masha i represent the defendant broadfoot court of i'm going to argue the second the sentence issue that is presented in our brief as the sentencing there appear to be two major differences between two thousand and eleven the first sentencing and two thousand and sixteen the the second sentence the crimes for which the defendant was convicted are different in the man before the court in two thousand and sixteen was different  united states the allegation was certainly the centerpiece of the government's case in the courtroom and attracted a great deal of media attention outside the courtroom court's this court's opinion it remained in that it would be impossible to think that that was not the case that was in that that charge played a major role in the case at the trial even in th case most people are attesting to the defendants post defense rehabilitation and whether it's in prison or out of prison or someplace else it is an important factor that the court must the post sentencing rehabilitation may be of a mitigating factor not that is invariably is i don't think it's a question of may or virtually as the former governor and his activities the government argues that it's not germane there's no case that says it's not germane thirty three five fifty three does not say it's not germane it is an important factor in the sentencing in two thousand and sixteen and should repent consider when we say the word considered i don't mean merely dismissing it or merely mention it basically judge that will dismissed it i'm going to mine it's leonard goodman i also represent rob because of it and i'm going to respectfully ask this court to revisit the issue of the jury instructions it's undisputed that the language that the government added to the good faith instruction after it failed to get a verdict i'm any public corruption count after at the first trial misstated the law it told the jury that in the context of this case good faith means that the defendant acted without intending to exchange official actions for personal benefits the jury was also told that personal benefits included any prospective employment or salary this also included the health and human services job which this court in its prior opinion found was bona fide employment and therefore it could not be a bri under the honest services fraud of the bribery statutes and it was not transferable property and therefore it could not be the object of an extortion the government's instruction was erroneous it to effectively told the jury when deliberating on every count with respect to mr magoon with respect to the request for fund raising from john johnson and deliberating on every count government the jury was directed to find the defendant did not act in good faith or as the government repeatedly told the jury during closing argument once you find that he tried to get that h h s job he did not have good faith of course the h h s job was something that because of its never denied attempting to get you simply cannot call a trial fair where the judge was instructed with the jury was instructed to reject the defendant's defense based on conduct that we all acknowledged was lawful it would be analogous to in a murder case directing the jury to reject the defendant self defense defense based on unlawful conduct such as the possession of a weapon or in a drug case to direct the jury to reject the defendant's and trahant defense and find that he was predisposed because of his prior lawful possession of narcotics for example with the prescription this court would not allow those convictions  stand and it should not allow this one to stand he's entitled to a new trial as much as nobody in this courtroom wants to see a third trial he has been titled to a third trial i would like to just briefly discuss the mccormack instructions because in the prior decision this court stated that the the jury instructions tracked mccormick it's our position that that was in a roni its decision not have to masquerade the real world or correct it does not have to be expressed it has to be explicit and as we saw a state in the british the difference between expressions explicit express means spoken out loud explicit means it has to the jury has to find it in fact there was a promise it could be done as your honor correctly stated it could be done with a wink and not but as long as the jury finds that there was an explicit promise with the blagojevich to rule was told is there just needs to be a connection if he knew that his request for the magoon fund raising the only reason mr mcgoohan was going to raise money for blagojevich is because he wanted the rate increase there's no question under the court's instruction he was guilty of that under of mccormick was not guilty because he never made an explicit explicit promise to to raise the rates for the doctors in exchange for that so it's a different standard it's a standard that's an appropriate standard if you're asking for bribes if you asked for a bri if you asked for money for his children's college fund and he knew that the reason person was going to give him that or that loan or that ferrari or that rolex watch was because of some official act and he's guilty but that's not the case for campaign fund raising there is a higher bar and every single court that has looked at that has agreed that the mccormick explicit promise rule is still the law of the law and even after evidence and we've asked this court respectfully to take another simply found that the the part of the reason stated by the defendant for a lower sentence just did not satisfy him that a lower sentence was warranted the judge was carefully discuss each of the arguments that was written that were raised discussed whether the the law or the or the crimes of which defendant was convicted were materially altered by this court's decision and as this court itself found and stated in its decision there the guidelines did not change as a result of the dismissal of the five counts and because there was sufficient evidence to convict the defendant of the dismissed counts based  relevant conduct so the court properly found that for sensing purposes the crime of which the defendant stood convicted as we sensing was essentially the same as the crime that he stood convicted of at the original sentencing with respect to the the second argument that the defendant was a changed man the district court properly considered that argument and just disagreed that that was the case you know i way he behaved as as as an office as a public office holder but isn't that always true of the individuals who are often true of the individuals who can speak  instead of responsibility and his effort to turn his life in a different direction with respect to the court's comment about the the limits of the comments made by the prisoners who wrote letters i think what the court was focused on were the specific comments made in some of the letters regarding the defendant's nature and character because some of those letters represent you know purported to make judgments about his overall character and i think that that's what that that specific comment by the juror the judge was mostly directed toward yes it's true that the issue of post sentencing rehabilitation is is one of the present tense what is the the defendant like now and i think what the what one thing that the court was saying was that i don't think that these these letters from prisoners are necessarily reflective of the whole man i think that was his point specifically with respect to how those letters did or did not establish that the defendant had engaged in extraordinary sensing rehabilitation such that it would warrant a requested reduction of a sentence by two thirds the government argued and and the judge to agreed that this these letters did not establish anything like the kind of extraordinary be ability ation that would have warranted that request that was being made and with respect to specifically with respect to accept responsibility i mean as the as the government argued in the district court and here and it's brief in fact none of those letters reflected extraordinary acceptance or acceptance at all there nothing in any of the letters in any of it and in the allocution by the defendant every sentencing in his counsel's arguments there's nothing anywhere where that where the defendant says you know i apologize for putting my own personal interests ahead of the interests of the public i was charged with serving there's nothing there's no where in the ball i spoke of making the state the distinction that we would make is that there's there and there's a big distinction between saying that he made mistakes and misjudgments and saying that he committed a criminal offense with defendant has never denied and of course this is it's you know it's his privilege not to responsibility for the crimes i mean you can do that all the way to the supreme court it's his privilege to do so and to be absolutely crystal clear the government has never done this and we don't now request that that the defendant suffer for having made that decision and how her acceptance of responsibility is is often thought and properly thought of as a prerequisite to leniency and here what you have is a defendant who's denied at the crux of the crimes that were committed because the crux of the crimes are his quote unquote how he began his allocution his words and actions the crux of the crimes are his intent what he intended to do that's what i mean that's the whole nature of the good faith argument and you know it's that it was the only issue that was really in question during the whole trial and the defendant has never accepted responsibility in that sense and any talk of making amends make amends for what he still has an admitted the crimes that he committed nor has he in any way address the harm that his conduct cost in delaying the reimbursement to the increase in reimbursements to pediatric doctors into laying the pay overs to the race track owners in the end delaying the appointment of a senator for the state at a very important time and maybe morris most important of all in you voting further eroding the public's trust in public officials in the state which is you know was already exceedingly damaged by his predecessor and many othe with respect to the the issues that have been addressed by this court before as the government argued in its brief the government suggests that the those are not properly before the court and they should not be reconsider d the if a court were to could reconsider them the government would urge the court to reach the same conclusions that it reached the first time the jury instructions were not improper and with respect to the specific argument that they pressed naturally included the counts for the conduct that that this court determined were not properly included that is exchanging the senate seat for the cabinet post that that problem has been cured by this court's dismissal of the counts that really are vacating i guess of the counts that related to that conduct even though those counts all related to other conduct as well and so with respect to that there's no impediment or no problem caused by those jury instructions with respect to the other counts as this court previously h likewise there's no there's no issue with respect to express or explicit this court fully address that issue and i'm not sure that i understand it now but just just in case i do need to clarify it is not undisputed that the jury instructions provided in this case were were contrary to law the government disputes that that the jury instructions were proper they were they properly told the jury what the law  the law that they needed to apply and the court previously found that there was no problem with the jury instructions except with respect to the counts that this court determined needed to be a kid and you know public office holders and candidates for office are under enormous pressure to constantly raise campaign fund a legitimate distinction to be drawn between an official who steps over the line in his campaign fundraising efforts and one  favors that enrich him self personally rather than his campaign no especially in this case that i'm sorry i would the answer that i would give is no but especially in this case in reality what what is is illegal here is not just campaign fund raising and what went on here was not just campaign fund raising what is illegal is the exchange of official acts for campaign funds or other benefits there is no distinction to be made if there is a quid pro quo as there was in this case this wasn't this wasn't a murky area here that evidence demonstrated that the defendant purposely withheld public official action that he actually intended to take at some point in order to obtain campaign funds with respect to the race track and the hospital and purposely solicit solicited or set out to solicit campaign funds in exchange for the appointment of a senator there this was explicit in every pass in every possible way that that is necessary i mean it was absolutely explicit and this defendant made it crystal clear that he was operating on his own benefit his own words prove that beyond any doubt and in this particular case this defendant had no intention of running for office and no intention of using those campaign funds for campaign purposes  his words also made clear he and the defendant said the focus of this operation like the focus of our operations is personal political personal legal political legal mean how to avoid getting indicted personal meant how to put myself in a good position a monetary only and political meant how to get that how to put myself in a position where i can get back in the game if i should ever want to  reality here is that the defendant when he spoke those words had already used his campaign funds for personal criminal defense purposes he had used them for pay defense lawyers at the time that he came into li of the f b i when he was interviewed in two thousand and six and then of course he went on to use those funds for the same purpose when he was indicted in this case it's not accurate that the defendant would did not have in mind when he spoke those words campaign funds could be used to benefit him personally and the district court certainly did not abuse its discretion in determining that that was the case and determining that this was not a case as the defendant was argu sentencing where what was left here were charges that were limited to legitimate maybe slightly overzealous campaign fund raising as opposed to extortion fraud defendant was convicted of these crimes and the district court was absolutely well within its discretion to determine that that had not changed because it hadn't now the reality here is that the defendant has been operating on a basis of plausible deniability and that that is what he has attempted to put forward from the beginning to the end and it was not of use of discretion for the district court to just reject that that court considered all the arguments and properly determined that the same sentence was warranted that that there were there was not enough change to warrant a change in his in the sentence in his says that the letters did not express an overall character change but letters did not reflect extraordinary rehabilitation if judge they believe it said that i would not be here but and in doing that he did something that was extraordinarily different than the man that faced the court in two thousand and eleven he taught respect for law expect respect for the correctional system and that's important thank goodman would like to address the two points first he's going to meet she states that forty to the government there is no problem caused by the jury instructions with respect to any other counts other than the once this court reversed the fact is your honor the jury was told with respect to every single count that each must find at the fended did not have good faith if he tried to make any deal involving any job that paid a salary that was a misstatement of the law it directed the jury to find that he had bad faith with respect to its deliberations on every single count that instruction was read three times it was the government's theory of the case it was wrong is this court pronounced in it has disagreed including this court in giles where this court stated it recognized that a higher bar is required in campaign contribution cases in fact this court stated to distinguish legal from illegal contributions it makes