the article three court issue and the jury instruction issue as for the others i think there adequately covered in the brief so after we've dealt with those first two issues in this the court has any particular questions regarding the rest i'd like to reserve the rest of my time for article three issue according to the supreme court in the commodity futures trading commission versus sure the constitutionality of any given congressional delegation functions to a non article three body must and i want to stress that must be assessed by reference to the purposes underlying the requirements of article three in other words we must undertake what this court  called the sure inquiry this court provides a very good example of what needs to be done in a case called noriega paris of the united states one seventy nine f third eleven sixty six where the court goes through each of the article three that your honour's is exactly the wrong way to approach article three question again the supreme court in short teaches the practical attention to substance rather than doctrinaire reliance on formal categories should inform application of article three what the district court did is exactly doctrinaire reliance on formal categories particularly the formal category of the territorial court and what it should have done instead is to analyze the issue on a court by court basis just as is done with all the other types of courts that were formerly considered to be categorically exempt from article three for example courts of the district of columbia does an exception to article three exist for district of columbia courts sometimes yes as in the palm or case sometimes no as in o'donoghue pretty courts also another formerly considered per se category  an exception to article three exist for treaty courts sometimes yes as in right ross sometimes no as in read be covert so how do you distinguish parmar home or your honor is  or itself distinguishes o'donohue palm or takes up the situation of the d c courts and it says these d c courts which it's addressing there just deal with the local issues they're not courts of general jurisdiction the undertaker are all the general columbia and every point where palmer distinguishes o'donoghue are courts are like o'donoghue not like the district court for the cinema has all the same general civil and criminal jurisdiction handles everything according to the same procedures reviewed according to the same standards of review as a full district court of the united states and yet it is not provided with the same institutional protections under article three so paul more deals of the case deals with courts of limited jurisdiction we i don't think they were i don't think that was their position i think it was a question of deciders a question of law well so what is your strongest argument then for concluding that the creation of the an example the extent to which the essential attributes of judicial powers are revert reserved to article three judge and i reserve that all the judicial powers are exercised by the non article three judge in the district court similarly is their limited jurisdiction know there jurisdiction what other quarter the congressional concerns motivating in an article three court no concerns are apparent from the statute apparently was done basically out of force of habit the risk of domination from other branches another factor exists here there is a risk of domination by the executive and legislative branches of the district court based on the power to appoint or not appoint confirm or not confirm that judge at the expiration of her term so all of those factors that the court needs that's often overlooked it's not a territorial court it was not established pursuant to the territorial clause the congress had no power under the territorial clause to establish it was established under congress power under the trusteeship agreement through the treaty power by by the judge rather than by the jury were decided by a judge without the protections that article three mandates and so to that extent she was deprived of that right and in addition the article three issue implicates not only the individual defendant's rights but also the structural rights within the separation of powers even apart from any individual prejudiced to the defendant so even assuming that there is some authority for granting article three protection to a judge like this one outside of the states isn't that more of a political question that we should defer the supreme court would say no your honor the supreme court has said that you need to we need to address this in terms of the courts and really in every one of these questions every one of these cases where it's come up with or the courts decided it to be properly in article three or properly not article three it's been the court to decide it doesn't defer to the political branches on that issue it's analyzed it on its own on its own terms it each time the ninth circuit what is what specifically is the case law i mean there's i think there's an unpublished opinion there is a net goes against the writers that goes against that goes against writers and unpublished decision that goes against me the court in that decision for it was basically analyzed it the same way as the court in the district court did in this case the district court basically followed this court's approach from that earlier case the soon case and that case is is one that it was it was an unpublished case and like the district court's case it basically it just jumped over that issue of do we need to do the shore analysis do we need to do that in court it's assumed that we don't it assumes that that's a categorical first it assumes that it's a territorial court which is wrong then it assumes it's a  think he was wrong a sprinkler was wrong and that yes the supreme court was wrong and but that's the supreme court also was not binding when it said that this is what happened in that case is the supreme court both parties put it to the court both account the constitutional situation at the time of the establishment of the court which was it could not be a territorial court because there was no territorial power and in time that issue has come up regarding what was the power of congress in legislating towards the trust territory of the pacific islands there's always been determined it's through the treaty power based on the trusteeship agreement without the trusteeship agreement congress had no power to legislate towards the trust territory whether to establish a corridor administer it in any other way at all flowed from the trusteeship agreement which was a treaty so where that decision is needs to be made where that analysis is done where that distinction is drawn and words relevant to the case the decision has always been it's under the treaty power not the territorial power to recognise dicked as as as dicta and where the issue is contested and where we do need to make the distinction we shouldn't be governed by dictate where that distinction was not drawn but also i would say that in this case even if it is a territorial court and even if that dictum is correct we still need to go through the sure inquiry we still need to look at the whether it was properly established we can't just say categorically as a tight as a territorial court if it is ordered that that's proper because shore again tells us these rigid categories are thing of the past we can't look at it and say just per se as a territorial court as as a public rights court as a district of columbia court of treaty court just just by virtue of that alone that you can establish it without article three you need to look at it on a case by case basis whether you know purposes and and on her theory of the case and her theory of the case was that her misrepresentations were not material because they went to her status as an eligible spouse and she wasn't eligible spouse now a criminal defendant has a constitutional right to have the jury instruction according to her court but what the court gave you and it was was it wasn't it wasn't wrong but it was insufficient it was very it was abstract and it was general when there is a good law addressing the specific context in which this case  context of what's what's material in what kind of misrepresentations are material in the context of the application for a visa there there is in the we need to look as in couldn't just to what the court is this general languages are natural tendency to influence the decision on which is fine but what does that mean in this context where the decision to be made is the is the grant or denial of a visa and so that the test more specifically more specifically it's the more specific one that we're on is whether the misrepresentation or can or concealment had a natural tendency to produce the clue the conclusion that the applicant was qualified so you look at the conclusion whether the applicant is qualified there is a more detailed more accurate and more complete law that the court refused to give in as a consequence of that it was vague and the government was able to argue without anything to contradict it in the instructions points that are simply contrary to the law for example that it's sufficient that there would have been an investigation if all that happened was her misrepresentations disrupted an investigation that would have been frustrated the government's investigative efforts both of those things not just obstruction the investigation but also that there was a fair inference that an actual ground of ineligibility actually existed you need both of those not just disrupting an investigation  making it harder for the agency to reach a decision it's not just the process that must be influence it's the decision it's the conclusion that must be influenced the must be some evidence at least raising a fair inference that an actual ground for  conscious that any difference between them really is a fight a hair too fine to split but if the court finds that there is a difference in there and the can just did over rule rossi then consciousness the law on the court should have given our congress instruction it's correct it's supported by three application you are you are correct what to identify the government's position as being failed to carry the burden that is our primary point here the us supreme court has said that the end of my district court is a territorial court this court has address that oregon let me let me i will get to that you only second and apparently you know looks to be apparently a permanent court well that i would be since a covenant i believe under the reading of it could be withdrawn by both by the in this goes to fail to carry the burden she says not a territorial court at best what has been proven through her at the briefing is that it's not territorial court but that doesn't answer the issue appellant says a treaty court order the consequences of that if it is a treaty court how is that to be resolved because what is not mentioned in any of the briefing is that the covenant which is not being challenged expression we call for the formation of this district court that we're talking about you know for one it said that the united states shall create enabling legislation was passed afterwards in furtherance of that so if it's a treaty court then it should be sufficient as well but the court it's being established by congress pursuant to treaty power is then certainly the property of the united states and it would be a territorial court because those provisions in the covenant a call for the establishment of the the in my district court were immediate they were in effect and so when they were in effect it became the proper united states so again it's territorial court it's a treaty court but most importantly appellant who bears the heavy burden does not tell the court the proper resolution what do we do if it is a treaty court appellant doesn't say what is being struck what is the remedy what is unconstitutional what statute needs to be removed what language again appellant doesn't say so and that's her burden so she cannot prevail on that point the test that she offers which is not supported by the case law remoteness and permanence that's never been the standard the standard is unique characteristics of the court the circumstances the location and all that there is a case by case and analysis and for the reasons i just discussed they are sufficient i mean this not well since you weren't there but i was i was there but i was ok system all right what if you were going to if i asked you just sort of give me a nutshell what was the gist of he i think he properly articulated what he attempted to be her defense and that's another problem she lost but that being said but what was what was her argued defense had to at the time she entered the marriage she thought it was a bonafide already on me what has gotten us here with the vagueness doma windsor arguments is because she said in response to a leading question did you intend to establish a life together she said yes in the face of all the evidence that shows it's plainly no possible or true and so from that was launched these arguments or bring us here today that would be their defense that she did intended absolutely that's what i'm saying so she wants to take it from you know that that she intended to even though it worked out that day so if a person intended to establish a life together you know say when you got married you intended to but then after that circumstances first such that it just didn't happen would they be guilty i mean if the jury believed it and i'm not saying that that was what all the evidence was here or whatever but if that were your intent and you proved it the fact that you never lived together wouldn't scheme to defraud provide misstatements false documents to cover the true nature of her marriage so if in fact she did in tennis that was life together she still made numerous material misrepresentations the cost us c i s to engage potentially capable of influencing their decision whether that if the jury convicted her here would they wouldn't be necessarily true that they didn't believe she intended to i have a life together i mean because if that's what i'm asking you if you intended to have a life together even though you didn't have a life together after you would not be guilty right now i still think you'd be guilty because its influence the decision materiality of that answer what she would have done in the face of knowing the truth of that i guess what i'm just asking you her theory of defense if it had been believed was what i think it's a better question posed to her i believe it is when you try a case you better know what the theory of the defense is if you are you are still i pressed to have not one hundred percent sure i know because it goes to the jury instructions this is not a theory of the case jury instruction issue you cannot say my theory of the case and i'm going to drink struction on a legal issue of first impression that has not been resolved by any court and i am otitis my theory her theory is that the court is that the government has an added element but how could that way too convenient that that's her theory and counting it as such by saying that materiality plus a count one that's adding an element united states what if it were the jury acquits on that point that will never be remedied those are for courts to determine so  point your argument there is not that she is not entitled to a theory of her case your argument is that materiality is not an element and that's why it should be given right yes archly let's talk about that  application even though the petition for citizenship was not on the line so was that case wrongly decided i wouldn't say it's wrongly decided i would say it's inapplicable why it's an immigration case just because it's an immigration case well it's certainly less applicable then the materiality standard as defined in criminal cases in cases such as service delhi or mets morrow  these are these are in criminal cases where the court has said it's sprinkled throughout all of the now grounds that there's chametz moral all of those cases but i'm just curious that in this case in immigration removal or there's a lot at stake as well it was applied i do think the contexts are different we are charging in every element but she was found guilty of she was either had to be willful deliberate so she i mean that that is where the crime where the real culpability comes from the materiality would say it's a lower standard in the criminal context it should be the intent to influence because what we're really capturing is her criminal intent those cases do not deal with that that was the to the extent it is against us it's an outlier it's an immigration case there are other cases that are much more control but to say that there are forms applies here is to say that she can go into european pain willfully and it intentionally provide false statements and then after the fact it turns out she was qualified and that's not that's ok the standard is to influence not to turman and so we would say that it is if there is a lower did not say with intent to influence but then it was sufficiently covered by other instructions we would say because it was defined in count two and that would be harmless error perhaps and also an issue not raised by the the court is concerned about the evidence as to count two again the only count that's been challenge for sufficiency evidence government reiterated the the points that it made in its brief but also point to other things are highlights six documents of this defen submitted lied about the address numerous documents are made under penalty of perjury including her i forty five she had to the extent that her english proficiency is being questioned she checked the box saying or her form that she signed and adopted so that she sufficiently spoke english she communicated with this husband it's because been on numerous occasions now actually not a numerous occasions but on in detail conversations such as about the joint bank account but his need to wear a hat in one of the pictures just told him that her underwear was read for the immigration interview the information the husband testified he did not read it did not fill out the form somebody cut and paste her own testimony taken from the record and she she has asked mistaking why did you marry jessie i want to work how would getting married help you work because if i marry jessie i could obtain the i status of the court and if i had the card i could you don't have to look for contract work were you in love with him no i didn't why didn't you live with them he's me was your main reason why you didn't live with him yes i have a boyfriend was there any time when you seriously considered to stay with jesse yes when was that the time i play for a green card why did you seriously consider going to stay with him at that time because at that time i thought i had to in order to obtain a green card it's necessary that i stay with him because i need to work so you were do this to her so were you willing to do anything necessary to be eligible and get a green card yes why did you divorce him my green card was denied and i have a daughter in the face of that is  time you got married to jesse did you intend to establish life together yes completely disbelieve just any standard clearly disregarded by that the disbelieved by the journal ok but point one way or the other so there's nothing in the covenant that men due to the creation of a non article three court and article three court would be equally consistent with the covenant the question was raised what is the what was the gist of the  of the defense and the defense a trial was materiality that the representations that mistimed made were not material that she basically told unnecessary lies was not disputed that she made the statements it was not disputed that her statements were  false the problem was she thought that her she had a misunderstanding of the law she didn't know anything about it about establishing a life together she didn't realise that that was sufficient and although she didn't tender establish a life together she thought it was necessary that they actually be living together at that time so that's what she told the immigration personnel when she applied she lied she knew she lied yes but she didn't think her lies  that important no she thought are lies she she she i'm just trying to underfed understand what the defense is here the defense is that the misrepresentations she made were not material because she thought she thought at the time they were material she thought that that was what she needed to say in fact that wasn't what she needed it was not necessary that they be living together that was not the standard she met the actual standard she just didn't meet the standard what she thought was this and she made misrepresentations as if she met her or her own version which is not accurate of the standard but since she did actually meet the real standard those misrepresentations were immaterial that was the difference in this materiality defense that was entire issue on which we went to once it drew on the criminal definition of materiality and carry that over to the naturalization context it said this is our definition for all contexts we're taking it from the criminal law and using it in naturalization sort of turn that around and say now this is just only for naturalization and not for the criminal law is just the opposite of what the court actually held it's the same standard as is the standard does state the standard for for what is materiality and in criminal both the criminal and the naturalization and the visa