a browns fan yeah i miss their literature somehow judge this is a very interesting case and it's interesting for the reason that the district court knew that this case belonged in ohio and that it very well could come back and be retried because the government was warned several times not to continue pushing this case in philadelphia until allow it to be transferred to toledo where a lo this defendant filed in ohio and ever returned he worked in ohio he lived in ohio the women in question then he was proper in toledo ohio but as you may know from seeing the brief of the government in the portion that is marked related case they were able to say that this case stemmed out of the cory kemp city treasurer case involving mr mccracken and i think that is the reason why the government trial finally agreed to give up two thousand but they still injected what the defendant argued was loans and weapon government argued was bonuses from mr parker who lived in washington they still injected mr  lease a sole proprietorship so they they mix apples and oranges together and mr mr exactly system united states attorney right in the transcript and you can see it at my brief it page thirty admitted to the court the reason he did it is he was worried that he wasn't going to make the substantial deficiency that mickey calls for is a very small tax case is forty thousand dollars when you go i'm all four years together into those four years can make forty thousand and he he specifically thought he was going to make substantial deficiency small is very wrong as well forty thousand for four years though you know that was before the two thousand was taken out my point here is that the united states government has a duty to say what they mean and mean what they say and they told judge schiller this is an assessment case and a payment case then prove that we can say simple and elegant things but if they're inaccurate then they really ought to be examined closely by an appellate court what happened here is they had a number of different types of and rip under report wife straps one hundred eighty eight thousand dollars around her stomach goes to switzerland and deposit the money that's a payment case it's very easy to combine conduct in a payment case and say we're talking about net liability you owe this money you knew you owed the money and you took it out of the country and hid it in a bank that's not this case on the overwhelming number of tax evasion cases yes they are prosecutors all of the agents are told the proper unit is one year these prosecutors knew it in philadelphia they could it easily made this case in toledo but they don't want to because they want to give up their hold on this case a trite so why don't you tell us why it was not legally proper here well if you combine several years and you can't tell which one of the acts i guess i'm really trying to explain why count two needs to be vacated and it is more duplicity than a venue argument well then are you giving up the venue argument or not there's an argument that it was waived in the way that it was handled that courts it's not my argument i am giving it up  them trying to hold you know on the merits of your venue argument you argue the merits of the case when i'm trying to hone in on the merits of your merits argument you go back to them so you're leaving me you quite frankly you're leaving me entirely to it pursue it i mean let me try we tried differently the issue here is does this circuit have a rule with respect to the kinds of charges mill multiplicities with respect to the difference between assessment and payment i am arguing that in pollen they clearly said here's a problem when you have an assessment case and you take different types of conduct from different types of years it can be that you could have a duplicity charge that would survive even without prejudice in this case i think there was prejudice in the reason i bring up the parker loans which  out of state and the rule income is it's not ten ninety nine type of income that the government argued well it's all the same thing it isn't the same thing there are completely different types of a base of x they're completely different types of deficiencies and what we don't know is that in a vase of back that was different than the r b i commission of a sieve act such as the loans in washington did they say to the jury here is the element of evasion because there's a game being played on loans and bonuses as opposed to deficiencies that clearly may have been made don't and that was why we asked the judge not to look at other assets so that we could say this is just philadelphia money he didn't do that now we have a general verdict we have no way of knowing what actually was a criminal conduct i so take venue away from it and tell me why there is not still a problem with whether or not we if we can tell whether or not the jury found him guilty as to all of the a charge or as to maybe two  charged or maybe one of the theories charges is there a way of telling the truth to me that's the problem with multiplicity not venue we can't tell they could have said it's all parker we don't know that any of that was philadelphia that's the problem old three i think it makes a difference i think that the judge knew it and that's why spend so much time trying trying to tell the government don't do this they did it anyway well you know how many well  us i haven't really touched cal three i think what you need to do is you have to vacate two i think that what the government did in this case out one i think that with the government did and they really were reaching on this case because they wouldn't bring mccracken in they didn't have evidence of an agreement they went ahead and try to make inferences on tax returns they never bother put in they just made a giant mistake of the question is right now they want us to do it i want you to vacate them both but partnership that was set up in wake missions were paid even though the vehicle were in place for him to get this access he did he religiously paid his taxes every april fifteenth his return he'd got in early but nevertheless he had worked with  avoid taxes so i work within the structure of this payment thing in this commission so he wouldn't have to pay his taxes but i'm not going to go down that were i pill my taxes that is to have a conspiracy with route to help cases that support that law i'm saying that when you keep drawing pieces away so that it is entirely inferential as to the agreement then an argument may be made and i making at you the argument to be made been the jury probably heard that argument didn't buy it i agree or unless they did not and i'm not here to argue the facts i thought they were very well briefed by the government as well this is a fact relevant this is my argument is they made a mistake what did the judge tell the jury they amended and the government argued too late and you're lying on the amendment so the defense is you know it's a bumbler i guess would be a good way of to his wife so that she look like she's pregnant and you don't know what you're pertains to he's just said on the quest to evade any kind liability for any year at all you got this guy right down to the penny why was it charged this way in the one count we certainly could have charged on a year by year because the defendant engaged and a long term consistent pattern of conduct that wasn't directed at any particular since three years three years and sure there was a love and he said it wasn't directed in a particular year but again you're charging him to the penny for every directly well the fact that we charged three years to get together doesn't it we don't have to prove specific fish and say that each year that's still an element of defense but how do you know what year the jury what how do you know whether or not the jury accepted efficiency real problems we don't believe that we do and the reason is that that argument assumes that there is a problem the way it was charged and that or that goes to prejudice whether or not a jury could have disagreed on certain years goes to whether there is any prejudice we believe that it was correct interests and that didn't have a human action that i don't know how you get around that problem well the issue here is that mr root's actions specifically his decision to direct this commission payments be sent to new perspectives rather than to him personally as had been done previously were not directed at any particular tax year that decision had the effect of hiding his income for two doesn't want to go to two and three the one he had the commissions do ver different in two thousand and one you're saying that that was an attempt to bridge the taxes on those commissions for two thousand and one what it was an attempt to evade taxes with respect to all commission payments going forward so if we had charged it year by year that memo that well i think we do know for sure that they bought the evidence of this case not a reason for that how do you know what they were instructed us to that you so we know the jury found that a specific activation occurred in the eastern district the reach of three years now for each of the three years but there's there's no one but not two thousand you know i thought about that but we don't allow for directed verdicts in criminal cases so that i'm not sure that helps of the fact that there's no way the jury could not have found the guy guilty i mean that you that's basically saying that you're entitled to a directed verdict in the end of the government's no no it goes to the whether there's any prejudice resulting against stepping back we believe that under paul and this case was properly chars pollen clearly said that where you have a scheme that effects an individual taxes for several years that skiing may be charged in one count there's nothing in palm that limits that the logic of that decision to evasion of payment cases and we believe this is both an evasion of assessment and evasion of payment case although the district courts not rely on that distinction what i want to get back i want to make sure you're being candid with the court is not the statue of limitations of this crime five years i believe it's six years but i'm not six months how certain it's six years or eight and the indictment was handed down with actual imitation is that not why the real reason why this was all charged together well except that i think the that you thousand income would have been paid the income taxes were been filed able fifteenth two thousand and one so that would have been just within the statute of limitations the six year statue of limitations and the two thousand and ten is no longer an issue because that was that was taken out with the consent of the government so there was the statue limitations was not an issue here that wasn't what it was i don't know which though it was well i i can't say for certain i wasn't the prosecutor charged the case i you as long as well as the overall you karma due process and unanimity suggests that you've got to unless there's something here to keep you being able to trace his tax liability to a given year and you you know only could do that you didn't do can't make an individual determination well that's not how i read paul i simply read pollin as if the acts of a ship fact multiple years in the government may charge a single count that includes multiple years and that's precisely what we did here again return to what i said earlier palm there's no if the defense arguing that there is that the pollen should be a limit of sax well i don't really see a clear logical reason to say hopefully we'll never see facts like that but you can pretty outrageous so you're unaware where there is a case where the acts and the most important acts of asian and i think the r b i was at the center of this case and that goes to daniel why it was charged to but where the the most important acts of they do affect all four years there's no harm in charging at one count of fact it's plainly permissible to do so and no harm even if we can't determine whether or not the jury was unanimous as to and when you do this to him or certainly because if if we correctly charges one crime which we believe it is then even if the jury found the deficiency is to one year but not just another year that's irrelevant because once the decision is made that was properly charged this way it doesn't matter what specific acts the really does go to precious and prejudiced doesn't come into play until you decided there was a problem with the way it was charged and why but why isn't that the problem if you can't tell from this woman together that there wasn't prejudice here right isn't legislative history and determining whether congress specifically spoke to how it may be charged so congress could certainly say it is a crime to evade your taxes you know so you're saying if congress allows the prosecution to charge in a way congressional intent i mean in many cases you could charge it as a with a long term drug conspiracy and it doesn't require you to necessarily prevent additional transactions as long as the jury finds specific transactions that are sufficient to establish the elements and it's a very very different of the individual act and the act the act itself tax doesn't work that way well you know it doesn't work that way because people are required to file you know returns but what the statute penalizes is not failing to pay sufficient taxes in a given or penalize a specific activation and the activation here the primary activation was directing the r b i commission payments to new perspectives which allow them to evade taxes for all years do i forward that specific act was not tax evasion reason and the jury found that it clearly that it was in there you know i don't think that's at issue here that he clearly did direct the payments to new perspectives with a tax evasion goal in mind well he could be indicted oversight here where he took the extra step of funneling the money through another entity at a similar pattern to what he had done with the money he received from mr ford in mr moore oh that i think goes a step further and shows that he had a tax evasion goal in mind it wasn't simply an oversight when he felt reports that come that he actually didn't want the i r s to know about it so he directed his or mr mccracken direct to the no ten agonize for file and he had to sent to his to this this new perspective ago trying to figure out what the jury found or didn't from what was the jury charge the jury when the jury was not given a unit i mean struction we requested giving a what a unanimity instruction as to the activation we requested one i wasn't find something happen every month you hear as long as within that time frame the jury makes a finding that the person is guilty of the elements of the offense within the charges exactly that's correct and we believe the charges highly proper here as it would be at a drug case like that asked the fine with the or was the jury the jury's not asked to find the number here the jury is not asked to find the number and in fact the number need not correspond with the number charged to get very tricky here is that this gentleman could be convicted by a jury because he did one of these things satisfying all the elements of the offense in these years but for all of the payments you know one zero two one zero three for r b i for ford from a rule and parker that's a pretty large number but the jury might have only honed in one of those small ones well for sentencing purposes actually those other payments might come in any way i mean they would be even if the jury said we only found that he committed of asia with respect to the r b i outcome we could still argue at sentencing that those other payments are relevant conduct and they would be considered as in determining his his sentencing level and under the current law that would be allowed but absolutely what are you a little trouble though that the judge might be asked to make fact finding that might hammer the guy for purposes of sentencing when if we could get in the jury room we would find out that they really only were fixated on one of the small premature we don't know that's a black box here it is but it but it's it's entirely permissible under current law and it's still the government's burden to prove beyond  his taxes with respect to all of the income we intend to prove at sentencing and this court and all our courts addressing the issue have said that's fine and in a drug conspiracy it's urged forget conspiracy in a  case it's entirely possible that the jury might find that the defendant only sold a certain quantity and it sensing the government might say you know what we're going to prove that you sold this additional quantity and that i mean in a drug case that can certainly increase messy count two is the facts as is a very understated way to begin well two thousand and one is a perfect example in two thousand and one the commission agreement doesn't get signed until late november and they don't start making commission payments to mr root until december fifteenth and december thirtieth that's a couple thousand dollars for the entire year mr fisher is arguing that it's very clear there were problems in every single year not the jury was given the charge to determine whether the government satisfied all the elements of the offense within that time frame regardless of whether it was december of zero one hundred june of zero two or may of zero three right it was a way to put in highly page sixteen we said specifically parker loans and maroon and all these things that were happening in other places in other dates it allows the government to just slop everything together and say it's going to have come to a substantial deficiency and by adding one year two thousand and one all the way to two thousand and three and pushing them together they get evidentiary and procedural advantages to get a conviction that they had no reason to get and they didn't have to and if you wanted to challenge the evidentiary and procedural advantages they need to appear in the blue grief or else they're waived trials are messy i'm not a perfect attorney here i'm just trying to point out that it's very hard for anyone to say why did the jury do what they did