minutes and with your indulgence i've asked mr cohen to actually come up and tap me on the shoulder because sometimes i lose track of the time when my ten minutes of right for our convenience harvey you allocated issues i'm going to i'm going to address the following issues your honor i'm going to address the refusal of the of the district judge to give the jury instruction on the statute of limitations and then they said what i call the sandbagging judge granted her rule twenty nine motion and dismissed her from the conspiracy count and i'm going at the third issue i'm going to argue is the court's refusal to instruct the jury that no special weight should be given to the cer that the statute of limitations would have should have prohibited the jury from considering eleven out of the fourteen acts alleged acts of the vision and they should have been able to that the three that were left there within the statute were knock us x and not actually beijing at all and of course it would have enough for the jury to decide that but he never argued that it's a good argument i think but how do you get not i don't read the i don't read the law that way your honor the the law that i cited to the court says it's the same issue it has it couldn't be the same case it has to be the same issue that's presented to the ninth circuit and that's the side by the panel yes if the panel arguments on the issue no it wasn't the same issue because at least your honor was the only defendant among the seven who was found not guilty by the trial judge of conspiracy so she went into closing argument being the only defendant not guilty of conspiracy facing only the charge of tax evasion in count eight the issues there was a cited by the ninth circuit with the other defendants if you read if you read the opinion it's attached to the government's brief talks about the overt acts in connection with the conspiracy charge they don't they don't talk about as i read the opinion the overt acts in connection with the with the tax evasion charge only the conspiracy charge so are the doctrine of law the case simply doesn't apply because the ninth circuit was not focused on the particular argument that i am making to you now it just wasn't raised that wasn't  addressed and the argument is as the court pointed out thank you it's a good argument it's a winning argument under united states versus gaskins defense counsel was sandbagged he was that the defense was distracted he never got to argue and justice in the united states versus gaskins this court found reversible error the court should find reversible error here on the same grounds second your honor i'd like to move to the conspiracy  issue again judge king granted the rule twenty nine motion and acquitted alicia conspiracy alister of conspiracy after the close of the government's case there were motions all motions were made and renewed including evidence prejudicial evidence that had been admitted against the coconspirators that never would have been admitted never or the vast bulk of it some of it would have no doubt but the vast bulk of that evidence would have been  that would have been admissible in a vast bulk of it would have been inadmissible all his it the anti semitic rampant anti semitic views talking about the sun him drink and the town board and the gross anti semitism and racism of these co defendants none of that would have been admitted against alecia had she been tried alone at a separate trial this was not a fair trial she was butchered by the birds that she was flock together with the class sticking inhalation scrupulously safeguard a leash on as far as possible from loss of identity in the mass so we look at the jury instructions and the government comes back and says well look at the jury instructions they were fine they were perfect they were the standard boilerplate instructions that are given not one of them ever said to the jury ladies and gentlemen the jury i'm telling you all this year has been acquitted of conspiracy she was not transcripts and also the government has also cited various instructions that it is search we're good but i can tell the court this that the court will look in vain for an instruction that mentions by name alicia stacy anywhere the court will look at the court did you know you have to consider the evidence no one was no to my knowledge no one was no one was acquitted of conspiracy they were all convicted of conspiracy a couple of defendants were i think acquitted of failure to file count but i may be i may have that wrong but i believe acquitted of i just can't remember but it was acquitted of the moment what the judge probably cautionary instructions in a case like this where you have a relatively peripheral defendant in a sea of felons and racists and semites and quack theorists and proper instruction would have been ladies and gentlemen the jury alicia stacey has been acquitted of the charge of granted that specific question that specific request was never asked but at the very least there should have been cautionary instructions identifying aleesha stacy by name there were repeated requests from this book by mr lerner for cautionary instructions hearing yes there was a contest civil tax hearing but the same but the same principle should apply to an even further in a criminal case it's a contested hearing did you that the friends come in and say wait a minute this piece of paper is wrong one of the defendants offered to show that we can through you know they offered expenses from three businesses that they ran three years they offered expensive than the normal operating expenses go with business from ron stacey construction from the shoe to company from the tickle your fancy store or now granted they it was fourteen years after the fact but they came in with the precise amount that's true but nevertheless that did not detract from the from the principle that that's the target of assessment was inaccurate and wrong because it did not account for any business expenses of three separate business with no expenses so it was clearly inaccurate and the jury should have been told the judge had a duty specifically when they requested by defense counsel to tell the jury ladies and gentlemen when these attempts of the suspect you instructions that the jury entitled to judge all the evidence and the weight but that's not that's not enough that's not we asked for a specific instruction to a critical piece of evidence the court was duty bound to advise the jury that obliquely right well the courts have made lots of discretionary decisions over the years with the guidelines and not all of those cases are subject to being read me ended for the court to for every time they've made a sometime later a day or so later to commune struck the jury that they can only consider acts within the statute of limitations just can't take away the prejudicial prejudicial effect that the government's argument had on that matter  i'd like to address two very critical pieces of evidence mr stacy was involved in and of a massive case was filed in a half weeks of testimony hundreds almost thousands of documents probably from all the defendants thousands of exhibits but that he told the jury about from the very beginning and tried to run with it right throughout the case that he didn't owe any taxes and that he suffered from some sort of psychotic break back in about ninety ninety one the critical piece of evidence that we needed to get in to help establish this were number one the death certificate of his brother in law the government objected every time we tried to bring in evidence of his brother in law's death there was evidence in the records from his daughter showing that they had a very close relationship and a death certificate would have show that this person his brother in law died a day after mr states he turned fifty at a time when all of this businesses were failing and the cases the presenters will tell you that you've got to boil these cases down to three four or five documents you get a really narrow it down to simplify and these this was one of those documents and judge king found it irrelevant and kept out of relevance grounds in fact at the end of the case when i offered to bring it in once more the prosecutors the government asked the judge to preclude me from arguing at all about the death of the brother in law and the judge so spoke about it i would further that are he met on the certificates of assessment if you were to think about these documents what they are government documents saying that we found that you will for example hundred thousand dollars and even though you have businesses you have a committee showing us any expenses we're going to tell you was one hundred thousand dollars of taxes by the states these did come in fourteen years later to show that there were legitimate business expens mail order moccasins they were sent out to people they sent a letter a chance to fan to buy lots of leather and touches to put it to each kid and we had a witness from oregon letter company came in he remembered mr stacey from years ago and there were some but not all of the  so we came in with the bounce but there was a lot of evidence showing that we there are many attempts made that thanks don't keep records for more than seven years and this is where the pre indictment to lay really hurt us with respect to the treaty in time until they should all just mentioned one thing while the court has the trial court has a lot of discretion on a pre indictment to lay issue here there was no reason for the government at least filing a tax evasion claim against the stacey's three years earlier than november of two thousand when this indictment came down at a pretrial hearing in this matter the government agent testified that their case against the got rid of the documents and i guess your question assumes or seems to read into it that she should have gotten rid of those documents should have made a hell cleaning yes she was on notice that they had a criminal investigation against or two reasons are that they were still prejudiced first of all it was reasonable for her to get rid of the documents when they filed the bankruptcy protection and served on the i r s and didn't hear anything from them secondly even so even if the state had kept their documents there's no guarantee that they would have kept all of their documents it's all of the peripheral suppliers the primary sources of this evidence the bakes places such as oregon leather the people who rented the space the property to them those people didn't have documents from back then either so that's how they were prejudiced because the primary source of information should not have this information and we brought that out in evidence  covered both the conspiracy and the attempted evasion charges and therefore andersen is love the case in this situation the defendants argued that they should have been allowed to make an argument during closing argument about the stage limitations but as this court's already decided and present the court's giving of that statute of limitations instruction did that essentially the same thing for the  whether or not its earlier blakeley decision will apply to the guidelines and invalidate them either in whole or in part depending upon what the supreme court does in booker and fanfan there will be implications for this case if the supreme findings now in am only in this court discussed of the three different alternative routes that can be followed in the event the supreme court strikes down the sentencing guidelines and finds them to be several and those three groups are one that the defendant can be would be would not violate his right to double jeopardy the defendant in this case have no legitimate expectation in the finality of their convictions because both the defendants here and all the tenants in anderson brought their cases up on direct appeal  are all kinds of different things that could happen depending on what the supreme court says and whether they give us guidance and what guidance they do give us to do anything  been successfully completed so yeah i mean unfortunately we do not quite understand all of the parameters of how these things are going to work out  the jury going to be given specific instructions you can consider this i don't you can consider this item or are they to be just told the you know the bottom line figure out the tax loss you've got all the evidence you've got the numbers you and of course as to the two issues that we've raised we think that the court's decisions were erroneous of course the jury will be given an opportunity in the event of a remained to decide whether or not the defendant's actions for example in  striking the prosecutor striking a government witness intimidating the prosecution team whether those things constitute obstruction and they will also be allowed to determine whether or not ronald  stacy in addition to understating their income overstated their expenses and overstay their deductions or if indeed they understand their income even more than we were able to calculate given the limited amount of records we were able to obtain  them unfortunately in this case i think it would be quite an extensive sentencing hearing approximately one thousand nine hundred one they were also aware that there was a serious illness in the family because when the government first started to meet with the stacey's in order to carry out their audit the stacey's wrote back and said we cannot come and meet with you on the date you've said we have a serious family illness issue and please reset the meeting and then the states and ever showed up they also were aware of the timing of the audit and its relation to that illness disregard the statement that had been made that the uncle was deceased so frankly i'm sure i believe that in that situation the jury did have before it the fact that he was diseased they did not have a for a however the death certificate because the district court determined that that was not relevant to the case and that there were possibilities that that could tend to appeal to the sympathy of the jury now what the jury didn't know is that the defendants participation with c p a predate his brother in law's death by several years furthermore the defendant had been engaging in his letter writing campaign and his attempts to revoke his social security number and and other sort of activity like that prior to the death of his brother in law and that is why they just record decided to exclude that and there was no abuse of discretion there was plenty of evidence in front of the jury about the stress that was the defendant was under and furthermore the district court  allowed into evidence testimony by the defendant's expert witness that pretty much undermined her diagnosis of him the expert explained that this find it really was only interested in allowing her to examine him because he wanted the government to spend more money on his prosecution and the jury was certainly entitled to infer that perhaps her diagnosis may not have been based on the actual facts of the situation given especially that she spoke to the defendant for one hour honour's i do have the jury instructions that were given to the jury the jury charge i understand that they were included in the excerpts of record i have to give them to you now if you like and i can also tell you about some of the limiting instructions that were given during trial now although the defendant is right that none of these instructions specifically named alecia stacey when the court gave limiting instructions to district court on several occasions when the defendants asked gave limiting instructions for example when  certain witnesses testified against dan kirk i'm the court instructed the jury as i have instructed you at various times during this trial although seven defendants are on trial together many items of evidence and testimony relate only t particular defendants and should not be considered as to the other defendants and so again i instruct you that with regard to that testimony you want to consider that only outs of liability of dr kirk i'm he's really referring to a specific testimony in this instance this is an important instruction he told the jury and i ask you to remember it with respect to these two witnesses and to other witnesses during the course of the trial and all of that evidence that the defendant only just a few points to her brief where she's complaining about reference she doesn't say that any of those witnesses testified that she was involved in their misconduct and indeed none of those witnesses testified about a leash at all in fact i believe none of those witnesses even knew elisa and the jury was quite able to compartmentalize the evidence and see that evidence that was irrelevant to him did not refer in any way to lisa could not have affected their product and was not for them to consider when determining whether or not she was guilty also the jury was instructed assessments and payments the district court gave proper instructions to the jury and they were able to decide whether or not the city because of assessments and payments were valid or whether they provided some evidence of the tax liability in into c p a in order to hide the fact that they were operating businesses and that they had income in other words there was overwhelming evidence that there was income that the stacey's had received and that they had failed to pay one moment your honor to the best of my knowledge there was no specific instruction given on the certificate of assessments and payments the jury was instructed in general al they were to consider any evidence and they were instructed that it is for the burden lay on the defendants the taxpayers to show that the certificates of assessments and payments were legally incorrect or erroneous and in fact in this case because of the lack of cooperation of the stacey's during at that point the defendant has received what he's entitled to a fair trial opportunity to present evidence then the existence of the tax liability is a question for the jury to decide which they were told in this case they had to decide whether or not the defendant's own additional they are not simply out of the case they are simply additional evidence that the jury can consider when coming to its decision whether or not there's a tax liability furthermore the presumption of correctness if you look at stonehill their testimony is to be believed it's from their destruction of important evidence in two thousand now the district court determined that this destruction if it actually happened was under reasonable given the circumstances and we believe that the jury could find that those records never existed the government asked for those records as early as one nine hundred ninety one and the defendants refused to provide them and to the extent that they had set records could not have had a not about a discharge furthermore there's absolutely no evidence whatsoever that they had any belief that they received a discharge because neither of them testified and the one witness that didn't testify didn't know that they had filed returns and that the documents that they did closing arguments prejudiced by the additional accurate instruction on the statute of limitations numerous overt acts were described at trial any one of which committed by any one of the coconspirators within the statute of limitations sufficed to convict all defendants of conspiracy with regard to the statute of limitations defendants might have emphasized to the jury a closing argument that it was limited to considering overt acts committed during the statutory period by the district court supplemental instruction had the same effect while co defendants may have raised the issue in connection with the tax evasion charge this court has not reached that issue this court is deciding only the issue in connection with the honor as you don't have to wait for anything i would urge that if if if from my arguments of not persuaded you to reverse your conviction and if you sustain her conviction nevertheless you should affirm her sense of probation that's the sentence she receive  it's thirty days to do so the judge correctly ignored it and found the eleven thousand dollar loss based on that last he gave two levels off for a minimal role and gave up an appropriate sense not entitled to make that fine how can we say that while it can be affirmed by his decision to grant probation can be affirmed on any basis justified by the record of his decision to grant well what i what i think it's true that if he if he had no jurisdiction to make a last finding at all then then that's true but the question would be would a second can you read from the record the sense of probation n i think your honor i make three very brief points first with respect to the admission or exclusion of the death certificate in this case the government's counsel suggested at the court trial for when to have off prejudicial versus probative analysis and that's respect to the suggestion that there was other evidence in addition to these certificates of assessment to show that the stacy's actually owed taxes that's not the case they relied upon from the very beginning throughout the trial these certificates of assessments it was