issues some of them had some issues but the essential basic fact patents for each is a conflict of interest regarding mr stewart's attorneys before and during his grand jury testimony and and actually after two of another issue the construct of a minute or perhaps a variance and confusing jury instruction and also a statute of limitations issue i'll start unless someone has questions i'll start my argument but the constructive and women are argument there was the indictment alleged name six people in terms of who's hon person one trustee or one route and even when you took the prosecutor's argument into context one transaction the indictment alleged millions of dollars of investments and huge kickbacks hundreds of thousands of dollars of bribes or kickbacks but some some of the evidence at trial involved trustees who only maybe took a few hundred bucks here or there at least with some of their transactions and given the instruction that was given to the jury the jury could a convicted and a conspiracy with the object this small were the indictment was this big and also it could have convicted and that's even if the instruction had limited yes yes that was constructive niman i'd i contend it is a constructive amendment although some of the case on the six circuit and other circuits it's kind of murky as far as what the differences between constructive amendment variance but it's constructive amendment in this case based on the jury instructions the evidence at trial and adding to that was the prosecutor's argument that your instructions were inconsistent with the indictment yes it is a theory and you know if you're prepared for a case this big or with these many allegations and they come back at the end of the case and they say you can convict on one transaction based on one person i mean some that some people were taking smaller to alleged bribes maybe a thousand dollars or something whereas if you take people like their miller and i hate to smudge my code of silence then beazley sometimes we're asking for hundreds of thousands of dollars so the construct of a memo even if they believed that beazley or stewart did not agree that they take money and sell their vote and stewart didn't testify he never sold his vote every investment he just decided involved due diligence to due diligence people said it was ok except that there was there was one the prosecutor pointed out in her brief were the due diligence people question the fee that he agreed to but they didn't question the wisdom of the investment itself so they could have believed stewart and said the jury couldn't believe stewart said ok we don't think he did anything wrong but he might have agreed to out someone else can take a few hundred bucks and sell their boat i mean it's there are so many different transactions involved go but there was i don't think they got into i understand that i'm just trying to figure out why how the district court responded to this are you i don't think suitable lengthy response i'm wondering what that was i don't think i don't i don't think and in her opinion i get back to the lengthy response i'm not sure what you're referring to her opinion or the opinion and ordered denying that rule twenty nine motion for acquittal didn't address this issue or she should she dressed part of it but she never got an artist she dressed in which parks you know she never got into i don't believe it's been a little bit since i've looked at that opinion but i don't believe she looked at the part were claiming they could have convicted on the on the services of some person or persons other than those six people like a conspiracy for instance to the dancer misses of the lobby for instance in a transaction with a guy named seraph where she specifically asked for three thousand dollars to sell her vote well in that the nature of a conspiracy is your talk that one overall scheme one overall conspiracy yeah the nature of conspiracy is that a sordid people some of them may be mentioned in the indictment and some of them are not wander in and out i mean if it's a big conspiracy that happens all the time that what's so strange about this case that somehow that would amount to a constructive a they they drafted it gave it to the grand jury and that's that's what they got they didn't say on the services lobbying was part of the agreement even though the lobby could have agreed that these other people's person is not within those six people yes by the court below we're not bound by that all but it goes on at length and says you know it's not uncommon for facts that are tangentially related to the guilt to come in during the course of trial that's true but if the instruction would have limited even though but this so then we go to the instruction ye when they speak about the six people talk about the substantive offense instructed in relation to a plan or course of conduct i know six people related to the substances of the offense a plan can involve one person and not an agreement at all there's an objection in the lower court on that and i see the a conspiracy i have a question that requires a yes or no answer and now lower ok is six in three thirteen forty  conviction based on the indictment the fact that it was defective duplicious the jury instructions did not cure that error there was a motion for bill of particulars filed in the district court the district judge basically promised that there would be a special verdict and jury instructions would take care of the matter those were never done the court has an opportunity to look at this on a plane or basis because trial counsel did not object to the instructions below as far as the actual birthday party that was the subject of this room the athenaeum hotel in detroit mr buzi was walked over by someone and came into a room in there was fifty or sixty people there who some of whom he recognised he was not a native detroiter but came from chicago to be the treasurer of the city detroit  who contributed anything to the birthday party he didn't ask about it he was given a m bloke with one thousand dollars in cash in a burst a card which was unsigned obviously from the point of view of the individual testified none of them indicated that they gave the birthday gift with the thought of receiving a voter any favor from mr buzi in regard to his official position as either treasurer of the city detroit or of the pension boards and from mr beazley perspective he did not know who gave him cash he didn't have any idea who contributed to the birthday party and therefore could not possibly have made an agreement to favor any of those individuals with selling his office or selling his vote  that there was insufficient evidence on that particular count the jury instructions were not specific to the victims of the extortion were never named it was never presented the jury that the people who testified rexy the victims that only said  that the indictment so that there were persons doing business with the retirement systems which would suggest the people who testified who gave birthday gifts who denied that it was for any kind of favor were the victims  a group of people who do business with you know that's outside of social gifts trenor i don't think it is i example was bribe your theory would have said even that bribe didn't count because he didn't know about it ahead of time no you're right because the people who paid the money were paying for specific influence as opposed to general influence but you know i think this is a it's a very it's it's on the cutting edge of the work with the mcdonald case which was decided after i filed my principal brief mcdonnell case it cited in my reply brief and it says that the scope of these statutes has to be limited by instructions otherwise innocent conduct such as throwing a birthday party i'm sorry  every public official who when into a birthday party of this type innocent would be horrified at receiving nine thousand dollars and would that every means possible to have it returned and to make absolutely clear that that public official was not taking money from people who had business before i mean any capacity godless we don't even know who the who the people at the party were some of them he identified identified as doing business with the boards the rifty the sixty people there we don't know that there are just other individuals who contributed to the birthday party involved his lifelong friend mark under cunningham this one was mr cunningham and mr beazley had a relationship going back to the early days of high school in which they exchanged money between each other at one point in time  gave him a car in college when he was down on his times they they did these things on a regular basis it wasn't unusual for beazley to contribute money to cutting him and likewise cutting him to do the same for b cutting him acted as an agent for his uncle before one of the pension boards and obtained a contract for the sin come deal that went before the board no reasonable juror could believe kind of argument you're making right now of project but on cross examination denied that it was any a payment for anything that was done by were convinced by your argument that's not enough you've got to say no reasonable person would and there is plenty of evidence that this money from these four witnesses testified that this money was given in the expectation of official action from mr beazley similarly with his good friend mr cunningham there's no doubt that he did talk out of both sides of his mouth at times during his testimony but here the twelve jurors that this court gives deference to on credibility determinations credited his testimony that he was extorted even by his good friend and there's plenty of evidence to support that count as well i'd like to turn to construct an amendment argument which is a little hard to follow and i think that's because this judge rogers was kind of asking what was really decided by the district court and if i could turn the court attention to a specific page in the record which is seventy four seventy nine then you'll see from her order that the district court is addressing the argument that the indictment required an agreement as to all six of the trustees listed in the indictment and on but in any event if we look at the new kind of construct of them an argument that's been raised it would still fail under any standard of review because here mr stewart have would have to show both a problem with the jury instructions and  and i sent it but if you look at the jury instructions you're not going to find a problem with them in terms of the district court repeatedly advising the jury that the conspiracy count is about a conspiracy to deprive the pensioners of the honest  that were listed in the indictments of the jury instructions very faithfully track the indictment here and the government's brief cites the pages there sixty seven twenty four and sixty seven thirty one that's where you'll see these the list of six coming up over and over again as the district court instructs the jury and you know this isn't some points within those instructions where they're just sort of referred to as a group i think that's right i think there's one point where right after and i think this is kind of laid out in our brief right after doing a list of six she doesn't repeat all six names again she says why not one of these trustees or one of the trustees and sure if you take that in isolation that could look like maybe a constructive amendment but you certainly couldn't find that if you take it in  context one thing that is it may be very clear from the briefs and maybe because it wasn't very clear that that was one of the arguments it's kind of being made here i heard my colleagues say that look at the there's a smaller amount of the conspiracy really proved here and so constructive amendment and just to be very clear even if it's not clear in the briefs it is true that a narrowing of proofs cannot be a constructive amendment right in order to be constructive in that you have to have a broadening of proofs from the jury instructions on the just want to be very clear about that and there's a supreme court case some point called miller but i don't think that's clear in the briefing because it wasn't clear that was an argument that was being raised so if we move from the constructive amendment argument to the prejudicial variance argument  where he wouldn't have to show me necessarily jury instruction all arabic but he'd be relying on the proofs presented he doesn't prevail there either because the proofs presented did not materially vary from the indictment and he puts a lot of emphasis or weight on trustee to lobby that she came up during trial she came up to answer to drugs question and george best's george best testimony and george sans testimony but she came up because she was the one presiding over that kind of pretty astonishing g m vote right which she demonstrated just beasley's power his corrupt power over the board his ability to get her to change your vote from the second worst scenario to the absolutely worst case scenario and so that's how she came up and their testimony she also comes up because she has her chief of staff sent a bribers to do list email but as my colleague acknowledges some pages twenty five and twenty six of a basis to convict she's not used that way in closing and so here he can't even show the material variance he would need to show even if he could have shown a variance he certainly can't show prejudice and here we're kind of back to where we started on the constructive amendment argument that was offered to the district court based on this misunderstanding of how the government can charge even now i want to appeal if you look at his brief in seventy eight seventy nine where he kind of tries to make a prejudiced argument he says that he was precious because he wasn't able to use his planned defense which is rendered useless because he wasn't able to say that he had a limited involvement in a conspiracy because the government was allowed to prove maybe only one of the six trustees right was depriving the pensioners of their on the services so here there's a there's a bunch of misunderstandings first that being the ability to charge the conjunctive improving the destructive but also what judge given this point out which is that a conspirator doesn't have to know every single aspect of the conspiracy so when he says in his brief well i was going to say that i had no involvement with the vast majority of the transactions on page seventy eight that's really a concession to being involved in the conspiracy and just saying well i was involved in every single part of  it i don't know if there are any other questions on that issue i'd like to maybe touch on the closing argument issue the clerk would allow that this is a claim that's reviewed for abuse of discretion here the district court denied a motion for a new trial  and record it before seventy eight i just i really want to address something that came up in the reply where the prosecutors use of the ninety seven million dollars loss amount was characterized as dishonest  and i want to address that because it wasn't it was proven and the government's brief points out of page sixty seven where pointing to parts of the records that shows at least one hundred eighty million dollars of loss shown and if we actually even look at just the sleaze trial testimony he acknowledges and admits that there is at least over ninety million dollars of loss of this is not a disk honest claim or statement made in closing i think what we really disagree about is what it means like what it means that there was this kind of loss and right right that's what i mean deals that were not in bad deals yeah right but that's precisely right or that is evidence that these are losers would make all the deals that people who aren't getting on services would think that logan there was mention of well they're now stalking about quote now the other names were put in the indictment and you can't have a conspiracy where that's there on a services are part of the agreement that's got to quickly say also the substantial difference on them that can do to conspiracy is we clearly presented that page a seventy one to seventy six of our opening brief and they did not address it they you know i put my reply they way that argument they also did not address the supervisory authority argument in terms of the conflicts of interest i didn't address it up which involved a gotcha moment one brief point about the ninety seven million dollars that was in the context of our argument that the government attempted to utilize a civic duty on behalf of the jury to convict and there were absolutely no proofs at trial that indicated any of the pensioners lost any any money any pension payments during the course of the trial but yet the government took them took the position there and argued to the jury that it was the clerks the firefighters who lost their life in the course of their responsibilities that were being a denied their pensions and that was the entire theme an implication of the closing argument of appealing to the sympathy of the jurors to convict evidence whatsoever there and that was pensioners actually got was actually determined we know that the process of the detroit bankruptcy but so this is what about what the fund lost that think not what the consider the case carefully mr various we see that you are appointed under the criminal justice act to represent mr b and we are i mean we're always grateful to folks who take appointments but