united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is good morning i'm judge howard and with me are judges thompson and lopez this morning and mr gonzales you may begin when you are ready for your own we'd like to reserve two minutes out of the ten minutes for reb yes thank you this case is a case for fraud case because mr pickard already read i was not hiding he was openly working as a volunteer for the union was hired by the union to work as an election officer and he signed a contract for that effect in this case we have three issues that we brought to the court the st issue  to make a statement that was contrary to what he was supposed to make for example the forms and that's accepted two thousand and twenty two and twenty eight asked to volunteer work if they stayed in report any volunteer work including volunteer work force wish any form of monetary or incurring compensation one perceived he answer no the explanation given by odell b c p expert was that he had to say yes even if he wasn't getting monetary think knowingly and intentionally or willfully try to lie to them about his benefits and that's where we submit that the evidence was overwhelming that he was not trying to hide from them and all because he was meeting with them you're saying knew he was doing volunteer work are the same people who he away are what the requirements were for this benefits program i believe so you're on our knees there was a testimony by one dog were filed by the union against the postal service so they were very well aware that he was working in the e e o c complaint also i think are you saying that mr delgado was responsible obligations were because he talks about compensation mr he read as a mechanic he got injured as a mechanic we're not talking about somebody who does e o compensations work and two thousand and five then his his claim for compensation was denied because he was doing some other work in two thousand somebody even though it was continuing to do that same kind of work can read into it what you just said but you can also read into it that he simply put he was a union president and he was doing some work as a clerical but he for purposes of his mental state that's the problem with the court's order that avoid it prevented us from developing the fact that he was not hiding because i ghost it directly to his mental state and that also goes directly to the rule twenty nine dollars which is the insufficiency of the evidence as to a mental state that would require a conviction his mental state was i can work even though every doctor told him he gonzales i just have one question i would like to ask you if i might with respect to the motion in limine and did you make a prof or and if you did what what was the question thank you both by the judges have any additional questions oh all right thank you you've reserve some time thank you sir and we'll hear from mr coleman morning hours and it please the court my name is robert coleman i represent the united states attorney and st of the motion lemonade issue i just want to clarify that there is a distinction between the potential evidence regarding obligations of other individuals those who opposed it was working with or working for that evidence was excluded by the motion of a minute but as to the openness with which it was working that evidence was put in front of the jury there were pictures of a talent working there was testimony as to who he was working with and that in a closing argument that was that argument was made evidence is simply irrelevant and that justifies the district judges determination to exclude that evidence but even if it did have some marginal relevance that would be outweighed by the potential to confuse the jury because you're introducing evidence as to the obligations of others the potential fault of others which distracts from the primary issue here which is really whether the appellant was guilty of the crimes as i thought the defense counsel was pretty clear in saying we're not trying to argue that somehow the negligence of government should be a defense for us we're not trying to say that they he was working with others there was no evidence in the record that he was hiding the attempts to work and appellate made the closing argument to the jury the final pitch to say look because he was working so openly that undermines and he assertion by the government that he had the requisite men's rights that was simply rejected by the jury and that's a jury determination it's been made and and there's substantial evidence here to support the jury's ultimate verdict therefore it should   but also the further you stray away from just his openness that working and start to point the finger at whether it's being done explicitly or implicitly point the finger at other actors and what their obligations were that becomes problematic and then you not only have the question of relevance but you have the question of potentially confusing the jury which is another consideration for the mo but it is it's not a reasonable argument you're saying from the defendant's perspective that if everyone thought that what he was doing was ok that that doesn't go to his mens rea that that mean that's what his position is every everyone who had a duty including himself if they thought it was wrong then it specifically meant that he felt that he could reasonably argue that he thought it what he was doing was ok yes that's his argument but that's undermined by a number of factors particularly the fact that he does have substantial experience and representing others with similar claims that he received warnings again and again and this time thirty two forms where he indicated that he wasn't worth what it was working there explicit indications that you needed to be truthful with his answers because that's what it is that's clearly the government's evidence but but he was his  beef with what's going on is that the court prevented him from introducing his evidence to rebut everything that you just said yes that's his argument but as to the obligations of any other individuals that simply is not relevant to whether he had the right was had at the time of thought the time thirty two forms but even if it does have some marginal relevance and that is outweighed by the potential to confuse the jury this was already a thirteen day trial and to introduce additional evidence as to that at best ancillary point would have just further confuse the issues and would have  making any false statements nobody seemed to care about well it even if it does have some marginal relevance it would be outweighed by the potential to confuse the jury but i don't know how he would even know whether the individual what if they even did have an obligation how he would know that they have complied or have complied with that obligation but again the instructions and the warnings and the documents that he filled out are clear and explicit and so whether other individuals are also doing what they need to do is simply not directly relevant to the issue at trial we had to really understand we understand it may not be elop elements of the offense from a prosecutor correct i think there is that there is no it doesn't have a direct relevance though to whether when he's filling out a form saying no i'm not working when he is actually working on whether he had whether he did so time but even if it did have some marginal relevance even if the court did find that it still had the propensity to confuse the jury and going beyond that this is a discretionary ruling by the judge so so long as it reasonable mind that agree it's and title to affirm ns and even taking it one step further if the court was to find that this was error it would be harmless error because there's a substantial amount of evidence to support the jury's ultimate fin yes i think that the issue of whether it was marginal or not it is it's up there besides the fact that we could not present the evidence is the record there is multiple cross examinations of the government experts and witnesses that we were not able to carry out the court ruled that it would be a mile ation of their eliminate motion that prevented the jury from receiving the information that we wanted from their experts or their witnesses to be able to make a determination that there was no intent that there was no knowledge that there was a reality obligations know let's go to mother in cortez she stated anybody that has knowledge has to pass it on it's their obligation and mr weakness cross examination we made a question which the government well i don't remember the question right now i know that we went to sidebar and the judge ruled it was abolished will be limited and we were not able to ask the question i doubt moment we end the cross because that was what we were going with it hoping the judge would allow  doing it and when he was asked about the specific answers to this one thousand and thirty two form the agent did not tell him that answering no was a mistake that he needed to answer yes and then explain and that happened that same answer goes to exhibits two thousand and twenty two and twenty eight from the government where in stay said volunteer work he said no i didn't do any volunteer work because i didn't get paid it and instead of corrected him to say no you have to report volunteer work even if you don't get paid for it agent that was performing the on the cover work said what put that there and let it go and never explained to him that even volunteer work that the jury never got our side of the story as it they could have and should have received that because we were hand tied with the judge's ruling as to the issue of intent and knowledge and  materiality all of which are central to the elements of this case and if we cannot be at the same par with the government it gives them a very unfair advantage in this trial we did not call witnesses because we follow up on that very briefly but but you said earlier that you proffered no evidence that would tend to show that o w c p got the true facts in front of them so all our point is that you don't loose you don't see it because it was never presented because the judge prevented us from presenting it but you said i didn't you said you didn't have any evidence that o w c p ever did get the true facts