good morning have this is tom hearts on behalf of appellant craig johnson made it please the court mr he johnson was prosecuted for three counts of false statements the rd count in which he plans already knew or certainly suspected that the application contained false transcripts and faked educational attainment now there's an argument here both about the jury instruction and about the rule twenty nine motions that most strongly applied accounts went into and count three i don't believe that there could be materiality that there could be even be  an effect or potential effect on an agency's decision when the agency knows in advance that there is that misrepresentation in the resume their agency knowing this and going ahead and doing something about it it takes away any impact that that possible educational falsity could have had in the resume that that being said i believe the rule twenty nine  three is perhaps extraordinarily strong because it's an impossibility that they could decide to hire someone based on the falshood that they are already knew about but isn't the law pretty clear that an actual impact is not require the law is very clear that natural impact is not required it has to have potential impact a tendency to impact or effect an agency decision but the law is also very clear your honor that the impact or  by that time the false statement having been discovered the only decisions an agency were would be making would be when to fire him when and whether to prosecute him at that point there is there is no longer a false that the transcripts are false when you look at materiality materiality in the overwhelming authority of the supreme court of the circuits is a statement that is directed at volunteer position and everyone who applied for got it the education wasn't necessary at all for this position it mattered had it wasn't necessary for any of the positions so there is no way that this could have impacted the decision whether or not to give johnson this internship with hera because it wasn't a necessary component what the government argued finally in its closing argument after it convinced the trial court to expand the model instruction to include the time from service delhi that it's not necessary that it make an effect just that a test of potential to make an effect and i par not quoting exactly in the closing arguments where the once what the government said again and again because i called it a red light are gong that once they discovered that a lie they would have to fire johnson that's an extreme music application here it's not that they would have hired him because they believed he had a master's degree and a graduate degree that he didn't have it would get to this point where oh if we discovered it we were to have to fire him and that's not the sort of agency decision that eighteen u s c one thousand and one dollars is directed at it's claiming said what it said about materiality and the supreme court in the circuit courts have interpreted that and i don't believe the legislature can make any more specificity in that particular penal statute i mean again and again it said has to be the decision at which the false would is directed in this case that was hiring and the th circuit model it covered that you know very well and your honor no i don't think it this is a legislative fix i believe what the government didn't this case is once they got the instruction that you could be you know a potential impact and then they argued that the impact was if they discovered it they would have to fire him they called it the ganga the red light is if he lied he could no longer work here that wasn't the false statement that affected the government that affected the agency decision to fire him there was a fact that they caught him in a lie the government even argued that although not every prostate is material clear example they said if you put down my favorite color is blue when his favorite color is black that wouldn't be actionable but yet by the government's very logic if they discovered i lie on a job application even the near bat at some length in my brief discussion between the court the government and johnson about you know what materiality meant but the court decided that whatever decision in the and looking at the th of the test it does not appear to me this is the trial court that that restricts the decision of the activities just did that to the decision whether or not to hire the defendant in this case or not it does appear  to me like that th crime to the test is sufficiently broad so that the next witness should be able to testify as to what would natural what could naturally have a career is or influenced the agency's decisions or activities so i'm going to i'm going to allow on a limited basis government attorney i'm going to allow you to get into that with your next witness that is an expansion beyond the accepted definition of materiality which even though i was arguing to the jury that these these false statements these pos resumes aren't material the government given that latitude was able to say that yes based on this instruction the firing subsequent firing of him is the that don the red light in the room here the major impact of these false statements and also that he couldn't testify if you're called upon to testify according to plans that would have been one of his duties and someone who had lied on an application and then he didn't say what why not lying about what degrees he had but just lying on an application he wouldn't be able to testify so it was the fact that th rather than the current tent of the lie that the government was relying on and what the trial court out aloud as being proof of the materiality and that is not the way the supreme court  court in any of the cases got dean interprets materiality it has to be the decision at which the all statement is directed not or some subsequent in collateral consequences years down wife and congress as you remember it was the date of birth of the applicant for immigration benefit and that was found by the supreme court not to be material i have used up my time any questions of course i'm happy to entertain but  whether or not the government had prove materiality in regard to count three the technical force and up your position i believe the defense counsel has confused some of the testimony in that case in this particular matter there and this is a page forty one on the march th transcript he is certainly could have been hired as a physician and in fact these particular false statements that he made regarding this higher education that he did not possess really were material because well it was pushed his bread to make to the top of the stack because he had with those degrees it would have demonstrated characteristics like hard work building and learn new things ability to grasp complex issues abilities to finish projects those things would have made him a any rational juror could've found those elements beyond a reasonable doubt in count two misspelled testified as well this was a conversion from the hero thing the hero job they did have to make a decision qualified him for a g s not having not had those degrees on there an h r specialist in this case it was her but it could've been anybody else would have had to investigate his background and characteristics to determine whether or not he qualified for a g s night and that right there is sufficient to show materiality it's not whether it actually affects the decision it's whether the intrinsic takes characteristics of the false statement are capable of causing an influence or not the actual whether it actually does so or not in not the magnitude of the decision so since the agency forgo doing an investigation into  testified at trial that he didn't believe that he'd done anything wrong because the degrees weren't required as we've been told so if it was required somehow that did curial the feel not on the warnings from you as they job it not only says you can't do any false statement in that result prosecution but it specifically rest references false statements on education experience and that right there demonstrates to any reasonable person that the government certainly believes that that statement was material to the job and of course truthfully stating what your background is was is material for any of these three physicians these jobs all required top secret cleara the defendant was analyzing confidential and sensitive information and there was a possibility of having to testify by not being truthful in his application regarding his education the defendant put himself in a position  being qualified to testify or being able to do his job being subject to impeachment as to the descendants argument regarding the jury instruction the defendant st argues th erred in giving the government's request a jury instruction however this should be reviewed under plain error because the defendant raises a different argument now than what you raised on appeal but in this particular case under any  type of of error there can be no error because the the false statement that are the the language the government requested that the false statement need not have actually influenced the agency and the agency may not rely on the information fact particular matter that is a legally correct statement as support in service ali it's not whether it actually influences whether or not it has the capability of doing so and in this particular case this jury instruction was legally correct in addition it does not open the door to any decision in the future ad infinitum any more than the defendants requested language restricted it to just the hiring decisions however the government did not argue to the jury that the fact that he could have been fired down the road was relevant materiality in fact what the government argued when we're talking about the red arrow the gong statement the defense raised was if the agency had known  testify the government would not have been able to hire him if they know he had all statements on there and the fact the matter is given the fact the defendant knew that degrees were not necessary for the positions it takes the question then why did he put the false statements on there because he knew that would make him a more attractive candidate so therefore the defendant certainly thought that getting put in the state and so immaterial that these would actually influence the agency and looking at him  possible what is the intrinsic capabilities of the government with the myth that the jury instructions that were given by the court as a whole were not misleading and they were more than adequate to guide the jury and the government's argument did not expand this decision in any matter past the initial hiring decision as such we would ask you to affirm the conviction if the court has been questioned or doesn't have the questions i will submit at this time governments wrong when it talks about plane error review cases they quote are really not on point here and in fact one few cine and they manage to quote have version that's been overturned by in bach review and even now the government is saying it's not the claim that he had more education that then he did a claim that he lied that's material and that is extreme stick to the actual state and it's out there also t of a statement is not what's material it's what is the statement and this is it this is why this conviction needs to be reversed and it needs to be sent back to their district of arizona with instructions on you know accurately defining materiality thank