compelling symptom of this indictment's deficiency is the government's repeated reference to trial evidence in an effort to salvage it. It should be the case. She did again, I'm sorry. Certainly. The most compelling symptom of this indictment's deficiency is the government's repeated resort to the trial record in an effort to salvage it. Not the bill of particulars? They rely on the bill of particulars as well, your honor, but I would ask the court to go through the government's brief and look at their citations and many, many, many, many of their citations in defense of the indictment are in fact to the trial record. It should be the case that when alleging an indictment failure to disclose as criminal behavior, conduct that is not inherently deceptive, conduct that may be indicative of innocent behavior, that the indictment is held to a more scrupulous and more exacting standard of pleading. But instead, what we have here is an indictment that alleges failure to disclose over an expansive 13 year period, and yet that fails to specify generic statutory language as is required by Supreme Court precedent, and that fails to identify conduct giving rise to the charge in count three. Is that a constitutional violation? Constitutional violation is to count one and two year honor. What amendment are you resting metal? Fifth and sixth year honor. Both? Yes. Could I ask, are you saying that there was constitutional and deficiency with respect to all of the counts? Certainly, with respect to counts one and two. With respect? I'm reading count one, and you said that it failed to even generically reflips the statutory language. No, you're unhaves. I'm sorry if I misunderstood you. My apologies if I argument wasn't clear. What I said is that even though it does parent the statutory language, which is sufficient in many circumstances, it's not always sufficient. And there is good law, United States versus Russell, and it's progeny, that state that when one of the statutory terms is a generic term, such as the word event here, that the government has an obligation to state facts supporting that charge because it really is sort of the linchpin of criminal responsibility
. And the purpose would be to make sure you have notice of it? Or... That would be the Six Amendment purpose, you're right, yes. There's some allegation that doesn't really know what he's being charged with. That when, as the Supreme Court put it, where guilt depends so crucially upon a specific identification effect, our cases have uniformly held that an indictment must do more than simply repeat the statutory language. The fact is that he was getting disability payments all during this whole time, and he was working, he has complete history of working in violation of the prohibition of getting disability to payment while doing so. What more does he need to be informed of? A couple of points on that, Your Honor. First, the indictment doesn't lay out this work history in the way that you state that it was laid out, as we would say, in the bill of particularism and perhaps... You're unaware of his work history? Was he unaware of his obligation to report his employment? Every... I thought every document he received made it clear to him that he was under an obligation to report employment, which might affect his disability benefit. Well, if we look at the indictment, Your Honor, the only real document that the indictment points to that might have made him.
.. No, no, well, actually, I was referring to the documents which he had to sign to receive disability. Certainly, Your Honor. And the indictment does reference that he received that document. But I would point the court to the Phillips case, because the facts in the Phillips case include reference to such documents that when the defendant in that case signed up for disability payments, that he received such sort of boilerplate warning is that he had an obligation to report any employment and that he worked thereafter. And the court in that case... Well, almost in every case of that sort, I mean, the documents that somebody signs upon employment or boilerplate, we're not suggesting that makes it different, sorry. Not necessarily, Your Honor, but... I mean, again, I just want to look at what the indictment... Let's look at paragraph 11. And then you're right, it gives a long period of time, 1996 of 2007
. And then it says Mr. Perry was employed, but did not report his employment. Either Newy was employed or he did. But what difference does it make whether the government went through and listed all of his employments? It seems like that would be peculiarly within his knowledge. Either Newy was employed or he didn't. First, Your Honor, I think we need to clarify one fact that not every employment is an employment affecting one's rights to benefits. And what the... But wasn't there an obligation to report? It wasn't he did not have the ability to unilaterally determine what we're counting, what we haven't ongoing obligation to report. What the criminal statute requires is that he report any event affecting his right to these payments. And not every employment is an event affecting one's rights to payments. The disabilities statutes are a sort of vast and complex and very confusing set of statutes that say that sometimes employment will affect one's rights to benefits and sometimes they won't. And one of the reasons that would be so crucial in this case, Your Honor, for the indictment to specify just one event affecting his right to benefits is because it would then allow a court, a legal determination of whether that was an event affecting his right to benefits. We were going to go out and paragraph 12 on June 25th, 2007, Mr. Perry was hired by the Social Security Administration. Here's one
. Your Honor, if that's the event giving rise to this indictment, then how do we get an indictment going back to 1996? Well, you said they didn't, they hadn't put set forth any end and there's one in paragraph 12. Well, that's not one that supports this vast, broad indictment though, Your Honor. And I would further suggest that it's sort of technological that he disclosed his employment to the Social Security Administration by the fact of becoming employed with the Social Security Administration. If the government had wanted to write an indictment and let's be clear, that's really why we're here. Mr. Perry was working at the Social Security Administration receiving employment checks from them at the same time as he was receiving disability checks. Illegally, illegally. He was illegally receiving those employment checks because he didn't report during the time he was working for them. I would agree with your Honor that certainly as a civil or regulatory manner, he should not have been working at the same time that he was receiving disability checks. You said the government is doing both of them, the issue in the checks, sounds like I mean, you said the issue in the checks and they're employing, they ought to know they're doing both of them. That's what you're trying to say? I certainly are, yeah. I mean, I think the whole reason we're here is because the government's so embarrassed by the fact that they were issuing this guy employment checks. If you had someone who was out making money and went off federal government position and wasn't paying his taxes, then the government can't charge him for pay to pay taxes. Oh, you're a government contractor, you're receiving a lump sum, you suppose to pay your taxes on it? And you say, you knew you were paying me? You should have taken the taxes out. Well, if the statutory language and issue in that case, your Honor, we're a failure to disclose his employment to the government and that were somehow the basis of the criminal charge giving rise to the tax evasion charges, then I, yes, I would continue to have it dispute with it, but I don't believe that that's the language in the tax statute. Well, he didn't report. That is, it is clear he did not report your claim
. Did not report that he was working. He did not specifically go back to the disability side or as charged in the indictment, because we accept the facts in the indictment is true. He did not go back to the disability side of the Social Security Administration and say, I am working at the same time that I'm working. Did he go anywhere else? I'm sorry. Did he go anywhere and say I'm working, too? Disability side or to the cleaning person, did he tell anybody I'm working? Well, again, Your Honor, I guess I would disagree on this sort of... No, the question is, did he tell anybody? Did he report it to anybody? Well, by filling out his employment forms and submitting them to the administration, certainly that was some sort of constructive knowledge on the agency's work. So that is the report. He filled out our employment form and now he is reporting that he is working. Is that your argument? For the purposes of that employment, specifically, Your Honor. Anybody ever held that in the United States of America? Any cool anywhere ever going with that logic there? Well, there are certainly cases, Your Honor, that talk about when an agency has constructive knowledge of whatever fax it is giving rise to criminal conduct, that agency is basically, as long as they have enough information that would allow them to initiate an investigation and prosecute the crime, granted those cases take place in the statutory limitations context. But yeah, there are certainly cases that talk about an agency's constructive knowledge of fax. It's very hard for me to believe that that could be your argument. You're essentially saying that any that the government has constructive knowledge of any tax or other infractions that can be uncovered by criminal investigation by virtue of employment. I did not understand that to be your argument. I understood your argument to be the invalidity of the indictment
. Yes, Your Honor, and I think we've gotten a little bit. Yeah, I'll let you down that path, and you walk with me on it, and I was amazed you went there with it. I think I should get back with your argument. I did be stunned by that. I did Your Honor, and I appreciate Judge Duncan's invitation to return back to my argument as outlined. I would invite the court to look at United States versus Russell. I think it was an extremely applicable case, even on its fax here. The problem, I completely understand why you keep running away from the fax here. But the fax here are pretty graphic. The count one says, beginning on or about in 1996, a continuing through September 2009, the defendant having knowledge of the occurrence of any event affecting his initial or continued right to payment did conceal and fail to disclose within to fraudulent, fraudulently secure payment. What did he not know from that language? Your Honor. He continued to obtain employment checks, which are events affecting his initial or continued right to payment. What was unclear? Your Honor, the statutory language that I'm focused on is the word event. The word event is a generic term. And I want to know, Your Honor, which event is it that the grand jury found affected his right to employment beginning in 1996, because as we already suggested, one, in 1996, I'm from 1996. To 2000, except. 2001
. Your Honor, we have an indictment that goes back to 1996. And if we say that the one fact that the grand jury found that gives rise to indictment occurred in 2007, then how do we get an indictment going back that far? And how do we say that that doesn't prejudice a criminal defendant when they have to prepare a criminal case on 11 years of conduct for which the grand jury never found even one underlying factual event supporting this generic statutory language? Well, is the bottom line of your argument where in practical terms in paragraph 11 of the indictment, at times between 96 and 07, Mr. Perry was employed, but did not report his employment, that the indictment should have set forth all of his employments? Well, for the purposes of the Fifth Amendment, Your Honor, it should have set forth any employment on which the government wanted to later ask the Pettit jury to find a guilty up. Because otherwise, we run into two problems. We don't know what the grand jury found. That's one fifth and not one. So the answer would be yes. The government needed to set out in the indictment, all of the employments that it later intended to rely on. Yes, Your Honor. And even if it only wanted to set forth one, and it only wanted to put one to the Pettit jury, that would be fine, but we don't have that circumstance here. We have an indictment covering this expansive period for which we don't know what about the Imperial Griff 12, there's one there. So there's some re-numbering in the indictment. So are you on the Joint Appendix page 12 here? Yes. And again, Your Honor, I would just point to the fact that if that's my indictment, I have an indictment starting in 2007, not 1996. I don't understand what the grand jury found. It gives rise to criminal indictment going back to 1996. And why Mr
. Perry was forced to diffuse his defense resources and his trial preparation over those preceding 11 years. If it's the case that the event that the grand jury found took to the bill of particulars came out. But the bill of particulars cannot resolve, cannot solve a deficient indictment. It can't save it, Your Honor. There should have been some hint in paragraph three of count three because there's a long list of appointments there. And obviously that's not in count one, but... And it is the law of the circuit, Your Honor, that information contained in counts that has not been re-incorporated in another count cannot be sort of re-incorporated and effect by the court. So the additional information provided in count three cannot be used to salvage count one. But if we had an... If this indictment is really about the 2007 to 2009 timeframe, then that should have been the timeframe set forth in the indictment and any discussion of any evidence, any of other information coming in from any prior period, should have been about 404B. It shouldn't have been the indictment period based on an event that occurred 11 years after we decided he was criminally responsible. That's not a constitutionally sufficient indictment, Your Honor. That's not constitutionally concrete
. Along the lines that bill of particulars cannot salvage, a constitutionally informed indictment, the government also states that the courts ruling that this was determined to be a continuing course of conduct salvages it. The body of law on continuing courses of conduct says nothing of the kind, Your Honor, Smith, the government primarily relies on, and the other case is having to do with continuing courses of conduct, relate what a continuing course of conduct does to the effect of the statute of limitations in a case. It says nothing about salvaging an indictment that is constitutionally deficient or excusing it from dissenting to particulars in the event a statutory term is generic. You don't dispute that these offenses are continuing. I don't for the purposes of the criteria. I argue between continuing course of conduct and charge offenses that are continuing offenses. No, Your Honor, not in my mind. And it may be that I'm using continuing course of conduct. Turning my attention to count. Oh, I see that my time is up at actually. Yes, and you do have some time reserved for a bottle. Thank you. Thank you. Good morning, May. Please the court. Sandra Wilkinson on behalf of the U.S
. Attorney's Office. Not only am I a pellet counsel, but I was counsel in the proceedings below as well. We don't often see that. Thank you, Your Honor. Your Honor, I want to answer the question that Miss Martin asked first here, which is the fact that this indictment was not constitutionally deficient, because not only is the indictment track the language of the statute, it goes far beyond the language of the statute and defines the term that Miss Martin has concerns about and that is the word event. And the word event and the two wit clause in the actual charging language states that the event that he had knowledge about was his employment and his earnings. And when the Social Security Administration learns from a source other than a beneficiary about additional earnings, the Social Security sends out a work activity report asking for the entire earnings and employment record for that beneficiary. And that's what happened here and that's what's described in paragraph 14 in this speaking indictment. How many events did it have to lose? Well, Your Honor, we contended at trial and I maintain that position now that the event is not a job. The event was the employment and earnings that he earned over a specific period of time, that being 1996 to 2009. That was something. Yes, ma'am. And your authority for that proposition, for that definition of an event as a non-descreet. Not that I could find your honor simply because there's not that much law out there on this particular statute that I could find. I did find other circumstances where there are other events over continuing period of time. So we talked about that in our brief. For example, the death of a loved one continued to receive benefits for 11 years and 11 years later as you're still caching those checks. That event being the death of the loved one affects the continued right to those benefits. Therefore, it is within section 408 or the event could been winning the lottery. Well, here it was the cumulative employment history of Mr. Perry that he never reported to a single entity. Well, the distinction between the circumstances here and those in the hypotheticals you just positive are that in your hypotheticals there was a discreet event. There was a death for there was winning the lottery. But here it appears there was just a course of conduct. But the problem is that that it doesn't fit comfortably within the definition of the term event as one usually understands it. Except that you're on our I was thinking about this as I was getting ready for my argument and for example, what if in this case the first job that Mr. Perry had gotten out of the box was professional basketball player with the Chicago Bulls. He had earned $10 million for that one season and then he stopped and then he continued earning those benefits for a period of time all the way up until September 2009. He was inducted to the Hall of Fame and we find out that he had been working back in 1996 for that one event that one time that job. The statute is aimed at the evil of keeping getting the money. The knowledge is that you have made earnings. He continued to get those benefits. He continued to get. He was $10 million 12 years ago
. That event being the death of the loved one affects the continued right to those benefits. Therefore, it is within section 408 or the event could been winning the lottery. Well, here it was the cumulative employment history of Mr. Perry that he never reported to a single entity. Well, the distinction between the circumstances here and those in the hypotheticals you just positive are that in your hypotheticals there was a discreet event. There was a death for there was winning the lottery. But here it appears there was just a course of conduct. But the problem is that that it doesn't fit comfortably within the definition of the term event as one usually understands it. Except that you're on our I was thinking about this as I was getting ready for my argument and for example, what if in this case the first job that Mr. Perry had gotten out of the box was professional basketball player with the Chicago Bulls. He had earned $10 million for that one season and then he stopped and then he continued earning those benefits for a period of time all the way up until September 2009. He was inducted to the Hall of Fame and we find out that he had been working back in 1996 for that one event that one time that job. The statute is aimed at the evil of keeping getting the money. The knowledge is that you have made earnings. He continued to get those benefits. He continued to get. He was $10 million 12 years ago. Never told the Social Security kept getting his disability benefit. You mean the continued of keeping the $10 million? No, they kept the benefits from the Social Security, the $1,000 a month. The disability benefits. Yes, sir. Never told anybody about his job kept working for that didn't stop. I mean stopped working and just kept getting his disability. Let me work that McDonald's he'd made $2,000 and then 10 years later. Is that a continuing one to? Yes, Your Honor. He should have told the Social Security Administration about his earnings at the time and it might be a different case about whether or not we would prosecute that case. But the obligation is the same, which is that you must report your earnings to the Social Security Administration. This is a agency that. It cannot take an implication that he would have been entitled to certain benefits based upon the fact that he would have been required to. Does reporting it means this adding is going to stop automatically? No, Your Honor. What it means is that there's a system in place as was explained in the travel low by the Social Security employees to. To get that information and determine how it does affect your benefits, which is why the statute talks about your initial right or your continuation of those benefits. Is that part of your proof? Because pardon me. Is that part of your plan? Oh, absolutely, Your Honor
. Never told the Social Security kept getting his disability benefit. You mean the continued of keeping the $10 million? No, they kept the benefits from the Social Security, the $1,000 a month. The disability benefits. Yes, sir. Never told anybody about his job kept working for that didn't stop. I mean stopped working and just kept getting his disability. Let me work that McDonald's he'd made $2,000 and then 10 years later. Is that a continuing one to? Yes, Your Honor. He should have told the Social Security Administration about his earnings at the time and it might be a different case about whether or not we would prosecute that case. But the obligation is the same, which is that you must report your earnings to the Social Security Administration. This is a agency that. It cannot take an implication that he would have been entitled to certain benefits based upon the fact that he would have been required to. Does reporting it means this adding is going to stop automatically? No, Your Honor. What it means is that there's a system in place as was explained in the travel low by the Social Security employees to. To get that information and determine how it does affect your benefits, which is why the statute talks about your initial right or your continuation of those benefits. Is that part of your proof? Because pardon me. Is that part of your plan? Oh, absolutely, Your Honor. That you have to prove that receiving these benefits would have affected the amount of disability. Your Honor, it was part of our proof to explain why it was material to the Social Security Administration that even one extra dollar you are required to report. The whole system rises and falls on the honesty of the people that get benefits from there just like the tax system as the court pointed out. And that is the whole entire point. Now, whether the material out of that of that lie, those are decisions in the context of other cases. Here, we have a man who worked pretty much the whole entire time from 1996 to 2007 and perhaps the only unusual fact is that he worked a different job stirring that time period up until the time he got his Social Security. But the cumulative effect of all his earnings are what's incorporated in our definition of event in the indictment. That sort of runs into statute of limitations issues too, though, doesn't it? Your Honor, the statute of limitations issues are first of all, I think the law is clear that this is a continuing offense. It's focused on the receipt of the payments and as Judge Bennett pointed out below as well, he cashed these last checks all the way after even filing the work activity report, which also failed to conceal on other employment that he had. I mean, he continued to cash these checks and that is the evil that Congress was trying to prevent when it established a section 408. When I went back and looked at section 408 again, there are other provisions of it that talk about unique dates and time, for example, a false statement or a false representation. In fact, the first sub paragraph of 408 penalizes that as well. But here, where the event could be any triggering matter that affects a person's disability, here that triggering matter is his earnings. And he had constitutional notice of it, not only because of his Social Security job as Your Honor pointed out in paragraph 12, but also because of that reference to his work activity report, which shows employment back from 1996 to 2007. And if you look at paragraph 14 of the indictment, it specifically references that. And that was the key exhibit at trial. And I know Miss Martin doesn't want to talk about trial evidence in the context of what is constitutionally efficient
. That you have to prove that receiving these benefits would have affected the amount of disability. Your Honor, it was part of our proof to explain why it was material to the Social Security Administration that even one extra dollar you are required to report. The whole system rises and falls on the honesty of the people that get benefits from there just like the tax system as the court pointed out. And that is the whole entire point. Now, whether the material out of that of that lie, those are decisions in the context of other cases. Here, we have a man who worked pretty much the whole entire time from 1996 to 2007 and perhaps the only unusual fact is that he worked a different job stirring that time period up until the time he got his Social Security. But the cumulative effect of all his earnings are what's incorporated in our definition of event in the indictment. That sort of runs into statute of limitations issues too, though, doesn't it? Your Honor, the statute of limitations issues are first of all, I think the law is clear that this is a continuing offense. It's focused on the receipt of the payments and as Judge Bennett pointed out below as well, he cashed these last checks all the way after even filing the work activity report, which also failed to conceal on other employment that he had. I mean, he continued to cash these checks and that is the evil that Congress was trying to prevent when it established a section 408. When I went back and looked at section 408 again, there are other provisions of it that talk about unique dates and time, for example, a false statement or a false representation. In fact, the first sub paragraph of 408 penalizes that as well. But here, where the event could be any triggering matter that affects a person's disability, here that triggering matter is his earnings. And he had constitutional notice of it, not only because of his Social Security job as Your Honor pointed out in paragraph 12, but also because of that reference to his work activity report, which shows employment back from 1996 to 2007. And if you look at paragraph 14 of the indictment, it specifically references that. And that was the key exhibit at trial. And I know Miss Martin doesn't want to talk about trial evidence in the context of what is constitutionally efficient. But we talk about that in the indictment when we're describing the event, which is employment and earnings 1996 to 2009. He certainly was in surprise. He was indeed Your Honor. He had a lot of school well educated, a good employee at the Social Security Benefit. And even when he had direct knowledge that what he was doing was against the law, he continued to catch this checks might I add even buying a new car in that time frame. So I put his education and work experience to work for it. He certainly did Your Honor and it helped to have a thousand dollars extra a month every month to do it. Well, he also received some, some prescription benefits. He did Your Honor. And part of the proof, and I don't know if the court has any concerns about the issues raised by the, by the defense in that regard, but Your Honor, if, if anything, was the clear false statement. And in this case, it was when he applied for that low income subsidy where he indicated the very day he was working at Hertz that he didn't expect to earn any earnings that year. And if that's not a false statement in pursuit of a health care fraud scheme, I don't know what is. Court doesn't have any other questions. That's not going to actually buy the statute limitations. I know it wasn't argued that much on the side, but on the side concedes, at least it's just for purposes, these are continuing fences. Yes, there's a problem here because you discovered it early. Well, I did discovery kicks in
. But we talk about that in the indictment when we're describing the event, which is employment and earnings 1996 to 2009. He certainly was in surprise. He was indeed Your Honor. He had a lot of school well educated, a good employee at the Social Security Benefit. And even when he had direct knowledge that what he was doing was against the law, he continued to catch this checks might I add even buying a new car in that time frame. So I put his education and work experience to work for it. He certainly did Your Honor and it helped to have a thousand dollars extra a month every month to do it. Well, he also received some, some prescription benefits. He did Your Honor. And part of the proof, and I don't know if the court has any concerns about the issues raised by the, by the defense in that regard, but Your Honor, if, if anything, was the clear false statement. And in this case, it was when he applied for that low income subsidy where he indicated the very day he was working at Hertz that he didn't expect to earn any earnings that year. And if that's not a false statement in pursuit of a health care fraud scheme, I don't know what is. Court doesn't have any other questions. That's not going to actually buy the statute limitations. I know it wasn't argued that much on the side, but on the side concedes, at least it's just for purposes, these are continuing fences. Yes, there's a problem here because you discovered it early. Well, I did discovery kicks in. Then that is some limitation on the statute. Otherwise, it runs endlessly on the continuous. So what is, how do you respond to that? Well, Your Honor, there wasn't actual knowledge. There was paperwork that suggested Social Security Mind have known about his earnings early on. Back in night, I believe the testimony was sometime back in 1999 or 2000. But this is very similar. I was thinking about this last night to the illegal reentry cases where you, the law, I believe because I handle these types of cases is if an illegal alien comes into the United States after an aggravated felony and the federal authorities don't find out about it, but the state authorities might have had several interactions with this individual. But the federal authorities, law enforcement doesn't find out about it. The statute of limitations doesn't begin to run until federal law enforcement finds out about it. And the same can be said here as well. The obligation is on the beneficiary to be truthful and honest. There is a mechanism for reporting your employment and earnings. He never did this. Now, if he had stopped receiving the money back in 1999, maybe we would have a different argument. Maybe we wouldn't be here today, Judge Wynn, but he didn't. And as he continued to receive that money and keep working, I believe that that's not even an issue in this case. And you don't have to talk hypothetically because we don't have that in this particular case is when the statute of limitations should have run
. Then that is some limitation on the statute. Otherwise, it runs endlessly on the continuous. So what is, how do you respond to that? Well, Your Honor, there wasn't actual knowledge. There was paperwork that suggested Social Security Mind have known about his earnings early on. Back in night, I believe the testimony was sometime back in 1999 or 2000. But this is very similar. I was thinking about this last night to the illegal reentry cases where you, the law, I believe because I handle these types of cases is if an illegal alien comes into the United States after an aggravated felony and the federal authorities don't find out about it, but the state authorities might have had several interactions with this individual. But the federal authorities, law enforcement doesn't find out about it. The statute of limitations doesn't begin to run until federal law enforcement finds out about it. And the same can be said here as well. The obligation is on the beneficiary to be truthful and honest. There is a mechanism for reporting your employment and earnings. He never did this. Now, if he had stopped receiving the money back in 1999, maybe we would have a different argument. Maybe we wouldn't be here today, Judge Wynn, but he didn't. And as he continued to receive that money and keep working, I believe that that's not even an issue in this case. And you don't have to talk hypothetically because we don't have that in this particular case is when the statute of limitations should have run. Because here he continued to accept the money, never reporting his earnings from the day he walked out of the Social Security Administration basically. Thank you. Thank you very much. Ms. Martin, you have some water time. Thank you, Your Honor. As Ms. Wilkinson stated, she has no authority to finding the word event to mean a 13-year employment history. None. She cited a couple of cases or referred to a couple of cases cited in her briefs, one in which the event was the death of a loved one or perhaps the event being the winning of the lottery. But your honor in those cases, understandably, the meaning of the word event isn't going to be an issue because there really only is one issue upon which criminal liability can hinge. That simply isn't the case here, Your Honor. We have an extensive employment history. Some of those employment may have affected disarray, some of which may not. And what the problem that springs about Your Honor is going back to the Six Amendment issues is, where is the double jeopardy bar here? What is the government prohibited from reprosticuting here? We don't know, because we don't know where the grand jury found. We don't know, we know that there was unanimity among the pedigery, but we don't know what the event was that they found. We don't know if there was agreement among the two, and therefore we have no idea on what basis Mr
. Because here he continued to accept the money, never reporting his earnings from the day he walked out of the Social Security Administration basically. Thank you. Thank you very much. Ms. Martin, you have some water time. Thank you, Your Honor. As Ms. Wilkinson stated, she has no authority to finding the word event to mean a 13-year employment history. None. She cited a couple of cases or referred to a couple of cases cited in her briefs, one in which the event was the death of a loved one or perhaps the event being the winning of the lottery. But your honor in those cases, understandably, the meaning of the word event isn't going to be an issue because there really only is one issue upon which criminal liability can hinge. That simply isn't the case here, Your Honor. We have an extensive employment history. Some of those employment may have affected disarray, some of which may not. And what the problem that springs about Your Honor is going back to the Six Amendment issues is, where is the double jeopardy bar here? What is the government prohibited from reprosticuting here? We don't know, because we don't know where the grand jury found. We don't know, we know that there was unanimity among the pedigery, but we don't know what the event was that they found. We don't know if there was agreement among the two, and therefore we have no idea on what basis Mr. Perry might be prosecuted again. None of that use of that term employment history makes that an easier argument for you. I'm sorry. And the fact that you don't know, I mean, if they were to seek to charge something in an employment history, other than what they are seeing is here, that whole definition of employment history would seem to indicate, no, you can't do that. You've already done it. Well, because they're taking the term event and making it sort of whatever they want, I don't know that they won't take a different position in the future and say, well, this wasn't part of the employment history included in the original indictment. I don't know, your Honor, giving it that flexible of a need. But you got to feel much better knowing that they didn't elish specific days, specific ones. They said it's employment history. That would exist even if they didn't have specific instances. Your Honor, if the government were to stipulate that any employment during that timeframe might be barred on double jeopardy, then it might be a little bit of a different discussion around the double jeopardy point alone. But I don't think that that makes the word event constitutionally concrete such that we know what the grand jury found and whether or not that matches what the pedigree found. Your Honor, we talked a little bit and it got a little bit light when we talked about Mr. Perry being enterprising. It sort of indicates that we don't think that Mr. Perry is a disabled human being. And I want to make sure that we're very clear
. Perry might be prosecuted again. None of that use of that term employment history makes that an easier argument for you. I'm sorry. And the fact that you don't know, I mean, if they were to seek to charge something in an employment history, other than what they are seeing is here, that whole definition of employment history would seem to indicate, no, you can't do that. You've already done it. Well, because they're taking the term event and making it sort of whatever they want, I don't know that they won't take a different position in the future and say, well, this wasn't part of the employment history included in the original indictment. I don't know, your Honor, giving it that flexible of a need. But you got to feel much better knowing that they didn't elish specific days, specific ones. They said it's employment history. That would exist even if they didn't have specific instances. Your Honor, if the government were to stipulate that any employment during that timeframe might be barred on double jeopardy, then it might be a little bit of a different discussion around the double jeopardy point alone. But I don't think that that makes the word event constitutionally concrete such that we know what the grand jury found and whether or not that matches what the pedigree found. Your Honor, we talked a little bit and it got a little bit light when we talked about Mr. Perry being enterprising. It sort of indicates that we don't think that Mr. Perry is a disabled human being. And I want to make sure that we're very clear. He is disabled. He has a permanent disability of AIDS. He remains disabled to this day. It's not a disability that's going to go away. The government referenced the statement that he made in connection with the low incomes. Mr. Relo listen to that. I'm trying to understand what that means. If you can have a disability, but if you work, you have a duty to report. Certainly, Your Honor. That's what disability is. If you work, that's what this is about. It's the failure to report. Certainly, Your Honor. But I just want to make sure that in the atmosphere of this case, we're all clear that this is not about a guy who wasn't disabled going out and gaming the system. We'll try not to be a jury. We're going to stay cool on this
. He is disabled. He has a permanent disability of AIDS. He remains disabled to this day. It's not a disability that's going to go away. The government referenced the statement that he made in connection with the low incomes. Mr. Relo listen to that. I'm trying to understand what that means. If you can have a disability, but if you work, you have a duty to report. Certainly, Your Honor. That's what disability is. If you work, that's what this is about. It's the failure to report. Certainly, Your Honor. But I just want to make sure that in the atmosphere of this case, we're all clear that this is not about a guy who wasn't disabled going out and gaming the system. We'll try not to be a jury. We're going to stay cool on this. I appreciate that, Your Honor. The government made reference to the statement that Mr. Perry made in connection with applying for his low income subsidy that he didn't expect any income in the year 2007. And again, there are no facts in the indictment telling us that at the time he made that statement that it was false. It was just nothing in the indictment indicating that the grand jury knew that statement to be false when made. Therefore, how can that be a material misrepresentation? And finally, Your Honor, the last point that you touched on, the statute of limitations, Ms. Wilkinson stated that there wasn't actual knowledge on the part of the Social Security Administration of Mr. Perry's employment back in 1999 and 2000. There was, and I'm paraphrasing here, I think she said, just paper indicating that they knew. Well, Your Honor, if the roles were reversed here and there was paper indicating that a defendant knew a fact like that, the government would be bouncing all over it and saying it was actual knowledge. Under these circumstances, the agency should be charged with having that same level of knowledge based on its own paperwork indicating that it knew. The agency knew he was employed and didn't know the significance of it. You would need to combine that fact with the fact that his receipt of the disability payment. But that fact was combined on the trial record, Your Honor. The information was presented during trial where it stated that there was a flag put on his account stating we think he is working and earning benefits at the same time. Yes. Thank you, Your Honor
. In sum, I would just ask that the panel, when going to conference, take only the indictment with them, not take the trial record with them in determining whether or not this indictment is constitutionally sufficient. I asked that it ask itself, what is the event that the grand jury found indictable back to 1996? And I would ask that it ask, what is the deceptive conduct that is embraced within the statute of issuing Cal3? Thank you very much for your attention. Thank you very much. We are going to come down in Greek Council. We will take a very short break