i have two questions about that i want one is while historically the deprivation of honest services has traditionally been used in public corruption cases the language of thirteen forty six does not on its face make any distinction between public and private and second in the precedents that you cite about how it's been used if tradition alone were enough to limit the reach of a statute a lot of them are not public for example a labor union is is not a government agency  i i don't get it i'm wondering wife and the language of the statute isn't the end of that argument you are perfectly correct with respect to the history of this doctrine and i think it's a confusion when that requires  joined by judge o'connor set forth the four categories that historically in those hundred seventy years the courts have like this doctor two of them are public and government corruption categories the other two are private relief yes labor unions and corporate employees the plain language of the statue i'm not sure that we are at let's look at the language of the statute it says for purposes of this chapter the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services for us to accept your argument we would have to interpret the word another at to exclude private individuals and that that seems to be a grammatical structure of verbal scratch you are of course elementary that we always start with the plain language i would first note that  court in fraser one thousand nine hundred nine the last problems went immediately to the legislative history as have numerous other circuit courts because that language requires interpretation it is not playing on the face and many circuits have grapple with this those public officials who corrupt their office is there anything in the legislative history that if even if we were to accept that as a sufficient basis for limiting the language response and i mean that biden quote that you just gave me says what good boys we are we're just wonderful we're curing the supreme court ever by making sure public corruption cannot be penalized it doesn't say anything about that were  of the loyal services of its employees you know if that's what the statute said if it said those words then i would be inclined to apply the statutory interpretation principle of a used i'm g at and exclude individuals but the statute doesn't say that and it's hard for me to get into that limitation into the word another player and if i made them give you the second responses it's not only the legislative history that all of these for that reason count should fall with respect going back your question your honor no circuit courts have addressed this but again we have a supreme court case that does deal with the issue and although it's a contrary to your argument that there was sufficient evidence under both serious and if we were further to determine that you're right about the law what would the answer be would that be a revers know valid well what happened but that there was evidence to support more of that's the additional you have argued that there's not sufficient evidence on a regular frog theory and my hypothetical disagrees with assertion so two theories one valid one invalid but plenty of evidence on both what is the proper relief if there are two theories and one is invalid if you can if you found sufficient evidence of actual if there would be the right if i understood you right you said the statute of limitations ard prosecution for taking the old man's money so the only thing that they could prosecute think you've answered either of my colleagues question of respect to what is the effect of a reversal does that mean least double jeopardy no new trial or are we in effect sending it s should have been originally a state matter is a state matter and those that's the state of oregon is the appropriate the tool i don't understand why double jeopardy would bar prosecution it seems like just a routine reversal where the jury is instructed erroneous way and that  statements of fraud and they would be proof that there was actual property money or property but they it seems i don't understand why i suppose we accepted your mcnally theory and we said well another doesn't include private individual so a prosecution for fraud by depriving an individual of honest services is that it doesn't charge a crime it seems to me that they could go back and charge the court wants to know am troubled by reaching farther than we need i was puzzled that the indictment you've been charged the financial planner with depriving the old man of honest services since the financial planner also deprive the old man of one hundred thousand dollars seems like there's an easy way and a hard way and the investment made you responsible for the hard way and i'm even more reluctant to reach out and issue a maybe it's warranty services so they're actually depriving the manufacturer of money but the customer sic their cars or that's when they're not we saw a lot of time but it seems like some of these are real questions and we don't need to answer i don't get why the jury was they asked to answer the question of whether the defendant deprived the victim of honest services by missing something here oh i see so the idea is to protect us we need the honest services to protect senile victims as so that where the prosecutor cannot show that it's not a gift a problem like you understand why i put it that way we can't make a decision in this case based on things that are not in the record but the understanding that you've given me about a potential class of victims can be a basis for consideration federal indictment available wh bright line what's what's the what's the dividing line what why is it perfectly ok to bring this case involving a two individuals in the same city same state aren't so so it's limited to employer employee a we've got a case there also the do sherry relationship but nothing beyond those two except of course the public situation and that you leave out the key and you send her a check or leave the check outside with the key under the garment and them she comes by and takes a check and doesn't come in and clean the house she probably would be a duty of honest services at least to that level of honesty of coming in and doing some cleaning and she's not entitled to just lie to you and and cheat you even though she's i got to ask you when you say you've said it twice now on the way out are we talking about mental condition or physical deterioration though is obviously what you're suggesting that at least so far as the states within the business are concerned situation here ie right individual right individual transaction they are all corporate labor union kickback rivalry the issue is one of them doesn't even involve that was some lawyer t outcome we interpret the word another to mean that congress meant to protect corporations unions and other entities but not people as individuals you're on a without with all due respect it's because