there'd be admitted error in the bribery jury instruction potentially contribute to the jury's verdict on the fraud counts that are at issue in this appeal and i think the answer is clearly yes and in fact i don't think the government's brief actually ever directly denies it and so what i'd like to do is just lay out the past but the jury could have taken from the bribery instructions to the verdict on these counts that are now an issue in the st step in that sort of chain of reasoning is what the court recognized last time which is based on the faulty instructions the faulty definition of bribery the jury could have concluded that the eighteen thousand dollars payment from  was an illegal bribe that is why the bribery count have to be vacated and that has to implications for the in the jury's consideration of counts nineteen and st if the eighteen thousand dollars was  bride then fatah lawit by concealing that fact from the bank and by saying the money came from a car sale and so the finding of bribery satisfies the element of fals thousand and twenty were fought and were not challenging them the problem is that the government argued that those elements of counts one thousand and twenty were satisfied because of the illegal bribe and so i predicate finding that the eighteen thousand dollars was a bribe that was tainted by the faulty instructions then the jury could well then use about finding to satisfy the elements of these two   to make that conclusion i don't think so your honor at all the prejudicial spillover challenge the court considered last time and address was completely different the challenge that they had that the court addressed last time was one of their prejudicial spillover from the rico count to count one thousand and twenty and prejudicial spillover occurs when evidence it had made it as a result of an improper count but then again the jury's consideration of count and the court said there was no evidence that came in as a result of the rico count that would have affected the jury's consideration of count one thousand and twenty so there's no evidentiary spillover problem that we have to worry about that completely different from the challenge that we are arguing now which is that the jury instructions on bribery led the jury or potentially lead the jury to conclude that the eighteen one thousand dollars payment was a bribe  fact that the jury instruction i believe we can i'm told the jury can evaluate every count separately you certainly have to evaluate him separately but the government's argument to the jury was that you can find that the count that the elements of counts nineteen and twenty were satisfied because the money was abroad so it would naturally have to rivet is type of theory a fraud  derivative offense away money laundering is but here it was because of the way the government argued it to the jury and i would i would just as you know i'm not making up this sort of chain of reasoning this is what the government said on the court to page and forty one dollars of the joint appendix where the guy is the closing argument where the government says the eighteen thousand dollars had nothing to do with the sale of a porsche eighteen thousand dollars was a bribe payment that sort of that element one dollar falsity if the money was a bribe had learned that the eighteen thousand dollars was related to a bribery scheme or was criminal proceeds of any kind and there was evidence in the record supporting that argument because the representative came and said well the money the legal we can't give a loan and that that's what the court held last time that what that means is that when the when the jury found that the eighteen thousand dollars was a bribe that finding is tainted by the instructional there mr this rough let's talk about materiality for a moment i agree with shorts that what you're saying does not plug into neither or the instructional or a standard review you're trying to fit a square peg into a round hole here your theory is lee this might not qualify and be material to the loan because the jury might not of found the things that would be required for that but then we're looking at of the source of the phone was false then you would not be given the loan doesn't matter whether the false explanation is a bribe legally or bribes actually if they're saying this came it so on these facts how d how does that how does that shake our confidence in any way in the finding of materiality that i think is the lynchpin of your argument so i think it's too late i think we have to alternative arguments about how the in instructional era might have led the jury off track but just to respond to your question about materiality in particular i don't think anyone would say that if if i thought i had said i got this money because i sold my porsche and in fact he got it because he sold his mercedes that that would be material to the bay ok if they don't care now that the representative cuma was specifically asked if you knew if you had learned that the money came from criminal transaction would you have been able to prove the mortgage he said no and then to that well what if the eighty thousand dollars had been a gift just an outright gift with that have been acceptable from human standpoint and he said it could have been possibly is could it properly instructed jury have concluded that if a co op lied by calling this a car sale when it was really a gift could a properly instructed jury have to have concluded that that lie was and forty four or not intended to influence the bank for purposes of section and fourteen and i think there's certainly enough evidence in the record to allow a reasonable jury to make that determination because she said i understand your honor is pointing to one answer that she gave a falsity is is no good but then when pressed to sit a cli on the type you know what would you have done with the truth she gave very different answers when asked what if it was a bribe what it was what if it was a gift and a jury could have given the fact that that difference in response and and reasoned that well it was a bribe no question it was material to the bank it was intended to influence the bank but if it was a gift they evidences more being cross referencing one thousand and twenty and cetera so aren't we on abuse of discretion review here note no your honor not at all and i resist the suggestion that the argument is based on instructions and the law is pretty clear when there's an error in the jury instructions what we ask what the court asked is did that ever potentially contribute to the verdict or was the verdict surely an attributable to the air what  don't know what you mean by legibly prejudicial phrasing it's the error in the jury instructions in the case that would point to a stiff court's decision on the laugh the peel when it dealt with money laundering the jury instructions on money laundering were perfectly fine one of the elements of money laundering is proceeds of unlawful activity and so the court said actually the court didn't say it but it implied it because it threw out the money laundering counts well i find if the jury finding bribery is tainted difference but i don't think it's a material difference because in both situations there's no error in the jury instructions the finding the elements of the nd the fam but the court recognizes that in the jury's consideration of the  the jury is going to be looking at how it resolved the bribery offense because the bribery offense is presented as a predicate now with money laundering it's a legal predicate it's much more you know it's it has to be there for bank fraud it usually is not however and this is why we're invoking and the reason why we're invoking the government's argument to the jury and the courts description of the bank fraud scheme to the jury in this case the no other contact than money laundering if the legal theory of you know my question oh is that your argument here that the instruction it a factual basis for well the jury instruction misstated the definition of bribery and that could have led the jury to to a flawed factual basis to convict that undermining it up their mind the legal theory for the library charge but for purposes of the charges that were issued here you take factual basis with those charges and correct i think i think that's right but i don't know why that would make any difference if the bribery and money laundering charges but i don't understand how fineman griffin taking relief when the error is not a legal theory of problem well it's a legal theory of bribery problem that is then imported into these camps and so that's why don't i don't see why it would make any difference i think the fundamental principle of those cases is to trust the jury to pay through the evidence to sift the evidence to weigh it to determine if elements are satisfied but if the jury instructions through the jury off track legally in a way that might have affected the outcome then we cannot rely on the jury's verdict on that count and i think that's exactly true here government here i think is this is just a shorthand for a bunch of stuff that they've argued happened factually and the judge bart you know the judge was very clear that this is not the indictment what the government is arguing and the instructions just basically the seen as the indictment language to which you have no properly preserved objection such that if there is an error things you're objecting to now and there's nothing wrong with that theory if the jury is given the correct instructions about what a bribe is the theory is fine the theory was clear from the entire case and there's nothing wrong with the theory the theory was you hit it you can feel the drive from the bank and that tricked the bank into making the loan that was the theory that theory works if the jury is properly instructed on what is a bright but if the jury is misled about what is a bribe that is little error illegal erin the jury instructions that we can't just assume the jury figured out on its own and in fact that's why the bribery and the money laundering and when you  false statement to a financial institution which is take that one in order to prove a particular defendant guilty of the offense of making false statements to a financial that's an institution the government must prove one that the defendant under consideration made a cause to be made a false statement right to the credit union to write that the defendant knew that the statement was false right three that the false statement was made for the purpose of influencing the credit unions action and that the credit union was a finance its financial institution right how does any error with respect to the bribery instruction or comments relating to the bribery matter in any way in fluence those four elements me just i want to be very clear about how this works with the jury as wrongly instructed and how it could work if the jury had been properly instructed and pretend we're the jury sitting in the jury room ok so the jury concludes the eighteen thousand dollars was a bri it make that conclusion based on the before the problematic jury instruction the jury then comes to count nineteen and says well there are false statement yes because it was a bribe and he didn't tell them it was a private check off you know tek off the box for element one and then the jury goes to the next element and says well that's intended to influence well of course it was intended to influence the kanu that the bank couldn't make him a loan if he was relying on criminal proceeds that could be forfeited tomorrow so he must have lied in order to influence the bank's decision check off element to now pretend the jury was properly instructed and the jury is going through this in the jury concludes this court found last time the jury could have the money was not a bribe none of these payments were bribes so the jury comes to question one count nineteen was there a false statement now the jury says well i'm not convinced there was a false statement it wasn't a bribe maybe you really want that maybe it really was a legitimate car sale and so the a falsity and about materiality intent influence with respect to your question about about the false statement sure the jury a properly instructed jury could have concluded that this car sale was a sham and that there was a false statement even if it wasn't right but the jury properly instructed jury easily could have concluded that there was that it was not convinced but that the car sale was a sham there was paperwork that this court said last time well totality of the circumstances the jury could conclude that it was a sham but the jury looking obligated to find it was a sham i mean date that that was actually we argued last time the decree could not conclude that it was a sham because the the contract are are sort of legally can't be false but putting that aside the question now is what would a jury have concluded and i think it's absolutely clear that if the jury had been properly instructed on bribery and therefore have not concluded that the eighteen thousand dollars was a bribe the jury that jury could have concluded that there was no false statement and therefore that element one is not checked off the list and then moving to the next one intent to influence the jury even we could have concluded that the only reason fatah decided to call this a car sale even if it was a sham ok but we reason he decided to call it a car sale rather than a gift was because he didn't want to publicly disclose a gift from a lobbyist and he didn't want to have to go deal with the ethics committee but that it had nothing to do with the bank and behaves not trying to influence the bank the bank would have been perfectly happy knowing that a millionaire gave him the money and was not going to get take it back but he didn't want to say it was a gift for completely different reasons although ms souza said that she testified that if the transaction have been a gift credit union would have required additional paperwork which is a gift letter proof of donors financial circumstances right and a jury could easily have concluded that the didn't go through that process of you know providing a copy of the bank statement was because he didn't want to call it a gift because of his congressional ethics issues in fact i'm again i'm not making this up this is the argument the government made to the jury  that as a u s congressman fatah could not put on paper that he received an eighteen thousand dollars gift from a consultant in the government affairs practice at a law firm where he reported to a lobbyist so that the two hundred and forty five days of the government was actually saying yes the reason he can call this a gift was because of his congressional ethics issues that would not satisfy or at least the jury could find that it would not satisfy the intent to influence element of section and fourteen in the materiality element of section one thousand three hundred and forty f the evidence again if the bribe everything then follows from that very smoothly and readily if not a bribe a jury could come out the other way and so that's why the error in the jury instructions on bribery flows through to these counts just the same way that flowed through to to the money laundering  again i don't even think the government is denying certainly didn't didn't deny it it's pretty that this error in the bribery instructions potentially contributed to the verdict  behalf of the government the defense is presenting a moving target here i read their bodies and i understood them to be saying that there was an error in the jury instructions with that necessarily is with respect to the bank fraud and false statement counts that is linked to the incorrect instruction regarding bribery and that's the reason that we're here this morning mr ross very clearly is that quote the jury instructions were fine and quote and that really  the matter the bottom line here is that in the court the questions have pointed this out the instructions that were given regarding bank fraud and false statements were accurate and never were linked to the  there is no point at which the district court in instructing regarding bribery said and this is an essential part of the five charges as well the argument this morning from mr roth instead is that the government presented the factual theory to the jury that if it's a bride that supports the falsity well st of all that would be controlling but nd and also importantly the government never said that he is selectively quoting from the instructions but if from the closing argument the government never stated that the fraud and false statement charges depended on the fact that there was a bribe and rather made very clear as is consistent with the law that what counts nineteen and twenty were about were false statements to a back period i think it's very important and you can walk through the whole case which i'd like to do each it's very briefly if you look at the charge for example the indictment i know judge beavis has correctly pointed out that there's been no objection t indictment but in fact the indictment makes very clear what the government's theory was throughout the case which was as to touma the false statement was in presenting this completely fake set of documents and this sham regarding the car sale in order to count nineteen the bank fraud charge incorporates the relevant parts of count one that describe the whole affair and specifically paragraphs thirty nine to forty five of count one is what describes the bribery by  don't know where mr rudd if what he suggested warning that the theory of this case was only dependent on the fact that it was a but it would never only depended on that it would remain know that if it were only depended on that and then if you look at count twenty which is the false statement charge which of course does not lie to any degree on the fact of whether there's a bribe or not count twenty is on page ninety nine of the appendix and it lays out what the falsity wasn't simply a fall he was  you gave a sham cretin patient to the lender about driving a car sale that never happened period that of course is consistent with the testimony of missing you that you can farm for the government's theory that every document because we really don't want the house ethics committee to know because gentlemen getting eighty thousand dollars but he's really a millionaire and he really had the ability to do it yeah maybe you could have pulled it off but it had nothing to do with whether the material or whether you can kind of influence the to the argument as i understand it that in effect we should be concerned that the categorization of the eighteen thousand dollars throughout crowd was as a broad and that the jury instructions for count one with respect when you hear the word eighteen thousand you're going to think oh women bribed and therefore somehow did we meet the official act requirement but if you stand back and just say in colloquial terms what was this even if these gentlemen are actually innocent under the law of bribery because say trying to get him an ambassadorship is not an official act or hiring his girlfriend it's still there's a sleazy transaction i think any common citizen with agree with that that having him give eighteen thousand dollars to help fatah buy this house faking a car sale and or to cover it up in order to have him not saavik if returned yes we can say under mcdonnell perhaps this is not criminally prosecuted as a bride but there's nothing wrong with ever saying to a jury there is a basically a sleazy transaction happening here and they don't want humans to know about it so it would still be a fair statement but what we have to focus on right now is what this jury incorrectly instructed and i'm very happy in that regard that the court asked for the sets of full instructions i apologize for that shortcoming we should have put the full instructions in the appendix because it's so revealing when the court talked about bank fraud in the rico charge and when it mentioned the word bribery once it's really helpful to look at the order of these very lengthy very comprehensive instructions by judge bartol when he instructs and uses that w then give correct instructions on the bank five elements without mentioning bribery he has not actually instructed on bribery the the bribery instruction including the definition of official act comes later when he accurate as a legal matter the jury was never told it had to find a bribe certainly not with regard to the one thousand and fourteen dollars false statement charges which weren't in recall at all and so then that just leaves us as a factual matter was there were we linking this to the absolutely evil requirement that there was a private defined by law it's not in the indictment it's not in the government's opening statement in the opening statement the government said it could show it was a  gift it's not him to see this testimony she very clearly said we care very much of you know if you look at the sequence here the she sent an e mail to congressman fatah saying what's with this eighteen thousand dollars and he responded in a very lengthy e mail saying no problem it was a car sale eight hundred thousand this is a porsche that we found cetera and she wrote back page two hundred and six of the appendix saying i'm sorry congressman fatah but we as a court and then everything will be ok nor did he respond don't worry this is not a bribe you know that's all you need to know what they needed to know was what they asked for and what mr fatah mr vehement did was they lied about it and they went to elaborate lengths to lie about it and judge me this is a little bit of this is under the timeline of cases is where you have an error in the instructions we got in the law where it's the judge telling the jury and incorrect theory which then is not supported by the law that would apply but we don't get there because i think that there would be one was given the way the whole case was presented a little get there because they simply never a statement by the judge that as a matter of law this factual theory with the sufficient it's not the other thing i wanted to mention is this quick to earlier decision that judge schwartz asked about this this court did consider this and i think it's quite surprising to suggest that in that exhaustive meticulous opinion that smith that that this isn't covered the the what the court did there it's explicit ruling was that it was reversing the counts that related to bribery and it was reinstating the counts simply no way to do that without making the conclusion that the incorrect jury instructions regarding bribery which is what undermined those other counts are irrelevant to this to these two charges regarding fraud the now i know that the the court did not explicitly make that statement regarding every last argument presented but it's this is not just implicit it's essential in the release that that the court ordered and that's why the money laundering charges were reversed money laundering the explicit element is specified on lawful activity which is which is bribery in violation of federal law if those charges fail the money laundering charges  l that's perfectly normal and that happens all the time when one quotes from this court's opinion that i want to cite that we quoted a number of quotations that support the five charges here but when i don't know if we mentioned is on page one conclude the vitamin spillover argument is unavailing now this is really interesting because the rico conspiracy and of course the court is reversing that conviction has to has been a star photog because of the bribery problem it does not need to vehement because the district court already took care that the district court granted a judgment of acquittal to mr v them and count to the rico conspiracy and the government did not challenge that on appeal but what's so interesting when he's arguing that the rico conspiracy as it applies to mr vehement is only about bribery that that was his alleged role in the rico conspiracy and in fact the reason that the district court  vacated his conviction and you can look at the da number five hundred and thirty eight dollars which is the district court's opinion granting a judgment of acquittal it's page ninety four dollars of that very lengthy and the reason is because the district judge said this whole exchange for actions that only benefit him that's so the victim and part of rico conspiracy is only bribery and so if this court says that that evidence does not spill over and undermine his convictions because the cuba related evidence is to state that is necessarily the exact same argument that we're making here which is that the cumin charges are based on lying to a lender about the source of your funds for any number of reasons that you want to lie and cover it up in order to suggest that you're more fit financially solvent than you are that's what those counts are about and that's why they're totally separate so there's no air in the jury instructions there is error in the government's presentation there's no basis here and that's why the district court correctly denied this motion is why this court correctly reinstated these charges if there's any further comment on the sentencing i can respond to that later is what i'm watching on on son statement as to the obvious answer to that and what we explain in our brief which is that this is not your ordinary garden variety eighteen thousand dollars fraud on the lender to look at other cases we would have to see other cases which what you're covering up is nefarious conduct with the united states congressman but that that argument wasn't specifically stated and i'm not sure that it's presented on appeal either i have no further questions no thank you thank you thank you mr a thank you your honor so i said before that the government didn't deny in its brief that the jury my jury verdict on count one thousand and twenty might have been influenced by it predicate finding that the eighteen thousand dollars was a bride and mr one thousand was presentation he again did not deny that i did not deny that the jury might have found that the eighteen thousand dollars was a bribe in fact the jury did find that the eighteen thousand dollars was a br as a result of the fogger instructions and that that predicate finding of bribery might well have contributed to its verdict on counts one thousand and twenty by showing that the statement to the bank was false and of the statement to the bank was intended to influence the on let's say pick the count nineteen which is the false statement to financial institution that we read before during your the opening what would have been a failsafe instruction that would have passed muster then your honor that the objection is to the definition of bribery the failsafe would have been to properly instruct on bribery if the jury was properly instructed on bribery and it would have reached a reliable determination about whether the eighteen thousand dollars was a bribe and if the jury saying the key thing under the line of cases is the actual jury instruction but it's right right he said he said this was their factual theory and maybe they didn't prove it the problem is not that they didn't prove it in fact there was sufficient evidence the problem is that the instructions defining bribery were admittedly wrong and prejudicial and so we have a factual theory that rests on a legal predicate bribery that was improperly charged to the jury to the jury if it wrongly instructed about what is a bribe wrongly conclude that this money is a private he admits that one of their theory was that because the money was a bribe it was a lie to say that it wasn't a bribe and it was material because criminal proceeds are bad and in fact i think your argument here i get where you're going it should be that but it predicated on the idea that it is the goal finding of a private of the work where is i think what w saying is ok colloquially this is goodbye but it doesn't mean that we go with standards set forth by the supreme court and blind of bribery presidents all the services all these other things so you said in their closing argument cumin would not be issued this mortgage if they had known that it was just a gift or a favor or worse a bribe payment now why is it worse if it's a bribe payment it's worse if it's a bribe payment because the representative the bank specifically testified unequivocally if it's criminal proceeding no good it clears day and when asked about gift much more equivocal that's why it's worse if it's a bribe payment and it absolutely entirely conceivable that the jury would have given that distinction some effect and said oh the bride payment clearly material an intent to influence a bank if the jury had not concluded that it was a private and i mean that in the technical sense  illegal payment if the jury said well the eighteen thousand dollars was a legal payment question is could that jury have then concluded that count one thousand and twenty were not proved beyond a reasonable doubt the answer is yes and if your answer is yes i don't see how the verdict on those counts can be sustained if we're admitting and acknowledging that the jury might have been influenced in finding those elements satisfied by a wrong instruction on the law that is what the jury instruction cases  no matter what it is it doesn't have to be iraq right to that he knew it was false three that it was bait for the purpose of getting the bank to act and that the bank was a financial institution which way to go clarify if i'm a juror i'm i'm not thinking about a bribe we don't i think on the rd element you read well that intended to influence the bank i think a jury definitely could have it was intended to get the loan that the level it intended to get the loan right i think the jury could definitely have been thinking about the difference between a legal and an illegal payment because of the the bank's representative was clear there is a difference from their perspective in a legal you know legal payment an illegal payment and that's why the government is closing use of the term worse to describe the bright payment again this is the idea that this will be presented to the jury of completely independent things i mean we have cited throughout the trial opening closing the charge that they were tied together government doesn't have to prove that there was a bribe in order to have a conviction under count twenty i agree they don't have to but it's one way they can and as you're as you want to point out that closing pointed to dick a few different theories know maybe it was a gift maybe it was a favor worse maybe it was a bribe so there are multiple theories being presented to the jury one of those theories if painted by the jury instructional air and if if the if  they would have required additional paperwork right and there's no reason why that paperwork would not have been forthcoming and others the jury sitting there could have said what if they're sitting there thinking what was going on with this with this sham car sales just assume it's a sham something on one day and you do the paperwork two days later you put the date of the actual transaction i don't know anything about that that would require a jury to find that it was a sham say i don't think we need to talk too much about the document that didn't really have a notary remember there were testimony about that any instruction have anything to do with whether the jury with you had knowledge was properly instructional on the falsity right fourteen why it matters well your honor i think it matters because they're not independent questions whether this was a bribe or not and whether it was a legitimate car sale or not are not independent inquiries because the jury was looking at this exchange i had to terminate was this a bribe be a gift or c a legitimate personal and if the instructions are pushing them into a direction of finding that it's a bribe that makes it less likely that they're going to find that it's legitimate carson but again let's assume it's not a legitimate cause and the jury just thinking about why did they do this sham trant that why did they do this sham paperwork  to make it seem like it was a car sale and the jury could have thought one of two things one well they didn't want to admit it legal conduct because that would have been a no no for the bank or to put off for political reasons didn't want to disclose you do you have to decide what within what was because intent in not telling the truth and if the intent was to trick the bank if a crime if intent was to avoid political problems from admitting a large gift it's not a crime and so that's why these are alternative theories and a jury that determines that the eighteen thousand dollars is not a bribe could certainly have been concluded that it was not intended to influence the bank and what they may have to do nothing evidence was insufficient i'm saying there's a possibility that a jury that was properly instructed on bribery would not have come out this way because it would not have accepted the factual fieri that was making procedural and substantive i think it's principally if substantive reasonable miss argument that the length of the sentence at four hundred percent of the got not end of the guidelines was not justified by the reasons given of course when you look right but the high end i should say but the recommended sentence was a year and a day so let's start off twice the guideline range that's right and if the court had imposed bad and we would be able to challenge it we were willing to go above in order to get this to closure on this and that led to the dismissal of the bribery counts then the court doubled back twice what even the government asked for think not in the face of categorically in principle but it certainly raises i think a question about what's going on here and i think what's going on to probably have you know post sentencing revolution starting to print and all the way through you know get out and set and you know you district judges on the front line get the benefit of the doubt i haven't i have yet to be on a panel where we have since then overruled a district judge up or down you know it it's unusual there's no question but there's only been one case involving a four hundred percent upward variance that i've seen in this in the circuit and it was reversed had that also involved a situation where the court went above what the government asked for and of the lowery case we say and we have a situation here where nobody is even pretending that this sentence justified based on the offenses of conviction and we've now spent a long time talking about how you know if our count nineteen and twenty just think from this bribery yet when we get to that you think the court basically ignores him fighting the twenty have nothing to do with because i think you also committed bribery i think our problems with the way that was done here are one we don't have you know the explanation and the for the fact finding here is incredibly cursory we have a few sentences about undermining democracy and faith and in democratic institutions i really have no idea what the court was finding about the bribery laws of the whole scheme that had been charged with just eighteen thousand dollars i don't know and then i think given what happened here procedur y i think we have a real pale wagging the dog problem where we can't really fairly say that this was he would be sentenced for the offense of conviction he was being sentenced for bribery that he was not convicted of and that you can happened no findings about how the bribery can survive the appeal or reconciling the judge's rationale with with this court's decision once again than from bribery and i would point the court judge on those decision in the allen case i didn't brief say that was a pretty good discussion of this tail wagging the dog problem where the reliance on the mr quick on doc just goes too far and i think then becomes on reasonable and that's really what are fence what i'm saying is you know reliance on dismissed on doc i get it it's ok it's not pretty but it categorically but it has to be reasonable and at some point you take it too far to the point that you're no longer really sentencing the person for the offense of conviction and  i think given the judge's explanation for the sentence here at the degree of the variance i think that's what was going on i don't think that's permissible thank you thank you to both of you now so it was strictly well presented argument by both of you i would