university and president obama meeting with local law enforcement and community leaders in camden, new jersey. we'll cover top nonfiction authors and books. next weekend we're live at book expo america in new york city. and beginning of june we're live for the chicago tribune, a three-hour live in depth program with lawrence and watch for the annual roosevelt reading

festival from the library. in the middle of july we're live with the african-american literary event with panel discussions and at the beginning of we're live from the nation's capital from the national book festival celebrating the 15th year. and that's a few events from this summer on c-span's book tv. a three judge panel at the fourth circuit court of appeals in richmond, virginia heard oral argument on whether the corruption conviction of bob mcdonnell should be overturned. they are considering two points. the first, whether the definition of official acts was overly broad and second if perspective jurors were properly questioned on whether they were influenced by the media's portrayal of the case. mr. mcdonnell and his wife maureen were convicted of corruption in september for accepting $177,000 in gifts, luxury items and loans for a virginia businessman who wanted them to help promote his dietary supplement business.

>> good morning. please be seated. we're happy to hear argument in the first case of the united states versus mcdonnell. counsel, mr. frances before you begin, i want to reiterate that we've been very generous with the time be both in the briefs and in the oral argument, and we expect you all to honor that generosity by directly answering the questions and -- the time limits that we set up. with that in mind, mr. francisco. >> thank you, your honor. under the government's broad theory if governor mcdonnell simply set up a meeting, answered a question or indeed posed for a photograph with johnny williams without asking

anyone to do anything specific, he committed a crime. as our broad and unprecedented group made clear no one ever thought that was the law. and if it were true it would give prosecutors broad license to pick and choose their targets from amongst virtually every elected official in america. the court then compounded that through a series of rulings that uniformly cut against the governor, including refusing to ask perspective jurors the most basic questions, have you formed an opinion about the governor's guilt or innocence based on your exposure to pretrial publicity. by refusing to sever his wife's trial so she could testify on his behalf and by refusing to allow the governor to explain to the jury the full scope of johnny williams's unprecedented agreement. >> is the jury instruction your most important argument? >> sure. >> i want to be sure we get to what you regard as the most persuasive argument. >> yes, your honor.

the most important argument is the sufficient act argument, which encompasses a sufficiency challenge and efficiency challenge. the second most important issue that i would like to get to is pretrial publicity. turning to the official act question roo government official must make or press someone else to make a specific decision malign between access on the one hand and advocating for a specific decision on the other. here governor mcdonnell never crossed the line and the jury was never told that line or any other line existed. take, for example, the health care leader's reception. one of the charged official acts. it was nothing more than a cocktail party at which no business was discussed, no decisions were made. that can't possibly be an official act. the same with respect to the meeting with miss hoffstetler.

other than attending the meeting, governor mcdonnell never asked her to do anything, which is why she felt completely empowered. >> so it sounds like you're actually arguing the facts to a jury. what i'm interested in is what the jury instruction was that you wanted, how it was a correct statement in the law, how it was not substantially covered, and then third, how it was so important that the failure to give it needs to be reversed. >> yes your honor. the jury instruction is on page 53 of the joint appendix. we believe what that jury instruction did and the instruction charged did not do -- >> that's your instruction on official act? >> yes, your honor. explained what official acts were, and it explained what the firvl acts were not. here the key flaw in the instructions that the court actually gave is they swept both

lawful and unlawful conduct. the district courts instructed the jury that official acts -- >> well, the government may say it has to be looked at in context to find out if it's lawful or unlawful. >> the context of the facts. what's going on. and then we have to look at them in the light most favorable to the government. >> yes. >> yes when it comes to evaluating whether the sufficiency challenge is correct. no when it comes to evaluating whether the instructions were reversible error. on the instructions, yes, you do need to take -- on the sufficiency, you need to take the evidence in the most favorable light to the government. we would submit that here, even taken it in the light most favorable to the government, none of the conduct krszs the line. on the instructions here in context, the instructions were overbroad because they instructed the jury that virtually anything a government official does in his official capacity including every step towards achieving an end

constitutes official government action. >> no, that's not quite right. even in the beginning of your instructions the act has to be on a question or matter or cause pending before the official. >> yes, your honor. and the supreme court made clear -- >> so it has to have that, there always has to be that connection. >> the supreme court made clear that when you quote the statute that's insufficient when you go onto give it an expansive gloss. >> well, yes. if you do give it an expansive gloss. your instruction on 753 did precisely that. it gave it an expansive gloss. >> i don't think so at all because our instructions has a series of limitations, all of which the the district court rejected. here the district court told the jury that they all settled practices, including every step towards achieving an end. >> i thought it said could. >> no, your honor.

in fact, it says includes. >> there were a series of things you object to that the district court instructed it could include this. it could include that. and as i thought i understand your argument that was that there wasn't any countervailing instruction, that it didn't include this. is that the gist of your argument? >> yes it's both of those arguments. we're making both arguments. first of all if you take the instruction on its face, it's facially overbroad. the judge explained the official act definition was not on its face objectional. on the face it was similar to other instructions given. the reason it was objectionable in that case is because it also swept in potentially lawful conduct. that's precisely what happens here as the government accurately argued to the jury in the case under these instructions an official act could encompass something as

innocuous as a photo op. that's because every step towards achieving an end as defined as an official act. but the district court refused to give any limitation on the otherwise all encompassing instruction, including limits that are drawn straight out of this court's cases like. straight out of the jefferson case. and i'm quoting from our instruction. the fact that it's a routine activity or the act of an office holder does not alone make it an official act. obviously correct. but the district court refused to impose any limit on the otherwise all encompassing instruction. or here's another one we proposed. merely arranging a meeting, attending an event hosting a reception or making a speech or not, standing alone official acts, even if they are settled practices of the official. that's based on sun diamond, citizens united and comes out of the construction that a judge gave in the case. or this one.

near the the district court even refused to give a standard good will gift instruction. we propose, quote, a gift or payment given with the hope of a future benefit is not a bribe. word for word out of jennings. here one of our principle arguments was that the governor believed johnny williams was giving good will gifts, in the expectation he would get the access and credibility that comes with hobnobbing around with important government officials. >> your defense here was good faith. that was your defense. >> that was one of our defenses, your honor. >> that's what you said to the judge. you said our crucial defense, you called it, is good faith. and you got a good faith instruction. >> we did, your honor. >> it said if the the governor acted in good faith there would be no crime. i don't know how it would be any better for you. >> because, your honor if the

jury doesn't understand the true scope of official acts and the jury doesn't understand the difference -- >> but from the governor's standpoint, if he acted in good faith, it doesn't make a difference. >> that's not right, your honor. >> it is right because that's the way the instruction was. if he acted in good faith then he couldn't have criminal intent and there would be no crime. >> i think that if the jury believes -- >> that's what you argued to the jury. you closed the closing argument. >> that was one of our arguments. >> i know, but you closed the argument off after getting the instruction. you said he acted in good faith and you quoted there be no crime, no criminal intent. >> and that's because after every jury instruction we requested against us that was all we were left with to argue, was good faith. >> you weren't seriously impaired in your ability to conduct your defense, as a result of not giving the good will or jury instruction. >> absolutely, your honor.

>> and did the government in its closing, i know that you are just said you withheld or weren't able to make some of the arguments you had planned to given the jury instructions did the government's closing argument take advantage of the failure to give the instruction out of jennings that you wanted? >> it took the loophole and drove a mac truck through it your honor. the government repeatedly argued through the jury that everything is innocuous as posing for a photo opportunity. or simply arranging a meeting without anything more. all of those constituted official government action. it goes to the core of our argument. no reasonable jury can conclude that governor mcdonnell violated the law. eefb even if you were to disagree with me it's possible the the jury did agree with us but under these instructions the the judge would be required to or at the very at least authorizeded to convict.

everything as simple as hosting a cocktail party simply suggesting a meeting without requesting anything happened at the meeting, simply asking your in-house lawyer to see you about the issue, under the instructions the official court gave, the jury was required or at least authorized to conclude those were prohibited official acts, and that is clearly reversible error. to closely analyze these cases. remember, the government's theory here is there was no expressed agreement. no express agreement. like wiz johnny williams would only testify to an imapplicanted agreement that the government would perform some kind of unspecified help. clearly not enough under the law. that's why the government's theory all along was you could infer a corrupt agreement from a pattern of gifts and loans on

one hand and a pattern of official acts on the other. if there were no official acts, then there's no pattern from which you can infer a corrupt agreement. and from here none of it crossed the line and the jury was never told that line or any other line even existed. >> well, the jury was told a line existed by the quote of the statute to begin with. and that you began your closing argument with that quote. so the term official action means any decision or action on any question matter caused, super ceding or controversy which may at any time be pending. in other words, if there isn't something pending that the person who is giving the benefits to the public official, if there's nothing pending on which he's giving the benefits, then there is no crime, it's true. but if there is then that makes it a crime under the statute. >> two responses your honor.

i would submit that the four of us could sit here and argue over the meaning of the words until the cows come home. but to expect a jury to figure out what those words mean is i think implausible, which is why the instruction immediately after quoting that statute says, official action as i have just defined it includes those actions that have been clearly established by settled practice as part of the public officials' official opinion. so it's telling the jury i just told you this is what it means. >> right and it goes onto say that includes every step towards achieving an end. why the government could accurately argue something as innocuous as a photo-op was including. not withstanding to at least potentially include everything under the sun. it refused every conceivable limit on that otherwise all encompassing instruction. t now going back to the issue about whether the statute alone in quoting the statute alone was

sufficient, it clearly wasn't here. since it was defined broadly enough to find the court to find perfectly lawful conduct. and here, if you properly instructed the jury that the line between access on the one hand and advocating for a specific decision on the other nothing would request f. now i think sun diamond also answers your pending issue, your honor. sun diamond makes crystal clear when the secretary of agriculture gives a speech to farmer on usda policy, even though he clearly has issues of usda policy pending before him, that's not an official action. and if i could offer you another example. >> that wasn't the statute, was it. the gratuity statute. >> yes your honor, and the same definition of official act applies here. >> we talked about that in the jefferson case. you think jefferson is wrong? >> no, i think jefferson didn't address the issue. jefferson was clearly advocating for a specific decision on

behalf of the -- the line was irrelevant in jefferson. the jury was never told it existed in the conduct. never crossed it. but judge motz if i could offer you another example. suppose johnny williams skz asked the governor who should i talk to, and the governor answered the question that's in -- >> i'll give him a call for you. >> excuse me? >> and i'll give him a call to arrange a meeting for you. >> but even without that part of the hoipypothetical, it's still an official act simply answering a question. that's the reason the government's instruction is fatally overbroad. it clearly sweeps in lawful conduct. now i would submit if you take the next step and say, and by the way, i'll arrange for you a meeting, that like wise doesn't cross the line because if it did, you really would be opening the net for federal prosecutors to pick and choose their targets amongst virtually every elected official in america. now remember, the official act

definition is not limited to quick bribery. it also applies in the gratuities context. the very same definition. that means if a wealthy donor makes a campaign do nation or a donation to a charitable foundation after giving an important meeting at say for example, state department, both the donor and the recipient of the donor are on the hook for a federal gratuities prosecution. nobody ever thought that was the case. >> i have a question about these instructions that you've directed us to. did you have an argument for the trial court about these instructions? >> absolutely, your honor yes. >> and is that transcribed somewhere? >> yes, it's in the charging conference. the way it unfolded is we had a series of objections that applied to a broader rate of instructions. with the court's permissions, i laid out the objections once. as we went through and got to different points in the argument i asked the court would you like to remeet what i said in the beginning. >> did you offer the court a lesser included part because i

don't know that it's worth us discussing here. but i don't think the instruction on 58 that all of it is inside the law, so did you -- was there any discussion about putting part of it, in the first two paragraphs are basically covered by the instructions. >> yes, your honor there was. >> that's not a problem. so it's just the last paragraph. >> that was at page 7342 of the appendix, where we requested the following. providing mere credibility or reputational benefit to another is not an official act. define an official act. the questions you must decide are whether the charge institutes a practice and whether the conduct was intended to or did in fact influence a specific official decision the government actually makes. we like wise propose. >> excuse me. i'm on 753. >> yes. >> what part of 753 was sort of your ultimate fallback position with the district court? or was any part of it? did you just say all or nothing? >> no no that was our

fallback. >> well, the language that you -- maybe if you can help me with 753 because there are a lot of volumes here. >> i'm sorry, you're looking at the proposed instructions. the charging conference -- >> i understand. but the charging conference, there's some sense of give and take. >> exactly. >> and what i was asking you is in the charging conference, was there any give and take? did you say all right well maybe some of these are not required by the law. >> yes. >> at least as my view as we sit here. >> right. >> so which ones did you think were? >> so what we did at the charging conference is reduce it to two specific requests. this is at page 7340. >> so you changed it at the starting conference? >> no, what i made clear is first we wanted the proposed instruction. that was the request. as an alternative we request the court give two additional instructions at paging 7340 and pages 7341 of the appendix.

and i can read it to you, your honor. >> does it track this language in 753? >> not verbatim. it tries to pick out the core. >> all right. >> so, your honor, i think it's quite clear as in sun diamond as if skilling, as in the rabbit case t the district court plainly gave an all encompassing instruction that swept in both lawful and unlawful activity and i would like to focus on wus last point here, before turning to pretrial publicity. our proposed instruction both in our instructions its and the charging instructions were clearly statements of law that wept to the heart of the case. if you disagreed with that, just looking at the instruction on the face. and we clearly objected as being facially overbroad. and that is facially overbroad for precisely the same reason that the instruction was facially overbroad. because it allowed the court to conclude or allowed the jury to conclude that lawful conduct, like merely setting up a meeting

or merely hosting a reception constituted a settled practice of governors and was a step towards achieving an end, and therefore was an official act, just like simply answering a question, who should i talk to? or simply posing for a photo op as the government argued to the jury was an official act. given that this went to the heart of our case, it was incumbent upon the court as this court said in the united states against arthur case, to instruct the jury in the clearest possible terms on what the lines of distinction were. by refusing to do that. by like wise refusing to give a standard goodwill gift instruction, the district court violated that principle and the jury was permitted to convict, even if it completely agreed with us as to what the facts of this case showed. now, i'm happy to answer any further questions the court has on this issue. all of this, of course, all of what we've been talking about assumes that we had a fair and

impartial jury. here however we don't even know we had that. this was one of the highest profile criminal prosecutions in virginia history. >> well as i understand it, both sides wanted this elaborate questionnaire, correct? yes, your honor. >> and there was give and take about what questions would be on the questionnaire. >> not really. we jointly submitted a written questionnaire to the court. both of us agreed to it. >> that sounds like -- oh sure. beforehand. that questionnaire included the the question, have you formed an opinion about the defendant's guilt or innocence based on your exposure? >> and all prospective jurors sent it out? >> yes but the district court, when he sent it out to the jurors, he struck that question. so the jurors were not asked have you formed an opinion based on your exposure to pretrial publicity. >> were there any questions about pretrial publicity? >> there was questions on whether you had been exposed to

it. there was one question about opinions. have you an expressed an opinion to someone else based on your exposure to pretrial publicity. there are plenty of people, maybe not in this courtroom, that hold opinions but don't feel the need to express them. which is why we in the government agreed the jurors should be asked, have you formed an opinion? >> then they filled out the questionnaires. some jurors were struck. you got a group of jurors there and you all said no. we need this question. >> absolutely your honor. and the judge said what's your problem? and you said, there were these eight jurors or some number of jurors, and they came up, and they were asked the question. isn't that right? >> no, your honor. may i explain? >> yes but your time is running out. so make it short. >> you only named eight. you named the eight. and then you stopped. >> your honor, if i could explain. when we got to the hearing -- >> the judge said you sort of waived it. >> and he's clearly wrong.

when we got to the hearing we specifically said for those jurors exposed to publicity they need to be questioned. handed up the questionnaire. page 1690 of the transcript. he said no, i'm not asking these questions. you have to make a determination based on the questionnaire that we have. that's when he conducted his in mass stand up, sit down proceedings. stand up if you heard. everyone stood. >> then what happened? >> then we objected a third time. >> right. then we objected a third time. and we said we can't trust the credibility. so three times rebuffed. then, your honor, and this is what you're getting at at page 1692 of the appendix. the defense attorney made clear he was calling up those who answered yes to the question whether somebody had expressed the opinion. the only thing we were allowed to ask. that's where we called up the eight jurors. we called up those jurors that answered yes to the question "have you expressed an opinion?"

and on the very first one we were mistaken. the judge's attorney pointed that out to judge spencer. and actually that first juror has not said yes to the question "has he expressed an opinion." he answered no. and here's what judge spencer said. i'm sorry, ma'am. we thought there was something in your questionnaire. so you may have a seat. it is crystal clear that at every stage of the proceedings, from submitting the written questionnaire to objecting at the hearing. >> can we get to the end of the questioning of seven jurors. then what happened at the end? didn't the the district court say to your side do you have any more? and the response was not on pretrial publicity. >> yes, your honor. but that's because he had already ruled. >> well, i understand that. it's very difficult to be a trial lawyer, much, much ease yore to be on appeal. i couldn't agree with that more.

but you have to keep making the objection. you know. >> and we made it three times, your honor. and with all due respect, it cannot possibly constitute a waiver. the one thing i would point out is waiver a legal issue subject to being overviewed. and i do not think you can credible read the transcript and say we waved it when we asked in the written questionnaire inexplicably struck. >> yes your honor. we asked for it at the hearing and the government agreed at the beginning that the jury ought to be questioned on this. the district court then again said no. my position is if somebody is exposed to pretrial publicity, they have to be individually vor deered, and i have a list of questions. we handed them up. here's what judge spencer said. you're going to have to identify specifically the people that should be struck for cause. and the court will make an assessment based on the information that we have. i'm not asking these questions. not aware of a case anywhere.

>> but then you did ask questions. >> only the individuals that the court permitted us to bring up. which were not by definition. >> he said only bring up those who had answered other questions beyond mere exposure to pretrial publicity. because we specifically said we want to be able to question every juror based on their mere exposure to pretrial publicity. every -- >> so when they stood up, that they had been exposed to pretrial publicity you wanted to question each of those and the court would not permit you to do so. is that what you're saying? >> yes your honor. >> the court only permitted you to do seven. and those were the seven that said they had expressed an opinion. but you tried. >> exactly your honor. >> but in between there the judge said to the people standing up, if you can give him a fair trial sit down. >> precisely. >> and they all sat down. >> precisely the procedure the supreme court rejected, and i'll close on this unless the court

has further questions. no doubt each juror was sincere when he said he would be fair and impartial. who amongst us would answer the question no when asked if you can be fair and impartial? that's precisely why individual vordeer is required. >> thank you very much. >> thank you, your honor. >> may it please the court. your honor i would like briefly to pick up where the argument left off on the point about the pretrial publicity. when the district court said after doing the collective questioning the defense counsel could bring up jurors they wanted to individually question, the court did not limit any any

way, the defendant to just asking about the question of whether somebody had expressed an opinion if you read the transcript, when the court started doing the individual questioning of jurors, you will see that the defense counsel was citing a variety of reasons for why they wanted to question somebody. and there wasn't a point where they offered a reason to question somebody, and that the court said no i'm not going to let you ask a question of this juror about that. that's not a sufficient basis. the fair reading of the record is say give me a reason and i will question a jury when you give me a reason but we're not going to sit here and just automatically question every single one of these juries? >> and how many pres pektive jurors were sitting out there? >> there were 142, i believe. >> sorry. go ahead. >> are you saying that the defense never said i would like to question all of the

perspective jurors is who were exposed to pretrial publicity and the court said dmo you can't do that? that's what opposing counsel just said. >> the the way i would put it is the court said give me a, you know particular to the juror reason, but didn't say, you know, look, you can only call up people who said they expressed an opinion. >> didn't tie it to the questionnaire. >> right. no, no. i mean i think that he was looking for a reason out of the questionnaire. but there were, you know there were 99 questions that questionnaire. and you could bring up -- you know, they brought up exposure to press expressed in opinion, a variety of bases for individual questioning. and then at the very end -- >> go ahead. >> then at the very end, hi said, do you have anyone else. and they said not on pretrial publicity. >> but i think my colleague is asking you a question before

what happened before that. maybe try one more time. >> well did the government ever object to the defense asking jurors about their exposure to pretrial publicity? >> right. >> so no? the government never objected to that? you said the court should ask about that in the questionnaire, sfligt. >> there was a questionnaire where we requested a question about have you formed an opinion. the district court did not include that question. there was a variety of other questions that covered that. then at the hearing, when defense counsel wanted to question every single juror perspective juror, we said how about as an intermediate step that you question everyone who had followed the case very closely or somewhat closely. and the district court said,

well i'm not going to do that. >> so every single juror stood up when asked the question have you seen any pretrial publicity about the case? >> right. >> is that what happened is this. >> right. >> every juror. >> right. and the the court asked two questions. first, if you have read heard or seen something in the media i want you to stand up for me. and then the court said based on what you have heard read or seen relating to this case if you are in your mind able to put aside whatever it is that you've heard, listen to the efdvidence in this case and be fair to both sides, then i want you to sit down. this is appendix page 953. >> and everybody sat down? >> everybody sat down. >> did you suggest that process to the court? >> no. >> now the question that i think we have or at least i have from what closing counsel said was that after there had been this

stand up sit down. they said no we want to have an individual of each one of these 145 people to discuss pretrial publicity. is that what happened? >> right. >> and the district court said no. >> right. >> and what did the the district court say? no but -- because eight people came up to the bench. how did that happen? they said we want to question everybody. then we proposed an intermediate step of the people who said they followed the case very closely or somewhat closely. and then the district judge hearing that said, and we said, look, we don't think that's required except out of an abundance of caution that would be a better route to go. i'm not going to do that. i'm going to do something of my own devising. and his own devising was defense counsel, give me a reason. this is what he's saying to them. he's saying you have a very fulsome questionnaire.

give me a reason for why you want somebody brought up here. they offered up a variety of reasons and they cited them in the transcript if you read, you'll see. >> right. not just pretrial publicity. >> not just the expressed in opinion question out of the questionnaire. and then the judge questioned a series of people and then said we don't have anyone else on pretrial publicity. >> there were further questions. the last part was not fre trial publicity. so there were additional questions. >> it's your position we review all of that for discretion. >> yes, that's right. and this court's cases and baker and bailey, the court has said that collective questioning is permitted and both of those cases involved collective questioning whether there wasn't -- the defendant hadn't gotten what he wanted on a

questionnaire. so here this case has the added benefit two-fold, that the parties were armied were very expensive questionnaires, and then the court said give me a reason and i will question further somebody. and they did that and got to the end of it. >> can we turn to the jury instruction? >> sure. >> and i would like to focus to begin with on the instruction that i think that defense council has focused on as the key problem here. >> where is that again? >> that's on joint appendix 753. and that instruction is just erroneous because what it says sunshine their proposal is i roans you? >> right. that's why i probed them.

i think some of it is erroneous on the fallback position. >> sure. the fallback position. >> i guess tell me what you think is erroneous. we don't take issues with those. >> and the district court gave those. >> it's once you get to the third paragraph that you start having error. wh they suggest that a government official's decisions on whether to attend event or whether to attend a meeting or respond to a phone call are not decisions on matters pending before the government. and so they're suggesting that a meeting can never be an official act. and that's clearly wrong. jefferson involved plenty of meetings that this court concluded were official acts. >> what about the next sentence? because they're explaining why they think that's so. and then they say, this is

because mere ingraciation and access are not corruption. would that have been error? >> i mean, i don't think that the supreme court -- short answer is no. but i don't think that the supreme court in writing that in citizens united was meaning to provide a definition formally for bribery law. and it captures the notion that if you lack in agreement. >> talking about campaign finance. >> if you lack in agreement with corrupt intent to exchange things of value for official acts, then you don't have -- you know, then you've gone beyond in ingraciation and access. >> did they ask for a new instruction to just include that sentence?

is that what you're saying? >> no, what i'm saying is this official access instruction that specifically has it. now today he's pointed to starting on joint appendix page 7340, a fallback position that says to convict the defendant the official must receive the payment for performing a specific official act. that takes out the conduct provision. and then he says a gift or payment given is not a bribe. that is a way i suppose, of saying ingratiation and access. but we had good instruction -- >> the correct statement of the law based on jennings right? it's word for word out of jennings, what you read. a gift or payment given with the generalized hope of some

unspecified future benefit is not a bribe. that's a correct statement of the law right? >> yeah. >> so where is that substantially covered in the rest of the jury instructions, that concept? >> that concept is covered in two ways. one is there is a good -- essentially i think on challenge instruction on the requirement of an agreement of what you have is both through conspiracy, and then you have the overarjing quick quo pro instruction. that's appendix 7669 which says the official must receive the item of value corruptly in return for being influenced in performance of any official act. and then you have the good faith instruction, which as judge king pointed out, they labeled their critical defense. and that's appendix 7360 at the charge conference and the good

faith instruction captures the notion if you're receiving the gifts without an agreement, if you're receiving the gifts in good faith then you are not guilty of a crime. and so that is -- that point is substantially covered by the lack of agreement in the the good faith. and that provided them with ample basis to make that argument. zblf mr. >> mr. cook, i tell you what i would like you to address. it looks to me like the instruction given is correct as far as the matter goes. >> right. >> but it talks about things that could be crimes and it doesn't say anything that is not a crime. and that is i think, the gist of what the appellate's argument is here. and maybe you can address that for me. you think that's a fair

characterization? i think -- >> does it say all the things are crimes but they can be crimes, and then it doesn't say anything is not a crime. >> well, i think there's several points i would make in response to that. the first is that the key point the is to court begins by saying the term official action means any decision or action on any question, matter, or proceeding. so it has limited there, like look, this is the ultimate standard for an official act. you have to meet that. and as the court was pointing out. they began by emphasizing the very strixs. >> it seems to me if the court proceeded that sentence that would have made the the charge more even, if you will. and that's what i -- you think that one mention of that or you had several points, maybe tell me about the other points.

>> the other points are considerable discretion in choosing the wording. and you have cases like paterson, where this court has said that, you know, although more specific zrux may be desirable, they didn't abuse the discorrection in choosing a particular wording. in terms of a legal standard rather than having the judge make counsels for them. and there's the broader point too, that when what happens is you have offered to the judge a large collection of instructions that the judge correctly concludes are wrong, then you have a large charge conference where a bunch of proposals are submitted to the judge specifically that either have

their own flaws again or are things substantially covered at some point. at some point the judge isn't responsible for coming up with good proposals. >> i think that makeses sense. you have a case that does that? >> well, you know, ultimately and you have to come up with a good proposal then because the defense had done that based on the law. >> well they come up with the proposals that were erroneous or didn't train on the point they are now suggesting. they have proposed and continue to propose sa series of actions that are just wrong. they keep going back to something like a formal executive process. voting on bills, granting contracts, that's wrong under jefferson. you've got to have some sort of

policy setting, you know, authority at stake. and that, of course, e excludes a host of what lower level employees in government do. and more on the case -- prison guards taking bribes is a good example of that. they have things about which the government provides. in jefferson the court said look, the benefit that a foreign government in nigeria for example is going for counts. so here in contrast we have the studies that clearly -- >> will you give in the site again to where the good faith instruction is located? >> yeah the point they said the critical defense -- >> yeah, i found that part. thank you. >> they also said categorically that meeting and events are

initial official acts, and that's not true. that's you have to accomplish the goal of the bribe payment and that is definitely not true under cases like evans and brewster. >> you have to have a corrupt agreement? >> right. and so what you have is them offering a whole lot of instructions that are wrong, and the judge repeatedly saying no, i'm never going there. when the district court is exercising discretion, and choosing instructions it doesn't have to come up with the more reasonable intermediate step that is never offered to them. >> well, that's what i was trying to talk about the charge conference, which i don't remember hearing much about in the papers. but there are lots of papers. maybe it was there somewhere. and whether they come up as the fallback position with a -- with

something that did not detain error. >> right. >> and when you were were ticking off these things, i think you were looking at proprosed jury instruction number 58. and not charged -- or maybe, tell me. >> well, i'm relying principally on what they're arguing now, they're brief. and they've now directed your attention to 7340. and for that i think it's covered by that. >> it's already covered. >> yeah, and it's available to them. >> well, i was a prosecutor a long time ago. the judge send the injury out

and they are hear specific objections to the the instructions as given. and then you would after it was over with, you would tell the jury you could start deliberating or bring them back in and give them more instructions, and we thought always thought 32d required that, but we didn't do anything about that. but nobody ever raised that kind of question in this district? >> no, your honor is exactly right. >> and i think the the courts in this country is required to be that way. rule 32d requires that in order to reserve the points. then they boiled it down to what judge motz is getting at. you're at the end of the line. what do you want now? >> the rule your honor is describing has a lot of sense inso

insofar as what it does is after the judge read the instructions to the jury, that's the point where you have to register an objection. >> that's what your rule says. >> yeah, right. >> and it says you don't preserve it it specifically says that if you don't do it that way, and you raise something on appeal there's room for plain error. >> well, did they raise it then? >> after the court read the instructions, no. there was no objection. >> did you make the objection? >> no. >> on appeal? >> nobody said a word. >> there you go. >> in fairness this is a point that at the charge conference. >> then we would have a better record. >> yes. >> -- on appeal if things were done that way. >> on the charge conference -- >> whether it's been preserved or not here. zblf >> and i thought that before the judge or after the judge instructed, before the judge and jury deliberated i thought that defense thought defense counsel did say something like well you know, we have our objection.

at some point did say we have our objections. >> that was before instructions were given. judge says i have been over this several times with you all. began to get impatient. >> he said the objections are preserved. >> then he instructed them, don't know if he instructed word for word. we assume he did. sometimes i had them wing it a bit. >> that's why we listened closely. >> you remember when your colleague was arguing talking about judge bodines case. address that. >> in that case you didn't have one of the key points from that case is that you did not have the 201 a 3 definition provided to the jury. you had something that was really broad where official action was defined in terms under the cloak of office.

which does not have limitations here. so erseoli was a case with straightforward instructional error because it didn't capture the requirements of official action. >> i thought that the piece that he read to us allowed and i can't find the place now, so much stuff the court said something like defining reading just the statutory definition is not enough. no? >> i don't believe that's in there, i may be mistaken that's not my memory of the case. and i mean, i think that the key point here is that it did not use a definition that fits the statutory language. and i would say the other thing, not everything in ersoeli we

agree with. not only didn't you track the definition but the court's analysis didn't stay tethered to that language either which in this court's opinion in jefferson it was tied directly to that statutory definition and that's the way to go, and that's how you analyze this case. that's why i think jefferson is a much more helpful case to the court than erseoli is. because -- >> nothing that jefferson set precedent. >> that's exactly right. >> that was out of your district. >> indeed. >> you say this case is stronger than jefferson in your brief i think because it was executive rather than legislative? >> that's right. there are several respects in which i think jefferson is a stronger case.

i mean admittedly the conduct there involves a lot more money and jefferson ended up with a longer sentence, so there are important ways -- >> more quid and more quo. how is this a stronger case? >> in the sense of the definition of official act and what was promised there. here in this case what you have is ultimately what johnny williams wanted was state funded research studies and coverage in state employee medical plan and that is more squarely within the realm of what governments do than the various business ventures in africa that were at stake in the jefferson case. so in that respect, you've got something more core to what the u.s. government is doing. and secondly what you have is

the influence being exerted here and the official act being taken on matters are all directed at a chief executive subordinate employee. jefferson was lobbying foreign government officials over whom he had limited powers. i mean, they want the united states government to be friendly to them, but it's a different matter when you have someone like, you know plor or lazzo at the state universities getting the governor of the state saying that this is a good thing. that's just a very more direct -- when a high government official -- >> i'm sorry. before you finish, i do want to ask you one question about the goodwill instruction they offered that was taken out of jennings. did the government object to

that? >> you know honestly -- >> i mean it is a correct statement of the law. >> right. i am trying to think. in the context of -- their proposal on 7340 still had this specific official action requirement which read out in our view the course of conduct scenario because jennings said both were true. you could have an agreement for a specific official act or you could have this course of conduct theory, which is what we had here. >> it was included in that, the government -- >> right. >> -- found it objectionable. >> exactly. >> but there may have been some follow up back and forth that perhaps we will hear about. >> sure. if what they had been offering was just the goodwill gift, i

don't know that we would have objected. got rid of the course of conduct theory repeatedly upheld by this court in jefferson and jennings both. >> they certainly argued gifts. >> that's true too. i mean -- >> no doubt about that. permeate the arguments. >> right. but at some point we don't have to offer their proposed instructions for them. they made multiple tries with errors in them. >> they have to offer them legally correct instructions. >> exactly. >> this case strikes me as one this is not an earth shattering observation but that there was a lot of quid pro quo, and there's not much appellate argument about that. but the quo was much thinner. going to propose we look at

these and balance and if we have a strong quid case don't need as much quo? >> i would say about that the nature of the payments has evidentiary force that in the sense when you see somebody getting $177,000 worth of payments in cash and luxury goods and that sort of thing that that's informative about people's motivations and what they're doing. you still need to meet you don't need official acts performed, but there has to be an agreed upon official act. you have to meet the test. >> you have five official acts? >> sure. we have got five actions. >> what if it just had been the first one. >> it would have been a difficult case but that would suffice. whether the government would have persuaded the jury that there really was an agreement

here without good faith and corrupt intent and intent to defraud, i am not sure whether we would have secured a conviction. >> or brought the case. >> right. but when you have a two year pattern of conduct and the timing of it in this case is just, you know i think devastating for the defendant, you've got him going on the vacation at williams smith mountain lake vacation home he drives the ferrari home. lies about it saying there was no recreational use and of course there was, and 90 minutes after getting home in the ferrari he is sending an e-mail to bill hazel, a guy that thinks johnny williams has got a lot of junk and refers to him as the particular tack man, send a deputy in the morning to meet at the mansion on the planned studies of anatablock at uva and

ucb. bill hazel despite his views says the next morning will do and an official goes. he sends first the e-mail to williams asking for additional money. where he says do you want me to call your lawyers on the certificates in the documents, that was a reference to the earlier phone call on getting the additional loan. six months later wrote saying please see me about the anatablock issues, when just several weeks earlier the first lady had written to the governor saying about the anatomy clinical studies at uva and bcu.

said here's the info from johnny, he has calls in to them and no one returned his calls. then the first lady follows up -- >> time has expired. you can finish your sentence. >> sure, the point is the timing evidence showed an agreement robustly in this case. >> thank you very much. appreciate your argument. >> thank you your honor. a few points. technically accurate instruction, assuming technically accurate can be misleading by omission. i point the court to page 295 of that decision where it said cloak of office phrase is not inherently novel or objectional way of describing the action. in