good morning ron i'm a please the court my name is ethan ballo and this morning i speak for swimming who is listed second going first yes very well thank you regarding any issues raised that the court may have with that i began the district court erred when it reflects lee denied miskin gore's request to demonstrate the limits of her english language comprehension  essence this entire trial boiled down to her presence and use of an interpreter was a sham itself the government alysa testimony from the lead agent that her subsequent interview how would to do have proven anything it would have demonstrated the limits of her english language comprehension i could put tend not to speak english all of the question if you have enough it's not that hard you know you just sort of listen to the herself like any other witness was soundly rejected in this country about one hundred years after its founding the common law tradition was defendants could never testify for that very reason your honor we could have a defendant testify because they would have a motive to lie so we barred under the common law ok know i put some thought into sort of how i would cross examine or let's say i was the governor and what i would have done is a trial let me let me just tell you the skepticism i have about your first answer which i think is going to apply the second answer to is this is really not a question about testifying she was not testifying what she was present from doing is have an experiment on the stand in the courtroom and courtroom experiment to demonstrate her inability to something about conveying information or lead to the to the cairo fact this is so this is not like the case where say you can't speak english you can't testify this is a demonstration this is this is like like an experiment in isn't she got shot they were fighting she grabbed the gun he hit her the gun went off the trial or then went and had the gun examined and what the examination showed was it actually had a hair trigger and the gun was prone to fire not by pulling the trigger but by being bumped so corroborate her defense and she went to trial and trial court is just a cold case said oh she can testify to everything she remembered and whatever facts the record you have proof ward the hypnosis but whatever happened that was enhanced by him no says barred from the jury so she can testify just not to that she was convicted of manslaughter she got sentenced to ten the supreme court said that's the equivalent of denying her right to testify yes she took the stand and yes she took the o in spanish or english neither the prosecution or defense asked a question i think with age and yet that's testified that subsequently about six months later nine months later she comes in and she gives it a interview in english that it's her preferred language her supervisor testified rubber mire that she was poorly profession english used helped by another office worker and was not fluent in english during this entire time the jury's observing her using a spanish speaking interpreter and the government's theory is she's fluent and that she is marginal not that she understands that she is fluent in this english language and the really one of the jewel case where she should be observing these red flags she should know what's going on so her or her english comprehension ability was the key issue or a key issue a trial at the same time by the youths in the a target or she's essentially on the government's argument perpetrating a sham from jump street she's so sophisticated that she knows when she arrested this is going to be a trial the fans so she starts use an interpreter from day one of the case through trial because you know it is going to pretend she doesn't speak english so you're not precluded from asking her whether she can speak english right that we think is of no i'm just asking her ability depending on the nature of the question its length and its complexity and why can't the decision i'd say i think this is sort of a sham i think that she would fake it this is not a question about her testifying telling the story this is a question of her the district judge and a privilege and had an obligation to evaluate her it could i disagree that she couldn't reflects the say it's out i can't do it without actually doing any analysis and i think that reflexive ness which is  seconds i'll try to come up with a better answer when i let everybody else are your honor ok thank you who's next this have been a different time and place but they were they really had nothing to do with each other the only similarity was that there were the same victims of the schemes but the zero i d s scheme was related to the i r s and tax returns and ten ninety nine forms and the land patents scheme really had absolutely nothing to do with that it was simply that there were the same victims the government did not need the land patent scheme in order to of events we have the land patent scheme that turns out not to work surprised and then the people who'd been as it were victimized by the land patent scheme they're open for another scheme by the same set of defendants and the same s as well that we're going to we're going to take care your problem i understand that you could tell the story of the or id without any reference at all to the land patent scheme but it makes more sense it's a more understandable story if you understand how these victims came to these people in the first place what their state of mind was and so on so i see some relevance the real question is what's the balance of relevance and to help them help the government tell the story in the prejudiced your client that's the argument right well i think the similarity or the bringing the victims from one scheme into the other when the first one didn't work that would be i think more appropriately a fo four b evidence then the issue is does the court did the court properly evaluate the admission of other crimes evidence under four hundred under four or three and it's an exercis overkill and therefore required to be reversed under u s versus curtain because here there were seven victims that testified it was really almost half of the case the other witnesses that testified were agents from the i and and that sort of thing and these victims testified at length about the land scheme know that let me come back to my question the main question really is isn't this an issue of balancing off the help of the government versus the prejudice do you mean that that's what we're talking about you mean a simply harmless error that no it's a balancing question to be discussed on the judge i mean is is this evidence about the lamp and seemed so prejudicial to your client that it should have been kept out well yes i think it was overwhelmingly prejudicial once once seven witnesses testified at length about how they were you know losing their homes and they were given these lemonade signs and they put them in the windows and they went on at length the jury is  not going to pay any attention to anything else and the cases just see that these people were duped and it was very sad and so on and when you read the entire transcript you would think because there was so much of it that came in on that that that they were charged with pretrial hearing women a hearings the judge did not ask the government did not say how many of these witnesses that was going to put on or the bulk of the evidence that only discussed what the land patent scheme was and for that reason it was an exercise  overkill so if it wasn't in it strictly intertwined then it should have been so limited other than did the defense ask for a limit i thought it was an objection to the introduction of evidence such  balancing determination determines this is relevant now you raise a sup of the question to say well below he learned so much of it you know it's sort of overwhelmed everything else in the case and the answer to that would have been to say well you know and i know the defense did argue in closing argument that it was basically an exercise in overkill and that it was it was way too much but he specifically the jury pardon me in closing argument to the joy in front of the jury yes they did argue thousand and five and two thousand and nine miss lynch did not find file her own personal tax returns specifically the district court found that that that evidence was admissible because it showed and intent not to comply with the tax laws the problem with this ruling and the problem with the admission of this evidence is that when we have a case like this where this is the sarah piece of the case is knowledge and chance and that's what that's what this case was about for mr lynch the prior act under for a four b and the instant case need to be similar and similarities from this court case all essentially means the knowledge gained from problem the threshold problem with this is is there's nothing miss lynch learned from not filing her own personal income taxes when she was oh i think she learned that the government someone inatte personal income taxes and a decision later to get involved in a quarter billion dollar tax fraud scheme there's just simply no connection between the two and the government says well they're connected because they both had federal martin are they similar or are they similar enough and in this case they're simply not similar at all and in fact if you look at the cases the government cited in support of this argument that they were similar though those cases show what truly  government never tried to establish this connection between knowledge from that the non filing and knowledge as to the old quest they argued to the jury to say look she didn't file income tax returns and therefore you must infer that she was knowingly involved in this scheme no no that's not at all what the government argued in fact what the government argued it was propensity the government argued that she's a bad person you should convey to the government said her pa failure to file tells you something about her notion of complying with tax laws not about knowledge with respect to all quest not about knowing that this program was fraudulent just that she's a bad person she's dishonest she doesn't comply with the law and then and that that is not how this evidence was ever supposed to be used and that's why it mattered with respect to the jury this was a three count case against miss lynch and it was a conspiracy count count one and then the two false claim counts the jury acquitted her of the conspiracy count but convicted her of the two false claim counts and i could easily see a jury based upon this argument and based upon this evidence and the extraordinarily unfair prejudice from this evidence maybe compromising a verdict and saying look they didn't prove this she she knew this was a fraud but she hasn't paid our taxes and that's the danger with making her seem like a see every person who doesn't pay doesn't pay her share doesn't comply with the law that wasn't what this case is about and that wasn't evidence of everything just what did you make a really interesting argument i'm trying to figure out how to handle it the argument you're making is a sensible one which is to say that the evidence that she committed the crimes charged is actually a not kind of putting words in your mouth is overwhelming on the other hand the  returns the jury might have had mercy on her the jury would have acquitted her of all three counts right despite the overwhelming evidence that she was guilty as sin i wasn't overwhelming i guess that's where we differ it wasn't overwhelming at all i mean if it was thought you were arguing that there would be a reasonable doubt of her innocence or guilt on the charges but the p like your honor addressed in the martin case and in the martin case your honor they actually argued it for the proper purpose for the knowledge for the connection of knowledge in this case that argument was never made it was only argue for four propensity and so your hon reversed and martin based upon the effect of that propensity argument the damage it does especially a tax context and in this case that was the only way that this evidence was ever used by the government and so i think  that there was more than reasonable doubt as to whether she knowingly participate in this fraud and i think it's possible that this propensity evidence was considered by the jury and coster with respect to the false claim cou but i wanted it to be three on three instead of three on one so well if it comes to hand to hand combat i think you're going to be all right but i did try to think ahead your honor i'd like to start off responding to the that was made today as to the land patent and i just want to correct something and then add to what wasn't said and let me just respectfully if i may correct this representation or argument that it was half of the evidence the land pattern evidence we laid out in the brief your honor first as to the exhibits fewer than ten percent were land patent exhibits and even of that ten percent most of those were just checks so checks to old quest that w land patent on it so i just want to make that clear when i was into the terms of pages of testimony you know i looked at that your honor too and i think i said it in the brief briefly but with the exception of  carpio most of it was a small percentage not fifty percent of the testimony of individual witness mr carpio i think his total testimony might have been ten pages something like that his was more in terms of the testimony but it was exactly like that this you said to judge kozinski which is the testimony is how did you find out about old quest i had this line patent program that i got burned on but they told me oh there's this better program where you can do in fact the evidence will show in the testimony that some people started pain for land patent right and then it didn't work they just continued pain to old quest just as they were before but instead of land patent they were getting t what the big argument they're making here as to the exercise and overkill who wasn't made your honor they had and i'll note we gave the exhibit list and witness list i believe two weeks before trial so not only would they not be being blindsided trial but they had that well in advance of trial they could raise the objection there they could of what is the objection during trial so that would make it as opposed to an abuse of discretion i would argue that plane error potentially could apply because the argument here is i'd like to start where defense counsel that i left off with the questions of this court as to the the amount of evidence i believe defense counsel said something along the lines of the really wasn't a lot of evidence there wasn't a substantial evidence of her guilt and i'd like to just briefly relate to the court what we did in our papers as to the amount of evidence  somebody saying i have no knowledge of tax returns your honor this is someone that went through the formal training to be very careful here so and she emphasized that on her resume she emphasized that that is one of her skills she was  experienced at preparing returns we had testimony from individuals who had had multiple years of tax returns prepared by her she was registered with the state sea tac which is a requirement if you're going to prepare returns for others more than that the tax returns and selves they claim ridiculous numbers and put that in putting that into context with somebody who has tax return training there was testimony as to the general knowledge of the i r s fraud alerts at old qwest that the return were being frozen refunds were being frozen and exhibit five hundred that's available at eight fifty five of the government's excerpts was a was an e mail sent by the defendant to another coast team or july twenty ninth nine attaching the link for one of the i r s is warning specifically addressing why the id program was a fraud and we attach that being that that e mail and the link is also another exhibit that explained why it was fraudulent and you know when i was preparing this morning i do want to make one correction to my brief your honor which is when i was preparing to day with the agency i i said in the brief that that link went to the t paragraph fraud alert it actually went to the two page fraud where it was a different there were multiple fraud alerts on the internet and i quoted the exhibit for the two paragraphs one as opposed to the two page one it's actually as much as a concession two pages of same lies fraud versus two paragraphs that is what i just wanted that to be clear on the record defendant admitted that she wrote the e mail she admitted that she probably went to that address she was aware of actually went out the door with direst would do is when you received when the iris received the fraudulent tax return it will send back a letter called the first we called it a frivolous filing letter that said your tax return is no good you propound frivolous theories fix it or you're going to be and that was another piece of notice evidence that we argue that trial to say look they're being frozen you're getting letters and she admitted she was aware of that and so going from her experience to her knowledge and then now we have her conduct and we laid it out in the briefs yawners but she the defendant lent lied to the agent about her knowledge of the scheme and when i when i say lied when she was interviewed and this is in the have no idea who these people are and when i crossed her on that i stopped was that she didn't know why she had prepared an organizational chart of the old quest business which laid out in what department people worked tax return preparer it's not worth doing just just for the trouble it saves you up for you i would concede your honor that in light of now i'm facing it on appeal in light of everything it could have been a serious thought to why why do it but let me let me if i may explain why our car system yes i did probably ninety nine trials in this case including i think seven in one year so i did several of these trials yes and i had one the indictment as part of the conspiracy so that evidence would have been coming in as part of the conspiracy the grand jury found that it was part of a conspiracy that the conspirators to hide that they were involved in the scheme would not found tax returns so as to that year the years i believe were two thousand and five that were admitted for two thousand and nine failure to follow here was already part of the conspiracy it was coming in as part of the conspiracy so it's not for a for be evidence it's part of the conspiracy  in fact i believe judge fletcher mentioned that you know maybe she did learn something from that which is the i r s isn't looking if you really truly want to hide i think you don't file your tax return and they have no idea that you're making any income at all and as long as you're not getting reported like salary workers like we are there's no way they know you're making business income here just not filing so that's why but that's true if you have other income and then you're making illegal connection your honor i believe and i do want to come back to the to the to the harmlessness because i think there's one piece i didn't tell you but as to the connection i think think if we go to the quintessential for a four b problem that is concerns courts there's two two ways one one identity is unknown you know a bank robbery occurred we're trying to establish identity charles powers a defend and we introduce that he did for bank robberies before where there's no knowledge of whether he was a one there that's a problem and that's a concern a propensity the other propensity is the bad man which i believe the argument has here a person because they did don't file tax returns what we have here yonder is a tax case involving false federal tax returns as opposed to state tax returns or some other tax return we have full federal income tax when i defended lynch got involved in the why did the scheme i was really trying to follow the tax law i was just a misunderstanding a mistake i actually thought if you're allowed to do all i do stuff and to do that type of stuff and it was just a mistake i was trying to follow all the tax laws right and then i think a rational jury could for it to follow that well i think a rational jury could find that a person who failed to properly report her income for multiple years did not follow the tax law as to the reporting of income they could find it's more likely than not that it really wasn't a mistake when you went to the all id and filed like or in were involved in the lack of harmless or to emphasize harmlessness which is your honor during during defendant's cross examination we presented a tape and i believe the circuit court staff contacted us for a copy of that tape because it wasn't in the record for whatever reason but it was a different tape which you don't have in front of you but which is a part of the the exhibits that were admitted at trial but the important part is th important as to her knowledge to further show that any error and of course we're not can see here but any air would be harmless your honor which is she calls another schemer dina howard which is the same person to whom she had sent the e mail talking about the i d warning from the from the i r s she calls her and says hey dina i need you to go to my house and pick my phone and my computer oh that could be fairly innocent except was going to come to your house right now just and there is like why is dina coming to my house right now tonight quote the police may get a search warrant for the house give her my cell phone and my laptop which pretty your honor that to respond to the argument that there was not overwhelming evidence is just i i think we laid it out in our papers and i emphasize that now i think that's just not just not borne out by the by the evidence and now i'd like to turn last but not least yeah although i feel to do it in my papers you hit the nail on the head it was really an experiment in court and the judge as as the district judge as is with other evidence has wide discretion when dealing with experiment and evidence like that and let me let me let me try to expand on what defense counsel was trying to respond to your questions which is could she pretty pitchy present this evidence non english speaking in another way well your honor she did she was able to testify to it she had a full opportunity to crossed special agent yep as about whether she had spoken english or spanish during the call but more than that your honor she was a precluded from presenting evidence as to her english abilities skill in fact there's nothing to stop her from calling her family members everybody with whom she works everybody else who could support that that you don't speak english you could bring somebody up and say when you speak to m wrong what you speak english what is her skills that in fact if you want to take it a step further if that will really the critical issue at trial they could have brought hired an expert to evaluate her asked her english built speaking skills as opposed to just trying to do this what the district court car characterize as a circus like act which is you argue to the jury during voir dear hey you know i can hold it against my client that she speaks spanish  using an interpreter you use an interpreter and we all know how important the statute which we cite in our papers is in terms of having an interpreter and what's required to waive that once it's happened you use interpreter all the way through and then you want to say at the beginning of your testimony here from all around in english for a little bit and then we'll switch to spanish i believe the district court was well within his discretion to balance its court to say no you can't do that where you've made the decisions speak in english and if you want to present that evidence which they did do they question he noted they questioned robert meyer as to her english ability she testified and was able to cross the agent yet there's about whether he really was spanish i think with all of that it's hard to see that the district really abused its discretion in that instance and you know what i believe i've responded to everything is there you right is the demonstration inherently flawed when a disc just as i can't do that is that the right standard and i would suggest respectfully that it's not inherently flawed and i would ask you to consider the proposition that perhaps miss can go really is incredible limited english perhaps she could testify obviously and perhaps a jury could observe her and perhaps the district court when confronted with that request could examine it and make a determination whether it's flawed in this case and assess it and if the court is right you would doctor position that it's inherently flawed because the defendant could lie which i respect this just is not a proper basis any witness can lie but if you accept the proposition that these things are true the district court should have given her the opportunity defense counsel invited judge state to give her the aptly put judge taken to observe her and make an assessment and the district court says i can't do that  of the district court should have and we think on this critical evidence it would have made a difference thank you thank you like to say that if the defense should have objected and once the trial got under way and they saw how much of this land pat never dence was going to consume the testimony of all the witnesses and they should have an objective at that point then it's plain they are affecting substantial those issues she provided defenses as to all those claims by the government and presumably that's why the government quoted her the most serious charge in this case with respect to the harm was there the forty three analysis you just did here you're trying to get the government to give you a good answer as to why this evidence was was relevant and probative in this case i don't think the government really could but that goes to error and doesn't go to on the conspiracy count i reference miss lynch's specific testimony at explaining these issues going back to judge will that you and martin you wrote when bad acts are not relevant which which i don't think they were in this case  i'm not sure the government thinks there were at this point they could only be viewed as being presented to inflame prejudice in the jury this lynch currently has two felony convictions she's been sentenced to custody and will report custody if this court affirms a conviction i think it's fair that the government convicted her in large part based upon irrelevant inflammatory evidence that one of all the argument that the failure to and that was part of our case when title to put on now there's a battle of balancing but just a matter of proving up ok it's part of our case was this was one of the things we did this part of the conspiracy there's no balancing the