today is thirteen one five seven seven united states versus maria morning my name is she was convicted by a new hampshire jury ten counts of filing fraudulent claims for income tax refunds two key issues or whether the trial judge's limitation on the jury's use of evidence of frauds by  employee gladys pena was error as the judge himself conceded a post trial memorandum order and second if it was here where the error was harmless the challenge instruction contravene constitutional this i think is an indication of the supreme court's conservative homes versus south carolina in that case it was a question of whether evidence was going to be admitted at all right and this case the question is how the evidence is got here by a jury presumption is the juror small of instructions given by the judge judge told in three different ways three different times in his as instruction which they are presumed to follow that they were not to consider what is pena's obvious misconduct before she's employed again travel while she's employed me on train travel and when she goes down to new york and gets involved in a multi million dollar scatter tax scam down here they could not consider that as propensity evidence to show that she was the one i think if that's true but they could consider it on the issue of the identity of the perpetrator and i'm not sure i see the real difference i mean those two i mean that's what you want to really was you me that you she had the opportunity to commit the acts as well as the density of the person a defense then he says you cannot consider friends have a purpose and he goes on to talk about you can consider only for credibility may not infer that simply because she committed the prior offenses she also committed they don't know what was actually sent there's no question that these at least some of the returns were not what was shown to the clients initially they completely fabricated returns were were sent out that the bank authorized the payment and painter herself and when she gets the authorization all she has to do is put the pre sign check blank into the printer at main travel and she prints or prince checks in the client's name she forged there's been a trial there's photographs of her in a bank going to a bank in massachusetts submitting refund checks which have the clients reported indorsement which in fact forged that's that's compelling evidence but but isn't isn't assuming judge will look plant is right that he given an erroneous instruction for a for the real question here the overwhelming evidence that that independently is against your client even if ms also was involved in illegal acts when you go through when the chaplain beyond a reasonable i think the facts in this case are compelling that's that's that's my position i have very little time left i'm not going to say too much more about the instruction except that even able to fully exploit that becomes position is i was able to argue argument is not the same as a jury instruction just briefly with regard to the i r s agent that goes to count eight as you bad acts committed by a witness both some of which are impeachment and some of which come in a subset of evidence how does a court trial the lie about which which of those bad acts can be used as substantive evidence in which are only used as impeachment because of course it mainline travel which went to the opportunity to commit the crime and went to where the she was the criminal that i think could be use a subset of evidence i think where it gets a field is when you say well before she came to work in mainline travel she been involved in some fraud if eileen's and then after she went to work at mainline travel she did some other different kind of fraud those are so far afield from the actual question of the case that that's no different than saying hey that person over difference between those two concepts i mean the idea is she was that mainland travel a gauging in thought that's if you mean the closing argument in this case you're going to see that the argument that was made she was doing this at mainline travel she did this to previous trial or recognize that he was wrong in giving that limiting instruction and limiting it to identity and whatnot it seems to me i know you spent quite a bit of time in the brief arguing that  isn't right that in fact there wasn't overwhelming evidence independent of that against yes i mean judge well you're exactly right i mean the more interesting presidential legal question i think might be where this verse for all four b line fits into this court's cases but the what standard you alton we decided to apply let me talk about those you had witnesses provide direct testimony who apparently did not a did not know each other but all knew the defendant and all said they net with her alone it over with no other person there and she explained to them how she could get them more money on the tax returns by putting false information on that return multiple witnesses in the only current cross examination of those witnesses was the suggestion that because they were not citizens they would try to ride to curry favor with the government unfair fear of deportation or removal so there was no real  rebutting of those eight witnesses now it was said it was pena that was the defense there's a problem with that defense that judge thompson talked about which is for at least two of the counts pena was going on there was a dispute between pena and the defendant when pena was visiting the dominican republic pena sent the defendant sent her sister down to the dominican republic to tell pena don't come back pena never does come back indeed and two of the witnesses who come in and who don't know each other and say the same events talk about the exact same events with the defendant alone in a row you take all of that together she she clearly committed to two thousand and eight ones six witnesses sit tell the same story about the two thousand and seven ones you can follow the money trail into the into accounts that are the defendants at that point i think you do have an overwhelming case against the defense because as i point out when i talk about count eight of course the jury can use evidence of one as to the other right so so when you take all of that together and know of real cross examination in that the pain the defense doesn't make much sense in light of the fact that this crime continued after pena left that certainly undermines the notion that pena was doing it in two thousand and seven if she clearly wasn't doing it in two thousand and eight so the government's case was strong in the you had these multiple witnesses saying the same thing the defendant's case was weak because the pena defense has a major flaw in it and the central of the of the error under this this court thomas era way of thinking about it it's not a particularly central error because i do think we can talk all day right about the propensity problem because it's interesting but at the end of the day i think there's this sense that when you tell the when you allowed the argument it that argument than the argument that was made which is she committed a similar crime while working in this place had access to these computers on which the crime was committed maybe had access to the bank account all that was made and yet that didn't and yet that didn't work and so now the question now the argument is why should have been able to say she committed the fight means fraud before and she committed the other fraud in new york after all i don't know that that is really as central as what was argued which was at me in my travel she committed this crime so that's the government's harmless error argument as to count eight i think i've already referenced the point that  even though the defendant the witness and i did not identify the didn't point out the defendant in court he did say her neighbors magdalna the other witnesses had testified that mag away was the person that they had worked with didn't make the in court identification in the story the version of events that melo told was essentially the same as was told by those other witnesses so i think the jury was able to say ok the magdalena that now i was talking about is the same person that the other witnesses may be in court identification and as to the summary witness testimony that i don't see that's a close call whether that that should it whether that those two points should have been stricken  there in tax cases this court has been a little more charitable in allowing summary witness testimony whether this is going to really qualify in the kind of complex case that this court has meant when it's you know put that imprimatur  why it's thomas because the jury had heard all this evidence already most of what the summer witness testified to was appropriate summary witness testified there were a couple snippets that are on the line but all the other evidence i've already talked