morning your honor anthony o'rourke for the federal defenders of new york on behalf of rocky difficult may please the court judge pauley describe this case as being about a personnel matter within amtrak and echo the jury for persons request it was not a jury question your honor because it is a because materiality objective legal standard and so if a statement cannot affect the outcome rather  that the term that being a reserve officer would could would it matter would could matter and this view was predicated on this lex mistaken belief that a reserve officer was necessarily a sworn law enforcement officer but misled consistent with the other decision making witnesses in fact all of the witnesses testified that the criteria for whether or not an amtrak police officer was eligible for a pay raise was whether someone was a sworn law enforcement officer with fuller backup a year because it seems like apart from the testimony there's actually a written standard here right from the collective bargaining agreement and i'm referring to it i think it's in the party's briefs it's thirty it's a standard that that states this follows employees transferring to amtrak from another police agency while in active status and agency will receive credit goes on is it that and isn't that the standard here that we should be looking at judged by or that it the collective bargaining agreement does control as it was interpreted by the amtrak decision makers and on that point all right so we agree on that then it seems to me your argument ultimately turns on your reliance on rigorous in other cases that there was an objective determination standard here and i'm having a hard time understanding how it was objective if you are relying essentially on contrasting testimony of people about what think subjective interpretation of the written standard is because it strikes me that if you just look at the written standard amtrack job is to try to figure out is the person and what's active status mean and active status could turn on whether you're an auxiliary or reserve or whether you said in the very letter that you've submitted for purposes of the pay raise that you are an active member him having a hard time with that issue too interrelated points in response to my or st the collective bargaining agreement was interpreted by amtrak decision makers through a document developed with labor relations office in connection with union and that document provided that non sworn police officer for service or service credit so if you were an active status as a nonce one police officer as an a secretary in a police department you were  ineligible under amtrak's policies for prior service credit and for that reason it was an objective decision making process and there was no dispute among the witnesses among the decision making witnesses or for that matter even misled as to that criteria  consistent with the decision making witnesses testified that only sworn law enforcement officers are eligible for law and for eligible for a prior service credit and her belief that on a belief that a reserve officer was necessarily a sworn law enforcement officer with arrest powers in fact reserve officer it was in big us to the decision making witnesses as to whether a reserve officer fit that category and that required them to look at the employee's background file and the policies of the police department that the person claims to be associated with relevant standard or which isn't whether it actually affected the decision but whether  capable of affecting the decision can't we say that at least had a reasonable jury could have concluded on the basis of these representations in the letter about being an active member about active has to be read in connection with and with whether or not somebody had sworn law enforcement powers so if you were an active member of the police department without sworn law enforcement powers then you were simply ineligible for prior service credit and there theory which is that a misstatement may be material merely if it serves to long and employers objective decision making process even if it is incapable of influencing the outcome of that process now this novel theory is unsupported by precedent and it would expand the scope of the wire fraud statute well beyond schemes to defraud a victim of money or property as required by the text of section  forty one i ask you to address your argument with respect to the statements that were made in the recordings in specific could you help me the recording to establish consciousness of guilt that was the purpose for which it was an admitted and the excluded portion provided vital it's called the tory context with respect to that point  because it showed that amtrak believed himself to be contractually entitle to prior service credit based on his status as an auxiliary officer now if he  and here in minute portions were offered to show consciousness of guilt and with respect to that point consciousness of guilt there were two competing interpretations that were forcefully dance at trial one of those interpretations the government was what the jury convicted on that he willfully lied and he also had with fraudulent intent the other advanced by the defense in summation was that he did not act with fraudulent intent when admitted you could say that the excise portions might have made it more more clear it's very hard to say based on what was admitted isn't it that you didn't get is the fundamental point itself but the portions that weren't needed where he said no benefit seem to be panicked anywhere and statement when you listen to it in context the fact that the statements immediately if the question that the jury heard then in lucid terms explain why mr to flip i actually believed there was no benefit because the contract entitle him in his view to prior service credit as an auxiliary officer lens a very different context and your honor we we sought admission of basically a substantial portion in entirety but we didn't seek for admission of the entire recording much of the recording had sat in the  special agents explode explaining what can happen to him making accusations saying those things that would be simply inappropriate and and prejudicial for the jury to hear if there are no further questions and reserve may please the court my name is alex ross miller and i represent the government the evidence in this case prove that the defendant lied to his employer to get additional compensation he knew he was not qualified for in doing so he intended to make material false statements you conspired to make material false statements and he did in fact make material false statements the defendant principally asserts that the defendant's lies were not material which is wrong there was more than sufficient evidence to support the jury's finding influencing what relevant decision makers do what other words prolonging the process or is the relevant concern whether it was capable of affecting the ultimate decision that was made  the latter your are a false statement is material if it has a natural tendency to influence or is capable of influencing the decision of the decision making body to which it was addressed your argument here is not that materiality could have been premised on sensually decisions along the way to making i'm not sure i fully understand the question here but i think the answer is that the government is not trying to conflate relevance with materiality the question is this is there's many decisions that can occur along the way right to deciding whether there's a pain increase awarded you're right and one of the decisions can be to look into things further right to prolong the process so my question is are soley and was the jury's focus solely on the ultimate decision so i think your honor that the answer is a combination of both certainly if there are stages of the decision making process and during any stage of of determination could have been made then at any stage but misrepresentation could be material in other words if additional investigation is required and sort of along the way a decision could be made it's not simply the prolonging of the investigation oth r governments are going to give a perhaps an extreme example if information was required and it was submitted in spanish rather than english and its translation was required that would prolong the decision making process but the end result would be the same here at any point along the way either right at the beginning when the information was minute or as the investigation went along a decision could have been made on them it's always the jury was the jury because i'm looking at the jury instructions seven  dollars it strikes me that the jury was not really that wasn't really explained to the jury in terms of what decision could be affected your honor i don't think that there's any challenge to the jury instructions but i i i don't think there is an issue of there being confusion about the the decision making process being what the government is are going than the government argued repeatedly that this had the ability to affect the decision of the decision makers and not that it simply extended the process of the determination and in fact at any stage any of your decision makers could have and in fact did at times believe that the misrepresentation indicated that the pendant had what amtrak was looking for and that's an important point what amtrak was looking for here was officers with experience as a whole lot of force an officer and that's not just a contract as controlling this determination as interpreted by decision makers the standard in the contract gets interpreted through the q and a which gets interpreted that's not an objective binary mechanical decision from his leg but from other witnesses as well or in powers of amtrak believe that in some jurisdictions reserve officers maybe for example that's in the government's brief at nine sergeant kalen from the suffolk county police department  testified that he understood reserve officers had police powers under some circumstances so so this isn't just a binary mechanical object decision and certainly even if the court were persuaded that it was the defendant's challenge to the conspiracy conviction also fails the conspiracy here was to lie to amtrak to get money by falsifying the nature of the defendant's prior experience in a way that would be material that is the jury was entitled to infer that the defendant and his union boss coconspirator knew that the defendant would not qualify for prior service credit based on the defendant's actual prior experience and agreed to mislead amtrak into substantive charge versus a conspiracy yes that's absolutely true and and that is that is what i was trying to describe that the conspiracy need not be to do the precise thing that ultimately was done for example if someone agrees to sell a kilogram of cocaine and then accidentally sells a kilogram of flour that individual is still guilty of conspiracy to distribute narcotics with respect to the rule of completeness issue the even were the general content of those portions particularly important or necessary they were in fact already included in much of what was the subject any additional on the conspiracy issue  is there any mental state that a conspirator has to have as to materiality in other words i mean in your flower drugs example the person who thinks it's trucks turns out to be far right but thinks it's the facts that they know or that they believe in would rise to the level and so the question here is is if the facts that were that other person fraud amtrack certainly the intent was to to have a misrepresentation that would be material to m track so they provided the money i suppose it is conceivably possible that someone saying i have prior experience as an ice cream truck driver and therefore you should give me money i think that might raise the question that the courts presenting but here there is no question of that and the jury certainly at ample evidence to conclude that he was guilty of conspiracy given  true well certainly what i would make of the letter that was received is that the jury took this case very seriously and consider the evidence with great sensitivity and consideration i don't know that i have the quote precisely with respect to any particular prosecution and i think that's beyond my particular his knowledge and ability to comment on but i can say that the case was obviously charged as a conspiracy there or at least one coconspirator involved there was a conviction that resulted from that charge  and there was no question that the defendant here had lied to his employer to obtain money and did so as an officer  e decision making process i read this argument argument being offered here as as being that these misstatements are material because there was discretion at some point at some  point somebody could have made the decision to grant mr to flip a prior service credit on the basis of his status as a prior law enforcement as a reserve officer the record permits no such if inference for reasons that we we are taking late in  object that mr to flip greed with his union representative to pursue was to obtain a pay raise by way of misstatements concerning his volunteer job title because these misstatements are immaterial as a matter of law the underlying object of their agreement was not wire fraud and hence there cannot be a conspiracy to commit wire fraud on your point judge meyer as to whether intent as to materiality for a fact that object is not objective legally in the way that the objective guidelines and rigorous were so two points as a matter of a legal contract that was not binding until the time of the settlement in september of two thousand and thirteen as a matter of bureaucratic decision making policy every witness consistently test testified that it guided their policy and that only sworn law enforcement officers were eligible for