there were there was motion for twenty nine motion for judgment of acquittal made on these grounds it was going on during the during the trial and then after the trial went on ok the agency rules require that application be accepted even is suspected without notifying the applicant to ensure the possibility of prosecutions and even if a passport manager believes an application is fraudulent they're supposed to pretend nothing's wrong accept it and turn it over to fraud he got turned up right after the rational is pointed out to him that this is not iraq right so the question is whether the acceptance of an application without following agency policy and procedure makes the employee a party t false statement made in the application now this is a little outside the realm of our normal passports and we don't get many cases like that but let's let's look at a different type of trains action we're all familiar with a simple bunking transaction you send you send your l clerk over to positive check in the bank you want some cash back and i found out a few weeks ago after twenty seven years of doing it that they're not supposed to give me the money unless you're their present present photo id so the supervisor know there's something wrong with the check and let's assume the check is either forged stoli you understand it's early on or than the gravity proper procedures were the passport and it's almost insulting the argument you're making about trying to compare this to banking transaction i'm not i'm not comparing the nature of the importance of a passport i'm going to the threshold question of does a supervisor become a party to a false statement made on a document that the supervisor is not aware of falls is false just by not following procedure beesley cashing a check is not the same as getting a passport but the basic principle is the son so with that in mind let's turn to the two camps here well in each instance they asked for him specifically and in the record i mean he was clear he was clearly violating the policy and procedure he was clearly he helping a friend get a passport no question about that so you can see the false the gravity of the situation is that the representation was the father was present when the father wasn't present it was all women and one of the women signed the father's name to the application so the rules in this situation require both parents to be present or if one parent is not present you have to have a notarized consent from that parent so clearly that was not followed here and mr church will admitted during his interview that he approved the application without following procedure but he said i didn't know it contained a false statement i didn't know that he had a wasn't could be the government's theory is that by approving the application he acknowledged that he documented the identification of the parents which means that both parents were i think that's a pretty big stretch especially when you look at the application and that the false statement alleged in the indictment that dad was present was not made in the amplification the fact that mom s does not constitute a representation that day it is they are there and nobody is side of the case we haven't found the case holding that a violation of office policy in approving an application makes the employee a party to inaccurate driver's license indicated it had been in there was questionable i forget what happened to it but it was caught or something well there was then there was something about it and it calls the you it wasn't about it passport is issued and again in his interview says i didn't follow procedure here but i did know that it was a false statement and there the government's theory is that it was it's a deliberate ignorance theory is that he  remained deliberate deliberately ignorant to the fact that gardner was not law i accept an inadequate identification information and as the prosecutor said during summation not asking the right questions each count was also aiding and abetting it correctly said but still it requires a couple mental state of willful and knowing on his part so no one told him the gardener wasn't law there's no evidence he knew the driver's license number was incorrect a conviction on this count requires that he will fully and knowingly make a false statement and his failure to obtain proper identification does not rise to that culpable by sickly following the following procedure in accepting the application and sending it to fraud which cause no passport to be issued is ultimately what he was required to do so even if these guys had walked in and plopped the papers down and he thought it was no good in the first place he should have done what he did which is to accept it and to send it to fraud without alerting them to what's going on so when he follows the procedure in that regard even if he was kind of goaded into doing it even if he did it you know because he thought well she knows who did it and once he did it how does he violate the law by doing what the procedure requires him to did and you can't lose sight of the fact that the jury acquitted of the conspiracy so they obviously made a distinction between whether he'd entered into an agreement to you know get bad passports versus whether he just didn't follow procedure so again i understand there's a big difference when getting a passport and cashing a check but the ultimate principle ias if the employee whether it's a passport employee supervisor whoever approves a document to come as a favor to a friend cuts corners doesn't follow the rules does that make you a party is it is that a question for the jury to decide based upon his his behavior what he did his experience at the job and looking at how he went about doing this to determine if if he had knowledge of false statement well obviously in the first instance everything is for the jury to decide but ultimately becomes a question of law i think ultimately a question of law let me turn to point three which has to do with the admission of the a sit assistant directors opinion that he didn't believe mr church wills denial that the applications contained a fraud so this is a sort of recross that mr church will admitted he approved the applications and that mr clarke the director believed the church was eventually truthful in his statements that is that he proved the implications is initials wrong pretty noncontroversial a shoot and then on the re re redirect or whatever it was the government elicited over objection clark's opinion that he didn't believe church wells denial there was fraud involved so there's three basic issues we've got to flush through here first was the door open by the cross of course the door is open to the extent the cross examination permits of the cross examination here only established that the wooden cross  the recalls i'm trying to keep some of these resound please keep a man so we know exactly which dog ok the recross established only that mr church will acknowledge the proven applications and that the witness belie that did not open the door to the witnesses opinion ultimate opinion that mr churchwell was guilty and that he was lying this isn't any admissible like a opinion that the witness doesn't believe the defendant or believes that the defendant knew that his conduct was illegal and what i think is telling is that we cited a number of cases they're from other circuits but you take them or you find them and the government made no effort in its brief to acknowledge much less attempt to distinguish any of those cases i think there's a potential well there and that is that the laws against the government on the mis ability of the testimony and finally on the issue of harm is there a reasonable probability that this opinion contributed to the convictions you know i  always take with a grain of salt the government's argument on appeal that something wasn't harmful and i think it's helpful to go back and look at the position the government took at the trial because that's more telling in terms of what the prosecutor really believed and at the trial the prosecutor obviously believed that mr harper opinion was important because she offered it after the trop court had previously sustained a defense objection to it so she came back to the well after being told no gave it a second shot and was successful this time so she obviously thought it was important to get that across and indeed it was the only evidence to counter mr churchill's explanation during the interview that although he did not follow policy and procedure he did not know who the documents were fraudulent and again if you look at the fact the jury acquitted on conspiracy convicted on to the false statement counts clearly the jury was making a distinction there the final thing i want to do that the arduous task of convincing this court that the government's argument outside the record that people kill to obtain passports was playing error and i fall on my sword and concede going in but i know how difficult it is to reverse a case where there's me improperly objected to closing argument much less an objective to closing argument but i want to give you four reasons why this court should make a strong statement in this case that that argument was so far and a bank owns that you need to call him out on it first this was a pretty straightforward for on trial i mean carol to woman's trying to get a passport for her three year old kid to go visit the sick mother is not a terrorism case it's not a highness sort of deal where somebody is in the areas purposing getting a passport for a three year old kid the prosecutor by injecting the specter of murder and terrorism into final argument is trying to get the jury to convict mr churchwell to protect america from terrorists to obtain passports do for all i mean you can gild this silly however you want to do it that's what she was trying to do by making that argument this was not some slip of the tongue or turn of the frying this was something to convince the jury a hey you may not think it's a big deal that you guys trying to get a passport as a favor to a friend for a kid or whatever but this is the real harm here and that is that these are being passed down to terrorists they're going to blow the country up people kill for this sort of thing no evidence of that would have been proper evolver part of the argument secondly i believe it demeans the integrity of the system for the government to argue that this was the proper use of i personally and extravagant exaggeration which is the position they asked this court to accept this is a permissible argument they tell you it doesn't matter of them wasn't any evidence of it this is intended to be taken seriously and at the end of the dummy she wasn't hitting because if you look at the document she filed it simonson in requesting an upward variance which she got big time in that document she asserts that one of the reasons the judge should go up on the sentence was it mr church schools conduct created a threat to national security so the proof is in the pudding what she argued to the jury she may not because she also argued to t judge and got a higher since the third reason is the case against mr churchill is not strong as the government would have you believe if it was that strong why would the jury acquitted on two four counts this was no slam dunk this was a horse race to the finish line and more importantly if the prosecutor at the time of the argument believe the case was that strong why would she resort to as they call an extravagant exaggeration and invoke the specter of terrorism and murder to get a jury to convict if she thought the jury would convict based on the law on the evidence you don't make that argument and the fourth and final reason is we go back to judge gilbert one nine hundred seventy nine back in the day when he wrote in garza and reversed a conviction for planning or right prosecutor went out some of the record during closing argument and vamps for the credibility of the prosecution witnesses and the strength of the case against the defendant no objection he called him out there wrote a really strong opinion on the duties of the usa during closing argument that was thirty five years ago and apparently the message has firmed that the father appeared before him signed the application and and made the oath before him he obviously didn't do that there was no mail there he merely inventors testified he was not there everyone who was there testified that there were only women before him that right there was sufficient to support count two in the jury's verdict going to count four that would be exhibit four dash one is the application there verite is the identification issue now churchill tries to classify this as he followed the proper procedure he needs to accept it he needs to sign his name and move it along and send it to fraud yes the policy is that you accept what comes to the window you take it and if you think there's something fraudulent about it you send it to fraud that is the procedure and that is what he was required to do what he is not required to do is put false statements on the application even assuming that a twenty piece of paper with a number on it is sufficient to establish id he wrote that down as the state id number again this is exhibit four point one and then he filled in information with no basis for it whatsoever he felt that the date of birth as two thousand and twelve the place of issue texas name same there is a name on this paper there's no date of birth there's no place of issue and then he wrote down the id number and houston that it was a state id number all of these statements are false all of these statements were sufficient to support the count they count for conviction now moving along to mr clarke statement i think there's a bit of clarification as to how this all happened and going back to judge burke still to question as to why there is recross and green direct mr clarke started about his how he was pressed president and mr church was interviewed with the agents and then he also had a couple of subsequent interviews with the agents after that during his testimony it comes out that after his interview after he said and on the interview with church well he made me e mail and sent it to his superiors no one knew about this the government didn't know about those funds comes i didn't know about this he hadn't mentioned it at any of the interviews to anyone so this came out in this came out in cross examination it was a surprise no one knew it was there they went to redirect and then they stopped for the day at the end of the day the judge said can you find this we need this and it would be important to have so they all went home for the day and then they got it in the morning so it was just presented to the government and to defense counsel at that point which is why i believe the judge allowed the recross the redirect because this was information that was just presented to the parties and so it was important that they question him on this so that's a little bit of context as to how that came out  we as they go through it the one of the statements in the interview by clarke was it was whether or not he thought the church was eventually telling the truth and he said yes in defense counsel brought this  times questioned him repeatedly on this movie it came out on first it came out on cross them out redirect the prosecutor did the prosecutor did bring this up but he did ask he did  clarke if his perception had changed after the interview the answer should have been a yes or no it wasn't did you believe that there was fraud here it didn't go to the ultimate issue it should have been i guess or no answer clarke responded no doubt in my mind that he had been involved in fraud testimony was the the agent what happened what was said what he did he went to the restroom he came back to her nervous fever relaxed various questions like that then on cross they went through the whole thing again and the defense counsel brought out that clerk's first awareness of the accusations against churchwell in the involvement of him in fraud was at that interview before that he had no idea this was not something on his radar he wasn't aware of this so then on redirect the prosecutor said well after this interview did your impression change it should have been a yes or no answer it wasn't it was objected to and it was sustained so in recross this is now after the end the email summary of that interview has been presented to both us defense counsel gets into it a little bit more and ask clarke said one of the statements in the e mail was that churchill was quote eventually truthful in his statement when clarke agreed to that and then he went says yes and so then he leads him through and then he's asked when mr churchill was there said that he did not believe that there was fraud involved i think the fraud was involved in this application do you believe and means that at the end i didn't believe him and this is after a back and forth about what did you believe what was your impression and initially before this interview do you have any idea that he was involved in this know and how this witness goes through and how his opinions change based on what he sees before him based on what church well says to what he saw what he observed and i think it's important to note that clark was very clear that his opinions and his observations were based on that interview he hadn't seen all of these applications up those he wasn't aware of the evidence presented a trial he was a need an opinion based on his observations of an interview he was asked to be there by from church deliberate ignorance you know it's an innocent set of circumstances may be diminished greatly violation but not criminal the government takes to be good and ignore what do you know who are should know so well i isn't a case where he just ignored things they didn't question the idea that was presented before him he was given a piece of a torn piece of paper with a number written on it and chose for and accepted that as proper identification that's not a driver's that's not an id card and then he made up information to put on a passport putting deliberate ignorance aside which i think was probably given in the jury could have relied on that they didn't have to it was very clear that he wrote false statements in the application there's no basis for these statements whatsoever he made them up out of  air touching briefly on the closing argument yes the prosecutor did say people kill over that document take it in isolation and it does sound rather violent however in context she was talking about the importance of the united states passport right before it she says this is you know a little better way to have made a point yes it was not artfully phrase however i don't believe it was air it was hyperbole and in context it really does highlight her point right before that she says she talks about the united states passport one of the most valuable documents in the world the united states passport people kill over that document a passport that allows you to open bank accounts abroad travel within countries one of the most valuable documents in the world in context was clearly talking about the importance of the united states passport it was not meant to illicit any idea of terrorism it was not meant to illicit any idea of violence as as my brother notes this was a month doing passport fraud case there is no issue of violence there is no issue of terrorism and yes a sentencing she did ask for a national security departure and it was wanted to ask for that it had nothing to do directly with violence and terrorism but the fact that people who were not supposed to be getting united states passport were getting united states passports their fraudulent means so this here in context was a proper use  the importance the united states passport and that's really what this was about this was in the passport agency the he was accepting some standard documentation has been false statements on applicants to issue passports to people who did not qualify for them even finds that this was an improper statement there is no plane error here the prejudicial effect if any was minimal it was short comment in a twenty minute rebuttal the evidence against the defendant was strong and not only that but the district court instructed the jury five times that the statements of the parties and argument were just that argument and that they were to decide the evidence for themselves and that's there any other questions i with regard to count four i think it's important to make the point that there's an assumption here in the assumption is that the information mr church will wrote on the form was false information the record doesn't show that when  law testified i don't recall him being asked about you know did your driver's license expire on this date or that date or whatever the that's the specific issues were in other words the government assumes that because mr churchill wrote it down he didn't otherwise know it or him been told it by somebody that he just pulled it out of the air maybe he did i don't know the record doesn't show it because the witness wasn't asked in the words i don't think they routed through mr law that information was false with regard to the very briefly the the opinion testimony if you think about what could be more harmful to a person on trial th supervisor come in and say i listened to his interview with the federal agents i worked with this guy for years i'm now with him there was no doubt in my mind after listening to the interview he was involved in fraud i mean really if one of clerks on trial for something and you came in and testified for the government and said i know this law clerk is work for me for x number of years and i listen to it in the under is tell you he i didn't believe his denial but there was fraud involved is cooked if once you come in there they used the supervisor to basically say this guy's a liar he's not credible and in my opinion he did it and that's not the way we try people in this country we don't try based on opinion we try and based on facts finally with regard to the closing argument just a couple of comments because you know what was mr reed the lawyer for the church while at trial yesterday i believe this is in your record the eggs or  mr reed says do you recall enough at the conclusion of your email that you said you wrote quote my impression close quote this is clarke and then the question and one of your impressions was that you believed that mile was only truthful in his statements and answer yes eventually the question and eventually i said that did not yes you wanted to say it again aha this seems to be running up proper read redirect examination on the point will i think in context he's referring to his statements acknowledging that he approved the applications i think that's what they have been talking about  on the closing argument every trial the court instructs the jury the argument is not evidence you base your verdict on the evidence if that sure the harm of an improper argument you could never be reverse a case based on improper argument this