six the government proceeded on a theory at trial that mr robey lease excepted campaign contributions with the intent to be influenced with respect to the business of southgate following the supreme court's opinion  penalties i suppose in with respect to campaign finance contributions and that was the basis of the district court's distinguishing mccutcheon but the principles that are set out in mccutcheon are broad constitutional principles contribution setting and going back to the question about this mccutcheon was different setting then you know a criminal case again the constitutional principles there the first amendment principles at issue in the concerns about chilling are really at their height in the criminal context because when people are faced with potential criminal sanctions they're of course more likely to curtail their protected first amendment speech than they are when they're face which is civil penalties and that's recognized by a number of cases that are cited in the opening brief not just citizens united in the supreme court's mcconnell case from two thousand and thirteen but more general cases of houston vs hill and winners versus new york and the government itself and the subsequent two thousand and sixteen mcdonnell case acknowledge that the that's the key to distinguishing between lawful campaign contributions and i'm authorized a donor who gives money in the hope of unspecified future systems does not agree to exchange payments for actions and no bribes us occurs if the elected official later does something that benefits the donor and not only of the discussions discussing the impact of mccutcheon they're quoting from criminal case law they then go on subsequently in the breach to say in a corruption case involving campaign contributions the instruction should carefully focus a jury's attention on the difference between lawful political contributions and unlawful extortion it payments and bribes to ensure that the jury does not infer a quid pro quo merely because an elected official took actions favorable to a contributor  argument regarding quid pro quo that depends on the introduction of the computer evidence right no it does not the the there are there are five bribery counts here i soon your honor is asking if it depends on the introduction of the new evidence with respect to new computer evidence right and it does not i'm not relying on the new evidence at all with respect to for the five counts that is the scout that didn't deal with computers the district court acknowledged that the evidence was was that the jury could only have found that those  campaign contributions the district court found with respect to the computer count that the evidence was equivocal but that the jury could infer that it was a gift rather than a campaign contribution but of course the jury also have inferred in the evidence more strongly supported that was a campaign contribution given that all these other things were given i can't think of you sions and also giving that under california law the presumption is when a politician receives something in that context it is presumed to be a campaign that it didn't instruct the jury with respect to the state law presumption in that regard but nonetheless the presumption under state law and the evidence certainly admitted to a finding and probably the stronger finding was it was a campaign contribution and what mccormack makes clear is that the jury could have found it was a campaign contribution then they need to be advised with respect to quid pro quo because in mccormick there is actually strong evidence that these were gifts things of other gifts not campaign contributions but the supreme court said well but there was also evidence they were campaign contributions so that's why the jury need to be carefully instructed with respect to the quid pro quo and needed to make a finding in that regard so the new evidence is irrelevant to the argument here in the district court as much as recognize that and dealt with the purely legal was at the interests of justice based on this new case not that you're relying on how do we get to the issues that you're raising well i think the easiest in the primary way to get there would be to rely on this court's holding and then i'll stein and what it th appellant raises an issue of sufficiency and initial appeal it's unsuccessful but the cases remain ended for another purpose in that case amalie and remain and and then comes back on appeal again and if when that second appeal is pending new supreme court case comes out that throws the sufficiency of the evidence of the convictions into question it is permissible then to raise that issue at that time and this is exactly exactly what mr robles is doing here in that case it was the impact of the supreme court santos case in this case it's the impact of the supreme court's mccutcheon case the only difference is this to roadways did it one step further he did it or one step or earlier he raised in the district court which was really the appropriate thing to do rather than just wait and under van elst and raise it for the first time in this court furthermore the district court has authority to reconsider a prior motion prior motion for new trial or any prior prior motion based on intervening supreme court case law and the district court specifically found that it had that authority with respect to mccutcheon issue and i think that's  the jury verdict that if there's a new supreme court case you can go back and ask the trial court to open it up again twenty years thirty years doesn't matter well i think it twenty or thirty years it would be unlikely that the case would be coming back on a direct appeal so i think you'd have to be raising it on a twenty two fifty five and therefore you'd have to be getting into whether or not the twenty to fifty five new case law retroactivity those sort of things play but in the direct this presumably and so far that you've already served his term though has knees out of jail yes but he is unsupervised release so he may end up not being able to raise it and of course i think it's squarely presented to the court it's a legal issue and trial a motion for a new trial that was raised more than eight years after the expiration of the limitations period for the filing of a motion for a new trial based on really discovered evidence under those facts in the district court the court properly found that the motion for a new trial was untimely in addition to the fact that the motion for a new trial with untimely  was unable to make the showing so necessary to succeed on a motion for new trial first of all defendant was in fact relying on newly discovered evidence for what he characterized as newly discovered evidence in the form of a computer and computer software which the defendant claimed had been used for purely political purposes and therefore was a campaign contribution defendant argued that he didn't have that computer doing the time of the trial and that it was unavailable to him and therefore it was newly discovered it was a part of his argument at trial that was it not he referenced the computer and news into existence he did it and it was charged any one of the reasons  was not newly discovered evidence is because he was aware of it at trial and the arguments that he makes or that he made in his most new trial eight years later or more than eight years later or after the expiration of the limitations period  was that it had been used for political purposes he could have presented evidence of that in his initial trial but he chose not to and one of the reasons it's clear that he chose not to was because that wasn't a theory of his defense  original trial so first of all he couldn't show that it was newly discovered evidence but in addition to the fact that he couldn't show and his just court found that it wasn't newly discovered evidence he couldn't show that even if it was only discovered that he had exercise due diligence in attempting to find it and make it available in the district court the defendant presented two declarations one his own and one of someone who was identified as his girlfriend and in neither of those declarations the defense present any evidence as to what efforts had been made to locate the computer at the time of the trial absolutely your your opponent indicated that four out of five if i recall correctly of the charges did not deal with matters related to the computer we were you responded that is he correct what you're talking about from your perspective while there are there were some other items for the payment of some campaign fliers i think the payment of a telephone system a number of other things that were actually identified in the indictment  some of them asked campaign contributions so there wasn't any dispute as to what those items were whether that they may or may not have been the only issue is the newly discovered evidence because that was the defendant's avenue for getting back into court and challenging his convictions but he could he could have said everything that ultimately turned out to be on the computer at the trial even though the computer was not available he certainly could have made it presented some evidence as to how it had been used and what was on that computer that's correct your honor he certainly knew if in fact it had been used for political purposes then you would necessarily need to have that computer there in order to present evidence as to how it was  discovered evidence as the district court pointed out in order to make the newly discovered evidence relevant he needed in the intervening intervening change in the law so that's how those two things mesh but also as the district court pointed out  which is the primary case that he relies on doesn't really introduce any new principles of law in fact as the district court pointed out the theory that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption that could justify limits on political expenditures is limited to quid pro quo corruption was indorsed by the supreme court in citizens united so the principle that he's relying on was around even at the time of ron i guess the other reason the government would say that there is no need for a real examination of to read oh based on mccutcheon and the other cases that have been cited by the defense is that they're not irreconcilable  regulating the political process and for the most part they do about placing limitations on the amounts that don't escape contribute to political campaigns six six six on the other hand is clearly a federal corruption statute that's what it is and what it does is essentially it fills a gap between section two zero one which a plastic federal actors and thirteen forty six was which is the honest services statute which can apply to state all federal actors but only when there is a mailing wiring six six six allows for the prosecution for corruption of state actors with federal funds are involved with six six six involved in governor mcdon prosecution absolutely not your honor which is why again mcdonnell has absolutely no applicability to what we're discussing here and i would also want to just say that independent opened by suggesting intending to be influenced in connection with a contract a specific contract having a value of in excess of five thousand dollars this is the wage contractor that's correct on in fact the forty eight million dollar contract and also you're out of what we're looking at is not any restrictions on anyone's ability to fund a campaign or to make campaign expenditures in fact under six six six it doesn't matter whether someone or the defendant accept five thousand dollars five dollars or five million dollars there are no limits under sixty six what it does prohibit though is the defendant accepting that money in connection with a specific transaction having a value of more than five thousand dollars and it prohibits his doing so corruptly and so there are safeguards in the statute itself which protect against the against the kinds of concerns that are raised in the campaign finance context there's no exact quid pro quo required under six sixes because there that is correct really requires that except the money intending to be in influence but it does have this language that specifically says in connection with it and then from there you have a specific contract or transaction or series of contracts or transaction so it's very similar to a quid pro quo but there's no quid pro quo language in six six six so the government's view is under the circumstances one the defendant as a matter of of the law and procedure is here in the appeal of a motion for a new trial that was untimely the district court probably found that it was untimely it's still untimely and even if we were to look at this case on the merits there is no intervening case law that changes the law of under six six six and the law that the defendant relies on to some extent was very much available  at that time just based on citizens united and some of the other cases before it could and the law is an irreconcilable we appreciate your argument do either my colleagues have any other questions you know ok thank you very much counsel thank you you have a little bit of rebuttal time counsel thank you first i'd point out that mr cliff stuff who supposedly made the bribes who made the campaign contributions testified and he indicated that there was no agreement at the time he made the contributions there was no discussion even of the wa contracts and that cited in the brief in the fifty six fifty eight sixty five to sixty six seventy two to seventy three seventy sixty seventy seven ninety one in ninety four secondly the argument here is that mccutcheon undermines greedo a great oak was issued in april two be completely destroyed basically and i think that it is the broader holding in a caution and what the government argued in mcdonnell and i recognize me got mcdonnell is dealing with this different statute but what the government recognized and they got mcdonnell's the abio which is obvious which is the supreme court principles about chilling protected speech and making a contribution to a local politician is protected just the same as making a lot contribution to federal politician that the chilling concerns mean that there has to be a quid pro quo showing rather than just some general influence there because in the reality in public financing of campaigns people make contributions to politicians and like it or not politicians are more responsive to the people who support that's not just very quickly because i know you're out of time but your way out of and the supreme and the district court even acknowledge it to seventy to seventy five in its order that you you know that's that's an independent thing it kind of blended the two together but the intervening case was an independent thing and that's all relying on we're not relying on the new evidence at all but