presents two issues of first impression and the circuit and one of the straightforward application of this court's precedents taken together they all go to the fairness of the trial that mr freeman had and to the procedural reasonableness of the sentence the first issue is whether economic coercion is relevant to intent in bribery cases the government agrees that this is an issue of first impression but argued successfully in the district court for an instruction that only that not only precluded the consideration of economic coercion and did so in graphic editorial terms but also did some away that confused and undermined the entrapment instruction the model instruction of this court made  no relatively low there has to be enough so that the jury already in the first instance at least have the opportunity to rule on the matter ok here there was respectfully plenty first dealing what is economic who this construction official was ok with whom he was dealing that was a person who had engaged in a pattern of extortion as the evidence showed for literally decades it was also a person who the evidence showed everybody knew to be doing that in fact he himself testified on crossed examination that the word was out as to what he was doing but here's what he did after initially he told mr friedman that he had to get a variance and after mr friedman filled out the necessary various forms yes for sure he has again what happens in this case in a in some in this is fully briefed though so i won't go every i think is excellent as i expected and will go over every single fact but the bottom line here is that deli did to mr freeman was he raised with mr freeman repeatedly the possibility that mr freeman could get him to exercise his discretion in mr friedman's favor he then use that leverage as an opportunity in essence to extort a bribe that ok that's not what we're talking about ok i think ok here's here's what i'm concerned about in every bribery case there's a hint of economic coercion because the bribe is a form of economic coercion but in order to get this instruction you need more than that and that's the question what is there in this of seven million dollars right so when you say he needed to sell his business he he hadn't he was living someplace that's of course in  scheme of things the question is what is the dollar amount the dollar amount is a building worth a million dollars that he wants to sell there is also the fact that he's eight there as the evidence showed he was a significant property owner and this is not going to be able to be reduced to dollars and cents in that area in in west new york university west new york area and one and it was very clear that if he did not do what mr zanna deli wanted him to do that he was facing significant problems going forward later here's the problem ok i get your argument but you say he needed to sell right now it's clear from the facts that there is a gap of about as i get it seven or eight months between the agreement for the bribery to be paid and then the actual payment and we see from the fact that the actual payment didn't occur until the start or came along got a real seller started to take care of this where there's no deal so now all the sudden let's run here's the five grand and now we've got a deal actually help me about the economic coercion if i have the facts help me i know and those those facts are not exactly correct ok you know you're correct up until the actual events of march two thousand and eight and what happens there is that there's efforts to negotiate but with respect to the for the building we can talk about some of the questions of what mr friedman's conduct was there because that goes to the brady claim which is a significant one and then what happens is mr the purchaser mr steiner says you know you've got to take care of this of this unit mr freeman doesn't take care of it and then he in fact he doesn't do anything in terms of paying the price until after the offer has already been withdrawn so it isn't the case that he's now suddenly paying the bribe in order to make the sale in fact by that time the offer had been taken off the table any i'm going to show and do steiner to come back to the apparent the you have a land owner a property owner in the city of west new york he needs to get certain permits in these to get ceo's these things are all worth a great deal of money in the end in this case not worth a great deal of money the difference between what he had was an apartment house then hand authorization for fifteen apartments and he was trying to sell a building with sixteen apartments that you know and and the difference between now what is the difference between a sixteen apartment building that there was no apparent authorization for and they had seen this one particular document that would have changed his mind about the whole thing so legally apparently the only evidence of record in this case is that the is that it was authorized for sixteen years or that previously there had been sixteen units so that was what was grandfathered in but be that as it may it goes way beyond that if the issue of one unit it goes to the question the fundamental question of the relationship between property owners and a construction of regime must do you agree that he  five percent i didn't count another twenty something buildings so to say economic to worsen socks that he would pay a bribe in order to sell this building just you would feel specifically that he had to pay this pride because this kind of because and as the evidence showed the power of a construction official probably everywhere but what we know for sure in hudson county new jersey is vast and what the evidence showed in terms of the cross examination of mr zanna deli is just how miserable he can make the lives of landowners if they don't pay him what he asks for every landowner has the same argument that you're positing and that is that that  can exert such influence on me right that it will adversely affect whatever you want to say my net worth you the house i live in what whatever it is and our point as i understand it here is we deserve this special instruction and our question to you is you want the special instruction you've got to take it out of the ordinary and the ordinary is a bribe exerts some economic coercion on the person who has to pay it here you can be serious economic coercion for everyone though this that with the power that a construction of this official has is the power to have a significant serious economic effect on those landowners county new jersey depends upon his ability to buy and sell buildings to get ceo's and variances to get along with the construction visuals if they the evidence is clear that this particular case traction official if given the opportunity will make the lives of the landowners in hudson county sufficiently miserable that they literally can't survive now it may be that that you know like it's a matter of like well you know what i mean don't mean literally survive we have seen cases where you have people minority people who can survive mr friedman can survive right or the i'm sure that the economic coercion theory would be as applicable to the poor as the rich it may be that somebody who is more on the edge would have a better claim to serious economic coercion but one has to accept the person that we have before us and that person in this case mr friedman was in a situation where survive i mean i don't mean survive literally live or die but whether his business could succeed in it the real question is what was the leverage that mr  had over him it may be judged in a way that the leverage you had over him is the leverage that he has over of many other landowners but that me it also may be that that means that those landowners if they were put in the same situation would also have an economic coercion argument and at the end of the day let me just say this i'm because you read it so i know my red lights on that if the end of the day that is a matter that the jury should have decided there was the under the government's construction which pollock of brush and the second circuit case is the matter of whether there was serious economic harm on the one hand and whether there was an entitlement to the benefit on the other or matters that should have been presented to the jury and the jury should have had an opportunity to decide them thank rebuttal because i don't want to use up any more of our time and that is this you want us to adopt an instruction right and is thus far not part of our jurisprudence and my question that i'd like an answer to when you come back how can we go about doing that what should we be looking to because everything that you've said so far is what but let's get it before the jury again because the facts are really terrible but how are we to determine when the facts require this instruction that you're asking us to now make part of our jurisprudence ok i'll be prepared as a rebuttal thank you sorry but we have a lot of honor that is the position of the united states that there is no defense of an economic coercion nor should there be any instruction that economic coercion is relevant to intent both because that to give a bribe knowing that a private is a bad thing to do and whether or not that bribe is given to obtain something volleyer unlawfully is doesn't change the fact that you have a corrupt intent under the of the circuit and so you would undermine that instruction as as judge thompson said it would be confusing that's really putting it mildly it would be contradictory to say now really actually though it's relevant to your intent whether whether you or you felt this was the right thing to do if you had you either had siri it's really it's a rest offense that is being argued and as far as the government is concerned duress and as far as the circuit is no evidence that sandra dally ever held up anyone's permissions to do anything the only evidence in the record was that he helped people to do things he never threw barriers in front of someone and there's so there's no reason there's no evidence the record that would show friedman believes now he was going to be held hostage his and her deli nor is there any evidence in the record that zander deli actually believed that he was legally entitled to this unit he had several opportunities to say as much he didn't say it to zander delhi he didn't say it to the magistrate judge he didn't say it to steiner when he was trying to pass this property off so there's no evidence in the record that he actually believed it he certainly didn't testify he doesn't have to if you were writing in the case and wanted to take your position how would you frame the rule of law you're honest because this circuit has held or i'm sorry that it is not a defense to bribery to believe that you have a legal entitlement to what you're seeking then how can it be relevant to your intent that you believe that you are justified in doing this which is one of the second circuit's requirements has to be something that you are it's really jury question is there enough thank you to the jury but the north has already decided as a matter of law that that regardless of what the defendant thought he was entitled to whether he thought he was or was not entitled to this that's irrelevant to whether he formulated the intent to pay the bribe he formulated the intent if as long as he had the intent to pay the bribe he will fully he corruptly means willfully in the conduct of the entrapment if you are inclined to do that yeah exactly the entrapment defense is still a viable defense the defendant can't satisfy the elements of entrapment but that's still a viable defense  t the economic coercion at best is a form of duress would be a complete defense if anything under the law of the circuit but we seriously urge the court that that is at odds with arrest this would be sneaking in a very light standard arrest light in the context that was a beer when we already know that it's not actually relevant to whether the defendant committed the crime of privacy so if i understand what you're telling us you're telling us that we don't really need to decide the legal question underlying because he hasn't shown enough to show that he's entitled to this instruction that is my argument and i urge the court because so many people argue to the  that bribery is an ambiguous amorphous statute under which you know no one knows what they're going to be prosecuted for if you open the doors to creating this possibility that there is this intent you know although you you don't have intent you may not formulate intent if you have someone can show some of these things partially you know that the language it's not a complete defense but perhaps it may be relevant then people are left wondering well relevant in what way and what else do i need to show and they're not really on notice anymore you know the slippery slope right because when would you not be able to show  everyone every defendant presented with this charge would be able to argue some form of economic coercion rebel to say i really wanted that benefit i really wanted that well i know but it's  more right it's i really wanted that benefit and it's really going to hurt me badly if i don't you know if i don't if having been put in this position so you can't convict me  it it will wreak havoc with bribery prosecutions and there's a reason that no court aside from the second circuit in the early sixty's at the beginning of this bribery such its existence ever found that this was a possible instruction it's not been done before and this certainly isn't the case i mean there just isn't evidence that mr zander deli believed he was being coerced much less that there was that there were these other elements that any court has found are required either for the instruction or the defense and so if you wade into these waters you might create serious confusion for prosecutions of bribery decided or whether the judge did it under a rubric of a discretionary decision or a non discretionary decision a departure or a variance where they didn't then they couldn't tell whether they had the authority to review the decision or under what rubric they would review the decision here it's quite clear right and you know just argument if as i understand it seems to be slightly different for you know there's a there's a jumbled process even though the and result might be logical and the fault is with the process and i just wondered what i had come across i wondered whether you had that  isn't really followed or going to hopefully do it i'm a must you go step by step this will be only the only context in which we've seen that it's sort of in the service of finding that you know the reason we ask people to do this is so that we understand we will have to face in this case this addresses the whole question of whether the government adequately will fill that disclosure obligation and their duty the i must tell you that i was when you are asked to overlook violations and then in disclosing that even when i thought well maybe this isn't brady or big leo believe that it was exercising at the outer limits its duty to comply with  and to provide any instance however limited and the government this is not a disc this is not in a disclosure up this is not a discovery obligation this is given the defendant the opportunity you know look there may be something here we don't think so but this is just giving the defendant the opportunity in any instance to go follow up and find out you know at cross examination or before interviewing the witness is there something here at the point where the government then if the government were to say well we don't really think it's something perhaps the government is then going to be held up on the other end saying look you downplayed this and it's actually more serious who are you to say i think the government should not should not be required to to provide and  may be that the word context could mean many things but in the context of this case in this in the in the application of the case here the facts here the government shouldn't be required to provide its its perception of this information isn't callaghan what the judges referring to i'm sorry you said across i could visit on callahan callahan i think the government should have disclose this information in advance it didn't violate the law of the circuit by dis it was disclose don't think that that there's any time in which the defendant felt that whether there was some previous pattern of a cost and center dolly working together surfaced at trial so i don't think this actually have in writing an answer to your last have a lot to do in two minutes with let me start with the brady issue right from the start it was devastating just as you say i was it was what i was told those witnesses were going to say is not what they said and the government knew it in both cases this was a classic sandbagging and i relied on it because i did open and i talked about how a cost was zana delis lieutenant i based that as i said at the trial upon the opportunity but your honor the jury if you look at what happened in the trial judge thompson precluded us both in with respect to spur special respective callahan from confer from essentially confronting with the state and definitely precluded us from calling the f b i agents who would have said what was actually said we did not have a meaningful opportunity to contest those statements that is absolutely clear and it was devastating particularly callahan's because because with respect to callahan the the result ended up being that both the court and the jury had the impression of mr freeman having to having hidden this information from these from the purchaser instead of having disclosed that it was enormously important infor that there are the facts that all the jury must consider and coming up with intent which by the way brings us back really to the coersion issue which is it is the law of this land that you can't patella defendants ability to present any and all evidence really with respect to intent and that's all we want now judge me to weigh what amounts to serious economic harm respectfully i think that's the kind of thing that a jury should decide but as but but but it's appropriate and make sense as judge officer said in a somewhat different context to understand the relationship between bribery on the one hand and extortion on the other if you are they victimized extortion it may go to your intent in the sense that you don't realize that what you're doing is violating the law or it may go to your intent in some other sense such as the enemy you may feel coerced or derision you may be under sufficient arrest that your actions are not voluntary whichever it is those facts should be thrown in the hopper and a jury should decide them if i might only just very quickly say with respect your gunter question their case after case in the circuit in the applicable section of the guidelines now makes clear that inventor is critical that if the order is not followed that the risk is that an inappropriate sentence will be meted out we've cited those cases to the court in our brief the to me this is about the most confused sentencing that you could ever see we don't know whether the court departed we don't see any meaningful consideration of the thirty five fifty three factors and the court rather than deciding the one legal issue that was really before which was what was the value of the value of the benefit from the bride