good morning honors me please the court with the bell on behalf of mr kember who and i'd like to reserve three minutes of my time for rebuttal certainly thank you your honor i'd like to begin by explaining why the government deuced insufficient evidence that mr kim breaux under took official action in this case now the government has argued that mr camber under took at least five official actions but it's of course impossible to know which of those actions form the basis of the jury's verdict and that's because the district court instructed in the government argued repeatedly that no unanimity was required that any official action any one of those five could underscore their verdict and then the jury did not make any special findings and support that verdict and one of those alleged actions in this case was plainly insufficient the issuance of a permit to green legend's was not a matter that was either pending to quote the statute  or which may by law be brought before mr kim brew in his capacity as a public servant or before any of the other public officials over whom he claims to have some influence and there are two cases that most clearly compel this conclusion the st of those is mcdonnell the court their address the terms pending and may by law be brought and explained in the following i quote those terms convey something within the specific duties of an official's position the function conferred by the authority of his office and something quote that can be put on an agenda tracks for progress and then checked off as complete language is a little bit broader than that it says which may at any time be pending or which may by law the brock before any public officials oh how how does that language tie into the facts of this case in your favor well the issuance of a permit to green legends clearly fails those tests it was not within the specific duties of any public official to decide whether or not to issue green legend's a permit issuing the permit i'm sorry your honor  permit there was no permanent process in the city of compton it was impossible to issue a green legend a permanent it simply was not their effort and at least compute represented that at some point the city of compton is going to consider permitting  a small number of dispensary used to operate and so that's the promise that he made to the undercover agent that he would intervene in order to ensure it that would be one of those small spencer ease that would be allowed to operate is not sufficient no your honor it's not the government has argued throughout this case that mr camber is the extent in nature of mr kember's promises created a reasonable impression that he could make good on them and that a reasonable belief is sufficient for liability under section two or one but that's not the case and the government has somewhat paradoxically abandoned that position i assume on appeal in saying that the proposed jury instruction included in   it reasonable belief element and so the government is conceding that that is in fact in opposite so here mr kimber did make exactly the promise that if you're there your honor receded but it was a promise to take an action that did not qualify as official action because it was simply not a matter of painting or which could by law be brought before congresswoman janice hahn over whom he came to her have some influence before the f b i or before the city attorney of compton i think valdez is a case that underscores this conclusion as well in that case the metro police officer whether the defendant had queried an official database and in exchange for several one hundred dollars had provided information about private citizens to an informant and the court said to constitute an official action the matter must have surfaced to some degree it's not sufficient that the matter be hypothetically capable to be brought before the public official to official at some further time and at that time there was no pending investigation to which these queries related in any respect permitting official and you know urge the person to grant a permit would that be sufficient in your view well the answer to that is twofold under the argument that i am making right now yes  absolutely would be sufficient and there is a narrow point that can form the basis of this court's decision and that's a proper construction of those two statutory terms in the definition of official act pending and capable and which may by law be bro have also made a broader argument here and i'm happy to address that broader argument but i do just want to make sure the court does have my point on the narrow construction and valdes did say that the statute would lack a limiting principle and would not pass constitutional muster if there if it was possible to turn liability on hypothetical future speculative official action which could possibly be brought before a public official but which was not then upon him or her as to our broader point we have argued that the federal bribery statute reaches only at conduct that the public official has some ability to influence and this comes from a series of cases a month in birdsall london all of them look to the sphere of that public officials influence what is in his or her official capacity and ask is the promise within that sphere or not is the promise to issue a permit something that official can accomplish or not and in this case the promise mr kim breaux made was to exert influence over public officials so our our view is that liability should hinge on whether he could make good on that promise or not i thought our cases and in particular made a number of other cases that established that  if the official you falsely claims to have authority to do something and manages to convince someone to pay you money in exchange for a false promise to do something in fact he doesn't have authority to do that that still is a violation of section two and one is and i know your honor i don't think that's the case i think the case is actually stand quite for the opposite proposition that the public official must make a promise to do something that he has the power to accomplish that is somehow within his official purview but again this is an argument that is a broader construction and i think it is somewhat more of an open question we're asking for the cases to be read in our favor in a particular way but it is not a question that the court must reach instead the real question here i mean the fundamental question that that can that said to lead to an insufficiency finding is that the issuance of a permit to green margins was not official action because there wasn't a permanent scheme precisely it was not something that could be brought before any public official but the i mean the city you don't dispute that the city had they didn't present have an ordinance governing permits but they had authority to create one right is that principle if it could reach those kind of hypothetical scenarios that it was within the power perhaps to create a system but the issue had in no way surfaced as the court put it to extend liability to that extent  at least it has to have surfaced and what does that mean that the process had to have surface well does the russians going on that there's going to be dispensed release that will be permitted does give some specific examples for example if you had a dispute before the national labor relations board that there must be an active live dispute and that there must be some concrete action that could be taken in concrete issuing a permit absolutely would be concrete the problem is there was no permit in process in place and perhaps i think the closer question is if what's before the city at that time is the question of whether to put a permanent process in place or not perhaps that would be a closer question and the question that there will in the future be consideration given to issuing a slim of a number of permits that discussion isn't relevant because why that discussion was not in fact a discussion had what mr kimber was doing was creating creating an impression of something there was no actual evidence that there were discussions and the city of compton about creating a permanent process had those discussions actually been underway maybe this would be a different case but again the nature and extent of mr kember's deception might be relevant to liability under a different sketches for statutory scheme such as hobbs act bribery under color of official right which is the freeman case that the government has again repeatedly tried to import into section two a one liability but it simply is not relevant to section two of one liability and if i could just add mcdonald does provide or at least suggest a limiting principle and item that can be put in an agenda track for progress then checked off as complete and simply wasn't the case with an issue once of a permit to green legends it could not be put on an agenda track for progress or tect off as complete before any public official did you request an instruction directing the telling the jury that they had to be unanimous on a particular one of the five alleged official acts i don't believe that haven't been asked to find yet or that my and the emphasis there is on the fact of the jury returned a general verdict if the jury had been asked to make specific findings then this court could know concretely whether this one in sufficient official and had formed the basis of the jury's verdict and if it had then the verdict would be insufficient if it hadn't been the verdict would be upheld and this case because it's a general verdicts the president says where it could have rested on a legally insufficient ground it must be overturned there are no questions about this issue he wanted to say something i do and i will sit down thank you your hon joint proposed jury instruction if you are seventy four the jury was instructed that they had to agree on which official act given that there were five in this case like to move now to defense counsels and possibility argument judg correct that to a one states that things that may become pending in fact to one even says things that could have been brought in this case is a question that the issuance of a permit is the type of formal governmental action congress invision and that mcdonnell said would constitute formal government action just because green legends might not have gotten a permit doesn't mean that they couldn't have applied and been rejected i mean that is the type of government action this case and in fact tons of cities issue marijuana permits  the state of california that is no question and if permit ing is an official government act and i'd like to turn now to the record in this case the defendant's statements in recorded meetings with the undercover agent are evidence the defendant said that although as i understand misspells argument on behalf of mr kim brew is that he essentially made a false promise because there's no indication or no evidence that the city of compton was even considering allowing a limited speculative to constitute official act what's the government's response that was defense counsel's argument on how the jury should interpret the evident as it stands at trial there will be these recorded statements where the defendant said behind the scenes the city of co allowing five marijuana dispensaries to be permitted in the future if you give me five thousand dollars i can put my thumb on the decision making scale make sure that you're one of the five the defendant did not testify at trial and say that his statements were false it's nearly argument that they were in fact false the state of the record is that defendants own reported statements were that there were these discussions ongoing and the fact that the defendant has argued that this was just mere puffery doesn't make it so and that's not an interpretation of the evidence that the jury had to credit at trial be a city permit and that's something that we're guard this even if it didn't that is something that the defendant said in these recordings was something that was in process that was happening and that is the state of the record and the jury's interpretation of that evidence and crediting the defendant's recorded statements that is something that this court gives deference to in terms of the jury's interpretation of the facts at trial and can i just ask you what is your view on the on the legal question of if a if an official falsely and it flies in the face of what the supreme court has said with mcdonnell in terms of the defendant under twenty one it's a crime when the defendant merely solicit a bribe the defendant as macdonald said has to take doesn't have to take any action doesn't even intend to have to take action there is simply no case that says that in possibility the fact that the defendant might not have been successful in getting a permit that that is a defense that's not what congress intended and that's not what mcdonnell said what evidence is there in the record that there was not a permit process in the city of the defense called the compton city attorney who testified that at present i believe you testified that at present there wasn't a permit process one thing i would like to say about the compton city attorney's testimony is that the defendant in the recorded say recorded meetings with the u c seven got a lot of the public officials in my back pocket one of those being the compton city attorney and then the compton city attorney testified as a defense witness and said there wasn't currently a permitting process the jury did not have to credit that witness's testimony the defendant or the jury in this case is perfectly reasonable in concluding that the defendant was actually being truthful when he was recorded without being aware of it saying that behind the scenes there is talk about allowing five marijuana dispensaries to be permitted in compton so factually speaking in terms of the sufficiency of the evidence argument i'd like to say one more thing so one possibility is not a defense to the facts are not that it was impossible that as an interpretation of what the facts were it's probably that's not the only conclusion the jury could have reasonably made and one of the thing i want to say in this case is that there were two matters charged in the indictment that were argued at trial that there was evidence of that the defendant promised to take official action with regard to not just permit ing but also the shutdown of the shop and the defense has not made any argument that there's insufficiency with regard to shut down the shop and one of the things i want to make clear is that  argument just now defendant seems to be misrepresenting the state of the law regarding general jury verdicts and alleged insufficiency claims and i want to make this clear the controlling rule regarding such claims is that we're only one possible basis of conviction is unsupported by sufficient evidence a general verdict must be upheld and that's griffen be united states five o two us forty six dollars in such cases the court presumes that the jury reached its verdict on the basis of a correct assessment of the evidence now griffin addressed the cases defendant cites and squarely held that they are limited to situations where one of the possible bases of convictions was either unconstitutional not a political here or a legal also not a possible here so moving on i'd like to address some of the other defense counsel's is which held that merely clearing a governmental database does not constitute an official action government has no disagreements there that's not something where just clearing  database shows that there's going to be action taken on a matter that is pending or could become pending that is wholly separate and apart from what the defendant promised to do in this case which was exert his influence to try to get the shop a permit and also try to prevent it shutdown instructed this it must be reasonable under the circumstances for a pair to have the impression the official possesses the power to bring about official action even if the official does not have the actual power to do so it sounds similar to what the government requested  instruction on this issue but it's not what the government request in this is an excerpt of record ninety was that specifically laying out for the jury that the government does not need to prove that the defendant had actual or final authority over the end result sought by the bribed hair so long as it would have been reasonable to conclude under the circumstances that the defendant had the influence power or authority over a means to the end sought by the bride pair not that it would have been reasonable in every situation that the government would have been forced to prove that the defendant could have made good on his promise and there are different and one thing i want to say about the ineffective assistance of counsel claim is that this is a jury instruction that the defense requested and it was clearly strategic within thirty seconds of end of this trial you're not going to be able to find bribery because it would have been reasonable under the circumstances to conclude that the defendant could have made good on any of his promises then the defense is request for the string struction was clearly strategic because the defense was faced with a very difficult situation there were recorded audio and video recordings of the defendant threatening to shut down the shop have it shut down and demanding this bribe so of course this was a strategic decision by the defense counsel at trial and that's even if the court gets reaches the merits of that in this case because frankly claims are ineffective assistance of counsel claims are normally handled through petition they don't get it so that issue is regarding the reasonable in this instruction does not even need to be addressed by this court at this time i'm happy to continue on if the court has further questions regarding sufficiency of the evidence or a possibility or any other questions on this case we have any questions thank you very much appreciate the time thank you let me begin by addressing the issue of general verdict so i apologize for having muddied the waters by citing unanimity because they issue really is the general verdict and the jury here did not make any kind of finding and was not instructed that they had to make any kind of finding illegal verdicts the general verdict must be set aside and that's exactly what we're arguing we have here which is an illegal verdict it's one that legally insufficient and does not fit within the statutory framework not not anything otherwise so i think those cases accuse those to be really one of the country's fictions you mean like if there had been evidence we had this discussion of if there had been evidence of you know a permanent scheme that was sufficient in your view that that would be a legally sufficient basis for a conviction so i understood jurgen to be really a blunt about the sufficiency of the evidence the argument really is one of statutory construction it turns on whether when the court interprets the terms pending and which may by law be brought the court requires those to operate in the city in order for the jury to have credited mr cambers testimony there they had to have found that craig cornwall the city attorney was lying and while i understand that all reasonable inferences must be drawn in the government's favor on  a sufficiency of the evidence standard that simply was not a reasonable inference to draw in the government's favor the government never attacked corn credibility his testimony was not impeached in any way and he testified that there was he said that there was no permit process currently in place what was his testimony on the behind the scenes considerations he testified to that basically permanent i'm sorry that dispensaries were categorically barred there that was simply the state of affairs there was no will room behind the scenes as to whether they would at some point be allowed in the future they were categorically barred he also testified that he made the exclusive decision whether to shut promise to do with he used his influence to make sure that the dispensary could open his promise to make sure it would not be shut down much of them i argument there and we did brief this quite considerably so i know that i don't have much time to address it but in our argument there is that mr kim who had it was not within his official capacity to do anything to make sure that the dispensary would not be shut down government's theory at trial and you know this is to me it's quite shocking that we're here in the government is not relying on this theory anymore but the theory at trial was that it was reasonable to believe what mr ken bruce said and that the reasonable impression he created was sufficient for liability and now the government seems to be reversing course and saying that in fact that is no longer their argument but at trial that was their argument and that is you know was the basis of kimber could accomplish these things that in fact there was no evidence were within his official purview that his conviction should be upheld what times of this my colleagues i mean the additional questions the matter submitted thank you very much t