Then later a look into how facial recognition technologies are being used identify people come into the u. S. But first the Supreme Court oral argument kelly versus the u. S. With her argument in case 181059. Mr. Roth. Mr. Chief justice, and may it please the court. Once again the government is trying to use the open ended federal fraud statutes to enforce honest government at the state and local levels. Its through this time is that the defense is committed property fraud by reallocating two two traffic lanes from one public road to another without disclosing their real political reason for doing so. This theory terms of the integrity of every official action at every level of government into a potential federal fraud investigation. It in runts mcnally and skilling by subsuming on the Services Fraud within property fraud and by criminalizing ulterior motives even without brides or kickbacks. It would, in fact, a sweeping expansion of federal criminal jurisdiction into a a particuly fraught area. This is not the law. This court in cleveland held that Regulatory Authority is not property so and an official induces a sovereign decision to defeat has not obtained property by fraud. Only when official lies to divert state resources to private use has he stepped outside the regulatory realm and committed property fraud. This rule distinguishes property fraud from of the fraud and from routine political conduct. Because the defendants simply reallocating the traffic lanes from one public use used to an, the Port Authority at most was the pride of regulatory control, not property. Thats true regardless of whether as the government alleges the defendants lacked the authority in some sense to order the realignment. Mr. Levy will explain what the government is wrong to say that its ultimately legally irrelevant because the fraud statute should not prohibit lying to take unauthorized state action. They prohibit line to obtain property and that simply is not what occurred in this case. You have said that if the resources were diverted to private use, then the prosecution would be okay. Why isnt it private used to benefit defendants politically . Your honor, try distinguish the use of the property from the motive for the decision. So here the decision was to realign the lanes from one set of public drivers to another set of public drivers. Both are public uses of the lanes. Its true the motive, the alleged motive for the regulatory decision was improper. It was political, right . Thats the allegation. That doesnt mean that the use of the lanes was private. Your honor, the typical case in which the government has prosecuted property fraud against a public official is where the official lies to take property from the government for his own use. So a situation where you lie on your expense report and you say you incurred this expense for business reasons and you did not. In that situation you are lying and you are taking the property away from the government for yourself. That is obtaining property. Hear what the defendants influenced through their deceit was the decision about the alignment of the lanes. And if theres anything that is regulatory in nature so on that theory would it or would it not make a difference if the defendants, rather than doing everything that they did for a political reason, if they had done it to make their commute easier or their families commute easier, so it wasnt anything about politics, it was the own personal interests, but it did exactly the same things, is that covered or is that not covered on your theory . That is certainly not property fraud. The officials even in that case have not obtained property by fraud. Are not making a distinction between private uses and public uses . Private purposes and Public Purposes may be . Im not making a distinction between the type of purpose. What im trying to distinguish is the use of the property and is it a regulatory decision to realign the lanes for whatever purpose . If what we are concerned about is the integrity of the purpose behind the decision, that really sounds in honest Services Fraud, right . What were concerned about is not the government being cheated out of property that it has or that it owns. What were concerned about is the good fate of the official in making the decision. That can be hard line to draw. If the rerouting of the traffic is done for the commercial benefit of the individual in whatever way, that would be a violation, right . Your honor, if it would hes got the development or something, hes building a hotel in fort lee, and he wants the traffic redirected there or directed away from, whichever because he thinks it will increase business at his hotel. Tragic if the court would consider that a a kickback, thn that would be honest Services Fraud. It would not be property fraud because again the decision is i decision about allocating scarce Public Resources among public uses. The concern in your hypothetical is was it a good reason . Was it to benefit the public or to benefit himself . What this court said in skilling is if you make the decision because you were paid a bribe or because you will be getting a kickback, that is a violation of your Honest Services, your duty to provide Audit Services to the public. What we are doing here is interpreting a statute, and its not quite clear to me how your argument fits into the language of this statute. Money is property, and money was lost. So how does this fit into the language of the mail fraud statute, the wire fraud statute . The relevant word is property and the second relevant word is obtained. This court in cleveland explained that when the government is making sovereign decisions in its capacity as sovereign, implicate its regulatory interests, that is not property within the meeting that compass had when it enacted was there a loss of in cleveland . Its not clear if those lost property. I would say there was an official in the case was processing the fraudulent application. If yet not been given the fraudulent application to process he wouldve been doing useful work for the agency. Maybe he wouldve gone home an hour earlier and the date of the list. I dont think any of that wouldve mattered to the result in cleveland because all of that but still how does that fit in the statute . Is it that probably isnt acting when it is simply wasted . Is it a gloss on the word defraud . I think it is two steps. First up is to establish that the decision, the realignment, is not property because thats control. That is regulatory power. The second step is to say what about the costs of implementing it . I i would say the cost of implementing that regulatory decision are part and parcel of it and its, this scheme is not to obtain the property. The purpose of this scheme, the object of this scheme is to affect this policy decision, this regulatory decision, in the way that the officials want. So in the case of sending city snowplows to clear your own house first or sending city maintenance people to paint your own house, if youre a public official, i was under the impression that you thought that that would be a crime. Is that right . If you are sending the Public Employees to do private work, yes, absolutely. Thats not regulatory. At that point youre just taking the City Property and using it for private use, which is not you are obtaining property. So even though both are diversions of city resources or state resources, whatever it is, its just one is regulatory and what is not because one involves personal benefit . Personal use. Every regulatory decision diverts resources in some way. Every time a public official makes a decision, there are implications for the bureaucracy and the implications for public property. So there is the version going on and maybe the decision was made for a bad reason and if its a bad enough reason, maybe its an Honest Services violation. Is your theory that the word updating is what does the work in response to the hypothetical . I think its obtaining property together. I dont think necessarily its one or the other. Cleveland focused on property and what did congressman winterset property. It said we are concerned with cheating people out of the property rights. You can do that with a government entity. You can sheet the government out of its property. Ask when tina is example of that where the court said you you of taxes to the government. You lied to avoid paying the taxes. You committed property property fraud. You all a toll and you lied to evade paying a toll, you have cheated the government out of property that is owed. If what youre doing is making a regulatory decision like allocating Public Resources among public uses, and theres no question that the mainline is a public use just as much as the special access roads are a public use of the property, that is not obtaining property. I can understand the distinction between a regulatory decision and the deprivation of property when the regulatory decision doesnt cause a loss of property, but when the regulatory decision causes a loss of property, i find it more difficult to see the distinctio distinction. Your honor, i think that every regulatory decision is going to have some consequences for Public Employee time, for example, which is the species of property that the company has invoked. Lets take this case, just as an example. The additional money that was spent was the toll keeper. The toll keeper had to do an additional shift but the toll keeper was doing her job of collecting tolls for the public. The Port Authority was not deprived of her salad. She was earning her salary. The objection is if this regulatory decision had not been made, we would not have had to hire that toll keeper for that work. Right. Ill try this one last time. Tell me how this fits when we write the opinion and if we were to write one in your favor, how would we explain your result within the language of the statute . I think the court would say the statute prohibits schemes to obtain property when you are using deceit to influence a regulatory decision, to change a regulatory decision, that is not obtaining property. And in the corollary, thats important, is the cause of implementing a regulatory decision dont change the result. I think ill try mine once more, mr. Roth. Why when a public official says to a city Maintenance Worker, you should paint my house before you do anything else, why isnt that similarly an allocation of resources . Because its not the job of government it benefits me but i get to sin, whether its painting or snowplows, you go plow my street first why isnt that an allocation of city resources . Let me try to clarify because i may have led to some confusion. If you are plowing public roads and you say i want to plow my street first or my neighborhood first, that is not obtaining property by fraud because that is an allocation of resources to a public use. Its a public use that happens to benefit you and baby that was your motive and thats very bad, but its not obtaining property by fraud. If you instead trick the Public Employees not into plowing the public road but into plowing your private driveway, which is not the job of the government, thats not what the government does, the government is concerned with public property and clary public property. If you trick the employees into plowing your private driveway, then you have taken their services for your personal use, which is fundamentally different. Thats no different from saying i worked overtime when you didnt. Please pay me my hourly wage for the our time that it didnt work. And that difference is where in the statute . The difference is in this scheme to obtain property. Thats where it is in the statute. We look at what is the object of the scheme. If the object of the scheme is to influence a regulatory decision, its not the scheme to obtain property. That just folsom cleveland. Otherwise every decision that public official makes is on the table and only thing that is separated im sorry, i thought this scheme was to make life difficult for fort lee. If that was the scheme, and you defrauded the use of Government Property to accomplish your goal, why is that any different than taking the Maintenance Worker to plow your road, your private street . Your honor, the difference is that here the alleged purpose, the alleged motive was what your honor said, right, to increase traffic that was the scheme. The scheme was to do that to a regulatory decision, by realigning the lanes from one public use to another public use. What the objection is to the context here is an objection to the purpose, not the objective use of the property. Thats the difference. My problem is, i dont think i can see a headline that would say its okay for officials to use government public money in a way that is plainly an authorized, not just doesnt fit in its motors but in juice, and an official can and should never be liable for that. Our Public Officials now can use Government Resources with their private ends. Not mixed motives, which is the interesting question here with the traffic study, of whether you have enough, whether they have enough evidence that there wasnt a traffic study, but youre saying what the government has said, youre not authorized to do it, theres a question about that. And you didnt have even a mixed motive. You had only a personal motive. So, your honor, ill let mr. Levy speak a little bit more at length about an authorized because the governments there is not the case was that he did have the authority and he abused his power by making the decision. A much more difficult question. Of what i will say is im not trying to suggest this is okay. We dont want Public Officials acting or personal reasons but we dont want them acting necessary for partisan or political reasons. What im saying is a remedy for that is not federal property fraud statutes. We have certainly political remedies that were very much had pretty substantial repercussions. Repercussions. There may also be state law constraints on official abuses of authority. In fact, new jersey has a statute called official misconduct that is specifically directed toward an authorized decisions with bad purposes. Thats not what the federal property fraud statute is concerned with. Federal property fraud statute is concerned with cheating to get out of its property rights. Thats just not what we have. What we have is an abuse of power, a political abuse of power, and if anything again that sounds an honest Services Fraud which this court has limited due to biggest concerns to bribes and kickbacks. Your honor, if there are no further questions, thank you. Thank you, counsel. Mr. Levy. Mr. Chief justice, and may it please the court. A public official who is acting politically and not for personal gain does not commit fraud by lying about his reason for an official decision. If the dish it was generally within his authority. The government disputed that but now urges that as the rule in this court. That concession requires reversal. The government alleged and proved mr. Baroni was that cohead of the Port Authority responsible for supervising all aspects of its operations. The government itself solicited there was never any policy that precluded mr. Baroni from using his Plenary Authority to alter a traffic pattern. For the governments rule to work, this court should require an objectively clear lack of authority, something not arguably show here. Otherwise, any official who conceals his political motivation risks being convicted of fraud if a prosecutor or jury later disagrees about the scope of his authority. If the governments rule is to provide any limits, this case must lie beyond those limits. Id like to begin by discussing what the government alleged, argued, and proved below about mr. Baronis authority before it decided in this court that an official authority is the line between guilt and innocence under the fraud statute. In the District Court the government alleged in the indictment that mr. Baroni was responsible for the general supervision of all aspects of Port Authority visits, including the operations of its transportation facilities. From its main cooperating witness, mr. Wildstein, the government elicited that exact statement precisely, ticking off one of the allegations in the indictment. It elicited a mr. Wildstein that the title deputy executive director was a misnomer, that within the Port Authority structure the deputy executive director and executive director had a 5050 split in terms of power sharing, that the deputy executive director was not the number two position within the Port Authority. Thats from the governments of visiting from its own cooperating witness. The arrangement is always that, theres a new york representative who is the executive director and the new jersey representative who is the deputy, is that right . That was at the time the arrangement. It was always appointed either governor of new jersey for the deputy executive director, and the governor of new york with executive director. It was understood by everyone, all the witnesses the government called testified that that was the arrangement. They called mr. Baronis successor who testified that that was the arrangement, that the one did not report to the other and that this is a bistate agency. Why would new jersey agree to an arrangement like that but its representative is always in the second seat, at least nominally . Just the big brother across the river . I dont know the answer to that except that the structure within the Port Authority was that that was not the case. As it played out they didnt agree to play second fiddle. It was understood within the Port Authority the deputy executive director equal authority. The vicechairman testified about his parallel change of command that were understood. Particularly for decisions made within new jersey, it was understood that that would fall within the deputy executive directors scope of authority. I think one of the governments main arguments on the sufficiency of the