Then later a look into how facial recognition technologies are being used identify people come into the u. S. But first the Supreme Court oral argument kelly versus the u. S. With her argument in case 181059. Mr. Roth. Mr. Chief justice, and may it please the court. Once again the government is trying to use the open ended federal fraud statutes to enforce honest government at the state and local levels. Its through this time is that the defense is committed property fraud by reallocating two two traffic lanes from one public road to another without disclosing their real political reason for doing so. This theory terms of the integrity of every official action at every level of government into a potential federal fraud investigation. It in runts mcnally and skilling by subsuming on the Services Fraud within property fraud and by criminalizing ulterior motives even without brides or kickbacks. It would, in fact, a sweeping expansion of federal criminal jurisdiction into a a particuly fraught area. This is not the law. This court in cleveland held that Regulatory Authority is not property so and an official induces a sovereign decision to defeat has not obtained property by fraud. Only when official lies to divert state resources to private use has he stepped outside the regulatory realm and committed property fraud. This rule distinguishes property fraud from of the fraud and from routine political conduct. Because the defendants simply reallocating the traffic lanes from one public use used to an, the Port Authority at most was the pride of regulatory control, not property. Thats true regardless of whether as the government alleges the defendants lacked the authority in some sense to order the realignment. Mr. Levy will explain what the government is wrong to say that its ultimately legally irrelevant because the fraud statute should not prohibit lying to take unauthorized state action. They prohibit line to obtain property and that simply is not what occurred in this case. You have said that if the resources were diverted to private use, then the prosecution would be okay. Why isnt it private used to benefit defendants politically . Your honor, try distinguish the use of the property from the motive for the decision. So here the decision was to realign the lanes from one set of public drivers to another set of public drivers. Both are public uses of the lanes. Its true the motive, the alleged motive for the regulatory decision was improper. It was political, right . Thats the allegation. That doesnt mean that the use of the lanes was private. Your honor, the typical case in which the government has prosecuted property fraud against a public official is where the official lies to take property from the government for his own use. So a situation where you lie on your expense report and you say you incurred this expense for business reasons and you did not. In that situation you are lying and you are taking the property away from the government for yourself. That is obtaining property. Hear what the defendants influenced through their deceit was the decision about the alignment of the lanes. And if theres anything that is regulatory in nature so on that theory would it or would it not make a difference if the defendants, rather than doing everything that they did for a political reason, if they had done it to make their commute easier or their families commute easier, so it wasnt anything about politics, it was the own personal interests, but it did exactly the same things, is that covered or is that not covered on your theory . That is certainly not property fraud. The officials even in that case have not obtained property by fraud. Are not making a distinction between private uses and public uses . Private purposes and Public Purposes may be . Im not making a distinction between the type of purpose. What im trying to distinguish is the use of the property and is it a regulatory decision to realign the lanes for whatever purpose . If what we are concerned about is the integrity of the purpose behind the decision, that really sounds in honest Services Fraud, right . What were concerned about is not the government being cheated out of property that it has or that it owns. What were concerned about is the good fate of the official in making the decision. That can be hard line to draw. If the rerouting of the traffic is done for the commercial benefit of the individual in whatever way, that would be a violation, right . Your honor, if it would hes got the development or something, hes building a hotel in fort lee, and he wants the traffic redirected there or directed away from, whichever because he thinks it will increase business at his hotel. Tragic if the court would consider that a a kickback, thn that would be honest Services Fraud. It would not be property fraud because again the decision is i decision about allocating scarce Public Resources among public uses. The concern in your hypothetical is was it a good reason . Was it to benefit the public or to benefit himself . What this court said in skilling is if you make the decision because you were paid a bribe or because you will be getting a kickback, that is a violation of your Honest Services, your duty to provide Audit Services to the public. What we are doing here is interpreting a statute, and its not quite clear to me how your argument fits into the language of this statute. Money is property, and money was lost. So how does this fit into the language of the mail fraud statute, the wire fraud statute . The relevant word is property and the second relevant word is obtained. This court in cleveland explained that when the government is making sovereign decisions in its capacity as sovereign, implicate its regulatory interests, that is not property within the meeting that compass had when it enacted was there a loss of in cleveland . Its not clear if those lost property. I would say there was an official in the case was processing the fraudulent application. If yet not been given the fraudulent application to process he wouldve been doing useful work for the agency. Maybe he wouldve gone home an hour earlier and the date of the list. I dont think any of that wouldve mattered to the result in cleveland because all of that but still how does that fit in the statute . Is it that probably isnt acting when it is simply wasted . Is it a gloss on the word defraud . I think it is two steps. First up is to establish that the decision, the realignment, is not property because thats control. That is regulatory power. The second step is to say what about the costs of implementing it . I i would say the cost of implementing that regulatory decision are part and parcel of it and its, this scheme is not to obtain the property. The purpose of this scheme, the object of this scheme is to affect this policy decision, this regulatory decision, in the way that the officials want. So in the case of sending city snowplows to clear your own house first or sending city maintenance people to paint your own house, if youre a public official, i was under the impression that you thought that that would be a crime. Is that right . If you are sending the Public Employees to do private work, yes, absolutely. Thats not regulatory. At that point youre just taking the City Property and using it for private use, which is not you are obtaining property. So even though both are diversions of city resources or state resources, whatever it is, its just one is regulatory and what is not because one involves personal benefit . Personal use. Every regulatory decision diverts resources in some way. Every time a public official makes a decision, there are implications for the bureaucracy and the implications for public property. So there is the version going on and maybe the decision was made for a bad reason and if its a bad enough reason, maybe its an Honest Services violation. Is your theory that the word updating is what does the work in response to the hypothetical . I think its obtaining property together. I dont think necessarily its one or the other. Cleveland focused on property and what did congressman winterset property. It said we are concerned with cheating people out of the property rights. You can do that with a government entity. You can sheet the government out of its property. Ask when tina is example of that where the court said you you of taxes to the government. You lied to avoid paying the taxes. You committed property property fraud. You all a toll and you lied to evade paying a toll, you have cheated the government out of property that is owed. If what youre doing is making a regulatory decision like allocating Public Resources among public uses, and theres no question that the mainline is a public use just as much as the special access roads are a public use of the property, that is not obtaining property. I can understand the distinction between a regulatory decision and the deprivation of property when the regulatory decision doesnt cause a loss of property, but when the regulatory decision causes a loss of property, i find it more difficult to see the distinctio distinction. Your honor, i think that every regulatory decision is going to have some consequences for Public Employee time, for example, which is the species of property that the company has invoked. Lets take this case, just as an example. The additional money that was spent was the toll keeper. The toll keeper had to do an additional shift but the toll keeper was doing her job of collecting tolls for the public. The Port Authority was not deprived of her salad. She was earning her salary. The objection is if this regulatory decision had not been made, we would not have had to hire that toll keeper for that work. Right. Ill try this one last time. Tell me how this fits when we write the opinion and if we were to write one in your favor, how would we explain your result within the language of the statute . I think the court would say the statute prohibits schemes to obtain property when you are using deceit to influence a regulatory decision, to change a regulatory decision, that is not obtaining property. And in the corollary, thats important, is the cause of implementing a regulatory decision dont change the result. I think ill try mine once more, mr. Roth. Why when a public official says to a city Maintenance Worker, you should paint my house before you do anything else, why isnt that similarly an allocation of resources . Because its not the job of government it benefits me but i get to sin, whether its painting or snowplows, you go plow my street first why isnt that an allocation of city resources . Let me try to clarify because i may have led to some confusion. If you are plowing public roads and you say i want to plow my street first or my neighborhood first, that is not obtaining property by fraud because that is an allocation of resources to a public use. Its a public use that happens to benefit you and baby that was your motive and thats very bad, but its not obtaining property by fraud. If you instead trick the Public Employees not into plowing the public road but into plowing your private driveway, which is not the job of the government, thats not what the government does, the government is concerned with public property and clary public property. If you trick the employees into plowing your private driveway, then you have taken their services for your personal use, which is fundamentally different. Thats no different from saying i worked overtime when you didnt. Please pay me my hourly wage for the our time that it didnt work. And that difference is where in the statute . The difference is in this scheme to obtain property. Thats where it is in the statute. We look at what is the object of the scheme. If the object of the scheme is to influence a regulatory decision, its not the scheme to obtain property. That just folsom cleveland. Otherwise every decision that public official makes is on the table and only thing that is separated im sorry, i thought this scheme was to make life difficult for fort lee. If that was the scheme, and you defrauded the use of Government Property to accomplish your goal, why is that any different than taking the Maintenance Worker to plow your road, your private street . Your honor, the difference is that here the alleged purpose, the alleged motive was what your honor said, right, to increase traffic that was the scheme. The scheme was to do that to a regulatory decision, by realigning the lanes from one public use to another public use. What the objection is to the context here is an objection to the purpose, not the objective use of the property. Thats the difference. My problem is, i dont think i can see a headline that would say its okay for officials to use government public money in a way that is plainly an authorized, not just doesnt fit in its motors but in juice, and an official can and should never be liable for that. Our Public Officials now can use Government Resources with their private ends. Not mixed motives, which is the interesting question here with the traffic study, of whether you have enough, whether they have enough evidence that there wasnt a traffic study, but youre saying what the government has said, youre not authorized to do it, theres a question about that. And you didnt have even a mixed motive. You had only a personal motive. So, your honor, ill let mr. Levy speak a little bit more at length about an authorized because the governments there is not the case was that he did have the authority and he abused his power by making the decision. A much more difficult question. Of what i will say is im not trying to suggest this is okay. We dont want Public Officials acting or personal reasons but we dont want them acting necessary for partisan or political reasons. What im saying is a remedy for that is not federal property fraud statutes. We have certainly political remedies that were very much had pretty substantial repercussions. Repercussions. There may also be state law constraints on official abuses of authority. In fact, new jersey has a statute called official misconduct that is specifically directed toward an authorized decisions with bad purposes. Thats not what the federal property fraud statute is concerned with. Federal property fraud statute is concerned with cheating to get out of its property rights. Thats just not what we have. What we have is an abuse of power, a political abuse of power, and if anything again that sounds an honest Services Fraud which this court has limited due to biggest concerns to bribes and kickbacks. Your honor, if there are no further questions, thank you. Thank you, counsel. Mr. Levy. Mr. Chief justice, and may it please the court. A public official who is acting politically and not for personal gain does not commit fraud by lying about his reason for an official decision. If the dish it was generally within his authority. The government disputed that but now urges that as the rule in this court. That concession requires reversal. The government alleged and proved mr. Baroni was that cohead of the Port Authority responsible for supervising all aspects of its operations. The government itself solicited there was never any policy that precluded mr. Baroni from using his Plenary Authority to alter a traffic pattern. For the governments rule to work, this court should require an objectively clear lack of authority, something not arguably show here. Otherwise, any official who conceals his political motivation risks being convicted of fraud if a prosecutor or jury later disagrees about the scope of his authority. If the governments rule is to provide any limits, this case must lie beyond those limits. Id like to begin by discussing what the government alleged, argued, and proved below about mr. Baronis authority before it decided in this court that an official authority is the line between guilt and innocence under the fraud statute. In the District Court the government alleged in the indictment that mr. Baroni was responsible for the general supervision of all aspects of Port Authority visits, including the operations of its transportation facilities. From its main cooperating witness, mr. Wildstein, the government elicited that exact statement precisely, ticking off one of the allegations in the indictment. It elicited a mr. Wildstein that the title deputy executive director was a misnomer, that within the Port Authority structure the deputy executive director and executive director had a 5050 split in terms of power sharing, that the deputy executive director was not the number two position within the Port Authority. Thats from the governments of visiting from its own cooperating witness. The arrangement is always that, theres a new york representative who is the executive director and the new jersey representative who is the deputy, is that right . That was at the time the arrangement. It was always appointed either governor of new jersey for the deputy executive director, and the governor of new york with executive director. It was understood by everyone, all the witnesses the government called testified that that was the arrangement. They called mr. Baronis successor who testified that that was the arrangement, that the one did not report to the other and that this is a bistate agency. Why would new jersey agree to an arrangement like that but its representative is always in the second seat, at least nominally . Just the big brother across the river . I dont know the answer to that except that the structure within the Port Authority was that that was not the case. As it played out they didnt agree to play second fiddle. It was understood within the Port Authority the deputy executive director equal authority. The vicechairman testified about his parallel change of command that were understood. Particularly for decisions made within new jersey, it was understood that that would fall within the deputy executive directors scope of authority. I think one of the governments main arguments on the sufficiency of the evidence, which is fairly progovernment in the situation come was that the wildstein had to lie to the Port Authority employees about executive director knowing about this lane change. If, in fact, the reality of the situation was that mr. Baroni couldnt do this without executive directors acquiescence or acceptance, doesnt that show his lack of authority . Why isnt that sufficient . So two things. First of all i dont believe we are here on a sufficiency ground and for reasons weve argued on a reply brief, but even within that we are not saying that the lie may not be a piece of evidence but even the government concedes in this case that ally does that show a a lack of authority. The government concedes that an authorized official is permitted to lie to their subordinates, and so it cannot be that circularly that lie automatically establishes the lack of authority. Here all of the evidence at trial was that mr. Baroni had Plenary Authority over the operations of the Port Authority. Mr. Wildstein testified, his first answer he was asked why did you come up with this traffic study come his first answer was, for purposes of immediate and for purposes of explaining it to local officials. When pressed by the government, he said, also to give a reason to career officials. The fact that he has to not that he has to, that he chooses to tell a lie to career officials to make this go over more smoothly in the same way that a public official would not tell the world that theyre doing something for a political reason. Would you spend a a moment n the traffic study . Certainly, your honor. The government has conceded that again, this is new in this court, all of these concessions, that if mr. Baroni had authority to order a traffic study, then he could do so even with the intention of causing traffic in fort lee. They concede that he had the authority to order a traffic study. So all of that is conceded. What they say is he lied about the existence of a traffic study. As we point out that was to lie about the existence of a traffic study. There was a representation at all about the existence of a traffic study. Mr. Wildstein went to the bridge supervisor and told them, i would like to know what will happen, what effect on traffic will be if we switch these three lanes. Please switch these three lanes, or maybe not with the please, and study the results. Collect the numbers and tommy what the results are. The only part of that as the representation is the first part, i would like to know, my motivation is, my purpose is. They government agrees thats that capable of being the lie for purposes of the fraud conviction, a money and property fraud conviction. The other parts are an instruction, and instruction to do a traffic study. The employees at the Port Authority did that. Thats what the government spent a great deal of time at trial proving, is that money was spent on a traffic study that they say was illegitimate because nobody ever cared about the results. But the government agrees now that caring about the results is not an issue. They say the traffic study didnt exist and thats just flatly contrary to whats true. Is it your position that, suppose mr. Baroni had said im giving you no reason at all, or suppose mr. Baroni had said were going to do a traffic study, but its going to be a sham traffic study. Would you still have had authority . Certainly the first one. He certainly had at any point that discretion to say, as somebody had done very early on in creating these three traffic lanes, there were not required but anything, at any point in time couldnt said i think they should have a fourth or think they should have only two or only one here that was fully within his authority. As the government argued and proved his case below, that was their summation, was he abused e the authority was entrusted with. And the second, recorded a sham traffic study . I think he can do that. I think as a functional of the matter, who knows what actually results from that but just he has the authority to say were going to do a traffic study because i want to do this thing, and for public reasons, its easier to do a traffic study. You said this is not a sufficiency question. But what is it if its not a sufficiency question . As i understand your arguments, you are not pointing to any instruction that was incorrect or to the rejection of an instruction that you offered. How are we to look at this other than through a sufficiency lands . Frankly, the most obvious way to do it is as a government forfeiture of the issue. The defendants in the District Court said the line is authority and if we were authorized, then that is a complete defense and the government told the District Court did not give that instruction. The District Court said, im not giving that instruction because it is not a defense and dont want to confuse the jury into believe it is. Now in this court the government is saying actually, it turns out the hinge between guilt and innocence is whether or not he was authorized if we get the benefit of a sufficiency of evidence deferential review even though we told the District Court that this issue didnt matter at all. The government has forfeited the opportunity to prove that mr. Baroni lacked authority. They said it did matter. Now with this court, this court should assume that there was no lack of authority. Any reason to think that the jury actually made a finding about his authority . No, no reason whatsoever. The District Court was attempting to make sure that they didnt consider that to be relevant or that that was what we pressed was this is the relevant distinction and the District Court wanted to be sure that the jury did not believe that it would be a defense. Nothing in the jury instructions suggested that it would be a defense. Thank you. Thank you, counsel. Mr. Feigin. Mr. Chief justice, and may it please the court. The defendants in this case committed fraud by telling a lie to take control over the physical access lanes to the George Washington bridge and the employee resources necessary to realize them. Unless the lied about the existence of a Port Authority traffic study, none of them have the power to direct those resources and realign the lanes. Because they told that line, those resources were answering to them, to their own private purposes rather than to the public official who were duly appointed to decide what those resources should be allocated to do. Their actions in this case were fraud in just the same way that it would be fraud for someone with no connection to the Port Authority to impersonate Port Authority supervisors and order Port Authority employs to realign Port Authority lanes. Or if you want to put this in the private context, for someone to usurp the authority by deception of a taxicab company dispatcher and order the cabs and the drivers to go wherever the fraudster pleases. They dont get a free pass simply because brody worked for the Port Authority when the evidence showed that he didnt have the power to direct these resources in this way without telling the lie. They dont get a free pass because they are hypothesizing a legitimate decisionmakers might in three have decided to realign the lanes when the precise point of their scheme was to take these resources out of the legitimate decisionmakers hands and put them into their own hands. They dont get a free pass simply because their motive happens to be political. Let me start with the legal argument that was made by kellys Council Counsel which e drawing a distinction between public uses and private uses and to think there are two main problems with that. Actually, probably three. One is i dont see where a license for that is in the statute, and that gets the right to the second problem, which is it seems to cross a distinction between fraud where the victim is a Public Entity and fraud with the victim is a private entity. The court rejected that distinction in pasquantino. I dont know if the taxicab hypothetical at me to say its only front if those cabs and go to private use. Were talking about a private company in the context. The third problem is, i dont know how a jury i think some justices on this court were grappling with this. I dont know how jury decides the difference between the public and private use. You have to make several points. One is your statement now which i think is stronger than your brief, that if you have authority and you work for government only if you say, tell them and lie, and untruth, then you dont have authority. My goodness, the code of federal regulations, the rules of any department, i mean, the government is filled with rules. There are numerous instances where a person might see something untrue about something related to a rule that gets him for that. Thats enough to take, were back to Honest Services, and thats also true of the second. If, in fact, there are two separate parts to the second, i might as well get both questions out, is that there . The one on authority is i dont know where that comes from. But if you have authority to do something in government, but you cant or you lie about anything, you wouldnt without it, well, then youre in the property stealing statute. The second problem with your second claim is, if you dont have authority but you put what you take to a public use, now, either that is, does, is a conversion of property and obtaining the property within the statute or it isnt. If it is, i dont see how honest Services Fraud is not back in the statute, which is been rolled out since mcnally. Rolled out. If it isnt, i dont see how this case works. Your honor, let me answer the second part of your question first and then i will try to get back to the first part. Answer to the second part of your question, as i was saying i dont think theres a a distinction between private and public uses works, because thats not a distinction the statute draws. Then my point was wide then went back to Honest Services. There is no deprivation of Honest Services that does not require somebody in the government to spend time or use some paper or use a telephone in order to achieve that dishonest thing, all right . If youre going to count that as property, well fine, you could do it, i guess under some statute, but if you do it under this statute, this statute that prohibits the taking of disHonest Services, exactly what the court has held it doesnt do. Your honor, if i might answer that, it will take a second to play this out. I think its a very important distinction. They are trying to lump a bunch of different kinds of frauds together and make them all sound as if they are the same. This case is about a very specific kind of fraud, commandeering fraud. It is when the defendant tries to take over property that is in the hands of the victim and manage it as if it is his own property. Thats what they were doing with the lanes on the bridge and the employee resources. So, for example, if theres a snow plow sitting there and do take the keys to the stoploss and i drive off in the still pluck, everyone would agree that ive obtained the stockpile. If i instead put in one of those masks from the Mission Impossible tv show or the movie and i appreciate the boss of the still plow driver and i tell the still plow driver to drive around in the still talkative execs anything that i was going to do, i have obtained the still plow and the Driver Services by fraud. But that every fraudulent scheme and that every deceptive scheme works that way. Sometimes there are deceptive schemes in which somebody simply wants an agency to do something or once a private victim to do something on his behalf. And then you have to look at what is actually the object of this scheme and now the scheme works to see the agency is deprived of property. But the basic difference between the taking of the stubble is the official has no authority to take the snowplow for his private uses. The official does have authority to regulate how lanes are used on the highway and safety is a going to be used for fort lee, these are not. First of all, baroni do not have that authority in this case and i can get it evidence of that in a second. But also i dont think that its fair to call this a public use. What we would say is a public use is thank yous to which the legitimate supervisors of the Port Authority had decided to put the Port Authority so your theory is that by the actions in this case, they have commandeered the lanes on the expressway . Yesterday on it. They commandeered the lanes and the resources necessary to reallocate it. Still been used for Public Purposes. Your honor, im not sure what they mean when they say theyre being used for Public Purposes. Because if other people want to use the highway to get the fort lee, they can. They have nothing to do with the scheme at all. I would push back on this to this extent. If they decide to close the bridge, is that a public use private use . If they decide that only kelly can use that line is that a public or private use . If they decide that all the red cars can go down dublin, is that public or private use . They didnt decide any of those things. It was quite a problem i grant you, but they used it for cars down. Well, snowplow theres a law here, a rule, a rule, no, a rule. Treat every street alike. Do you know what the snowplow operator did . He snow plowed the mayors street first. Now that is not a good thing to do. It is really undesirable and maybe it should be a crime. But 30 years in prison . That im not sure. This statute has to do with property fraud, and is taking the stoploss and putting it to the use of the public streets and violation of a rule, treating the mayor better, is that they property crime . Your honor, in that hypothetical, we would not say that is fraud. There is no lie. Theres nothing material. Of course there is a period where are you going . I am going to fifth street first, and then i will go to the Grocery Store down the street and then and you know what you did . He went to the city council mint street. All right . Theres a lie. Its easy to make up cases that there is a live in and thats my problem, same problem. Went back into honest Services Fraud, which is fraud and bad. And the question is does this statute get it . Were not in honest Services Fraud. First of all a lie was not a lie that was told to obtain property. It was just a lie about what is going to do. They would have given it to him. In honest Services Fraud cases, in mcnally, for example, there was no dispute the defendant in mcnally had the authority to decide who was going to ensure the state of kentucky. The problem was this is what troubles me about your argument. Your argument is that, if baroni was authorized, he could not be convicted. Am i right . Yes. If baroni had the authority to do what he did finish documenting fraud. Even if he tells an ally. And you say that this takes care of a lot of these hypotheticals that are disturbing to some people. You say, but the jury found that he was authorized under sufficient evidence to support that finding. The jury found he wasnt authorized. Im sorry im not authorized. During the evidence in the light most favorable to the verdict to support the funny. But i see no indication whatsoever, the reason to believe the jury made any such finding. I read these jury instruction several times. Theres nothing in there that would alert a jury, a juror, to the obligation to find that baroni was unauthorized, unless i missed something. On this a couple things about that. They did not make an objection to the jury instructions properly in the court of appeals. Its not part of the question presented. I know but ive never seen a criminal case where we are asked to defer to a juries finding on something that the jury didnt find. Putting aside the question of whether theres any evidence to show he lacked authority. Let me point you to a couple of places and the other talk about the evidence of lack of authority. First of all theres the instruction that the court of appeals deemed adequate, thats at page 835 of the joint appendix which is the instruction on obtaining property, which the court of appeals deemed sufficient to notify the jury that when someone is acting on behalf of an organization, acting as the agent of that organization, hes not obtaining property when he exercises the authority that the agency is duly conferred on it. But even better than that is the materiality instruction from pages 875876 which says if you find six which says if you find that the representation that the lane and tollbooth reductions was for the purpose of a traffic study was false, you must determine whether that representation was one that a reasonable person might have considered important in making his or her decision to commit Port Authority resources for that endeavor, including service as a Port Authority personnel. What does that say about authority to reallocate the lanes . If baroni had the authority to reallocate the lanes for any reason or no reason, assess council just dated to this that he did, i dont see of the jury could have found that the lies that they told were material. History feigin, everybody has authority mr. Feigin, everybody has authority to spend or do the actual map of the agents. Anybody who doesnt for the the own personal purposes is unauthorized. Its meaningless to say is the authorized or not. Did he have the authority to close the lanes under certain circumstances . Did he have authority to close the lanes on his own say . It might have, your honor. What he didnt have was the authority did you prove that he had limited authority . Where did you prove that . We proved he did not have the authority to close the lanes under the circumstances without telling the lie. I can explain why if you would like. When wildstein first proposed the idea of realizing the lanes, mr. Baronis Immediate Response was to ask how he is going to do that. Wildstein came up with the idea that they would have a traffic cover story, the cover story of a traffic study, and he explained at the time to kelly that one purpose of the traffic study cover story was in order to enlist the Port Authority officials that they would need in order to realign the lanes. He then had to lie to both the manager of the George Washington bridge and the manager of titles, bridges, terminals that the executive director was aware of this and apparently had tacitly approved of it. Where, in fact, they were conceived to get from executive director. By the way, contrary to their expectations, there had been no slowing of traffic and, in fact, the lanes on one lane traffic remained the same or maybe improved, would you still have a case here . Yes, your honor. Its not about the effect although the effect was catastrophic and that was a reason why the prosecution was brought, because of the incredible danger which they put the citizens and commuters of fort lee, but they would still have committed the same crime. They were hiding it from executive director. Wildstein testified while there were processes in place to use the Port Authority resources, and he didnt follow them. When the executive director found out, he canceled it and he stated that the process had been quote subverted. Mr. Baroni click had significant authority within the Port Authority organization, but when someone questions had a going to do something, has no idea how is going to do something, has to like lie in order to accomplish it, has to live at this boss has approved it, has to conceal it from his boss and has to avoid every legitimate process verification. Isnt it often the case that somebody who has the authority to do something may lie about why the person is doing the thing because, if the real reason was exposed, it would cause a furor, people would be angry, but that doesnt show the person doesnt have the authority to do it. A person hires his brotherinlaw or a position. Why did you hire this particular person . This person is the very best qualified person for this job. When the real reason is his wife wants him to do it. [laughing] he doesnt want to say yet. Does that show he didnt have the authority to fill this position . No, your honor. Thats not the only piece of evidence we are relying on it and its a different kind of light. This isnt a lot about theyre doing it. Wildstein directly testified they need to tell in order to get the resources that they needed. It was clearly important to the George Washington bridge manager and the manager of titles, bridges, and terminals that this is something the executive director knew about. Both executive director and the vice chairman of the Port Authority board of commissioners testified they would expect to be notified about something that was even an order of magnitude less disruptive than this was ever going to be, and they were not notified. What do you do about this, this is the same, but i dont want to lose what the question was an light of the instructions given. What i have so far found is that the defense did ask the jury to be instructed to do just what you want, they asked of the jury, they said, judge, tell the jury that if the Port Authority granted or bestowed on the defendants of power or authority to control the property, the bridge, et cetera, and that they acted within the bounds of that authority, then you cant find the scheme to defraud. To establish a scheme to defraud they must prove the scheme contemplated depriving that authority, the poor people, of money and property. What . Thats the essence of what he didnt give . No. I havent read the two instructions you read but the one that i read i think is the one that the court of appeals relied upon. So what do we do about that i would look back at the materiality instruction. I think if the court of appeals got the substance of it right and you dont agree with this reasoning there is no reason to reverse particularly when the question hasnt even been presented to this court. It was only raised in the brief of perrone who didnt even condition but let me address the discussion rejected by the court expressly. I was proposed primarily of an instruction on 18 usc 666 which is the more general misappropriation of federal funds statute and the instruction on that which appears on page 870 already itself contains a reference to authority. Both the government and District Court were quite clear in the District Court and you will see this finding by the court of appeals and District Court that perrone and kelly were free to argue the authority issue. The only question was whether the jury was going to get a specific instruction on that point. And the government believed the instruction was unnecessary. It would have been a novel addition to the Third Circuit jury instruction on section 666 and moreover i dont know that their instruction was in fact correct because it might have confused the jury into thinking, and this goes back to my call to justice sotomayor, that if bernie had some instruction you thought the instruction was unnecessary but that may have been the case at the time but surely after your focus here on the authority point, you wouldnt make that same statement. Your honor, i think in retrospect it may have been better to instruct the jury somewhat more specifically on authority. More specifically on the Central Point of your argument. I dont know that their specific instruction would have accomplished it and i dont know that the instructional issue is before the court today. But we are defending this, these convictions on the precise same ground that they were found to be valid by both the court of appeals and District Court which addressed the authority issue. The District Court addressed the issue before trial telling defendants they could argue in trial and it addressed it after trial thing it believed its authority had been proven and Third Circuit addressed it and we have been consistent throughout and that we have never argued to my knowledge and i certainly havent identified a place where we have argued that if perronein fact had the authority that his counsel claimed he had which is to realign the lane for any reason or no reason , that these defendants. But they had no decisionmaker has the authority to make any decision for no reason. Thats a misnomer in terms. People have authority to do things only in the interest of the agency. So give me a line drawing for reason or no reason. Meaning, i dont think anybody in the Port Authority including the executive director puts on women and say i like playing on a board. Lets change it to one lane because i just like to see a different pattern today. So give me your definition of what authorized means. If he had the ability, when i first read your brief, it was if he had the ability to change the lanes, on his own , then he had authority. All right, now what the limits of that authority are is where im trying to get to. Your honor. But it cant be no authority. I apologize, im simply repeating the language the court of appeals gives which may have been a little hyperbolic. But if he were the person to whom the Port Authority and trusted the decision of whether there should be three lanes or one , thats his decision under these circumstances would govern. Then he had the authority. I think the evidence showed that he was not that person. Again, he had to. But the fact that the executive could overturn him doesnt prove the positive. Thats right your honor and we wouldnt rely on that piece of evidence just like Justice Alito is not relying alone on the fact that he had , that he told a lie. Where relying on accommodation of circumstances. As i was saying earlier, when an idea of something to do with my organizations resources is raised to me and myinitial reaction is how are we going to do that , and then the idea is to tell a lie that will get everyone on board with it and then we lie about the fact that my boss is aware of it and possibly approves of it, we avoid every legitimate process and we can seal it from my boss, i think a reasonable jury can rationally conclude that im doing something that i dont have the authority to do. Please finish. Thats what perrone did here. Can i switch because the statute clearly says that the scheme exception, the object of it has to be a to obtain property so could we talk about that for a minute because if i look at this and im an ordinary juror, im thinking the object of this deception was not to obtain property. The object was to create a traffic jam, the object was to benefit people politically. You can frame the object in lots of ways but notwithstanding that some employee time was given over to this scheme. That was not the object of the scheme, was it, to appropriate that employee time . Your honor, i think it was because this gets back to what i was saying to Justice Breyer earlier. This is a particular type of fraud where its commandeering fraud where what theyre trying to do is to take property thats inthe victims hands through the Port Authority and convert it to their own uses. It may be if i take a knife off the table and stabsomeone , my end goal is to stab someone but ive still stolen the knife. But wasnt the commandeering completely incidental, indeedunnecessary for the scheme being carried out . There was a little bit of time for an extra tall person to mitigate the problems of the traffic jam or there were people running around, counting cars to conceal the purpose for what theywere doing. But that was not the object of the schema. Your honor, the object of the scheme was to take control of real property. The whole lanes accessing the George Washington bridge and have those lanes be allocated the way they want. Thats not the employee time and labor, thats something about appropriating the George Washington bridge, is that right . That is not appropriating the George Washington bridge. Itsreallocating lanes on the George Washington bridge and i would have thought that cleveland makes clear thats not an appropriation of property either. Your honor, i think its both because they needed the employee resources to accomplish what they were doing with the bridge and if i could address cleveland for a second, this case and cleveland do both involve governmental decisionmaking but thats where the similarities end. In cleveland the object of the scheme was to obtain a license under regulatory scheme that had no private analog whatsoever. The court rejected every private analog the government offered and the license wasnt property in the governments hands. Here youre talking about real property, physical lanes and you can access those lanes and access rights to physical property are quintessential forms of private property, probably one of the oldest forms of property we have and then you have the employee resources necessary to reallocate the lanes which i think even they acknowledge our property under the fourth statute, they acknowledge if you said papers to paint the mayors house, thats going to be property fraud because youre taking the employees services. Thats because the object of the scheme is to use the employee labor to get your house painted but i dont think you can say the same thing here. You are not using the employee labor to create a traffic jam. They are using the employee labor as if it were theirs, not as if it were something the Port Authority gets to use so in the private context if i were to impersonate the boss and start ordering around the company , i think i have obtained the company jet. But youve picked an example that is easy for you. An example thats hard for you is you tell the employee to pick up the phone and call somebody and say this. Thats a bad thing and then immediately say okay, its property fraud because ive used, the employee has used the telephone or ive used before minutes of that employees time necessary to convey the message. Your theory would say thats taking property so its covered by the fontstatutes. We wouldnt your honor and im glad to have a chance to make this perfectly clear and this gets back to justice kagans question as well. Incidental uses of property that are not the object of the scheme are not going to be sufficient for property fraud and i think the easiest place to look for that is this courts decision in lofgren which involve the bank fraud and the court said there if you tell a lie and the object of your life is to obtain money its not bank fraud simply because unrelated to your life you didnt really care how the money came to you. The money comes to you in the form of a check which is bright property as opposed to cash which isnt. If someone tells a lie and the object is to obtain a license from the state of louisiana to operate a video poker machine which is not property, they are not committing property fraud just because someemployee needs to spend time processing. The object of the scheme was not to commandeer lanes on the bridge. The object was to cause a traffic jam and if they could have done it some other way they would have done it some other way. The use of the altering the traffic lane configuration was just the incidental means of achieving the objective. I dont think thats right your honor. The lie they told to the Port Authority to get the Port Authority resources was alive they told in order to get those resources. The causing of the traffic jam was what they wanted to accomplish with those resources. If i told alive to get access to the company jet it may be that my goal is to take a vacation trip to macau but then thats not theobject of the scheme as far as the fraud is concerned. Thank you. Thank you council, two minutes mister roth. Thank you. The federal property statute prohibits schemes to obtain property and the governments theory of property here is i think we just heard is that the officials by making this decision about lincoln alignment commandeered the control over the George Washington bridge. That is exactly the type of regulatory control that cleveland said is not property. Cleveland ritter referred to the intangible rights of exclusion and control and the sovereign intangible rights of allocation exclusion and control are not property for purposes of this statute and therefore if what the officials did was use the seat to influence the exercise of those rights, they have not obtained property from the Port Authority. If that is not correct and everything an official does falls within the scope of this statute and the only question open is was there some deceit involved . If that is right i think the Chilling Effect on honest Public Servants will be severe. Mister ross, you responded to one half of this theory and one half the allocation of lanes and the other half is the employee time to whats your response tothat . My response is what he said at the end which is the incidental cost of a decision are not its object. But your honor, the implementation of the regulatory decision is going to use some Public Resources. Cannot possibly change the results or Health Cleveland is a complete lie. Likeyou call it incidental . It was essential. Its incidental in that it would be implementation, it flowed as a result of the regulatory decision. Regulatory decision was to realign the lanes, required employee time in terms of studying the Traffic Effect but that was not the object, that was how it got done. What if it cost 1 million, would it be incidental . It would still be incidental, its not the minimus test, its what is the object. Thank you council, the case is submitted. Today senator Bernie Sanders to support a get out early vote rally in las vegas. Early voting for the nevada caucus ends today with the caucus on saturday february 22. What live at 5 30 p. M. Eastern on cspan2, online at cspan. Org or listen live on the free cspan radio app. Fears debate took place between my husband and vickis husband. They believe what it was but they were never enemies, they were friends they would walk off and slap each other back and laugh all the way off the floor its a different time and im sad about that. How do you remember it . He said he didnt like teddy very much. He said i really maybe saw a lot of myself in him. I dont think, he grew to respect him. They were both on the Armed Services committee and he saw it in teddy teddy saw in john real patriotism. Love of his country and even though they came from a different place and no new that they care about the company the country and they loved it and they develop a bond they found these little nuggets of Common Ground where they could work together. Tonight on cspan, the widow of senator john mccain and vicki kennedy, the widow of Edward Kennedy discussed their husbands careers and legacies conversation about Public Service at the Kennedy School of government and harvard university. Next, a house panel looking at the trump administrations changes to the supplemental nutritional assistance program. We hear from the Senior Vice President of the no kid Hungry Campaign and antipoverty advocates. Come to order, weve got obio