SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - BRIDGET ANNE KELLY, Petitioner, v. ) ) ) No. 18-1059 UNITED STATES, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 67 Place: Washington, D.C. Date: January 14, 2020 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 BRIDGET ANNE KELLY, 4 Petitioner, 5 v. 6 UNITED STATES, 7 8 ) ) ) No. 18-1059 ) Respondent. ) - - - - - - - - - - - - - - - - - - 9 10 Washington, D.C. 11 Tuesday, January 14, 2020 12 13 The above-entitled matter came on for 14 oral argument before the Supreme Court of the 15 United States at 10:12 a.m. 16 17 APPEARANCES: 18 JACOB M. ROTH, Washington, D.C.; 19 on behalf of the Petitioner. 20 MICHAEL LEVY, New York, New York; 21 for Respondent William E. Baroni, Jr. 22 in support of the Petitioner. 23 ERIC J. FEIGIN, Deputy Solicitor General, 24 Department of Justice, Washington, D.C.; 25 on behalf of the Respondent. Heritage Reporting Corporation Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 JACOB M. ROTH, ESQ. 4 PAGE: On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 MICHAEL LEVY, ESQ. 3 7 For Respondent William E. Baroni, Jr. 8 in support of the Petitioner 9 10 11 ORAL ARGUMENT OF: ERIC J. FEIGIN, ESQ. On behalf of the Respondent 12 REBUTTAL ARGUMENT OF: 13 JACOB M. ROTH, ESQ. 14 20 On behalf of the Petitioner 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 30 64 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 (10:12 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear 4 argument first this morning in Case 18-1059, 5 Kelly versus United States. 6 Mr. Roth. 7 ORAL ARGUMENT OF JACOB M. ROTH 8 ON BEHALF OF THE PETITIONER 9 10 MR. ROTH: Mr. Chief Justice, and may it please the Court: 11 Once again, the government is trying 12 to use the open-ended federal fraud statutes to 13 enforce honest government at the state and local 14 levels. 15 defendants committed property fraud by 16 reallocating two traffic lanes from one public 17 road to another without disclosing their real 18 political reason for doing so. 19 Its theory this time is that the This theory turns the integrity of 20 every official action at every level of 21 government into a potential federal fraud 22 investigation. 23 by subsuming honest services fraud within 24 property fraud and by criminalizing ulterior 25 motives even without bribes or kickbacks. It end-runs McNally and Skilling Heritage Reporting Corporation It Official - Subject to Final Review 4 1 would effect a sweeping expansion of federal 2 criminal jurisdiction into a particularly 3 fraught area. 4 This is not the law. This Court in 5 Cleveland held that regulatory authority is not 6 property. 7 sovereign decision through deceit has not 8 obtained property by fraud. 9 official lies to divert state resources to So an official who induces a Only when the 10 private use has he stepped outside the 11 regulatory realm and committed property fraud. 12 This rule distinguishes property fraud from 13 honest services fraud and from routine political 14 conduct. 15 Here, because the defendants simply 16 reallocated the traffic lanes from one public 17 use to another, the Port Authority at most was 18 deprived of regulatory control, not property. 19 And that's true regardless of whether, as the 20 government now alleges, the defendants lacked 21 the authority in some sense to order the 22 realignment. 23 Mr. Levy will explain why the 24 government is wrong to say that, but it's 25 ultimately legally irrelevant because the fraud Heritage Reporting Corporation Official - Subject to Final Review 5 1 statutes do not prohibit lying to take 2 unauthorized state action. 3 to obtain property. 4 occurred in this case. 5 They prohibit lying And that simply is not what JUSTICE GINSBURG: You've said that if 6 the resources were diverted to private use, then 7 the prosecution would be okay. 8 a private use to benefit defendants politically? 9 MR. ROTH: But why isn't it Your Honor, I'm trying to 10 distinguish the use of the property from the 11 motive for the decision. 12 was to realign the lanes from one set of public 13 drivers to another set of public drivers. 14 are public uses of the lanes. 15 So here the decision Both Now, it's true the motive, the alleged 16 motive, for that regulatory decision was 17 improper. 18 allegation in the case. 19 that -- that it's -- that the use of the lanes 20 was private. 21 typical case in which the government has 22 prosecuted property fraud against a public 23 official is where the official lies to take 24 property from the government for his own use. 25 It was political, right? That's the But that doesn't mean It's not -- Your Honor, the So a situation where you lie on your Heritage Reporting Corporation Official - Subject to Final Review 6 1 expense report, you say you incurred this 2 expense for business reasons and you did not. 3 In that situation, you're lying and you're 4 taking the property out -- away from the 5 government for yourself. 6 property. 7 That is obtaining Here, what the defendants influenced 8 through their deceit was the decision about the 9 alignment of the lanes. 10 11 And if there's anything that is regulatory in nature -JUSTICE KAGAN: So, Mr. Roth, on -- on 12 that theory, would it or would it not make a 13 difference if the defendants here, rather than 14 doing everything that they did for a political 15 reason, if they had done it to make their 16 commutes easier or their families' commutes 17 easier, so it wasn't anything about politics, it 18 was their own personal interests, but they did 19 exactly the same things, is that covered or is 20 not -- is that not covered on your theory? 21 MR. ROTH: That, on -- on my theory, 22 that is certainly not property fraud. 23 officials even in that case have not obtained 24 property by fraud. 25 JUSTICE KAGAN: The So you're not making Heritage Reporting Corporation Official - Subject to Final Review 7 1 just a distinction between private uses and 2 public uses? 3 and public purposes, maybe? 4 You know, private purposes and -- MR. ROTH: I'm certainly not making a 5 distinction between the type of purpose. What I 6 am trying to distinguish is the use of the 7 property and is it a regulatory decision to 8 realign the lanes for whatever purpose? 9 if we're -- if what we're concerned about is the Because 10 integrity of the purpose behind the decision, 11 that really sounds in honest services fraud, 12 right? 13 not the government being cheated out of property 14 that it has or that it owns; what we're 15 concerned about is the good faith of the 16 official in making the decision. 17 CHIEF JUSTICE ROBERTS: Because what we're concerned about is That's a hard 18 -- can be a hard line to draw. 19 the rerouting of the traffic is done for 20 commercial benefit of the individual in whatever 21 way, that would be a violation, right? 22 MR. ROTH: 23 CHIEF JUSTICE ROBERTS: I mean, if -- if Your Honor, if it would -He has got a 24 -- a -- you know, a development or something, 25 he's building a hotel in -- in Fort Lee, and he Heritage Reporting Corporation Official - Subject to Final Review 8 1 wants the traffic redirected there or directed 2 away from, whichever, because he thinks it will 3 increase business at his hotel. 4 MR. ROTH: Your Honor, if the Court 5 were to consider that as a kickback, then that 6 would be honest services fraud. 7 property fraud, because, again, the decision 8 there is a -- is a decision about allocating 9 scarce public resources among public uses. It would not be 10 Again, the concern in Your Honor's 11 hypothetical is, well, what -- was it a good 12 reason? 13 to benefit himself? 14 Skilling is, if you make the decision because 15 you were paid a bribe or because you were going 16 to be getting a kickback, that is a violation of 17 your honest services -- your duty to provide 18 honest services to the public. 19 Was it to benefit the public or was it And what this Court said in JUSTICE ALITO: What we're doing here 20 is interpreting a statute. 21 clear to me how your argument fits into the 22 language of this statute. 23 And it's not quite So property -- money is property. And 24 money was lost. So how does this fit into the 25 language of the mail fraud statute -- the wire Heritage Reporting Corporation Official - Subject to Final Review 9 1 fraud statute? 2 MR. ROTH: So, Your Honor is correct, 3 the relevant word is "property" and the second 4 relevant word is "obtain." 5 Cleveland explained that when the government is 6 making sovereign decisions in its capacity as 7 sovereign, implicating its regulatory interests, 8 that is not property within the meaning that 9 Congress had when it enacted -- 10 11 JUSTICE ALITO: And this Court in Was there a loss of money in -- in Cleveland? 12 MR. ROTH: Well, there wasn't -- it's 13 not clear if there was lost property. 14 I would say there was an official in that case 15 who was processing the fraudulent application. 16 And if he had not been given the fraudulent 17 application to process, he would have been doing 18 useful work for the agency. 19 Certainly And maybe he would have gone home an 20 hour earlier and been paid a little bit less. 21 don't think any of that would have mattered to 22 the result in Cleveland because it's -- all of 23 that -- 24 25 JUSTICE ALITO: fit in the statute? I But still, how does it Is it that there isn't -- Heritage Reporting Corporation Official - Subject to Final Review 10 1 property isn't obtained when it is simply 2 wasted? 3 on the word "defraud"? 4 Is it that -- does it -- is it a gloss MR. ROTH: I -- I think it's two 5 steps, Your Honor. 6 establish that the decision, the realignment, is 7 not property because that's control. 8 regulatory power. 9 The first step is to The second step is to say: That is Well then 10 what about the costs of implementing it? 11 would say the costs of implementing it -- of 12 implementing that regulatory decision are part 13 and parcel of it and it's -- the scheme is not 14 to obtain that property. 15 And I The purpose of the -- the scheme, the 16 object of the scheme, is to effect this policy 17 decision, this regulatory decision, in the way 18 that the officials want. 19 JUSTICE KAGAN: So in the case of 20 sending city snowplows to -- to -- to clear your 21 own house first or sending city maintenance 22 people to paint your own house, if you're a 23 public official, I was under the impression that 24 you thought that that would be a crime. 25 Is that right? Heritage Reporting Corporation Official - Subject to Final Review 11 1 MR. ROTH: If -- if the -- if you're 2 sending the public employees to do private work, 3 yes, absolutely. 4 that point you're just taking the city property 5 and using it for private use, which is not -- 6 that's -- that's -- you're obtaining the 7 property. That's not regulatory. 8 I would distinguish -- 9 JUSTICE KAGAN: 10 MR. ROTH: 11 JUSTICE KAGAN: At So even though -- -- that, though --- both are diversions 12 of city resources or state resources, whatever 13 it is, it's just one is regulatory and one is 14 not because one involves personal benefit? 15 MR. ROTH: Personal use. Yes, Your 16 Honor. 17 decision diverts resources in some way. 18 every time a public official makes a decision, 19 there are implications for the bureaucracy and 20 there are implications for public property. 21 I mean, every -- every regulatory I mean, So there is diversion going on and 22 maybe the decision was made for a bad reason and 23 if it's a bad enough reason, maybe it's an 24 honest services violation. 25 JUSTICE KAVANAUGH: Is your theory Heritage Reporting Corporation Official - Subject to Final Review 12 1 that the word "obtain" is what does the work in 2 response to Justice Kagan's hypothetical? 3 MR. ROTH: I think it's obtaining 4 property together. 5 it's one or the other. 6 property and what did Congress mean when it said 7 "property." 8 with cheating people out of their property 9 rights. 10 I don't necessarily think Cleveland focused on I think it said, we are concerned And you can do that with a government 11 entity. 12 out of its property, Pasquantino is the example 13 of that where the Court said, you owe tax -- you 14 owe taxes to the government, you lied to avoid 15 paying your taxes, you've committed property 16 fraud. 17 Port Authority situation. 18 You can certainly cheat the government The same, by the way, could occur in a You owe a toll and you lie to evade 19 paying the toll, you have cheated the government 20 out of property that it's owed. 21 you're doing is making a regulatory decision 22 like allocating public resources among public 23 uses, and there's no question that the main line 24 is a public use, just as much as the special 25 access roads are a public use of the property, But if what Heritage Reporting Corporation Official - Subject to Final Review 13 1 that is not obtaining property. 2 JUSTICE ALITO: I can understand the 3 distinction between a regulatory decision and 4 the deprivation of property when the regulation 5 -- when the regulatory decision doesn't cause a 6 loss of property, but when the regulatory 7 decision cause a loss of property, I -- I find 8 it more difficult to see the distinction. 9 MR. ROTH: Well, Your Honor -- 10 JUSTICE ALITO: 11 MR. ROTH: Explain it to me. Your Honor, I think that 12 every regulatory decision is going to have some 13 consequences for public employee -- employee 14 time, for example, which is the species of 15 property that the government has invoked. 16 But in this case -- let's take this 17 case, just as an example. 18 the additional money that was spent was the toll 19 keeper. The toll keeper had to do an additional 20 shift. But the toll keeper was doing her job of 21 collecting tolls for the public. 22 What they focus on -- So the Port Authority was not deprived 23 of her salary. She was earning her salary. 24 The -- the objection is, if this regulatory 25 decision had not been made, we would not have Heritage Reporting Corporation Official - Subject to Final Review 14 1 2 had to hire that toll keeper for that work. JUSTICE ALITO: Right. Well, I'll try 3 this one last time. 4 when we write the opinion, if we were to write 5 one in your favor, how would we explain your 6 result within the language of the statute? 7 MR. ROTH: Tell me how this fits -- I think the Court would say 8 the statute prohibits schemes to obtain property 9 when you are using deceit to influence a 10 regulatory decision, to change a regulatory 11 decision, that is not obtaining property, and, 12 in the corollary, that's important, is the costs 13 of implementing a regulatory decision don't 14 change the result. 15 JUSTICE KAGAN: 16 once more too, Mr. Roth. 17 official says you -- to a city maintenance 18 worker, you should paint my house before you do 19 anything else, why isn't that similarly an 20 allocation of resources? 21 MR. ROTH: 22 JUSTICE KAGAN: 23 MR. ROTH: 24 JUSTICE KAGAN: 25 MR. ROTH: I think I'll try mine Why when a public Because it's not the job -I mean -- -- of government --- it benefits me -- Right, but -- Heritage Reporting Corporation Official - Subject to Final Review 15 1 JUSTICE KAGAN: -- but, you know, I -- 2 I get to send, whether it's painting or 3 snowplows, you know, you -- you -- you go plow 4 my street first. 5 MR. ROTH: 6 JUSTICE KAGAN: 7 Right. allocation -- 8 MR. ROTH: 9 JUSTICE KAGAN: 10 Why isn't that an MR. ROTH: So, so --- of city resources. Let me try to clarify 11 because I think I may be -- I may have led to 12 some confusion. 13 and you say I want to plow my street first or my 14 neighborhood first, that is not obtaining 15 property by fraud because that is an allocation 16 of resources to a public use. 17 that happens to benefit you and maybe that was 18 your motive and that's very bad, but it's not 19 obtaining property by fraud. 20 If you're plowing public road, It's a public use If you instead trick the public 21 employees not into plowing the public road but 22 into plowing your private drive -- driveway, 23 which is not the job of the government, right, 24 that's not what the government does, the 25 government is concerned with public property and Heritage Reporting Corporation Official - Subject to Final Review 16 1 2 clearing public property. If you trick the -- the employees into 3 plowing your private driveway, then you have 4 taken their services for your personal use, 5 which is fundamentally different. 6 different from saying, I worked overtime when 7 you didn't. 8 wage for the hour time that I didn't work. 9 That's no Please pay me, you know, my hourly JUSTICE KAGAN: And that difference 10 is, just to go back to Justice Alito's question, 11 where in the statute? 12 MR. ROTH: The difference is in the 13 scheme to obtain property. 14 where it is in the statute. 15 what is the object of the scheme. 16 That's -- that's And so you look at And if the object of the scheme is to 17 influence a regulatory decision, it's not a 18 scheme to obtain property under -- that's -- 19 just follows from Cleveland. 20 decision that public official makes is on the 21 table and the only thing that is separated -- 22 JUSTICE SOTOMAYOR: Otherwise every I'm sorry, I 23 thought the scheme was to make life difficult 24 for Fort Lee. 25 defrauded the use of government property to If that was the scheme, and you Heritage Reporting Corporation Official - Subject to Final Review 17 1 accomplish your goal, why is that any different 2 than taking the maintenance worker to plow your 3 road, your private street? 4 MR. ROTH: Your Honor, the difference 5 is that here the alleged purpose, the alleged 6 motive was what Your Honor said, right, to 7 increase traffic -- 8 9 JUSTICE SOTOMAYOR: That was the scheme. 10 MR. ROTH: Yeah. The scheme was to do 11 that through a regulatory decision, right, by 12 realigning the lanes from one public use to 13 another public use. 14 So what we're -- what the objection is 15 to the conduct here is an objection to the 16 purpose, not the objective use of the property. 17 That's the difference. 18 JUSTICE SOTOMAYOR: My -- my problem 19 is, it's -- I don't think -- I can see a 20 headline that would say it's okay for officials 21 to use government public money in a way that is 22 plainly unauthorized, not just in its motives 23 but it's in end use, and an official can and 24 should not be -- should never be liable for 25 that. Our public officials now can use Heritage Reporting Corporation Official - Subject to Final Review 18 1 government resources -- 2 MR. ROTH: 3 JUSTICE SOTOMAYOR: 4 5 6 7 Your -- Your --- for their private ends. MR. ROTH: -- Honor -- right. But, Your Honor, all -- all -JUSTICE SOTOMAYOR: Not mixed motive, 8 which is the interesting question here with the 9 traffic study and whether you have enough -- 10 whether they have enough evidence that there 11 wasn't a traffic study, but you're saying when 12 it was -- and what the government has said, 13 you're not authorized to do it, there's a 14 question about that. 15 MR. ROTH: Yeah. 16 JUSTICE SOTOMAYOR: 17 have even a mixed motive. 18 personal motive. 19 MR. ROTH: And you didn't You had only a So, Your Honor, I'll let 20 Mr. Levy speak a little bit more at length about 21 unauthorized because actually the government's 22 theory throughout the case was that he did have 23 the authority and that he abused his power by 24 making the decision. 25 JUSTICE SOTOMAYOR: A much more Heritage Reporting Corporation Official - Subject to Final Review 19 1 difficult question. 2 MR. ROTH: 3 JUSTICE SOTOMAYOR: 4 MR. ROTH: Yeah. Yes. But what I will say is I'm 5 not trying to suggest that this is okay. 6 We don't want public officials acting for 7 personal reasons. 8 necessarily for partisan or political reasons. 9 Okay? We don't want them acting But what I'm saying is the remedy for 10 that is not the federal property fraud statutes. 11 We have certainly political remedies that were 12 very much -- had pretty substantial 13 repercussions here. 14 constraints on official abuses of authority. 15 fact, New Jersey has a statute called "Official 16 Misconduct" that is specifically directed toward 17 unauthorized decisions with bad purposes. 18 There may also be state law In That's not what the federal property 19 fraud statute is concerned with. The federal 20 property fraud statute is concerned with 21 cheating the government out of its property 22 rights. 23 What we have here is an abuse of power, a 24 political abuse of power, and -- and that's -- 25 if anything, again, that sounds in honest And that's just not what we have here. Heritage Reporting Corporation Official - Subject to Final Review 20 1 services fraud, which this Court has limited, 2 due to vagueness concerns, to bribes and 3 kickbacks. 4 5 Your Honor, if there are no further questions, thank you. 6 7 8 CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Levy. 9 ORAL ARGUMENT OF MICHAEL LEVY 10 FOR RESPONDENT WILLIAM E. BARONI, JR. 11 IN SUPPORT OF THE PETITIONER 12 13 14 MR. LEVY: Mr. Chief Justice, and may it please the Court: A public official who is acting 15 politically and not for personal gain does not 16 commit fraud by lying about his reason for an 17 official decision if the decision was generally 18 within his authority. 19 that below but now urges that as the rule in 20 this Court. 21 The government disputed That concession requires reversal. 22 The government alleged and proved that 23 Mr. Baroni was the co-head of the Port 24 Authority, responsible for supervising all 25 aspects of its operations. The government Heritage Reporting Corporation Official - Subject to Final Review 21 1 itself elicited that there was never any policy 2 that precluded Mr. Baroni from using his plenary 3 authority to alter a traffic pattern. 4 For the government's rule to work, 5 this Court should require an objectively clear 6 lack of authority, something not even arguably 7 shown here. 8 conceals his political motivation risks being 9 convicted of fraud if a prosecutor or jury later Otherwise, any official who 10 disagrees about the scope of his authority. 11 the government's rule is to provide any limits, 12 this case must lie beyond those limits. 13 If I'd like to begin by discussing what 14 the government alleged, argued, and proved below 15 about Mr. Baroni's authority before it decided 16 in this Court that an official's authority is 17 the line between guilt and innocence under the 18 fraud statutes. 19 In the district court, the government 20 alleged in the indictment that Mr. Baroni was 21 responsible for the general supervision of all 22 aspects of Port Authority business, including 23 the operations of its transportation facilities. 24 25 From its main cooperating witness, Mr. Wildstein, the government elicited that Heritage Reporting Corporation Official - Subject to Final Review 22 1 exact statement precisely, ticking off one of 2 the allegations from the indictment. 3 elicited from Mr. Wildstein that the -- that the 4 title "deputy executive director" was a 5 misnomer; that within the Port Authority 6 structure, the deputy executive director and the 7 executive director had a 50/50 -- 50/50 split in 8 terms of power sharing; that the deputy 9 executive director was not the Number 2 position It 10 within the Port Authority. That's from the 11 government's eliciting from its own cooperating 12 witness. 13 The government also -- 14 JUSTICE ALITO: The -- the arrangement 15 is always that the -- there's a New York 16 representative who's the executive director and 17 the New Jersey representative who's the deputy; 18 is that right? 19 MR. LEVY: That was at the time the -- 20 the arrangement. It was -- it was always 21 appointed by the governor of New Jersey for the 22 deputy executive director, and the governor of 23 New York for the executive director. 24 understood within the agency by everyone, every 25 -- all the witnesses the government called, Heritage Reporting Corporation And it was Official - Subject to Final Review 23 1 testified that that was the arrangement. 2 called Mr. Baroni's successor, who testified 3 that that was the arrangement, that the one did 4 not report to the other and that that -- 5 JUSTICE ALITO: They And this is -- this is 6 a bi-state agency. Why -- why would New Jersey 7 agree to an arrangement like that where its 8 representative is always in the second seat, at 9 least -- at least nominally -- nominally? Just 10 the -- the big brother across the river; is that 11 the -- 12 MR. LEVY: I don't know the answer to 13 that except that the -- the structure within the 14 Port Authority was that that was not the case. 15 So they, in fact, as it actually played out, 16 didn't agree to play second fiddle. 17 understood that within the Port Authority, the 18 deputy executive director had equal authority. 19 It was The vice chairman testified about 20 these parallel chains of -- of command that were 21 understood. 22 made within New Jersey, it was understood that 23 that would fall within the deputy executive 24 director's scope of authority. 25 Particularly for -- for decisions JUSTICE SOTOMAYOR: I think one of the Heritage Reporting Corporation Official - Subject to Final Review 24 1 government's main arguments for -- on the 2 sufficiency of the evidence, which is fairly 3 pro-government, and in this situation, was that 4 Mr. Wildstein had to lie to the Port Authority 5 employees about the executive director knowing 6 about this lane change. 7 If, in fact, the reality of the 8 situation was that Mr. Baroni couldn't do this 9 without the executive director's acquiescence or 10 acceptance, doesn't that show his lack of 11 authority? 12 sufficient evidence? 13 Isn't that -- why isn't that MR. LEVY: So -- so two things, Your 14 Honor. 15 on a sufficiency ground and -- for reasons we 16 argued in our reply brief. 17 that, we're not saying the lie might not be a 18 piece of evidence, but even the government 19 concedes in this case that the lie does not show 20 a lack of authority. 21 First of all, I don't believe we're here But, even within The government concedes that an 22 authorized official is permitted to lie to their 23 subordinates. 24 circularly, that lie automatically establishes 25 the lack of authority. And so it cannot be that, Here, all of the Heritage Reporting Corporation Official - Subject to Final Review 25 1 evidence at trial was that Mr. Baroni had 2 plenary authority over the operations of the 3 Port Authority. 4 Mr. Wildstein actually testified -- 5 his first answer when he was asked why did you 6 come up with this traffic study, his first 7 answer was: 8 purposes of explaining it to local officials. 9 When pressed by the government, he said: For purposes of the media and for Also 10 to give a reason to -- to career officials. 11 the fact that he has to -- not that he has to -- 12 that he chooses to tell a lie to career 13 officials to -- to make this go over more 14 smoothly in the same way that a public official 15 wouldn't tell the world that they're doing 16 something for a political reason. 17 JUSTICE SOTOMAYOR: 18 moment on the traffic study? 19 MR. LEVY: But Would you spend a Certainly, Your Honor. The 20 -- the government has conceded that if Mr. -- 21 and, again, this is new in this Court, all of 22 these concessions -- that if Mr. Baroni had 23 authority to order a traffic study, then he 24 could do so even with the intention of causing 25 traffic in Fort Lee. And they concede that he Heritage Reporting Corporation Official - Subject to Final Review 26 1 had the authority to order a traffic study. 2 all of that is conceded. 3 So What they say is he lied about the 4 existence of a traffic study. 5 out in our reply brief, there was no lie about 6 the existence of a traffic study. 7 representation at all about the existence of a 8 traffic study. 9 And as we point There was no Mr. Wildstein went to the bridge 10 supervisors and told them: 11 what will happen, what the effect on traffic 12 will be, if we switch these three lanes. 13 switch these three lanes -- or maybe not with 14 the "please" -- and -- and study the results. 15 Collect the numbers and tell me what the results 16 are. 17 I would like to know Please The only part of that as a 18 representation is the first part: 19 to know, my motivation is, my purpose is. 20 the government agrees that's not capable of 21 being the lie for purposes of a fraud 22 conviction, a money and property fraud 23 conviction. 24 25 I would like And The other two parts are an instruction. They were an instruction to do a Heritage Reporting Corporation Official - Subject to Final Review 27 1 traffic study. 2 Authority did that. 3 spent a great deal of time at trial proving, is 4 that money was spent on a traffic study that 5 they say was illegitimate because nobody ever 6 cared about the results. 7 And the employees at the Port That's what the government But the government agrees now that 8 caring about the results is not an issue. 9 say the traffic study didn't exist. 10 They And that's just flatly contrary to -- 11 JUSTICE KAGAN: 12 MR. LEVY: 13 JUSTICE KAGAN: Mr. Levy -- -- what's true. -- is it your position 14 that -- suppose Mr. Baroni had said I'm giving 15 you no reason at all or suppose Mr. Baroni had 16 said we're going to do a traffic study, but it's 17 going to be a sham traffic study. 18 Would he still have had authority? 19 MR. LEVY: Certainly, the first one. 20 He certainly had at any point the discretion to 21 say, as somebody had done very early on in 22 creating these three traffic lanes -- they 23 weren't required by anything -- at any point in 24 time could -- could have said I think they 25 should have a fourth or I think they should have Heritage Reporting Corporation Official - Subject to Final Review 28 1 only two or only one. And that was fully within 2 his authority. 3 proved this case below, that was their point, 4 that was their summation, was he abused the 5 authority he was entrusted with. And as the government argued and 6 JUSTICE KAGAN: 7 going to do a sham traffic study? 8 9 MR. LEVY: can do that. And the second, we're I -- I think he can -- he I think, as a functional matter, 10 who knows what actually results from that, but, 11 yes, he has the authority to say we're going to 12 do a traffic study because I want to do this 13 thing and -- and for public reasons, it's easier 14 to do a traffic study. 15 JUSTICE KAGAN: And you said that this 16 was not a sufficiency question. 17 if it's not a sufficiency question because, as I 18 understand your arguments, you're not pointing 19 to any instruction that was incorrect or to -- 20 to the rejection of an instruction that you 21 offered, so how are we to look at this other 22 than through a sufficiency lens? 23 MR. LEVY: But what is it Frankly, the -- the -- the 24 most obvious way to do is as a government 25 forfeiture of the issue. The -- the defendants Heritage Reporting Corporation Official - Subject to Final Review 29 1 in the district court said the line is authority 2 and if we were authorized, then -- then that is 3 a complete defense and the government told the 4 district court do not give that instruction. 5 And the district court said, I'm not 6 giving that instruction because it is not a 7 defense and I don't want to confuse the jury 8 into believing it is. 9 Now, in this Court, the government is 10 saying, actually, it turns out the hinge between 11 guilt and innocence is whether or not he was 12 authorized and we get the benefit of a 13 sufficiency of the evidence deferential review, 14 even though we told the district court that this 15 issue didn't matter at all. 16 The government has forfeited the 17 opportunity to prove that Mr. Baroni lacked 18 authority. 19 district court and they said it didn't matter. 20 21 We offered to have that fight in the Now, in this Court, this Court should assume that there was no lack of -- 22 JUSTICE ALITO: 23 MR. LEVY: 24 JUSTICE ALITO: 25 Is there -- -- authority. -- any -- any reason to think that the jury actually made a finding Heritage Reporting Corporation Official - Subject to Final Review 30 1 about Baroni's authority? 2 MR. LEVY: No, there is no reason 3 whatsoever. 4 attempting to make sure that they didn't 5 consider that to be relevant or that -- that was 6 what we pressed, was this is the relevant 7 distinction and the district court wanted to be 8 sure that the jury did not believe that it would 9 be a defense. 10 The -- the district court was And nothing in the -- in the jury 11 instructions suggested that it would be a 12 defense. 13 14 15 16 17 18 19 Thank you. CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Feigin. ORAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE RESPONDENT MR. FEIGIN: Thank you, Mr. Chief Justice and may it please the Court: 20 The defendants in this case committed 21 fraud by telling a lie to take control over the 22 physical access lanes to the George Washington 23 Bridge and the employee resources necessary to 24 realign them. 25 existence of a Port Authority traffic study, Unless they lied about the Heritage Reporting Corporation Official - Subject to Final Review 31 1 none of them had the power to direct those 2 resources and realign the lanes. 3 Because they told that lie, those 4 resources were answering to them, to their own 5 private purposes rather than to the public 6 officials who were duly appointed to decide what 7 those resources should be allocated to do. 8 Their actions in this case were fraud 9 in just the same way that it would be fraud for 10 someone with no connection to the Port Authority 11 to impersonate Port Authority supervisors and 12 order Port Authority employees to realign Port 13 Authority lanes. 14 Or if we want to put this in the 15 private context: 16 authority by deception of a taxicab company's 17 dispatcher and order the cabs and the drivers to 18 go wherever the fraudster pleases. 19 For someone to usurp the They don't get a free pass simply 20 because Baroni worked for the Port Authority 21 when the evidence showed that he didn't have the 22 power to direct these resources in this way 23 without telling the lie. 24 25 They don't get a free pass because they're hypothesizing that legitimate Heritage Reporting Corporation Official - Subject to Final Review 32 1 decision-makers might, in theory, have decided 2 to realign the lanes when the precise point of 3 their scheme was to take these resources out of 4 the legitimate decision-maker's hands and put 5 them into their own hands. 6 And they don't get a free pass simply 7 because their motive happened to be political. 8 Let me start with the legal argument that was 9 made by Kelly's counsel, which seems to be 10 drawing a distinction between public uses and 11 private uses. 12 problems with that. And I think there are two main 13 Actually, probably three. 14 don't see where a license for that is in the 15 statute. 16 problem, which is that it seems to draw a 17 distinction between fraud where the victim is a 18 public entity and fraud where the victim is a 19 private entity. 20 distinction in Pasquantino. 21 One is, I And that gets me right to the second And the Court rejected that I don't know in the taxicab 22 hypothetical what it means to say that it's only 23 fraud if those cabs then go to private use. 24 It's a -- we're talking about a private company 25 in that context. Heritage Reporting Corporation Official - Subject to Final Review 33 1 And the third problem is, I don't know 2 how a jury -- I -- I think some justices on this 3 Court were grappling with this -- I don't know 4 how a jury decides the difference between a 5 public and a private use. 6 JUSTICE BREYER: 7 MR. FEIGIN: 8 JUSTICE BREYER: 9 How -- how -- There can be --- do you -- I mean, you have two separate points, I think. One -- 10 one is your statement now, which I think is 11 stronger than in your brief, that if you have 12 authority and you work for a government, only if 13 you say and tell them a lie, an untruth, then 14 you don't have authority. 15 My goodness, the Code of Federal 16 Regulations, the rules of any department, the -- 17 I mean, the government is filled with rules. 18 And there are numerous instances where a person 19 might say something untrue about something 20 related to a rule that gives him authority for 21 that. 22 back to honest services. 23 of the second. That's enough to take -- we're -- we're And that's also true 24 If, in fact, I can -- there are two 25 separate parts to the second, I might as well Heritage Reporting Corporation Official - Subject to Final Review 34 1 get both questions out, is that fair? 2 on authority is I -- I don't know where that 3 comes from. 4 something in government, but you can't or you 5 lie about some -- anything, that wouldn't -- you 6 wouldn't without it, well, then you're in the 7 property stealing statute. 8 The one But if you have authority to do And the second problem with your 9 second claim is, if you don't have authority, 10 but you put what you take to a public use -- 11 now, either that is, does, is -- is -- is -- is 12 a conversion of property and -- a -- a -- 13 obtaining of property within the statute or it 14 isn't. 15 If it is, I don't see how honest 16 services fraud is not back in the statute, which 17 has been ruled out since McNally. 18 isn't, I don't see how this case works. 19 MR. FEIGIN: And if it Well, Your Honor, let me 20 answer the second part of your question first 21 and then I'll try to get back to the first part. 22 To answer the second part of your question, I 23 don't -- as I was saying, I don't think there's 24 a distinction between private and public uses 25 works, because that's not a distinction that the Heritage Reporting Corporation Official - Subject to Final Review 35 1 statute draws. It's not a distinction -- 2 JUSTICE BREYER: 3 MR. FEIGIN: 4 JUSTICE BREYER: 5 MR. FEIGIN: 6 -- you can draw -- -JUSTICE BREYER: 8 MR. FEIGIN: 9 JUSTICE BREYER: My point was -- -- and --- why then -- we're back to honest services. 11 MR. FEIGIN: 12 JUSTICE BREYER: 13 -- we're back to -- -- with public entities 7 10 Well, then -- So -There is no deprivation -- 14 MR. FEIGIN: But that's -- 15 JUSTICE BREYER: -- of honest services 16 that does not require somebody in the government 17 to spend some time or use some paper or use a 18 telephone in order to achieve that dishonest 19 thing, all right? 20 If you're going to count that as 21 property, well, fine, you could do it, I guess 22 under some statute, but if you do it under this 23 statute, this statute then prohibits the taking 24 of dishonest services, exactly what the Court 25 has held it doesn't do. Heritage Reporting Corporation Official - Subject to Final Review 36 1 MR. FEIGIN: So, Your Honor, if -- if 2 I might answer that, it will take me a second to 3 play this out, but I think it's a very important 4 distinction. 5 different kinds of frauds together and make them 6 all sound as if they're the same. 7 about a very specific kind of fraud, 8 commandeering fraud. They're trying to lump a bunch of This case is 9 It is when the defendant tries to take 10 over property that is in the hands of the victim 11 and manage it as if it is his own property. 12 That's what they were doing with the lanes on 13 the bridge and the employee resources. 14 So, for example, if there's a snowplow 15 sitting there and I take the keys to the 16 snowplow and I drive off in the snowplow, 17 everyone would agree that I've obtained the 18 snowplow. 19 If I instead put on one of those masks 20 from the mission impossible TV show or the movie 21 and I impersonate the boss of the snowplow 22 driver and I tell the snowplow driver to drive 23 around in the snowplow and do the exact same 24 thing that I was going to do, I have obtained 25 the snowplow and the driver services by fraud. Heritage Reporting Corporation Official - Subject to Final Review 37 1 2 CHIEF JUSTICE ROBERTS: Well, but -- but -- 3 MR. FEIGIN: But not every fraudulent 4 scheme and not every deceptive scheme works that 5 way. 6 which somebody simply wants an agency to do 7 something or wants a private victim to do 8 something on his behalf. 9 look at what is actually the object of the Sometimes there are deceptive schemes in And then you have to 10 scheme and how the scheme works to see if the 11 agency is deprived of property. 12 CHIEF JUSTICE ROBERTS: So -But the basic 13 difference between the taking the snowplow is 14 that the official has no authority to take the 15 snowplow for his private uses. 16 does have authority to regulate how lanes are 17 used on -- on the -- on the highway and say 18 these are going to be used for Fort Lee, these 19 aren't. 20 MR. FEIGIN: The official Well, first of all, Your 21 Honor, Baroni did not have that authority in 22 this case, and -- 23 24 25 CHIEF JUSTICE ROBERTS: Well, that's -MR. FEIGIN: -- and I can get to the Heritage Reporting Corporation Official - Subject to Final Review 38 1 evidence -- 2 CHIEF JUSTICE ROBERTS: 3 MR. FEIGIN: -- disputed. I can get to the -- I can 4 get to the evidence of that in a second. But 5 also I -- I don't think that it's fair to call 6 this a public use. 7 public use is the use to which the legitimate 8 supervisors of the Port Authority have decided 9 to put the Port Authority -- What we would say is a 10 CHIEF JUSTICE ROBERTS: 11 you're saying, your theory is that by the 12 actions in this case, they have commandeered the 13 lanes on the expressway? 14 MR. FEIGIN: Okay. So what Yes, Your Honor. 15 That's -- they commandeered the lanes and the 16 resources necessary to reallocate. 17 CHIEF JUSTICE ROBERTS: 18 being used for public purposes. 19 MR. FEIGIN: They're still Your Honor, I'm not sure 20 what they mean when they say they are being used 21 for public purposes. 22 So if -- CHIEF JUSTICE ROBERTS: Because if 23 other people want to use the highway to get to 24 Fort Lee, they can. 25 MR. FEIGIN: So -- Heritage Reporting Corporation Official - Subject to Final Review 39 1 2 CHIEF JUSTICE ROBERTS: They have nothing to do with the scheme at all. 3 MR. FEIGIN: So, Your Honor, I -- I 4 guess I would -- I would push back on this to 5 this extent. 6 bridge, is that a public use or private use? 7 they decide that only Kelly can use that lane, 8 is that a public use or a private use? 9 decide that only red cars can go down that lane, 10 JUSTICE BREYER: If they They didn't decide any of those things. 13 MR. FEIGIN: 14 JUSTICE BREYER: 15 If is that public or private use? 11 12 If they decided to close the Well -They said anybody. It was just a problem getting there -- 16 MR. FEIGIN: Well, Your Honor -- 17 JUSTICE BREYER: -- which was quite a 18 problem, I grant you. Quite a problem. 19 they used it for cars going down. 20 snowplow. 21 MR. FEIGIN: 22 JUSTICE BREYER: But Well, Well, Your Honor -Hey, there's a law 23 here, a rule, a rule, no, a rule: Treat every 24 street alike. And you know what the snowplow 25 operator did? He snowplowed the mayor's street Heritage Reporting Corporation Official - Subject to Final Review 40 1 first. 2 Now, that is not a good thing to do. 3 It is really undesirable. 4 be a crime. 5 not sure. 6 with property fraud. 7 and putting it to the use of the public streets 8 in violation of a rule, treating the mayor 9 better -- is that a property crime? 10 And maybe it should But 30 years in prison? That, I'm And that's -- this statute has to do MR. FEIGIN: And is taking the snowplow Your Honor, in that -- 11 in that law -- in that hypothetical, there is -- 12 we would not say that is fraud. There is no 13 lie. There's -- There's nothing material. 14 15 JUSTICE BREYER: Oh, of course, there is. 16 MR. FEIGIN: -- no intent to fraud. 17 JUSTICE BREYER: My -- my where are 18 you going? I am going to Fifth Street first, 19 and then I will go to the grocery store down the 20 street -- 21 MR. FEIGIN: Yeah. 22 JUSTICE BREYER: 23 And you know what he did? 24 councilman's street. 25 It's easy to make up cases that there's a lie --- and then I -- Ah. He went to the city All right? There's a lie. Heritage Reporting Corporation Official - Subject to Final Review 41 1 in, and that's my problem, same problem. 2 back into honest services fraud, which is fraud 3 and bad. 4 statute get it? 5 We're And -- and the question is does this MR. FEIGIN: We are not in honest 6 services fraud, Your Honor. First of all, the 7 lie in your hypothetical was not a lie that was 8 told to obtain property. 9 about what he was going to do. It was just a lie 10 But here's the reason we're not in -- 11 JUSTICE BREYER: 12 MR. FEIGIN: 13 -- honest services fraud -- 14 15 They wouldn't have -- JUSTICE BREYER: They wouldn't have given it to him if they -- 16 MR. FEIGIN: In -- in the honest 17 services frauds -- fraud cases, in McNally, for 18 example, there was no dispute that the 19 defendants in McNally had the authority to 20 decide who was going to insure the State of 21 Kentucky. 22 JUSTICE BREYER: 23 MR. FEIGIN: 24 JUSTICE ALITO: 25 Well -- The problem was -Mr. Feigin, that -- this is what troubles me about your -- your Heritage Reporting Corporation Official - Subject to Final Review 42 1 argument. Your argument is that, if Baroni was 2 authorized, he could not be convicted; am I 3 right? 4 MR. FEIGIN: 5 JUSTICE ALITO: 6 Yes -If he had the authority -- 7 MR. FEIGIN: -- if Baroni had the 8 authority to do what he did, then he's not 9 committing fraud. 10 11 JUSTICE ALITO: All right. And you say -- 12 MR. FEIGIN: Even if he tells a lie. 13 JUSTICE ALITO: Okay. And -- and you 14 say that takes care of a lot of these 15 hypotheticals that seem -- that are disturbing 16 to some people. 17 found that he was authorized, and there's 18 sufficient evidence to support that finding. 19 That's the -- 20 21 MR. FEIGIN: But the jury The jury found he wasn't authorized -- 22 23 And you say: JUSTICE ALITO: I'm sorry. The jury found -- 24 MR. FEIGIN: Yes. 25 JUSTICE ALITO: -- he was not Heritage Reporting Corporation Official - Subject to Final Review 43 1 authorized, and there's sufficient -- 2 MR. FEIGIN: That's correct. 3 JUSTICE ALITO: -- evidence, viewing 4 the evidence in the light most favorable to the 5 verdict to support the finding. 6 But I see no indication whatsoever, no 7 reason to believe the jury made any such 8 finding. 9 several times. I've read these jury instructions There's nothing in there that 10 would alert a jury, a juror, to the obligation 11 to find that Baroni was unauthorized, unless I 12 missed something. 13 MR. FEIGIN: Let me say a couple 14 things about that. One, they did not make an 15 objection to the jury instructions properly 16 either -- in the court of appeals. 17 part of the -- 18 JUSTICE ALITO: 19 MR. FEIGIN: 20 -- question presented JUSTICE ALITO: I know that. But I've never -- 23 MR. FEIGIN: 24 JUSTICE ALITO: 25 No, I -- here. 21 22 It's not Okay. -- I've never seen a criminal case where we're asked to defer to a Heritage Reporting Corporation Official - Subject to Final Review 44 1 jury's finding on something that the jury didn't 2 find. 3 there's any evidence to show that he lacked 4 authority. 5 Putting aside the question of whether MR. FEIGIN: So let me point you to a 6 -- a couple of places, and then let me talk a 7 little about the evidence of lack of authority. 8 First of all, there's the instruction 9 that the court of appeals deemed adequate, and 10 that's at page 875 of the Joint Appendix, which 11 is the instruction on obtaining property, which 12 the court of appeals deemed sufficient to notify 13 the jury that when someone is acting on behalf 14 of an organization, acting as the agent of that 15 organization, he's not obtaining property when 16 he exercises the authority that the agency is 17 duly conferred on him. 18 But even better than that is the 19 materiality instruction from pages 875 to 876, 20 which says that if you find that the 21 representation that the lane and toll booth 22 reductions was for the purpose of a -- for the 23 -- was for the purpose of a traffic study was 24 false, you must determine whether that 25 representation was one that a reasonable person Heritage Reporting Corporation Official - Subject to Final Review 45 1 might have considered important in making his or 2 her decision to commit Port Authority resources 3 for that endeavor, including services of Port 4 Authority personnel. 5 6 JUSTICE ALITO: that -- 7 MR. FEIGIN: 8 JUSTICE ALITO: 9 That -What does that say about authorize -- about authority to -- 10 MR. FEIGIN: 11 JUSTICE ALITO: 12 What -- what does Your Honor, if --- to reallocate the lanes? 13 MR. FEIGIN: If Baroni actually had 14 the authority to reallocate the lanes for any 15 reason or no reason, as his counsel just stated 16 to this Court that he did, I don't see how the 17 jury could have found that the lies that they 18 told were material. 19 Baroni -- JUSTICE SOTOMAYOR: Mr. Feigin, 20 everybody has authority to spend or do their act 21 on behalf of the agency. 22 for their own personal purposes is unauthorized. 23 So it's meaningless to say is he authorized or 24 not. 25 under certain circumstances? Anybody who does it Did he have authority to close the lanes Heritage Reporting Corporation Official - Subject to Final Review 46 1 2 MR. FEIGIN: don't -- 3 4 JUSTICE SOTOMAYOR: Did he have authority to close the lanes on his own say? 5 6 Well, Your Honor, I MR. FEIGIN: Honor. He might have, Your What he didn't have -- 7 JUSTICE SOTOMAYOR: 8 MR. FEIGIN: 9 JUSTICE SOTOMAYOR: Did you prove -- -- was the authority --- that -- did you 10 prove that he had limited authority? 11 you prove that? 12 MR. FEIGIN: Where did We proved that he did not 13 have the authority to close the lanes under 14 these circumstances without telling the lie. 15 And I -- I can explain why if you would like. 16 In -- when Wildstein proposed the idea 17 of realigning the lanes, Baroni's response was 18 to ask Wildstein how he was going to do that. 19 Wildstein then came up with the idea that they 20 would have a traffic cover story -- the cover 21 story of a traffic study, and he explained at 22 the time to Kelly that one purpose of the 23 traffic study cover story was in order to enlist 24 the Port Authority officials that they would 25 need in order to realign the lanes. Heritage Reporting Corporation Official - Subject to Final Review 47 1 He then had to lie to both the manager 2 of the George Washington Bridge and the manager 3 of tunnels, bridges, and terminals that the 4 executive director was aware of this and 5 apparently had tacitly approved of it; where, in 6 fact, they were absolutely concealing it from 7 the executive director. 8 JUSTICE SOTOMAYOR: 9 MR. FEIGIN: 10 By the way -- Wildstein -- JUSTICE SOTOMAYOR: -- if -- if, 11 contrary to the -- their expectations, there had 12 been no slowing of traffic and, in fact, the 13 lanes on -- one-lane traffic remained the same 14 or maybe improved, would you still have a case 15 here? 16 17 MR. FEIGIN: Yes, Your Honor. It's not about the effect of -- 18 JUSTICE SOTOMAYOR: 19 MR. FEIGIN: And so -- -- although the effect 20 was catastrophic and that was a reason why the 21 prosecution was brought, because of the 22 incredible danger in which they put the citizens 23 and commuters of Fort Lee, but they would still 24 have committed the same crime. 25 And they were hiding it from the Heritage Reporting Corporation Official - Subject to Final Review 48 1 executive director. Wildstein testified 2 directly that there were processes in place to 3 use the Port Authority resources, and he didn't 4 follow them. 5 found out, he immediately canceled it and he 6 stated that the process had been "subverted." And when the executive director 7 JUSTICE KAGAN: 8 MR. FEIGIN: 9 Mr. Feigin -- Now, Baroni clearly had significant authority within the Port Authority 10 organization, but when someone questions how 11 they're going to do something, has no idea how 12 he's going to do something, and has to lie in 13 order to accomplish it, has to lie that his boss 14 has approved it, has to conceal it from his boss 15 and has to avoid every legitimate -- 16 JUSTICE ALITO: 17 MR. FEIGIN: 18 JUSTICE ALITO: But isn't it -- -- process --- isn't it often the 19 case that somebody who has the authority to do 20 something may lie about why the person is doing 21 the thing because, if the real reason was 22 exposed, there would be -- it would cause a 23 furor, people would be angry, but that doesn't 24 show the person doesn't have the authority to do 25 it. Heritage Reporting Corporation Official - Subject to Final Review 49 1 A person hires his brother-in-law for 2 a position. Why did you hire this particular 3 person? 4 qualified person for this job. 5 reason is his wife wants him to do it. Well, this person is the very best 6 (Laughter.) 7 JUSTICE ALITO: 8 it. 9 to fill this position? 10 When the real He doesn't want to say Does that show he didn't have the authority MR. FEIGIN: No, Your Honor, then -- 11 but that's not the only piece of evidence we're 12 relying on, and it's a different kind of lie. 13 This isn't a lie about why they're doing it. 14 This is a lie that -- Wildstein directly 15 testified that they needed to tell in order to 16 get the resources that they -- that they needed. 17 It was clearly important to the George 18 Washington Bridge manager and the manager of 19 tunnels, bridges, and terminals. 20 something the executive director knew about. 21 Both the executive director and the vice 22 chairman of the Port Authority Board of 23 Commissioners testified that they would expect 24 to be notified about something that was even an 25 order of magnitude less disruptive than this was This was Heritage Reporting Corporation Official - Subject to Final Review 50 1 ever going to be, and they weren't notified. 2 JUSTICE BREYER: 3 JUSTICE KAGAN: 4 JUSTICE BREYER: Why -Mr. Feigin -What do you do about 5 this, this is the same, but I don't want to lose 6 what the question was in light of the 7 instructions given. 8 9 And what I have so far found is that the defense did ask the jury to be instructed to 10 do just what you want. They asked the jury -- 11 they said: 12 Port Authority granted or bestowed on the 13 defendants the power or authority to control the 14 property, the bridge, et cetera, and that they 15 acted within the bounds of that authority, then 16 you can't find the scheme to defraud. Judge, tell the jury that if the 17 I think you agree with that. 18 problem is the judge said no, I won't give that 19 instruction. 20 instruction -- insofar as the court of 21 appeals -- and we're reviewing the court of 22 appeals. 23 well, they gave the essence of it, this was the 24 instruction supposed to be the essence of it. 25 And the Then what the judge gave as an Insofar as the court of appeals said, To establish a scheme to defraud, the Heritage Reporting Corporation Official - Subject to Final Review 51 1 government must also prove that the scheme 2 contemplated depriving the authority -- the Port 3 Authority, the port people, of money and 4 property. 5 What? That's the essence of what he didn't 6 give? Now, I -- I -- I haven't read the two 7 instructions you read, but the one that I read, 8 I think, is the one that the court of appeals 9 relied upon. 10 MR. FEIGIN: 11 JUSTICE BREYER: 12 13 So, Your Honor -So what do we do about that? MR. FEIGIN: Well, Your Honor, I would 14 look back at the materiality instruction I was 15 discussing with Justice -- 16 JUSTICE BREYER: 17 MR. FEIGIN: 18 JUSTICE BREYER: 19 20 Yeah. -- Alito. But that isn't what the court of appeals relied upon. MR. FEIGIN: Well, Your Honor, I think 21 if the court of appeals got the substance of it 22 right, and you don't agree with its particular 23 reasoning, there is no reason to reverse, 24 particularly when the question hasn't even been 25 presented to this Court. Heritage Reporting Corporation Official - Subject to Final Review 52 1 This question -- this point was only 2 really raised in the reply brief of Baroni who 3 didn't even petition. 4 authority instruction that was rejected by the 5 district court directly. 6 But let me address the That instruction was proposed in the 7 context primarily of an instruction on 18 U.S.C. 8 666, which is the more general misappropriation 9 of federal funds statute. And the instruction 10 on that, which appears at page 870 of the Joint 11 Appendix, already itself contains a reference to 12 authority. 13 Both the government and the district 14 court were quite clear in the district court -- 15 and you'll see this finding by both the court of 16 appeals and the district court -- that Baroni 17 and Kelly were free to argue the authority 18 issue. 19 was going to get a specific instruction on that 20 point. 21 The only question was whether the jury And the government believed the 22 instruction was unnecessary. It was -- it would 23 have been a novel addition to the Third 24 Circuit's pattern jury instruction on section 25 666, and, moreover, I don't know that their Heritage Reporting Corporation Official - Subject to Final Review 53 1 instruction was, in fact, correct because it 2 would -- might have confused the jury into 3 thinking -- and this goes back to my colloquy 4 with Justice Sotomayor -- that if Baroni had 5 some authority under some circumstances, that 6 that would exonerate -- 7 CHIEF JUSTICE ROBERTS: 8 MR. FEIGIN: 9 CHIEF JUSTICE ROBERTS: But you say -- -- all of the defendants. -- the 10 instruction -- you -- you thought the 11 instruction was unnecessary. 12 have been the case in light of your theory at 13 the time, but surely after your focus here on 14 the authority point, you -- you wouldn't make 15 that same statement. 16 MR. FEIGIN: Well, that may Well, Your Honor, I think 17 that in retrospect it might have been better to 18 instruct the jury somewhat more specifically on 19 authority. 20 -- 21 22 I don't know that there's specific CHIEF JUSTICE ROBERTS: Somewhat more -- 23 MR. FEIGIN: -- their specific -- 24 CHIEF JUSTICE ROBERTS: 25 specifically on the central point of your -- Heritage Reporting Corporation Official - Subject to Final Review 54 1 2 argument before us today. MR. FEIGIN: I don't know their 3 specific instruction would have accomplished it. 4 And I don't know the instructional issue is 5 before the Court -- is before the Court today. 6 But we are defending this -- these 7 convictions on the precise same ground that they 8 were found to be valid by both the court of 9 appeals and the district court, which addressed 10 11 the authority issue. The district court addressed the 12 authority issue before trial telling the 13 defendants they could argue it at trial. 14 addressed it after trial, saying it believed the 15 authority had been proven. 16 Circuit addressed it. 17 It And then the Third And we have been consistent throughout 18 in that -- that we have never argued, to my 19 knowledge -- and I certainly haven't identified 20 a place where we have argued -- that if Baroni, 21 in fact, had the authority that his counsel just 22 claimed he had, which is to realign the lanes 23 for any reason or no reason, that these 24 defendants could have -- 25 JUSTICE SOTOMAYOR: Mr. Feigin -- Heritage Reporting Corporation Official - Subject to Final Review 55 1 2 MR. FEIGIN: -- been convicted of fraud. 3 JUSTICE SOTOMAYOR: -- nobody, no 4 decision-maker has the authority to make any 5 decision for no reason. 6 terms. 7 That's a misnomer in People have authority to do things 8 only in the interest of the agency. So give me 9 a line drawing of for a reason or no reason, 10 meaning, I don't think anybody in the Port 11 Authority, including the executive director, 12 could on whim say: 13 on a board. 14 I just like to see a different pattern today. 15 16 Ah, you know, I like playing Let's change it to one lane because MR. FEIGIN: So my -- my apologies, Your Honor. 17 JUSTICE SOTOMAYOR: 18 MR. FEIGIN: 19 JUSTICE SOTOMAYOR: I -- I -- I simply --- I -- so -- so 20 give me your definition of what authorized 21 means, if he had the ability -- and when I first 22 read your brief, it was if he had the ability to 23 change the lanes on his own, then he had 24 authority. 25 MR. FEIGIN: Yeah. That -- Heritage Reporting Corporation Official - Subject to Final Review 56 1 JUSTICE SOTOMAYOR: All right. Now, 2 what the limits of that authority are, is where 3 I -- where I'm trying to get you. 4 5 MR. FEIGIN: So, Your Honor, if he were -- 6 JUSTICE SOTOMAYOR: 7 can't be no -- no authority. 8 MR. FEIGIN: 9 JUSTICE SOTOMAYOR: 10 11 How -- but it So, Your Honor -Does he never have authority -MR. FEIGIN: -- I was -- I apologize, 12 I was simply repeating the language that the 13 court of appeals itself used which may have been 14 a little hyperbolic, but if he were the person 15 to whom the Port Authority entrusted the 16 decision of whether there should be three lanes 17 or one, such that his decision under these 18 circumstances would govern, then he had the 19 authority. 20 21 I think the evidence showed that he was not that person. Again, he had to lie -- 22 JUSTICE SOTOMAYOR: 23 MR. FEIGIN: 24 JUSTICE SOTOMAYOR: 25 The fact that -- -- about his boss --- the -- the fact that the executive director could overturn him Heritage Reporting Corporation Official - Subject to Final Review 57 1 doesn't prove the positive. 2 MR. FEIGIN: That's right, Your Honor. 3 We wouldn't rely on that piece of evidence 4 alone, just like, Justice Alito, we're not 5 relying alone on the fact -- on the fact that he 6 had -- that he told a lie. 7 combination of circumstances. 8 9 We're relying on a Again, as -- as I was saying earlier, if -- when an idea of something to do with my 10 organization's resources is raised to me and my 11 initial reaction is, how are we going to do 12 that, and then the idea is to tell a lie that 13 will get everyone onboard with it, and then we 14 lie about the fact that my boss is aware of it 15 and -- and tacitly approves of it, we avoid 16 every legitimate process and we conceal it from 17 my boss. 18 I think a reasonable jury can 19 rationally conclude that I'm doing something 20 that I don't have the authority to do. 21 that's -- 22 23 24 25 JUSTICE KAGAN: And Mr. Feigin -- please finish. MR. FEIGIN: Sorry, I was just going to say, that's what Baroni did here. Heritage Reporting Corporation Apologies Official - Subject to Final Review 58 1 to Justice Kagan. 2 JUSTICE KAGAN: Can -- can -- can I 3 switch, because the statute clearly says that a 4 scheme of deception has to -- the object of it 5 has to be to obtain property. 6 about that for a minute? 7 So can we talk Because if I look at this, and I'm an 8 ordinary juror, I'm thinking, you know, the 9 object of this deception was not to obtain 10 property. The object was to create a traffic 11 jam. 12 politically. 13 of ways. The object was to benefit people You can frame the object in lots 14 But notwithstanding that some employee 15 time was given over to this scheme, that was not 16 the object of the scheme, was it, to appropriate 17 that employee time? 18 MR. FEIGIN: Well, Your Honor, I think 19 it was because this was -- this gets back to 20 what I was saying to Justice Breyer earlier. 21 This is a particular type of fraud, 22 where -- it's commandeering fraud, where what 23 they're trying to do is to take property that's 24 in the victim's hands, here the Port Authority, 25 and convert it to their own uses. Heritage Reporting Corporation Official - Subject to Final Review 59 1 It may be that if I take a knife off 2 the table and stab -- that doesn't belong to me, 3 and stab someone, my end goal is to stab someone 4 but I've still stolen the knife. 5 JUSTICE KAGAN: But wasn't the 6 commandeering here completely incidental, indeed 7 unnecessary to the scheme being carried out? 8 other words, you know, there was a little bit 9 of -- of -- of time for an extra toll person, In 10 actually to mitigate the -- the problems of the 11 traffic jam or there were some people running 12 around counting cars to conceal the purpose for 13 what they were -- of what they were doing, but 14 that was not the object of the scheme. 15 MR. FEIGIN: No, Your Honor, the 16 object of the scheme was for them to take 17 control of real property, physical lanes, 18 accessing the George Washington Bridge, and have 19 those lanes be allocated the way they wanted. 20 JUSTICE KAGAN: Okay. So that's a 21 different theory. 22 and labor. 23 appropriating the George Washington Bridge; is 24 that right? 25 That's not the employee time That's something about like MR. FEIGIN: That is one -- Heritage Reporting Corporation Official - Subject to Final Review 60 1 JUSTICE KAGAN: It's not appropriating 2 the George Washington Bridge, it's reallocating 3 lanes on the George Washington Bridge and I 4 would have thought that Cleveland makes clear 5 that that's not an appropriation of property 6 either. 7 MR. FEIGIN: I -- I -- Your Honor, I 8 think it's both because they needed the employee 9 resources in order to accomplish what they were 10 11 trying to do with the bridge. And if I could address Cleveland for a 12 second, this case and Cleveland do both involve 13 governmental decision-making but that's where 14 the similarities end. 15 In Cleveland, the object of the scheme 16 was to obtain a license under a regulatory 17 scheme that had no private analog whatsoever. 18 The Court rejected every private analog the 19 government offered for it. 20 wasn't property in the government's hands. 21 And the license Here you're talking about real 22 property, physical lanes and who can access 23 those lanes, and access rights to physical 24 property are quintessential forms of private 25 property, probably one of the oldest forms of Heritage Reporting Corporation Official - Subject to Final Review 61 1 property we have. 2 And then you have the employee 3 resources necessary to reallocate the lanes, 4 which I think even they acknowledge are property 5 under the fraud statute. 6 if you send painters to paint the mayor's house, 7 that that's going to be property fraud because 8 you're taking the employee services. 9 JUSTICE KAGAN: They acknowledge that That's because the 10 object of the scheme is to use the employee 11 labor to get your house painted, but I -- I 12 don't think that you can say the same thing 13 here. 14 MR. FEIGIN: 15 JUSTICE KAGAN: 16 Your Honor, the reason -You were not using the employee labor to create the traffic jam. 17 MR. FEIGIN: They are using the 18 employee labor as if it were theirs, not as if 19 it were something that the Port Authority gets 20 to use. 21 were to impersonate the boss and start ordering 22 around the company jet, I think I have obtained 23 the company jet and probably -- So, again, in the private context, if I 24 25 CHIEF JUSTICE ROBERTS: Well, but you picked -- Heritage Reporting Corporation Official - Subject to Final Review 62 1 2 MR. FEIGIN: -- the pilot's time as well. 3 CHIEF JUSTICE ROBERTS: You -- you 4 picked -- you picked an example that is easy for 5 you. 6 think, is you tell the employee to pick up the 7 phone and call somebody and say this. 8 bad thing. I mean, the example that's hard for you, I That's a 9 And then immediately you say: 10 it's property fraud because I've used the -- the 11 employee has used the telephone, or I've used 12 the four minutes of that employee's time 13 necessary to convey the message. 14 MR. FEIGIN: 15 CHIEF JUSTICE ROBERTS: Okay, So -Your theory 16 would say that that's taking of property so it's 17 covered by the fraud statutes. 18 MR. FEIGIN: We wouldn't, Your Honor, 19 and I'm -- I'm actually glad to have a -- a 20 chance to -- to make this perfectly clear. 21 this gets back to Justice Kagan's question as 22 well. 23 And Incidental uses of property that are 24 not the object of the scheme are not going to be 25 sufficient for property fraud. And I think the Heritage Reporting Corporation Official - Subject to Final Review 63 1 easiest place to look for that is this Court's 2 decision in Loughrin, which involved bank fraud. 3 And the Court said there that if you tell a lie 4 and the object of your lie is to obtain money, 5 it's not bank fraud simply because, unrelated to 6 your lie, you didn't really care how the money 7 came to you. 8 of a check, which is bank property, as opposed 9 to in the form of cash, which isn't. 10 The money comes to you in the form If someone is -- if someone tells a 11 lie and the object is to obtain a license from 12 the State of Louisiana to operate a video poker 13 machine, which is not property, they're not 14 committing property fraud just because some 15 employee needs to spend some time processing the 16 license. 17 That's not the object. CHIEF JUSTICE ROBERTS: Well, here the 18 object -- the object of the scheme was not to 19 commandeer lanes on the bridge. 20 to cause a traffic jam in Fort Lee. 21 could have done it some other way, they would 22 have done it some other way. 23 The object was And if they The use of the traffic -- you know, 24 altering the traffic lane configuration was just 25 the incidental means of achieving the objective. Heritage Reporting Corporation Official - Subject to Final Review 64 1 MR. FEIGIN: I don't think that's 2 right, Your Honor. The lie they told to the 3 Port Authority to get the Port Authority 4 resources was to -- a lie they told in order to 5 get those resources. 6 jam was what they wanted to accomplish with 7 those resources. The causing of the traffic 8 If I tell a lie to get access to the 9 company jet, it may be that my goal is to take 10 it on a vacation trip to Macao, but that's not 11 the object of the scheme as far as the fraud is 12 concerned and the victim of the fraud. 13 Thank you. 14 CHIEF JUSTICE ROBERTS: 15 16 17 18 19 Thank you, counsel. Two minutes, Mr. Roth. REBUTTAL ARGUMENT OF JACOB M. ROTH ON BEHALF OF THE PETITIONER MR. ROTH: Thank you. Your Honor, the 20 -- the federal property fraud statute prohibits 21 schemes to obtain property. 22 government's theory of property here, as I think 23 we just heard, is that the officials, by making 24 this decision about lane alignment, commandeered 25 the control over the George Washington Bridge. And the Heritage Reporting Corporation Official - Subject to Final Review 65 1 That is exactly the type of regulatory control 2 that Cleveland said is not property. 3 referred to the intangible rights of allocation, 4 exclusion, and control. 5 intangible rights of allocation, exclusion, and 6 control are not property for purposes of this 7 statute. 8 9 Cleveland And the sovereign's And, therefore, if what the officials did was used a seat to influence the exercise of 10 those rights, they have not obtained property 11 from the Port Authority. 12 correct, then everything an official does is -- 13 falls within the scope of this statute, and the 14 only question that is open is was there some 15 deceit involved? 16 If that is not And if -- if that is right, I think 17 the chilling effect on honest public servants is 18 going to be severe. 19 JUSTICE KAGAN: Mr. Roth, you 20 responded to one-half of their theory. 21 of their theory is the allocation of lanes. 22 MR. ROTH: 23 JUSTICE KAGAN: 24 25 Yes. And the other half is the employee time. MR. ROTH: One-half Yes. Heritage Reporting Corporation Official - Subject to Final Review 66 1 2 JUSTICE KAGAN: So what's your response to that? 3 MR. ROTH: My response to that, it's 4 actually what he said at the end, which is that 5 the incidental costs of a decision are not the 6 -- are not its object. 7 asked in earlier question. 8 of the regulatory decision is going to use some 9 public resources. And it's what Your Honor The implementation That cannot possibly change 10 the result, or else Cleveland is a complete dead 11 letter. 12 JUSTICE GINSBURG: 13 incidental? 14 scheme. 15 Why do you call it I mean, it was essential to the MR. ROTH: Because it's incidental, 16 Your Honor, in that it -- it was the 17 implementation cost. 18 result of the regulatory decision. 19 regulatory decision was to realign the lanes. 20 That required some employee time in terms of 21 taking tolls and studying the traffic effect, 22 but that was not the object. 23 got done. 24 25 It flowed as -- as a JUSTICE ALITO: million dollars? The That was how it What if it cost a Would it be incidental? Heritage Reporting Corporation Official - Subject to Final Review 67 1 MR. ROTH: No -- yes, Your Honor. 2 would be a incidental. 3 test. 4 Thank you. 7 8 It's not a de minimis It's a question of what is the object. 5 6 It CHIEF JUSTICE ROBERTS: counsel. Thank you, The case is submitted. (Whereupon, at 11:12 a.m., the case was submitted.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 68 Official - Subject to Final Review 1 10:12 [2] 1:15 3:2 11:12 [1] 67:7 14 [1] 1:11 18 [1] 52:7 18-1059 [1] 3:4 2 2 [1] 22:9 20 [1] 2:8 2020 [1] 1:11 3 3 [1] 2:4 30 [2] 2:11 40:4 5 50/50 [2] 22:7,7 6 64 666 [2] 52:8,25 [1] 2:14 8 870 [1] 52:10 875 [2] 44:10,19 876 [1] 44:19 A a.m [3] 1:15 3:2 67:7 ability [2] 55:21,22 above-entitled [1] 1:13 absolutely [2] 11:3 47:6 abuse [2] 19:23,24 abused [2] 18:23 28:4 abuses [1] 19:14 acceptance [1] 24:10 access [5] 12:25 30:22 60:22,23 64:8 accessing [1] 59:18 accomplish [4] 17:1 48:13 60:9 64:6 accomplished [1] 54:3 achieve [1] 35:18 achieving [1] 63:25 acknowledge [2] 61:4,5 acquiescence [1] 24:9 across [1] 23:10 act [1] 45:20 acted [1] 50:15 acting [5] 19:6,7 20:14 44:13,14 action [2] 3:20 5:2 actions [2] 31:8 38:12 actually [12] 18:21 23:15 25:4 28: 10 29:10,25 32:13 37:9 45:13 59: 10 62:19 66:4 addition [1] 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43:16 44:9,12 50:21, 22,22 51:8,19,21 52:16 54:9 56: 13 APPEARANCES [1] 1:17 appears [1] 52:10 Appendix [2] 44:10 52:11 application [2] 9:15,17 appointed [2] 22:21 31:6 appropriate [1] 58:16 appropriating [2] 59:23 60:1 appropriation [1] 60:5 approved [2] 47:5 48:14 approves [1] 57:15 area [1] 4:3 aren't [1] 37:19 arguably [1] 21:6 argue [2] 52:17 54:13 argued [5] 21:14 24:16 28:2 54:18, 20 argument [15] 1:14 2:2,5,9,12 3:4, 7 8:21 20:9 30:16 32:8 42:1,1 54: 1 64:17 arguments [2] 24:1 28:18 around [3] 36:23 59:12 61:22 arrangement [5] 22:14,20 23:1,3, 7 aside [1] 44:2 21 52:13,15 54:8 60:8,12 aspects [2] 20:25 21:22 bounds [1] 50:15 assume [1] 29:21 BREYER [24] 33:6,8 35:2,4,7,9,12, attempting [1] 30:4 15 39:11,14,17,22 40:14,17,22 41: authority [110] 4:5,17,21 12:17 13: 11,14,22 50:2,4 51:11,16,18 58:20 22 18:23 19:14 20:18,24 21:3,6, bribe [1] 8:15 10,15,16,22 22:5,10 23:14,17,18, bribes [2] 3:25 20:2 24 24:4,11,20,25 25:2,3,23 26:1 bridge [14] 26:9 30:23 36:13 39:6 27:2,18 28:2,5,11 29:1,18,23 30:1, 25 31:10,11,12,13,16,20 33:12,14, 20 34:2,3,9 37:14,16,21 38:8,9 41: 19 42:6,8 44:4,7,16 45:2,4,9,14,20, 24 46:4,8,10,13,24 48:3,9,9,19,24 49:8,22 50:12,13,15 51:2,3 52:4, 12,17 53:5,14,19 54:10,12,15,21 55:4,7,11,24 56:2,7,10,15,19 57: 20 58:24 61:19 64:3,3 65:11 authorize [1] 45:9 authorized [10] 18:13 24:22 29:2, 12 42:2,17,21 43:1 45:23 55:20 automatically [1] 24:24 avoid [3] 12:14 48:15 57:15 aware [2] 47:4 57:14 away [2] 6:4 8:2 47:2 49:18 50:14 59:18,23 60:2,3, 10 63:19 64:25 bridges [2] 47:3 49:19 BRIDGET [1] 1:3 brief [5] 24:16 26:5 33:11 52:2 55: 22 brother [1] 23:10 brother-in-law [1] 49:1 brought [1] 47:21 building [1] 7:25 bunch [1] 36:4 bureaucracy [1] 11:19 business [3] 6:2 8:3 21:22 C cabs [2] 31:17 32:23 call [3] 38:5 62:7 66:12 B called [3] 19:15 22:25 23:2 back [12] 16:10 33:22 34:16,21 35: came [3] 1:13 46:19 63:7 4,10 39:4 41:2 51:14 53:3 58:19 canceled [1] 48:5 62:21 cannot [2] 24:23 66:9 bad [6] 11:22,23 15:18 19:17 41:3 capable [1] 26:20 62:8 capacity [1] 9:6 bank [3] 63:2,5,8 care [2] 42:14 63:6 Baroni [25] 1:21 2:7 20:10,23 21:2, cared [1] 27:6 20 24:8 25:1,22 27:14,15 29:17 career [2] 25:10,12 31:20 37:21 42:1,7 43:11 45:13, caring [1] 27:8 18 48:8 52:2,16 53:4 54:20 57:25 carried [1] 59:7 Baroni's [4] 21:15 23:2 30:1 46:17 cars [3] 39:9,19 59:12 Case [27] 3:4 5:4,18,21 6:23 9:14 basic [1] 37:12 begin [1] 21:13 10:19 13:16,17 18:22 21:12 23:14 behalf [11] 1:19,25 2:4,11,14 3:8 24:19 28:3 30:20 31:8 34:18 36:6 30:17 37:8 44:13 45:21 64:18 behind [1] 7:10 believe [3] 24:14 30:8 43:7 believed [2] 52:21 54:14 believing [1] 29:8 belong [1] 59:2 below [3] 20:19 21:14 28:3 benefit [8] 5:8 7:20 8:12,13 11:14 15:17 29:12 58:11 benefits [1] 14:24 best [1] 49:3 bestowed [1] 50:12 better [3] 40:9 44:18 53:17 between [10] 7:1,5 13:3 21:17 29: 10 32:10,17 33:4 34:24 37:13 beyond [1] 21:12 bi-state [1] 23:6 big [1] 23:10 bit [3] 9:20 18:20 59:8 Board [2] 49:22 55:13 booth [1] 44:21 boss [7] 36:21 48:13,14 56:23 57: 14,17 61:21 Both [10] 5:13 11:11 34:1 47:1 49: 37:22 38:12 43:25 47:14 48:19 53: 12 60:12 67:6,7 cases [2] 40:25 41:17 cash [1] 63:9 catastrophic [1] 47:20 cause [4] 13:5,7 48:22 63:20 causing [2] 25:24 64:5 central [1] 53:25 certain [1] 45:25 certainly [9] 6:22 7:4 9:13 12:11 19:11 25:19 27:19,20 54:19 cetera [1] 50:14 chains [1] 23:20 chairman [2] 23:19 49:22 chance [1] 62:20 change [6] 14:10,14 24:6 55:13,23 66:9 cheat [1] 12:11 cheated [2] 7:13 12:19 cheating [2] 12:8 19:21 check [1] 63:8 CHIEF [26] 3:3,9 7:17,23 20:6,12 30:13,18 37:1,12,23 38:2,10,17,22 39:1 53:7,9,21,24 61:24 62:3,15 Heritage Reporting Corporation Sheet 1 10:12 - CHIEF 69 Official - Subject to Final Review 63:17 64:14 67:5 chilling [1] 65:17 chooses [1] 25:12 Circuit [1] 54:16 Circuit's [1] 52:24 circularly [1] 24:24 confused [1] 53:2 confusion [1] 15:12 Congress [2] 9:9 12:6 connection [1] 31:10 consequences [1] 13:13 consider [2] 8:5 30:5 considered [1] 45:1 consistent [1] 54:17 constraints [1] 19:14 contains [1] 52:11 contemplated [1] 51:2 context [4] 31:15 32:25 52:7 61: 7,10,16 8:7,8,14 10:6,12,17,17 11: 17,18,22 12:21 13:3,5,7,12,25 14: 10,11,13 16:17,20 17:11 18:24 20: 17,17 45:2 55:5 56:16,17 63:2 64: 24 66:5,8,18,19 decision-maker [1] 55:4 circumstances [5] 45:25 46:14 decision-maker's [1] 32:4 53:5 56:18 57:7 decision-makers [1] 32:1 citizens [1] 47:22 decision-making [1] 60:13 city [7] 10:20,21 11:4,12 14:17 15: decisions [3] 9:6 19:17 23:21 9 40:23 deemed [2] 44:9,12 claim [1] 34:9 defendant [1] 36:9 claimed [1] 54:22 20 defendants [13] 3:15 4:15,20 5:8 clarify [1] 15:10 contrary [2] 27:10 47:11 6:7,13 28:25 30:20 41:19 50:13 clear [7] 8:21 9:13 10:20 21:5 52: control [9] 4:18 10:7 30:21 50:13 53:8 54:13,24 14 60:4 62:20 59:17 64:25 65:1,4,6 defending [1] 54:6 clearing [1] 16:1 conversion [1] 34:12 defense [5] 29:3,7 30:9,12 50:9 clearly [3] 48:8 49:17 58:3 convert [1] 58:25 defer [1] 43:25 Cleveland [13] 4:5 9:5,11,22 12:5 convey [1] 62:13 deferential [1] 29:13 16:19 60:4,11,12,15 65:2,2 66:10 convicted [3] 21:9 42:2 55:1 definition [1] 55:20 close [4] 39:5 45:24 46:4,13 conviction [2] 26:22,23 defraud [3] 10:3 50:16,25 co-head [1] 20:23 convictions [1] 54:7 defrauded [1] 16:25 Code [1] 33:15 cooperating [2] 21:24 22:11 Department [2] 1:24 33:16 Collect [1] 26:15 corollary [1] 14:12 deprivation [2] 13:4 35:13 collecting [1] 13:21 correct [4] 9:2 43:2 53:1 65:12 deprived [3] 4:18 13:22 37:11 colloquy [1] 53:3 cost [2] 66:17,24 depriving [1] 51:2 combination [1] 57:7 costs [4] 10:10,11 14:12 66:5 Deputy [8] 1:23 22:4,6,8,17,22 23: come [1] 25:6 couldn't [1] 24:8 18,23 comes [2] 34:3 63:7 councilman's [1] 40:24 determine [1] 44:24 command [1] 23:20 counsel [7] 20:7 30:14 32:9 45:15 development [1] 7:24 commandeer [1] 63:19 54:21 64:15 67:6 difference [7] 6:13 16:9,12 17:4, commandeered [3] 38:12,15 64: count [1] 35:20 17 33:4 37:13 24 counting [1] 59:12 different [7] 16:5,6 17:1 36:5 49: commandeering [3] 36:8 58:22 couple [2] 43:13 44:6 12 55:14 59:21 59:6 course [1] 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31:17 concealing [1] 47:6 criminal [2] 4:2 43:25 dispute [1] 41:18 conceals [1] 21:8 criminalizing [1] 3:24 disputed [2] 20:18 38:2 concede [1] 25:25 disruptive [1] 49:25 D conceded [2] 25:20 26:2 distinction [12] 7:1,5 13:3,8 30:7 D.C [3] 1:10,18,24 concedes [2] 24:19,21 32:10,17,20 34:24,25 35:1 36:4 danger [1] 47:22 concern [1] 8:10 distinguish [3] 5:10 7:6 11:8 [1] concerned [8] 7:9,12,15 12:7 15: de 67:2 distinguishes [1] 4:12 [1] 66:10 dead 25 19:19,20 64:12 district [14] 21:19 29:1,4,5,14,19 deal [1] 27:3 concerns [1] 20:2 30:3,7 52:5,13,14,16 54:9,11 deceit [4] 4:7 6:8 14:9 65:15 concession [1] 20:21 disturbing [1] 42:15 deception [3] 31:16 58:4,9 concessions [1] 25:22 diversion [1] 11:21 deceptive [2] 37:4,5 conclude [1] 57:19 diversions [1] 11:11 decide [5] 31:6 39:7,9,11 41:20 conduct [2] 4:14 17:15 divert [1] 4:9 decided [4] 21:15 32:1 38:8 39:5 conferred [1] 44:17 diverted [1] 5:6 decides [1] 33:4 configuration [1] 63:24 diverts [1] 11:17 decision [43] 4:7 5:11,11,16 6:8 7: doing [12] 3:18 6:14 8:19 9:17 12: confuse [1] 29:7 21 13:20 25:15 36:12 48:20 49:13 57:19 59:13 dollars [1] 66:25 done [6] 6:15 7:19 27:21 63:21,22 66:23 down [3] 39:9,19 40:19 draw [3] 7:18 32:16 35:3 drawing [2] 32:10 55:9 draws [1] 35:1 drive [3] 15:22 36:16,22 driver [3] 36:22,22,25 drivers [3] 5:13,13 31:17 driveway [2] 15:22 16:3 due [1] 20:2 duly [2] 31:6 44:17 duty [1] 8:17 E earlier [4] 9:20 57:8 58:20 66:7 early [1] 27:21 earning [1] 13:23 easier [3] 6:16,17 28:13 easiest [1] 63:1 easy [2] 40:25 62:4 effect [7] 4:1 10:16 26:11 47:17,19 65:17 66:21 either [3] 34:11 43:16 60:6 elicited [3] 21:1,25 22:3 eliciting [1] 22:11 employee [18] 13:13,13 30:23 36: 13 58:14,17 59:21 60:8 61:2,8,10, 16,18 62:6,11 63:15 65:24 66:20 employee's [1] 62:12 employees [6] 11:2 15:21 16:2 24: 5 27:1 31:12 enacted [1] 9:9 end [4] 17:23 59:3 60:14 66:4 end-runs [1] 3:22 endeavor [1] 45:3 ends [1] 18:4 enforce [1] 3:13 enlist [1] 46:23 enough [4] 11:23 18:9,10 33:21 entities [1] 35:5 entity [3] 12:11 32:18,19 entrusted [2] 28:5 56:15 equal [1] 23:18 ERIC [3] 1:23 2:10 30:16 ESQ [4] 2:3,6,10,13 essence [3] 50:23,24 51:5 essential [1] 66:13 establish [2] 10:6 50:25 establishes [1] 24:24 et [1] 50:14 evade [1] 12:18 even [15] 3:25 6:23 11:9 18:17 21: 6 24:16,18 25:24 29:14 42:12 44: 18 49:24 51:24 52:3 61:4 everybody [1] 45:20 everyone [3] 22:24 36:17 57:13 everything [2] 6:14 65:12 evidence [17] 18:10 24:2,12,18 25: 1 29:13 31:21 38:1,4 42:18 43:3,4 44:3,7 49:11 56:20 57:3 Heritage Reporting Corporation Sheet 2 CHIEF - evidence 70 Official - Subject to Final Review exact [2] 22:1 36:23 exactly [3] 6:19 35:24 65:1 example [7] 12:12 13:14,17 36:14 first [19] 3:4 10:5,21 15:4,13,14 24: government [52] 3:11,13,21 4:20, 14 25:5,6 26:18 27:19 34:20,21 37:20 40:1,18 41:6 44:8 55:21 41:18 62:4,5 fit [2] 8:24 9:25 except [1] 23:13 fits [2] 8:21 14:3 exclusion [2] 65:4,5 flatly [1] 27:10 executive [19] 22:4,6,7,9,16,22,23 flowed [1] 66:17 23:18,23 24:5,9 47:4,7 48:1,4 49: focus [2] 13:17 53:13 20,21 55:11 56:25 focused [1] 12:5 exercise [1] 65:9 follow [1] 48:4 exercises [1] 44:16 follows [1] 16:19 exist [1] 27:9 forfeited [1] 29:16 existence [4] 26:4,6,7 30:25 forfeiture [1] 28:25 exonerate [1] 53:6 form [2] 63:7,9 expansion [1] 4:1 forms [2] 60:24,25 expect [1] 49:23 Fort [7] 7:25 16:24 25:25 37:18 38: expectations [1] 47:11 24 47:23 63:20 expense [2] 6:1,2 found [7] 42:17,20,23 45:17 48:5 explain [4] 4:23 13:10 14:5 46:15 50:8 54:8 explained [2] 9:5 46:21 four [1] 62:12 explaining [1] 25:8 fourth [1] 27:25 exposed [1] 48:22 frame [1] 58:12 expressway [1] 38:13 Frankly [1] 28:23 extent [1] 39:5 fraud [63] 3:12,15,21,23,24 4:8,11, extra [1] 59:9 12,13,25 5:22 6:22,24 7:11 8:6,7, 25 9:1 12:16 15:15,19 19:10,19, F 20 20:1,16 21:9,18 26:21,22 30: facilities [1] 21:23 21 31:8,9 32:17,18,23 34:16 36:7, fact [14] 19:15 23:15 24:7 25:11 33: 8,25 40:6,12,16 41:2,2,6,13,17 42: 24 47:6,12 53:1 54:21 56:22,24 9 55:2 58:21,22 61:5,7 62:10,17, 57:5,5,14 25 63:2,5,14 64:11,12,20 fair [2] 34:1 38:5 frauds [2] 36:5 41:17 fairly [1] 24:2 fraudster [1] 31:18 faith [1] 7:15 fraudulent [3] 9:15,16 37:3 fall [1] 23:23 fraught [1] 4:3 falls [1] 65:13 free [4] 31:19,24 32:6 52:17 false [1] 44:24 fully [1] 28:1 families' [1] 6:16 functional [1] 28:9 far [2] 50:8 64:11 fundamentally [1] 16:5 favor [1] 14:5 funds [1] 52:9 favorable [1] 43:4 furor [1] 48:23 federal [9] 3:12,21 4:1 19:10,18,19 further [1] 20:4 33:15 52:9 64:20 G FEIGIN [88] 1:23 2:10 30:15,16,18 [1] 33:7 34:19 35:3,5,8,11,14 36:1 37: gain 20:15 3,20,25 38:3,14,19,25 39:3,13,16, gave [2] 50:19,23 General [3] 1:23 21:21 52:8 21 40:10,16,21 41:5,12,16,23,24 42:4,7,12,20,24 43:2,13,19,23 44: generally [1] 20:17 5 45:7,10,13,19 46:1,5,8,12 47:9, George [8] 30:22 47:2 49:17 59:18, 16,19 48:7,8,17 49:10 50:3 51:10, 23 60:2,3 64:25 13,17,20 53:8,16,23 54:2,25 55:1, gets [4] 32:15 58:19 61:19 62:21 15,18,25 56:4,8,11,23 57:2,22,24 getting [2] 8:16 39:15 58:18 59:15,25 60:7 61:14,17 62: GINSBURG [2] 5:5 66:12 give [6] 25:10 29:4 50:18 51:6 55: 1,14,18 64:1 8,20 fiddle [1] 23:16 given [4] 9:16 41:15 50:7 58:15 Fifth [1] 40:18 gives [1] 33:20 fight [1] 29:18 giving [2] 27:14 29:6 fill [1] 49:9 glad [1] 62:19 filled [1] 33:17 gloss [1] 10:2 find [5] 13:7 43:11 44:2,20 50:16 finding [6] 29:25 42:18 43:5,8 44: goal [3] 17:1 59:3 64:9 goodness [1] 33:15 1 52:15 got [3] 7:23 51:21 66:23 fine [1] 35:21 govern [1] 56:18 finish [1] 57:23 24 5:21,24 6:5 7:13 9:5 12:10,11, 14,19 13:15 14:23 15:23,24,25 16: 25 17:21 18:1,12 19:21 20:18,22, 25 21:14,19,25 22:13,25 24:18,21 25:9,20 26:20 27:2,7 28:2,24 29:3, 9,16 33:12,17 34:4 35:16 51:1 52: 13,21 60:19 government's [7] 18:21 21:4,11 22:11 24:1 60:20 64:22 governmental [1] 60:13 governor [2] 22:21,22 grant [1] 39:18 granted [1] 50:12 grappling [1] 33:3 great [1] 27:3 grocery [1] 40:19 ground [2] 24:15 54:7 guess [2] 35:21 39:4 guilt [2] 21:17 29:11 H half hands [5] 32:4,5 36:10 58:24 60: [1] 65:23 20 happen [1] 26:11 happened [1] 32:7 happens [1] 15:17 hard [3] 7:17,18 62:5 headline [1] 17:20 hear [1] 3:3 heard [1] 64:23 held [2] 4:5 35:25 hiding [1] 47:25 highway [2] 37:17 38:23 himself [1] 8:13 hinge [1] 29:10 hire [2] 14:1 49:2 hires [1] 49:1 home [1] 9:19 honest [18] 3:13,23 4:13 7:11 8:6, identified [1] 54:19 illegitimate [1] 27:5 immediately [2] 48:5 62:9 impersonate [3] 31:11 36:21 61: 21 implementation [2] 66:7,17 implementing [4] 10:10,11,12 14: 13 implicating [1] 9:7 implications [2] 11:19,20 important [4] 14:12 36:3 45:1 49: 17 impossible [1] 36:20 impression [1] 10:23 improper [1] 5:17 improved [1] 47:14 incidental [8] 59:6 62:23 63:25 66: 5,13,15,25 67:2 including [3] 21:22 45:3 55:11 incorrect [1] 28:19 increase [2] 8:3 17:7 incredible [1] 47:22 incurred [1] 6:1 indeed [1] 59:6 indication [1] 43:6 indictment [2] 21:20 22:2 individual [1] 7:20 induces [1] 4:6 influence [3] 14:9 16:17 65:9 influenced [1] 6:7 initial [1] 57:11 innocence [2] 21:17 29:11 insofar [2] 50:20,22 instances [1] 33:18 instead [2] 15:20 36:19 instruct [1] 53:18 instructed [1] 50:9 instruction [24] 26:25,25 28:19,20 29:4,6 44:8,11,19 50:19,20,24 51: 14 52:4,6,7,9,19,22,24 53:1,10,11 54:3 17,18 11:24 19:25 33:22 34:15 35: instructional [1] 54:4 10,15 41:2,5,12,16 65:17 instructions [5] 30:11 43:8,15 50: Honor [50] 5:9,20 7:22 8:4 9:2 10: 7 51:7 5 11:16 13:9,11 17:4,6 18:5,6,19 insure [1] 41:20 20:4 24:14 25:19 34:19 36:1 37: intangible [2] 65:3,5 21 38:14,19 39:3,16,21 40:10 41: integrity [2] 3:19 7:10 6 45:10 46:1,6 47:16 49:10 51:10, intent [1] 40:16 13,20 53:16 55:16 56:4,8 57:2 58: intention [1] 25:24 18 59:15 60:7 61:14 62:18 64:2, interest [1] 55:8 19 66:6,16 67:1 interesting [1] 18:8 Honor's [1] 8:10 interests [2] 6:18 9:7 hotel [2] 7:25 8:3 interpreting [1] 8:20 hour [2] 9:20 16:8 investigation [1] 3:22 hourly [1] 16:7 invoked [1] 13:15 house [5] 10:21,22 14:18 61:6,11 involve [1] 60:12 hyperbolic [1] 56:14 involved [2] 63:2 65:15 hypothesizing [1] 31:25 involves [1] 11:14 hypothetical [5] 8:11 12:2 32:22 irrelevant [1] 4:25 40:11 41:7 isn't [14] 5:7 9:25 10:1 14:19 15:6 hypotheticals [1] 42:15 24:11,11 34:14,18 48:16,18 49:13 51:18 63:9 I [7] 27:8 28:25 29:15 52:18 issue idea [5] 46:16,19 48:11 57:9,12 54:4,10,12 Heritage Reporting Corporation Sheet 3 exact - issue 71 Official - Subject to Final Review itself [3] 21:1 52:11 56:13 J 7 lacked [3] 4:20 29:17 44:3 lane [7] 24:6 39:7,9 44:21 55:13 Macao [1] 64:10 machine [1] 63:13 made [6] 11:22 13:25 23:22 29:25 JACOB [5] 1:18 2:3,13 3:7 64:17 63:24 64:24 32:9 43:7 jam [5] 58:11 59:11 61:16 63:20 64: lanes [39] 3:16 4:16 5:12,14,19 6:9 magnitude [1] 49:25 6 7:8 17:12 26:12,13 27:22 30:22 mail [1] 8:25 January [1] 1:11 31:2,13 32:2 36:12 37:16 38:13, main [4] 12:23 21:24 24:1 32:11 Jersey [5] 19:15 22:17,21 23:6,22 15 45:12,14,24 46:4,13,17,25 47: maintenance [3] 10:21 14:17 17: jet [3] 61:22,23 64:9 13 54:22 55:23 56:16 59:17,19 60: 2 job [4] 13:20 14:21 15:23 49:4 3,22,23 61:3 63:19 65:21 66:19 manage [1] 36:11 Joint [2] 44:10 52:10 language [4] 8:22,25 14:6 56:12 manager [4] 47:1,2 49:18,18 Jr [3] 1:21 2:7 20:10 last [1] 14:3 masks [1] 36:19 Judge [3] 50:11,18,19 later [1] 21:9 material [2] 40:13 45:18 jurisdiction [1] 4:2 Laughter [1] 49:6 materiality [2] 44:19 51:14 juror [2] 43:10 58:8 law [4] 4:4 19:13 39:22 40:11 matter [4] 1:13 28:9 29:15,19 jury [25] 21:9 29:7,25 30:8,10 33:2, least [2] 23:9,9 mattered [1] 9:21 4 42:16,20,22 43:7,8,10,15 44:1, 13 45:17 50:9,10,11 52:18,24 53: 2,18 57:18 jury's [1] 44:1 Justice [142] 1:24 3:3,9 5:5 6:11, 25 7:17,23 8:19 9:10,24 10:19 11: 9,11,25 12:2 13:2,10 14:2,15,22, 24 15:1,6,9 16:9,10,22 17:8,18 18: 3,7,16,25 19:3 20:6,12 22:14 23:5, 25 25:17 27:11,13 28:6,15 29:22, 24 30:13,19 33:6,8 35:2,4,7,9,12, 15 37:1,12,23 38:2,10,17,22 39:1, 11,14,17,22 40:14,17,22 41:11,14, 22,24 42:5,10,13,22,25 43:3,18,21, 24 45:5,8,11,19 46:3,7,9 47:8,10, 18 48:7,16,18 49:7 50:2,3,4 51:11, 15,16,18 53:4,7,9,21,24 54:25 55: 3,17,19 56:1,6,9,22,24 57:4,22 58: 1,2,20 59:5,20 60:1 61:9,15,24 62: 3,15,21 63:17 64:14 65:19,23 66: 1,12,24 67:5 justices [1] 33:2 led [1] 15:11 Lee [7] 7:25 16:24 25:25 37:18 38: 24 47:23 63:20 legal [1] 32:8 legally [1] 4:25 legitimate [5] 31:25 32:4 38:7 48: 15 57:16 length [1] 18:20 lens [1] 28:22 less [2] 9:20 49:25 letter [1] 66:11 level [1] 3:20 levels [1] 3:14 LEVY [18] 1:20 2:6 4:23 18:20 20: 8,9,12 22:19 23:12 24:13 25:19 27:11,12,19 28:8,23 29:23 30:2 liable [1] 17:24 license [5] 32:14 60:16,19 63:11, 16 lie [42] 5:25 12:18 21:12 24:4,17,19, 22,24 25:12 26:5,21 30:21 31:3, 23 33:13 34:5 40:13,24,25 41:7,7, 8 42:12 46:14 47:1 48:12,13,20 K KAGAN [29] 6:11,25 10:19 11:9,11 49:12,13,14 56:21 57:6,12,14 63: 3,4,6,11 64:2,4,8 14:15,22,24 15:1,6,9 16:9 27:11, [3] 12:14 26:3 30:24 lied 13 28:6,15 48:7 50:3 57:22 58:1,2 [3] 4:9 5:23 45:17 lies 59:5,20 60:1 61:9,15 65:19,23 66: life [1] 16:23 1 light [3] 43:4 50:6 53:12 [2] Kagan's 12:2 62:21 limited [2] 20:1 46:10 KAVANAUGH [1] 11:25 limits [3] 21:11,12 56:2 [4] keeper 13:19,19,20 14:1 [5] KELLY [5] 1:3 3:5 39:7 46:22 52: line 7:18 12:23 21:17 29:1 55:9 [5] 9:20 18:20 44:7 56:14 59: little 17 8 [1] Kelly's 32:9 local [2] 3:13 25:8 Kentucky [1] 41:21 look [6] 16:14 28:21 37:9 51:14 58: keys [1] 36:15 7 63:1 [2] kickback 8:5,16 lose [1] 50:5 kickbacks [2] 3:25 20:3 loss [3] 9:10 13:6,7 kind [2] 36:7 49:12 lost [2] 8:24 9:13 [1] kinds 36:5 lot [1] 42:14 knife [2] 59:1,4 lots [1] 58:12 knowing [1] 24:5 Loughrin [1] 63:2 knowledge [1] 54:19 Louisiana [1] 63:12 knows [1] 28:10 lump [1] 36:4 L lying [4] 5:1,2 6:3 20:16 labor [4] 59:22 61:11,16,18 M lack [6] 21:6 24:10,20,25 29:21 44: mayor [1] 40:8 mayor's [2] 39:25 61:6 McNally [4] 3:22 34:17 41:17,19 mean [11] 5:18 7:18 11:16,17 12:6 never [6] 17:24 21:1 43:22,24 54: 18 56:9 New [10] 1:20,20 19:15 22:15,17, 21,23 23:6,22 25:21 nobody [2] 27:5 55:3 nominally [2] 23:9,9 none [1] 31:1 nothing [4] 30:10 39:2 40:13 43:9 notified [2] 49:24 50:1 notify [1] 44:12 notwithstanding [1] 58:14 novel [1] 52:23 Number [1] 22:9 numbers [1] 26:15 numerous [1] 33:18 O object [25] 10:16 16:15,16 37:9 58: 4,9,10,11,12,16 59:14,16 60:15 61: 10 62:24 63:4,11,16,18,18,19 64: 11 66:6,22 67:3 14:22 33:8,17 38:20 62:5 66:13 [4] 13:24 17:14,15 43: objection [2] meaning 9:8 55:10 15 meaningless [1] 45:23 objective [2] 17:16 63:25 means [3] 32:22 55:21 63:25 objectively [1] 21:5 [1] media 25:7 obligation [1] 43:10 message [1] 62:13 obtain [14] 5:3 9:4 10:14 12:1 14:8 MICHAEL [3] 1:20 2:6 20:9 [9] might 24:17 32:1 33:19,25 36:2 16:13,18 41:8 58:5,9 60:16 63:4, 11 64:21 45:1 46:5 53:2,17 [7] 4:8 6:23 10:1 36:17, obtained million [1] 66:25 24 61:22 65:10 [1] mine 14:15 obtaining [10] 6:5 11:6 12:3 13:1 minimis [1] 67:2 14:11 15:14,19 34:13 44:11,15 minute [1] 58:6 obvious [1] 28:24 minutes [2] 62:12 64:16 occur [1] 12:16 misappropriation [1] 52:8 occurred [1] 5:4 [1] Misconduct 19:16 offered [3] 28:21 29:18 60:19 misnomer [2] 22:5 55:5 official [22] 3:20 4:6,9 5:23,23 7: missed [1] 43:12 16 9:14 10:23 11:18 14:17 16:20 [1] mission 36:20 17:23 19:14,15 20:14,17 21:7 24: mitigate [1] 59:10 22 25:14 37:14,15 65:12 mixed [2] 18:7,17 [1] 21:16 official's [1] moment 25:18 [12] 6:23 10:18 17:20,25 officials money [11] 8:23,24 9:11 13:18 17: 19:6 25:8,10,13 31:6 46:24 64:23 21 26:22 27:4 51:3 63:4,6,7 65:8 [1] moreover 52:25 often [1] 48:18 morning [1] 3:4 okay [9] 5:7 17:20 19:5,5 38:10 42: most [3] 4:17 28:24 43:4 13 43:23 59:20 62:9 motivation [2] 21:8 26:19 oldest [1] 60:25 motive [9] 5:11,15,16 15:18 17:6 onboard [1] 57:13 18:7,17,18 32:7 Once [2] 3:11 14:16 motives [2] 3:25 17:22 one [29] 3:16 4:16 5:12 11:13,13, movie [1] 36:20 14 12:5 14:3,5 17:12 22:1 23:3,25 [3] much 12:24 18:25 19:12 27:19 28:1 32:13 33:9,10 34:1 36: must [3] 21:12 44:24 51:1 19 43:14 44:25 46:22 51:7,8 55: N 13 56:17 59:25 60:25 nature [1] 6:10 one-half [2] 65:20,20 necessarily [2] 12:4 19:8 one-lane [1] 47:13 necessary [4] 30:23 38:16 61:3 Only [15] 4:8 16:21 18:17 26:17 28: 62:13 1,1 32:22 33:12 39:7,9 49:11 52:1, need [1] 46:25 18 55:8 65:14 needed [3] 49:15,16 60:8 open [1] 65:14 needs [1] 63:15 open-ended [1] 3:12 neighborhood [1] 15:14 operate [1] 63:12 Heritage Reporting Corporation Sheet 4 itself - operate 72 Official - Subject to Final Review operations [3] 20:25 21:23 25:2 operator [1] 39:25 opinion [1] 14:4 opportunity [1] 29:17 opposed [1] 63:8 oral [7] 1:14 2:2,5,9 3:7 20:9 30:16 order [13] 4:21 25:23 26:1 31:12, 8 20:11 64:18 phone [1] 62:7 physical [4] 30:22 59:17 60:22,23 pick [1] 62:6 picked [3] 61:25 62:4,4 piece [3] 24:18 49:11 57:3 pilot's [1] 62:1 17 35:18 46:23,25 48:13 49:15,25 place [3] 48:2 54:20 63:1 60:9 64:4 places [1] 44:6 ordering [1] 61:21 plainly [1] 17:22 ordinary [1] 58:8 play [2] 23:16 36:3 organization [3] 44:14,15 48:10 played [1] 23:15 organization's [1] 57:10 playing [1] 55:12 other [9] 12:5 23:4 26:24 28:21 38: please [7] 3:10 16:7 20:13 26:12, 23 59:8 63:21,22 65:23 14 30:19 57:22 Otherwise [2] 16:19 21:7 pleases [1] 31:18 out [15] 6:4 7:13 12:8,12,20 19:21 plenary [2] 21:2 25:2 23:15 26:5 29:10 32:3 34:1,17 36: plow [3] 15:3,13 17:2 3 48:5 59:7 plowing [4] 15:12,21,22 16:3 outside [1] 4:10 point [12] 11:4 26:4 27:20,23 28:3 over [6] 25:2,13 30:21 36:10 58:15 32:2 35:7 44:5 52:1,20 53:14,25 64:25 pointing [1] 28:18 overtime [1] 16:6 points [1] 33:9 overturn [1] 56:25 poker [1] 63:12 owe [3] 12:13,14,18 policy [2] 10:16 21:1 owed [1] 12:20 political [10] 3:18 4:13 5:17 6:14 own [12] 5:24 6:18 10:21,22 22:11 19:8,11,24 21:8 25:16 32:7 31:4 32:5 36:11 45:22 46:4 55:23 politically [3] 5:8 20:15 58:12 58:25 politics [1] 6:17 owns [1] 7:14 Port [36] 4:17 12:17 13:22 20:23 21:22 22:5,10 23:14,17 24:4 25:3 P 27:1 30:25 31:10,11,12,12,20 38: PAGE [3] 2:2 44:10 52:10 8,9 45:2,3 46:24 48:3,9 49:22 50: pages [1] 44:19 12 51:2,3 55:10 56:15 58:24 61: paid [2] 8:15 9:20 19 64:3,3 65:11 paint [3] 10:22 14:18 61:6 position [4] 22:9 27:13 49:2,9 painted [1] 61:11 positive [1] 57:1 painters [1] 61:6 possibly [1] 66:9 painting [1] 15:2 potential [1] 3:21 paper [1] 35:17 power [8] 10:8 18:23 19:23,24 22: parallel [1] 23:20 8 31:1,22 50:13 parcel [1] 10:13 precise [2] 32:2 54:7 part [7] 10:12 26:17,18 34:20,21, precisely [1] 22:1 22 43:17 precluded [1] 21:2 particular [3] 49:2 51:22 58:21 presented [2] 43:19 51:25 particularly [3] 4:2 23:21 51:24 pressed [2] 25:9 30:6 partisan [1] 19:8 pretty [1] 19:12 parts [2] 26:24 33:25 primarily [1] 52:7 Pasquantino [2] 12:12 32:20 prison [1] 40:4 pass [3] 31:19,24 32:6 private [29] 4:10 5:6,8,20 7:1,2 11: pattern [3] 21:3 52:24 55:14 2,5 15:22 16:3 17:3 18:4 31:5,15 pay [1] 16:7 32:11,19,23,24 33:5 34:24 37:7, paying [2] 12:15,19 15 39:6,8,10 60:17,18,24 61:20 people [9] 10:22 12:8 38:23 42:16 pro-government [1] 24:3 48:23 51:3 55:7 58:11 59:11 probably [3] 32:13 60:25 61:23 perfectly [1] 62:20 problem [11] 17:18 32:16 33:1 34: permitted [1] 24:22 8 39:15,18,18 41:1,1,23 50:18 person [11] 33:18 44:25 48:20,24 problems [2] 32:12 59:10 49:1,3,3,4 56:14,21 59:9 process [4] 9:17 48:6,17 57:16 personal [8] 6:18 11:14,15 16:4 processes [1] 48:2 18:18 19:7 20:15 45:22 processing [2] 9:15 63:15 personnel [1] 45:4 prohibit [2] 5:1,2 petition [1] 52:3 prohibits [3] 14:8 35:23 64:20 Petitioner [9] 1:4,19,22 2:4,8,14 3: properly [1] 43:15 property [96] 3:15,24 4:6,8,11,12, 18 5:3,10,22,24 6:4,6,22,24 7:7,13 8:7,23,23 9:3,8,13 10:1,7,14 11:4, 7,20 12:4,6,7,8,12,15,20,25 13:1,4, 6,7,15 14:8,11 15:15,19,25 16:1, 13,18,25 17:16 19:10,18,20,21 26: 22 34:7,12,13 35:21 36:10,11 37: 11 40:6,9 41:8 44:11,15 50:14 51: 4 58:5,10,23 59:17 60:5,20,22,24, 25 61:1,4,7 62:10,16,23,25 63:8, 13,14 64:20,21,22 65:2,6,10 proposed [2] 46:16 52:6 prosecuted [1] 5:22 prosecution [2] 5:7 47:21 prosecutor [1] 21:9 prove [6] 29:17 46:7,10,11 51:1 57: 1 proved [4] 20:22 21:14 28:3 46:12 proven [1] 54:15 provide [2] 8:17 21:11 proving [1] 27:3 public [56] 3:16 4:16 5:12,13,14,22 7:2,3 8:9,9,12,18 10:23 11:2,18, 20 12:22,22,24,25 13:13,21 14:16 15:12,16,16,20,21,25 16:1,20 17: 12,13,21,25 19:6 20:14 25:14 28: 13 31:5 32:10,18 33:5 34:10,24 35:5 38:6,7,18,21 39:6,8,10 40:7 65:17 66:9 purpose [11] 7:5,8,10 10:15 17:5, 16 26:19 44:22,23 46:22 59:12 purposes [11] 7:2,3 19:17 25:7,8 26:21 31:5 38:18,21 45:22 65:6 push [1] 39:4 put [6] 31:14 32:4 34:10 36:19 38: 9 47:22 putting [2] 40:7 44:2 Q qualified question [20] 12:23 16:10 18:8,14 [1] 49:4 19:1 28:16,17 34:20,22 41:3 43: 19 44:2 50:6 51:24 52:1,18 62:21 65:14 66:7 67:3 questions [3] 20:5 34:1 48:10 quintessential [1] 60:24 quite [4] 8:20 39:17,18 52:14 R raised [2] 52:2 57:10 rather [2] 6:13 31:5 rationally [1] 57:19 reaction [1] 57:11 read [5] 43:8 51:6,7,7 55:22 real [5] 3:17 48:21 49:4 59:17 60: 21 realign [9] 5:12 7:8 30:24 31:2,12 32:2 46:25 54:22 66:19 realigning [2] 17:12 46:17 realignment [2] 4:22 10:6 reality [1] 24:7 reallocate [4] 38:16 45:11,14 61:3 reallocated [1] 4:16 reallocating [2] 3:16 60:2 really [4] 7:11 40:3 52:2 63:6 realm [1] 4:11 reason [25] 3:18 6:15 8:12 11:22, 23 20:16 25:10,16 27:15 29:24 30: 2 41:10 43:7 45:15,15 47:20 48: 21 49:5 51:23 54:23,23 55:5,9,9 61:14 reasonable [2] 44:25 57:18 reasoning [1] 51:23 reasons [5] 6:2 19:7,8 24:15 28: 13 REBUTTAL [2] 2:12 64:17 red [1] 39:9 redirected [1] 8:1 reductions [1] 44:22 reference [1] 52:11 referred [1] 65:3 regardless [1] 4:19 regulate [1] 37:16 regulation [1] 13:4 Regulations [1] 33:16 regulatory [29] 4:5,11,18 5:16 6: 10 7:7 9:7 10:8,12,17 11:3,13,16 12:21 13:3,5,6,12,24 14:10,10,13 16:17 17:11 60:16 65:1 66:8,18, 19 rejected [3] 32:19 52:4 60:18 rejection [1] 28:20 related [1] 33:20 relevant [4] 9:3,4 30:5,6 relied [2] 51:9,19 rely [1] 57:3 relying [3] 49:12 57:5,6 remained [1] 47:13 remedies [1] 19:11 remedy [1] 19:9 repeating [1] 56:12 repercussions [1] 19:13 reply [3] 24:16 26:5 52:2 report [2] 6:1 23:4 representation [4] 26:7,18 44:21, 25 representative [3] 22:16,17 23:8 require [2] 21:5 35:16 required [2] 27:23 66:20 requires [1] 20:21 rerouting [1] 7:19 resources [29] 4:9 5:6 8:9 11:12, 12,17 12:22 14:20 15:9,16 18:1 30:23 31:2,4,7,22 32:3 36:13 38: 16 45:2 48:3 49:16 57:10 60:9 61: 3 64:4,5,7 66:9 responded [1] 65:20 Respondent [7] 1:7,21,25 2:7,11 20:10 30:17 response [4] 12:2 46:17 66:2,3 responsible [2] 20:24 21:21 result [5] 9:22 14:6,14 66:10,18 results [5] 26:14,15 27:6,8 28:10 retrospect [1] 53:17 reversal [1] 20:21 reverse [1] 51:23 review [1] 29:13 reviewing [1] 50:21 Heritage Reporting Corporation Sheet 5 operations - reviewing 73 Official - Subject to Final Review rights [6] 12:9 19:22 60:23 65:3,5, 10 risks [1] 21:8 river [1] 23:10 road [4] 3:17 15:12,21 17:3 roads [1] 12:25 ROBERTS [23] 3:3 7:17,23 20:6 30:13 37:1,12,23 38:2,10,17,22 39:1 53:7,9,21,24 61:24 62:3,15 63:17 64:14 67:5 ROTH [47] 1:18 2:3,13 3:6,7,9 5:9 6:11,21 7:4,22 8:4 9:2,12 10:4 11: 1,10,15 12:3 13:9,11 14:7,16,21, 23,25 15:5,8,10 16:12 17:4,10 18: 2,5,15,19 19:2,4 64:16,17,19 65: 19,22,25 66:3,15 67:1 routine [1] 4:13 rule [9] 4:12 20:19 21:4,11 33:20 39:23,23,23 40:8 ruled [1] 34:17 rules [2] 33:16,17 running [1] 59:11 S salary [2] 13:23,23 same [13] 6:19 12:16 25:14 31:9 sharing [1] 22:8 shift [1] 13:20 show [6] 24:10,19 36:20 44:3 48: 24 49:8 showed [2] 31:21 56:20 shown [1] 21:7 significant [1] 48:9 similarities [1] 60:14 similarly [1] 14:19 simply [9] 4:15 5:3 10:1 31:19 32: 6 37:6 55:18 56:12 63:5 since [1] 34:17 sitting [1] 36:15 situation [5] 5:25 6:3 12:17 24:3,8 Skilling [2] 3:22 8:14 slowing [1] 47:12 smoothly [1] 25:14 snowplow [13] 36:14,16,16,18,21, 22,23,25 37:13,15 39:20,24 40:6 snowplowed [1] 39:25 snowplows [2] 10:20 15:3 Solicitor [1] 1:23 somebody [5] 27:21 35:16 37:6 48:19 62:7 someone [8] 31:10,15 44:13 48: 10 59:3,3 63:10,10 36:6,23 41:1 47:13,24 50:5 53:15 Sometimes [1] 37:5 54:7 61:12 somewhat [2] 53:18,21 saying [10] 16:6 18:11 19:9 24:17 sorry [3] 16:22 42:22 57:24 29:10 34:23 38:11 54:14 57:8 58: SOTOMAYOR [27] 16:22 17:8,18 20 18:3,7,16,25 19:3 23:25 25:17 45: says [3] 14:17 44:20 58:3 19 46:3,7,9 47:8,10,18 53:4 54:25 scarce [1] 8:9 55:3,17,19 56:1,6,9,22,24 scheme [33] 10:13,15,16 16:13,15, sound [1] 36:6 16,18,23,24 17:9,10 32:3 37:4,4, sounds [2] 7:11 19:25 10,10 39:2 50:16,25 51:1 58:4,15, sovereign [3] 4:7 9:6,7 16 59:7,14,16 60:15,17 61:10 62: sovereign's [1] 65:4 24 63:18 64:11 66:14 special [1] 12:24 schemes [3] 14:8 37:5 64:21 species [1] 13:14 scope [3] 21:10 23:24 65:13 specific [5] 36:7 52:19 53:19,23 seat [2] 23:8 65:9 54:3 second [15] 9:3 10:9 23:8,16 28:6 specifically [3] 19:16 53:18,25 32:15 33:23,25 34:8,9,20,22 36:2 spend [4] 25:17 35:17 45:20 63:15 38:4 60:12 spent [3] 13:18 27:3,4 section [1] 52:24 split [1] 22:7 see [10] 13:8 17:19 32:14 34:15,18 stab [3] 59:2,3,3 37:10 43:6 45:16 52:15 55:14 start [2] 32:8 61:21 seem [1] 42:15 state [7] 3:13 4:9 5:2 11:12 19:13 seems [2] 32:9,16 41:20 63:12 seen [1] 43:24 stated [2] 45:15 48:6 send [2] 15:2 61:6 statement [3] 22:1 33:10 53:15 sending [3] 10:20,21 11:2 STATES [4] 1:1,6,15 3:5 sense [1] 4:21 statute [28] 8:20,22,25 9:1,25 14:6, separate [2] 33:9,25 8 16:11,14 19:15,19,20 32:15 34: separated [1] 16:21 7,13,16 35:1,22,23,23 40:5 41:4 servants [1] 65:17 52:9 58:3 61:5 64:20 65:7,13 services [21] 3:23 4:13 7:11 8:6, statutes [5] 3:12 5:1 19:10 21:18 17,18 11:24 16:4 20:1 33:22 34: 62:17 16 35:10,15,24 36:25 41:2,6,12,17 stealing [1] 34:7 45:3 61:8 step [2] 10:5,9 set [2] 5:12,13 stepped [1] 4:10 several [1] 43:9 steps [1] 10:5 severe [1] 65:18 still [6] 9:24 27:18 38:17 47:14,23 sham [2] 27:17 28:7 59:4 stolen [1] 59:4 store [1] 40:19 story [3] 46:20,21,23 street [8] 15:4,13 17:3 39:24,25 40: 18,20,24 16 throughout [2] 18:22 54:17 ticking [1] 22:1 title [1] 22:4 today [3] 54:1,5 55:14 together [2] 12:4 36:5 toll [8] 12:18,19 13:18,19,20 14:1 streets [1] 40:7 stronger [1] 33:11 structure [2] 22:6 23:13 44:21 59:9 study [22] 18:9,11 25:6,18,23 26:1, tolls [2] 13:21 66:21 4,6,8,14 27:1,4,9,16,17 28:7,12,14 toward [1] 19:16 30:25 44:23 46:21,23 traffic [41] 3:16 4:16 7:19 8:1 17:7 studying [1] 66:21 18:9,11 21:3 25:6,18,23,25 26:1,4, submitted [2] 67:6,8 6,8,11 27:1,4,9,16,17,22 28:7,12, subordinates [1] 24:23 14 30:25 44:23 46:20,21,23 47:12, substance [1] 51:21 13 58:10 59:11 61:16 63:20,23,24 substantial [1] 19:12 64:5 66:21 subsuming [1] 3:23 transportation [1] 21:23 subverted [1] 48:6 Treat [1] 39:23 successor [1] 23:2 treating [1] 40:8 sufficiency [6] 24:2,15 28:16,17, trial [5] 25:1 27:3 54:12,13,14 22 29:13 trick [2] 15:20 16:2 sufficient [5] 24:12 42:18 43:1 44: tries [1] 36:9 12 62:25 trip [1] 64:10 suggest [1] 19:5 troubles [1] 41:25 suggested [1] 30:11 true [4] 4:19 5:15 27:12 33:22 summation [1] 28:4 try [4] 14:2,15 15:10 34:21 supervising [1] 20:24 trying [8] 3:11 5:9 7:6 19:5 36:4 supervision [1] 21:21 56:3 58:23 60:10 supervisors [3] 26:10 31:11 38:8 Tuesday [1] 1:11 support [5] 1:22 2:8 20:11 42:18 tunnels [2] 47:3 49:19 43:5 turns [2] 3:19 29:10 suppose [2] 27:14,15 TV [1] 36:20 supposed [1] 50:24 two [10] 3:16 10:4 24:13 26:24 28: SUPREME [2] 1:1,14 1 32:11 33:9,24 51:6 64:16 surely [1] 53:13 type [3] 7:5 58:21 65:1 sweeping [1] 4:1 typical [1] 5:21 switch [3] 26:12,13 58:3 T table [2] 16:21 59:2 tacitly [2] 47:5 57:15 tax [1] 12:13 taxes [2] 12:14,15 taxicab [2] 31:16 32:21 telephone [2] 35:18 62:11 tells [2] 42:12 63:10 terminals [2] 47:3 49:19 terms [3] 22:8 55:6 66:20 test [1] 67:3 testified [7] 23:1,2,19 25:4 48:1 49:15,23 theirs [1] 61:18 theory [15] 3:14,19 6:12,20,21 11: 25 18:22 32:1 38:11 53:12 59:21 62:15 64:22 65:20,21 there's [17] 6:9 12:23 18:13 22:15 34:23 36:14 39:22 40:13,13,24,25 42:17 43:1,9 44:3,8 53:19 therefore [1] 65:8 thinking [2] 53:3 58:8 thinks [1] 8:2 third [3] 33:1 52:23 54:15 though [3] 11:9,10 29:14 three [5] 26:12,13 27:22 32:13 56: U U.S.C [1] 52:7 ulterior [1] 3:24 ultimately [1] 4:25 unauthorized [6] 5:2 17:22 18:21 19:17 43:11 45:22 under [11] 10:23 16:18 21:17 35: 22,22 45:25 46:13 53:5 56:17 60: 16 61:5 understand [2] 13:2 28:18 understood [4] 22:24 23:17,21,22 undesirable [1] 40:3 UNITED [4] 1:1,6,15 3:5 Unless [2] 30:24 43:11 unnecessary [3] 52:22 53:11 59: 7 unrelated [1] 63:5 untrue [1] 33:19 untruth [1] 33:13 up [4] 25:6 40:25 46:19 62:6 urges [1] 20:19 useful [1] 9:18 uses [11] 5:14 7:1,2 8:9 12:23 32: 10,11 34:24 37:15 58:25 62:23 using [5] 11:5 14:9 21:2 61:15,17 usurp [1] 31:15 Heritage Reporting Corporation Sheet 6 rights - usurp 74 Official - Subject to Final Review V vacation [1] 64:10 vagueness [1] 20:2 valid [1] 54:8 verdict [1] 43:5 versus [1] 3:5 vice [2] 23:19 49:21 victim [5] 32:17,18 36:10 37:7 64: 12 victim's [1] 58:24 video [1] 63:12 viewing [1] 43:3 violation [4] 7:21 8:16 11:24 40:8 W wage [1] 16:8 wanted [3] 30:7 59:19 64:6 wants [4] 8:1 37:6,7 49:5 Washington [11] 1:10,18,24 30:22 47:2 49:18 59:18,23 60:2,3 64:25 wasted [1] 10:2 way [14] 7:21 10:17 11:17 12:16 17: 21 25:14 28:24 31:9,22 37:5 47:8 59:19 63:21,22 ways [1] 58:13 whatever [3] 7:8,20 11:12 whatsoever [3] 30:3 43:6 60:17 Whereupon [1] 67:7 wherever [1] 31:18 whether [9] 4:19 15:2 18:9,10 29: 11 44:2,24 52:18 56:16 whichever [1] 8:2 whim [1] 55:12 who's [2] 22:16,17 whom [1] 56:15 wife [1] 49:5 Wildstein [11] 21:25 22:3 24:4 25: 4 26:9 46:16,18,19 47:9 48:1 49: 14 will [8] 4:23 8:2 19:4 26:11,12 36:2 40:19 57:13 William [3] 1:21 2:7 20:10 wire [1] 8:25 within [17] 3:23 9:8 14:6 20:18 22: 5,10,24 23:13,17,22,23 24:16 28:1 34:13 48:9 50:15 65:13 without [6] 3:17,25 24:9 31:23 34: 6 46:14 witness [2] 21:24 22:12 witnesses [1] 22:25 word [4] 9:3,4 10:3 12:1 words [1] 59:8 work [7] 9:18 11:2 12:1 14:1 16:8 21:4 33:12 worked [2] 16:6 31:20 worker [2] 14:18 17:2 works [4] 34:18,25 37:4,10 world [1] 25:15 write [2] 14:4,4 Y years York [4] 1:20,20 22:15,23 yourself [1] 6:5 [1] 40:4 Heritage Reporting Corporation Sheet 7 vacation - yourself