[00:00:17] Speaker 06: May it please the court, Jakob Roth on behalf of the appellant Shenzhen New World One. [00:00:21] Speaker 06: I'm hoping to reserve about four minutes for about one to the clock. [00:00:25] Speaker 06: Your Honours, the cross-cutting legal problem with the charges in this case is that the government's theory of the case is simply not a theory of bribery under federal law. [00:00:36] Speaker 06: In the Snyder decision from the Supreme Court last month, Justice Jackson defined a bribe [00:00:43] Speaker 06: She said, for a payment to constitute a bribe, there must be an upfront agreement to exchange the payment for taking an official action. [00:00:51] Speaker 06: Now compare that to how the government itself described its case here. [00:00:56] Speaker 06: Their theme, repeated over and over, was that the chairman's approach was to give, give, give, until one day he has a big ask. [00:01:06] Speaker 06: They repeated over and over that these gifts that he was giving were a gamble or an investment in a relationship with the councilman that were intended to prime him and pave the way for a request that might follow in the future. [00:01:24] Speaker 06: Now, that may violate state and local gift laws. [00:01:27] Speaker 06: It probably does. [00:01:28] Speaker 06: It may violate state and local ethics laws. [00:01:31] Speaker 06: But it simply is not bribery under federal law. [00:01:35] Speaker 04: So as I see it, most circuit courts disagree with you because there's a distinction that they draw between the intent, the necessary intent of a bribe taker versus a bribe giver. [00:01:49] Speaker 04: And so Snyder was a case about a public official taking a bribe, right? [00:01:53] Speaker 04: And so in that sense, there is a requirement that there be some kind of an agreement. [00:02:00] Speaker 04: But these other circuit courts, the DC Circuit, the Fourth Circuit, others, they have a different view, don't they? [00:02:07] Speaker 06: I don't think so, Your Honor, and I don't disagree with the way any of those courts have described it either. [00:02:11] Speaker 06: I think what's important is the giver needs to have the intent to enter into an agreement, an exchange, a quid pro quo. [00:02:19] Speaker 06: It doesn't have to be accepted. [00:02:21] Speaker 06: So that's the point all these cases make and the government focuses on. [00:02:24] Speaker 06: It doesn't have to be an accepted agreement. [00:02:26] Speaker 04: So the giver has to have an act of offering or giving something of monetary, something of value, and that intent for a quid pro quo. [00:02:37] Speaker 04: That's right. [00:02:38] Speaker 04: But there doesn't need to be an agreement. [00:02:40] Speaker 00: That's right. [00:02:41] Speaker 04: And the public official, the taker, doesn't need to actually have acted on it. [00:02:46] Speaker 04: That's right. [00:02:47] Speaker 04: It's completed the moment something's given and there's that intent. [00:02:50] Speaker 06: It's complete at the moment of the giving so long as the giving is intended to effectuate the quid pro quo. [00:02:58] Speaker 06: Why doesn't the evidence here add up to that? [00:03:00] Speaker 06: Because, Your Honor, again, I think the easiest way to see it is to look at the way the government described the case. [00:03:06] Speaker 06: Their theory was he's giving, giving, giving, and in the future he's going to make a request. [00:03:12] Speaker 06: That's very different from I'm giving and I expect in exchange that you will give me what I want and we're going to enter an agreement on that upfront. [00:03:23] Speaker 06: That really wasn't their theory. [00:03:24] Speaker 06: So the key distinction here, as I see it, the key dichotomy, [00:03:28] Speaker 06: between a gift on the one hand, goodwill gift on the one hand, and a bribe on the other, is are we talking about, this is what, I'll just use Professor Al Schuller's description of the distinction, I think it's the best treatment of this issue in the Law Review article that we cite here. [00:03:43] Speaker 06: distinguishes an actual or contemplated exchange of something of value for favorable governmental action, that's a bribe, versus a unilateral act intended to make favorable governmental action more likely. [00:03:56] Speaker 06: And the latter is a goodwill gift. [00:03:58] Speaker 06: And I think what the government was arguing here and what the government proved here was a classic goodwill gift, not a bribe. [00:04:05] Speaker 03: Well, it was just, you know, it was amazing to me when I read the briefs and some of the record [00:04:13] Speaker 03: It wasn't just one visit, one little opportunity. [00:04:16] Speaker 03: It was multiple, many. [00:04:18] Speaker 03: That's right. [00:04:20] Speaker 03: It went on for years. [00:04:21] Speaker 03: And I think what's interesting is and what's telling. [00:04:23] Speaker 03: I mean, why isn't that enough for the jury to say he was doing that with the intent that he was getting ready for the big ask? [00:04:30] Speaker 03: He's intending. [00:04:31] Speaker 03: He did all that with the intent to. [00:04:35] Speaker 06: He may have been giving it with the intent to make a big ask later, but that's different from giving it with the intent of effectuating an exchange now. [00:04:43] Speaker 06: As Judge Sanchez says, the bribe is either a bribe or not at the moment it's given. [00:04:47] Speaker 06: It doesn't retroactively become a bribe when three years later you say, I would really appreciate if you could support this project. [00:04:54] Speaker 01: I think you have to look at the intent when he made the gift. [00:04:57] Speaker 06: Correct. [00:04:58] Speaker 01: And he always intended to ask for the tower to be built sky high. [00:05:04] Speaker 06: You could make that inference, Your Honor, but that is not enough for purposes of bribery. [00:05:09] Speaker 06: That intent is not enough. [00:05:11] Speaker 04: Why not? [00:05:12] Speaker 04: You're ascribing some sort of temporal element to the intent. [00:05:16] Speaker 04: If I'm giving a gift, but I'm intending for there to be a quid pro quo for an official act five years later, why isn't that a bribe? [00:05:26] Speaker 06: Because the parties need to agree at the time or at least that the intent needs to be to agree at the time that there will be an exchange because otherwise you're completely blurring the distinction. [00:05:36] Speaker 04: I thought we were clear. [00:05:38] Speaker 04: It's just the act of giving plus an intent. [00:05:41] Speaker 04: There doesn't need to be an agreement. [00:05:43] Speaker 04: Right. [00:05:43] Speaker 04: So if I'm the bribe giver and I give something over, but my specific intent is that I get an official act in return five years down the line, why isn't that a completed act of bribery? [00:05:56] Speaker 06: It's a little more nuanced than that, Your Honor. [00:05:58] Speaker 06: I think it depends. [00:05:59] Speaker 06: And again, going back to the way the professor described it, is this a unilateral act that is intended to make it more likely that I will get a good answer later when I make an ask? [00:06:09] Speaker 06: That's a goodwill gift, maybe illegal, not under these statutes. [00:06:13] Speaker 06: Or am I giving it now, intending to affect an exchange? [00:06:19] Speaker 04: How much time needs to pass then? [00:06:23] Speaker 04: Does it have to be a month from now when I want the official act in return? [00:06:27] Speaker 06: I don't think the timing is necessarily critical, but I do think the timing is sort of interesting here, because the government admits in its brief, they say, oh, the chairman didn't even reveal what he wanted until years into this pattern of giving. [00:06:41] Speaker 06: So he's taking them out month after month. [00:06:44] Speaker 06: They're going to Las Vegas. [00:06:45] Speaker 06: They're having a good time. [00:06:47] Speaker 06: And that starts in 2013. [00:06:49] Speaker 06: It's not till 2016. [00:06:51] Speaker 06: that this issue of the redevelopment is posed to the councilman. [00:06:56] Speaker 06: And in the interim is when, you know, Esparza, who was the government's key witness, Esparza's asked on the stand, well, he says on the stand, he asked the chairman's aide, why are you doing this? [00:07:08] Speaker 06: Why is the chairman giving us all these trips? [00:07:11] Speaker 06: And that's when he's told, well, the chairman's approach is give, give, give, [00:07:15] Speaker 06: and then make a big ask. [00:07:17] Speaker 06: That just isn't a bribe under federal law, Your Honor. [00:07:20] Speaker 04: What about Esparza's testimony that when the big ask was made and they had, I guess, a cigarette break or something, that Huizar said, I'll be 100% behind it. [00:07:33] Speaker 04: I'll change zoning laws. [00:07:34] Speaker 04: I'll move it through the Plum Committee. [00:07:36] Speaker 04: Why isn't that evidence all along that Shenzhen had the specific intent to have that asked? [00:07:46] Speaker 04: That seems to be the key evidence on the government side. [00:07:49] Speaker 06: Your Honor, I don't know how that would distinguish any sort of typical lobbying scenario where the lobbyist may be taking the official out to dinner for golf for a matter of years and years, and then he says, oh, this bill is in front of you. [00:08:04] Speaker 06: Can I make a pitch? [00:08:04] Speaker 06: I'd like you to support the bill. [00:08:06] Speaker 06: The legislator says, yeah, I'm with you. [00:08:08] Speaker 06: It doesn't retroactively mean everything he did until then was a bribe. [00:08:12] Speaker 06: It needs to have been clear at the outset that you're effectuating an exchange. [00:08:18] Speaker 06: And I think one sort of telling contrast, if you look back at the original indictment, which included all the other Huizar schemes before there was a severance, it's really sort of incredible [00:08:34] Speaker 06: how much of a contrast there is. [00:08:36] Speaker 06: If you look at pages 3063 and 3064, for example, of the excerpts of record, [00:08:42] Speaker 06: There's allegations there that Esparza was telling aides to other developers, look, Weezer's not going to help you for free. [00:08:49] Speaker 06: Here's what you need to do. [00:08:50] Speaker 06: They haggle over the price. [00:08:52] Speaker 06: And that is a classic bribe. [00:08:54] Speaker 06: What we have here is not that, notwithstanding the fact that we had wiretaps, we had cooperating witnesses on both sides of the relationship, we have meticulous notes from Esparza that revealed these other bribes, nothing like that in this case. [00:09:10] Speaker 03: Is his name Shen? [00:09:12] Speaker 03: So all that was happening here was just lobbying? [00:09:20] Speaker 03: That's sort of getting to know you kind of thing? [00:09:23] Speaker 03: Let's be honest. [00:09:25] Speaker 03: He didn't pick him out of the blue. [00:09:28] Speaker 03: The trips to Las Vegas, I mean, were just a little bit much. [00:09:35] Speaker 06: Your Honor, I certainly will agree that the scale is different from an ordinary lobbying relationship. [00:09:44] Speaker 06: It's quite a way of just characterizing lobbying. [00:09:47] Speaker 06: But Your Honor, we're also dealing with a billionaire. [00:09:49] Speaker 06: So you've got to sort of, relatively speaking, it's not that much of a difference. [00:09:53] Speaker 06: I think what the record allows an inference of here is [00:09:57] Speaker 06: Chairman was introduced to this person. [00:09:58] Speaker 06: He knew he was an important person for real estate. [00:10:01] Speaker 06: The chairman is buying real estate in the city. [00:10:02] Speaker 06: This is a good person to have on your side to get close to and he spends the next three years getting close to him in the way that he does. [00:10:10] Speaker 06: And then he makes a request. [00:10:13] Speaker 06: If that's enough. [00:10:14] Speaker 06: to draw the inference, then I think you are allowing that same sort of inference to be drawn in a more typical lobbying scenario, which is problematic. [00:10:23] Speaker 06: But look, if I haven't convinced Your Honors on the sufficiency point, I hope that at least this discussion has exposed that the line can be very blurry here between the gifts and the bribes. [00:10:36] Speaker 06: And that's why, in a case that presents this type of fact pattern, it's so critical to have a jury instruction that specifically talks about and gives some definition to this dichotomy. [00:10:49] Speaker 06: And I refer the court to the First Circuit's decision in Sawyer, which was a lobbying case, and the court vacated the convictions and said, where the difference between lawful and unlawful turns primarily on intent, [00:11:01] Speaker 06: And the lawful conduct is itself most unattractive. [00:11:04] Speaker 06: We think the jury needs to be told specifically that the defendant has not violated the bribery component of the Travel Act or committed honest services fraud if his intent was limited to the cultivation of business or political friendship. [00:11:15] Speaker 06: That's the goodwill gift instruction. [00:11:17] Speaker 06: We asked for a goodwill gift instruction. [00:11:20] Speaker 06: In this case, it was the proposal number 35, which would have explained that you do need to have the intent to enter an agreement. [00:11:30] Speaker 06: And ingratiation and access and sort of generalized influence is not enough. [00:11:37] Speaker 06: The district court refused to give this instruction and the district court didn't give any other instruction on goodwill gifts. [00:11:43] Speaker 06: Now, again, I'm not saying you always need this instruction in every bribery case, but when the gifts themselves are undisputed, and the only question in the case, really, is about the intent between the gift and the bribe, and it is a blurry line, it's really important to have this sort of clarification. [00:12:00] Speaker 06: Now, the government says our instruction was full of errors. [00:12:02] Speaker 06: It's not. [00:12:03] Speaker 06: I urge the court to look at it in context. [00:12:05] Speaker 06: It's at ER 171 to 172. [00:12:09] Speaker 06: There is one sentence in this instruction that I will concede is debatable. [00:12:13] Speaker 06: There's a circuit split over the point. [00:12:15] Speaker 06: It's the sentence at the bottom of 171 that says the exchange must be clear and unambiguous. [00:12:20] Speaker 06: That is along the Second Circuit. [00:12:22] Speaker 06: They decided that this year in the Benjamin case. [00:12:25] Speaker 06: Some courts limit it to campaign contribution cases, so fine. [00:12:28] Speaker 06: But I'm not arguing about that sentence. [00:12:31] Speaker 06: Everything else in this instruction is legally correct. [00:12:34] Speaker 04: Well, you were asking for an instruction that in exchange for Weiser's agreement to take one or more specified official acts, and that's inconsistent with McDonald's. [00:12:47] Speaker 06: No, but this is why it's important to look at it, I think, in context. [00:12:51] Speaker 06: It says, the government must prove beyond a reasonable doubt that the defendant specifically intended [00:12:55] Speaker 06: that any financial benefit that it may have provided to Councilman Huizar was in exchange for his agreement to take one or more of the specified official acts. [00:13:03] Speaker 04: But McDonald doesn't say that. [00:13:05] Speaker 04: Under McDonald, McDonald talks that the means that the bribe taker will use doesn't have to be specified in that agreement. [00:13:16] Speaker 06: the means, oh, I see, if you're asking about the specified official acts part. [00:13:20] Speaker 04: I think that's erroneous, just from my reading of McDonald's. [00:13:23] Speaker 06: All I'll say about that is, the specified official acts, that's supposed to be representing the government's theory, because they identified a list of acts that were on the verdict sheet. [00:13:32] Speaker 06: So this is a reference to the acts that they said this is about you were buying those acts. [00:13:37] Speaker 06: So this is not a legal, this is a sum up paragraph at the end of the instruction, it's not the legal point, it's the application to this case, and I think it's, [00:13:44] Speaker 06: consistent with their theory. [00:13:47] Speaker 03: Could you talk a little bit about the Travel Act and how that interacts with California? [00:13:58] Speaker 06: I'd really love to talk about the evidentiary errors because the Travel Act issue is limited to a few counts. [00:14:03] Speaker 06: and the evidentiary errors cut across all the counts. [00:14:06] Speaker 03: Well, if you want to just overlook the Travel Act, that's fine. [00:14:09] Speaker 03: I don't want to overlook. [00:14:10] Speaker 03: I just want to get the most mileage for my time. [00:14:12] Speaker 03: I mean, it's your call. [00:14:14] Speaker 03: I just was curious. [00:14:17] Speaker 06: I'll try to come back to the Travel Act. [00:14:18] Speaker 03: I want to hit the evidentiary. [00:14:19] Speaker 03: All right, that's fine. [00:14:20] Speaker 06: Thank you, Your Honor. [00:14:20] Speaker 06: I appreciate the indulgence. [00:14:24] Speaker 06: For the reason we've discussed, we don't think the evidence was sufficient to cross the line. [00:14:27] Speaker 06: We think the jury didn't have proper instruction on where that line was. [00:14:30] Speaker 06: But even if you don't agree with that, I think all this discussion underscores how important it is to get the evidence right on the question of intent. [00:14:40] Speaker 06: And here, there was both an error in what came in and an error in what was kept out that I think tainted the jury's determination on intent. [00:14:49] Speaker 06: With respect to what came in, if what we're talking about is the chairman's intent, which as Judge Sanchez has been pointing out, is the government's real theme, then why is the jury being told about other schemes, distinct schemes, that Huizar engaged in? [00:15:05] Speaker 06: It's two steps removed from any legitimate inference of culpability. [00:15:10] Speaker 06: If this had been a case against Huizar, he would have a 404b argument about that. [00:15:14] Speaker 06: But as to us, it's that plus guilt by association. [00:15:17] Speaker 03: We have case law that says that the district court can let in evidence that sort of sets the table or provides background and context. [00:15:27] Speaker 03: I mean, you know, you want to give the jury some understanding of how this thing is unfolding. [00:15:33] Speaker 06: Yeah, but Your Honor, again, if we're charging... That's what the case law says. [00:15:37] Speaker 06: The case law says if it's inextricably intertwined, you need to get it in in order to tell a proper story, you can get it in. [00:15:42] Speaker 06: I don't know why that was true here, because the focus is on the chairman and the chairman's agents and what they did. [00:15:49] Speaker 06: There's no evidence they had any knowledge of anything that was happening distinct from this in the Huizar office, and yet the way the government leads off its star witness is to talk about [00:16:00] Speaker 06: They had a modus operandi of pay to play, taking bribes, concealing it, all this stuff before they even get to what happened in this case. [00:16:09] Speaker 06: And so, of course, the jury then comes away from that with the understanding that, all right, well, he's done it with everyone else, so the ordinary inference is probably the same thing was happening here. [00:16:19] Speaker 04: But the district court struck a balance by not including any evidence of other corrupt developers. [00:16:26] Speaker 04: That's right. [00:16:27] Speaker 04: So it set the table and gave a general sense of how Heeser operates without getting into that other stuff. [00:16:34] Speaker 04: Why is that an abuse of discretion? [00:16:36] Speaker 06: I don't think it fixes the prejudice, because it's still, you don't have the details of the other spokes, if you think of this as the rimless wheel. [00:16:43] Speaker 06: You don't have all the details about the other spokes. [00:16:45] Speaker 06: But the jury's being told there is this wheel. [00:16:47] Speaker 06: And there are other spokes, and now we're going to talk about this one. [00:16:51] Speaker 06: So I think you've still come out of that. [00:16:52] Speaker 06: If you know the specifics or not, you've come away from that with the starting premise of this is their way of doing business, and if everyone else did it, probably he did it too, which is the whole point of 404b is that you're not supposed to have that inference. [00:17:09] Speaker 06: And then last point, because it's very important on the evidence, I think this was [00:17:15] Speaker 06: exacerbated by the exclusion of the one piece of evidence that really did go directly to the chairman's intent in giving the gifts, which is when Ricky Zhang and other aides expressed concerns to him, you know, is this a good idea? [00:17:30] Speaker 06: Should we be taking this public official to Las Vegas all the time like this? [00:17:33] Speaker 06: And he brushed it off and said, what's the problem? [00:17:36] Speaker 06: I'm not worried. [00:17:37] Speaker 06: We're just having a good time. [00:17:39] Speaker 06: That's excluded. [00:17:40] Speaker 06: That is direct evidence of what he was thinking at the time. [00:17:42] Speaker 06: The district court thought it was hearsay. [00:17:44] Speaker 06: It's not hearsay because it's not being admitted for its truth. [00:17:46] Speaker 06: It doesn't matter if they were having a good time or not having a good time. [00:17:49] Speaker 06: The point was he didn't think he was doing anything wrong. [00:17:52] Speaker 06: It goes to intent. [00:17:53] Speaker 06: And under this court's decision in Wagner, that's not inadmissible hearsay. [00:17:59] Speaker 03: So I think those two evidentiary issues warrant reversal. [00:18:03] Speaker 06: Yes, I think those two particularly combined warrant a new trial at minimum on this issue because they taint the jury's decision making on whether the necessary intent was there to take this across the line from the goodwill gift to the bribe. [00:18:17] Speaker 06: And I have two minutes left, so I'll try to reserve. [00:18:20] Speaker 05: All right. [00:18:20] Speaker 06: Thank you, Your Honors. [00:18:44] Speaker 00: Good morning, Your Honors, and may it please the court, Susan Haar on behalf of the United States. [00:18:49] Speaker 00: This court should affirm the jury's convictions because all three substantive counts in this case required the jury to find a specific quid pro quo above and beyond what the law requires. [00:19:02] Speaker 00: And the jury rationally found that the defendant provided these benefits to Jose Huizar, intending at the time to influence him or [00:19:11] Speaker 00: in exchange for the official acts on a specific focus and concrete matter, which was the redevelopment of the L.A. [00:19:18] Speaker 00: Grand Hotel. [00:19:19] Speaker 04: Ms. [00:19:19] Speaker 04: Hart, can I ask? [00:19:20] Speaker 04: Council posits that if the intent for an official act is maybe some distance in the future, it starts to seem more like lobbying and on the other side of what's more permissible. [00:19:33] Speaker 04: Can you address that point? [00:19:35] Speaker 00: Yes, there is a very clear line between what is ingratiation and what is [00:19:41] Speaker 00: quid pro quo bribery intent. [00:19:43] Speaker 00: That line is that when you are dealing with ingratiation or lobbying, there is no specific object in the provider's mind for the purpose of those gifts. [00:19:53] Speaker 00: It is just for building a reservoir of goodwill. [00:19:57] Speaker 00: The language that Sun Diamond uses is that it's for [00:20:03] Speaker 00: It is for generalized goodwill. [00:20:09] Speaker 00: It's for the mere tenure of the office. [00:20:12] Speaker 00: It is just for the status of that person as a public official. [00:20:16] Speaker 00: Once you have a specific object, as we did in this case, official acts for a specific matter, that is a specific quid pro quo intent. [00:20:24] Speaker 03: When did that happen here? [00:20:26] Speaker 00: The evidence in this case showed that that intent was formed from day one. [00:20:30] Speaker 03: So the first time that he offered a trip to Las Vegas with all the benefits of going to Las Vegas, that was intent, with intent to effectuate a quid pro quo. [00:20:44] Speaker 00: Exactly. [00:20:44] Speaker 00: And the reason why is because there was extensive evidence that this chairman had a specific plan and intent. [00:20:51] Speaker 00: to redevelop this property. [00:20:53] Speaker 01: Right, but did he know, did the evidence show he had knowledge that Huizar was amenable to taking this bribe to help him do that tower? [00:21:06] Speaker 00: I don't know that there was specific evidence that he was clued in to what Jose Huizar was doing at the time of the very first trip, but that's not the standard. [00:21:16] Speaker 01: The standard is- I understand that, but I'm just, I'm, you, [00:21:21] Speaker 01: You did admit a lot of evidence about the pay to place game within Weezer's office, and that was to show what? [00:21:32] Speaker 00: Well, I would disagree with the characterization that a lot of evidence was admitted. [00:21:36] Speaker 00: There was not... Well, as far as... [00:21:39] Speaker 01: As far as I testified extensively about the scheme, if you read his testimony, you learn about the scheme. [00:21:46] Speaker 01: So that was admitted to show what? [00:21:49] Speaker 00: He explained the scheme because that's how it worked. [00:21:51] Speaker 00: When he would do things like coordinate with Ricky Zhang for the benefits, it's because that scheme required the middlemen to work together. [00:21:59] Speaker 00: when he would say that Wei Huang was the friend of the office. [00:22:04] Speaker 00: That witness couldn't explain what does that mean, the friend of the office. [00:22:07] Speaker 00: It means that the people who pay benefits to Jose Huizar, they get access, they get their projects, they get the official acts. [00:22:15] Speaker 00: When Esparza testifies about the fact at length, [00:22:19] Speaker 00: that with this defendant, there were extensive activities to conceal the benefits that were being provided through the structuring of this $600,000 sexual harassment loan. [00:22:30] Speaker 00: What, in order to explain, what was the purpose of concealing? [00:22:33] Speaker 01: And Zhang understood that, and that knowledge is attributable to, what's his name? [00:22:40] Speaker 01: Wang. [00:22:40] Speaker 01: Wang. [00:22:41] Speaker 01: I mean, the owner, the sole owner of Shane's Inn. [00:22:45] Speaker 00: Yes, it is. [00:22:46] Speaker 00: Ricky Zhang, we specifically argued and there was evidence to support that Ricky Zhang was an agent for this defendant. [00:22:53] Speaker 00: And frankly, even aside from that, Chairman Wei Huang, he was the direct driver of that settlement agreement and the way that it was structured. [00:23:01] Speaker 00: He is the one who had the connection to Grace Luck Holdings, which was the shell company. [00:23:06] Speaker 00: He was the one who hand selected Yan Yan, which was the employee that they passed off as an agent for the shell company. [00:23:13] Speaker 00: and to get the lawyer to try and use this fake shield of attorney-client privilege. [00:23:18] Speaker 04: And there was evidence that the redevelopment project was already was conceptualized from the very beginning. [00:23:25] Speaker 00: Yes, exactly. [00:23:26] Speaker 00: And that evidence was this was the whole reason why he came to the United States. [00:23:31] Speaker 00: There was it's undisputed. [00:23:33] Speaker 00: Even the defense witnesses said the same thing. [00:23:35] Speaker 00: This guy was a career developer. [00:23:37] Speaker 00: His portfolio is skyscrapers. [00:23:39] Speaker 00: And there was testimony from Ricky Zhang that when it was time for him to he turned to him and said, [00:23:45] Speaker 00: It's time to invest in the United States. [00:23:47] Speaker 00: He handpicked this building by examining the blueprints to make sure that he could develop on it. [00:23:52] Speaker 00: And it was because he could do that that he came and purchased this property. [00:23:56] Speaker 00: And then he announced in a press release that this purchase completed the company's dream of transnational development. [00:24:03] Speaker 00: So when you have that evidence coupled with he's meeting Jose Huizar in the context of being introduced to him as this is the gatekeeper for all development in Los Angeles. [00:24:13] Speaker 00: He holds the keys to the kingdom. [00:24:14] Speaker 00: And I can't really stress that point enough. [00:24:17] Speaker 00: Jose Weezer was the single most powerful person. [00:24:20] Speaker 00: He was the chair of Plum. [00:24:21] Speaker 00: Yes, he was the chair of Plum. [00:24:23] Speaker 00: He was also the council member for District 14, which is where this property sat. [00:24:30] Speaker 00: And there was undisputed testimony, again, even through the defense's witness, Sean Cook, that every other council member is going to defer [00:24:38] Speaker 02: to the council district in which the project sits. [00:24:41] Speaker 02: Just out of curiosity, did this thing ever get built? [00:24:45] Speaker 02: It did not. [00:24:46] Speaker 02: It did not get built, Your Honor. [00:24:48] Speaker 04: Did Huizar ever have any official acts related to the renovations of the LA Grand Hotel? [00:24:58] Speaker 00: There is nothing that comes directly to mind on that point. [00:25:02] Speaker 00: I think one of the more extensive things he did that was related to the renovations [00:25:07] Speaker 00: in some part was the the parking dispute which was the chairman's attempt to get a significant space from an adjacent property and it related to the way they were trying to redo that hotel but I wouldn't classify that as an official act. [00:25:23] Speaker 03: So then let me just back up just a bit so as you said there was a [00:25:30] Speaker 03: evidence about the scheme in Weezer's office, and it was well known that the chairman wanted to build here in LA. [00:25:40] Speaker 03: And then after that, he met Weezer? [00:25:44] Speaker 02: Yes. [00:25:47] Speaker 03: Or did he meet Weezer beforehand? [00:25:50] Speaker 03: I'm sorry, I'm not sure I'm understanding the question. [00:25:55] Speaker 03: When did the chairman know that Weezer was so important? [00:25:59] Speaker 00: from before he met him. [00:26:00] Speaker 00: He was sort of introduced, he knew generally, the purpose of meeting was to introduce, here's a developer with property in your district, and here's the council member for that district who also happens to have tremendous influence through Plum and so forth. [00:26:16] Speaker 00: That was the context of that first meeting. [00:26:19] Speaker 03: So then shortly after that, I guess, I don't know how long it was, but when he invites him to go to Las Vegas, [00:26:25] Speaker 00: That was right on the heels of that initial meeting. [00:26:27] Speaker 03: OK, when he does that, he's doing that with the intent to effectuate the quid pro quo. [00:26:35] Speaker 00: Yes, the elements of bribery were met. [00:26:39] Speaker 00: He provided the benefit. [00:26:40] Speaker 00: The act is to give, provide, offer the benefit. [00:26:45] Speaker 00: He's giving the benefit. [00:26:46] Speaker 00: And he is, as the jury found, rationally intending [00:26:50] Speaker 00: to get influence for this project that the chairman has in mind that he's going to do, that he is going to do that in the future. [00:26:58] Speaker 03: So how do you relate, quote unquote, the big ask to all of this? [00:27:02] Speaker 00: So I think the big ask is sort of two part. [00:27:05] Speaker 00: One part is that this admission that the chairman gave to Ricky Zhang, that I'm doing all this, I'm give, give, giving, because I'm going to have a big ask. [00:27:15] Speaker 00: That is a direct sort of admission, and it showcases [00:27:19] Speaker 00: why he took him to Vegas. [00:27:20] Speaker 00: He has a big ask in mind. [00:27:22] Speaker 00: And based on all the other evidence, again, with the blueprint and the selection of the property and his portfolio, you know that he already knows what that big ask is going to be. [00:27:33] Speaker 00: It's going to be the redevelopment for this one person who is the most powerful person for developments in Los Angeles. [00:27:39] Speaker 04: And when was that admission, the give, give, give one? [00:27:42] Speaker 00: That is something that we don't have a specific time for when the chairman told that to Ricky Zhang. [00:27:48] Speaker 00: It was made known to Esparza shortly after the March 2015 election, after Jose Huizar kept his seat through, thanks to the- After the re-election. [00:27:57] Speaker 00: Pardon? [00:27:57] Speaker 00: After the re-election. [00:27:58] Speaker 00: Yes, after the re-election. [00:28:00] Speaker 00: And so, and I know the defense is trying to sort of characterize that as some sort of, you know, lobbying statement. [00:28:08] Speaker 00: The evidence doesn't come in a vacuum. [00:28:10] Speaker 00: It's not just this one statement that maybe on its own Divorce from everything else may seem otherwise equivocal. [00:28:17] Speaker 00: That's not how it this worked out It's in light of all of this conduct all of this knowledge that the chairman already has he's telling other employees Jose Weezer is very important. [00:28:28] Speaker 04: We need to have his support What do you think is your best evidence of corrupt intent? [00:28:33] Speaker 00: I think it's the things I've laid out with respect to the chairman's specific motive, plan, and intent to redevelop that he immediately upon meeting and learning that Jose Huizar is the one person who can make that happen, taking him to Vegas [00:28:50] Speaker 00: on the heels of that meeting, followed by all of the concealment conduct that he engaged in to mask those benefits. [00:28:58] Speaker 00: There is his direct admission, again, of this give, give, give. [00:29:01] Speaker 00: He has the ask in mind, which then, and then this kind of brings us to the actual execution of the big ask, where he makes an explicit ask for Jose Huizar for this redevelopment. [00:29:14] Speaker 00: He receives Jose Weezer's agreement. [00:29:17] Speaker 00: An agreement isn't required as Your Honor has noted or observed, but there was an agreement here because Weezer [00:29:23] Speaker 00: was thrilled to do it, and he in fact responded by telling him, and I can do the motions, I can get the zoning you need for you to build as tall as you want. [00:29:33] Speaker 00: And then moving forward, the two parties are now executing on that agreement, because the chairman continues to provide benefits, the Vegas trips, and now you have Jose Huizar taking action to set that project up for success, [00:29:49] Speaker 00: including for things like that August 4th, 2016 meeting. [00:29:54] Speaker 04: So there were benefits given both before and after the agreement. [00:29:57] Speaker 04: Correct. [00:29:58] Speaker 00: There are. [00:29:58] Speaker 00: There are. [00:29:59] Speaker 00: And the fact that the ask came later doesn't mean, it illuminates what this person already had in mind the whole time. [00:30:08] Speaker 00: And so all of that is more than sufficient to prove this corrupt intent, especially under the deferential sufficiency of the evidence standard for this case. [00:30:21] Speaker 04: What about Council's evidence-based arguments? [00:30:25] Speaker 00: I was about to ask Judge Pius if he'd like to address the Travel Act. [00:30:30] Speaker 03: Council didn't want to address the Travel Act and how it all relates. [00:30:36] Speaker 00: I thought it might. [00:30:38] Speaker 00: I will briefly address the evidentiary issues. [00:30:43] Speaker 04: I'm happy to talk about the Travel Act. [00:30:44] Speaker 04: I had some questions as well. [00:30:45] Speaker 00: Sure, okay. [00:30:46] Speaker 00: So with respect to the Travel Act, the government's position is that the categorical, excuse me, the conduct-based approach applies here. [00:30:54] Speaker 00: Perrin, Nardello, they all support that you are assessing what was the alleged act and does that satisfy [00:31:02] Speaker 00: both the generic definition of bribery as contemplated under the Travel Act, as well as does it constitute a violation of the state statute. [00:31:10] Speaker 04: So you're not saying, so this was unclear to me, the conduct-based approach is not that if someone commits the crime of bribery in California, that that's enough? [00:31:21] Speaker 00: No, it is not. [00:31:21] Speaker 00: Okay. [00:31:22] Speaker 04: You're saying conduct in relation to some sort of a generic understanding of bribery. [00:31:27] Speaker 00: Yes, the conduct still has to satisfy both. [00:31:30] Speaker 00: It's just that you don't need to do the legal analysis of comparing generic bribery to the statute and whether those are a categorical match, such that every single violation of that state statute is also generic bribery. [00:31:45] Speaker 00: But the conduct still has to satisfy both, because the Travel Act incorporates unlawful activity. [00:31:50] Speaker 03: So does it make any difference that the California statute's a little bit broader? [00:31:54] Speaker 00: It wouldn't make a difference, although I would say that the California statute is not broader because the generic definition of bribery under the Travel Act is very broad. [00:32:06] Speaker 00: I'm not aware. [00:32:07] Speaker 00: of a case where they took that definition and said, you know, this state's statute, this state's bribery statute doesn't count. [00:32:15] Speaker 00: Perrin clearly, you know, talks about what the purpose of the travel act, which was to increase enforcement, and that's why even commercial bribery is captured. [00:32:26] Speaker 00: Actually, the Biagi case, it's the Second Circuit case that the defense [00:32:32] Speaker 00: did also cite, they even go so far as to say that gratuities under 201 meet the generic definition of bribery for the Travel Act. [00:32:42] Speaker 04: So I read Taylor to be a little more narrow than what you're describing for the conduct based approach. [00:32:48] Speaker 04: Taylor says, if a jury had to find someone guilty based on those elements that would qualify for bribery under the Travel Act, that should suffice. [00:32:59] Speaker 04: So not just whether someone's conduct may have done it, but whether the jury actually made a finding as to those elements. [00:33:07] Speaker 04: Why isn't that the appropriate standard instead? [00:33:11] Speaker 00: Taylor didn't address the Travel Act as I recall. [00:33:16] Speaker 04: No, no, it didn't, but Taylor was citing to Nardello and to Perrin. [00:33:26] Speaker 04: In other words, when you're thinking about categorical approaches and, you know, in Taylor, it was about burglary, whether in general, you know, you look at a generic approach of definition of burglary, but there's a narrow exception if, you know, you can look beyond just the fact of conviction to see if the jury convicted on elements that would match the generic definition. [00:33:52] Speaker 00: Right. [00:33:52] Speaker 00: I guess what I would say about that is in Chi, there was some suggestion that the court there, which did apply a categorical approach, still looked at what had been charged and still looked at what the jury must have found, which suggests some evaluation of the jury instructions. [00:34:12] Speaker 00: And then that First Circuit case in Sawyer, they actually did that there as well. [00:34:16] Speaker 00: Because in that case, the Travel Act predicate [00:34:19] Speaker 00: was a Massachusetts gratuity statute, which normally wouldn't have an intent to influence, but the parties, for whatever reason, added it in to the jury instructions. [00:34:28] Speaker 00: And so the court there said, because the jury instructions have that added intent to influence, it was a satisfactory predicate for the Travel Act. [00:34:40] Speaker 00: And with respect to, unless there's other questions on the Travel Act, I'll address them. [00:34:44] Speaker 00: Thank you. [00:34:44] Speaker 00: Evidentiary issues. [00:34:46] Speaker 00: And with respect to the evidentiary issues, as far as the pay to play, as I've sort of alluded to earlier, it was extremely limited. [00:34:52] Speaker 00: It was provided simply to sort of frame George Esparza's testimony that then went on, consistent with other witnesses, all about this defendant, what he did, how they executed the scheme, how they made it work. [00:35:06] Speaker 00: and it was all part and parcel with just a sort of overview of how this stuff work it's no different than you know any other case where you've got a scheme based conduct to explain okay this is how this works and so and there was no specific testimony about any of these other [00:35:26] Speaker 00: schemes or developers or bribes, which is why council was referencing the indictment. [00:35:31] Speaker 00: None of that made it to the jury. [00:35:34] Speaker 04: But wasn't it a problem for the district court to exclude the testimony about how Wang responded to Zhang's statement about, isn't this a problem? [00:35:46] Speaker 04: Isn't that a mental state exception? [00:35:49] Speaker 00: No, Your Honor. [00:35:50] Speaker 00: I believe the cases are clear that that [00:35:53] Speaker 00: exception is narrow. [00:35:55] Speaker 00: If it allowed any hearsay statement by the defense explaining, I'm innocent because XYZ reason, it would obviously not serve its purpose. [00:36:06] Speaker 00: The key inquiry or the key reason why this doesn't satisfy is because the mental state of mind exception would permit perhaps some sort of testimony that Wei Huang had reacted in a way [00:36:23] Speaker 00: basically that he was not concerned. [00:36:25] Speaker 00: That's the state of mind. [00:36:26] Speaker 00: He wasn't concerned. [00:36:28] Speaker 00: But that's not what they wanted to get in. [00:36:29] Speaker 00: What they wanted to get in was the additional statement that he wasn't concerned because they weren't doing anything wrong, because they were just friends. [00:36:37] Speaker 00: And in fact, defense counsel at trial sort of did get in later, eventually, get in the fact that [00:36:44] Speaker 00: the inference that he wasn't concerned because after Ricky Zhang raised this to Wei Huang, the next set of questions was, and did he basically, did he change his behavior? [00:36:54] Speaker 00: And the answer was no. [00:36:55] Speaker 00: He continued to do it. [00:36:57] Speaker 00: And the problem is, the reason why that was problematic for the defense is because it can go either way. [00:37:03] Speaker 00: Either it means the chairman wasn't concerned because [00:37:08] Speaker 00: He, you know, he doesn't care. [00:37:09] Speaker 00: That's his purpose. [00:37:10] Speaker 00: He wants to engage in bribery or he wasn't concerned because he didn't think he was doing anything wrong. [00:37:16] Speaker 00: It would depend on the substance of the statement, which means it's hearsay, which means it's the reason for the state of mind. [00:37:23] Speaker 00: And that is a car that's carved out from that exception. [00:37:27] Speaker 01: Let me ask you something. [00:37:28] Speaker 01: This is an organization and the sentence was a $4 million fine. [00:37:35] Speaker 01: How is that going to be enforced if we uphold this conviction? [00:37:42] Speaker 00: I don't have an answer for you at this point. [00:37:50] Speaker 00: The company still exists, so. [00:37:54] Speaker 00: It's still doing business in California? [00:37:56] Speaker 00: No, I don't believe it is. [00:37:58] Speaker 00: I mean, maybe it just exists on paper, but. [00:38:01] Speaker 03: Who owns the hotel today? [00:38:05] Speaker 00: No, I don't. [00:38:05] Speaker 00: You don't? [00:38:06] Speaker 00: I don't. [00:38:06] Speaker 00: I do not own it. [00:38:10] Speaker 00: OK. [00:38:10] Speaker 00: So unless there are any other questions, the government would ask this court to affirm the convictions. [00:38:16] Speaker 00: Thank you, counsel. [00:38:17] Speaker 01: Thank you. [00:38:18] Speaker 01: Mr. Roth? [00:38:20] Speaker 06: you don't have to start with slightly more high level point the government says there's a clear line between [00:38:38] Speaker 06: goodwill gift and bribery, and they said the difference is whether you have a specific in mind or if it's generalized. [00:38:43] Speaker 06: That's just not correct legally. [00:38:45] Speaker 06: The difference between a goodwill gift and a bribe is whether it's intended to be bilateral or intended to be unilateral. [00:38:52] Speaker 06: That's the difference, and I'd urge the court to look at the Al Schuller article that explains this point. [00:38:56] Speaker 06: It doesn't matter whether he, if he had had ten hotels and he wasn't sure which, it wouldn't change anything. [00:39:00] Speaker 06: It has nothing to do with the specificity. [00:39:02] Speaker 06: It has to do with the intent to enter an agreement. [00:39:07] Speaker 06: If there is a clear line between these two things, the jury certainly should have been told where it was. [00:39:12] Speaker 06: And the jury was not told. [00:39:13] Speaker 06: The word goodwill gift appears nowhere in the instructions. [00:39:15] Speaker 06: The word ingratiation appears nowhere in the instructions. [00:39:18] Speaker 06: The idea about how you're permitted to pay for access under Supreme Court case law, nowhere in the instructions. [00:39:24] Speaker 06: That was important material that influenced and tainted the jury's ability to make this call. [00:39:31] Speaker 06: With respect to the Travel Act, this court in Chi applied a categorical approach to a statute that's structured almost exactly the same way. [00:39:40] Speaker 06: Under the categorical approach, you look at the elements and you compare them to the elements of the generic offense. [00:39:46] Speaker 06: The defining feature of bribery [00:39:49] Speaker 06: under federal law and generic bribery in 1961 is a quid pro quo. [00:39:54] Speaker 06: California law does not require a quid pro quo. [00:39:58] Speaker 06: So under the categorical approach, the California bribery statutes cannot serve as a predicate for travel act claims. [00:40:06] Speaker 06: That's our argument. [00:40:06] Speaker 03: So the act here wouldn't qualify? [00:40:09] Speaker 03: They don't call it. [00:40:12] Speaker 06: You don't look at the acts. [00:40:13] Speaker 06: Under a categorical approach, you don't look at the acts. [00:40:16] Speaker 06: You look at the elements. [00:40:17] Speaker 06: That's what the Supreme Court has said over and over again. [00:40:18] Speaker 04: What about the Taylor exception, where the jury was instructed to convict and do it? [00:40:22] Speaker 06: The Taylor instruction is, the Supreme Court explained this in Mathis a few years ago. [00:40:25] Speaker 06: They said that's where the elements have alternative means in the statute. [00:40:30] Speaker 06: You know, you could violate it through A or B. [00:40:32] Speaker 06: And if it's that way, it's really two different offenses, and you can look at the charging documents to see which one. [00:40:39] Speaker 04: I know that Mathis was getting into whether a statue was divisible or indivisible, but Taylor, at least, just seems to say you can reach it if [00:40:48] Speaker 04: Like, we don't need to have that concern that we might otherwise have with the mismatch if you know that the jury convicted based on elements that would apply such as an official act. [00:40:58] Speaker 06: I don't think... MAPHIS is glossing the categorical approach that Taylor created. [00:41:03] Speaker 06: It's explaining that exception and what it means and doesn't mean, and it squarely rejected that idea that you can just figure out from looking at the case what the jury actually found. [00:41:13] Speaker 06: That doesn't matter. [00:41:14] Speaker 06: You look at the elements. [00:41:15] Speaker 06: And then very quickly on the evidence, I heard an explanation for why the information about Huizar's other schemes was relevant. [00:41:25] Speaker 06: I didn't hear anything explaining why it was relevant to the chairman's intent, which is the issue in the case. [00:41:31] Speaker 06: It isn't because he didn't know any of this. [00:41:33] Speaker 06: And so it couldn't have been relevant to his intent. [00:41:36] Speaker 06: We actually asked for a limiting instruction on this at ER 102. [00:41:39] Speaker 06: It would have said, if you're going to consider these other acts, you only can consider them insofar as they bear on [00:41:46] Speaker 06: the defendant's intent, and the district court refused to give that. [00:41:49] Speaker 06: So I don't think there's a good answer to that. [00:41:51] Speaker 06: And then with respect to the Zhang testimony, first of all, we wanted to get in that he was not concerned, which they admitted, I think, is a mental state issue. [00:42:01] Speaker 06: And as this court explained in Wagner, the only time you can't get into the reason [00:42:06] Speaker 06: the underlying reason for the belief is if you're trying to prove up the truth of that underlying reason. [00:42:11] Speaker 06: But again, the fact that he said, well, I'm not worried. [00:42:14] Speaker 06: We're just having a good time. [00:42:15] Speaker 06: We're not trying to prove that he was having a good time. [00:42:18] Speaker 06: It's only relevant for the intent because I think I could. [00:42:21] Speaker 01: I mean, I think if I had been the trial judge, I might have let it in. [00:42:24] Speaker 01: But is it an abuse of discretion not to let it in? [00:42:27] Speaker 06: Well, the question of whether it's hearsay or not hearsay is a legal question, I would say. [00:42:33] Speaker 06: So first of all, it's an error of law with respect to the hearsay exception. [00:42:36] Speaker 06: Wagner reversed. [00:42:38] Speaker 06: in a similar situation based on a similar error, and I think it's extremely prejudicial. [00:42:42] Speaker 06: Actually, government counsel explained why it's so prejudicial, because without it, all you know is people told him this was not a good idea, and he kept doing it, which of course suggests that he was a scoff law, essentially. [00:42:54] Speaker 06: He didn't care that he was engaging in bad conduct. [00:42:57] Speaker 06: We had to fill in, you know, close the loop on that to tell the jury. [00:43:01] Speaker 06: And the reason he kept doing it is because he didn't think he was doing anything wrong. [00:43:04] Speaker 06: And of course, they can consider the credibility of that. [00:43:06] Speaker 06: They can weigh it. [00:43:07] Speaker 06: But they need to at least have the information to be able to weigh it. [00:43:10] Speaker 06: Thank you. [00:43:10] Speaker 01: All right. [00:43:11] Speaker 01: Thank you, counsel. [00:43:13] Speaker 01: United States versus Shenzhen, New World One is submitted. [00:43:18] Speaker 01: And this session of the court is adjourned for today. [00:43:30] Speaker 01: This court for this session stands adjourned.