adult three around the line three which was decided about two weeks ago we both think and we assume you will think that the case needs to go back to a limited remained to the just a court judge to decide for her to tell us what she would i've looked through the relevant parts of the record and i don't know whether the government on our side just have a disagreement about semantics or exactly what's going on but the government seems to be taking the position that with regard to the questioning of mr holland and the questions of him regarding did certain people commit perjury certain witnesses commit perjury did certain witnesses lie and those were specific questions that were asked certainly appears that under this circuit's rulings those questions are improper and i think that they've been improper for several years i think the air is plain the question is was there some door opened either the opening argument that was made by tribal council which i've looked at and he doesn't talk anything about witnesses lying and i think it's important to look at the fact that there's a real difference between having witnesses for the government has to file one way and witnesses including the defendant has to fight different way versus saying to the defendant did the people who testified against you lie did they commit perjury it's not the same thing and in this case the case was contested there's a line somewhere in the the government brief on page eleven where it says the evidence was uncontroverted well it seems to me the evidence was controverted all over the place is that why we're here on this appeal is that the evidence was controverted about sixty percent of the a little more than sixty percent of the charges were he was found guilty on and forty percent or thirty seven percent he wasn't in the evidence appears to be with the exception of the counts that there were no live witnesses on the other ones we can't tell why they were convicted here real be here you know if you just if you  where did the prosecutor say something that really affected or we would have to conclude had sufficient probability of affecting the jury's judgment that we would have to play i get it it's a plane concept absolutely you're not perjuring yourself no sir so they all lie yes or now the later on exactly what the what should the district court have done there well there was no objection the ok there was an objection later on although based on the repetitive questioning and then there's a third instance also asking about it well the district court could have admonished the prosecutor the district court could have so response they give an instruction to the jury saying in this i don't think i would have said in this district a lot yes but in effect saying it's not up to the defendant to make comments upon it might be or or should say nothing of the thinks there's a problem and then just wait on appeal and then say oh you know i should have objected that i did then it's plain mean error the district court should have done something and it didn't and that's not the way we want the system to work  back and let air her in there not argue about it ten years later no absolutely we don't and so it seems to me that what the court needs to do and i think the court's been very clear we've cited i don't know four or five cases in which there were begin with well there are cases in which all the counts and up in conviction there were smaller cases fewer counts there was one that was a retrial but you know one of the problems with three trials and i've tried several is that the evidence doesn't always were i don't whether you want to call them that are whether they are the government is the victim but there are twenty one different people who claimed that mr holiday prepared their tax returns and had done the schedule c enabling and sixteen counts acquittal twenty seven counts convention  on several of the counts and i don't remember exactly how many there were no live witnesses but they were cast with live witnesses an acquittal so its credibility contest and i want to i think i've been struggling with something that i want to present to the court and maybe i'll actually make it clear this time because i've run through my head and i understand it but when i say it out loud i'm not sure i can persuade anybody else but let me give it a try and i and this is why we i think that there's prejudice in this case when the defendant and the appellant in this case is asked to comment on the truthfulness of prosecution witnesses is somebody is somebody perjuring himself there's really i don't want to call it a burden shifting because that has a specific meaning but to me it's change is how the testimony is looked at the jury can easily look at a complaining witness is testimony to decide whether they believe it beyond a reasonable doubt they don't have to believe that's perjury they don't have to believe it's lying but they have to believe the facts beyond a reasonable doubt the defendant can testify the jury can still not believe the prosecution witness beyond a reasonable doubt once the defendant is asked to comment are those people lying the implication is that the only way you can get an acquittal on whatever count it is is if those people are lying and the defendant is put in the position of making a comment about something about which he has no real idea he knows that the testimony isn't correct but he doesn't know whether it's lying or perjury that involves all sorts of other secondary factor is having to do with mindset and once the defendant is asked that his credibility is put to a test that's different from his credibility when he's testifying about what actually happened he the jury now not only is in a position that don't they no longer have to worry about whether they believe him or not on the underlying facts as long as long as they don't believe that the other witnesses but they now almost have to believe the defendant as well as disbelieving the other witnesses and it's a tougher standard and it's and i don't know whether i've made that clear it doesn't sound better to me than it  it seems i mean it just seems to us when the question was asked earlier to me which i have not sidestepping i just wanted to say that first is what should the district court have done and i think when we look at the whole system and how the system should work this court has been saying to prosecutors you can't ask those questions they are improper and they present a real danger of a conviction the problem is that i've certainly read that part of the transcript that rather defendant's testimony was never asked anywhere by the defense lawyer ever the only question the defense lawyer asked about a prosecutor lying was there's a question about whether one of the witnesses knew was trying to go out with her that's the only time all the other citations for the record there are no questions by the defense attorney at all if there were i won't tell you i won't be i wouldn't be up here i probably have flown up here from los angeles any prepare the did you prepare the tax returns this response of testified you prepare the tax returns did you did you prepare them no i didn't and that's not the same thing as saying was he lying he could have been the stake in he could have believed it because there was this there were you say it didn't happen versus mr x testified this why is he lying and committing perjury it's different and if we're going to have a court any case in which is a credibility contest any case in which  say in this case mostly what he said he said we're going to have a circumstance in which of course the defendant's testimony is not going to be the same and it's going to contradict other witnesses but that's different from saying give this person time and that wasn't asked by defense counsel so we we think that under this court's surest prudence the errors plain and then the real question is what you know what do we do about that and our position is that based on the fact that the verdict micro yes but but i want to point out we only really need to talk about that if this court says you know there was an error but under a plain error standard it's not going to be reversible but under an icy standard it would be this it seems to me that it's really part and parcel of the same argument and i'm not i'm not pushing the i a c here but it's i mean it is before you and i think that it certainly is an argument that can be made that of course and in fact this court even sadder earlier in the argument shouldn't it shouldn't there have been objections i'm i don't know what the and i admit this i do not know what the rule is in the circuit lawyer what's the rule here actually i don't know what the rule is on that well i don't know if it would have a tremendous impact on your argument i think if your lawyer i i don't think that there's anything else that's not covered by the briefs and i said i have about four minutes left i'd like to reserve unless there are other questions i'll be happy to stumble my way through trying to answer them but if not let me reserve four minutes thank you  please the court my name is jay while i'm an insistent u s attorney here in san francisco and i was the prosecutor below so i'm very familiar with the record here the question i asked heard which i now concede were  improper questions there's no question about it but it occurred after and i'll just use the convicted counts fourteen government witnesses testified each testified that the defendant had prepared their returns twenty seven tax returns were admitted into evidence twenty one of them contained the defendant's home address and or p o box on the tax returns the jury also heard of there were two of the fourteen taxpayers who agreed with the i r s to have conversations with the defendant recorded in those conversations with your part of the extra to record and you hear the defendant acknowledging herstein make sure he tells them please do not tell the i i prepared your returns tell them a troy use the name troy lewis prepare your returns and he was well aware that the returns had been filed with his own home and or p o box on them he was also aware that refund checks would come in and he also acknowledged having gone with one of the witnesses to the bank to cash the refund check by the way his scam was that he would do all of this he represented to some but not all that he was a former a which was a lie he represented to some but not all that he had ex i r s employees working for him and he do all this for fifty percent of the refund the defendant then took the stand he was really in a sense only witness the only defense witness his testimony he went through through his lawyer each of the of the of the eighteen witnesses who testified and in some instances his lawyer asked him now mr jones  in on in the government's case that he prepared you prepared his return did you i did not prepare his return your test your to be willing to correct your statement number over the course of defendant's testimony in defense counsel asked defendant at least twenty f the that the defendant mr jones prepared says he testified he prepared your return did you i did not he testified that he had never prepared any return other than his own he had no idea why his address was one on twenty one of the twenty seven tax returns for which we've got a conviction now that he had no idea this argument you're making i assume goes not to in the cage and but to previous correct your honor there was no can go through all forty three of them but but let me ask you just this as i understand it you haven't prepared one return it's listed on the schedule answer no sir i didn't i don't prepare returns except my own so we can we can go through the witnesses one by one but let me ask you this so therefore it's your testimony that all eighteen witnesses that's exactly all perjured themselves answer absolutely you're not lying are you know sir so they all lie yes  i ask the question of the time it was an attempt to kind of expedite the cross examination i should in retrospect hindsight's always great i should have gone through i think i should have gone through that schedule and gone through all forty three returns an end to this kind of repeated what he had done on direct examination i chose not to there was no object into it then later on at the very end of cross examination i went back to the schedule and i said to him this isn't page two sixteen of the exeter record now all eight hundred people that we called also that they had conversations with you by preparing your returns did you have those conversations never no never are right they also testified that they had some financial transactions with you about if you do have those conversations no no i did not then i said i had then asked the hypothetical so this is a page to seventeen so they would be lying if they made those statements oh yes yes sir and they'd also be lying if they said that you charge them fifty percent yes sir that's the extent of it there was no objection and it's my get i now recognize those questions were  error there were improper questions but given the plain error standard to review there was not substantial prejudice this case was not a close case despite my my colleagues my opponents contention it was evidence of guilt was it was all convictions yes and i'm only using that the of of the twenty seven there were twenty seven convictions of of those twenty seven twenty one had his name his address and or p o box on them finally knew that the that the guidelines were advisory and with respect finally the last issue on that on the restitution issue of the court ordered we agree that the amount of the restitution should be there should be unlimited remained back  reduce it by the penalties they were not properly it only could be tax and interest and there's also an argument that it all should the right the whole restitution issue should be remanded because the district judge must somehow discuss the factors on the record all that need be in the records or something to show that the court had it and had his or her disposal information bearing on ability to pay in this case the pre sentence report i mean it's not part record but but i read it and she discusses the pre sentence report at the sentencing as a whole discussion on the financial ability to pay and in the transcript the judge likes not to impose a fine because she says that he will be able to taxpayers and sounds we did and we reduce that by the recovery so so are the order restitution was a net figure and that's still the case i wasn't sure and i'm aware of at least i mean yes it was a net i think that with regard to the main issues other than the restitution unless the court ask questions of me i just want to talk very briefly about the restitution  it wasn't clear to me from what i reviewed that it was in that figure and that there were recoveries that were made from baker and for a billion or maybe more people and one of the things that that's going on clearly least i assume it is that the government would be trying for cover the money from these other people who had taken improper tax deductions and so so on constable e the amount of restitution is a moving figure or it's likely to be a moving figure moving downward and you know our our feeling is that there should be a rematch and the question becomes if the court agrees that there should be a ring and in terms of the restitution whether as long as the court below is doing that there could be an exception to amalie and i didn't mention that before because i was actually running out of time but if the case goes back and i'm not saying it will i'm saying you could send it back for arrest willing so the court could actually take a look at this at the same time if there's any if there's anything else that i didn't help you with the war confuse you with earlier i would be happy to try to do it again you thank you thank you very much