applications for temporary protective status in this country as well as to allow him to work in the country employment authorization applications the government charged him with  fraud with respect to six applications three employment authorization applications three temporary protected status applications but the operative language in the indictment for each of those six salvador born in made upon el salvador when he went as he then well knew he was a citizen of guatemala so that was almost entirely not so your honor el salvador and so when the government alleged that he was affirming that he was a citizen of el salvador when he well knew he was a citizen of  statements were not in contradiction mister cardenas was both a citizen of guatemala and el salvador and i think the record was absolutely clear on that to the point where if the jury were to convict him for lying about being a citizen they would have been totally ignoring the evidence that was in front of them  cardenas had a birth certificate from el salvador there were records that were discovered by agent parag in el salvador showing that his citizenship had been registered there he he and his sister argument that evidence was insufficient for the jury determined that it was a false statement the affirmation that he was a citizen of el salvador correct it was an absolutely true statement on his fact that he was a citizen of el salvador in fact the government agents tried to go back to el salvador and get them to revoke his citizenship because they believed it was based on a fraud our government believed that the the grant of citizenship by el salvador was based on a fraud and el salvador refused to revoke the citizenship and in fact jennifer cardenas and i believe mario cardenas both went to the consulate in new york city here two to get passports from el salvador they looked at their records and gave them passports and when our government went back and and and tried to revoke that citizenship the el salvador refused to do it so mario cardenas was a citizen of el salvador when he applied for t p s he was a citizen of el salvador when he was being investigated he continued throughout the trial to be a citizen of el salvador  and then it seems clear that the grand jury didn't look at these applications because the they charged him with lying and saying he was born and met upon when in fact he wasn't born in that upon and his applications didn't say he was born in that upon and similarly appears that the grand jury was not instructed on dual citizenship because they found him they indicted him for affirming he was a citizen not in its request as i recall for instruction on dual citizenship your honor there was you know quite a bit of discussion of whether this could be broken into two separate crimes one for lying about bir and one for lying about citizenship and there was evidence before the jury that the el salvadorian birth certificate was fraudulent  right there was evidence before the jury that there were questions raised about the record keeping in el salvador which suggested that perhaps it might have been fraudulent correct because they were not found in the records and it's a little bit complicated that the agent went back to el salvador and examined a book there where the birth certificates were listed and according to the age and we never saw this book it was never produced the jury never saw it but according to the agent it was there but listed in a way that was kind of out of order which suggested perhaps it had been at it at a later date but but there order there was not your the court and lucas anderson here for jennifer cardenas criminal defendants have a substantial right to be tried only on charges that are presented to a grand jury in this case the district court determined at the end of the trial that the jury could convict the defendants on the basis of an entirely and charged conduct because the core of criminality the offense conduct was charged here was that the defense had misrepresented their country of citizenship not their place of birth now we argue that even that wasn't sufficiently alleged or proved a trial but all addressed our sufficiency arguments later because it until the last charge conference after all the evidence was in that the defendants were told for the first time that the jury was going to be permitted to convict them on the alternative theory that they misrepresented their place of birth and your honour's asked some questions about those birth certificates and all salvador and if you look at what the indictment actually charged them with questions about their birth certificates were entirely relevant because they were not charged with misrepresenting their place of birth and they didn't have any notice that the environment was duplicitous but each count somehow charged them with two separate piece of fraud crimes until they were told right at the end of trial about what the jury was going to be charge the indictment i mean help me understand this the indictment language says charges false statements and then there are two factual statements in the first portion of the charge  that the defendant was a citizen of el salvador which is a factual statement and born in el salvador and those are the only two statements that charge a statement made by the defendant so why isn't it charging that both of those things are false because it doesn't say that they were false it provides is another step in the says that she knew very well that she was a citizen of guatemala but that's like saying somebody said that they had blue eyes saying that you're six feet tall and that's that perhaps that would be sufficient under some other statute but in this statute you have to allege what the actual falsity of the statement is and we cited cases the russell case in the pirro case in our brief about snow the particularly is with which you have to allege that something is false you can't just say in the pirro case for example oh this marriage was false they they didn't have a right to claim that they were married without actually alleging the fact that the marriage was in fact void under new york law so you have to not just say the words false statements you have to actually detail some sort of contradiction in the statute any either way the defendants were absolutely not put on any notice that they would have to defend against questions about birth place under the language of the statute which seems to have tried to imply that they misrepresented their country of citizenship but you know making this indictment duplicitous at the last moment charging him with two separate crimes und each count and also raises double jeopardy considerations we don't know what crime is cardenas was actually found guilty of by the jury or whether they actually acquitted her of one of those two things and so i want to quickly address our sufficiency arguments  important to note with respect to both of them that the government's brief doesn't identify one bit of evidence in the record to indicate in this cardenas is not in fact a citizen of el salvador and they actually conceded that there was insufficient evidence about that trial and see pages three sixty nine and five twenty eight of the appendix for that and apparently the grand jury didn't see any evidence of that either because they didn't even allege that she was not in fact a citizen el salvador and so that means two separate things first that the conviction wasn't supported by sufficient evidence and second that the indictments failure even allege of false statement was a plain air in that it affected the defense substantial rights and likely affected the outcome of the proceeding it's plain that critical elements of a statute have to be sufficiently alleged and it affected their substantial rights because of the grand jury had been told no you actually have to allege an inconsistency a false statement they may not have been able to at least not with respect to citizenship maybe they would have charged some other false statements such as the port of entry or the fact that they didn't have continuous residence if they found that and that would have affected everything every aspect of the case going forward including trial strategy and decision whether to testify everything so qualifies the plan or under rule fifty two b i see my time is up there no further questions from the court th please the court paul solar and they have the united states first with respect to constructive amendment the claim that's being raised is that only citizenship was really in the the as a false statement as judge livingston noted the indictment alleges false statements in the plural i would add to that as to material facts in the plural so that when one looks at any particular count of the indictment there is the reference to citizenship in el el salvador and the mistaken reference to  the place of birth so those two components of each count appear in each count in which the defendants were named and because of that the judge's instructions to the jury that they could convict on any count if they were unanimous as the either of those false statements did not expand the charge that was levied in the in the indictment against he the defendant and as you said suggest there was a v because the evidence did not suggest that either defend it was born in metapad i don't necessarily concede that there was a very it's obviously there was a mistake that should not have occurred my only reluctance in characterizing it as a variance is that the difference in facts in the indictment and introduced in evidence must be material and in this case the think that there is a variance if there is a variance i don't think there's any question that the defendants were not surprised by the variance and therefore prejudiced by the variance they don't claim to be at any point  nor could they because all of the discovery materials which included in the appendix the obviously the documents that the defense falsely subscribed indicated that the claim of birthplace was  salvador so even if there was a variance there was no prejudice and it is not like a constructive amendment requiring per se reversal they must demonstrate prejudice and from that fact  respect to the sufficiency of the evidence i mean i'm really surprised to hear a claim that there was no indication that the defendants were not citizens of el salvador i mean that was the gist of the whole case and in any event i don't think there's any question but that the jury was entitle to conclude based on the testimony about the el salvadoran birth certificates that they were false first of all each defendant had both an el salvadoran birth certificate and of guatemala a birth certificate one of them had to be false or fraudulent they could not have been born in both places there was testimony that both jennifer's and mario's birth birth certificates indicated the same book and page number which would never happen if they were not fraudulent  and and that was the testimony that at that book and page number neither of those birth certificates was recorded there was an entirely different individual listed at that point  secondly if they produce the copies that you're referring to i don't think so you are under no where they were correct more importantly when jennifer testified she admitted that she was born in guatemala necessarily rendering her el salvador and birth certificate fraudulent  marriage where he claimed to be having born in guatemala and of watermelon citizen and mariel also submitted subsequent immigration documents relating to a request request a change in status based on his marriage where he indicated that he was a guatemalan citizen so with those facts and with jennifer's testimony it's very clear that the birth certificates from el salvador were not legitimate also with respect to jennifer when a search was conducted of her residence yet another passports that jennifer and mary o used to come into the country and all of the documents in question in the six form the b c's of the counts of conviction mario and jennifer are both indicated that they came into the country without inspection i believe in cincy dro california crossing the border without inspection yet it was documented  that both entered the country in los angeles on guatemalan passports and guatemalan visas so i mean the evidence i have i'm a little reluctant to say overwhelming because i don't want to overstate the case but the evidence was very strong that mary and jennifer were both part of my own citizens born in guatemala travelled on those passports and had nothing to do with all salvador  but for their claims of el salvador and citizenship was there any discussion of the possibility of dual citizenship citizenship but there was no evidence at all other then jennifer telling a story about her father telling her at one time that even though your morning want to mali you have dual citizenship other than jennifer's own statement which the jury did not have to credit i don't think there was any evidence of el salvador citizenship or birth either one finally with respect to the indictment itself it may not be necessarily inconsistent to say one knew he or she was from guatemala you can't read out of the counts of the indictment the fact that the statement about citizenship and birth is alleged to be false both are alleged to be false so even if the statement about white amala had not been in the count of the indictment the indictment would be sufficient because the defendant was alleged to have made these two false statements unless the court has any other questions prepared to  honour's i would go back to again the operative language in the indictment the indictment charges that mario cardenas affirmed that he was a citizen of el salvador that is the core of what the government was arguing that he was a citizen that he affirmed that he was a citizen of of el salvador essentially when he wasn't a citizen of el salvador in fact and i think the record will establish this he was a citizen of el salvador he had a person to fix it for a while salvador he went to the consulate with that supposedly fraudulence birth certificate and was granted a passport on the basis of the birth that makes and says there he was born there and that's the basis for your assertion of his says that that is one of the ways that you can get say understand but that's in this case which are obvious you go there and you can be an immigrant and get citizenship this case you're saying he was born there and there was in el salvador there's a procedure where the parents who are born in el salvador born somewhere else can go and register that birth in el salvador and that birth was registered in el salvador now birth was registered it was written down in this book and the town of el refuse yo which the agent went to he got the official book he opened up the book there were their names they were registered as having been born and having attained citizenship in el salvador now our government wants to go back and say well salvador this was wrong this was fraudulent you shouldn't a given them citizenship well maybe it was wrong maybe it was right but they gave him citizenship in time did they do that when the book when the when the birth was registered in the book in el refugio i'm a birth or thereafter sometime after it doesn't appear that we don't know book but it was according to the agent it was at the end of the list of births and should have been somewhere in the middle somewhere and that was also a difference between know that mr silver argued that there was nothing to show that he was a citizen of el salvador and clearly there was and again getting back to this language which i know i keep getting back  to it appears to me that what he was charged with was lying about his citizenship and there's no basis for the jury to determine that he had lied about his citizenship i think when the court looks at their status now are they still within the sentencing indicated to the government that it was unclear why this case was ever brought that people who were in this position as children brought to this country told by their parents or parents to submit applications in this way clearly had no other choice than to to do what their parents did and and to and to submit applications they never sought to do it under doctor correct i think they got started runners all this discussion about birth place and birth certificates and all the evidence about that would have been relevant if the defendants were actually charged by the grand jury with lying on these t p s forms about their place of birth but this court's jurisprudence is very clear quote the indictment must be considered as it was actually drawn not as it might have been drawn that's from the pirro case which we cited to the government's arguments about our constructive amendment issue is essentially that the indictment was duplicitous that each count charged two separate crimes and they could be convicted of either of them and that wouldn't raise any fifth amendment or double jeopardy concerns and with respect to the argument there is no evidence of el salvador and citizenship the government had every opportunity at trial to prove that the defendants were in fact citizens of el salvador they had an opportunity in their brief on appeal to show some evidence in the record and here at oral arguments also there's not been one item of evidence to indicate that mr cardenas was not in fact a citizen of el salvador which is the only crime that this indictment appeared to try to charge against her and  notion that they were on notice that there was no prejudice defense counsel and opening arguments said miss cardenas was born in guatemala because the crux of the case they thought was about citizenship not about birthplace and then during the first charge conference the government said i want to get this quote exactly right i'm sorry you find it quote that their proof about them citizenship in the statements was quote murky and quote not clear cut that's page three sixty nine of the appendix so then they argue that they should instead be able to convict if they prove this new theory about misstating about birth place judge going initially denied that application and this cardenas then took the stand and said yes i was born in guatemala whether it's hearsay or not and that i'm a dual citizen of el salvador and guatemala after that judge going changed his mind and decided that the jury would be told they could convict under either of these two theories two crimes under each count and duplicitous indictment finally during their deliberations the jury asked one subset of question and that reason laid into the defen certificates in their place of birth so to say that good friends were somehow on notice because of discovery disclosures that should have served as some alternative charging instrument the defense that shouldn't have to guess what they're actually charged with when they're presented with an indictment that only seems to allege you know possibly a false statement with respect to their citizenship that was the crux of the case once the government realize that they didn't have sufficient evidence to prove that they asked for an alternative jury charge they expanded the indictment and effectively doubled the basis on which they could be convicted of all at the end of