in addition to our regular counting we have one argued motion this morning we will turn to that and the matter is united states versus thank you counsel for the movement this case raises substantial questions concerning the scope of section six sixty six and the f c p day and the district court's belief that flight risk increases when a defendant gets a relatively low sentence gets matters backwards and he said  think is what it is to courts as once you're sentenced you have a strong incentive not to show up right and we think this court is essentially corrected that same error in cases like johnson in levon and those are published opinions but it's the same kind of analysis by the district court and i think that's particularly misplaced in a case like this because when you have somebody who's a foreign resident and has financial assets i mean they do have an incentive to flee but in this case those incentives were dealt with with very significant restrictions on the circumstances of his bail such that he had two armed guards such that he really had no ability to fruitfully and before trial and after  the notion that just because you're looking at through a different prism that's a sufficient reason to deny bail i think in that of showing where there was a risk of flight or he's not a risk of flight is now somewhat different why don't you address it in terms of the shaft after kerry sure whatever the burden is i think and you know it did i think it is clear and convincing but i think under that standard you have to show  flight not the government having to show that you agreed your honor but i think first of all these conditions on his base well are so restrictive that there really is almost physically no way that he could flee i mean you're talking actually and you know i think you know in a sense i'm not sure that the chance of fleeing here is materially any different than it would be escaping from from a federal prison but on top of that we do have the experience that these that they would basically never be detained until actual sentence is pronounced because they can always afford private i don't think it means that your honor i mean you know well and let me be clear about that which is to say it may be that you know if you have these kind of direct kone and conditions that you probably aren't going to have a material flight risk i mean you know you still have the other components of the test so it's not to be particularly in the in the post conviction context that you're going to have an automatic right to bail pending appeal and i hope to have a chance to talk about the substantial questions that are present in this case that i think are going to be absent in a lot of cases the other thing just to emphasize you know this this may seem if you look at it only from the ability to afford these restrictive conditions there may seem like someone fairness in that but you also have to keep in mind that part of the reason there is a flight risk is because he has the means to purchase tickets and things like that so there's a way in which these kind of cancel out and so i think that you know maybe the surface unfairness is more surface than unfair but i do think in the main you know as i suggested i think many of people in the position of my client will not have substantial questions to raise on their appeal here i think there are multiple substantial questions starting with the question of whether section six sixty six even applies to the un if that's the kind of organisation that the statute you know was meant to apply to and we think there are both textual legislative history and canons of construction that strongly suggest that what congress meant to reach was a private organisation not a public inter governmental international organisation other prosecutions person now the hell you know that case of course i know that case and i know that you know that case your honor and the judge roger knows that case but i think there this court a one statutory argument or maybe two statutory arguments why section six sixty six didn't reach the un but it did not have the argument that we're making here before you and it's not a jurisdictional argument i mean so the not the kind of thing the court would have reached on its own motion and i really do think that it's you know i would take no issue with bol but we do think that notwithstanding the idea that the un participation act could provide benefits yes we did and indeed that the district court accepted the notion that at least was not controlling on that question and i think that in a in an odd way the f c p day which does reach the un actually strengthens o argument because the f c p is an example of the kind of language congress would use if it actually intended to reach international public organizations because in that context it uses the specific phrase public international organization and then i think quite tellingly defines it by cross reference to another act of congress the internet the international organization immunities act which in sort of a numerate switch organisations are in fact covered by that language and that's kind of careful approach him applying this kind of corruption statute to an international organization like the united nations that i think congress would have would have used if it actually intended that if we do not believe you  sixty six under the f c p day the district court refused to give an official x instruction which we think was air we also think that the official x instruction that the district court gave under the section sixty six count was legally deficient and i think it did not meet the language that we proposed that would have mirrored mcdonnell essentially verb and i think the best illustration of why the instruction that was given is deficient is that the government itself can still contend i think with some justification that some of the official acts that they had bene fied to the jury like a letter on un stationery or official meeting in macau were official  under the instruction that the district court gave but we think that's plainly err i mean i think mcdonald makes clear that just because something is done by an official just because it's done on letterhead just because it's labeled an official visit is not sufficient to make it an official act was maybe right but not that it's absolutely impossible for it to be called hands on pound it doesn't it is that well yes i think particularly what macdonald instructs and to be an instruction that makes that clear here and we think this instruction was fatally defective in this regard and we think the instruction leaves this court in the same position that this court was in the ski los case and that the supreme court was in the macdonald case there is given the way that this jury was instructed and given the arguments that the government made to the jury i don't think that you can tell here whether or not the jury convicted based on the idea that the letterhead the letter on letterhead was the official act or the visit to macau was an official act or whether some later act that might constitute an official act was what the jury relied on i actually think the situation is even worse here because of the nature of this case i think there would have been should have been real pressure on the government to identify precisely what the official act was because this is not something where like in bahal where you have an effort to get a p contract that you should not get and there's a clear official act at the end of that process which is the award of the procurement contract not deciding those questions so i won't ask questions about that argument i'd like to take back since you know much more time to sure and i think it's i'm glad to the opportunity because that happened very early in the conditions of release that happened some eighteen months ago and it wasn't they you know were out to dinner at the palm or something i mean they stopped at a takeout restaurant on the way back from an authorized visit to the apartment and it right and it was clarified that it wasn't permitted it never happened again with eighteen months of sort of subsequent experience and i think very importantly the district court did not rely on that at all in its decision i mean my friends i think the government's reference to it i want to hear what your view on it was exactly and you know i mean there are other things i mean we could get if you want to get into other incidents that the district court didn't rely on there was actually an incident  where one of the guards that was guarding my client had a heart attack and rather than use that as an excuse to flee my client tried to help and provide sort of you know try to get him c p r and that sort of thing so i wouldn't get into that in our brief because we focused on what the district court relied on and we think what the district court relied on was legally erroneous just like in johnson and eleven you think the govern robert well aware that the security firm here had let the defendant go to a restaurant he was aware the defendant had gone to a restaurant repeatedly and mr clement said that was clarified that's not what happened the district court's bail order was crystal clear the defense was committed to go to court he was going to go to his counsel's office and that's it and he went to a restaurant repeatedly no clarification was needed in fact pretrial services this is on the record had expressed lee told the security firm what it should have already known which is it also would not consent to the defendant going to restaurant they took them there anyway like they are circumstances where people do not strictly abide by the conditions of release so tell us why that well i think it matters for the same reason that multiple courts including those that are in our brief have recognized which is that the incentives and practices of the private security firm are just not the same as the federal bureau of prisons or the united states marshal service the fact that they brought this man repeatedly to a restaurant and although it was takeout he stood there for some twenty minutes each time he's an indication of precisely that these firms simply have different incentives that doesn't make them bad it makes them profit maximizing years and let me add in this is also on the record that far more recently than eighteen months ago in approximately august of september  and seventeen the district court actually questioned multiple guards with that firm in the course of judging whether the defendant should remain on bail pending sentencing it came out in that questioning they also in violation of the bail order didn't also use magnetometer on all visitors they simple had we decided well some people visited so frequently they didn't need to be thoroughly searched they were eating meals prepared by the defendant and his staff which raises all kinds of concerns and the district court expressed serious concern about that and substantially tightened the conditions which is actually the point i wanted to make this is not a case in which a district judge simply waived his or her hands and said no no bail pending sentencing i want to a private firm that actually might be permissible under this cour precedents but that's not what judge broderick did he presided over years of litigation hearing after hearing bail modification request after bail modification request heard personally for multiple officers of the farm preside over a five w trial after all of that concluded once sentencing came down which is of substantially higher sentence than the defendant's counsel said the defendant himself and his subpoenaed the calculus changed and he made a case specific defendant specific fact specific determination although it was below the recommended sentence wasn't the sentence imposed on it yes it was right and what the government asked for it was roughly twenty five percent lower than what the probation office the government asked for absolutely right but my point is that contrary to other decisions for example levon were johnson in this case judge broderick was told vigorously and repeatedly by the defendant's counsel your honor he should stay on bail pending sentencing because he subjectively believes he will get a very low sentence or a non a car satori sentence at all they said that orally they said that in writing they said repeatedly and the district court agreed to keep the defendant out but then it sentencing he got four years now this is actually not a man with serious medical problems that's not true but it is a man who's roughly seventy years old a four year sentence is a substantial sentence and judge roberts having presided over all of this years of litigation hearing from the security firm itself well aware of the history of the firm decided at this moment the defendant couldn't meet his burden and it's a meaningful burden clear and convincing evidence that's a real burden and the presumption is on the defendant to meet it he didn't do it now saw gears in his reply brief that the clear and convincing only relates to the flight risk not to the seven to matters before the appellate judge who's good the appellate panel that will hear the appeal is that correct yeah we agree it's clear and convincing only on flight risk that's correct clearing commencing on flight risk substantial question which then breaks further into also whether it would result in a new trial or lower sentence as the other prong ultimately whether the decision was clearly erroneous and if we agree with brief yet but no no probably not i've talked about flight for some time want to make one more point and then before my time closes i do want to respond briefly to the substantial issues you are so first on flight mr clemente in his oral presentation and also in his moving papers suggested that your honor should not take account of what the security firm did in the past because judge broaddrick allegedly didn't that's not a fair way to read what judge broderick said judge broderick expressly referred to prior litigation in this case about bail he said i've given a lot of thought to this he suggested that he understood other district judges had come to different determinations it's fairly clear what he was referring to are the cases that deny defendants bail under these types of conditions so fairly read it appears the judge roberts absolutely had this in mind but there's no magic words requirement here the question is not what he said to questions what he did and what he did was a case specific determination that a foreign national worth more than two billion dollars associated with a foreign government with which we do not have an extradition treaty cannot overcome the presumption of the tension at sentencing that determination was not clearly erroneous and it alone defeats the defense motion now if your honour's were to disagree or assuming argue under you disagree you then have to present face the three questions that the defense proffers in its papers i want to take them in order section six six six we do with this in our brief the defense position is literally inconsistent with the statute requires your honour's to rewrite the statute even if the hail had never come down and it's also utterly unnecessary that the parade of horribles that they surmise is going to occur is dealt with with a series of conventions and treaties and statutes doesn't mean it's a substantial question of my point is that the statutory language is clear it doesn't say private organization it says organization the parade of horribles the defendant surmises is going to occur just sort of a canon of construction sort of can avoid and here isn't going to occur does not occur the un in fact cooperative this investigation and as cooperate in other cases where the statutory language is clear and the centrally the only we are going to the contrary is bad things would happen and the bad things would happen is not a valid argument the job of the statured written but even if we're wrong and organization does not include the united nations that only applies to a single count out of six just one it doesn't even apply to the conspiracy count because in this case the jury was specifically requested to find one or more objects and to be unanimous as to which objects it's found that's count one it found all three objects only one is section six six six so even if the defense were correct and it's not he still doesn't entitle them to bail pending appeal but he's  is mcdonnell your honor should read what judge roberts actually said it starts on page forty two forty three of the transcript which is also exhibit b to the government's opposition it absolutely mirrors mcdonnell it is not verbatim to what the defense s that's because what the defense saw it didn't make sense it wanted language had to do with the government but the un isn't a government he wanted language have a do with the recipient of a bribe but the defendant was the payer of a bribe so judge broaddrick didn't use the defense language no question but he use language that is lifted directly from mcdonnell and from other cases it talked about specific action it talked about a meeting isn't enough it had all of the language it needs to have assuming section six six six even falls under mcdowell which this court held in boyland it did not in that situation what this claim really is is a sufficient see claim it is not enough for the defense to say well this particular action may not have an official this particular action are beneficial the claim has to be no rational jury could have found the defendant guilty period they don't even attempt to take on that burden and they can't meet it because as the government litigated this case from the beginning and talked repeatedly in summation the ultimate action the defense wanted the senate want excuse me was to move a conference center permanently to a new home to be built by the defense for profit company in macau he wanted it so badly that even when he got a contract that's the pro bono agreement on december twenty fourth teen which is  unquestionably an official act this is a contract between the head of a u n component and the defendant but even when he got that he kept paying and bastard lorenzo and we know why because in june twenty fifteen this all come in a trial they wanted more they wanted a general assembly resolution to ensure that the conference center really would be the permanent home if an assembly resolution of the united nations is not an official act nothing is of course a jury co both we will turn to the regular calendar now give everyone a moment to