produced silas and i represent former correctional officer christopher williams there to get to issues that i want to present to the court one relates to the defense of entrapment in the court's failure to give the instruction and the other one relates to mcdonald's versus united states i think that the key to deciding this case in terms of entrapment is this court's interpretation of the word persuasion in this case the government hired a paid informant and then authorized him to make an obscene lehi offer to prison guards that it wanted to lure into its sting operation the government was somewhat overzealous  informant to make an offer of approximately one month's salary in exchange for about one hour's trouble when you say when you say i've seen lehigh in your briefing you mentioned this the one month salary the way you phrase that by tying it to the person's salary are we necessarily looking at not the dollar amount but then the financial circumstances of the defendant according to your argument even though the government isn't responsible for the financial circumstances of the defendant well the key is again in the word persuasion and for someone who is making twenty thousand dollars a year which the government well knew when they attempted to lure these officers into their operation the equivalent of one month's salary is very persuasive in terms of getting someone to participate but it's not only the financial accounting board where's the where's the line what's the ratio between his monthly salary and the amount of time he has to stand there we work out what he's hourly rate is and say well if he's just riding in the car for an hour well that's an obscene amount of money for that i don't understand the court has in the past talked about the fact that there could be a point at which the dollar amount is too high but the court has never john a line we're here asking the court not to find that this is entrapment as a matter of law but to some at to submit the matter to a jury based in part on the amount of money per hour i guess his hourly rate is that what you're saying monthly dollars and i'll judge it depends on the person and these particular people were making about twenty thousand dollars a year so i would think that there'd be plenty of law firm partners to whom a one thousand dollars wouldn't be a very w it courting to you for the jury no judge that's not my position but tell me where for these defendants it became a jury question and want hourly rate well if we were relying only on the dollar amount then i would understand but in this case we're not relying on the i r s you do in part on the dollar amount where in part does it become a jury question based on the dollar amount based on the know that these defendants make twenty thousand dollars a year you've told me that yes judge walk at what hour early right does it become a factor that makes it a jury question and i will not have an hourly rate to post to you that was not my argument below what a miser the district judge supposed to do with your argument you won't give me a hourly rate so whenever there's money involved goes to the jury well again that's not actually my argument my argument is that the dollar amount that was offered a couple with the fact that the informant offered the equivalent of a blank check to these officers couple with the fact that he gave them a litany of persuasive points and persuaded them to be involved in this those are the things that we relied upon to ask the judge to give the jury instruction when you say blank check you're talking about the one comment that was made where take care of my people is that what you're referring to is more than one comment judge that is how he put it at the beginning of the meeting but towards the end of the meeting he also mentioned that if there was anything they needed if they got a traffic ticket or anything just call him and he will wire the money he put no upper limit on what he was offering and then when my client called him in november of two thousand and fourteen to let him know that he wanted to follow up on that offer of a blank check he told him that what he the key to that was recruitment of more officers so we know that mr williams did focus on this offer of a blank check and this court has never held that an unlimited amount of remuneration is not persuasive this court has not talked about a particular dollar amount either judge as the court has already noted  government i know is going to make two arguments and one of them concerns derivative entrapment i want to make it clear that my position is that christopher we are is not a derivative entrapment  defendant and in particular this course of jurisprudence in brown and in walker shows that when someone else introduces another person into the wrongdoing that is not the point at which you determine who's making the persuasion the key point is who persuaded the person to be involved in the wrongdoing in both walker and brown someone else introduced the person but that person still got the entrapment instruction based upon their contacts with the government informant another argument that i expect the government to make is that mr williams participated in this on a number of occasions and i wanted to let the court know that  the supreme court case sharman versus united states that case two was a case where there was a series of transactions but that did not bar the defendant from raising the entrapment defense i would think you argument  we didn't join until after you heard the pitch from there and that is my argument judge so if it coconspirators had talked him into it and he had joined before he ever encountered that the facts played out i don't want to neglect to get to my other argument which i also present to you as reversible error and that consigns mcdonald versus united states the defendants requested and this is relates to the hobbs act counts we requested this court's updated panicked pattern charge following mcdonald versus united states but the district court refused to give the charge and in fact gave absolutely no definition of official act but the district court refused to give it because they said that it didn't fit the facts of this case correct that's what the district court said ok and in the mcdonnell case the parties had actually agreed that they would define official act by looking to the bribery statute but we don't have that here that is correct but in mcdonald the supreme court said that if there wasn't a properly cabined definition of official act then there were constitutional problems with vagueness but of course if you look at what actually happened in this case the government got up in argue that putting on a uniform was an official act and the defendants got up in argue that putting on a uniform was not an official act and the jury had absolutely no guidepost by which to evaluate whether the government was right or whether that the defense was right but what about the fact that the mcdonald case which involves a governor and the governor the district court said that this doesn't bear a resemblance to the situation so if the jury trial or judge if the facts of that case don't fit this case why would the district court judge that charge i'm glad you asked that question i see my time is running down is the important question and so the answer is this there's no reason to think that the mcdonnell case is in applicable to a prison guard imake down all the the person who was bribing the governor  for association with his product in hopes that the governor's association with the product complete my answer sure in hopes that the government's assault that the governors association would turn into benefits and they would make more money in this case the way the sting was set up the informant was paying the officers to wear uniforms so that when they were stopped a police officer would see their association mr o'brien mr smith as to our now see reserved a minute each for a reply not experience has shown me over the past quarter of a century that lawyers do that because they think once i get started the judge won't stop me and i promise before well and there's a principle that holds that if the rule if the reason for the rule doesn't apply the rule should apply and that's the rationale and is not basis for is not and was a does not and didn't have any direct contact with the agents consequently he shouldn't have had the benefit of the entrapment charge and that was the reason for the course the converse of that rule also applies if the reason for the rule does apply then the rules should apply and that is the case with mr falwell and and said that she had met a guy real cool just like to help people out you know i know you need some money you should talk to him i thought about it i was like i don't know she eventually gave me is number but i still did not contact him as a result of your conversation with ms brooks and what you just told us what did you do if anything he called me shortly after and i said mr woodard he said yes turned out to be mr woodward yes he called you yes he basically told me hey i do transport you just have to ride with me twenty or thirty minutes you'll be in and out of there did he suggest this is significant here did he suggest anything to you that he knew you had some outstanding bills answer on the telephone calls but they're not here i haven't heard that he knew about my do you why he would ask how was it going he told me if i did the run i'd have enough money to pay for the dui and i wouldn't get probation i could keep my job now you asked about the incentive to keep to miss silence here and how much what's the bright line here what happened in this case it's not so much about money it was about job the background is this that mr if well and had a dui and there were expenses that are attendant to the dui and if he had to pay the expenses he had a choice of paying him up front or he could go on probation and pay them if he went on probation your honor he would have lost his job you cannot be own probation and be a prison guard so consequently his concern was keeping his job and this was the inducement it was offered to and if you take this take the bait you'll be able to keep your job now certainly has an economic component to keep in your job which is a lot of other reasons why people keep their job maybe like his job maybe he didn't want to get fired from his job because it would make it more difficult to get another job but the point is the inducement that mr woodard offered to mr falwell and at the conceptual stages of this entire incident was that if you took this bait you could keep your think that's necessarily the law and i don't think that's factually accurate the law says but how do you get around the derivative entrapment problem where where brooks has brought your client into this i disagree she didn't bring him into this if you read the transcript you will see that she told him about this guy and then he said he has a tape he did not call this felon this fella called him he had direct contact in total con after he said  after who said what after your client said want to quote coconspirator well i just read about the testimony was one day she came to me and said she met a guy real cool he just like to help people like you know i needs it she said to him i know you need some money you should talk to him i thought about it i was like i don't know she eventually gave me his number but i still did not contact him and then mr woodard called him because ms brooks had also given mr w smith please the court learned smith and i represent chelsea mayweather and i too am going to talk about entrapment this morning we'll do that let me ask you why did you not adopt their argument on that donnelly issue you know i thought about adopting the ar mcdonald the show believe in my particular case based on the senate saying that it that it was not appropriate mike i don't understand based on this that i thought that the the sentencing should we should we prevail on the entrapment issue which i believe is the main issue for my client and then that would also encompasses mcdonnell issues if we were not able to prevail on that issue then i thought that the sentencing would would essentially be it would not increase the sentencing i certainly think that that may have been  get i don't believe i had anything to gain what do you have to lose well and i suppose i probably should have adopted that argument your own ok go ahead with your other organs certainly on it and in this particular case we're dealing with a situation where there were two instances of inducement for for miss mayweather the st one was when she was contacted by a codefendant in the case and what's interesting about this in that in general terms derivative entrapment is when a private person bring someone into a conspiracy but in this case i think it can be argued i think that we have not seen this before at least not seen in the cases in eleven circuit cases that  an agent or at least a sub agent of the government and the reason that happened is they were paid they were given a commission to bring people in this is not a situation where the co defendants were told bring your friends in they can all enjoy the benefits of this this was a situation where they were told you bring your friends and we will bring give you extra money we're going to pay you to bring people in that takes away any of the reasoning behind not having derivative entrapment for instance that with drave you have the thought that well these people are not being paid they're not an agent of the government so they don't have to have the control and this situation they are being paid they are giving commissions they would have to have that control they would have to have some sort of control about what was going to be told to the to the defendants and i think that based on that the derivative entrapment doesn't necessarily apply to mislay whether it's case the facts were that she was called multiple times that she didn't want to do it at st that she was continued be called until she finally moved in and joined the and went in to to listen to what mr woodard had to say and mr williams the person that did that got paid for that and i believe he got paid a significant amount i think the record shows that it was somewhere between a eleven thousand five hundred dollars just for bringing in other people but you don't have to just go with what might be seen as as i guess a de facto agent because she also went to the scene and when she went to the scene she was induced by agent in fact i think the record showed that that she didn't at st want to even look inside the bag she was afraid to do that she indicated that she there was more money that she ever seen of her life and so we get back to the money issue your honor and i think that in this particular issue it is a lot of money and i think that it may be appropriate to because what you can't do and i think that let's say you set a dollar amount you set an hourly amount well that's going to change every year i mean things change the economy's change what's what's going to wonder is not good let's just i'm sorry and put inflation adjustment on i'm being facetious just so how silly your point is that the amount of money is critical because you can't pick an amount of money in a given case we need to give instructions to the district court about these matters and if we say the amount of money matters we've got to have some kind of general description about what we're talking about i would submit to this that if the amount of money matters then it doesn't necessarily mean you have to set a not a number i think that if you can show because you have to show two things you have to show inducement and you have to show predisposition and if you can show that they're not predisposed to the crime and that there isn't a duce made of money no matter how small the amount then it does become a jerk i gave you ten dollars if you would do this if i wasn't predisposed to the crime then then i think that that is a question that the jury would look at and they would determine because that otherwise you don't have  amount regardless of the economic circumstances of the person being solicited to join any dollar amount sends it to the jury but it still has to meet both prongs of getting it to the jury you have to show that they were not predisposed to commit a crime before well that would be very fact of offering them money to sort of suggest perhaps it goes to your point that maybe they weren't predisposed i've offered them ten dollars even though it's a law firm partner know that go to a jury i don't see why it would not go to a jury and it might sound like it's ludicrous that somebody was offered ten dollars you know go to a jury but the jury would mean you know the jury may look at that and say we're absolutely rejecting that that's a ridiculous amount of money we don't think that's it and then the government some attorney said don't touch it because it's going to be on you're here and it's going to be oh my here and would say yes sir and the government's attorney said what are some of those consequences and get out of the but that was already after he said saudi's language like it sounds to me like that's why i asked question nationally that that was an implied threat not get involved not to don't circumstances someone took his position after hearing for the st time a drugs were involved and after hearing the threat is that how dangerous they were could feel like if he was dru at that moment he could be in danger and there could be a jury question for them  statement at the outset of the oral argument that the word to focus on here is persuasion as to the entrapment defense and i would assert your honour's that the word to focus on before assessing persuasion is the word initiat initiator is not a government agent whether that's an undercover officer or a source working for the government where the initiator is a is a unwitting participant there cannot be entrapment and that makes sense because the purposes of entrapment is to kind of discourage and prevent improper government conduct and where the initiator of the criminal activity is not a government agent then entrapment necessarily should not so does the initiator have to do as the initiator is it enough to introduce two people is does the initiator actually have to persuade the person to join the conspiracy what does the initiator have to do because you've got the other side who's arguing yes they may have made introductions but woodard is the one who persuaded everybody to join and woodward is the government agent  have two answers to that question are st as to the nd part i think that mr woodard did not persuade any of the defendants he just explained the logistics as to what was going to happen and as far as the definition of initiator the isn't it in court doesn't spell it out but i think the facts from isn't didn't give a good example of what initiation counts what it initiation is and so in the is worth taking a look at the isn't in case in that case some defendants received instruction one person did not mr isn't it and that's because he did not have any interaction with the government agent until the time of the proport and robbery of the drug stash out that stash house that was at issue in that case and so he was on a total entrapment offense because he was initiated he was brought in to recruit it is a term that i think could count for initiation but he was brought into the criminal conduct by his fellow co defendants when he arrived he still communicated with the government agent the government agent did a number of things and we've referenced them in our brief but he did things like explain where we needed to go what was needed to be done they they worked on putting the tents on to the car even at one point the he offered money as well and mr isn't was also offered money but my point here is that the facts are strikingly similar between isn't it in this case which of these defendants joined before they had a meeting with a conversation with a government agent all four of them your honor that's not what you posing councils well i don't think i think you're referring to mr to mr hart's argument on behalf of mr tucker and i would  t that it's not plausible based on the facts in this case that mr tucker had never heard about the fact that this was about a drug transport when he arrived he arrived in uniform he arrived well ready to go when he was explained that  you know this is cocaine and this is math there was no reaction to that like oh my gosh what is this all about it was clear from the circumstantial evidence that mr williams had explained to him what this was about and in fact mr williams spoke with m but we know from what mr williams told mr woodard and we know from the way tucker reacted to the deal when he showed up to do the transport so it's your position that all the defendants had joined the conspiracy before the chatter's meeting yes is explaining that she brought in mr flew on mr flew and it made it on the stand when he testified that he was brought in by brooks and there's also evidence from the call between mr fluent and mr w within one minute of that call starting mr flew on is revealing information about what prison the tactical squad of which he's a park is going to hit next and the reason he's doing that is because miss ms brooks said you need to tell what are the c h s that you're in that you're ready to go and so he immediately demonstrates even before the st deal that he's ready to go and again the circumstantial evidence from the st deal although that was not video recorded is just audio it shows that mr flew well and had no qualms about what he was doing and he was ready to go he was already part of the conspiracy as for mr williams last because he's probably the most complicated i've already address flew on and and and tucker ms mayweather is very similarly situated to mr tucker and i would argue a lot of the same things that i did for tucker which is that she arrives ready to go she arrives in uniform she does not react to the drugs when  they're st shown to her and when she's asked are you sure it's ok mr woodard says look she actually says mr williams step out of the car so i can talk to ms mayweather by herself because he says i want to make sure that you're ok with this and she says i'm fine i'm good i'm all right and so for those three again all three of them are in the conspiracy when they st meet the c h s now with with mr williams the argument the messiah is making is that the chatter is meeting that he's on the fence and that the chairs meeting is what persuades him and i would argue that that is not the case persuasion that reaches to the point of inducement happens and money is not a good brahman barometer as you've already pointed out what is and this is what the cases say is that the way to assess improper inducement is repeated attempts to get a defendant apart to put over the defendant's objections and here that didn't happen and so we have mr williams listening and then mr williams participating and so although it's a little closer call with mr williams it's still clear in our opinion that he's part of the conspiracy when he shows up at the checkers meeting but i should point out that mr williams did the did nine different deals your honor nine different deals he brought in six other defendants so at best as to entrapment mr williams only be able to exclude the st deal and not the other eight because of the demonstrated predisposition from all the prior to years deals that percents post disposition not produced well it's if he had no predisposition yele overcame his reluctance and once he was in he went whole hog that doesn't he didn't have that doesn't pretty had predisposition logically doesn't follow what i actually disagree on or because isn't it in makes it clear that you have to assess entrapment as to each count each count so i'm the nd the on the  deal so i want so you can trap and don't worry just keep the operation going until he does it seven times eight times nine times throughout the st one get the other eight that's  s he makes that sacked criminal action all bets are off it doesn't matter that he was unduly persuaded to join the conspiracy i mean obviously the st example was would be duress and not entrapment off you need to slow down there's evidence in the record about this and mr williams after that pushes to resume so how can we say let's say hypothetically your honor that he was entrapped and he wasn't but let's say he was entrapped in the st deal when he's excluded from the conspiracy when he's construed it excluded from the criminal conduct by woodard and then invites himself back pushes himself back and how can we say that he's entrapped on those later not eight does later seven deals just because of the but if there's a jury issue as to whether he pushed himself back in and there's a jury issues about pressuring predisposition that that doesn't explain the failure to give an honor i my point is simply just that they have to they do have to be assessed based on the facts of each deal and the example shows why that is because facts do change over the course this is a year long participation and there were nine different deals like i said mr williams  official they had official act and their official actions related to them being prison guards right corrector are understand that but a prison guards of fish all actions don't extend certified officers at all times they still have oaths and i think a certified officer doesn't mean they have the authority of the law enforced correct but the official action in this case is not refraining from arrest mr williams is mischaracterizing what the official action is in this case the official action is not with refraining from arrest it's wearing the uniform wearing the badge to exert influence on another government actor so why  is that an official action where in the list of their duties are in the law are any department regulations just say your official action is to wear the uniform to influence other law enforcement the official action comes from the mcdonald case which is that you can without having the power yourself so although they don't have the power to arrest they can use their position as official law enforcement officer to exert pressure on another individual and there are a number of cases where is that the mcdonald case the macdonnell opinion makes it clear that one of the ways that you can perform and the language the decision or action which is the official act may include this is quoting i'm quoting from donald may include using his official position to exert pressure on another official to perform an official act but he wasn't exerting pressure on anybody yes he was as they always were he was in the car in the event of a traffic stop and again it can be about a pending matter or a matter that may by law be brought it could be a hypothetical future matter so that's from mcdonald this is the language and you can and what he is doing what each of the four defendants are doing is they're wearing the uniform to exert pressure on a potential other police officer who would conduct a traffic stop so if he'd gone home and changed clothes he wouldn't be you know correct so if prison guard long day working overtime stopped that dollars last night there openly goes and gets a little some coffee jail the uniform that's an official act based name mcdonald's no it's not because it's not  stop and the real law enforcement officer has to make a decision do i do a criminal investigation or do i not by exerting pressure on that other police odyssey exert pressure on his presence and case your honor no i do runs from your facts which are trying to fit to the law you know he drives for it derives from an actual incident in which phoenician mine or another defendant was driving during one of the drug transports that wasn't the issue in the trial and there's evidence from the trial about this ms minor was stopped a real police officer approached the car and said i see you're wearing blue and they said and that police officer did not initiate a criminal without a uniform if there's not an attack in intent to exert pressure she intended not to get arrested you know but the analysis has to be does the defendant intend to exert pressure on another i don't understand how wearing a uniform exerts pressure i've been around law enforcement st half of my career and i never felt that one law enforcement officer thought pressured by another all law enforcement officer unless it is a direct supervisor but the analysis is what do the defendants intend to do and the record evidence is clear that based on the conversations with the c h s that that's the purpose that doesn't mean they're exerting pressure i disagree on i think it does i think if they're attempting to influence the behavior of another government actor and i think there are cases including a recent one so you would have to influence behavior is exerting pressure so if you have a lawyer who comes out and tries to go shade to deal with you he's exerting pressure on you i believe so yes really yes so you're exerting pressure on me today by arguing this case right absolutely and the same way with mr macdonald if he were to take a bribe set of a meeting and then do the additional step of exerting pressure over the scientist at uva he would have been committing an official act but what was missing in that case was the pressure how would he pressure what would he say to exert pressure in the macdonald  so in the supreme court they said putting together a meeting or having a vent is not enough right all right so the u v s scientists come to the party at the governor's mansion and rather than just introducing the businessman for not a thought he actually urged somebody to urged some people to go along with i don't think the facts show that you're on and that's what was missing and that's why the government i think ultimately dismissed that case because there wasn't pressure if he was bringing in the scientists and saying you know you better do this i need you to do this well that's a different story in the car didn't you better not check this car i need you not to check this car that's correct because none of them ever and were stopped unlike the finisher minor example but the intent is there the purpose is there and the reason for their presence is to exert pressure but so in your scenario if a prison guard is leaving the prison driving home and is in uniform and stopped for speeding just driving home and the police officer makes that same statement that was made in the minor case that would not be a problem because the even though the guard was wearing uniform the guard did not intend in that circumstance to exert pressure just happened to occur correct and also there wouldn't be the quid pro quo there's no bribable so no one is giving that to them wearing the uniform riding along for the purpose to prevent traffic stops and criminal investigations i should point out though your honor that even if there's a disagreement about whether or not this was an official well whether or not there was an official act i think that there are cases that show that this that this was i mean the eleven case i did want to point out and this is a case that comes out of the district of new jersey this is sally wooden this this i became aware of this case after the briefing was concluded and shortly before oral argument and i think that's a good example on this point and i would or i think it's even though it's a district court opinion i think it's worth considering because in that  that case the defendant there what he was doing was exerting pressure on others who were making decisions over government contracts and although he didn't have him his ability to do them himself his attempts to influence those decisions was deemed an official act under the harmless error analysis anything in this record about when a prison guard can or should or may wear uniform off duty there was a testimony from a department of corrections official named ricky myrick and there was a believe discussion about the code of conduct and appropriate uses of the uniform i think if i recall correctly your honor they're allowed to wear the uniform to and from work but they're not supposed to ride around town and that and certainly they're not supposed to use it as a means to influence other there was testimony on this point and it was the st witness i just can't recall specifically but i do believe there were allowed in limited circumstances to wear the uniform to and from work like driving to work but not have to unless you know a change in the car in the parking lot which right that but my point is if they weren't allowed to do this if they weren't allowed to wear the uniform off duty off hours as they did how is that in the fischel act well it's the same point i'm trying to stress which is that it is the uniform it's the official it's it's it demonstrates their official capacity granted they're not supposed to be wearing uniforms outside the like it's and i shall action but your honor mostly ok so another example would explain this would be mostly mosley's the case out of district of delaware and that's it that's assessing whether or not a prison guard who took a bribe to smuggle contraband into the prison committing an official act now certainly smuggling contraband into the prison isn't an official act within their job doings that i had to be smuggled in i can't recall how the guards in that case smuggled and but it was smuggling was brain stuff that should not be brought into the prison clearly that's not part of their job duties but they're using their official capacity you know part question is why the government  d why you have to stretch this and i think it is a stretch you might be right and they rule in your favor but it's a stretch you've got the illegal underline that smuggling drugs into a prison take that other example is a real scrap and can be punished seriously but the government kickstands here and says no this is this is u use it's an official action even though officially he's not supposed to be doing that and even though it's outside the prison and so forth and so on i don't understand the motivation of the government to you can get a sentence roughly equivalent to this on the major drug traffic is common well you're correct that even if the object extortion counts are vacated in remanded the sentence would remain the same because the sentence is imposed for all four defendants were what they were on each count concurrent correct your honor but this is an important issue for the government your honor because the pattern instruction for the th circuit is incorrect it's not applicable as written to law enforcement officers it's the only circuit that has this instruction that's going to stand that and there of to the chair of that thank you judge script and say this is wrong doesn't apply to law enforcement officers it applies to governor lieutenant governor's house chairs and all that kind instruction is goes much farther than any other circuit in this country in requiring things including the phrase must be like an agency determination a lawsuit or a committee hearing that that is not in brackets in this pattern instruction and that would have been an error to include that and it would have threaten our ability to prosecute these prison guards for public corruption cases where not every case includes a drug distribution count that goes along with it yeah i understand but what will threaten your ability to do that is if we come out and say no the government's wrong here that instruction doesn't apply i'm not suggesting that we do so but that's want to threaten that and  you wear the uniform to and from work and at work but not elsewhere it seems to me an official action is something you officially have the authority to do i respectfully discrete pending matter that that's a formal exercise of government power to exert influence over another law enforcement officer or a public official whether or not to engage in and if it's perfectly for the law enforcement context and i think fighting hard on this case and defending what the district court did it is appropriate here because it was the right decision and also the proposed instruction by the defendants was the wrong instruction it was not appropriate it was not tailored to the facts and one point i  my time is coming to an end but one point i wanted to make is that this official act argument was not this is going to the rd prong of the abuse of discretion analysis for jury instruction was the proposed instruction by the defendants correct no it was not we argue wasn't tailored to the facts and wasn't covered by other instructions probably not so much in this case but was a rd prong was it vital to the defense of the defendants and it was not it was not vital and that's why it's not reversible error or an abuse of discretion because in this case all four opening arguments the word official act doesn't appear in the opening argument and they put it was vital in the sense that if it had been given to you argued that you couldn't possibly convict these but up until the very end of the case is when the the even the specter of this defense arose and the reason it arose is is construing the evidence in the light most favorable government was this a crime was it an official action element sufficient to prove beyond a reasonable doubt so i don't i'm not sure i thought about the juror i was looking for a way out of the issue and i looked at the jury instruction requirements and the fact that there is wasn't really adequate fault but that just punch  to the sufficiency which is got the same core legal issues well in that well i understand the course position in that case assessing the correctness of the proposed instruction is where i think the decision could be made and i do think that's where it's important for the district judges to know that this pattern instruction as a currently stands needs to be tailored in the law enforcement context and your honor as i've said as for the reasons i've already said i also believe that the entra was properly excluded thank you thank you count the psalmist two minutes yes judge the instruction that we asked the court to give says that to qualify well the words i skipped let me not skipping a made a decision to take an action agreed to make a decision or take an action on a question matter constitute proceeding or controversy and saying the others no one agreed to take any action whatsoever if a police officer were to happen to pull anyone over and i think that's a key issue here just like in make dano the governor did not agree to take action on the anatomy blot case he agreed to have meetings and cetera and true enough those things could make it more likely for a now to blot to succeed but he didn't do enough for it to be considered an official action and that key whether it's a passive thing that is done or whether it's an active thing or an action in any event it cannot be the case that to have no definition of an official act is better than having the didn't the definition that appears in the this court's pattern charge that does say decision or action and i did argue official action repeatedly in after that mr woodward called him directly which is totally inconsistent with the rationale and is not he had direct contact with mr woodward and mr woodward offered him an opportunity to save his job you know us versus brown and all the cases a deal with us this is a entrapment is generally a jury question in sr on the burden on to do some of his light because a defendant is generally entitle to put a recognized defen to the jury were sufficient evidence exists and after that after the defendant meets aspired to show quote some evidence that the government to do so defendant to commit a crime to question of entrapment becomes a factual one for the jury to decide that's all we're asking here we're not asking for an acquittal we're simply asking for an opportunity to let the jury decide this and it's obvious that they were concerned with it from the note the jury sent that they were very concerned with the conduct of the government and the judge shut them down immediately and said you cannot consider the government's conduct this is not an  case for chelsea may whether the derivative entrapment is different from is not as well this was a situation where there was a government paid guard that asked her to contact the government agent when she goes to the agent she was shown a large amount of money in her words more money than she had ever seen to drive a some drugs from one area to the other for twenty minutes you know this operation started as an attempt stop contraband from entering the prison and it ended up with guards being paid by the government to bring other guards in to be paid by an agent to carry drugs up the highway it's a situation where they were offered a ton of money i think at the end of the day if you look at it that this should have gone to a jury for entrapment that thank you thank you counsel all right next case up is u s commodity futures versus