Legal Case Summary

The Gilmore and Mr. Harville will have him here. May it please the Court. My name is Douglas Larkovil and I have the privilege of arguing today on behalf of Arthur Gilmore in the United States versus Arthur Gilmore. Mr. Gilmore is a former member of the City Council of the City of Monroe, a position that he served in for the relevant time from approximately 2006 to 2009. We are here today because of a conviction of Mr. Gilmore of racketeering using his position as a city councilman according to the government for corrupt purposes. The government presented four charges to the jury alleging that Mr. Gilmore had engaging corruption and his dealings with Eddie Hakeem, a very sophisticated businessman from the City of Monroe who had a national, international business and was also a large investor in property in the Monroe area. The two acts that Mr. Gilmore was convicted of occurred from February 14th to March 27th of 2008, allegedly and allegedly from August 25th, August 28th, 2009. These two acts were a year apart and involved two disparate dealings that presents one problem to the government. In the United States versus Nieto, this Court had 721 F-3rd, 357. In 2013, noted what has always been known, there must be at least two acts. Father and US versus Bustamonte, Bustamonte 45 F-3rd, 933, this Court said that not only must they be related, there must be a threat of continuing activity. The evidence in this case showed that the only threat of continuing activity for this was the action of the government, not the action of my client, Mr. Gilmore. You look at these two acts, they're over a year apart. When the government had originally charged Mr. Gilmore, there were four acts, two of which he was acquitted of. The first is one before your honors, Rectoring Act No. 2, which occurred from February 14th, 2008 to March 27th, 2008. The second of which he was acquitted was Rectoring Act No. 3, which occurred from April 2nd, 2008 to March 2nd, 2009. The fifth of Rectoring Act of which Mr. Gilmore was also acquitted, allegedly occurred on July 1st of 2008. The final Rectoring Act, Rectoring Act 8, again, is what is before your honors, occurred August 25th, August 29th, 2009. In its pleading, the government made a very good case for a continuing related, ongoing source of robbery between, interracuturing between my client and Mr. Hakeem. Unfortunately, that's not what the evidence brought out

. You had the jury acquitting Mr. Gilmore on 50% of the charges, leaving only to you the bare minimum to hold his conviction. This presents a problem for the government. What was that first act that he was convicted of? On February 14th, to March 27th, 2008, Mr. Hakeem and my client, Mr. Gilmore, allegedly, were working together and there was a bribery that allegedly occurred of $1,000 being passed from Mr. Hakeem to my client. There's a problem with that, though. And that problem comes directly from the testimony of the agent in this case. When asked about how did this $1,000 bribe allegedly occur? Agent Jared Maderas testified, quote, that the bribe was, quote, the FBI's idea, end quote. Was this the one that was supposedly a campaign contribution? It was. It is one that's a campaign contribution. That was never reported as a campaign contribution. That is correct. It was never reported as a campaign contribution. It was also above the maximum level that you would have to have some writing on it. The problem is that it may well be a campaign violation. But what it doesn't show is it was something that was given because Mr. Hakeem wanted to give it, something that was taken because my client wanted to take it. It was as Mr. as Agent Maderas stated, the FBI's idea for Hakeem to bring $1,000 with the campaign and at the end of the meeting to give it to Mr. Gilmore. So the government's plan here, and it was solely the government's plan, was here. Take $1,000 at the end of the meeting, give it to him. Well you're meeting with the city councilman. What are you going to discuss? You're going to discuss city business. You're going to do what every person does who supports a political candidate, whether it be a sign in their yard, whether it be a donation, whether it be a meeting with a- If it had been reported, would he have been convicted or charged? I believe that if it had been reported, that would have not- he would not have made a campaign violation, but I think it would still be something that if the jury believed it and if there were a base support, he could still be convicted for it. It's not whether or not he reported it. It's the purpose of why he took it that makes it a rico crime. It's the corrupting of the process

. It lends more credence to the rico claim than it was at reported. It certainly is not a good thing, yes, yes, Shanaan, it does. It would be a piece of evidence that the jury could consider. And deciding, well, listen, if he would have reported it, we would believe you, we believe it was just a simple contribution. My point was the government didn't have control over whether it was reported or not. That is true. The government did not have permission over that, but if he had taken that $1,000 as a bribe, even if he had reported it, it wouldn't undo the fact that it was a bribe. And I think the opposite is true, just because he didn't report it, just because he made a violation of campaign contribution disclosure laws does not mean that he had the intent to commit that crime or that it involved a corruption of the public office. And again, if you look at that and you look through this conversation, what's really interesting about the conversation they have, the phone call that precedes this, there's no mention of code words. The government in its brief says, well, they were using code words during the conversation. They don't point to it. Mr. Hakeem, the government's only witness to support the corruption allegations, doesn't say they use the code word. That's something that the government makes up. There's no proof for it. What's even better and what's even more telling and more telling than the fact that this campaign contribution wasn't reported properly, what's more telling is during this conversation in which Mr. Hakeem has been told at the end of it, no matter what said, give him $1,000. Mr. Hakeem asks Mr. Gilmore and the conversation goes to the printing press and Mr. Hakeem had a printing business. And Mr. Gilmore says, oh, I paid for everything. Mr. Hakeem says, oh, what, why'd you pay for everything? I always give you a discount. And Mr. Gilmore says, no, I paid for it. You have there something that shows Mr. Gilmore's true intention, it's true conduct throughout this entire case. He wasn't looking for something from Mr

. Hakeem. He wasn't looking for that free deal. He paid for the printing. He could have done that if he wanted to take advantage of Mr. Hakeem. He did not. You have the government setting up something. This conversation could have been about baseball. It could have been about soccer. It could have been about city business. Did not matter. The government wanted to make sure that fund would change hands. Now, even if you can find that the government, even though Agent Maderas told it admits it's a government's idea for this L.A.s. broad to go, even if you're on this fund that's sufficient to prove against my insufficiency of evidence argument with lecturing act 2 was established. Then you have lecturing act 8. And there's no way that the government can get around lecturing act number 8. That include that revolved around my client doing what he was doing the entire time in this, which is trying to serve the constituents in the city of Monroe. They went to Mr. Hakeem and asked for $207 to assist a local constituent whose electricity was going to be cut off. He asked not for money so that he could put it under the table, not for money so that he could not report it. He asked for a check made payable to the local utility provider. This presented a problem. The government searched Mr. Hakeem every time before he went to a meeting and removed any money or any other forms of payment that Mr. Hakeem had and gave him only government money. Mr. Gilmore needed to help this constituent and he asked repeatedly, I want a check made payable to the lecher company. Mr

. Hakeem testified that trial. I couldn't do that because I couldn't give him a check from the FBI and say here's a check from the FBI and from the government pay your constituent because it would have blown his attempt to set up Mr. Gilmore. So he tells Mr. Gilmore it's got to be cash. Mr. Gilmore tries to get the check, got to be cash. Mr. Gilmore is a public servant. He's faced with a choice. I can either take the cash and save my constituent, which is what I want to do. Or I can say no, it has to be a check. So he took the cash. But again, this is not something that... Mr. Rackertio that he paid the bill? It does not, Your Honor. But it does not. It does not, Your Honor. But importantly though, and being the... Mr. Rackertio that he did not pay the bill. It does not, Your Honor. And there was no evidence. And that's an interesting fact and interesting flaw in the government's case. This was supposed to be.

.. Mr. Keem comes into the... into the... Louisiana State Police Office saying that there's corruption in the city of Monroe. They don't necessarily believe him. They have to build evidence. Agent Madera says that. That's the reason why in December of 2007, they fitted Mr. Keem up with a wire. That's why they sent him after these public officials. From 2007 to 2009, there are two racketeering activities that are approved. That's it. Mr. Keem said, oh, I always had to rob. I always had to do it. But if you look at the record, there's just no evidence of that. I think one of the things that is bad, very bad for the government's case, you could have a plea. There was some corruption. And that corruption was on the part of another city councilman. That city councilman, who pled guilty in this interrelated case, was not called to testify in this matter. The person who could have said that Mr. Keem was telling the truth that there was corruption in the city, never came to testify. That's the problem with Mr. Keem's testimony and with the government's insufficient proof here. You have inference, but you do not have proof

. And the government could have brought that forward they did not. And looking for the name of the government witness. How does this translate the error? I'm sorry? The narrative you're giving us, but what precisely was the error? The error was in affirming the jury's verdict and not granting the motion for directed. Incipitants of the Evans? Incipitants of the Evans Journal because there is no proof that these were bribed. If you look to what the government said they were bribes for, there has to be an important fact that something that was being sold after. That's like the $207.00, the wine and jury entitled has concluded that that was a bribe and it was paid in cash. And there's no evidence, the record is that he in fact ever paid the bill, I would think that... Well, there was a circumstance that the government says this is a bribe and he has the $307.00 if you had in fact used it. For that purpose, I think that you would see some evidence in the record, wouldn't you? If you knew that the bill was never paid but the government doesn't make that allegation, the government... Why is it not a bribe even if he's listed in money to pay someone a constituents bill? Well, because why is it not a bribe because he's trying to stay in good with his constituency? Well, if you look on interest... The reason why so the rub is this. If you look back at the $1,000, the conversation that goes on there, all that is asked for is that Mr. King asked Mr. Goodwin. Or, give me a fair shake, do something for me. He doesn't say give me an advantage. He doesn't say do something outside the law. He says, do me, give me a fair shake, do something for me. That's what anybody approaching a politician says. That's not unjust or incorrect. The same thing with the payment. It's not incorrect to ask someone

... I thought there was a specific vote discussed. I'm sorry? I thought there was a specific vote discussed. They talk about a couple of things. They talk about the Tower of Armand rezoning, which is ordinance 10, 9, 9, 5. This also shows why it's not a bribe, as does the ordinance that was involved in the other, which is 10, 9, 5, 1, which involved the settling of a lawsuit. If you look at the Tower of Armand property... There is a very specific discussion, and I recall about that success before the council, and about what needed in terms of votes on the council and their prior success. Almost all of that conversation is by Mr. Hakeem. And if you look at this, both 10, 9, 9, 5 and 10, 9, 5, 1 were supported by Ben Cots, who is the City Councilman for Mr. Hakeem. The evidence that was established at Trial showed if you have the support of your councilman in your district, it's not going to be voted against. And if you look at the voting records, Mr. King testified that there were 12 votes he had before the City Council. Of those 12 votes, he had five people voting in each one. He had one negative vote against him in all 12 of those votes. He had a 98.3 success rate. The purpose for this alleged bribery, the proof of this alleged bribery, is that he would never have the support of Mr. Johnson, who was another City Councilman. At most, Mr. Johnson voted against him once in 12 times. Red Stevenson, the other person who could have played guilty, also. Has that level of success on the council votes? Why has he given the guy free meals? Why has he been paying the hotel bills? He's paying free hotels? Why is he paying his way to Washington, the conferences, etc.? He's got a 90 when he's got all the votes he's pocket otherwise. I think he's doing it exactly

. He's doing what everyone does. He supports politicians. He's wanting and dining him. He is not doing anything wrong. There's no showing that there was anything improper done. He's just wanting and dining. And he didn't have to have that. Mr. Arville, you've saved him time for a battle and you can chill out, bring these subjects up in the rebuttal if you wish. Thank you, Mr. Manky. May I please the court? I will confine my argument unless the members of the court have questions that are to the other points raised on appeal. I have a question for you. The council office didn't argue, but why wasn't the jury instructed on entrapment? Are you asking why the district court declined to give the instruction? Well, that, Your Honor, is not terribly clear because the charge conference was not recorded and thus it's not part of the record. I can tell you that at some point the jury was not initially instructed on entrapment obviously. It's not clear why. You're saying that the defendant didn't request it? Yes, Your Honor, he did request it in writing. And that's clear in the record. Not in the charge. It was not given in the initial charge. As a point preserved, I'm saying that he requested it is not there why can he argue? If he will argue it, you don't say in your briefs that it's not argued. It's the way of doing it. No. And because what happens is... Why wasn't the charge given then? Defensively, why wouldn't on these facts you have a sufficient to ask the jury to entrapment? The question of predisposition and the usual charge? The best indication we have in the record of why it wasn't given is that the district court didn't believe the defendant had satisfied both the inducement and... I'm saying that

. I absolutely didn't think he ought to give it. But my question is why was that not error? When I listen to the argument itself, that's being put into government theory, you are the guy. You go after him, you give him the cash, you do all those, and your argument is why we were just simply doing the... We were giving him the opportunity to do so. Now you have evidence here that he was had cash and the man wanted a check and he went back. That's evidence that strongly suggests that the jury ought to be asked the question and he's entitled to have the jury to understand that he's not... If he's entraped, he can walk out of there. Well, of course there are two aspects of entrapment, inducement and predisposition. And predisposition, of course, goes to who... The lady at consul, they do substantially overlap. The situation here that I think makes this case very different, from the handful of post-Mathius cases in which this court has found that the District Court aired by not giving an entrapment instruction, is that there is very little evidence that the jury could have relied on to find entrapment, for example. In two of the big cases in which an entrapment instruction should... Well... If there's some, you ought to get the check. No, you ought to. I would disagree with that because in Theogen, which is one of the cases in which this court found the District Court aired, this court says that the defendant's story was, quote, plausible enough to go to the jury, which suggests that we've gotten away from that mere centilla test that we used to use before the Supreme Court decided Mathius. I'm not suggesting that. I wouldn't suggest an mere centilla. Be able to the concrete terms of this case, as just described. Do you disagree that you had the man had cash only? And you have the subject here saying, I want to check, payable to the utility company for $207

. He said, it's got to be cash. Well, as Judge Jolly points out, it's still a bribe. It doesn't matter to whom the money benefits. It's still a bribe. So, I would suggest that that doesn't undercut the fact that there's some sort of something for something required. It does bolst of the fact that here's a man that has no, as I understand it, and you can correct me if I'm wrong. He had no, there was no established predisposition to commit bribe until this one individual comes to the FBI and says that he is tired of having to pay this older one or councilman off for all these favors. And as I understand it further, is that no investigation was done with respect to the reliability of this witness, and that the record doesn't indicate any, and that it was solely on the basis of that one witness that they initiated the investigation. A couple of responses to that, Your Honor, first. You know, it's clear that predisposition can be established not just by evidence of what happens before the government's agent gets involved. You can also look at what happens in the context of the transactions. So, in this particular case, and in other cases, one of the things this court's looked at, as sight many of them in the brief Nelson Ogle, is once the idea is out there, how enthusiastic or, how comfortable is the defendant engaging in these conversations. So, you know, for example, if you look... When you send the agent, when you wire the agent, you send him in there. Those agents are at this FBI? Yes, Your Honor. When they go in, they know very well what the law rules are on entrapment. They're instructed very carefully to give them, make it the opportunity. Don't kill our case by going in there, and in fact, make the bribe of whatever produced the money, make him ask for it, make that case, and just give him the opportunity. That's all we can do here. You're not going to tell me that one, the operating principles on which your agent moved. Certainly, and the agent was asked, did you instruct him not to entrap anybody, and his answer was, yes, he didn't really explain what he understood that to mean, but he was asked that question, and he did answer it. That's a standard routine practice. Sure. Everybody's very keenly aware of when they're going to tape the guy, and the hey, come now, is your guy, is your agent, is a government agent, and this is a conversation. I'm not suggesting that it's coming on the strength of your case and sufficient to the evidence, but I am troubled by not giving the guy a fair up to him, let the jury decide this. I don't know the trial judge. I mean, that's a very heavy thing to do. I'm just not going to instruct on it. Let the jury decide if they haven't said it. Well, you took that chance. The government didn't want him to give that instruction. That's correct, John. If you're given the instruction, you've gotten the conviction you wouldn't have this problem. The government did a part. Why didn't you want him to give the instruction? Again, you have to look at what was presented. I'm trying to answer your question. The defendant never testifies in this case. And so, you've got the government's informant testifying in some detail about bribes that were paid that were requested long before he became a government agent. So, Mr. Haycomb, I think that's how he pronounces his name. Mr. Haycomb goes to the FBI after he's already been paying bribes to Mr. Gilmore and to Mr. Stevens, the co-defendant, for some period of time. Now, when they begin actually having their conversations... But I read that he had in the past...he had...he owned some hotels and he had picked up the hotel room with whatever and meals from time to time. And Cash? And Cash. There was testimony that when Mr. Gilmore would take trips like to go to the Washington, Mardi Gras, he would come to him and he would get money. And this is the point I was trying to make a little bit earlier

. Let the jury decide if they haven't said it. Well, you took that chance. The government didn't want him to give that instruction. That's correct, John. If you're given the instruction, you've gotten the conviction you wouldn't have this problem. The government did a part. Why didn't you want him to give the instruction? Again, you have to look at what was presented. I'm trying to answer your question. The defendant never testifies in this case. And so, you've got the government's informant testifying in some detail about bribes that were paid that were requested long before he became a government agent. So, Mr. Haycomb, I think that's how he pronounces his name. Mr. Haycomb goes to the FBI after he's already been paying bribes to Mr. Gilmore and to Mr. Stevens, the co-defendant, for some period of time. Now, when they begin actually having their conversations... But I read that he had in the past...he had...he owned some hotels and he had picked up the hotel room with whatever and meals from time to time. And Cash? And Cash. There was testimony that when Mr. Gilmore would take trips like to go to the Washington, Mardi Gras, he would come to him and he would get money. And this is the point I was trying to make a little bit earlier. It's just the evidence that he, that the witness told the FBI and the FBI say to him, well, let's have some documentation of that and let's confirm that this is going on. Because I don't know you, Mr. Haycomb, or whoever you are, you could be trying to set this man up. I don't know. Did you, in fact, pay for these things? Is he inclined to take bribes? Show me. None of that is in the record at all. It's not. And I think Mr. Haycomb was brought on to examine generally on, do you have any evidence? Do you have any records or any documents to substantiate this? And in some instances he said, oh yes, that would be...I would have that... Is it on the witness stand or is this... Yes. Well, I'm talking about... Before. I'm talking about the FBI and predisposition to commit the crime and how they established that. And then how they made the offer...what was the initial offer that was made by the CIA, the confidential informer? The offer to him, Your Honor. To the..

. It's just the evidence that he, that the witness told the FBI and the FBI say to him, well, let's have some documentation of that and let's confirm that this is going on. Because I don't know you, Mr. Haycomb, or whoever you are, you could be trying to set this man up. I don't know. Did you, in fact, pay for these things? Is he inclined to take bribes? Show me. None of that is in the record at all. It's not. And I think Mr. Haycomb was brought on to examine generally on, do you have any evidence? Do you have any records or any documents to substantiate this? And in some instances he said, oh yes, that would be...I would have that... Is it on the witness stand or is this... Yes. Well, I'm talking about... Before. I'm talking about the FBI and predisposition to commit the crime and how they established that. And then how they made the offer...what was the initial offer that was made by the CIA, the confidential informer? The offer to him, Your Honor. To the... The offer of satiation. What did he say? No. What did he say when he first made the offer of a bribe? In which instance? When he was in a under-while. In which instance? Either one? Either one. Okay. Well, I mean, the first instance, what did he first say to the man? You mean before he was even a government agent? No. Why did he was wide? Why did he was wide? Okay. After he was wide. Right. What was the first encounter that he had with the defendant and how did he approach the subject of robbery? That would be racketeering act number two. And the first event that we have in that chain, that series of events, is a phone call from Mr. Gilmore, from the defendant to the informant, saying, Eddie, please call me back. And then some amount of time passes. I think it's a couple of few weeks. And Mr. Hakeham explains in the recorded conversation, I'm sorry, it took me so long to get back to you, I've been traveling a lot. And maybe that was right, maybe wasn't. But that's what he says, and that's what the record reflects. Then Mr. Hakeham, they engage in a conversation about how did the campaign go and, you know, did you, how's everything going with the city council? And then Mr. Gilmore says, I spent a lot of money at your printing company summit. And I'm paraphrasing all of this, but it's of course stolen the record. There's a tape and there's a transcript. And Mr. Hakeham says, yeah, we took care of you at my printing company, didn't we? And Mr. Gilmore says, nope, he says, I paid for all of it. And then Mr. Hakeham says, what you paid for it? Why don't you give me a call? You know how this works. And Mr. Gilmore doesn't say, well no, it works that I always pay for it

. The offer of satiation. What did he say? No. What did he say when he first made the offer of a bribe? In which instance? When he was in a under-while. In which instance? Either one? Either one. Okay. Well, I mean, the first instance, what did he first say to the man? You mean before he was even a government agent? No. Why did he was wide? Why did he was wide? Okay. After he was wide. Right. What was the first encounter that he had with the defendant and how did he approach the subject of robbery? That would be racketeering act number two. And the first event that we have in that chain, that series of events, is a phone call from Mr. Gilmore, from the defendant to the informant, saying, Eddie, please call me back. And then some amount of time passes. I think it's a couple of few weeks. And Mr. Hakeham explains in the recorded conversation, I'm sorry, it took me so long to get back to you, I've been traveling a lot. And maybe that was right, maybe wasn't. But that's what he says, and that's what the record reflects. Then Mr. Hakeham, they engage in a conversation about how did the campaign go and, you know, did you, how's everything going with the city council? And then Mr. Gilmore says, I spent a lot of money at your printing company summit. And I'm paraphrasing all of this, but it's of course stolen the record. There's a tape and there's a transcript. And Mr. Hakeham says, yeah, we took care of you at my printing company, didn't we? And Mr. Gilmore says, nope, he says, I paid for all of it. And then Mr. Hakeham says, what you paid for it? Why don't you give me a call? You know how this works. And Mr. Gilmore doesn't say, well no, it works that I always pay for it. He says, I'm saving you for something bigger. That was a conversation that takes place on March 26th. That's government exhibit 19 and 19 T is the transcript. So towards the end of that conversation, Hakeham says, you know, I'm really going to need your help on a couple things. And he mentions a couple different projects. Can we have lunch? And Gilmore says, absolutely. And then he says, I've got extra to do with the end of the week. How about tomorrow? So they decide on having lunch the next day. That's government exhibit 20, the transcript is government exhibit 20 T. Now in the content, and you have to remember, of course, the trial evidence says, Hakeham has testified that he's been paying, he's been giving free meals, free rooms, he's been paying cash for a long period of time. So it's not like this is the first time this has ever happened between these two men. So they sit down at a meal. They obviously know each other very well. This is not, you know, a lot of these stings involve the deal. Okay, okay, you've answered my question that, which essentially, as you've recited, is no illegal inducement to. That's what I was driving at, so you can move on to your next one. Yeah, so that's correct. And I guess another point I really want to make clear, and I just touched on it a minute ago. And I know the court is concerned about, well, you know, how do we know that Hakeham is telling the truth on all of this? Well, one of the ways Hakeham's testimony about all the prior bribes and breaches. I know we have a jury determined that. Yes, but I think that your question is. The government doesn't want an entrapment instruction. They do it for a reason. And the striking of balance between the risk of error and the win in the case. And if you're in that, and you thought, if the prosecutor didn't think he was worried about an entrapment instruction going to jury, he would have been in there telling the judge that sorting the jury together. Not urging the judge to don't give an entrapment instruction. In fact, as I have been in the United States, he's trying to give, please give that instruction. Look, they're not worried about it, and they know it's their comfortable with it. And it's the right thing to do. Well, of course, the jury picks up on entrapment

. He says, I'm saving you for something bigger. That was a conversation that takes place on March 26th. That's government exhibit 19 and 19 T is the transcript. So towards the end of that conversation, Hakeham says, you know, I'm really going to need your help on a couple things. And he mentions a couple different projects. Can we have lunch? And Gilmore says, absolutely. And then he says, I've got extra to do with the end of the week. How about tomorrow? So they decide on having lunch the next day. That's government exhibit 20, the transcript is government exhibit 20 T. Now in the content, and you have to remember, of course, the trial evidence says, Hakeham has testified that he's been paying, he's been giving free meals, free rooms, he's been paying cash for a long period of time. So it's not like this is the first time this has ever happened between these two men. So they sit down at a meal. They obviously know each other very well. This is not, you know, a lot of these stings involve the deal. Okay, okay, you've answered my question that, which essentially, as you've recited, is no illegal inducement to. That's what I was driving at, so you can move on to your next one. Yeah, so that's correct. And I guess another point I really want to make clear, and I just touched on it a minute ago. And I know the court is concerned about, well, you know, how do we know that Hakeham is telling the truth on all of this? Well, one of the ways Hakeham's testimony about all the prior bribes and breaches. I know we have a jury determined that. Yes, but I think that your question is. The government doesn't want an entrapment instruction. They do it for a reason. And the striking of balance between the risk of error and the win in the case. And if you're in that, and you thought, if the prosecutor didn't think he was worried about an entrapment instruction going to jury, he would have been in there telling the judge that sorting the jury together. Not urging the judge to don't give an entrapment instruction. In fact, as I have been in the United States, he's trying to give, please give that instruction. Look, they're not worried about it, and they know it's their comfortable with it. And it's the right thing to do. Well, of course, the jury picks up on entrapment. And I make the suggestion. You have the validation from the court that this is a legal defense. Well, but then, Judge, what happened to me? What happens is the jury picks up on it sends an out to the court during deliberations, saying what is the definition of entrapment. Then there's a... Oh, I forgot about that. Yes. And so then there's a conversation between the judge and the lawyers about, well, what are we going to do about the jury's now. And you're right. The government takes the position. He's not entitled to the instruction. The jury wind up acquitting on several charges. On two racketeering acts, including the one, and this is an important point. What's the point of the court just to make? Now, did the acquittals occur with respect to entrapment issues? Well, my position is that it's not truly an entrapment argument, even on the acquittal count. But that's the count on which he argued entrapment. Okay. Okay. But... You're right. What you're saying, I guess, is yes, he was entitled to an entrapment instruction, because the jury actually found entrapment without an instruction. But we don't know how many acquittals that made the end if they had gotten an accurate instruction on entrapment. Now, what did the jury... what did the judge say when the jury passed the note and says, what is entrapment? Okay. What was the judge's response? What was the conversation with the law? What was the judge's response? All right. The judge, they discussed

. And I make the suggestion. You have the validation from the court that this is a legal defense. Well, but then, Judge, what happened to me? What happens is the jury picks up on it sends an out to the court during deliberations, saying what is the definition of entrapment. Then there's a... Oh, I forgot about that. Yes. And so then there's a conversation between the judge and the lawyers about, well, what are we going to do about the jury's now. And you're right. The government takes the position. He's not entitled to the instruction. The jury wind up acquitting on several charges. On two racketeering acts, including the one, and this is an important point. What's the point of the court just to make? Now, did the acquittals occur with respect to entrapment issues? Well, my position is that it's not truly an entrapment argument, even on the acquittal count. But that's the count on which he argued entrapment. Okay. Okay. But... You're right. What you're saying, I guess, is yes, he was entitled to an entrapment instruction, because the jury actually found entrapment without an instruction. But we don't know how many acquittals that made the end if they had gotten an accurate instruction on entrapment. Now, what did the jury... what did the judge say when the jury passed the note and says, what is entrapment? Okay. What was the judge's response? What was the conversation with the law? What was the judge's response? All right. The judge, they discussed. What do we do? And so they pull up the pattern charge. And the judge elects to give part of the pattern charge on entrapment. He basically gives the part of the pattern charge that defines entrapment, that the law forbids, as a matter of policy, a defendant from being convicted if he's not predisposed and the government puts the intent. Why did the judge decide to parse out the instruction and give on a part of it? The record does not reflect, Your Honor. I'm just sure it is the record reflect that that was in response to the arguments that the government or the defense may have made. In closing argument, you mean? No, no, no, no, no. Are you talking about the argument for the instruction or against the instruction after the jury sent the note in? Yeah, that's what I was saying. The judge says, well, it seems to me maybe he's satisfied inducement. And again, keep in mind, we've got four racketeering acts before the court now. Not just the two that we're here on today. The judge says. The judge says. Who is satisfied? The defendant. Maybe the defendant satisfied the inducement prong. And then he says to government counsel, what do you think about predisposition? Do you think his character evidence is enough to satisfy the predisposition prong enough to send the issue to the jury? And government counsel says, well, no, judge, because you just round up a few people who say you're a good guy and they don't know anything about the case. And that alone is not enough to carry the predisposition prong. And of course, the law in this circuit is you have to satisfy both. So then they sort of get off that topic. What's the value of it if two prongs are required? Why would you instruct the jury that hung the li on one prong? Well, I think that what the record shows is the judge says at the end, after they have all the discussion about we're going to reopen argument, maybe we're not, we're going to do, he says, you know, it seems to me the jury has only asked for a definition of entrapment. And that's what I'm going to give them. So he gives them the part of the instruction, the first two substantive paragraphs that basically define what entrapment is and talk about how the defendant can't be convicted if the intent. Okay, we understand that. Okay. Why, given the fact of a jury's response and given the arguments were made and given the judges all of the concession that the instruction should be given in part, what is your argument that the court did not err when it initially refused to request for the instruction on entrapment? Well, that basically the district court was wrong on finding inducement. And we make that argument on our brief and you're just, I think you just agreed with me that there probably isn't an inducement problem. And then again, that, you know, the defendant didn't testify. So it's, I agreed that you made a case, that your case. Yes. Okay. And so, and then, so, but we basically, just so the court is clear, we basically have two arguments

. What do we do? And so they pull up the pattern charge. And the judge elects to give part of the pattern charge on entrapment. He basically gives the part of the pattern charge that defines entrapment, that the law forbids, as a matter of policy, a defendant from being convicted if he's not predisposed and the government puts the intent. Why did the judge decide to parse out the instruction and give on a part of it? The record does not reflect, Your Honor. I'm just sure it is the record reflect that that was in response to the arguments that the government or the defense may have made. In closing argument, you mean? No, no, no, no, no. Are you talking about the argument for the instruction or against the instruction after the jury sent the note in? Yeah, that's what I was saying. The judge says, well, it seems to me maybe he's satisfied inducement. And again, keep in mind, we've got four racketeering acts before the court now. Not just the two that we're here on today. The judge says. The judge says. Who is satisfied? The defendant. Maybe the defendant satisfied the inducement prong. And then he says to government counsel, what do you think about predisposition? Do you think his character evidence is enough to satisfy the predisposition prong enough to send the issue to the jury? And government counsel says, well, no, judge, because you just round up a few people who say you're a good guy and they don't know anything about the case. And that alone is not enough to carry the predisposition prong. And of course, the law in this circuit is you have to satisfy both. So then they sort of get off that topic. What's the value of it if two prongs are required? Why would you instruct the jury that hung the li on one prong? Well, I think that what the record shows is the judge says at the end, after they have all the discussion about we're going to reopen argument, maybe we're not, we're going to do, he says, you know, it seems to me the jury has only asked for a definition of entrapment. And that's what I'm going to give them. So he gives them the part of the instruction, the first two substantive paragraphs that basically define what entrapment is and talk about how the defendant can't be convicted if the intent. Okay, we understand that. Okay. Why, given the fact of a jury's response and given the arguments were made and given the judges all of the concession that the instruction should be given in part, what is your argument that the court did not err when it initially refused to request for the instruction on entrapment? Well, that basically the district court was wrong on finding inducement. And we make that argument on our brief and you're just, I think you just agreed with me that there probably isn't an inducement problem. And then again, that, you know, the defendant didn't testify. So it's, I agreed that you made a case, that your case. Yes. Okay. And so, and then, so, but we basically, just so the court is clear, we basically have two arguments. One, he's not entitled to it. And two, he got an instruction. And I don't mean to suggest that he got a perfect instruction. It's not really responsive to what, I guess maybe your responsive is, your responsive, the fact that it became a real issue in the course of the jury deliberation. Correct. It does not, in any way, indicate that the judge made it an error when he initially refused to give it. That's what you're saying, I guess. It is our position that the judge was right not to get on this record in light of the fact that, that, you know, basically the defense was, I had no intent at all, meaning I didn't do anything wrong. That doesn't mean the intent was supplied by the government. His defense, particularly, and this is very important. The two racketeering acts for which he was committed or convicted, both of those, his defense was not that he was entrapped, but that he didn't do anything wrong. You just heard his argument. These aren't bribes. That's not entrapment. The entrapment to the extent he argued entrapment. It was on racketeering act three, where he basically said the government concocted this sham on the Shiral's plantation property that Eddie Hacom was never going to develop into a multi-million dollar subdivision. They concocted this sham to quote, trap my client. If you look at the opening statement, if you look at cross examination of Hacom, and if you look at closing argument, the entrapment argument is on racketeering act three for which he was acquitted. So our harmless error argument basically is he got an instruction, though certainly not a perfect one. I think we certainly have your argument, and we will now have a little rebuttal from Mr. Gilmore, please. Judd Chigginbotham, in questioning Councilor government, you said the FBI is well trained. You tell your informants, give the target a chance to make a bribe, give him an opportunity, don't you do it. Agent Maderas testified at trial. The idea for the bribe was the FBI as we supplied the money, the thousand dollars we determined the amount of the bribe, we gave it to him and told him to give it to him at the end. Agent Maderas did everything that your honor recognized a good agent shouldn't do. He didn't create a chance for a bribe. He gave a bribe and told the agent, give it to him at the end of the meeting no matter what, and that's what was done. That's the entrapment, and it's that type of conduct and the use of the sharehoose property. Miss Gilmore wanted a piece of house owned the sharehoose property before she knew Mr

. One, he's not entitled to it. And two, he got an instruction. And I don't mean to suggest that he got a perfect instruction. It's not really responsive to what, I guess maybe your responsive is, your responsive, the fact that it became a real issue in the course of the jury deliberation. Correct. It does not, in any way, indicate that the judge made it an error when he initially refused to give it. That's what you're saying, I guess. It is our position that the judge was right not to get on this record in light of the fact that, that, you know, basically the defense was, I had no intent at all, meaning I didn't do anything wrong. That doesn't mean the intent was supplied by the government. His defense, particularly, and this is very important. The two racketeering acts for which he was committed or convicted, both of those, his defense was not that he was entrapped, but that he didn't do anything wrong. You just heard his argument. These aren't bribes. That's not entrapment. The entrapment to the extent he argued entrapment. It was on racketeering act three, where he basically said the government concocted this sham on the Shiral's plantation property that Eddie Hacom was never going to develop into a multi-million dollar subdivision. They concocted this sham to quote, trap my client. If you look at the opening statement, if you look at cross examination of Hacom, and if you look at closing argument, the entrapment argument is on racketeering act three for which he was acquitted. So our harmless error argument basically is he got an instruction, though certainly not a perfect one. I think we certainly have your argument, and we will now have a little rebuttal from Mr. Gilmore, please. Judd Chigginbotham, in questioning Councilor government, you said the FBI is well trained. You tell your informants, give the target a chance to make a bribe, give him an opportunity, don't you do it. Agent Maderas testified at trial. The idea for the bribe was the FBI as we supplied the money, the thousand dollars we determined the amount of the bribe, we gave it to him and told him to give it to him at the end. Agent Maderas did everything that your honor recognized a good agent shouldn't do. He didn't create a chance for a bribe. He gave a bribe and told the agent, give it to him at the end of the meeting no matter what, and that's what was done. That's the entrapment, and it's that type of conduct and the use of the sharehoose property. Miss Gilmore wanted a piece of house owned the sharehoose property before she knew Mr. Hakem, before this thing started. The government knew that, they seized on it, they got that offer, and that was a racketeering act of which my client was acquitted, because a government used this property that had a dear long standing lead and want for my client to try to entrap him. They went beyond the pill, they did not give an opportunity for a bribe, they did not let my client take the chance to bribe him, they set things up, they tried to induce him. That's why the government conceded that we had the inducement factor enough for a jury charge, that's why he should not have been convicted. Because the government made these things happen, it didn't give a chance for my client to do them. Red Stevens pled guilty to accepting bribes from Mr. Hakem. The government didn't offer his testimony, why wouldn't the government offer his testimony from a co-conspirator, because it wouldn't have implicated my client? The propensity, did my client want to be bribed? Well, you hear about all these continuous calls, my client constantly calling Mr. Hakem saying, give me money, give me seats, give me that. I want this, I want that, Mr. Hakem is giving it to him, according to Mr. Hakem. Two years of recorded conversations, that's not mentioned once. Mr. Hakem didn't get my client to confirm those prior calls, those prior bribes once, didn't do it. You're denying that your client ever had any kind of relationship with Mr. Hakem, and they involved the exchanges of benefits? No, no, no, he did, I'm saying the government never proved the bribery, the elicit nature of it, the wrong nature of it, anything more than you would when doing anybody else. He didn't prove a quid for a quail, or what are you saying? They didn't prove the prior conduct. They're saying Mr. Hakem says my client has propensity to do this, so propensity to engage in bribes, because of all these past wrongdoing, all these past crimes. They didn't offer a single witness who would come up and say that. When you look at this, if you look at the rectory act number two, that's supposed to have to do with the zoning issue at Tower Armand. My client called character witnesses, not character witnesses who had nothing to do about this case or no knowledge of this case. He called this any member of the city zoning administration. She said he had never done anything improper to influence them, therefore, undercutting the government's claims related to rectory act two, they had a propensity to do that. They called the city attorney who said my client had never done anything wrong, had never improperly influence them. That's rectory act number eight, of which my client was convicted. The city attorney who had to have settled this lawsuit, who said, my client never did anything wrong. There are no other instances of bribery, other than these two acts from someone who supposedly was time and again constantly going after it, asking for bribes, asking for improper contributions. There was evidence of it

. Hakem, before this thing started. The government knew that, they seized on it, they got that offer, and that was a racketeering act of which my client was acquitted, because a government used this property that had a dear long standing lead and want for my client to try to entrap him. They went beyond the pill, they did not give an opportunity for a bribe, they did not let my client take the chance to bribe him, they set things up, they tried to induce him. That's why the government conceded that we had the inducement factor enough for a jury charge, that's why he should not have been convicted. Because the government made these things happen, it didn't give a chance for my client to do them. Red Stevens pled guilty to accepting bribes from Mr. Hakem. The government didn't offer his testimony, why wouldn't the government offer his testimony from a co-conspirator, because it wouldn't have implicated my client? The propensity, did my client want to be bribed? Well, you hear about all these continuous calls, my client constantly calling Mr. Hakem saying, give me money, give me seats, give me that. I want this, I want that, Mr. Hakem is giving it to him, according to Mr. Hakem. Two years of recorded conversations, that's not mentioned once. Mr. Hakem didn't get my client to confirm those prior calls, those prior bribes once, didn't do it. You're denying that your client ever had any kind of relationship with Mr. Hakem, and they involved the exchanges of benefits? No, no, no, he did, I'm saying the government never proved the bribery, the elicit nature of it, the wrong nature of it, anything more than you would when doing anybody else. He didn't prove a quid for a quail, or what are you saying? They didn't prove the prior conduct. They're saying Mr. Hakem says my client has propensity to do this, so propensity to engage in bribes, because of all these past wrongdoing, all these past crimes. They didn't offer a single witness who would come up and say that. When you look at this, if you look at the rectory act number two, that's supposed to have to do with the zoning issue at Tower Armand. My client called character witnesses, not character witnesses who had nothing to do about this case or no knowledge of this case. He called this any member of the city zoning administration. She said he had never done anything improper to influence them, therefore, undercutting the government's claims related to rectory act two, they had a propensity to do that. They called the city attorney who said my client had never done anything wrong, had never improperly influence them. That's rectory act number eight, of which my client was convicted. The city attorney who had to have settled this lawsuit, who said, my client never did anything wrong. There are no other instances of bribery, other than these two acts from someone who supposedly was time and again constantly going after it, asking for bribes, asking for improper contributions. There was evidence of it. I mean, I don't think you're not saying your client was innocent as a driven snow. Oh, no, but what I am saying, I am not saying that you're not, but I'm saying the government did not carry its burden of proving or discounting that he had a propensity to do this to engage in this type of conduct. And when you look at the factors that the court looks to to decide if someone is predisposed, you look to a number of factors. Do they have a far criminal history? My client has no far criminal history. Do they have an eagerness to engage in the conduct? They did not. At the very end of a conversation that the FBI set up and said, you will give a thousand dollars at the end of this meeting. That's when it came. My client didn't ask anything before. You have the recorded conversation to listen to. According to the government, his bad act was calling and saying, Eddie, please call me back. That's what the government says establishes predisposition. He didn't have a desire to profit. Rectoring that number eight. He wanted to check. He had no eagerness, no willingness, no desire to get bribed. Okay, Mr. Arville, I think we have your argument. Thank you very much. Thank you very much.

The Gilmore and Mr. Harville will have him here. May it please the Court. My name is Douglas Larkovil and I have the privilege of arguing today on behalf of Arthur Gilmore in the United States versus Arthur Gilmore. Mr. Gilmore is a former member of the City Council of the City of Monroe, a position that he served in for the relevant time from approximately 2006 to 2009. We are here today because of a conviction of Mr. Gilmore of racketeering using his position as a city councilman according to the government for corrupt purposes. The government presented four charges to the jury alleging that Mr. Gilmore had engaging corruption and his dealings with Eddie Hakeem, a very sophisticated businessman from the City of Monroe who had a national, international business and was also a large investor in property in the Monroe area. The two acts that Mr. Gilmore was convicted of occurred from February 14th to March 27th of 2008, allegedly and allegedly from August 25th, August 28th, 2009. These two acts were a year apart and involved two disparate dealings that presents one problem to the government. In the United States versus Nieto, this Court had 721 F-3rd, 357. In 2013, noted what has always been known, there must be at least two acts. Father and US versus Bustamonte, Bustamonte 45 F-3rd, 933, this Court said that not only must they be related, there must be a threat of continuing activity. The evidence in this case showed that the only threat of continuing activity for this was the action of the government, not the action of my client, Mr. Gilmore. You look at these two acts, they're over a year apart. When the government had originally charged Mr. Gilmore, there were four acts, two of which he was acquitted of. The first is one before your honors, Rectoring Act No. 2, which occurred from February 14th, 2008 to March 27th, 2008. The second of which he was acquitted was Rectoring Act No. 3, which occurred from April 2nd, 2008 to March 2nd, 2009. The fifth of Rectoring Act of which Mr. Gilmore was also acquitted, allegedly occurred on July 1st of 2008. The final Rectoring Act, Rectoring Act 8, again, is what is before your honors, occurred August 25th, August 29th, 2009. In its pleading, the government made a very good case for a continuing related, ongoing source of robbery between, interracuturing between my client and Mr. Hakeem. Unfortunately, that's not what the evidence brought out. You had the jury acquitting Mr. Gilmore on 50% of the charges, leaving only to you the bare minimum to hold his conviction. This presents a problem for the government. What was that first act that he was convicted of? On February 14th, to March 27th, 2008, Mr. Hakeem and my client, Mr. Gilmore, allegedly, were working together and there was a bribery that allegedly occurred of $1,000 being passed from Mr. Hakeem to my client. There's a problem with that, though. And that problem comes directly from the testimony of the agent in this case. When asked about how did this $1,000 bribe allegedly occur? Agent Jared Maderas testified, quote, that the bribe was, quote, the FBI's idea, end quote. Was this the one that was supposedly a campaign contribution? It was. It is one that's a campaign contribution. That was never reported as a campaign contribution. That is correct. It was never reported as a campaign contribution. It was also above the maximum level that you would have to have some writing on it. The problem is that it may well be a campaign violation. But what it doesn't show is it was something that was given because Mr. Hakeem wanted to give it, something that was taken because my client wanted to take it. It was as Mr. as Agent Maderas stated, the FBI's idea for Hakeem to bring $1,000 with the campaign and at the end of the meeting to give it to Mr. Gilmore. So the government's plan here, and it was solely the government's plan, was here. Take $1,000 at the end of the meeting, give it to him. Well you're meeting with the city councilman. What are you going to discuss? You're going to discuss city business. You're going to do what every person does who supports a political candidate, whether it be a sign in their yard, whether it be a donation, whether it be a meeting with a- If it had been reported, would he have been convicted or charged? I believe that if it had been reported, that would have not- he would not have made a campaign violation, but I think it would still be something that if the jury believed it and if there were a base support, he could still be convicted for it. It's not whether or not he reported it. It's the purpose of why he took it that makes it a rico crime. It's the corrupting of the process. It lends more credence to the rico claim than it was at reported. It certainly is not a good thing, yes, yes, Shanaan, it does. It would be a piece of evidence that the jury could consider. And deciding, well, listen, if he would have reported it, we would believe you, we believe it was just a simple contribution. My point was the government didn't have control over whether it was reported or not. That is true. The government did not have permission over that, but if he had taken that $1,000 as a bribe, even if he had reported it, it wouldn't undo the fact that it was a bribe. And I think the opposite is true, just because he didn't report it, just because he made a violation of campaign contribution disclosure laws does not mean that he had the intent to commit that crime or that it involved a corruption of the public office. And again, if you look at that and you look through this conversation, what's really interesting about the conversation they have, the phone call that precedes this, there's no mention of code words. The government in its brief says, well, they were using code words during the conversation. They don't point to it. Mr. Hakeem, the government's only witness to support the corruption allegations, doesn't say they use the code word. That's something that the government makes up. There's no proof for it. What's even better and what's even more telling and more telling than the fact that this campaign contribution wasn't reported properly, what's more telling is during this conversation in which Mr. Hakeem has been told at the end of it, no matter what said, give him $1,000. Mr. Hakeem asks Mr. Gilmore and the conversation goes to the printing press and Mr. Hakeem had a printing business. And Mr. Gilmore says, oh, I paid for everything. Mr. Hakeem says, oh, what, why'd you pay for everything? I always give you a discount. And Mr. Gilmore says, no, I paid for it. You have there something that shows Mr. Gilmore's true intention, it's true conduct throughout this entire case. He wasn't looking for something from Mr. Hakeem. He wasn't looking for that free deal. He paid for the printing. He could have done that if he wanted to take advantage of Mr. Hakeem. He did not. You have the government setting up something. This conversation could have been about baseball. It could have been about soccer. It could have been about city business. Did not matter. The government wanted to make sure that fund would change hands. Now, even if you can find that the government, even though Agent Maderas told it admits it's a government's idea for this L.A.s. broad to go, even if you're on this fund that's sufficient to prove against my insufficiency of evidence argument with lecturing act 2 was established. Then you have lecturing act 8. And there's no way that the government can get around lecturing act number 8. That include that revolved around my client doing what he was doing the entire time in this, which is trying to serve the constituents in the city of Monroe. They went to Mr. Hakeem and asked for $207 to assist a local constituent whose electricity was going to be cut off. He asked not for money so that he could put it under the table, not for money so that he could not report it. He asked for a check made payable to the local utility provider. This presented a problem. The government searched Mr. Hakeem every time before he went to a meeting and removed any money or any other forms of payment that Mr. Hakeem had and gave him only government money. Mr. Gilmore needed to help this constituent and he asked repeatedly, I want a check made payable to the lecher company. Mr. Hakeem testified that trial. I couldn't do that because I couldn't give him a check from the FBI and say here's a check from the FBI and from the government pay your constituent because it would have blown his attempt to set up Mr. Gilmore. So he tells Mr. Gilmore it's got to be cash. Mr. Gilmore tries to get the check, got to be cash. Mr. Gilmore is a public servant. He's faced with a choice. I can either take the cash and save my constituent, which is what I want to do. Or I can say no, it has to be a check. So he took the cash. But again, this is not something that... Mr. Rackertio that he paid the bill? It does not, Your Honor. But it does not. It does not, Your Honor. But importantly though, and being the... Mr. Rackertio that he did not pay the bill. It does not, Your Honor. And there was no evidence. And that's an interesting fact and interesting flaw in the government's case. This was supposed to be... Mr. Keem comes into the... into the... Louisiana State Police Office saying that there's corruption in the city of Monroe. They don't necessarily believe him. They have to build evidence. Agent Madera says that. That's the reason why in December of 2007, they fitted Mr. Keem up with a wire. That's why they sent him after these public officials. From 2007 to 2009, there are two racketeering activities that are approved. That's it. Mr. Keem said, oh, I always had to rob. I always had to do it. But if you look at the record, there's just no evidence of that. I think one of the things that is bad, very bad for the government's case, you could have a plea. There was some corruption. And that corruption was on the part of another city councilman. That city councilman, who pled guilty in this interrelated case, was not called to testify in this matter. The person who could have said that Mr. Keem was telling the truth that there was corruption in the city, never came to testify. That's the problem with Mr. Keem's testimony and with the government's insufficient proof here. You have inference, but you do not have proof. And the government could have brought that forward they did not. And looking for the name of the government witness. How does this translate the error? I'm sorry? The narrative you're giving us, but what precisely was the error? The error was in affirming the jury's verdict and not granting the motion for directed. Incipitants of the Evans? Incipitants of the Evans Journal because there is no proof that these were bribed. If you look to what the government said they were bribes for, there has to be an important fact that something that was being sold after. That's like the $207.00, the wine and jury entitled has concluded that that was a bribe and it was paid in cash. And there's no evidence, the record is that he in fact ever paid the bill, I would think that... Well, there was a circumstance that the government says this is a bribe and he has the $307.00 if you had in fact used it. For that purpose, I think that you would see some evidence in the record, wouldn't you? If you knew that the bill was never paid but the government doesn't make that allegation, the government... Why is it not a bribe even if he's listed in money to pay someone a constituents bill? Well, because why is it not a bribe because he's trying to stay in good with his constituency? Well, if you look on interest... The reason why so the rub is this. If you look back at the $1,000, the conversation that goes on there, all that is asked for is that Mr. King asked Mr. Goodwin. Or, give me a fair shake, do something for me. He doesn't say give me an advantage. He doesn't say do something outside the law. He says, do me, give me a fair shake, do something for me. That's what anybody approaching a politician says. That's not unjust or incorrect. The same thing with the payment. It's not incorrect to ask someone... I thought there was a specific vote discussed. I'm sorry? I thought there was a specific vote discussed. They talk about a couple of things. They talk about the Tower of Armand rezoning, which is ordinance 10, 9, 9, 5. This also shows why it's not a bribe, as does the ordinance that was involved in the other, which is 10, 9, 5, 1, which involved the settling of a lawsuit. If you look at the Tower of Armand property... There is a very specific discussion, and I recall about that success before the council, and about what needed in terms of votes on the council and their prior success. Almost all of that conversation is by Mr. Hakeem. And if you look at this, both 10, 9, 9, 5 and 10, 9, 5, 1 were supported by Ben Cots, who is the City Councilman for Mr. Hakeem. The evidence that was established at Trial showed if you have the support of your councilman in your district, it's not going to be voted against. And if you look at the voting records, Mr. King testified that there were 12 votes he had before the City Council. Of those 12 votes, he had five people voting in each one. He had one negative vote against him in all 12 of those votes. He had a 98.3 success rate. The purpose for this alleged bribery, the proof of this alleged bribery, is that he would never have the support of Mr. Johnson, who was another City Councilman. At most, Mr. Johnson voted against him once in 12 times. Red Stevenson, the other person who could have played guilty, also. Has that level of success on the council votes? Why has he given the guy free meals? Why has he been paying the hotel bills? He's paying free hotels? Why is he paying his way to Washington, the conferences, etc.? He's got a 90 when he's got all the votes he's pocket otherwise. I think he's doing it exactly. He's doing what everyone does. He supports politicians. He's wanting and dining him. He is not doing anything wrong. There's no showing that there was anything improper done. He's just wanting and dining. And he didn't have to have that. Mr. Arville, you've saved him time for a battle and you can chill out, bring these subjects up in the rebuttal if you wish. Thank you, Mr. Manky. May I please the court? I will confine my argument unless the members of the court have questions that are to the other points raised on appeal. I have a question for you. The council office didn't argue, but why wasn't the jury instructed on entrapment? Are you asking why the district court declined to give the instruction? Well, that, Your Honor, is not terribly clear because the charge conference was not recorded and thus it's not part of the record. I can tell you that at some point the jury was not initially instructed on entrapment obviously. It's not clear why. You're saying that the defendant didn't request it? Yes, Your Honor, he did request it in writing. And that's clear in the record. Not in the charge. It was not given in the initial charge. As a point preserved, I'm saying that he requested it is not there why can he argue? If he will argue it, you don't say in your briefs that it's not argued. It's the way of doing it. No. And because what happens is... Why wasn't the charge given then? Defensively, why wouldn't on these facts you have a sufficient to ask the jury to entrapment? The question of predisposition and the usual charge? The best indication we have in the record of why it wasn't given is that the district court didn't believe the defendant had satisfied both the inducement and... I'm saying that. I absolutely didn't think he ought to give it. But my question is why was that not error? When I listen to the argument itself, that's being put into government theory, you are the guy. You go after him, you give him the cash, you do all those, and your argument is why we were just simply doing the... We were giving him the opportunity to do so. Now you have evidence here that he was had cash and the man wanted a check and he went back. That's evidence that strongly suggests that the jury ought to be asked the question and he's entitled to have the jury to understand that he's not... If he's entraped, he can walk out of there. Well, of course there are two aspects of entrapment, inducement and predisposition. And predisposition, of course, goes to who... The lady at consul, they do substantially overlap. The situation here that I think makes this case very different, from the handful of post-Mathius cases in which this court has found that the District Court aired by not giving an entrapment instruction, is that there is very little evidence that the jury could have relied on to find entrapment, for example. In two of the big cases in which an entrapment instruction should... Well... If there's some, you ought to get the check. No, you ought to. I would disagree with that because in Theogen, which is one of the cases in which this court found the District Court aired, this court says that the defendant's story was, quote, plausible enough to go to the jury, which suggests that we've gotten away from that mere centilla test that we used to use before the Supreme Court decided Mathius. I'm not suggesting that. I wouldn't suggest an mere centilla. Be able to the concrete terms of this case, as just described. Do you disagree that you had the man had cash only? And you have the subject here saying, I want to check, payable to the utility company for $207. He said, it's got to be cash. Well, as Judge Jolly points out, it's still a bribe. It doesn't matter to whom the money benefits. It's still a bribe. So, I would suggest that that doesn't undercut the fact that there's some sort of something for something required. It does bolst of the fact that here's a man that has no, as I understand it, and you can correct me if I'm wrong. He had no, there was no established predisposition to commit bribe until this one individual comes to the FBI and says that he is tired of having to pay this older one or councilman off for all these favors. And as I understand it further, is that no investigation was done with respect to the reliability of this witness, and that the record doesn't indicate any, and that it was solely on the basis of that one witness that they initiated the investigation. A couple of responses to that, Your Honor, first. You know, it's clear that predisposition can be established not just by evidence of what happens before the government's agent gets involved. You can also look at what happens in the context of the transactions. So, in this particular case, and in other cases, one of the things this court's looked at, as sight many of them in the brief Nelson Ogle, is once the idea is out there, how enthusiastic or, how comfortable is the defendant engaging in these conversations. So, you know, for example, if you look... When you send the agent, when you wire the agent, you send him in there. Those agents are at this FBI? Yes, Your Honor. When they go in, they know very well what the law rules are on entrapment. They're instructed very carefully to give them, make it the opportunity. Don't kill our case by going in there, and in fact, make the bribe of whatever produced the money, make him ask for it, make that case, and just give him the opportunity. That's all we can do here. You're not going to tell me that one, the operating principles on which your agent moved. Certainly, and the agent was asked, did you instruct him not to entrap anybody, and his answer was, yes, he didn't really explain what he understood that to mean, but he was asked that question, and he did answer it. That's a standard routine practice. Sure. Everybody's very keenly aware of when they're going to tape the guy, and the hey, come now, is your guy, is your agent, is a government agent, and this is a conversation. I'm not suggesting that it's coming on the strength of your case and sufficient to the evidence, but I am troubled by not giving the guy a fair up to him, let the jury decide this. I don't know the trial judge. I mean, that's a very heavy thing to do. I'm just not going to instruct on it. Let the jury decide if they haven't said it. Well, you took that chance. The government didn't want him to give that instruction. That's correct, John. If you're given the instruction, you've gotten the conviction you wouldn't have this problem. The government did a part. Why didn't you want him to give the instruction? Again, you have to look at what was presented. I'm trying to answer your question. The defendant never testifies in this case. And so, you've got the government's informant testifying in some detail about bribes that were paid that were requested long before he became a government agent. So, Mr. Haycomb, I think that's how he pronounces his name. Mr. Haycomb goes to the FBI after he's already been paying bribes to Mr. Gilmore and to Mr. Stevens, the co-defendant, for some period of time. Now, when they begin actually having their conversations... But I read that he had in the past...he had...he owned some hotels and he had picked up the hotel room with whatever and meals from time to time. And Cash? And Cash. There was testimony that when Mr. Gilmore would take trips like to go to the Washington, Mardi Gras, he would come to him and he would get money. And this is the point I was trying to make a little bit earlier. It's just the evidence that he, that the witness told the FBI and the FBI say to him, well, let's have some documentation of that and let's confirm that this is going on. Because I don't know you, Mr. Haycomb, or whoever you are, you could be trying to set this man up. I don't know. Did you, in fact, pay for these things? Is he inclined to take bribes? Show me. None of that is in the record at all. It's not. And I think Mr. Haycomb was brought on to examine generally on, do you have any evidence? Do you have any records or any documents to substantiate this? And in some instances he said, oh yes, that would be...I would have that... Is it on the witness stand or is this... Yes. Well, I'm talking about... Before. I'm talking about the FBI and predisposition to commit the crime and how they established that. And then how they made the offer...what was the initial offer that was made by the CIA, the confidential informer? The offer to him, Your Honor. To the... The offer of satiation. What did he say? No. What did he say when he first made the offer of a bribe? In which instance? When he was in a under-while. In which instance? Either one? Either one. Okay. Well, I mean, the first instance, what did he first say to the man? You mean before he was even a government agent? No. Why did he was wide? Why did he was wide? Okay. After he was wide. Right. What was the first encounter that he had with the defendant and how did he approach the subject of robbery? That would be racketeering act number two. And the first event that we have in that chain, that series of events, is a phone call from Mr. Gilmore, from the defendant to the informant, saying, Eddie, please call me back. And then some amount of time passes. I think it's a couple of few weeks. And Mr. Hakeham explains in the recorded conversation, I'm sorry, it took me so long to get back to you, I've been traveling a lot. And maybe that was right, maybe wasn't. But that's what he says, and that's what the record reflects. Then Mr. Hakeham, they engage in a conversation about how did the campaign go and, you know, did you, how's everything going with the city council? And then Mr. Gilmore says, I spent a lot of money at your printing company summit. And I'm paraphrasing all of this, but it's of course stolen the record. There's a tape and there's a transcript. And Mr. Hakeham says, yeah, we took care of you at my printing company, didn't we? And Mr. Gilmore says, nope, he says, I paid for all of it. And then Mr. Hakeham says, what you paid for it? Why don't you give me a call? You know how this works. And Mr. Gilmore doesn't say, well no, it works that I always pay for it. He says, I'm saving you for something bigger. That was a conversation that takes place on March 26th. That's government exhibit 19 and 19 T is the transcript. So towards the end of that conversation, Hakeham says, you know, I'm really going to need your help on a couple things. And he mentions a couple different projects. Can we have lunch? And Gilmore says, absolutely. And then he says, I've got extra to do with the end of the week. How about tomorrow? So they decide on having lunch the next day. That's government exhibit 20, the transcript is government exhibit 20 T. Now in the content, and you have to remember, of course, the trial evidence says, Hakeham has testified that he's been paying, he's been giving free meals, free rooms, he's been paying cash for a long period of time. So it's not like this is the first time this has ever happened between these two men. So they sit down at a meal. They obviously know each other very well. This is not, you know, a lot of these stings involve the deal. Okay, okay, you've answered my question that, which essentially, as you've recited, is no illegal inducement to. That's what I was driving at, so you can move on to your next one. Yeah, so that's correct. And I guess another point I really want to make clear, and I just touched on it a minute ago. And I know the court is concerned about, well, you know, how do we know that Hakeham is telling the truth on all of this? Well, one of the ways Hakeham's testimony about all the prior bribes and breaches. I know we have a jury determined that. Yes, but I think that your question is. The government doesn't want an entrapment instruction. They do it for a reason. And the striking of balance between the risk of error and the win in the case. And if you're in that, and you thought, if the prosecutor didn't think he was worried about an entrapment instruction going to jury, he would have been in there telling the judge that sorting the jury together. Not urging the judge to don't give an entrapment instruction. In fact, as I have been in the United States, he's trying to give, please give that instruction. Look, they're not worried about it, and they know it's their comfortable with it. And it's the right thing to do. Well, of course, the jury picks up on entrapment. And I make the suggestion. You have the validation from the court that this is a legal defense. Well, but then, Judge, what happened to me? What happens is the jury picks up on it sends an out to the court during deliberations, saying what is the definition of entrapment. Then there's a... Oh, I forgot about that. Yes. And so then there's a conversation between the judge and the lawyers about, well, what are we going to do about the jury's now. And you're right. The government takes the position. He's not entitled to the instruction. The jury wind up acquitting on several charges. On two racketeering acts, including the one, and this is an important point. What's the point of the court just to make? Now, did the acquittals occur with respect to entrapment issues? Well, my position is that it's not truly an entrapment argument, even on the acquittal count. But that's the count on which he argued entrapment. Okay. Okay. But... You're right. What you're saying, I guess, is yes, he was entitled to an entrapment instruction, because the jury actually found entrapment without an instruction. But we don't know how many acquittals that made the end if they had gotten an accurate instruction on entrapment. Now, what did the jury... what did the judge say when the jury passed the note and says, what is entrapment? Okay. What was the judge's response? What was the conversation with the law? What was the judge's response? All right. The judge, they discussed. What do we do? And so they pull up the pattern charge. And the judge elects to give part of the pattern charge on entrapment. He basically gives the part of the pattern charge that defines entrapment, that the law forbids, as a matter of policy, a defendant from being convicted if he's not predisposed and the government puts the intent. Why did the judge decide to parse out the instruction and give on a part of it? The record does not reflect, Your Honor. I'm just sure it is the record reflect that that was in response to the arguments that the government or the defense may have made. In closing argument, you mean? No, no, no, no, no. Are you talking about the argument for the instruction or against the instruction after the jury sent the note in? Yeah, that's what I was saying. The judge says, well, it seems to me maybe he's satisfied inducement. And again, keep in mind, we've got four racketeering acts before the court now. Not just the two that we're here on today. The judge says. The judge says. Who is satisfied? The defendant. Maybe the defendant satisfied the inducement prong. And then he says to government counsel, what do you think about predisposition? Do you think his character evidence is enough to satisfy the predisposition prong enough to send the issue to the jury? And government counsel says, well, no, judge, because you just round up a few people who say you're a good guy and they don't know anything about the case. And that alone is not enough to carry the predisposition prong. And of course, the law in this circuit is you have to satisfy both. So then they sort of get off that topic. What's the value of it if two prongs are required? Why would you instruct the jury that hung the li on one prong? Well, I think that what the record shows is the judge says at the end, after they have all the discussion about we're going to reopen argument, maybe we're not, we're going to do, he says, you know, it seems to me the jury has only asked for a definition of entrapment. And that's what I'm going to give them. So he gives them the part of the instruction, the first two substantive paragraphs that basically define what entrapment is and talk about how the defendant can't be convicted if the intent. Okay, we understand that. Okay. Why, given the fact of a jury's response and given the arguments were made and given the judges all of the concession that the instruction should be given in part, what is your argument that the court did not err when it initially refused to request for the instruction on entrapment? Well, that basically the district court was wrong on finding inducement. And we make that argument on our brief and you're just, I think you just agreed with me that there probably isn't an inducement problem. And then again, that, you know, the defendant didn't testify. So it's, I agreed that you made a case, that your case. Yes. Okay. And so, and then, so, but we basically, just so the court is clear, we basically have two arguments. One, he's not entitled to it. And two, he got an instruction. And I don't mean to suggest that he got a perfect instruction. It's not really responsive to what, I guess maybe your responsive is, your responsive, the fact that it became a real issue in the course of the jury deliberation. Correct. It does not, in any way, indicate that the judge made it an error when he initially refused to give it. That's what you're saying, I guess. It is our position that the judge was right not to get on this record in light of the fact that, that, you know, basically the defense was, I had no intent at all, meaning I didn't do anything wrong. That doesn't mean the intent was supplied by the government. His defense, particularly, and this is very important. The two racketeering acts for which he was committed or convicted, both of those, his defense was not that he was entrapped, but that he didn't do anything wrong. You just heard his argument. These aren't bribes. That's not entrapment. The entrapment to the extent he argued entrapment. It was on racketeering act three, where he basically said the government concocted this sham on the Shiral's plantation property that Eddie Hacom was never going to develop into a multi-million dollar subdivision. They concocted this sham to quote, trap my client. If you look at the opening statement, if you look at cross examination of Hacom, and if you look at closing argument, the entrapment argument is on racketeering act three for which he was acquitted. So our harmless error argument basically is he got an instruction, though certainly not a perfect one. I think we certainly have your argument, and we will now have a little rebuttal from Mr. Gilmore, please. Judd Chigginbotham, in questioning Councilor government, you said the FBI is well trained. You tell your informants, give the target a chance to make a bribe, give him an opportunity, don't you do it. Agent Maderas testified at trial. The idea for the bribe was the FBI as we supplied the money, the thousand dollars we determined the amount of the bribe, we gave it to him and told him to give it to him at the end. Agent Maderas did everything that your honor recognized a good agent shouldn't do. He didn't create a chance for a bribe. He gave a bribe and told the agent, give it to him at the end of the meeting no matter what, and that's what was done. That's the entrapment, and it's that type of conduct and the use of the sharehoose property. Miss Gilmore wanted a piece of house owned the sharehoose property before she knew Mr. Hakem, before this thing started. The government knew that, they seized on it, they got that offer, and that was a racketeering act of which my client was acquitted, because a government used this property that had a dear long standing lead and want for my client to try to entrap him. They went beyond the pill, they did not give an opportunity for a bribe, they did not let my client take the chance to bribe him, they set things up, they tried to induce him. That's why the government conceded that we had the inducement factor enough for a jury charge, that's why he should not have been convicted. Because the government made these things happen, it didn't give a chance for my client to do them. Red Stevens pled guilty to accepting bribes from Mr. Hakem. The government didn't offer his testimony, why wouldn't the government offer his testimony from a co-conspirator, because it wouldn't have implicated my client? The propensity, did my client want to be bribed? Well, you hear about all these continuous calls, my client constantly calling Mr. Hakem saying, give me money, give me seats, give me that. I want this, I want that, Mr. Hakem is giving it to him, according to Mr. Hakem. Two years of recorded conversations, that's not mentioned once. Mr. Hakem didn't get my client to confirm those prior calls, those prior bribes once, didn't do it. You're denying that your client ever had any kind of relationship with Mr. Hakem, and they involved the exchanges of benefits? No, no, no, he did, I'm saying the government never proved the bribery, the elicit nature of it, the wrong nature of it, anything more than you would when doing anybody else. He didn't prove a quid for a quail, or what are you saying? They didn't prove the prior conduct. They're saying Mr. Hakem says my client has propensity to do this, so propensity to engage in bribes, because of all these past wrongdoing, all these past crimes. They didn't offer a single witness who would come up and say that. When you look at this, if you look at the rectory act number two, that's supposed to have to do with the zoning issue at Tower Armand. My client called character witnesses, not character witnesses who had nothing to do about this case or no knowledge of this case. He called this any member of the city zoning administration. She said he had never done anything improper to influence them, therefore, undercutting the government's claims related to rectory act two, they had a propensity to do that. They called the city attorney who said my client had never done anything wrong, had never improperly influence them. That's rectory act number eight, of which my client was convicted. The city attorney who had to have settled this lawsuit, who said, my client never did anything wrong. There are no other instances of bribery, other than these two acts from someone who supposedly was time and again constantly going after it, asking for bribes, asking for improper contributions. There was evidence of it. I mean, I don't think you're not saying your client was innocent as a driven snow. Oh, no, but what I am saying, I am not saying that you're not, but I'm saying the government did not carry its burden of proving or discounting that he had a propensity to do this to engage in this type of conduct. And when you look at the factors that the court looks to to decide if someone is predisposed, you look to a number of factors. Do they have a far criminal history? My client has no far criminal history. Do they have an eagerness to engage in the conduct? They did not. At the very end of a conversation that the FBI set up and said, you will give a thousand dollars at the end of this meeting. That's when it came. My client didn't ask anything before. You have the recorded conversation to listen to. According to the government, his bad act was calling and saying, Eddie, please call me back. That's what the government says establishes predisposition. He didn't have a desire to profit. Rectoring that number eight. He wanted to check. He had no eagerness, no willingness, no desire to get bribed. Okay, Mr. Arville, I think we have your argument. Thank you very much. Thank you very much