defense that he was not an alien despite the central appearance of alienation in this case for false statement the government claims it's not trying to take a second bite of the apple it only wants to cut the apple up and make a pot or mash it up to make apple sauce but legally the consequences are the same as far as collateral stoppel is concerned the government can not relate agape as a material part of this trial a fact which the  was to avoid those sorts of further disputes and so the the question whether he was an alien or not was seems to the question of was he using a false name in order to avoid he used a false name to the agent in primary inspection that the agent as a make further on in the argument about why the rule twenty nine motion should have been granted was agent clearly testified without any question that the name had no materiality t decision whatsoever in fact he didn't even ask for a name until after he made the decision not to admit and to refer to secondary really the government's true theory of materiality the only thing that conceivably could have been material about the questioning was whether or not he was admissible that is whether he was knowingly clearly a false name completely true he if we look at it from his standpoint he gave a false name because he thought it would be material he did it for the purpose of misleading the government that's why he  didn't make it but that's why he did it and the person looking at a neutrally will say why did you fall straight into the government because the economy lied to the government he could avoid a problem the government wouldn't catch the fact that he is who he is that's why he did it everybody knows that's why he did it so how can we say it's not material because the government just wasn't fooled your honor i respectfully dispute that that is absolutely clear in this case i think some of the circumstances of this case raise a real question is not as much of course it's perfectly clear that's why he gave the false name to avoid them tracking him and his right name that's why he did it here i  expecting on and that's the reason he gave in the prior trial for why he was naturally adopted this name there was no testimony whatsoever in this trial about why he used a particular name at primary inspection i mean that's an inference that someone can draw but also as i said there's some evidence to show that contrary to that inference so if someone if you were making this very sly i attempt to evade inspection i didn't come and the first thing he did was announced i do not have identity document it still leaves the question of what is the materiality of the statement the materiality is he hoped to get through without having him know who he was that's the materiality that's a fair well whatever you want to call it that's what  alien that does not involve find a civil action in the us to decide whether he is an alien you know that that's true that in the civil case in the deportation because of the difference in the standard of proof that is not precluded jury believed him still back up because the jury believed him you can't prosecute him for that very testimony in front of that very jury that would be double jeopardy this is not even close to that remotely close this is a case where they're crossing it improved whole new law i told long time after the jury trial is it not that's true your honor but still alienated the issue that was necessarily decided in the first trial was a material fact raised and relied on by the government in this trial and that's what i would submit to steel bossa says cannot be done that that that collateral stoffel does not allow the government to relay to gate a material fact in the second trial that necessarily was i personally decided in the first trial hellion it is exactly such a fact i mean it was necessary here it was a material fact and all they could steal boston requires is that it be sufficiently material now the evidence here shows it was sufficient material because the government explicitly relied on it for the materiality element it was brought up at every stage of the trial from opening in evidence of testimony and documents and closing it was brought out of the rule twenty nine the government argued it extensively in closing and the judge instructed on it and to just show that it had that do affect the jury question indicated without any material fact the government what is materiality meaning it means it is predictably capable of altering the decision of the lessons predictably capable of altering the decision thinking the false name i'll get by the border so i just want to get by the border that's all i want to do and by the way they put me on the terrorist alert because i'm a member of the a c l u so it's this is a bad so bad grap was potentially material that could argue even if they know that about my false name because somebody ratted me out that could potentially be material your honor but i would point out that this is exactly like the situation judge easterbrook talked about in clear out where he said only testimony in the trial here about the use of the name was that it was completely irrelevant to the decision an agent today and i made that was the only decision alleged that was the only federal official decision because it has like an laboratory experiment it has two types of material statements side by side and it shows that one is types of false statement was not material because it had no predictable ability to effect of the decision at all whereas the other set of decisions even the other set of statements could affect a certain expenditure it must be a non trivial use that specifically stated in fucking me here the only use of the false name was trivial to facilitate the referral to secondary that's the only evidence that was provided for that as is shown in the fourth circuit case and smile and in the seven circuit case and a decision further down the line by another federal official does not suffice there must be an immediacy a direct link between the false statement cause and effect between the false statement and the immediate decision that's made by the federal official the fact that some other federal officials somewhere else may use that information for some department of labor official had to a lot of certain amount of money to the state for these unemployment claims despite the fact that a decision actually was made on the basis of those false claims they were still immaterial as far as the court was concern case because it shows that the court must look at the broader context of the statement not just the statement itself the broader context here is that mr hollis was making a good faith his defense was he was making a good faith use of this name that this is a common law  deceive john says that that's exactly the use that the mutual awareness can go to in this case is to show that there was no intent to deceive as for the constructive amendment argument they can mention that evidence of his alienation was relevant and it was admissible and it was not we litigated in this case the government and the court took repeated affirmative steps to advise the jury that the defendant was not that there was no decision and that the whether or not he was an alien was not relevant in this case the only reason that the court had to respond to the jury question in the way it did was because the defendant made misrepresentations about the effect of the acquittal he made a firm of a representation he is a us citizen nor was there any litigation of the necessary issue in the first trial that was necessarily decided in the second trial that he was an alien was admissible relevant under a lower standard of proof because it showed that the defendant had the intent to deceive that he knew that it was false and the fact that he came in and said opening statement that yes there is a dispute whether or not he is an alien but the problem in this case is that he did it incorrectly instead of coming up and saying my name those are all this whole  inspecting officials the proper information so they can make an informed decision but if you attempt to deceive then that's a crime and that's what happened in this case with regard to materiality the law does not require that the defendant be successful in his deception that kind of defeat the purpose entire purpose of criminalizing false statements the case is clearly established that there is no blood for requirement there need not be any causal connection between the false statement and the subsequent government action and that was probably most clearly demonstrated in the salinas iraq case where the teachers contacted the defendant then asked him a question asked him a question he already knew the answer to do you have any more money over ten thousand dollars and they made their decision was already made up they knew that this guy had it hundred four thousand dollars in the suit case but when he said no that didn't  and he was afforded the right about you should the court asked him at the beginning do you have anything to say and then he then exercise this right of occupation and he went right through all the mitigating points which are essentially i when he invited further comment it does and the tone and the volume are not reflected on here but the the language you can  want to continue to do that harass me and punish me for things i have never done prove and prove it and i was there right at that point when he challenged the ins to prove what he had that had to the defendant been a little less disruptive because you obviously you cannot really get the tone and the volume share of the contents  calling me and others perjurious or the case agent perjurers me it's good napper and then within the context of his subsequent attempts to interrupt unfortunate use of that word but in the other comments before that i think it pretty clearly indicated that the use of the guidelines was in your into the defendant's benefit that nothing that we could possibly do to ever deter him from future this conduct like this before that he was so bold about it about saying i lied about my name and i might do it again that they indicated took some sort of remedial intermediate step first before cutting them cutting the defendant off he asked them to come back to the point because they're wandering off the point and then when it looks like they're going to go on for a while he  i want to just highlight three points which in this case i recently cited weems which i think is a very parallel here first of all that council argued that the collateral estoppel does not preclude evidence is not  government never objected to that as being a misstatement of the law and finally when mister miller's mentions that this was motive again in wein's that was precisely as the use of the precluded issue with the court here found it was being used as motive as they put it significantly bolster the government's case by providing a reason why the defendant might have illegally structure the currency transactions it was motive motive does not uses motive does not mean that it's not a material issue