our third case for this morning is the united states against mcclellan in your first spend two point eight million dollars and buy a restaurant in the northern district of indiana which they did they bought the restaurant from a family of respect to the daycare center in illinois and also for harboring undocumented workers in that house actually three things judge and it's not that it's the it's money wandering earlier in our cars delo decision he's there is evidence in the record that could be believed that he knows he's drunk documented workers they're living in this house behind a restaurant he's not charging them any money there is some evidence suggesting they're paid very low wages they're not included in the indiana forms why isn't this all evidence if that would show harboring the under the example the court decided to go still only in the opinion states there was none was harboring him appropriately propre sense because the illegal status of the alien inseparable from the decision to provide housing it is a decision to provide a refuge for an illegal alien because he's an illegal alien what distinguishes this case and that is first of all he buys into an existing business which includes existing employees it is not until some months later he has purchased the house the evidence from the government within that house were a were people that were illegally in the country they were people that were illegally in the country there were people there were illegally in the country and working at the restaurant you want the same with legally but there were also people both illegally and legally in the country that were working at other places owned by the per the entity the that he had purchased this restaurant from and i believe that's the distinction with a difference in this case unlike the unlike the  the hypothetical if you will of the chinese restaurant that's assuming the person after eating the restaurant providing that housing with now which of the illegality of the presence of the  and that's all in one grouping redditch you know i'm looking at instruction number eighteen which is at the end of your brief and that's where the district court defines the term harbor for the jury  harbor an alien means to provide a known alien with a secure haven a refuge or a place to stay where it's unlikely that the authorities are beginning to will be seeking him and we have the best t includes no alien right but they get it remaining in the united states in violation of the law so not unknown aliens l of this i don't think so and i think the facts here are i think the facts here are in contrast not only to costello but there in contrast to the case that's fairly significantly aliens begins them in massage parlors and nice living accommodations with no work wireman of engaging in sexual activity and then that generates by his design it degenerates into seizing any documentation they may have in restricting where they're living putting him up in the court they were found this was you know because this was in terrible role to his overall plan of operation that the evidence there was sufficient that's not this case argument we're making with regard to instruction number seventeen and the failure of they have instruction to addicts do well to add all of describe to the jury and provide for the jury the requirement of the requisite mens rea us and we think certainly in combination that what mr mcclelland suffered as a result was a conviction on the harboring instruction number seventeen but i really think that the facts in this case are what distinguish the conviction from either of the of the most important precedents this court has come down with and when i when you combine his taking over when you combine the mix of individuals not only in terms of status in the country but in terms of where they are employed will we start  the instruction for a second there is no uniform rule at the moment in the courts of appeals that says you have to have this kind of specific intent instructions and what worries me is that review when you look at the instructions it's a whole don't you come up with something awfully close to what you're arguing for i didn't well combining the definition of harboring with instruction number seventeen by seventeen you're very close to the kind of instruction that you think should be given maybe that's why you didn't object no  i don't think so but i wish i had a better memory of why i didn't object with the when we look at what the known rep answers to unknown aliens actually doesn't it doesn't even say it legally so they know when you get into seventeen and seventeen grid three says the person's name in the indictment remained in the united states violation of the law correct larry has to find the truth told it has to find these people are in violation yes your honor but instruction number seventeen which is telling the jury here are the elements you must find beyond a reasonable doubt is silent as to the now which or intent required of the defendant and so even though instruction maybe we read instruction there's a hole and even though eighteen followed immediately on the heels of seventeen we can town if it does not cure the defect inherent in  this because if you want to avoid detection you don't want to lose the employees because of the impact it's going to have on your business and if i mean i like to keep the balance of my time for settling it's fine thank to let me while you're shuffling around trouble among other things in this case by the fact that so many of these undocumented employees were paid half cash half check it doesn't seem at all like the behavior of somebody who is trying to harm her to be writing checks to them and the fact that they were getting five dollars per hour wage although lower than the regular minimum wage might not even be lower in the restaurant business or to him wages or other kinds of things clear to me these facts add up your honor it's true that some of the employees were paid all in cash according to the record somewhere paid according half cash and half check and some are paid all in check we do know from the ovens that was presented at trial that many of the illegal alien employees did have false social security numbers and we know from the testimony of prosody of busted an undercover recordings that mr busted a maid that fact known to mr mcclellan and mr mcclellan in fact even told mr busted to tell those illegal aliens to continue using those fake social security numbers so if the event ever arose in the future he would be able to claim that he did not know they were illegal so it is the evidence time i see that the use of the false social security numbers or something else to the initial mentioned in paragraph two of the indictment one or more early ins namely and then there are a bunch of initials your honor while there wasn't that specific link the jury could have found that mr mcclelland was in violation of the harbor a statue and knew those men were illegal and we know that from as i mentioned before the recorded conversations between by state and mcclellan he being mr mcclellan stated repeatedly that he knew the men in the back or the mexicans working in the back were illegal and was ok with that and continue to employ them he was even told at one point that mr busty to himself was illegal and mr mccollum said i didn't know that about you but i'm ok with that mr mccullough at one point told us today he did not want the guys in the back to punch in anymore on the electronic timekeeping system because that would keep a paper record instead they reverted to an old fashioned system of time cards that could be easily destroyed and then we have a conversation about the fake social security numbers and mr mcclellan asking them to continue that practice so he could feign ignorance and then at the same time install some new computer system in the restaurant that was keeping various records yes there was evidence that a computer system called the aloha system was installed possibly by mcclellan and basically the evidence was that mr mcclellan directed busted and others who were using the computer system that any time they took cash out of the drawer they were to enter that in the aloha system under the heading of mike's training mode mike being michael mcclellan and although the mr mcclellan attempts to that i couldn't have you know committed the x that i'm accused of basically siphoning cash from the restaurant to use for payroll because i installed this system really is sort of a relevant a red herring because we know from the ovens which was fairly clear that piracy about sita was directed specifically by mcclellan to set aside cash receipts on a daily basis to use for payroll in fact mcclellan wrote down on a sheet of paper how much money he wanted by studio to set aside on each particular day of the week so he indeed mr mcclellan in addition to the things i just mentioned also directed by studer to shred those cash receipts once he had given them to once he had set them aside and we know obviously that he did not do that he instead turned them over to law enforcement and  testimony was corroborated because there was also video recordings of a studio painting the employees in the back of the house with the cash that was indeed set aside by him and other managers who worked at the restaurant and we know that mr mcclelland took steps to conceal what he was doing because as i mentioned before he changed the entire system of timekeeping so as to better enable himself to commit this fraud which he clearly had the intent to do and the jury found as such now can you give me a good defense this is a question left over from costello but it comes up here is well a good way of distinguishing between concealing undocumented workers and harboring them well we do know from c that this court obviously in custody low which side of the restaurant owner example which is this court said and i would fully agree is very similar to the facts of mcclellan's case this court in that court in that case said the owner being the restaurant owner does not houses illegal employees in order to conceal them although that is one effect he is reducing their interactions with citizens who might report them to the authorities it is the perfect case of harboring so i think that quote makes clear that one can harbor but not necessarily conceal although the reverse may not be true just as mcclellan did in this case he harbored them because he was reducing their interactions with people in the public and the records showed that the house on st john road was across the parking lot from the restaurant extremely close proximity and so that in effect you know the workers were going across the parking lot back and forth to go to and from work and effectively were not meeting other citizens out and about the public who might be able to learn their legal status and therefore report them to law enforcement five individuals just that the jury could have found based on b evidence as a whole in it consideration and the counts two through four it also has some relevance in terms of the circumstantial impact of my client's knowledge of the legal status in the whole harboring issue why would he install a system regardless of telling him to keep some in cash aside to make payments the system recorded all of the money coming in in complete contrast to the practice he inherited the split between going into the register and staying out in can was clearly by the previous owners a game plan of the skimming for want of a better term the aloha system installed by my client eliminated that because the record was kept on the system of it coming regardless of whether any was set aside and can't and the aloha system was seized by the government in you can count in the record this was one of the slowest paced investigations began before my client had anything to do with this place than a year later  unfortunately in the intervening time he had purchased it i suspected back up then they came for a search a long time before they ever indicted they had seized the system by them in the government was in possession of the system if it at  that point so now you think even with this system in place i understand the record to show that the forms that were sent to the indiana department of workforce development didn't include the undocumented they didn't put they didn't include the amount of the total of the amounts paid because at least in part in terms of the assimilating and collecting the data that was in the possession of the government in the aloha system now i'm not suggesting that in iron sights certainly other efforts could've been made to train recreate that attitude to have some accurate picture of the accuracy being reported  illegal status in the end i know unplug the government for saying i think there was some significant lack there of and for example i do recall in the record  in the argument against our motion for acquittal at the end of the government's case of the government suggesting well he knew some of them didn't speak english and again i don't think he was being derogatory but that's not the level we can go to in terms of