next case on the calendar is united states had to morning may please the court james eagan for the top of why would an american citizen falsely implicate himself in a conspiracy to commit marriage fraud  well not an element of the offense that certainly was for all practical purposes the question hanging over the trial below this pat the top of the on earth evidence that  the accusing tiffany spouse mr brett thompson had engaged in a separate conspiracy to commit treasury fraud however she was prevented from presenting extrinsic evidence to support that claim and from arguing to the jury why his involvement i claim could have provided a motive for him to lie about his and the nature of the fraud the marriage to this type of  really didn't demonstrate bias because it simply wasn't plausible that a witness would be the defendant or the witness in this case would have lied about and implicating himself in a marriage brian in order to divert attention from another crime when the clear results of that would be that and the government investigators would reach out to the defendant in this case and be told no that's not right and that would lead to more investigation of the government witness but that's possible certainly mr thompson could realize that further investigation might ensue how however it's i think possible that he could have realized that he was facing more more serious charges from the treasury one which included by the way an aggravated identity theft at least a possibility that mr carbonneau pled to carry and minatory t year consecutive sentence so realizing that realizing that the marriage was over realizing that he was still being asked to submit and to sign forms for which this pitot of them is trying to get immigration benefits and seeking potentially to terminate that could have made a decision to falsely indicate missing her into this marriage fraud because that was after all the the crime that  the agent went to her to question her about it's not like he just made this up blew the agent of course was there to question her about this case him about this case and stability is that having admitted  you aren't he takes himself off the government's radar you rather becomes a focus of it because he's going to be a witness and to the extent that he's his involvement in other crime if it if it existed is discovered what benefit does he get from the law well i think you potentially could see it as an attempt to curry favor to have the government understand this is your argument but how plausible is that and i'll give you another thing to throw into the calculus before he ever met any of the government agents he told his girlfriend about the marriage fraud and as i reviewed the sum nobody suggested she wasn't credible into what as to what he told her well i'm so plausibility oversaw or he ever met an agent with this purport mean that can be a part of the reason but the only question is when he entered the marriage that he would use knowledge meant that it was basically a fraud that's an argument but you are your point is no no when the agents came to see him he realized that if he didn't admit this false marriage fraud they might go after him for this more serious crime and i'm suggesting to you that everything including the pre ignition of marriage fraud to his girlfriend makes this highly improper implausible i think plausibility is an argument for the jury in a case where this is the the fence but you have to put it together with the other factor that it's implausible and it would require mini trial on the other unrelated crime in the mini trial i think is a bit misty that we don't have to prove necessarily that he committed the other crime it's really about his state of mind at the time he's it was there was some exploration alag weren't allowed to put on the documents to prove that case so if that's all you say matters was his state of mind you were allowed to cross examination on that right but without confronting him with the primary evidence to support but that's that's the attempt to prove the other charge that's the mini trial that the i think with respect i mean who knows what happens when you actually confront him with those checks  may at that point admit that those were his checks and that he knew that they that they were in dorset that doesn't get you anywhere close to where you have to be then you have to be then you have to do the next link in the chain which he was thinking about that when the agents came to investigate him about marriage fraud and the next link in the chain he decided that it would be better to admit another crime because of this i mean there are a lot of links here in the judge didn't think that to many to make this a plausible argument why is that wrong because this is the only defense that answers a question in this case why would somebody and falsely implicate himself if you can't answer that question no evidence in the world is going to her so that's one thing because it does seem to me that the inference that you would have been asking the jury to make was rather implausible but let's assume for the sake of argument that there's a very small mada come very small modicum of plausibility isn't your difficulty here that you not only you have to hurdle is you need to judge you have one to show that it really so substantially plausible that you knew that the district court abused its discretion and for three and it should have come in but then you also would have to prove that it's so plausible that it's not harmless error that i mean the evidence here on the immigration forms to to get about if it but the question is whether it was legitimate at the time was interview into in two thousand and fourteen the modicum of possibility i mean a has to be the certain cases new nice or good his that talk about in the of right to present of the fans talk about well when an the when the evidence goes the only defense in the case it's it's more of a question about the other side of the equation the prejudicial effect and there it has to be overwhelming the courts talk about at for your client here with the prejudice house to be yeah what i'm saying the over i mean it seems like that the evidence of guilt was pretty overwhelming cell and the evidence of guilt i think largely went to the post marriage living arrangements of maine didn't a roommates i'll testify that that they were some other girlfriend living there in that and then your mind didn't limb there the iran yes so i mean you have all these extraneous people who come in there like you know who's right so again i guess it would focus really the day they got married because after that it cuts both ways and you know i think there's pretty good evidence that the government argued that at some point the marriage ended and she's still and that she's trying to get a benefit but of course that's a separate she's being charge of marriage fraud thompson were apparently connected to a treasury fraud scheme unrelated to the marriage fraud scheme and as you hear those bank records concerned deposits that occurred two years before mr thompson met mises that's where the district court really came down with this evidence doesn't make it more or less likely that he would fosli accuser and in some sense a true confession would have worked better for the alleged purpose here to kind of stop the way but if you look at two hundred and seventy eight where he states the standard he states it correctly just you know a few sentences before he gets to that i mean this is a senior district court judge who has done this balancing many times to i think when he stated the standard so clearly just the page before i don't think it there's any real concern here that he didn't understand the standard and i think what he was saying also is that the evidence was so not probative and the problem values he thought was not even nonexistent the six so a big question i think defendant rightly points out that he will be allowed to cross examine with regard to the untruthfulness character from truthfulness and i think that the judge here i think was concerned that the jury could get into that could make that inference and given how how tenuous the link was between the evidence of the bank fraud and  his motive to falsely confess and for bias i think the judge was worried that a jury hearing this with would jump to the incorrect conclusion but you know i think the ink so i think the sign they would jump to the instead of following the defendant down that chain of inferences the jury would more likely to say well this guy is you know he's he's just a dishonest person let me ask you this urges us to remember that this is a six man much of a long shot it was to argue that this witness was lying when he said fraud and that the reason he was lying because everybody would wonder well why would he lie himself is that he knew lurking in the back of his mind that he faced even more serious charges now unless i'm missing something the evidence the defendant wish to produce on this not strip the judge of the ability under for three to balance to make the judgment about whether we're going to distract the jury at the trial from the real issue at hand which is mrs part of miss part of us intent and her her the her claim there is the courts have said that that the rules of evidence that the court you know rationally applies the rules of evidence it's the constitutional violations it's very hard to show that that's a constitutional violation and the confrontation clause of the course been clear that that has a harmless error standard as well as you know not collateral and right there are certainly cases about the importance and to explore it as my colleague you know have a have a point i mean here the theory it may be and it may be a long shot but the theory is he was so concerned about this crime lurking in his past that he would agree with anything the investigators came up and said to him he just wanted to cooperate with these investigators in order to divert attention from this thing that he knew was serious and lurking out there and we're talking about what three checks and they could have been introduced in the cross examination in a matter of moments but i think your honor to also have to go into st of all of the nature of the other scheme this is just in that he had knowledge of that scheme that he did this what he was told by mr carbon are a he would have gotten into the details of that scheme in a way that really would have taken the jury's focus off of the central question here and i don't think that when you have such an argument that has such kind of a long inference in front of chain the fact that it's the only argument they have i think doesn't really suggest that there's a constitutional right to present that just trumping the judges troll over the trial it was just their case is very weak here and again the hurdle that he has to take come over is his whether this makes his the falsity of his confession more likely i think the judge was accurate and saying that this didn't make the  thousand and twenty four and which is a year more than a year before mr thompson met miss part of so we didn't go back further it is to see those records once it came out at trial this is the st time the government had had seen this evidence it was already past the statue of limitations my point that i wanted to get was if the government charged him or if the government had not charged him as part of the plea agreement here or something you're not they would have been able especially when the chain of inference isn't so long and didn't really make it the falsity of his testimony more likely i think if the judge did not abused its discretion in that manner and i don't think if the flow for three was properly applied i don't think  there is the constitutional claims i think the court has made clear that the constitution doesn't trump the rules of evidence in a way that it if the rules of evidence are those are accurately driving the judge's concern here was the limited value of this evidence and how it would have allowed in a way extrinsic evidence to be used to show  thompson's you know suppose a character for dishonesty and i think the judge was concerned that well that was really what was driving that the intent here i'm to get this evidence in because of the the extended chain of inferences and th kind of tortured argument they were making to show bias i think what the judge was really concerned about was that this is actually this was sixty thousand six hundred and eight be evidence extremes of evidence even though the defendants were saying it wasn't and the jury would likely ignore this kind of tortured reasoning and just say well this guy has a dishonest person based on extensive evidence and i think that's what the judge was why he cited six o a p but i think ultimately this case can be decided either under relevance  it at worst or at best didn't require substantial outweighing the program value the evidence the government argues that the the evidence is too speculative but of course it's it's assuming  could have taken care of any concern about the jury misusing the information in the end the top of it was forbidden from presenting in pursuing the only evidence theory of defense that she had beth well argued and