at the request of mr henderson the jury was given the full instruction from the mcdonald case which is to describe what oficial act is getting all the way to the point of describing to the jury or telling the jury that the official act must be similar in nature to a lawsuit before a court a determination before an agency or a hearing before a committee direct language from the mcdonnell case an appropriate toward the facts of macdonald next scenario which was not a prison case it was it was involving the governor of a state in terms of his acts what was your argument why is it that particular case is unlike in van buren here the government framed for the jury they had one argument about what the relevant matter what and their argument was what the relevant matter is this disciplinary board hearing that never took place because your client not in their theory worded that by not making his mandatory report about the your client harmed by not getting an instruction that offers an analogy that perfectly fits the government's theory by which it wants to convict that seems not to help your client at all like they're arguing the matter is the hearing and you would like the instruction to say a matter must be a hearing well the instructions they were in that respect we are out of the stock to say that it must be similar in nature to some very specific kinds of hearings or or lawsuits etc but if you did you what the defense theory that the disciplinary board hearing that the government says was the legislate for example would it be an official act just the legislature or was bribed to abstain or not vote on a particular issue on a particular bill it have to be when it be sort of absurd i suppose ok so if you look then you say well that was the case that deals with it but on the other hand you know having a discussion about whether or whether  attending a seminar on whether to vote and being bribed to go to that discussion or that seminar that probably wouldn't be an official act under the earth under the holding him down all right ok so i'm trying to analogize that to the to the prison official situation this is not a legislator and since the prison official who presumably has to make the prisoners follow the rules right so wondering why is it why it doesn't sort of naturally fit if you change the context to say that if somebody is tried not to do efficient act that they're supposed to do which is prohibit certain kinds of activity from coming into the prison or certain kinds of cell phones from coming into the prison that that that's a that's i don't know causing a determination before an age which is one of the categories right in right in and mcdonnell it would seem to be kind of a strange interpretation of the obstat to say that that this is his duty or maybe it's not that it's just duty to keep cell phones honor i don't know that i can intellectually distinguish those but this would be a question for the jury pre sale i understand but your but but then i wonder if it's possible that's reasonably possible reading that th b of this of this officer is not to go to court or go before a committee like to legislate for my it's to it's to apply the rules that govern what what prisoners can do what kind of there may be one rule that you can get pictures of your spouse and another rule that says you can't get a cell phone that you can talk with your spouse that's a distinction maybe that maybe the corrections official in they can meet the prison guard is bribed to make one decision versus another or not to make a decision that something  is i just have a trouble seeing why that's not an official act when it's right at the core of what he's supposed to be doing which seems to be the distinction that's going on at mcdonald's you know having a having lunch with somebody is different from and being paid for the time that you spend having lunch with somebody you know that might be questionable but it doesn't meet the harms act but when he actually declines to vote as a pro paul for the money that looks like an official act i can see why the same kind of when the judge be reasonable in saying and i don't want to give any examples that come from a different context because that might confuse the jury better not to use that and use the language general determination flows naturally from the previous language in mcdonald's it went with what i would say the budget and i don't think it's correct to for the district court to just say well here's where we can stop frankly section seventeen night it once heard to be this specifically talks about him being items into a jail i think the government decided to entice him merely with tobacco and a cell phone i suppose if his opinion that it would not go along thank you good morning your honor may it please the court james ewing for the united states that district court here did not abuse its discretion by providing this court's pattern jury instruction and the government's evidence was sufficient to support henderson's conviction turning to the jury instruction question st you know macdonald is really not all that new at this point it was handed down five years ago in two thousand and sixteen and henderson is before this court with no precedent from this court or no support from this court's pattern jury instructions regarding the portion of the instruction that he wishes to that he says was error the circuits pattern jury instructions cite to mcdonnell and they do not include the similar nature to language for the very reason judge rogers that you were discussing and that the th circuit noted in the mayweather opinion that essentially just so's confusion in a case like this in preparation for this argument i looked at all the other pattern jury instructions for the other circuits and i can tell you that the rd th th th and th circuit courts of appeal also cite to mcdonnell in their pattern jury instructions and also do not require this language so courts have looked at this this is not new courts have said courts have figured out what what does mcdonnell require and what does it not require and that in the district court judge here told the jury this this this official act has to be a formal exercise of government power it has to be something specific and focused the person has to be a public official he has to make a decision or take an action on that official acts so you know hinders and is not directions is the only circuit in the country that specifically requires this similar nature to language in their pattern jury instructions the th circuit talks about it in a note that the th circuit is the only circuit that requires it and then that court clarified that just last month in the mayweather opinion where they said you know look this language just simply doesn't map on to a prison guard type situation because those are public agency determination and that sort of thing was interesting if you look at mcdonald's and i think that this had discourse pattern jury instructions deal with mcdonald's core concerns mcdonald's core concerns were look it the official act the matter cannot be something like the economy of virginia it can't be something so so general in nature and so that's what this court and this court talked about it also into more of a page three of them or where this court said you know mcdonnell requires three clarifying instructions formal exercise of government power something specific and focused that is pending or may be brought in in that case they talked about that a meeting or arranging a phone call is not necessarily enough which made perfect sense a quote the pattern jury instructions were quote consistent with mcdonald's narrow definition of official act so he has no support for the proposition that he was entitled to this language the only case that he can cite to from  of jurisdiction was clarified as to this specific fact pattern which the mayweather opinion and th circuit also dealt with corrections officials just last month so that's point one dollar is he can't show under this  three prong test from get off that he was entitled to this language get off he talks about you know that st of all it says that the district court has broad discretion in fashioning jury instructions and so we would maintain that even if this court thought that and he quotes mcdonald correctly it's not him it's not it's not him he's not quoting the case incorrectly but we would say you know one prong one of get off that it's and it would not be correct statement of the law that he's required to have indeed in these circumstances we would also say that his concerns regarding you know how completely broad this concept was going back to prima donna has been substantially covered by this court's pattern jury instructions and rd that this is the most kind of probably the most important get off the point they don't need he has to show that the failure to give this language substantially impaired his defense so his defense was smuggling contraband into a prison is not an official act and this is really interesting because in the district court and really still in this court the parties are talking past each other on this point because we never claimed that was the official act that we were talking about if you he didn't need this extra language to make the argument that he made he wanted it because it's so confusion and so that was the reason is it is nor is there something in the district court record explaining you know i think i'm just going to add here to the pattern jury instruction dissed time because based on the jury the st yuri's multiple questions about the definition of official acts it appears that my you know my my instruction in that case just confused them and that's what's important is it really that it was kind of interesting about that kind of st first trial which it sounds like it was either eleven to one or ten to two to convict that was also discussed on the record prior to the nd trial but and you never can tell about juries and why you know jurors make certain decisions but they did ask a bunch of questions about the definition of official acts and really the facts in this case were basically undisputed so to the extent that the jury is confused in that st trial that's really kind of a real world example of what the th circuit was talking about in may whether that because really all the only thing that the the only thing that the jury has to do is map these facts which again are basically undisputed he's thing look i mean what henderson said really in both trials was yeah i smuggled contraband into the prison but that's not an official act and so they really just have to map the law on to these facts that are essentially undisputed so to the extent that the jury was confused by the in from by this information being in the instructions the judge said you know look i think it's probably a good course of action just to adhere to the panel jury or to the scuse me to this court's pattern jury instructions so that's what i plan to do and the pattern jury instructions of course don't include this phrase and they don't include this phrase as do all and again it's you know five other circuit courts of appeal there are certain there are a couple of circuits that don't have their patterns or instructions you know available online or don't have any so but as far as i can tell the th circuit is really the only the only circuit that requires this language in their official act if an issue and again the th circuit discusses it in a note and so but this is why it's kind of like a real world example why and so our submission is he is well within his discretion when he's going into that nd trial to say this didn't work and i'm not including that confusing language anymore because you know even we would submit that even internally to it's the phrase similar in nature to a lawsuit before a court hearing before an agency or determination of agency or hearing before a commission that's it's internally confusing even in a in that case because mcdonald instance we're not saying that a phone call can ever be enough maybe it could be enough if you make a phone call as the governor of virginia for example to attempt to pressure another  official a government official to take an official act then that's potentially enough so that that phone call is not you know arguably not similar in nature to any of these thirty three things but this kind of like one step removed aspect is covered by mcdonnell but his henderson's instruction doesn't tell the jury that they did they have no idea for example and this goes to judge larson's questions that you can be one step removed from the administrative hearing in the in the in the jail and we would submit that that you know that's one that was one of the official acts that we argued in the district court was the official act at issue here we thought there were there were there were multiple official acts we said you know look smuggling contraband is not the official act that we're talking about but there's a lot of other official acts that that fell squarely within hinder since duties as a corrections officer including the duty to const confiscate typical official acts that that henderson is either doing or not doing refraining to do as judge rogers was talking about you know refraining to vote for a particular thing he's  refraining to to notify his superiors that hey see ells got a cell phone and some tobacco in the prison so this concept that you know the five hundred dollars that we're only talking about the smuggling contraband into the prison is just not right i mean there's a there's a number of basically you know stepping back hinders and used his official position in his official power as a prison guard to protect  from you know consequences of having contraband in the prison for five hundred dollars that is the essence of hobbs extortion it's in the heartland of so you know the extent that the parties are really kind of talking past each other about this idea of what is the official act and it really kind of points up the idea that you know you know he didn't need he can't show that he need st of all as to the jury instructions claim he can provide this court with any authority that he was entitled to that language courts have looked at this mcdonnell is five years old at this point and the  multiple judges multiple circuits have looked at this the only case you can point to the been buring case was clarified as to this particular fact pattern last month and on the sufficiency claim he simply he's making the wrong his argument rests on a faulty premise that the government's theory was that the smuggling was the official act our position in the district court was look smuggling is illegal bringing contraband into the prison is independently unlawful so that cannot be the official act that we're talking about that's what we said page one thousand five hundred and sixty five dollars so but he's got these multiple other official acts that he really doesn't deal with in the district court or this court so for those reasons he was simply not entitle to this instruction the district court was well within its discretion to refuse to give this confusing language for the very reasons that the th circuit has as noted in may whether and the government's evidence was more than sufficient to prove this this this crime which was in the heartland we would argue  law and it is necessary to his defense that he's entitled of instruction the only way around that from the government's point of view would be to just this court that the mcdonnell language which is cannot be simply snipping cunt at one point where it's convenient for the government if if if but that all says that this they don't fishel act must have these attributes and it says exactly that and use the word must and that's an accurate  proceeding that he's talking about with the administrative hearing in the in the jail and the jury needs to be instructed to be able to figure out whether is in fact that's the kind of thing that relates to an official act argument i don't think we donna was internally confusing and i think frankly the whole issue of official act may be confusing but the solution to that is not to give the jury less instruction this solution is to give them the full instruction and let the jury figure it out it's not an issue to be taken from the jury so they need to be instructed and they need to be instructed all the way down the line with the court have any further questions