thank you may please the court my name is done especially i represent mr her room who appeals from his conviction for procuring his naturalization in a manner contrary to law what it first appears to be a criminal appeal raising garden variety issues has become quite interesting because following the mr a conviction the u s supreme court issued a pivotal decision apptit things maybe not entirely would be your position today but aren't you the one that urged the instruction that about the materiality that said it would have made a fair bit of difference in the u s supposed on that yes that's correct and her this case is really amusing it's going every which way so what i guess the fundamental point is why is the instruction that was given here on causation not sufficiently close to the mass and jack instruction where you know justice kagan is very and the one that goes to your question judge sudden we did object to the instruction to the extent that it told the jury with respect to materiality that it does not matter whether the alleged misrepresentation or concealment would more likely than not produce in a row nias immigration decision so our position is that that instruction undercuts the other portion of the instruction which disqualified from citizenship why is that problematic i mean isn't the the second option under justice kagan's position that it would predictably have led to a problem it doesn't that doesn't seem to suggest she put from the jury would it whether it would have created a problem well she she she talks about the investigative phase and she states that the government doesn't have the burden of proving definitively and i think that's her word that the planet would be disqualified but it legitimate marriage to the american citizen this mcveigh he says i suppose that's pretty close to a concession that the government was not prepared to prove it was a sham marriage then we have the testimony of the case agent bayh's affidavit that it was a legitimate marriage and then we have the testimony of the it was also the case agent who agreed that in the during the process of getting permanent residency status that the adjudicator according to the notes in the on the application did this protocol that they follow where they separate two parties there's just not enough evidence to satisfy what about the fact that you know jack says a lot about this the possibility of good moral character which can relate to these statements about whether you've lied in the past  paper case the case agent and the rebuttal expert were were not involved at all in the interview process and there was some testimony about whether going to necessarily go through each question on the application and ask for oral confirmation as to its truthfulness but in the i'm the supreme court now in that case at that  false statement that means demonstrating that the dip in that lot about the pacs that would have mattered to the immigration official and they'd be just because they would be justified in denying mitchell if ation and predictably have led to other facts warding that result even though it wasn't testimony it was a false statement that was to an immigration person and that have certain they said it has to it has to go further there has to be causation there has to be a cause causal connection between the false good or concealment and them false statements can go to good moral character which can be themselves disqualifying right the government  pursue that i guess if you and i mean in a round with six which two ways to think about it it was lurking in the case or it wasn't depending on the evidence but then you could also think about it as a harmlessness point what's the point of you trying this case given that madison jack supports a theory that is very easy to win and i respectfully disagree i think that the decision of the supreme court makes it very difficult for the government to prove its case but on top of all it we we don't have a question of whether it would predictably have led to disqualifying facts we have testimony from government witnesses saying that the issue of the validity of the marriage to an american citizen was investigated and we found no evidence to indicate that right but that was there before they have evidence go that well no but that isn't even the basis right you know of why they are so i'm not sure i'm following your own response to judge that and question about the good moral character well if under mass inject there has to be some indication that  truthful answer would predictably of lead to a disqualifying factor so what is the disqualifying factor here him because he answered after the marriage to make a that he had never been married before correct yes and that was in order to park your citizenship fact well there's no testimony as as i indicated this is a paper case and the government simply produce no testimony to support its case they have the burden to say or didn't someone on your side of the case say that it would have raised red flags yes our expert who also was the immigration attorney so that that would go to the element of materiality would have a tendency to cause the government the jew to cater to look further into disqualifying fact is and other than the validity of the marriage to an american citizen i don't know what that is but i mean lies that are related to the naturalization process that are not designed to avoid embarrassment are it that's it you don't get in that's the way it works and that's what these lies were they were written about barrister that's not remotely possible they were clearly about hiding the marriage so this marriage would look legit seamaster is rejected that approach because because you've referred over and over to good moral character independent ground that could itself be disqualifying right but to get to is to base a lack of good moral character on false statements or has to be proof that the it was oral testimony and there was no proof of that so that's about that gets back to your allegation that there was nothing moral here but we'll find out what the government says about that i get that argument so our primary argument is there is a lack of sufficient evidence and if we are correct on normally yes but this case yeah i think so it's more it seems right to me if you're going to try to use it if you win for preventing we trial which is the reason that's a good argument right it's we've also a challenge the admission of the opinion testimony of the case agents and the jew to cater they  provided oral testimony stating that a false written answer on an application is in and of itself disqualifying and that simply is not the law it's you look at the immigration field manual you look at even this courts that the situation in the mass inject case the u s supreme court cases even the board of immigration appeals decisions they all agree on one thing that false written state responses even if made under oath do not qualify as false testimony for purposes of imputing a lack of good moral character that and clearly the government witnesses told the jury the opposite we objected and it's well settled in this horse case law that  witnesses cannot instruct the jury on the law in effect judge sudden in the croman case which we've cited you indicated that juries are poorly equipped to decide what the the morning may it please the court michel indeed on behalf of the united states this case is about lies that go to the heart of the naturalization to sit decision and whether mr her room was in fact qualified for so this devise matter if they were through oral testimony and was all testimony what's a response to my colleagues point yes there was evidence from which the jury could find that mr frewen did reaffirm the statements under oath during his interviews and thus far as the oral testimony both the agents testified that the standard procedures of immigration officials is to walk the interviewee through the application question my question and ask them to reaffirm the answers and that the testimony their so the record will establish this was done orally i mean because he kept saying it's a paper case and the suggestion being there's no evidence that shows there was quote oral testimony at one stage and you're you're saying if we look at the sites it will prove the opposite exactly your honor the record does show that both through the testimony of the agents who explained the process i refer the court to pages one eighty six six three seventy seven three that's so if i remember correctly the agents testified that this is the ordinary course of how they do things you have that component too but then also in the paper exhibit two this is the mr her rooms application the i forty five to get green card status in that paper you have check marks that show which questions that confusion fairly infer are the questions that were asked during the interview the jury was told about these check marks the agents testified that that's the practice that you mark off the questions are asked and so this is at page four ninety five of the record that's exhibit two you see in his application for a green card the hand in marks where in the section asking for all the children there is no typed entry for his previous child with the pakistan wife but instead there are a handwritten in trees for his stepchildren the children on this mcveigh and that's pretty strong evidence that he was asked in his interview for a green card whether or not he had any other children he provided the names of some nutcase i mean i don't think congress gets into this is there some case that kind of tells us what counts is the oral testimony how to how to think through what that means i'm not sure if this is exactly the ninth circuit in the power to decision and footnote two explains that this combination of the standard practices plus the check marks on the exhibit is sufficient evidence to find that is oral testimony for purposes of eleven i want to f six that's disqualifying as lack of good moral character and so what you're saying is this is circumstantial evidence to prove there was an actual oral testimony about these things in the jury could conclude from that there was exactly but you know one thing in mr bell i's defense risk client's defense i mean this isn't the direction any of the parties with the judge or the jury were looking when this case was tried and you know why should we have a retrial you know have everybody focused on this point well i disagree to excel in closing argument you are relying on this oral testimony in this case was about good moral character this case was about the lotto saying i demented you refer to this stuff in the oral testimony requirement we referred we did not necessarily refer to the oral testimony required as you didn't think you had to do that that's correct that's i mean that's my that's my question people were not looking in that direction when this case was tried for understandable reasons given the evolution of the law so far as the jury instructions mother party requested a substantive instruction as to the good moral character neither party asked the court to instruct the jury as to whether what he did or i did not surprised at all but they did and i think the problem is that you did and that's in my from hearing you correctly that's the alternative grounder way to cure any harmfulness based on what else was done in this case and yet maybe i'm understanding you correctly that you just said the jury was not asked to look at this question the jury was asked to consider the lies and what were they not in terms of goods not in terms of good moral character though the closing argument did refer to the fact that mr ahern lacked good moral character out of i got it but you just said neither person asked for a jury instruction about whether there was a good moral character problem that doesn't mean anything when it comes to mr bell  his there's no reason he would do that it's just another reason his client could lose but if you didn't do it for maybe i'm missing something but why does that make it harder to affirm well at the very least it would be harmless in light of the overwhelming evidence that that in the what the jury must necessarily have found and that goes back to the procurement struction actually given here and that is that the government was held to prove that it's a fair inference the defendant was actually an eligible for naturalization by that marriage were in and of themselves disqualified is that something that you have to specifically prove no your honor and that it's true that an applicant can have a prior marriage can have children over the prior marriage and still be eligible it's the fact that he lied about that marriage in prior children in earlier immigration phases and this is from the concluding paragraphs of the mason jack decision where justice kagan makes clear that fact that prior dishonesty could qualify as false testimony precluding good moral character that's enough for the he affirmatively made the statement or whether he omitted it in the face of a question that properly elicited that that had this information come to light during the naturalization phase the testimony shows that there would have been red flags both the immigration attorney and our agents testified that they would have looked closer that they would have investigated i'd like to correct a manager but i'm asking is that the theory is that the harm is that the harmlessness theory that under massive jacket you constructed precisely the way they talked about it what would have happened had these lies you know it's been disclosed is it predictably would have led to a finding that this was not a real marriage is that the idea that's one of two it would have predictably led to a finding that there was not a real marriage we're going to predict will lead to the finding that there was oral testimony sufficient to establish six and preclude him from demonstrating good moral character and to correct the record as to the bona fide nature of the marriage the counsel for the government below did not suggest or it did not say concede that this was a legitimate marriage in opening statement the full quote was whether the marriage was legitimate possibly i suppose mean the government didn't have to prove that and that's still the case after  under the first theory the testimony shows had this these misrepresentations been brought to light certainly there would have been the government didn't have any evidence it was a sham marriage right other than the unique circumstances the timing of everything because she thought provided an affidavit and i thought the government said they hadn't found any reason to discount that it's true she provided the wife proviron affidavit however both parties one party can enter a marriage legitimately and another party can enter in order to evade immigration laws and still i understand that but there's no evidence of that right now apart from the circumstantial evidence and all the time in the fact  brought his ex wife and their kids over shortly after receiving naturalization apart from that there is no further it wasn't further developed your point is had he disclosed it all would have given reason to investigate absolute so do you agree spy predictable predictably disclosures in which case but let's just forget that let's say you're wrong about that he wants a sufficiency argument and he wants that because if he wins there's no retrial right double jeopardy and all that so but is that the right way to look at it do we gauge it through this instructions given or do we gauge it through what we perceive as the law so the reason i started with the difference in tests is the massage you opinion from the supreme court says that when jury is instructed about the running of additional of you just at the four elements and make sure they were proven yes you are and so it would be odd here to take instructions that may not be one hundred percent accurate and were of use efficiency when we  theory so it's you know it's i know you said you think they were asked to do more than they needed to do i'm am not sure i agree or not i don't know it's hard for me to figure that out but what i do know is madison jack identifies falso these are problems  themselves disqualifying and predictably would have what would which basket you think if it's in both baskets or one basket preferably it does fit in both and i the first is through the good moral character lands and that there is sufficient evidence to show that the alliance for in order to obtain a green card qualifier is false testimony for purposes of an immigration benefit that falls under eight u s c eleven zero one absent creates a statutory bar we look at the good moral character since an instruction wasn't given using the neater harmlessness standard what standard would we use since the jury was instructed that in or part of this was the elements of naturalization which include good moral character and he was also instructed that the government had to prove he was actually occurred there was a fair inference he was actually an eligible and so one path for ineligibility is the lack of good moral character said there was an earlier said there was in the instruction about good moral character maybe i'm not understanding what you meant there though the courting into the weeds the the instruction was there are these elements for naturalization quoting some of the elements of fourteen proves it's confirmation it wasn't your theory because if it were your theory you would have asked for instruction about it being oral because you would have known that that was required it's required that it's required that  to get into the weeds there was testimony from which the agent said good moral character means this this is how i apply good moral character the court instructor that good moral character is an element the defense i'm sorry you how critical is your theory to the determination that we've got to make because we've talked about your theory the government's theory pardon me i can put in whether or not this was what that was it or how critical is that i'm not quite sure what you mean by well i mean judge so i just got to ask you about whether whether it was or was not your theory on a particular point and i'm just asking with respect to whether or not you had an articulated theory of the you said some things in there some instructions that went to control character but that wasn't the focus of the case and that's that's what we're struggling with in terms of harmlessness i would disagree again that the focus of the case the the government was focused on prov that mr haroon was ineligible for a lack of good moral character and that these lives had they been disclosures the agents said they would have denied his application now there wasn't the defense did object and argued to the district court judge that the oral verses written but didn't see a clarifying instruction from what the agents testified to the agents explain what they would have done in this circumstance i interrupted you earlier you want to get to one thing but generally the same line of reasoning there and then i ask you about the oral testimony because they are government's position is that the checkmark plus the circuit testimony of what they ordinarily do is circumstantial evidence that there was oral testimony why isn't that question because it's not even sufficient in him agree cases page eighteen of our brief we cite the board of immigration the pull while oil way we play our standard which is why isn't that circumstantial evidence that from which a jury could conclude beyond the evidence in the light most favorable to the government there was oral testimony because the witness conceded that not every adjudicator does his job the same way and it also point to a question i asked the case agent so we do not know whether the adjudicator asked mr room any questions regarding prior marriages and children correct answer i believe that's correct if there wasn't  questions i mean this is this is the government's witness so you know our our position is that there because of the double jeopardy protections of the constitution there's no i mean this is not supposed to be an exercise that the government now sees what maybe it didn't pursue aggressively and let's give them another chance if our position is that the testimony of the government's witnesses a stabbed that disclosure of truthful information would not have predictably lead to disqualifying facts there's only so many disqualifying facts such as a prior felony conviction that can disqualify somebody from citizenship they just fail to show it and i don't think they should be entitled to a do over ok thanks to both of you for your helpful arguments and grace we appreciate it case will be submitted in the