arse timothy lyon on behalf of the appellate patent and with the court's permission i'd like to reserve three minutes for rebuttal granted thank you there are as the court is where this case raises a number of issues on appeal and i want to move first towards me let's start with the mcdonnell issue if we could because i'd like to help me with how mcdonnell helps you hear how how it applies to the facts of this case and also to enquire just whether you were in  connection with your sufficiency argument during connection with your argument relative to jury instructions were in some other way to get out your mcdonnell was that he had some point agreed to accept something of value and exchange for some specific act that he was going to pose for in the bushes or a specific official i thank you in this instance the charging document the even given the record in this case those contracts would be future contracts right you are that wasn't i don't believe established a trial the only real contracting issues that came up  including the roof including the demolition service the steeler tickets and they believe that they needed to provide that but there wasn't any discussion about anything really about ongoing future contracts sure it was there were witnesses  testified about the concern that they would not get future your suggestion repeated show that i believe that's what they testified to prepare but there wasn't any evidence you also so early and it may just be one of these issues where i read mcdonnell was requiring something more definite like a contract for the building of this particular but that's but that's wrong i mean first of all you correctly were at least future contracts of this nature for sufficiently specific if that's the concern of these contractors continuing business mcdonald talks about an official rock being something akin to a lawsuit or a hearing before a committee or the ministry of agency or jr a is a determination between or in front of the testified mr repack was responsible for working out the hard work orders which were citing work under the particular contracts and it's possible that the jury would have thought that those were the official to clarify matters specifically if you would aside from the failure evidence issue what is neat evidence here that came into the record that you believe it was improperly of what the government in fact infect the the district court did not even cite to this court's most recent precedents in golden proof would be called on brown and went on to describe the approach shed any real light on what was going on and i think it raises the same question that was involved in this case it's not disputed that mr reback off the roof it wasn't the spirit he got the tickets or the tent or the hog the question is what was his knowledge what was his a background in understanding of right he then has understood what his intentions were when he lived with them on the roof and it's other right the jury would have no reason to kind of understand all of that if you say that that was a helpful purpose relevant to the transactions that are all in here as you're sure it's question suggested why wouldn't this be relevant to showing the intent of the vendors and how they think that even those those considerations just tend to run afoul of the idea that we can't have a link in the chain that's not a propensity purpose would your  provided sufficient connections between the prior acts and what was going on at the time there and what was going on under the offenses that were alleged the indictment i think that would be sufficient but the problem is they haven't done that they didn't do that it with the knowledge that he's going to do a specific official act or that he's intending to be influenced or rewarded in connection with some sort of business activity and the matter was never shown even in the  ed but there was no witness who said that they had a romantic or a physical relationship she didn't testify that other than this welter and history gonzalo in this case it is and they were perfectly legitimate reasons were a principle that prosecutors are to attempt to inflame the jury's passion and or have them take a defendant as a result of something that isn't crucial or focused in the  to take anything from that after knowledge that the the judge said that but i also think that counts that mr repacked was acquitted of involve the stewart tickets and the vendor a contractor in that instance was very clear  different person and great with risp a different good different perspective on things and i think the jury could have just said look this there was nothing shady go on there but if we think something might be going on here you know we have now two versions of testimony to consider browns understood that putting aside whether or not the the person who crossed the line in the reference to the affair infidelity you really think that that that when you've got the fair evidence and then you have the what i have is my second misconduct inclosing issue where the government says hey this witness was going to testify for us and he has the nerve to get up there and tell official act there is never dispute about whether a contact as the civic contract to be and then entered into the issue was mr repack state of mind can we prove intent and an agreement so these issues going to even in play so h act i think the indictment makes clear that we're talking about contracts with jr a construction contracts with the j r way if you look at mcdonald the supreme court said the kind of too broad of  they found at least three questions or matters and i want me through them all but one was rather researchers at any state universities would initiate a study of the drug issue and it's our position that the  days to these things happen and there's more than ample evidence that those things did acquire each vendor testified about the amount of money they made each year from the j r a there was no indication that their work ever stopped in fact they talked about you know currently what their the my only response to be is that i can think of at this point without actually knowing the answer is that you know we try to limit our indictments and not to pile on opinion do you really think that your office set out specific reasons for admissibility wonderful word for be there consistent with what we have strived to say in caldwell and brown in recent years i believe we try to do our best ron and i believe in this case we did set out a sufficient amount on the record in our motion for the court to find i don't and you and i you know i really and but let me ask you this you think through do you think the district court in reasoned fashion whatever you think about the government's motion do you think the district repacks mind his state of mind and to shelve state of mind often the only thing we are left with is conduct and we we try to induce conduct to allow the jury to draw inferences from that conduct and in this case we wanted to introduce smith's question i thought that he wanted me to explain as if you were the district yes i did rely on what the you would say well i'm effectively asking you to do what i do think the trial attorney explained when she talked about course of conduct in her pleading specifically at pages one twenty one twenty five and one twenty six the record and then the district court took that information and also realize that he did not cite the cases that are the most recent on these topics the government's credit you did your motion that's crap in the papers and you know we can always eat better proponents there's no doubt about it and we are striving to become better proponents of work for  but district court then we have no control over what they have sat and in fact i think when the davis decision judge smith he pointed out that in that case the a u s a did say could we have more on the record and it didn't get us very far  with all due respect your either is there is tension between two things that all rely on one is that a lot of the words in the concepts or the relevancy end of balancing tend to overlap and there's that it's very very difficult i  often think of this is the importance or the lack of importance of magic words if the court has made it clear that we're not going to require magic words and sensing that yes i look precisely at these argument made by the defendant not rejected for x y and z argument make only is that it's oftentimes contradictory for a district judge to understand where it is that that that much more information is why it was that said i don't know how your prior pinions could have been any clearer on that point  the response that question is this we face the burden of showing beyond a reasonable doubt that this man had the intent to undertake these acts and the tools are available to the federal rules provided stores that are available to do that and to face this trial court is reviewed by an appellate tribunals in other words the district court give us your reasons just give us an analytical assessment and we got to defer your there you know that's what we're not getting and again i understand it's not the prosecutor's job to enunciate that balancing it's the district court's job i'm pleading know that anything you can do to she had started several pages earlier to about page six of six she said let's talk about mr repacks credibility and she went through various things to to to attack his credibility then she came to this issue and recall debbie rowe to testify on and off and then he gratuitously added in this is a page by fourteen i'm not going to say that it was a long term and that's it page five fifteen at this point in the closing the prosecutor's trying to draw the jury's attention to his statement that it was on and off again and that's why that in addition to the word limitation i did not repeat it but our position is that was to draw the jury's focus to his own credibility that's a restatement of his words i'm faithful to my wife i'm not faithful to my wife is a paraphrase it was on and off and why is the discussion of this affair not trying to draw to the jury sensibilities enough the tao ready in a relationship as opposed to i think when we look at what this case was about and the credibility for mr repack and what was going on in his mind and we do see what i believe is improper argument regarding the affair and then the second instance i believe and that's really the way i read that comment was simply does this sound credible ladies and gentlemen you heard what this woman's job was to the perception is you know what his job was you heard about all the things he did in this credible so why is that improper because i guess i didn't read it that way  i was reading it as you know she's going to be out of this she's in testify for us and then he gets up here and tells you that she was the one who did it and i think there are other ways to say you know are you really going to buy this from him that she was the one who did it i mean look he's asking for britney spears tickets he's asking for this he's asking for everything in the world of course it wasn't her there's no way that could be the case this is not evidence however that can be characterized as inflammatory and even if as you say  it was something that was introduced eat properly or incorrectly i have a hard time understanding how you think this would have resulted in some if i didn't intend to i think in my mind it's just a way the government attacked mr repacks credibility when this case was predominantly about credibility and what was going on by essentially putting we appreciate your very hopeful arguments and will take