may please the court and he is appealing from the conviction of four counts of the superseding indictment filed in this case and he was convicted of two counts of witness tampering in violation of eighteen us c fifteen twelve b three and two here she got married here she's raising a family here and she speaks four languages including english polish mongolian and russian and because of her life history she is the gravitational cent her family and she has a very strong personality the first point that we raised in our a brief was the insufficiency of the evidence claim that the evidence insufficient to prove beyond a reasonable doubt that any knowingly attempted to corruptly persuade michael roselle in violation of fifteen twelve b three so here is my issue with lives that  these telephone calls placed by mr roselle to any had involved her saying to him if anybody contacts you stay quiet don't speak raise your fifth amendment rights any anything along the lines of keep quiet that would just to me feel like a very different case from her saying to the man who was after all the one married to the cousin taj here's your story we you guys dated you got married you lived together that's that is not silence that is something that's far more inculpatory in my view and it seems to me a jury could regard that as her urging him to tell a lie to the investigators i understand your question your  to attack right but that's not what she did right but what she didn't do in this case was tell michael roselle a lot more while i don't know couldn't a jury infer in this conversation after all told him that the to tell the investigators that their marriage was not arranged and what she did tell them to counseling him to do was to limit his statements to just the bare facts of what happened i  that your sufficiency argument frankly has has real trouble because of these kinds of problems we can all imagine situations in which the facts were friend and there would not be sufficient evidence but but we give the jury quite a lot of leeway to interpret testimony in front of it and to weigh it i wonder if you could address the jury instruction question in this shirt in and in particular what what concerns me i understand your argument to be that in essence nothing in these jury instructions addressed the corruptly element of the charged offenses on struction i would have thought the phrase without justification that the trial judge included in history after the instructions would have done the trick pretty well and you had you in the government both agreed to with remove that so i'm helping out here the  the judge the problem with the instructions is they did not define an element of corruptly at all and if you read the instructions as they're written they don't describe necessarily illegal conduct and i actually recall if that argument where the government and the defense where i actually know that the jury instructions and why we took up a particular kleis but looking at the jury instruction as was given it's clearly deficient in  this corrupt element must be included in order to find someone guilty witness to gratian of justice and it is actually is on the it gets back to back literally in the instruction conference where the government says remove without justification you say we're not saying she had a justification for saying she did not interfere so you don't object to removal of without just for you and then you go on to say well but we think corruptly needs to be in here i don't want to waive that argument and the judge says you're not waiving that objection but i'm i'm not i'm concerned though that the removal of without justification which would at least have given you a leg to argue the kinds of things you want to argue looks like you're going to could argue be argued to be invited error at this point but when i hear the word justification i think of an affirmative defense and we haven't raised justification of any sort as an affirmative defense to what happened here we were saying that she did not have any corrupt intent in an argument at the trial and here today is that she was called by michael rozelle who was set up interfere with that investigation well that and that's the question isn't it i mean why couldn't the jury regard the rest of the evidence and circumstantial evidence that she had precisely that intent that she was trying to uphold the story that the marriage was a legitimate one that she's asking roselle to lie and cover up and that's the sufficiency point well but it's also harmless error you know point and so that's where i'm going even if we were to agree with you that when all was said and done it was a mistake not to have something like the arthur andersen language in describing what corruptly meant even so given all the rest of the evidence i don't see how the jury could have convicted her without finding that she was deliberately throwing a monkey wrench into the government's investigation wow  the question is sort of evolves a lot of moving parts because our sufficiency of the evidence argument is based on the fact that there were there really was no evidence or any outwards was involved in this conversation you convince us that no jury could see it the way this jury did well but they also were not instructed on it and they were not instructed on that knowingly corrupt intent element so they are instructed th chief attempted to persuade someone to interfere with the government's investigation or prosecution of an illegal activity and that she did it deliberately she intended to interfere with and delay and prevent and that the information related to offend the you know so to all of these in stride there's a lot that is before the jury even though this one slice of the word corruptly isn't but it's  way this does this instruction reads is that it completely takes out this intent element and i think that any edwards why does it take out the intent element when the district court says she did it deliberately knowing what she was doing rather than acting in ignorance i misstated what you can see how there could be conversations where someone is advising someone not to cooperate with law enforcement that i mean i'm the it's a high perch if the instructions are wrong it's a high burden for harmlessness right but but what argument were you unable to make or unable to support with instructions that the jurors the jury could have found her guilty based on conduct that was really not a legal i'm talking to a friend if the jury believe that you resist talking to this friend as i argued and that she was advised in the friend to be careful and if not tax which if the jury had believed her testimony is that what you're saying which they could have done if if they had believed her testimony or right if they had believed her testimony and thought that she was talking to microcode roselle as an old friend which is clearly what happened here and she was advising him using the strength of her personality which is a strong personality to conduct himself very carefully and in a limited and circumspect way with the investigators she did not break the law and the jury could have still found her guilty under these jury instructions that she broke the law so under those circumstances and the circumstance in this case i don't see how it possibly could be if the other issue relating to the instruction in the home was air i guess issues relates back to the sufficiency of the evidence is that this investigation these phone calls were initiated by government investigators so it seems difficult to reach the conclusion that any edwards who was on the receiving end of a telephone call with a cooperate in individual was being story it's not as though you know he lures her into saying something in some inadvertent way there would be no doubt that this is the message she's trying to convey she does refer to i think what you're getting there is who an and her personality and if you listen to the audio of the tapes you get a feel for who she really is she's a strong person she came here by herself well i understand all of that but i don't see why the jury couldn't understand the repetition of here's your story here is your story as an effort to throw the government off i'm not i would say because they were improperly one of the reasons is because  well knew it was not true we do know what it was going to do with these instructions though the instructions are not consistent with arthur andersen they i don't think at the error level i don't they're salvageable whether there's harmless error that's another issue but where is the jury told that something along the lines of having an improper purpose defining improper think people understand it's i'm not going to say nothing about it your honor as as you're aware the government did it joined the defense in seeking the use of the pattern struction so that was our choice and that is what we proposed to the court  the government's position though is that read as a whole the instructions provided the jury that were provided did not misguided jury in the context of the evidence and the arguments that were made presented to it which is essentially on harmless error argument but what we're saying is that here the instructions would naturally be understood by the jury to incorporate a a wrongful intent argument for how how would just her son to take the fifth or the wife who were just her husband to protect marital conferences how if if you were representing such a defendant charged with this crime how would these instructions but you make that argument they wouldn't and we can see that that's that's the the argument that we're making is that because that was not the case i mean lawyers of course are thinking of alternative scenarios and looking at the instructions to hit a variety of fact patterns and that that's appropriate and correct but our the argument that i would make is that our vantage point is different from the juries jury has now listen to the evidence and arguments presented this case it did not resent anything like that situation this case the only evidence in this case was that the that the defendant repeatedly offered an innocent sounding story for  cousin she wanted to allow the cousin to live in this remain in this country she acknowledged that her intent was to ever live in the country but she suggested that she believes that a relationship with develop over time purpose under reasonable doubt standard and under flawed instructions that don't address her purpose and well that's the problem i'm having i think what i'm saying is that in that context you needed to believe her when she said that the underlying marriage was not false that's what i mean i don't mean you have to believe her with respect to her for that you could not believe her with respect to her purpose and jury had to believe that the marriage was a sham and that because otherwise the arguments the government made which was she was directing him to lie i wouldn't wouldn't have any basis right the lie is that that there was nothing sham about this marriage that just as it did the instructions ever actually say you have to find that she was urging mr roselle to lie just in so many words no i don't think they did i mean i don't they did they didn't mean i was actually helped a lot too because we're you're assuming that they said that but looking at the instructions that they kind of dance around that point and you know they don't say what we asked for them to say really acknowledge that when they talk about interfering with and it with a investigation i mean it  lawyers terms we can we can see that that would interfere with an investigation of someone took five right type of that are you know theoretically sure but but interfering in a more general context in the context of the facts of this case  in in my view has a little a different connotation where you had a lot of that gloss on it the problem you know again it's i realize you asked for something else but if you're going to say you and intended to interfere and you had the arthur andersen examples in your mind you'd want to say something along the lines of without a legal justification for doing so i mean if you're taking the fifth you have a legal right to do that if you're asserting marital privilege you have a legal right to do that and at least it gets tested at at the court all right but are are is nothing like that our argument is that even if there is an error in the instructions even if we understand that the absence of  assisted the jury and finding and acquitting the defendant because again it all gets back to the jury necessarily finding that the marriage be under my marriage was a sham and once it they really could not have convicted her without that and once they convicted her with that or you know having made that decision once they found that fact then no definition of corruptly would have aided her so to this should support the underlying finding that the referred to her understanding that the for example she at one point refers to him or says to him you remember that she was going to be deported or she was you know and in immigration proceedings so there  some tidbits and even in the recorded conversations that deal with that but mr roselle testified clearly that the purpose of those was to get her citizenship was to get to keep her from being deported and they the defendant's testimony really did not do it didn't actually undo it just put a gloss on just on the facts i'm just saying so the jury had before it mr roselles testimony that this was really all for immigration benefit nothing real about the marriage and they have the recorded phone calls her saying you got you dated you got married you got divorced that's all there is to it so many times it so the the jury can compare his testimony could have believed him and apparently did leave him and that way there is i guess it's your point there's nothing salvageable about what she said that that's that is the point and  even even acknowledging or accepting that there's there is information missing here information that both parties requested the family tree can i ask you to shift gears to sufficiency of the evidence on one of the false statement defendant what posted a four thousand dollars bond to get her out of jail and i thought the evidence was a good came from somebody else slow her testimony was that it came from somebody else but there was also at the evidence also showed was subsequently there was a ton of evidence about these bank accounts that they shared and there was money going to and from cash and and the defendant in the bank accounts including a ten thousand dollars payment that the that the defendant assisted and helping tosh establish credit like for example the bank account and believe she explained as being set up to help have a bank account and so that was that was the financial support that i can write member for the you know i didn't answer the question about the judge without justification point that you asked the my point and i believe that the reason for both sides for objecting to that language was the the fact that this was not a justification case there wasn't any evidence that put it in along the lines of recommending that somebody take five and i think that at that stage if it wasn't as clear as it is now that that would have s you know that might have that might have plug the hole that we wind up having at the end of the day and so the government is not arguing that this was invited err on the defendant's car for that pleas l just a couple of points in response for honors with regard to the relationship between michael roselle in trshavn it was roselles testimony that he hoped to have sex with her and th he hoped that the relationship would grow and that it would become a more permanent relationship so it wasn't entirely as the government frames it that there was no relationship at all and it was a complete sham and i think his testimony  the defendant and edwards testimony that all the parties involved believed and hoped that this would turn into a real relationship as far as you said enough under immigration law to spare somebody from the  sham marriage just another word second i'm asking whether whether that whether sham this this is assessed at the moment of the marriage or whether you know if it turns out like arranged marriages you know  later you know it turns out it all worked out fine i don't think we need to answer that question for this case because the issue was whether there was whether any edwards was trying to interfere with the investigation and so you have to look at her statements and see if what she was saying was a flat out liar and argument has been consistently which she was in line she was asking him to be careful essentially in his dealings with the investigators judge in addition to your honor's in addition there were there was no pressure o coercion applied in these conversations this was just a conversation and i believe we cited some cases in that brief and and we're asking the court to find that under this statute this court fied that there needs to be an element of pressure or coercion before someone can be found guilty of tampering with the witness and i suppose the interesting thing here did it wasn't there some discussion that the statute of limitations