first the standard that applies under netter is a demanding on a jury conviction based on an improperly instructed jury violates the sixth amendment unless the government proves beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming and uncontroverted evidence what is more this is not merely a case where an element was omitted this is a case where the jury was instructed the opposite of what the law is this jury was charged that it could convict even without finding a material false would indeed the instructions charge even if you find there's a dude we know about what happened in this case we know it got reminded so now we're here on  the government then faces a second legal obstacles specific to the facts here and that's that has to do with the standard that applies now for stripping someone of citizenship and the supreme court's opinion makes clear where the charged under fourteen twenty five is a false statement the government has only two ways to prove materiality first the government can prove that had the defendant revealed the truth that truth would reveal facts that would objective we disqualify the defendant from citizenship and second the government can i ask you a question about that that this is sort of bothered me you you state and i think the briefs some both sides really reflect this the question is whether the false statement would have disqualified the defendant meaning her from citizenship now what i'm what i'm wondering about and this will reveal my my lack of complete knowledge about how these immigration cases work is that the false statement occurred in the naturalization proceeding back eighty eight right through the false statement that forms the basis of the conviction is that two thousand and six false statement on either question twenty three or twenty four that was simply had you ever lie lie that's that's underneath that is what she to be saying well lying about whether husband was in the army and committed war crimes didn't affect her sort of her naturalization proceeding except insofar maybe now in hindsight we look at whether that proves she was in good character so that's what's being briefed and discussed but didn't her lie in one thousand nine hundred eighty eight affect whether he would then also be naturalized so let me on pack what you just asked because i think there are multiple parts to get to the answer your clues do so because there are multiple layers of misstatement i think the best way to think about the supreme court's opinion is there are objective we disqualifying facts and objectively disqualifying lies in order to obtain a condition conviction under fourteen twenty five a when the defendant is charged with procuring her own naturalization illegally i think the court's opinion makes clear that the government must prove that that naturalization was illegally obtained or there is something objective lee that would disqualify the defendant the government has the option to charge someone with illegally obtaining someone else's naturalization but here it chose to charge so even though her statement assuming it's at i think you admit it was false did it it did impact whether he got through the citizenship she's not charged with that crime is that basically answered he's not charged with that crime and i don't think we know on the record by there it impacted radical muslim yox granted refugee status in told the truth it would have predictably led to facts that quote would have mattered to an immigration official but the supreme court's opinion while it says those words has a comma and it goes on and says because they would have justify denying naturalization predictably have led to other facts warranting that result so the supreme court makes clear that there is no room for subjectivity in these immigration decisions in the first instance there is no personal whim that matters it objective facts and so the government has to show that ms muslim yok would have been in eligible for citizenship on day one and the only way that they can do that is show objectifying objective we disqualifying facts or an objective lead disqualifying lie and none of the facts that they point to such as rocco's military service would impact her ability in the first instance to be named a refugee and then to seek asylum and eventually be naturalized as a citizen so their theory has to be that she lacks good moral character under eleven zero one f six which is the only theory tried in this case under the good moral character provision and under that part of the statute it says that a lie must be made for the purpose of obtaining an immigration benefit these two questions that you mentioned you mentioned question twenty three and twenty four i think are correct yes with the fact that she lad own either or reasons why an individual may lie contemporaneous with an immigration proceeding and the government must show that they have the subjective intent or bad purpose in doing what is there in the record that shows what her into him was and in this case she might know the birds not on her what works what is there in the record that indicates what her intent was for telling the lives so intent wasn't really even part of this case but i think what the government's done is they've pointed to some things mostly contemporaneous ness in order to say ok all of these things show a purpose but that wasn't part of the case below and so they didn't put in evidence to contradict contradict her evidence contradicting a purpose and for the government to have a chance to put in evidence tending to show purpose so it's always interesting when people ask for remain ends and we ask them well what do you do on the and sometimes answer the question and sometimes not but whether we remain at it at least as always logically seem to me to at least be influenced by what the person claims would happen on remand so is it fair to ask you what you intended to say to remain and whether it's affirmatively your burden or whether it's in response to whatever the government says about why she said which is so i can't speak precisely to what offer of proof will should the case be remanded but i do think it's worth noting and you can take judicial notice of this that this is an area of extreme ethnic strife in the world and one miss muslim york in two thousand and six was making a statement to the united states about her husband's participation through certain layers she may have feared for her family who she has some members of her family back in that region of the world and just in two thousand and six serbia itself was declaring independence and she didn't know if those family members were what side of the border they would be on when ultimately serbia drew its borders so i want to go back just before th sounds to me that what you were telling us is that not only did the government not see to prove materiality and if that can continue if there was no such requirement but also did not focus on intent or purpose in any way viewing that as kind of part and parcel of one element of the case is that sort of right i think that's correct because her intent is important to the extent that it goes to her moral character where the government just took the position that it didn't have to prove that exactly there was no opportunity really for any presentation of evidence other than and if she did sort of got that sad the boundaries of what the government sought to prove which might not have been why strategy for her that's exactly correct and i think it is her right to have this case go back to a jury so that they can make this very subjective the subjective determination into what was she thinking what was her state of mind when she made a false statement to the government and to first put the government up to its burden of proof and then to have missed come in and counter that with evidence of her own at this stage because the purpose was not a part of the underlying trial i think it is fundamentally unfair to look at the record and say what did ms muslin you actually know to contradict purpose but the government also did not present evidence tending to show smart infer that there was a purposely or i mean as far as when he was indicted her husband was indicted and then she applied for naturalization as i recall that she'd been eligible to apply for maybe more than a year but she waited until after he was indicted now i take your point your honor and i think that the government has a deuce evidence to make its case before a jury but i don't think that that there is no alternative explanation for why she would seek naturalization in two thousand and six particularly because her ethnic home country or she is ethnically serbian but it wasn't until two thousand and six that serbia declared independence and drew its own borders so there are other benign reasons why she may have made art why she would have sought naturalization in that year and we ask the opportunity to present that to a jury the supreme court is not the into it is going to back the determination of the legal question before us and the supreme court could not possibly have been purporting to tell us what to do with regard to harmless error so i don't think that gets you very far mr reich just starting with that but if we get into the actual evidence that was presented the purpose and number of materiality why would you put that evidence in at the original initial trial we're still trying to show that through the evidence that you could infer what she was doing what she was doing was she had told the truth she wasn't going to get into united states she was trying to portray herself as a refugee when actually she were and are the refugees stream when actually she was the exact opposite her and her husband were involved in the in the bosnian serb and military and should know if she did inflating the two so i don't recall saying seeing that or that she had any involvement in what her husband did or didn't do  and it can be i think inferred from that that the her purpose was to seek refugee status permanent residence status in the naturalization status her statements were were clearly material and would have affected in any decision the immigration officials would have made as to her application and converse later  and fwiw looked more at the holding spring court's holding lying on the application does go to some good moral character and it shows that if you lie about something there that would have mattered to the immigration officials that that shows actually shows bad moral character and is a reason and in and of itself to be disqualified this court found that in her room now her room is a little different because her room did never really contested his purpose for lying here i don't know that the purpose was never contested but it wasn't necessarily fleshed out in what you just said seems to be a consistent with the notion that there was proof that she just described well i think it's if you really look at the testimony it's really not inconsistent i mean her well i guess  i'm assuming that the trial transcript was a part of the original record when we heard the case before it was ok so we can go back and look at exactly what that record w eight jackie vera in reference to question twenty three and twenty four testified why did the united states if you know that in the record i mean ab back to being is puzzle that this case is i watched the first time around why would the united yeah you were right you probably remember what i said back in during the opinion but i'm just puzzled as to why you put all that stuff in the record and then took the position leap and i think the larger point is why would the united states be all over the place in taking different positions what interest of the united states i don't need to chew up the last purpose by me retrospect it didn't serve a purpose well we shouldn't you know i mean it we ask for that instruction and that's why we're here and that's why it's been going on for four years now i understand but what will doesn't fairness dictate there we remained it back and have another trial well i think light of the confusion that you've just admitted to well if that goes back then the whether that's harmless error and whether these material statements are properly instructed jury would have found that these statements i can't really say really what they're you know and son of what you know and when that decision was made about the materiality it was at the end of their case whether she had intended to testify or not i didn't you weren't the trial attorney was not a trial attorney so we don't know at what point the defendant became aware that the court was going to materiality well it's in the record your honor and i'm i'm trying to remember exactly one it happened well it's absolutely in the record it was discussed in judge pearson wrote or had a fairly detailed ruling where she cited the case that we referred to and then actually mentioned that if this case went to go to the supreme court then so be it and then but then we know she was going to go with the case that we cited not construct a material if we can to go back to what the question is here it seems to me the question is whether it's beyond a reasonable doubt that an investigation into the false statement said the government known they were false would have predictably uncovered that she made that lie for the purpose of obtaining immigration benefits now it's sort of hard to see why she would have lied if it had didn't have something to do with immigration but your fellow counsel has made this argument that she has other explanations as to why she did that so why why do you say that it's beyond a reasonable doubt that the investigation would reveal that it was for purposes of obtaining immigration benefits as opposed to trying to prevent her relatives from getting trouble in trouble or whatever it is that she might say it's also there is the point of obtaining immigration benefits but it's also precluded an investigation that would've predictably turned up objectively disqualifying facts that's the what are the objective lay disqualifying acts that she lied on her application and she and she lied about her husband's military service but it will be just because you lied a lie itself isn't going to carry the day for the government because you have to now we now know you have to prove its material and if you did in this case you have to show harmless error for the error to do for the inability to prove materiality which requires a showing of intent right were minor statements as was a statement about you know the supreme court talked about embarrassment or fear this is this isn't that situation this is these were these were well why isn't it this that situation that's what we're trying to figure out here because the statements materially would have affected her application to become a united states to become a refugee a resident and why would a that's just come closer why would they have materially affected that if upon further investigation the government satisfied itself that she had a of a but nine reason for the lie that's essentially what what the appellant's argument is here i think we just go back to the testimony that was presented because that's really what we have is only the testimony that was presented to the jury in the testimony that was presented to the jury was that this would have affected her it would have affected it into of having there being that's again they were trying to portray themselves as refugees when actually they were the cause of people becoming refugees or were he wants reco not necessarily but again you're inferring you're you're mixing the effect on him versus the effect on her seems to me the effect on him are also referring to them as that in a way that lumps them together and she's the one here with the as to her unless it shows lack of good moral character right when one thing yes in order to show lack of good moral character then you have a couple different routes that you could take to do that and in this case one of which is that it's beyond a reasonable doubt that she did it for purposes of obtaining immigration benefits as opposed to some other benign reason right is that correct so why is it i'm just asking you again why is it beyond doubt that it was for getting immigration but if it's as opposed to some other benign reason aside from the fact that you say it is i think if you it's just from her again it's hard to answer the question without just looking back at the testimony the timing of the statements the us were asking you to do now is your time to tell us again i mean you just can't see maybe statements in oh she made these statements three times  presumably the motivation each tab could have been protection of relatives it doesn't get any less likely that she made them for a purpose because by them several times out well i think in the context you made it though your honor that's really is the fact that  said she didn't make any false statements both orally and in writing in the same proceeding in two thousand and six and prosecuted for the two thousand and six statement but what you claim is the basis of is the foundation of the ninety eight statement is that a fair description think it is i mean you can't look at the two thousand and six sixteen without the one thousand nine hundred representations so what happens  if it turns out and maybe this is fanciful that she has a good explanation for why she lied in two thousand nine hundred ninety eight but because it's not within reasonable proximity of one serbia became an independent state in one thousand nine hundred six there's no justification for having continued that lie in two thousand and six and that case then you'd win right but how do we know whether whether the reason why she lied initially and then repeated it as you say three times or twice whatever it is is the same each time i think just again d further questions we know i only have one for the question and you say it's a reasonable inference that a jury could find seems to me unless i'm missing something that is a much different standard than what we're applying here which is was it b is it beyond doubt which as i understand it is the harmless error standard we use in this case it is so something a jury could have done is a lot different than saying now it's reasonable it's beyond a reasonable doubt what the jury would have done you agree i do and i miss i just want to focus on two points in this rebuttal time the first is that because this wasn't an issue below what the government has to do at this stage it sort of scour the record to cobble together and it  purpose and what they're left with is a couple of statements that she lied contemporaneously and the supreme court's opinion in this case and in congress shows that there are many reasons someone may choose to live contemporaneously with an immigration proceeding and that that's really question begging to say she like contemporaneously it may well to what is last thing you just said that the since that was before the what i'm sorry if you can't recreate it don't worry about it there are many reasons why someone may lie contemporaneously with with apple applying for immigration benefits and while it may serve a circumstantial proof that it happened on a number of occasions but let's assume that she had a number of different reasons i'm giving you that as a as a possibility here it's just hard to see how none of those reasons were to obtain immigration benefits given the sequence of the timing here i i understand what the timing looks like here and i think that the government has evidence to put on a case but i also think that ms muslin iraq has things that she can raise that testimony exactly she had but how can that be true the instructions are given at the end of the case had they been settled before the trial started so that she knew what was going to happen during the trial i am not entirely sure i remember that in the transcript when they're talking about it the counsel below said i'm just going to preserve my objection to these jury instructions so i know there was a lot of discussion about what the instructions would be even before the stage when you would normally consider  instructions right before the charge but i can't say off the top of my head when when i was younger exactly when that will i don't i mean wasn't or was there some sort of pre hearing procedures to determine what the what the standard was the government had to meet in there for the scope of the hearing i don't remember those that even happened in immigration cases i don't remember right now what happened in the trial and i'm sorry for that you didn't did you represent  before are sort of question begging when you go back and look at them he talked about mr rymer and it was our language giving testimony that they would have investigated further and no one is disputing that if she said yes i had previously allied to that the government would have gone to uncover well what did you lie about but they didn't say and that investigation would have led to these facts which would be disqualifying for her and the same is true mr gardner i know that he gave a record yes we're right where you lose me there is had they had it occurred the way you said so she's she says yes i lied would you lie about i lied about what my husband did during the war and at that point once the the jury or whoever this is here knows that she lied to arguably conceal war crimes then how you possibly going to win this case i understand what the circumstances of this case look like i will say for what it's worth there is no evidence that mr participated in war crimes in the evidence below in the record below and i understand is  mr mr ok the evidence is about the brigade that he was a part of so if we change that to say that he was a member of a book group a bird a brigade that is known to have committed war crimes even even assuming that proof i say see what it looks like but i think that ms muslin iraq is entitled to make her case to a jury for what her purpose is on that very subjective