morning your honors may please the court my name is janice baseline i represented norton no more roscoe i will cover in my argument the issues that i raise concerning eighteen u s c three seventy one it is our position as you know case in addition the government failed to provide the to prove that and it's criminal intent as there was not i am asking this court to take a second look at section three seventy one i am well aware of the press in the history i am well aware that i'm swimming upstream when i was first appointed to represent mr moran sco i could not understand initially how his actions constituted a crime there was no monetary scheme no financial gain or loss no statute that he had appeared to violate and no regulation that i could find that called for a criminal penalty for its violation i could not understand his potential cup ability until i researched case law which interpreted section three seventy one and it was only after i read cases like hammerschmidt versus united states and first hankel and similar cases that i learned that interfering with the federal agency in any way was a crime i read this and i also knew one of the few maxims that i took away from law school which was there is no federal common law that it was from this quandary that i researched the law reviewed my client's actions tried case and then wrote this brief as you know i filed a motion to dismiss move for judgment of acquittal and propose a serious jury instructions that essentially all revolved around the same issue and that issue was that my client had no knowledge and no notice that what he did was a crime and that he had no criminal intent to break the law my client knew the hood regulations he knew the inspector should not provide a list of apartments ahead of time he was not an inspector he knew the hu web site allowed the same list of supposedly randomly generated units to be generated again and again he knew that no one in the history of how did it ever been prosecuted for this he knew that violation of these regulations  what they called this farm and or exclusion but what he will not know he knew that this interfered with the hoa quality control regime in a certain perspective he also he certainly was not aware of any can only tell see how in the respect that if they hit the list yet of time they were going to go make repairs and it defeated the whole notion of random selection of a partner it did on the other hand the random selection of apartments was approximately ten percent of the overalls for the primary school or for the housing authority the primary evaluation was really the outside surfaces the common areas the building systems and the financial reporting the individual units represented ten person i believe it roughly was ten percent of the overall store in other words the chelsea housing authority could flunk those individual unit inspections and still receive the same score that a way of saying they cheated i think she did not only can present the test well that was the government's position that they cheated what i would say is that  he certainly did not know about the swat teams in the various actions of the chelsea housing authority took he was not party to that and there was no evidence that he was he did provide them with the list ahead of time he also took other measures with chelsea housing authority such as he would do one hundred percent section of every single unit every year and those inspections his handwritten notes were submitted into evidence in those he would note this is going to be a to merit on a reac inspection this is going to be into marriage he provided them with a preventive maintenance policy and he would walk with the inspector on the day of the tour so he did far more than that and the other actions that took were designed to help the chelsea housing authority score high on this inspection i'm still trying to figure out what difference it makes that he only interfered with ten percent versus one hundred percent why is why is it relevant i would say it was rove in your honor because if you look at the the overall goal of the inspection well the overall goal of what is safe sanitary decent housing the overall goal of the inspection is to ensure that that exists and that my client while one of the ten percent exists he still work to ensure that there were safe sanitary decent housing in the hud the hundred buildings that comprise the chelsea housing authority but not the one who set up the inspection regime to work it is not the way they set up to work although i would say that it also set up the inspection to have an independent third parties who inspected and they themselves would have their people inspect when they ran out of people who had been a project and that's what sort of brought me to the issue that no one seemed to know that this was a crime and there were there was  testimony from three hundred employees including woman who had been there for sixteen years and was clearly a staunch supporter of a well respected employee she had no idea this was a crime and the same with the person who was an instructor and the same with the person innocent or not here i don't see how you fit into that that category because whatever whatever may be the case about the terminology i eat defrauding on our or interfering  no one could reasonably have assumed that by in effect circumventing the the entire scheme of of random samples of this this this would have been totally innocent act i understand that but also at the same time because of my mind's position where he had studied the head height regulations he did not believe it was a crime he did not have as i said to the best of my recollection those instances are rare in which one could reasonably consider the possibility that the act was totally innocent and i don't see how you could  question about it right but the question is is i understand your argument must the mens rea or include proof that the defendant understood that the particular act was classified as a crime that i know that is your position and what i keep trying to get at is we're where your client i think could not reasonably have been assumed that this was this was a at least an inappropriate or an innocent act within the scheme of inspections why would we take the position that knowledge of criminality is such it would be part of the mens rea because this involved unlike other like a criminal case with the unlawful this is very clear a typical violent crime for example this involved what was essentially the violation of a sub regulation of a regulation and when i looked through all of the hood regulations and even regulations in other federal agencies there are specific locations where they say  violation of this will be referred or for criminal prosecution and so it seemed to me that because this was such a small piece of a small regulation the lack of notice existed and especially where my client had been aware and as was brought out in the the testimony of the person who had done training they had always referred to this as a variance they'd never refer to it as prime it always been called a variance in the hut terminology and while what my client did as your on a has said does not appear to be innocent at the same time he did not see it as criminal he did not have a criminal intent to do this in part he provided the list of chelsea housing authority with the idea that yes they would work on their units but he also expected and provided them with information that they would work on all of their units because he was involved intimately with every single unit and every single inspection every single year not just the every other year of the react inspections the one problem i have with what you're saying though is it's a it's a very i know means really is person specific but you can imagine the situation involving a different inspector he was a consultant but i do i do understand that and i think that yes it did however as as the case went on and as i reviewed my client's actions he he did not proceed nor had anybody ever said this is a criminal violation who we keep coming back to that doesn't matter when conduct is the type of conduct that a person in his position w is wrongful conduct in any school child know that if you got a hold of the list that told you the ten percent of the teacher was going to focus on a new textbook that would be wrong but not a crime but you don't need to know that it's a crime there's no case law that you can point to that says where the conduct is the type of conduct that a person should know is not innocent and should know is wrongful and then some of that tomorrow for going thirty one miles an hour had not proved his intent in communicating that language as a threat required a reversal of his conviction and it seems to me that mr alone is new and well should have known that what he was putting on his facebook was certainly violent and would any ordinary person would see it as a viable threat so i would refer the court to the along this case as well which i cited in my brief on the issue of criminal and and here  this both in skilling where the court narrowed down what on the surface is fraud and even in johnson those are by analogies obviously they're not directly on point and even johnson where after many years of litigation and much litigation in various circuits the residual clause was deemed to be not not careful enough nor carefully drafted enough to provide fair notice to people one could say that in our career criminal knowing what their past was and knowing their criminal record would certainly know that they had committed acts of violence or they had committed other acts that were were deemed criminal but yet the court removed the residual was quite recently feeling that the language was not specific enough and if the court has no other questions i will rest on my theory thank you haberlin on behalf of james fitzpatrick i would like to address first and primarily the stumble out of the gate in this case the district court's disclosure of mr mclaughlin skill deeply in this case there doesn't seem to be much of a determination of his guilt based on the evidence subject to confrontation strictures mr mclaughlin it was not a witness in this case there was no cross examination regarding his motives for pleading guilty certainly he had a motive for pleading guilty given his other charges and there does seem to be a small dispute regarding how the jury would have understood this disclosure and i submit that the jury claim that would have understood that by stating that mr mclaughlin had pleaded guilty in this case for himself the jury would understood that he had pleaded guilty to the conspiracy to defraud but as opposed to the salary of conspiracy i'd like to focus now on the issue of preservation which jumps right out at you from the government's brief and i don't at the government seems to concede that the disclosure by the district court was not invited by the defendant's request for questions to the jury and that mr harasta as objection was timely i would s objection satisfied the purpose of the ways of raising waves roll as to mr fitzpatrick i understand that ordinarily defendants in joint trials must raise their own objections but the purpose is to allow the district court ample opportunity to assess the prejudice as you each individual defendant and in this case mr roscoe's attraction did give the judge that opportunity to try to assess the prejudice as you know mr fitzpatrick given that the prejudice was identical both defendants were raising a and again to give the district court an opportunity to cure the prejudice to assess the prejudice that was satisfied here the other elements of this is that the district court resoundingly rejected mr moroccans objection declaring that it had been waived because it was not timely raised and declaring that it was not a problem because the newspapers had focused on mr mclaughlin splay it was a problem because the jurors who had been reading the newspapers would have vating form over function if where we're requiring certainly mr fitzpatrick's attorney to stand up and raise an objection or identical objection after the judge has dismissed already restriction as better but i don't know whether the judge at that point realized that he should sue a spondee have kept the thing oh or had done something earlier on in the trial but the judge did as i recall  from the from the briefs take several opportunities to emphasize that the jurors were there to determine so only the guilt or innocence of these defendants and that instruction i i suspect would would not have made a great deal of sense or in fact have been the subject of any need had there not been the the the earlier reference to the guilty plea so in a in a situation in which sort of they've been having been no objection and i'm having gone by the judge was sort of between a rock and a hard place wasn't wasn't his instructions about the need to concentrate specifically on these individuals rather than anyone else a reasonable way to deal with the with the problem first i think those instructions really responded to the to the undertones in this case of a selective prosecution defense and the issue was raised by the government at the charge conference and i think it was raised because the government was concerned about prejudice to the government as opposed to the defendants and  is necessary because of the way in which this case and full of it so even then the judge was not willing seemingly to give a curative instruction to the effect that the jury should disregard mr mclaughlin still to play and and you took no exception to the conclusion that's correct trial counsel took no no objection to that conclusion but again i believe there's case law on the circuit and lord help me if i can remember any names but  discretion to decide what kind of investigation must be mounted to apply as a loud ation of jury taint but at a minimum there has to be an inquiry of the jurors as a group or individual e and i believe the case lies firm in that regard and so i agree your honor if if i'm standing here arguing that that your instructions should've been giving then i'm i'm subject to plain error  primary argument is that and encourage should have been made as soon as the objection was raised there was certainly time to do so the jurors were still undergoing individual questioning and of course at that point to the judge could have dismissed the pa right and this disclosure came from the most influential voice in the court room during during the selection during the selection process and even in the judge's initial remarks to the jury after the disclosure of mr mclaughlin still to plea he said from this point on you have to keep yourself immune from outside influences the disclosure wasn't outside influence i submit once it was from the bench and there was no affirmative instruction at any point during trial to disregard mr mclaughlin  in determining mr fitzpatrick skill or innocence there were instructions to consider mr ross going to strip it's patrick separately but in it as phrased that the judge emphasized that the defendants were to be considered individually  good faith belief in that they could have this list of that it wasn't a problem there was no regulation violating it or crediting the government's evidence arguably suggestive deceit or concealment mr mclaughlin is guilty plea likely cause the jury witness stand didn't feedback you say that he knew the list wasn't supposed to be generated until the day the inspection he did say he had no knowledge of the random sampling procedure he also said that he did not understand that to be a on the earlier argument but as in terms of a defense at trial played in front of the jury i think the allocate the assertion that i didn't believe this was a crime this i thought i had legitimate access to this i didn't have criminal intent  may play well a couple facts in my last few minutes here are that i again was missed and not highlighting the district court found at sentencing or stated at sentencing that he did not believe that mr fitzpatrick testif falsely and i think that's important here in the harmlessness analysis the government also did not seek an obstruction of justice and hence then there has to this trial testimony or to his grand jury testimony which at trial and now on appeal the government asserts was false and finally the jury manifested i believe it struggle with the issue of mr fitzpatrick's criminal intent by asking for an extended definition of willfulness in the context of this charge  as for the other issues in my brief i'm prepared to rest on the briefing unless the court has any questions thank you thank you object because the district because his co defendant had raised each action in the district court had overruled that but in the case that he himself cites in his reply brief it's to ribault lugo this court citing quoting from the seventh circuit said counsel has a duty to object even at the risk of incurring the displeasure of the trial or to insist upon his objection so the plain their standard of review does apply to this claim now let me talk about the merits of the claim counsel stated that there was never any kind of limiting instruction given and that is not true where you used you could see in your brief statement was there yes it was a mistake and it shouldn't have happened but the fact that it was errors just the very beginning of the analysis it was error but it was corrected almost immediately and i think in light of counsel statements it's very important that we actually look at what happened here which is in fitzpatrick's joint appendix t eighty and eighty one and in the first day of the trial transcript fifty eight fifty nine at the core is talking to the vineyard about pretrial publicity he wants to know do you know anything about this case and he says have you heard anything about the case  mr mclachlan has pleaded guilty in this case for himself it received some publicity the case has received some publicity so the context is potentially prejudicial pretrial publicity the court asks do any of you recall hearing anything about the case with that in mind and then he goes on to say two things this is direct the next thing it sets let me say something about that number one the fact that you have been exposed to some information about the case is not disabling necessarily but it is something that i want to explore the courts making clear that the context here is prejudicial pretrial publicity and the possibility that jurors might have been exposed to it and then he says number two you will understand that now that you are involved in the jury selection process you are not supposed to be doing any reading outside investigation going on the internet doing anything like that and then here the court says and this is critical you have got to keep yourself immune from any outside influence at all you have just got to put it out of your mind but that's think i agree with you that it was disclosed to the church that they were then swiftly informed that they had to put it out of their head furthermore in in many if not most federal criminal cases the jury is aware that a codefendant has entered a g limiting instruction in the jury was told to put it out of their head altogether but in those instances where the jury is told because a codefendant is going to come into court to testify that could have been and is subject to cross examination mcloughlin didn't testify here all the jury knew that one of the alleged coconspirators had with guilty and that these people were charged in conjunction with the scheme is a whole that's that's true but then the jury was repeatedly instructed first that it we didn't think this was a crime and you have the judge having already told the jury that one of the folks has already acknowledged committing a crime but that happens in many if not most federal cases the cleared the judges are very specific that they don't tell the jury that information where they're not coming in as a witness yes well we can see that the information should not be shared with the jury we agree with that but that's just the was not exactly point on takes a sort of little bootstrap here to say this was cured of construction of a real curative instruction we're basically told them why they shouldn't give any weight to macof when having but the court did that later in the general instructions there were many general instructions telling the jury first of all i had to consider only the evidence in the case and then that had to decide the guilt or innocence of each defendant separately independently of one another and independently of anyone else in the case so the jury was aware of about requirement addition to having been told not to consider mclachlan's you have to put that out of your mind they were also told that the guilt or innocence of each defendant was an independent inquir y what do you think the defense argument prejudice is i understand it is that in effect the defense was kind of asking the jury for almost a form of elephant patient to let them off because they didn't know whose crime was a crime but um what the judge indicated that one that a codefendant had pled guilty in this case ordinarily that might mean the charge before the court i don't think that's that's the case here because necessarily about the conspiracy but the jury had been told not to consider that in two two and decide upon the guilt or innocence of each defendant individually based on the evidence that was presented in court let me just briefly discuss the harmless error part of this mr fitzpatrick says well somehow i thought we had legitimate access to this information of the evidence at trial overwhelmingly defeated that claim it briefs a few e mails there were there were many aspects of this case that showed that all of the defendants understood they could not have access to this and then did what they could to keep it a secret there was the effort to lie to everyone working in the chelsea housing authority and tell them that mr sham had somehow come up with a way to get access to this information there was the effort to keep it from other people in the management of the chelsea housing authority who were deemed unreliable  there was mr fitz patrick's somewhat panicky concern about not disclosing what he referred to as mr murawski those extra services exclamation point exclamation point exclamation point to other housing authorities there was the fact that there were e mails going back and forth talking about using non chelsea housing authority e mail to discuss this and finally there was mr fitzpatrick's situation really apo of nothing to lie about this during the grand jury he brought it up during the grand jury insipidly lied and claimed that they had that the groups that had been put together to repair the small number of units that were going to be inspected had repaired all of  couldn't be overwhelming evidence of this but that's simply not the case sometimes when the defendant takes the witness stand he does more harm than good and that was the case s here because mr fitzpatrick although we claim to think he had legitimate access was simply unable to explain all of this havior all of this conduct that showed that he knew that this was improper and we in our brief i won't go over it now but in our grief we have we specifically list all of the things mr fitzpatrick said on direct and cross examination that were just implausible and mr fitzpatrick my brief doesn't take issue with any of that these are specific aspects of his testimony that i think showed that the government's case was overwhelming so even if one were to believe that the  jury thought this was somehow evidence in the case which is completely inconsistent with what the judge told them and with what the record showed the error would have been harmless because the evidence was overwhelming with regard to its patrick's intent to which is the essence of this i just want to move on very briefly to morocco's arguments i have little to say about them both defendants concede that the argument that thirty seven three the those arguments are simply not before the court today this panel has no authority to overrule the stream court precedent i do want to correct the record on one very minor point mr ross goes counsel said a couple of times that he was not and spect it's specter and the fact that he wasn't specter was what gave him access to this information he had that number that he needed to get onto the computer system in the first place he was not the inspector for this job but the fact that he was an inspector is what allowed him to access hundreds computer system improperly claiming that he was accessing it for work purposes and download this information the all the other point i want to make is about the longest case the recent supreme court case suggested that that somehow supported his claim that we needed the kind of cheek very high level of mens rea in this case where the defendant not only had to know that what he was doing was improper which mr austin has acknowledged a numerous occasions he knew here but that he knew it was a cry alumnus has nothing to do with that issue in a long list the question was whether the defendants who had who had made what many reasonable people would interpret as threats  in this case was that he had to know it was a crime that he was given a jury instruction which we believe gave him more than it was his to that he needed to know that he needed to have a bad purpose to disobey or disregard but he did not  request jury instruction the jury instruction that he had to know it was a crime and so that argument is not only forfeited but it's not supported by any authority at all the court has no further questions