raised four issues i think are people i'd reach shows that all the issues are sound and that the government's position on each of them is remarkably weak i think it's prudent to focus on fewer than fo i may turn briefly to one of the others that's fine and you know what i got a question for you on that issue right at the box you saying you're going to think that that affects all of the counts of conviction that issue latham which is the obstruction count has as the court's probably familiar that corruptly state of mind not of willfulness state of mind so our position on the need for reversal on count eleven turns on spillover effect of all from all the other counts and the interrelationship of all those counts and that's just to put that aside hearst and i think our briefs were not clear about that so i just wanted to say that ok st now current does not turn on the relationship of section to the to the election law exclusively yes it is true that some of our counsel here are to be counted and not all of them are friend that way but i think most of the are in fact and any event the can the important point is that the thousand and one day intersection that in this case you know i didn't make myself a list i don't doubt that you have that right some of them are to a counts and some are to be ok none of them none of them is he the actor that intersection of two b n one thousand and one isn't absolutely part of what i'm sending convents thing that the rationale of current turns on the nature of an election law violation not on the nature of the that cabin not overreading of current and i would not say as it applies to election of violations but as it applies broadly to all regulatory type offenses i think that is the cabinet that was happening there right but why was it why wouldn't data quite just this much to an election and long regulatory regime as to an environmental regulatory regime or any other well i in my view would apply but the court has restricted its application of the rach last principle which is what we're talking about here to very few  court i mean the rd circuit as well as the supreme court to very few offenses but come in is on point with government is trying to push aside and not follow a controlling precedent understanding that you could it's possible to over read rats laugh indeed it's possible to over read kerr and then and if you and if you were to do that you'd be in pretty dangerous territory because you'd be demanding heightened willfulness standards all over the place so that if you need some guardrails on it and i take it that that's what was going on perhaps  what's your what's your argument for the idea that even in those places in those towns where that is going on that what occurred is harmful as opposed to harmless error in light of the evidence that was in place the prejudice and lack of harmless error here i think is so strong this is the heart of the defense it was exactly as and that's why that is there's no question on the record of this case that mr smuggler was maneuver g to avoid had least these are the election law regulations about contributions and disbursements that's exactly what was happening his defense was that he believed in good faith that he had a lead to avoid in each instance the rule in question that was lawful and was not seeking to violate so that is exactly the smuggler was a very sophisticated political actor he was not a neophyte to the regulatory regime and he was well familiar with what was going on indeed the candidates came to him or seeking guidance from him about what the certainly would have convicted even under a have that the high will d on the standard given his background and the evidence about it what do you what's your reaction or response i think that's exactly what the government could have argued and the allow him to counsel his clients to do what they wanted to do to win their elections without violating the law exactly that's exactly the point of expertise is his at that same evidence would lead a jury to more logically say not he knew any attended he was the baby he was just that way well then an appellate court to a what's more logical doesn't determine what's between a brian intent and iraq plaintiff intent there's no set of facts were a jury couldn't tell one way or the other and it's absolutely has to be a jury question could not be harmless inherently bad or evil that it's made illegal by a regulatory statute and that's tightened up by starr and we trying to technical statutes there's no doubt that the election law here i have no doubt that the election law statute is at least as technical as the internal revenue code provisions that were issued chic which is the foundation of this line of thinking cheap because the intention of the defendant peak was he didn't understand but he had to duty to file a tax return on income right and we did anything less technical than that i don't know what it is yet we will get your point and we're we're really  language of the agreement or if not the plain language the language as it would reasonably be understood by a criminal defendant thinking that he was making a deal with the government in exchange giving the government a benefit of the extension what is the benefit he's getting in exchange which is the opportunity to persuade them not to indict him and a limitation the length of language of the agreement is that they could prosecute him only for a charge arising out of not involving not implicating but arising out of the fact check and the agreement goes on to say certain subsequent conduct so what would a defendant think was the deal has it cut the cord into the language of the agreement that they check that check and subsequent content and conduct and not prior conduct that's that's the meaning of the language and our argument is which the government hasn't even tried to enter he said agreements like this are like plea agreements and should be construed by you just large body of law of the scores on the rules of construction of  scope of that is within the potential objects of the conspiracy are the ones affected by the current market so since the jury since since a conspiracy requires at least in the cases at least the level for the united states to pick up on the current arguments it's the government's position that colonel certainly after blowing in the supreme court and then again after  barnes in this circuit no longer has the full force of law on it in a pickle in this case to the extent that this court were to find otherwise that cohen is still somehow good law it's only all and if i could get i can down that how about count one d which respect to count one there was a multiple object conspiracy there and with respect to the last object charge there which the or otherwise and that object there isn't amply sufficient in fact overwhelming evidence that records were falsified have to defend specific direction in both of these schemes and therefore count one is not impacted in any way even if you were to take the broadest reading of current and apply it to all of the election counts which is what of course mr goldberger is advocating although we obviously disagree with that position all right well for purposes of argument let's assume we thought of government's rights as five and six was the fact that there was a an existing precedent on our books not overruled by  associated with the dictum that ignorance of the laws is not a defense with respect to the brian standard which was articulated by the supreme court after current that case in judge stevens opinion specifically said that this instructions they're similar to the instructions here were moved to danger that an individual would be convicted for wholly innocent or unwitting conduct that is they didn't know that something was wrong because they are  circuit got it's got some guardrails around it how do you get how do you get past the fact that at least with counts wasn't six the jury was not instructed in that way you are to the jury was not instructed consist with current dot is correct and if this panel were to conclude the current is still good law in effect instruction was required i would submit again as has been discussed with mr goldberger the evidence of mr smucker's intent here was overwhelming by his own account both in an interview to the f b i about his knowledge of the campaign finance rules his profession his legal degree his thirty years of experience and also his just flat out admissions that he knew what the requirements of the campaign finance law were they are down now we're talking now we're talking harmless error right mr good's as it relates to the  so start with what you need to show to show harmless there and explain to us how you have in order to establish harmless error here we have to show that the jury would have convicted nonetheless even if given the proper instruction that you have to show that you have to show there would be conviction beyond a reasonable doubt with the stand  specifically articulated by mr smuggler to the jury and i would contest mr goldberg ors description of what the argument was to the jury mr smuggler wasn't presenting himself as not knowing the rules mr smart was presenting his conduct as lawful that he knew what the rules were and that he believed that what he was doing was lawful and in fact in light of evidence for example like the campaign lawyer for the margolies campaign explicitly telling him he was wrong that was part of the evidence or also the the overwhelming steps of duplicity and deception and non direct transfer actions in fact if i could go back to rat class just for a nd in this context in the rats last opinion the supreme court described money laundering for example is the type of conduct that is known to be nefarious and distinguish that from the structuring activity that was going on in which is only illegal because there is a statute saying it's illegal there's not an intuitive reason to think it would matter what do you deposit ten thousand and one dollars well or all done are you suggesting that the violation of election laws and regulations are inherently area that i people who people who don't know that you've got certain limitations that there's x dollar amounts you can get from this person x dollars you get from that and that if  hammer him for that we should require something more than ordinary commits to acquire something that shows they knew they were actual and they knew exactly what they were and they intended to violate that law and now they could for the sake of discussion we thought beyond a reasonable doubt mr snuka was going to go down even though the judge with the help of the lawyer that didn't didn't instruct the jury about that heightened willfulness well you are to take some of the examples that you specifically inquired about a moment ago mr smuggler acknowledged knowing the contribution limits specifically himself mr smuggler approved and were viewed all of the filings that went c in particular in the margolies campaign in the brady campaign mr smuggler and judge moore discussed the purpose of the transactions and the creation of both a fake company to make it look like the pole was being sold and the documentation that would be needed to perpetuate that illusion so as it relates to mr smuggler specifically the question about what mr smuggler knew is best directed to mr smuggler who indicated he knew all of those things and discussed them both with the agents discussed them with his coconspirators the e mail traffic that was introduced at the time of trial definitively established that he were viewed to do the false drafts that were submitted to the f e c the false letter that was submitted to the f e c in order to obstruct the f e c proceedings mr smucker unlike the defendant incurring in the incur and the defendant was an executive for a small steel company if i recall correctly there was no evidence that he was a politically sophisticated individual let alone a political operative who trains the d n c or who ran campaigns for work powerful people all across the country the evidence here is sheerly overwhelming as it relates to what mr smuggler knew and it's coming from his own account both in his testimony on the stand in his interview with the f b i and in his discussion instruction that the jury rejected that defense is just evidence of the overwhelming nature of the evidence against mr smuggler not a reason for him to seek relief under under the dictates current to be at this point but also as it relates to the current decision in that opinion admittedly at the time the opinion was crafted the court i would say had been known in the absence of precedent to guide it on the issues as it related to will from the specifically in the federal election law contact the wooden issue of st impression for the current court and my point two diff panel is but developments it in storage i'll be in a different context but also across the country in the context of federal election campaign act violations have gone in a different direction and the heart of the offenses charged here against mr smuggler are involving deception you know tell the truth about what you spent and where you got the money don't miss attribute the source of the money i mean these are basic concepts this is not like the tax provision that was an issue in cheek nor is it even like the registration provision that issue and ratified all right is don't lie that you got to the bottom line here yeah what we got we got your argument on that let me  pointed out in the discussion with mr smucker there is no ambiguity here and it talks about conduct arising out of that particular offense and what we're dealing with or a single contribution of ninety a things that are well under under the statute as it relates to the aggregation that offense is not going to be complete until the last payment based on the nature of the aggregation as it relates to conduct coming after that those contributions need to be reported periodically to the f e c and so there is a number of steps following even the contribution itself  which would not have been time barred but were contemplated as there is subsequent conduct to the actual final twenty five thousand on a payment i'm just trying to get i'm just trying to get you to respond to eleven point who do those words and subsequent adam at a minimum put some ambiguity into the mix that would be construed against the government to indicate hey i'm talking about stuff happening on that date and after that's what this polling agreement thing that date and after and it doesn't it doesn't open the door for the government to argue with things that happened or that well your honor there's no argument put forth that count one the conspiracy count is somehow time bar which obviously conspiracy is a continuing offense and the conspiracy account dated from the earliest transactions involving the more schemes the more brady scheme all the way through the filing of the documents so the evidence would have been precisely identical even if you conceptualize these true as three separate contributions rather than one contribution in three installments the evidence would have been the same moreover each one of the installment payments was twenty five thousand dollars or more thus triggering and the prior if you conceptualize the earlier two installments as somehow prior conduct under united states sense and guidelines they still would've been relevant conduct for sentencing purposes so at the end of the day even if you conceptual this in the way that mr smoker would like you to he he gets no benefit of any kind because it doesn't affect his exposure it doesn't affect his sentence it doesn't affect the one well in the st sanctioned charter the jury was given the standard unanimously instruction repeatedly in the nd instance has it relates to count ten what you have here on the verdict flip as it stands is essentially special jury findings on the factual basis for count ten because the jury found mr smoker guilty of count seven making the excess contributions that issue under count ten in count eight they found him guilty of kind of contributions which was also a factual basis ten and in count nine they found him guilty of making come to a contributions which is also part of the factual basis of the charge in count ten so you can see exactly what the jury was going to do with that because they did it they found him guilty beyond a reasonable doubt of the underlying factual bases that comprised the count ten false reports to the f e c it's an alternative form of culpability to be sure but it's not at all  minutes for rebuttal thank you your honor st of all i think we can put aside pretty quickly the argument that current is somehow not the law in the rd circuit because the government reads subsequent decisions in other circuits to be critical of it that it's certainly not the way president is on ruled the offense here and all the offenses have contribution cannot make that contribution with a single check that's a perfect example of the technicalities are at issue here but the argument of up the whole government continues to make the same point and i answered this in the reply that  you know there's a big difference between having the right to use a poll and having knowledge of a poll and again whether that's something that can be legitimately paid for so the issue all of this goes to the government's argument that it's just not there with an expert in newton rules the point is in fact that there's equally supports as to us the more he knows the more he thinks he knows when he's around the rules yeah you know the rules question is whether he knows absolutely typical not so and this in and then i'll end with where this leads which is that the government's confusion of whether the evidence is sufficient with whether an error is harmless what the jury instructions tell the jury can be the basis of their conviction a lot of the evidence that's admissible is not in and of itself a basis for conviction not turns on the jury instructions that argument makes no more sense the admissible evidence argument makes no more sense than his guidelines are going to occur not arguing about well the sentence would have been different that's not the prejudice the prejudice is a conviction on a non unanimous jury  which is a constitutional violation the failure of the jury instructions in this instance to protect against the possibility of a non unanimous verdict under the case law that talks about the special kind of case which this is one of