Case or this one. The mere appreciation are not corruption. Word for word out of the Supreme Court decision and Citizens United. The District Court refused to give a standard goodwill instruction. A gift or payment given with the general ayatollah for some unspecified nature benefit is not a prize. Here one of our principal arguments was the governor believed Johnny Williams is giving goodwill gets in the expectation he would get the access and credibility that come with it good faith was your defense. That is what you said. Our defense is good faith. We did, your honor. If the governor acted in good faith, he didnt have criminal intent and there could be no crime. There would be no crime. Because the jury doesnt understand the true scope of official acts and the jury doesnt understand the difference between a permissible goodwill gift in a prohibited bribe. If he acted in good faith it doesnt make any difference. It doesnt make any difference. If he acted in good faith then it couldnt have criminal intent and arid email crime. I think if the jury believes you closed the Closing Argument. You closed it off. You closed the argument off after that say they acted in good faith. Thats because after every jury instruction that is all we were left with two rv was good faith. You werent seriously impaired in their ability to contact your defense as a result of not giving the goodwill instruction. Absolutely, your honor. That the government i know you said you withheld or werent able to make the arguments you had planned to give the jury instruction committed the governments Closing Argument take advantage of the failure to give the instruction that you wanted . The government repeatedly argued to the jury at everything as innocuous as posing for a photo opportunity for simply arranging out anything more. All of the things constituted official governmental action. I think no reasonable jury could conclude governor mcdonald violated the law. Even if you disagree, its altogether possible the jury did agree. Under these instructions to juries still required to or authorized to convict because everything as innocuous as hosting a cocktail party, suggesting a meeting without requesting anything happen at the meeting simply pass the lawyer to feel an issue. Under the instruction and the District Court gave the jury was required or authorized to conclude that those were prohibited official acts and that is clearly reversible for the same reason wrapping. Too closely analogous cases if anything are far worse than this one. The governments theory here was no express agreement. No express agreement. Likewise Johnny Williams notwithstanding chuckle immunity would only testify some form of unspecified health and clearly not enough under the law and the classic goodwill gift. That is why the governments theory all along was to confer agreement from a pattern of distant loans on one hand and a pattern of official acts on the other. If there were no official acts, theres no patterson from which you and very correct agreement and hear none of government cross the line in the jury was never told that line or any other line existed. The jury was told a line existed by the quote of the statute to begin with. You begin your Closing Argument with a quote. So the term official action means any decision or action on any question matter caused superseding controversy which may at any time depending. In other words the person who is giving the benefits to the public officials, if there is no pending upon which they give to them, then there is no crime. But its areas, then that makes it a crime under the statute. Two responses your honor. I submit the forest could argue over the meanings of the azores until the cows come home. It is impossible, which is why the instruction immediately after quoting the statute does official action of fire just to find that includes those actions clearly established by federal crack this as part of the official position. It tells the jury i told you this is what it means. That includes every step towards achieving an end which is why the government could argue something as innocuous as a photo op was included notwithstanding an official act to a potential include everything under the sun and refused every conceivable limit on the otherwise allencompassing instruction. Going back to the issue about whether the statute alone clearly wasnt here. It was defined broadly enough to allow the court to find perfectly lawful conduct. Here i think if you properly instructed the jury between one hand and advocating for specific division on the affair, nothing will qualify. Sun diamond also answers your question. It makes Crystal Clear and the secretary of agriculture gives a speech to farmers and usda policy even though he has issues pending before him that is not an official action. The same definition applies here. Maybe jefferson is wrong. Not at all. Jefferson didnt address the issue. Access on the one hand and advocating for a specific station on the air. It was irrelevant in czech . Goes to the heart of our case here. The jury was never told that existed. If i could offer you another example, suppose Johnny Williams asked the governor who should i talk to about getting studies and governor trained to answer that question. [inaudible] without that part of the hypothetical, official acts under the jury instruction in the governments definition simply answers a question. That is the reason it is fatally overbroad. It sweeps in lawful conduct. I was admittedly take the dataset and by the way ill arrange a meeting that likewise doesnt cross the line because if it did, you wouldnt be opening enough for federal prosecutors to pick and choose target a much virtually every elected official in america. The official act is not limited to quid pro quo. It also applies in the very same definition that means that a wealthy donor makes a Campaign Donation or to a Charitable Foundation after an important meeting at the state department delamere and the recipient are the gratuities prosecution. No one ever thought that was the case. [inaudible] did you have an argument in front of the trial court . Absolutely. Is that transcribe somewhere . Yes the way it unfolded as we had a series of objections that apply to a broad array of instruction. But the courts permission i laid out objections and we went during the two different points in the argument. I asked the court would you like to repeat what i said at the beginning. He offers the court a lesser included part. I dont think the instruction that all of it is an act of love. Was there any discussion about the part of it . So just the last paragraph. Page 7342 the appendix where we requested the following providing your credibility a reputational benefit is not an official acts. To find an official act of the questions he must decide whether to charge conduct constitutes the practice and whether it was intended to work it in fact influence a specific official decision. Im on 756. What part of 753 was your ultimate back position that the District Court . Or did she say all or nothing . That was our fallback. Maybe if you can help it with 753. You are looking at the proposed construction. The charging conference i understand theres sometimes a give and take here in what i ask you in the charging conference was there any giveandtake. Did you say some of the sentences are not required by the law at least in my view as we sit here. So which ones what we did is we reduced it to two specific requests. This is page 73 so you changed it . Now what i made clear his first we wanted our proposed instruction. As an alternative we requested the court gave two additional instructions that page 7340 and 7341 of the appendix. I can read it to you. If it tracks the language in 753 . Not verbatim. Already. Your honor, it is quite clear as in sun diamond as in the rabbit case, the District Court gave an all encompassing instruction that swept in lawful and unlawful activity. I would like to focus on one last point before turning to pretrial publicity. Our instruction in itself and the charging conference were clearly correct statement of law that went to the heart of our case. Even if you disagree with that what cannot instruction in the clearly object to that on its face has been facially overbroad and not instruction is facially overbroad for the same reason the instruction was facially overbroad. It allowed the court to conclude or the jury to conclude that lawful conduct like merely setting up a meeting or merely hosting reception constituted a subtle use of governors and was a step towards achieving an end and therefore was an official act like answering the question who should i talk to or posing for a photo op at the government argued to the jury with an official act. At the very heart it was encompassed upon the court asked that in the United States to instruct the jury in the clearest possible terms on what the lines of distinction were by likewise refusing to give a standard goodwill instructions to the District Court violating the principle of the jury was permitted even if they completely agreed with us as to what the fact of this case showed. Now im happy to answer any further questions the court has on this issue. All of this of course, although we talk about it seems we have a fair and impartial jury. Here however we dont even know we have that. This is one of the highest profile criminal prosecutions in virginia history. Both sides wanted the elaborate questionnaire. There was giveandtake about what questions would be on the questionnaire. Not really. We jointly submitted a written questionnaire. Both of us agree to it. Before hand. That questionnaire included the question have you formed an opinion about the guilt or innocence based on every trial. Inexplicably District Court when he sent it out to the jurors he struck the question. The jurors were not asked to be formed an opinion based on exposure to pretrial publicity. Were there any questions . Where theyve been exposed to it and one question about opinion. Have you expressed an opinion to someone else exposure. There are plenty of people maybe not in the court room who dont feel the need which is why we and the government agreed heidi formed an opinion. They fill out the questionnaires. He got a group of jurors there all said we need this question. The judge said what is your problem . There are these a jurors and they cannot then were asked the question. Isnt that right . No your honor. May i explain . You named the aid. If i could explain when we got to the hearing. Its clearly wrong. When we got to the hearing we specifically said for those jurors exposed to hand the questionnaire, page 1690 the transcripts he said no im not asking the question. You have to make a determination based on the questionnaire we have here that is when he conducted his en masse standup sitdown proceedings. Everybody sit down. Than a third time was had your honor we cant trust the credibility. Then your honor what you are getting mad at page 1692 of the appendix the defense attorney made clear he was calling up those who had answered those who have expressed an opinion. Then we caught up to a jurors. What happened next is highly instructive. Recall that the jurors who answered yes to the question have you expressed an opinion and the very first one we were mistaken. The governments attorney pointed that out to judge that there and said that first juror they called up has not said yes to the question as he expressed an opinion. He answered no and heres what judge spencer said and im quoting an page 1696 of the transcript. Im sorry man. We thought there is something in your questionnaire. So you may have to see. It is Crystal Clear at every stage of the proceedings from the written question or two showing up at the hearing to object in the hearing to the end of the questioning, what happened to the District Court, do you have any more . The response was not on pretrial publicity. Yes your honor. But that is because theater be ruled. It is very difficult to be a trial lawyer. Much easier to be a peel. I couldnt agree with out more. You have to keep making the connection. And we made it three times your honor. With all due respect im cannot possibly constitute a waiver. I would point out waivers the legal issues subject to de novo review and i do not think you can credibly read the transcript to conclude we waved at in the written questionnaire inexplicably appeared the government actually agreed at the beginning to geriatric a question on this. It is that it would drive the decision if somebodys exposed to pretrial publicity they have to be your deer do not have a list of questions. Here is what judge spencer said. You have to identify the people you think should be struck for cause in the court will make an assessment based on the information we have on not asking these questions. Not aware of a case anywhere. The individually brought attention. Which were not by definition but could only bring up those who answered other questions beyond mere exposure to pretrial publicity because we specifically said we want to question every juror based on their mere exposure to pretrial publicity. So when they stood up that they had been exposed to pretrial publicity you wanted to question each of those in the court would not permit you to do so. The court only permitted you to do savin and they said they had an expressed opinion. Exactly. The people standing up if you can give it a fair trial, sit down. Precisely the procedure that Supreme Court did when they said unless the court has further questions no doubt each juror was sincere when he should be fair and impartial to the petitioner. Psychological impact requiring a declaration is often his father. Who amongst us would answer the question no one asked if its a fair trial. That is why individual is required. Thank you very much your honor. May i 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 that the defense counsel could bring a jurors said they wanted to individually questioned, the court did not limit in any way the defendant should just asking about the question of whether someone had expressed an opinion. If you read the transcript when the court started doing the individual questioning of jurors will see that defense only citing a variety of reasons for why they wanted to question somebody. There was a point where they offered a reason to question somebody in the court said no i will not let you ask a question so that is not a sufficient basis. A fair reading of the record would say give me a reason when you give me a reason. We will not sit here and automatically question every single one of these. How many are sitting out there . 115 . 145 i believe. Are you saying the defense never said i would like to question all of the prospective jurors who were exposed to pretrial publicity in the court said no you cant do that. That is what the opposing counsel just said. The way i would put it is the courts that gave me a particular to the juror reason but didnt say look you can only call a people who they expressed an opinion. They tie it to the questionnaire. I think he was looking for a reason none of the questionnaire. There were 99 questions. They brought up the exposure to press, express an opinion on a variety of a feeds for individual questioning. At the very end at the very end he said do you have anyone else and they said not on pretrial publicity. I think my colleague is asking you a question of what happened before that. Did the government have heard jack to the defense asking jurors about their exposure to pretrial publicity . Right. Would have been know, the government never objected to that . What we said the court should ask about that in the questionnaire. The questionnaire where we requested a question about have you formed an opinion. This court did not lose that question. There were a variety of other questions and then at the hearing when defense counsel wanted to question every single juror we said how about as an intermediate step to a question everyone who said they had followed the case very closely or somewhat closely in the District Court said im not going to do that. So every single juror stood up when asked the question have you seen any pretrial publicity about the case . Is that what happened . Right. Every juror . That is correct. The court asked two questions. First, if you have read heard or seen something immediate stand up for me. Then the chorus that based on what youve heard relating to the case, if you are able to put aside whatever youve heard listened to the evidence and be fair to both sides, i want you to sit down. That is an appendix page 963. Stand up sit down process to the court . No. The question i think we have or that i have for what the council said was after there had them to stand up sit down they said no we want to have an individual ordeal of each of these people to discuss pretrial publicity. Is that what happened . The District Court said no. What the District Court say . A people came out. Right. How did that happen . We want to question everybody. The proposed an intermediate step of the people who said they followed the case very closely or somewhat closely. The judge. Not that we dont think that is required but out of an abundance of caution though that review. Im not going to do that. Ill do something of my own devising. The defense counsel gave me a reason. In terms of my closet and he is saying youve got a very wholesome questionnaire. Give me a reason for why you want somebody brought up here. They offer a variety of reasons and cited them in the transcript not just pretrial publicity. Out of the questionnaire. And then the judge questioned a series of people and of people and at the end they say we dont have anyone else on pretrial publicity. Did ask questions on other things after that . The last part was not a pretrial publicity. There was an additional question. We review of that. Yes, that is right. This court cases and baker and bailey. The court said collective questioning is permitted and both of those cases involve collective questioning whether defendant hadnt gotten what they wanted on the questionnaire. The case has the added benefit that the parties were armed with very extensive questionnaires in the co