have please the court this case involves an unprecedented prosecution of a father for making alleged contributions to his daughter's campaign through the family's company under the st amendment the ban on corporate campaign contributions is unconstitutional as applied to payments from a closely held family run company because the government has failed to show that such payments pose a risk of quid pro quo corruption but even if the court concludes that and it's constitutional as applied it should still vacate mr wonder guns conviction it's as a district court recognized the critical issue in determining mr wonder guns guilt was whether the payments constituted regular bowl contributions or constitutionally protected expenditures but despite recognizing the importance of avoiding confusion on that issue the district court gave instructions that lord that fine distinction creating the danger that the jury convicted mr wander again based on payments that were not made to the campaign the government does not argue that any instructional error was harmful it's what is more the district court improperly admitted evidence involving mr wonder against conduct during prior and subsequent state election campaign the government proceeded to ride that evidence for all that it was worth highlighting the inflammatory details of the conduct the admission of evidence distracted from the thin evidence of the required specific intent and it poisoned the well by encouraging the jury to engage an impermissible propensity reasoning this was a close case in the district courts errors were either conceivably or undoubtably prejudicial mr wonder guns convictions should be reversed or vacated on the constitutional issue i think i would say just two things very quickly st the reason why the ban as applied to these sorts of contributions fails closely drawn scrutiny is quite simply because of the family relationship that would lead a candidate to favor a family member and the government bears the burden of making the showing that the ban is closely drawn to serve the interest in preventing quid pro quo corruption and yet the government cites not a single case of quid pro quo corruption involving intra familial contributions instead the simply the government simply cites cases in which politicians have acted corruptly for the benefit of family members and not surprisingly the government side it's not a single prosecution that is even remotely on all fours with the prosecution here and while the government relies on dictate in a footnote in buckley versus the court recognized in the text of buckley itself that the governmental interest in preventing corruption has less force in the context of the use of funds provided by family members and i think everyone  run from a family member to the candidate they're all cases in which for instance you know in the recast the district attorney is soliciting funds to hire his son or the skull is case a state senator is trading a vote in exchange for payments to his son and as we say in our brief we've identified only three criminal prosecutions in twenty years involving family members and they were all cases judge play that involved blatant misrepresentation zork broader schemes to defraud some additional conduct beyond the mere contribution now because my time is short i do want to turn to the two remaining errors in this case and in particular to focus on the instructional error because i think that that error was really critical and conceivably prejudicial sentence in the definition of contributions the introductory sentence which reads and i'm quoting the law treats direct contributions of money or things of value and contributions made by way of expenditures for the benefit of the campaign differently the problem with that language is it seemly conflates contributions which can be regulated and independent expenditures which cannot by referring to contributions made by way of expenditures the court essentially characterized expenditures as contributions the nd problem is that the instruction contained over broad definitions of contribution did not make clear that a contribution has to be made to a candidate or campaign and if you read on on our and seventy seven you see the definition that says the term of contribution includes i'm admitting some language anything of value made by any person for the purpose of influencing any election for federal office and to be sure these instructions include statutory itself and so while there are more recent cases perhaps more controversial cases that stand for this proposition this goes all the way back to buckley the line that the court drew was between contributions which can be regulated and expenditures which can't there's an exception for coordinated expenditures which are characterized as contributions and so when you look at these statutory definitions you have to interpret them with that supreme court case law in mind because if you look at the definition of contribution which problem that this is an area of the law that is very confusing and yet the district court gave this instruction which was frankly just too broad in the way that it defined contribution and if anything the government sought and mr heavily my friend sought to keep out language that defined independent expenditure the district court did include that language in the instruction but that didn't share the fundamental problem which was that the definition of contribution was overbroad and it's the district court recognized  granting bail this was the critic critical and integral issue in mr munder ganz defense and i see i have a minute left and i do want to hit the issue of the other acts evidence as well because that evidence was incredibly prejudicial government argues that that evidence is admissible either as rest jest type background evidence or under rule for a for b i think with regard to race just i i think the law was quite clear that this evidence does not cause i did not illustrate the cause of the charge conduct it did not complete the story of the cot so i think the real question is whether this evidence was admissible under rule for a for b now we think that this evidence have little probative value as to mr wander against intent in two thousand and fourteen because eleven evidence reveals nothing about his state of mind at the time of the two thousand and fifteen conduct was significantly different factually but i think the real reason why the government's argument here fails is under rule four hundred and three because the prejudice from the admission of this other x evidence substantially outweighed any limited probative value the government focused heavily on the other acts evidence highlighted the inflammatory details particularly the two thousand and fifteen conduct the bag of cash the check with the boy scouts memo line and any error here was decidedly not harmless and notwithstanding the single paragraph in which the government tries to argue harmlessness the other evidence of the criminal intent here the specific intent required for a criminal campaign finance violation was far from overwhelming and equally indicative of innocent mistakes so we think that because of the instructional air and the evidence errors the conviction the conviction should at a minimum be vacated but of course we think that because  contributions and expenditures on behalf of this daughter's secretary of state campaign why is it not relevant on the issues of absence of steak and intent i think one of the your arguments here is that yes there were expenditures made early on for her u s senate campaign but they thought they would be reimbursed and that they would the campaign would would pay back your client but the pattern shows that he did the same thing in two thousand and eleven that he made these lot of the same types of contributions for secretary of state campaign so why why and eleven conduct was more similar to the charge conduct in the two thousand and fifteen contract i think that conduct was still equally reflective of a mistake or a misapprehension of the law and i think it bears underscoring because i think this court has recognized that it's a relevant consideration that we're talking about conduct in connection with a state oh action and you know under state law at the time contributions from l c s were permitted and they were subject to limits rather than a and you know we're also talking about contributions to a different party contributions from a different corporation so you know i would grant you that an argument could be made that there is at least turned from its lengthy recitation of the relevant conduct to the critical question of intent this other acts evidence was the st thing that the government turned to mr heavily said how else you know that what these defendants were thinking house you know their intent that they did not make a mistake you have heard evidence that they did the same thing before and the same thing after that and seems like a good argument to me and it seems persuasive that the conduct continued the t thousand and eleven conduct continued in two thousand and fourteen but it may be prejudicial but it's certainly relevant and it's certainly seems to go at the issue of intent and sense of state  mean critical issues in the case and sure it's prejudicial to your client but i don't see it unfairly prejudicial that's all well i think that this court's cases do require judge griffin that there has to be factual lot there's a lot isn't there i mean what was the conduct was made in a state secretary of state can't raid the nd is made in a federal u s senate campaign but it seems like a lot of the similar conduct unfair it's not not just whether it's prejudicial but whether it's unfairly prejudicial is is the key well and that you judge for if and i would say that even if you disagree with me about the probative value of the twenty dollars of an evidence we still have the two thousand and fifteen evidence which involves very different conduct and which involves the inflammatory details on which the government so heavily relied and again i would point you to the closing because i check and so forth and so even if you disagree with me about two thousand and eleven i think that under this court's cases and decisions like belle and clay that this is a pretty straightforward case in terms of just classic evidence from which a reasonable jury could conclude beyond a reasonable doubt that mr evans knew or intended that the payments he received from mr wunderkinds corporation would not be reimbursed by the campaign but the government agrees that it has to prove that mr evans knew the payments would not be reimbursed and it didn't show that here the government's evidence in fact showed that was drammen and no involvement in champagne find any finance issues or expenditures or in insuring reimbursement or payments government's overarching theory was that mr wunderkind was heavily involved in the day to day running of the campaign he was the campaign finance chair and the government a d that mr lundergan was d involved in fund raising and finance issues and their campaign staffers talked to mr landor again about the need to reimburse corporate payments and in fact many corporate payments were inferences to that effect and the evidence i don't know i don't think there are especially in this context all the government has said is that he must have trying to conceal the payments because campaign folks didn't know about it or if these arguments were made to the jury and the jury didn't buy it and the insufficiency of evidence issue on appeal is whether a reasonable we think this is one of the cases which that standard is met here i think it tends to happen in cases like this where you have a minor secondary defendant brought along for the ride in the government didn't submit  evidence to prove an essentially what you're what your client brought along for the ride in two thousand and eleven for the secretary of state campaign well that they did introduce evidence of that in in this case and reimbursed mr hurst were that were they rehearsed where they reimbursed in two thousand and eleven no they were not but again mr hurst testified that his two thousand and eleven receipts he assumed they would be reimbursed by mr about the payments to the campaign finance people but there is no evidence in the record the government has not tried to defend that on appeal no everest records show he made any mistake or that he made any effort to conceal again all the government says is that certain campaign finance people in the campaign did not know about it but at the same time in their response to the motion for new trial at age twenty four  one says lexington project the government's own evidence shows there was d a women leading accident project going on east kentucky project expenses again there was an event east kentucky coal legislatures that mr bennett if you look at invoices that he sent directly to the campaign in our supplemental appendix you see one for radio ads in christian county rhymes ticket hyphen hillary all miners walk east so this is the same th up it doesn't work and so again we know this is a there's a high bar but it was incumbent on the government to show that mr ammons knew or intended that these payments would not be reimbursed by the campaign had nothing to do with mr and but which the government used against him as it did with some of the other things he the government sort of brought him and xeon to evidence was brought in company funds for state expenses and two thousand and fifteen it's not an innocent mistake no one would really try really trying to conceal an innocent mistake like for example making an illegal payment in cash because using cash would be a really really good way to conceal you're from the government next mr pemberley son pronouncing that correctly you are your honor thank you good morning and may th or your honor in this case the descendants seek to overturn one hundred and fourteen years of settled law based upon a single proposition for which they cite nola or that proposition that contributions from a family on corporation cannot give rise by definition possibility of actual parity with pro quo corruption is contrary biffy count count to your appeal prejudicial spillover because of the evidence that would be introduced at a trial souly on the reporting violations would be virtually identical to the evidence that was introduced at the trial below and that is contributions that were required to be reported and so all of their knowledge about the contribution limits and obstructions of level of corporations would still be relevant to showing that they knew they had an contribution anything of value any payment or disbursement for the purpose influencing election an argument is well that is that's too broad because back that essentially be an independent expenditure and we by the way make points to that language about anything about any dispersant for the purpose of influencing election being a contribution that he's nor what came before it which is the st sentence of this instruction which says that it is unlawful for a corporation  provided the jury is on page six hundred and seventy eight of the record and in this report there stated that a corporation on the other hand if there is no coordination to make unlimited independent expenditures that is if you make any purchase matter of a mistake this was a matter of accidental error then slipped through the cracks they argued and they tried to put in evidence to cross examination during the course of what they feared to arise as a  you answered this are i answering this question but with respect to the other accident us what part of the government's case concerning the defendants charged conduct was incomplete such that the other vendors on the campaign behalf and being paid by mr loughner he's working in the easement of the campaign headquarters yes you never comes up by all of these interactions and aim and for that reason we would argue this mission and for all those the accuracy of the instructions to know about now mr heavily has acknowledged that there is a critical difference between contributions which may be regulated and independent expenditures which may not but with respect i think he really fails to come to grips with the language on which we rely on the instructions and the problems with that language mr hadley does not dispute today that the introductory sentence in the instruction appears to conflate contributions and expenditures and instead he says well the no sentence introduced by consequently goes on to define contributions and to do so appropriately but that sentence the primary definition of contribution in the instructions does not include the critical limitation from buckley that the payment to exclude that language from the instruction on the ground that it was unnecessary and i think that language illustrates the problem if you look at that language it overlaps almost completely with the over broad definition of contribution on the previous page and so our submission is simply that there was a complete lack of clarity and i think even a lawyer never mind the later would really have been hopelessly confused in attempting to understand this critical distinction now mr hadley today says well that error was harmless but there is no harmless error argument in the government's brief that simply nowhere in our primary defense at trial was about the distinction between contributions and expenditures namely that mr munder going to not specifically intend to make unlawful contributions rather than constitutionally protected expenditures on the of an entry issue i think the only thing i would add is that mr have really is silent about the prejudicial way in which that evidence was used the references that he himself made to the point check the check with the boy scouts memo line and a whole lot of cash and there's a good reason why the government relied on those inflammatory details and that's because the conduct issue in this case was much less colorful and obviously susceptible to the argument that there was innocent mistake and so at a minimum we think that the conviction should be vacated and on the constitutional issue i think i would rely on our briefs and one thing i would to say very quickly is that while the government says that our argument about spillover prejudice was somehow waived we argued in the opening brief that the conviction should be reversed or vacated and when the government tried to draw distinction with the reporting counts it was at that point that we naturally made the the nature of the transaction and also that is driven supposedly concealed the payments on both of those involved the point that he didn't build a campaign or didn't tell somebody about the payments and i want to go back to the footnote in the government's response to a motion for new trial where the government asserted that the payment is a quote the payments to emmons were authorized by an agent and paid they were attempting to make a and as a vendor and so the notion that he's hiding something from a campaign when he is sending invoices and receiving payments to someone who is both a boss and a vendor for the undergirds company again he's kentucky the project referred to a specific project and it's right there is all the government's exhibits everyone knew what that project was at that moment and the same  with the women leaving lexington project in the very they're not as detailed as the government would like but if you simply look at both of them you will find that that the government's argument doesn't hold up finally i  our three of you for your arguments on this morning we do appreciate that will take the case under so mission and you may call the next case