after trial on multiple multiple counts and the only issue that i will call the only issue that i may address today is the most important issue to my client and that's the issue that relates to his citizenship he was convicted on count twenty twenty two related to eighteen u s c fourteen twenty five a the issue there is that he procure citizenship unlawfully because he lied on the one question on his citizenship application and that citizenship application is found in the record the trial exhibit the government trial exhibit twenty two a a let me talk about that for a second mr martinez checked all the bells and whistles for citizenship he was otherwise qualified to be a u s citizen what are some of the requirements over the age eighteen he checked that he was a citizen he is a permanent resident of the united states for approximately since two thousand and seven so was a right roughly eight years prior to his record his actual citizenship he had lived in the district that he applied for citizenship for more than a year he had passed all of the written all of the written tests that relate to that the english proficiency the civics tests the writing tests so he checked all the bells and whistles of that now let me go back to the government's trial exhibit number twenty two which is the application for citizenship i want to start by saying that that application is broken into ten different parts is ten different sections all right and the one issue that the government had issue with was one section of deals with characters that are good more character in the one question they're asked my client have you ever committed a crime or offense for which you were not arrested have you ever committed a yes if you were yes with regard to the parking about right now ok these sufficiency of the evidence and let me try to be as specific as possible to help the court see where i want to go with this the natural i'll just get right it the naturalization officer mr dawkins testified at trial and he did say that he believed my client on one question for more of her character if it is one question out of sixteen questions he said he lied he also said that that lie was material or relevant to influence his decision to grant citizenship he said that we didn't say i didn't ask the government didn't ask is that that law i was disqualified for citizenship when he didn't say is that that line was this positive if you lie on this question that means you're disqualified for citizenship so that's w g i'm trying to go with that so he lied on one question out of sixteen questions and one part if he locked in my brief i address the fact that he did lie but before i get the fact he did lie i want to see if he did lie the more the good moral character section contains sixteen questions the very important question is have you been to prison to know have you been incarcerated jailed no have you smoked drugs you know all those questions one question is have you ever committed a crime for which you were not arrested and he said he lied so even if even if i think this court believes that he did lie as you there is evidence in a record that he may have lied they didn't prove that that one lie to one out of sixteen questions is disqualifying is not disqualify for citizenship so that's where i want to go to vidual who testified what was his roe in your client's procuring naturalization thank you mr us immigration services officer he was the one that received the citizenship application twenty two a well what was his six nation for saying it was material this explanation ok well that the government only asked him the question presumably he was in a position to make a recommendation with respect to the naturalization and yes he said it was material yes and you want it and you want him to have said with out that answer i would not have recommended right yes i didn't ask the question the government didn't ask the question i don't think it goes far enough in the new case law that we did cite i don't think it goes far enough to say that that was relevant to my decision the government only effect it had on the decision well yes but it doesn't go far enough to say that that one question the one question out of sixteen other questions fifteen of the questions is something that is dispositive to his his decision i hope it makes sense for the court he did not say that that would have disqualified him had i known that he lied he did say but that it would have had an influence on his so again there was no testimony that was placed in a trial record that that one question out of sixteen questions was legally disqualified we tried this case in march of two thousand vs the united states it was prior to that one thirty seven supreme court nineteen eighteen two thousand and seventeen case and i say that because the jury instruction into degree instructions that we crafted in that case only had the jury rely on whether or not the agent felt that the lie was material that's all the jury instructions but in the supreme court massless a case which we did cite it says that that's not it now says it has to be material it also has to they have to put on the record that that material decision would have led to a disqualifications which is what we don't participate in the accident with him was put placed on the record my client the napper to subpoena in the planning of the accident he was not present for the discussion of the accident my client did not participate in the actual accident itself my client did not know that the accident occurred until after the accident occur and my client's former clinic bill would have for a coup the rules of fraudulent accident but my client didn't do the billing i'm only mentioning that as relates to this one question reason you know i was on that case i was on the panel i didn't like the result we had reached i thought we had to reach but i did we nevertheless reached it and the supreme court reversed as it would have been real helpful to me to have had the opportunity to go back and look at that case had i realized you were relying on it so you know what i would definitely have done that because you know we see a lot of cases right now have just sort of scratching my head and tried to remember exactly what the case yes rather i did read the case until after my timeline for twenty eight c had had expired i didn't reach after that time let me move there are there any other questions that relate to that point all right i'll just move on briefly to another argument that relates to my one of my thir my client was on it was the next clinic anyway the ran the clinic my client did not run the clinic did not hire for the clinic did not work at the clinic he was aware of the clinic he was present when meetings were discussed about organizing the clinic but he was not involved in a clinic and he received an enhancement at the sentencing for basically for the last that one to that clinic now the government's going to argue that my client introduce the the  manager of the clinic was introduced to the doctor that saw patients for the clinic and the government argued that my client was responsible for setting up the meeting between the manager of the clinic and the doctor and i say that that meeting was was really just coincidental it wasn't a planned meeting by the transcript in this case when the people at the doctor's office talk about how the meeting occurred between the manager and the doctor's office you can read  it please the court my name is ron stolen assistant united states attorney in the western district of michigan i represent the united states here today i was also the lead trial counsel in the matter below your honor and i'd like to start with the naturalization fraud count count twenty two and i'd like to get right to the point that judge clay made which is you know why are we here today with respect to that calm and we are here for only one sole purpose and that is the sufficiency of the evidence at trial to support that conviction on that count was nothing else raised and for the reasons that judge givens just pointed out as an act i will address in a minute but it was not before the court at the time of the briefing and we would submit that it's not properly before the court and it's waived the court would like more on that we've asked for a chance to do some supplemental briefing although i will point out in a minute when ordinarily try to get the law right without regard to what counsel is told us i'm not sure that it's citation t that supreme court as is something that we would consider way that believe we would consider it an obligation to that doubt what that the applicability of that case might be and i absolutely agree with you joe i mean we look like framed before this court and as i'm going to point out in a minute we proved a sufficient conviction in any of that but back to the point which is what we're here on was a challenge to the sufficiency of the evidence and it was even of revived therapy center so at trial this case was all about the staging of auto accidents paying people to go out and pretend they had auto accidents come to this physical therapy clinic sign treatment forms and bla saying they had received treatment when they never got the treatment and then the forms were completed by the therapist working with the other conspirators and sent in and mil nearly a million dollars was paid by these autos and insurers there was all kinds of evidence from support so called patients preceding the naturalization application in two thousand and thirteen where the evidence was absolutely clear to the jury that the defendant mr martinez was the one who coached them on what to say to the doctor to get the scrip who also paid them the money to entice them to do it and helped orchestrate the signing of those one forms so and i don't want to i want to go into all that because it isn't my brief but i particularly cited to four different accidents that occurred none of those had anything to do with a codefendant mister mr it was a separate accident and we contend that the evidence on that count also suggests mr martinez knew about that mr  who was a friend of his that was in the record they were friends from cuba he comes up and arranges an accident with the specific point that your adversary rai's was the sufficiency of the immigration service the representative to establish materiality and i can turn to that your honor the person who testified at trial as officer dawkins officer dawkins was actually the individual who won over the naturalization application with mr martinez so that the application was filled out he put him under oath he went through all the questions with him he testified at trial that he specifically asked him about question number fifteen which is the basis for the charge are you already are you aware of any crimes or offenses that you've committed for which you have not been arrested and he knows his answer to that was no we confirmed that with him because he saw it in writing in the he knows that he won over it that was his practice he went further to say that question is material and does a fact the naturalization process and he was part and specifically asked if you knew he was committing insurance fraud would that have affected your naturalization decision and he said yes it would have and that's why i made the point early on that i think even under mazlan ak in the in the clarification by the supreme court this conviction still stands the other thing i would point out of the court is important to understand is that at the time of trial we specifically told the court that we wanted materiality to be instructed because we weren't sure what was going to happen on appeal with the supreme court and because of that the thirty seven and a page nine hundred sixty nine is the specific instruction where i footnoted and told the court that mazza knock was on appeal so under and under any scenario here i think that count twenty two was properly properly instructed and that the jury had more than sufficient evidence to convict and the last point i'll make before i turn of the other issues and muster any questions is that there was no rule twenty nine motion made below either so is not with respect to the sentencing unhandsome at the issue that is framed for today is whether sixteen levels should have been given for more than more than one point five million dollars or whether the full low or fourteen level on handsome it should have been given and as counsel alluded to that turned upon whether his client was involved in a clinic called for a new therapy or lots of names in this case so i just want to quickly remind the court that there was revived therapy which began in mr martinez never contested or doesn't contest on appeal that he was involved in that client the next one was renew and then the last one was age and age the last figure was derived from all all the money associated with all three clinics and counsel and mr martinez are arguing he wasn't involved in renewal because he didn't manage that clinic he didn't bill from the clinic it cetera and that is true but he did two very specific things one is he introduced mr akun and his friend who ran that clinic on a day to day basis he introduced him to the physician in grand rapids michigan who they were duping into signing these scripts for physical therapy and without a therapy script no auto insurers going to pay for the bills so it was a very significant fact the second thing he did is that a government or a government confidential informant was brought into this ring as solicited as a patient and paid and mr martinez was present when that person was taken to the doctor and told a lie about her symptoms and was also there when the plant forms were signed in a parking lot with that confidential informant and the str so not only did he introduce him to the doctor one of the first customers of that clinic was a confidential informant and he participated two very important steps taking her to the doctor and getting forms signed and so for those reasons we believe that the core properly found that renew therapy was within the scope of the conspiratorial agreement for defendant martina's in that he should be responsible under one b one he threw for that l coconspirator statement the last issue on appeal was not addressed at all by the appellant i'll just quickly say that i think that it was very clear that the trial court judge made the appropriate and right finding at the end of the case to find that the statements that