particular questions the court may have to give some semblance of the structure of how i thought i would proceed i will address the issue of the procuring farce paul citizenship count primarily first and also touch upon the severance issues before so i'm doing so i thought i might anticipate a question the court might have namely whether or not if the court were not to reach the question of the assertion of ineffective assistance of trial counsel below severance that we have argued we have argued two issues of severance that the court improperly denied appellants motion for severance of couse under rule eight and our analysis of that is that  failure to renew the motion for severance has no effect on that issue because of this court's decision in the united states versus terry which i have extensively discussed in the brief and the court's specific lee held in terry that a rule eight a motion of this type does not need to be renewed in order to be preserved on appeal so there would not be a shift in standard on appellate review and therefore the court would not need to reach the question of ineffective assistance of counsel you know what that or that issue and of course that makes sense since the rule eight motion is an error inherently more related to the pleadings themselves then what may transpire a trial in terms of the evidence now counsel also filed a timely motion for severance under rule fourteen and we are going to hear argued and i researched in this argument there is a fundamental unfairness of trying these two cases these two groups of cases together the medicare health care fraud money laundering accounts with the false and ship claims because of the sort of factual inevitable prejudice  flows from considering this is a man who supposedly defrauded the united states to obtain a citizenship now is defrauding medicare counsel both in their opening statement and in their closing argument made pointed references to the impact of the medicare the factual matter it struck me as highly prejudicial when the when the prosecutor is making these arguments about the tax system you have an immigrant's that it just it does for your argument is that the government has to try found not guilty there would be no need for seed on any citizenship claim if the defendant was found guilty the same jury could consider the false citizenship claim they would then have these facts product for them that did not occur y the strict procedural requirements which must accompany consideration of a false citizenship claim because of the impact upon those claims and i would argue that those considerations should also govern the would need to be applied on appeal however in this case the government has and i believe properly conceded that a motion to renew the severance motion would have been futile the government argues that position of course type at the end of a trial would be a needless formality there is no need for it to be renewed and i would argue that that is exactly the situation that exists with respect to the severance motion equally important i would argue that the co can and should consider the issue of the insufficiency of the evidence on the false edition sept callup because the renewal of emotion under rule twenty nine would have also been a needless formality and therefore that issue was not waived by trial counsel below the one issue that i would concede the court is in is required to consider differently unless it reaches the issue of ineffective assistance of counsel is the jury instruction on the knowing element that relates to the false citizenship count i can understand i have not found a case that says that that i mere technicality and i think that counsel could have appropriately offered alternative instructions particularly on the issue of knowingly that would have clarified a situation before the court that i believe what resulted in an erroneous jury instruction so with that backdrop i'd like to turn if i might to count forty nine and i think it is helpful to state just a couple of very incorporate as part of the reasoning thirty four counts of the indictment which had not taken place in february of one nine hundred ninety eight when mr abramoff appeared for his third interview before an immigration service before the immigration service there with no clarity regarding this clear anomaly in the record by any of the parties below but you have kind of a shotgun charge that says we incorporate are a an extraordinary amount of law stating consistently that very strict the stage will safeguards must be observed before a person may be convicted on this statute and that is because the statute itself has such serious consequences those consequences are starkly illustrated in this case and there are cases from the supreme court schneiderman challenged other cases i won't repeat the language but there s i have the applicable quotes in my brief let's say we must be very very careful before we drop this kind of nuclear bomb into someone's life and result in their being deported in this case assertions of of my opponent has indeed recognized the significance of following those civil standards in a criminal case the united states argues well this is a criminal case they don't apply and there are cases from the mccarthy era where your honour's in the united states of whoever which is cited in my brief consider a different issue the question of materiality for a case of this sort and determine that the court would specifically look to the civil cases covered governing the standard of materiality under the naturalization proceedings even so as the court pointed out in that case the court recognized that it would result in i believe the court's language was an anomaly so if the constituent materiality requires that the court take a careful look at  at at the whether the evidence is sufficient to support issues of knowledge for example materiality it applies to the issues that are before the court in this matter i would argue  what is the record here and i and the counsel has devoted an immense amount of time in his brief and perhaps appropriately so to the record of the proceedings regarding mr abramoff involvement in health care fraud but the evidence that my client false least admit it a claim to the immigration service which should result in his conviction and therefore the naturalization consist of and one other bit of testimony that i would argue is not entitled to any weight at all the co defendants gratuitous comment that of course he knew he was committing immigration or it was committing healthcare fraud at the time returning to the act agent testified yes as a matter of routine she she did ask that question he gave that answer and although as a trial counsel pointed out the question itself went to the key issue of moral turp and when one looked at her notes relating to that issue there was nothing in the file reflected so it's a thick mark accompanied by testimony but it's a very thin reed i would argue and one that one must approach cautiously considering  the other problematic concern that the jury appears to believe the testimony plus the check mark that's correct that's correct and i argue that they should not have done so and that that was not rational for them to have done so  requirement must be proven and that it's important in fact there's a footnote talking about the naturalization being one of the important our arguments so our argument is drawn or that given what must be required to establish knowledge but it's far more than what was set forth in the jury instruction in this case they have to show some kind of intentional knowledge intentional act that you were deceiving the immigration service when this occurred and i guess what troubles me in this case having has been in this area of practice in criminal law in federal courts for most of my professional life is that there's something very unsettling about a person being convicted and therefore deported when the question is have you ever committed a crime for which you have not yet been arrested when i first took this appeal i thought there must be some constitutional challenge to this that has occurred over the years  under rule eight i think that is analogous to it although it is off there are differences it is analogous to that kerry case the terry case which talked about the joinder of gun offenses and drug offenses and what held this together in the government's view is the notion that if the offenses are connected together but connected together means something more than simply overlapping proof what as i read the cases the cases the talk about connected together are talking about essentially unitary schemes so in this court's decision in united states versus port tack that was a an antitrust case in which a president or an officer mr wolfe had given perjury is testimony before the grand jury and the court found that those cases were properly joined because the commission of the perjury and the antitrust violation were part of an all to aspect of a unitary scheme now the government argues attempting recognizing i think the flaw in their argument the government argues that really what you have in this case are two instances of deceiving the government but that's not what was presented to the court before the oil and moreover the government argues that they are all part of a common scheme and that under the common scheme aspect of roulade jointer was therefore have been proper but the court did not consider whether jointer was proper under of the common scheme component of rule eight below nor does the government argue that it was so really when one looks for ties that can bring these cases these two counts together they really do not exist the only thing that does exist is the convenience of the evidence and i would concede that it would be more convenient for the government not to have to try this case twice but the law is the law on rule eight and there are consequences to that that's why rule eight exists and i believe my client was prejudice please the court my name is peter when for the government the appeal today of all ticked issues five of those issues addressed the question of the immigration fraud count i'd like to focus on those primarily in my my daughter and broke into those offices stole from those offices documents and records basically a roadmap to commit a medicare medicaid fraud took those documents home to his father's apartment his where he was living at the time studied those for a week and then on his own initiative started the start of the e g a fraud which of course  participated with his girlfriend building so the jury had the break in the statements also by mr ron off that he had learned how to commit this type of a fraud that is to charge for the expensive stuff and give the patients the cheap stuff in the former soviet union so we have we have that background we also have this testimony of the patients and the testimony of the patients was quite extensive blankets or mixers or shoes and in return they would give mr abramoff their medicare and medicaid numbers and then mr abramoff turned around and bill for expensive medical equipment but they didn't get now these patients also testified that they signed blank delivery tickets and those were dated and they're in the record and those are dated pre that wherry nine hundred ninety eight contemp patient actually got the equipment he would actually test the testimony was he to fill in those delivery tickets with the expensive items of the quitman which of course he hadn't ordered yet so based on this record mr says the only evidence the government can point to is his sort of conclusory statement of his girlfriend well that's not correct because there is a mass mass of evidence of his extensive involvement in this crime who don't speak russian we've got patients that don't speak english and we've got an interpreter in the mill convincing the doctors to write prescriptions for the expense of mental equipment this is a very exploit scheme and it's very very well it's it's basically impossible for anybody to have been involved in the scheme and not have been aware that they were committing a crime in so doing and that's what the jury had in front of  was her regular course of business but she testified the rest recollection would reflect refresh she recognized his photo from the from the application form and she went through each and every question on the and mr abramoff when she went through those that form with him corrected five different of the answers five different answers to indicate that he was aware but that was to update them to the date and that last interview was on the day he was sworn in to be a citizen of that chris is correct is customary to interview all people on the day they're being sworn in i think it generally takes place that way they do one last interview to update the form and then elsewhere them and if it's everything's fine so it's a it's a it's a double check to make sure that the information is update now mr abramoff i mean let me back up the reason i'm asking this interview a thousand people on the day of the naturalization ceremony or even probably in the weeks before that executes well i incidentally i don't know exactly what the statistics are but i went through one of these cases about a year ago on another matter and learned that the local practice appears to simply swear the man after their interview and have the district director swear the man i know that in other jurisdictions and frankly disappointed because i think the ceremony is quite e did go through an update and correct that form he knew it was it needed to be up to date he updated other information in the form he signed it as of february eighteenth and then there's a separate certification on that form which you sign indicating that it is up to date as of february eighteenth so i think the jury when it when asked it's when asked the question furnishes a question of the jury instruction they were asked whether he knowingly misrepresented his criminal history to the ins now the actual jury instruction which is being challenged here and i think that it's useful to read the jury instructions carefully is  by by making a false statement on an amended sworn application for naturalization ordering this for an interview with c n n s now you read that and it seems that what he is being accused of doing the is making a false statement basically cherry juice and by making a false statement now the next sentence is the defendant did so knowingly a fair reading of that jury instruction knowingly refers to by making a false statement now of course the jury instruction was not objected to at the trial court and i was trial counsel as with mr lloyd  here but the question is whether the charge could be the question before this court is not whether the charge should be more artfully drafted the question is whether the jury was misinformed whether there's a likelihood ms and the review of course is on a clearer view now when i argued the case to the jury in closing argument i made it very clear that the jury had to find that it was not simply a false statement because you can make a false statement accidentally through honest mistake the jury had to find that he knowingly lied that he knew what he was saying was false and he lied about it and based on the record in this case i think the jury had more than ample evidence on which they could have found that in fact it was and knowing misrepresentations of a fact now mr abramoff has raised a question about the fairness of that question itself the words he's saying there's something unfair about asking someone have you ever been arrested i mean have you ever been have you ever committed a crime for which you have been arrested and  he quite rightly pointed out that the supreme court has addressed that particular question and has not found the question itself to be improper but has imposed a fairly high standard of review you have to prove that someone statement was knowingly false that has and it was material and they have to prove that beyond a reasonable doubt and that's the way the jury was instructed and that's a very very strict standard review there's a plus and that is applied to this kind of question and it's also important to know that if he had answered that question yes he would not automatically have been  these were properly doing doing things thank you this courting treatment as well as the supreme court precedent holds that rule eight is to be broadly construed to permit jointer and there's no question that the evidence of the immigration fraud and the evidence of the health care fraud were overlapping and in fact the issues in the trial court they were completely overlapping this program of defense in the trial court by the way the argument here about whether or not knowing heat with a government showed he was knowingly making a false statement that was not the focus of the trial court defense is nonexistent as as this court correctly pointed out you have to prove the health care fraud in order to prove the immigration fraud and he mr abramoff argues that but it doesn't go the other way but the question for this court and it's not really a rule of a question the rule is that it's clearly properly joined because the overlapping evidence and there's a lot of case law to support that the question for this court on the rule on the severance question is the rule fourteen question and it goes to prejudice where is the prejudice from trying these two counts together now there's no prejudice as to the health care has to the immigration count because the jury is going to hear all of that evidence anyway only prejudice that you can find goes the other way goes to the argument that he's making here today for the first time that the government sort of to train him with this sort of ethnic stereotypes which frankly is nowhere nowhere supported in the record and as terry kellogg said in the trial court he said it was a clean trial and a good trial and i doubt he would have said that if he'd experienced the kind of prosecution that is being characterized are today now however the question is prejudice and we look at the question of prejudice as to the health care f not the ins count on that prejudicial question he's not he's not proposing he's not here to take challenging his conviction for healthcare fraud that's not before that he's basically that's over so he's saying that the government unfairly convicted him of the health care fraud because we were able to put in evidence about an immigration fraud but he's not challenging the health care fraud issue but he still thinks there's prejudice and i think there's some inconsistency in that position that second issue is pressed to prejudice and i think that's the important place to focus is that prejudice was not an argument made to judge rusty  jury was instructed appropriate this court and the supreme court has held that there are other solutions to the severance other than other solutions other than severance among them being trusting but if you think about the question of prejudice just with respect to this last issue which is what is the prejudice as to even health care fraud if he was innocent of health care fraud then he would be completely free on any question of a program on the ins to hide because he would have told me i know the  when you think it through in terms of this record it's difficult to find it the argument the only argument we've heard is this ethnic stereotyping point and that's not  well it's hard for well with all due respect to the prejudicial nature if it if it were prejudicial at all and i'm i'm i'm less convinced but but kinds of prejudicial questions can be addressed well finally before i can and i only have just a few more a few more seconds the i'm not sure the court other as i stand here today i don't have a position i haven't had a chance to think through the blakeley issues in this case because they haven't been raised by the mr abramoff but we certainly would be more than happy to address that in supplemental an excellent work at but it's come it's about having it having been a clean trial i think must be taken in the context of the fact that he failed to renew a motion for severance failed to renew motion till the final rule twenty nine motion failed to submit your instructions on the issue of knowledge those failures maybe they may have been the result of being in a court with it a court who seems to run as counsel puts it a tight ship may be understandable but they have real life do so here which is that this is a case in which the person who got the deal was far more culpable on the record than my client if one reads the closing arguments it's very evident that miss took direct go live in every aspect that one could find she was trying to protect her daughter who was a cream at student i understand a medical student the daughter had been involved in the fraud in the evaluation in the burglary itself miss took around go was the person who was outside flashing a life's she was she in the world we live in and she got the far better break her nationalisation was not overturned my client's was he went to trial he made that decision i had no part in that decision but that's where we are lastly on quickly your honor and i projects not to have thought this out before today but our position would be that if the supreme court were to find likely to be retroactive and have an effect on the guidelines of cases of this sort then at least the issue of abuse of trust which is the two point adjustment would be ripe for consideration by whatever  trust that accompanies the self reporting system which is the nature of the medicare or medicaid billing system that i forgot the words exactly but we can't have to result rely on people policing themselves so i think she did make findings those fact finding were not made by the jury so it's likely doesn't apply and if it's really retroactive then there would need to be a jury determination on that question i think on the issue of the i think i've rather submit a brief on this i suspect that there were evidence submitted to the jury on what the amount of loss was but there was no specific finding made by the jury so arguably it's blakely's applies  retroactive then even though the jury consider the question they made no finding and so therefore that would need to be considered as well in the you agreeing with m cases have held that when there is sun overlapping evidence that jointer can be can be proper because the ruling can be that they are connected together but this court has in the terri decision a let's assume i think only the core had granted so and the trial on the immigration issue that proceeded first wouldn't the evidence about the medical that is a great question and i think it depends upon the elements of the offenses for these other substantive counts and whether they were proven recognizing there's a money laundering scheme alleged as well and i would i guess mike my final point on this of the court permits this is that in my view knowledge is a charm that must be applied to each crime before the jury and indeed the instruction that was given gave slightly different definitions of knowledge for example for the money laundering counts in our view i think one of the things that was missed here is that knowledge means something different in the consequence in the context of these immigration cases because it's not knowledge that i have built medicaid prop improperly it's knowledge that i am making a false statement and the strength of the evidence of other criminal behavior may be probably argue by my able learned friends on the other side to support the interests of knowledge of the false statement but unlike some of the