wonderful good morning may it please the court my name is karrie hong and i represent mr john lee and there are three reasons to reverse his conviction first starting with the parties agreed upon jury instruction as to what was the statement at issue mr of the did not make a false statement because he gave a factually true answer to an ambiguous question the jury was instructed that the agents had asked quote whether he gave his wife any money to fund her business unquote mr b answered no the verb gave can be limited to a gift mr levy loaned money to his wife for all of us who have been given student loans and have been given mortgages we know the very real difference between a gift and a loan mr lee's answer of no as to whether he gave money was factually true because he had lent it when there is an ambiguous question and the defendant gives an answer that is factually true that cannot support a false statement conviction the district court to smith's this argument focusing on the noun of funding and finding that  funding can include bank loans the judge overlooked that the verb gave is ambiguous and can include gifts and can exclude loans second mr le have the mens rea to make a false statement the district court properly used the two thousand and sixteen revised instructions and told the jury that a person must know that their conduct was unlawful in prefer in the parties disputed whether speech alone meets that standard but even accepting the government's interpretation mr lee does not meet it he gave a factually true statement to an ambiguous question that defeats the willful and syria that he is lying to the government third if the court disagrees and holds that the statement is a lie it still isn't material materiality is emitted the a low bar if a lie or a mission causes the government to take a right when it could have taken the left that by usually is material but even under that those standard mr the statement doesn't need it the key question is what would the government have done with that information in two thousand  that it did not do according to agent puentes if he had that information he could have asked for more financial information and the investigation quote could proceed in a different way unquote there's no showing th there the word fun versus gaev what do we do with the fact that this was litigated or a jury and two agents testified that they asked every which way whether he gave them money w yes your honor in the brief you know argued the insufficiency of the evidence but as you point out in the jury instruction which said twenty two the final statement is actually a finding where the jury was instructed as to what the statement is even taking that as an at face value that is an ambiguous question and he answered and he gave a factually true answer when he said no to whether he had given money because he had loaned her when you give somebody a low it's not the same as giving money that's your argument well your honor that it's subjected to two different interpretations when you give a loan that could be actually true but also if you're asked whether you gave someone money when he lent them money a factually true interpretation is to say no i had lent them the money i did not give them the money and again the district court focused on funding in rejecting this argument but by directing the court's attention to gave it is possible that this is a factually true answer than to an ambiguous question that subject to multiple interpretations so we're going to the issue materiality that is relatively low bar in terms of showing that and i think you would also agree that the standard on the section one of won jury instructions to say that it's the same standard that there is a common law standard between the two so you you think the masculine jack case is directly applicable with the standard that's applied there fourteen twenty five is the same as to one thousand and one despite the fact that cases describe the stands differently yes your honor and under that standard here agent flint asked when asked what he would do he said he'd simply quote proceed in a different way in that respect it's similar to sally where the federal agent said that they would if they known about a lie about military service they would have undertaken quote further review the court said they'd statement that the government would have done something doesn't meet the low materiality barca's it doesn't show quote what decision the agency was trying to make with it well they they said they what they might have done in this case but  materiality regard to one thousand and one say things like you don't have to they don't have to know that it's false they can even know i mean they can know that it's false and still it could be material when the state was made they don't have to change direction that they don't have to rely upon the statement i mean there are all those kinds of phrases that are used in the context of one thousand and one which seemed to be a lot less of a standard than when you're dealing sally again the federal agent saying that they simply would have done further review wasn't enough and that's the kynge the facts here were they simply sort of said they would gone in a different way that's different from sylva where a guard's a mission about its breach of a policy could have led to his firing and it's different from king were two border patrol officers would not have granted entry to a firearms dealer if they'd known about it's intended conduct but your honor even if you disagree with me on materiality this can be resolved at the first issue that it was a for it was a factually true statement to the big us question which then moves out both the mens rea and moves out the materiality question troubles me about this case because it's unusual is that there is no record of what the actual the specific actual question was that was asked the basis for the two and this was quoting from the jury instruction the defendant answered no to the question whether he gave his wife any money to fund her business that question and answer that's the question that we're looking at we're not looking at all that because it's testimony about these different questions there's only one question that went to the jury that's correct your honor and that was did you give your wife any money to fund her business and  that question answer was not pulled out of thin air this was agreed upon by the parties and the court in consideration of all the evidence that came in at trial and it actually was based verbatim on testimony from the lead investigator that it had interviewed the defendant and i can direct your your honour's to multiple occasions where the lead investigator agents went to has testified that he asked that specific question a rational trier of fact could have found the element of falsity by concluding that whether mr we gave and that's tallackson her decision money to his wife for her business included giving her money he borrowed from the bank and initially sought to have a specific unanimity instruction with various formulations of what the question answer may have been based on the testimony at trial and because of the as the testimony came sentence in that supplemental excerpts of record page six seven hundred six twenty that's closing argument from the defense they made the specific argument that mr hondas made in the jury considered in the jury rejected it and all inferences at this stage go to the government and the standard is what whether any rational trier of fact could have found that the defendant when he made when he denied having given money to fund her business so let's talk about materiality because i actually am having a hard time understanding how whatever mr lee answered this keep in mind the course of investigation into all these other matters that the government was investigating honor the defendant was a federal immigration services officer who is being investigated by the department of homeland security office of inspector general test effectively internal affairs division testimony trial for his potential involvement in this wife's operation of a business engaging in prostitution the defendant's denial of having any financial involvement or having given her money for that illegal business was significantly material t investigation this was not only a criminal investigation or a criminal elements whether there was human trafficking going on at this business and whether immigration immigration fraud going on there but it was also an administrative one office of inspector general is investigating its employees to make sure they are above reproach that there are no conflicts of interest with respect to their involvement in illegal business is that they are not corruptible and this was all testimony from agent as an engine scott  trial and so his denial of having any financial involvement it was material to them because then they they in fact and again with respect to to reality it's propensity to influence it's not actual influence but in fact they went down the road of trying to determine what was his financial involvement because they didn't believe him during the interview he first denied all involvement in knowledge whatsoever of the business and then as the agents who at that point done this was a two thousand and nine had done some investigation but had very limited information they were able to confront him with that information and he started to backtrack so they knew that he was lying about his full involvement in this business but they wanted to know what is your financial involvement as a federal immigration services officer are you involved financially involved in a illegal business engaging in prostitution so they then went on a extensive financial investigation that could have been narrowed and there's testimony about that and when they learned finally in that in two thousand and thirteen that from the defendant's wife not from the phone to himself that he in loan to give her money to start her business they called the defendant back the very next day they urgently wanted to speak with him because this was something that was very important to their bit to their investigation their activities and decisions that they were making and they wanted to speak with him immediately the defendant did not even note that fact in the opening brief and gave it short shrift in the reply brief but that was a very significant fact for the jury to consider and it goes not only to  knowledge of falsity but the materiality of this particular investigation and you you were just materiality let me ask you know about the standard just so we're clear the you think masson jag interpret fourteen twenty naturalization through an unlawful act and it is not a one thousand and one false statement and so the standards they borrow from congress versus united states but the standard set forth for materiality under the ninth circuit's model instructions is slightly different than how as it is interpreted that case however the standard that is applied in massillon act even under that standard the defendant's denial his his false statement was material and in that case the court stated and this is hundred twenty eight a false statement made to government officials can affect a natural some naturalization decision in a single significant way by distorting the government understanding of the facts when it investigates and then adjudicates an application and then later on same page as we explain in that context a person who lies throws investigators off the trail leading to disqualifying facts gets her citizenship by means of those lies those that those are the standards that are  discussed in mass than that which is a very specific context different statute but even under those standards the defendant's denial of his any financial involvement in this business distorted the investigators understanding at a very early stage an investigation threw them off the trail and when they finally learned about his actual financial evolvement not from him but from his wife they urgently called him back the very next day i have two points first the jury was focused and the judge was focused on the meaning of fund and there's no question that a bank loan includes funding includes a bank loan the ambiguity comes from the verb gade when i loan my child money i do not tell him that i gave him money it was not a gift it's a loan that i expect to be repaid mr ching or mr cleek gave that factually true answer then to the agents when he was asked the same same under one zero zero one so starting from that issue the topics that the agents a genocide they were investigating were human trafficking whether immigration fraud was being procured whether mr the knew about crimes and whether he was financially benefiting from any crimes under maslen jack the patient has to show that a lie is relevant to an actual or potential investigation and that there must have been a born an actual or potential disqualifying fact this standard does not meet that standard of preexisting loan to to a spouse does not show and go to the human trafficking and abuse of power and authority that this being investigated you may even even though that may be one step into getting to the information that because it's not the regular related that is that it's not material well your honor the question is what did the government explain and here the government said we'd only look at further investigation they never said this could have been relevant this would have been relevant to an actual or potential investigation they just said quote we could proceed in a different way when they when they mentioned something about bribery and so forth they're looking at it and then they were trying to see whether or not to follow the money to see whether now there is ofa natural connection first correct your