district court level and i would like to begin with the issuance of the deliberate avoidance or so called ostrich instruction and over time  we heard evidence from witnesses who did multiple legitimate shipments of cars with mr tan ship and it was his practice in all instances not just with these stolen vehicles it was his practice in all in to have the people load the containers themselves after hours no one said this was a difference the people who talked about having done multiple legitimate loads of vehicles and other items all said  they did it the same way and this court is made clear that what you're looking for in the deliberate avoidance situation are instances in which a defendant deviates from his normal practice w individuals doing the shipments provided him with details which he would then reflect in written paperwork that he would turn over the person who's picking up the container atlanta express so can i be just process went on because i thought that was an important detail if you think of the normal formality of the international shipments of goods or actually for that matter even messed up shipments he would have to indicate on some sort of the will of lading or receipt or whatever he was using what was inside the container and he would sign it right he did he got that information provided to him by the shippers the people who were doing the shipping all of them testified to having done that the same way in legitimate shipments as with the shipments and  provided the information which he then reflected in the paperwork as it was given to him but he did not go into the container afterwards to confirm whether or not their statements were true there would be a problem if the testimony that it would have been mr chance to see all the containers after they were loaded and of course safety is a prime concern  what the shipping paperwork i think he talked about having filled out the paperwork and emailed it to atlanta express or provided it to them but with respect to the question of whether or not there is a safety issue or there is a duty the problem there is that across the board his practice was to be reckless about that duty and everybody seemed to suggest that it was that's what he always did and if that's what he always did then this is an ostrich situation this court has made clear that it has to be a different staff to be some kind of difference there are no articulable red flags about these shipments making them different from the legitimate ones and ultimately when the argument is made they at he would obviously need to be concerned about safety in so should have done better in terms of looking in there and verifying what we're really getting at is a binary choice that's really saying well he did look in there that's the truth that  what the government's argument has always been this safety thing suggests that mr tandja if he really did look in there he really did know and the problem with that is this court has said when it's a binary choice between actual knowledge and not directly then pretty considerable liability and along the way as you say you know just recklessness because the person who signs that there were plating or what have you who is responsible he's part of what's in there deviate from legitimate versus illegitimate or you could have a reckless or negligent business practice all the time and you don't get the ostrich instruction against you if you're a doctor for example and you never take he didn't want to go in there after they had because they did their own securing they tied the things down themselves and it was his view then some of the witnesses a minute yes when i was responsible for out was tied down i didn't expect him to go in there and do anything do it and so as a result of that i think what you would have is a negligent business practice across the board and that should not be grounds for the ostrich well i mean even if you're right about that need isn't the question before us a little more subtle which is that the  that these things are stolen and takes deliberate actions to avoid learning is that the question isn't it really could a jury find that even though suppose you're right i mean i think you probably are right drink wouldn't have had to find that on this  stolen that's a that's not a truck separate yet that's the that's the statute and just be the answer is the jury could not find that unless there was some kind of evidence suggesting that she there was some way that he didn't actually know but yet he had some reason to believe that about these shipments and there was nothing that's the problem for the government they identified no red flags because there was nothing different not about the shades not now you know all this money that he and by what can i just quickly clarified this appeal this appeal seems to me to be solely on the well i guess you have something to say about structure we've got the three different convictions we've got the cars and they indicated that there was a reason in terms of the crew the shipping and how much how much more money you could make when you were selling them in mongolia for various models there's evidence on that so it's only the shipper that knew they were stolen the person who provided the car would know yeah and that's that's the thing there's no evidence in this record that mr cain she had had any reason to know anything from those people to suggest it was something wrong it would have to be totally postulated hypothetically with no supporting evidence and that's why i believe the ostriches oakley not appropriate in this case to get to the oscars everybody basically because there is no deliberate act everybody for including the district court talks about this there must be an act and i noted that was put it i tell it by the court there is no act here that's why in this instance i think the ostrich is a mistake and that goes definitively to those card charges i want to turn now to  toxins false statement conviction for a minute mr charge them where they asked a question and shown a photograph who is this person by federal agents and the name that he gave was a proper name that everyone agrees that person had used although an alias name that person had more than one name the agents did not ask the follow up question about whether he was related to that person or whether that person went by any other name but doesn't john mainly we used to work farm at a trucking company and asked him to accept the mail then gibson do you have a sister named burma i says yes but she's back in mongolia she's telling me agent that there's a different person than there is a different give and it was as he stated i gave a literally true although i knew misleading answer they didn't ask so i chose not to give more information and this court has said that's ok if they say it's up to the agents to follow up and ask a false then when you put the two of them together it would have to be the whole it's not and you think about it that way you know that as a matter of logic both sides of the end are to have to be true which means that this is a literally true statement we case in which the defendant did not ask follow up question and at the time the court decided to give the instruction decided to be cited the prodi case where this court again held that the defendant did not follow up and ask additional questions that were necessary and that was sufficient for delivery avoidance did you say normal curious i've seen your brief on this issue easy chair lie on evidence supporting the government presented evidence of both actual knowledge and of deliberate avoid studio explain to me where the evidence is that as to the particular shipments where the stolen cars were inside the container or not and you know we all agree he has some that are charged as far as we know are all legitimate shipments but i have seen in the ostrich case that we need some and that was supposed to be contained in the shipment that title which was obligated to be sent to the c b c in los angeles by mr tank shell it was for the hyundai element there was no honda element in the car and the vehicle three and five were the result of provision of automobiles by a person named charles sagan to death well that person had nothing to do with the case that had nothing to do with mr vance at the never met him the government located him after he blamed by the defendants in their opening statement as the culprit or the fall guy this case we found him while the trial was i'm going and we called him in rebuttal and he said that he had nothing to do with the shipments and never met the defendants was not in chicago he was the only person in all the paperwork associated with the case that the government had been unable to locate in this pretrial investigation and two weeks before the trial began we turned over that paperwork which the government database searches for all the lego and who were involved and reflected on the shipping documents and he was going one that we couldn't account for that was obvious and then that was the person that they then focus on as opposed to person cure the three counts i'm sorry on five fifty three yesterday right ok so so he no matter what happens being short really focusing on these five fifty three counts he knows all five of the first count one is a shipment negligent practice well that's just not certan ships business and shipping carse my goal it was an ancillary small side of his business he had run a very large national trucking company employing upwards of fifty people with a different times throughout the united states shipping goods all over the place his cross examination make clear that in that capacity he was primarily concerned about the the the safety and the security of the contents of the containers that  he shipped all over the place moving in trucks including trucks that's what he ran he had a trucking yard and had many employees of truck goods all over the country and in fact a good part of the testimony was that he would wire money to truckers on the road so that they would have enough money for gas and food and things like that well they were still out about and so and there were several different aspects of this trucking company in fact including his testimony that because of safety concerns and financial concerns it was paramount that he maintained the security and safety of the goods that are contained in the containers and that he was responsible for that because he knew he had liability for that and he in this case said concern was safety and security of the contents of his containers in his regular business as opposed to this and in fact in the government's brief there's a question that i asked at the end of the skeeters cross examination because page thirty one in our brief there's a question that says how do you distinguish if you're so careful in your regular business from why you maintain such security in this case but in those cases but in this case you're claiming that you didn't look and the reason that you're claiming that you didn't look is because you're saying that you wanted to avoid about liability what makes you think that you could avoid liability in these cases as distinguished from your other business and his answer was well i just made that up on my own and i followed up and i asked him by the way did you get any advice you have any answer that is that is no i just decided that right off and so the question in that portion of the core of the cross examination was but what about the goods or insight you have a truck here or as it's being loaded onto a ship or somewhere else and he acknowledged that the liability would come back down the line to him personally and then the question was what he claimed on his cross examination that he would then trying to only way to steal a container to even know whether the second car is in there is to open the container and see whether the second car was ever even delivered he said you never even looked at all the jury can find it that saying there's no way to steal a container without kno container that was not yet filled up with merchandise but something that's right and mr kanchan again was responsible i'm just saying he found this as well for filling out the paperwork and not only did he fill out the false paperwork with respect to the mining machinery forty four pieces of mining machinery leaders shipping to my goal is waiting i've forgotten what the wait was but in that case there were two stolen vehicles in the car and the paperwork on that shipment going passport with a forgery and she had been arrested by customs at the airport in san francisco and she came and held in custody for ten or twelve months finally bonded out and was scheduled to appear at some point down the road for further deportation apparent proceedings came to chicago to live with her brother here the codefendant mr jackson acknowledged that she moved in to him and lived there live there with him eventually went to work in his trucking company company basically on the shelf ready to go in case there was an accident liability who started it shut down the first company he had another one ready to take its place immediately mr chalk some burma charge and went to work with her brother in that capacity started her own company then purchased a false identity mr brindley says well this is just some sort of an american alias the name jan may lead it's legitimate chinese person who got  it to work legitimately in wa sometime in the late one nine hundred ninety s there was a visa there was a identity theft ring operating in wa it took a bunch of legitimate social security numbers from the materiality there's no contest about whether it was made to a federal agent or within the age of the federal agency was only about whether it was false or not mr joseph any found to charge him specifically understood and without hesitation chalk some said that jan made leak she used to work here she worked in a trucking company with me she asked me to get mail for murder one point but she's not here anymore and then and he said yes i do that's my sister she never worked for me and he's back in mongolia and at that point agent gibson was convinced that there were two separate people so that delayed his investigation into the financial aspect of this for recognized that that was my sister in the picture yes that was her real name that's the name that she was given when she was born that's a name that she lived here in chicago with me under for a number of years before she got out went out and acquired this so called quote  to begin with you go back and look at the evidence mr attentive trucking business in the shipping business were totally separate and not the same principles is trucks were not shipping those same containers wasn't the same in all he had truck drivers that had their own trucks they got their own loads that he would coordinate for them to try to complete those two things misses the point on the ostrich every argument that council made really goes to will tend ship didn't know that's what every one of those arguments was about and that goes  different name that she used what if it is you know what it's just on the bank account in a search no evidence that that was the case all of the evidence in the case and the same to no one disputed that she was using this name going around getting a bank account working at a company she had an idea he she was using the ne so it was a name she was used if you went in and showed lois lane a picture of superman and said who is that and she said that's clark kent she would be not be good she'd be giving