good morning everyone please be seated morning welcome to the ninth circuit we aren't allowed into see you all here you've got a four calendar of cases this morning we're going to hear the cases in the order that they appear on the calendar i w to say at the outset that the last case on the calendar which is united states versus foster has been submitted on the priest but we will hear argument and all of the other cases and we will not waste any time jump right into it united states versus get older they're here evaporate so i'll try to speak a little bit all that's wonderful ok thank you if you please court your honor to the three issues that i've raised in the appeal the government has responded but i don't believe that any of its responses in any way detracted from the initial arguments and didn't want to waste your time with an unnecessary reply brief the issues are very clear in the first case in the first issue it's whether who the government called and who the government didn't call as witnesses i believe it does because under their ethical expect the bar may have to answer that way but they didn't call but because they have an ethical duty that when they present a witness if they present a witness if they believe is saying something going to fall they have a duty to try to to to present that that is untruthful to the court that was never any attempt to indicate that the testimony leave any attempt to regulate their lifestyles such as prescribing the amount of time they must spend together or dez in dating the manner in which either party partner elects to spend his or her time in the guise of specifying requirements of a bona fide marriage would raise serious constitutional questions and that is exactly what the government's brief goes to it is exactly what the government's evidence went to it was trying to establish what kind of life style they should lead together the fact that they didn't have sex during their marriage you know we tried attempted to have sex on one occasion doesn't change anything people have arranged  marriages where they don't know one another before hand people correspond with people and have bribes or come from foreign countries they pay money they have immigration and again that is not a basis for finding it not to be a valid marriage the true counsel improving an issue like this a lot of circumstantial evidence comes in that manner may not be helpful but circumstantial evidence what was wrong with admitting this evidence the the issue wasn't the admission of the evidence your honor the issue was the fact that this evidence does not tear at the core concept which the law really attempts to establish which is that the intended to establish a life together and i understand the things get proven by circumstantial evidence but the the direct evidence that was presented by the government through this witness was that she in she did so pursuant to a plea agreement which they've included in their local networks are proving back and forth between whether the government should be challenged because fact that there is no evidence that it tears away from the concept that they intended to establish a life together and just and the fact that some people plead guilty doesn't in any way still affect whether or not mr wall is guilty we know there from the gallup good case which says that some people may be guilty and others would not be it is what is the concept of what mr walker intended at time m behavior throughout the marriage was that of over husband he didn't even move to remove the tour conditional status until after two years and when he found out that she was having an extramarital relationship that she intended to  having been alerted i guess it was the friday before trial when this witness that you're in that you can talk in about first i guess indicated to the prosecution that they that she was not going to testify consistently with yeah yes i had prepared all the way up to in the facts about the fact that ms white was going to change her position from what was the information that was included in the discovery was no one to the government on friday but they did disclose it until after she had been called as witness who was testifying so when i made my opening statement it gave the appearance to the to the jury i was on if or when did you say in your opening statement because for some reason i don't think the transcript that part of the trial wasn't transcribed right correct so which is a problem it seems to me for you but when you tell us what did you say in your opening statement that you think you know cause a problem once you learned about this later i relied on the facts i stated in her statement as being what she was going to say truthfully and then it went to then the issue about whether or not she intended to establish a life together with mr w and when you read the statement which is in the i've read i read it many times yes i'm so you told the jury in your opening statement that you were going to hear i can't remember her name laura think your wife linda lark went your way this way she's going to say and you just tick through all of the things she and clearly discoverable but what the trial court did not do was decide whether or not the withholding of it rose to a level that it should result in a punitive sanction and as i pointed out from the case law this is a it was not two entire days of cross examination how many hours of cross examination i cannot recall off the top of my head but i'm i got from the briefs it was two days it was  amount of time it was a substantial amount of time because of the fact that throughout the course of those two days we had numerous arguments about the law that apply to the issue and those were taken up in the course of those two days as well which inappropriately curtail your two days of cross examination of this person no i don't contend that she improperly curtailed if i call rain so the prejudice is where the prejudice is just said i told the jury certain things were going to be coming out it's true because that was my anticipation i lost well because i represented to the jury that these that the facts as they were in the state and you were able to explain to the jury that you are relying on a statement that she now under oath is gone against him for two days you told showed her how liar i don't i don't see the i don't i don't see the problem a reversible error problem here i believe that the withholding of the discoverable information was intentional and warranted a dismissal because even though i was able to talking now about a sanction against the government not the case itself you think the government should be sanctioned for not telling you the head of time i believe the government should be sanctioned but as the case law points out under the  case if the error is intentional then the proper remedy would be dismissal of charges let me stop you there because you're over your time but we'll give you a minute for about oh ok thank you very much testimony at trial was that even prior to the marriage she did not know that she would be living with mr wu that they would be living in the same residence after the marriage and it wasn't until months after they were married on november third two thousand said america's not truth at the beginning beginning we set up the chain green card a twenty thousand later if you say every month help her daughter to pay tuition fees so again at the beginning of this marriage even  in opening statement he promised the jury that they were going to hear from miss white that she was going to testify the x y and z and then of course a trial she more or less testifies to a b and c that sounds like it could be potential prejudice are you disputing his assertion on that front i have your honor because i don't recall any specific reference and counsel had marked the witness statement as defense exhibit a i don't recall brief you save your brief that counsel had already been alerted to the fact that the witness was going to testify differently by virtue of other discovery that you provided and i guess i look through at least everything that i could find in the record and i didn't see what where and where did she say and some prior interview that was then turned over to the defense counsel word she say that basically everything i said in that statement was a li were generated that were given the counsel well what do what point me to a place where you say the defense lawyer was alerted to the fact that she was going to basically deny the things she said in the original statement because that that original statement we're calling an affidavit whatever it was that you don't win a conviction if that's all she testifies to a trial that's not enough so if it was essential for your case that she later altered her version of events and so we're on the discovery did did you alert counsel that she was going to testify differently from that original state yes ok for you neurotic you know that there government's case and you have these audio recordings you know where you know it appeared that they were trying to get their stories together you know she was asking what colors are toothbrushes asking about her family so these are all discover materials that   or recording or a report of a police officer on what she was going to stay at trial instead of the statement that we're referring to aware that she's going to testify different from the statement that you've already supplied to counsel did you have anything in writing did you have an interview how did you know she was going to testify differently statement she said that that was most people's but i don't think i have answered my question my question is do you have anything in your files whether produced in this trial or not that shows that the government knew before what she was going to say because they interviewed her and they have a statement or a recording or a report yes i did say that  that counsel should know about that that you have a constitutional right to provide that now i'm trying to find out was there any s mr grill pointed out the friday prior to the start of trial the interviewed the witness and she said that the statement that she made was untrue therefore then had the duty to inform defense counsel that she had said that that statement was untrue he later at during trial says well yes my to be a better practice you hit on that same friday in the afternoon after that interview he provided other discovery but not the discovery that case the chapman case flagrant prosecutorial misconduct in not disclosing that information warrants dismissal he's saying that you were already on notice by virtue of the reports of interviews that were conducted earlier that she was sideways from the statement she'd given earlier that's not true there's nothing that contradicts the statements that are in there that well och well i'm just looking at one of them i mean this is from the  says the agent reports that she acknowledged that her marriage to what was just a business deal that she never loved him so why isn't that and that seems inconsistent with what she said in that really are statement she she doesn't in the statement that she loved him she says in the statement that she entered into marriage she had the expectation that he would provide for her a stable life she had been unstable in her finances in the way in which she had a wild lifestyle and she thought that this marriage would bring her to a more stable lifestyle that's about the not inconsistent they may be you may read it in one context as giving a certain flavor but it isn't saying everything i wrote next statement or most of what i wrote next statement is not was going to do x y and z and this record shows that so is that so no this record shows he did know the what she in fact he just said that during the trial prep during his discussions with the witness she told him that what she wrote in their statement was untrue that was never disclosed it wasn't disclosed until she testified that was flagrant misconduct now one last point i'd like to make i think that if you look at the issue on the of whether or not they live together living together is not establishing a life together the concept of a life as marital partners contains no federal dictate about the kind of life that the partners may choose to lead any attempt to regulate their lifestyles such as prescribing the amount of time they will spend together or does it mean in the manner in which either party partner alexa spend his or her time in the guise of specify requirements of a border fide marriage would really serious constitutional questions and i have pointed out that after the period of time that they moved into the residence mr  said look you know this marriage is going to be better if we have sex all of these facts show the intent was part to establish a life together all yes you're on your way over your time so i just wrap up please yes so all of those factors show that they intended to establish a life together including the fact that they planned to go to china to meet his family and they were making those plans in the early part of the year following the marriage in november