in the united states code or in any of our cases that defines the term honest services post mcnally there is no definition of in the code whatsoever the statute thirty forty warranty and are you aware of any in this case california state law that would be the state law that would be the predicate for at least the texas case the breaux not i think it is in this case counsel but if you take for a moment because of the state bribery statute underlies the on the services or argument or a campaign contribution itself motive he provided the punch he provided the fact that mr ensues in itself actually was the cache of the stock in his own pocket and it was a dramatic turning point in the trial now after the trial the government produces cooperating witnesses where there is this real danger have to true seeking process can be distorted because the government has this opportunity to offer something that's more precious than even money freedom to the witness that we're going to take a drafting or latest research staff for legislation when they try to influence it one way or another and they are regularly accepting campaign contributions and their staffs and the people who helped raise money for them are perfectly aware that many of the people who are making campaign contributions would like them to amend a particular provision of the law or to insert something or to sponsor or co sponsor a law in this case you got someone who agreed to go away from the no touch to return to the previous standard and other person who seemed to be generally ok but not so sure that the campaign contributions other than galardi seemingly all of them open and disclose since this is a criminal statu has not been very well defined you can see how what a closed issue this is we don't send people to jail for long periods of time for violations of federal law when it is not clear what the criminal conduct is so given the congressional what happens there mike my my first question to you is does the government contend that there has to be a state law violation in order for there to be a violation or deprivation of the right of honest services you know we do not you do not ok so if there's no state law violation then how is it defined well again it is defined and incident and the cat took campaign contributions in exchange for them to be corrupt influenced in terms of helping repeal no tax now that is a quid pro quo that is illegal and jury instructions quite clearly that if a public official accepts money in exchange for a specific requested exercise of official power such exceptions violates the law regardless of whether the payment is made in the form of a campaign contribution did and so we're not talking about having to find some sort of free flowing federal fiduciary duty here we're talking about is when congress did pass thirteen forty six they meant to resurrect that creek mcnally and of cases which did not require quickly after mcnally that they were going through that process and also the whole question of us state while violation also is important to preclude in the cases that is a reason in the context of a duty to disclose and whether there have to be a state law actually because it may be that what the law is saying is that a quid pro quo is when the politician is saying that my i'm going to be controlled by my promise other considerations aside  he knew from the first meeting with malone and didn't he know in the spring that galardi wanted to repeal no touch and in fact he made his promise early in the spring to exchange money for eight thousand six hundred fifty dollars he comes to that and also yes congressman conyers i was one of the government has to back to stop and also the specific portions of our cases that you say just say that we have for example was not a public corruption case that had to do with was in an investigation entirely separate from our investigation they were they were investigating corruption by some las vegas federal agents but i do see that he sends it to the public into reception in had a number of statements before when he said that i had given campaign contributions and he was extensively haase examined on what he meant by campaign contributions and on the tapes as well  and be able to present this information that he has that could otherwise characterized these payments than what he had just done a live very inflammatory way in the trial would not have arguably been very helpful to the defen us the benefit of the doubt on it but i would like to address the question of the marty and the ten thousand dollars obviously this really boils down to a question of whether or not this should have been disclosed before trial and there is nothing in the how it is that they were prejudiced by not coming in earlier that's really the claim here that they should have a creature trial right to that testimony and when he came out the defense aggressively attack that testimony as untrue uncorroborated and suggestion that galardi was lying to curry the government's favor and you can't take up the same line of argument with our surveillance agent he brought him back onto the stand to point out that the pictures we took at the grand grill that day didn't show the passage of money that the things turned out in this case it's hard to see how they would have done anything differently had that had that had they known about that testimony earlier their response was glory's lying this didn't happen and quite frankly they did a evidence if we could open our files but that's not in fact what's required the defense isn't allowed isn't given a preview of the government's case so then the following year when we had the lardy and we were working with him and he remembered this much this this bit of we didn't think back on that one statement that we make and decide hey that gives us not requires us to make a disclosure that neither the rules the constitution or any court order has to be required of us to do witnesses we want the government to bend over backwards to make sure that everything is turned over that these issues are resolved before trial because there is a very grave danger that when you have a cooperating witness there are other things that the government has just said that i want to clarify the government now they're changing their position again in fact additional court and this goes to the fastest a who got what contributions and i know it's confusing  effecting and not with those to find that there is a minute when i campaign contributions so many campaign contributions given and when an official takes action before or after he was very clear and on to the on services counts the jury was additionally instruct there for there to be a quid pro quo absolutely and there was no i don't think there's any dispute about that the judge worked very hard on this judge miller said there has to be an explicit agreement to accept a campaign contribution in exchange for a promise to to go to the end of the story judgement or put the book down in the middle he looked at what happened at the beginning in the middle and then he made his judgment there but it really is and that is the cap story together by the end  a public safety bent on it too so they can't know that the police wanted no touch and he knew how malone wanted to get rid of it and that was to have malone just to have the cat get this issue out of his committee the distance issue cat could have an excuse for bringing up this issue this distance issue and he knew that the whole plan was about weak healing no touch and he did exactly what he said he would do and the district court found that he engaged in deceitful conduct and participated in this charade he welcomed the citizen he said he was interested in that distance issue and he made the referral just like malone wanted to just politics the jury didn't think so going to perform corrupt acts we believe that the deal that the exchange came with the first exchange of money in two thousand and one that occurred through their influence he was there now he was there it was at the palace and it was at a private meeting we don't have a tape of the meeting what happened was in zynga and set it up for you kept saying here's this guy he's with this industry you got to meet him and he set up a private meeting with him for half an hour and he kept matt with malone at that point and he gave him the first october of two thousand and two i want to clark lacked for that would have been more than a year before fourteen months previously and six months previously you're saying he took money but you told us that he knew exactly what was happening but he does know what's happening to label two thousand and three he doesn't  the money he received during the campaign in october of two thousand and two weeks which is a month before the election or money received fourteen months earlier with the conspiracy that he doesn't even know what's going on until april two thousand and three he knows well what's going on and it's at two thousand and three is when the very specific ok we're going to do this thing before the public service committee i don't we don't think that that agreement has to be that specific that you have to know that in fact this case and tucker said you can't campaign contributions and the point about that and it's about the deception it's about the deception which helps prove the original quid pro quo the idea here that having the person coming to testify that was the alleged concern of the council the story you're telling there could affect them almost every member of congress i mean i mean that's that's the reality here is somebody that doesn't know what the deal is if you go back afterwards  circumstantial evidence say well he had to know this and he had all that and he returned some kind of thing contributions because they were not proper every senator and every congressman returns campaign contributions because they're not proper really coming from a of the campaign contributions and then again in february it's two thousand and three that meeting where they sat down beginning of the session to try to figure out a way to repeal no touch to hide it in a package of cover issues now  the planning group and at some point they're going to repeal no touch in exchange for half a dozen other things that appear to be illusory within the distance issue i have a hard time connecting that to campaign contributions that were given him either sixteen months earlier in our in october of two thousand and two or fourteen months earlier in february of two thousand and two whatever i might think about what to check knew or didn't know and what his motivation might be in april of two thousand and three and a hard very difficult found that his or castrated at the time seemed to be confused about what the story was what the deal was and so on and that there was really no basis to find him guilty on particular charges based upon his quick last comment about what the child judge does even looking at the evidence as to trial jack style that the cat's agreement came in two thousand and three that it did come any earlier he still abused his discretion in granting the that the only legislative history is a comment that thirteenth forty six was intended to revive the kate floor prior to mcnally well i was amazed that we who made government will take the position that in reviving it passed in thirteen forty six the united states congress made it a crime for any official anywhere in the world to deprive the citizens of their country of their honest service to trade to trade legislative action or official action for contrary campaign contributions that he received in two thousand and one and two thousand and two not only is it is it absolute rubbish to say complete absence of evidence the government attempts to remedy with this incredibly dangerous argument that lacking what did they say when the court said where's the evidence before march third two thousand and three over in april he did something you know he's sponsored a piece of legislation so what they are saying is exactly what the supreme court said they mean last say you may not you may not you may not under circumstantial evidence that there was a campaign contribution at some point and even soon before or after official action was taken you may not premise a bribery or a hard zakk or and or in this case another service a violation conviction under fact of the coincidence of half earlier when he received campaign contributions he was saying that i will do something a year and a half later it is nonsense and they know it's nonsense i refer you to pages one seventy five to one eighty two of power  mean we have hate of the conversations between malone and the cat and they are i don't know what you're talking about get me up to speed on this well my concern is is i'd like to get laid girls out of my area maybe you know maybe we reasonable doubt that that congressmen or senators are up nonsense not when you've got the tapes themselves look at what you're talking about proof beyond reasonable that oh there was a you know he invested him in two thousand and one at a fundraiser we don't know what was said san diego i'm sure who find no touch touch and say very well result a lot of people in the world to find off shore drilling and say there are a lot of people in the world who find real estate development unsavory and you can always find people who would be inclined to convict somebody because they don't like the legislative project that we're talking about but with the supreme court has said is that american politics find an be controlled to be controlled so take the conversations between malone's and who care between two thousand and one and march third two thousand and three the last date of conviction on which judge  to seven can't stand on this record there is not a politician in the state in this country that can't be convicted there is not a politician who hasn't dealt with a lobbyist who hasn't talked with lob greeing to be controlled by legislation he is not guilty of the seven counts he cannot be retroactively guilty is a quid pro quo it is not someone could a legislator unlike the government's it might be in the fact that he's going to get future campaign contributions were could be something you've had as thinking you know even to maybe undertake i'm not interested in money but there are other things that i'm interested in getting out of this position and rout going to cooperate with mitt and ann but the problem is the same tweeting up if we're talking five to seven counts the judge miller acquitted on there is not what you would need is proof beyond a reasonable doubt of an agreement to join a conspiracy to trade official action for money there's not a word of what about that what about the ones on what you ordered the new trial ok so let's go to a new trial count and we and look at the we're dealing with a district court judge who knows the standards of review i remember when i'm the guy who saw these witnesses i saw the already testify and i am telling you that i in essence i deeply deeply disturbed by these verdicts we may have an innocent man who has been convicted of a felony ten thousand bucks i can judge its credibility on the rule twenty nine so i won't acquit on that however i have the power i saw this man i saw that ten thousand dollars testimony and i am telling you that we need a new trial on those two remaining counts as well as the other seven of the sport where ever to reverse on the acquittal and this quick basically has said when a trial judge has seen that that those witnesses and the trial judge says he is so testimony at trial judge miller said this man in my opinion is not credible on the other hand the single most inflammatory piece of testimony in this case is the allegation that th largest bag man somehow covered conveyed ten thousand dollars to to cap the you know that wasn't even alleged in the indictment if it's if the if the conspiracy is based on the ten thousand dollars then it's a conspiracy that wasn't charged in the indictment if it's not based on the ten thousand dollars then there's no quid pro quo you can't you can't retroactively enact a quid pro quo you can't take a contribution from an industry and say nothing in their favor and then fire two years later look at a piece of legislation and say you now my constituents want that my biggest campaign contribution contributors motion is absolutely deferential but judge miller was just spot on when he looked at the evidence and said look you know not everybody understands the first man you know not or not every jury is going to understand that that there is  the crucial difference between being affected by the views of your campaign contributors and doing what they'd like to do and in being controlled by them but i understand the difference i've gone through this record there are eight nothing in on the question of then the conspiracy count council is right deference is owed on a new trial motion to the judge's assessment of credibility our argument is that that ten thousand dollars is legally irrelevant there is no deference conspiracy conviction and also very quickly on all the other counts in all due respect the inferences that the that the council is arguing for here these were all argued to the district court argue to the jury