in this matter with the court's permission the first issue that's before the court is the question of grand jury has the presentment and the issue here really touches on an age old fundamental question in the history of jurisprudence and that is is ignorance of the law an excuse and normally under almost every circumstance under the law throughout the history of american law the answer is the no ignorance of the law is not an  of the for trial regardless of the jury verdict regarding let's go the forms of verdict that were submitted to the jury guaranteeing that the jury's verdict was correct we have to look at whether the indictment was presented because the fundamental right to a grand jury presentment says we can never have a dispended tried on a charge where the grand jury did not pass upon or even risk that they weren't even presented with all of the elements of the offense navy maybe you can help me i just have great difficulty seeing how you get beyond the indictment which makes the proper charge yes the indictment didn't make the proper koenig's perhaps you c say well the green jury obviously nest stuff because it didn't charge a crime but here it does so i so much there's a problem the issue isn't whether or not  well the issue is your honor did the grand jury know the special definition of the green jury return in an indictment which on its face said willful and you just defined what's wrong with that convict gone where the counts involving mr whistler's own returns and of course the issue in the case was what did mr whistler know about the deductions the representation of things we can be certain about the government appeals and quibble prejudice that is caused to the defendant is an analysis that is applied when the defense does not raise this issue before trial there is a completely different standard of review when the court reviews it after trial and what the court cases say is here we look at the indictment and if we can fairly assume from the language in the indictment that the grand jury was properly instructed they were going to say no prejudice and they're harmless error but the cases that say when this was raised three trial you both for example state that prejudice is not an issue this is a fundamental right that was that was taken away from the defendant seems to me as your proposition were correct in every single criminal case whenever a trial within a trial to try the evidence is presented to the grand jury to see whether they had sufficient evidence to indict and that is not a lot well you want to there's one that's what you're asking for i respect there's a very easy way to tell whether the grand that you can do what you're asking if you think you can get access to the transcript almost as of right and you can look at it and you can file a motion with the spurious court and say that they didn't hear enough since if that there is no such right no such right in the fitness well there is a right to disclosure of the grand jury transcripts when the defense can make a showing that there was error at the grand jury and the error is just in the air was the failure to present the elements and to ensure that the grand jury in fact passed on the proper medal how do we know they feel that well your honor in the motion that we made before the trial court we said look at the indictment this case involves the specific allegation  defendant knowingly violated intentionally violated a known legal duty cheek takes this out of the realm of ordinary willfulness which was alleged in the indictment ordinary fraudulence which was alleged in the indictment which can be proven by lesser man's r cheek raises the bar and we stated look at the face of the investment it's not there and moreover the government has never once come forward and said this evidence wasn't fact presented to the grand jury so there's a there is what we have here is a giant question mark hanging over this court the lower court and what we're doing is guessing about what the grand jury passed upon makes very clear that we are not to gas because i'm guessing creates  and that risk is a violation of the grand jury presentment under the system  the next it's you well we talked about the request for the grand jury transcripts like to discuss not the next if you but the issue concerning the introduction of what the government refers to as summary back to the jury room to aid in assisting the jurors deliberations we've submitted that it was fair or on the part of the court to even let this summary witness testify in the first place because on how the jury should view that evidence for you provided you know this of the government's intentions the use the summary testimony we were so we knew in advance well we knew in advance the government intended to call a summary witness i'm not sure that we actually asked for a continuance but we did object to the admission of the charts not just on the timeliness issue but with the contents of the charts and summaries because they were unbelievably prejudicial and conclusory there were statements that you offer your own expert yes we did you with charts you know and of course our expert was offered for a very different reason than the government offered there is our expert was not to summarize the testimony it was to provide legal opinions on the issues of fronts that that existed in the cross examination there were challenges to the accuracy of the figures because there was a discrepancy between this witnesses who years and prior figures that the government had come up with one of the big problems we had was the unique nature of th testimony from the government's perspective because what they did is they said they put a witness on the stand who wasn't involved in the investigation of the case he was sitting in the back of the courtroom for the whole trial listening to all the evidence and you know mean i'm not remembering exactly this specific so that it's possible that we didn't invoke rules regarding him because there was although i'm not sure your honor i think i'd have to check i think that we did but i'm not one hundred percent certain what i'm certain of if they had he wasn't the sole case agent involved they had other people at counsel's table but your honor this is a situation where he was where the government said to the jury we've got th very sarcastic in their performance presentation where they had words that were in quotation marks for example the words management were in quotation marks in these charts and of course one of the issues was whether the management fees or proper presidential testimony come pounded by these prejudicial charts that weren't summaries they were summaries of the government's closing argument and then the judge adds insult to injury and admits those that substantive evidence which we announced that was presented at trial but i don't think that's sufficient to overcome the weight of having a government witness who was in court through the whole trial and said i sat through this evidence and this is how it should be viewed and then giving those to the jurors for them to refer to during their closing argument and this court has repeatedly said if you can't do it you shouldn't do it it's not proper that's and that's united states versus  other issues we have courts are multitude of sentencing issues and what we have here is a situation where many of the enhancements were challenge based on sufficiency of the evidence and then we had the blakely and am leaning rulings that came down in the mean every taxpayer is entitled to take advantage of loopholes in matters like that and since the new code is so complex that they have to show the government has to plead to turn it to the grand jury and and the jury convicted and the jury convicted but the united states supreme court far back as karl said that those words have to be clear and have to have not have ambiguity if you take a look at this  court's instruction for example under one thousand and one where the statute statement statutes uses the same term willful it says the act only need be evolution of the word not have that kind of clarity that the supreme court and this court has required in the past the fact that it's that the indictment itself used the word solves or used the word specifically knowledge we know that the words were it was illegal it's just that simple and that's why we've alleged that issue and we think it's a lot stronger than apparently these courts indicated but that's why i feel compelled to come up here and speak with me we certainly understand the argument