please the court alexander shapiro for stephen aiello the jury that convicted mr aiello was presented with two alternative theories of honest services fraud conspiracy and as opportunities arise theory that a payment was made to percoco when he was not a public official to perform official acts as opportunities arise after he returned to public service and margy on a theory that the payment made was for an act performed percoco was a private citizen both theories are legally invalid the as opportunities arise theory is legally invalid under sooner and the milk marge not a theory is legally invalid because marciano is not good law and was not a theory in the acts performed in two thousand and fifteen it urged the jury to rely on the theory extensively and i would like to go through several of the arguments the government made in summation and we know that this jury  deliberated for eight days required to alan charges to convict and that there were divergent verdicts between mr yellow and his partner joseph gerardi on this particular count and mr gerardi was not linked to issue no less than four times and said things along the lines that these were payments that obligated procopio to do what he could to benefit our yellow in gerardi and then went on to discuss all three of the act examples a trial transpired just and that they relied on this theory but for instance on the c e o or part of that your own just to be clear that's all i'm addressing mr hill is not involved in the other part of the case that's very important  you want to stay focused on which part the c p s no no i'm sorry mr yellow is a principle in court and he has nothing to do with the c v i'm sure mister watt that's on talking about it's a labor peace arguing sufficiency on this we're only arguing harmless error on this and the standard is that this court has to essentially be certain that it's not conceivable that it rational jury could have acquitted ha agreement right not a c e o or what else could it have been because the jury what the jury was instructed was that the government didn't have to find an agreement for a specific official act or matter th payments were about because it happens long after that agreement is made that according to the government's theory that wasn't their firy below your honor and below they argued repeatedly and  mention a bunch of examples but i'll mention more but they are you rick to the jury that the payments were made for him to take official actions as needed as opportunities arise and then they pointed is in the rule bottle at a page appendix page six hundred and fifty one dollars the prosecutor described all three of the acts and then said that they were all in exchange for the payment and c and then reference the  erroneous instruction and said that they just have to agree that he would advocate for them as opportunities arise and that's exactly what he did three times for coeur that's all it takes an extreme and an agreement to exchange money for official action and under the harmless error standard this court cannot deny mr yellow a new trial unless it is certain that he probably instructed jury would not have convicted  distinction between mr a yellow convicted on this count and mr gerardi who had acquitted on this count is this raise and in fact mr gerardi was well aware of the payments according to the government's evidence tot how the government's cooperator testified that he had conversations in june and july of two thousand and fourteen that included mr gerardi about payments for official action and then the all the events leading up to this lp a business in late november and early december those communications with mr gerardi not mr aiello jordi was the one kind of running it so the jury clearly understood that he was involved in whatever dealings core had with how about taking action on these labor issues and they acquitted gerardi of that so there was no difference in the evidence and if anything to ronnie was more involved in the events that took and fourteen and so this court cannot have confidence that this jury would not have acquitted mr aiello had been properly instructed because if it had been properly been instructed they couldn't have considered these acts that occurred in two thousand and fifteen including for the sun's rays thank you and have some time for a bottle thank you for your imagist there's one other thing i neglected to mention i do want to ask the court to continue mr  for the government the jury deliberated for eight days and received two allen charges before it rendered a verdict when it did that verdict acquitted mr bercow cohen half the charges that he faced and deadlocked on all counts against mr kelly his only codefendant on the energy company side of the case so it was very close and the jury charge here had an error course the question is whether it was harmless essentially this is the opposite of the sufficiency standard if it wasn't a rational for a jury to acquit or rational jury could harbor doubt that there was a promise to take official action on an identified matter at that two thousand and twelve danbury dinner and it couldn't have ben a promise on reciprocity because reciprocity wasn't identified or even contemplate  at least that's what the evidence the allegation the the testimony by todd how is that the p p a came up the testimony is not that reciprocity came out at all there is no testimony about that and if the jury relied on reciprocity as the charge permitted them to not the government in v a for twenty minutes was to test them on your out of the st point i'm simply making is that the jury may have relied on reciprocity and if they did that itself would be a reason to grant a new trial there are other problems with the dinner and i will address this for says you have to understand the matter on which you are going to  the government made very clear and that the jury charge made very clear that this was the way as opportunity arise was going to work they can't switch theories now and say that the arrangement or the agreement was made at the time said they very much tried it on the theory of reciprocity they tried it on the theory that all they had to do was prove some kind of general agreement and then as opportunities arose mr percoco acted on them and reciprocity was very much one hundred percent merely an opportunity that arose they did not make this theory about the receipt of payments and the agreement being at the time of the receipt of payments that was not a trial and we would have tried this case quite differently if they  long as you understand when you except the paying it that you are going to assist in a matter in a corrupt way that that can be enough and i'm wondering what other matter there was that the jury could have thought was was the agreement among the parties at five point in the they clearly could the government's theory is that they could have relied on the p p i disagree respectfully with the idea that the government can walk away from its indictment which says that this begins in only person to testify about any alleged promise at that dinner to take official action is todd have the governments cooperate or it's important to note that on harmless error view the government does not receive the benefit of the doubt of witnesses credibility especially cooperat after cross examination his credibility was quite contested and that history of altering per coco's e mails and putting them off was if percoco it said it could strongly suggest to a rational jury that powell would add things to oral conversation as well secretly testimony isn't worth much but all he said happened at that two thousand and twelve danbury dinner with the pope percoco agreed to keep abreast of or keep an eye on see peaveys project that's not an official act and there are a lot of other reasons to doubt it as well this was hotly disputed a trial all percoco did was set up five meetings for kelly over four years he didn't attend any of these meetings no public official and no one at those meetings testified they've been pressured by percoco case and the jury deadlocked on kelley so a court cannot conclude beyond a reasonable doubt that a rational jury could take the government's view at trial in the indictment of how this arrangement began and they now want to change this and make it that they simply not something we can conclude they wouldn't have deadlocked and that's all that's necessary i see my time's one up for a little help so you have some time for we'll hear from the government thank you may please the court my name is matthew could also be and i represent the united states on this appeal as i did at trial what i'd like to do given the focus of the arguments is answer your question judge reggie directly about why the er to the as opportunities arise instruction was harmless in this case and i think i'll go briefly through that through the evidence although some of it is in our brief but silver really controls here and  you can take silver analysis on this issue apply it to the case here and it's absolutely clear that the error was harmless both as to the core side and the c p b side why do i say that so  harmless was that throughout the life of this conspiracy i think it was an eighteen year scheme at various points in time not even at the beginning but at various points in time there was an agreement between the  know and that was not enough right that was not part of the scheme something it was an official act and it wasn't part of the scheme or the agreement so why isn't the yellow pay raise the same just like the proclamation was an official act i don't think there's any dispute about that unlike the proclamation there was an explicit agreement and explicit discussion between percoco in a l o an explicit request for the action  or to take action on the matter that is the raise for the sun and then action on on that matter so in silver is a very specific problem a very specific problem which is in the statute of limitations  was no agreement between tao and silver as to the matter essentially silver says and this was the sort of pure as opportunities arise theory that the opinion focused on silver so says i'm generally to help how this proclamation will be beneficial to him no evidence of any discussion with taleb that that he wanted this official action in the opinion as i read it makes clear that if there had been that discussion there had need to find that there was agreement on a matter and that they had to agree what matter it was is that is that it concerned here that there are several matters and we can't be sure if the jury was unanimous  s any particular one i don't think it's a concern for a few reasons but one is the case that the government presented was much like the case in silver where this wasn't an issue what i sa on the real estate side the life of this scheme there were ongoing payments and the payment and during the scheme different actions or matters came up for silver to take action on that's exactly how this case was tried so focusing on the c p b side for the moment at washington how can we be confident that the jury agreed unanimously on any particular matter i suppose to six agreeing on one matter six agreeing on a different matter or a mix and match with the they found an agreement with respect to core and relied on the official act with respect to the pay raise so we know that the jury found  harmless error review because each one of these matters and it's really no dispute about this was identified was identified during the life of the scheme in the conspiracy explicitly explicitly so p v p v it starts at the dinner scheme as there are ongoing payments a separate discussion a separate discussion about the reciprocity agreement the payments are still ongoing the jury has concluded that there was an understanding that money was in exchange for action the missing which is a timeline of the events surrounding the reciprocity agreement and it is explicit because how relays e mails from kelly to percoco rococo then takes action all in the course of an e mail exchange so there can be no doubt whatsoever that any rational jury would conclude that as part of this ongoing scheme the payer and the bribe recipient did agree on a particular matter to take action on and it's the same with respect to the course side in fact i note that in mistrial the opening brief i think it's on page forty one he says he says that the evidence showed the only evidence in the case showed that there were the next in agreement to take action on the l p a so there's a concession here is that from the outset there was a there was evidence that a rational jury would conclude beyond a reasonable doubt the parties had agreed on a particular matter and the evidence continued through the  through the other actions the prioritizing of the release of certain funds and the rays of sun the testimony of taught how in the contemporaneous e mail records shows that the two parties agreed on specific  specific matters and i will i will point out there is a slight difference on the core side which is unlike in silver and on the c p p side there is not an ongoing stream of payments throughout there's not an ongoing payment about  of payments throughout so it's connected to an initial sort of retainer payment at the very beginning that was explicitly linked to the lp but that doesn't change the analysis because the evidence in the case the evidence through taught how the evidence through the contemporaneous e mail records for example a text message from aiello relate to percoco on the res demanding that you give in and given and given you need to do this for me shows  silver which is an important one but what silver says in several places refers to a promise at the time of the pain excuse me an agreement as to a particular matter at the time of the payment or the promise so it could be that  the agreement is actually coalesced over time there is a payment at time a and at time b the broad payer says ok now here's the matter here's the particular matter that we that i want you to take action on in come after the promise and so you can you either agree on the matter right at the start or at least by the time of the pain and when you have a chance to say no no give me that money you first the way that the proclamation is analyzed there's particular language that says the problem with that was that there was never any discussion do you actually want that leaving open the possibility and indeed implication the action is going to pertain to a matter and so if you agreed to do it it seems to me you've swallowed what silver said was not covered by the opportunity arise theory what i'm missing so let me try to be as precise as i can and also refer to another portion of the opinion of silver in in in silver what was pointed out a problem with the proclamation was silver never discussed with tao the proclamation and there was no evidence they had any discussion the issue there was silver basically just took it upon himself in this was why i called it a pure as opportunities arise the notion was he was just out there looking for things that he thought might benefit not things that you discuss matters you discuss with tab so there was actually never a discussion never a promise between or agreement between silver and tab with respect to the proclamation at any point in time  promise made a payment made in exchange for an action or matter to be determined later so i think that is clearly reserved in silver and the issue in silver was that the proclamation there was never any meeting of the minds never any discussion never any agreement but i do want to kind of pull back the discussion for a minute because at the end of the day there actually was an ex a matter explicitly discussed between  actually suggested if not made an i l s brief and the evidence is extremely powerful on that how repeatedly testified the reason i thought to bring together aiello and percoco and by the way on this point it was particularly yellow from the beginning not can j p help with this before the payments are made so the payments the the evidence here is absolutely clear and really beyond dispute that there was a particular matter identified yes of course do you agree that mr coco to be guilty of conduct while he was in office the jury had to find that he was  i do ok i want to be sure i understand the government's theory which why he was duty to the public during that time when he was out of office i mean is it basically that he's leaving office was a scam that he never really left office is that is that basically that's it and i mean i don't want to suggest i mean yes i like the word scam but it's our allegation of course is not that the purpose of  it was a purposely deceitful that he left office is that in fact he didn't leave office it's that what went a few blocks down the street to run the governor's reelection campaign theories that he wasn't exercising  for example andrew kennedy who was a executive chamber official in charge of economic development saying that it didn't matter if he was in the literally on the payroll under his title of xander stan and i didn't ask you for counsel's discussion of the fact that we did can see that there was sufficient evidence of an agreement on the lp a that is a very different question from whether there there was this instructional error requires a new trial seven secondly counsel's reading of the silver opinion is so broad that as to make the opinion virtually meaningless the opinion makes clear that the relevant point in time and i'm reading from it in a quid pro quo bribery scheme is the moment at which the official public official excepts the payment there and then there to the extent there are other parts of the opinion that expand that they say that a particular question no matter must be identified at the time the official makes a promise or excepts a payment so the notion that you could use the point in time a year after the payments advantage we now think we're entitled to a little more so we'll keep paying you but i want a raise for my son would that be sufficient to understand i'm going to support a conviction your honor that might be different but that's not the case the facts here want more bang for our buck at this point they renegotiate i guess that would be sufficient when i might be sufficient but that's not the case the facts are my point is the payments were made and were finished a year earlier there was no suggestion there be additional  payments and the jury this is not a retainer fee or a case to the extent there's a difference between a retainer in as opportunities arise which the court alluded to and i think it was footnote seven dollars this jury was instructed just like the silver jury on an as opportunities arise theory not  payment then if you're on a limb tells me i do have one additional point which is that it's really important that the court keep in mind i did not get a chance to argue the marciano point but i would say this with respect to the purported agreement about the labor peace agreement in order to find that that that had been proven the jury would have had to find domination and control and that mr aiello knew that  there's no way this court could be certain that that's what the jury found as opposed to relying on the sun's rays and the divergent verdict with the codefendant is is evidence of that that it's certainly at a minimum this court can't be sure that that's what the jury that the jury relied on the earlier act of the later one and that's enough to get us a new trial and indeed to require one and the other thing i wanted to point out with  reins versus the versus whatever other matters were no but the objection to the as opportunities arise the or in the request that the the journey be charged the way silver says it should have been char was certainly preserved and there's no other are going up not suggesting it wasn't preserved i'm just saying that to the extent you've now just argued we don't know whether the jury would have found on the son sure whether that's the case or not but there were certainly i'm not sure whether that's the case or not i would point out that the supreme court decision in the conrad black case which was a companion to skilling holds that you don't have to ok see peavy never got the power purchase agreement they did get the reciprocity for tupper coke and didn't get it for them but they got it that really could have been quite influential for the jury and their decision now the indictment says that this arrangement began in two thousand and twelve the government repeatedly made clear that they were not arguing that payments that there was an agreement just at the time of the payments they said it was earlier and they made this clear to the jury in their arguments as well quote when the opportunity came up for percoco to use his power to get the reciprocity agreement he did it to benefit c p b and that's what he agreed to at that dinner it wasn't at the time the payments were gotten it was the dinner putting aside the issues with silver discussed the we both my colleague the government can't run from how they actually charge this case we would have defended it very differently this is proposal didn't testify if the payments to her with a point of agreement she may well have there were a lot of decisions made on this and major prejudice for switching this theory after the fact  howe while his mother is dying in a hospice please ask how reagan to help with this mom is not doing well that's it and he does nothing else mr how many forward those e mails that's it there is was more than a bystander here that they felt they needed to keep him informed of this carbon copy fieri is that he is a bystander they're supposed to have overwhelming evidence i understand you the p p a the idea that there is explicit discussion of the p p a apart from this dinner is also quite weak e mails on which mr percoco is not copied they have to rely on mr house testimony about that dinner and all mr says happened at that dinner all the only nature of the promise at that dinner is that mr rococo would keep a breast of or keep an eye on the project that's not an official act this just isn't overwhelming evidence they can't get that's absurd there is not overwhelming evidence of that and did he leave office of course he did he signed a resignation letter he got an ethics opinion about what a former employee was obligated to get andrew bolt testified well when he was on the campaign he wasn't my boss the government resorted to putting a picture up of when percoco was campaign manager and he was wearing a sweater that had the government seal and they did and they saw that's evidence on the wrist there was testimony that it didn't matter that he was on a wrong that others treat him as if he were still part of the governor governor staff not not in there such evidence not really of any real weight at all mr goddard said that what office no many people used that office he used a landline in that office which mr ball and i testified many people were coming in and out of to use that land line this is not overwhelming evidence this is not the sufficiency standard the court then charge to the jury that he would have to own the fiduciary duty to the public and if i understand it that was the instruction that your client basically asked for on that point so i understand where you've you've preserved a challenge to whether or not a private citizen can oh what duty of honest services but i don't see where you've preserved an objection to how the court charge that a private citizen could oh said to duty if the fiduciary i do believe it's preserved among other things we actually asked for a different charge on marshall yada at that point and we were forced to that position by the court it's a transcript  and thirty nine we had asked that the court the jury must find that the person so dominated a particular governmental institution the court said any governmental business so  boss tweed of nassau that's dominating an entire governmental institution the district court took an instruction which is office as someone who never h public office is the unique aspect of this case is that mr percoco held public office both before and after some of the events at issue and the question is whether in the middle when he acts performed by actual officials in the town of nassau on the other town edition this indictment says that the official acts are performed by percoco when he is not an official marching out it really when you get into the details of it shouldn't even be that helpful it's a confusing and messy case and the court made many moves on that that i disagree with but i do believe we even objected to the particular instruction they gave in a harmless error standard that instruction would not suffice one last thing if i could which is that i just want to emphasize that this court has held and united states against stewart that the strength of the government's case is the most critical factor in assessing whether was harmless and that quote given the difficulty of objective lee evaluating this factor appellate courts often looked at the link the jury deliberations and the necessity of a modified allen charge as useful proxies or other court decisions by the nd circuit which also point out the importance of the deadlock all of that was true here this is not overwhelming evidence we would certainly like an opportunity to brief this to the court after argument thank you will reserve decision