familiar with the system we only want to like repeated just to stay in a mark of phone so that we can hear you up here but also because we record and oftentimes if you get conversational the tape is not picking up  papers so while we depend upon the case from the sixth circuit an og the on is still pending before the six circuit again that's the most recent case from the six circuit but we would depend upon miner and cast off there are supreme court precedents that properly overlay both the six circuit and those circuits that go the other way that say that you do not have to allege that element in order to avoid vagueness in u s forces as your the supreme court looked at two twelve egg and therefore that is the case that should be looked at and should have precedence in it before the fish circuit the government points to us versus reeves and says oh well the also the supreme court case of arthur andersen and all those other structures have the word proceeding in them or is the tax not you doesn't how do you get around that i get around that by the fact that shelters in the bahamas that it also not only have a seventy two a one or seventy two zero six but you also are a violation of this statute it will make every tax act  read the cases only two of those go to this issue the other two or first amendment cases and saying the first amendment does not apply so we believe that  but the due process clause requires that if that's our position your let's say let's say you're correct that there's a problem with count one either vagueness or because there's no proceeding here  you say that that tainted if count one should have gone to trial that taints the other counts which are the filing of false tax return counts what authority says that if there's a problem with one count the other counts of under different statutes are automatically thrown out to no authority that it's practically speaking if you just get count one business there's really no difference right you need to get them all dismissed to get your client down out of prison not being able to agree with that i would point out that in this particular case not not only was there a problem with this under vagueness but elma of paragraphs eighteen through twenty and twenty two eat of the indictment alleges things that she or even found guilty of punished for so there's a little bit of the double double jeopardy problem right now that are i mean she got the same sentence on each count so if you just drop count one she still facing the prison sentence on the other  counts or so how does if you're right the count one has a problem why does that require us to throw out the other counts as well well let's start with the the ability of the government to put in her obstruction quote unquote of justice before she didn't have the proper paperwork she'd have to ninety nine shouldn't have done to all of those are extraneous to whether or not her tax returns for two thousand and seven eight nine were proper or not and so yes this huge project has it i'm going to point out one of the things is the government talks about scheme word scheme nowhere a occurs in this indictment there's no allegation of a conspiracy no allegation of a scheme even though the government testified about two thousand two thousand and two thousand and nine there is no testimony from any witness as to their wages at jats for two thousand and four p thousand and five or two thousand and six and the testimony record testimony is solely that agent fuller took them for two thousand forty thousand five hundred six only depend upon backward period that's the only record testimony you have to look at those damages that are all victims lost and they were approved on the record and there is no proof of any loss of two thousand are sufficient proof of the loss for two thousand for any value above the hundred seventy seven thousand dollars in fact i agree with judge justice scalia and go overseas us that items like this are actually  should be decided by a jury i keep losing that argument but i'd like to keep making it just as i did the book argument wholly to a book out so may please the court if you have any questions  because the justice reference presupposes the existence of a judicial proceeding a court proceeding the reason for that is because unlike the tax system the justice system is not continually operating upon americans rather it's only upon the commencement seventy two twelve obstruction count and only it's really been raised here but you know the obstructive conduct that alleges giving false testimony not keeping records i mean that all to me fits with an obstruction but then you also state a filing a false tax returns what from two thousand and four to two thousand and nine is part of the obstructive conduct and then of course some of those years you also charges their own state counts of filing false tax returns it seems to me that's multiplicities i mean it's letting it's a double jeopardy concern that the jury the government gets two chances to convict the defendant of filing false tax returns or there's a specific statute that addresses that i'm not sure why it's being swept up as part of obstruction you it can be assumed that congress meant for there to be potentially more than one statute applicable and this case are different elements on the one hand for the for the statute for that the tax fraud counts and you refer to the false return counts the government has to prove that the defendant willfully filed a materially false tax return  that she knew was false now those tax returns to the extent they are part of her ongoing warred your corrupt endeavor to misreport the income attributable to her jets and jets employees they're also probably char's as as that points and what if they were part of a larger corrupt endeavor if you just found the false returns could you also charge that is seventy two twelve without the false testimony without the cash payments all that stuff that is to say assume just for hypothetical purposes that there's just a false tax returns as part of a seven to twelve eight offe as to i want to briefly touch on the defendant's double jeopardy arguments your honor already broached that that subject but i want to respond in particular to an argument that you raised for the first time in her reply brief which is collateral estoppel initially because tax years but she doesn't dispute the calculation for the later two thousand and seven to two thousand and nine taxes and more specifically the defendant spends a lot of time in her reply brief criticizing revenue agent for his review of jets banking records to identify compensation amounts that were paid to the jets workers and those compensation amounts in turn went into the tax loss calculation but that argument that criticism of the agents review of baking records really misses the point because the agent in calculating tax loss did not rely exclusively on even primarily on the banking records on the payroll checks he also relied on actual witness testimony and witness pretrial statements regarding additional cash amounts that the employees actually recei used for calculating tax loss were different and larger than the amounts that would have been determined had the agent only focused on on the on the bank records and sells and so i want to clarify that point as it was raised just a few minutes first of all as to double jeopardy all it was not in the original motion to dismiss count one and there was no motion for new trial follow the objections to the p s r particularly starting with paragraph eight which put in that those elements are those offices of the p s or the definitive objected that the p s or should not use for sensing purposes instances and in the objection of p s or in which double jeopardy was raised and in fact a double check jeopardy or even itself as to friction and justice points was not only viable but the u s government said in document one thirty one or away five seven five nine the government emitted in his letter to the probation department that the conduct underlined the p s or obstruction enhanced when testifying falsely under oath in a show cause hearing in federal have been counsel has always been raised it was raised in the original brief what the government is upset about is that i don't use the word collateral estoppel i don't have to use the words collateral stoppel i am i'm not way giving or my client is not way because the double jeopardy has been raise them both at sentencing in the original brief and in the reply brief it is a pertinent issue in this case and it did prejudice the other counts of conviction now as to give you the mill you discuss it earlier but this case started north carolina the jets actually should have been you're just sort of taken back off i mean it's grow you a little more slack but you know what i would like to go back and talk about things which he did talk about still running you got two minutes i'm just pointing out you know i'd like to p are actions that obviously fall within the parameters it must be clear how is a person supposed to figure out i'm the ordinary taxpayer and i'm out there and i'm just i make mistakes and defendant did not object in a district court but the issue is part and parcel of the objections which runs throughout the objection that the restitution is illegal this is a twenty six violation code twenty