versus the united states military clear that conducting further investigation is not a sufficient basis for materiality and we would offer two areas of discussions warning related to the materiality questions first whether or not investigation can be a decision and it's our position that investigation is a deliberative process where as decisions are final result the second argument is that statements were not material because they could not have affected the f b i s decision to either arrest her or price or faint or campbell or anybody else are you making your charge argument right now or are you making your sufficien historical fact what statement was made and what decision the agency was trying to make and then we look at that material the question so the first argument we have this is that the official decision is not whether or not to conduct more investigation the initial decision is whether or not to prosecute holing attend to you as a coconspirator and here's how we cung these itself would have been decided differently if investigation was the critical factor congress has these four misrepresentations on his visa application in germany he lies about his date of birth he lies about a place of birth he lie to determine if he was part of the two thousand with way into that martyr in war crimes and so if you send in an investigation is enough for materiality then company should have been decided differently by the school year but i think that's actually what the third circuit had used and the significant companies actually says no you can't just use a basis for investigation it's got to be on the actual result whether to denationalize him or not and by holding that those questions weren't relevant to the actual decision companies affectively rebuts the government's argument in this case is that just because the f b i had to do more work more phone calls or talk to other people that that's enough to affect their decision the other argument related this is that companies and even this court's decision in beer talk about a decision versus the decision and companies just says we should not look to all these small or little inconsequential decisions that might get to the final decision skillion a footnote talks about whether someone lied to get a free english literacy course which then let's then take the english that exam which then lets them be a citizen or nationalize and that we wouldn't hold those as material as a percentage so if that's the case again it looks to this idea of are we looking at the ultimate decision which is what the f b i does do we arrest is a probable cause to arrest or not and not the other and the other steps of investigation now then the third reason we know investigation is not the decision is because now if the government isn't it this is by saying i'm going to choose to ask one more question i'm going to chung's to investigate more if so that means there's no problem for the judicial branch to ever review materiality because now it's firmly in the hands of the executive branch point i think it does come to the point where they feel like they did take the case two years attorney and say we have probable cause to indict her for that and that's why in this case of the two statements that she had moving to the second one which might move  was the suspect she wasn't a witness the evidence in closing argument in the record the evidence from both agents keep referring to her as being quote at the record my no four instrumental in funneling money the cac in the who pay the commission interest at the record at nine hundred we were investigating a stream of benefits were companies hired a lobbyist and funnel money in closing again at nine o five she's trying to distance herself from the investigation she's in a hole she needs to quit doing both the government and there are two agents keep referring to her as the focal point so if she is the focal point there is no testimony to th i was considering her as a witness and so the decision they're trying to make is whether to call her as a witness or the decision they're trying to make is whether to to get other information i think from the tower the of the record the entire focus is on whether or not she's a suspect and if so the question is whether those two statements can make an arrest as haitian and if we look at both count one account too and we provided a timeline just to you doesn't actually have to make the arrest decision does it it just has to have the natural tendency to affect the rest decision that's right they did they'd they don't have to prove that this is what made us go and harassed absolutely and we look at  cases here's what's interesting about her case as compared to all the other cases and surrogates number one she plays a very small role as a as a part of the company as a minor possible coconspirator when you look at when you look at roger's when you look at every other case it's a person asking for a benefit and one on one that they're not legally entitled to what's unique when we look at the timeline is that the the best benefit  is to say silent for everybody else in our line of a thousand and one cases is asking for something from the government that they're not legally entitled to she's legally entitled to a line it's documentations to say that was back in two thousand and it's not and so the argument that we have related the statute is that we know that the objective of the conspiracy is accomplished once you get to the goal the goal was to dallas to be there in the process and so as it pertains to the investigation as to the bribery her statements only relate to that as to the tax evasion money laundering and everything else that's happening up in dallas i don't think she's heard of that and even if we look at the indictment which the her limited basis is whether or not there is some money that is being funneled to price in exchange for benefits i don't mean to get you off you're about to talk about the statements themselves so thank you so much the state so the first payment is about count one is the  nothing that says that the evidence about whether there was a charitable contribution is relevant to the charging decision or could have made a difference and here's why unlike the cases for false claims where i'm saying i want something from the government i'm not entitle could that be rather than to the britney the government has to have the evidence and when they did years in town that he was violating the confidentiality provisions of the bidding process that he was taking a ton of money and all organs taxes and he was doing all these things from lobbyists that had nothing to do with either one of the planet into your statements so her statement alone as compared to rogan and rogers and our ham could not have affected the charging decision whatsoever because it necessarily will choir's price or nearly or someone else to do something different which makes our case fit within a very very tiny narrow window of materiality paces on companies that are unlike m as to whether or not they could have affected it if we even look at it maybe we look at the the mystery ali as to whether or not to arrest the other folks again what's interesting in this case is anything she says about what she believes the money was going to is only toward her own culpability for committing bribery so let's say for example if it's a one on one she gives the money to a crisis directly then her belief is relevant to the charging decision because now there are some other things that she intended to bribe him what's different of our case is there's ten to take campbell to new we took from us and the evidence is on controverted that kneeling campbell are all getting money so whether she believed or what she believed as to whether it was going to charity or not doesn't affect anyone down the those decisions the government had the records had checks and nothing that she believed about why he was giving it were material to either the rest of her or to them in related to the charging decisions for the f b i to make to either arrest them or some combination of them because there is another separation whereas all the other thousand and one cases are and i can rogers an individual asking the  investigate his ex wife or in broking or anywhere else will one person trying to ask what happened the last program that we have if we know there's a bucket of material misrepresentation materialist represented by saying what i remember or why i remember it garbus of when it was doesn't lead to any decision about to arrest her for and b you need or are fain or anyone else you can if it's intentionally to throw the law well i think that's why it materiality gives us so let's let's say like as compared to the writers case what was intentionally to cause harm i think materiality gives us that will rule that even if it was intentional to throw the and companies it's still not material and i think when we look at congress versus rogers which is a good example countries eighty eight riders in eighty four i think that leads us to this conclusion that we want people to go to the f b i as witnesses it just means that whether our world red shirt or a blue shirt or whether i call this person from a hotel or not we we need to have a little room in the statute if not nobody ever talks or cooperate and i think we need them so you're saying that if even if you tell fanciful stories and mislead and then those have to go be tracked down and it takes a lot of resources and manpower to track down a bunch of fanciful stories that are taking up the time where they could be looking at the real story that that that's not material i hate i hate saying that because it's it's certainly a case by case basis as to whether it affects an arrest situation and i think if you're within the statute of limitations for something else you could be indicted for striking i mean there's a ton there in the statute of limitations for conspiracy in this case so as to whether or not you can just mislead someone my answer to your question is that there are situations where you could mislead someone intentionally and the still may not be t doesn't stand for the proposition that investigation of further developed investigation can don be the basis for materiality it rogers in fact the supreme court was  with the fact pattern that an individual had falsely made a report to the f b i and the secret service about his wife and hadn't asked which required the f b i in the secret service to do further investigation in that case the supreme court found that the false representations made by mr rogers were material simply companies is simply a decision that's fact bound to the  thousand one charge why are these statements material and can you take each one separately yes your honor i think it would be helpful to look at the larger context of the investigation and the f b i was conducting as agent jameson agent ty testified at trial the f b i was investigating a ten year conspiracy involving conduct by a company very boring and individuals that work there as well as other companies and that's testimony that was a mistake and tell us trial this was a series of dallas county contracts sought by various vendors but when derek wanted it make though whether or not she thought the money was going to a charity or whether she thought it was going to bribe someone or whether she thought it was going to be for a birthday present or what difference does that make why actually is that material to this investigation it's been too because when they approached m financial transactions showing that right around that time very point was about to be eliminated campbell paid kathy really who was believed by the f b i to be the money person for  light what difference does it make what she says the money is for the point of the f b i s investigation to determine the knowledge of people involved in these events and what evidence supports the charging or not charging obviously the united states attorney's office has discretion in that but the f b i presents that evidence for consideration and whether mr until there would be testifying in support of what the investigation has shown that far or whether she was telling them something that they needed to look into further right but she wasn't telling them something they need to look further or see i mean actually yes your honor she volunteered a new theory of th and there's no evidence that suggested that she was telling the truth when she told you this information which she deflected from what was under investigation to a whole new inquiry into a different commissioner commission cantrell who testified a trial that he you know there's a this is simply false she implicated her former boss saying that he was part of the charity idea she and she directly contradicted another cooperat on the take did campbell tell the truth when he told the government that the money was destined to the and when did one of her bosses or any coworkers telling the truth teller that previously lie during their interviews so it created a dichotomy in the investigation which which set of facts is true and which can be supported by the evidence or not so it was a distraction to their investigation  one is the money to the only the second is the phone call and if there's any doubt here it was resolved by the jury as to whether it was material after listening to the two agents testifying about all the additional investigation they they had to go investigate whether her call that she volunteered to the f b i was actually true or not she was attempting to bolster her previous story that she this is not a scenario where the f b i interviewed her thinking well there might be multiple explanations that had a lot of evidence that suggested the money went in dealey you were trying to confirm this angelos explanation was a volunteer she blurted out in a second interview that she suddenly remembered that she had this phone call with mr riddle and threw him under the bus created a whole new avenue of investigation and which is what they did but then they went back and looked through the records they went through christian camelback records to determine whether he had in fact paid a charity and they found one and then they had to go run down what that charity was and wasn't related to comm travel with respect to the psychic can't her lie that she knows that you know this conversation about shirley took place was a call to mystery one they had to go get put an f b i analyst on it and run down the phone numbers and make sure that you know this second layer that she told to bolster the first one was actually not true so they could eliminate her alternate theory your explanation of the evidence they were looking at as a false it and this was material and that's what the jury found these two separate lies in all different evidence which is why they were probably charged in separate counts the testimony at trial as i mentioned was at the end to other companies who had hired nearly whose contracts were awarded and so while they were having to interview people regarding those other companies they then had this offshoot investigation involving very morning that mistake tell herself generated i don't know if the court recalls from the description of facts from the testimony but if her first interview in august of two guys the thirteen she claims she simply didn't remember them the reason for the moment came in the second interview before they could even question her if at all she volunteered she blurted chance to come clean she stuck with the same story and then embellished by making up this phone call first from an incredible hotel room phone which she during that interview had made it she with regard to the us or any other questions on that issue and i intended also to address the polygraph the exclusion of mr until his offer to was intertwined with the exclusion of the evidence regarding her affair with mr campbell i tried a trial the government gave notice or before trial the government gave notice that it intended to ask mr campbell about the very night that he and miss gentle came up with the idea to pay kathie lee and then phone them to mission price and that they decided to do so during the dinner where they decided to creases pay for those two months that i had campbell but able to testify about it he would have said that they began an affair that lasted several months the court excluded that testimony and then in the middle of trial ted tells counsel asked if he would be permitted outside presence of the jury asked the court if you could get into that tend to look at agree to take a polygraph so he wanted to bolster these statements that she was making the same time for the government from introducing evidence that the jury could so it was a four a three decision it's not addressed intentionless brief but the court did not have uses discretion in making that careful balance and not excluding that evidence but even if it did that case in escobar decision that ultimately that that clearly false statements clearly false statements made if they don't affect the government's decision of false claims act cases told them that we pay decision that the dea naturalization tribunals was trying to come to that's why downright lies that don't affect the contracting parties decision the contract why they're in actionable under common law fraud why someone is under oath or in actionable and you can't be prosecuted under perjury laws and more specifically the argument is that because of the the alternative theory that had to be investigated decide who should be prosecuted you should be charged and that caused a lot of manpower to it's part of that that tracking this down and deciding when this is we're telling the truth or whether they're going to proceed with those charges so is that the real if it's deciding whether they're going to proceed with the charges that they think they're going to proceed with placed on new information why isn't that material will simple the fact that the invest the investigators had to do more investigation  is not a step to decide if the people they're relying on are telling the truth or if there's really something else going on well that's relevant cycling near to a and that perhaps material whether or not you can use these people as your star witnesses to say what was going on in this conspiracy i agree it's relevant we agree it's important but i think those are different things than materiality to the whole to make decisions i think are separate think some accounts on the i mean i've been listening to this argument about that a couple times and the decision about whether or not to go for with an investigation is an agency decision is and i think it would have to be more specific than that or else we run into this kind of great oracles where any investigative decision that changes the scoresby investigation would be material and for f b i investigations and that in that respect would make every misstatement material in for an f b i investigation buckley and that can't be the standard it has to mean something or else every misstatement then lead to a decision to launch them full scale investigation that of well that would be a reasonable investigator standard which so it could i mean under the standard said could in effect you know have a natural tendency to affect  the situation so i think you know in the abstract any misstatement could affect an investigator's decision to so your definition of the ultimate decision is what is it for the f b i decision to a restaurant and that's the only that's the only way i missed that a misstatement is material that is if it directly affects that decision that you have yesterday that's our position and so you know interestingly in this twen case her misstatements or at least the first one the second one not about the phone i don't even want to address but the first one about why did you give money to mr campbell so we had to do with herman's re specific to her why did you do this it seems different than me to me then you know did you give money to price or did you give money to nearly the investigators knew that they were asking why she did it and that but that didn't drag anybody else well i don't believe so because it seems to me that the that bribery offense was completed in the statute of limitations had long since run and so anybody else related to that specific the conspiracy to cover up and