joined to begin with whether or not it was fair to fail to sever the thought statement charges prior to trial and whether or not the evidence of these false statement false statements in the extortion and at the end of the government's case in chief judge burgess dismissed all of the substantive counts for insufficiency of evidence he also dismissed the false statement charges for insufficiency of evidence  in this case of the of the defendants that were convicted in this case the evidence against mr gary was clearly the weakest he had been at the company in the shortest period of time the company had been in operation for almost a year before he moved to seattle although he had participated in in one move a couple months before that the jury in this case was given a special verdict of this case was handled in this interim period a r blakely and before volcker and so there was a buy for kitchen in this case in the jury received a special verdict where they had ensor specific questions and they found that mr kerry's role in the case was limited to thirty seventy thousand dollars and that the victims that he was involved with were just one and if you look at the witnesses who testified at the trial the government called in excess of fifty witnesses that th we'll never know what impact the jury having heard the opening statement heard the testimony of special agent taken and has these false statements back in the jury room played on the jury but i would suggest that what this really shows is that the worked it was january yes in the jury concluded he was involved in the seventy thousand dollars so forth and the false statement as i understand it is the statement that said i'm not working i haven't worked so why was a false statement charge dismissed at least the latter in country and box no was checked and that was the only evidence that was introduced as to mr gary's intent to falsify the forms there was the only evidence beyond the evidence of of his participation  that he was working which clearly could have come in as part of the trial on the on the conspiracy charge yet it was the only evidence submitted with regard to the false statement charge the forms themselves and the other evidence and the answer that question is ye bringing in those false statement charges you're also telling the jury that this guy isn't supposed to be in the country he's he's an illegal alien he's far suffice to documentation that lets him remain in the country and particularly in this day and would we allow a jury to hear that a person is illegally in the country that they're illegal alien i think that's really what's going on here but this is different isn't it because i look at the indictment in the case and the indictment specifically alleges the part of the conspiracy was that the improper jointer at least as far as the april all three statement is concerned but i guess i hate the way the government argued the case to the jury they didn't argue the case and they ended up not arguing f charges that are at the end of the case and i think that's because they have a hard time showing the connection anyone who's illegally in the country and commits a crime you could go back and you could say well they're being here illegally facilitated their being able to commit the crime the question is is this charge is false statement charge or the two of them improperly joint it seems to me that if he was charged with conspiracy that was ongoing as of the probable theory and that one of the objects of the conspiracy was to make false statements to the ins i'm not sure i'm following are not improper jointer those things seem to me to be related but i i would i would submit that i think that they were improperly joined that the test for getting to but even if they were part of the joint we moved to sever and judge burgess denied severance and then dismissed the charge but tonight our motion to strike the evidence now not not not in study of the indictment in the jury room with a deliberate knowing in judge vs court the judge the jury does not get the incitement to the jury guy just the jury instructions which outline the charges and i don't think that the conspiracy instruction and inform the jury that false statements from in the country were one of the objects of the conspiracy so instead the jury gets back there are the facts means made false statements that allowed him to stay in the gary worked at the company it was for he started working at the company he moved to seattle in march the company had been ongoing for about a year of over three dozen customers that were called to testify about their contacts with the company only one customer had contact with mr derrick only one of the government's witnesses the cooperating co defendants really supplied any what would be called incriminating evidence regarding this new theories role in the company the other employees that were called who were cooperating just that mr gary worked as a dispatcher in company when he moved to seattle he was in the office he had nothing to do with making the estimates to the to the customers it brings me back to the fact that if if judge burgess found there was insufficient evidence not only to support the false statement charges but the wire fraud counts and the substantive extortion counts all of those dismissed for insufficiency of evidence evidence didn't affect the jury and i don't think we can say that here here again looking at special verdict the dismissal of the charges and the very limited role mr gary played in  at the whole picture because if you look at the whole picture the government calls over fifty witnesses they're alleging at a loss of over a million dollars and the jury's coming back with this do the seventy thousand dollars responsibility from mr gary i would suggest that he was prejudiced by this admission of evidence and asked the court to find that those tickets i think you counsel will hear from the government placed the court in counsel and catherine warm an assistant united states attorney on behalf of the united states your honor statements the position of course of the government says these charges were properly joined in this case that the evidence that went to prove the cans of the conspiracy as well as the phosphate make charges was intertwined and an important factor to remember in that regard is once decision had been made to bring for you paul to join this conspiracy he was that at risk for remaining eight participant in the conspiracy unless he could remain in the united states they are there was an second incident the false statement the false statement that was filed in it for all the later in time when it later in times like i can understand it's the earlier in time when that gives me a degree of pause because by that time at least as the evidence we see it now the direct evidence of him working for the company comes later in time to the earlier point in time where he said he had not worked up to that point i don't see any evidence that he was in fact involved in the nationwide for a while and that may have been what that evidence would have helped prove we know for a fact that he was involved at the latest in january of two thousand and three and when you think about his involvement at that point he was a foreman on the move for joining us carr he knew the drill exactly he was operated as a foreman in that move absolutely according to the book of nationwide he hasn't been involved in the conspiracy prior to january of zero three and think that he walked into that movie because you knew exactly what the drill was he performed according to the nationwide scheme and plans and one point the point at which he may have become first involved was that trip to washington in october of two thousand and two the company was up and running the scheme was in place  at that time that false statement was filed within three months of that time he is on the ground for nationwide working as a foreman and extorting a customer then when he moves up to seattle physically takes the place of the manager who had laughed we know certainly he was involved and it's in a daily basis operating in this scheme working as a manager for the company a piece of evidence that i too point two that was asked by the government that was an application to rent an apartment filed by you fall very in that application transfer apartment key and then a fight himself as a supervisor for nationwide moving earning a salary paid by nationwide and moving and that was very powerful evidence had nothing to do with the his status as an immigrant it was the evidence that was considered by the jury with some next to reach the the finding including the finding that he was a supervisor and manager for his company evidence provided by the defendant himself was the jury room form of the allegation in the indictment that part of the conspiracy was to make false and misleading statements conspiracy and related counts on their own became and simply because of the false statement count so what i'm trying to figure out is what would have been different if if if the counsel been severed at the outset i things influenced the jury because we have a very discreet findings one of those for example that he was the supervisor or manager of the fast statement on the  extension application has no bearing on that as i said there was no statement by the defendant himself an application in which he identified himself as a supervisor for this company the government does not believe that he was prejudiced in any company there would have been consequences in either case from truthfully reporting the situation and really that's all he testified about that he was the vehicle to introduce these forms there was no overlap in the evidence that was presented to the jury the government never used the term the overlap would have come in the working part yes so so and that would have been part and if you'd had a separate trial on the false statement counts you still need of the working parts so that part overlaps sure i'm not saying that's necessarily sufficient but it's not that they're entirely unrelated at least for the later in time form the working part seems to me is appropriate in this for either either theory that the conspiracy theory or the false statements there and i agree to that extent that if if we were here today and we were talking about a trial that took place on the false statement charges and the government introduced evidence of the extortion and wire fraud and was arguing well that that was necessary to support false statement that would be necessary with the fact that he was employed and that would be what was material we didn't argue with trial that he wasn't employed at the company we didn't if we if we had come forth and said no he never worked for this company we might with the issue would be different i helped lead to my confusion as to why these counts were dismissed because it didn't seem to me that there was much contest over whether or not he had made a mistake with the turned out to be false that's him and that's something anybody can address now but it is kind of confused me a from the beginning but the but the essence of the prejudice we believe is twofold one is he lied on the forms therefore the jury could say ok well that supports the fact that he might have lied to customers and to is although the government never used the term illegal alien they don't have to use that term when you've got an immigration form and you present it to the jury indicating that and ileum white on that form in order to be able to stay in the country that if you know it makes them an illegal alien you don't have to use the form you've got those forms right back there in the jury room with the jury i submit that that it was there to join the charges that it was certainly are just