Legal Case Summary

United States of America versus Ronald Salahuddin and Sonny L Cooper. Thank you. Okay. John, are you ready? Yes sir. And Mr. Ashley? Your honor, my name is Thomas R. Ashley. I'm a little bit under the weather, so hopefully my voice will be very well. Okay, we're very pretty well and you asked for two minutes for Ronald? Okay, that request will be granted. Your honor, in this case, so we'll understand the background of the case, and I think it's laid out pretty clearly in our brief. I understand the case. Then our first position, Your Honor, is that the Hobbes Act conspiracy that's alleged in this case, with cries proved that the appellant, Mr. Salahuddin, attempted to or did obtain something of value from the victim under the color of official right. Now, why do we say that? Why do we say that? Well, we say it for various reasons, one of which was that that is the sole theory by which the government tried the case. I read a case, US versus power, and there are probably other cases that said that when the circuit court is deciding an issue with a case, it should decide the issue based upon the theory that is argued at the time that the government prosecuted the case. And there's an element of fairness in that, because if you're going to prosecute the case in one way, and then later argue another way, then certainly that would be basically unfair. Why, in a conspiracy claim, does the government have to prove that the defendant actually obtained the property that he was conspiring to finagle? Because in this case, both the manzo versus manzo and Shilverst, the National Association of Women, with respect to a Hobbes Act conspiracy, with respect to a Hobbes Act conspiracy, had both held that one of the elements of the Hobbes Act conspiracy as distinguished from other conspiracies is that the individual, the person who is charged, must have obtained the property of another. Are you sure reading, manzo, that issue was really an issue as to be dispossitive of the case, or was it the spoken of, but not really the matter which was an issue, i.e. in a Hobbes Act conspiracy, do you have to prove that the defendant actually obtained one of the things that he was seeking to object of the conspiracy? Your honor, I acknowledge clearly that the issue there was whether or not Mr. Manzo was a candidate, was acting under color official right in that. Because it was status. Yes, but it was said clearly in that case, with respect to, and all of that wasn't the issue, it was said clearly in that case, but the other elements were met, and they listed the elements. And the first element that it said forth was the property was obtained from the alleged victim. Now, but it's not necessarily limited to obtain for himself, could have obtained it for someone else. None of the, that's exactly what, isn't that exactly what Proven's Honor holds? Your honor, accepting that proposition, in this instance, the jury clearly acquitted him of obtaining any property either for himself, or for anyone else. That's the question about the completed crime. This is a conspiracy, right? Yes. So he could still be guilty of the conspiracy, in many cases to say this, and not guilty of the completed offense. Well, let's, let's then go to a Supreme Court case, which I think maybe was even more directly on point. But when you're back to your point, you agree that Proven's Honor holds that for a Hobbes Act conspiracy, the defendant does not have to obtain the property for himself, but can, could have it obtained for another person. I agree with that, but the fact of it is that there was no proof that that actually occurred. And the evidence, in fact, when there was an acquittal with respect to the substantive counts, the jury clearly rejected any argument, and I assume that's what you're talking about, that Mr

. Salody obtained or was attempting to obtain property for Cooper, but the jury rejected that argument despite the fact that that's what the state argued throughout the indictment. Well, is it, is it the issue even more basic than that? And that's that conspiracy, the definition of a conspiracy does not include obtaining the benefits of what of the conspiracy. It's an agreement, which is illegal to do something illegally or to do something legally illegal, but it does not, the question is whether or not there has to be anything obtained from the conspiracy. But the traditional common law definition of conspiracy never required that the benefit of the conspiracy was ever realized. It's sufficient that the agreement was made even if it was never brought to fruition. So you have the seminal case in this matter before us as to whether or not a Hobbes Act conspiracy requires actually one of the objects of the conspiracy being realized. And the government says Hobbes Act does not require that the object of the conspiracy be obtained in order to be a conviction, unlike some other conspiracy. Well, let me just say this. Well, no, because let me just say this. Let's then let's talk about the indictment and the government's argument if I may just for a minute and a half. The indictment in the case in paragraph 12 said and it is alleged that the defendants, Ronald Salody and Sonny Cooper conspired with each other and with others to affect interstate commerce by extortion under color, but official right. That is this is the indictment and we're entitled to rely on this by obtaining. This was what they said by obtaining money and other valuable benefit including demolition business and contributions from CW. It doesn't first of all, it doesn't say by obtaining for whom. Well, it says is with the CW's consent in exchange for official action. But then it says in paragraph 13 before you got to the words by obtaining it talks about under a color of official right. Isn't that all that the encoded offense of conspiracy to violate the Hobbes Act requires is the agreement? No, judge, it requires. Let me just say this. The other argument is you're arguing it requires a benefit, but you're also arguing at a time when you only have about a minute and a half left. Why don't you turn to your over at act? Okay, may I just say that the Shilovets versus the National Organization of Women I think in my opinion, clearly says that in a Hobbes Act context after reviewing the entire history of the Hobbes Act says that the actual, the deprivation of the right is not enough, but there also has to be an obtaining of the property of another. So despite the fact that the protests were basically taking the business away from the persons who operated the abortion clinics, they said that's not enough. They had to have abstained property from you and that did not happen. And I think that case is basically what and it was a conspiracy to violate the Hobbes Act case. And that's what we rely on specific which cases that that's Shilov versus the National Organization of Women handed down by the Supreme Court of Assets. You please read it because I think that supports us 100% with respect to the uniqueness of the Hobbes Act. Now we can go to the over at that. Well, before you do, this very issue has been before several courts of appeals the way I read it and I think it was very plain. Four courts of appeals have ruled that a Hobbes Act conspiracy does not require that an over act be realized. John, I'm okay. One in the fifth circuit has said, no, there's got to be something, one of the over acts of the conspiracy, reason for the conspiracy has to be realized. Now, as far as I read the cases in the third circuit, I disagree with you. I don't think Supreme Court has ever ruled on this one way or the other

. And in the third circuit, I'll grant you it's a little bit at issue. It's a little bit fuzzy. But this is this very issue whether or not a Hobbes Act requirement is a Hobbes Act case requires an over an act is really never been at square of all four issues in any case that I've been treated as a circuit. Well, let me just go back to one issue. I read it. I'll read it again. I think it's not quite as you say. Our property rights questions and shodd are different than what the issue is. I think they are different but without any real distinction. I think that basically what they're saying is the Hobbes Act requires that you actually obtain something from the individual rules evict them. That's the important thing you read out of shy. Yes. And also I want you to get to the over at act question. I'm read lights on. Okay. A couple more minutes. With respect to the over at that question. The government again with respect to again, as said, forth consistently that there was a requirement of an over act and and variance Hobbes that cases. And we don't want to get to have a minute. So you read the briefs and call in the district court in man's own other places. And of course, if you look at the model charge, it also says clearly that we're with respect to Hobbes Act conspiracies that indeed the fact is you should go to the conspiracy section. It sites us the three seventy one conspiracy section. You didn't need an over at act. But they say here it says three seventy one conspiracy under three seventy one should be applied. That's a model jury instruction. I'm staying. But I'm just a law. There's not the law, but the model jury. So you agree with me under common law. No over at act was needed under common law. Okay. And the only place where over act is required, I some would argue is we're Congress specifically said that

. And I'm not so sure if I agree with that 100%. And it's the one you agree that Congress didn't say that in defining the Hobbes Act conspiracy here. They did not say that within the statute that is correct. So I understand what field. How do we get the over at act requirement if it's not in the state because of the fact the government has consistently acknowledged that there was an over at act requirement, except in this case. Well, how come when the jury was charged, you never read you heard the charge. Of course, you could they do the charge. You never requested the jury to be charged that in order to think they have to find an over at act. You never requested that. And no, and no, in order in this particular, it was an oversight on my point. Well, then they were on plane. Here we are playing the question is, is it playing the question is it is even error when the decisions in the third circuit are at best. Very, very money. And at worst, it's never been adjudicated. Well, and you yourself never requested something, which you say is a Cinequan gnome of a conspiracy under the Hobbes Act. You're on the record obviously will speak for itself. So I can't argue that I did something I didn't do. I can say I didn't do it because at the time, certainly it was my impression that that was a law. She didn't rule that way or she didn't charge that way. And I have to bear whatever you never ruled. She never ruled. You never was never any rule against you. She didn't rule that there that you didn't make an application that she denied it. I understand what you're saying. You're saying in effect, I never made that effort to deal for she never denied that's what you're in effect saying that is true. That is true. The district court obviously thought that no over no overback was required. She never tried to ask requirement at element of the offense. I think that when you read and you say yes, the model of charge is not law, but when you read the actual way in which the because this is a consack is of course very confusing in the first place. But when you read the Hobbes Act and what the charge suggests, it clearly suggests that at some point you would apply 371 where an overback is required. Why does it just as Judge Fisher said it wasn't required under common law and there any number of federal conspiracy statutes which do not require an overback. I totally understand that that would be my theory though

. As a matter of fact, that just goes to show when Congress wants it over that they know how to write it into a criminal violation. Well, let me just say in a bad luck for you just changing the subject for one split second in United States, first of gray on the issue of whether or not there was an obligation to show that a defendant did in fact obtain something of value in the sixth circuit. But they clearly held that that was the case in gray. They actually said that in its holding clearly. So it is not as well as something that's coming from and I just want the chance to read it. The court said in addition to requiring the conspirators to agree to obtain something from another. The statute meaning the Hobbes Act requires a conspirators to obtain that property with the others consent. So I just want to make sure that that is clearly law of the sixth circuit and I'm asking that that you find that that was is now and should be the law of the third circuit since that's where the court. We're going to have you back on the bottle. Yes, we want to hear from Mr. Zegas on behalf of Mr. Cooper. Good morning, Alan Zegas for sunny Cooper. I don't typically raise out appeal rule 33 or rule 29 arguments because of the standards that are implicated. Nevertheless, I sat through this trial on behalf of Mr. Cooper and from beginning to end, I wondered why he was there. Virtually every witness was called by the government ended up testifying on his behalf, including today United States Senator Booker, who was called by the government, said that if he had to rank the Newark businessmen, who he's known over all the years in three years, sunny Cooper would be at in the first time. He was the first year at the top of that year and there's nobody who said different. And if you listen to those things that Mr. Cooper did say on the tape, I would submit your honor and I recognize that conspiracy is not a difficult standard for the government to meet who first said it, who put in law of your article, but conspiracy and the nursery, it's a borrowing of the prosecutor and they used for alchemy. And that's what has happened here. I submit that if the standard were not as relaxed as it is in terms of the prosecution, there would be nothing brought, but having brought it, I'd still submit you, the government did not. Excuse me, Mr. Zegger. Excuse me, Mr. Zegger. Do you reserve time for rebuttal? I did your honor. How much? Two minutes. If I may. That's great. Starting with Mr. Mentor, who testified on behalf of the city, I have the government

. On this rule 33 motion. Yes. I'm dealing with the rule 33 motion. We have abusive discretion. Correct. That's correct. And recognizing. You've got a heavy burden on you. I understand that the court was wrong and finding that the verdict was against the way to the elements. Well, I don't think so with respect to Mr. Cooper. That's why I started as I... I don't have a hair on him, Mr. Cooper. With respect to Mr. Cooper, this was the testimony. And this is from the newer building person who was called by the government. Mr. Cooper was typically the lowest bidder. He was a minority. He was always conscientious in doing the work. He could be called any hour of the day and he'd be there to do whatever demolition was necessary in case of a fire. He had a proven track record. He had obtained jobs on merit. He received work from Newark long before Mr. Salguedin took office. What did he attempt to conceal? When he wrote a check to Mr. Salguedin, he put on the face of the check repayment of cash loan. When Mr. Mizaki, the government's operative, is trying to induce Mr

. Cooper to engage tape in wrongful conduct, Mr. Mizaki tells Cooper that he'll give him cash. What does Mr. Cooper say? It doesn't make no difference. This was an unsophisticated man. His testimony that he went to a political fundraiser in his deli clothes. You're not going to raise him any other stuff that they had. Such as Cooper tells Mizaki, quote, he said to me, whatever we do, we have to, you know, I have to eat and he has to eat. It sounds like they were going to dinner all the time here and we're talking about eating. This is not Mr. Cooper's beginning. I know, but he's talking to Cooper. But this is what's happened. Mr. Cooper sits there and you can look through every single transcript using any Cooper. The man barely says a word. And those words that he did say we spoke more than four or five words. He said precisely what I'm quoting to your honors. No, no, he's there, but in addition to the testimony from Mizaki, who's not the Pillar of Society, we recognize that. And he's a racist, he's the lowest of low. But he's talking to Cooper and Mizaki said something like, all I got to do is feed study and Cooper answered, yeah. Now what did they talk about? Go to dinner or what did they talk about? Or are they talking about riding public officials? I submit to you that there's no evidence of that. Yeah, or even it's not even ambiguous that that yeah was intended by Sonny Cooper to indicate his agreement to do something unlawful. Mr. Cooper, you know, had as much work as he needed. He's testified that he got up, he testified, but the testimony was, he got up before 30 in the morning to go to sweep the streets with his machine. He would then go to work. He had a liquor store in a deli. Most of his day was dedicated to that or a hauling garbage. At night, if there were a fire, even a fire during the day, he'd be out there demolishing a house that needed demolition. Because nobody else could be found to do it. The man worked incessantly

. He didn't need the business. And the business that he got, I'm sorry, you're on the right. Let me focus you on where I'm from. Yes. I thought you just say arguably have a stronger argument on your rule 29 motion. Don't you? But don't you, I just don't do better legs to stand on here on the rule 29. But with respect to rule 29, our standard of the review is different than abuse of discretion. Yes, in some ways, except that the government has given every benefit of the doubt with respect to rule 29. Yeah, but the quick motion. And the court has given every benefit of that. Well, the court has discretion, but it's not unbridled discretion. Yeah, but you're talking about credibility issues. Why don't you focus on a little 29, a little bit? Yeah, there is well. You're giving the benefit to the government. You know, you judge how encoded Mr. Cooper saying, yeah, in response to, you know, when he liked the benefit of it from whatever the project might be. The fact is that, and Mr. Mizaki testified to this, anything that Mr. Mizaki had received by way of business from the city, where Mr. Cooper was involved, because he did demolition for him. He was paid precisely what he asked for, which was lower than almost any other person would ever request. That's the testimony in the record. This is who this man is. He said, he's a daughter who's 16, she got a MIT. He's just a hard working soul. And he didn't get a penny, not a penny from any of this. He didn't get anything. And he wasn't his, he had no state of mind that was proven to suggest that he was attempting to enter into agreement to get something unwaffly. It's simply not there with respect to this man. And he was drawn into this because of things that the government does have on tape that sound so gracious, you know, that they headlines and that papers love quoting. But the fact is, if you look and you parse the evidence, you see what wasn't produced. I submitted that a case was not made against Mr

. Cooper, where the government had proved every element of the offense of conspiracy charged beyond a reasonable doubt as it was obligated to do. Whether your honors judged that under Rule 29, or Rule 33, I'd submit that if you take the trial as a whole. And there were four quittles out of five charges in this case. Well, albeit that Mr. Cooper was not charged, I believe, account for. The fact is that there is nothing that Mr. Cooper ever did asked for, got, that he didn't earn. And there's no suggestion that he was in any way attempting to do something illegal, or that he was even aware of the content of other discussions occurring outside his prisons. It's really horrific, I think. And the judge gave him probationary sentence. And I believe recognizing the role, even if you assume, which the judge's family was killed, you understand that? That she decided the motions as she had. But I submit that the reason she sentenced as she did was because of the at best, at best, the emergency question this way. Even if everything you say is true. The only thing he got convicted of was conspiring. I understand that you are both conspiring with Mr. Salahudin, to violate the hogsack. But there's no evidence that he engaged intentionally in such a conspiracy. And that's why I have difficulty. He's convicted of the crime of conspiracy. He's going to see the rest of his life will be spent with a criminal record in these in the 70s. When the man did nothing that was intentional, and certainly nothing that was intentionally criminal, and the record nowhere suggests otherwise I submit. You have a lot of language on tape that he might just be sitting there, or where others are talking about other kinds of business. But he's not the one who's participating. Every dying that man has ever gotten, he's earned, and he's never sought to enter into, and there's no evidence that he did enter into, and agreement within a legal purpose. Yes, sir. The Judge Wilson wrote an opinion on your motion for against the way of the evidence. And of course we have to give that some consideration and deference. But where in that opinion did she go where she had error when she wrote the opinion post trial on your motion, your post trial motion, that the verdict was against the way of the evidence? I think if you look at her opinion, she found time and again that certain facts could be interpreted in Mr. Cooper's favor, but you're judging using the Rule 29 standard, she was giving the government the benefit of the doubt. But I submit taken as a totality, even if you take into account how the judge, you saw some evidence could be looked at. Your Honor is still contested, and there are cases, certainly cases. Your position basically was, look, the arguments that you're making like to us right now, you've made that a jury

. That this is a jury argument, it's not a pellet judge arguments. And that her opinion is... There would never, there would never then be a neutral motion granted or the motion for judgment of a quittle, because if the arguments made to the jury and during the accepted, then of necessity, they were suggesting that the judge has to put her seal of approval on it. I submit that the standard is not one that gives the judge unbound discretion. And then in this case, there was so, so, so little evidence where Mr. Cooper's name was even mentioned in a way that suggested criminality, that the judge, you had to properly exercise her discretion, would have found that either Mr. Cooper wasn't titled to a judgment of a quittle, or that the verdict was against the weight of the evidence. And it took a long time for her Honor to write the decision. I know she obviously, this is something that she probably, you've got to tore at her. It was not an easy case. By submit that at the end of the day, her discretion was not properly exercised, and you certainly have it within your powers to find that. Thank you. Thank you. Mr. Feeder? Feeder. There's a lot of issues in this case. You can address them however you choose to, but you were here and heard what counsel focused on, particularly the four-in, issues they focused on. Legal Alchemy for conspiracy. Legal Alchemy. Yes. Wizardry, I think I said in my words. How about Alchemy? Legal Alchemy was, I believe, the district court opinion in man's. I'll start with the question that the court invited the parties to address specifically, and that's whether there's an over-adact requirement for Hobbes Act conspiracy. There is no over-adact requirement for Hobbes Act conspiracy because there is no such provision in... I believe there is one. So, even though it wasn't that issue, what they say it was. So, Your Honor is correct. The issue, the over-adact question was not at issue in man's

. The focus in man's is whether a candidate for public office could extort under color of official right having not been an official. And the government argued that it could, and Your Honor, in an opinion drafted by Judge Fisher for the court, responded that that was not the case. But the over-adact question was not briefed by the parties. It was not the focus of the opinion. But there is reference to over-adact in that opinion. There's a reference, there's a quotation. Have a model code, the model charge for New Jersey requires it. That's not the case, Your Honor. The model code, the model instructions for the third circuit say, and I quote, it should be noted that Hobbes Act conspiracy does not require proof of an over-adact. And that's at section 6.18.951, a 1951 in the comments to that section. Mr. Ashley alluded to a cross-reference to jury instructions for 3.71 that could be given when the Hobbes Act is charged as a conspiracy. But there's no indication that the over-adact portion of that, of that instruction, should be given because, again, as the circuit courts have found, there is no over-adact requirement for Hobbes Act conspiracy. Well, that's part of the alchemy you're floating here. You put that there were over-adacts in this conspiracy, and you get the defendants to prove that there are no over-adact, that the over-adact is not true. And they're looking one way and you're saying something exactly opposite. You say that these are the over-adacts to prove the conspiracy, and you never prove them. And they say they came to trial and prepared to prove there were no over-adact. They proved it, and now they're stuck with a Hobbes Act conspiracy claim, so that you are amended the indictment in effect. You said they're going to prove one thing, which they were prepared to meet and met. And now you wind up saying that they violated the Act. We charged a Hobbes Act conspiracy. We also charged an attempt count under the Hobbes Act, and then we charged substance violations of Section 666. We did the government at no point characterized those as over-adact. There was evidence that the government... Did they run over-adact? There was evidence that was method and means that were undertaken in support and furtherance of the conspiracy, but they were not... As a legal matter, are not over-adact. This is not the definition of an over-adact. But where the statute does not require proof of an over-adact, the government is not required to prove an over-adact. So you acknowledge that you amended the indictment? Well, we did not amend the indictment because we charged a Hobbes Act conspiracy, which does not require proof of an over-adact. We had no point called them over-adact. That's evidence that we felt was in support of our case. And the fact that those... that evidence... We don't know why the jury did what it did. We think that there was more than sufficient evidence for the jury who have convicted on all five counts. They argue that at least your office has taken a position that the over-adact was required under Hobbes Act conspiracy. I don't know where they're getting that from. The issue may come from Manzo, and respectfully, Your Honor, I've reviewed the... The hour brief in Manzo, which was written by Mr. Moramarka, who's sitting back there. And at no point was the term over-adact ever used. Again, it's just... but you have to remember... That's part of the alchemy. That's right, Your Honor. Say one thing and you do another

.. As a legal matter, are not over-adact. This is not the definition of an over-adact. But where the statute does not require proof of an over-adact, the government is not required to prove an over-adact. So you acknowledge that you amended the indictment? Well, we did not amend the indictment because we charged a Hobbes Act conspiracy, which does not require proof of an over-adact. We had no point called them over-adact. That's evidence that we felt was in support of our case. And the fact that those... that evidence... We don't know why the jury did what it did. We think that there was more than sufficient evidence for the jury who have convicted on all five counts. They argue that at least your office has taken a position that the over-adact was required under Hobbes Act conspiracy. I don't know where they're getting that from. The issue may come from Manzo, and respectfully, Your Honor, I've reviewed the... The hour brief in Manzo, which was written by Mr. Moramarka, who's sitting back there. And at no point was the term over-adact ever used. Again, it's just... but you have to remember... That's part of the alchemy. That's right, Your Honor. Say one thing and you do another. I know. My wife accuses me of that all the time. I'm accusing you of it. No, okay. The... again, it's not alchemy because there is no requirement. Every circuit court to have addressed this in the wake of the Shabbani and Whitfield opinions has so held. And I would submit... What about Supreme Court and Shider versus... Now. Like Manzo Shider addresses a different element of Hobbes Act conspiracy, namely the type of property that defendants have to seek to extort. In that case, it was deemed... Much like the Supreme Court just ruled this past term in C-CAR, there was not a sufficient property interest because it was not... Couldn't be sold or transferred. It just wasn't the type of property that Congress had in mind in enacting the Hobbes Act. But at no point was there an over-adact requirement imposed in Shider or was that at all the focus of that opinion? All right. So you say no over-adact required. If stay with Shider for a second, go to the second point to Mr. Ashley's argument. What about the benefit? Do you have to show that at least as to Mr. Salahudin? How's it for Salahudin? I believe it's Salahudin, but.

. I know. My wife accuses me of that all the time. I'm accusing you of it. No, okay. The... again, it's not alchemy because there is no requirement. Every circuit court to have addressed this in the wake of the Shabbani and Whitfield opinions has so held. And I would submit... What about Supreme Court and Shider versus... Now. Like Manzo Shider addresses a different element of Hobbes Act conspiracy, namely the type of property that defendants have to seek to extort. In that case, it was deemed... Much like the Supreme Court just ruled this past term in C-CAR, there was not a sufficient property interest because it was not... Couldn't be sold or transferred. It just wasn't the type of property that Congress had in mind in enacting the Hobbes Act. But at no point was there an over-adact requirement imposed in Shider or was that at all the focus of that opinion? All right. So you say no over-adact required. If stay with Shider for a second, go to the second point to Mr. Ashley's argument. What about the benefit? Do you have to show that at least as to Mr. Salahudin? How's it for Salahudin? I believe it's Salahudin, but... Right as at least as to Mr. Salahudin. Where was the benefit? There's no requirement that the government has to prove that the conspiracy, that the Hobbes Act conspiracy was successful. And your position is all they have to do is agree to engage in this conspiracy. That's correct, Your Honor. It's in Manzo, for instance, Your Honor, that the government need not prove every substantive element to establish and in co-A defense. In this case, there's no requirement that the government has to prove that the conspiracy was successful. That's clear from Janati. And I think what they're doing is taking snippets from Shidler. They're taking snippets from Manzo and reading them totally divorced of any context. Yeah, but all these snippets have some force to them. They're not without good argument. They're not frivolous. And also, you're facing the rule of letity. It appears that New Jersey, most lawyers would have said that there is an over-adact requirement to a Hobbes Act. And here, you have a Hobbes Act case where they never prove the defendant did anything except conspired. Respectfully, Your Honor. I don't see how lawyers in New Jersey would think that there was an over-adact requirement for Hobbes Act conspiracy. Again, the third circuit's model charge says that the Hobbes Act conspiracy does not require proof of an over-adact. Practitioners rely on those instructions. And so I'm not sure why practitioners in New Jersey would assume there was an over-adact. I mean, this may get at part of the problem, which is that Section 371, which is perhaps where the most case law comes from on conspiracy law, certain elements of Section 371 apply, you know, the same logic applies under the Hobbes Act. So a lot of times you will get an opinion that makes reference to a case that was decided under 371, which is a different statute. And importantly, 371 has an express over-adact requirement. And there is a one case out of New Jersey. During my career anyway, you can't name one case where anyone was convicted of a Hobbes Act conspiracy, where they were, unless they were also convicted of subsubsidative effects. Not one. Well, I would submit that the failure of the government to identify a case, I will go back and I will comb the records to see if I can find something like that. The fact of the matter is that there is no requirement that an over-adact has to be shown for Hobbes Act conspiracy. Well, I'm talking about the rule of lenity and the rule of the amendment of the indictment here. And the situation where defense lawyers are coming to this trial, they're going to focus on disproving the over-adact

.. Right as at least as to Mr. Salahudin. Where was the benefit? There's no requirement that the government has to prove that the conspiracy, that the Hobbes Act conspiracy was successful. And your position is all they have to do is agree to engage in this conspiracy. That's correct, Your Honor. It's in Manzo, for instance, Your Honor, that the government need not prove every substantive element to establish and in co-A defense. In this case, there's no requirement that the government has to prove that the conspiracy was successful. That's clear from Janati. And I think what they're doing is taking snippets from Shidler. They're taking snippets from Manzo and reading them totally divorced of any context. Yeah, but all these snippets have some force to them. They're not without good argument. They're not frivolous. And also, you're facing the rule of letity. It appears that New Jersey, most lawyers would have said that there is an over-adact requirement to a Hobbes Act. And here, you have a Hobbes Act case where they never prove the defendant did anything except conspired. Respectfully, Your Honor. I don't see how lawyers in New Jersey would think that there was an over-adact requirement for Hobbes Act conspiracy. Again, the third circuit's model charge says that the Hobbes Act conspiracy does not require proof of an over-adact. Practitioners rely on those instructions. And so I'm not sure why practitioners in New Jersey would assume there was an over-adact. I mean, this may get at part of the problem, which is that Section 371, which is perhaps where the most case law comes from on conspiracy law, certain elements of Section 371 apply, you know, the same logic applies under the Hobbes Act. So a lot of times you will get an opinion that makes reference to a case that was decided under 371, which is a different statute. And importantly, 371 has an express over-adact requirement. And there is a one case out of New Jersey. During my career anyway, you can't name one case where anyone was convicted of a Hobbes Act conspiracy, where they were, unless they were also convicted of subsubsidative effects. Not one. Well, I would submit that the failure of the government to identify a case, I will go back and I will comb the records to see if I can find something like that. The fact of the matter is that there is no requirement that an over-adact has to be shown for Hobbes Act conspiracy. Well, I'm talking about the rule of lenity and the rule of the amendment of the indictment here. And the situation where defense lawyers are coming to this trial, they're going to focus on disproving the over-adact. Well, in terms of resolving this case, you're on a made an important point at the beginning. This wasn't raised below. So we're reviewing this for plain error. And that rule of lenity argument is going to be reviewed for plain error. And so when you look at what the third circuit model instructions say, they say there's no over-adact requirement for Hobbes Act conspiracy. I'll refer you to, there was an NPO, which I normally would not refer to up here, but I think it's relevant in this case. The case called Singleton, and it was issued last month that was written by Judge Ambre. And I can give you the citation for that. 2014 West Law 1706266. And it notes that the third circuit hasn't settled the question of whether there's an over-adact requirement for Hobbes Act conspiracy. But it recognizes the conflict in Judge Cowan. You used words like muddy and fuzzy. And taking Singleton and also recognizing that third circuit precedent may be, in fact, muddy or fuzzy. It can't be a plain error to not charge an over-adact requirement for Hobbes Act conspiracy. And certainly it wasn't prejudicial because we provided plenty of evidence from which a reasonable jury could have concluded that over-adacts were met. Again, we don't have to meet that standard. There wasn't an error. It certainly wasn't plain. But even still, we submitted copious evidence from which a jury could have concluded that there were over-adacts. All right. Let's get you out of Mr. Cooper. So Mr. Ziegis said that Mr. Cooper, go ahead. Mr. Ziegis said that he sat through the trial. What I'll add is so did Judge Wolfson. And Judge Wolfson, who's in the best position to make an assessment having viewed all the evidence, having heard all the testimonies, seeing the impact of that testimony and the recording after recording after recording on the jury, was really best situated to make the determination. It's to whether the verdict was against the weight of the evidence. And the standard review, as you've noted, Judge Fisher, is extraordinarily high on Rule 33. Reverse of decisions on Rule 33 are disfavored

. Well, in terms of resolving this case, you're on a made an important point at the beginning. This wasn't raised below. So we're reviewing this for plain error. And that rule of lenity argument is going to be reviewed for plain error. And so when you look at what the third circuit model instructions say, they say there's no over-adact requirement for Hobbes Act conspiracy. I'll refer you to, there was an NPO, which I normally would not refer to up here, but I think it's relevant in this case. The case called Singleton, and it was issued last month that was written by Judge Ambre. And I can give you the citation for that. 2014 West Law 1706266. And it notes that the third circuit hasn't settled the question of whether there's an over-adact requirement for Hobbes Act conspiracy. But it recognizes the conflict in Judge Cowan. You used words like muddy and fuzzy. And taking Singleton and also recognizing that third circuit precedent may be, in fact, muddy or fuzzy. It can't be a plain error to not charge an over-adact requirement for Hobbes Act conspiracy. And certainly it wasn't prejudicial because we provided plenty of evidence from which a reasonable jury could have concluded that over-adacts were met. Again, we don't have to meet that standard. There wasn't an error. It certainly wasn't plain. But even still, we submitted copious evidence from which a jury could have concluded that there were over-adacts. All right. Let's get you out of Mr. Cooper. So Mr. Ziegis said that Mr. Cooper, go ahead. Mr. Ziegis said that he sat through the trial. What I'll add is so did Judge Wolfson. And Judge Wolfson, who's in the best position to make an assessment having viewed all the evidence, having heard all the testimonies, seeing the impact of that testimony and the recording after recording after recording on the jury, was really best situated to make the determination. It's to whether the verdict was against the weight of the evidence. And the standard review, as you've noted, Judge Fisher, is extraordinarily high on Rule 33. Reverse of decisions on Rule 33 are disfavored. And it's only when you're in serious danger that any of this person's been convicted. And that's just not this case. Well, you don't really have any words out of his mouth. To have him sitting there, in fact, I'm not happy with people that he does business with. And is he a product of the ego of Salahud? Or you don't have him doing anything except sitting there, in effect, while everyone is talking about a crime on bribery. And you have a situation where President sat a crime is not an offense, yet, in America. And he's not agreeing to do anything. Yes, he is. Mr. Cooper says on a recording on video, whatever we do, I have to eat and he, referring to Mr. Saladin, has to eat. He says that to Mr. Masaki. As Judge Collins noted earlier, a lot of these recorded conversations are in terms of eating and meals. And in fact, at one point, I think somebody says, well, you know, you can't always feel the man to sell. That sometimes you've got to give him a mistake and Cooper says that's right or something like that. That's correct, Your Honor. So these are all kind of cryptic. Now, was that argued to the jury in terms of this is what he meant? This is what they meant, kind of stuff? I mean, I don't think they had an explanation for what was meant by eating. I think it's very obvious what they meant by eating, which was that they were going to get extorted benefits. It's never been decoded. Everyone has to eat. Well, I mean, how do you get from that to this is he's agreeing that they're going to, how do you get to that from decoding? I mean, this would take a cryptographic expert. That was, it's a determination made by the jury. There's sufficient evidence to support the determination made by the jury. There's an inference to be drawn, I suppose. They could draw an inference that they were really just talking about T-bones and cobs salads. That's not what, if you look at the evidence and you read it and you see how this was presented to the jury, that's not a fair inference. It's an inference, but it's not an inference that the jury was required to draw and Judge Wilson acknowledged that and said that the jury makes this determination first and that she wasn't in a position to draw an adverse inference. So she affirmed the conviction. So in other words, if there's a permissible inference that could be drawn from this kind of recorded conversation, then the evidence is sufficient to support a conspiracy that's your view. Well, this is just one piece of the evidence against the defendants

. And it's only when you're in serious danger that any of this person's been convicted. And that's just not this case. Well, you don't really have any words out of his mouth. To have him sitting there, in fact, I'm not happy with people that he does business with. And is he a product of the ego of Salahud? Or you don't have him doing anything except sitting there, in effect, while everyone is talking about a crime on bribery. And you have a situation where President sat a crime is not an offense, yet, in America. And he's not agreeing to do anything. Yes, he is. Mr. Cooper says on a recording on video, whatever we do, I have to eat and he, referring to Mr. Saladin, has to eat. He says that to Mr. Masaki. As Judge Collins noted earlier, a lot of these recorded conversations are in terms of eating and meals. And in fact, at one point, I think somebody says, well, you know, you can't always feel the man to sell. That sometimes you've got to give him a mistake and Cooper says that's right or something like that. That's correct, Your Honor. So these are all kind of cryptic. Now, was that argued to the jury in terms of this is what he meant? This is what they meant, kind of stuff? I mean, I don't think they had an explanation for what was meant by eating. I think it's very obvious what they meant by eating, which was that they were going to get extorted benefits. It's never been decoded. Everyone has to eat. Well, I mean, how do you get from that to this is he's agreeing that they're going to, how do you get to that from decoding? I mean, this would take a cryptographic expert. That was, it's a determination made by the jury. There's sufficient evidence to support the determination made by the jury. There's an inference to be drawn, I suppose. They could draw an inference that they were really just talking about T-bones and cobs salads. That's not what, if you look at the evidence and you read it and you see how this was presented to the jury, that's not a fair inference. It's an inference, but it's not an inference that the jury was required to draw and Judge Wilson acknowledged that and said that the jury makes this determination first and that she wasn't in a position to draw an adverse inference. So she affirmed the conviction. So in other words, if there's a permissible inference that could be drawn from this kind of recorded conversation, then the evidence is sufficient to support a conspiracy that's your view. Well, this is just one piece of the evidence against the defendants. There are numerous statements made by Mr. Salahdine, where Mr. Salahdine is describing how he was going to influence officials, how he was going to solicit contributions that would be used to demonstrate to Mizaki was a friend of the administration. Those don't necessarily have eating terms. There's other terms of concealment too. But it can't be that if you use Mr. Salahdine, not Mr. Cooper statement. Yes, but Mr. Cooper, the jury could readily infer from the evidence that Mr. Cooper and conclude that Mr. Cooper was a member of this conspiracy that he entered the conspiracy willingly, knowingly, and he says, whoever do best by me will do it. That's one of the first things he says to Mr. Mizaki. He understood before he even met with Mizaki how this was going to work because the language is syncing up with what Mr. Salahdine says. Well, the language that you just quoted, that would be true with anyone, not a thief. That would be true of anyone. Everyone wants to go with someone that could do something for them. But is there enough here from which a district judge could conclude reasonably that a jury can infer the odd and reasonable doubt that he's part of the conspiracy? Or does we have enough here that maybe there should be a new trial because the proofs here are very slim on Cooper. I would disagree on the depth of the proof on Cooper. But what I will say is that this court has to weigh the evidence in the light, most favorable, favorable to the government. That's in fact what Judge Wilson did in rejecting the rule 29 motion that was raised below. And I submit that there was more than sufficient evidence for a rational trial fact to fund beyond a reasonable doubt that Mr. Cooper was a participant and a member of this conspiracy. Mr. Cooper accepted work for Mr. Mizaki that he knew came that was a steer to him by Mr. Salahdine. He understood the contours of the conspiracy. And he intended to benefit by it. If there are no further questions, Your Honor

. There are numerous statements made by Mr. Salahdine, where Mr. Salahdine is describing how he was going to influence officials, how he was going to solicit contributions that would be used to demonstrate to Mizaki was a friend of the administration. Those don't necessarily have eating terms. There's other terms of concealment too. But it can't be that if you use Mr. Salahdine, not Mr. Cooper statement. Yes, but Mr. Cooper, the jury could readily infer from the evidence that Mr. Cooper and conclude that Mr. Cooper was a member of this conspiracy that he entered the conspiracy willingly, knowingly, and he says, whoever do best by me will do it. That's one of the first things he says to Mr. Mizaki. He understood before he even met with Mizaki how this was going to work because the language is syncing up with what Mr. Salahdine says. Well, the language that you just quoted, that would be true with anyone, not a thief. That would be true of anyone. Everyone wants to go with someone that could do something for them. But is there enough here from which a district judge could conclude reasonably that a jury can infer the odd and reasonable doubt that he's part of the conspiracy? Or does we have enough here that maybe there should be a new trial because the proofs here are very slim on Cooper. I would disagree on the depth of the proof on Cooper. But what I will say is that this court has to weigh the evidence in the light, most favorable, favorable to the government. That's in fact what Judge Wilson did in rejecting the rule 29 motion that was raised below. And I submit that there was more than sufficient evidence for a rational trial fact to fund beyond a reasonable doubt that Mr. Cooper was a participant and a member of this conspiracy. Mr. Cooper accepted work for Mr. Mizaki that he knew came that was a steer to him by Mr. Salahdine. He understood the contours of the conspiracy. And he intended to benefit by it. If there are no further questions, Your Honor. Let me just make this come. One reason for my hesitancy is that the defense were acquitted of all of the substantive counts. That's correct, Your Honor. So, I don't know, so in a sense, you know, I tend to discount, I'll call that evidence. And if you discount that and all you have are these, I think these recorded conversations, right? And most of that has to do with Salahdine. I'm really a little with Cooper. Mr. Cooper is at a number of, he's at several meetings with Mizaki and Salahdine. And there's a conversation. Mr. Zieg has said, you know, most of the time we apparently don't have the video, but he's just sitting there. Mr. Judge Wolves and acknowledges. Judge Wolves said he was perhaps the less vocal member of the conspiracy. I can't challenge that. But what I can say is that there was plenty of evidence from much a jury to conclude that Mr. Cooper was a member of this conspiracy. And just I'll just add Judge Tashima, you can't look at the acquittals to assess the sufficiency of the counter conviction here. It's that's very clear from Powell and it's clear from this court's precedent as well. Okay. Okay, Mr. Feeder. Thank you very much. Thank you very much, Your Honours. And we'll have Mr. Ashley back on the bottle. Mr. Ashley gave you a lot of extra times. I think you want to. Very quickly. Very quickly. With respect to whether the government argued in Manzo that an overt act was in fact required, I think it's quite clear

. Let me just make this come. One reason for my hesitancy is that the defense were acquitted of all of the substantive counts. That's correct, Your Honor. So, I don't know, so in a sense, you know, I tend to discount, I'll call that evidence. And if you discount that and all you have are these, I think these recorded conversations, right? And most of that has to do with Salahdine. I'm really a little with Cooper. Mr. Cooper is at a number of, he's at several meetings with Mizaki and Salahdine. And there's a conversation. Mr. Zieg has said, you know, most of the time we apparently don't have the video, but he's just sitting there. Mr. Judge Wolves and acknowledges. Judge Wolves said he was perhaps the less vocal member of the conspiracy. I can't challenge that. But what I can say is that there was plenty of evidence from much a jury to conclude that Mr. Cooper was a member of this conspiracy. And just I'll just add Judge Tashima, you can't look at the acquittals to assess the sufficiency of the counter conviction here. It's that's very clear from Powell and it's clear from this court's precedent as well. Okay. Okay, Mr. Feeder. Thank you very much. Thank you very much, Your Honours. And we'll have Mr. Ashley back on the bottle. Mr. Ashley gave you a lot of extra times. I think you want to. Very quickly. Very quickly. With respect to whether the government argued in Manzo that an overt act was in fact required, I think it's quite clear. At 636, bed third at 70, the government argued that the government had established its case because the government had demonstrated that both elements of a Hobbes act conspiracy had been met one, a criminal intent and two and over at acts. And they specifically did say that. We're going to see that. 636 F third at page seven. But more equally important is the fact that just generally speaking, when you try a case and I tried this case, obviously you look at the indictment and you evaluate the indictment and what it says. And then you try to case predicate on the theory that you're going to, that the government has to prove this beyond a reasonable doubt. And you, you, you, you, you marshal your defense around that so that when the government says no matter what you want to call it, what rubric that they conspired by obtaining the property of another in that they obtain his demolition business, they obtain these contributions, they obtain $5,000. And so you, you spend hours racking your mind about how you're going to get around this and how you're going to cross examine it. At the end of the day, you cross examine the jury, find them acquitted of all of these things. And then you say, okay, was in a 10th, they found what you're acquitted of attempting to do those things. And the government stands up and you ask the government, what is it they, what basis or what basis they convicted the defendant. And the government says, we don't know. Is that what I'm supposed to tell my client, why do we get convicted? I said, well, the government doesn't know and I don't know either. All I'm trying to say is that this, this whole idea of whether we got a trial just from a total, from a totalty aspect is laid out in various ways and is shown in various ways. The indictment, this, the indictment itself never made these arguments that they now that they didn't make before. I was going to read, but only at one minute, I was going to read the, the very eloquent, a very eloquent summation with a government phrase. What happened in this case, and I can still hear, what happened in this case as Mr. Saladin and Mr. Cooper, extorted from the defendant, his property, and also extorted from the defendant to contributions. They had forgotten about the $5,000 because they didn't even ask Mrs. Saladin about that at all in a two day cross examination. Not at all, and didn't mention in this summation. So I just walked away from an entire camp, just walked away from a like, see it, we're going to go another direction. So at the end of the day, that's what they told the jury. And so then the jury acquits these individuals exactly that. And then some, and we're here, and I'm saying, well, they did despite the fact that it's clear and we had a right to, we have some rights. This is how we defended the case. And we had a right to defend the case that way because that's what the government says. That is what we say the law says. But more importantly, they cannot now come in. I hear all these things, but I'll come. Well, you defended the case well and you won on four or five counts, but there the encodate charge of conspiracy doesn't require the government under their theory to prove much

. At 636, bed third at 70, the government argued that the government had established its case because the government had demonstrated that both elements of a Hobbes act conspiracy had been met one, a criminal intent and two and over at acts. And they specifically did say that. We're going to see that. 636 F third at page seven. But more equally important is the fact that just generally speaking, when you try a case and I tried this case, obviously you look at the indictment and you evaluate the indictment and what it says. And then you try to case predicate on the theory that you're going to, that the government has to prove this beyond a reasonable doubt. And you, you, you, you, you marshal your defense around that so that when the government says no matter what you want to call it, what rubric that they conspired by obtaining the property of another in that they obtain his demolition business, they obtain these contributions, they obtain $5,000. And so you, you spend hours racking your mind about how you're going to get around this and how you're going to cross examine it. At the end of the day, you cross examine the jury, find them acquitted of all of these things. And then you say, okay, was in a 10th, they found what you're acquitted of attempting to do those things. And the government stands up and you ask the government, what is it they, what basis or what basis they convicted the defendant. And the government says, we don't know. Is that what I'm supposed to tell my client, why do we get convicted? I said, well, the government doesn't know and I don't know either. All I'm trying to say is that this, this whole idea of whether we got a trial just from a total, from a totalty aspect is laid out in various ways and is shown in various ways. The indictment, this, the indictment itself never made these arguments that they now that they didn't make before. I was going to read, but only at one minute, I was going to read the, the very eloquent, a very eloquent summation with a government phrase. What happened in this case, and I can still hear, what happened in this case as Mr. Saladin and Mr. Cooper, extorted from the defendant, his property, and also extorted from the defendant to contributions. They had forgotten about the $5,000 because they didn't even ask Mrs. Saladin about that at all in a two day cross examination. Not at all, and didn't mention in this summation. So I just walked away from an entire camp, just walked away from a like, see it, we're going to go another direction. So at the end of the day, that's what they told the jury. And so then the jury acquits these individuals exactly that. And then some, and we're here, and I'm saying, well, they did despite the fact that it's clear and we had a right to, we have some rights. This is how we defended the case. And we had a right to defend the case that way because that's what the government says. That is what we say the law says. But more importantly, they cannot now come in. I hear all these things, but I'll come. Well, you defended the case well and you won on four or five counts, but there the encodate charge of conspiracy doesn't require the government under their theory to prove much. But something that's what I said, they proved, they argue they proved the agreement. Well, you're on I didn't we say that I just wanted to that that's my position and that certainly the issue of whether my client acted under the official under the color of official right, we say is demonstrated by the fact that throughout the entire trial, this is the second aspect, there's no time. And he's an informant that he even approached Mr. Saladini and say, how much do you want? What are you looking to get from this? How much do you want? We'll hear it now one time, 18 months, not only that, not one time to Mr. Saladini ever asking for anything. We understand your position. Yes, sir. Mr. Zegas. I would invite your honours to take a look at page 37 of the government's brief because this is this is the kind of thing that was done in this case. The second paragraph is quote, if the government lacked evidence that defendants using the plural always use magic terms, signify a conspiracy. It is because defendants deliberately avoided using them instead they spoke quote unquote Chinese and talked in quote unquote circles. See also quote you understand what I'm saying in English and quote not one of those not one not one of those quotes is Mr. Cooper's or which Cooper's words these eating metaphors. This is not Mr. Cooper who's talking at length about these things that's not him. You can watch the tapes you can let's see what transcripts are. Mizaki understand admitted that he only paid Mr. Cooper for legitimate work performed. He admitted that Cooper never asked Mizaki for a bride. He admitted that he had never been approached by Mr. Cooper. On paper you can hear him Mr. Cooper say after he's offered cash by Mizaki would you rather have cash or check? He doesn't make a difference. On the check that Mr. Cooper writes some society repayment of cash loan. There is no there's nothing in this record I submit that rise to level that supports the existence of an agreement on the part of Mr. Cooper to do something unlawful. And this is proof page 37 of the government's brief you take a look at it see where they want one defend it in with the other and it's not right it's not right. They deserve separate treatment the judge instructed the jury is to that and I submit you based upon what the judge had examined that the way that the court should have come out was that Mr. Cooper was in fact entitled to a new trial or was entitled to a judgment of Quill. Thank you very much your honor

. Thank you. And we thank both counsel for the case it was very well argued and we take this matter under the law. You Yo