quote i asked him about the current standing of his application and when he intends to export the answer according to the agent it's quote mr jenks stated that the export application was cancelled the order was cancelled and he returned the product to the manufacturer narda unquote the government's theory is that this exchange is sufficient to put mr jinx on notice that the agent was asking for the whereabouts of all nine amplifiers and whether mr jain had in fact sent any product to china the government's theory also is that this exchange is sufficient to show that mr jain communicated that he d exporting three products to china there are five problems as to why the record is insufficient to show that what the record shows that there is insufficient evidence conviction can be supported the first and the government and i would like to remind the court that the court only has to agree on one of those arguments in order to reverse mr changed conviction the first argument is that had also mr jenks said that the application was cancelled which is true under two theories either way it was rendered moot because the nine amplifiers in this application had either been sent to china or returned to the manufacturer but also as described to the grand jury the agent said that the contract was cancelled because it was taking too long there is no question also that m answered that the company had in the count in the swiss bank accounts for about six months in zurich the supreme court fell or held that there is sufficient disconnect between that particular question and that particular answer to prove that the defendant in branston in fact was denying that he ever had personal accounts in the swiss bank similarily there is a disconnect here between mr james answer and the question asked the question and asked referred to whether what was the current standing up application and mr jain answered that the product was returned to norada the supreme court has held that that are you are lying just point on the ancients written account of what the questions for us testimony are both i mean it's a little confusing as to because he doesn't say exactly the same thing at different times that is precisely one of the questions that we bring up is that the process question that one of the problems with this conviction is that the agent does not have a consistent recollection that's what what question is always asked and which was answered in this respect i refer to affirmatively produced showing that there were six amplifiers returned to the manufacturer and this goes to my second point that the that the question as to whether the product was returned and then get back to the fundamentally ambiguous point when there is a question as to what the defendant meant when he said the word product camp or counsel to score to look at extrinsic evidence under that test it's important to look at the documents mr jain produced at the time of the interview which in the speed of least so that he only returned six product under that case under camper then mr chang statement has to be construed to mean only six product turns this is the second reason as to why there's insufficient evidence to show that mr james was saying that he returned all mine product which is the allegation of the agent and the government the third reason why there is insufficient evidence is that the materiality element it's not that in this case what is notable is that the agent launched further investigation after he received a phone call from the manufacturer who said misjudging only returned six products to me that was sufficient information the investigation had jang actually sent all the amplifiers back to nart i mean doesn't this render ching's testimony material well the in this particular instance what instance what the evidence shows is that the district court acquitted mr chang of export violations because he did not have the intent or knowledge and more over the only reason why the government tonight the application six months later in october two thousand and two is that they believe that the product was being sent to the chinese military facility i have a question about that it's very odd in the record  now i believe that one of the first documents that he submitted had to do that he had to go to the middle person in china oh yes i do see that that was five meeting nine thirteen i believe that there was  would contend that alternately the mistake was that the government never investigated whether the end user was in fact the chinese military as those that brought out at the trial and saying now and the judge never said that it was really in the str he never confirmed or denied after being told that it was actually for commercial purposes or you know subsidiary that he never confirmed or denied that fact by calling the u s subsidiary or calling the chinese military or conducting any other investigation exact question asked was and what the exact answer was the agent does not have a clear recollection as to whether he asked the number of amplifiers in question he does not have a clear finding as to the answer and that was quote the expert application that had been cancelled and that product was returned to narda which was not true from this morning's transcript ten forty six  the district court also erred by failing to do that in that situation returning to the due process argument which i'd like to emphasize the court does not have to reach i would like to emphasize what's unique about this case is that  to go back to what i must say yes judge said he said the export application had been cancelled now whether the expert application had or hadn't been cast in fact that couldn't be mature on because presumably that and that was a fact that the government would know whether the expert language barrier that was throughout this interview but i'd like to ask about that and i understand that record jane was a professor in the united states for several years and he only used interpreters sparingly during the trial to conclusions that he did have some command of the english language and was good enough for him to understand the questions an agent spells what is your response to that well he was not a professor of the english language professor of marketing and also all of his trial testimony occurred three years after the time of the interview moreover the agent testified that at the time of the interview which is the relevant point chang english was quote poor in his grammar was broken when the true meaning whether mr jang made a false statement it's highly significant about whether he said amplifier amplifiers and to the extent that there is a language barrier that does not clarify whether and person a non native speaker says the word amplifier and means the singular or plural this is compounded by the agent failing to have a recorded transcript or make contemporary notes as to what exactly was asked at this interview with the court's permission i would like to reserve time the point that i think was misstated by counsel but the reason it doesn't really matter what address it was sent to is because these microwave amplifiers regardless of whether it was just it was who was buying it are controlled for export to china the reason for that is national security reasons these types of microwave amplifiers the evidence was can be used for purposes that are for the judge found that there wasn't  application the license application has been submitted about two months earlier a licensing officer had contacted mr chang with some follow up questions to get further information about the end user and then  made and the statement that was made is enough it is enough for a false statement conviction because although more could have been asked and more could have been answered in what he said was not literally true and that is enough for me i want it may not have been cancelled and he returned of the product back to the manufacturer now with that answer there's really no reason for agent to ask anything else because he's being told oh the application was cancelled the order was cancelled i return the product exported some documents i know the court is going to ask about what the documents don't show what he was asked to bring he was asked to bring all documents related to this transaction he certainly had exactly he said we have the agents testimony about it but the sounds case like the bronson case on which stands realized is different because the camper case which is the ninth circuit holding from two thousand and four says that the bronston analysis to literally true defen taken in conjunction with the rest of the statement no statement as a whole says that that's what application was cancelled in the order was cancelled and the product returned so taking that statement as a whole that can only mean i d i mis understood what he was getting my english isn't very good i didn't really understand it there was no miscommunication no testimony very different his testimony his defense was the topic never came up the agent only right and he may have been confused about that whole knows but in any event the government you know one of the application was cancer not him well at least the agent certainly would have had a way of verifying that even if he didn't know anybody got it at the time he walked into the room and that's why i was interviewing him information there's no point in telling him something contrary to what he already knows her or are going to find out by pushing a button and i think i disagree on or i understand your position but i disagree i think that the test of materiality has to look at what the speaker the documents he would have known what that statement meant he did not walk in just to be clear he did not walk in with documents showing that he did not return the other three and he did not walk in with documents showing that he had explored the other  but that brings us to the ambiguity question because when we're looking at the context the context is not just the documents that he brought in here the context is which camp are instructions to look at where there's an ambiguity all of the statements taken a amplifiers because in saying that the export application was cancelled the order was canceled and the product to return the product back to the manufacturer i can i think we have to stick to what the district there be an exact match and the fact is that in one thousand and one cases oftentimes you may have an agent testifying if it's a verbal statement the agent rather than as it was in the cases that i was able to find in the ninth circuit a written false statement are were written false statements or perjury where we actually have a transcript and i was not able to find accused that was dealing in the ninth circuit with a verbal statement but that is what we have with testimony the testimony it can had he just said the product was returned it might have been different although i still think that we would be in the ambiguity situation where you look at the stranding evidence and what what the evidence was that mr jenkins attended and whether they actually understood the same thing but it is not i think it's much clearer now that we have the statement that the export application was cancelled because those two statements taken together the export application was cancelled on the product something that he ever said when he testified in this case his defense again was just the to the topic never came up moreover he had been a professor in the united states beginning in one nine hundred ninety which you pointed out the time of the interview is three years later so we look at the time of the interview course and his interview happened in two thousand and two that is about twelve years after he came to the united states where he was a professor now he had gone back to china very briefly in between but he had been in the united states for over ten years after the interview it was i believe three years until the time of trial yeah but i was adequate to put the defendant on notice of what he was being told that he said even though there was a discrepancy between the agent's testimony and the language of the indictment it was adequate for due process purposes but the far at the at the government's record of record at two to no there is the actual denial of mr james license and they are the only reason given was not that the amplifier is prohibited to quote  this issue with mr jennings denied and this is that the government's brief page ten is quote did you during that interview ever claim that you had not that you had sent all nine transistors back to nora and jenks said no i didn't talk he didn't talk about that transistors are never a part of this transaction it was micro wave amplifiers transistors were not involved at any says quote the government or the congress it does not persuade us that congress intended to extend the coverage of the perjury which this court has concluded to be false statement statutes to answers unresponsive on their there are two responses one that you pointed out that is not material this if you look at the report which camper instructs us to do the agent records that the application was cancelled because it was quote taking too long as we know that the contract was taking too long and that was cancelled at the grand jury testimony the same agent said that it was the contract that was cancelled when asked explain why he used contract in the grand jury application at trial the agent said he the distinction between these two words didn't matter contract or order in