you are i just like to say that we lay things out pretty thoroughly in our brief but there is some confusion about the compliance here which not only was not voluntary but ninety two demand was issued first that's very broad it says that if you don't produce any record for a record described in this notice it's suppressed by act of congress so this idea that we have on a student council the court has made pretty clear that you do not have to to do this that the summons is not self executing and thus it requires enforcement from the district court which which the i r s never obtained why isn't that an argument to make in the context of the other litigation that your client has and in other words you would argue to the judges in those cases that this was a compulsory disclosure not a voluntary disclosure and it should be suppressed in the context of those cases ok first of all i think i stated the card well cage to you and i've given you some others from the ninth circuit and they allow where there's been a voluntary turnover of testimony or records even without a summons you can still sue to get suppression in return so the fact that the government has you legally obtained the records and the testimony we have a right court did enter an order and forcing compliance with the sub yes but you didn't have it or such an order here no ok then it appears that you have complied voluntarily since you were not compelled by the district court no no you're right but you put the i r s you put the i r s to the test by forcing them to issue a summons and then seeking force of the district court you never got to the point where the district court forced you to turn over the documents instead your client turned over the documents in the way that this this is structured the statute  structured and in the way that the cases make it appear that makes it look like your client provided it voluntarily i understand that this is a course of atmosphere but there's a difference between being in a course of atmosphere and having been formally co work believe the suit in federal court is coercive number one number two when you don't comply with the summons you can be prosecutors you can be a crook criminal misdemeanor that scares  everything and go get a court order i think is illusionary and it's not required the compulsion is the summons and the law shit and you don't have to go to a jury verdict in the lawsuit  just say that you're voluntarily going along with things thanks very important distinction did did you did you indicate to the i r s or to the district court that you had a reservation or of your rights to seek suppression or anything yes how did you indicate that up in the motions in the decorations and the the in the grounds where the the all these things we raise in our brief here as to what you do you did that after you provided the documents so at the time of the doc that you provided the documents to jews did you indicate that you were providing them to the to the i r s with a residence some kind of a reservation of rights i don't know of that reservation and where of rights would be affected but i'm asking what he would whether you try to do that most of the compl detach for example a cover letter that said we're providing these documents to you however we're reserve we're we're going to attempt to reserve our rights to seek suppression and return there probably isn't just any one letter but we made all these objections  with an eye toward suppression in return but we vigorously objected to the whole process and if you look at the deposition that they took it's all in the deposition they're all our objections but yes hearing i think we would have gotten surprised you didn't hear you didn't ask the i r s if they would stipulate to allow you to proceed with giving them the documents that they would be satisfied in the interim they could proceed with whatever they needed to do and you could still seek suppression to return later on honor i tried to get the government to stipulate to that and what did the government say they refused to do it ok and that's why they moved to dismiss because they weren't willing to do that and indeed in the recent litigation they're now saying that we have no right did you did you ask the government to enter into that stipulation prior to providing the documents yes it's all kind of hazy now but yes i did thank you your honor and may it please the court theatre and we had a clear choice in the summons and foresman proceeding he could have complied with the summons or if he thought it was invalid he could have gone forward with the adversary proceeding and then it would be followed by a either substantially comply or to bring a proceeding in which they can and seek to quash that petition and that's what he did and i think my understanding of the f d r process is that ultimately that case was put in a benz while they were waiting to see what happened in the summons case and that the documents were presided were provided in the summons proceeding and all of the stipulations in the summons proceeding indicate that indicate that he was complying with the summons and he was testifying and producing documents and then ultimately the f d r case was dismissed because he had complied with the summons so i think it's my understanding is that is the flipside of what of what he said but in any event in any event he provided the documents and so either way you know it was voluntary there was no order in the f d r case there was no order in the summons case requiring him to do so so the f d r requests is not cute either no it's not and it's not something that the government can go to court to try to enforce it has to wait to see if a taxpayer goes to court to quash the petition and then it can sort of cross petition for enforcement  think like i said in the i r s his interest to deem this voluntary and refused to proceed with some kind of a suppression and return policy i mean it's seems to me that that the that the government is is is putting them to a really difficult choice and maybe by maybe putting yourselves to to a choice but that you shouldn't the judge should be doing the words why why wouldn't we want to encourage early production of these documents as long as they can reserve their rights to challenge a later on well your honor i don't there's nothing in the legal authority that certainly doesn't cite anything that says there's something wrong with the government petitioning to enforce a summons i  you may well we can all provide them to you now let's save ourselves the time trouble and attorney's fees but i'd like to reserve my rights to get him back and suppress the evidence later on but go ahead and have him well i don't think that he did that he what he represent he always had he done that with that be proceeding and he chose not to take them now that the summons the suppression issue is getting a bit far afield from what was before the district court with the before the district court was a simple question of once he had complied was there anything more for the district court to do and the answer to that question is no the when he complied the government got all the relief that it had come to court to get and when he complied he centrally was saying you know he didn't want to pursue a challenge to enforceme fact he argued in his brief in opposition to the petition to inforce which was filed before he vacated the adversary proceeding he argued that his compliance made this proceeding moot and that's why pages six zero eight and six zero nine of the excerpts of record and so six weeks later when he actually provided the very final documents and had fully complied with the summons we don't think he's in a good position at that point to say oh no it's not moot anymore you know once he was faced with a motion to dismiss  and once he jointly with the government vacated the show cause hearing the district court was faced with two parties who wanted nothing from it is there any is there any other forum in which he can ask for return suppression you're not he has talked about i think part of the difficulty for him is that because suppression here was voluntary he talks about suppression in sort of classical criminal fourth amendment terms like there's a fruits of the summons and there's derive leads from it and the fact is that that the the documents in testimony here were obtained lawfully and you can't unring that bell and he mentioned the ward case which is discussed on pages seven and eight of the reply brief and in more that was a classic fourth amendment kind of situation where the i r s had asked for these documents without a summons having been issued and the taxpayer consented for five days and then his attorney came in and said no wait we don't consent we want these returned and then one circuit said the evidence that the government game during those five days would not have to be suppressed later on so i think his chief problem is that he voluntarily complied here  why is that why is that a question for this court in this case that's it's not don't understand why wouldn't that be the suppression question where wouldn't that be for the quarter judge in the other litigation that is involved in the it is but it seems like he's done everything he could short of not complying to to attempt to reserve that right so isn't it isn't the appropriate place to make those arguments in front of the judges in those in reef in the refund case yes and he's always represented represented to the district court that he would do that in his response to the motion to dismiss you know he doesn't seek and enforce a suppression hearing in the district court case he doesn't seek to reinstate the adversary proceeding he wants you he indicates to the court that he will be pursuing that in the refined case and that's at pages one of four and one fifteen of the excerpts of record in his motion to reconsider he says the same thing at pages forty nine of the excerpts of record and his reply with respect to the motion to reconsider he says that page twenty one of the excerpts of record and even in his opening brief he said that everything is he's going to pursue that in the refund case so he certainly you know more than tipped his hand to the district court as to what he was going to do we tipped our hand as to you know we're going to push back against that and he you know in this case things didn't fall apart until the very end till after he had complied and suddenly he wanted this term that didn't reserve his right necessarily but it tried to to get a condition in the in the order of dismissal that would cut the government off at the knees by saying you can't oppose anything that we might object to in a proceeding with respect to this document that yes i'm opposed to people ation but it seems like like the government why would the government object to forty proposed was that he was simply reserving his right to challenge the voluntariness of the disclosure in this proceeding in the other cases you're saying that that he did more than that he tried to get the government to to not oppose his motion to suppress yes yes i mean that's that's the well i should say that's what he asked for in yes from the district court he asked for an order for ever barring the government from i don't trust a council to say that he had it that he sought a stipulation from the government before he turned the documents or you know anything about that i don't know anything about that  and it's certainly true i mean what he has done since the beginning of this process from the very first correspondence with the i r s agent and through the summons proceeding he's told the i r s agent i'm going to comply  comply i'm happy to have mr lee appear and produce documents and testimony and we just need to work out the property when it's time to place and then he represents to the court six times in the stipulations i'm complying and complying you know certainly took a year pilate and there were six to peel asians in the course of that year to ultimately negotiate that the final documents would by the new government have agreed to a stipulation prior to them turning over the documents to say sure go ahead give us the documents and and we'll and we'll fight about suppression and return later on i don't i don't think so i don't think the question why why wouldn't you if from from his perspective and maybe from your perspective it seems to me it looks like this he thinks that the documents will exonerate him he's not anxious to turn them over but he'll turn them over to you and if you take a look at him say you know something he's right there's nothing here then everybody goes home and there's no problem and if not then you get to fight another day and you're right back where you were but it seems to me that you're in no worse position and you're in somewhat a better position he's in no worse a position time i don't know of any i don't but if you're going to answer to me was it you didn't think the government would agree to such a thing and i'm sort of asking why would it be in the government's interest it may in a given case but the government didn't agree to that in this case so it makes it seem a lot less voluntary though doesn't it what well that you won't agree you would not have the government would not agree to the stipulation that allows you to reserve his right to challenge the voluntar honor you say you want to agree it could it could cost him some jeopardy or disadvantage him in this other litigation makes it seem less voluntary well let's assume that he did that was before the government filed a motion to dismiss he could have opposed the motion to dismiss by saying you know what because i'm worried about what might happen later on i now want to challenge this this and i want the adversary proceeding to be reinstated and he didn't do that all he asked in the motion to dismiss was that summons proceeding case be consolidated with the f d r proceeding and the refund and the refund case which had not yet been filed but which was filed while the motion to dismiss was still pending in one of those cases consolidated so that he could then deal with all of the validity of the summons in the refund case under the guise of you know suppression hearing he didn't want to you know challenge the seven now he wanted to to basically pick his place in time as to when he challenge the  it and then he also sought a conditional dismissal order barring the government from ever opposing whatever objections he might raise and we don't think that you can get that kind of a conditional order in this case under this  respectfully disagree with opposing counsel ninety two is self executing the statute says if you don't produce the records the records their evidence shall not be used in any subsequent proceeding by act of congress that self executing just your court has no discretion to do anything and i think the which emerges out of their argument here is the fact that my situation our situation is no different than when you offer evidence when you offer evidence but make objections to evidence coming into a court proceeding and you're you're over rule and then you appeal and that's what happened here and and the point  there's a written stipulation in the record i put it in there somewhere where that we are asked to have that done and the other point is you don't look to some juice or proceeding because suppose there is official proceeding then the government has got a legally got your records and if you don't get a suppression in the summons proceeding you the government gets to keep the records so just because there may be up for proceeding the other point i want to make is we've also outlined serious due process violations we have our government attorneys in a direct conflict of interest conducting summons proceedings we had a d j attorney appearing on the treasury department level even though by act of congress justice department tourney's are limited to appearing in the district courts and the court of appeals not in on the treasury department administrative level which is where the the testimony went on and we also raised the defense of pretrial discovery that the summons was being used like a civil deposition and the supreme court and clark says