sir my name is jim o'brien i'm here today on behalf of the defendant appellant sandra bart they please the court this case involves my client as i mentioned sander bart who's a seven year old grandmother without prior history of any trouble of any kind of the law who sits in federal prison on a sixteen month sentence for conspiring with a minnesota farmer who she never met concerning operations at a farm she's never been to related to his  false declarations to the government on visa paperwork that she did not see or participate in preparing it's being filed the entire it's a conspiracy case of course and the entire dominican republic native who was a worker for at the time of her operations in cleveland ohio the lawn service they put together allegedly a plan dated ten thirteen zero eight so called project labor list o in which dominican republic workers were recruited to come to american work now the conspiracy involved in the false tech aeration were made by mr spy hill the minnesota farmer sinfully minnesota these are frauds in violation of eighteen u s c section three seventy one fraud in foreign labor contracting section thirteen forty nine of title eighteen in the mail and wire fraud committed connected to this mission of these applications he had his own immigration agent woman named leslie downs of southern impact who did not work for sandra bard who was not affiliated in any way with standard mart mr spyhole it was an experienced importer of labor  from abroad he had used mexican labor prior to his involvement with the dominican zz and he admitted that his mexicans were probably illegal he also had women from moldavia in the ukraine selling fruit fruit stands  versus broche nine hundred eighty nine has told us that the precise nature and extent of a conspiracy must be determined by reference to the agreement which in braces and defines its objects the labor list or the plan that was the centerpiece of the government's conspiracy case was exhibit forty three in this proceeding it was discussed in opening the centerpiece of the opening statement page twenty nine of the transcript counsel for the government said that well we don't have the records not clear as to when he himself would have started charging he was charging aside the court obviously has read the briefs mr cabrera was charging he and his family in the dominican republic were charging these workers  known anybody else a recruiting fee of twelve hundred approximately twelve hundred dollars sign up the the record is clear standard mark never knew about that i believe counsel for the government has admitted she did they have no evidence that she knew about them you  all of them were discussed none of them are illegal in connection with the visa applications here and by the way this is h two a visa applications for foreign workers who will be working in an agricultural e mail and internet access completely permissible item three was for personal expenses permissible number four was help with sources in the us not connected to recruitment permissable number five was r i believe it section six five twenty c f r section six five five point two zero for each to be six five five point one two two for age two a so the regulate the regs are the basis of the law in question here and the the fact is that in two thousand and eight the prevailing interpretation from the department of labor was that the travel expenses of h two a workers could be charged back to those workers in that site it's in our brief obviously but the seventy three fed reg federal register at seven eight zero three nine so in any  increase their wages in accordance with the prevailing wage again it is farm operations in minnesota but a primary feature of the government's case of course was this airfare from the dominican to minnesota and back which was being charged to the workers by hill well the problem with the case was that the conspiracy did not not only disc not only not discuss airfare this labor list of document from ten thirteen zero eight did not discuss airfare in was as prescribed in the regulations i was going to ask you give me a case that well your honor and i think that the the case is that in order for swi hold of violate the law in two thousand have to prove to the jury might have might have had to persuade the court what the law well i don't think the but that was done and i can't tell from your brief whether you're arguing that there was an error of law by the court now obviously and knowing violation is different you know they've got to prove that but you're going back and saying wait a minute the government didn't put the regs in and it didn't prove to the jury what the regs meant i say you got to give me a you got to give me a citation that says the government had to do that we are and i think that i don't have a case that i cited i think it's our position is it's axiomatic that that it's incumbent upon the government to produce an accurate accounting of the law at the time t second issue we've appealed is the error we believe that occurred when the district court abused its discretion denying a motion for new trial for failure allow the defendant to conduct an evidentiary hearing after a jury later became the foreman of the jury announced guilty to the other jurors before the case was instructed and submitted this trial commenced in august one of two thousand and sixteen the government rested on august for after the government rested but before the instructions and before the case was submitted a u s attorney stepped down an elevator and heard overheard one of the jurors who we believe later became the foreman announced to other jurors that the defendant was  s to discover if there's any prejudice the trial judge in this matter rejected that requests in the kind of do so the trial judge indicated that it was unknown what was meant he questioned whether there had been an obligation to even bring this matter up the trial court mention that he did not know what this cured meant that it was uncertain and i think that the quote was the court said it could have been a hundred thousand things the court  proposed to curative instruction defense counsel rejected that and the court indicated that it would overrule that the defense counsel's request for a opportunity to inquire of the jurors and get to the bottom of the bias the trial judge said he did not want to make a big deal out of it he did not want to make another trial out of it and rejected her request the legal argument is a follows the just say i'm not sure what was said and what was met because the determination that what was said reflected premature deliberation requires a remedy of some kind but the majority didn't go there majority said it doesn't it doesn't matter what was meant so please that you've got to have prejudice when the when there's no external influence on the jury right each judge it's true except the point about bringing up smith versus philip you don't have the opportunity to show what would you what would you have asked the juror would you have would you say that the hearing had to include the jury's closing argument and the instructions they did not yet have made his mind was made up he's communicated to the ears of the jurors in it but no one wants to know why that's not consistent with the sixth amendment that's not consistent with due process to just close the eyes cover the ears and say we don't want to know  the circuit because no one objected in the trial court you can't you can't go around trying to overturn a verdict when the defense counsel doesn't make a point of the issue otherwise every case would be subject to a review ok i'm out of time appreciate it i have reserved some time for a bo good morning my name is mandel i represent the united states and served as trial counsel for the government in the case of the united states versus sandra bart i'll start with the juror communication issues and that's where we left off i wanted to make one point of factual clarification both the reply brief and the representation made by defense counsel here today seems to suggest that the government has conceded or that it's clear that the person who made the comment became the four person of the jury that's actually not supported by the record there's an equal chance based on the record that either the person who said the word guilty became the four person of the jury or an equal chance that that was the i actually don't  court to abuse its discretion based on whether or not this person ultimately became the foreperson the other individual who may have possibly said the word guilty was dismissed from the jury for medical reasons before deliberation and that case that are important here and that make it clear that this case is even less serious conduct there's even less of a chance that an evidentiary hearing was warranted here the first is that in the the juror made a comment the word guilty according to the dissent before hearing all of the evidence this was four days into a nine day trial in the middle of the government's presentation of the case before the defense had any chance to prevent any evidence and the dissenting opinion characterized this as an improper burden shifting to the defendant that prejudice the defendant that's not the case here if the juror who said guilty had made up his mind when he said that word he did so after both the government and the defense presented their evidence and rested in this case the jury actually was already aware of the elements of the charge defenses because the district court summarized those elements in preliminary instructions and therefore it's the government's position that there was no prejudice to ms bart because there was no improper shifting of the burden the second distinction between  no your honor i am i'm just making the distinction between this case and the  defense rested and so there wasn't an improper burden shift to the defense they had already presented all of their  evidence the the second distinction between this case and the case is that the curative instruction that was given in that case was actually in a row instruction the curative instruction implied to the jurors that it was ok if they came to their own personal decision before hearing all of the evidence in the case so long as they didn't share that belief with any of their other jurors on the jury with them  it did not happen here the instruction here given by the trial court was proper he indicated that he understood there may have been some discussion outside of the courtroom in advance of the appropriate time for deliberations and instructed them that they were not supposed to do that so it's the government's position that the geonic which which still you know says that it was proper for a curative instruction to be given actually had more serious conduct or potential issues than this case the defense counsel also noted that in that case there's a difference because the defense lawyer didn't object during trial and that's true and so there was a different standard applied by this court in that case however in that opinion the court still says that the judge acted within his broad discretion in giving the curative describe instruction which implies that that case would have also satisfied the abuse of discretion standard in this case the trial was handled by a very experienced trial court it's clear from the record of that conference regarding the juror communication that the district court's clerk had reviewed the relevant case law there was some exchange between the judge and the clerk about the relevant case law it's clear that the judge considered the again yes your honor there's a point at which he asks his clerk you know you've reviewed the case law we have any potential language for a curative instruction in those cases and both myself and the clerk description a description of what the government did here if the government disagrees that the entire conspiracy is wrapped up in this october two thousand and eight business plan we view the business plan as just one document not relate to the violation of regulations this is a case about a conspiracy to commit fraud and in the government's view it doesn't matter even if they technically violated the regulations although both mr because the conspiracy is commit fraud on these forms that were submitted to the government the e t a ninety one forty two and the i want twenty nine all three of the counts relate to the fraudulent statements made in those documents to the government it's relevant to the research but whether it be right but it's the violation of the regulation themselves is not what the case about the case is about those fraudulent statements that were made on those forms saying i'm going to pay the adverse wage and i sign my name under penalty of perjury saying that that's what i'm going to do and then this state of the it would have in other words the forms were saying we're requiring certification the case here that you've you said forget whether whether we violated the regs that wasn't our case the forms are consistent with the regulations and we have a but we have a ruling from the district  says were instructions regarding the regs and the forms consistent with the testimony from the government employees about what the regulations were was consistent with what the form said in terms of actually admitting the form the government did that they were summarized in government exhibit eighty one and they were all of the forms admitted at trial they set forth the at the stations made by the defendant sfi hill a witness from the department of labor mr tout summarize that exhibit for the jury and as the deal well witness she also showed the jury exactly where on those forms those at the stations appeared a witness from u s c i asked eric potter showed the jury exactly where bad for they committed all those crimes that the jury convicted of the purpose the purpose of each of the conspiracy and the underlying facts is the same for each of those three counts of the indictment  if those questions had been answered differently for example if employer checks the box saying no i'm not paying the adverse wage then they would have rejected that application completely incorrect and that was never presented to the jury either the case cited by the defense castellanos case and the deal while interpretation that they attached as an addendum to their to do strictly with the fair labor standards act and the department of labor's assessment of whether the fair labor standards act requires these you know for  employer to pay travel expenses that's an entirely separate law from what they each visa regulations require and there's case the defendant violated what what well it's not the regulations but the the way the law floored it out who can pay what of the expense of immigration work that's one piece of it but but in this case the form also john signs his name saying i will pay this worker the adverse wage and so when he agrees with sandra bart that he's not going to do that he's committing fraud on those forms ms downes testified that sandra bart spoke with her regularly about filling out these for you know filling out the forms for mr hill she was involved with the document prepared for mr speaker hill  they agreed to commit this fraud upon the government by saying yes we're going to attest that we're going to pay the adverse wage attests that we're going to forbid any foreign labor seeking receiving payments from workers that we're going to provide transportation for the workers that we've not received any kinds of payments including kickbacks or concessions those were all we're going to swear to the government that we're doing all of those things that we can get permission to bring in these workers when the plan was to not do those things that is the basis of the of the conspiracy of the fraud on the government mr steele and mr cabrera both admitted that they committed that fraud on the government and specifically testified that they agreed with ms bart to do so they also you know there was in abundance of documentation opening up the emotional appeal but i guess you've tried to dissipate that yeah i don't believe it's relevant they they testified about being in very close contact it certainly when they decided to retaliate against the employees they were sending those documents back and forth to each other and making notes on them they were in close contact always thank you  points on the jury trial issue i would just want to read from quote a legitimate ok read it or we will read it that's fine but i want to do you deny course called for a manner which comes to the attention of trial judge which may affect impartiality of part of jurors to command careful attention and in that case since the defense counsel had not raised an issue  careful consideration was given there was no discussion no request to talk to a juror unlike the instant case where the issue was raised the court had to you in ordered follow supreme court's guidance conduct a hearing to determine whether there was a possibility of bias on the issue of the conspiracy i would just like to make  a clear fine point hopefully the count in the instruction that was submitted the jury for both visa fraud and fraud in labor contract to record a false statement under penalty of perjury with knowledge of the statement was untrue on an application required by the laws or immigration regulations the end of the statement was material of course those applications were filled out by mr spyho now the reason if the if the court was so much confused about exactly what the government was calling a conspiracy the reason is had the government taken the position that sand living in cleveland ohio had no involvement them in a sop aeration was somehow for no reason directing his operations in minnesota telling him what to do that case would have gone nowhere the government had had to create a fiction the conspiracy was allegedly formed in a way it was not did not have an illegal purpose i just would also like to finally point out that christian truck the government witness put on the primary witness to the garda what these requirements were testified that the h two a requirements have remained the same for decades quote unquote that was a pete lee false statement it misled the jury a judge looking to ask if we were contending if it was  the case is submitted and we will take it under consideration