what the government must prove pain a conviction under eighteen u s c fourteen twenty five a the same statute under which mr nepal was prosecuted and convicted it is black letter law under the supreme court's decision in griffith vs kentucky and an unbroken line of his circuit opinions that follow that decision that when the supreme court decides a new rule for the conduct of a criminal prosecution the new rule applies to any case pending on direct appeal this applies particularly when the supreme court and as it did in this case change the substantive elements of an office and that is exactly what has happened in this case massa jack was a case where the defendant was charged under eighteen u s c fourteen twenty five eight with making a false statement in an immigration proceeding with the purpose of obtain actualisation unmasking jack the supreme court held that the government must establish and that an illegal act by the defendant play some role in the acquisition of naturalization that when the illegal act is a false statement that means demonstrating to to an official to miss would have mattered that the statement was justified on its own justified high naturalisation or would predictably have led to other facts warrantin denial of the naturalization and the defendant could not show he was otherwise eligible for naturalization in his concurring opinion just as courses joined by justice thomas  court's opinion provided to new finance tests the second with two more sub parts and a new affirmative defense despite the clear dictates of mass and jack the government has continued is their material if they suggest disqualification or that raise a fair inference that it disqualify in fact exists or that would lead to discovery of facts relevant to a petition for naturalization or that has a natural tendency to influence the decisions of an immigration service in the trial of this case the government's expert agent dobbins stated that that a statement that is material if it merely affects the decision to grant or deny naturalization what makes truck or pardon me what makes it what makes it structural is that  changed the law and everybody went ahead use the own law he got prosecuted under things that were not the law now would he have played guilty that's a very good question but that the things that what there's a lot of things that would have been done different in this case had the standards that applied to the case been that the false statement would have on its own justified the natural ization or for  states and several other ones that that i just said the suggest the fair inference all of that but the other things that it did was it at first it made it clear that the statement has to be material and that was the that illegal act and obtain but yes a that kind of nexus yes or yes there has to be a cause that in a causation site that i think you're using next i mean i'm not using causation there has to be a causation between the steep false statement and acquiring naturalization there is it your view that the false the alleged false statement or the be false statement would have to have led to the discovery of facts  investigation then it would have to predictably have led to facts that would have warranted detachments a short denial of naturalization so it's a two prong test depending on whether you're talking about simply be both the indictment and the plea specifically talk about the production of truthful information would have led to the discovery of facts relevant to statutory eligibility so it seems to me that the united states government  so it's a little it's a little different but they use the term predictably they used it it's less than definitive but in my view it's more than it's got to be more than a  predictably not being a legal term means that it is it's it's going to happen it's obvious it's probable and so it's not your view is that had the plea in the indictment said predictably you wouldn't be here today but because it only says a relevant that's different from relatability it doesn't even say the diamond as you say material doesn't use the term material and that was the issue in mass and jack in the six from the six circuit was whether the false statement has to be material and so it doesn't have that word i suppose but it does say when the production of truthful information would have led to the discovery of facts relevant to an old ability for naturalization so but it seems to me materiality is in there i want to give you a chance to make your argument that i figure argument is relevant and predictable or are somehow different we are saying it's yeah it's actually materiality that's the difference will it has to be that that was what the supreme court was initially deciding masson jack is does the false statement have to be doesn't have to be a material false statement because and the six circuit has said in mass inject that it just has to be a false statement it doesn't make a difference whether it's bit to rail or not to the process and the supreme court granted it on that ground but they went further than just simply saying yes it has to be material they went on and what they decided is that would have been discovered not your conviction that it is not predictable and we should have had the opportunity to to go into court and have the benefit of the standard and argue that but we didn't because the standard didn't exist but he ended up pleading that he did not properly and adequately provide support well he did play today interestingly enough i mean it was a plea agreement but that's that wasn't in the indictment understand it but you're saying that if he had answered correctly when asked whether or not he had that they wouldn't have asked any other questions that would have led to the discovery about whether or not he was pain i don't know what they would have done that's that's part of the problem is that we just don't know he sounds like you're saying it was a predictable that they would have discovered no no i don't think it was predictable that they would have done that at all if i mean it's possible if you if if if you use the government's formulation which it affects the regulations do say that it will it will then why isn't it predictable that they would have made an inquiry about questions that bear on the application of the regulation because i don't think that that that just leads you to that sick of that situation yeah i mean you can ask that but i don't but given the way this case came out the fact that it wasn't even in the indictment that there wasn't there was hardly any fact there was i think there was almost no evidence of this in the trial of the case as far as we got and so we ended up reaching a compromise on based on what the some of the things that the evidence had shown up to that point but the the for instance the issue about it there was he was not a good person of good moral character that's in the indictment but it has nothing but it's not in the indictment  relation in relation supporting his child it's into the indicted related to two other things so this is something that sort of came out of the i'm not sure whether government got it that's what they wanted to do and that's what we did because we thought it was the best thing at the time under the law and the evidence at the time the thing that we did know and that the that that's the government did know and the district court didn't know is that the supreme court was going to change the law if we do what you're asking and send it back back but the rest of it i don't think so because jeopardy attached to the first count and attests to a number of the allegations in the third count and so and it attached and that wasn't there wasn't a conclusion of that so i think jeopardy attention they can often knock them affects the outcome but not the plea agreement i think it affects the plea agreement but the but the effect of the plea agreement is that the plea agreement isn't sufficient under the say that willfully it doesn't say that the statement would have led to of showing a finding that he's not eligible or predictably led to that it isn't including me at that so it's an illegal sentence because the facts are insufficient to support the plea under massa jack and the reason we have that requirement of the facts is is because a person who might think they understand the nature of the may not really understand that that the conduct is an unlawful my reading of supreme court correctly that the government has to establish with a good investigation would probably have disclosed the legal disqualification it uses the term kagan chose predictably but that's the word we have and it's not a legal term and predictability means probably or are something are obviously so i see my time's up so we request that the court  create some kind of a new element of the crime of the supreme court could even do that all they did was clarifying one of the existing elements of the crime the elements of the crime as defined by the statue or that he has to he specifically asked does it something the tiriel mean that it would have to render someone eligible for citizenship and she said yes to that gave that testimony that status is at least as robust as the standard that was laid out by the court and awesome job so not only was he aware at all times that there was some kind of materiality standard not apply in this is clear and it was also he was arguing for a very robust definition of that term additionally didn't i don't think so your honor and the reason for that is is this is twofold number one what the supreme court took on certain masson job was a six circuit decision that was an extreme outlier in terms of what all the other circuits had held required and yes it had been formulated in various terms by various courts supreme court ultimately said look here we're going to formulate a test and lay it out are missing from this case is any possible in his own application he was charged with the scheme by which he and others helped a number of nepalese citizens obtain u s citizenship through false pretenses so yes when the government dropped that much more severe charge him that was part of the deal that he would plead guilty and admit the factual basis record reflects from the testimony of the mother of this child that there was a serious doubt as to who the father was she that those types of statements are afforded the highest presumption of verity his personal admission of guilt and he won't be heard to go back later and challenge his own statements open court but  to your question judge when are they the testimony of not established doubt about who the father was in fact the other suppose father and the government clued him in front of paul as a witness and he testified that this was not his child  the mother of the child made conflicting statements between them as to who the father was she had taken different position in the world we disagree on and her testimony but at any rate in any factual basis case i mean what the court is looking at its record is is the scene is made on four corners of the factual resume which clearly admitted that this was his child and him and he doesn't seem to really be disputing that now i mean that is my understanding of his position is not that this whether his child he agreed to pay two hundred thousand dollars in restitution for the child so that's a lot to do if he someone has a valid claim that it's not his his his kid so we've got one other point i would like to make in terms of some of the questions that come up about how do we look at this case is it a structural error is it not there was an inquiry as to whether there was a crime was actually committed whether there's a valid actual basis however we believe the waiver remains in effect and enforceable and we intend to enforce it against any other type of claim including whether he had proper notice of the there's no question the only question here is whether whether he committed a crime as stated under the law either currently exists um we agree that the court should look at matalin joxer the ply that standard we don't agree that it's a different standard than what was being worked with below but we just want to clarify what what is before the court and what is not today i want to also speak to the remedy piece and then judge when i indictment that were dismissed by the government pursuant to the plea agreement under the understanding that he would be pleading guilty he agreed to a certain it's going forward and that was why the government egregiousness count to the extent that the plea agreement is vacated the government would seek to reinstate state those counts and he would reply to the entire indictment now he brings up the double jeopardy issue that's not before this court right now how the ben brief to put discussed by the parties are strong position is that stop on that defend its motion and that's of this and we would take if there were a motion to dismiss in the district court but that would be the proper procedure if he believes that double jeopardy what bar the government from proceeding it then the proper procedure for that would be for those charges to be reinstated in the district court in for him to move to dismiss indictment there so we would ask the court does not even to weigh into an issue like that the only issue here is whether there was a factual basis there whether the plea agreement should be  i'm i wanted also to speak to his argument about whether or not masculine jack changes the causation standard weapons or what the standard that must be proved is a higher standard than because we can't sing at this point exactly what happened because the proceeding has been closed witnesses are no longer available possibly we don't have a crystal ball we don't know exactly what would happen so that's why they use this language predictably which is meant to be a loose standard and somewhat favorable to the government and the reason for that is that the reason we find a sudden decision is not knowing what would happen is because a defendant has been clean hands because he falsified his application lied throughout this proceeding that is why we don't know what the outcome could be and that's why the supreme court specifically took pains to say we are applying a fairly low bar when it comes to deciding what is or is not you know what that that doesn't mean this whatever the outcome but probably likely and here i think the regulation itself clearly bolster the government's position that this would have probably been the outcome predictably been the outcome when you ask about how many children do you have  in the statute the regulation size failure to pay child support is it per se disqualifier of course it's predictable probable that they would have taken that next step to say oh you have this child who's been living in other countries for many years that the government would have been further inquiry into this because mr powell had five children did not assume he did not disclose that some of them were diseased he has some question about whether he was required to disclose those children that he had children with multiple different women none of march of ninety ninety nine he made an application under the three year of marriage preventive but due to delays it was over five years until he had his immigration his citizenship interview by that time he was eligible under the five year provision so he has this affirmative defense in his case that by the time he got to the interview he was eligible under another section we didn't have the ability to argue that in the trial of this case because it does and didn't exist because it was created by the supreme court in mass unchecked so that is something that we were unable to do and that's been what's the problem with the case is that there's a number of different things that would have that the new rules would have made the case different the things we could have done were different we could have raised the affirmative defense and and all of this other stuff that he did may have really been not relevant admissible yes not relevant to the fact that he was eligible under the five and the five year requirement there is an issue about well did he was he a person of good moral character but i don't think that can be something that's an element of a criminal charge in a criminal charge you can't you can't criminalize somebody for a status the status being that somebody is a drug addict or somebody is an alcoholic and somebody has a certain sexual orientation it has to be for conduct this is what the ninth circuit said in the in the port the case so that's another issue that the district judge is going to have to to sort out if we get if we get back there the other thing that i'd like to that i think the court needs to consider is that this is this is an emergency this isn't a citizenship case this is a case where extraordinarily severe penalty so that quote the facts and the law should be construed as far as reasonably possible in favor of the citizen and that's the snyderman case so there's  valid legal analysis that has to go but overriding all of this is the fact that it's a citizenship case and so you've got to construe the law you've got to construe the facts in a way that's favorable to the city the citizen and that's what we ask you to do in this particular case he'd dispute with counsel on what would be you think we reversed and remanded you said it would decision to make because of the unique posture of the case because jeopardy attached to everything and it wasn't resolved in a way that made it unattached so we may have that to to address but we have many many different things to address when we get back because of the change in change in the law in the standards and that's something that the dishes are passed to has to sort out the other thing i'd like to say is that the judge when are you brought up the fact that the inconsistent status a mother made about the parentage of the child if you recall we introduced triple certified documents from to paw that said that she was married to somebody else and this was that person's child and then and all of her and many of all of her immigration documents that she signed and that she authored and even in documents in the united states that she signed she said that in all those documents that his father was was this close iran to halt so there is a plot there's lots of evidence that would give somebody great pause to wonder about is this my child and should i be