the judges of the united states court of appeals for the fourth circuit oh yes we got a oh yea all persons having any manner or form of business before the honorable the united states court of appeals for the fourth circuit are admonished to draw nigh and give their attention for the court is now mr francisco before you begin i want to reiterate that we've been very generous with the time both in the briefs in the oral argument and weeks that you will to honor that generosity by directly thank you your honor judge mots may please the court know all francisco for governor bob mcdonnell so under the government's broad theory if governor mcdonald simply set up a meeting answer the question or indeed even pose for a photograph with johnny williams without asking anyone to do anything specific he committed a crime as are broad an unprecedented group of amicus briefs made clear no one ever thought that that was the wall and if it were true it would give prosecutors broad license to pick and choose their targets from amongst virtually everything like that official on america the district court then compounded that error through a series of rulings that uniformly cut against the governor including refusing to ask prospective jurors the most basic question have you formed an opinion about the governor's guilt or innocence based on your exposure to pretrial publicity by refusing to sever his wife's trial so that she could testify on his behalf and by even refusing to allow the governor to explain to the jury the full scope of johnny williams unprecedented important argument is the official act argument which encompasses both the sufficiency challenge and a sentencing challenge our second most important issue which i'd also like to get to is the issue of pretrial publicity turning to the official act question which goes to the heart of our case in order to engage in official action a government a government official was must make or pressure someone else to make a specific decision on behalf of the by peer the line is between access on the one hand and advocating for decision on the other here governor mcdonnell never crossed that line in the jury was never even told that that line or any other line even existed take for example the health care leaders reception one of the charged official acts it was nothing more than a cocktail party at which no business was discussed no decisions were made that can't possibly be an official at the same with respect to the meeting w repeatedly testified in this case other than attending the meeting governor mcdonnell never asked her to do anything which is why she felt completely empowered as soon as that meeting was over so we sent it sounds like you're actually arguing the facts to a jury what i'm interested in is what the jury instruction was that you wanted how it was a correct statement of the law how it was not substantially covered and then  heard how it was so important that the failure to give it needs to be yes are on the jury instruction that we request is that page seven fifty three of the joint appendix we believe what that jury instruction did and what the instruction that was charge that they swept in both lawful and unlawful conduct because the district courts instructed the jury that in fishel absent might so it has to be looked at in context of the very ground where there is lawful or unlawful and i would completely agree with that your honor and in the context of  whether our sufficiency challenge is correct no when it comes to evaluating the whether the instructions were reversible error on the instructions yes you do need to take on the sufficiency you do need to take the evidence in the most favorable light to the government and we would submit that here even taking it in the light most favorable to the government none of the governor's conduct crosses the line on the instructions here even in context these instructions were fatally overbroad because they instructed the jury that virtually anything that a government official doesn't his official capacity including every step towards achieving an end constitutes official governmental action if i could give you one that's not quite right because even in the beginning of your instructions the act has to be on a question or a matter or cause pending before the official yes your honor the supreme court made clear so it has to have that there always has to be that connection yes your honor except the supreme court made clear in sun diamond that when you quote the statute that's insufficient when you go on to give it an expansive gloss well yes if you do given the expansive got lost and it seems to me that your instruction on seven fifty three did precisely that it gave it an expansive gloss i don't think so at all your honor because our instruction has a series of limitations all of which the district court rejected here the district court told the jury that the instruction incompetent and compassed all settled practices including every step towards achieving an end  arguments first of all if you just take the instruction on its face it's facially overbroad it's very much like the instruction that the first circuit gave in the case and wholly judge who didn't explain that the official act definition was not on its face objectionable on  face it was similar to other instructions that had been given while the reason it was objectionable in that case was because it also swept in potentially lawful conduct that's precisely what happens here as the government accurately argued to the jury in this case under instructions an official act could encompass something as innocuous as a photo op that's because every step towards achieving an end is defined as an official law but the district court compounded that separate error by refusing to give any limitation on its otherwise all encompassing instruction including limits that are drawn straight out of this court's cases like straight out of the jefferson case the fact and i'm quoting from our construction the fact that an activity is a routine activity or resettle practice of an office holder does not alone make it an official act obviously correct but the district court refused to impose any limit on its otherwise all encompassing instruction or here's another one that we proposed merely arranging a meeting attending an event hosting a reception or making a speech are not standing alone official acts even if there are several practices of the official that's based on sunday i'm in citizens united in comes out of the instruction that judge who veil gave in the ring case or this one mere ingratiation access  not corruption word for word out of the supreme court's decision in citizens united the district court even refused to give a standard goodwill gift instruction we propose quote a gift or payment given with a generalized hope of some unspecified future benefit is not a bribe word for word out of jennings here one of our principal arguments was that the governor believed that johnny williams was given goodwill gifts in the expectation he knew that he would get the access and credibility that comes with hobnobbing around with important government official events here was good faith that was your defense that was one of our defenses you know that's what you said judge it charged operators at our defense our crucial defense you called it his good  crime i don't know how to be any better for because your honor if the jury doesn't understand the true scope of official acts and the jury doesn't understand the difference between a good will get the permissible good will give and a prohibited right governor standpoint if he acted in good faith it does make a difference about it that's not right your knowledge that it is right because that's where the drug that's why the instruction what if he acted in good faith then he couldn't have criminal intent and there would be no crime i think that if the jury believed that's what you there be no crime and that's because of criminal intent and that's because after every jury instruction that we requested cut against us that's all that we were left with to argue was good faith one that the court you were seriously impaired in your ability to conduct your defense able to make some of the arguments you had client to given the jury instructions did the government's closing argument take advantage of the failure to give the instruction out of jennings that you wanted it took the through your honor the government repeatedly argued to the jury that everything is a knock us as posing for a photo opportunity or simply arranging a meeting without anything more all of those things constitute official governmental action it goes to the core of our argument i think that no reasonable jury can conclude that governor mcdonnell violated the law but even if you were to disagree with me on that it's altogether possible that the jury did agree with us on the facts but under these instructions the jury still would have been required to at the very least authorised to convey it because everything as innocuous as simply hosting a cocktail party simply suggesting a meeting without requesting anything happen at that meeting as mishaps or tests testified to simply asking your in house lawyer to see you about an issue another one of the official acts under the instructions the district court gave the jury was required or at least authorised to conclude that those were prohibited fishel acts and that is clearly reversible error for the same reason  for the same reason as in rabbit too closely analogous cases that if anything have facts far worse than this one remember the government's theory here was that there was no express agreement it conceded that in this oral argument it's closing argument no express agreement likewise johnny williams notwithstanding his triple immunity would only testify to an implicit agreement that the governor would provide some form of unspecified help clearly not enough under the law and class fits within the classic good will get that's why the government's theory all along was that you could infer a corrupt agreement from a pattern of gifts and loans on the one hand and a pattern of official acts on the other while if there were no official acts then there is no pattern from which you can infer a corrupt agreement and hear none of governor mcdonnell conduct crossed that line and the jury was never even told that that line or any other line even existed well the jury was told a line existed big by the quote of the statute to begin with and that you began your closing argument with that quote so the term official action means any decision or action on any question matter cause superseding or controversy which may at any time be pending in other words if there isn't something ending that the person who is giving the benefits to the public official if there is no nothing pending upon which he's giving the benefits then then there is no crime is true but if there is then that makes it a crime under the statute to your responses your honor i would submit that the four of us could sit here and argue over the meaning of those words until the cows come home to expect the jury to put to expect a jury to figure out what those words mean is i think implausible which is why the instruction immediately after putting that statute says official action as i have just defined it includes those actions that have been clearly established by settled practice as part of the public officials official position so it's telling the jury what i just told you this is what it means right and then it goes on to say that includes every step towards achieving an end which is why the government could accurately argue that something as innocuous as a photo op was included notwithstanding that in defined of the official actual these potentially include everything under the sun it refused every conceivable limit on that otherwise all encompassing instruction now going back to the issue about whether the statute alone including the statute along with sufficient it clearly wasn't here since as energy wholly it was defined broadly enough to allow the court to find perfectly lawful conduct was swept with and here i think if you properly instructed the jury that in the line between axis on the one hand and advocating forbes specific decision on the other nothing would qualify now i think sundown diamond also answers your pending issue your honor sun diamond makes crystal clear that when the secretary of agriculture gives a speech to us to farmers on u s d a policy even though he clearly has issues of u s d a policy pending before him that's not an official action and if i could offer you another example that wasn't th for a specific decision on the other jeopardy it was clearly advocating for a specific decision on the behalf of the bright pair the line was irrelevant and jefferson it goes to the heart of our case here the jury was never even told that it existed and governor mcdonnell conduct didn't cross it but judgments if i could offer you another example suppose johnny williams asked the governor governor who should i talk to about getting studies for an ad a block and governor mcdonnell answered that question well that's in secretary bill hazel's bayley way if you want to call it talk to him boy excuse me and i will give him a well when you're honoring to meeting but even without that part of the hypothetical it's still an official laugh under this jury instruction in the government's definition simply answering a question that's the reason why the government's instruction is fatally overbro it clearly sweeps in lawful conduct now i would submit that if you take the next step and say and by the way all the range for you a meeting that likewise doesn't cross the line because if it did you really would be opening the net for federal prosecutors to pick and choose their targets amongst virtually every elected official in america now remember the official act definition is not limited to quid pro quo bribery it also applies in the gratuities context the very same definition that means that if a wealthy donor makes a campaign donation or maybe a donation to a charitable foundation after getting an important meeting at say for example the state department both the donor and the recipient of the donor are on the hook for a federal prosecution nobody has ever charge in conference unfolded is that we had a series of objections that apply to a broad array of instructions with the court's permission i laid out our objections once and then as we went through and we got to different points in the argument wrote raised the same objection i asked the court would you like to repeat what i said at the beginning or over the or a lesser included part of because because i don't know that it's worth us discussing you know i don't think the instruction on fifty eight that all of it is really is the law so did you did was there any discussion about putting part of it in the first yes or no it's basically are covered my instructions yes your honor there was that were not is not a problem so it's just the laughter that was it pay just seventy three forty two of the appendix where we are requested the following providing mere credibility or reputational benefit to another is not an official act to find an official act the questions you must decide are both whether the charge conduct constitutes a subtle practice and whether that conduct did was there any given take did you say all right well maybe some of these sentences are not required by the law yes at least is my view yes at the as we sit here right so which ones did you think were so what we did at the charging conference is we reduced it to t specific requests in this is that pages seventy three forty discharging cough no no i mean i'm fifty three is not what you know what i made clear at the charging conference is that we first we wanted our proposed instruction that was our request but i'm as an alternative we requested that the court give two additional instructions at pages seventy three forty and pages seventy three forty one of the appendix and i can read it to your honor or i can ok it's just a tract this language in seven fifty three not verbatim what  lawful and unlawful activity and i'd like to focus on one last point here before turning to pretrial publicity and it's that our proposed instructions both in the instruction itself and at the charging conference were clearly correct statements of law that went to the heart of our case but even if you disagreed with that just looking at an instruction on its face and we clearly objected to that instruction on its base as being facially overbroad and that instruction is facially overbroad for precisely the same reason that the instruction overbroad because it allowed the court to conclude or allow the jury to conclude that was awful conduct like merely set up not setting up a meeting or merely hosting reception constituted a subtle practice of governors and was a step towards achieving an end and therefore was an official act just like simply answering a question who should i talk to about a nano block or simply posing for a photo op as the government argued to the jury was an official act given that this went to the very heart of our case it was incumbent upon the court as this court said in the united states against arthur case to instruct the jury on the in with the clear in the clearest possible terms on what the lines of distinction were by refusing to do that by likewise refusing to give a standard goodwill gift instruction the district court violated that principle and the jury was permitted to convict even if it complete with the completely agreed with us as to what the facts of this case showed now i'm happy to answer any further questions the court has on this issue all of this of course all of what we've been talking about assumes that we had a fair and impartial jury here however we don't even know that we had that this was one of the highest profile submitted a written questionnaire to the court both of us agreed to it the district or sounds like yeah yeah oh sure beforehand that that questionnaire was in place we included the question have you formed an opinion about the defendant's guilt or innocence based on your exposure to preach you know the prospect of jurors filtered out yes your honor but inexplicably the district court when he sent the jury questionnaire out to the jurors he struck that question so the jurors were not asked have you formed an opinion based on your exposure to pretrial publicity or are there any questions about pretrial publicity there were questions on whether you have been exposed to it and then there was one question about opinions have you been expressed and have you expressed an opinion to someone else based on your exposure to pretrial publicity as we all know there plenty of people maybe not in this courtroom but there are plenty of people who hold opinions but don't feel the need to express them which is precisely why we in the government agreed that the jurors should be asked have you formed an opinion ok then you may think they filled out the questionnaires some jurors were struck you got here you got a group of jurors there and you all said no we need this question absolute judge said what's your problem and he said well there are these eight jurors are not a number handed up the questionnaire page six hundred ninety of the transcript he said no i'm not asking this question right you have to make a determination based on the questionnaire that we have that's when he conducted his and mass stand up sit down the seating stand up if you heard everyone  two of the appendix mr rascal the defense attorney made clear that he was he was calling up those who answered yes to the question whether somebody had expressed an opinion the only thing we were allowed to ask and that's judge king where we called up the eight jurors what happened next  highly instructive because we call that those jurors that answered yes to the question have you expressed an opinion and on the very first one we were actually mistaken the government's attorney pointed that out to judge spencer and said judge spencer actually that first juror they called up has not said yes to get to the end to the question has he expressed an opinion he answered no and here's what judge spencer said and i'm quoting from page sixteen ninety six of the transcript i'm sorry ma'am we thought there was something in your questionnaire so you may have a seat it is crystal clear that every stage of these proceedings from submitting the written questionnaire to showing up at the hearing to it to objecting at the hearing the end of the questioning ok seven jurors then what my position is that if somebody is exposed to pretrial publicity they have to be individually board cheered and i have a list of questions we handed them up here's what judge spencer said you're going to have to identify specifically the people that you think should be struck for cause and the court will make an everyone so when they stood up that they had been exposed to pretrial publicity you wanted to question each of those in the court would not permit you to do so is that what you're saying yes your honor the court only permitted you to do seven precisely the procedure the supreme court rejected in irwin against a doubt when it said and i'll close on this unless the court has further questions no doubt each juror was sincere when he said that he would be fair and impartial to the petitioner but psychological impact requiring such a declaration before one's fellows is often his father who amongst us would answer the question no when asked if you can be fair and impartial that's precisely why individual board years require thank you thank you on your  may please the court your own i'd like briefly to pick up right where the argument left off on a point about the pretrial publicity and why dear when the district court said after doing the collective questioning that defense counsel could bring up jurors that they wanted to individually question the court did not limit and anyway the defendant to just asking about the question of whether somebody had expressed an opinion and i think if you read the transcript when the court started doing the individual question questioning of jurors you will see that the defense counsel was citing a variety of reasons for why they wanted to question somebody and there wasn't a point where they offered a reason to question somebody and that the court said no i'm not going to let you ask a question of this juror about that that that's not a sufficient basis i think a fair reading of the record is what the court was doing was saying give me a reason and i will question a sorry go ahead you know go so are you saying that the defense never said i'd like to question all of the prospective jurors who who were exposed to pretrial publicity and the court said no you can't do that because that what's what that's what opposing counsel just said the way i would put it is the court said give me a you know particular to the to the juror reason but didn't say you know look i'm you can only call up people who said they expressed an opinion if that's not to the it to the rice to near right no i mean you could i think that he was looking for a reason out of the question there but there were you know that there were ninety nine questions in that questionnaire that you could bring up they brought up you know exposure to the press expressed an opinion a variety of bases for individual questioning and then at the very end  then at the very end he said do you have any anyone else and they said not unpretty trouble blisse of these so that was in doubt but i think my colleagues this new question before what happened before that maybe try one more time right well didn't did that did the government ever object to the defense asking jurors about their exposure to pretrial publicity right what happened is first there was no the government never objected to that what we said was we think you said the court should ask about that in the questionnaire right right there was the questionnaire we requested a question about have you formed an opinion the court did not the discreet did not include that question but there were a variety of other questions that covered that then at the hearing when defense counsel wanted to question every single juror prospective juror we said how about an intermediate step that you question everyone who said that they had followed the case very closely or somewhat closely and the court district court said well i'm not going to do that i'm going to do so you know every single juror stood up when asked the question have you seen any pretrial publicity about the case right so what those that what happened right every juror that's correct and then the court the court asked two questions said first if you have read heard or seen something in the media i want you to stand up for me then the court said based on what you have heard read or seen relating to this case if you are in your mind able to put aside whatever it is that you've heard listen to the now that was what the court of say now the question i think we have or least i have from what the post council said was that after there had been this stand up sit down they said no we want to have an individual or dear of each one of these hundred forty five people to discuss pretrial publicity that would happen right and the district court said no right and what did the district court say no but because eight people came up to that right well so how did that happen they said we want to question everybody then we proposed the intermediate step of the people who had said they'd follow the case very closely or somewhat closely and then the district judge hearing that said and we said look we don't think that's required but out of an abundance of caution that would be a better route to go in our view and the court said well you know what i'm not going to do that i'm going to do something of my own devi his own devising was defense counsel give me a reason you've got to mean in terms this is michael awesome what he's saying to them he's saying you've got a very fulsome questionnaire give me a reason for why you want somebody brought up here collective questioning is permitted and both of those cases involved collective questioning where there wasn't the defendant hadn't gotten what he wanted on a questionnaire so here this case has the added benefit that the two fold the parties were armed with very extensive questionnaires and then the court said give me a reason and i will question further somebody and they did that and then they got to the end of it in the courts that anything else and  said no we turn to jury instruction short and i would like to focus to begin with was on the instruction that i think that defense counsel has focused on is the  key problem here which is his proposed jury instruction number fifty eight on additional act and where again and that's on joint appendix seven fifty three and that instruction is  right it's it's once you get into this third paragraph that you start having error where they suggest that a government's big government officials decisions on you know whether to attend an event or whether to attend a meeting or respond to a phone call are not decisions on matters pending before the government and so they're suggesting that a meeting can never be an official act and that's clearly wrong  jefferson involved plenty of meetings that this court concluded were official lax and what about the next set because they're explaining why they think that's so and then they say this is because  not corruption right at with that instruction mere ingratiation and access are not corruption would that have been err i mean i don't think that the supreme court short answer is no but  don't think that the supreme court in writing that citizens united was meaning to provide it definition formally for bribery law and what i think it captures is the notion that if you lack an agreement is talking about campaign finance right and if you lack  agreement with corrupt intent to exchange things of value for official lax then you don't have then you know then you've gone beyond ingratiation access a bribery agreement is more than a they asked for an instruction that just included that sent it in addition to the first two paragraphs i don't believe so and what he's pointed to the only export in the context in which you it's presented here is that what you're saying no i don't  a fallback position that says to convict the defendant the official must receive the payment in exchange for performing or promising to perform some specific official act that takes out the course of conduct provision and then he says a gift or a payment given with the generalized hope of some unspecified benefit is not a bribe that is a way i suppose of benefit is not a bribe so that's a correct statement of the law right yeah that's that's where we live that substantially covered in the rest of the jury instructions that concept that concept is covered in two ways one is there is good centrally i think on challenge instruction on the requirement of an agreement that the what you have is both through conspiracy and then you have the overarching quid pro quo instruction and that's the appendix seven seven six six nine which says the official must receive the item of value corruptly in return for being influenced in the performance of any official act and then you have the good faith the structure in which is judge king pointed out the label that are critical defense in that so that appendix seventy three sixty at the church conference and the good faith instruction captures this notion that if you are receiving the gifts without an agreement if you receive in the big the gifts in good faith then you are not guilty of a crime and so that is that point is  it looks to me like the honest services instruction that was given is correct as a matter as far as it goes right but if it talks about things that could be crimes and it doesn't say characterization i guess they say all these things are crimes but that they can be crimes and then it doesn't say anything it's not a crime right well but i think in there there's several points i would make in response to that the first is that the key point is the court begins by saying that the term official action means any decision or action on any question matter cause superseding and so it has limited their like look this is the ultimate standard for an official lack  to meet that and as the court was pointing out they begin you know their closing by emphasizing those very restrictions well i don't it seems to me that if the court had repeated that sentence sort of every other sentence that that might have done that would have made the charge more even if you will and that's what i think that one mention of that are you we you had several points maybe tell me about your other point right well  the other points are that you've got considerable discretion in choosing the specific wording of an instruction from the district court and you have cases like paterson where this court has said that you know although a more specific instruction might been desirable to the defendant that this court didn't abuse its discretion in choosing the particular wording there's also the principle that as this court has said good jury instructions often let the counsel argue factually in terms of a legal standard rather than making having the judge make counsel's arguments for them and there is the the broader point to that when what happens is you have offered to the judge a large collection of instructions that the judge correctly concludes are wrong then you have a long charge conference where a bunch of proposals are submitted to the judge specifically that are either have their own flaws again or are things substantially covered at some point the judge it isn't responsible for coming up with good proposals i think that you know that makes them a modicum of sense  that were rony this or that didn't train on the point that they are now suggesting i mean not here's another way to put the point is that they have proposed and continue propose a series of restrictions on official action that are just wrong so they keep going back to something like a formal executive process voting on bills granting contracts that's wrong under jefferson and birdsall they have a you've got to have some sort of policy setting you know authority at stake and that of course excludes a host of what lower level employees in government do and more the case about the prison officials or prison guards taking bribes is a good example of that they're not out there setting policy they have arguments about the things the government provides which in jefferson this court said look at a benefit that a foreign government in in nigeria for example is going to counts and so here in contrast we have these studies that and clearly they do give me this site again to where the good faith instruction is located sure that's a joint appendix seventy six ninety events are never official acts and that's not true they've also suggested that you have to accomplish the goal of the bribe payment and that is definitely not true under  cases like evans and brewster that have said fulfillment of the quid pro quo where you have to have a corrupt agreement right and so what you have is them offering a whole lot of instructions that are wrong and the judge repeatedly saying no i'm not going there and ultimately when a district court is exercising discretion and choosing instructions it doesn't have to come up with the more reasonable intermediate step that is never offered to  well that's why i was trying to talk about the charge conference which right i don't remember hearing much about in the papers but there are lots of papers that maybe it was there somewhere and whether they had come up as their fallback position and not the charge conference or maybe it will tell me i wouldn't rely on principally on what they're arguing now on appeal their brief at the charge conference all you know i mean they've now directed your attention to seventy three forty and for that i think it's covered by you know that that concept was available to a regime seventy three fords are recovered yet and it's available to them was a prosecutor long time ago we used to here she would tell the jury that they could start deliberating or bring it back in more introduction and we always thought rule thirty today required that but you all didn't do anything about that you know here you just restructured them and sent him out to deliberate nobody ever raised that kind of question in this district no your your honor is exactly what the courts in this country required to be done that way it's right up rule thirty two d requires that in order to preserve the points because then they have boiled it down what judge monsters get that you're not a proposed instructions you're at the end of the line what would improve it what do you want now right and the rule your honor is is describing has a lot of sense insofar as what it does is it says after the judge has actually read the instructions to the jury that's the point where you have to register an objection so that the judge rules it yeah right if you don't so you don't preserve it insisted specifically say told them your objections are preserved i mean that editions why you know he did but then he instructed them and we don't know whether he actually instructed them word for word we certainly did sometimes as i say is i'm ahead i'm weighing a little bit for a while and that's why we listen very case is that you did not have the two a one eighty three definition provided to the jury you had something that was really broad where official action was defined in terms of under the cloak of office which does not have the limitations here and so ollie is a case in which you just had a straightforward instructional error because you didn't capture the requirements defining reading just the statutory definition is not enough you know i don't believe that's in the holy i mean i may be mistaken about that but that's not my memory of  case and i mean i think that the key point here is that it did not use a definition that fits the statutory language and i would say the other thing you know not everything in the only is something that we agree with and part of the problem is that not only did you have an instruction that didn't track the definition but the court's analysis didn't really state heather to that language either which you know in this court's opinion and jefferson it was tied directly to that statutory definition and that's the way to go and that's how you analyze this case and that's why i think jefferson is a much more helpful case for the court than percy only is ultimately  jefferson is is is a stronger case i mean admittedly the conduct of there involves a lot more money and you know jefferson and it up with a longer sentence and so there is there are important ways in which what jefferson more quick and oh jefferson so right this is stronger can push but yet here's here's the it's in the sense of the definition of official act and what was promised there here in this case what you have is ultimately you know what johnny williams wanted was state funded research studies of a not a block and coverage in the state employee medical plan and that is more squarely within the realm of what governments do then the various trade and you know the various business ventures in africa that were at stake in the jefferson case so in that respect you've got something that's much more core to what the s government is doing and then secondly what you have is the influence that is being exerted here in the official act that is being taken on that of the matters are all directed at the chief executive subordinate employees jefferson was was essentially lobbying these foreign government officials over whom he had pretty limited powers i mean they want to you know they want the united states government to be friendly to them but it's a different matter when you have someone like you know or or last of the doctors at these state universities getting you know the governor of the state saying the this is a good thing i mean that's just a very more direct cut when a a highest government officially i'm sorry and or you've been issued i do want to ask you one question about that goodwill instruction that they offered that was taken out of jennings did the government object to  proposal seventy three forty still had this specific official action requirement which read out and our view the course of conduct scenario because jennings said both were true like you could have an agreement for a specific official act or you could have this course of conduct theory which is what we had to do here is included in that the government right  that there may have been some follow up back and forth that perhaps we'll hear about sure i mean if it were if what they were had been offering was just the goodwill gift you know i don't know that we would have objected but what they were offering was a proposal that got rid of the course of conduct theory that has been repeatedly upheld by this court and jefferson and jennings both really think they certainly argued yes that's true too i mean they they are no doubt about that right the argument right but i mean at some point we don't have to offer for their proposed instructions for them i mean they made multiple tries with errors in them and  they have to offer legally correct structure exactly payments has evidence for force in the sense that when you see somebody getting one hundred seventy seven thousand dollars worth of payments and cash and luxury goods and that sort of thing that that's informative about people's motivations have five who are i mean we've got five actions on where they just have been the first i mean it would have been a difficult case but that would suffice you know whether the government whether the government would have persuaded the jury that there really was an agreement here with out good faith and corrupt intent and intent to fraud you know i'm not sure whether we would have secured a conviction or put a case right  but when you have you know a two year hadn't of conduct and the timing evidence in this case is just you know i think devastating for the defendant you've got him going on the vacation that william myth mountain lake vacation home he drives the ferrari home that you know drive home he lies about it saying there was no recreational use and of course there was and then ninety minutes after getting home  e mail to bill hazel who is a guy that thinks that johnny williams is got a lot of junk and refers to him as the tic tac man says you know send a deputy in the morning to meet at the mansion on the planned studies of an out of block uva and sci fi and and bill hazel despite his views the next morning you know says right away we'll do and official goes and so you know  again when you go to the winter when he's trying the defense trying to negotiate a new loan with williams he says he sends first the e mail to to williams asking for you know the additional money and he says do you want me to call your lawyers on the certificates in the documents that was a reference to the earlier phone call about getting an additional loan and six minutes later he's he wrote to examine please see me about the an out of block issues that you v a and v c u when you know just several weeks earlier the first lady had written to the governor and jason isaacs thing you know the about the in out of being clinical studies at uva and b c you said here's the info from johnny he has calls into v c u and uva and no one will return his call ly in this case thank you very much thank you for your honour's just a few brief points first a technically accurate instruction even assuming this more technically accurate can be misleading by omission that's precisely what the first circuit held in her children i point the court to page new to ninety five of that decision where it said the cloak of office phrase is not inherently a novel or objectionable way of describing purport of the official action but in this setting it permitted the jury to readily consider as potentially criminal conduct both and then it describes the con that was not potentially criminal trial here you cite the statute explains that jury no your honor but remember the first circuits decision there wasn't turning on the instruction it was turning on whether the conduct alleged was even an official act and what the court held was that because the instruction couldn't compas law lawful action it was it did and here if you instruct the jury as your honor was saying that official action potentially includes everything under the sun when it in fact does not potentially include everything under the sun at that very least i have to tell them what it doesn't include so i understand this is a fuzzy area it's an area where there is some black that's clearly official action some white that is clearly not official action and some great lawyer the district court only instructed on the black didn't instruct on any of the white or anything re me the good faith instruction which wrapped it all up it's a good day there's no criminal intent and there's no crime if he does turn to next your honor which is are the instructions that we proposed you were plainly correct both in the jury conference and in the proposed instructions i'd like to address the government's claim that they were wrong first the government says that we categorically excluded meetings falls if you look at page seven fifty three of the joint appendix miss is our proposed instruction not at the jury conference but written merely arranging a meeting attending an event hosting a reception or making a speech are not standing alone official acts even if they are settled practices of the official government officials decision on who to invite whether to attend or whether to attend is not an official act because  not saying anything about meetings categorically being excluded judge factor if you turn to the instructions that we propose at the charging conference which are pages seventy three forty and seventy three forty one focusing on the one from page seventy three forty to seventy three forty one that is word for word out of this court's opinion in jennings they claim that somehow it's misleading because it doesn't refer to the specific course of action language well what they've failed to tell you is that they risk rested a specific instruction on that and judge spencer said no presumably because as jennings makes clear there's no difference between a specific type of official act and the specific course of official action jennings uses the terms interchangeably because the specific course of interaction is just more than one instance of a specific type of official action the reason for the instruction that we request of there though is word for word out of jennings the one that goes from page seventy three four to the seventy three forty one and includes the good will get instruction likewise the next instruction we propose on page seventy three forty one that and providing mere credibility or reputational benefit to another is not an official act the find in official act the questions you must decide are both whether the charge conduct constitutes a settled practice and whether the conduct was intended to or did in fact influence a specific official decision the government actually makes another clearly correct and you know it but it government doesn't actually have to give you anything i mean no but it has to influence the decision that was within the government's power straight out of the d c circuit decision involved so the first language traffic is out that innings but that second paragraph is something else not to get while the end they were two separate limitations that we propose first the one then the other finally your honor going to pretrial publicity if you look at the transcript it is crystal clear that we specifically said we want to be asked we want to be able to question any juror that was exposed to publicity and the court said no that's why in the portion of the transcript what the district court did was a one issue by issue and there was a section of the hearing where we were talking about pretrial publicity that's where he repeatedly said we couldn't question anybody simply because of their exposure instead conducted his stand up sit down proceeding and then allowed us to call for only witnesses who raised issues other than their mere exposure to publicity we were not allowed to question just because they were exposed to publicity just that you were may remember the bailey case i think you were the assistant united states attorney on that case even in bailey they asked the jury have you formed an opinion based on your exposure to pretrial publicity we were denied that basic question so to this day we have no idea whether any of those twelve jurors that sat in that box and convicted stepped into that box having formed an opinion against the governor based on their exposure your honor you've been very patient governor mcdonnell is a long standing public servant he committed no crimes here we respectfully request that the conviction be reversed thank you very much we appreciate both the argument both counsel and they're very good papers on the case we'd like to come down and greet the various lawyers and then we'll take a short recess and when we take the