of the court date three instructions to the instructions at the time exhibit one was submitted and the second time at the during the jury instructions we believe the right to confront the witnesses was the government this is that there were other people besides the brothers who were part of the operation of the company my first question is did any of the other employees or personnel in the commy testif well let me ask you a question but for the fact that this is a corporate environment how does this differ from other briton cases that involve say you know violent conspiracies where you money so there were two separate allegations in the superseding indictment one to defraud on the phone to obtain money and the cleveland tastes the united states supreme court reversed a mail fr prosecution on the basis that if you were only if you were not to sing that necessarily knowing that if you were seeking as part of a scheme to the fraud to obtain a license that was that well there this was in part at least and scheme to defraud workers of money because when you bench them and you don't pay them then they are deprived of the money that they were supposed to receive when they came in the united states not in our view if it was or it was part of their argument at one point but it's unclear just to what extent it was how excessive that argument was but nonetheless their main argument was a sense of false statement as to which false statements they were referring to and there were specific allegations of the overt act part of the indictment on his in the conspiracy the court ultimately only instructed us to count one on the visa violation of  instruction requested on the happier client i know you want to talk out i did not they did not did not do that there was no motion in limine a before trial or anything that wasn't done there's a specific  went well where i think it's one point two five of the model instructions for the circuit criminal that contains a instruction but it was not offered but nonetheless there were very very substantial other which which of the false statements of a court or the jury must find in order to find the defendant guilty or the defendant's guilt and there was evidence from the government's summary witness  two hundred some odd different false applications that i mean you said i had a third act with subsections very false two hundred subsections is that where you're implying i went one way to handle that was a special verdict instruction to say as has said out of one point two five of the model office circuit instructions is that there are a number of false statements but you must agree even the moon you almost unanimously agree as to which false statement that you found was false but given the gravity which you argue why wasn't it objected to or affirmatively asked for i mean we know you know trial judges considered on the plane there i don't know why they didn't i don't know why the government didn't ask for certain should that be considered as plane air but the point is it's one of those kinds of things that the whole point of contemporaries objection is aimed at made here in context because in context and given the case law there is no way this court can find that was an abuse of discretion the discussion about this exhibit began in the pretrial conference and it was an ongoing conversation th went on between the court and the parties through the second government witness the court did not make this decision quickly and she consulted numerous amounts of case law cited by both parties for she did in the beginning she was dubious about this exhibit because she understood that jane until in the end were two of the principals in this company but as surety of the case law and it just as important as she found out what the defense's theory of their case was she found that in context this letter did not directly implicate the tool in the end up and that was because in the pretrial conference she became aware that one of the defen the defense theory was that a tool and j man they were going to point the finger at other people working with and i've gone as the perpetrators of this illegal scheme and at one point she asked the government c leave the courtroom and had a sealed ex parte hearing where she heard the extent of the defense's theory on that and i welcome the court to look at the transcript and it was after that that she began understanding opening statements where they they develop this theory and they point fingers at numerous other people and dive on who many of whom testified at the trial they used words like these people had their own agendas and  delegated responsibilities for immigration related things to these people she saw that very develop and then after that she explained in deciding to admit this exhibit that based on the case law and that there was no direct implication of a tool in the end in this letter and that there were many other other people with and died on who could have committed this fraud in not having done a little at all that this letter was admissible now obviously she coupled this with a very strong limiting instruction as i emphasize in my brief she gave that limiting instruction three times twice before the letter with admitted she read it because she it was a long instruction emphasizing that the jury could in no way infer that when the letter referenced wrongdoing by dive on it was talking about a tool in the end and she really read it and then she again included it in the final jury instructions and the court in her discretion found that this preventative measure would keep the jury from drawing a bit prejudicial inference from this letter and i also want to emphasize how careful government counsel was with this letter government counsel only referred to this letter once and it was one time in closing statement and he prefaced his reference to this letter by saying and i want to talk about a piece of evidence that goes only to jamie and only to jane and and then he explained how that letter showed that jane and knew what was going on it died on and that's why that letter was still relevant and why judge lynn understood that it was important for the government to have that letter in because jamie and as defense specifically to him was that he was out of the country a lot the time he was in the london office he was also doing other things he was helping to buy an animation company he was delegating responsibility for the company to others and so the government needed this letter and to show that je knew what was going on because jay was the author but the letter didn't show anything about what a tool would have known was going on a dive on and that's why it was admissible but the government counsel was careful also during the presentation of evidence the only time government counsel referred to this letter was in the witness who presented it  the witness who presented it was on and off the stand it was about five transcript pages of testimony and all the witness it was an agent from the department of labor was read the letter and so there was there was no casting of the letter is anything in reference to original in this whole trial now the case law that i've cited several cases in my brief that deal with corporate the court was corporate atmosphere where you have a statement by someone involved in a company or related to a company and about the company's wrongdoing and the courts including this court in the jimenez case have held that those statements were an instable under brewton and that's like i just said to him in a case which is very similar to this case and then also we have the lung function case from the second circuit and the williamson case from the eleventh circuit the swartz case that the name does rely are that jamie under relies on is very distinguishable from this case it's a really an outlier case and the reason is twofold one in that case the statement issue referred to several into two use that one man mr schwartz controlled so you had a reference this the whole affidavit was really about self dealing among several companies controlled by one man so the clear implication there was there was one man who was doing this that even though there was a reference to these different companies it was really an alter ego for the they were alter egos for this one man secondly what the court and it was eleventh circuit in that case with the eleventh circuit emphasizes it wasn't just that there was really only one person that could be implicated by reference to the companies in this affidavit that made it problematic but more than that in the prop the prosecutor's closing argument the prosecutor is expressly explicitly linked that affidavit to mr schwartz to the senate so in other words the prosecutor impermissibly use that affidavit as evidence against mr swartz he said when the affidavit when this government exhibit talks about this company we know from other evidence that company is mr stewart as well obviously that is not allowed under britain because he was directly making the connection there and in this case in no way the prosecutor to that he in the court were very careful about how this letter was used and i also want emphasize if we're leaving the burden argument that there is harmless error analysis that attaches to this so even above the fact that really this could not be an abuse of discretion was the fact that there was overwhelming evidence against a tool in the ndaa and i have listed all the evidence and several bullet points on pages thirty four and thirty brief but i want to highlight just a few of the pieces of evidence here one is the testimony by mr man stopped by laura who was one of the dive on recruits who was led to believe he would have a job when he moved here and he ended up not he was he was on the bench with dime on for seven months looking for a job he finally found a job with st jude's medical center he met with the two on the end of before he moved to memphis for that job and  have to sign these leave of absence form so right there on the record we have direct evidence that a tool in the end was doing these illegal things that di bond was charged with with keeping people on the bench making them sign a leave of absence forms for time where they really were not on vacation but they were wet ready and willing to work but they were not allowed to work because died on headline news that's making money off of this if you've got too many people on the bench at one time and you're paying for their housing that is a good question honor them in many cases they were not paying for housing they did have a guest house it was one or two apartments they called guest houses some of the people did live there and you're right they were paying the rent on that they were giving them some grocery money but a lot of these recruits who testified and there were at least five recruits who testified said that they owed at least half of them so they lived with relatives so a lot of them had relatives in this area and so their relatives would howell's them and drive them to work every day so they dive on did have the overhead of a small office and they did have some apartments but other than that they were making a cut off of everything they had some a lot of recruits who ended up working at some point and they took a cut off of the salaries of all of those recruits who worked so they had relatively low overhead during the time that the people were on the bench and then they got they got cuts of the money whenever the people got jobs so clearly it was a it's is sustainable business model because they made millions millions of dollars every also had recruits who were working they were out in the field they were working was ok i also they didn't have the overhead of the visa fees because they made all of their crates play the visa fees and so they had no skin in the game and bring these people over and they didn't have the normal expenses that a legitimate h one b company would have and they made lots of money off of those piece of fees so there was a harmless error if there is there was an error but if it was it was harmless and that was clear there also some e mails school is implicated in the e mails where they were openly discussing these practices and that's e mails that are government exhibits three twelve thirteen one tin one fifty three and two forty six i want to move briefly my brief counts three and five charge deprivation of money not property all of the cases that in the end as rely on there was a charge of deprivation of property and the issue was are licenses are different things like that property we didn't charge property we charge deprivation of money and the prosecutor in his closing argument could not have been more explicit about what the government's theory on counts three and five was he said they recruited for the bench many people pay fees didn't pay people while they were on the bench that is the scheme alleged in the indictment and he was referring specifically to counts three and five and then he continued the false to its representations were quote you've got a full time job you're going to get paid when you get here we've got a project for you no problem falls they then and is new it was false the testimony demonstrated that was the practice that's from the record at pages twenty three fifty seven three twenty three fifty eight so it was very clear what the government's theory was and it was a deprivation of money now just on if this court were to somehow find that the government had a different theory then there's the concept of alternative theory error that comes into play and that is a harmless error type of analysis that this court would employ and basically a holding this is under the skilling case after came back down to the fifth circuit and implemented this theory that had been first expressed and hedged at first as police and it's said that if if the core instructs on the theory or if the government presents a theory that ends up being invalid that's not a structural error in fact if there was another theory that was also presented and it was valid then as long as there is sufficient evidence sport that valid theory there is no error what's the supreme court case about valid theories vs and palin theories if the old facts insufficient on the facts and theories were invalid laws and that right there was and that was changed no scalia's opinion was not change this this is it's do different this case that held that alternative theory errors not sure actually are and that was explicitly just referred to in the skilling case where it held that when honest services from theory was given to the jury that ended up being invalid obviously after the skilling supreme court case that was he'll be invalid that was harmless error because that was another theory given to the jury and sufficient evidence supported that theory but i also want to say that this is not a regular harmless error case because the government argues that this was a plain error standard of review for this issue so it's actually the knee and his burden to prove there an effect on their substantial rights by still talking count three and five yes your honor because this is a legal argument that senior view they try to cast it as a sufficiency of the evidence argument so they didn't have to explicitly raise it but we have cited case law in our brief that when you have a legal argument you can't count it as deficiency of evidence this is an argument about whether the government presented an invalid legal theory and that would be a plane or would apply to the ass moving to the next issue about whether the court needed to give a special unanimity instruction on all of the counts this is also plain error and i think the court all touched on that with opposing counsel's argument that no one ever requested a special unanimity argument or argued that that was required and in fact under the law it's not required and so there's no error much less the clear error and so we take this in two parts first we have conspiracy counts and the last clear that there is no need for a special unanimity instruction when you have conspiracy counts and that is the mason case that the government fight it in our brief and amazing case holds that you do not need a special unanimity instruction as to certain over acts that it's a conspiracy itself that requires agreement by the jurors not specific overt acts and judge jones as you had asked the court did provide a general unanimity instruction so it was completely in line with normal case law requiring that met in all cases you provide that instruction she instructed the jury that all of you must agree and your verdict must be unanimous on each count of the superseding indictment and that some record page twenty four of five so the mason case distinguish the two cases two of the cases th rely on which are holly and gibson because they concerned other circumstances holly was a perjury case for obviously you have to agree on a statement that constitutes perjury that's not a conspiracy case and then gibson that there was a very  messed up instruction that was given in gibson and that was the reason why because it seemed to suggest the jury didn't have to be unanimous as to the crime on counts three and five you don't need a special unanimity instruction as a certain false statements for mail or wire not a specific false statement so it's unlike for example perjury and the most explicit discussion of that and it's cited in our brief is from the daniel case in the seventh circuit where it reviews other case law and has a very long discussion on why you need a special unanimity instruction in a meal or wired for a case where you're talking about when there might be a many false statements that are involved as this is plain error than and is also need to show an effect on their substantial rights and they have not done so they have an argument that is just not based on case law that a promise a future behavior can't constitute fraud that's not true under the case law i would also submit to you we're not talking about promises of future behavior when the were giving their offers to the recruits and when they were submitting this paperwork to the regulatory agencies to get the visas they were talking they were certifying that they were talking about jobs that were currently open when you submit these papers or work to get an h one b visa you cannot submit it for a job that you think you'll have opened in six months you have to submit it for a job that's open now and many witnesses testified to that and so the nie and us were lying about a job that they currently had open when they were talking to these people about them  and then the end is also say that these statements some of the statements were ambiguous but that's just not true and then even if they are worth it in our quest any instruction on ambiguity as a defense should this go on how many years  it was six years turds in the indictment because the conspiracy and it was investigated a few different times there were a couple different audits done by the department of labor and finally it was turned over to homeland security finally on constructive amendment iowan your talk a second about that yes there were other petitions that were submitted aside from those charged in the indictment but they were exactly like those charged in the conspiracy counts and black letter law is that you can charge you can in prove overt acts that were not charged in the conspiracy and that's the eliot case that we cite in our brief and i also want to emphasize that the other petitions were only discussed for about five transcript pages it's twenty one fifty two twenty one fifty seven discusses these other petitions only to show that most of them said that the workers were going to work at the carroll's on the case and died on one that was not true so it's very very specific person purpose it was very limited and there was clearly no affect on substantial rights this is another plane air issue because there were so much evidence against bonding and is that whether this these few exhibits got in or not did not make or break this case if the court has no further questions that one of the issues that it's come up is what what were the defenses in this case it is true that part of the defense wants that there was in activity by at least janeane know that he was gone a substantial amount of time that they don't get a due to other people but there were other defenses in this case that were substantial for instance they were not required to pay a worker that was coming from overseas a tail thirty days after they got here or if they got here and there was a job and they had to start paying them at that time most of the workers came from the united states so there was a different and you only had to pay them after sixty days or whenever they start and so that was a defense there was another defense for instance that when they submitted the applications they said they were paying them on an annual basis ok i didn't say the representation wasn't as as was alleged that you had to pay him right away the regulations said that so there was an ambiguity in the statements and there was a statement to that sense the application was filed in april and you didn't they didn't come on till october there could have been a change in the mean time with respect to the various workers that came into the united states as to whether or not there was a job waiting for them at the end of six months in some instances contra that it's only counts three and five is the government says that it was clear that it was only about getting the money ok but that's not what was charged in count stream five in counts free and account one it has allegations of false statements to get a visa application and to do or to get if they said also that they labor conditions that occasion so it's clear that that was part of the how much money we actually paid out that there wasn't anything terms of what the profitability was on the isa to find one of the which and she said and that she with her back to what is just what those overt acts are but there was no instruction again plain there about what about all the other two hundred some that in most of the overt acts two different allegations of conduct by the defendants that constituted a conspiracy to commit be a surprise and again the jury was not instructed again that they had to be unanimous on that issue was that if you consider that there were two hundred some odd different false statements submitted it was impossible for the jury or anyone else to say who what they got convicted of did they get convicted because they didn't pay him within the thirty days which they didn't have to do they get convicted because they didn't pay him within sixty days when he didn't have to did they get convicted because they said on an annual basis we're going to pay them that's how we're going to pay him which is damn big of a statement construed against the government that's what they got and it may be that on an individual basis we think individual basis that there is mercy lair but there camp there is such a thing as a court will know as were in the mind came of that there and we have submitted four different constitutional