how we frequently have district judges from within the circuit process it with us i think it is good for all of us and we we appreciate you being back with us again and i know you'll be back with us in the future thank you we're familiar with your cases this morning we have three cases to hear we've read your briefs the authority cited in your br at least portions of the record so in the limited time it's available to you you should feel free to get straight to the heart of your argument and then we're going to have some questions you know probability  please do not treat the red light as aspirational shine's it's time to wrap if least to pay attention to it and if you're answering a question from the court is that he asserts i have a conflict of interest he objects to me proceeding wanted me to make his objection known because he claims he has the right to conflict free counsel at this critical stage he wants to be represented by a conflict fleet lawyer not me he's someone else objects to the process of me proceeding to represent him and not having a conflict that was requested was not in the record and with permission of the court by stipulation we had an agreement as to what the charge was ok and your file the appropriate papers about yes we will thank addressing the lesser included offense charges let me tell you where i am on that but the problem i have with your argument which i think i find to be in some respects a difficult issue but it appears to me that it trial the only defense that was presented was one that would have been  either the charge of bribery or the lesser included about illegal gratuities and that was that it had been it was a victim of extortion that  is correct and our position is that the ability to argue that he was both extorted and ed into a gratuity this was a butter up case that so the problem for me about  so our case was that if that was the defense at trial then it's not in a beast of discretion to do to reject a lesser included offense instruction because that would have been if the direct jury was persuaded by the defense that would have been a defense to either charge the defense was presented five weeks link the trial throughout that trial evidence was developed from both the prosecution and the defense cross examination that would have given rise to my ability to argue in conclusion the evidence is in the record had i had that charge i would have argued to that jury but i don't understand it you have the charge conference did you make the request before his final are yes yes yes and it was denied the judge studied it over but because it was a long trial it theory of your case you had of you would have presented evidence of that right in defending you want to make sure the evidence is in the record not as surly that you presented it it was in the record i could have argued it and the jury thinking about that could have reached all kind of conclusions as it relates to it i mean they could have decided well maybe it's not bribery maybe it's a gratuit remove the defense that is not a gratuity it's not a bribe or that the proof is insufficient and i had the right to present the defense in closing not to have to assert it or even say anything about it so the take the case of the fact that i wouldn't say unit in open many times the best strategy is not to tell the prosecutor how are you going to defend the case so the idea that it's not in the evidence  morning morning my breach of decorum was not intentional this morning my wife called me on the way up and and said i had left my pant suit on the oven so please that nothing no nothing intended but we would never have noticed if i had maybe i should have done that i had no idea ok tell your life you're in a clear right even though i appreciate the fact that you have read over the facts in this extremely complicated conspiracy there are a few that i'm to go over because from mr mccarthy standpoint they're very very important mr whitman was the private trucker who engaged in these bribes of the main actors at the transportation office at the marine corps logistics base and the main actors at the marine corps logistics base were number one mr potts who is the supervisor of the  transportation section and then at the time that this took place under him you had a mr phil thought who was the transportation lead person ok and then on the very bottom of the totem pole you have an individual who's a not very sophisticated man by the name of mccarty and are are the issue here with regard to my client is simply the application of relevant conduct to the case and what is the scope of the criminality for which he is legally responsible for as a result of the application of relevant conduct my client is attributed to seventeen million dollars of loss the impact on chapter two of the guidelines is this ramps up the offense level into a norm you know way up there like in the twenty's if you look at the indictment however you're going to see that mr mccarthy was charged with line by line amounts for which he was convicted for which is about half of the charges i'm not suggesting that he's only responsible for the exact amounts in the indictment i know relevant conduct doesn't work that way hardly one month th e question here is going to come down to did the district court make a individual eyes finding concerning the scope of the criminality undertaken by mccarty in particular what occurred in this case was you had the the supervisor and then the lead supervisor and mccarty and all three of them acted independently and i would like to especially point out something that i had actually missed referring to page seventy eight of the appendix even the probation pre sentence report and i would quote it is noted that mccarty comma acted independently of his from the pre sentence report page seventy eight of my appendix paragraph twenty seven this is the pre sentence report that they did document to fifteen now right from the beginning cited in my brief whitman approached all three individuals there's a statement in the government's brief on page thirty three mccarty fill thought in pots all worked in the same physical office sitting a few feet from each other not true the evidence in the case is that potts the supervisor as you would expect had his own office fill thought after he became a lead supervisor had his own office all the evidence in the case is that whitman approached them different approach the man individual ate and all the evidence as it first cot fields didn't quite know what he's talking about but then when they realized he was trying to bribe them they begin to have conversations behind closed doors not surprisingly there is no evidence anywhere in this record that  defendant participated in any acquiesced upon or agreed upon criminal activity with these other two you know isn't it true that the investigators searched the office that fill pot and pot to grade one of them one of them needed to call mccarty and give them a heads up yes that is true and then and then it one of the meetings mccarty said phil pot all they had on him was a four wheeler and a mustang he wasn't going to prison for that and they still pot pots and mccarty met several times after the investigation began they met together right after the investigation right which would suggest everybody knew everybody was in this together right that's when that said a reasonable inference the district court could have made we've got a question about this jointly undertaken activity it appears to me is really for us a clear air determination  yes i believe so you know if there's evidence to support that finding if that if the fact finder could reasonably infer that they jointly undertook the activity it looks to me like you've got it here well i don't i don't agree that what they talked about after the investigation broke shows jointly criminal criminal activity during doesn't necessarily the offense level that would apply to the counts that he was found guilty with which would be driven by about one hundred thousand dollars of loss you had that one hundred thousand is what he paid yes and those behind me also the judge barrier to part down it all for your client an official by itself in the abstract is not a gratuity statute it issued eighteen u s c two a one c defines a gratuitous as a payment to an official not just because she's an official but for or because of an official act as opposed to the definition of bribery in to and b is payment to an official with intent to influence and fishel act and those are  fine line and the way the supreme court distinguished the two in sun diamond was that the bribery payment with intent to influence an official act has a quid pro quo element to it whereas a payment to an official or two and see as a gratuity could  a reward or a thank you for some official act the person already took or had already agreed to undertake so official says i'm going to build a clock tower and someone in the business community says thank you here's ten thousand dollars that's a gratuitous just buttering someone up is it and so i think put in that context and then with that sort of backdrop looking at the record here there is no way on this record that the issue of is just that in that context the payments from the victim are corrupt because you're being extorted rather than for that you are the victim if exactly that's the argument karami isn't the cleanest way when i look at this issue you know lesser included something often argued that the government wants it in some cases the defendant would want it i can imagine the way this a case of bribery would be charged and tried there would could really be an issue of a lesser included offense charge for the statute but but but i can also imagine it charged and tried in ways that doesn't raise that issue but it seemed to me the easiest way to look at this was the only real argument by the defense was that if it was a guilt was a victim of extortion and if that that's the defense that's a defense that would be that would apply to both kinds of charges and for that reason our case  as it's never it's not an abuse of discretion in that circumstance not to give the lesser included that's correct your honor i think brown cornelia the cases we cited stand for that proposition and just to follow up on that the the test really is whether someone whether a defendant could be found guilty of the lesser offense instead of the greater offense but the question is not just could the defendant found guilty of a lesser offense or sort of by definition yes if it's a lesser offense the question is lesser offense as opposed to greater offense and that's when the court looks at the record determine and the district court in the first instance looks at the record that he just sat through and the trial he just sat there to see whether on the facts of the case and the evidence presented in the case there is any way that the jury could reasonably convict on the lesser offense but not the greater that which is again because it comes up on both sides as you want to point out that that's why the standard of review here is abuse of discretion this isn't on the ground call for the district to make based on how the case was argued and how the evidence came in now i also would want to point out just so we're clear has you like me about this so i understood your argument was that this was kind of a last minute idea it's racist yes race kind of at the last minute so how might it have been that that was going to be an aspect of the defense could have done so then at the very least if something happened during trial that made my colleague think that this is a theory he wanted to pursue and he would have been in a position to research issue and brief it and it's a bit something to the district court in the middle trying to get the dischord a heads up this is ultimately the framework here is just it's a jury instruction it has to be both legally correct and necessary to the facts of the case and so as with it carefully in and change its mind of something comes up in the trial that would push me either way none of that happened here we're not arguing plain air simply because the instruction was submitted literally at the charge conference from right before the jury was instructed right but i think that simply provides background for why the issue was not as well fleshed out as it might otherwise have been you know in the case and as a former district judge i felt for the judge here because this is complicated and you've got a jury you've got instructions if found the judge had been up the night before working on him and the jury is about to walk in and and suddenly you're hit with this new thing you're not just hit with it the government's objecting to it and a defendant a codefendant so what is the judge did is he going to sever the trial now it's sort of the math and i recognize the rules appear to allow that sort of ambushing but i don't know if an abuse of discretion standard only got all of this going on whether or not we should consider that to be a factor as well yes your honor and for what it's worth for what little it's worth coming from me i think the district judge did it exactly correct his first reaction was why would you need this is structured if you're not guilty you're not guilty but then he asked for at least some minimal briefing from the parties and quickly came around applied the correct standard and said that on this record there's little if any evidence of gratuities and i think actually there was he  was given a little too much credit to the defense there was no evidence or to it is that we searched the transcript for the word were toadies reward gift and there's just nothing in the record at all from argument or fact that suggested that these payments or thank you payment for something the officials are really done they were payments going back and forth for years at the same time these thousand dollars payments cash elbow pekin given to officials the fishes the steering tend thousand dollar or was faced with a record of three co defendants coast schemers they weren't charges conspirators but coast gamers who soon as they get caught mr philip out thought to call mr mccarty they met repeatedly afterwards which does shine a light on what their relationship was earlier the fact that circumstantial evidence they knew they were in together in fact mr mccarty as we pointed out in our brief was actually a conduit for some of the bribe payments because whitman was paying mccarty to do work on phil potts house right and so at the very least in the car he knew that those payments were being made from whitman to carty and when we said in our brief that they're all working a few feet from each other i think there's i don't remember the exhibit off the top my head this action exhibit with a map of the office in the record that was shown to the jury it's not a big office it's sort of a central area where i've been sitting next to each other in the supervisor's have offices up on the side so potts had his own working closely together their reason each other's codes in the computer system they all knew about each other's work product they all testified they didn't know the exact details of the arrangements that mr whitney had with everybody else but they knew they were in it together and the district or at the very least reasonably so reasonably infer that could reasonably infer that from the fact case your honor and that's exactly what the just or did i think my opposing counsel mentioned i believe for the first time when he was up at the podium there was no specific finding by the district court which is and i think personally made less money i know that the district court did very downward substantially because the fraud loss amounts were almost the same mccarty was a member of the scheme for most of the time so in terms of loss amount they're going to be pretty close gratuity was a crime the charge would have pointed that out and said you can find him guilty of paying a gratuity as a as an unlawful gratuity but for me just to argue the jury would be sitting government inspector that there was that they were keeping him happy and they keep him happy they gave him a tractor they gave him a will get huge discount on another tractor and they did home impure prove much that is completely  but what i do want to say city judge sand's took a lot of time he had set up the process that we could continue to submit we had been working on the charge for some time he received it make an individual ised must make individual ised findings concerning the scope of criminal activity and isaacson we had sort of a similar situation involving a fraud case where you you had a defendant who was defrauding auditors instead of defrauding investors in other words this particular defendant had more of a independent part of the conspiracy and the eleventh circuit remanded the case for re sensing so it i don't believe this standard of review is is amorphous as you would suggest it is and it is the judge made the sensing not not the jury i think that the judge still has to follow that you know that the case law and although judge sand type seen this quite a few times and he's very good judge i think paying lip service just saying you're making an individual eyes assessment isn't making in in vitro lies assessment and once again judge it's our position that after all three of these knew that after the raid of the marine corps logistics base and all of their stations and computers shows that they knew that all of them were being prosecuted doesn't show that they had a jointly conducted you can make that argument but but you could reasonably infer otherwise yeah i know stan that judge but i think those are the kind of things that should have been included in a district court finding i think there would be more obligation than that thank you thank you