they had proceed yes good morning iran has made please the court my name is jonathan adelstein i have the honor of representing the defendant the pellant of madame your honor it is the defendant's position that when a foreign law is used as a predicate for prosecution in an american court it's subject to american constitutional limitations including the prohibition against vagueness and that in this case where the guinea and statutes in question require a quid pro quo in exchange for quote an act within the scope of his or her meaning a public officials functions or job unquote that these standards of vagueness are set by the mcdonnell case proposition that if the jury's instructed on official acts such an instruction has to conform with mcconnell well which it didn't in this case but mcdonnell is not only a rule of jury instructions it's a rule of you know what constitutes the crime and what doesn't what acts what official acts are official enough to be within the scope of the crime and which ones are not and we've raised our constitutional analysis if the case involves money laundering i mean i don't know or certain degree of comedy or respect to the decisions of other countries at all so i might also  just ask you whether you think the good and government might be somewhat surprised that we held their statute unconstitutional well your honor first of all the mclean case statute is only the predicate which means that you know america that this is taking place in an american court and it's subject to the united states constitution and the mclean case held that mexican law yes well yes and again it's this court determining rather than a guinea in court and i would submit that's the reason why american constitutional limitations do apply you know as in the mclean case which construed mexican law under american vagueness principles and in addition i think that this court should be wary of going but you know going further than guinea  issue of whether it what he did here is who is or is not a crime does go back in part to the guinea and law and it goes back to good analog what you're saying and laws is unconstitutional o their proper to follow so we discuss whether whether your client committed a crime i think that the mcdonnell case really renders it irrelevant you know whether all of us here in this room think of what he did as bad you don't need a good name statute to prosecute for money laundering here if what he did was the proceeds of criminal activity well what he did was millions of dollars and then and it was concealed as to how it was delivered to him you know order to facilitate the the mining deal that was that he was he was truck that the chinese wanted well the underlying act though is not a crime in the united states i mean all of this took place off american soil this next place in guinea but nine hundred fifty six specifically contemplates the possibility of a farm bribery scheme as an underlying predicate act yes but then it has to be a crime under the relevant foreign law and and let me ask you about that just a follow up was there not expert testimony and there was no testimony at the trial because basically the parties agreed on what that affidavit said you agreed in those it was not rebutted and that purported to interpret what article one ninety two in article one hundred four covered the conduct correct correct and the interpret and the language in which it set forth articles one ninety two one hundred ninety four was very similar to eighteen u s c two all one part of your argument is that this can be an official act correct as contemplated by mcdonnell correct or that so if that's true why is it why is it the case that some minister of mine initialing shareholder agreement is not an official act because the testimony made clear that in the circumstances of this case he was not the one who approved this he was not the one who signed it and and he was not the one who drafted as why isn't that an official act so if a congressman receives some amount of money from whoever and as a result of that science something or initials a an agreement on behalf of government why isn't that an official act even in the us i think there is a difference between signing something which means you are officially approving it and initialing it which means you're there and maybe undo some circumstances i apologize for talking over you your honor may be under some circumstances initialing could be an official act but under the circumstances of this case as testified to by the good guinea and officials who were government witnesses the initialing was not an act of approval by mr t m because it had already been approved by the president who was a testimony in the record that said that initialing something in guinea constitutes an agreement as opposed to what constitutes an agreement i'm saying that he's the minister of mines and he's initially the  l and then it's goes on for approval elsewhere but with his blessing giving his blessing by signing his initials to it it seems to me is an official act as well if there were testimony in the record that initials mean a blessing in guinea which none of these guinea and officials even those who testified for the government provided and certainly even if  i think that the were inner workings of the military government of guinea in two thousand and nine is not something that's generally known and that a jury could infer in the absence of testimony about how the guinea  government worked it specially since the testimony in this case was the opposite that this was a very top down autocratic government no one's blessing was necessary but the president and even if this court were to conclude that this you know that that was an official act or that it might be one that still comes back to the jury instructions where this court held in silver and skill owes that even if an act might be official this is something that  properly instructed jury needs to consider and in this case also the government in their summation urged conviction of mr t m not just because of the initials or even because of the singapore trip which is discussed in the br but because of e mails and you know standing up and saying this is a good thing that matings which the mcdonnell court has held not to be official and just one other question well yes case statutes specific as to to one of the bribery statute and focusing on that and what was required that particular case and and and has haven't there been other cases that have have dealt with six and it was other statutes that have been as to which have been argued that has been raised and rejected because it was confined to its circumstances well your honor i would actually submit that the dividing line was provided by the suitcase in the eighth circuit which is cited in the brief which says that in that case finding that mcdonald did not apply where a statute did not require quote a meeting of the minds about an official act so i would submit there's your dividing line meeting of the minds about an official act and the guinea in statute here which is worded very similarly to to all one in terms of an act within the functions or job of a public servant does require a meeting of the minds regarding an official act and then in addition that the mcdonnell court also applied many extra textual relating to the jury instructions rely on the incorrect presumption that mcdonnell applies here mcdonald does not apply mcdonald first of all relied principally on a close reading of a particular statute  six which has different taxed in a plot it declined to apply mcdonald to to a state court bribery statute which was being applied in that case through through the travel act so yes your honor this court has said by implication you say yeah i said i suppose so i mean the courts explicitly what i'm asking is have we directly sent the mcdonnell is confined to certain statutes that word issue in that case and  t not any broader than that your honor i think it may have been implicit but i but it it's relatively clear from from a reading of boylan that that's i think the question is  s we actually said well no you don't have a direct case that that actually says that maybe that should that's where you maybe perhaps would like us to hold in this opinion those cases even though the same concerns being raised here regarding constitutional concerns about mcdonnell were urged on the court the court nonetheless upheld those those that shoot as interpreted none of the in addition to the fact that mcdonnell is a statutory interpretation case it did rely on some constitutional concerns however none of those concerns are applicable here there is no concern about the sort of the democratic concerns of the federalis  value being exchanged for actions within the scope of the job functions or position of the official so there's nothing vague about that and even if even if there was some element of vagueness vagueness challenges as the has pointed out needs to need to be as applied in this case there's no i think there's not really you know hypothetical discovery because i'm trying to ferret out exactly what it is that the government wants so in this case the government governor moved for the court to instruct the jury on far law there's a provision federal rule of criminal procedure twenty six point one so just hypothetically what would have happened if the defense  disagreed and had put in its own affidavit and there was a dispute about the in the context of a criminal case dispute about what article one ninety two and one ninety four cover in that case the court i believe there are cases that say that that's a matter to be decided by the court as a matter of law and the court would have had to choose between one of them and then instruct the jury appropriately it's a pure or legal matter that's correct  question or matter before minutes that was that issue at trial here which was whether the canadian government was going to enter into an agreement with the chinese conglomerate and all the acts described by the describe during the trial including the initialing of the shareholder book on well beyond that including the e mails that mr chalmers sent in furtherance of that including the ministerial meetings which were proved up are all official act s and and we know that because of the expert no your honor that because of what we know that because when you look at the acts and you look and you evaluate them under the stand fourth a macdonell and the prior presidents of this court they're all acts that are in furtherance of the of this decision to enter when you refer to macdonald and you're telling us that we don't somehow has an effect timing the fact that it was just two weeks prior to the entry of the shareholder agreement minister opened up a bank in hong kong bank account in hong kong and received three million dollars from the chinese conglomerate repeated lies to the appellant has made certain evidence sherry challenges those were all the reviewed for abuse of discretion and judge cote did not abuse her discretion with respect to any of those back to the initial question about one hundred fifty six of the statute the fines specify the unlawful activity as among other things an offense against a foreign nation involving bribery of a public official running yes and that was the theory of the government that this was a form of bribery of a public official director or is there more of a definition of bribery that i can look to your honor there's a footnote in our that when we look at that and i think i think those cases actually apply in the travel at case but they would be equally applicable here it's a generic to the definition of bribery what would commonly have been understood as bribery and so these what is that how do you define bribery as it's specified in the in the money laundering statute i believe there is there is a second circuit case that we cited in again in that footnote  and i believe that that case made reference to the fact of required of a generic definition in with respect to the travel act and how the statute is laid out in the travel act and i would just say that there very briefly around a first of all the oil in case involved six sixty six a one b which proscribes acceptance of the payment in exchange for being influenced or rewarded in connection  with business or transaction of an organization government or agency in connection with is much broader language then within the scope of war on an official act and in fact in boyland the parties agreed that no official act was involved in this you know that there was no official act standard whereas in this case the jury was instructed in terms of an official act and in this this court did apply mcdonald to another section of six sixty six and the boylan court itself applied mcdonnell to hobbs act extortion so i think that the case law is clear that this is not two on one specific that the mcdonnell applies to in general to cases involving bribery in exchange for official acts in terms of the government's contention that one problem with the  promote a company that would normally the governor might want to promote but but and it was a constituent favor that way as opposed to an official  official act here i don't see any of that context doesn't apply at all i mean you're not saying that somehow the chinese room were constituents of the ministry of mines in the sense in the mcdonald's sense well one of the services that a minister of mines does is to bring mining and economic development to his country his constituents or the people of guinea he is bringing a chinese company and to help develop guinea general and in theory to have the trying to come in and take eighty five percent ownership of their mines that that that that satisfies the constituent aspect of it well fifteen percent is actually a pretty standard government royalty in these in these deals including subsequent deals by civilian governments of guinea but i would note in also that in both the  cases the payments were not made by people living in ski low silver's districts that these were not people who were voting for skill low so the silver who were direct constituents of skill osa silver's so i would submit this court is not applied that as narrowly as the government would advocate and yes i would say that bringing economic development to guinea just like government governor mcdonnell wanted to bring economic development to virginia  is one of the situations that this is intended to cover and finally if i know i'm out of time or congress was explicit and decided to draw a larger statute to one or one  well if there were a guinea and statute that said you know meetings and e mails and making phone calls it is an official act or is punishable then and i think that this court would have to apply that yes in the affidavit discussed it in language that's no more definite than two on one an act within the scope of a public official function a job that's really no more definite than official act and i know thank you very much