my name is chris kirk ring and along with nancy twenty we represent suzette plant i'd like to focus my arguments this morning on the adventure issues in this case in particular the trial court's decision to admit three statements made by made by gabrielle smith miss plans mother one of those statements was made to an undercover agent during the course of the investigation the second statement is a two thousand and four at a client's calendar and the third statement his was made to and social security agent after miss blandy had been arrested the government admitted or the government argued that these statements should be admitted as hard as statements o and the trial court accepted that argument and it is our it is our contention that that was fair in order for a conspiracy coconspirator statement to be admitted that the government has to show government cannot rely on the statements themselves as evidence of the conspiracy they must show independent evidence that that conspiracy existed and that is precisely where we run into a problem here and i'd like to focus on the issue of knowledge  particular in order for the government to show that gabriel smith was involved in this conspiracy it had to show that mr smith not only knew that her daughter collected social security but that she knew that her daughter was activities at the salon with affect  but there are some cases that say that concealing after the fact is in progress of the conspiracy that cannot be the case here though because when you look at the knowledge component of the conspiracy  you would have to show that that miss smith knew of the conspiracy prior to the arrest and prior to her statements to the agent and that these the critical flaw in this case when you look at the evidence that even comes close to suggesting it spirity it is it is all evidence that it suggests knowledge that is all evidence that occurred after ms smith was called by the social security agent and told that her daughter was under arrest social security fraud after she had spoken to her daughter and after that who had just immediately been arrested and after such she had been told that her so on had been searched that is how she obtained the knowledge of the of of of this allegedly legal activity there is no evidence that she knew of any attempt to defraud social security prior to that so the statement she makes after this cannot be used to compute knowledge before and that is where that is where  the trial court feared and assuming that that knowledge existed throughout this case and the it that comes through i think in part in the way the trial court analyzed this issue and as we mentioned in our brief the trial court looked at the evidence as if but we did essentially adopted the government's theory of of this case and said well if that there is true that a conspiracy existed and that is not the standard that the trial court needs to adopt in order there is one statement i believe it's one statement that she had that she had asserted her fifth amendment rights however she did not come on the record and go before the court and circuit fifth amendment rights and that that's that's an additional problem we we've been wondering why why not comma smith why not have why not if you need her why not grant her immunity and frankly that's that's a question i can't answer but but i do think that it is an issue that we that that we've been wondering about ourselves and that actually the fact that she wasn't called leads to second issue which is the crawford issue and the crawford issue really only applies to the statements made after the arrest to the agent but those statements were of statements and because mr smith was not made available that is constitutional hair and needs to be addressed as such the the the reason this is important because when you look at the evidence in this case the evidence to the heart of the government's case is that not only that miss blandy worked at the salon but that she was paid for that and that the opening arguments throughout the case into the closing arguments not in fact under count two she could have been convicted even if she were not to be asked for failing to reveal that she was i actually disagree and the reason is if you look at that statement in the statement that she adopted is cut out in isolation if you look at it if you look at the documents that were that where she w questions and she answered those questions they all associate work with income every single one of them and if you look at the two the two sentences of the statement she adopted the first one says i don't i didn't work the second one says i didn't we addressed in our in our briefs the in order for a business record to be authenticated it has to be authenticated by someone with knowledge and when you look at the dakota case from the sixth circuit deals directly with this and it says an arresting agent is not qualified the only other evidence that they have to qualify this book is one agent walked in and saw a similar book where an appointment was written in not even the same book that was admitted into evidence but  if there are no more questions i'd like to reserve the rest of my time if there was an error with respect to the admission of this evidence it was absolutely harmless error the reason for that is this begins with this mr bland was receiving supplemental security income disability benefit eligibility for those benefits are dependent upon two factors one of them is medical disability preventing a person from the ability to perform work activity the other factor is income and resources the income and resources factor did come up in this case it was not the heart and soul of this case the heart and soul of this case was the evidence which was exhaustive presented by eight separate witnesses with respect to her work activity i would like to emphasize for the court in that regard what kind of representation is to claim it made with respect to her condition preventing her from performing work activity and neck pain she vomited relentlessly she could not deal with people she stated that over and over except for the last one and all of those others are pretty subjective and certainly he thing that could be considered prove junius sure and i'm not suggesting that your honor i'm suggesting that the evidence that the government developed and presented during the case went to things that she had represented she could not do as the basis for her disability and in that regard i would note for example and first to emphasize that the very first witness presented by the government great pill brain from the social security administration explained at length what the requirements were for this program that they are medical and financial the the repeated notices that this claim that she had to report to social security if either of those conditions change if there was any change in her medical condition that might allow her to go to work and in fact mr pilfering was asked specifically what if the recipients have clear notice of absolutely your honor and be the language notifying them that is reflected in all these various documents that she's time in the supplemental x sort of record at one x five at twelve a you must report that she had represented she could you know work activity she could not particularly if she could not be around people and we have evidence i said as i said and this is what was the heart of five days a week in there working the manager of the property who saw her there repeatedly who testified that not only did she see her in the salon working she would frequently come into the property office and pay the rent well again your honor i would like to address i think that the latter point first in terms of their effect on the verdict i would say very little if any and again that they were unnecessary and i would point in that regard closing argument of the government in which the calendar book was never mentioned once the closing argument the statement of the mother to the agent which is another statement an issue here never mentioned in the government's closing argument on you fenced closing the defense counsel brings up the calendar book and mentions it several times and he suggests that the work equates to getting paid it's the defense counsel who is making that suggestion not the heart and soul of this case was the testimony from eight different witnesses that she was engaged in activity that was absolutely inconsistent with the representation she had made in order to qualify for  disability benefits the instructions to the jury make it clear that it is in any condition that she's disguising that she is intentionally despising in order to get more benefits a couple points to your honor's first that when when the government says oh well she was feeling better i think that that is something that is as is as you suggest is subjective and in instead of taking the government's word for it i think it's important to first look at what the administrative law judge concluded about in this plant it was not that she is the key issue was her mental health not her physical health and if you look at this supplemental effort excerpts of record twenty seven and twenty eight the describes as a person who does not have transferable skills to perform other work within her physical and mental residual functional capacity and that based on that that this person is not qualifies for supplemental security income now you turn to ms bland working in her mom's so long this is the one that her mom has owned for decades that is like a second home where her mental and physical problems can be accommodated by someone who loves her and who will be willing to oversee her to allow her to leave if she needs to we will be able to deal with these issues that is not something that means that should these skills or this these efforts are transferable anywhere else and so suddenly to say because she could function in this environment that was like a second home means nothing about whether she could actually go out and get a job and show up on time and be able to choose to suffer through grant anxiety attacks and and still maintain that that work second saying that working for her mother was this is a way for her to be able to confirm confront these anxieties deal with them in a manner that that she has that that has the forgiveness for these disabilities but if she could learn would not any employer with and that is precisely why we have supplemental security income now the other think that that this really does focus on the mental health of the mental health aspect if you look at the closing argument page by the nine th closely and in our response we do addressed each of those pieces of evidence they all link work activity with pain and there's nothing to say that volunteer work or other activities in fact are things references mean and if she was keeping track of grocery money here's a mom who's concerned about her daughter's mental health and her grandson maybe she's keeping track of grocery money maybe she's keeping track of money that she is actually putting into an account for her daughter that  doesn't know about in case she runs with trouble we don't know and the only person who does know was a call to testify