united states versus s action in lengthy passages spanning seven transcript pages patients last night i don't recall them telling the jury that i understand that they referenced official acts that would not satisfy macdonald certain meetings and all but i'm not sure they told the jury not to give official acts much thought well your honor it's just helpful if we stay focused on what they did and didn't say their words effectively wrote the poem and now the government just outsell i mean  your brief also is a little selective in the facts so i'm going to ask you to stay focused on what what the government did say what the court did charge and of course mcdonald now yes you honor and i'm happy to do that the government talked over and over about multiple witnesses who testified about lobbyist meetings the department of health meeting and the fact that just about anything senators do is in their official capacity the government's to distinguish the three skiing's because as she referenced the department of health meeting that pertains to the the app text the other q schemes if i'm correct involve meetings with mr skelos himself correct not with not setting up meetings with third parties that's correct your honor ok so let's hear you if i may i would like to first come back because the government made a number of remarks that applied across the board the government said that everything counted no matter how big and hose how small that the case was over because senator skelos had set up a meeting that making a public statement meeting with a lobbyist calling another official or all of fishel actions because senators do them all the time the government referenced defense arguments urging the jury to focus on yes or no votes on legislation and specifically told the jury you reject those arguments because they quote completely ignore the law and are quote wrong wrong because official action runs the whole gamut at the end of the day there was a legislative action  evidence now because that's a separate or commit that you're making we're just asking whether the government's contention that each of these schemes pertained to legislation in this case we have the lead slave act on which they were lying or am i missing something your honor i don't agree with that because the point the government repeatedly said in his summation to the jury that the department of health meeting was what senator supposedly sold in exchange for these favored i think i'd said the case was over you know i mean i know that they argue that the meeting was was an act but you're suggesting is if they told them to ignore everything else and i don't think you to be able to cite as to where in the summation your honor this is just one example the government said and i also want to make an important this is a page five eighty one of the appendix starting it pages twenty five forty nine and this is just one example the government said now let's go to the d o h a meeting because this is just devastating devastating evidence will go through the e mails this is beth garvey and they go on and on for numerous paragraphs talking about evidence of this meeting and then they say this is the meeting they get the meeting official action of official action from senator skelos in exchange for the payments to adam there's another part of the summation where the government says that the abstract case is over with the meeting and i want to also really highlight something that is not in the briefs but it's a comment the judge would who presided over the trial heard all the evidence heard th summations said and this was at the sentencing proceeding on may twelfth of two twenty sixteen on page sixty six in connection with our oral argument for bail pending appeal and the government made just the types of arguments that your questions are implying and in response and they pointed to her rule twenty nine ruling regarding the legislation and this is what the district court said as mr pirro and this was by the way before the mcdonnell decision had issued and based solely on the oral argument before the supreme court judge wood said as mr pirro pointed out that's all true this case is factually different from mcdonnell and the rule twenty nine decision i reference specific legislation but i think she's right that in the instructions i gave the jury and in arguments made by counsel to the jury there is a danger that the jury decided the case based on a rational that at the time she said may be rejected by the supreme court and i respectfully submit that under the yates role which requires the court to reverse a conviction where a jury is presented with an invalid legal theory and a legal leave valid theory and it's impossible to tell which one they rested their decision on a new trial is required and that does that principle of law has been upheld numerous times and most recently in the mcdonnell case the supreme court reversed the conviction and insists that there had to be at least a new trial even though there was evidence that the court mentioned from which a jury could have inferred that governor mcdonnell pressured the other officials to either  grant the research studies or and the drug to the state health plan or repeatedly said that time is up i have some questions for you and i want you to focus on the east help us out in in the a text apart from the statements you've cited the government also talks about this being a bride to get legislation paid cap the senator push through legislation the quid pro quo what's the legislation this is all it eighty five eighty four but even if we assume that on the app tech scheme there is this concern because of the department of health meeting what would be the parallel concern with respect to the glenwood in the p r start with page five fifty six of the appendix where the government speaks about essential all three schemes and starts talking about the jury instructions and the fact that the  the the defendants are going to argue that things like setting up meetings with lot meeting with lobbyists making public statements are not in their official capacity that all of these things are official because senators like dean skelos do them all the time and it's no defense at all then an appendix page five seventy three no gaps here i need you to focus on what we're asking there is no doubt that the government argued that the meetings were official action but the question in terms of deciding whether we can say beyond a reasonable doubt that the defendants were convicted based on what mcdonnell said this is official action is my concern is that their argument on these two schemes is all about getting the legislation and i i know you can cite isolated passages but reading the  i'm suggesting to you that it it doesn't leave one way that a reasonable doubt and you meet tell us why that's wrong your honor that's wrong because the government expressly argued and here's another example at page eighty five seventy three extensively they referenced testimony by glenn wood's lobbyist's and said every time the senator met with one of them on a lobbying that's official action yes i know they argued that but before and after that it's all about the extend your legislation your honor inconceivable that the jury would have said well we have reasonable doubts about that particularly when it's judge pointed out the legislation was inaccurate but instead have convicted based on the meetings so what would what would give us reason to think that that was even plausible the reason it's even plausible is that the the government had no evidence linking mr skelos his vote to any favors for the son indeed they strained to try to make a connection or inferred well we don't know what the jury inferred about legislation because the jury wasn't asked to answer the right lobbying the legislation but there was an official no your honor they couldn't because they never bought it they were never asked to think about whether the quo was legislation the instructions and the government's in two thousand and twelve significantly after the extenders had been passed and they were due up for a revote for several years and by the time they came up for revote adam scales no longer had any association with with p r i and mr scales voted for the legislation the government the who reason the government introduced so many witnesses who testified about how everything that these senator does is in his official capacity the reason they devoted so much trial time to the department of health meeting the reason they took full advantage of this instruction in their closings and in their rebuttal closing was precisely because they were concerned that they couldn't necessarily make their case based on the legislative action with regard to am tech the legislation at issue is primarily the county and and the oric all the evidence shows that this far if he was granted to add to based on a full and fair competition versus two other companies and that they won fair and square and there's no evidence in the record of mr skelos pressuring anybody i ask you one other mcdonnell in mcdonnell the governor was alleged to have used his offices to set up meetings with third parties who presumably untainted were making decisions on their own he facilitated the meeting here if i understand the government's theory mr skelos took these meetings as part of the larger scheme of payments to his son so that he would facilitate legislation so he gave lobbyists the opportunity to discuss with him what they wanted in the legislation why is that not different from mcdonnell well i think it's different because for two reasons one in mcdonald the government alleged and apparently there was some evidence at the trial that the governor that these meetings were not so innocent in effect and that the governor was trying to pressure other other officials on those two points i mentioned earlier  in addition the supreme court made crystal clear in this part and i would particularly urge the court to focus its attention on the passages in the section of the opinion discussing the constitutional concerns that essentially simply selling goes on and on about the fact that it's no defense at all that these are just meetings and that the the case is over that official action runs the whole gamut that they should just ignore the defense arguments that the jury should focus on legislative votes that's what the government told the jury to do and there's no reason for the court to assume that it's not possible that the jury did exactly as the government told them particularly when the instruction was as the government  that the jury could consider anything an official did in his official capacity as official acts and under mcdonald asked mike with respect to the meetings with mr scallops the government's theory is that he took the meetings and that they were in order to discuss the legislation that was then enacted and so for the jury to have found him guilty even on the meetings there would have had to have been an understanding that this was the put pro quo i mean the meeting was and it was for the purpose of him making a decision on the legislation what am i missing here  at the decision makers mr scallops and so his decision making as he takes the meeting is already corrupted on the government's theory by the payments to his his  well your honor i respectfully submit that that is not consistent with the way the government argued this to the jury and the jury was repeatedly told not to find what your honor suggested but rather to simply find that i'm that they didn't need to think about the official action because anything counted they they talked about even making public statements for example and the judge what herself was extremely concerned that was that this was pro quo though i mean they they did want to tell me where they identify the public meeting as the quid pro quo that i understand they they identified it as official action but that they discussed with this jury what adam skelos was being paid for and they received repeated play said that it was because for the legislation that was needed your honor they said they said there was other other official action i agree with this because they say if you the whole thing is part of the scheme but we're here on whether or not we can say that you know the the we have no reasonable doubt that the conviction was based on mr skelos agreeing to you  only thing i would ask you about and what i want to also just focus the court on the law in this area of harmless error because i think the court is misstating along with all due respect and that the question for the court is whether it's impossible that the jury convicted on the ballot there and i will say both in preparation for this argument otherwise i read many many cases that involve situations like this where there's a valid and an invalid theory presented to the jury and in a couple of cases you see reversal s where there's one or two comments in a summation i have never seen a case with this many statements by the government much less one in which a court has concluded that the error was homeless thank you you of my two briefs which is sufficiency of the evidence as to adam's gallus and specifically i'm here in support of the proposition that to join a quid pro quo or bribery type conspiracy or to aid and abet a quid pro quo or bribery type scheme you need at a bare minimum to be aware knowledge full of the quid pro and the quo and what i'm focused on here is the votes on legislation in exchange for adam skelos getting jobs and business opportunities now i just want to make clear i strongly agree with the arguments and dean skelos brief that that was no quid pro quo but i'm here to focus on adam and i'm suing argue wendel i suppose that there is a quid pro quo i don't think you can up hold and aiding and abetting or joining of the conspiracy type conviction where the government has failed as it did here to introduce evidence that adam knew about this legislative agenda whether it's p r i in the insurance extenders or whether it's glenwood and the that the legislation supported by by the realty industry to me it's almost self evident that that you must show knowledge of both in his mind in adam's mind that his father having the power to control or at least to influence legislation needed by each of these three employers would be using that and that he wanted his dad to use that of the job i'd like is in a conspiracy case and like to make two points if i might one is that this is commonplace and therefore going back to mcdonnell is something we've got to be concerned about i think it's commonplace the public officials are probably asked to help friends or relatives or whatever get jobs the question is are we going to include in the net is asking someone else to get jobs it's not someone asking the public official for their point your honor if i miss wide that simply getting the job from a political supporter of the public official let's start with p r i for instance where he was not coming to work and indeed when he was called on it he basically gauged insubordinate conduct that would get anybody he did not get fired and indeed said to his superior that his father and the c e o of the company had an agreement now i'm not suggesting to you that that you know spelled it out in black and white but the inference from the totality of the circumstances is that he was p was put on a no he was given a no show job because his father in the head of the company had an agreement about the extent or legislation that was vital to this company's survival why could the jury not have reasonably infer that first of all the testimony  to the arrangement had to do with working part time it didn't say anything about an arrangement to put to certain legislation go up two days a week he wasn't doing even that so it's a no show job the jury could certainly have concluded that and as i said there is conduct that these of the a supervisor that would have gotten any person fired it didn't get him fired respectfully it would be putting people into the bribery  that they're asking what would have alerted adam skelos to the fact that his position was the product of a corrupt deal and i'm asking you to tell us why the nature of his employment would not have and his knowledge of the relationship oh and the fact that this company depended on extend her legislation  you have there with the sun's own conduct on for instance the  conduct of the air was more indicative of knowing that his father had to take action because the phone call exchanges there particularly with mr mann gana showed that he knew that his father took action in connection with his employment whether or not the act tax apt extreme survives macdonald it shows his knowledge in connection with his employment his father and his father's taking of of action so why would me think the same was going on in a in a job where he was doing even less that those those elements do not survive and i don't know how they were there on the fact that his father and we were recollection of the evidence he referred referring to as that has to do with an inquiry into the timing of a payment that had already been promised to nothing to do with state legislation that is actually devoid and consider it carefully as binding precedent in b r g the son of congressman biagi received an enormous amount of stock through his himself and his law firm and it was by any by any measure way too much for any kind of compensation for for legal work done so we have a similar sort of no show kind of concept here and the court this court stipulated  that there was a bribe or a quid pro quo between former congressman beyond g and the defense contractor that paid him that amount but gave it to the son instead and this court said at some length that we're indulging jury speculation here if we uphold this conviction we just don't have evidence that the sun was in on it now the court said this is not to say that the sun was was completely free of of innocent inten here because the court said maybe the son should have realized that that this was a possible violation of a conflict of interest provision or something like that in other words his father was earning money outside of of his proper position as a federal congressman but but the courts are very strongly that this is not sufficient evidence that the son was in on the bribery seem there was any mission made by and skilless here that his governor please the court the name is thomas mckay on the says united states attorney in the southern district of new york i represent united states in this appeal as i did at the trial for years adam and dean skelos carried out three brazen schemes with a extorted payments and no show jobs for adam skelos from companies with critical legislation pending before deeds goes judge would describe the evidence as overwhelming copious and enormous and she found the defendants quote intended to link payments by glenwood and p r i to adam scales to specific legislation favorable to those companies right but the problem for you is that the charge given us appears to have problems in light of mcdonald decision and so the shapiro has said that in light of certain arguments that you did make in summation you've conceded that in your brief about meetings and public statements and all that that we would have to at a minimum order a new trial tell us why you don't think so i'd like to address each of those remarks that mission here described in our closing statement and i can go one by one through each of them and why we don't think they carry quite the way weight that mischa peer would assign to them but a few overarching remarks at the outset about the submissions and  the first is that the charges and the evidence and the argument in this trial were carefully divided into three separate schemes so as the courts questions have indicated it is important that analyzing this the court look separately at all the schemes and not smush them together as mr pear argument would have had time says mr pearce says you talked at the evidence collectively i mean i read the stations i understand that in the main you treated each scheme separately but your concern is that you also sometimes referred  are that's not telling them they couldn't convert and if i if i may as well i think the quote that you're referring to is one of two quotes that we say statements like that in specific response to arguments about the deal which meeting and call and let me be clear because as we acknowledged in our brief as to the deal which meeting when we argued that setting up that meeting was an official action was a basis for conviction we went too far we've conceded that in our brief but the point is that in the context in which the order and if it of mcdonald you went too far but the reckoning is at the time were you suggesting to the jury that if they found that dean skelos set up that meeting that was an official action that would be enough to support conviction with respect to the deal which meeting and the deal which meeting alone yes but let me talk about us is yes what yes we did argue that they could convict based on the which meeting but i'm trying to destroy a clear distinction between the meeting and the rest of the tech scheme on one hand and also the glenwood in the p r i schemes on the other hand because as you just with apt back in light of your so acknowledging that you did third the focus in the context of the argument which this is not a strength of the evidence review my understanding is we have to see able to say that we're convinced beyond a reasonable doubt that the jury it would have convicted even without that argument you are in conducting that analysis this court has said that the most important factor in conducting a heartlessness review is in fact the strength of the evidence and the focus in the context of that argument is important because the ab tech scheme was not presented as a series of different agreements this payment for this action this payment for this action it was as opportunities arise scheme where adam scales would get a stream of payments and in return dean skelos would do various actions that ab tech needed as the opportunities arose now the other actions were things like not blocking nassau county legislation as they had explicitly threatened to do in the hostage email pressuring na county officials to expedite payments under the county contract agreeing to insert in the state budget legislation funding for stormwater all of those things are undisputedly still official action after mcdonnell and all of them were supported by overwhelming over another public official so that he takes an official action no i don't think there can be any dispute that allocating money under a county contract is an official action water funding in the budget wish legislation the question i want to put to you is this if the jury could decide that there was a quid pro quo based in part on the argument of meetings and based in part on the destruction the meetings could be official action the jury verdict be upheld on the strength of the other evidence of a quid pro quo being legislation yes your honor because as i was saying the argument was as opportunities arise scheme with a series of actions that dean skelos took in agreed to take and so just because after mcdonnell one of those things that are part of health meeting is no longer an official action that doesn't bitchy at the jury's finding that d action that does not survive macdonald at that even though they could have convicted on other theories if we don't know that's not going to be good enough right well first of all you make two points in response that the first of that is right under a harmless error of your standard if you can't tell that is not good enough but we think that because of the overwhelming evidence in the section six six six count as to the undisputed official acts i'd like to get to that in a moment you can find  beyond a reasonable doubt that the jury convicted based on the optic counts on the undisputedly official actions and not just on the department of health meeting because to think otherwise you'd have to find that the jury divided up the out tech scheme into various different mini agreements this payment for this act this payment for this act as opposed to one agreement to do a series of acts the vast majority of which are undoubtedly official in only the department of health meeting is not but let me to quickly to the six six six point because the six count which was not charged in mcdonald it contains an element that provides an additional assurance that the jury convicted based on legislation and not on meetings and that is that the jury was specifically instructed that the value of the business or transaction that the corrupt payment was intended to influence had to be more than five thousand dollars now there was no evidence and no argument about the value of any of these meetings to the contrary specific ev meetings that has to have the value it's what the meetings are a back which was about was this it was this with the fracking and other meetings that would have been of have a value of at least five thousand dollars or more it wasn't supposed to influence that it in the abstract but then that's the fracking legislation is the business of transaction but here if the argument is that the meeting was the business or transaction that was not worth five thousand dollars and we specifically if there's a question as to whether or not the paint that making a phone call to it to advance the payment of monies that are already do and only does not involve a new decision bought a new official action by the county officials then then there is the possibility that the jury might not have been persuaded that the water a shoes and all that were for the official act because that legislation for various reasons was never an act it right so we don't know what happened with app tax which particular transaction or act the jury fo honor the defense counsel in the government at the trial made the centerpiece of the case the hostage email this is a quote from the defense closing argument this is the quid pro quo that they're talking about in reference to hostage email that's a twenty six eighty one and the hostage e mail was undoubtedly about legislation that said so in the text of the e mail it was an explicit threat to do or not do legislation that's trying to reduce quote from six twenty of the transcript and so throughout this trial the focus of the ad tech counted by defense's own admission although not in their appellate briefs for obvious reasons was this hostage e mail which was supported by overwhelming evidence and so you can conclude even if you have questions about the department of health meeting or even the call although we think that speeding up a payment is certainly an official action that even just looking at the hostage e mail alone that's a sufficient basis to convict and i'd like to quickly go back to the p r i and the glenwood counts and try to draw the distinction between that and the argument about the department health meaning if i may because the arguments were very different there on the both the p r i and the one with these were meetings that sarah scales personally attended with glenn was lobbyists with p three of the transcript running on to twenty five zero four and we said that is the quick i don't have the appendix page on i'm sorry i'm just using the transcript sites here but what we said was that is the qui ladies and gentleman adam scales would get money thank you your honor this is at the bottom of that page running on to the next adam scales would get money and in exchange the senator would help with legislation  made similar arguments in the p r i context at twenty five eighty seven of the transcript and other places and on both of those counts the argument was this that what was important about those meetings was not the fact that the meetings existed or were set up but rather what happened at the meetings the way in which the p r i and the glenwood employees and lobbyists would tell dean skelos here's what we need in the upcoming legislative negotiations and i don't and would say great now i need you to pay my son it was the corrupt bargain that was struck at those meetings there was no testimony from the even nomo or charlie to radio that what they were paying for were meetings they said what they were paying for was legislation so this is entirely different from how legislation to shape correct and in fact one of these meetings even happens up in albany in the heat of the negotiations over the rent control act of two thousand and eleven and to respond briefly to the point that you know you can't infer corrupt intent because these were core legislative positions that rent control act is incredibly illustrated in that fact there were two different real estate groups which were lobbying for different aspects of that legislation and i can break down the details fair on her but the key point is that revenue the group affiliated with glenwood got their priority the reauthorization for twenty one but the all rest say did not get their priority the keeping down of the rent deregulation threshold and so on the glenwood in the p r i count even if you were to find that there was an error in the instructions there's no reasonable possibility that the jury ignored what happened at these meetings and rested their conviction based on the meetings alone i see that my time is up if the court has no further questions will rest exactly that way first what i would say is if you look at what we're responding to in that argument responding to specific defense arguments about the man gonna call and about the department of health meeting but the statement that this is about every each and every one of those pieces of official action that is fully consistent with our theory and what i'm arguing to you now which is that these were as opportunities arise schemes it wasn't a one off agreement this payment for this vote this payment for this action they were for asked each team the defense agreed to do or else agreed to do a series of things on behalf of the person paying his son as the opportunities arose and so you can't divide up these into a bunch of sub agreements that wasn't the evidence that wasn't the argument to the jury and that's why we think that even as to the object counts where we have this argument about their partner of health meeting you can find beyond reason beyond a reasonable doubt that the jury convicted based on qui just like to make a couple of points first with regard to the government's argument about abhik i would just refer the court to page eighty seventy five eighty five seventy five in which the government argued the following dean skelos also asked his staff to set up a meeting with abhik in another new york state government agency the department of health about add tax involvement in fracking you saw the e mails in black and white in the end senator's o staff testified about this so the ad tech case is pretty much right there over and here before this court the court is saying that the case wasn't really over with the tech also on page  eighty five eighty one the court again turned to the meeting and went on for over a page but i'll just quote one sentence now let's go to the d o h a meeting because it's just devastating devastating evidence and yet now that mcdonnell has been decided the court would suddenly had this court believe that mr scouse is not even entitle to a new trial on that issue when the deal is the centerpiece of the case more broadly ask you for the site again on the first part that you have any five i just want be yes it's appendix five seventy five starting on transcript page twenty five twenty fifth i want to make sure i had page thank you and with respect to the broader argument in the other two schemes the government argues that these many summation are just about official action they're not about the quid pro quo and with respect i think that makes no sense because the whole concept of a quid pro quo means there has to be a quid in exchange for a quote and the whole issue here is what type of call camps and so when the government gets up and whether it's referring to one scheme or as in the pages that judge winter question the government about  appendix page five fifty six near the beginning of the first closing where the government went on and on about how the defense wants to you to think that things like setting up a meeting or making calls about a few thousand dollars don't it's wrong and someone and that it's no defense at all they're going to what is a quote and there can't be a quid pro quo without a quote so this is at the heart of whether the jury was given the proper tools to determine whether the evidence showed that mr skelos committed a crime and the jury was never help on the page has become sorry your honor i fifty six is trial transcript yes so five fifty six of the appendix starting at twenty four eighty seven line twelve and going to twenty four eighty eight line twenty but this is all it five fifty six of the appendix thanks twenty four eighty seven is page five sixty six said this is no defense at all it was focused on the quo in the jury was never asked the question did by because of the instructions and because of the way the closings were argued the jury was never asked to answer the question did the government prove that mr skelos traded his vote for favors to his son and that's the central question in this case and i respectfully submit that the court may well find the conduct distasteful or as chief justice roberts put it the mcdonnell case that case involved what he called a tawdry tale of ferrari's role x s and and so forth but he said that's not the issue and that's not the issue here the question is should a man be deprived of his liberty by a jury that was given an erroneous instruction and didn't have to find that he committed a crime after it was told over and over by the government after having heard extensive testimony that anything a senator does by the government that it's flat wrong to think that these meetings are not about official actions i see that a transcript pages twenty four eighty nine and twenty four eighty eight ninety nine but it follows immediately after that i met lines eleven and thirteen of page twenty four eighty nine these companies were not paying out of scale us to punch a clock for them at the office they were paying for it being skelos to cast his vote for them in albany and then twenty four ninety eight lines eighteen through twenty they were this is glenwood asking skelos to take specific official actions on tax breaks and other legislation those kind of posts that i just gave you throughout the government summation in the question is what do we make of those kind of statements in light of the ones you highlighted for us it's it suggests that at least with respect to glenwood in p r i the government did characterize the meetings as official apps but put them in the context of dean skelos agreeing to cast votes not just you know i said to give people an hour of these time why shouldn't that be enough to establish the harmlessness the government urges because the issue here is whether the government has proved beyond a reasonable doubt and whether this court can be virtually certain that this jury convicted on that basis when we have an invalid theory that was presented to them we have supreme supreme court case law that holds that where there's a valid theory and an invalid theory and if the court can't be certain that the jury rested on the correct ground that mr schell says entitle to a new trial maybe they can prove their case at a new trial and maybe they should have considered this when they fought for the overbroad instruction knowing that macdonald was out there but they didn't and they played this to the hilt and they said other things too but the question is should the man be deprived of his liberty without a that the jury considered the proper question you heard me ask the government with respect act that there were so many different events and official actions that can we really be sure what the government what the jury relied on but with respect to the glenwood in the p r i given the kind of interlinking of the meetings and the votes can you tell me how a rational jury could have thought that the meetings were  not the legislation well let me say two things in that regard one is i think when you look at the overall context here the effect the combined effect of the instruction the evidence that was given about how everything a senator is in his official capacity by multiple witnesses and these summation arguments that i've been focused on that that and you look at it then i think what the jury was essentially told and what a rational jury clearly could have taken away easily from the instructions in the combined effect of the evidence in the government's arguments was that they really didn't have to worry about official action because it was so easy to prove it was like a peppercorn and that's really the big problem here and i will say again and i understand that the court may not accept the sufficiency argument but i think if you read our brief carefully you'll see that that there was all the government didn't have a silver bullet there was no real evidence that mr skelos was making clear or asking anyone to do anything in exchange for his vote and the fact that he had these long standing positions it's just extend it very persuasive evidence that his vote was enough for him because everybody knew he was going to vote this way anyway but i think really the big issue is that this jury was as effectively told not to even bother to think about this official act because it was so easy to prove and that's the problem  legislative commitment that we again dispute actually happened but but taking it argue wendell that adam scholars had any knowledge and so what they're saying here is well what they say in their brief is all that's a detail government that was the government's there you didn't have to know which bills which pieces of legislation why is that i don't see where that that was even made to the jury that they didn't even make the case of the jury that it was legislation in a generic sense or in entertained and he didn't say a word that you're entertaining about well he didn't show up at work or he was surly at work or he was overpaid for the same things were said and b arjen frankly there were also said in that mcdonnell case in the supreme court said we don't have any of which is your favorite metaphor you know for the scalpel over the meat cleaver or the net is too big the net is too big you're under these people and out of skeleton situation thank you very