we would have to go for the  minutes for a political life thank you i'd like to first address the wiretap issue as we've contended we believe there was a franks violation and looking at those interview with reports and comparing them to the warrant affidavit we see the omissions that were not more facts that were not included in the affidavit which were in the interview reports and so if you take the information that was omitted and place it in the affidavit and we believe that it showed a lack of the sesame and the government bears the burden of demonstrating the sesame and we believe they haven't done that in this case specific omissions there's a witness and i may have some difficulty with the russian names but  was a woman who had according to her interview report had spent one month with mr mesereau be at the villa and the agent who wrote the report indicated that in his opinion this witness had somehow or may have been involved somehow with the operation we believe that was a very underutilized source of information also owes lofsky who indicated that he was eager to help the the lawyers were yes not my recollection is yes they were lawyers in los angeles and they identified the names and i believe in one case the phone number of the lawyer and he was under arrest you know no the lawyer was not under arrest the aliens who crossed the border were arrested and they were the people who were interviewed hope with this owner franco identified the three mexican guides by name witness here v e r e s t y u k she and her son identified for the agents a list of aliens who had been smuggled across that was all the information that was in the reports that were that was omitted from the warrant affidavit the government had a wealth of information about for example the scope of the operation they knew the way it worked they knew that the ukrainian mexican guides they paid smuggling fees and then if they crossed the border successfully they were met in the united states this was the pattern of the operation it was of the same people were involved the same way relationship with mr meza risky indicating reluctance to continue to cooperate out of fear for her life i don't recall that and certainly  karate they appear to be eager to assist the investigation based on the interview reports a one of them had monitored phone conversations and appeared to be ready and willing and able to continue their use  the investigators if called upon so i didn't really see a reluctance on the part of those cooperate years what's also interesting but securely the one witness who spent a month and develop a close personal relationship with mr meza risky there was another woman who had developed a close personal relationship with mr risky her name is miss ferrie goven and what's interesting is looking at her interview report it shows pretty concretely what kind of use or what kind of information could have been obtained if the cooperators had been utilized properly because she not only identified m fees at western union she apparently was whether when that occurred the fees were then deposited in bank accounts she actually identified all of the people that went to trial on the space according to her report mr churn off wasn't best a geisha in this case i think it's stock prematurely i think they they sought a wiretap when they really didn't need it or could have gotten a lot more information using regular investigative techniques short of getting the wiretap and i think the wiretap the showing on the sesame was not made once you consider the omitted information so we saw it first of all  honor that's always the case with a wiretap you know when you run the wiretap you then get more information in your investigation you get what's said and phone calls and then normally you take what you then have now have now developed with the new phone calls and you get successive wiretap you or you run the wiretap for another thirty days another thirty days but that doesn't go to the main issue of whether you should have whether you properly legally obtain the wiretap in the first place and whether you have shown the sesame to get the wiretap it doesn't matter that you got more information later with the wiretap the question is whether you should have gotten the wire p to begin with whether you bore the government met its burden of showing that they needed the wiretap that they couldn't have gotten the information through normal investigative techniques and i think that i mean you can you can addressed this idea and said look you cannot you cannot define a scope that's so large that you can justify wiretap in every case you and you can't let me talk in terms of genetic problems of police investigation you're not going to always be able to get everything that you seek an investigation otherwise you could get a wiretap easily essentially in every case by simply saying well we want to do all of  this you have to have a you know reasonable goals and you have to be able to show why what you did try in that case was not sufficient to get through to enable you to obtain the information that you're seeking and they really did have a lot of information they could have obtained a lot more information had they properly conducted their investigation without first getting the wiretap and so my time's running down a little bit i asylum evidence against miss common circular essentially said were introduced evidence that she ran an asylum mail in st created false asylum applications or petitions for herself and some unknown others this essentially was bad character evidence the government's justification was that the fan said open the door in cross examination i think that if you look at the record this really wasn't the case  go to the issue of whether the aliens were smuggled for financial gain cross examination was consistent with this order or was consistent within the scope of the direct testimony and i should note that the government did not object during the cross examination and just very briefly there were several witnesses that the government complains that the cross examination opened the door there was aging c and we listed his expert opinion about the law of asylum there was nothing misleading about that as the cova we elicited that you came to the united states illegally after trying to get asylum nothing misleading about that he had friends who came to the us through asylum nothing misleading about that mr charney he spoke to this commissary about obtaining asylum it's nothing misleading about that and finally mr shah go off  petitions and she made some reference to going to see attorneys to assist them with their petitions again nothing misleading about that my believe that the government's justification we were claiming that miss comma syrup file truthful asylum petition for herself or that she had a service where she filed legitimate asylum petitions for others that wasn't the representation here if that was the argument then the government's evidence may well have been relevant but that wasn't the argument at all and what really happened here is that they were permitted i think incorrectly from jewish cemeteries to create her own a false asylum a petition and that no doubt created a very negative impression on the jury for her so i would  with respect to the issues raised by mr lekman start first with the wiretap it is true that the interview reports of witnesses  that included the interviewing agents opinion that these particular witnesses had a great deal of information what is important of that to include in the wiretap affidavit the opinion that they had a great deal of information or the information itself the information that these material witnesses provided was included in the affidavit and the agent's objective opinion that this was a lot of information or a little information or more information than somebody else provided really is not what's relevant to the finding of this test the finding of the subsidy and the finding of probable cause depends on the information that the witnesses did in fact provide that information was included in there the only arguable mistake in there was with respect to the one witness natalia on a franco and this was with respect to her identification of the three mexican guides who actually guided the alien group across the border and what happened in that instance was the a said that her described those mexicans as three unidentified hispanic males in fact at the time that she was interviewed that the witness was interviewed they were in fact an identified and to that extent the affidavit was correct the affidavit did neglect to mention that later on after these mexicans along with a group of smuggled aliens had been apprehended crossing the border she was shown photo spreads including the three apprehended mexican guys and she identified them and says yes those were the guys that effect that that has on the finding of necessity the identification of three low level mexican i was who guided one particular group of these aliens across the border has really no relation to the necessity with respect to a vast multinational multi continental organization an organization that had roots in kiev that operated in poland that operated in mexico that operated in russia that operated here in the united states in california and elsewhere with respect to the the ability to use these type of material witnesses i think the argument that mr lippman makes is that the government somehow had an obligation to seek using these witnesses in some type of undercover capacity to reinfiltrate the organization there's no case law that suggests that the government before stablish in mississippi for a wiretap needs to use to go in witnesses and potentially put them in harm's way and pressure them or or use them even if they're willing to be used in some type of infiltrating posture as a cooperating witness we're also talking here about a situation where there really was no legitimate reason for these smuggled aliens to recontact the organization once they had been smuggled and in fact when one alien karate tried to do so as outlined in the affidavit to john a komisarek was obviously very suspicious and terminated the call because he wouldn't give her a phone number for her to call him back at we're not talking here about something like a drug organization where maybe somebody can be sent back in to make additional and maybe wear a wire cooperate with the government these people had been smugglers they were done there was no legitimate purpose no nonsense fishes purpose for them to recontact the organization at this point in the suggestion that the government had to use them in some type of covert way material witness as to whom there is no allegation of omission angostura dover identified the seven people who went to trial in the case well the fact is eighteen people were indicted in this case including six people in ukraine  who still remain fugitives the identification of those individuals of the entire scope of this organization was something that was obtained through the wiretap each individual smuggled alien may have been able to provide the government with limited information about their own story about who they met who they were smuggled by and as we pointed out in our brief and as the affidavit shows many of those were by first name only i met somebody named olga i met somebody named jose but with respect to uncovering the reorganization that was going on the contacts between europe and mexico and the united states the flow of money the money laundering the banking information the plans for future smuggling incidents that could be intercepted none of these individual smuggled aliens had anything like that information and couldn't have had that information and therefore there was no intentional or reckless omission there was no need for frank's hearing and with respect to the illegally entering the united states we very quickly established your first witness in this case the fact did not happen with respect to a single one of the aliens named in this indictment there was no application for political asylum prior to coming into the united states well the case what the was the cover that was the way to avoid being sent back the intention of course was for them never to be caught and that's made abundantly clear by the transcripts as well by john a saying oh this shouldn't happen anymore we've got a new route now nobody's getting caught  two purposes one to the extent that constituted a defense under aguilar which as i just pointed out it didn't with respect to any of the allianz and the only other purpose for which the evidence could be introduced for which any evidence relating to political asylum could begin relevant was insofar as it would disprove the elements of financial data disprove that the defendants were acting for the purpose of financial gain and i should point out here as well that the law is clear that financial gain need not be the only motive it needs to be a purpose  struggle for humanitarian reasons and also charge money for it and do it for financial gain and that would violate the statute but given that limited purpose for which the asylum evidence was relevant the questioning of asia caught are all for i think about ten pages on and on about what it takes to apply for asylum and how you have a credible fear interview and what credible fear means and what the ins does when its ruling on that type of application the questioning of the material witnesses didn't you talk to touch on the komisarek about asylum didn't you in fact overhear her talking to other people about asylum it clearly showed in addition to the pretrial that occasion where the defense was going and that was in fact where the defense went and what their entire closing argument was these people weren't smuggling for financial gain these people were smuggling to try to help refugees get political asylum the money that was paid that wasn't a smuggling fee that was a retainer for attorneys never mind the fact that the wiretaps transcripts on the banking records thoroughly disprove that but that was the inference for his client such on the commission route was trying to raise with the jury through all this questioning about didn't she also talk to you about political asylum then she advised you about political asylum didn't she suggest that you apply for political asylum didn't you hear her answering other aliens questions about political asylum with the only relevant some of that evidence under just talks to the sort of being to disprove the financial profit motive financial gain motive then the government was in a position to respond by showing that all this talk about political asylum was yet further evidence of in fact a financial motive that all of this stuff about political asylum was simply evidence of yet a further stage of criminal conduct in th aliens by the hundreds to line her bank account and once that impression was created just talk us through the fairly looked at the evidence and said the government has a right to prevent the jury from being misled to at this point show th in fact there was nothing legitimate about that asylum business about those asylum conversations she was simply offering to help these aliens commit further fraud for yet another fee it had nothing to do with the smuggling fee that was paid it had nothing to do with any legitimate claims now we did not seek to introduce that evidence early in the case and had mr lippman not raise the issue in the way that he did that evidence might well have not been admissible although i think we could argue that it is inextricably intertwined with the entire smuggling organization but we also had evidence that other defendants such as lowering of the tuition to jonathan mr rich thought he was involved in that asylum fraud we had conversations of her on the wiretap talking about forging asylum documents ukraine and they made an issue all the way through the closing argument when mr lippman in fact called me to task and challenge the government for the fact that the government hadn't addressed anything in its closing argument about political asylum which was the key issue in the case now what when  defendant is going to make political asylum the issue in the case and argued before the district court in the sponsor of the government's motions and eliminate over and over again that it is relevant that it is the key issue to the case that the same council cannot jump up and cry foul when the government seeks to introduce evidence to show that in fact the defense claims about being involved in political asylum were bogus and were simply a further aspect of that defendant's criminal conduct that defendant brought it into the case brought it into the case and hammered  over and over and over with every witness and just talk so he certainly did not abuse his broad discretion in the admission of evidence by allowing the government in response to raise the truth to demonstrate to the jury the true nature of tejon how mr rove's involvement with political asylum there's an issue that was raised in mr lincoln's reply brief that he didn't argue with the courts of commission have a few minutes i'd like to address the jury instruction issue and this is the issue of whether there is a conflict between the ninth circuit approved thirteen twenty four elements instruction which requires an intent to violate the u s immigration laws and excuse me the ninth circuit approved general knowledge instruction which states among other things need not know that his acts or omissions are illegal as you point out in the brief it's the government's position that there is no conflict here because one deals with intense one deals with knowledge and the united states versus nguyen case knowledge instruction made clear but i would submit the court may not even engage in that type of parsing of the intent versus knowledge requirements here with respect to any any conflict in the jury instructions because even though we believe there was no conflict it's further objection to the commingling instruction on the ground that it shouldn't apply to the one nine hundred fifty seven counts i believe that the proposed instructions and the defendant's objections to those instructions are included in the excerpts of record and there was nothing in there  error and whether that error affected the defendant substantial rights there was no evidence introduced at trial of any legitimate funds any funds from any legitimate source going into those accounts so the jury didn't need to rely on  theory and the government didn't need to argue a commingling theory we use the word tainted that was perhaps not the best choice of words in closing argument but the fact is the bank records that were submitted and the evidence that was presented to the jury showed that those accounts  trial by the defense to show a legitimate source going into that account by showing these deposits from estonia traders the government then came back and match those deposits from a stone to traders with intercepted calls intercepted faxes relating to smuggling fee limitation on the invited error doctrine but at best this will be reviewed for playing there with respect to the commingling instruction and it with respect to whether there was any type of miscarriage of justice or any effect on the defendant substantial rights again given the evidence in the case and given that there was if you don't want fact think that the government's right and the government's not against him to prove beyond a reasonable doubt every element of the claim i mean think we did in this case i think that the court looks at the evidence and at the bank records that we included in our excerpts all of the evidence the government presented showed that this account was a repository for smuggling fees the bank statements themselves show these deposits in round numbers twenty two hundred twenty five hundred three thousand four multiples of those numbers which the evidence of established where the smuggling things that the organization charged the intercepted faxes and telephone calls that were introduced at trial gave instructions to aliens and to their sponsors to wire the smuggling fees into this account the deposits from this unknown it's going to traders in latina were directly connected to smuggling fees and was shown again through a wiretap transcript komisarek was solely and exclusively a repository of smuggling fees and the fact that the jury was instructed that they are could find guilt on the one hundred fifty seven counts based on a theory doesn't bear on the defendant substantial rights because they were also instructed that they have to find that at least ten thousand of that transaction came from specified a lawful activity and the government prove that every dollar in that account came from specified not something that would go into the war i think the government misses the point not so much that that would go into the war and what's important is that this is a surprise tensional source who had a great deal of information about the operation who could have been used to five taint further information about the operation the government says well they had no obligation to use the cooperators and they had lost contact with them my recollection of miss should have issues report was that mr mesereau risky had asked her when she got to los angeles to have further contact with him this appeared to be a ripe source of further information so t omit the fact that a potential cooperator has a great deal of knowledge about an operation from an affidavit is critical information because it goes directly to necessity if the judge reviewing the application knew that you had to cooperate or who was closely related to him as a rich key and had a great deal of information had key information about the operation that would be something a judge would want to know next could as if there's a quote goes in being the identify identification of the of the diets there were other omissions which i listed which i stated in response to your honor's question earlier were our position is that the government is not required to use cooperators but they are required to show necessity and if operators are available to further an investigation then the government has an obligation to use investigative style m issue i think what's important to understand is the evidence that the government introduced had mostly to do with of her own asylum application and it was reference to the fact that she had done this before regarding unknown aliens there was no showing and we mentioned this in the district court there was no showing that any of the aliens that she may have been involved in false asylum applications were any of the aliens in this particular case that was what that were mentioned first of all was not objected to by the government and second of all it was consistent with judge tucker sickies order who made the issue of asylum relevant other under certain circumstances and  order to lay a foundation we introduced tapes in the defense case wiretap tapes of miss com the circuit discussing the issue of asylum and the issue of fisa the question one of the questions the trial was what were the fees being collected for and we introduced evidence which we believe supported our contention that the fees that were being collected were for purposes of paying attorneys to do asylum petitions legitimate sa asylum petitions and so in order to lay a foundation for that that evidence the jury needed to understand the asylum process so asian cotterell explained the asylum process and other witnesses the reality of applying for asylum was a listed from other witnesses who either try to apply for asylum or knew people that had applied for asylum there's nothing misleading about that what the government really did was they showed with their evidence that miss come the syrup was involved in falsifying her own asylum application but that had nothing to do with this case and that didn't offset any kind of impression that was presented to the jury previously in fact there was no real impression or certainly no misleading impression that was presented to the jury the fact that certain witnesses had discussed asylum applications somebody it's character when when it goes when you're introducing prejudicial information against and highly prejudicial information and by the way the judge never did a four on three analysis when you do when you introduce highly prejudicial information against somebody i think i think it affects the jury's impression about about their character and about them individually and it creates animist on the part of the