numbers please the court alexander shapiro for dean skelos i'm going to focus my argument on why mr skelos is entitle to a new trial on all counts under this court's recent decision in united states against silver the st instructions in this case are virtually identical to the ones in silver in relevant respects in that the district court failed to instruct the jury as to each count that it had to find a particular specific and focused question or matter had to be identified at the time the official made a promise or accepted a payments the government appears to have conceded that  its letter or that the instructions were incorrect so i'd like to focus on why the government cannot meet its burden of proving that this era was harmless beyond reasonable doubt it's absolutely critical to focus a little bit on the harmless error standard the government appears to be proceeding in its letter and in his brief on essentially the assumption that this is a sufficiency standard that inferences aren't to be drawn in their favor that's wrong we're not raising  sufficiency argument at all and under the supreme court's decision in meter the standard here is actually essentially a mirror image of the standard sufficiency standard but from the defendant's perspective in other words whether irrational properly instructed jury could have acquitted and the supreme court said in meter that it the that requires a full examination of the record and if at the end of that examination where the defendant contested  raised evidence sufficient to support a contrary finding the court must should not find the error harmless and this court adopted that standard as it had to in the quite strong case which is cited the government's brief or a different point i want to go to but i wanted to highlight that case because it's similar in that the defendant testified which is unusual so i'd like to just turn to each of the the different alleged schemes and talk a little bit about how the record illustrates that there was evidence to support an improper legal theory on under sober and that the government made arguments that as an alternative to the other legitimate theory of official actions this is not a mcdonald's case i mean this is more specific in terms of the actual  quo side of it than mcdonald was right when we're talking about concrete official actions steps that are taken and that kind of thing by the by the public official and  question or matter has to be identified at the relevant time and the point here is that while the government purported to identify a particular type of legislation as to each of the schemes there was also evidence  and we're not disputing sufficiency but you have to be at the time of the of the agreement or does it have to be at the time the benefit to the to the wrong or well silver says both things in different places actually there's one part of the opinion where the court says a particular question a matter must be identified at the time the official makes accept a payment and there are other parts where they also talk about making a promise but either way  our point still holds as to each of the three schemes and yeah but the focus that my follow up to judge walker would be that that in each of the schemes there was a legislative purpose that was identified this was not just general help me out if i ever need help this was there is legislation that mr skelos was in a position to either move along or to block and so there were matters that were identified that would satisfied silver as to and it will kind of attack the point is that sooner also makes clear that it's not enough to just talk about legislation in a particular category footnote twenty two in particular specifically says that supporting or developing real state legislation is not sufficient and it has to be tied to much more specifically in my point is not the government did have a theory t specific legislation but it was also evidence and testimony indeed by two of the key supposed payers of the want to glenn one and p r i indicating really had a much more general thing in mind focus is particular programs tax abatement rent stabilization programs is required so it's not just and that's what was present here it seemed to me no your honor again and i would ask actually if we could have an opportunity just very briefly to submit a written brief analyzing the impact of silver because i think this is very critical and there are parts of the record and just just as one example i think that's an excellent idea yes why don't you n what would you like ten days to ten days for you and then takes for the government to respond all right thank you thank you very much no go ahead take take an extra minute or two example and what i want to  emphasize and we'll will go through some of the more more specific detail about the record in the brief but what i want to emphasize is that the jury the government gave the jury two different theories and there was sufficient what neither talks about is is there sufficient evidence that the jury could have acquitted and the reason they could have acquitted had they been properly instructed is that they could have because of the timing which was much more attenuated for exe than in the silver case where the court was specifically focused on a side eventually figured out a way to pay adam skelos so that dean skelos would use his official actions to help the company and not harm it here is what he said question why did you arrange for any of these payments to adam scales answer because i knew that the senator was one of the most powerful people in state politics and that any time he to do anything behind the scenes that would adversely impact our business which would then put me in a very bad position at my own company that is an illegal quid pro quo right there and that's just an example there are numerous other examples in the summation connected to the abject scheme and there's similar evidence with and argument with respect to the p r i scheme but my point is that the jury was could easily have convicted if they just believed that these people were helping adam skelos because dean skelos was a powerful politician albany and a company had legislative interests in the silver opinion is clear that that's not sufficient all right thank you very much moved here from counsel for adam skinless and also i would invite you to file your own separate brief about the effect of silver on that matter certainly transactions one of which is p r i which is the medical insurance company malpractise insurance company and the other is glenwood which is the construction of large rental apartment buildings with unique about adam scholars and position here is that there is no proof as to either of those that adam was party to present as or knew without discussions which the government is arguing and and which the convictions based upon that there would be legislative action he simply wasn't present there is no communication indicator as to either of those that he was aware and the government's case and its argument and i'll turn to their argument because they they put it in their brief pre sold or the brief if they filed is that he must have known because his father was his father because they talked politics and so on this is what record include statements by him about the power that his father had in that need that some of the entities had for his father's either approval or assistance in moving forward the legislation of issue he didn't have any such conversations with either the it was the p r on specific it was his knowledge i have to be if he knows that his father is fixing things it one way or another and as a result he's getting he's getting maybe not direct conversations but but by inference the fact that he's his father is is is the benefactor that is causing him to get to get this is his money and he's he's doing it that by quoting from the government's brief at page sixty four through sixty seven and this is in response to our argument pre sold or that there was insufficient evidence on these two  e matters and their response consists of the following allen skilless had to have knowledge of the conspiracy to seize on lawful purpose but not necessarily all those activities and we agree with that and that is i think what your are saying but what they rely on is adam is intimate involvement in the crimes so he doesn't have any intimate involvement in the crime except that he he performs or doesn't perform employment for but the fact that he got the implant is the quid pro well that's the it has to be some evidence that he was aware that his father would be doing something which fulfils a silver standard and there isn't any evidence of that except that he's his father and the government can relies on things like and i'm quoting from six thousand four hundred and sixty five through sixty seven of their brief saying why this sufficient evidence during was hiring lobbyists so it's a totally different context that's why i'm only addressing the st two he said at p r i he said you know there is an arrangement between dean sk and in the final one is the three schemes are temporary temporally and factually related to one another that's the extent of the government's proof now he told a supervisor when he reported to work p r you know employer he did go to work he did he did bring he did make arrangements for six different hospitals to go to he did that and he also makes statements to a supervisor who complained that he wasn't showing up that  were quite rude and suggested he didn't think he had to show up and that it was all arranged again that's yes but i think our argument is that that is not reason it's not a reasonable inference that therefore his cover that in your letter sure we can show you that well p r i he's he's hired i take me a minute to say get out so i'll just stay generally but we can put in the letter and p r i he takes the job  he performs he's a bad employee and not a nice person but he takes the job p r i the boss finds out what's going on they cut him back cut him back to half they take him out of the position ultimately they fire him and after all that occurs months after that the extension statute that's relevant to the practice insurance is passed but there's no time there's no temporal relationship submit is not sufficient has to be another piece it has to be a temporal piece has to be a suggestion that has to be something other than the fact that as the government says he talked politics with his father that the no you're from the government and see what they have to say thank you so much  extortion on a services instructions we do can see there are only yes in light of silver but we think that was harmless for reasons i'll discuss in a moment but count six through eight charge violations of eighteen u s c section six hundred and sixty six under both the bribery and a gratuitous theory and we think those counter not affected by silver for two independent reasons money the number of those counts in a six to eight weeks not one of those is with respect to each of the three schemes but so with respect to the gratuities theory this is straightforward the jury convicted on a gratuities theory that simply did not include an as opportunities arise instruction rather and there was a special verdict form they were told they had to be unanimous as a bribery or gratuities and they were unanimous as to both bribery and gratuities on each of those counts the jury instructions on the gratuities count which defense counsel has not challenge in their briefs or very specific consistent with sun diamond in the gratuities case law that the government must prove that there was a link between a thing of value no as obvious arise instruction on the gratuities counts defense counsel haven't challenged those your instructions they've argued that generally speaking six hundred and sixty six doesn't prohibit gratuities but that's foreclosed by binding nd circuit case also on that basis alone you can affirm counts sixty seven and eight there's a separate independent reason you can affirm count sixty seven and eight and that's because this court held in the lab saying case that mcdonnell's official act requirement simply doesn't apply in the context of section six  the extent that there was any error in the official act instruction it would have been harmless in the in the sense that it raised the government's burden which is essentially what the court held in the in lapsing case but moving on to my side so for those two reasons regardless specificity based upon what was argued to the jury well i think with respect to the gratuities count in particular that's just not correct if you look at the jury instructions they require a link to a specific official act and if you look at that just doesn't apply to count six through eight but with respect to what counts one through five we think any error in the instructions was harmless beyond a reasonable doubt for the very same reasons in the silver real estate scheme and if i may i want to start with the harmlessness standard because i think defense counsel in her argument in her briefs have slightly mischaracterized the harmlessness analysis that applies here it is not the case under neater that neither error is harmless only if the element is uncontested this court held in the united states versus jackson that there's actually a two part test that applies here and that test has been reaffirmed time and again in needham inori which is say in our brief and the two parts are as follows st you ask if there is sufficient evidence to support a defense fund if the answer is yes then you move to the nd step which is to look at whether the verdict absent the error would have been the same now i read the defense arguments to be suggesting that you stop after the st step but that's just not the way this court case law applies this analysis and silvers a perfect example we don't have to be comfortable though that the jury would have found this way beyond a reasonable doubt yes your honor but that's the that's the nd step and i just saying i take the defense argument to be well he testified he denied it and therefore no i think she was proposing a different way of reading the record evidence that raises sufficient question that we can't be confident beyond a reasonable doubt that the jury would if i was so found as you're proposing you are i think that the best way to analyze harm to look at exactly how the court analyzed harmlessness and silver and do the same thing here because the similarities between the charges here and the silver real estate scheme or remarkable in the glenwood scheme for example each of our three schemes i would say that is true each  are focused on a very specific question or matter and i can walk through what each of those matters or with respect to each game st and foremost with respect to glenwood scheme the matter is the four hundred and twenty one dollars a and rent regulation legislation which are the very same matters at issue in silver we had test and with us back to me and we think that the evidence of a quid pro quo in the identification of that matter was even stronger in this case than in silver we had testimony that time and again in meetings w glenwood asked dean skelos to vote for them on for twenty one day he made requests to pay his son and we respected judge walker's question about time and i think this is really important to look at the timing on the glenwood scheme the votes on the rent active tw compromise on regulation and in that meeting dean skelos raises the promise to find out i'm skills a job and object that had been made a month earlier and he says that's not going to work soon enough he's not going to get paid soon enough you need to find something else and then just days skelos makes the vote and so it just walker asked about whether it's the time you're see is the benefit or the time of the agreement i think we would submit that silver allows for either and at that point in time in june two thousand and eleven when dean skelos is to vote on the bill and he raises this promise to get his son a job and ask for additional things as well the krupp bargain is struck there and at that point in time there can be no doubt at all about what the questioner matter that glenwood is thinking about is because it's the consequences i think if you look at what was harmlessness analysis in silver you'll see that almost identical testimony supports the harmlessness finding and silver if you go through and compare the mesothelioma scheme in the real estate scheme and silver you'll see m is very very different obviously the main matter was time barred and so what remained was this nebulous promise about keeping dr taub happy by significant contrasts the real estate scheme like each of our schemes is focused on a particular piece of same power on the senate side nd that there was circumstantial evidence of the timing of silver acts and the referrals here for the reason we talked about was back to glenwood scheme the timing was even tighter and i can talk about the other schemes in a moment as well  rd there was this side letter there was evidence of consciousness of guilt and if we had nothing in this trial we had evidence of consciousness of guilt we had numerous wiretap calls where the defendants are talking in code sending emails about not emails lying to their staff we had rules of consciousness of guilt evidence in this trial and forth there's testimony from lerner representatives about how not signing this side letter could lead to quote repercussions legislatively in this trial with respect to each of the schemes we had equivalent testimony t of the appendix and you're an off white who works for abt tech testified that he felt like he was being held hostage by the threat to block the county contract that page four thousand nine hundred and eighty nine dollars of the record we also have the goodwill instruction as they did in silver and we have  abundant evidence with respect to each of these schemes that supports the harmlessness of mine and what it what about with regard to an atom and the extent of his knowledge you know we could look at the record possibly and think a father is helping son f son knows that you know the rain events are being made and he proceeds to accept money and show up or not show up at various jobs but what does the record show about that could convince us beyond a reasonable doubt that any arm error has been harmlessness to him well i think there's two separate questions here one is the jury instruction question is one insufficiency with respect to sufficiency i would say look this course already considered and rejected the exact same argument on the st appeal we read through a laundry list of facts that support a reasonable inference that of scales had knowledge about the things his father the specific things his father was doing for these companies and that was more than sufficient for reasonable jury to find his guilt now to the extent that we're applying a question of harmless error review to adam scales as knowledge  st there's no chance that it's harmless with respect to the abject scheme because there are multiple wiretap calls where adam scales actually briefing his father think there's no chance that it's not harmless yes your honor where else will job without check it was more lies knowledge of of how he's going to do it you know i don't dispute that that would be sufficient but even if we had to prove something more even if we had to prove that he knew about you have to prove more i don't know well and if we do your honor i think we did we you know and one of the best ways to look at this is to look at our supplemental appendix at the summary charts its government exhibit three thousand three hundred and three i believe they show a clear coordination every step of the way with respect to all these schemes between adam scales and d and scales with respect to glenwood and pier i specifically you know when the investigation began to become public and i'm scales had a meeting with you an off white where he talked about how it was a good thing he didn't have any quote real estate ties to charlie  o the government's key cooperating witness i think that was certainly sufficient support a finding that adam scales knew this wasn't just sort of well my father's powerful what he's powerful about is the real estate legislation that is critical to glenwood same with respect to  in terms of you know the way i'm scales approaches his job talks about having arrangement with his supervisors she with the company's c e o i think is certainly sufficient to support the inference that he in fact knew and when you look at that in the context of the whole trial and the coordination between the two defendants constant phone calls e mails discussions about the scheme i think we did make that shoddy if i may briefly you don't i think that i out a little more detail in our submissions but you know the quotes that the defense counsel are talking about in terms of well there's the hostage e mail shore and i think that it can be any dispute that that was about a specific matter because it's an explicit threat to block a specific county contract but one of the things that adam skelos also does for abstract after that there's two things he pressures and man danno the nassau county executive to release funding under the contract and he votes for state budget legislation which is provides funding for which the contract will be eligible and so all three of those official acts that we pressed in the app tech context are directed at the same matter the contract which was clear from the exception in the one of the thing i wanted to confirm was that on the supplemental briefing that we held so have eight pages double spaced yes please thank you superior a couple of quick points st with respect to the standard i think is as your honor said judge carney i don't think there's really much dispute between the quotes from nader that i read to the court which were reaffirmed in quite this court's decision  acquitted and that this jury was out for three days let's not forget that the defendant testified i'm not going to go into chapter and verse but many of the characterizations you heard from government counsel about the meetings before the june  specifically make clear that the reason they cited skelos one and say that's a different case because of the government's theory in this case the same thing happened the government asked the judge to charge a requirement of official action under mcdonnell definition in connection with the six thousand six hundred and sixty six it did have the same defect we identified in the other counts so as to bribery i think there's really no dispute that the instruction was incorrect there can be no dispute under this court's prior three courts instruction was very confusing and refined back to an official act instruction that itself was defective and referred to as opportunities arise but we certainly can see that we're not specifically arguing that the gratuity instruction itself moreover there's a long history of mr scale of supporting this for twenty one to legislation and indeed the reason when we would st met with him some six months before that was to celebrate the republican control of the senate because they knew he supported them but having said that the other thing i want to stress is that in the sooner a case it was very different because the defendant didn't testify there was an alternative evidence and unlike in this case where there's no payment for eighteen months after the legislation is passed there was a much closer nexus in time and indeed in if you take a look at the silver briefs you'll see that harmlessness as to the real state scheme is not actually brief the defendant there was arguing that the evidence was insufficient we are not making that argument that also is different from what adam scales is arguing ok thank you very much thank you for your arguments we'll take the matter under advisement i'm going to take a brief recess a few minutes and we'll be back to hear argument in the remaining two cases