used to adjust status and that is exactly what mr taylor was attempting to do and the criminal liability that he was assessed in this case is not proper first of all he was assessed liability for failure to disclose bankruptcies and previous petitions there the government has failed to prove that it was material or that mr taylor had intent to for the failure to  defendant omitted listings from his bankruptcy petitions that's true can't get you infer from that that this isn't just an accident this is enemy actions or somebody is intending to leave things off the for current government to show that that that there is intent and they never show that and i'm for that i just posed the question to you can't somebody reasonably infer from the fact the same omissions occur over and over again that is not an accident that the previous filings are listed not even the same all nations not like you stopping a form and image that he was missing and that it changes over time but what's consistent is a failure to list all the prior filings that's true and think perhaps nothing happened past tense but you know it's not like the form tells people the listings for the heck of it or the information sought is presumably sought because somebody else is interested in it and in this case if you decide to leave some things off it may be because you don't want the somebody else to know what you're leaving off well has to be a material and it wasn't what didn't what is more material then a person repeatedly i think is at five or six times in this case creditors this misses the position or doesn't follow the things necessary to to keep the petition alive gets involved another financial transactions when creditors come after him again files again and he does this five separate times why is that not material well as you know just talk and that in the mill what case which you had after the opinion  has to be more than that and the government does not show that they do make inferences that because bankruptcies were previously emitted from the petition and because there was a stay therefore there's criminal liability but it doesn't reach the point of where taylor should be assessed the criminal liability for instance when you're with your filling out and the court knows all of taylor's previous bankruptcies were dismissed and the court also knows that his name was correct on my petition his so security number was correct  than one chapter seven chapter thirteen you actually can but you know it is very material to the administration of the bankruptcy to know if there been prior bankruptcy was filed judge or the or the trustee has to assess whether it's an while they could look at well why isn't material right right from the beginning of the backups you don't know the history of filings it may be material to whether he is able to file a subsequent bankruptcy but material it's not a question of whether we decide this important enough to punish criminally the issue is whether it's material and i i'm kind of baffled by the notion that us trustee looking everything is filed can't reasonably rely on what's on made a false statement i mean there's an omission that's the criminal prosecution i really don't think the argument is pertness to whether or not we decide this is important enough to depend upon is criminally the standard of materiality doesn't turn on importance it turns the bankruptcies were dismissed it never stopped the creditors from being able to pursue against mr taylor and again there's not a requirement or  restriction against permitting someone from filing multiple chapter so in your version somebody can file every single day in order to make sure that no creditor can ever enforce anything against him not reveal the everything well the information that he was saying one of the pieces of information that you say that he wasn't told was information regarding the airplane and the bank account and the court recalls with that even at the district court level the district court judge the government and mr taylor's current attorney could not agree on whether that was something that needed to be disclosed finally the district court judge your minds decision to tell not to tell the lawyer about all this money he comes into or the assets he comes in to the day after filing they coincidences a little hard to miss and the notion say the reason he didn't tell his lawyer about it was that he knew the bankruptcy statue didn't require i don't recall that in the record but the thing as the government needs to prove that there's fraud and mr taylor doesn't need to prove that there wasn't fried the government needed to prove their case instead what they did with say there was statements that were caused by these bankruptcy filings so therefore he criminally liable and the stays again word in that material they the stays were brief as soon went there's a reason your client was filing in the first place to act like they don't count for anything because it's the only reason your client was filing all these petitions to get the benefit of the stays and to fend off creditors for periods of time sure and then letting the i r s which is apparently fended off forever kind of disturbing for those of us who depend on tax collections for our salaries but the i r s apparently stop trying to collect the money sure i understand what you're saying but everybody who files bankruptcy is using the benefit of the stay that's the whole purpose  acting in the way he's acting well the me he's not he's not signing off his creditors for support he's doing because he wants to keep them from collecting that doesn't make it material no because there was dismissals and everybody could have collected and i think showing the i r s doesn't come after him from for collection shows that mr taylor never had the money to begin with to be able to pay the debts i think what the government is saying is mr taylor files and eventually the i r s gives up we've all been here a long time the i r s doesn't just to give up and go away there's something else going on he doesn't have the money and they're making you've chosen to spend the bulk of your time on materiality are there any other issues that you'd like to address i'm going to have to let you have left yes mr lall was a very important witness for the government later his testimony was found to be solved he was not the owner of the property if this comes out at the restitution hearing everything that mr la three criminal points so he was over sentenced if it is ok with the court i'd like to reserve my remaining minute and a half sure ok thank you we're here from the government at this time good morning mates with the court my name is john local represent the united states in this matter won't spend much time on that however the issue that it is to be considered which was a mid in my own it's briefing was the fact that when determining fraudulent intent and an  mission from a bankruptcy petition in this case with respect to counts one through three the court as set forth and went home is free to examine the totality of the evidence when discerning praja one intent so although a limp home was distinguishable in the sense that the debtor defendant in that case made minor modifications to his name or social security number in addition to a meeting prior bankruptcies in that case the court this court emphasized that there were other in of fraudulent intent for example the fact that the debtor in that case as in this case was capable of paying off his debts meeting his obligations which he was seeking protection from through the bankruptcy and addition in that case directly on point the debtor defendant appeared to be using bankruptcy stays in order to live rent free at the expense of landlord creditors so in that in that respect the government's admits the jury found beyond a reasonable doubt that there was not only materiality but fraudulent intent with respect to count one and three the false declarations and i ask you about accounts for him six are they premised upon the duty on taylor's part to amend his ruling the government had urged the district court to find an affirmative duty based upon three sections of the bankruptcy code namely eleven u s c five forty one eighty seven and eleven u s t thirteen six which clearly and unequivocally define the property of a chapter thirteen bankruptcy state to include all property that the debtor acquires after commencement of the case before dismissal or before a case has been transferred to another chapter the seven h which limits on its face disclosure of after acquired assets to five forty one eighty five which involves life insurance proceeds divorce proceeds inheritance inheritance and the government that that disclosure requirement is not is not exclusive that there is perhaps a reasonable explanation for why five forty one eighty five assets were isolated namely those truly are the sort of five forty one eighty five which limits that to property which is not at issue in this appeal right that's correct with respect to that is how do we get to criminal liability when it's of the assets of the debtor holds and depending upon the chapter and attempt to satisfy lawful debts to creditors criminal liability in large part is premised upon the notion of notice and in the very rule that describes how of the encryption the petitioner is to fulfill his or her duty to report after acquired property doesn't require the disclosure of the very property at issue in counts four and six how can the stand well your honor the district court made it made a separate ruling independent of an affirmative duty created by the statute and in this particular case  distinguishable from a situation in which a debtor acquires property post petition after they filed schedules but never filed an amended schedule in this case is the district court help and the government urges the court to find a duty  perhaps on an alternative basis that is that with respect to count for the defendant opened a bank account acquired asked at random through the account several two weeks before he filed his first schedules the bankruptcy schedules do time limitation on their faces relating back to the date that the petition was filed and the government as a district court held urges the court to make a finding if it's not inclined to find a statutory duty based upon five not disclosed in subsequent filings of schedules that back is concealment that at a minimum the date upon which the defendant files their debts of schedules and life bilbies they must include property they hold at that time that pertains to count four with respect to counts on that because i've struggled with that a little bit i did not practice bankruptcy law but i have this general understanding that there is this process you file on a given date and your follow up filing details schedules and the question becomes what's the what's the effective date or the information date for those schedules i take it your argument really has to be the debtor is obligated to bring those current to the date of filing of the schedule but is it so sure of that a debtor couldn't fairly understand that these are schedule meant to complete his original filing so the information contained there is really as of the date of filing because you don't really know what things we actually get into the courthouse everything's changed a little bit so you're really you're giving slightly obsolete information but could in good faith be trying to respond to what was my financial condition as of the date of filing and why is why is that out of bounds that's correct your honor the government would submit that the fact that the defendant had substantial assets which were moved into the account the day after he filed this petition that these were assets that the jury could infer and did were in his possession at the time he filed this petition that these business transactions were being contemplated being negotiated even before he filed his petition and therefore there is concealment in this case with for wasn't concealment the count down six is concealment count four is false declaration correct correct your honor why i asked the question is it so clear that once filed on june sixteenth is a false declaration if that is fairly intended a reason really understood to be a statement of condition as of the date of your initial shafter thirteen filing if it was apparently correct as of the date of the chapter thirteen filing it just omitted what he managed to do the next day that is that's correct  honor if there were if there was no duty to declare that so so so that's what i'm trying to focus on what is it that makes it clear that the person filing those schedules is supposed to file information as of the date of the schedule as opposed to the date of the filing well the schedules themselves the document in which a debtor places information enters information about their assets and liabilities does not placed a time limitation it simply says to list all of your holdings at the time that the defendant filed the thousands or millions of debtors who are trying to fill out the schedules by the same token what the bankruptcy code says is that as of the filing of the bankruptcy the commencement of the case creates the bankruptcy estate and so now you're saying the schedules don't relate back to the filing one everybody's understanding is they do now there may be a different theory of concealment but i'm not sure you have one here and what you're i know you're trying to keep it to the facts in this case but really has some pretty broad implications  government started i believe ten cases to this court which makes clear that a chapter thirteen debtor is obligated to disclose assets acquired pursuant to section five forty one eighty seven and thirteen  acquired post petition that there is an affirmative duty every case examining this issue from a number of circuits which the government presented to the court for its consideration have found that there is that affirmative duty in the bankruptcy cont this court holding would not change bankruptcy law at all with respect to criminal liability the government cited the tenth circuit case of messner for the well to essentially to refute the defendant's argument that assets under criminal sanction must only be disclosed if it's pursuant to rule one thousand and seven age which cross references five forty one eighty five in that case the tenth circuit found that there was criminal liability government cited it to this court in support of its contention and the proposition that the duty to disclose after acquire assets is not limited for criminal sanction your honor the government urged its first theory the statutory theory that five forty one and seven and thirteen it's a create an affirmative duty to a debtor as as is set forth in virtually every bankruptcy case statutes there's an affirmative duty the district court held on an alternative basis and i understand that but in the end if you're talking about duties and bankruptcy and notice as to what you ought to do how can you maintain alternative right you're under the just the district court made made its ruling on on an alternative basis which is that at a minimum at a minimum that this court found that there was not a statutory basis at a minimum when a defendant makes  filing listening their assets and liabilities at a minimum when they make that representation to the court and they are aware that they are in possession of assets which they fail to disclose especially in a case like this where it exudes fraudulent intent  in a number of manners that at a minimum when a defendant makes that representation to the court that they have committed concealment or false declaration on it's an argument in the alternative you're on you're brief the defendant had two prior convictions he was assessed criminal liability for the island county washington conviction the documents and these were these were all defenses and the documentation was done what limited to simply facially indicating when probation was revoked when a sentence was issued and when the release date was and that set forth in the pre sentence agreement there's no dispute about the dates which which the parties before the first one expires he would be released before the first one expires however the documents indicate that he was stanton's to and imprisoned on the second conviction as well the government concedes or is there is some ambiguity here because imprisoned on two sentences and either way either either argument would have to hinge on him serving less than a full sentence on either conviction but the spend its argument is would have to be that he would since it's first in th argument that the government made today is addressed in our opening very thin reprised right if and specifically and ask the court to look at the messner case the government's reliance upon that is misplaced and if the court has no other