good morning may it please the court we tucker for osama for your honors when we choose to strip an american of his disney ship and banish him from the country that's one of the most drastic things we can do and for that reason it's not something done lightly and congress has ensured fifty naturalization is not done lightly when the supreme court looked at the denationalize ation statute eight u s c fourteen fifty one in the court held that the naturalization requires that the naturalization have been obtained through willful and material misrepresentation or concealment so in other words in order to lose your citizenship once you have it you have to companion to forty fifty one indeed fourteen fifty one references fourteen twenty five and once someone is convicted under fourteen twenty five fourteen fifty one allows you naturalization by the district not a case of waiver first of all just to correct a perhaps a misapprehension the way that happened it was right after the government's closing argument and the government had closed throughout the trial people had been talking about materiality no one had asked for materiality instruction and the judge had not included one in the stock instructions the government finished their closing and the judge called every one side but not everyone called counsel five aren't that you keep talking about materiality would you like instruction the government did not say yes we wanted instruction they said well we don't care defense counsel declined and instruction saying well it's not an element and so no we don't think we need it and the judge in fact at that point again materiality is not an element but you want the instruction so it's clear that at that point nobody knew waiver of such a fundamental right requires that it be known that the party making that waiver know they have that right nobody there knew that i had that right not the government not the defendant and not the judge it's very much like pez the pet is case from this court in that aspect furthermore this is the kind of case where if you were to have waiver o when you need more than just defense counsel at five are saying no i don't think we need it in this case you would need to have participation by the defendant and some procedural protection to ensure that it's a voluntary and knowing waiver and and it wasn't offered by the judge and the judge didn't say wow there is actually a required element we're not submitting here it's materiality the ninth circuit requires that he was responding soley to the content of the government to the to the closing i do think it's different in pattern and i think it's different both because of the off the cuff eleventh hour way in which it came up and because this is not just any doubt this really esse friend not waived yes your honor indeed i think it undoubtedly forfeited and could not be waived given the circumstances given the law given the fact that this was the crux of the case without this instruction and conviction was guaranteed and i'd like to reserve my remaining time for about  situation that would be something that's evidence of an affirmative waiver relinquishment of a known right and a no right was the right to have materiality instruction given that's why this is clear waiver counsel nobody seemed to kno government stated that it didn't believe that it was an element of the it didn't state that the government stated it didn't believe that it was required although it didn't object if the defense wanted to have one and also it's not just that defense counsel stated that he thought that the elements were accurate as to that he also noted that the government had not presented this in the indictment which shows that there are also would have been possibly a tactical decision to this defendant having noted that the government hadn't put materiality out word in the indictment  also this court noted at the time it decided there were no published decisions interpret in fourteen twenty five and whether or not materiality was required now the legal landscape has changed a bit and in well the supreme court noted that i actually that's that's not i respectfully disagree with that the phrase contrary to law can't be read as contrary only to fourteen fifty one and nothing else that's what the other courts of notice from southern used to new york eastern district of virginia and center actually i respectfully disagree with that if you look at the jury instruction in this case and the defendant's record page forty five as well as page sixty the defendant this is what the defendant's jury instruction read and it tracked the indictment this case to we believe the defendant was given sufficient notice of this charge and that it would in compas this kind of behavior so he had the opportunity to prove present offense first the defendant knowingly naturalization as a united states citizen contrary to law he procured his citizenship contrary to law by willfully giving false information on the form i one thirty relating to his application for permanent residence status because he willfully did not state on the form i one thirty that he was a married to a spanish wife and thirty willfully means the presentation was voluntarily into literately made the jury convicted him of that offense if found he knowingly mr presented this and also the reason that we know ten fifteen w about how fourteen twenty five its companion to forty fifty one but if you look at fourteen fifty one when they talk about canceling citizenship it says if somebody has violated fourteen twenty five contrary to law it doesn't say contrary to  forty fifty one and that's the thing is this court didn't have the benefit of wales at the time it decided i don't i here we are there's a district court there's a lawyer in that case she has parity which certainly appears to be controlling she doesn't mention it why so that ineffective assistance right there i mean i answered that i wanted to i forgot i meant i wanted to mention defen moving to the answer your question why is it not counsel you prejudice you can waive jury instruction can you even instruction on in the tutorial element when that's an element of the crime yes you can in paris they were referring to the language from the court for some reason the case is escaping me now but i could have sworn that there's perez they were talking about the overt act requirement submit to you that if you don't ask for an instruction and you have and it's not a matter of not asking for it you say you don't want it the district court then and as a district court here said you know i think that the statute  indictment and the jury instruction mirror each other but if the defendant objects to getting one of these i'm not going to give one and that is a classic waiver that's why this is waived and yes you can waive that issue but i'd like to talk about why it is in this particular case even if you find you're bound had a u s citizen at the time that made the validity of prior marriage is particularly relevant and in paris this court noted there's no miscarriage of justice if it looks like the jury had received strong evidence of the  materiality elements here that the government would have to prove that this white house matter in fact that it would have made a difference and that much congress seems to say that the fact that the government would have investigated isn't enough that in fact they would have had to demonstrate that the outcome of the investigation would have made a difference actually not as much hard on and i read it realized actually actually you know i think i think you might be  incorrect about that with all due respect your honor i think if you look at port a page thirteen zero three this noted that the stick in this statement made in puerto was material because they had a natural tendency to affect the here because agent johnston testified that in order for them to check the validity of this person's marriage they'd have to have the information on there there is evidence in this case because we presented the evidence that he applied have disqualified him and when the ins officer was asked i guess was minus officer but i was asked about what the government's policy was with respect to multiple marriages in a country that allows multiple marriages he said you know i don't know i would submit to you though a few more facts because the defendant stated that these particular answers were not a political to him that is so essentially important determination of whether or not his current marriage upon which he's applying for is the natural tendency to influence and we don't have to show that the guy would have been barred from being entered into the country because of it i don't believe that that's legally required when you talk about materiality and because the defendant this case so clearly waived this issue i think it's like par thank you i'd like to make a couple points both as to waiver and to materiality first i'd like to clear up the government stated in response to a question from judge fletcher that one can waive submission of an essential element i disagree with that and says quote here we are dealing with a sort of constitutional violation failure to submit an essential element to a jury believes the on waiver in which you stated that the courts will indulge every reasonable presumption against waiver of fundamental constitutional rights back to materiality i don't know that the court  as a practice a logical matter of and a matter of such strict instruction to not have materiality also be part of fourteen twenty five and again you've ruled that in court to the supreme court announced this include just as a political here too and then going back to the issue which was just discussed as to whether this would have been material would it is the test and didn't have to have been likely to influence the decision or as counsel for the government suggest would it be material just if it required more investigation well i think the former is the correct reading but in any case i would urge the court if needed to go to the jury regardless of which standard one was taking into account the