justice sotomayor: you -- justice breyer: it's birdsall. look, i can i've read the brown commission report. i've read the model penal code. i've read all these efforts to get language. and i've looked at the present statute. and i think i can limit that because the statute, itself, seems to cover things like voting and contracts, et cetera. but it's also true that a person who tries to influence those things has committed bribery. i think that's correct. mr. francisco: and -- justice breyer: now, my problem is with birdsall and how do we write those words so that they do catch people who are doing this dishonest thing without, as i've said five times, allowing the government the freedom to go and do these ridiculous cases. mr. francisco: and i think the d.c. circuit's en banc decision -- justice breyer: not saying this is a ridiculous one, by the way. mr. francisco: understood, your honor. i think that the right answer, you start out with the d.c. circuit's decision in valdes. you look at that listing of words -- justice breyer: uh-huh. mr.

either making a decision on an exercise of governmental power, trying to influence it, as in the birdsall case, where the defendants there were trying to persuade the grant of clemency. but if you're simply setting up a meeting so that somebody can appeal to the independent judgment of an independent decision maker and you're not trying to put your thumb on the scale of the outcome of that meeting, then that simple referral can't possibly be official action. after all, government officials refer friends and benefactors to staff members all the time in order to avoid taking official action. justice ginsburg: do you do you concede that there is sufficient evidence in this record -- let's say we accept your argument about the charge being insufficient. but this could go back, and a jury could be asked: did the governor try to influence a decision on the part of the medical faculties? mr. francisco: your honor, we don't concede there was sufficient evidence. but regardless, we also argue that the jury was improperly instructed on this, which, justice sotomayor, goes to the point, i think, you