they police court i marked silversmith for dr barris like to reserve three minutes for rebuttal and i'd like to focus today on the issue of the exclusion of evidence of the payments in the jury misconduct issue  the trial court clearly erred here by excluding the evidence of the payments which supported dr buress defense that his failure to pay the taxes was due to his mental illness and the medications he was taking for his serious medical illness polymyalgia rheumatica which coincided exactly with the criminal charges in this case the government does not now dispute that that evidence was relevant to dr victor's opinion that the conduct in this case was due to the medications and the mental illness and that the court eroni asli excluded it on a timeliness issue the government also does not dispute that the court erred in disparate le treating post arrest post violent conduct by dr barris in admitting the four hundred four be evidence of post filing conduct which the government said proved his guilty intent therefore that's consistent with his ongoing criminal scheme and with the amended returns that he did file they say those were not expelled but tory because he was still continuing to hide coins sales evidence so the government itself spent a substantial time proving dr barrett says post filing intent in arguing it was quite relevant to his intent as charged in the crime but then and went around and said you can't use the exculpatory evidence of your post filing conduct to prove that you were not guilty so this was a clear case of the disparate treatment that the court found objectionable and reversed in waters it's also was also miserables a complete statement rule the the government in the defense agreed to admit their demanded returns but the government insisted on excluding exculpatory evidence in those admitted returns which was the payments  we have case law that's that subsequent payment should be admitted well i would argue that the out of circuit authority just out of circuit it's not no no i understand paying is paying is this court's case and i would argue that out of circuit authorities more persuasive but i understand that i understand i understand that and it's very distinguishable in this case because the court in this case the government's not disputing that it's admissible as part of the doctor's expert opinion and more importantly in this case the government itself admitted post filing evidence to prove guilty intent in conceded therefore that the post finally actions were relevant in this case so once the government concedes and moves to admit post filing intent ev then that takes us outside of paying they've got to say i don't really understand how thing taxes after your nonpayment has been detected and actions being taken against you provides much exonerat evidence i mean there's lots of other ways in which he behaved that could be pointed to and i presume there was evidence submitted that he his behavior on other fronts changed why isn't sufficient to make your case that way why is it the fact that he's been caught not paying taxes so sorry i'll pay the taxes how does that exonerate him because as dr victor explained this is a period that is exposed coincided exactly was in a serious medical illness treated by a ring that time he behaved in lots of other ways including the positing some of the checks why can't the defense rests upon other behavior why does it have to turn on oh i've medication and his serious illness he was acting as a law abiding person which he had printed out show that in other respects why is it turned entirely upon the activity for which he's been criminally charged because  government made his post filing conic relevant by saying he's not taking care of his obligations he's not amending is returns where he hasn't been caught and charged he's not changing his behavior it sounds to me like a pretty compelling argument i don't understand how his change of behavior worry has been caught and charged exonerates him because what he's showing is that this was this was period was an aberrant period due to the medical problems what about his other behavior during those years isn't  anything else a good point to put into a line i mean look at the condition of his house but then the government gets up there and says well his house is still a mess and it gets up there and it makes this post filing payments well then because he says he hasn't paid for it well the reason he hasn't paid for it is because he paid eight hundred fifty thousand dollars offer proof with regard to his financial condition because as i look at it he collected millions and the fact that he had to pay some of the lady to the tax man doesn't say that he's a pauper and couldn't afford to make repairs yes because the eight hundred fifty thousand exceeded his post his his post taxes income for that period but what about all the money he cumulated during the time he did make taxes on  that he paid taxes plus interest so you're telling me that somebody who's collecting literally millions of dollars over a period of years is a pauper because he has to pay interest on the taxes that went on paid for years i don't understand that is how that's logical and i'm waiting to find out if you made an offer of proof with regard to his financial condition broadly yes we did we did so so why do you need to talk about payment of taxes his financial condition broadly would have reflected that outgo what he had left would have been what he had available to him let me ask you this your honor why does the government get to say to the jury why is his house still amass in two thousand and fourteen and that's the question we very very  very much wanted to answer and asked the judge repeatedly to answer and the answer is because he spent that money i don't understand that answer what do you spend the money on you spend it on repaying the state and federal government eight hundred thousand who it because the extra amount he had to pay for interest can explain what happened all the money that came in during those years you just can't take it what you're trying to argue here if i can get to the point is that if someone walks out of a store during the holidays and the alarm goes off if they run out of the store that's evidence of guilt if they go back in and say oh my gosh i forgot to pay for this thing that we have an evidence that they're not guilty and it was a mistake that's exactly right ok i think i think the issue that we have with that argument i have to think that's right but work there someone took a case law that kind of gets in the way so you do have to remain in time do you want to talk about the the jury question i know you mentioned that we're less than half your time now yes i do want to talk about that and the answer to your question briefly is that the government made it relevant by by hammering the doctor on his post filing intent and if he if the government can do it it's improper to prevent the defense from doing but we also have the issue of the jury misconduct in this case the jury reached out to the u s attorney in this case colleague mr walton here and says please help me i need coaching through my jury service the juror texted that to the u s attorney wife tech and e mailed to the u s attorney's wife which was forwarded to him spent considerable time talking to the jury to the u s attorney's wife and spent considerable time talking to the to her husband about the case and in each case these were extraneous cond contacts in clear violation of yes she talked to her husband and said this is a case with the medical defense and and the directly with the jury the judge is going to instruct the jury to do in some ways yes but in some ways no because the defense has no burden to present any body in what the jurors said even excluding whether this affected their deliberations is said i made one particular observation is that the defense didn't know what he called the defendant's doctor well as we know from the record the doctor was uncooperative and actually the u s attorney had him under subpoena and the u s attorney decided not to to c but the judge juror cohen laid that at the feet of the defense for not calling the defendant's doctor when it was he was equally opposed to discussing the case with the other i just want to confirm the timeline which is what i'm the most concerned about is the timeline of how this all went down might have the record is that you were notified of this on may sixth twenty fourteen is that correct i don't have the exact date but that's approximately kind then you filed the motion for new trial just a few days later yes prior to receiving that letter from the assistant i states attorney had there been any prior notification to you of this juror contact no none whatsoever not not a phone call not an e mail to make sure of the contact yes what the what they proffered at the hearing was they wanted to get the vardy or transcript and look through it and then look to see if there was something that they needed to disclose and they spent two months doing that ok i'll ask them about that explanation but but other than that the fact of the identity of the allowing your defense investigators to interview the juror any explanation of why you wouldn't be given that's the only explanation and of course with time memories fade  was somewhat of a sieve and claimed a lack lack of memory at the hearing and we were not allowed to further probe her lack of memory or or or question her at all at the hearing it was a very truncated hearing many months after the facts in this case and that was completely attributable to the u s attorney not disclosing this right away and the u s attorney not disclosing it when after the train right i see i have about three minutes left if good morning please the court my name is douglas wilson i'll be half the united states on the question of the admission of of evidence of repayment the district court did not abuse its discretion it had decision a decision from this court from two thousand and four that specifically says that the evidence is irrelevant that decision pang that decision relied on a prior decision from this court and this is from the supreme court both of which say that that evidence of repayment of taxes is not relevant may then ask about that counsel sand i'm hoping sandstone sense and that that case i'll call it the really the issue in that case wasn't it that the taxpayer knew that he had taxes due and owing in one thousand fifty seven but delayed reporting it to another year and he thought he would kind of make it up to the end kind of like the embezzler who steals the money but was always going to put it back the facts are a little different in that case but the supreme court specifically said that evidence of repayment is not is no defense to a tax evasion prosecution and i think the reason for that is that taxes are different not paying your taxes is different and offering to pay as such put them point out offering to pay after you have been confronted with your failure to pay is is not a defense to to the failure to quickly that i believe it's harmless as to that and that his his argument is i was taking drugs i was sick i was and i was injured i had this medical condition i missed i'm a walking pharmacy and therefore i  could not form the willfulness necessary to to evade my taxes the the evidence of repayment is is a small if if it's even relevant to that it's only begley relevant to that and i should returns that's correct your honor and and just to briefly address the defendant's argument that the government open the door the government never said that the defendant couldn't say i couldn't afford to pay i could afford to pay for the rift i'm sorry to pay for the repairs to my house in a side bar before the the cross examination which somehow didn't make it into the eggs of the record but it's at page forty eight of the transcript the prosecutor specifically said if he wants to if the defendant's counsel wants to ask the defendant could you afford it could you afford to pay for the repairs to your house you can do that you just can't ask whether you made whether you pay the i r s for the  for the back taxes so there was no evidence there was no bar on the defendant saying testifying that he could not afford it was there any offer of proof or proper attempt to prove his financial condition at the time i don't believe so i think to the contrary the prosecutor only asked the defendant about his two thousand and twelve tax returns in which he declared that he made a million dollars and he did not ask him about his his failure to pay the taxes or or his  period i just want to add that i did i don't think that the district if the seven it is is minimally relevant the district court did not abuse its discretion in finding that it was excluded one the rule for three so even if if there is an exception to pang even if bang can be distinguished  the government's position is that the district court properly excluded under a rule for three on the question of germans conduct again i don't believe the district court abused its discretion and that is the relevant standard the district court conducted a  he had received this call he testified that at the at the hearing that he had not done so before them because he thought there was no contact and therefore did not have to report it whether he was correct and that is not really before this court the question is whether the defense was prejudiced by the conduct but the usa did not report to that to the trial team until late march at that point the trial team ordered the transcript wait until it had the transcript which took a few weeks and then then wrote a letter to the defense guy so a couple questions here i'm all i think well mr wall and you did i have to tell you i was unable to say for a long time and it baffles me that this would not be immediately to the train ride until you bump into the wind and he was saying start talking about it but that but but getting past that the trial team knew about the contact in march late march i do not understand why they did not notify the defense immediately about this so the defense can do its own investigation into what happened why do you guys get to just control this information and decide when he gets to know about it when it's your prosecutor talking with a juror on a sitting trial your hon this but should we have a prophylactic rule in the circuit that says if you don't immediately tell the defense that a person in your office or the wife of someone in your office is speaking with a juror during a jury trial absent immediate has to prejudice whether the defendant has been prejudiced but how can we determine prejudice when the hearing didn't take place until was it i'm looking at my timeline here june when the contact was in february how can we even if i were really happened after trial but that but here it could have these things that's the different there are many times when a juror is talking with someone at the laundromat and there's no way the parties can know when it comes out after the fact i'm with you there but here it's someone in the office whose wife is speaking with a juror the reason why it was delayed was not because the parties didn't know it was because only one of the parties knew well the government say they wanted her testified he didn't believe there had been a contact and that's why he didn't he did ok what s second but march the it's notified in march the train ride again i don't know why the prosecution is waiting for transcripts to arrive before notifying the defense i just i don't see what the what the rationale for that is well i think the prosecutor was just trying to be careful your honor i think he may have made a mistake in not notifying the defense right away but he was he was not acting on reasonably he was not acting in a way that was intended to prejudice the defendant he simply thought to contact someone in the prosecuting office and saying the kinds of things that were said no i'm not your honor i'm not aware of any cases that specifically address this but again i think the question is was the defendant prejudiced by the contact and i think the district court thoroughly explored that question and its decision that the defendant was not prejudiced is not an abuse of discretion and do you know of any case law that says we are not allowed to presume prejudice in a situation like this where the usa is the one to the prosecutor's office is the one that knows about this well i haven't looked for cases that say the court may not presume prejudice but the court has always looked in the many cases the court has had where jurors have acted outside the bounds of their job the court has has always looked whether there was actual pressure but here the difference is it's the prosecution is the one that's having the contact not the one prosecutors it's the wife of the usa but i'm trying to find case law that fit into that i think you push why this to me is different than a typical joe talking to someone in a coffee shop situation well i agree that it's different in the sense that the juror was talking to the wife of the usa but again the question is the same is where was the defendant prejudiced by this and i don't believe  that this record made a very thorough inquiry into this and found that there was no prejudice i want to briefly address the six or six question that the defendant says that we have that the government waive that question by not and this refers to the juror running into the usa on the street and telling the usa that because a doctor didn't testify that's why she voted to to convict also not an act of sort of record because i did not know we did not know it was going to be raised but the government did we lie on real success six so it has not been away by the government and i think it clearly in my view what the  thank just briefly your honour's testimony about my client's financial condition by itself without the payments would not be the same and would not be the same purpose because it would leave the jury with the impression that he spent all this extra money on you know fine wine vacations prostitutes whatever without the ability to explain that he spent it on repaying diligently the federal and state governments and on securing enough making sure he had enough to pay penalties which have not yet been assessed and frankly on under fence counsel it would just not be the same as to leave the jurors with the impression that he spent all this money on at the horse track or wherever else to the jury misconduct there is the rosenthal case you can say in one sense there what's the big deal that the husband who's a lawyer said listen to both sides and make up your decision at the end i've showed you why there's a subtle difference between the court instructions in that statement it's very similar to the rosenthal case in the rosenthal case the lawyer said you should follow the court's instructions are going trouble there is that it also seems somewhat innocuous  in that case the court presumed prejudice and we were prejudiced also by the delay in reporting and we we did not get a full hearing on the issue and part of that was due to the delay  warning but those those are all available to this court the court has any other questions i'm happy to answer them