procedural posture in that all parties agree that there was in fact mcdonald or up below in the jury instructions in the trial of mr carro and then the question becomes what he had been convicted even without a proper twenty one and like to focus on iran because i think at the outset what's most important is to remember this there are three different government entities here three different government organizations and that's been conflated throughout the trial and the process to date and the reason that matters is because the fact that there were three different government agencies is critical to this court's mcdonald's last fuck up two step i'm out getting before you get into that just if i could just so we can understand he is in fact actually innocent of at least two of the counts that we've referenced below so jurisdiction we it's probably before this court you know when you say actually it's your you're arguing that and that you're prepared to demonstrate in light of all of the agencies that a separate legal agencies that he had no legal authority over that he didn't he didn't sign contracts he going to magically waive his wanting to invalidate contracts are a two agencies that are the focus of  again a separate agency that affects council twenty one what's the relationship between and it is the it is the authority it is is his position it was issue with already over those no effort you know and that's the key here he what i'd like to focus the piano on because that's the kin to our situation because the jury in footer was not given the ability to distinguish was it merely acceptable recommendations that a public darryl did not pressure anyone there and what this means is he is a fact actually innocent of at charging a properly instructed jury would find consult in that which triggered the recent six but more over what it means it means that on the wall i mean i don't think that undercuts the argument right no it's actually it shows he's a fraudster he's could be he's guilty of crimes of dishonesty now you always presumed innocent but i'm sure the government thinks he's guilty that's why they indicted and i'm not going great it would enhance his credibility but if there's a separate crime going on that the jury doesn't hear about he's committing while on the witness stand and he's obligated mcgovern's obligated to present him in a way where he admits his crimes whatever they may be  that given the procedural posture of this case now with respect to count twenty this would be the type of new week available evidence that could be considered it's extra criminal activity by use it doesn't enhance is probably rightly destroys if he's on the witness to not disclosing the fact that he's engaged in criminal activity right and and and and you say subsequent to that the gist was in the question you say subsequent to that the government is better becomes aware that engages in criminal activity and subsequent to that day then indict him how does that how does that undercut his credibility is criminal activity it was occurring while you're on a witness to an unrelated matter so the point is crime you later on will say you should have been able to cross examine me about that crime that i subsequently committed to there's not what i'm saying in respect would be impeachment evidence on the use in mclean are so with respect to highland i can't dispute that there's a pending matter right there think there's a contract that involved the so called cold sport the county of lackawanna transportation system right in that involve d discussions regarding a contract that was eventually approved so now a contract is only so so we're going to have you had just begun your argument with twenty and twenty one so we're going to put twenty one aside but if i could speak to a twenty one it was more convenient to use just one architectural firm he says that it away to the appendix he said he agreed with using just one architectural firms or two that's at eight o six he wrote a letter to the other firm that when he cut them out saying you know record is devoid of any such pressure the only evidence with respect to anyone from cults is this mr quiet so that's why i'm trying to focus on finding testimony so with respect to those extortion  of pressure that was actually put on the officials from those different agencies we disagree with fact that there's no evidence of pressure but before we get to that mcdonnell itself said that the certainly with regards to the needy the colts board and find that there was pressure exerted there was evidence of that pressure being exerted actually exerting it beyond just an agreement to do so and ac whole a whole lot of evidence that i can point to that says that there was actual pressure exerted but he certainly agreed to do it by sending out used to to demand picking thousand and ultimately and that was downgraded ten thousand just has to be an agreement that the pay or asked to believe that the payee has agreed to assert it but there doesn't actually have to be a certain serving of that pressure now we would disagree with with court arrow and go to his counsel that no quarter so you have no authority and no implicit authority what is he doing negotiating the contract a contract that was negotiated very favorably for highland and it was done illegally without competing bids ultimately pattern of corruption with regard to these other contracts and not just other contracts with other entities other contracts with iraq or other contracts with highly and in the last where darrow can come in here and show that he is actually innocent factually innocent of every single one of those accusations he was a right so let's accept the actual innocence for a moment because i'm the next question but i don't want your answer to immediate impediment is is that an argument that can technically could bail in this twenty two forty one posture the government certainly doesn't believe so  credibility sufficiency of the evidence these are not things that are properly considered under twenty two forty one because those are separate from actual innocence and it is the actual innocence that supposed to be the focus of this court and the court below in a twenty to forty one proceeding so keeping them separate it means that they are improperly there now if you had a situation where someone a leak hants their testimony that may be new evidence that you can try and raise to a twenty to twenty five that that necessarily even at that point go to actual innocence moreover the whole basis of this petition was the change of law under mcdonald and so the new evidence that is entitled to be looked at that we have to stay focused on exactly what the inquiry years nucleus actual factual innocence i am going to come back to that simply because that is the framework that this court has that has to be used in twenty to forty one and whether it's it's clearly new we have real evidence that this court it's been over review capacity to consider but more importantly let's get back to what one thing he just said about even if you find the bonneau impermissible pressure because that is the said he agreed with using one architectural firm that's at page six with respect to only using one architectural firm he said it was more economical the money issue not pressure from carol that's the best they have on count twenty one in terms of  conviction should be vacated and remitted for a new trial in the legal theory is invalid if the jury instructions are based on the rooney's interpretation of the law so he can't come in now and say well disregard cold stiff disregard  course in fact the rest of the case may have relevance to sensing issues but if that those are two counts we respectfully ask the panel to focus most on because the government hasn't proven it is nothing in the record of undue pressure it required and we respectfully ask you