to touch on both of them in one time first the jury instruction issue this was a case that was almost tried on stipulated facts all of the relevant conversations were recorded or almost all of the jury had the transcripts the parties at the so there wasn't any real question about what was said the the real issue was did this discussion in there also just to be completely candid with the court there wasn't any question that mr colorado and his son and his accountant mr secure were talking about bribing judge sparks there was no mystery about that the question was whether these discussions between mr colorado and her son and his accountant and between those two and the two undercover officers who were posing as intermediaries whether those discussions rose to the level of an offer or a promise that was really the only issue in the case and it was argued vigorously from what you're right through closing argument and the issue here is whether the jury should have been instructed not just on the bare language of the statute whether there was an offer promise but on the meaning that this court ascribed to those terms in the her we requested that instruction and although judge walter expressed some doubt about whether it was a correct statement of the law the government doesn't seem to be making that argument on appeal the real issue that the government seems to be arguing convicted of conspiracy any sort of bribery offense yes and you ask for the instruction on both counts yes why would it apply to the conspiracy count because you want this instruction that mere preparation isn't enough understand whether there was that kind of agreement you have to understand what the underlying crime consists of and if there was merely an agreement among mr colorado and the other two to explore the possibility of bribing judge sparks that would be a conspiracy to commit bribery on the other hand if there was an agreement to make an offer whether or not an author would never actually made then you have a crime and so in that sense the the so instruction on the substantive offense was important to both counts and i will say around and they're saying the evidence was there was just an agreement if anything to to feel them out and see if maybe there was some possibility but never actually well that was certainly the argument that we made at trial and i think there's plenty of evidence to support that you know i'm not saying the evidence is insufficient on offer a promise even under her news we're not making sufficiency of having a good but there was a real question here whether this were not saying the pattern instruction was wrong it was fine instruction and we didn't have any objection to what we asked for was that it be supplemented with a with a further definition of these terms and you know that the judge as part of the better destruction explained official act he divined official act to define public officially defined several things that weren't really in dispute in the case but the one thing that wasn't the speech the real heart of the matter didn't get a definition and as and and and in fact the one time i did get a definition was when the agent testified you know the judge walter sustainer objection but the agent managed to get out before we objected and stopped him that entrances as vigorously as we wished and so as the prosecution but this court has said a number of times it was like those cases and i reply very that argument is no substitution for an instruction and that was the problem we have here it was not only did we not have the the instruction we had course the government arguing its view of what we was required for over promise and we had agent pain pain is hunky to testimony to the effect that mere discussion was enough in the mere discussion  but the wind between those two which is of course exactly what hernandez was exploring was was critical in this case it was all all the case was about really from start to think so we we have here a instruction that correctly states the law it was not substantially covered because there was no definition given in law for a promise and it was it went to an important issue in the case and partly because it went to an important issue in that case i would argue  it's not harmless error to do refuse this instruction in fact part of the reason judge walter declined to give it was that it would be so powerful he said it's almost like having me direct a verdict of not guilty i think that was a bit of an overstatement but it was certainly crucial largely because there doesn't seem to be any law there is no case law that is directly on point there's no rule that clearly governs that rule twenty one c i think gives us some support that it's not definitive it is a  requests so there was no issue of venue for example that's something the government has raised we waving so there was no question about the new being proper in the western district of louisiana once the case got transferred there it was transferred and the only authority we cite for this is professor a my professor a wonderful professor but you know he's not a case and he's not a he's not who the case was transferred for all purposes and i think as a practical matter that has to be the rule it just doesn't make sense that a case can get transferred me here geographically it wasn't far of the prosecutor stay the same of the judge to the same in a lot of times in these cases they get transferred from say and i'm going to talk about one of my own cases is pending right now  northern district of ohio to the northern district of california went to transfer there's a new judge and a new set of prosecutors it just doesn't make sense that the a grand jury back in the northern district of ohio good just turn around one day and issue a new indictment  another and the fact that the judge had to transfer that percentage of suggest that in his mind at least everything was happening in the western nutritive louisiana and leslie took some affirmative action to change that and as you say there's nothing clinton is no rule that clearly prohibits or authorized that there's no authority directly on point so why don't we just look back at the the whole purpose of the grand jury which is that a local grand jury indicts crimes in that community that's why as you know in the indictment says on this date in the western district of texas this crime occurred what's the problem with having a western district of texas grand jury make that determination of whether a crime occurred within the jurisdiction well  a sort of a broad policy standpoint maybe that would be ok except that i think as i mentioned before there's a real potential for for  if you have two grand jurors because presumably bantering the western guest of louisiana good about that as well she's got now two grand juries that are empowered to act in the same case but they would have had a legit happened in the western district of texas right because that's where the crime happened yes yes i think they would have but as a logical matter once the case is transferred it should be transferred for all purposes this cage would not transferred for all purposes he was transferred for trial on his on tuesday and that on all pretrial litigation was it with the one exception of the superseding indictment everybody ling was in the west and just to louisiana every pretrial hearing was in the western a few louisiana and setting would have been in the western district of louisiana had judge walther not taken the affirmative step of in a hurry in order transferring it back to texas so i think it i think in everybody's mind it was transferred for all purposes and then there's just this question in judge cast of i think that's a good point i'm going to try to see other than ice i understand you have the technical once it was transferred there is no jurisdiction but what's the reason a grand jury in austin or san antonio austin couldn't have indicted soup this case again you were going to be tried if they hadn't superceded you are going to be tried on a case indicted by an austin grand jury right we were i mean now the other supersede cheating in significant but as a policy matter and as a structural matter i do think it's important because just take my example involving the northern district of ohio the northern district of california as far as everyone knows that case is now fully pending in the all purposes and in this case i think once the order was entered it was the western just the easy way out of a convenience all the witnesses here in texas and the people in the jail and who ever testified at the grand  witnesses are located there be one consideration well it might be your honor although that's not what drives the location of grand juries in other settings people get indicted in the southern district of new york for things that happen all over the world  discretion in this case or the court to give a time tested pattern instruction laying out what this the circuit has sent is the instruction for this type of case although i'm a defendant is always free to ask for clarifying terms that support his theory of defense the district court certainly wasn't constrained by that defense theory and putting it into what was already a time tested instruction the defendant cited a couple cases mcdon recent supreme court case and burroughs and analogizing this case to those cases but there's something that's very different about this case versus the cases cited in the reply brief and that's that mcdonald the court actually gave a definition of the terms in a proper instruction and defined them in properly over broadly to end allow the defendant to be convicted of innocent conduct and that is not the case here the defendant cannot be convicted unless he made an offer or prom could the instruction be more clear could exclude preparatory acts it certainly could and the event that government and jumped to the instruction at trial but it was an abuse of discretion for the court to give that instruction another example of and also in burrows the court refused to give a pattern instruction and end up giving an errant instruction as a result but unlike mcdonnell this is an offer promise case and every juror that had ever bought a car knows what an offer it's they know the difference between making an offer for a car and go in and kicking the tires around and seeing what's available in the stock they know that that's not something that's beyond the realm of possibility an on line mcdonnell which required a high degree of technical proficiency i read it and i still have trouble understanding what the supreme court was saying exactly what those terms mean and also the courts charges a whole covered there's substantial amounts of the offense not only was there directly or indirectly offered a promise of something  value the defendant had to do so corruptly with an intent to induce judge bart and the defend it was not precluded again from arguing that it didn't rise to the level of an offer a promise well argued throughout the trial that the jury understood that that was the issue did it rise to meet with your chit chat or was it not but the most important thing about this case is whether the instruction was given or it was not given this is not a mere preparation case you know the court is very familiar with the record in this case but there is overwhelming evidence that the defendant conspired and the defendant made an offer or promise and his go betweens that offer a promise to try and get a lower sentence at the very first meeting on july eighteenth  defendants go betweens said if a connection is made will bring the dough it's typical of these types of cases it's been said in other cases there's a klan to stein atmosphere of corruption so everyone's going to say in a bribery case they're just not going to go on out there and say that but service certainly could've interpreted from those statements and then later they said of some certain in this case as i'm certain they all decided on one point two million one of the agents testified that they were complete the go betweens were completely unfazed by the amount they agreed to addressed the court's attention to that fourth meeting on aug thirtieth where pena actually confirmed to the go betweens the judge sparks had a good accepted the offer to take the bribe that he would be willing to take six points off the p and that he would be willing to give a liberal thirty five afterwards within a week afterward eventually by the fifth meaning the degree that they were going to cut it down to a nine month sentence so as the defendant doesn't raise a sufficiency challenge i know it's a different i certainly don't know exactly what he was thinking when he decided to do it but we have some evidence of what he was thinking and there was this whole discussion about preliminary discussions you can't use think of preliminary discussions and there's sort of two sort of steps of political discussions in seen so just whether they have worked out the details whether they have paid the bribe that sort of irrelevant to the determination it's all about what happens before them the offer promise there's been cases where they found they couldn't even identify the public official highly relevant to your dream and it's highly relevant to the elements of the conspiracy offense so i think judge i don't know what judge walter if he was thinking this i think he was because he cited the gallo case and by society in the  explaining why he wasn't in the rule and put in the instruction gallo's talking about intent so all of that preliminary feeling now it goes to the defendant's intent it goes to the conspiracy it goes to other elements of the offense so it certainly was when within the realm of that was his discretion to determine not to do it that he felt like it was a jury determination the jury didn't need any extra help much as this case the court has decided in very recent cases about not necessarily putting the theory of the defense into  instruction i'm just going to end it must the points questions move on to the grand jury issue or i would like to know just a few things i know the court is very familiar with my brief but you're not really leaving venue when you're doing your will twenty one there's competing interest between rule twenty one and the right to be tried where you are and you're not waiving venue you're waiving the right to be tried where the venue is and if any i mean it's the government's position that the grand jury in austin was the proper body to supersede its own indictment and there's good policy reasons for that the government has no power to try a case other than where there's venue and there's rule twenty one where right so what if the government supersedes the indictment in a way that makes the transfer order the defendant doesn't like it anymore or the defendant doesn't want to be in new york they want to respond to this new charge not have a prejudice jury that's been tainted by the jury pool it has nothing to do with the inquiry of the initial charges and there's been cases cited in a footnote in my brief that found that the grand jury is sort of not subject to the same due process considerations of trial prejudice and of prejudice and history about god and lost my train of thought about this but you know about and the allegation that it would be structural of the government completely disputes that allegation if anything if the court were to find that the should have been indicted somewhere else this was a proper indictment it was a properly called grand jury if there is any error here it would be a rule twenty one error and not  grant once the real jury the trial jury convicts then it's harmless so that would be the government's position on not  one moment please you could say the superseding indictment was critical to your prosecution well there was an argument from the government that it wasn't that they had notice and it didn't implicate them the same concerns i think it was widely superceded so but it was as the court noted a very technical correction and the defendant was the one who raised that correctly wasn't in the indictments it was obviously aware and had notice of that element so it was out of an abundance of caution that it was and i just want to note that the defendant was aided by the four corners of the instruction which is contrary to the other cases that were cited in the reply brief that he was and fully able to argue to the kline let me talk briefly about obstruction the notion i do disagree pretty strongly with the idea that there was overwhelming evidence in this case there was certainly overwhelming evidence that they talked about writings of sparks there was no question about that the real issue is was there overwhelming evidence of an offer of promise and as interpreted internet is i think the answer is no there was certainly nothing as the government has as argued here but on the other hand despite had no large sum of money with them so it's not like they came to the sentencing prepared to pay up with coke sparks before the government even asked at the very last minute i mean the government investigators were worried about this very point they wanted to strengthen their case and they tried to get a screenshot from the from mr secured or from the sun showing that the money was there available some tangible evidence that they would consider this and in it never it was never  forthcoming you have discussions between mr colorado and his son where they're talking about whether this is real mr colorado expresses concerns with reason as it turns out that these were undercover officers that they were dealing with the first of those that's for worse that slang for undercover officers and that at the end after all of this back and forth and discussion among the last words that mr colorado son speaks to him when he's describing the state of play this is the day before sentencing right after the last meeting he says it's b s it it all came to nothing the b s so there was another evidence that you can glean from these tapes to argue that there was no expression of a desire and ability to pay which is what the name is requires but there was evidence on our side as well to say that this is harmless beyond a reasonable doubt i think is a real would be a real st indictment issue assuming you're right that there is a mistake it should have been indicted in the easy and what's the prejudice and the supreme court has said the united states versus cotton that the failure to allege an element in the indictment is the argument the defendant argued that structural error in this regard said no that's still subject to normal harmless error and plain error review so why would just a venue defect in the indictment it does actually allege all the elements warrant under our did not have the power to act here any more than in my other case the granger in the northern district of ohio would have the power so we went to trial on a indictment returned by a grand jury without the power to to  act that is a structural error structural in the sense that it goes to the structure of the process and it's also structural in the sense that there's no way of measuring the harm and those are the two sort of main tests that the supreme court has used to decide whether cases are subject to structural  pocket is one case that was the one about the council of choice there are several cases on along those lines so so i would say that if we're right on our underlying premises and i really can see that that's an open question  in the case had been transferred to the western district of louisiana and in that circumstance i think the indictment had to be returned by a grand jury in that district we site by the way just in a footnote but i think it's