[00:00:01] Speaker 03:
Good morning, everyone.

[00:00:04] Speaker 03:
We have two cases for oral argument today.

[00:00:07] Speaker 03:
The first case is US versus Patnake.

[00:00:12] Speaker 03:
And we have submitted on the briefs Bonk versus Purcell and Howard Jarvis Taxpayers Association versus City of San Jose.

[00:00:21] Speaker 03:
Civil Council, you may proceed.

[00:00:38] Speaker 00:
Good afternoon and may it please the court, Matthew Yelovich on behalf of the United States.

[00:00:42] Speaker 00:
I'd like to reserve five minutes for rebuttal and I'll keep my eye on the clock.

[00:00:46] Speaker 03:
Okay, thank you, counsel.

[00:00:48] Speaker 00:
This court should reverse dismissal of the indictment because the indictment in this case plainly stated an offense.

[00:00:53] Speaker 00:
It recited all of the essential elements of visa fraud, including materiality, and it provided sufficient factual basis to put the defendants on notice for purposes of double jeopardy.

[00:01:04] Speaker 00:
Nothing more is required under this court's case law.

[00:01:08] Speaker 00:
I'm happy to answer the court's questions or else I'll start with the two fundamental errors we identified below.

[00:01:12] Speaker 03:
Is it your position that materiality is a question of fact that should have gone to the jury?

[00:01:19] Speaker 00:
It is the government's position that it's a mixed question of law and fact that should have gone to the jury.

[00:01:24] Speaker 00:
It's certainly sufficient at the indictment stage to allege that the lies were material.

[00:01:29] Speaker 00:
And then there's a trial to decide whether we're able to prove that to the satisfaction of the jury and then ultimately to the district court in post trial motions and then to this court on sufficiency review.

[00:01:40] Speaker 03:
And so what would the jury instruction on materiality in this case look like?

[00:01:45] Speaker 00:
It's a very good question, Your Honor.

[00:01:46] Speaker 03:
Thank you.

[00:01:47] Speaker 03:
I'm paid a lot to ask those questions.

[00:01:50] Speaker 00:
The reason I say that it's an open question in the Ninth Circuit, whether Maslin Jack, the Supreme Court case, has changed the jury instruction for materiality in the Section 1546 context that we're in here.

[00:02:02] Speaker 00:
Ultimately, the government's position has been that the materiality instruction remains the same for 1546 as it is in other

[00:02:11] Speaker 00:
fraud context, which is that the statement had a tendency to influence or a natural tendency to influence or the capability of influencing the decision maker.

[00:02:22] Speaker 00:
I take my friend's view on the other side to be that Maslow and Jack requires a heightened standard of materiality.

[00:02:28] Speaker 00:
But all of that is a debate that should happen at trial during the jury instructional conference and perhaps in post-trial motions if the defendants think the district court got it wrong or on direct appeal to this court.

[00:02:40] Speaker 00:
It's sufficient at the indictment stage that we allege that the lies are material.

[00:02:44] Speaker 00:
We don't have to provide a legal explanation for each term used in the indictment to satisfy how the element may change over time given the case law.

[00:02:54] Speaker 05:
That was one of my questions.

[00:02:55] Speaker 05:
Isn't the problem here is that it was a speaking indictment?

[00:02:58] Speaker 05:
If you just said bare bones, like there was a material misstatement under, you know, about the nature extent of the working and without any other specification, that would have been sufficient.

[00:03:09] Speaker 00:
Our view is that would have been sufficient, Your Honor.

[00:03:11] Speaker 00:
The case law is quite clear that just tracking the statutory language and alleging all of the elements is sufficient for an indictment, and we clearly did that here at Excerpts of Record 89.

[00:03:20] Speaker 00:
We recite all five elements of visa fraud, including materiality.

[00:03:26] Speaker 00:
Our provision of more detail, I don't think cuts against the fact that we stated an offense.

[00:03:32] Speaker 00:
The detail is quite capacious in how it's phrased.

[00:03:35] Speaker 00:
At Excerpt of Record 85, the government alleges that the lies in this case went to the existence, scope, and duration of the visa positions being applied for.

[00:03:46] Speaker 00:
Those are very basic H-1B visa requirements.

[00:03:51] Speaker 00:
Throughout the overt acts, we then allege that the defendants lied about that the placement of the employer would be perfect VIPs, that the jobs would be at perfect VIPs when in fact they were being placed at other

[00:04:04] Speaker 00:
employers and that's just a basic H-1B visa requirement as USCIS needs to confirm where the jobs will be before authorizing the visas.

[00:04:14] Speaker 00:
And I take the defendant's position to be on appeal that they didn't in fact lie, that Perfect VIPs was the employer

[00:04:21] Speaker 00:
And that's a contention they can raise at trial.

[00:04:23] Speaker 00:
It's a defense they can raise at trial.

[00:04:24] Speaker 00:
We will have to prove beyond a reasonable doubt that those were, in fact, lies.

[00:04:28] Speaker 00:
They were false statements.

[00:04:30] Speaker 00:
And we will have to prove beyond a reasonable doubt that they knew they were lies at the time of the visa application.

[00:04:35] Speaker 00:
And so those are trial issues.

[00:04:37] Speaker 00:
They don't go to whether there's an offense that's actually stated in the indictment, which there plainly was here.

[00:04:42] Speaker 05:
my other question was that that the i t serve that just record opinion from d c we don't have to rule whether or not that was correctly decided or not correct we could just assume it is or some not and just say

[00:04:55] Speaker 05:
you know, because it was material at the time, it doesn't matter.

[00:04:58] Speaker 00:
That's correct, Your Honor.

[00:05:00] Speaker 00:
There are two reasons why you don't need to decide whether ITServe was correctly decided or not.

[00:05:04] Speaker 00:
The first is that the questions that that case addressed in terms of what USCIS was asking for of the petitioners are different than the questions that prompted the false responses in this case.

[00:05:19] Speaker 00:
The questions in the ITServe case were about granular day-to-day itineraries for the full three-year period of the visa.

[00:05:28] Speaker 00:
That's not what the alleged lies are here.

[00:05:30] Speaker 00:
The alleged lies go, as I said, to the very existence of the job, to the employer, to the duration of the job.

[00:05:36] Speaker 00:
Those kind of basic requests for information remain undisturbed after ITServe.

[00:05:42] Speaker 00:
But in addition to that, for a second reason, even if the questions were the same, even if ITServe was addressing the exact same information that was addressed in the indictment here, you don't need to decide whether ITServe was correct or not because it post-dates the conduct by three years.

[00:05:57] Speaker 00:
So under this court's case law, United States versus McKenna,

[00:06:00] Speaker 00:
materiality is assessed at the time the false statements are offered and later evidence that the statement could not ultimately have been material to the decision-maker is irrelevant to whether it was material at the time it was offered and here the alleged conduct in the indictment spans from 2011 through 2017.

[00:06:20] Speaker 00:
That's three years before the litigation in the District of Columbia that resulted in the IT served decision and so it was material at the time to the speakers it was material

[00:06:29] Speaker 00:
to the recipients, even if it was the same subject matter that the ITServe decision covered, which we contend it certainly was not.

[00:06:39] Speaker 03:
How would it affect the decision whether or not to permit the visas

[00:06:46] Speaker 03:
How does the fact that they were a staffing out company as opposed to an on site company make a difference?

[00:06:55] Speaker 03:
And does it also make a difference that they were both a chip builder and a staffing services company?

[00:07:02] Speaker 00:
So we think that those questions will be answered at trial and contested between the sides at trial as to how it could have influenced USCIS.

[00:07:11] Speaker 00:
At the indictment stage, we allege that USCIS was asked for this information and was provided false answers, and that was material to USCIS.

[00:07:20] Speaker 00:
I can tell you from the regulations and case law, the reason it's material, the reason that it has a capability of influencing.

[00:07:27] Speaker 03:
Yes, I think I'd like to know that.

[00:07:28] Speaker 00:
is that the statutory grounds for this H-1B visa program require both the Department of Labor and USCIS to be confident that there is a bona fide job at the time that the visa application is made so that employers are not

[00:07:44] Speaker 00:
or staffing agencies are not bringing over folks when there's no job yet to place them in.

[00:07:49] Speaker 00:
They need to make sure that the wages are the same prevailing wages in that market and for that specialty occupation.

[00:07:56] Speaker 00:
There's no way to do that if someone's lying to the government about whether there's a job, who the employer is, how long the job will last, or where it's located.

[00:08:05] Speaker 03:
And that includes... So does USCIS not grant HB1 visas to staffing out companies?

[00:08:13] Speaker 00:
I think they do, Your Honor, but I think it doesn't excuse the defendants from lying about it.

[00:08:18] Speaker 00:
Now, they might contend that they told the truth, and that's a trial issue, but for indictment purposes, we're not alleging that they didn't comply with immigration rules or regulations.

[00:08:27] Speaker 00:
We're alleging that they lied in the application.

[00:08:30] Speaker 00:
And so, even if they could have gotten the visas through other means, through lawful means, they are not permitted to lie.

[00:08:36] Speaker 00:
And that's what Section 1546 penalizes, and that's the charge in this case.

[00:08:40] Speaker 05:
How should have they answered that question if it's a staffing agency?

[00:08:42] Speaker 05:
Since the jobs are not present at the time and the locations are unknown at the time, how should have they answered that question?

[00:08:49] Speaker 00:
Well, if there were not jobs at the time, I think there's a few different questions baked in there.

[00:08:54] Speaker 00:
So if there are not jobs at the time of the visa application, the employer shouldn't apply for an H-1B visa, because the program requires there to be an existence of a job that they are applying for a visa for.

[00:09:06] Speaker 05:
Doesn't that preclude staffing agencies from ever applying for H-1B ones?

[00:09:10] Speaker 05:
Because that's just the nature of the business, isn't it?

[00:09:12] Speaker 05:
That they bring the workers in, and then when their job materializes, they staff them out.

[00:09:16] Speaker 00:
Respectfully no, Your Honor.

[00:09:17] Speaker 00:
I think that a staffing agency could say, as they have contended on appeal, we perfect VIPs are the employer.

[00:09:23] Speaker 00:
We are hiring them, and we will pay them regardless of whether we staff them out or not, because they are going to do work for us.

[00:09:31] Speaker 00:
And that's fine, except they need to disclose on the application that the person will do off-site location work.

[00:09:38] Speaker 00:
That's one of the fields in the H-1B visa application.

[00:09:41] Speaker 00:
These defendants lied as to that question by saying,

[00:09:44] Speaker 05:
They just said that they're going to work for them.

[00:09:46] Speaker 00:
Correct.

[00:09:47] Speaker 00:
And if they knew at the time that those individuals would actually be placed at employers throughout the area, that was something they needed to disclose to USCIS when they applied for the visa.

[00:09:56] Speaker 00:
That's both an alleged false statement and also material to the agency as to whether to grant the visa or not.

[00:10:08] Speaker 00:
There are no further questions.

[00:10:09] Speaker 00:
I'm happy to reserve my time for rebuttal.

[00:10:11] Speaker 03:
All right.

[00:10:11] Speaker 03:
You may do so.

[00:10:12] Speaker 00:
Thank you.

[00:10:14] Speaker 03:
Mr. Cannon.

[00:10:26] Speaker 04:
Good afternoon.

[00:10:27] Speaker 04:
Thank you.

[00:10:28] Speaker 04:
And may it please the court.

[00:10:29] Speaker 04:
My name is Christopher Cannon.

[00:10:30] Speaker 04:
I represent the Murata Patnik.

[00:10:33] Speaker 04:
The first thing I'd

[00:10:34] Speaker 04:
This is a simple case.

[00:10:35] Speaker 04:
The government submitted a poorly drafted indictment, and a respected district court judge decided that indictment did not charge a crime.

[00:10:43] Speaker 04:
The judge offered the government the opportunity to amend the indictment, and the government didn't take her up on that opportunity.

[00:10:52] Speaker 04:
I was listening here to my colleague from the U.S.

[00:10:55] Speaker 04:
Attorney's Office say that the indictment was okay because somehow the indictment charged the perfect VIP wasn't the employer.

[00:11:04] Speaker 04:
In fact, the indictment doesn't say the perfect VIP wasn't the employer.

[00:11:07] Speaker 04:
What the indictment does is it breaks down different parts of a job and uses terms that are not defined in the Immigration Act and say that that's somehow, that makes it somehow illegal what they did.

[00:11:23] Speaker 04:
When you asked the court about whether, because this was a speaking indictment, whether that's a problem for the government, and it absolutely is, because in the indictment, the indictment describes what Perfect VIP allegedly did, and it just describes the legal operations of a staffing company.

[00:11:43] Speaker 04:
There's nothing wrong with what Perfect VIP did, and there's nothing wrong with what Perfect VIP did as alleged in the indictment.

[00:11:51] Speaker 04:
When you look at the terms of the indictment, it admits the perfect VIP paid their employees.

[00:11:58] Speaker 04:
So there's no allegation that when the indictment uses the term end client, that's not a statutorily relevant distinction.

[00:12:07] Speaker 04:
The Immigration Act talks about employers and it says

[00:12:10] Speaker 05:
Well, the problem is we're looking only at materiality.

[00:12:13] Speaker 05:
So we're supposed to assume that the other elements are met, which is that the company purposely lied on the form, right?

[00:12:20] Speaker 05:
So we're just looking at whether or not that's material.

[00:12:23] Speaker 04:
We are looking at whether it's material.

[00:12:25] Speaker 04:
And whether it's material, Judge,

[00:12:27] Speaker 04:
Wardlaw asked whether that's a question for the jury or whether that's a question for the court.

[00:12:33] Speaker 04:
And I think in Cungus versus United States, the Supreme Court clearly said that in an immigration case, materiality is a question for the court to decide.

[00:12:44] Speaker 04:
To quote Cungus, it says,

[00:12:51] Speaker 04:
Although the materiality of a statement rests upon a factual evidentiary showing, the ultimate finding of materiality turns on the interpretation of substantive law.

[00:12:59] Speaker 04:
Since it's the court's responsibility to interpret the substantive law, we believe it is proper to treat the issue of materiality as a legal question.

[00:13:06] Speaker 04:
So I don't think that there's any question that Judge Freeman had the right and the duty to make the decision that she

[00:13:13] Speaker 05:
So how do you get around the pretty prolific precedent that says that even if the government didn't have the authority to ask the question, people don't have the authority to lie.

[00:13:27] Speaker 05:
And so even if the question was irrelevant or beyond the scope of what they can ask, you can't lie about it.

[00:13:34] Speaker 04:
Because when you look at those questions that deal with lies, they all deal with lies to a question that's being authorized by statute.

[00:13:43] Speaker 04:
When you look at 922G, those questions are authorized by statute.

[00:13:47] Speaker 04:
When you look at the Agricultural Adjustment Act, those questions were authorized by statute.

[00:13:51] Speaker 04:
Here, we have questions that aren't authorized by statute.

[00:13:54] Speaker 04:
We have questions that are beyond the statute and are beyond the regulations.

[00:13:59] Speaker 04:
And you earlier asked a question about whether this court has to follow IT services.

[00:14:06] Speaker 04:
It doesn't make a difference whether this court decides to follow IT services or not, because in the rescission memo, the USCIS determined that IT services was correct.

[00:14:18] Speaker 04:
And USCIS is no longer asking for this information.

[00:14:24] Speaker 05:
Why is that relevant when, at the time, the H1B1 forms were submitted, they were relevant and they were being used on, relied upon by USCIS.

[00:14:36] Speaker 05:
The fact that they rescinded that years later, why is that relevant to that?

[00:14:40] Speaker 04:
Because under ITServe and under a fair reading of the statute, USCIS wasn't authorized to ask for this information.

[00:14:49] Speaker 04:
Even though they were asking for it, that was an ultra-various act by USCIS.

[00:14:54] Speaker 04:
They simply didn't have statutory or regular authority to do that.

[00:14:58] Speaker 04:
Their inquiry is limited to two items, whether someone is qualified to work in a specialty occupation and what MSA that person is going to be working in.

[00:15:07] Speaker 05:
So how are you distinguishing all the precedent that says it doesn't matter whether or not the government was authorized to ask the question or not, you can't lie?

[00:15:15] Speaker 05:
What's the distinct, like NAP and CAP or all these other cases?

[00:15:18] Speaker 04:
All those cases deal with a statute that requires someone to provide information.

[00:15:24] Speaker 04:
And in this case, the statute does not require the information.

[00:15:28] Speaker 04:
The statute only requires information as to whether someone is working in a special, is qualified.

[00:15:34] Speaker 05:
Why is that a relevant distinction then?

[00:15:38] Speaker 04:
Because, particularly in the immigration context, you have to prove materiality.

[00:15:43] Speaker 05:
It seems actually worse to ask a question that's unconstitutional than ask a question that's just beyond the scope of the statute.

[00:15:51] Speaker 04:
No, it's actually a very different analysis.

[00:15:53] Speaker 04:
Because if you look at the 922-G questions, obviously, in Bruin and Rahimi, the Supreme Court has not said that there can be no gun regulation.

[00:16:06] Speaker 04:
So questions as to who's going to be the purchaser of a gun obviously are relevant to show and they're material to show whether someone's complying with the statutory context.

[00:16:18] Speaker 04:
In this case, we're not saying that the entire Immigration Act is unconstitutional.

[00:16:24] Speaker 04:
We're saying that the immaterial questions that USCIS was asking, they don't have a right to that answer because a reasonable USCIS official

[00:16:34] Speaker 04:
looking at that information is not entitled to consider that information so it can't be material.

[00:16:40] Speaker 03:
Can I ask, just going back, were there questions on a form that your client filled out or did your client gratuitously throw out that the immigrants would be working on-site?

[00:16:57] Speaker 04:
those were questions on a form, and as we indicated in our brief, those forms are outdated, because those forms ask to provide a complete itinerary of where someone is working, and the forms are not authorized by statute to provide that information.

[00:17:14] Speaker 04:
And if you look at the requirements to show a material fall statement under 1546, you have to provide that on a form required by statute.

[00:17:23] Speaker 05:
Why didn't your clients just say that they will be staffed out to different locations?

[00:17:27] Speaker 05:
on that form.

[00:17:30] Speaker 04:
Because the process is a flexible process.

[00:17:34] Speaker 04:
It's designed to be flexible.

[00:17:36] Speaker 04:
If you're a staffing company, the regulations allow you to say that they're going to be working at the home office.

[00:17:42] Speaker 04:
And when you're working at the home office, you're going to have a variety of ultimate jobs that you're going to be staffing out to.

[00:17:48] Speaker 04:
And the regulations allow you to put in the home office address, which is what they did.

[00:17:53] Speaker 04:
You put it in at least six months ahead of time before somebody can come to the US.

[00:17:57] Speaker 04:
And then the staffing company places their employee

[00:18:00] Speaker 04:
at the clients of the staffing company.

[00:18:03] Speaker 04:
So there's no allegation that these weren't the employees of Perfect VIP.

[00:18:07] Speaker 05:
It seems like a jury question of whether or not that was an intentional lie or not then.

[00:18:13] Speaker 04:
I don't think so, because it's not going to be material, because the regulations say that the work site of a staffing company is the address of the staffing company.

[00:18:23] Speaker 04:
So the only thing that would be material would be the area code, because if there was a potential that they would be working outside the MSA, then under the regulations, you would have to provide a new LCA.

[00:18:35] Speaker 04:
But there's no allegation here that any of these people were working outside the LCA.

[00:18:41] Speaker 02:
Council, I have a question.

[00:18:44] Speaker 02:
Judge Gould, if I could ask you a question.

[00:18:47] Speaker 02:
Why wouldn't a reasonable visa applicant, why would they not think that telling the truth on questions posed by the agency was material?

[00:19:11] Speaker 04:
because one, where we're here, the quest is not what a reasonable applicant or a reasonable petitioner would think.

[00:19:20] Speaker 04:
The question is whether a reasonable USCIS official applying the material could consider that material.

[00:19:27] Speaker 04:
So that's really not an issue that's before us.

[00:19:31] Speaker 04:
But to also answer your question in a little more detail, the process is designed to be flexible.

[00:19:39] Speaker 04:
People apply for H-1B visas and they say, yes, they're going to be working at our home office unless and until we find another place where we're going to put them at a client site.

[00:19:51] Speaker 04:
And there's nothing wrong with doing that.

[00:19:53] Speaker 04:
And the regulations specifically say that as long as that client site is within

[00:19:59] Speaker 04:
the same MSA, a new LCA is not required.

[00:20:02] Speaker 04:
So the regulations are designed to provide flexibility.

[00:20:05] Speaker 04:
They're not designed to say that the information that you put on the original application is cast in stone and can't be changed.

[00:20:13] Speaker 04:
The regulations themselves provide flexibility for people to move, for people to change jobs, for the employing staffing company to remove them from one job site to another.

[00:20:23] Speaker 04:
So there's nothing wrong with putting the home office location

[00:20:28] Speaker 04:
as the place where somebody's going to be working.

[00:20:31] Speaker 04:
And unless the court has any other questions, I'll save the additional time for my co-counsel.

[00:20:35] Speaker 03:
All right.

[00:20:35] Speaker 03:
Thank you, Mr. Cannon.

[00:20:36] Speaker 03:
Thank you.

[00:20:43] Speaker 01:
Good afternoon.

[00:20:44] Speaker 01:
My name is Bruce Funk, and I represent Kartiki Parakeet.

[00:20:48] Speaker 01:
And it looks like I'm out of time.

[00:20:51] Speaker 01:
No, no, you have five minutes.

[00:20:52] Speaker 01:
Oh, I have five minutes.

[00:20:53] Speaker 01:
OK, thank you very much.

[00:20:54] Speaker 03:
That's what you asked for.

[00:20:55] Speaker 01:
I did.

[00:20:56] Speaker 01:
Am I supposed to hit something here?

[00:20:58] Speaker 03:
You don't have to do anything.

[00:20:59] Speaker 01:
All right, thank you very much.

[00:21:01] Speaker 01:
I wanted to address two, I think two of your questions.

[00:21:06] Speaker 01:
One is I think the court should follow ITServe.

[00:21:13] Speaker 01:
And one of the reasons that it's important and one of the reasons why Judge Freeman looked at that is in ITServe, they basically said,

[00:21:29] Speaker 01:
All of these questions are capricious.

[00:21:33] Speaker 01:
They're outside the statutory framework, and you're not allowed to ask these.

[00:21:39] Speaker 01:
And Judge Freeman's analysis of this is not something new.

[00:21:43] Speaker 01:
This was a ruling that from day one when you've been asking these, these things you're not allowed to ask.

[00:21:50] Speaker 01:
And if you're not allowed to ask,

[00:21:52] Speaker 01:
then it's it's it's impossible for the answers that are given to these questions for them to them be material to a false statement because we have to take away the different in that part that you lost me there what why is that well because if there is something you can ask that you might want to know but you might not be allowed to ask that you know the fact that you're not allowed to ask it doesn't mean it's not material

[00:22:19] Speaker 01:
So if you're not allowed to ask it, then it can't be material in the immigration fraud statute because that information cannot be relied upon to either grant or deny the H-1B visa to begin with.

[00:22:41] Speaker 01:
Secondly, I believe you were on the right track regarding staffing companies.

[00:22:47] Speaker 01:
The bottom line is when the applications are submitted, there is an employer.

[00:22:57] Speaker 01:
The employer is the staffing company.

[00:23:00] Speaker 01:
There is a job because the employer, the staffing company, is required to pay them when they arrive, whether they ultimately put them offsite.

[00:23:14] Speaker 01:
And so if they arrive and they have no offsite work, they're still required to pay them.

[00:23:21] Speaker 01:
And that is built into the system to make sure that the staffing companies do not bring people

[00:23:28] Speaker 01:
then bench them, don't pay them, and can keep them on ice with no, having no responsibility until they find a place.

[00:23:39] Speaker 01:
And so that's why staffing companies would normally put down the home office as the address because when you first apply, you may have a contract that's lasting six months, nine months, and the visa may not be granted for six or nine months, and it's gone away.

[00:23:58] Speaker 01:
And so when a staffing company uses the home office, then they're able to just simply, when they arrive, place them at a different job site, and as long as it's within the same MSA, and that's, you know, the Department of Labor has said all of that, and it has that all in the rules, you don't have to update it.

[00:24:21] Speaker 01:
It's only if you then place them outside the MSA.

[00:24:24] Speaker 03:
your client did was put the home office address or did it represent that the foreign workers would be working at that office?

[00:24:34] Speaker 01:
On some of the applications they also said that they would be working at that office because

[00:24:42] Speaker 01:
that staffing company was not just a staffing company, it was also a chips company.

[00:24:48] Speaker 01:
And so there was the possibility of that also occurring.

[00:24:52] Speaker 01:
It's one of the probably reasons why they could afford to put, if they did not have jobs off site, they could have them work on their own projects.

[00:25:07] Speaker 01:
And so in short to me,

[00:25:12] Speaker 01:
It's the questions that are in this case, I disagree with the government, is the same type of questions in ITServe where they're saying you're not allowed to consider that.

[00:25:29] Speaker 01:
And thank you very much, unless you have a specific question.

[00:25:34] Speaker 01:
Appreciate it.

[00:25:35] Speaker 03:
Thank you, Council.

[00:25:42] Speaker 03:
The district court reasoned that the statements were not material because the government is not permitted to consider them.

[00:25:54] Speaker 03:
How do you respond to that?

[00:25:56] Speaker 00:
That's simply a misreading of IT serve.

[00:25:58] Speaker 00:
The government is permitted to consider the statements that are allegedly false in this indictment.

[00:26:03] Speaker 00:
We have to assume for purposes of analysis that the allegations in the indictment are true.

[00:26:07] Speaker 00:
That's this court's case in Boran, cited in the government's briefing.

[00:26:11] Speaker 00:
And if you assume the allegations are true, it means that the defendants lied about the existence of the jobs.

[00:26:19] Speaker 00:
They lied about where the jobs would be, how long the jobs would last.

[00:26:23] Speaker 00:
on the applications.

[00:26:24] Speaker 00:
Now, I take my friend's argument to be that those weren't lies, that they were actually telling the truth, that that's how the staffing agencies work.

[00:26:31] Speaker 00:
But those are trial issues that they can contest at trial.

[00:26:34] Speaker 00:
That's not whether we sufficiently alleged the lie and its materiality in the indictment.

[00:26:39] Speaker 00:
And we are bound by just the four corners of the indictment under this court's case law at the failure to state an offense stage.

[00:26:45] Speaker 05:
Could you articulate, succinctly, what's different from ITServe than in this case then?

[00:26:50] Speaker 00:
Yes.

[00:26:51] Speaker 00:
The questions in ITServe that the District Court in the District of Columbia found the government was not permitted to ask was for extensive day-to-day itineraries for the full three-year period of an H-1B visa.

[00:27:05] Speaker 00:
The allegations in this case are that the defendants lied about the basics of the H-1B visa application, not extra information in a day-to-day itinerary for three years, but the existence of the job, whether there was in fact a job at Perfect VIPs when they sent the application in, whether they would work at Perfect VIPs.

[00:27:25] Speaker 00:
I heard my friends say that we didn't charge that Perfect VIPs was the employer, but

[00:27:29] Speaker 00:
Or was not the employer but excerpts of record 89 the indictment says that among the false statements was that the that the beneficiaries quote would be employed by perfect VIPs So the so I take it then post IT sir you you think you see the immigration can ask where the employees gonna work Absolutely, absolutely your honor and and I know I'm straying outside the four corners of the I've been answering this question, but the spine

[00:27:56] Speaker 00:
Forms remain the same in the sense that they still ask where the job will be.

[00:28:01] Speaker 00:
Will it involve work offsite?

[00:28:04] Speaker 00:
And if so, that triggers further questions on the form.

[00:28:07] Speaker 00:
Now, ITServe said nothing about that form, that those forms remain the same.

[00:28:12] Speaker 00:
It was the request for additional information that ITServe said.

[00:28:17] Speaker 00:
You know, USCIS cannot demand detailed three-year itineraries for each H-1B visa applicant.

[00:28:22] Speaker 00:
But the basic information that we allege was false here is still asked about today, is still considered by the agency.

[00:28:28] Speaker 00:
It's very material.

[00:28:29] Speaker 00:
We're confident we'll be able to prove that at trial.

[00:28:31] Speaker 03:
So here's an allegation from paragraph 11 of the indictment that they falsely said that the foreign workers would be working on-site at Perfect VIP's office on internal projects.

[00:28:44] Speaker 03:
Did they actually say that?

[00:28:46] Speaker 03:
Set aside, we have to assume the truth of that, but did they actually say that on the form?

[00:28:52] Speaker 00:
My understanding is the evidence is yes, that the forms have check boxes for whether the H-1B visa worker will work onsite or offsite.

[00:29:01] Speaker 00:
And if they're going to be offsite, they trigger further questions as to where that offsite location will be to make sure that it's in the same location and has the same prevailing wage as the onsite location, right?

[00:29:11] Speaker 00:
Because that's what USCIS is trying to determine.

[00:29:14] Speaker 00:
And here, the defendants allegedly lied in filling out the form by saying this beneficiary, these 85 beneficiaries, would be working purely on-site at Perfect VIPs when they knew at the time that that was not true.

[00:29:27] Speaker 00:
Now, again, they might have trial defenses or post-trial defenses as to why they didn't lie or, if they got it wrong on the form, why we can't prove the intent, right?

[00:29:36] Speaker 00:
Because one of the five elements of visa fraud is that they knowingly lied at the time they filled out the form.

[00:29:42] Speaker 00:
So, if they were thinking they were complying with immigration laws and telling the truth that Perfect VIPs was going to be the employer and that these people were just going to work on-site, that's a defense they can raise at trial.

[00:29:53] Speaker 00:
It doesn't make the indictment faulty for failure to state an offense.

[00:29:57] Speaker 00:
We state all five elements of the offense here, and that's the only inquiry the court engages in looking at the four corners of the indictment.

[00:30:04] Speaker 00:
I just want to add one other point.

[00:30:06] Speaker 00:
I'm happy to answer any questions the court may have, but one other point that was raised.

[00:30:12] Speaker 00:
The defendants really have no answer for that 90-year history of case law that holds.

[00:30:20] Speaker 00:
that someone who defrauds the government can't then attack the validity of the government's right to ask the question or consider the answer.

[00:30:28] Speaker 00:
And when you look at United States versus CAP, which is cited in the government's brief, that's probably the most on point case.

[00:30:34] Speaker 00:
But in that case, that's a motion to dismiss an indictment because the statute that required the defendants to answer questions was held to be unconstitutional.

[00:30:44] Speaker 00:
And the defendants in that case, just like in this case, claimed,

[00:30:48] Speaker 00:
Well, then our statements that were allegedly false ceased to be material.

[00:30:52] Speaker 00:
And the Supreme Court reversed dismissal of the indictment in that case and said that the defendants can't attack the materiality under the law.

[00:30:59] Speaker 05:
Well, they tried to distinguish all of that by saying in those cases there was a specific statute that authorized the question.

[00:31:05] Speaker 05:
Here, USCIS asked questions that they were completely arbitrary and capricious.

[00:31:11] Speaker 00:
So two responses to that, Your Honor.

[00:31:12] Speaker 00:
One is the questions in this case are very authorized by statute.

[00:31:15] Speaker 00:
The statutes are cited throughout the government's brief, but it's Title 8, Section 1182.

[00:31:23] Speaker 00:
There are subparagraphs as to what USCIS is permitted to consider and ask.

[00:31:27] Speaker 00:
The forms have not changed since IT served, so they continue to be asked today on the questions that are allegedly false in this indictment.

[00:31:34] Speaker 00:
But the second piece, I would argue, is something that you pointed out in your question, which is I don't understand the legal distinction that would absolve someone of fraud when the question was outside of a statutory authority, but not absolve someone of fraud when the question was unconstitutional.

[00:31:51] Speaker 00:
I mean, that seems like it reverses things in the order, and I see them well over my time.

[00:31:55] Speaker 00:
Thank you very much.

[00:31:56] Speaker 03:
All right.

[00:31:57] Speaker 03:
Thank you very much, counsel.

[00:31:59] Speaker 03:
US versus Pat Naik will be submitted.