background investigation he was he was hired by the agency he reported to the agency in january two thousand and one and immediately went to take the federal form of training with the federal law enforcement training doing his job and the medical reports have been submitted so he was sent home by the agency to recover he lived around dallas texas he went to dallas he went home and at the time that he had not left or he had not resigned from american airlines he called in and told them i'm back in dallas but he did not go back to work physically he could not go back to work they wanted him to go back to work so what he basically did was pick up the phone call the other union members and they went to work for him the american airlines witness mr james casey called it personally of absence pale away w after he they rehired him yes ma'am so even if what you're saying were true in other words that he didn't have to stop location to disclose the outside employment in the first instance because the economy knew about it yet it  why i don't understand why you why he at least didn't think that when he was rehired by american airlines while he was at the time already in employment of v h s that he wouldn't have had to disclose at that time his outside employee because he never requirements that you have to disclose outside employment but he just disclosed wet winter under his eye once everyone he told him from the beginning i'm working on american airlines when they report when their agents report to the federal enforcement training center they're basically told him if you don't pass the federal law enforcement if you don't pass a form of training you don't get hired but but if you don't think in here and there are some assumption that someone is going to just continue their other employment if they get this job continue on continue having that position he didn't receive paid what he did was receive the position he was able to freeze the position for him to lead to for safe pay from someone receive pay from american airlines right now we're talking about the period july ninth two thousand transitioned services did not exist after march first two thousand want to that's ok but even assuming that's true why does that mitigate the false vocation well because it is true of them when if it is true it is not an official document of the agency doesn't customs and border patrol employee which which was under the umbrella of the united states treasury and then you had inter on the ins the immigration it was asian service which was under the umbrella of the united states justice department when they merged they both became one of the umbrella of the department of homeland security so you had the technical defense which you acknowledge is what that he could he saw because they charged him with falsification of an official document even though you concede he falsified a document for never the case law was that basically of the agency charges on such a charge it's usually because of a document that the agency has been presented and they are the ones who suffer the harm or they're the ones who are being misled in this particular so we don't have an official document system or even i admitted during the investigation that he initiated documents and he never did not against very technical he did not work for i m s he worked for customs and border protect document the agency is well aware of that well the purported to be an official document correct time it purported to be an official document it was an accident it didn't accidentally have the letterhead bureau of immigration it was in tech your client intentionally wanted to convey the message that this was coming from a government agency right now would not to the agency yes figure if you is under the law an intent to just see you using a government document or perform falsifying a document so that it purports to be a government document with intent to deceive is not justifiable justifiable reason for removal if you're intending to deceive a third party and not the agency for whom work well as it is it would charge them here on the third if as long as that document submitted two pages you say no i think the question would be who brings you into court well you were terminated she went in this case if your lawyer employer is saying no immigration naturalization service it did not exist there was no customs and border patrol it is now customs and border protection it is not on i think it's ice immigration for this in the service or something but the accepted that that was what was going on your honor mr various asserted that it is you knew that he was employed by american airlines but simply declaring on the application of the job application that you were employed by a company isn't construct appendix the fact that it's reduced in force and then subsequently datapoint again for american airlines is another indication that you not only continue to be employed but was for some period not employed and then became input again so even if accepted you are getting the government's argument that stationary was still used as an official document except let's assume hypothetically that that were not the case and would there be a problem with the charge of fals text of the document also is indicating the purpose that i sent in response to a question about his working for the border patrol was specifically addressing stating that he was on duty status that he was not on  another i believe that he doesn't specifically state border patrol attacks it does indicate that he was on leave from service and so even if you did we didn't have the document that was had letter that was still in use and even that employees are creating false documents that are given them to public or private parties that create a problem for the agency in the sense that people who receive official documents expect to be able to rely on those that appear that case in this case the agency or extensively from the agency to a private court cases on this as we've described in our in our brief don't address the situation and i was unable to find any cases in either the embassy or in this court that specifically addressed someone creating a false they're not cases which deal with conduct that's outside the employment context which it before then forms the basis for charges of misconduct or failure to note the efficiency of service yes for me that's outside so it's some employee of the postal service and they do something outside of the employment context and then the agency that's improper clearly improper but recently a third party that has nothing to do with the in the postal service per se and that they can be charged with or discharged because  clearly may have an effect upon their their duties in this case that here the government but the and but here the problem is the agency didn't say that right i mean they didn't say we can no longer trust him because of his conduct etc that's not exactly true either in the in the just in the form that was addressing those factors they were moving official in fact indicated on their integrity a number of times and i think that that's very fairly interpreted that's on the farm that one of his arguments is that the do his factors were two that that form was created prior to the actual concert with the actual reason they didn't check and say these are the factors that i considered they checked in the on the form that they actually list the number of made a point to mention the integrity of each enforcement officer that works for the federal government it's also the integrity of the agency that has to be scrutinized sometimes and in this particular case there isn't anything on the presented we're going to find that there really evidence there's all written evidence contradicts what mr casey testified to the judge gave a great deal of credibility to to mr casey required are we not to defer to those credibility determinations a lot of i'm sorry we require to defer to show some deference to credibility determinations that are made by the court below we would expect them to be supported by their own written evidence and this is not the case the real document that's in the record does not have this identification might that document was never on the nikkei i tried to do it i tried to have it suppressed and i was overruled so we're asking the court to analyze the third charge in reference to the evidence that the written evidence has before and it is not supported so we believe that all three charges are not supported it's not i'm not saying that you don't know that