and we have three appeals on the docket this morning and i see that counsel are ready for the first one it's united states of america versus anthony le poor mr king is here for the appellant mr ghali for the government are you ready to proceed mr  morning there please the court my name is paul kish i b c represent mr we've got issues today concerning sufficiency of the evidence we've got to talk about the official tax definition in interpreted by the supreme court mcconnell we've got a question about a jury instruction and we sense i've been standing here for thirty five years arguing cases in this court and i still struggle when it comes to the sufficiency of the evidence with the difference between when a jury is allowed to make a reasonable inference which means is sufficient evidence on the one versus cases where this court has reversed conviction saying it's just a hunch it's just a conjecture is just piling one inference on top of another and that's where we have this case on the sufficiency of the evidence question we've got a repeating fact pattern where the head of an organization the question is what does that person know and what are the reasonable inferences that can be lead for what from which a jury could conclude that the government has proven beyond a reasonable doubt that the person at the top of the totem pole so to speak knew what underlings were known you know really concede that based on the evidence in this record that there was a conspiracy as i understand your argument that there's still a poor there isn't enough evidence in this record to establish that mr report join the conspiracy is that right knew of and joined yes sir but when he makes statements there are statements that are attributable to by think it was mr clarke who testified at the trial where in bed with jackson he uses the word bribe he puts his arm around mr jackson and says you take care of us we'll take care of you when we apply our standard of review could a reasonable jury infer that he joined the conspiracy why isn't that enough because that's really not what the transcript says if you read it closely and that's why i went through so meticulously in our reply brief to point out that this is not a transcript that quite says what the government says it claims that it says it is to use the word bribe in them or use the word bribe no it's not there here's the classic example judge i think it's that pages twelve  forty or twelve sixty two twelve sixty one the government asked a series of leading questions saying you know what were you guys talking about what did mr lapore say and the witness mr clark repeatedly to his credit i just don't remember exactly what was said and this i read i didn't do the trial similar so if i look at the record in this case there's no evidence that most do a poor that mr jackson was being provided an apartment there is i don't know what's more there's no jackson and what was being provided an apartment there is no evidence the poor knew that the reason jackson was being provided that apartment was because of this side deal between clark and jackson why couldn't the jury and for that because there's no evidence to support that as i said that's at the beginning we're at that point where where is the jumping off between point between a reasonable inference and just a guess or a conjecture and that's why i cited right after we filed our briefs this court's loise decision from last summer where the court reversed the conviction of mr luis on the lack of knowledge in the court pointed out that when it's close you've got to remember which side has the burden of proof and we just want to man's liberty at stake we have to be vegetal and with this standard well the problem with the luis case as is the problem with it you alluded to with every sufficiency case because you have to look at each case separately is that in that case  the guy dead was drove a truck with a box stop saw the police and ran and there was nothing to tie him in into knowing what was in the box that going back to to judge wilson's question i'm just looking at parts of the records and that is it's in the record that when clark told dr about the idea it and eventually clark and dr got on the phone with le pore and then that was the rationale that was that it was a corporate apartment that's all in the record it is in judge and that's why i quoted so extensively the last point you made the phone call because i kept expecting because i didn't do the trial i said or it's going to come here it just is not there that's why i quoted it so much of that to show that these witnesses simply never said that there was a direct conversation with mr lippold clark clark testified that he and rov got on the phone with le pore and that was the rationale that it was a corporate apartment and that in that discussion right and that that's why when you then look at the question and answer about the corporate rationale it is about who is supposed to sign not the reason the apartment was leased or the purpose for it in the first place were or weren't that two apartments there were the fellow who was bribed took the first apartment for a year and then he moved into a second apartment i think the court understands our argument i'm going to move on to some of the other issues which is the question of official acts and i concede as the government points out this only deals with the conspiracy in the end the fraud charges but this i think is going to be the court's first time to apply a mcdonald's standard and it seems to me that mcdonnell which basically reversed governor mcdonnell is convictions for saying you know just because somebody sets up a meeting that's not an official act i think we have close to that here especially with the cab county situation involving the fellow who took the bribes because you would agree mcdonnell is  decision our position is using that standard there still was insufficient evidence of an official act by the person who was bribed with getting to the jury instructions i can see this stone case out there that i lost in one nine hundred ninety three which says that if there is no evidence of deliberate ignorance it's still ok to use the deliberate ignorance jury instruction because if there was actual knowledge then there's no hostile it's the only harmlessness per se rule i've ever found but i think we have a difference the  government asked for it knowing they would never argue it we are getting to the point we are i just finished a trial mr ghali and i did we are throwing so many legal concepts at drawers that don't matter that the government didn't argue or circuit has distinguished stone and those line of cases and as far as i've been able to determine not a single circuit has followed it but i think our facts here are distinguishable from what it with the air or the if there was an error it would be harmless if the we've done our case and so i stone says that but i think that's why stone is distinguishable because here we have the government asking for an instruction knowing they will never argue with it we're engaging in and fortunately gamesmanship it seems to me where we're because this and this is the problem as i said earlier when you have the person who's at the top of an organization and the question is what does that person know and the jurors are being  something that's almost akin to criminal negligence there is the real danger that people are getting convicted under a theory for which there's no evidence yet he of there is a lot of evidence not about his impact but because i think this is the first time the court will have addressed the question under us think it's section to see one point one b three the four level enhanced meant for those bribed people who are either elected in a high level decision making position or who have a sensitive because now the bribe recipient here wasn't elected so the question is did he fall within the the language high level decision maker or sensitive position the application no on the other hand is broader than the guideline the application note says you don't have to be in a high level decision making position and you don't have to have a sensitive position as long as you have influence substantial influence over the decision making process wri substantial but the word substantial influence are not in the guidelines approved of by congress that's our point and ever since the stinson decision from the supreme court which said that while using commentary is perfectly appropriate it's inappropriate when the commentary is broader than or directly and con trast with the guideline language and make or credible argument that mr jackson did not have a substantial influence over the solution making process with regard to either i can't and i won't that's not our argument our argument is that using the language substantial influence violates the language of the guideline itself which requires a focus only on the decision making authority of the person that's why we quoted this court so while the lower court focused on the bribe recipient jackson's influence on the process our position is that such a focus does violence to the guidelines that's why we voted last summer the j s case as supplemental authority because that was yet one more decision that noted that when there's a conflict between the language of the guidelines and a broader application note within the commentary it is inappropriate to follow that broader language within the commentary and they therefore reversed the enhancement in that case because a district judge did what it seems like happened in this case and we think that's inappropriate i see that the court has no more questions i will reserve my time  may please the court magali on behalf of the united states substantial evidence supported the jury's verdict in this case that anthony le pore was guilty of actively participating in a six year long bribery scheme and if i could highlight an aspect of the record that judge wilson referred to just a moment ago and this is the part where cecil clarke point blank says that in two thousand and seven had an explicit conversation with anthony lapore these are the pages of the transcript where he says they're on a smoke break and mr le pore says quote basically the gist of it was patrick is suing us and if anything ever came up about the apartment or the money bribes that's the lawsuit would be good cover for us  unequivocal on that point later in the transcript mr clarke is asked so when you say cover you mean if someone accused the company of paying bribes they could say we are not bribing him we are even mr clarke says that would be a defense but when mr clarke is pressed on mr reporter's exact words with respect to cover he says he can't remember later there is another question about whether mr clarke remembers a phrase mr laporte used to describe the ongoing relationship  mr clarke cannot remember to ask to have his recollection refresh with contemporaneous notes he took on the day that mr the poor made these comments and after he sees those notes says yeah he could use that kind of word we are in bed with jackson so would you just look at that type of testimony in the record especially considering credibility choices in the light most favorable to the government were beyond mr lapore being aware of a bribery scheme associate in the apartment with bribes this testimony from mr clarke shows that he's now actively in the concealment phase what would we say when we get caught the records show that actually in march of two thousand and thirteen mr lapore did try and use mr jackson's lawsuit as cover in a meeting with the world congress center when there was a series of concerns about the contract in the relationship under mr jackson mr lapore says well mr jackson sued us and won this recursion makes an interesting argument he looks at our precedent and he says well there's no consistency when it comes to you know how we decide these appeals based on sufficiency of the evidence in these corruption cases why is this case different than united states versus wilner ok so we decided in two thousand and fifteen where we found that the evidence was not sufficient it's similar to this one what's your response to that going there are a number of significant differences the first and foremost before talking about what what wilner says is that this is not a circumstantial evidence case this is a direct evidence case and it's not a close question you have testimony like i just talked about with mr clarke directly having a conversation with mr le pore where mr le pore directly authorizes in apartment directs the chief financial officer to pay for an apartment for mr jackson and uses the phrase some people are corrupt where he's putting his arm around the public official saying take care of us will take care of you we'll never on the other hand  abu was not the c e o of the company was not the principal owner she was a doctor that was there for a seventeen month period and paid a salary of sixty six thousand dollars mr le pore on the other hand according to testimony from mr pendleton made two percent as a bonus of the revenue of operating units and the testimony in this case was that the dekalb county contract was the second largest contract that right way and the georgia world congress center contract was a significant source of revenue and by contrast this court put up emphasize that there was no evidence that dr abrogates anything from the conspiracy the court and willner also noted that the sole theory of liability with respect to the charges against dr albert was that she caused the alteration of patient files to make it look like patients were qualified this is a much different and much more straightforward scheme was to the poor paid authorized payment rather for a luxury apartment for a public official for six years in two thousand and six there's testimony he directly authorizes payment on this for this lease at the same time that they are bidding on a contract with the cap county there is evidence that in two thousand and seven when mr jackson when his apartment was foreclosed on mr lapore mr rife said to mr clark that he needed to sign the lease because that was mr the  direction there's testimony in the record that even after mr clark left the company and there is now a new georgia division manager brian dominick there's testimony that mr laporte mr rife directed mr dominick to continue renting this luxury apartment for mr jackson and so this case is materially different than any of the cases and so with respect to generally these cases in the sufficiency of the evidence you have cases in the white collar context of where you're trying to infer intent from circumstantial evidence so the brown case in an enron case where you're looking at a deal between merrill lynch and enron those are complex transactions this is a straight forward scheme that involves corruption paying mr jackson for beneficial treatment on a number of pending contracts now with respect to the sufficiency of the evidence i will note also that in the context of the long term scheme and whether mr lapore had any idea that the apartment would be used for a bribe mr jackson testified that mr clarke was intermediary he would talk to mr clarke and mr clark would transmit messages there's testimony from mr jackson where he said i wanted a hundred thousand dollars lump sum payment at first and mr clark came back and said i talked to look for i talked to arrive and we cannot do it this way which means by the time mr the poor is authorizing the apartment he knows that mr jackson has made a request for one hundred thousand dollars payment so when it comes to the sufficiency of the evidence again the government stands on its briefing notes that this was not a close case and there was a wealth of record evidence and testimony from insiders about th why was there a need for the ignorant so i'll say two things on with respect that first the evidence supported the instruction and i'll discuss the record but the notion that the government made the request knowing it would not rely on it is not true the government is not required to pursue all theories of liability in closing but in this particular case the evidence supported the instruction that mr laporte took affirmative steps to avoid knowing details  significant ways first mr clarke testified that they that mr arrive mr the poor and him adopted the rationale that it would be a corporate apartment and that mr clark would be the one that would have to sign the leases so is structured so that mr lapore didn't have to interact directly with mr clark he could avoid knowing details about prices the month the month transaction or you didn't make the you can make the argument to the jury why are  requests the instruction at the end of the case so obviously i mean if you request the instruction it's reasonable to assume that you're going to make the argument to the jury as to cure so if you can make that argument to the jury request at the instruction we are making the argument to the jury well your honor as i said a moment ago i think the government requested the instruction is a correct statement of law supported by the facts and it's similar to the defense's request for a good faith instruction there quested an instruction that an honestly held  belief is not fraud and that wasn't any argument the defendant made in closing the arguments in closing were just simply attacks on the credibility of all of the government's witnesses there was no suggestion that well he really just thought it was an apartment that they were paying for six years and he didn't know if there are any bribes attached because that that was not an argument that the defense lawyers chose to pursue but at least in terms of why the government requested the instruction it was accurate and it would not have been appropriate for mr the poor in his closing to argue well i just didn't know certain of the details because of the way the instruction the transaction was structured and that statement ended up being an accurate instruction on the law and the district court actually docket two fifty five also laid out the district court's belief that this was an appropriate struction and so there is you know given stone given the precedent this circuit to the extent that there is any error it is harmless i will also note that even with respect to stone as being somehow a controversial case i believe mr kish cites u s versus ybor for the notion that they reject stone that fourth circuit case notes that quote the split in authority over stone is more apparent than real and in the end the court goes on to say we therefore apply stone and hold that unsupported ostrich instruction is harmless error when the jury is instructed that a pre condition to its application is proof beyond a reasonable doubt of deliberate ignorance but the but the given this court's holdings in crabtree as well as stone  the evidence supported the instruction and in this case there was actual knowledge as well with respect to the mcdonnell official act issue again the government offices that this argument only applies to counts t through eleven in the indictment count one is a conspiracy count which was not at issue in mcdonald and counts twelve through sixteen are federal funds bribery charges there's no official act requirement here the jury was properly instructed on the definition of official acts and there were multiple formal exercises of government power by mr jackson everything from unilaterally making decisions to renew the contracts in between two thousand and eight through two thousand and eleven at the cabin georgia world congress center not formally writing up right way for any performance issues unilaterally making a request to put the contract out for bid at the georgia world congress center authority serving as the committee chair but he never had decision making authority and even though right he was always a recommender to i guess it depends what decision we're talking about i think the court is correct that unilaterally he could not award a contract without any other approval in place and so he i mean i think this is  strong as argument that based on the guidelines that was in effect at the time he may not have been this maker because they got it on was later amended or amended to authority but just as the word substantial influence isn't in the guideline the word final authority isn't in the guideline and what the district court in this case did didn't actually say it's because of just mr jackson's influence the district court said when you look at both positions he had the position he had the influence the exercise the deference he was afforded he was quote effectively the decision maker i mean if you take georgia world congress center for example they have their cleaning services in the house and mr jackson essentially is able to create an entire bidding process condition where he is the committee chair and there was testimony a lot of testimony the record that all of the decision makers were allied implicitly on mr jackson's recommendation so if you take even just if you just look up what the word decisionmaking means the black's law dictionary it defines it as the process or practice of making important choices or judgments especially after a period of discussion or thought that doesn't say anything about final authority the notion that we see the word decisionmaking in the guidelines in itself defining i don't see any support for that certainly no court in the country has held that by contrast there is authority applying this application of the guidelines of what high level decision making means in this particular conce context and to distinguish the us versus case where the court recently found that there were certain common application notes that were not binding this is a case where the guidelines just say this is what high level decision making means it's a definition it's not a special rule like there wasn't a hoss in tell us the guidelines said you get enhanced mean if there's ten or more victims and that was and there is a special rule that said it if there is an effect involving mail we're going to go ahead and assume that there is at least ten victims and the court said well here it's readily determined there are ten victims so that special rule contradicts the plain text here there's really no reason to believe there are any words in the guideline itself that country that are in contradiction unless you're taking the position which i suppose mr kish is but it's because he doesn't supply a definition of the term high level decision and just says well decision making means final authority watch and he  county and there were a number of decisions where he had essentially unilateral authority so in years where they could renew the contract there is there is conflicting testimony on the on his authority but mr jackson testifies point blank it was up to me whether to renew the contracts so the right way wins the bid in two thousand and six or end of two thousand sixty thousand and seven annually it comes up for certifications and these are final decisions that mr jackson can make and there's certainly record evidence that would support that inference and so again that standard of review i think we look at the authority mr jackson exercised and i think that's part of why the district court reached the conclusion at the sentencing phase that mr jackson was affectively the decision maker that in government you might have a lot of process and there might be a lot of people along the way but if you were to identify anyone at both the cab county in georgia world congress center would be mr jackson alone that was the decision i'm just curious how much time did mr jackson i'm sorry so much time that mr jackson how much fifty one months originally and then i believe he got a five k and received somewhere in the range of a six to eight month reduction i believe or thank you counsel  here from mister wilson mr jackson got sent thirty three months after he testified the government says that this was a straightforward scheme i would i do lots of these cases i don't see any documents any e mails any communications  involving the person who supposedly approving of this the government says this case is different than wilner that that was not a direct evidence case i beg to differ with my brother counsel i think that if you look at ted opinion it's clear there was all sorts of direct evidence against dr a breyer the government cites to the conversation about good cover i simply asked and again good lawyers can disagree about what's said but pages twelve sixty one clarke says i quote i don't know exactly if that was his horse direct quote it's been a long time right now i'm drawing a blank after being asked direct questions by the government the government says about one hundred thousand dollars lumps and a payment here's the way the testimony way jackson said clark said wright said lapore said we can't do it clark never said that he testified for the government got a reduction to thirty three months and didn't say that the government talks about with the deliberate ignorance instruction that somehow because the defense didn't argue good faith after requesting the instruction that therefore ameliorates any problem the government caused by requesting instruction that they would never argue i think we're reversing the burdens here and i think this is a very dangerous trend that's happening where we are throwing these confusing instructions at unsuspecting jurors in complex cases and hoping that they'll uncover the matter so i think the court understands my position finally  sentencing issue the government says that because there is no definition of decision making in the guideline itself therefore it's ok to use it  definition in the commentary that's broader than the guideline i think we have to go back to where we started the guidelines were enacted in eighty four but they didn't become effective until eighty seven we had all the litigation in the late eighty's and early ninety's about whether the why i use the analogy in my brief if simply having influence and access to the decision was enough this court's law clerks would have decision making but we all know they don't it's the final buck i would submit is the question that has to be determined on this record and i would submit that with all due respect to the government's position they didn't prove it and especially because the guideline is narrower than the amendment i believe the court understands arguments are going through mr curious yes sir thank counsel and the next case is worldy versus the cab county board of education