bet so judge it's a pleasure for me and judge marino on behalf of all of us in the federal judiciary especially here in and around the eleventh circuit to welcome you to the court thank you very i'm very pleased to be here judge newsome brings some pretty impressive credentials to the eleventh circuit having distinguished himself in the private practice of law with a very prominent law firm and his prior service as alabama solicitor general oh no i'm much more judge newsome can contribute on the other side of the bench she's argued thirty five appeals in the united states courts of appeals he's argued four cases in the united states supreme court and so we're really expecting judge newsom that kind of hit the ground running in fact he's only been a member of the court for what two weeks now and he's already prepared himself for thirteen arguments this week and i also think judge newsome it's altogether fitting and proper that your first setting your very first sitting as a united states circuit judge take place here in your home state of alabama thank you very much so real pleasure for us to welcome you to the court and i look forward to serving with you as a colleague for many years it's also a great pleasure to have judge marino back with us judge marino sits with us from time to time judge maria no hails from the southern district of florida where he previously served with great distinction as chief judge oh there are a lot of great things i can say about judge maria no polluting his selection by the judges of the eleventh circuit to serve as a member of the judicial conference of the united states the eleventh circuit  representative to the usual conference of the united states where he serves as a member of the executive committee but i would have to say his most marino we have three appeals that are scheduled for all arguments this morning and i see that counsel in the first appeal are ready to go this is united states of america versus jeffrey allen r c and mr matthews is here for judge welcome to the bench as well i have the pleasure of representing mr jeff nursy on appeal there's three arguments that have been made on the appeal of the initial one being that the trial court erred  granting in denying the motion to dismiss the indictment as the statute is unconstitutional in this case mr nursy was charged with a retaliation under the retaliation statute which was originally brought in under the sarbanes oxley act and this criminalized as a retaliation against a witness who has provided information to the government or to a law enforcement officer the information as to be truthful has to be related to a commission or possible commission of a violation of federal law the interference and the retaliation asked to have a harmful effect on that individual witness in that it has to include interference with their lawful employment and or livelihood can i ask you a question about this arrest about the language of the statute yes so as i read the language it says takes any action harmful  any person including interference with lawful employment or livelihood why is that both sides and i could ask the same question the government why is that the both sides of focused solely on the interference with lawful employment as i read the statute sort of the principle criterion is demotion he was not fired from his employment at the time that these flyers were posted or mailed but they were actually a trial there was no testimony of any harm in his life period much less his employment he didn't testify witness and they brought multiple we dislike his wife bought a gun your honor she didn't feel like he would be attacked or that something would happen well the wife your honor is not part of who the witness was that was the retaliated against and that's part of the argument also is the wife was brought into this case and she's certainly not part of the the parties in the case she was not a witness she did not provide previous information to he testified that yes or this caused strife within my marriage and because of this you know these are the ramifications from these actions you know i lost the relationship with my children and i had to switch churches my wife and i you know the strife it calls between us custody saying hey i did all these horrible things now so she has to reach that level you have to be fired for a mere job if your coworkers or your your superiors truly believe that he was a sexual child molester like the flyer suggested that suggest it said yes and then that would not be sufficient not you actually have to be fired from from their job you actually have to be divorced that's the harm the statute requires harm to the person including interferes with employment or livelihood and there was no testimony in this case that that harm occurred your honor it is kind of akin to a defamation lawsuit if nobody believes that you are there's no harm but isn't there some testimony i mean especially given the standard of review for some testimony that neighbors pulled away his wife i think did begin  to doubt him although she stayed with them or something like that i'm i'm just misremembering i don't recall any witness especially not the neighbors saying hey we didn't go to barbecues with them anymore we didn't hang out with them anymore it was it was we had a flyer quotation passing those neighbors quote withdrew from him a little bit and his coworkers were in shock passed and passed on his wife testified that receipt of the flyers caused her to have a quote hint of doubt about her husband about that i'm going to check if i think it's other witnesses because the questioning was very specific his trial counsel about it went through and i listed it in my briefs in a couple section what about your job did you get demoted what about your church were you taken away from helping with sunday school or or any of these other organizations and even the the other there was this testimony also from other employment companies not employment companies other companies near his employment and they said they got this far well did you think any less of it and not you know nobody there was no harm necessarily nobody believed it was obvious you know that this was somebody doing something harmful necessarily as far as a statement but the actual harm in mister darcy i'm sorry mr passages like there was no testimony of that they were trying to but there was just no harm actually committed to mr past the  sufficiency of the evidence is your strongest or is it the board for us your honor i would submit that probably the sufficiency of the evidence s the harm it is a little bit stronger the statute however and then when you go to the to the sufficiency of the evidence that's where the record is devoid of hormones and actual testimony from the witnesses that mr past know did suffer this way and then of course on the argument on the jury instruction it's speculative charge that was requested to be made that was not given by the court and of course the position is that the speculation in this case was that there was harm one what's the difference between a speculation instruction and a reasonable god instruction well you're on of the reasonable doubt instruction goes to if there is a doubt in mines and it covers whether there's sufficient evidence but the speculation is that you can't convict a person if you think hey this might have happened  to every single criminal case in other words if we were to require that seems like every trial lawyer can say in closing argument you cannot speculate you cannot gas it has to be proved beyond a reasonable doubt we would have to reverse every judge who gives the stand a reasonable doubt instruction oh well your honor i think it depends on how the evidence is portrayed at the trial and in this case mr nurseries arguments in his defense  being a correct statement of the law and in support of it i'm not aware of case law as we stand here today on that issue where it was not allowed or was allowed so i think of when ship is the sort of the quintessential celebration of the beyond a reasonable doubt standard and i mean do i have it right that it was the pattern instructions that were given here yes or it was that's conclusive but i mean is it is it going to be your position then that in any case to judge wilson's point that relies on circumstantial evidence that you or the word affair it's your honor and i actually mentioned in my arguments the definition from merriam webster's where i want to go online of course nobody pulls out the hardback books anymore well go online and look and  in this case the involvement in the actions and the concerns of other people the involvement basically mr pass no said look this happened and there was no injury to me there was no loss to me and that's what the statute requires and the interference in this case is difficult to ascertain because of that other than the flyers being posted or sent that's like other than that mrs lincoln how did you enjoy the fight i mean the flyers as judge maria know suggested earlier at least the one that i've seen in the record is pretty disturbing and harmful just by itself does it have to be successful it seems like you're arguing that the interference has to be successful in other words if you pass out these fliers and i'm too embarrassed to put on the record what they say and your wife gets it your coworkers get it why isn't that harm by itself even if eventually they believe real and they say well you know he's a good guy he can possibly be a child molester too that he does things right after church why said and it and if it was proven if the evidence was submitted i think it would fit on all corners in this case the judge when you're looking at what the statute says it says there has to be harm to the individual and it has to include including interference to the lawful employment or livelihood of any person comma for providing to law enforcement officer any truthful information relating to the commission or possible commission of a federal offense shall be fined under this  it fails to provide people with ordinary intelligence a reasonable opportunity to understand what conduct is prohibited of and that i think his argument on that this week then or we've said authorizes or encourages arbitrary and discriminatory enforcement is why didn't the statute authorize or encourage arbitrary and discriminatory force first within the statute its limits its limit itself to the person is subject to the statute lawfully is a finite class of individuals and of those individuals who have provided occasions prior or in the course of and provided information to law enforcement officers in the pursuit of their their duties so first we have a finite class of persons that could be touched by the statute within its meanings secondly we have the term and i'm assuming without asking that the court's concerned about the term harmful interference well in many matters of of criminal law a great degree of these many of these situations are left to the sound expression of the first federal prosecutors to determine whether or not this particular action was in fact harmful or could be harmful by its nature that's a matter within our discretion secondly whether or not it interfered that too is a matter within our discretion and that discretion of course is subject to being checked every step of the way let me pose a enforcement officers the case this is a pretty broad statute very broad an all encompassing statute and the sort of law enforcement a lot of discretion with regard to whether or not they're going to charge  stating earlier yes they do have discretion they have discretion in their everyday affairs they have discretion as to whether or not to pull over a car that in essence is going to miles over the speed limit but within their discretion they decide not to do so i do not disagree with your honor what i would like to stay having those is i'm setting earlier discretion this question is to whether or not to bring criminal charges whether or not to proceed with criminal charges the discretion as to whether or not the know so that means a lot of defendants well go back to the prison or even in the neighborhood and say the judge has indicated he's a lying snitch let's keep the pedophile thing out a lying snit i'm sure that happens all the time would you concede i would concede that your are you asking would something like that be sufficient to charge under this statute that  mr matthews the court reacquired about harm that would be easily ascertainable harm no question about it we have pictures we have medical records we have all kinds of items of evidence that we can bring forward to a jury what if we weren't beat up but he's afraid of being beat up because in prison that happens is that enough that may in fact come down to that discretion they were afforded all along the way from the law enforcement officer to the product to the correctional officer to the warden to the to the united states assistant united states attorney or the united states attorney's office who would prosecute that matter in the event it were came out of a federal prison through the trial court of public to this court and perhaps beyond discretion runs throughout our system so let me ask you let me ask you  so really i wasn't asking just mr matthews i'm curious because your brief is well really focuses not on the term harm in the abstract but instead on the interference with lawful employment as an aspect of harm was that a charging decision is that the way the indictment reads is this is this an interference case or a harmony abstract case the other day and i meant it was charged that he had  it he attempted to interfere with employment in the economic livelihood however that as the matter unfolded in front of the jury you couldn't say you could infer from the way the case played out that in fact the harm being vindicated or attempting to be vindicated by the prosecution mr nursy was more of the emotional relationship those things isn't is a very broad word was either one of them is mr past some of the one who said that the neighbors with through a little bit at first was he the one who said that and were in shock or who else at that had that that was mrs pass no your honor she said she started doubting because her husband was being accused of being a child molester and a homo sasha's she started doubting that yes that be sufficient harm if it f x your relationship was which is the most intimate of our personal relationships that with our spouse yes that would be harm and this true there's a very not sure of the court's marital makeup i could speak of my own and that is things that affect me things that affect my reputation things that affect my sense of well being my sense of self directly affect my wife and he also said that his employ depended on trying to his professional success depended on referrals from other medical professionals and i meant painting a good reputation and it could mean that's correct and again i think  an ear nose and throat specialist so we see that how this all works together all here is treated children as well as adult mr passin of wants a determination so really what's a determination was made by d love that this child or adult made fact need some apparatus to aid them in their hearing they would go from doctor love to mr passenger who would help them select and fit their appropriate hearing device to i've had about three different thoughts merging so bear with me if you would first this be clear about one thing in fairness to the defendant the flyers in themselves were not posted at all ears he setter and i see that judge into the record if he could if the other members of the court would like it read into the record i would him i would not say more than happy to but i would be more then accommodating to the court's request it's graphic it's vile it's reprehensible it's just those are the words to describe it so those flowers are sent to i'm sorry so i thought in response to a question that judge wilson asked you answered and i was surprised by your answer you said that this really fundamentally it's not about his reputation i thought that your case really sort of rides on over a petition i didn't mean to imply that his rabbit his reputation is it is an issue here that was harm caused now we don't have so they got to witness it yeah two to sort this out as well and i want the court absolutely clear there were two in fact two flyers were all aware that one flour was sent to the neighboring businesses of all fears here being ce vile reprehensible to individuals with so much detail mentioning same beads catholic church what they do when they call out of church that that detail of it may be sufficient harm as opposed to a general statement he's a lying that but let me say in a real world situation yes your honor i know as a federal prosecutor i would look at that skase that the lying snitch with a much more jaundiced eye than i would the case here there's no question to me that i'm just one of many persons lawyers federal prosecutors but there's no question to me that the and credibly i such continues by saying this is your sexual child molester neighbor it's my understanding that those are the ones that were placed near the business near the business and of course it contains the business is logo rebuttal i think everybody reads this case and looks at the facts and cringes there's no doubt about that point about the criminal justice act represent mr nursery here today and  look at and i go wow but then you look at the facts that were submitted in this case and the ones that the jury heard and the trial judge heard and that we're here talking about today and all of us ago something's wrong here this gal to be guilty of something because that's just war is this statutes of stash of this federal statute substantially different from the alabama statute yes or would you concede that under the alabama statue that that is certain enough it's not vague and that the evidence would be sufficient for that your honor in the in the harassment charge there's a rason communications provision and if this statement was made and the witness testified hey  intent was to annoy or alarm or rast me and if you were going to say that the intent here was to annoy and harass would you yes or so if we had a federal statute like the alabama statute you argument for that's what i've been told and certainly i would submit also that the application of this statute could also apply and example was given the motion to dismiss if oh if a husband or wife provide information and later they get divorced and then the wife comes back and says the husband is harassing me now in the divorce if the husband provided information to an officer about some actions the wife had done that it would be a in that case it was chosen to be picked up prosecutors is just concerning that the discretion in this case i have no doubt the agents looked at it and said we've got do something in this case the information that was submitted in the prior case was not of a federal offense even mr passing a test or provided information to the officers that well there was a blue cross blue shield logo on this fire that is gentleman and hunts was doing and i didn't think it was right side i want to be involved in it he was fired for how he voiced his opinion from the company by the owner of the company not my client and then these statements get made or posted and sent out and now it's that mr nursy is done it in retaliation for that well there has to be truthful information provided mr bassett regarding about lation of a federal offense and then asked to have a court harm for interference in his livelihood or employment and in this case i feel like one that the statute is a political will to everybody in some context it seems like in argument and in the harm itself because of it and the reason i guess both myself and the government relied on this is because that it was a glaring void in my opinion in the in the statements i do personal injury work as well as as criminal defense for the criminal justice panel and if i've got a client who comes in after car wreck says yeah i'm a back and neck work i said really how bad where they are because i want  course in personal injury cases and then they get in testimony in a deposition they go how's your neck and back great i can't come back and fix that their testimony is what the case is based on and mr paston is case that's what this case is based on is his testimony if his wife felt concern that would be a rassmann charge under alabama law she's not a former witness and if to a federal officer about about allegations so i don't think any other witnesses testimony can bear on whether there was either harm or interference in his lawful employment i think it would have to be i think it would have to corroborate mr pass knows testimony in my opinion because he is the witness that is being retaliated against under the statute and he is the one that has to suffer harm if his relationship with his wife if strife was called by these statements he didn't testify if it was if his reputation damaged and he lost referrals there was no testimony of that as a matter of fact and the folks in his office testified know his he's held in the same but if he says you know i felt bad i just had  questions weren't asked and it wasn't listed maybe it's because he's a male and his males we don't like to say we hurt and things bother us and you know we like to be manly men and we are we're not our best stuff like that but the reality is the charge is that has to be part and there was just a lack of that in this case mr matthews and mr neely we have your arguments thank you very much and mr matthews i see that you were appointed by the court for sort of the criminal justice act and we appreciate your