Harlan Fiske Stone Moot Court Competition 2018

right this is the time for the Harland Pistone finals new car competition where's castle okay council soon mr. Mead you'll be arguing for the appellant first your honors and may it please the court my name is Brett Mead and I represent defendant appellant Jeffrey green on issue 1 666 misapplication I'd like to reserve two minutes for rebuttal please you may have two minutes this circuit and this circuit alone has expressly and squarely addressed the issue of politically motivated spending decisions in the context of 666 misapplication in the United States V Thompson this circuit unequipped Lee held quote the idea that it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend public money is preposterous isn't that directly contrary to the prior decision in de la Cruz your honor actually it's it's squarely in line with the precedent dela Cruz in that case on appeal the issue of politically motivated spending was not actually an issue the only pertinent issue on appeal and dela Cruz was whether the officials in question had the requisite Authority not true because in de la Cruz we were focused on whether a proper intent existed which actually rendered the issue of authority irrelevant that's absolutely right your honor but on appeal the the argument was that the post hoc authorization in that case essentially cleansed the illicit concept the illicit disbursement but actually in terms of the pecuniary benefit requirement which judge Easterbrook makes clear where is that language come from in your proposed jury instruction pecuniary benefit I didn't see anything any words like that in Thompson certainly honor so the words pecuniary benefit do not actually appear in the opinion did you just make that up for purposes of the sorry it's creative so no your honor I'm not actually that creative but but judge Easterbrook's language in that case was that where the conduct at issue in Thompson which is a public official dispersing money in violation of a couple state or local rules to benefit politically or for some political reason is not a federal crime unless the official is on the take which is the exact language the judge easterbrook use but further judge Easterbrook delineates a series of similarly corrupt acts he says six-six-six misapplication is to be read narrowly to theft extortion bribery and similarly corrupt acts he then delineate it for similarly corrupt acts all of which involve a pecuniary benefit to either a public official or a third party and that is actually squarely having other circuits that have looked at our opinion in Thompson said that Judge Easterbrook really didn't decide the outside boundary what constitutes is similarly corrupt Act we'd only laid a minimum boundary so your honor the other circuits which have addressed Thompson have most frequently and actually exclude exclusively as far as I could find addressed it in the context of what it says about violation of state and local procurement rules so for example the Eleventh Circuit in him and has interpreted say that minor violations minor deviations of state and local rules do not give rise to six six six six six misapplication on there this is no minor violation I mean here we have a government official giving money to his hand-picked organization of his personal choice and he's getting value to himself he's having them deliver for him and his party and that seems to me if anything a corrupt act you're saying that falls outside of the definition of corrupt acts under the statute well your honor I would say that it falls outside the definition of similarly corrupt acts as judge Easterbrook delineate those corrupted but Thompson doesn't narrow de la Cruz and in dela Cruz we talked about use of funds for political advantage and that was also criminalized by 686 certainly are and and I would suggest that that language that that solely for their own personal and political advantage language in Delacruz should be read as dicta because in fact what happened there was you had officials spending money essentially in a campaign context they were going door-to-door offering public funds to sympathetic voters they're essentially functioning in the context of campaign workers well they were doing work to motivate voters to benefit them when the election came around and here too the money is going to motivate voters to benefit the party of the Secretary of State when the election came around and the distinction you see is the distinction I see is that in Delacruz the conduct is clearly cognizable as a pecuniary benefit to the officials at issue so in that case you have them spending money essentially on a political campaign now don't get me wrong this is incredibly illicit campaign spending it's it's offering pecuniary benefit in the form of driveway paving pool paving backyard paving for in order to motivate voters but it's it's still illicit campaign behavior I can't paint the money's going to other people though it's not lining the pocket of the official and here and what the official is getting is the political mojo if you will and here too the official is spending money through this this nonprofit to get political mojo at the end of the day so I guess I'm just trying to figure out it feels a little bit formalistic the distinction you're trying to make I'm trying to see right where you draw that line and whether that's one that that seems to accord with the statute certainly your honor and I agree that that that that line is important and and delacruz is more similar in fact to the facts of Geneva which is the other case in this circuit that's considered politically motivated spending and in that case you had officials spending money issuing comp time to employees to work directly on their campaigns we in Geneva say that an in-kind contribution or it is equivalent to actually spending money and your client has a reelection coming up in November 2018 it would seem that the end result of what his plan was was to you know to suppress voting in the opposing party would be a benefit to his reelection campaign well your honor actually the government nowhere establishes that Jeffrey green my client was actually intending to run for re-election there's simply no evidence in the record to say well but have Ewing the evidence at least as far as the rule 29 motion were to view the evidence in the light most favorable to the government is that right certainly honor it can't we reasonably infer that if the election the reelection were to be conducted in November 2018 that he would be reasonably expected to seek re-election I run it a fair inference from the evidence your honor I don't think there's anything in the evidence to suggest that Greene had any intent to run it simpler tis simply devoid of anything from which you can infer that his intent was and get was indeed to run for office again what if he hypothetically what what would be the result if instead of giving a grant or authorizing a grant to the DA P he had given a grant to the National Party and said National Party I want you to go out and educate voters do whatever you want to promote voter awareness enhance registration but I want you to confine your efforts to the National Party and not the future party with that would that be a violation of his statutory authority and if he did that would that be akin to the sort of pecuniary benefit the equivalent that you're hypothesizing your honor in your hypothetical if we're assuming that he's giving this money to the National Party to essentially run political campaigns then in that case that would absolutely be a 666 misapplication it would involve a pecuniary benefit to his party hitting that exactly what happened on page 33 of the record miss David says that he specifically acknowledged that mr. green specifically acknowledged that it would be confusing and misleading voters to include in the in the in the promotional information that that a for drunk driving and possession of marijuana could would potentially mislead voters into thinking that they were improperly registered isn't that exactly what what what what he did well Your Honor I would argue that that is actually different in kind from spending money directly on political campaigns and it speaks to the the kind of rationale underlying Thompson which is that if you allow political benefits at writ large to serve as the foundation for six-six-six misapplication then you run into grave issues of line-drawing so in this case you have Jeffrey green suggesting as an elected official that the gains from removing illegal voters from the rolls outweighed the risks of removing legitimate voters from the rules Jeffrey Green's intent was not to deregister legitimate voters Jeffrey Greene's mistake was acknowledging that his efforts at rooting out voter fraud would indeed have some negative externalities we're not the jury I mean isn't that what what the jury could buy it for just as you as you announced but the jury could also infer from page 33 of the record that mr. Breen specific intent he had to do a part of his intent was just as you indicate but part of his intent was to encourage future voters voters in the future party to deregister under the under the misimpression that an arrest for possession of marijuana or drug driving would mean that they were committing a crime by registered now your honor I'm glad you pointed out the dual intent prong because under the instruction given the instruction is misapplication has occurred if the official uses money for their own purposes rather than the state's if we take rather than to mean and not the state's then a dual intent is not a misapplication under the instruction given and the record clearly indicates that it was both Jeffrey greens intent or perhaps Jeffrey green simply acknowledged that he intended to benefit politically and that he also intended to prevent voter fraud yeah so I don't I don't see that from the record here it seems to me that the dispersment served only greens interests and not the state because the state's interests and get it in applying for the money from the grant for the grant was to do things to encourage voter registration not to decrease photo registration by issuing a misleading flyer well your honor actually in the language of the stop rush Act one of the one of the prongs that it was to be evaluated on there was its efficacy in preventing voter fraud that was part of the exact rationale for the Act and one of the four ways that you're allowed to spend money under the Act is for the maintenance act to commit voter deception in order to eliminate voter fraud your honor the point in his creating voter deception which I the record clearly indicates there was misleading information and it's in fact conceded I mean your client of colleges that this happened yes your honor but the the point here is that this state's interest standard that the district court used once into problems of vagueness and federalism in this case the state's interest standard I mean I had some questions about that given the intent aspect you know this is a this is a statute that criminalizes intentional misapplication of funds and when you have an intentional criminal violation I'm just I'm just not sure you have a vagueness problem here certainly are and and Thompson acknowledges this point that you see in fact in Thompson there was clearly an intentional misapplication there was intent to put money towards a specific contractor for political reasons but here I guess I I see this as more of a screw specific intent that there the the jury clearly could have found in this evidence and I think the instructions guided them toward this notion that here's someone conscious of the unlawfulness of what he's doing he's doing in a secret transparency rules are thrown out the window the bidding process kicked aside and you know all of those aspects really point to a much narrower kind of intent than we even had in Thompson no well your honor and again as judge Bacharach pointed out there's a dual intent here in every breath that in every instance that the government points to where Jeffery green mentions wanting to get future party voters off the rolls he also mentions his intent to get illegal voters off the rolls remind me what the instructions are on whether the jury what the jury would do with dual intent cuz my understanding was that the case went to the jury as a single intent unitary intent case am I wrong well so the instruction said if it if the official uses purpose is to serve their own treant interests rather than the States so in this case you have a case where and and this is really the core of the vagueness problem because as judge Thompson recognized anytime a public official makes a spending decision he's going to make a decision that will benefit him politically politicians run on agendas and achievements they might make spending decisions that they know will help them at a later election they also might make those decisions knowing that you know you're going into a problem I Solv with your breathing on this is that you're talking about political motivation as opposed to actual application of the fence and this statute is intentional this a plot and in this application so we have to look at the use of the funds the conduct here and plus the intent and your abstractedly pulling out just the motivation the political motivation which I see where you get that from from some of the cases but that's a little abstract when you actually have Congress using words in a statute such as intentionally miss apply absolutely your honor and I can see had and judge Easterbrook acknowledged this problem that miss applies in an inherently vague term it's an inherently broad and vague term judge Easterbrook invoked to the rule of lenity in Thompson which under settled Seventh Circuit precedent requires that there be Grievous ambiguity in the language and structure of the Act he noted that miss apply is not a defined term and further misapplication is contrary Congress would really have to define terms that have widespread ordinary meaning absolutely not your honor and I I would point out the judge easterbrook is no stranger to plain meaning and yet he does not cite to the plain meaning I think judge Easterbrook is God and we may think this is this case was wrongly decided Your Honor I don't mean to imply anything about Judge Easterbrook other than that I believe that if he had intended to rely on the plain meaning he would have done so and if you but you've already indicated that Judge Easterbrook in Thompson specifically enunciated the definition of intentionally miss apply so he wasn't as if he read the words out of the statute and said this this this phrase is so broad that it should be read out of the statute he enunciated a specific definition and you quoted it earlier absolutely your honor and so why couldn't the jury reasonably conclude that this was an other corrupt Act well your honor that's because the the corrupt acts that Judge Easterbrook mentions all involved pecuniary benefit and that's in line with settled Seventh Circuit precedent there has never been a Seventh Circuit case where they have upheld a six six six misapplication conviction in the absence of a pecuniary benefit and judge at the very words miss application of funds it really I mean if I embezzle money from the government Fiske and put it in my bank account that seems less naturally to be seen as a misapplication than just what we have here which is taking government funds meant for a and putting them to some other use applying them so it hasn't in fact a non pecuniary gain to the individual I think core meaning misapplication does it not I think that's right your honor but I would suggest that what judge Easterbrook was implying is that that kind of misapplication taking money for one purpose and putting it towards another governmental purpose that an elected official in their capacity believes to be a legitimate state interest that is a civil sin if it's a sin at all judge Easterbrook is suggesting that that does not rise to level of misapplication rather if you look at the act as a whole 666 outlaws embezzling stealing obtaining by fraud or without Authority converting all of these crimes involve pecuniary benefit to defendants judge Easterbrook's outlining of the corrupt acts and indeed the four corrupt acts he mentions involved that same kind of pecuniary rescue before your time step one question about your proposed instruction your proposed instruction would allow spending for political reasons but only if the spending was quote otherwise legitimate was the spending on a misleading flyer a legitimate it's been expense you're arguing that you would prevail under your own proposed instruction your I would argue that it's legitimate under the understanding laid out in Thompson which is that the government got what it contracted for the understanding is did the government when the government want a clean election and robust registration and is that what it was getting so your honor the issue is not a as Thompson saw it is not with the quality of the end product the issue is whether the government disperses funds for one thing and gets that thing and they're not getting it at a reduced price or at a higher price for shoddy goods for example your honor I see that I'm out of time you mind if I finish answering the question why so you can finish the question so the the point is not that the point of Thompson is not just scrutinized whether the government got the best possible product but rather to say that the mug that the government money went towards the purpose for which it was designated in this case it was a flyer campaign and it got a flyer campaign it would it be just the same as if the government was buying air conditioners and got shoddy air conditioners that wouldn't be misapplication thank you your honors all right thank you very much mr. Mead all right I'm sorry you're miss hash right yes okay good afternoon and may it please the court my name is Emily hush appearing on behalf of the United States there are three reasons why this Court should affirm the district court's denial of appellant motion for judgment of acquittal and uphold his conviction for the misapplication of funds under 18 USC 666 the theft and bribery statute first the jury instructions correctly defined misapplication according to its plain meaning and that definition is corroborated by precedent and congressional intent second the instructions do not raise constitutional vagueness concerns under skilling the United States and finally the evidence is sufficient to convict on the basis of the instruction given now first the jury instructions correctly defined miss apply during instructions are reviewed de novo in this Court held in Hernandez that instructions need not be perfect so long as they fairly and accurately inform the jury about the law these instructions met that standard and were therefore not an error the instructions defined misapplication as the spending of public funds for personal use without legal authority or for personal benefit I mean did he did mr. green actually get any personal benefit yes your honor personal use is best understood in this context within the ages of agency law because one of the elements of the crime is that appellant was an agent of the state now under Section 8.01 of the third Restatement we know that agency law imposes a duty of loyalty on the agent thus personal use is when the agent takes advantage of the agency relationship for his own interest rather than the interest of the state this takraw operated by comment B of that section which requires the agent to subjugate his interest to those of the state is gonna follow up that on this record though did he actually get anything in his own interest your honor even if appellant was not going to run for re-election in his individual capacity which he did not deny when he was asked a question getting to that in his testimony he was still using state funds that had been earmarked for separate purposes for the purpose of ensuring that the National Party would have a better chance of success at the elections this year as a member of the National Party that constituted a personal benefit to himself I'm sorry you had a question pending go write a story I was just going to ask you but didn't Thompson specifically say that the idea that that a public official would take account of political considerations and that that could criminalize his decision is preposterous your honor this case is is in line with Thompson because it does not criminalize political spending alone rather the jury must also have found that appellant had no legal authority for this political spending and indeed he did not didn't he have full discretionary authority to figure out how to administer this grant no your honor the appellant himself admitted at page 57 of the record that his discretion was limited and several provisions at the stop Russia Act would have prohibited this spending both for the way that it was executed and for the reasons for which it was executed section 25 12 D 4a of the stop Russia act provided that the funds distributed under this program had to be allocated in accordance with quotes specified terms made publicly available that means that appellant had to either comply with the public bidding procedure he himself set up or set up some other public will miss David did submit a bid your honor appellant instructed da P to submit a bare-bones proposal which did not contain the information required for evaluating the bids under the bid call and he instructed the committee not to evaluate that bit well where is that in 205 1 2 where is that in the statute that the Secretary of State can't instruct the authority on on which which of the bid which bid to accept well your honor because he instructed the committee not to evaluate the contract at all it was not allocated in accordance with public terms this was a transparent so in a narrower reading of public terms might be that the of eligibility what are we looking for we're looking for contractors to do various things to you know make our voting system more robust that was made public and people who wanted that money came forward however Your Honor we must also look to the words in accordance with and this bid was not given in accordance with those public terms we may have known what they were because the bid call was public but we have no idea the public has no idea whether DPP met them and we know from the record that DEP did in fact not met them DEP had no experience in this regard and that was one of the terms according to which these bids were going to be evaluated monkeys just minor deviations from the statutory regulations that we haven't held we're really cognizant I volunteer 666 your honor transparency is at the very core of preventing corruption in this nation so violations of this kind of transparency requirement in a governing federal statute are not are not minor or immaterial and in fact that's one of the things that differentiates me show you the record that DEP was not going to be capable of doing voter registration properly or acting consistent with the Act well your honor that's what the transparency requirements are therefore and had the committee gone through the proper channels to give them this contract they may very well have been a company that could handle this contract in a lawful way however appellant interference with that process not only violated the federal statute it led him to design mailers that were designed to intimidate and trick eligible voters into t registering from the roles he manufactured the entire scheme what's your response to mr. Meade's point about dual intent the notion that it's supposed to benefit the individual and not rather than the stage so that if we find that there's actually a mixed motive that that we would have to vacate the conviction well your honor if appellant had mixed motives he could still have been convicted had the jury found the state did not receive what it paid for so if we look at the elements of the crime as explained in the jury instruction he must have used them for purpose that served his interest rather than the stay and that winking at the rules it's okay as long as the state receives it paid for and in a situation where he's trying to serve the state's interest as well as his own at the same time there's bound to be situations where the state really is not getting what it paid for it's losing out over all because of Penny's own interests are overcoming his ability to serve his state there's situations in which you cannot serve two masters thus appellant could not use this money to prevent eligible voters from D registering in a deceptive scheme and at the same time be serving the state's interest in voter registration like you I think you really effectively focused on the on the process and the lack of transparency I'd like you to focus a little bit on the the intent and what in your view is the best evidence that mr. Greene actually had the unlawful intent to miss apply the funds that the criminal oper that requires your honor there are two sources that specifically show appellant intent in the record first pages 31 to 33 of the record show that appellant was intentionally targeting future party voters with criminal records miss David confessed to that intent and appellant told miss David that people with criminal records wouldn't know whether their conviction had resulted in the loss of their right to vote and therefore they designed the mailers to deceive these voters he demanded it doesn't the record it's far from clear I think as to how much input mr. Greene had and how much input miss David had well miss David did testify that mr. Greene was the one instructing her in these matters that he was the one who wanted harsher language he was the one that wanted more prominent specifics about punishment and in the wire transfer the flyer specifically said that da thing is solely responsible for the content what are we to do with that evidence well your honor the mailer also held the state seal and the jury found by convicting appellant that that was not enough that disclaimer was not enough to show that appellant intent was not behind this mailer he was involved in the process from beginning to end he told miss David not to tell anyone what they were doing in the wire transcript he said to her you can have lost sight of our goals it weeks before we know how many Future Party voters come off the rolls wait until the new president but his position or at least counselors position and is that they're trying to take people off the rolls who really shouldn't be there and so that alone without more doesn't necessarily tie you you know secure the the finding of improper intent do we have a jury instruction a screws type jury instruction that they have to have a specific intent to deprive a person of a federal right that is that one of the jury instructions here so that we can be confident that that's what the jury found Your Honor the jury instruction does not specifically address intent although it is one of the elements of the crime in the statute and so the jury would have informed of that content in the statute it's important also to note in the wire transcript appellant had also used the language of a cover-up when he said I told you from the beginning that this couldn't trace back to me I need to steer clear of this you need to keep my name out of this and if you tell anyone about my involvement guys grew up in a political context there are a lot of things that fall far short of criminal that for political reasons political actors don't want to be associated with so I think that's a very tricky argument here well your honor the jury did not find appellant testimony as to his intent of preventing voter fraud credible and under United States v Moore this Court does not question the jury's credibility assessments absent extraordinary circumstances so can I come back do we have to overall I mean your take on bunk our precedent and Thompson in order to roll for your client not at all your honor Thompson did not explicitly set the scope of misapplication what Thompson said was winking at the rules to help someone deserving but barely over the eligibility threshold is not a crime as long as the state gets what it paid for but it did not set the outer limits of misapplication and it did not say that misapplication is not an accord with its plain meaning Thompson simply said that the statute covers theft extortion bribery and similarly corrupt acts and the plain meaning of misapplication falls squarely within that definition but he said that in the cockpit the court said that in the context also of saying intentional missile plot intentional misapplication under 666 requires a finding of a government loss and a pecuniary benefit to the defendant Your Honor there was both loss and benefit in this case I think you nari benefit pecuniary benefit I'll be it indirectly your honor because appellant was using da P funding their activities to prepare the re-election campaign of the National Party where in the record is there any evidence that he was gonna really seek reelection not necessarily whose own reelection your honor but the National Party would have been putting a candidate up in this district and he was preparing the ground for them by getting future party voters off the rolls and that's a political benefit that's not a P key in other words if there are other national party candidates that are gonna win how would he derive a pecuniary benefit well your honor there's no evidence that Thompson did limit the statute to pecuniary benefits and that would not be in accord with the text of the statute section 666 a 1 a of the statute as a whole is dedicated to theft related crimes which are not done in return for pecuniary kickback so to limit the statute to pecuniary kickbacks would leave that entire section without independent meaning and violation of the rule against surplus age and that would also would not be in line with Congress's intent in passing the statute the Supreme Court explained in Fisher v United States that Congress passed the statute in order to create new offenses and increase the government's power to prosecute these kinds of crimes and that the statute is expansive as to the conduct forbidden so it should not be narrowed to a definition that misapplication has never been narrowed before to bribes and kickbacks it's always been used according to its plain meaning Congress and federal agencies use this word over a hundred and twenty times in statutes and rules they defined it three times and each time it was defined in accordance with its plain meaning as some kind of unauthorized spending the plain meaning of misapplication according to Black's Law Dictionary is the illegal wrongful or corrupt use or application of funds Amerian Webster's defines it as spending of public funds without proper authority and the during instructions adequately conveyed this meaning when they said that it's about personal use without legal authority or putting the state's interests after the interests of its agent thus the plain meaning of misapplication is in accordance with both Thompson and congressional intent and the plain meaning of misapplication and in AT&T the Supreme Court held that we presume that terms that are not defined in the statute take their plain meaning and in caminetti it says that we presume that the statutory text takes its ordinary and usual sentence counseling which is a slightly different way assuming that this flyer in fact had some people who are actually felons who were not qualified to register or vote deregister didn't this date get something that it paid for Your Honor it may have received incidental benefits in that regard but the state was not seeking the deregistration in the contracts that it was pursuing although election security is a permissible use under the Act the state set up two programs one it was for increasing electoral confidence in the voting process and the other words for voter registration so the state according to the terms of its own bid call was not seeking to prevent voter fraud by an intimidating people in 2d registering from the rolls even if they were in fact ineligible and you cannot justify those kinds of incidental benefits by the deliberate misapplication that appellant did by actually tricking eligible voters into deep registering and by using the terms marijuana possession and drunk driving he was in fact targeting people who had been convicted of misdemeanors because those crimes are almost always misdemeanors so there's no evidence that the applet pellet was trying to only target felons had he been doing so he would have deliberately used misleading language as he himself and if the the jury instructions are erroneous here over broad we just have to throw out the conviction no your honor if the jury instructions have a prejudicial error retrial is the proper remedy because the evidence is sufficient to convict even on the basis of appellant own instruction appellant instruction had three definitions of misapplication first it's defined as personal use without legal authority which was in the given instruction in which we have already seen he satisfies second it provided that misapplication is not spending for political purposes as long as that spending is otherwise legitimate however appellant spending was not otherwise legitimate it violated the transparency provisions of the stop Russia Act and also the provisions of the stop Russia Act which set out the purposes for which money can be spent because section d4a of the Act said that none of the money was to be spent to prevent otherwise lawfully registered voters from voting there was a DVD before you get to the third one isn't that argument inconsistent with it Thompson again because in Thompson there was a deviation from the the state protocol the lowest the the better that should have gotten the contract didn't ultimately get the contract there was they were forced into a runoff which the our court held was a deviation from the state the state requirement your honor Thompson was about a minor deviation from state administered procedure as it later clarified in the lepton case it said we overturned Thompson's conviction because the quote the proof at trial demonstrated at worst minor deviations from Wisconsin's administrative procedure this is not a case about minor deviations from state administered procedure this is about a deviations from a federal statute intentional deviations intentional violations of this federal statute in addition in the Thompson case the court found that she had the authority to trigger the runoff and she was doing so to get a local contractor at the lowest price which is what the state wanted in this case we see that appellant did not have the authority to ignore the bidding procedure entirely but he could have changed the rules entirely he could have your honor had he still allocated the funds in accordance of public terms that is what he had to do he could not give da P a contract in accordance with private individualized terms because that wasn't transparent and unfortunately that's what the appellant did how do we differentiate between a minor a major deviation of state law Your Honor we don't need to deviate differentiate between those two standards here because a federal governing statute told appellant what he needed to do in Thompson there was no federal governing statute and so her minor deviations her bureaucratic errors should not have been criminalized like the court said it was at worst a civil sin no one should be criminalized for that kind of activity but here appellant has deliberately violated a federal statute that instructed him to be transparent about the way that he was spending money and that's what missed application is about it's illegal because all you have to do is comply with the law that's the least that we expect of our state officials now coming to the third definition of misapplication in the appellant zone instruction it said misapplication is not spending that does not occur if all the spending occurs without political considerations now what that's getting at is purely political spending appellant spending was not purely political because had he refrained from imposing his agenda on the committee the committee would have spent the same amount of money but they would not have taken into consideration his political motives and they would have done so in a lawful way and it for lawful reasons observing the requirements of the stop Russia act now because the evidence was sufficient to explain that again I'm not sure that I followed why that's makes it not political because the committee would not have been targeting future party voters with criminal records the committee would have looked at the public terms they would have looked at the AP's experience they would have looked at the content of their project and how it was going to help the state and then they would have said okay this looks like DEP should get a contract and they would have allocated the money that would have respected all the provisions of the stop pressure Act so it would not have been political spending in the sense that appellant was using it now because the evidence was sufficient to convict double jeopardy would not prevent a retrial and therefore the indictment should not be dismissed even if this Court finds that there was a prejudicial error in the jury instructions I do briefly want to address the vagueness concerns in my remaining 30 seconds under the first prong of skilling the United States the statute must simply be sufficiently definite that ordinary people can understand what conduct hit it and kerry sheehan explained that that just means that people would not be forced to guess what a word means and no one is forced to guess what misapplication means because it is consistently used in precedent statutes rules and ordinary everyday use according to its plain meaning which simply means the wrongful illegal use of public funds thank you thank you very much counsel mr. Meade I believe two minutes thank you your honors in their oral argument the government suggested that somehow that the other prongs of 666 misapplication or the other prongs preceding misapplication do not involve pecuniary benefits I would point out that the theft and embezzlement are quintessential cases of pecuniary benefit they involve stealing money I would further point out that the Congressional intent behind Section 666 is incredibly brief but unusually clear in the in the Senate record the Senate has said that six-six-six was passed quote to protect the integrity of the vast sums of money distributed through federal programs from theft fraud and undue influence by bribery it doesn't suggest to protect it from this application or for payment from Melissa I mean what about your opponent's focus on the transparency on the process and sort of almost as an independent ground for the violation here that they're just you know your client stumbled there Your Honor I would just that that is where where Thompson is perhaps at its most unequivocal where again violations of transparency of minor deviations from public bidding procedures are not federal crimes and this is this core of judge Easterbrook's issue in Thompson which is that you know if you open up political benefits then you turn the Seventh Circuit into a clearinghouse for state and local spending decisions and that is exactly what he was warning against now the government suggests that when public officials serve two masters they're going to be inherent problems that should become federal crimes but it's an unfortunate reality of popular politics that politicians are inherently going to serve two masters imagine the situation where a politician quote caves political pressure it's often the goal of activists and protesters to put political pressure on public officials their aim is not to persuade but to make spending or decision-making in a certain area toxic if you had incriminating emails from a public official saying you know I don't think this spending decision is in the state interest but I'm gonna get killed at midterms if I don't spend this money this way if they cave in that case is that a federal crime thank you your honors all right next hear from good evening your honors and may it please the court my name is Loren Beck and I represent the appellant mr. Jeff green today I'll be addressing the issues on appeal arising under Title 18 section 241 and section 242 I'd like to reserve two minutes for rebuttal you may do so now we're here today because the government would have this court performed the unusual act of stretching these criminal statutes to reach conduct that has not been established by prior precedent and that Congress has not sanctioned ultimately this court should find that sections two four one and two four two are not the appropriate vehicles for addressing opponents alleged conduct in this case now I'll first argue that the district court erred and its jury instruction and then I'll move on to address the sufficiency of the evidence first this Court should find that the district court erred when it instructed the jury that the right to vote includes the right to be free from illegitimate intentional government interference miss Baek it must be that it violates 241 and/or 242 to falsely tell people that they have to for example pass a literacy test or own property or pay a poll-tax in order to vote in the United States you're not telling me that those kinds of obstacles because they aren't actually standing in front of a poll and preventing someone from entering that those don't violate 241 242 to the contrary your honor that really goes to the crux of this case which is that a parents conduct might be construed as a crime here but they are not crimes under federal statutes two for one and two for two for several reasons one the Congress has communicated that behaviors akin to intentional government interference or dissemination of misleading information is not properly prosecutable under these statutes in fact the authority which the government now asks from this court for its prosecuting attorneys is Authority which Congress has deliberately withheld sections two for one and two for two were originally a part of the Act of 1870 and while these statutes have survived mostly in their original forms many sections of that Act have since been repealed precisely and the original intent of these laws was aimed at just the kind of conduct that I was outlining and I don't see why this isn't just the modern-day equivalent of that the reason why it's not your honor is because they have repealed sections that squarely address appellant conduct in this case crucially Congress repealed section five five zero six which penalized any behavior that rose to the level of hindrance delay or obstruction with any citizen exercising their right vote and this was punishable by up to one years imprisonment clearly then Congress did at one point intend to punish these less egregious and perhaps more indirect methods of interference with the right to vote while still sanctioning prosecution for more egregious methods rising to the level of intimidation threats injury or oppression isn't exactly what we have here I mean there there was a flyer distributed it was designed to intimidate qualified voters from actually participating in the election your honor to the extent that the government now attempts to characterize appellant actions as intimidation he had the right to have that charged in his indictment and that specific instruction to be given to the district court the first time that intimidation has ever been mentioned in this case is on appeal in the government's brief where they now refer to intimidation over 15 times and I think the document itself the the mailing is fairly characterized as an act of intimidation that was in the record from the beginning that may be the case your honor but if the government would like to proceed on that theory they'd have to go back and retry appellant on that theory because what was specified in the indictment was the specific method of distributing misinformation intended to deceive how does I don't I don't understand that how does intimidation differ from illegitimate intentional interference the broad umbrella of illegitimate government interference as specified by the district court would arguably include intimidation or voter deception that is precisely the problem is this broad umbrella of illegitimate government interference but if he's engaged in intimidation he's engaged in the core of that broad and umbrella and he certainly would have fair warning that that was illegal your honors because the indictment specifically charged misinformation intended to deceive and that is the offense that appellant prepared for in this case and it wasn't until he arrived at trial that he first learned that that was no longer the method he was being prosecuted under but this broader umbrella of illegitimate government what evidence would he have presented that he did that he did not present or what evidence did he present that he would have withheld if in the absence of this alleged constructive amendment of the indictment Your Honor I was in other words how is he prejudiced he was prejudiced even in the absence of a constructive indictment because the jury instructions were far too broad because they violated federal federal ISM principles and because fair warning was simply not met in this case the right to vote has been specifically delineated by the Supreme Court and by this Court and neither has ever identified a right to be free from illegitimate government what's the federalism problem that you're referring to my understanding is this arises under the spending clause so it's a choice of the of the state whether it receive this money no the the federalism problem in this case is in light of the opinions of the Supreme Court and this court every time they have confronted a right to vote case they have dedicated a part of their opinion to weighing the state's interest in governing its own election procedures with these broad and powerful statutes for example in screws versus United States the Supreme Court said that violation of local law does not necessarily mean that federal rights have been invaded and this court said in boudin versus Elkhart County that the Constitution is not an election fraud statute so clearly this is an issue that courts weigh in deciding whether the difference of screws in the difference of the other cases that you cited is unlike those cases here we have a state official who according to the government's evidence has intentionally Mis applied a federal statute that was enacted under the spending power and I don't think that was the case in screws was it no your honor the casing screws actually didn't implicate the right to vote however in this case under sections 2 4 1 and 2 4 2 it's not the misapplication of the funds that really leads to the specific intent here it's the behaviors leading up to the creation of the flyer and the dissemination right so it's the intent to suppress voters and fraudulently doing that by fraudulently inducing them to engage in conduct that actually rendered them no longer eligible to vote so they're actually inducing them to do something that changes their status as voters and there's evidence before the jury that that occurred and that in fact voters did change their status in response but again your honor that is not the language that was used in the indictment or the jury instruction again it was this broad language of illegitimate government interference and intentional and illegitimate absolutely governmental interference with the constitutionally protected right to vote right so if it's intentional I guess I see your eyes having quite the uphill battle I know you have the harder argument here on the law but when a person is charged with intentionally violating and knowingly violating a constitutional right and is convicted of that the the kind of over breath or vagueness that you're talking about I just don't see how someone in your clients position really has a gripe or has standing to raise that concern the reason for the overbreadth and all these issues despite the fact that the word intent was thrown out in the jury instruction is under screws versus United States there is a two prong specific intent inquiry that must be met in order for sections two four one and two four two to remain constitutional in fact the Supreme Court has said that this is the constitutional shoal that keeps these statutes from becoming broad liability mechanisms and in screws the court said that the first prong was that a right that's been made definite must be identified and under the second prong willful conduct must be aimed at that right here the first prong was never fulfilled and so fair warning was violated because as outlined in Supreme Court decisions the right to vote does not include the right to be free from illegitimate government interference so saying that behavior was aimed at a broad constitutional right does not fulfill specific in there specifically what happened in in u.s. versus Howard however new your honor actually in United States versus Howard decided by this court in 1985 this was a scheme by a group of people to falsely register themselves and they also canvassed neighborhoods and found people who had moved away or died and cast votes and there in their favor and Kostis for the street Democratic ticket that was the classic case in which fraudulent behavior is intimately connected to the ballot and people intimately connected to the ballot and intimately connected to the registration process true your honor both of those things so under Howard you wouldn't quarrel with would you with the idea that 241 and 242 were applied to mr. Greene in connection with whatever he did potentially improperly with regard of the registration process yes and I think that's an important point to clarify is that there are two separate issues here one is is registration one of the organic process see that can't buy which candidates are elected and we do not contend that it isn't and the government and opponents seem to be talking past each other a bit to this extent it may be the case that registration is an organic process by which candidates are elected however if the method of interference specified but it's never been held that that rises to the level of a constitutional violation and we with that okay you lost me the air because 241 and 242 that were applied in Howard by definition involved the Constitution because 241 and 242 only are triggered by a constitutional violation and they're empowered we said that 241 and 242 would sustain a conviction under these statutes that by definition incorporate the Constitution absolutely your honor but in the United States versus Howard false and fraudulent votes were actually cast in an election and that is the typical kind of voter fraud that both the Supreme Court and the appellate courts have found is intimately connected enough with the ballot to give rise to liability under two four one and two I don't see how you could be so your your position is that there was no actual deprivation of of the right to vote in this case but but that even if he were not even if the government did not charging a victim under 242 241 it's a conspiracy statute and you've conceded an agreement you've conceded with you know what they did they circulated the flyer why isn't why isn't 241 satisfied your honor under Section 241 the government was required to prove beyond a reasonable doubt that Greene entered knowingly into a conspiracy with at least one other person with the intent to aim this conspiracy at lawfully registered voters and that is the sufficiency issue that we take issue with in this evidence that the government would point to is evidence of witnesses who said they actually did deregister under the false understanding that they might be subject to prosecution if they didn't and on agreement evidence from ms david herself that she agreed with mr. green to try to bring this about so what about that evidence is not sufficient to support both 241 and 242 under 241 your honor that evidence certainly goes to the formation of an alleged conspiracy a partnership a knowing decision however the specific intent even on the jury instructions given which we still contend were in error he had to aim this conspiracy at lawfully registered voters specifically and the evidence in this regard didn't rise to that level in fact miss David testified at page 33 of the record that mr. green told her that he knew that people would be misled by the crimes of marijuana and drunk driving that were included on the flyer but that he said that the benefits of deregistration outweighed the risks of getting legitimate voters to do register well let's go to page 33 the question is so the information that says individuals who have been arrested for these minor things should consider whether they have the right to vote and consider whether their registration is legally accurate did you and mr. green discuss the fact that this would be misleading answer yes and then the sentence that you're talking about as I said before the the Jeff said the gains outweighed the risk of getting legitimate voters to register my question to you is this what is the appropriate what is the permissible or a potential gain from misleading but registered voters by telling them that if they have been arrested for drunk driving or possession of marijuana misdemeanors that that that that is somehow beneficial that that is permissible he knew you know that that would not cause someone to the unlawfully register so I I don't get how that is permissible absolutely your honor and the argument is not that that was permissible we we agree that this behavior may be construed as a crime under state laws we specified in our but that does not make it a constitutional violation under 2 for 1 and 2 for 2 what the Flyers demonstrated and what the language of the benefits outweigh the risks demonstrate is that appellant clearly had a reckless disregard for citizens rights I would say more than that based on the evidence and we do in reviewing the conviction have to take the evidence in the light most favorable to the conviction and we have testimony from Miss David that said Jeff said that a lot of people with criminal records wouldn't know differences between being a felon who lost her his voting rights and an arrested person who never did that is pretty damning if a juror hears that and attributes based on that to mr. green an intent to go after people who actually had a right to vote how can that not support the conviction here while weighing the credibility of witnesses and the evidence is certainly a matter for the jury this is precisely what we ask juries to do because the specific intent standard under these statues is what keeps them constitutional they are rigorous and they must be fulfilled both in the jury instructions and in evidence presented and what this evidence demonstrated at most was reckless disregard which again may be a crime under state law but is not under section two four one and two four two which requires specific intent aimed at that also was the jury instruction and again I know you've got a you've got a tough record here but the jury instructed that the individual had to be found to have acted knowingly and willfully in subjecting registered voters to the deprivation of their constituent right to vote not recklessly not gross with gross negligence so we looking at that don't we have to presume that that was properly found by the jury based on that evidence and permissibly so not in this case your honor because as I stated this specific intent standard is so rigorous that this Court should carefully scrutinize the evidence that was presented and whether it truly amounted to specific intent I'll quickly turn to section 2 4 2 in which the government was required to prove three elements beyond a reasonable doubt that is cific intent to deprive under color of law an actual deprivation must have occurred here no actual deprivation occurred because not a single voter was prevented from casting a vote at an election as this Court has said in we don't really know the answer to that question do we I mean from the record we do have mr. green talking about future rolls are coming in and with some sort of excitement or anticipation and so he was expecting that to be the result that may be the case but as this court said in Reichenberg herb Reese vs. drit lured the mere possibility of remote or future injury is not enough under the actual deprivation standards so the government should have waited until after the election to prosecute the government should have presented a single witness who was actually prevented from voting or we shouldn't with mr. I'm sorry I can't remember the name Mark Robertson maybe was he did dear Ed Robinson he did register so that means he couldn't have noted mr. Lewis Richards was Richard apologies your honor mr. Lewis Richards testified that he was D registered for a short period of time but that the next election was over a year away and that he had not actually been prevented from participating in the one election moreover your honors because of this stringent standard for actual deprivation the government just simply should not have brought a claim under Section 2 4 2 perhaps there was enough evidence to demonstrate conspiracy but there was not enough evidence to demonstrate actual deprivation all right Thank You counsel mr. Joe Rizza good evening and may it please the court my name is Yun your smih appearing on behalf of the United States this Court should uphold the appellant convictions on counts two and three for criminal interference with the right to vote the appellant argues first that the trial court overstated the scope of the right to vote and that right was therefore not clearly established and over broad and vague and second he argues that the evidence in the record is insufficient to support a conviction on both counts but this Court should reject those challenges for three reasons to begin with they rely on an overstatement of the standard for clearly establishing a constitutional right that the Supreme Court set out in the United States v Langer and under the appropriate standard for clearly establishing a constitutional right three lines of cases criminal prosecutions under sections 241 and 242 civil actions to enforce the right to vote and judicial review of legislative impediments to voting all clearly established the scope of the right to vote as it appeared in that trial court well did Lanier specifically say that the statute or has to be cannot be ambiguous it cannot be vague it must be fixed by rule or decision right that's true your honor so the standard lanyard set out was that a reasonable official must fairly understand the contours of the right the crucial element that they rejected is fundamental factual similarity they pointed out that in certain contexts even general statements of law can clearly establish a constitutional right when those statements are sufficiently clear about its scope and so what precedents do we have in our circuit or in the Supreme Court that have specifically extended a criminal conviction under 241 or 242 to a situation where someone is potentially impeding someone from registering or encouraging someone to deregister what case would have clearly established that that that extension of 241 or 240 your honor specifically in the criminal context United States v Moseley at the Supreme Court and most United States the Sailor at the Supreme Court would clearly establish the scope of this right so Mosley rejected the notion that you need physical or temporal connection to the ballot it upheld a conviction for stuffing the ballot box even though no individual was actually prevented from voting and Saylor is particularly relevant here because the court rejected just the argument the appellant is making here so in United States v Saylor the prosecution was for fraudulently tabulating the results of both of those were most mostly is Saylor we're talking about the actual vote casting the actual ballot my question to you is what Kay said I don't think Mosley or Sager addressed this extend to forty one or two forty to two registration as opposed to something involving tabulation of votes Your Honor in the criminal context United States v Howard would be the case that brings registration in by saying that interference with the right to vote extending back to registration is included in that right but it but it but in Howard the difference is there was language about registration but these were false you know fabricating 22 people to write that were registered and then directing the of how those ballots improperly obtained would be would be cast that's true your honor and it's also true that Howard is probably the the high-water mark there specifically in the criminal prosecution sense but two points are important to note from lanyard the first is that it's rejecting this notion you need fundamental factual similarity it's rejecting the notion that you need to find specifically the interference in a prior criminal prosecution so Kosminski was concerned about the broad scope of the right at issue there the the 13th amendment protection against forced servitude and it was suggesting that the right at issue there wasn't clearly established even by general statements of law it suggested that the the fact that there was some element of coercion in a employment situation almost included every single employment we have a very parallel issue here just as in employment legitimately supervisors goad people into doing things they don't really want to do and overcome their will to you know stay home and eat bonbons here we have the countervailing interest the First Amendment interest in speech now are you saying under your interpretation if I were to publicly say boycott the polls the United States democratic system is broken don't go vote because it won't do you any good that I could be criminally prosecuted for that for interfering with voter registration not at all your honor and that goes to the second line of cases that clearly establish the scope of the right here which are those civil cases to enforce the right to vote so in Rada so V Flynn this court addressed just that question and it drew the line at the free exercise of the right to vote as the trial court put it here it drew the line between the mechanics of voting and statements that would implicate the First Amendment aspect of your brief how did you come to distinguish read so that way what do you see in read self the distinguishes it into the compartment of mechanics versus the process itself well there's three points there your honor to begin with it's the way that this Court has interpreted Russell going for it so in part of the meal this court used a language of the organic processes of the election of the voting process and is cited back to Russell for that characterization so that's indicating that Rada so was intended to to relate to those processes it's also clear because from the holding in Russell itself Rada SIL is trying to distinguish misrepresentations on the merits of a political proposal misrepresentations about the the need for and cost of a sewage project from the misrepresentations that this Court held stated a constitutional violation and Smith v cherry the First Amendment tolerates a certain deception in the campaign around but it doesn't tolerate a deception in the mechanics like the step of registering versus actually going to the polls and those steps if there was interference at any one of those steps that would be a violation your view that's correct your honor so Radha sill says that those misrepresentations about the merits of the political proposal are not constitutional violations and it distinguished Smith v cherry using three factors that get to that substance procedure distinction those factors are the intimate collect connection to the ballot and because the the it couldn't be the case that simply putting this representations on the blurb about this sewage proposal would have turned them into some kind of constitutional problem because the court is talking about a First Amendment concern that intimate connection to the ballot must be a connection to the voting process second it looked to whether voters were deceived about the impact of their vote and it looked to one of whether one set of voters were advantaged over another all those go to a a procedural fairness element what if I were to say don't vote for the nation party candidates they are backed by Satan is that a procedural or is that political debate your honor that would be on the merits because it's discussing the character of the National Party the procedural misrepresentation is just one that meets those three factors and rubba so so that doesn't I mean it favors one group of voters don't register to vote when the government knows your name they'll be more likely to audit your taxes that would still probably be it's a it's a it's a political opinion it's getting very close to this to the facts here no the but the difference is the other language in the instruction the language of intention al and the fact that we here are nowhere close to the line certainly procedure in some sense everything has some relation to your ability to cast a ballot but voter registration is a universal essential legal prerequisite to the extent that something is clearly a procedural requirement from voting its voter registration and the second point is that the conduct needs to be intentional so it's not just that it's a a good faith belief that that voting isn't the right way to effect change that causes a negative effect on the on turnout it's a it's an intentional targeting of those individuals so under your theory if I said if I were actually trying to keep people in an opposing party from registering and I knowingly falsely told them don't register because in fact you're more likely to get audited by the IRS that would in your view fall within the statute if I had the requisite intent and I'm trying to basically threaten them you're gonna be in trouble if this happens well I'm putting it that way it would I end on the statutory language and the jury determination so there you would probably meet intimidation and then it would be a jury question about whether individuals found that credible and whether whether it really put enough pressure to cause an actual deprivation now so what if what if the exhortation wasn't don't vote for them because they're Satan what if the message is all right everybody belongs to the National Party votes on Tuesday nobody belongs to the future party both on Wednesday your honor that would be a procedural misrepresentation the and and if the it could be shown that that actually deprived individuals of their ability to register to vote or in that case to actually cast a ballot again that would be a jury sufficiency question reviewed under the highly deferential standard in a case like that okay some point on that to my knowledge I'm not aware of the case addressing deceiving voters about the day that they cast a vote but we do have cases addressing other types of procedural misrepresentations so for instance in Griffin V burns the First Circuit held that deceiving voters causing them to believe that they were able to vote by absentee ballot when in fact absentee ballots were not legitimate and not election was sufficient to state a constitutional injury in and there's other cases that specifically include voter registration within the scope of the right to vote so for instance Davis V Guam from the Ninth Circuit held that disparate that interfering with voter registration preventing an individual from registering for an election that had not been scheduled and may never occur was sufficient to state a constitute but we don't have any precedent in our court you mentioned that the u.s. versus Howard other than Howard would you agree we don't have any cases in our circuit like Davis versus Guam Your Honor in Edgar V acorn this Court held in the context of judicial review of a legislative impediment to voting that registration is quote inseparable from election so there the court was considering whether Illinois had decided not to comply with the federal motor Registration Act which required them to facilitate voter registration at the DMV and they argued that Congress's power to regulate federal elections did not extend to its to the power to regulate the state registration requirements this Court held to the contrary held that registration was connected to the election process what do you make of I guess it was miss backs argument that the voters all retained control of their own votes no votes were blocked so you really can't because in effect this scheme worked through the will the volition of the individual voters it really wasn't an interference with their voting they took they chose take to take steps or not Your Honor the the operative action here is intimidation intimidation met section 241 and intimidation caused the deprivation under Section 242 in an in a case where an individual makes a threat there's always some level of volition on the person who receives the threat somebody can call a bluff if a police officer was standing outside of the polling place telling people I will arrest you if you walk inside and some people nonetheless went inside the polling place that wouldn't take away from the fact that for those people who did in fact get turned away they were intimidated in violation of section 241 well you may have intimidation but there was no actual deprivation under 242 of the right to vote because nobody would have could have voted well your honor the under the appropriate instruction what's required is to show intentional illegitimate interference with the free exercise of the right to vote interference with voter registration is interference with the right to vote because those because of those cases edgar v acorn in this circuit davis weeklong in the Ninth Circuit United States v wood in the First Circuit upholding injunctive relief to prevent interference with voter registration still you don't have any cases in our circuit that have said that either under 1983 or 1985 or two or two forty one or two forty two where there was active deployment of efforts to encourage people to deregister or to not register separated from a denial of the actual casting of a ballot that's true your honor there has not been a case in this circuit addressing the issue of denying purely voter registration in that in that fatal order linear no your honor because what the new year it has to be clearly established that rule or decision that's true your honor but what the near ass is that a reasonable official could fairly understand the contours of the right let me ask what if we agree with appellant that this instruction guarantee of freedom from illegitimate intentional interference was wrote was incorrect because there is no case really clearly establishes that point can you still prevail your honor under the appellant instruction the appropriate remedy would be retrial the there's still sufficient evidence in the record from which a single reasonable juror could conclude beyond a reasonable doubt that the appellant was guilty which is a standard under United States v LC of what if we were to correct the jury instructions guilty of both 241 and 242 so certainly 241 is the stronger case we have his wiretap statements on page 73 of the record where he tells in this green to think of their goals to think of how many Future Party voters will be coming off the rolls that's enough to show intent we have her testimony on pages 31 to 33 indicating there's an agreement and we have the fact that she testifies that he took an active role in designing this flier to show he's taking steps to further this conspiracy with the intent of actually preventing future party voters from voting with section 242 under the impelling instruction it's closer to the line but there's still sufficient circumstantial evidence from which this court or I'm sorry a jury could conclude that at least one person was would actually have lost their capacity to vote and would be unable to vote in the election so here we would have his statements about his goals getting future party voters off the rolls mr. Richards representative testimony on behalf of the broad class of victims about the fear and intimidation that he felt when receiving the mailer we would have the structure of the mailer itself which targets lawfully registered voters we would have the expert testimony from this gold talking about the impact of the misleading campaign like this talking about the ambiguous impact that the fact that this comes from the government might have which might mitigate the ability to to reach out to the media in order to correct the the fraud that was perpetrated against these people and you have the fact that these are low information voters so the jury would know that they're the least likely to receive information from the media about the appropriate standard and you have mr. greens testimony anticipating that when the election happens there may be great things in store for the National Party right right exactly so all those statements together are sufficient from for at least one juror to conclude that that somebody has lost their voter registration and will we be unable to rear edge' sir that's just like prosecutions in the income tax evasion contest where there's a single material fact that the jury needs to infer from circumstantial evidence the single material fact is the income of the defendant but the government often has no direct evidence of that instead it presents evidence about lifestyle and expenditures and often statistical evidence like the expert testimony from this gold the frumpy denial of a right to vote as there had never been an election there might be an intent there might be a conspiracy under 241 but how could there be under 242 the actual deprivation of a vote if there is it wasn't even at large well your honor because of the in miss Richards get a register and mr. Richards in fact did we register but the the point is the intimate connection between voter registration and the ability to cast a ballot voter registration is an essential Universal legal prerequisite to voting so if somebody's lost that capacity and will not be able to get it back will not be able to mitigate the fraud that's been perpetrated against them then they've lost their right to vote the inference that the jury would have to make is that at least one individual is not going to be able to mitigate this this harm that they're not going to be able to take that affirmative stack because they have insufficient access to the the mitigating information and that's just a prosecution on the basis of circumstantial evidence and the the evidence in the record is a lis sufficient to convince one reasonable juror of that fact but the government doesn't feel we need to address its conviction question because the jury instruction is supported by these three independent lines of cases in addition to the criminal cases we talked about at the beginning and Rutter still V Flynn and Smith v cherry from this circuit you have cases from other circuits United States B would upholding injunctive relief for interference with voter registration Smith v Meese saying that the right to vote includes protections for voter registration means V Wilson saying the destruction of voter registration lists together with the destruction of some ballots stated a plausible constitutional violation those cases together establish a fairly robust consensus among circuit courts that the right to vote includes protections for the legitimacy of the overall process it protects voters from illegitimate intentional government interference with the free exercise of that right and under the standard the Supreme Court case ask Rafael Kidd even a robust consensus without controlling Authority I'm sorry I'd see a lot of time they just misunderstood is sufficient to clearly establish that right thank you right thank you very much counsel he's back may it please the court your honors one quick point on rebuttal which is that the government's position suffers from a serious flaw here which is that their theory of what the right to vote includes present serious unlimited liability concerns they attempt to distinguish between what speech could fairly rise to a constitutional level and what could not by creating a distinction between policy and procedure which is not stated in any case law by this court or the Supreme Court and in doing so they ignore the explicit language in Smith versus Chery in which this court said I have to have some way to distinguish some of these cases and it seems like that's a pretty appealing way to look at it because you take it outside of the marketplace of ideas of political opinion and you stick it into something very much tethered to the ballot process which is what we've said you have to do in red cell Your Honor the standard laid out in Smith versus Cherry did give a standard for which we decide whether deception rises to the level of a constitutional violation and Smith versus cherry this court said that deception on the face of the ballot fairly implicates the right to vote and Rudisill tried to distinguish the misinformation in that case from the facts of Smith versus cherry and in so distinguishing they said that the behavior in this case was not intimately connected to the ballot because Smith was on the face it's more intimately connected than registration and going to the voting booth while the right to vote is a process obviously and there's many stages that occur over that the issue here is that section 241 does not apply just to the conduct of government officials in fact in Griffin versus Breckenridge the Supreme Court said that section 2 for one can reach wholly private conspiracies if we are going to criminalize speech directed at any constitutional right this is going to present serious vers Amendment concerns as well as serious unlimited liability concerns so this Court should adhere to the standards set out in Smith versus cherry and find that deception must be intimately connected on the face of the ballot thank you thank you very much Council yes this session of the Court is adjourned for now deliberation right good afternoon again so first of all I want to say that each of the four oralists was excellent absolutely terrific arguments and brief writing it's such a pleasure to come to mu court where the students are always so much better than 99% of the recited every day you each of you did a really fabulous job it's very very difficult to choose someone who's the best but just to point out it very a few things the bread need I thought you were just we had really good arguments in response to some of the questions and in particular I thought the way you turned judge back rocks dual intent argument around on him was really quite seizing the day and you made as much juice and really excellent use of Thompson as you could most impressive to me was your rebuttal it's very strong I just worked out of my to myself quick on his feet really very quick argument and you just really tacked into a weakness that had been rendered by the other side and then Emily hush I thought your commander the record was Angela was just extraordinary you had really good arguments on Kate you kept coming back everything that everything that we raised you turn but it also was with a sense of really understanding election law and the purposes of it miss Becca I thought you had the absolute toughest argument it really really was and yet you just hung there you are not rattled by a single question and you were solid and strong and you also did a great job on your word but else is very wise of both of you to take your rebuttals and I thought you kept hitting on a really great distinction between what's the federal constitutional violation versus a violation of would should just be simple state law and that was really excellent and mr. charissa I thought you also your distinction as I said another argument trying to align the cases was really quite genius so it's very good before I talk about the four advocates I do want to make a comment about whoever the group that put together the the problem I think it's those of you the second row baby it was fabulous you all did yeah I already bragged on you all at lunch but I really made it the I thought I think putting together an evenly divided problem is difficult in itself and I thought it was really a very well decided very well constructed issue on all four aspects of it and I thought it was the bench brief though the advocates were privy to but we were and it was very well done very well written and analyzed and I have sort of a broad comment for all four of you you all are already incredible lawyers the I would expect coming into a school like this with with everything that comes behind being the best of the best at in the Moot Court Competition that we would say a really top-tier arguments and all four of you really embody yeah one of the most difficult things I think for very seasoned lawyers and it's not and I don't mean this pejoratively for seasoned lawyers but it's very difficult when you're anxious to get up there and listen it's easily said but it's very different it's very difficult to do and when you are not used to appearing before judges and you know that all of your family families are here and your friends are here I think that it would be doubly difficult but you all all four of you really listened very well to the questions and it was remarkable that you all without exception answered our questions and you would be shocked at how often in all three of our courts lawyers don't necessarily do any of them and so you're very well your you're way ahead in doing that in all four of you also segue very well after answering our questions to the points that you all wanted to make and I and I and I truly mean that for all four of you but but you know you're all obviously winners by making it to the finals of this prestigious competition so I think all of you all four of you should feel very very proud of yourself and I do also want to make a comment about your briefs one of the most important things I think for for any litigator whether you're a trial lawyer or an appellate lawyer is to communicate well not only orally but in writing because so much of your advocacy is going to be in writing and all of you communicated very well in your briefs and one of the things that I value a lot and I'm sure my colleagues do as well is that it's easily understood you can't persuade somebody if the judge doesn't understand it or if the judge has to go back and reread sentences or to come to a pronoun and figure out what is the antecedent it to go back and reread you know to figure out what what the lawyer is talking about and all four of you really communicated very clearly what you were trying to say and so you're way ahead of the game in trying to persuade us because we understood it and so I think all four of you are are already excellent lawyers and and I hope your legal writing and professors are in here that can take full credit for how well you accomplished that and those are all the comments so it's it's a little bit of a no-no it's sort of a cliche that you come into a competition like this and you say it's it's a really hard decision and it was a really hard decision I kept waiting for you disqualify yourselves get up and oh no not another great one I didn't realize I had to distinguish at that level of granularity Oh so really kudos kudos to all of you really really well done I am when I was a young lawyer and I argued my first case which was in the Second Circuit in the court of appeals I don't think he'll my gosh I've never done this before and I thought no I have and the experience that I drew on was my moot court experience I mean it fills it's fake it's pretend but it's very very real so you've done something that really will stand you in good stead and I have just a few comments for each of you Brett you set the bar really really high and my notes say clear calm responsive and I really liked you had a couple of sort of thematic things that really stuck in my mind one of them was when you talked about politicians running on their own achievements and how you know there's a way in which that sort of fit into a core theory for you that I thought was really great and also the way you dealt with that intent question and why why if there were two intents you win and how you how you had the phrase to sort of tie that to and I was like oh I hadn't really focused as much on that until you talked about it I thought that was really persuasive but then you had an opponent who got up and persuaded me the other way Emily hush I have notes here rock solid like a steel trap I I thought you were really you had probably had the most words in your delivery which what you know there were moments when I thought okay she's just talking too fast and that's something people might have told you you should pay you know keep that in mind but I ended up feeling like yeah and she's using her airtime and really getting it out so and you had all you had you know getting what it paid for and you know is the government getting what it paid for and making the argument about where the motives are mixed that's you know that sort of raises a presumption that they're not and for me that was helpful persuasive I really I really liked that Laura and I actually said from the bench that I thought you had a really hard argument and you really kept your composure and stuck with it came back and maybe a little later then you could have used you pivoted and said Anna you know okay you talked about specific antenna I'm also going to talk about the deprivation I'm gonna talk about inner color you know and sort of move from when we're steering you and trying to kind of keep you like a bug on the thing that is hard and that you can't you know there's a hardness there that isn't your fault that you were graceful about about moving off of that onto some of the other points and so I thought you were very very like beyond your years professional in a tough in a tough case and young really uh it took me a few minutes to to remember you know you had this argument that judge Worrell also commented on about making the distinction between the procedural and the sort of more issues advocacy which I just thought was really creative and impressive and sort of lawyering at a level of you know doing something with the material that is your value-added and I just thought that you pull that off it's a little bit you know you have to actually teach the bench because it's not in the package that's handed and it was because it was in your brief but but um I thought that was really a very mature kind of advocacy that was really really quite impressive I also have to say for all of you that and I'm guessing that your legal research and writing professors have emphasized this but you are very good at not always being at one speed in terms of your confidence in your arguments you know and sometimes like well that would be harder and I remember yawn you or don't you did this at one point you know okay the conspiracies you know and then on the on the other here's my argument you know you can see it a little bit but but still have confidence but you know when when the bench is really skeptical it's you just seem to you kit and it's tough because you don't want to overdo it you want to give things away but to seem to have judgment and be grappling along with the judges and you already each of you have the the beginnings of that which really also makes you seem more trustworthy and that's one of the things that nan sort of directly substantive things that demeanor and and delivery cue that can actually be quite valuable so I thought you all did a really really impressive job you should feel great so with that we're going to recognize the student Executive Board first the Harlan miss stone miss stone co-directors and code drafters of the problem gideon hand-fed [Applause] and Sam Callaghan the executive director of the MOOC are Julia choy oh okay all right Julia we miss you son okay the foundation MOOC art program director Daniel Rodriguez he's probably better to his article okay the specialized mute Clark director Jordan Weatherwax see here no he's there too okay and then you have a lot going on here no good day love Stephanie Adam Makos next in recognition of the fact that you are finalists and that's an amazing achievement we're going to hand out those certificates first to fret me [Applause] [Applause] [Music] Emily next we are going to present the green bomb best oral argument and again this is really really difficult we just got in the room and said oh no what are we gonna do how are you gonna do this but the honor goes to Emily hush [Applause] [Music] [Music] and our final announcement is the award for the best written brief which I'm pleased to say goes to yon your wit sir [Applause] so thank you all for a wonderful day y'all did just terrifically again you said everyone should build great and I guess we're going to go take pictures now [Applause]

Channel: Columbia Law School

Views: 26,069

Keywords: law

Id: ilTaf06Pm_M

Length: 101min 7sec (6067 seconds)

Published: Wed Apr 11 2018