position that is a long line of supreme court precedent the plain language of the statute legislative history and policy considerations all demonstrate that when this when the statute says an offense against a foreign nation involving bribery of a public official when the statute uses the word offense involving that is generic federal bribery and the court can look at starting with more delo spring court case pairing and scheidler those are three and for that reason alone a reversal is required because the government conceded that the indictment did not allege generic federal bribery as the underline activity they conceded that in their response papers to the motion to  dismiss that was wrong under supreme court precedent and so for that reason alone we believe that the court should reverse in order the district court to dismiss the indictment if the court didn't agree with the indictment challenge it's still our position that the jury instructions were flawed because they did not set forth bribery under the generic federal definition in particular the instructions were defective under make donal which is the recent supreme court case which  explains the official act requirement are elements of the bribery federal bribery offense the instruction that was given was used similar language the instruction that was held to be defective in the donald it uses language that was held to be defective by the second circuit in silver which followed mcdonnell so again for that reason alone there was instructional error and in a case like this where the jury deadlocked on five of the six counts  and based on mcdonnell itself which says that this type of error cannot be harmless or the government hasn't met its burden of showing harmlessness beyond a reasonable doubt so for that reason also the court should reverse for  do we go to eighteen us code section nine hundred fifty correct so what in statute do you think requires us to include the generic definition o ok so the relevant definition in one nine hundred fifty six is an offense against a foreign nation involving bribery of a public official that's the language and what the supreme court in this court have said is that that word offense a generic form that means apply the generic federal definition so even though you have those words against a foreign nation the word offense particular then is followed by involving that is the way congress singles use the federal generic definition and so for example the supreme court cases in the ninth circuit cases we cited in they say an offense and then it might say under state law or again or in violation of state law involving and then put a plug in your offense bribery theft drug trafficking whatever it may be this court and the supreme court have repeatedly said in cases like  the way the core treated my question is no no no and the government doesn't have a case either and but the cases that are on point though are most closely on point of the supreme court cases that say and they interpret other statutes that are within chapter ninety five of title eighteen the scheidler parrying are dello those are all cases interpreted in statutes in the same chapter of title eighteen similar similar language and the supreme court has always said use the generic federal definition and that's what this court has said as well for the language and that's a wrinkle that you think helps you  i just want to get the exact language it looked to both the common law and federal statutes to determine the meaning of extortion and that was under the foreign extortion allegation so that's why we think that you know that it was it's at page ten thirty eight at ten thirty nine i don't have the an exact quotation for you but what the court did is it looked at the american common law and looked at federal statutes to determine the meaning of extortion and that was under a similar hundred fifty six case that involved a foreign law as a as a predicate and then again in this you case this court looked to and i'm quoting american law in assessing the meaning of fraud in a similar circumstance and it also said that the defense challenge was would zone successful because quote their fraudulent acts on lawful in both the united states and china meaning that you needed to have both a generic federal american offense and the foreign offense as well so it is the only two cases that this court has decided that on this particular issue both seem to suggest that you do need the generic federal fans and that's consistent with the spring all the other supreme court cases and i circuit cases that say that when this language is used to use the generic federal offense those are not for well there are there are there is a  felony definition and that includes foreign offenses as well but the court still held that you use a generic approach and frankly the generic approach makes more sense when you're dealing with laws of foreign he says because they may be quite different then american defense but it's that then the burden would be on the defendant to come forward to the court and say listen we know that the generic definition that they have to show at least a generic definition but we have additional defenses under foreign law that we want to raise and it would be the burden of the defendant to show definition the defendant is entitled to that additional defense or it is entitle to require the government to show the additional elements under the state or foreign law but at the very least for him the government from charging  which is what we require they couldn't what they were allowed to do which is what they did is get an indictment under a watered down version of bribery under korean law and then have the jury instructed under a watered down version of different from the facts we have this case well i don't think so because one of the problems we have is that the bribery and this relates to the last claim which is the sufficiency of the evidence claim the bribery that underlines the money laundering specific count of conviction we have no idea what the official act was we don't there's no evidence it involves a payment from this company can a match for x we don't know that we that that was with respect to another company this deal with another company what we have here is no witness from kinematics testified that he had any idea as to what that payment was about we don't know whether it was a simple phone call which was what macdonald says is not an official act he could have picked up the phone and said to it was even his own entity that allegedly purchased the equipment which we frankly have no idea what happened but he could have picked up the phone and spoken to some other entity and said look this this company makes a great product that want to be an official act under mcdonnell we have no idea what the official act was and the the jury instructions on the official act were totally watered down in addition the jury instructions include a corrupt intent requirement which is required under section two a one the jury instructions didn't include the influence element that is included under section two a one we had a completely watered down definition of  instructed to the jury and again it's our position that the court doesn't have to get to the jury instructions because the government conceded that the indictment did not allege federal generic bribery so the indictment itself was deficient which is a structural error that requires b argument this court clearly held in law as a ranko that a money laundering count in an indictment does not have to charge the elements of the underlying predicate offense that's clear in law as a right going in fact money laundering indictment  was less specific as to the money laundering counts in this case which in this case that identified the foreign law that was charged as a form bribery predicate and even quoted article one twenty nine of south korea's criminal code discusses the sufficiency of the indictment on the money laundering count and it says  this court separately looked at the common law definition of extortion to determine whether as a legal matter that the ukrainian extortion offense that was charged as a predicate matched the common law definition predicate that congress wanted to capture under the money laundering statute and that really flows foremost i think from the plain language of the statute or the violation of oh just you want to make sure that the predicate that is charged in the indictment as a legal matter is falls within what congress was trying to capture as a foreign law predicate congress was trying to capture for law as a basis what the common capture when it added that the foreign offense relating to extortion here and i think part of that also flows from from the legislative history if the court were to look at the legislative history of the provision that adds a foreign bribery offense to the money laundering statute it's added in two thousand and one as part of the two thousand and one patriot act legislative history the basis of you know you and i represent proceeding foremost on the plain language of the statute when you have a statute that sa offense against a foreign nation involving bribery of a public official offense against a foreign nation is refers to a particular violation of foreign law just as a statute using analogous term offense against the united states when  statutes use that term it's referring to a particular violation of federal law so for example the conspiracy statute punishes anyone who conspires to commit an offense against the united states when the government charges a three seventy one conspiracy it has to show an agreement to violate a particular federal law not an agreement to violate a federal generic offense so we think we're learning foremost on the plain language of the statute but use the term offense against a foreign nation foreign bribery provision it would have said so because in listing out the other foreign predicates in one nine hundred fifty six c seven b congress in particular with respect to particular foreign offenses but not bribery congress referenced other of a crime of violence in eighteen us c section sixteen and there are other examples in there so we know that congress knew knows how to cross reference another federal statute when it wants to apply it to these foreign supreme court looks at the generic definition of an offense to see if the state law predicates that were charged on that in the travel act and it and rico wear the type that congress wanted to capture in those federal statutes but the mode of analysis not much of a difference the district courts instruction on quid pro quo bribery under the south korean law required the jury to find in order to convict defendant she in order to find that he had committed bribery that defendant received demanded  promised to accept a payment in exchange for exercising his official duties or other words as a quid pro quo for exercising his official duties you know the exchange of money for official action is quintessential bribery under the common law we cited just by way of an example to the carcase out of the eighth circuit which says that common law bribery is a payment given in exchange for the exercise of governmental power we cited in a recent twenty eight j letter to this court the model  of public official bribery which refers to the payment of something as consideration for that it lists out certain you know official acts that as consideration for language is really very similar to the in exchange for a language and i would even on official duties is not preserved nowhere in my review of the record that i find anywhere where defendant she challenge race mcdonnell in connection with the jury instructions on official duties there was an issue that the defense raised as to the definition of official duties but the district court resolved that and i believe it resulted in the defendant's favor but nowhere in the record mr coleman can on rebuttal correct me if i'm wrong but nowhere in the record did i find  she raised to the district court a complaints over the fact that official duties would include acts that are customarily performed by the official nor did i find where he where he referenced make donald even if it's wrong about that in the court were to find that the challenge to official duties is preserved mcdonald does not apply mcdonald as the case first and foremost of statutory construction various courts of appeals have declined for example to apply mcdonald to other domestic bribery statutes the third circuit in fairy arrow declined to apply mcdonald to new jersey's bribery statute the second circuit in the boiling case  declined to apply mcdonald to section six six six bribery and the reason they did so is because they see that mcdonnell the supreme court really focusing in on the terminology the language of what constitutes an official act under s have any footing in the circumstances of this case as judged as i think some of your question got at this is not the type of relationship here between the public official was not one with his or her constituents and this is defendant she's relationship with two foreign bribery started to foreign companies that were trying to bright defend it sheaffer an unfair business advantage in south korea so there's no danger of interfering with constituent relationships there's degas concerns given the strength of the quid pro quo instruction and given the separate instruction at that given to the jury that it had to find the defendant she knew that the property he was in transacting with was a drive from some criminal offense that mens rea a requirement in addition to the strength of the quid pro quo instruction really would satisfy any vagueness concerns of course is no federalism concern because you're giving and struction which is just your court did  giving instruction on official duties that hughes tracks the requirements of south korean law really how south korea has south korean supreme court defines official duties so by giving that definition you're respecting the law  of a separate sovereign so for all of those reasons the challenge that instruction on official duties should not be well taken by this court prepared to respect my remaining two minutes on sufficiency unless this court has any other questions about the indictments or the jury instructions the evidence on count six was sufficient to support defendant she's conviction count six as the court knows the basis of that was  a fifty six thousand dollars check that defendant she writes from his bank of america count in glendale california and has deposited in his merrill lynch account in new york and it's undisputed that at least thirty five thousand dollars  of the funds used to cover that fifty six thousand dollars check came from two deposits that kinna metrics made into defendant she's bank account bank of america account i'm sorry that at least thirty five thousand exchange for exercising his official duties to promote kinematics products to metrics paid him that money the court can look to all the evidence showing that defendant she was out there promoting sales of  metrics equipment the court could also look at the evidence showing that when defendant she was promoting in a metric sales he was exercising his official duties he was the senior a senior researcher at kagome and sometimes he was the director well i'm going to try to address a few points first on the indictment question the government keeps on twisting the argument that they say that the indictment doesn't have to legit all the elements of the underlying on lawful activity i'd agree with that and that's not the argument that  position now it's that what the what the statute means is common law bribery i think that's what their argument is if i'm understanding it first of all that's wrong because what the what this court and supreme court of consistently said it's generic federal bribery and that you look to supreme court opinions and the federal statutes to do to determine that but even if you want to take the government's position that it's common law bribery i'm not sure how they can say is not part of the american common law this is the binding guiding supreme court decision them the most important supreme court decision on bribery in decades so how they can say the mcdonnell does not constitute part of the the cases may be different the facts may be different of the case but the legal question is what does bribery mean and the type of official acts which were normal common political wanted who wanted research to be done by the state by the government and he was given favors to mcdonnell and his wife from the guts of the governor to make a phone call or to pass along a note or to say we'd like you to take a look at this it's the same thing here they're official act definition was incorrect the government said the defense never asked for the mcdonnell fishel act that's just wrong i think i can give you one fifteen is where the defense specifically asked for the two a one definition of official act defense made this argument and therefore in therefore even if you want to say common law briberies the standard which it isn't mcdonnell is part of the common law the american common law at this point and for that reason the both the indictment and the jury instructions w