[00:00:00] Speaker 00:
United States Court of Appeals for the Ninth Circuit, now draw near, give your attention.

[00:00:05] Speaker 00:
You will be heard.

[00:00:07] Speaker 00:
God save the United States and this honorable court.

[00:00:11] Speaker 00:
Please be seated.

[00:00:15] Speaker 01:
Good morning and welcome to the Ninth Circuit.

[00:00:17] Speaker 01:
I'm Judge Nelson and it's a pleasure to be with you, Judge, with Judge Bybee and Judge Forrest.

[00:00:24] Speaker 01:
We have two arguments set for today.

[00:00:26] Speaker 01:
We'd ask that you just watch your time, let us know how much time you want to reserve, and then sum up as your time's concluding.

[00:00:35] Speaker 01:
Let's go ahead and start.

[00:00:36] Speaker 01:
It looks like we're ready to go here.

[00:00:38] Speaker 01:
So we'll start with United States versus Primrose, case number 24-1462.

[00:00:44] Speaker 01:
May it please the court.

[00:00:48] Speaker 04:
Good morning.

[00:00:49] Speaker 04:
My name is George Boisseau.

[00:00:50] Speaker 04:
I represent Mr. Primrose.

[00:00:54] Speaker 04:
I must acknowledge the weight of authority is against my position.

[00:01:00] Speaker 04:
The closest case I have is United States versus Cox.

[00:01:05] Speaker 04:
It's different on the facts, it's different in the law, but it stands for the same proposition that there comes a time where you can assume a name and it becomes your own.

[00:01:16] Speaker 04:
Here's my simple point, is that Mr. Primrose

[00:01:21] Speaker 04:
In 1987, he changed his name.

[00:01:27] Speaker 04:
He didn't violate any law.

[00:01:29] Speaker 04:
He didn't change it to get away from felony convictions.

[00:01:33] Speaker 04:
He just assumed a different name.

[00:01:36] Speaker 00:
I think that argument might make sense if it was just assuming a name, because people do change their names legally all the time.

[00:01:45] Speaker 00:
But that's not exactly all that your client did.

[00:01:48] Speaker 00:
They also assumed birthdays and that was never going to be true that they had a different birthday So it was more assuming a whole identity and not just a new name.

[00:01:57] Speaker 00:
So how do you get around that fact?

[00:02:00] Speaker 04:
Well, I can't get around the fact that he used the the name and the birthdate of and because that's true How is it?

[00:02:09] Speaker 00:
How are you ever going to get around the falsity problem because the birthday can never be true?

[00:02:14] Speaker ?:
I

[00:02:15] Speaker 04:
well now my argument is that at a certain point in time after thirty five years when you when you go and let's talk about count one this is august twenty eighth nineteen two thousand eighteen he'd been using the name uh... for for thirty five years and he'd served twenty years uh... twenty two years in the coast guard honorably and uh... so when he went to make application for his wife for

[00:02:44] Speaker 04:
identification cards that receive benefits.

[00:02:47] Speaker 04:
He wasn't making a false, he wasn't using a false name.

[00:02:52] Speaker 03:
But he was listing a birth date.

[00:02:55] Speaker 03:
So he didn't use his own birth date with somebody else's name.

[00:03:00] Speaker 04:
Absolutely.

[00:03:01] Speaker 04:
I mean, I acknowledge he did not use his own birth date.

[00:03:05] Speaker 04:
He did not use his own name.

[00:03:07] Speaker 04:
He used the name and the date of birth that he assumed.

[00:03:11] Speaker 03:
Isn't the problem here that the name that he's assumed is the name of an actual person?

[00:03:16] Speaker 03:
I mean, this is not a name that he chose.

[00:03:18] Speaker 03:
It's not like John Wayne becoming John Wayne by taking on the name.

[00:03:25] Speaker 03:
John Wayne didn't assume the name of a dead child.

[00:03:28] Speaker 04:
Yes, that's true.

[00:03:30] Speaker 04:
That distinguishes the Cox case from this case.

[00:03:36] Speaker 04:
But my point is that after a point in time, even if...

[00:03:40] Speaker 04:
You're dealing, yes, you've assumed the name of a dead child, a child that survived tragically only three months.

[00:03:52] Speaker 04:
And I acknowledge that's a tragedy for the family.

[00:03:56] Speaker 04:
But the identity that he used, he developed himself for 35 years.

[00:04:07] Speaker 01:
He still had dual identities.

[00:04:09] Speaker 01:
He applied for a passport under his original name multiple times.

[00:04:13] Speaker 01:
This is a really creative theory, but there's so many holes in it.

[00:04:19] Speaker 01:
I'm trying to figure out how this gets past anything.

[00:04:25] Speaker 01:
You've got the date of birth problem, and then you've got this other problem, which is

[00:04:30] Speaker 01:
He went and applied for passports in his original name.

[00:04:33] Speaker 01:
He had two passports.

[00:04:35] Speaker 04:
Well, yes, but the first passport had expired.

[00:04:38] Speaker 04:
He had a certain point in time.

[00:04:43] Speaker 01:
He renewed the Primrose passport in 1999, 12 years after he supposedly assumed this new name.

[00:04:52] Speaker 01:
and his identity that he used in the Coast Guard, the identity he used for the... Council, your whole argument is premised on he believed he was this other person, and that's not true.

[00:05:02] Speaker 01:
It's just not true at all.

[00:05:08] Speaker 03:
It's not like he was passing himself off under a different name to join the country club.

[00:05:14] Speaker 03:
These are official documents and you've got things that actually match up with real people.

[00:05:21] Speaker 03:
So he has assumed the identity of a real person.

[00:05:23] Speaker 03:
It's not a name that he just decided to call himself.

[00:05:27] Speaker 04:
That's true.

[00:05:28] Speaker 04:
I mean, he admitted all that.

[00:05:30] Speaker 04:
He admitted that, but he also admitted that he'd been used for 35 years before this offense.

[00:05:36] Speaker 04:
He'd been using the name Fort.

[00:05:38] Speaker 04:
And this is... He wasn't using both names.

[00:05:43] Speaker 01:
Can you address that issue?

[00:05:44] Speaker 01:
He'd been using both names.

[00:05:47] Speaker 01:
So it's not as if he just believed for 35 years he was this other man.

[00:05:51] Speaker 01:
He knew it was fraudulent.

[00:05:53] Speaker 01:
And he kept both identities live.

[00:05:56] Speaker 01:
With his family, he didn't tell them he was a new person.

[00:06:00] Speaker 01:
So he had dual identities.

[00:06:02] Speaker 04:
Well, yes, he did not tell his family.

[00:06:05] Speaker 04:
That's in the record.

[00:06:08] Speaker 01:
But he wasn't using the name Primrose, but his service was... Then why did he get the new passport under Primrose in 1999, 12 years later?

[00:06:19] Speaker 04:
Well, because he was traveling in the Coast Guard, he was using that.

[00:06:23] Speaker 04:
1999, he was still using the Fort identity.

[00:06:30] Speaker 04:
He used that.

[00:06:31] Speaker 04:
Exactly, and he applied for a passport to renew his Primrose passport.

[00:06:36] Speaker 04:
But that was, but he didn't use that passport.

[00:06:40] Speaker 04:
He didn't travel under that passport.

[00:06:42] Speaker 04:
He didn't go into the Coast Guard under that name.

[00:06:45] Speaker 04:
He didn't do, he didn't apply for credit.

[00:06:47] Speaker 04:
He didn't pay taxes under that name.

[00:06:49] Speaker 04:
He didn't pay social security.

[00:06:50] Speaker 04:
All the things that he did wander his assumed name of Mr. Ford.

[00:06:55] Speaker 00:
So even if we accepted the idea that you're trying to advance here, that at some point you can take over another person's identity and it just becomes yours.

[00:07:04] Speaker 00:
Like at what point is that, right?

[00:07:06] Speaker 00:
Because the issue that we're talking about here is whether he had the sufficient mens rea for this crime, which is to know his conduct was unlawful.

[00:07:14] Speaker 00:
So at what point in time does he switch from knowing it's unlawful to thinking it's actually lawful because of the passage of time?

[00:07:22] Speaker 00:
Because adverse possession, which is the analogy you're trying to draw, is an established principle that is temporally defined.

[00:07:29] Speaker 00:
It's 10 years or some other period of time that's specified in the law.

[00:07:35] Speaker 00:
So what's the moment here when we cross the line from unlawful to lawful?

[00:07:40] Speaker 04:
If the court's asking me for the exact time frame, I can't give that.

[00:07:45] Speaker 00:
Isn't that fatal to your claim?

[00:07:46] Speaker 00:
Because here we're talking about his mental state of does he know this is lawful or unlawful?

[00:07:52] Speaker 00:
And if you can't define a time period that switches from one status to the next, then how can we establish that his mental state was now he actually knows under the law that this is proper?

[00:08:04] Speaker 04:
The two time frames that I am using is 27 years he was using the name for the count 3 and 35 years for the counts 1 and 2.

[00:08:16] Speaker 04:
So my contention is that at that point in time when you are dealing with a person who has used this identity and

[00:08:25] Speaker 04:
done everything I'm talking about, I mean, enrolling, being in the military, honorably serving his country, paying taxes, not developing any criminal history.

[00:08:37] Speaker 04:
Developing a life under that name at least at 35 years that meets so you don't know but it's pretty long here So it must be good enough.

[00:08:45] Speaker 04:
Yes, that would be my I I don't believe that I can say that well after five years That's enough or ten years for adverse possession, but 35 years In this case I submit that's enough I know the other part of the analogy that you've drawn with adverse possession that doesn't quite make sense to me is

[00:09:05] Speaker 00:
is in that doctrine you have to be open and obvious right so if we're talking about real property like the whole world has to know that the property that you're using actually doesn't belong to you and nonetheless you're opening it for you're using it for the whole world to see nobody does anything about it so at some point in time we just say okay

[00:09:21] Speaker 00:
The property is now yours.

[00:09:23] Speaker 00:
Here, he didn't do this in an open and obvious way.

[00:09:25] Speaker 00:
I know you want to say, well, he's out in the world under the name of Fort.

[00:09:28] Speaker 00:
But he's not out in the world under the name of Fort with everybody knowing that he actually was Primrose, but he decided to use Fort's identity.

[00:09:35] Speaker 00:
All of that was a secret.

[00:09:36] Speaker 00:
Otherwise, this would not have worked.

[00:09:38] Speaker 04:
Well, to his family, I admit that he didn't.

[00:09:41] Speaker 04:
To his family, he was still Mr. Primrose.

[00:09:42] Speaker 00:
The government didn't know that he was Primrose who became Fort.

[00:09:46] Speaker 00:
They wouldn't have let him serve under the name of Fort if they had known that.

[00:09:50] Speaker 01:
That's true, but he did it's not open and obvious when you have to go through a security clearance You have to indicate I mean I this didn't come at the record But you have to indicate any prior names you were known by he had to have light on that

[00:10:06] Speaker 04:
And I'm not disputing the fact that it might have been one of the questions he asked.

[00:10:13] Speaker 04:
But yes, he used the name Fort to enroll in the military.

[00:10:19] Speaker 04:
He served, he paid, he got a social security card under Fort.

[00:10:24] Speaker 04:
So to answer

[00:10:25] Speaker 04:
Judge Forrest's question is that, yes, to the world he was Mr. Fort, except for his family, but to the outside world, to the military, to the people that he dealt with on a daily basis, to the taxing authorities, to everyone that mattered in terms of officialdom, he was Mr. Fort.

[00:10:50] Speaker 04:
and he assumed that.

[00:10:52] Speaker 04:
That name, that identity, and lived that for 35 years until he was arrested.

[00:10:59] Speaker 04:
So, it is, I know this is an unusual case, and I don't have a lot of case, I have no case law to support me.

[00:11:10] Speaker 04:
And I acknowledge the authorities against me, but there comes a time in my argument that you

[00:11:18] Speaker 04:
There comes a time when you've used a name for this period of time and you've not committed any crimes.

[00:11:24] Speaker 04:
You're not trying to avoid a felony conviction.

[00:11:28] Speaker 04:
You're not trying to hide something, except then you get to use that name.

[00:11:37] Speaker 04:
And then when you apply for... There is a way to do that.

[00:11:42] Speaker 01:
Go to the court and ask them to change your name.

[00:11:44] Speaker 04:
And if he had done that, we wouldn't be here today.

[00:11:47] Speaker 04:
Exactly.

[00:11:48] Speaker 04:
But he didn't do that.

[00:11:50] Speaker 04:
And he didn't do that.

[00:11:51] Speaker 04:
But now this is the court that can look at this case and say, fundamentally, this is unfair to saddle him with these felony convictions because he had lived his life, at least the 35, most of his adult life, under the name Fort.

[00:12:09] Speaker 04:
And at a point in time, 35 years or 27 years,

[00:12:13] Speaker 04:
That's long enough to possess that identity.

[00:12:17] Speaker 00:
Council, I understand your argument to be focused on the matter of falsity.

[00:12:21] Speaker 00:
Are you advancing any sort of position on materiality or just falsity?

[00:12:26] Speaker 04:
Just falsity.

[00:12:27] Speaker 04:
Thank you.

[00:12:27] Speaker 04:
I mean, I don't dispute the fact that it's material.

[00:12:32] Speaker 04:
Counts one and two.

[00:12:34] Speaker 04:
And three, I mean, I'm arguing falsity and specific intent to use a false statement.

[00:12:39] Speaker 04:
I am asserting that when you use that name, it wasn't false.

[00:12:43] Speaker 04:
It wasn't willfully false.

[00:12:46] Speaker 04:
I have three minutes for rebuttal.

[00:12:48] Speaker 04:
Yeah, we'll give it to you.

[00:12:49] Speaker 04:
If I could say that, thank you.

[00:12:50] Speaker 04:
Yeah.

[00:12:51] Speaker 03:
And counsel, thank you for your candor.

[00:12:53] Speaker 03:
Appreciate it.

[00:13:09] Speaker 02:
May it please the court.

[00:13:10] Speaker 02:
Good morning.

[00:13:11] Speaker 02:
Tom Milica for the United States.

[00:13:13] Speaker 02:
Your Honor, our position, the United States position, is simply that there is sufficient evidence for a reasonable jury to find that the defendant Primrose guilty of all three, excuse me, one, two, three, and five, four counts in this case.

[00:13:28] Speaker 02:
We believe that

[00:13:29] Speaker 02:
The court, in reviewing the sufficiency of the evidence, must, I understand, review it in the light most favorable to the prosecution, respecting the jury's province to determine credibility of witnesses, to resolve the conflicting evidence, and to draw reasonable inferences.

[00:13:49] Speaker 02:
There were many reasonable inferences here.

[00:13:51] Speaker 01:
So first of all, I think you're right on all those points in spades.

[00:13:57] Speaker 01:
But why did the government,

[00:13:59] Speaker 01:
What was the big deal here?

[00:14:01] Speaker 01:
I mean, I understand if someone uses a false name in order to deceive the government in some way.

[00:14:11] Speaker 01:
And I'm trying to figure out what the touch point here was.

[00:14:14] Speaker 01:
Is there just an institutional interest that we can't have people who we don't know

[00:14:20] Speaker 01:
you know, did it have to do with the top secret clearance?

[00:14:25] Speaker 01:
What was driving this?

[00:14:26] Speaker 02:
There was all of that, Your Honor.

[00:14:31] Speaker 02:
He had a security clearance.

[00:14:33] Speaker 02:
He maintained a security clearance with his civilian job that was doing work through the civilian contract with the Coast Guard for the Pacific Missile Range.

[00:14:44] Speaker 02:
When did he get a security clearance?

[00:14:46] Speaker 02:
He had a clearance with them.

[00:14:49] Speaker 02:
He had... When did he first get his security clearance?

[00:14:53] Speaker 02:
He had security clearances as a new listed man in the Coast Guard, Your Honor, when he served... In 1994?

[00:15:00] Speaker 02:
Not when he first went in, Your Honor.

[00:15:02] Speaker 02:
I believe he obtained them, several of them.

[00:15:05] Speaker 02:
They were renewed from the service 94 to 2016 when he retired.

[00:15:11] Speaker 02:
And then he had a clearance in his civilian job with PAE when they were doing the work at the... I assume in order to get a security clearance, he had to fill out the SF-86.

[00:15:22] Speaker 03:
That's a pretty standard form.

[00:15:23] Speaker 03:
He did.

[00:15:24] Speaker 03:
Okay.

[00:15:25] Speaker 03:
And how did that slip through the network?

[00:15:30] Speaker 02:
It fell through the crack, Your Honor.

[00:15:31] Speaker 02:
I'm not sure.

[00:15:33] Speaker 02:
It fell through when he enlisted in the Coast Guard.

[00:15:37] Speaker 03:
He enlisted in the Coast Guard with a false name.

[00:15:40] Speaker 03:
Right.

[00:15:40] Speaker 03:
But the Coast Guard was going to conduct a background check prior to issuing him a security clearance.

[00:15:46] Speaker 03:
So he filled out an SF-86.

[00:15:48] Speaker 03:
He did.

[00:15:49] Speaker 03:
And somehow the Coast Guard or whoever investigated this probably doesn't sound like they didn't do a very thorough job.

[00:15:57] Speaker 02:
I can't argue with that, Your Honor.

[00:15:58] Speaker 02:
I don't have an answer how that fell through the crack.

[00:16:00] Speaker 01:
What was the age difference between the original date of birth and... 12 years.

[00:16:05] Speaker 01:
The age difference between his real... 12 years early.

[00:16:09] Speaker 02:
So the child, Fort... Bobby Edward Fort was born in 1967 and died in 1967.

[00:16:22] Speaker 02:
Mr. Fort was born... He's five years younger than I am.

[00:16:24] Speaker 02:
He was born in 1955.

[00:16:28] Speaker 02:
That allowed him to get into the Coast Guard.

[00:16:32] Speaker 01:
The charges here are not based on lying on your SF-86.

[00:16:38] Speaker 02:
No.

[00:16:39] Speaker 01:
The charges here are receiving benefits.

[00:16:44] Speaker 02:
Well, the charges are based on his

[00:16:48] Speaker 02:
ability to get a passport under false information, his use of a passport to get a driver's license, his use of the false identity to get military benefits for his wife, the dependent ID card, and then the fraud that went from 1987, even though he did have

[00:17:13] Speaker 02:
after he got the false driver's license, the false birth certificate under Bobby Edward Fort and then the Texas driver's license and then got a social security number for Bobby Edward Fort when he already had a social security number on his own name, his true name.

[00:17:32] Speaker 02:
That was how the fraud program manager at the Passport Center determined there was something fishy.

[00:17:40] Speaker 02:
They did a post issuance audit.

[00:17:43] Speaker 02:
They looked at the application he had submitted in 2016 from Kodak, Alaska when he was in the Coast Guard, saw that there was a social security number issued much later

[00:17:58] Speaker 02:
found that to be funny, then went on, he went on Ancestry, actually, official databases and a commercial database and found the death certificate for Ravi Edward Ford.

[00:18:08] Speaker 01:
Sounds like that passport guy needs to be hired in our top secret security clearance program.

[00:18:12] Speaker 01:
I'm sorry, Your Honor.

[00:18:13] Speaker 01:
That passport guy needs to be hired in our top-secret security clearance program.

[00:18:17] Speaker 02:
He's the best one I've ever seen at this testimony, Mr. Gabarino.

[00:18:20] Speaker 02:
He was really sharp.

[00:18:22] Speaker 02:
And then they, of course, went to the associated passport application for the wife, Morrison.

[00:18:29] Speaker 03:
Is he going to lose his military benefits?

[00:18:32] Speaker 03:
Sir?

[00:18:32] Speaker 03:
Is he losing his military benefits?

[00:18:34] Speaker 02:
My understanding is the Coast Guard has determined it was a fraudulent enlistment.

[00:18:38] Speaker 02:
They did not claw back all his pay that he received on active duty.

[00:18:44] Speaker 02:
But it's a fraudulent enlistment is what I understand.

[00:18:47] Speaker 03:
Yeah.

[00:18:48] Speaker 03:
I mean...

[00:18:50] Speaker 03:
He rendered 22 years of distinguished service to the United States.

[00:18:54] Speaker 03:
I'm sorry that it was done under a false name, but... He was honorably discharged, Your Honor.

[00:18:58] Speaker 03:
The fact of the matter is that the service has already been rendered to the United States.

[00:19:02] Speaker 03:
That's a pretty cruel result.

[00:19:05] Speaker 02:
I cannot argue with the merits of that, Your Honor.

[00:19:08] Speaker 02:
That was not a decision made by the Department of Justice.

[00:19:11] Speaker 02:
And that's not in the record.

[00:19:12] Speaker 02:
That's just what I understand, that the Coast Guard has determined it was a fraudulent enlistment.

[00:19:16] Speaker 00:
Do they determine that because he wasn't eligible at the time he enlisted because of the age?

[00:19:21] Speaker 02:
I'm sorry your honor.

[00:19:22] Speaker 00:
Do they determine that because he was not eligible for service when he enlisted because of his age?

[00:19:26] Speaker 02:
Because of the false information he gave because of it and I think because of his age and the date of birth and the documents that he submitted.

[00:19:37] Speaker 02:
I don't have a lot of information on that your honor.

[00:19:40] Speaker 01:
If I understand it correctly if he'd used his original date of birth

[00:19:44] Speaker 01:
he would not have qualified for the original position.

[00:19:48] Speaker 01:
That's correct, Your Honor.

[00:19:49] Speaker 01:
That's my understanding.

[00:19:52] Speaker 01:
So there actually is some, I mean, I don't know what you call it.

[00:20:00] Speaker 01:
He got a benefit that he otherwise couldn't have gotten by using the false identity, and really the false birthday.

[00:20:07] Speaker 01:
Yes.

[00:20:08] Speaker 01:
Yes, Your Honor.

[00:20:11] Speaker 02:
Our position is there were a lot of

[00:20:13] Speaker 02:
situations here and evidence that was presented.

[00:20:16] Speaker 02:
In 1987, he first replied for a passport under his real name that was issued.

[00:20:22] Speaker 02:
They found that.

[00:20:25] Speaker 02:
The sister, Carol Primrose Burton, identified that photograph and the passport for Walter Len Primrose as to be her brother.

[00:20:37] Speaker 02:
She testified that when she moved to Lufkin, Texas with her father, they lived at the Finley Road address.

[00:20:45] Speaker 02:
That is in the passport, his original passport, which is our supplemental excerpt of record.

[00:20:55] Speaker 02:
Exhibit 12 on our fourth volume of Supplemental Excerpt of Record, Exhibit 735, Carol Burton.

[00:21:04] Speaker 02:
Then subsequent to that, as the Court mentioned, after he went into the Coast Guard, he applied for his first passport under the phony name Bobby Edward Fort at Pasquotank County, North Carolina on November 8th of 1996.

[00:21:21] Speaker 02:
And then just after that, less than three years after that, he applied for a renewal of his true name, a passport, and he used it at Chesapeake, Volvo Parkway, Chesapeake, Virginia, on March 30th of 1999.

[00:21:37] Speaker 02:
That information all came out.

[00:21:39] Speaker 02:
before the jury.

[00:21:40] Speaker 02:
It also came out that he received mail at what we call a mail drop in Kailua on the windward side of the island, 31 miles away from where they lived in Kapolei, their residence.

[00:21:50] Speaker 02:
That was opened up by his wife in 2000 and Carol Primrose Burton,

[00:21:57] Speaker 02:
wrote him a letter there.

[00:21:58] Speaker 02:
She testified about that as exhibit 105 on our second volume of supplemental excerpts on page 426.

[00:22:08] Speaker 02:
It was a letter she wrote to her brother that she'd only knew by Walter Glenn Primrose.

[00:22:14] Speaker 02:
She didn't know Bobby Edward Fort.

[00:22:16] Speaker 02:
She didn't know Julie Lynn Montague, the sister-in-law.

[00:22:19] Speaker 02:
She wrote to them on August 2nd of 2021.

[00:22:22] Speaker 02:
That letter was found in the residence during the search warrant.

[00:22:26] Speaker 02:
There were also a letter from Cecil Primrose, the father, that was written to Walter and Glenn.

[00:22:33] Speaker 02:
Walter, I guess it was actually written to Mr. and Mrs. W. and G. Primrose.

[00:22:41] Speaker 01:
And that was written in... Council, I think we've got the facts here.

[00:22:46] Speaker 01:
I'm trying to figure out if there's a... There was one issue.

[00:22:50] Speaker 01:
There was some confusion on specific intent in

[00:22:56] Speaker 01:
our case law.

[00:22:57] Speaker 01:
I wonder if you can address that at all.

[00:23:00] Speaker 01:
There's the Tatooine case and the Bryan case.

[00:23:04] Speaker 02:
Well, not so much on the law.

[00:23:08] Speaker 02:
I think what the intent here was to give a false statement as to the 1001.

[00:23:16] Speaker 02:
He has to not only understand that he's making a false statement, but understand that his conduct is illegal.

[00:23:22] Speaker 02:
This whole thing was kept secret.

[00:23:25] Speaker 02:
The change from their real name to the stolen.

[00:23:30] Speaker 01:
Your point is, even if

[00:23:33] Speaker 01:
Even if we said you had to show that he knew that it was illegal, that there's enough evidence to support that here.

[00:23:42] Speaker 01:
Absolutely.

[00:23:44] Speaker 02:
They kept it quiet.

[00:23:46] Speaker 02:
Brian McLean, their high school classmate, testified that they were supposed to keep that quiet.

[00:23:52] Speaker 02:
The sister didn't know.

[00:23:54] Speaker 02:
Carol Burton didn't know his real name or Morrison's phony name, the Montague name.

[00:24:02] Speaker 02:
And it was something that they wanted to hide.

[00:24:06] Speaker 02:
They had to hide.

[00:24:09] Speaker 02:
When he went to get a passport under the first name of Bobby Edward Ford, he checked the box that he never had another passport.

[00:24:18] Speaker 02:
Well, he did have another passport under his real name that he got in 1987.

[00:24:22] Speaker 02:
The same, the same.

[00:24:24] Speaker 01:
But that's evidence.

[00:24:26] Speaker 01:
Oh, no, that is actually evidence that you're charging him with.

[00:24:29] Speaker 01:
You're actually charging him with that because you're saying he obtained passport and driver's licenses with false information, with false information.

[00:24:39] Speaker 02:
That conspiracy, which is the count five, your honor.

[00:24:43] Speaker 02:
Unless the court has questions for me.

[00:24:46] Speaker 01:
I think we've got it from you.

[00:24:52] Speaker 01:
Thank you.

[00:24:53] Speaker 01:
Thank you.

[00:25:07] Speaker 04:
I will answer some questions the court has.

[00:25:11] Speaker 04:
And yes, he had top secret clearance.

[00:25:14] Speaker 04:
He had security clearance.

[00:25:16] Speaker 04:
But that was based on the identity that he had, his service to the country for 22 years of service, the fact that he had served in the Coast Guard with distinction, he had honorably discharged, all those facts that went into his security clearance and his top secret clearance,

[00:25:36] Speaker 01:
I mean, in a weird way, the security clearance, I don't think is one of the charging offenses, right?

[00:25:43] Speaker 01:
I mean, it's really just the driver's license and the passport.

[00:25:49] Speaker 01:
Or is the security clearance, was that also part of the charging offense that he obtained?

[00:25:55] Speaker 04:
No, it was not part of the charge.

[00:25:56] Speaker 04:
I mean, it's evidence, obviously.

[00:25:58] Speaker 04:
It was evidence, and I would like to turn it to the point where that actually shows why this is a cruel result.

[00:26:09] Speaker 04:
Yes, he lost his benefits, as we've talked about, but in a sense that... Why did he lose his benefit?

[00:26:17] Speaker 01:
He lost his benefits because he was convicted of a felony or he lost his benefits

[00:26:22] Speaker 01:
because he committed fraud in the application for the job?

[00:26:27] Speaker 01:
Or do you know?

[00:26:28] Speaker 01:
I don't know.

[00:26:29] Speaker 04:
I don't know to represent the reasons, specific reasons why, but I know that he has.

[00:26:34] Speaker 04:
And his life is turned upside down because of this.

[00:26:39] Speaker 04:
There's no doubt, yes, some of this was his own making, but in the end, he didn't do anything to get on the government's radar other than he didn't violate any laws, he didn't have criminal offenses, he wasn't abusing his position.

[00:26:58] Speaker 04:
He did everything he could to serve this country.

[00:27:03] Speaker 04:
And we look at the

[00:27:06] Speaker 04:
Yes, there's no evidence that he wouldn't have got the Coast Guard position because of his age.

[00:27:13] Speaker 01:
What is that?

[00:27:14] Speaker 01:
Because I thought there was an age limitation at which they wouldn't have brought you in and that 12 years was material to that.

[00:27:21] Speaker 04:
I know there was a difference, although I don't remember, and I wasn't a trial attorney, but I don't remember a specific testimony regarding- When did he first go into the Coast Guard?

[00:27:33] Speaker 01:
That would have been 1994 I think so 94 he would have been Well Ford would have been 32 Primrose would have been 44 so I think that's the discrepancy that so if I remember right they wouldn't They wouldn't have hired you in the first instance above four, you know

[00:27:59] Speaker 04:
I know there was a discrepancy.

[00:28:00] Speaker 04:
I don't remember there was testimony actually that he wouldn't have been eligible to go into the Coast Guard.

[00:28:05] Speaker 01:
He seemed to know that too.

[00:28:07] Speaker 01:
I thought there was evidence that he knew that, that he wouldn't be eligible.

[00:28:12] Speaker 01:
if he used his old birthday.

[00:28:14] Speaker 01:
I may be wrong.

[00:28:15] Speaker 04:
I don't remember that specific testimony.

[00:28:17] Speaker 04:
But irrespective of the fact, it would have made a difference had somehow he declared that he was injured or there were some reasons why he couldn't do his service and he was getting benefits because of disability and really he was older and shouldn't have ever got in.

[00:28:36] Speaker 04:
But he served 22 years.

[00:28:38] Speaker 01:
It's sort of an unjust enrichment claim.

[00:28:40] Speaker 01:
that you're bringing that, look, he did it, and he's entitled to the benefits from doing that.

[00:28:46] Speaker 01:
Yes.

[00:28:47] Speaker 04:
I think the court is saying it better than I have said it.

[00:28:54] Speaker 01:
That only goes so far, though, because they didn't claw back the money that was paid to him.

[00:28:59] Speaker 01:
So he did get benefits for that.

[00:29:00] Speaker 01:
It's just that they said, look, if you commit a felony, you can't get your future benefits.

[00:29:09] Speaker 01:
I don't know.

[00:29:10] Speaker 01:
I don't know what that theory is.

[00:29:11] Speaker 01:
We can decide that in another case if you bring it.

[00:29:14] Speaker 04:
And perhaps if I would have had different arguments.

[00:29:19] Speaker 04:
And obviously I had to argue these specific and tantric argument because he made a Rule 29 motion.

[00:29:28] Speaker 04:
He represented himself during trial.

[00:29:29] Speaker 04:
So I was limited in terms of what arguments.

[00:29:33] Speaker 04:
There would have been argument perhaps.

[00:29:34] Speaker 04:
Well, he actually didn't represent himself.

[00:29:37] Speaker 01:
Fort was representing Primrose, so.

[00:29:45] Speaker 04:
Yes, that's true But he did he go in Pro per and he didn't have the benefits of an attorney And some of the arguments maybe could have been made a little bit differently in order to preserve some issues But we are with this record and these are the arguments that I'm making and yes, I am arguing Fundamental fairness if nothing else Okay.

[00:30:10] Speaker 01:
Thank you.

[00:30:11] Speaker 01:
Thank you.

[00:30:12] Speaker 01:
Thank you to both counsel for your arguments in the case.

[00:30:14] Speaker 01:
The case is now submitted