o the conviction for conspiracy to commit fraud i will be addressing only this efficiency argument so i'll get right to that at the basic argument is that the evidence was insufficient because the government failed to prove that the brahman sisters were aware that the information the visa applications were false and i think the best evidence that the government had to sadler's that they knew about the evidence that the  information in those applications would have come from a consular officer that they did not call and without that officers testimony there was simply insufficient proof to show that they were aware that that frankly that there was anything more than that they were the unwitting beneficiaries of a scheme that mislead or herself hatched and carried out wasn't their testimony elicited actually i think was by the defense in cross that's in the record wouldn't the jury be allowed to infer or not infer and you can argue either way but isn't that evidence from which they could infer that that in fact happened that that practice which is now witness source he was aware that that was the practice but there was no evidence that consular officer or whoever that was in this case carried out the practice or was known to carry out the practice where i had been instructed on the practice by  where where that officer was assigned and being with whatever else in the world so i think the government made much of that testimony but i think it's simply wasn't supported by the record that what mattered in this case was what the particular consular officer did and we have no evidence about that they were training when the sisters travel abroad from the united states their application in this is not in the names that they were using but in the names that their sister used in the application that was aware of the false information because she was filling out the up the visa applications post those and then event re enter the united states using the visa in the new false name  at that point they have presented themselves under a false name i think this is false is potentially a stretch big difference variation evidence in the light most favorable to the verdict now at this point at least on your sufficiency argument they've traveled in a name that's not their own they're the same their versions of the name even the government conceded that they're different versions a different custom for naming these seem to me to be arguments that you could make to the jury but we have to assume that they found the other way and to the extent you're arguing insufficiency to us i'm having a difficult time given that they travelled that they were aware of the false include information i don't think that is necessary to find the jury found that the names were false after all they did claim to be those people and they are charged as those people but it wasn't really a question that the names were allegedly false it's just that there were two versions even accepting the notion that in bengali there may be various forms of name one may use isn't the jury entitled to draw inference that from the fact that prior to the relevant date they had consistently used version one of their names to obtain immigration benefits and suddenly when dalia engages in what seems to be consider she engages in fraud they suddenly consistently start using version two of the names even if one might say no maybe the inference would be weak even if the evidence showed that over the course of their lives they have gone back to make to the jury but now you have to convince us that no reasonable jury could have found that from this scada on their part that that they were part of the scheme with their sister i think they're  all that could be said again is that they they were aware that they were benefiting i suppose from the visas but that the question is what was their reason for the the government present sufficient evidence to prove beyond a reasonable doubt that the that they knew that the information was false and they we knew that there was anything in that these applications at all that they were that they understood english that the cause of this switching in the names is some circumstantial evidence of their participation in the scheme i realize i'm with you that there's no direct evidence of their knowledge of the applications but the circumstantial evidence is can be pretty powerful issue understand but i don't know what it does i mean clearly it shows that when they were here st they used one version one of their name and certain benefits driver's license security number cetera but after they moved and the birth certificates were found in version two as was used it seemed to fair for them to continue along that line of version too because version one really was not the version the bengali government was recognizing them as so why would they say why would the those submitted with the two thirty's and i'll just tell you upfront why my question is being raised because you know one of the theories seems to be well who knows notion that you know if someone shows up at a consulate with this paperwork and maybe it's somebody who's not them or maybe i guess your alternative argument is maybe it was them but they didn't read the form you have to alternate arguments it could be either one  but but it seems like if there is this notion that will if there are photos on there and makes it increasingly unlikely that it wasn't them but i could be wrong because if these forms were not in fact or the records silent as to whether these forms i don't know how they were submitted is exhibits it was hard to follow when they all submitted together as a package is exhibit whatever that was submitted at the consulate so i don't know if you know that one of the medical forms were submitted as part of his and it exhibit that evidence showed photo is in front of the consular officer who we're told was following protocol or that there was a protocol that was regularly followed wouldn't it also be an inference that the jury was permitted to make reasonably and that if there is a form in front of a consular officer and it's got a photo of a person that logically enough that that would have been the same person who appeared before the consular officer well that's my point my question is do we know whether any of these forms of the photos were part of that the package that was presented in dhaka i don't i don't perhaps as i don't know how the photos were taken and attached but as far as like inferring because the the photos were attached to these documents that the consular officer necessarily followed the on that that they signed the document and now now you want to say well maybe they didn't read it but there's no evidence to say they didn't read it and indeed the document says that you signed it under penalty of perjury right now so i mean again to the extent your argument is sufficient see when this chain of events is looked at in the light most favorable to the verdict that was returned i would think it would be some court the claim that they they were participants in a scheme to prevent to present false information not just variations on their names but information about their residing in the united states ever being there ever having got right you could you could ask the jury to consider the possibility that they didn't read it but the jury could reject that on the basis of what information specially on the fact that they went to a medical examiner and gave the same name that they hadn't been using in the united states when they got a social security number when they engaged in other proceedings where all of these circumstances suggest that they were they were knowingly seeking on false information officer let me ask you to explain how you understand poise i did not understand it to be you look at each piece of evidence and consider there are two ways of looking at it because you're even asking us to consider if there standard i think that it's i indeed i think it's contrary to the view that all the evidence has all all evidentiary disputes have we have to assume or resolved in favor of the point you have to the question still is whether even viewed together in combination there has to be something that can point to to say that the jury relied on this evidence or this totality of evidence sufficiency of evidence it does relate in the sense that there really was very limited knowledge even if you five the court finds that there was sufficient evidence to for the government to proven beyond a reasonable doubt that the defendants were knowing participants in the scheme the evidence was so thin that that it was prejudicial for the court not to have given a missing witness charge the district court's decision to deny the defendants a request for missing witness charge was an abuse of discretion both of the problem is war matt and a missing witness charge should have been given st the consular officer whoever he or she was was pretty peculiar within the control of the government because yes and i ask you about that that you list the provisions in the foreign affairs manual in the blue brief idea even who the consular officer was but apparently not nor did the government right they represented that they had no idea who was right well there was some testimony to that effect but the government but you know that testimony was  credible that it's common sense that the government would know who it's consular who happened to be in dhaka well when you said the government i mean you're not suggesting that you know the people in  words the government would have had a subpoena the department of state that's correct or you could have subpoenaed the department of state and either way an answer might or might not have been forthcoming either yes we have the record or no we don't right that  is correct and isn't that the same as saying it's equally available like both of you either of you could have gone knocking to the department of state and nobody did well but that's essentially saying that it witness is equally available when the the government for purposes of here i mean there's the government in terms of the prosecution and there's the government turns on the entire united states government which for example for six many purposes you would not consider part of the prosecution team and you wouldn't consider the consulate undocking part of the prosecution team here was certainly not it is certainly for six member purposes it's not part of the prosecution team but i'm not sure for purposes of whether the witness is peculiar within the control of the government that you don't look prosecution your position is that the equal equally available in the peculiarly within their control of the government for purposes of messing witness instruction means any component of the united states government anywhere in the world i'm hesitant to go that broad but it was i mean like i'm not familiar with a case that limits it are you i mean is there a case that says that any anybody who has ever in the past work for the government and which we don't know where the currently works for the governor or not is peculiarly within the control of the government there are certainly cases that address the question of equally available with state department  officials and if that was were somehow outside the scope of of the universe that were considered to be available i assume that the court would not have reached the question but the goal is not to get give you a charge the goal is to either get the witness before the jury or identify the witness etc so that a party thinks it has probative evidence can call it now if i understood you correctly the st step that would have to be taken here would be a subpoena to request to the state department to see if they could identify who this officer was and did i also understand you to acknowledge a subpoena without the identity of the official that said i'm sure defense counsel could have had conversations and i thought that we were seeming for the moment that neither the prosecutor in the case nor the defen knew who the official was on that and so the st step would be to see if the state department kept records of who was on the visa desk in bangladesh on that afternoon right and what i'm asking is could have sought that information the same as the prosecutor and the answer is that i'm not sure that we could have gone through the process of  going to the state department to subpoena the witness if we knew the identity of the with right but nobody knew at this point it's my understanding so to that extent in some far as you are now identifying error in the failure to give  missing witness charge how is it that you can show that the witness was peculiarly within the control of the prosecution he was here she was within the control of the government because he or she worked for the government at some point in time at some point in time that's correct and a person could be dead i mean we have no idea who this person is that's correct your honor we don't know under who less on such a date and talk right if you want to know that that's correct so then we would have maybe no and then name maybe then you can enlist in the government and say well you know they're not responding quickly can you lean on them or something and then maybe maybe this would be a known answer but right now we're just left with a void that is correct your honor i do want to just note that the the standard for that this argument that i'm making on the missing witness charge is abuse of discretion which is a more deferential standard then for the related argument which relates to the equally available charge that the court ultimately did give and so even if the court does find that there was no abuse of discretion on the missing witness charge they the court did the district court did air when it delivered a non standard jury instructions they thought what was wrong with this instruction well under this course decision u s versus cace a there are three options the district court has discretion of either to give no instruction to give to instruct the no unfavorable inference may be drawn against either side or to instruct that an adverse inference may be drawn against either or both sides in this situation the court did not follow any of those three past but rather stated that the jury should not be concerned with why any witness was called or not called or i'm sorry the language  should not be concerned with why someone was not called as a witness or why certain evidence was not produced which in this particular instance was a gratuitous charge in the sense that at no point did the defendants argue in some nation for an inference and they didn't argue that the jury should consider why someone wasn't called but isn't an incorrect statement of the law it's i wasn't under the impression from catching that it spoke at all to the suggestion that it is the jury's province to be concerned about why a witness was called or not called i understand the idea of adverse inferences about what they might have said or or wouldn't have said had they been called but i don't understand why the court erred in telling the jury that it was not their try to get in the head of a party whether the defense lawyers or the prosecution about why they chose well or not call someone right as a general matter just records don't give that instruction why is that legally incorrect these are cases that is legally incorrect to instruct a jury that they ought not to ask about the subjective intent of a lawyer who is before the court so if the jury understood that what they should not be concerned with was the subjective intent of the prosecutors then that would be fine because the jury should not be concerned with that but there was a very significant issue in this case whether the government met it burden and whether there was evidence out there that that could have a stablished guilt beyond a reasonable doubt and so while the charge of should not be concerned with why someone was not called is not legally erroneous it is potentially confusing well the jury didn't ask for any clarification and i didn't understand that you you argued to the judge that was confusing i don't believe that defense counsel argued that it was you know there's no i mean what we do know the judge did was it told the jury on a number of occasions that the government had the burden of proof it told them that this witness was not before them and then he told them that they shouldn't be concerned as to why lawyers had not called the witness you're saying that the jury might have been confused that it should consider the fact that there was no evidence from that witness in assessing whether the government it carried its burden that's perjury but arguing that it was so confusing as to call into question the verdict and i'm asking you why a confusion argument should be entertained when no one on the scene argue to the judge this will confuse the jury that suggests to me that no one no one who tried the case perceived as confused well i mean you're honor there was significant back and forth at the trial over whether the missing witness charge that i do like and ultimately i would think that the arguments you know while it's that no one specifically addressed this potential source of confusion i would think that the arguments about the missing when it's charge would be sufficient to preserve one issue which i think has to be focused on is this is a case about this this is not some some random embassy in some country that has really no direct part of the case back to judge wright he's come at the fact that they came in under this name that the reason was issued in one of these was already issued that was the only way they were coming in if they presented some other identification when they showed up at the border that visa would not have been and i hand that to the and i know that and that has been issued in that name right handed to the council by the immigration officer i know that's the only way i'm coming in is if i say i'm ph because that's what the visas i'm not necessarily trying to mislead the the immigration officer because it is my equipment to my name so i think that's where the sixers distinction becomes and this gets back to the confrontation issue which is what office we're not arguing it wasn't them there i think there's sufficient basis to say it's very unclear from the transcript what exactly happened in dhaka all these records came in as a group but i think there's a fair inference we can't argue that this that they were there but what was important is what did they understand and the government says these documents to two hundred and thirty two dollars are not entered for the truth of what's in them but that's crazy they have to be entered for the truth of what them what's in them is a statement from the applicant saying i read the document i understood the document and these are the facts as i'm saying them so the fact that would be admissible is the admission of a party opponent all right if we could establish that but we're saying that that witness the key witness in this case we never did and that was a confrontation right was that the same signature is was on the application appeared to be on the medical record in the medical record had their picture so you put these together and a jury could infer that the same person signed the these application but how could the jury infer from that that they knew what was in that we have other evidence i cited in my in my brief that said i read it but they didn't but the evidence in the wreckage children didn't read english signed that thing saying i understand everything that's here isn't that an inference that at least is open to the jury to say well they signed it they set it on paper that they don't believe it well it's not that they could speak english it's that somebody else and he's saying to them do you understand what's on this form and they have said and he's the form says they answered yes and that's the statements being offered for the truth and i think there's a fishing you distinguishing between the signature of the consular officer and the signature room of lena because those are two different things i am sure and i am focusing on the portion at the bottom where the council officer gives his statement and it's a key issue we've arrested in or in or brief that actually to form stops at one point and it says don't do anything beyond  these people appeared before me they i asked them these questions they said they understood what was in this form they said what in the form was true and i don't think that that's what it says all that that big block i'm looking at the bottom for ninety four that's a statement of the applicant i understand that i am required to surrender my visa i understand i understand and then there's a signature of the applicant the only statement the only declarative statement  understand that the government did not rely on the consular officer and the judge told the jury that the consular officer was not before them so we have to look at this whether or not the evidence quite apart from the consular officers at a station was enough the government the statement in here that they had read it and that they don't understand this but the only way we know it's their statement is from the attestation of the of the council office i may not have been clear they signed it and if the jury could infer that that was their signature by comparing it with the medical records bearing their picture and medical exam you know i did want to indicate to you that it seems to me for very significant that this document on it on its face indicates that it could be used in a criminal prosecution so it goes beyond the usual statement at the many documents to making a statement on this document could subject you to criminal prosecution this really kind of goes a step further and says this is something that can be used in and is collected for that purpose and i think it's testimonial because there isn't an implicit declaration and correct me if i'm just a misunderstanding that there is an implicit declaration by the council or officer that i am standing here and i witnessed this person fill out the no not to cut it to finally but is there actually feel that out i think he's saying it was presented to me they said this it they read it they understood it and it was accurate is there any other declaration in the document that you're asserting was significant if they made those statements was a significant false statement i mean i think it's enough that they were never needed to state that statement alone would a bill the one thing that's offered for its truth is that they made the statements and they knew they understood them yes and fall on the out of court statement of the consular officer and that goes to all three of the points that are raised here on appeal i can begin with the sufficiency argument it is undisputed that the sisters here alina and lou used visas that were issued and procured pursuant to false statements and there's no dispute that their older sister made false statements in order to park your visas the vi applications that were made in bangladesh on behalf of alina and lou certainly material evidence goes to show that they knew and knowingly joined the conspiracy but that's not the only evidence that the government presented there's a host circumstantial evidence showing that they knew well that their older sister had attempted to get visas for them based on false statements and there was a number of false statements not simply that they had names that they had never used before but also that they had never been in the united states at all that they never sought social security numbers they were never given alien registration numbers and significantly that they'd never used other names so all of this talk about whether there's different naming conventions or whether these are different variations of a name fall to the wayside because even if that were the case then they were asked to disclose did you ever use other names and they say no the timing here shows that the sisters were knowingly involved in the scheme dolly the older sister initially makes her application in the year two thousand and ten years go by before she starts to provide supporting information showing that the wheels are turning to have the reeses issued abroad and it's only at that point ten years after the initial application is made that the two younger sisters go to bangladesh and then the visa applications are made there so again there are are false statements that correspond completely with the false statements made by dalia leda in the tw sisters applications which goes to show that they're knowing conspirators here but it's not the only evidence involved and as your honour's has noted there was a host of circumstantial evidence showing that in fact it was  court statement of the consular official with respect to the admissibility of the visa applications the argument that the visa applications can be admitted because the consular officer wasn't himself on the stand was addressed at trial and it's an authentication question and the witness who did put these applications into evidence was one who was the custodian of the records he could explain the process by which the documents came into the file it was clear that rhys's had issued from the applications that were made and it was part of the normal course of business to review these types of documents that were completed abroad and that was how the government provided sufficient evidence that these documents were what they purported to be they were authenticated as public records and that that's enough for authentication what about the peers say argument here's the argument wasn't made at trial and the the portions of the document that the government relied on were not hearsay and the government in summation did not rely on the jouret of the consular officer which is the out of court statement and with respect to how these documents were treated at trial the objection to foundation as defense counsel called it at trial happened when the records custodian was on the stand the witness who actually discussed the substance the visa applications was from the national visa center contractor his name was and he was the one who actually discussed the substance of the documents and no objections were made to anything that he said with respect to whether or not it was here side to the extent again there the governments putting forth a false statements which were not offered for their truth and to the extent that there were statements on that could be construed as hearsay for example that the older sister helped with the applications that would be the statement of a party opponent or of the statements in furtherance of the concern i guess i'm having problems and maybe i'm just missing something that seems like the statements they're either not only just for their truth if they're if the government's theory is that their faults their admissions or coconspirator hearsay was some form of that mission and the counselor statement i'm looking at for ninety four dollars the counts are statements subscribed and sworn to before me this day of record yes i think it could be both your honor and i think it's an out of court statement and part of a public record and again there's there's information in the document that allows the jury to infer that in fact the applicant was present in dhaka and signed the form swearing to its contents part of what makes this a little bit of an interesting document is that that information can be proved two different ways one through inference by circumstantial evidence and to directly through that hearsay statement and the government didn't rely on the hearsay statement for the reason that everyone is aware of including the jury that the consular officer was not there to testify in court  with respect to the jury instructions the request for a missing witness instruction only came up during the charge conference another defendant had requested that instruction in advance and the district court properly denied the request there was no showing that the witness was not equally available to either party foreign affairs manual clearly contemplates that someone who is working for the department of state can receive a subpoena from a private party there's nothing in the record to suggest that the defense ever asked the government the consular official was obtained sought to obtain an interview or any other type of identifying information about that witness and it's for that reason also that the judge was appropriately wary of the type of gamesmanship that is often accompanying such requests where you don't really want to get the witness there but you also want the jury to draw a negative influence and there was no proposed instruction given by the defense i saw that there was some suggestion that the defense in the briefing that the city defense was not given a meaningful opportunity to make that request that's just not right at the charge conference the judge for says no i won't give that instruction but then they talk a little bit more about well can you get this witness here or not to the could the government have made the of the witness available or not the judge has all think about it the government says to put in some additional briefing and the judge says yes sure anything would be helpful i appreciate it and ultimately neither the government nor the defense put anything in but this was a day before the charge was given and certainly there was an opportunity to propose language the case is not clear from the record the jury was charged here before summations so all of the lawyers in addition to have her here in addition to have i had heard of the proposed charges that the charge in conference also heard the instructions actually given to the jury and then made their summations and it's plain that the defense relied very heavily on the fact that the consular officer was not a witness and the judge had said in advance of the charge conference of course you're not limited from arguing that the government hasn't proven its case because it failed to bring this witness and that's the argument that he made in there were even statements about you know i haven't heard anything at this court at this trial that would explain why this witness wasn't here so they even went so far as to question why the witness hadn't been hadn't been called and so the summations were not impaired in any way by the instructions which would also be a showing necessary here to get a reversal with respect to the instruction that was given i think it's necessary to push back a little bit on the characterization of this instruction as a uncalled witness instruction does not exactly what it was this was the portion of the instruction where the district court was telling the jury only decide this case based on the evidence in front of you  and he included the instruction that was requested by the defendants you know don't just count the number of witnesses on either side don't speculate on the reasons that you were presented certain evidence you just decide the case on the evidence in front of you and  emphasize to the jury that of course that is the government's burden to prove guilt beyond a reasonable doubt there is nothing confusing about the instruction i was legally accurate and again it did nothing to impair the defense arguments to the jury here unless the court has any additional questions also be brief but i did want to say one thing which is that the government's argument that there was other circumstantial evidence when i was listening carefully to the prosecutor she took always came back to the difference between what the other evidence  on the form so the form is the central portion of this case the fact that it was admitted without the testimony of the counsel officer violated my client's confrontational rights to determine what actually happened and under the facts of this