ready to proceed with the motion criminalize criminalize conduct arising in a strictly foreign employment relationship is as best we know unprecedented and raises at least three substantial questions on appeal which i'll describe in a moment here on a bail motion the court below clearly erred in remanding mr newt after trial in light of the extraordinarily restrictive conditions placed on his bail and the significant amount of security posted with respect to the three pellet questions arising from the use of the honest services wire fraud in this context first as this court recognized in united states versus  lingering ambiguity as noted by justice scalia in his concurrence and scalia as to the legal source of the fiduciary duty under section thirteen forty six the government argues if i understand their argument that this is a claim being raised for the first time on appeal so to answer to that your honor first even assuming it was mr putin meets the clear or i'm sorry the plain or standard but in this case throughout the course of the proceedings preach trial during trial and post trial there were a lengthy discussions about the source and nature of the fiduciary duty in this case and foreign law and whether or not the defendants understood that the conduct in these foreign countries in the context of their foreign employment relationship was illegal and whether they acted in bad faith or good faith with respect to their conduct i can point your honour's to a number of places in the record with these come up in appendix thirty one the court itself says we are in very undefined post skilling territory at the government's appendix to twenty one to two thirty one there is a lengthy discussion in the context of proposed proposed jury instructions as to what the source of the fiduciary duty is whether it's clear how to instruct the jury on it and in which the court says there are cases suggesting it's defined by federal or state law or  others and the court doesn't think that the law is as clear as it can be on this issue during the course of that colloquy had the government concedes that produce your duty as a legal concept and in at appendix one forty five one forty six foot notes six and seven although admittedly in a post brief the defendant cites both skill the justice scalia's concurrence in skilling and this court's decision and how around the issue that's raised by justice is that it is undefined what the source of the fiduciary duty is under section thirteen forty six this court recognized it continues to remain a lingering ambiguity in those cases and in other cases it was of no moment it wasn't unconstitutionally vague as applied in those cases because it was undisputed that in the context of a us based employment relationship it doesn't matter whether you look to federal law or state law there are indistinguishable and it's a recognized concept that there is a legal source for the fiduciary duty regardless of which one you choose in this context where you have a strictly foreign based employment relationship whether s federal law or state law cannot be the source of the fiduciary duty it must be the local law where the person was employed and where the foreign employer is based in our case that would be apparent why there is nothing in the record there  this as a purely foreign matter in all respects the bribes taken when they were legal are not legal under paraguay and law and so on is happening and the relationships that were the focus of the prosecution as having no nexus with the united states government responded that your client in the coconspirators maintained bank accounts in the united states to pain receive bribes in connection with the schemes and for you th financial system to further the charge conspiracies focus also on still broadcasting another commercial rights in the united states can you comment on why that isn't a persuasive argument well yes so i think the issue the government raises there is in the context of the extraterritoriality argument and so address that and then come back to why that that doesn't impact the void for vagueness argument with you were with respect to the record that the government cites as being proven the issue there is what is for extraterritoriality purposes and i see my time's up if i may answer just finish my answer your honor's the issue after our g r nabisco is what is the focus of the themselves and in that case the test that they said was if you look to the territorial events or relationships implicated by the focus of the statute this is an honest services wire fraud statute the relevant relationships and events are where is the fiduciary duty arise here it's clearly overseas by a foreign employee of a foreign employer where did that employee breach his fiduciary duty by entering into an agreement to take a bribe in exchange for an official act that also was clearly that relationship and those are the key events implicating the statute the fraud is overseas and you take one moment and address that flight risk pronk of our analysis sure in the abstract it's hard to dispute that in any case the farther you go along in a criminal proceeding to conviction to sentencing flight risk may be enhanced but that's a necessarily faulty assumption in the overwhelming majority of cases because in fact most defendants won't flee in those circumstances the issue here is unlike most cases as the government could seize there were extraordinarily restrictive conditions place which were not only entirely effective for two years there is no reason to believe they wouldn't remain effective at their changed circumstances right that's what judge chin talked about and it wouldn't be in a better position than we are to determine whether or not those change circumstances alter the mix of facts that would determine whether he's a flight risk no your honor because the only change circumstance relied upon by the court below is the fact that mr coote was convicted so that issue your honour's are no less qualified to to address than in the court below there were no change circumstances other than a conviction itself as to the person involved mr putin or the effectiveness of the conditions that were in place but she sat through a trial with him she's seen him in court she knows presumably more about him at least based on that than we do right hard to dispute that's that's true and that's what the case law says but that that is not what she based her decision to change having bail to remain and she she based it on the fact that he's now been convicted admittedly faces a lengthy sentence but the conditions haven't changed where well and that's what the statute reflects also there's a presumption of detention after conviction there is no doubt a presumption of the tension the issue here is unlike almost any case that comes before you for bail the conditions placed on mr putin were an onsite security guard outside his door meaning he could not leave and when he could leave as approved by the court he had to be escorted by those security guards video surveillance twenty four seven of the entrances of his apartment so that even if somehow he he escaped the guard it would be seen by the security company on video voice i and at times he had g p s monitoring and in addition he's got sixteen million dollars of money or assets posted for bail so there's this there remains a significant incentive not to flee and there's just nothing in the record to suggest whether he's convicted or before he was convicted that those restrictions can possibly allow him to flee  good morning your honour's may please the court sam its assistant united states attorney and i was on the trial team below the district court's denial of bail pending appeal is correct under both criteria under section thirty one forty three and if i could i'd like to focus for a moment on the question your honour's asked towards the end of mr weinstein's appearance before you with respect to risk of flight the defendant's arguments framed as though we are still in a pretrial context that there is the same risk of flight and the same burden that is that it is the government's and the court's burden to establish a risk of flight and in fact that's that's not where we  are as as you mentioned judge sullivan we are post conviction post sentence the burden was on the defendant below to establish by clear and convincing evidence that he was not a flight risk now with respect to the conditions that were in place pre trial under the bail statute those were they were restrictive conditions but the least restrictive conditions that would assure his appearance so given the risk of flight pretrial which the court found these were the conditions that would assure his appearance upon conviction as recognized by the case law and by the statutory scheme in the burden shifting the risk of flight increases there is additional risk of flight and so to argue that well the conditions that were sufficient before must be sufficient now doesn't address the increased risk of flight that is present when a defendant faces a significant term of incarceration i would also note that the the long the circuit and other courts is clear the court is not required to recreate in effect a prison outside of a prison in the defendant's home to permit a defendant to be out on bail and so while it is true that there were security services and twenty four seven monitoring there are risks inherent in those arrangements there to paraphrase believe it's united states v millon from this circuit hundred three case they at best elaborately replicate a detention facility without the confidence of the security that you have in a detention facility i would also note that one there was some evidence of the type of risk that is present when you're relying on security services and the like in the record here and it's a government appendix to eighty six and in this case there the government discovered that the point of contact with the private security firm the person who was this in theory a neutral representative of a firm meant to monitor the defendant's whereabouts had been hired by the defendant to be a part of the defense team and in fact had signed a protective order governing sensitive discovery in the case such that that person could review discovery does to the defendant want to overstate the significance of the point but there is a conflict inherent where you have a security firm supposed to monitor the whereabouts of the defendant also working on the defense team but the point is the district court was not required under a burden with an increased risk of flight which the the district court found based on the sentence to say the conditions that were present before are good enough now there's no there's the really nothing been offered as a basis for finding that holding clearly erroneous so just on the first  analysis alone the the bail application should the appeal should fail if i might just turn briefly to the due process argument also the due process argument first of all was forfeited below it was not it was not raised below and so plain error of view will be the standard of review on the merits counsel for appellant references discussions about foreign law it's true there were some discussions about foreign law references the fact that in fashioning a jury instruction as to what the fiduciary duty what the jury had to find with respect to the fiduciary duty that there was some reference to  on the subject but there was no argument ever that there was deficient notice as a matter of constitutional due process in this case it was never resolved or addressed by the district court and to say that a reference to foreign it captures that misses the point of playing a review which is that the court below deserves the help of the parties before it to raise issues that need to be addressed so that the district court has an opportunity to  the second argument that the defendant was prevented at trial from addressing foreign law putting in evidence of foreign law to his prejudiced yes so that that argument that the defendant proffered certain evidence as to foreign law and wanted to offer that evidence that it's important to focus on the purpose for which the evidence was offered and how the court handled it it was offered to support an argument that if we could show that the defendant believed that commercial bribery was not criminalized in his home country we might also then urge an inference that the defendant didn't understand in the context of his duties to his employer that it was not ok to accept bribes and the court was skeptical as to the relevance but under took a conscientious balancing under four of three and the andor here is that her ruling has to be arbitrary or irrational to throw it out and the substance of her ruling was based on the evidence proffered so far which is you would like to cross examine and arjen time bookkeeper who never had much contact with the defendant and a brazilian witness as to their understanding of the law in brazil and argentina you would like to ask those questions and then be able to say because in arjen time bookkeeper believed his conduct was not criminal in argentina it stands to reason my client thought his conduct was not criminal and parent why and therefore further my client would have misunderstood the the thrust of the duties he was under that he himself approved and the court said while that is barely relevant such relevance as it has is outweighed by the risk of unfair prejudice and it's important to emphasize the court did not say you may only establish this through your testimony rather it ask the court asked what else do you have this is that government appendix two zero six and two zero seven the court says i just want to make sure i'm understanding you correctly you are asking to cross examine an argentine and brazilian witness as to their understanding the defense said nobody offered anything else and she said that the probative value such as it is of that  of evidence is insufficient to outweigh the prejudice that would come from a the opening of the door to the government introducing additional types of evidence not both as took the criminality in the domestic country but also as to knowledge that this was a sin or on morally reprehensible conduct newspaper articles fifo proclamations scandals that have to do with corruption in sport to show that whatever their view of the criminal law might have been they surely understood that this conduct was wrong and then there was another element of the forty three analysis which was the risk of jury nullification and there even defense counsel representing a put was unable in articulating the basis for putting in this evidence before the court it was kept wandering into an argument that basically said if it's not a crime in paraguay the defendant could not have violated conspiracy law in the us and the court did a proper balancing rejected the argument thank you thank you