yes please may it please the court on behalf of the appellant david polos i reserve two minutes of time david polo so was a long time decorated dea agent whose career and reputation were destroyed by this prosecution but because of the government's case hangs on to questions that were fundamentally ambiguous the counts of conviction must be reversed a question is fundamentally ambiguous as a matter of law if it has no single meaning with which people of ordinary intellect would agree that work is that the word that's your honor we believe the term employment activities combined with examples that were contradictory and themselves vague create a fundamentally ambiguous question so it's not limited to the word work but it's the question and the confusing ambiguous examples and to this section itself thirteen a that is which is quoted on page ten of our opening brief begins with a vague instruction itself list all employment act these but critically people were very intellect could arrive at different definitions of that very term it could be a person's trade or profession it could be an occupation with as all of this it does say you have income from various sources all not just some all i think of a question as hard is that if a question asks an applicant to list all of your an income for example and then make sure your examples include your favorite baseball team i think the question might become fundamentally ambiguous because there are examples that contradict the very question i took in that part of the argument rested on the comparison between section thirteen and section twenty so i that's right your hon talk about that section twenty asks a much more direct question which is to list foreign financial interests among other things and i think that really gets to the heart perhaps of what the government was trying to ask we don't know the answer to that of course but if the government wanted to know about investments section twenty is a good example of how they could ask that precise question and have a answer that might be susceptible to a one thousand and one charge critically nowhere on the form even in section twenty doesn't ask about  so at a certain point i mean there was there was some evidence that he viewed his work and would come and do self employment what is self employment your honor again i think self employment couldn't involve owning a business for example but it wouldn't include where you are a formal lender to a business and when you're in the business what he was doing is not just a formal lender so maybe if i'm a path passive investor own thirty percent of the stock of a small company and do nothing else then that's not working but that is not in fact what he was doing so now we have to see the question might you know and i think it still ambiguous because of the contradictory examples the the question itself asked the applicant to list employment activities and one of those examples was self employment which i think some people would say contradicts the idea of of sort of this side job that everyone self employment means so if i i i can't do this but if you have are employed by a law firm but you also work on the side doing something else but it's your own small business you do consulting on the side is that self employment i think that is self employment your own i mean i think it was about that question again the question asked for employment activities and list as an example self employment which employment activities according to some definitions some reasonable people might say it's your trade your profession so helping a friend at a bar on the side even though you're an all day all night say he himself perceived as work he had an interest in the club so i mean the fact that he's an investor i get but but he's not a passive investor judges lawyers just questions about their so he's he's doing he's probably more but the situation he's created for himself he's invested in now and now he's always become very active very active in helping run the business he's kind of stepped over from the fellow who was the from the bank and now he's if i can answer that answer judge wesley this goes a little bit to something that judge lawyer mentioned too but the question of fundamental ambiguity has to be resolved sort of on whether the question itself makes it clear what the questioner is asking what the answer is asking so although an example like johnson arson is relatively clear burglar extortion are relatively clear but combined as a whole this section is void for vagueness because although the individual examples might be clear when you put them together when you add the residual clause in that case when you have the blanket instruction to list employment to all and point activities in this case you get the ambiguity because of the contradictory  addressed the same question in two different ways your honor addressed the question of income and your honor address the question itself employment if you read light and lanham or as the legal framework in which the question must be judged we know that terms as simple as the term you can be ambiguous here if you read the question that was posed in the section and you read it in its entirety it's the kind of question that no judge in any court would ever sustain as not being confusing misleading and adequate an improperly focused if the question your honor was what was the source of all of your income then it would be clear and unambiguous that's not the question if the question was do you have any gainful employment self employment that generates income to you by ten ninety nine or w two that would not be ambiguous but that's not the question the question i'm sorry not ambiguity so you can have an ambiguous question the test is whether it's fundamentally the real test is whether it's fundamentally ambiguous and understood by the person responding that he in fact was answering falsely the question was answered here truthfully no one doubts that the question the government raises and makes criminal here is that there were other things that if you stretch the definition might be included one way or the other and his failure to include them becomes the false statement it's not that he said no i didn't work at a bar he didn't  say i had these three employments to which were untrue you have to if you if you read lot of more clearly says it's those like you have to look at the individual responding to the question the easiest way to do that here is compare the answers given by mr glover to the testimony of barbara roach i think it's a three thirty six is where it starts barbara roche with a college degree when with a high  responds not yes not no but probably it's appends upon the circumstances then entire line of cross examination shows that someone who is trained educated and who is the self described at page three thirty four the transcript is not really clear as to whether some of the circumstances of self employment which the court posed in fact are covered by the question the question goes on after asking about quote employment activities not employment employment activities what does that mean if my normal activity as a lawyer practicing a law firm is to write briefs or arguments or letter o documents if i decide to write an insert on facebook and my performing a quote employment activity writing if i have a business such as e bay and i sell one two three at what point is the line drawn out i become quote self employed and if i make no money at it no money out of it and i quote self employed and i turn your attention briefly to the conspiracy charge yes can you tell me you argue that there was a failure of sufficiency on the conspiracy could you make that argument here yes very simply rhonda there is absolutely no evidence of any agreement between the two of them with regards to i reference long before he had the bar id die before he is correct and listed other people as well but that that's his that's correct the government chose to give you and i mean he had other references as well that's correct and he did not select the reference that the government chose to query is that the sum and substance of the conspiracy challenge well i think that's the sum and substance of the government's evidence on conspiracy so beyond a reasonable doubt i is going to be queried and they've used each other as references for year somehow there was some connection out or about answered the same question the same way they spent countless hours at a bar together and exchanged hundreds of emails with each other on a regular basis so regular contact mutual interests and not reporting it all appropriate inferences to be drawn are no if the government had produced e mails or messages indicating anything about the eighty six because no one ever says let's conspire to kill jones and just that's it's almost always circumstantial and glover doesn't list  his wife's business and then when he's told a list of the list that but he doesn't list this seems curious on your honor when he's queried about it he not only identifies the puppy spa his wife's business but in the notation this is also an indication that he has another investment there is a question about income from his tax return no one ever queries as to what side investment where is the fact that they didn't ask it doesn't mean that he didn't lie on the on the form of the wasn't willfully withholding information about the fact it was working if he considers an investment and he responds in identifies that there be there or he can be an investor and or work someplace in this on the fact that he lists it as an investment doesn't of of listing it or listing in a that doesn't absolve me answering truthfully the question about work that's correct but the question was not asked about investment that's your question this is a follow up on just to go back to section thirteen because i'm trying to understand your argument let's suppose that your client was not an analysis of and agent employed by the d a and worked or had an interest in this club and did everything that the evidence showed he did and received no income and received no income and he was asked by a friend you know what do you do what's your what's your job or are you self employed your view is that that would be ambiguous  fundamentally no it was the last for that question would be no because if you look at the testimony in this case and i believe it was in the government brief that what he did at the place the place had full time employees had managers on all the ships and they would answer or he would answer questions that could not be answered by a manager another way of saying had to be answered by an owner let's suppose that you had a financial stake and the business and so you got some something out of it and you were there often on giving advice consulting and so on and your neighbor you don't know what workers could be raking leaves the log is a well i know what i'm raking leaves in my lawn that's work but i don't think i listed on laos phase well would you do if you did if your neighbor iran or if you did it for your neighbor or you did your neighbor want sustain a criminal charge thank you thank you very much  sure so it's absolutely right that the question of fundamental ambiguity as distinct from ordinary ambiguity or arguable bigotry is a question of law review didn't and then the sufficiency of the evidence is analyzed in light of whether it meets that legal standard so yes if of course if the court found that all these questions were fundamentally ambiguous they weren't just ambiguous they're fundamentally so then the evidence would not be sufficient to prove a false statement because there's no way of giving a false statement to such a question but this these questions are really worlds apart from the types of questions that the court has found to be fundamentally ambiguous tell me what self employment well right so we think that  paradigm case of self employment the clearest case of self employment is running a business that want to own smokes to the people who would say that they are self employed actually have some form of business in the thirty percent owner of  i'll try to answer that but let me just indicate i think that by by moving to this specific case we're talking about an edge case and every word is going to have an edge case for a definition a test for trying to assess  determining whether a question is fundamentally and the u s case well i think that when you're determining whether request it's fundamentally ambiguous you're determining whether there's any nonet cases whether there are court cases whether there's a core meaning a minority ownership stake share and some contact with the business that doesn't amount to work full time or part time work paid or unpaid or that doesn't feel like a job or have the indicia of we talk about work you do shifts you you are involved in personnel decisions that would would not qualify but the jury was amply able to conclude that here  fundamentally ambiguous question that there might be ambiguity at the edge but that there's a core meaning and so it's not fundamentally ambiguous because you can come up with an edge case doesn't mean that a question is fundamentally ambiguous that there's no intellig core every fundamental ambiguity case that i'm aware of there the issue is and usually the court actually will states it could mean this could mean that there are two meanings there's no way of choosing between those meanings that that's not this case and that's not other cases that have sustained questions from fundamental ambiguity challenges including questions that obviously have edge cases like is there anything in your background that could embarrass the president there are obviously edge cases about that but there's a core and so that wasn't fundamentally ambiguous is there anything in your these other sort of what's more general background check cases in the kerik and cisneros cases those aren't fundamental ambiguities so then you get to the point where any ambiguity is for the jury was this an edge case was the evidence sufficient to show to allow the jury to conclude that this was in the core meaning but these questions they're really very clear they're very imprecise and there's there's no issue of well could be one thing could be the other we can't choose i'd like to address the conspiracy issue thank you so in in assessing the evidence of the conspiracy it's important to start with the defendant's motive both of them had identical motive to conspire as they had to make the false statements in the first place because the motive is not an element of conspiracy no but it's a factor that the jury can look at in deter in explaining the actions that they took so the defendants took a number of actions in concert at every time they were called upon to disclose the club they didn't and every time they were called upon to give an answer that might lead to the disclosure of the club they gave an answer that didn't now it's possible on one view of that evidence a jury might conclude that those are a number of coincidences but it's also possible by looking to the circumstances including the government is equally consistent with this is of guilt and the hypothesis of innocence then yes that's that's insufficient evidence but viewed in the light most favorable to the government there is a very strong case of agreement here what you have is first of all both of these defendants knew that if either of them gave the game away they would themselves be at risk and so their own work in making the false statements would be thwarted if the other one didn't make the false statements under those circumstances you would expect them to actually have form some mutual understanding that the other one wasn't going to give the game away but then but there's more than that in what we have is that going glover lists polos as a reference and that act of course on its own is can be an innocent act but you can tell that it's him before you even know the club right and in that in those circumstances it was innocent but  as well right but it's not the listing that is the conspiratorial act the listing in these circumstances the listing where a question the wrong question to polish the wrong answer from polo's could give away glover that shows that there was conspiratorial agreement because he was comfortable continuing to list polos even when he knew that if polos answered the questions truthfully glover's own work in making these false statements those crimes would be exposed and with that knowledge he was still somehow comfortable listing polo says his reference and in fact that confidence was well placed because polos gave a an answer that you know is most charitably described as misleading references that was purely the government's choice if this was a conspiracy it was pretty fresh and i wouldn't put it that way your honor i think that repeat  individuals like polis and glover who've been investigated multiple times are aware that although investigators might not actually still follow up on every single on every single end of individual that for a top secret level security clearance there is a thorough background investigation and that they understand that anyone who they less likelihood that they will yes yes and sure in the polls would have been interviewed but not listing it right but then you'd have to l someone else but i'm saying i'm saying if he if he wasn't sure the polls wasn't going to get him he would never have listed polls because of at least that increase the possibility that polls would be believe it was every five years during that time period that one who knew nothing that would have a better plan and it's possible that some of the other people who he listed were that but you know when you go through the form the whole forms were in evidence and there's a number of people that you have to list and you can't list anyone twice so and and if you list someone and they don't give a satisfactory answer the investigators are going to look for more people so you actually have a semi limited universe of people who have the right amount of knowledge about the other references who are listed was there any evidence about them and their knowledge will lack of knowledge about the the only evidence that there was was christopher schultz a defense witness gave actually similarly similar answer with respect to glenn glover but and on cross examination he was very intensively challenge for a number of issues with his credibility but it included that he had previously told the f b i that he used his judgment not to mention the club in that answer that his wife was an employee of the club he was he was a  d of glover and he also had serious issues with his honesty that that involved him getting disbarred but but apart from that the other individuals that polo's and glover listed we just don't know what they knew or didn't know but what we do know is that glover knew polos knew polos didn't know and when asked polos gave the answer that would mislead the investigator and conceal glover glover's desire to conceal he sent a text message to joseph ben s another of the government witnesses and the manager of the club saying that he's coming in with a street state trooper and saying that they don't know that i own the club that very clearly that heads up to that he's bringing a guest along that he's going to sort of text in advance the manager to make sure that the manager doesn't doesn't breathe a word to these new state troopers that he owns the club shows his intent to conceal  clear that after describing the puppy spa after going over every question she asked him directly is there anything else he said no so whatever he may have said or not said about the investment he  that's right you know so what one thing is he actually did admit to and discuss that in his background in interview with the investigator the other is obviously there's not as the same record of what his involvement was in it and you know we the it would be a much more complicated trial i think that the false statement is made both when the form is submitted and then a final point if i may the defendant glover's counsel said that the statements were literally true but there's a certification that each of honor i'll start with the conspiracy count the government of course wants to start with motive because i think that's what they did at trial and that was really where their strongest evidence was that there was ample evidence of motive but of course this is not conspiracy of course as your honor ha noted that's not enough and here the government's evidence simply showed either parallel conduct or it showed two people acting the way they had done five years prior during the last security investigation and the questions posed to them to mr polos in the background investigation was about free time and that question prompts questions of course about free time and not about working at a club or conduct at a club so the government's evidence here really does cut both ways at the very most and does not establish beyond a reasonable doubt that there was a conspiracy false statements charges and this comes up in the context of motions to sever which is our quote of course a different standard but false statements are sort of the classic case of individual conduct sort of personal conduct and so the government really does have an uphill battle here and showing two acts of personal conduct somehow created a conspiracy particularly when it's the same thing that they don't have as good either way i have evidence to the government's favor now after the verdict but still that's right and i think the government i think to put it in the affirmative has not negated all reasonable inference reasonable hypothesis of innocence and i think that's where that's sort of the guiding light here which is if they haven't negated reasonable hypotheses of innocence then they haven't met their burden and i think that's what's lacking here going back to the fundamental ambiguity question judge lawyer correctly noted in light the government this court in one thousand nine hundred six hinted that even if it was false under both interpretations there could still be a fundamentally ambiguous question in there the court noted that even though the defendant's answer might have been wouldn't we were going to agree with you i'm sorry if we were to agree with you on this conspiracy issue what would that get you well it eliminates the conspiracy conviction o points first of all the term employment is contained sixteen times in this question but there is no question the sentence is less that doesn't say what are all so there is truly no question that sense but there were two when a question mark it would help your honor it makes it clear i mean if the term you can be fundamentally ambiguous so so kind this long rambling description say do this and by the way with qualifiers to be fundamentally  if in fact people can differ and through these briefs and through these arguments i think we all have differed and we reasonably can differ as to what the meaning of the question is and what the question calls for it is fundamentally ambiguous and that's the case here and i want to and with the short list of the things that could be an issue of employment which i started to respond to your on about before you can go through insurance workers compensation regular hours very nice argument