molly there are certain aspects of that testimony which should have been excluded either based on hearsay or based on relevance and mr do are suffered prejudice as a result of the admission into evidence of those aspects of the certainly there were two documents that were from the west african education council which were improperly admitted both as a result of hearsay and improper authentication and finally the testimony of carolyn beer of flooring should have been excluded or at least subject to a daubert hearing and that if he attempted to gain asylum and state that he was from the gambia in all likelihood according to the government that application would have been denied on the other hand  on as a result of his membership in the moroccan tribe would have in the mind of the jury and prejudice because as a result of that your say they would find that he was less likely to be sierra leone point you just indicated that this would strengthen the government's case or would we tend to show that he was from was not from sierra leone that was from the gambia ok if this evidence isn't there what's the state of evidence from other stores other evidence that was admitted in the trial if the answer that question turns out to be there was all sorts of other evidence to demonstrate he was from the gambia you still have the remaining part of the question what's the prejudice from this isn't the simply harmless they are so as you w issues that like you go on to identify why it is you think that the remaining evidence wasn't sufficient to establish to the to the points the gun was trying to make in terms of the motive evidence i don't know that there was any other motive evidence other words in terms of a jury saying what difference would it make whether it's from the county or from sierra leone i think absent that specific testimony from agent smalley i don't think the jury regard to the significance of the tribal affiliation there was other evidence at trial admittedly that the government offered to tribal affiliation evidence as it would with motive evidence the final aspect of agents of all these testimonies with regard to the number of asylum applications relatively between the  that the government hoped for there was that if there are a greater number of asylum applications that a significant number of those are likely to be fraudulent applications there was absolutely no evidence to support this particular conclusion to the government argue that point in closing argument that makes that point because frankly i have trouble figuring out what what this could relate to well i i was trying to figure that out myself the trial your honor and that was that certainly could occur to the jury and if not quite frankly i can't imagine how judge roll bar could have been that it was relevant rule that precludes the improper joinder of counsel and the three aspects of that rule which are not present here are either offenses which are the same or similar character offenses indictment we're not talking about an analysis that involves the showing of prejudice here if we look at the indictments with regard to the count involving the fraud with regard to immigration documents count fi which if committed would have been completed in december of two thousand count six the conspiracy to commit marriage fraud is an offense which would have been according to the overt acts in the indictment  in year two thousand and four the action really not of the same or similar character if you look at the terms of the indictment as to the conspiracy to commit marriage fraud the manner of means manner find a woman for myself not to say there at all that that necessarily implies a fraudulent marriage and in addition we know that one cannot conspire with a government informant which mr coleman plainly was i would suggest that the consideration of that conversation as to count six is inappropriate for that reason  the proof of the elements of the fraud with regard to immigration documents especially is that there were certain statements in the pride there is absolutely nothing that would affect the proof that those statements were materially untrue the government in its brief has suggested that there is an evidentiary overlap by saying all but there are two themes going on at trial they weren't into insistent defenses in the sense that one required the proof of a and the other part of the proof of not being it wasn't like that it was more that  the themes in the two defenses were very different and one with regard to friday with regard to immigration documents the defense argued that the i found it difficult to combine both of those into one cohesive trial argument that i remember as i was preparing the case for trial it's  same time on the same table but even if i told the dinner guest before and after the meal that and telling me whether you know whether or not you've liked or been assessing whether you like each dish pretend that you were eating each one separately and not that you were eating them together and you can tell me that at dinner guest is presumed to follow the dictates of the chef and and would  best case time jointer your honor the best argument jointer is in my view the overlap of the evidence and the fact that mr coleman and mr job are to would have testified to both of the count that you can see that they are of the same or similar character because they relate to immigration fraud or issues that relate to immigration fraud and that is that is i think what what is the one of the dominant position of one of those bills doesn't seem to be very close to four years support with different from related offenses and i like the court have not been able to find a case that that that would help us through this analysis and therefore i think it's useful just simply to look at the facts of this case or the facts of the indictment and to determine based on just the commonsense application of that phrase are these crimes of the same or similar character and i would submit that in the government's view they are that asylum fraud and issues pertaining to asylum fraud would be of a similar character to issues pertaining to conspiring to assist people to remain in the united states unlawfully that that to commit fraud related to immigration they are they are both of a piece and i think when you the concern as i understand it with improper joinder is why it's meant there are two concerns that i'm aware of judicial economy and prejudice and when you view these cases and look at any case that discusses improper gender they want to know is this jury going to be prejudiced by hearing that  better position to defend the case if he doesn't have the two unrelated violations there together if a man just comes in and says you know i'm charged with asylum fraud and i don't read the joined at trial is arguably prejudicial to a defendant because they have to respond and address and have the jury hear evidence of more than one crime that they committed so the question is not whether it's prejudicial but whether it's equipotential and as i tried to break this case down both at the trial level and as i've reviewed this case on the whole it level i was asking myself if these cases were tried separately number one what is the strengths the strength of the government's evidence as to each charge and i will take those now asked to the asylum for the government's evidence was strong we had a an asylum application that had t patently bogus documents attached to a death certificate in which mr jaworski said i would like asylum in this case in this country in the united states and as proof of my country of origin sierra leone i'm offering a death certificate showing that i died in  seventy nine i think most juries that will look at that will say that is ridiculous on top of that he offered a sierra leone identity card which in itself was offered as a legitimate government issued identity card from the country of sierra leone on which it asked for a thumb print t h u m p thumbprint instead of an actual correctly spelled thumbprint so first of all the two documents that he supported that he offered in support of his asylum application were happily bogus but on top of that we had expert testimony that showed in greater detail why they were bogus on top of that we had a man named s a job r to who said i know i went to high school with him in the gambia he's not from sierra leone i actually knew him and we were good friends for many years in the gambia and on top of that we had school records showing that mr girard was from the gambia we had school transfer from the very school that as a job artist said he had attended with a defendant and those school records showed mohammad you are they showed his grades they show the approximate time that he attended school as the same time that mr joe barked it was explained so the asylum fraud claim was very strong in itself separating that from the conspiracy to commit immigration fraud with another individual we have the defendant on tape in new tape transcripts which were submitted to the jury the tapes in the transcripts saying where the defendant listing an undercover f b i cooperate or asking him to engage in immigration fraud that in itself was strong evidence as well when you have a defendant soliciting a crime on tape so taking the two crimes separately and asking the jury to consider them separately i would submit it was easy for them to do and easy for them to decide these issues in these crimes separately now the other question then is if they were if these cases  understand this argument if you're not really contesting the assertion by the defendant that there is some inconsistency in the defenses or some difficulty in asserting that two different offenses the same time you're basically saying the evidence is overwhelming on each of them so if the inconsistency isn't the problem that is the that is my main argument on this issue your honor yes i also try to district to determine if these cases were tried separately let's assume the trial judge said i'm going to order these cases to be tried separately the question i asked myself was could i then present some of this evidence in an overlapping way would get some of this evidence as to either count be admissible anyway pursuant to four a four b and the answer that i reached with yes it could particularly when we consider peter kohlmann let's assume that the asylum fraud case is taken and try first and separately i would call peter calling as a witness peter kohlmann is the person who was on tape who wore the wire on the immigration counts peter kohlmann i would attend the call if permitted as a witness on the asylum fraud because the defending this claiming i'm from sierra leone peter kohlmann would come in and testify that i knew the defendant i met him on numerous occasions and he admitted to me he's not from sierra leone he's from the gambia and i would as i think would i would need to do show some history and background of their relationship then i would submit that peter kohlmann i would believe would be permitted to testify and to introduce in evidence the recording where the defendant saying i'm having trouble with my immigration papers and i would be permitted i think to have peter kohlmann in those those tapes that particular conversation and made it into evidence in a separate asylum fraud trial the question then becomes is entrapment an issue was entrapment raised in some way and i don't know in a separate trial if it would be or not but let's assume because that's one of the arguments being suggested or that was suggested then would we be able to introduce other evidence about past conversations between peter kohlmann and the defendant i would like to think that i could to show that entrapment was not in fact a viable defense and therefore i would submit that these prior recorded conversations where the defendant is engaged in seeking to commit immigration fraud those i believe with the also admitted help me for myself that additional conversation would also be admissible at the conspiracy trial because it shows the nature and extent of their relationship it is an additional recorded conversation between the cooperate her and the defendant the defense presentation and that again in essence to summarize that testimony agent smalley was attempting to answer a question related to him and i think counsel is correct in that that he was being asked why would someone claim to be from sierra leone if in fact they were from the gambia and how in the world would that help their asylum process and that was something that a was permitted to testify to is somebody experienced in these matters experienced in asylum fraud investigations and it's something that the jury would not necessarily know unless they had somebody of his background explain it to them i fortunately i think many americans aren't as familiar with the minutia of many countries around the world began be in sierra leone being two of them and i think the jury would find it helpful to understand what are the conditions in these separate countries that lead an individual to being an immigration agent since one nine hundred eighty eight that he had investigated it quoting in the record several dozen cases of asylum from that he processed approximately eighteen thousand refugee applications and he attempted explain that refugee applications or requests for being a refugee and asylum applications are very similar but it just depends on what country the individuals in when they make that application and he was required to investigate those eighteen thousand plus refugee applications and so in he explained that when he was determining or investigating a case of fraud and or not somebody is being truthful or being fraudulent it helps as an investigator to understand what are the conditions in the country that they are seeking asylum or refugee status from and so that is an area that he explores when he is investigating cases like this in his expressed concern i have is basically he's h expertise appears to be i'm an expert in knowing when somebody has violated the statute or has committed immigration fraud and and it seems to me if you can offer an expert with that bro i guess a mandate you've got the door wide open to most any kind of hearsay or secondary source just by saying well this guy relates relies upon it me i can't entirely put my finger on what is bothering me here but it seems to me this is a wide open door for anything to come in whether or not he really knows about it or not well i i don't think that it's wide open insofar as that he could testify about countries that have nothing to do with th you gather everything up and he can use anything he wants to as an expert and you can bring in anything that might otherwise not be admissible and offered up through an expert because his expertise is exactly the criminal offense that's being done a five and prosecuted as well  is in many cases and i attempted to cite some of them there are in law enforcement officers are asked to talk about background and motive and and other areas that are gang insignia for example and how do those know anything about sierra leone or the gambia except for what he reads in the state department or i guess to draw out that the gang insignia argument or just discussion for a moment when you think when i think about any officer that i know that knows you know how when somebody you know holds up gang signs how do they know what that is well they know because they've asked gang members numerous times in the past you know what do those mean it's they're basically repeating hearsay arguably because they've asked a number of people over  enough period of time to explain them and now they know what they mean agent smally based on his experience in investigating asylum claims is asked now what do you look for when you are determining what whether somebody's committed a style of product while i work for the country conditions in the country that they are claiming to be from and in the country that i believe that they are actually from and those that help me to determine if an asylum application i motive for somebody to do this otherwise it makes it what i think the jury would it would make no sense to them to so to have an individual in front of them saying well i'm from sierra leone the government saying he's from sierra leone excuse me he's from gambia he's claiming to be from sierra leone the jury's going to say well why would he do why would he do that why would he claimed to be from one country when he's actually from another unless there is some underlying reason to do that and that underlying reason is the conditions of the country that is that  to gain admission into this into the united states congress my time is almost up i thank you for your attention unless there are specific questions i will leave it to the for its judgment thank you very much of a number of recorded conversations of meetings involving mr juarez mr coleman a gentleman named who was the person who was seeking the bride and on one occasion  the woman herself that mr thomas testimony in that regard was basically to lay a foundation for those recordings as well as to explain the preliminary conversations he had with m in that regard the evidence that mr coleman would have offered on the asylum for the application was a conversation that he had long before that with mr jawad a simple statement attributed to mr de wire that he was in fact mr at a party and listed you are a suggested that the easiest way was to get married not to even suggest marriage frights and wondering whether that would even be admissible i see my time is up but