[00:00:17] Speaker 03: Good morning, Your Honors. [00:00:19] Speaker 03: May it please the Court, Rich Sobiecki from Baker Botts for the Appellant Petitioner, Fraser Ruscio. [00:00:25] Speaker 03: Your Honor, the District Court in this case committed three errors that we would like this Court to address. [00:00:31] Speaker 03: First, the District Court erred in finding that Mr. Ruscio did not challenge his count-three conviction in his petition for quorum nobis. [00:00:39] Speaker 03: He did, and therefore this Court should focus its analysis on whether the spillover standard was met. [00:00:46] Speaker 03: The district court applied the right factors but applied them incorrectly. [00:00:51] Speaker 03: The spillover test should be focused on comparing inadmissible evidence against evidence that would remain for the remaining counts, a count three only retrial. [00:01:03] Speaker 03: Here the district court essentially conducted a sufficiency of the evidence test in the favor of the government instead of a pro-defendant spillover test. [00:01:12] Speaker 03: Third, in part because the district court applied the testing correctly, it reached the wrong result and did not find prejudicial spillover. [00:01:19] Speaker 03: And I want to highlight one point on that. [00:01:22] Speaker 03: The jury heard extensive testimony from Trevor Blacon about he accepted gifts, drives more accurately. [00:01:29] Speaker 03: And then the jury heard how Mr. Bocan accepted the New York trip. [00:01:33] Speaker 03: So they see Trevor Bocan, corrupt public official, accepts the New York trip. [00:01:38] Speaker 03: Then they hear testimony that Mr. Verruccio also accepted the New York trip. [00:01:45] Speaker 03: The concern here is the prejudice is that the jury had Trevor Bocan's corrupt activity that, again, had nothing to do with Mr. Verruccio. [00:01:53] Speaker 03: There was no testimony that he knew about the criminal enterprise between Bocan and Boulanger. [00:01:58] Speaker 03: all the testimony was directed at the New York trip. [00:02:02] Speaker 03: Under the spillover standard, this court has to be certain that that inadmissible evidence, the Pecan-Boulanger criminal enterprise testimony, among other things, did not influence the jury's consideration of Count 3. [00:02:16] Speaker 03: If the court doesn't have that certainty, then count three cannot stand. [00:02:20] Speaker 01: So can I ask a question? [00:02:21] Speaker 01: There's a lot of layers that one can go through in this case, but on the applicability of the spillover standard? [00:02:27] Speaker 01: Yes, Your Honor. [00:02:27] Speaker 01: So the spillover standard typically has come up, as I understand it, on direct appeal. [00:02:32] Speaker 03: That would be, yes, it is usually the appellate court overturning a conviction and then turning to spillover. [00:02:39] Speaker 03: It does rarely come up at the district court level. [00:02:41] Speaker 01: Right. [00:02:42] Speaker 01: And so, but here we're talking about something that comes later in the form of Corum Nobis. [00:02:47] Speaker 01: Yes. [00:02:47] Speaker 01: It's not immediately apparent that the same framework that one would apply in a criminal appeal should carry over without any modification into this context. [00:02:59] Speaker 03: Your Honor, I don't know what other [00:03:01] Speaker 03: how else one would look at it. [00:03:03] Speaker 03: And I would point out that the Third Circuit, just a few weeks ago, in the United States, FATA, came up on, this is a very rare circumstance, but they had a case where the district court, after McDonald, granted a Rule 29 motion, and then considered spillover, denied the spillover claim, that went up on appeal, and the Third Circuit considered it, they said we have plenary review of the spillover analysis, [00:03:28] Speaker 03: and then conducted a spillover analysis as it would in the normal course. [00:03:32] Speaker 03: What stage of the proceedings did that come up? [00:03:36] Speaker 03: So there was a trial. [00:03:38] Speaker 03: I'm not sure the timing about when McDonald happened, but the defendant had the benefit of McDonald after the trial, I believe. [00:03:46] Speaker 03: Rule 29 motion granted. [00:03:48] Speaker 03: Then he said, in light of that, I have spillover. [00:03:52] Speaker 03: But before the conviction became final. [00:03:54] Speaker 01: Yes, Your Honor, and before this is court-correct. [00:03:57] Speaker 01: Right. [00:03:58] Speaker 01: And so this just seems different because here the conviction became final because there was a direct appeal, the conviction was affirmed, and then we're on collateral review with 2255 and Coram Novus. [00:04:09] Speaker 01: And, of course, in a variety of contexts apply a different framework in the habeas slash 2255 slash Coram Novus universe than when a case is making its way up the direct appellate chain. [00:04:23] Speaker 03: Yes, Your Honor. [00:04:24] Speaker 03: Here, I mean, in all cases, the prejudicial spillover, the predicate is that the defendant has been wrongfully convicted. [00:04:31] Speaker 03: We don't get to spill over unless there's a wrongful conviction. [00:04:34] Speaker 03: And I think that makes sense why it's a pro-defendant test. [00:04:36] Speaker 03: There's been a wrong. [00:04:38] Speaker 03: There should be a way to correct the wrong. [00:04:40] Speaker 03: I guess, Minors, well, then what has he just left without a remedy, without a recourse? [00:04:45] Speaker 03: I think the spillover test fits in nicely here. [00:04:48] Speaker 01: I guess the – part of the reason I picked up on that is because, as I understood the way you started it, you were focused on who has the burden in spillover and what the nature of the showing is in spillover in a way that – in order to – Verisio's benefit here. [00:05:03] Speaker 01: Understandably, that's your charter, so you would do that. [00:05:05] Speaker 01: But it's not entirely clear that whatever favorable terrain [00:05:11] Speaker 01: would in order to a criminal defendant's favor on direct appeal would translate to a habeas slash 22325 slash Koronova's context because a lot of times under the law burdens are flipped and they go to a different party the standards heightened because we're in a situation in which [00:05:28] Speaker 01: a conviction is final. [00:05:29] Speaker 01: Understanding, as you rightly say, that we're assuming that there was a wrong committed, but still because the conviction has become final, we don't apply the same defendant favorable framework when we're past the final conviction. [00:05:41] Speaker 04: What do you say to your adversary's argument that virtually the same evidence would have been probative on count three? [00:05:53] Speaker 04: Because [00:05:54] Speaker 04: If your client had behaved unethically rather than criminally, it would be a motive for misstating or filling out the reports incorrectly. [00:06:07] Speaker 03: Your Honor, I think that's a completely different kettle of fish. [00:06:09] Speaker 03: I think the idea that the government... What do you mean? [00:06:12] Speaker 03: ...is go to the jury. [00:06:13] Speaker 03: And so on one hand, we have jury. [00:06:15] Speaker 03: He may have done something unethical. [00:06:18] Speaker 03: Legal. [00:06:18] Speaker 03: We're not saying it's not illegal. [00:06:20] Speaker 03: Unethical. [00:06:21] Speaker 04: No, wait a minute. [00:06:22] Speaker 04: This is his motive for doing something illegal. [00:06:24] Speaker 04: which is improperly filling out the form. [00:06:30] Speaker 03: Yes, Your Honor. [00:06:31] Speaker 03: What I'm saying is how the jury, how would it be different? [00:06:34] Speaker 03: The government would be limited in how it could characterize his motive. [00:06:39] Speaker 03: Post-McDonald, the jury can't say he's trying to hide a corrupt illegal act. [00:06:44] Speaker 03: Maybe they could play the unethical card. [00:06:46] Speaker 03: Yes, why not? [00:06:47] Speaker 04: I'm certain that's the way I would prosecute it. [00:06:50] Speaker 03: Right, but for our, for this standard, can we be sure that the jury was not influenced in the test? [00:06:55] Speaker 03: And the question is, is there a difference? [00:06:57] Speaker 03: Do we see a difference between describing an act as corrupt, as illegal? [00:07:02] Speaker 00: But don't you have to show counsel that it would have been an abuse of discretion for a district court judge to admit the evidence at all? [00:07:13] Speaker 00: I mean, isn't that really what you have to show? [00:07:17] Speaker 00: Not that, you know, a reasonable judge could exclude it, but that it would be an abuse of discretion for a judge to admit the evidence. [00:07:27] Speaker 03: No, Your Honor, that is not how I read the case law, and that it is a look anew at the evidence. [00:07:33] Speaker 03: As I see it, it is a prospective analysis. [00:07:36] Speaker 03: If we were to retry this case, what would it look like? [00:07:41] Speaker 04: We are de novo here. [00:07:42] Speaker 04: We don't give any deference to the district judge. [00:07:46] Speaker 03: On the spillover analysis, the Third Circuit just essentially applied... No, no, no, on the question that Judge Wilkins asked. [00:07:55] Speaker 03: Yes, your honor. [00:07:56] Speaker 03: Yes, because it is coming up in an entirely different context. [00:07:59] Speaker 03: The district court didn't have the benefit, in this case, of McDonald's. [00:08:02] Speaker 03: So we can't look at the district court and assess it against that standard. [00:08:07] Speaker 03: We're in a completely different circumstance here. [00:08:10] Speaker 03: McDonald's has redrew the line as to what is illegal and what is illegal. [00:08:15] Speaker 03: And so we can't go back and say, [00:08:18] Speaker 03: I've entered my finish and then reserve the rest. [00:08:21] Speaker 03: We can't go back and look at that and say, well, how would the judge have ruled? [00:08:27] Speaker 03: To apply the abuse of discretion, we just don't have the factors necessary to make that review of the district court's decision. [00:08:34] Speaker 03: District court didn't have the benefit of McDonald. [00:08:36] Speaker 03: It is a prospective. [00:08:38] Speaker 03: What would this retrial, what would a count three trial look like going forward? [00:08:42] Speaker 03: Do we think the defendant has a better chance to defend himself? [00:08:45] Speaker 03: We know he's been wrongfully convicted. [00:08:48] Speaker 03: If we were to give him another bite at the apple on count three, would it make a difference? [00:08:53] Speaker 03: And here, yes, in addition to the Blomkamp-Bullanger evidence, the district court in this case didn't even mention Mr. Ruscio's evidence that the trip had an official purpose. [00:09:03] Speaker 03: The court says that three witnesses said it didn't. [00:09:05] Speaker 03: That's just wrong. [00:09:06] Speaker 03: The record does not support that. [00:09:07] Speaker 03: Ehrlich, it was a business dinner. [00:09:09] Speaker 03: He wouldn't have been there if it wasn't for us. [00:09:11] Speaker 00: What remedy are you asking for? [00:09:14] Speaker 03: we want your honor to vacate or to reverse the district court's opinion find that if counts one and two fall count three there's prejudicial spillover that requires the reversal of count three and then remand for the district court to conduct the analysis [00:09:31] Speaker 03: I'm going to say should have done, but could have been done in the first instance, and I think would ease a lot of these questions. [00:09:37] Speaker 00: To conduct what analysis? [00:09:40] Speaker 00: You're saying that we should vacate the conviction on count three for a retrial, for it to be [00:09:48] Speaker 00: just set aside, I don't understand. [00:09:51] Speaker 03: It's a little bit of a unique posture because the district court assumed that there, in effect, that there was a violation without deciding so that she could get to the prejudicial spillover analysis. [00:10:02] Speaker 03: If this court says, look it, if you get to the spillover analysis, count three is going to fall. [00:10:08] Speaker 03: We would like to hear your thoughts on count one and two. [00:10:11] Speaker 03: Do count one and two remain after McDonald? [00:10:16] Speaker 03: And then how the district court resolves that claim determines whether or not the spillover test is even applicable. [00:10:23] Speaker 03: Maybe the district court says, no, it stays the same. [00:10:26] Speaker 03: I find that hard, because we are squarely in McDonald's. [00:10:29] Speaker 04: No, I'm still puzzled at your answer to Judge Wilkins' question. [00:10:32] Speaker 04: Are you arguing for a new trial? [00:10:36] Speaker 03: That would be the end result. [00:10:38] Speaker 03: Before the district court, that would be the remedy in this case. [00:10:41] Speaker 03: It would be a new trial on count three. [00:10:43] Speaker 03: Now, if you're asking, well, what would be happening with one and two, that's a little different question. [00:10:50] Speaker 03: Because then it gets into sufficiency of the evidence. [00:10:53] Speaker 03: Did the government fail to prove it such that they can't retry it? [00:10:57] Speaker 03: Or could they amend the indictment and re-plead the defective counts one and two? [00:11:03] Speaker 01: But for present purposes, what you want [00:11:05] Speaker 01: is you wanted to go to the district court for an analysis of the McDonald question. [00:11:09] Speaker 01: And then your point is, if you win on the McDonald question, then we get into questions about a new trial on any of the counts. [00:11:13] Speaker 03: Yes, your honor. [00:11:14] Speaker 03: For 10 years, we've been grinding away at this issue. [00:11:16] Speaker 03: We want our day in court on the merits to see whether or not our argument post-McDonald is correct. [00:11:22] Speaker 03: That's what we want. [00:11:24] Speaker 03: Thank you. [00:11:24] Speaker 03: Thank you, counsel. [00:11:25] Speaker 03: Hear from the government? [00:11:32] Speaker 02: Good morning, Your Honors, and may it please the Court, Andrew Lang for the United States. [00:11:36] Speaker 02: Mr. Baruzio was convicted on two gratuities counts and one false statement count because he accepted a trip to the World Series for or because of his promise to influence the text of draft legislation being considered by the House Committee for which he worked. [00:11:50] Speaker 02: And then he concealed that trip from the House Ethics Office by knowingly omitting it from his financial disclosure form. [00:11:56] Speaker 02: That conduct was criminal at the time, and it remains criminal post-McDonald. [00:12:01] Speaker 02: Influencing the text of legislation remains an official act, largely for the same reasons this court articulated in its opinion applying this court's precedent involved as undirect appeal. [00:12:11] Speaker 00: Do you think that the jury instructions that were given would be appropriate after McDonald? [00:12:16] Speaker 02: Even post-McDonald, I do. [00:12:18] Speaker 02: I think the jury instructions in this case accurately capture the post-McDonald definition of official act, which in this circuit was not [00:12:25] Speaker 02: materially different from what it is now post-McDonald nationwide. [00:12:29] Speaker 02: Valdez had already held that an official act can't include the mere release of information and there has to be a specifically defined question or matter and then a decision or action. [00:12:40] Speaker 02: Unless there are questions from the panel about the custody issue, I can move into the prejudicial spillover quorum nobis issue. [00:12:46] Speaker 02: The burden on the defendant here is extremely high. [00:12:50] Speaker 02: To satisfy the standard for a writ of error quorum nobis, he has to show not only that a more usual remedy is unavailable, but that he had valid reasons for not making an argument at an earlier stage, such as on direct appeal, there are remediable adverse consequences under Article III, and there is an error here of the most fundamental character. [00:13:07] Speaker 02: Even getting past the first factor, Veruzio cannot satisfy any of the following three. [00:13:13] Speaker 02: With respect to the second factor, Veruzio doesn't have a valid reason for not having raised the prejudicial spillover argument at any earlier stage. [00:13:22] Speaker 02: The district court was correct that he raised it for the very first time ever in his motion for reconsideration in this litigation. [00:13:28] Speaker 02: And he's required to have a reason for not having made the argument before. [00:13:31] Speaker 02: He could have made it on direct appeal when he was challenging, among other things, the sufficiency of the evidence with respect to Counts 1 and 2. [00:13:38] Speaker 02: And at that point, he could have made it. [00:13:39] Speaker 04: Is it fair to say that, well, pre-McDonald? [00:13:44] Speaker 04: Well, the spillover argument is truly relevant only if you assume that the Counts 1 and 2 go by the way because of McDonald, which I've got to disagree with. [00:13:58] Speaker 04: Isn't that correct? [00:14:01] Speaker 02: Well, I agree with you up to a point, Your Honor. [00:14:03] Speaker 02: It's true that the prejudicial spillover argument depends on arguing that the convictions on counts one and two are invalid. [00:14:10] Speaker 02: But the basis for that argument doesn't really change the prejudicial spillover argument. [00:14:15] Speaker 02: The prejudicial spillover argument is simply once counts one and two are out of the picture, [00:14:19] Speaker 02: what evidence might have spilled over as to count three. [00:14:23] Speaker 02: That doesn't depend on the basis for the challenge to counts one and two, and so there's no reason why that argument couldn't have been made on direct appeal or even earlier. [00:14:31] Speaker 02: But even if he can get past that and show that there are valid reasons why this is the first time he's making the spillover argument, the spillover argument has a threshold problem and a merits problem. [00:14:42] Speaker 02: The threshold problem, as Judge Svernovason alluded to, is that it's not clear that quorum nobis is ever available as a remedy when the usual remedy is a new trial. [00:14:52] Speaker 02: And at least the Third Circuit installment has made that clear. [00:14:56] Speaker 02: When the usual remedy is a new trial, quorum nobis is simply off the table. [00:15:01] Speaker 02: But even if that weren't the case. [00:15:03] Speaker 00: Is there any case that you're aware of where a new trial has been granted? [00:15:09] Speaker 02: not that the government is aware of, Your Honor. [00:15:15] Speaker 02: And again, there is some law, at least in the Third Circuit, which relies on a relatively old Supreme Court case, that it's just categorically not available for these kinds of circumstances. [00:15:24] Speaker 02: That said, this prejudicial spillover argument, even if we arrive at the merits, fails on the merits. [00:15:30] Speaker 02: The prejudicial spillover inquiry essentially has two components. [00:15:34] Speaker 02: Whether there was spillover, which is to say whether there was evidence admitted with respect to counts one and two that wouldn't have been admitted in a trial of count three by itself. [00:15:42] Speaker 02: And then whether that spillover evidence caused prejudice, which entails consideration of whether the evidence was particularly inflammatory, such that it would have incited the jury, whether the jury was properly instructed, and of course whether the government's case was otherwise particularly strong. [00:15:58] Speaker 02: Because the stronger the government's case with respect to Count 3, the less likely it is that spillover evidence could have caused prejudice. [00:16:05] Speaker 02: All of those considerations weigh heavily in favor of the government here. [00:16:09] Speaker 02: First of all, it's not clear that there would have been any spillover evidence in this case because most, if not all, of the evidence introduced with respect to Counts 1 and 2 would still have been admissible in a trial of Count 3 by itself. [00:16:22] Speaker 02: The evidence of the trip itself, the value of the trip, that all tended to show what it was that Veruzio omitted from his financial disclosure form. [00:16:29] Speaker 00: How are we supposed to [00:16:31] Speaker 00: Analyze that we supposed to analyze that as if we were sitting as district court judges We supposed to analyze that under some sort of [00:16:41] Speaker 00: abuse of discretion standard, or how are we supposed to do that? [00:16:45] Speaker 02: Well, again, even assuming we can get to the merits, the standard here is the Corum Nobis standard. [00:16:51] Speaker 02: It's a very demanding standard for the defendant, and essentially we have to conclude that the error, if there was one, was of the most fundamental character, that it cries out for reversal or expungement of the convictions. [00:17:04] Speaker 02: This is not, of course, the same standard we would be applying on direct appeal or if we were admitting evidence in the first instance. [00:17:10] Speaker 01: I don't understand that because I think you bought into the, well, I'm not saying it's necessarily right, but the government buys into the four-part test that's been applied by other courts for Coram Novus. [00:17:19] Speaker 01: That's right, Your Honor. [00:17:21] Speaker 01: Okay, so as I understand it, the district court focuses its analysis on the third prong, and the district court says, in assessing whether adverse consequences exist from the conviction, I have to figure out whether there's any adverse consequences that are unique to count three. [00:17:37] Speaker 01: because if there aren't, then prong three can't be satisfied, right? [00:17:41] Speaker 01: Yes. [00:17:41] Speaker 01: So then if we're just looking at it that way, then we're not talking about the fact that quorum nobis requires a fundamental error and things of that nature because we're only, the prejudicial spillover inquiry comes about within the context of prong three of the analysis. [00:17:58] Speaker 01: So it doesn't, I mean, I get your point that, you know, if you step back a few layers, then [00:18:05] Speaker 01: We take into account the context of Coram Novus, and Coram Novus is extraordinary relief. [00:18:09] Speaker 01: But the way the case has been teed up for us, it comes up in a context in which the district court trained its analysis on prong three of the test that you accept. [00:18:19] Speaker 01: And on prong three of that test just asked us whether there's something different about count three than counts one and two such that there would be collateral consequences remaining that weren't already accounted for by counts one and two. [00:18:35] Speaker 02: Yes, I take your point, Your Honor. [00:18:38] Speaker 02: I think, if I could attempt to rephrase where we are a little bit, the reason that the prejudicial spillover argument is relevant is because that's the only basis, according to the district court, through which Veruzio is challenging his conviction on Count 3. [00:18:52] Speaker 02: And at Corum Nobis, Corum Nobis would reverse or expunge the Count III conviction. [00:18:58] Speaker 02: So to the extent that he's raising a Corum Nobis challenge to his conviction on Count III, his reason for challenging his conviction on Count III has to meet the standard for Corum Nobis relief. [00:19:09] Speaker 02: So that's the basis for our perspective that the elevated Corum Nobis standard really does apply to this argument, top to bottom. [00:19:16] Speaker 04: Do you finally take the position that if the argument is for a new trial, it's out of [00:19:22] Speaker 04: ambit of Corum Novus? [00:19:24] Speaker 02: Yes, Your Honor. [00:19:25] Speaker 04: Corum Novus is a writ that's appropriate only in a situation where the grant relief would be to vacate the conviction. [00:19:37] Speaker 02: That's right, Your Honor. [00:19:38] Speaker 02: That appears to be where the cases come down. [00:19:40] Speaker 02: As I've mentioned to Judge Wilkins's question, I'm not aware of cases granting a writ of error quorum nobis in this or any other new trial context. [00:19:48] Speaker 02: So yes, that is our position. [00:19:49] Speaker 01: But why wouldn't it just be that the convictions vacated and then there's a new trial? [00:19:53] Speaker 01: I don't understand the difference. [00:19:55] Speaker 02: Well, the remedy for quorum nobis is essentially the expungement of the conviction. [00:20:00] Speaker 02: I'm not aware of case law holding that quorum nobis can create a new trial, particularly this long after the judgment has become final. [00:20:08] Speaker 01: Why would it be? [00:20:08] Speaker 01: Because if you vacate the conviction, why isn't it just like what happens in a 2255 case or something, that the conviction gets vacated and then there's a question about whether it could be a retrial, which is based on some other considerations. [00:20:23] Speaker 02: Well, the Stoneman analysis essentially holds that the quorum nobis is of a limited scope and all it's for is erasing a conviction and not a case where a new trial would be an appropriate remedy. [00:20:38] Speaker 02: As the First Circuit put it, I think, in George, which we cite on page 27 of our brief, quorum nobis is at the far end of the spectrum of post-conviction remedies in terms of the importance of finality and the difficulty of a defendant or a petitioner getting relief. [00:20:52] Speaker 02: And like I said, Your Honor, I'm simply not aware of cases where a new trial has resulted after a grant for writ of error quorum nobis. [00:21:00] Speaker 02: I also briefly in my time remaining want to touch on the prejudice part of the prejudicial spillover inquiry, because there again, the argument simply fails on the merits, regardless of the standard that this court applies. [00:21:12] Speaker 02: First of all, Veruzio hasn't identified particularly inflammatory evidence that spilled over from counts one and two to count three. [00:21:19] Speaker 02: Second of all, it's relevant that the jury was properly instructed. [00:21:23] Speaker 02: That may not be dispositive, but it is a relevant consideration, and there's no reason in this case to depart from the usual presumption that juries follow their instructions. [00:21:31] Speaker 02: Finally, if I could just make one final point. [00:21:34] Speaker 02: As the district court put it here, in fact, the government's case with respect to Count 3 was exceedingly strong. [00:21:41] Speaker 02: It included, of course, Veruzio's own admissions that he knew he should have disclosed the trip, but didn't. [00:21:46] Speaker 02: He knew the trip wouldn't have passed the scrutiny of the ethics office. [00:21:49] Speaker 02: He knew that in order to have disclosed the trip, he would have had to have mischaracterized it to the Ethics Office. [00:21:55] Speaker 02: That evidence was powerfully inculpatory and it was compounded by the schedule itself, which reflected the omission from the Ethics Office, the testimony of an Ethics Office attorney who tried and failed multiple times to get Veruzio to remedy a discrepancy in the disclosure form, and of course the testimony of the other participants in the trip. [00:22:12] Speaker 02: The two lobbyists, their contact at United Rentals, and the Senate staffer, who also participated, who added testimony that they understood that the trip was not official. [00:22:23] Speaker 02: Perhaps it was business from United Rentals' perspective, but it wasn't an official trip in terms of Congress's business, and they understood that it should have been reported. [00:22:32] Speaker 02: So for all of these reasons, regardless of the standard this court applies, the prejudicial spillover argument fails. [00:22:37] Speaker 02: Veruzio certainly is not in custody. [00:22:39] Speaker 02: We thank you for your consideration and urge the court to affirm. [00:22:42] Speaker 01: Thank you, counsel. [00:22:45] Speaker 01: Mr. Sobiecki will give you the two minutes you asked for. [00:22:48] Speaker 03: Thank you. [00:22:50] Speaker 03: May it please the court to your question on the jury instructions? [00:22:53] Speaker 03: Jefferson, Silver, I don't have them side by side, but I sure looks like they reversed jury instructions that were identical to the ones in this case. [00:23:01] Speaker 03: So if that question was before the court, I think the answer would be affirmative. [00:23:05] Speaker 03: To the question why not a retrial, I just keep hearing, well, because we don't do it, but I haven't heard any reason why. [00:23:11] Speaker 03: I mean, from a, because it hasn't happened, let's see why. [00:23:13] Speaker 03: Because most defendants probably aren't, they've served their sentence, so they're unwilling to take the risk. [00:23:19] Speaker 03: There is a risk that if you go to a retrial, you can get a greater sentence, so maybe they just pack it in a call of the day. [00:23:25] Speaker 03: The collateral consequences here are real to Mr. Ruscio. [00:23:29] Speaker 03: Every day they impact his life. [00:23:31] Speaker 03: So yes, he wants some remedy to relieve himself from the burden of those circumstances. [00:23:36] Speaker 03: I've not heard any explanation why I can't get a retrial on Coram Nobis. [00:23:40] Speaker 03: Habeas is sort of the analog for Coram Nobis. [00:23:44] Speaker 03: Judge Shavash, as you pointed out, you can get a retrial on Habeas. [00:23:47] Speaker 03: No reason why you shouldn't be able to get. [00:23:49] Speaker 03: of retrial quorum nobis. [00:23:51] Speaker 03: There is one official act here. [00:23:53] Speaker 03: Let's go back. [00:23:53] Speaker 03: Let's be clear about that. [00:23:54] Speaker 03: One official act. [00:23:55] Speaker 03: The act is that Mr. Verruccio agreed to provide advice and strategy regarding these United Rentals. [00:24:02] Speaker 03: That comes solely from Trevor Bacan. [00:24:04] Speaker 03: The government has one witness and one act. [00:24:06] Speaker 03: This case doesn't survive McDonald. [00:24:08] Speaker 03: There is absolutely no way, looking back, that advice and strategy would still survive. [00:24:15] Speaker 03: Quickly, Mr. Verruccio's statements [00:24:18] Speaker 03: I understand they're not good, but they overlook the distinction we're drawing between reportable travel and reportable gifts. [00:24:24] Speaker 03: There's no evidence that the FBI agent, he didn't give him the form, he didn't say, remember that trip five years ago, let's reorient ourselves. [00:24:33] Speaker 03: So to the extent Mr. Russo discussed whether it would have to be disclosed, there's no evidence that was [00:24:38] Speaker 03: Inconsistent with his position now is that there is an important distinction, schedule six, schedule seven. [00:24:45] Speaker 03: I want to highlight the instructions of the defense exhibit 149. [00:24:48] Speaker 03: That was extremely consequential for us not to get those instructions. [00:24:53] Speaker 03: They are the instructions that said, just because it's not a CODEL, an official congressional trip, doesn't mean it's not reportable travel. [00:25:01] Speaker 03: This was Marrucio's job. [00:25:03] Speaker 03: His job was to meet with lobbyists. [00:25:05] Speaker 03: His job was to go to dinner. [00:25:06] Speaker 03: His job was to make them feel important. [00:25:08] Speaker 03: hear their ideas, because all of the things he was doing was squarely within his job responsibility. [00:25:14] Speaker 03: This was reportable travel. [00:25:16] Speaker 03: The absence of being able to use those instructions to schedule seven, which this court has already found was error, was significant. [00:25:22] Speaker 03: The district court didn't address that evidence, which it should have. [00:25:26] Speaker 03: Thank you. [00:25:26] Speaker 03: We ask this court to reverse and remain. [00:25:28] Speaker 01: Thank you, counsel. [00:25:29] Speaker 01: Thank you, counsel. [00:25:30] Speaker 01: Mr. Sobiecki, you are appointed by the court to represent the Appellant List Matter, and the court thanks you for your assistance. [00:25:35] Speaker 01: Thank you. [00:25:36] Speaker 04: The case is submitted. [00:25:37] Speaker 04: Stand, please.