legal principles are very clear from the u s supreme court and they set out the path that a court should follow any time a new set of facts comes into it let me give you an absurd hypothetical in the booth and vote for john doe are you saying now that a state could not prosecute that crime under its general criminal laws just because that happened in the context the election oh i think there's an almost an on point example of that and forty two u s c one nine hundred seventy three i it's pacifically talks about dress threats acts of violence blocking the the voting booth that specifically defines it under the federal law so it would stand to reason that when you're talking about the concept of voter fraud which is excluded under four hundred three and want to weigh point seven it would fall under the recognized definitions of voter fraud it's broader than the word fraud obviously because it's almost to the level of violence but it it's intimidation coersion things of that nature talking about at the ballot so i think that it would fall under th now and as the supreme court defines that we have to basically say our conclude that no fair minded jurist could agree with what the state court of michigan did right this or and that a hard sell of  several things to say about that if you'll indulge me go right ahead first of all they failed to recognize express preemption that i think that's a huge legal mistake that no fair minded jurist would agree was proper by the michigan court of appeals they didn't talk about express preemption they failed to determine the domain of what is preempted in their analysis now it is interesting debate i look in the reply brief from the state about modified a d p a or full eighty p p a preference i understand that i think under either analysis we get the same point the third thing they did was they fail recognize that the presumption of state police powers has not applied since two thousand and five by two u s supreme court cases so this presumption that they believed applied was specifically removed by the united appeals but that isn't really the issue before as they could be sloppy sloppy sloppy and still be right or at least that fair minded jurist solemn could say well the end result that the state can prosecute your client for fraud is campaign finance totally occupied by the field of the federal election commission and totally expressly preempted by congress so i understand what did we were attacking the analysis of the michigan court of appeals but taking it one step further and looking at what was the end result look at the end result of the trial first the closing argument is nothing but complaining about campaign finance let's go back to the federal election commissions let the regulation of this as what is preempted there are three categories that are clearly expressively preempted right yes which one of those do you claim your case fits into the financing of campaigns and the fund raising and not just financing campaign of a candidate with the fund raising and financing in general under the first amendment associated with federal elections i can't remember the exact details i think the one that's going to come closest is the city of new york versus the f c c and i believe that's cited by the magistrate in his report recommendation and i believe it's going to be on pages fifteen through eighteen of my brief i guess involve a criminal prosecution i also have a note here your honor of talking about term limits where they would answer my question i understand but i'm talking about police powers and in terms of the you're right i looked at the wrong no i was term of police powers your question was was finance and again it's just the analysis of going through the express preemption analysis first the state is wanting to jump to the occupied field analysis and skip the preah the expressed preemption analysis and that's where i  think there's ships passing in the night here we have to look at what do we have we have expressed preemption state interference here is a dramatic drama dramatized die in their argument in their brief about only ninety one thousand from one side went to one out and only thirty six thousand went out we can't leave it to the states to with several points here first of all which section right my brother was asked which section of the regs does this fall under subsection b one b to b three in the answer was financing and fundraising financing and fundraising don't appear in b one b two or b three eleven c a farm one away point seven so it couldn't be those right he wanted his organization registration of political committees he wasn't prosecuted for any problem with the organise or organization or registration of the committees disclosure of receipts and expenditures there was no prosecution based on disclosure or failure to disclose and limitation on contributions and expenditures there was no prosecution based on any state imposed limitations on how much a candidate ca understood what my brother was saying here about how we've tried to define voter fraud broadly if we've given the impression that this case is about voter fraud and that's a mistake this isn't about voter fraud this is just about fraud false pretenses fraud and larceny by conversion different ways of tricking people out of their money this isn't about voter fraud if it were about voter fraud ironically enough we'd be in a better position because of eleven c f r one point seven c four where the state's allowed to  we're in a much more classically state realm of state power police power in for some reason that gives us a harder road it doesn't make sense my brother said const the constitution never reserve this particular power to the state well that begs the question because what particule we talking about here we're talking about the power to prosecute theft tricking people out of their money false pretenses larceny by conversion and common law from that's the particular power issue here and it is reserved to the states and by time it's up