his application at the top two or three nineteen which is having to do with him being married to a us citizen and living with her for three years but he truthfully answered on the form he was a lawful permanent resident for  years during the course of this trial this i asked the court to instruct the jury on the fact that mr luzhin was entitle to citizenship under this five year provision because one of the elements of false statement on and in four hundred naturalization form is that my client cannot be entitled to citizen ship and must not he's not in time to citizenship however facts proved the trial established that he was in total to citizenship under the five year provision under which he applied on the form that he truthfully is so firm in that regard and that because the peculiar circumstances here included that he was an interpreter for the united states government in iraq during this period and he was under contract with the us government to do that through a subcontractor g l s this who are working their testimony this is a legal question but  his testimony from immigration service that it would not affect his amp patient under three nineteen a married provision not the residence provision and three sixteen so there was just me that was irrelevant to  section three nineteen but for your third to work wouldn't have to satisfy all the requirements of three sixteen yesterday and we did liefeld out there for seventy four and were approved and so we were both under eight u s c fourteen twenty seven which is called section three sixteen in china's phonetic ular he was relieved of the requirement of physical presence in the united states because the exception pointed to him that is persons who are employed under contract with the government of the united states but then the jury found that he lied about being married to to his wife so we still didn't testimony was that everyone including himself and his wife thought so long as they were married and the divorce was not final before he became a citizen that he was lovely married under the provisions of requirements  the wife accompanied him to the interview and helped him and was present the foreman actually says wife was present during the interview when they're talking about their marital status and she testified that she helped him with that and going to the  we need to finalize this before the divorce and she says that's correct we were waiting to the divorce was final to eighty three so all of them did have no one to indicate other thing other than the truth with regard to the marriage and that's all jury didn't have before sufficient information to consider all of that because let's say that they have the instruction i asked for at thirteen thirty four of the record that he could preserve his residen naturalization purposes under four seventy and that he could be lawfully admitted for permanent residence under this five year requirement and he was a translator for the military if the jury had before it the option to consider whether or not he was entitle and that but it could have decided if that statement about marriage would have been something that imputed his moral character fitness but it didn't have the instruction in front of them so the jury was not given sufficient instructions to adequately decide the ins instead the decision is made by counsel making an argument in closing about that i'm making an argument in the briefs about that but the jury didn't have before it decision well if we look at the five year residency requirement does he have sufficient moral character for me to say ok he qualified under this and it just simply wasn't before them whether he was eligible for naturalization good moral character is being organized by the appellant by the government as a reason why we don't even have to deal with some of what you're talking about  is is this is that fair is the government is saying that we can look at this independently without being given to the jury of whether he was eligible for naturalization on issues that were not  heightened requirement as recognized in the king this case by the u s supported in court saying only my brief and also implicate sentencing because in addition i asked that be submitted to the jury because i told the court you can't to naturalize him unless the jury also makes this not this heightened material in requirement required for day naturalization so i think that it was all there that it's required and in the elements that the government pro he was not entitle to naturalization that's prone to of the fourteen twenty five instructions and it just didn't do that and that matter wasn't placed squarely before the jury because by jury instruction that went down to the particulars about how he was entitle to naturalization the jury deciding whether or not he was wasn't fully presented to them thank you three we have a sort of similar argument and that his response to my motion said this information about when in truth and in fact he was fighting for mender in a mall in lebanon in the eighty's is highly revelled relevant to the government proving its case and putting the defendant on notice as to the falsehood was that says and they're pleading it the record on page two thirty then a jury note comes down after the jury has been deliberating for two days on the morning second day at ten thirty five am and  the jury asking how three is the question have you ever participated the actual charge along with this answer of no just that include the when in truth language of count three is when in truth part of the indictment or just statements the court proposed to tell them read the jury charge of pages ten through twelve to that did not include in that particular language just the elemental charge given in the pattern jury instructions  and i objected saying please tell them the government must prove what's in the indictment is that informs us of what that false statement is it's it tells us what the grand jury indicted us for and  the court overruled my objection charge the jury read a pattern instructions and the jury charge pages ten should follow one hour later roughly because it was about an hour and a less an hour and a half and if we account as arguing about what should be read to the jury and to review see if there are no having them in it and discussing that with them roughly an hour after that the jury came down with a very pretty quickly after that i think improper response to the jury meant it was always the danger of trial judges worry about of embellishing only our own you know things that are before the jury and so well i requested that that the jury be instructed that same the government must prove the and in the indictment and that's where that additional language was in my answer you just read your jury charge that didn't have that specific characterization of commander in a mall forty two eighty five if you believe he was carrying water to help them you can convict them of this and so feet now we had not only in answer to the note making it answering that you need to prove what was i'm sorry hold the government to proof of what's in the indictment allow the jury to broaden it to well he was carrying water not to be as a leader or commander in a moment we can find him guilty if there was so much less conduct substantially broadening the offense and leading to this constructive amendment that leads to the requirement this court reversed the conviction on count three without any showing a prejudice because of the construct to testify about matters to which i was not notice these were the only on the ground witnesses in beirut during the relevant period of time during the eighty's mr hohmann who never entered bitter but was preparing  to deploy there was called by the government after i was noticed he would just be an expert on immigration and he was an expert on immigration testified to that and then they expanded his testimony to these photos showing what them looked like allegedly in the eighty's how they dressed and how but tactics the enemy used it was at this time when i was surprised i said this person has not been qualified as an expert to these matters i object to his but i made an offer of proof at the bench and then a c p offer of proof as well but i've asked this court to do a bit if you don't have process at the bench i indicated this person's going to testifying now that home and surprise me about how these fighters look what weapons they use or what tactics they deploy the same testimony that mr holm and surprised me with he testified what they used what they chewed out of open windows they got around the corner and how they would be a tired and master chief davis retired would have testified to the same things to me rebut in defeat the surprise of this unnoticed expert testimony of this prejudice dispute what counsel said the defendant did check both boxes on government's exhibit fourteen his naturalization form both under the five year residency as well as married and living together with his wife he was previously put on notice by mr hohmann and attorney blakely during his attempt from two thousand and five to two thousand and eight to gain naturalization i believe that is when his will then wife his him with his naturalization form not the one in two thousand and nine that he is charged with since in fact at that point they were in the process of going for divorce the petition for divorce with his wife on the natural same ship and he was naturalized according to the three nineteen naturalization in regard to him not being eligible he check the box that he was living with them he lied under oath argument about not being a good moral character yes ron wyden why can we independently or you independently decide this of bases without giving that to the jury i mean we are having to decide as a matter of law i suppose that he wasn't out of because he's a liar why isn't that a jury question because what the jury did decide john unfounded beyond a reasonable doubt that one he did lie about living with his wife that he was not entitled to have his citizenship according to that which was the only citizenship he was granted until he knew he lied about it and these were instructions to the court follow the instructions that this court set out in those cases and in this we know he lied because had he not he checked the box for the three nineteen for the married and living together citizenship if he was only going for the three sixteen he would not have had to have checked that box but he did and then he lied under oath to master mr shafer about living with with his wife and he specifically asked him those questions so he was shown beyond a reasonable doubt that he knew he wasn't count two says not entirely because he wasn't living with his wife as the statute requires the right length of time the sort of thing you're now adding sees me account three with the new one which is he was not entitle because he was a bad mor character no sir i would respectfully disagree with that he was charged in the indictment based on the only citizenship that he was granted was that he was married and living with his wife for more than years he was not entitle to it because he was not living with his wife more than three years even admitted that in his divorce counter petition that he had filed here before so he knew he wasn't entitled to that citizenship yet he applied anyway and yet he lied under oath to mr shah for about it he knew that he was lying about it because he he admitted it previously he was not living with his wife so the jury did not make a finding other than what the defendant was charged with the reason counsel's argument about the other instruction is incorrect as well is that the instruction that defendant proposed only included her theory that the four seventy allowed for citizenship under three sixteen all three of the c i s witnesses mr shah firmest of alaska's mista home and all testified that their understanding was clear that the four seventy four not only protected the lawful permanent resident status it did nothing to preserve the physical residency status that was their understanding ms order is that we've gone over with insisted that's what it was and that's what they testified to so even if even assuming are going to they were completely wrong about it which we believe they were correct he wasn't eligible under three sixteen and the included the requirement for the good moral character under eleven zero one f six under the statute four three sixteen it's section fourteen twenty seven requires an individual to be a person of good moral character to be eligible for naturalization and eleven zero one f sixteen the definition says no person shall be regarded or found to be of good moral character if they have been lied under oath to gain an immigration benefit  congress versus united states where there the defendant lied about his date of birth and his place of birth and the supreme court held that even if the laws themselves may not be material it shows that they're not of good moral character and therefore they're not eligible by not having that extra acquirement in the proposed instruction in proposed instruction was incorrect and therefore not giving it was harmless error what the court instruct the jury on is the elements this court set forth in the moses case including the definitions of what married or living in america union was the court properly charged the jury and we did show that he only got his citizenship by him being married and living to his wife the jury found beyond a reasonable doubt because and the read the evidence was replete it was defendant's own statements show that he knew he wasn't married and living with his wife was not entitled to any type of immigration status so we believe that the government the government did show when looking at the evidence unlike most able to the government is the verdict winner that defendant was proven guilty beyond a reasonable doubt that he applied for the nineteen naturalization he was not entitled to it and that he knew he was not entitled to it based on his own admissions previously and that any ern not giving the instruction which was incomplete and misleading was a harmless error in regard to the constructive amendment argument the government did nothing to constructively command the indictment throughout the entire trial except for a very brief response to a defense witness comment about his time with them all the photographs that he showed how proud he was to be in a mall fighter the testimony of mr rise and later and mr snyder about how the defendant told them how he thought against the israelis and showed them videos of how he blew up israeli personnel the bullet hole in his arm and him telling a doctor showing the medical records that it was from a bullet ho his in from his statements to his family members about him being a p o w with it is wrong the abuse that he suffered as a p o w and the statements he made to the undercover agent all go was what the government focused on it was a very brief remark in response to a defense witness comment that the defendant was just the water boy nothing prevented the defendant from arguing that that's all he was or just living water wasn't sufficient to show the mature ally but the defense doesn't get to create a straw man argument that is just a water boy and claim that we don't get to respond and that somehow to construct the court instructed the jury as used in the pattern struction for similar acts the government never changed its proof its never changed its theory the proof supported the indictment that was brought the court correctly instructed the jury isn't fifth circuit pattern instruction for one thousand and one also told the jury that each element has to be found beyond a reasonable doubt there was no constructive amendment and there was no variance as well was the any objection to the pattern charge no sir there was not but the one thousand one no sir the government proved each and every element beyond a reasonable doubt the court's response to the jury question again a construct in them and a curse on the evidence presented trials proves a different crime than the one charged in the indictment when the jury instructions broaden the scope in the closing charge again the court instructed pursuant to the pattern instruction of one thousand and one that the fifth circuit is handed down the court sent the indictment back with the jury and reiterated in the closing instruction the government must pr herman didn't give expert testimony he gave factual testimony based on his time and how it related to whether or not this with a fact his naturalization form defense counsel naturalization the court did not abuse of discretion by allowing this testimony for the defendant has failed to set forth how the admission of mr homans testimony as related to his eligibility for citizenship substantially prejudiced the defendant's rights to a fair trial given that the defendant elicited similar testimony both before from government witnesses and substantial testimony from defense witnesses in the same fashion at least three different in this case where objective in this case the testimony was cumulative the other testimony that defendant bought brought up both before and after who argue put him off we put him on to actually to put knowledge on him about the initial application for citizenship because he was the one who dealt with the two thousand and five to two thousand and one and actually tried to help the defendant saying you need to wait if you leave you're not going to be able get to the sixteen system ship so he was the first one there so we were putting that on to show his knowledge that he was put on notice about the requirement that he had to be living with his wife for three years they object to it was committed arguably cumin yes or it was only cumulative as to the weaponry itself it was not too military that as to how it affected his citizens ship application i believe him and i not allowing the ex navy seal and cia contractor to testify this isn't a completely different area are a completely different issue than what happened the reason the seal was allowed to testify is because the defendants willful faired to comply with the super regulations some ten months before trial defendant refused to turn over classified information when the government worked quested it and other reciprocal discovery out of concern that would undermine the defendant's case and allow the government to change its strategy quote for what counsel said is on page seventy three of my brief and on page twenty five eighteen of the government record it was clear the fence was making a choice not to turn over the classified information  should quired by sea but the reason this notice requirement is required under super section five days prevent an authorized disclosure of classified information and to allow the government not be surprised by inappropriate disclosure i'm used to classified information and section b specifically provides for the remedy of pollution if the tenant fails to comply with this the government after the dependent made these statements in open court defendant didn't even tell the court room information security officer who was assigned to the case to review classified information we were not given the nose that was required under secret and this was done because then it wanted to surprise us one to show her trial judge was when we heard the proffer when they wanted to put the witness on and as judge lamberth pointed out this is why we have early discovering c but this is watch required and when he refused to allow them said they know months before they were going to call him we were never given notice and therefore they did not comply with seba anything this witness had from that time is on its face was classified  early in the case about my client's conduct of activity in iraq and iraq not the lebannon information back in the eighty's and they see so determined that none of the information w classified when i spoke about not wanting to disclose seba at a pretrial hearing i express or said i don't want just to disclose what's in my client's head i don't know if i was going to call my client to test fire and not and i make that point at twenty five thirty six of the record it wasn't until they called coleman for this on the ground imber beirut testimony in the eighty's that i was well aware that i would then call mr davis and i'm talking about this last witness to see oh yes coming from a drill down on that and i'm trying to respond to the cokers answer by saying this is what i was trying to meet with that testimony that the court excluded and that's why the court eight buz just discretion because i wasn't allowed to meet his testimony rebut it and defeat it with mr davis unclassified testimony about the very thing mr hohmann testified to that i was trying to directly counter so clearly wasn't classified and it said he gave  actual testimony based on this direct knowledge of the firearms garb and had just used by terrorist fighters in these twenty two years military experience clearly calling him as an expert and was as well as when he was preparing to dep this was simply to me the same information that mr holmes provided it should have been allowed in the court used his discretion in disallowing that defense testimony on how to i would need to make the point that  exhibit fourteen my client did on the electronic hash mark the way he filled out this form by computer only marked a i've been a permanent resident of the united states for five years and also disclosed in his original application and  second one that is why flipped aside me in san antonio and that he was deployed to iraq as an entire ritter as you recall the government and i told you that they advised immigration officials on about to my client was not indicted for a moral character issue the jury was instructed on that and in the two cases cited by the government moves girl and she's saying that these were not arguments based on what was