award and the award was expressed in money but the award could be taken anywhere from zero percent cash to one hundred percent cash it could be taken in bits it could be taken in some combination  the almost undisputed evidence in this record and if all of the affiliates had decided to cash in there simply was not enough cash to pay isn't that the core factual issue in the case no because that's what the government's claim is but there's there's a number of responses that i think we have the first core response we have to that is that in fact in terms of where th lies with that argument the assumption is that that the program would have kept paying out of the same percentage even if everybody had requested withdrawal of whatever their amount was and are past the money was that mr burke's at the discretion he could award fifty percent of the days that prophets he could award one percent of the days that profit and the fundamental assumption that underlies that argument is that he was somehow required to maintain the same level of return and that's why there we think it's significant that there were so many disclaimers on the website that there were no it promises that would have justified such an expectation and that's why we think that that argument is not necessarily dispositive of the issue a ninety nine thirty seven day says it had to be fraudulent because they had one hundred eight million dollars reported on the ten on the ninth and they only paid out thirteen million in ash and paragraph twenty eight says the calends and tax attorneys out of that and out of their advice and approval with regard to issuing forms and ninety nine for all constructive income received and that's what we were trying to challenge pretrial we were arguing that contrary to what the government's legal position that the doctrine of constructive receipt was not only legitimate and established in tax law but that it applied here and so we just had two different legal positions the entire question of whether attend ninety nine to reflect actual cash to an affiliate depends on the resolution of the legal question of whether constructively receive income and be reflected on that not you know if if if it is true that the doctrine of constructive receipt applies here that you have to report income that is not cash you have to report income just because they could have taken it even if they didn't and you have to report income the reflects the fair market value of this but all of that i think the district court was concerned that some of those issues simply be quiet some factual analysis which takes this to the point there's no dispute that in terms of the elements of the offense they were clearly articulated in the indictment and so the district court dealt in that you had to get evidence to determine whether or not there was a charge at a trial is all about the way i read that just the court's order is that the district court interpreted this as purely a question and i think that's what the governments are going after too i think our position is that that the the fact that you had to get into some facts did not obviate the fact that you still have the question raised by the language of the and i that the miles opinion itself protects against the initiation of criminal proceedings on on the disputed tax issue and that in fact if this is something that has to be decided by a matter of law as a matter and so i understand that the government has the position that we just said too much we went too far we went beyond twelve we had this tax of lawyer analyze the program from the website i don't know where that meaning what that means in of itself but it were legal arguments in the motion itself is nothing more if you put aside the exhibits the motion is nothing more than legal arguments about constructive receipt and so the district court said no that is just questioning the proof we felt otherwise we hope this court finds otherwise so i mean we weren't saying the government can't prove its case we weren't saying we had a defense we were saying that to the extent the indictment alleges that application of the construct receipt theory was fraudulent which it explicitly says that that is premised on a legal theory that's not right that we should have had a decision that we should have been able to dispute in the district  so i interpreted i mean i'll demotion and i've been doing this a little while and i interpreted the judge well and i interpreted your opinion that mean that this is something that a court has to decide is an issue of law and that is is something that if it isn't fact protects they get if it is really in fact a due process protection against the initiation of criminal proceedings because there has to be fair warning that a court should and has to decide it when it's called that was attention and we didn't making similar claims that we allege here courts i mean there is definitely someone else's of some act somebody they're not dispositive they're not from this circuit but we decide a series of opinions where a district court judges get a motion like the one that we've filed and they  do delve into some of the facts and then they make a decision and there's even the court from west virginia that you know it goes through the m r process with a magistrate the district court reviews it all before a jury is in now so we didn't think we were too far out of bounds in asking the  district court to do that in this case so i understand the government's position in part to be that that you know as long as the indictment tracks the elements of the offen would you still have made the argument to dismiss yes we would have made it because there was no evidence that this was up for evidence is what you find at the trial this again at the meetings today had they simply alleged as the overt act to support count or this they set up foreign bank accounts and they used these wallets and would you have been is able to come in and you don't know what we would have we would have been less able right it's hard for me to answer the question of what we would have done it's the constructive has it right yeah it because that led to so much of the of the evidence that we think should have never come and so we were definitely focused on and i will i will be the first to admit that that overt act to be is  we think that's problem attic for another reason which is that there was no evidence and that there was no argument and and that by the way is the court's wondering when when the verdict came in but we did the jury created their own special verdict we didn't request this was but it's what they did and when the verdict was read it was just right so we didn't even know until months later that the jury in on this little bit of background so but i don't think that the case law saying that rule twelve of us list is limited to listing the elements renders moot the obligation to consider due process i don't think any case stands for that and i don't think as long as long as worse there are making an argument about missions i suggest to the court that we are complying with limits rule twelve and in terms of sufficiency in terms of what actually happened there's only one witness who testified about what actually happened with the generation of th said i've been so focused on getting this done i forgot we attribute ten on the nines and so what happened is i had to quickly figure out a way to get the awards so i wrote a program to do it so whether they got the cash out and they will or they chose to use it to repurchase it didn't matter it was still just the award that was made and that's the only evidence there is no evidence of conspiratorial agreements with election axis which is of course what we normally see and that's why i think there's a disconnect between what the government the cases the government sites and the facts of this case because this unlike most tax cases is an allegation of a client conspiracy to report more taxable income to walk wires the entire theory of the is that it was done to legitimize a fraudulent scheme but what's absent when you have a fact pattern like that is something that would show in the no witness certainly allege that there's nothing that i see it that supports and prince that what they were really trying to do was the was to impede the i r s and so what in this move by opinion you are permitted to make inferences but what you have is one person after another over a ten year period making false statements on forms i ninety about charitable purposes so they can get a tax deduction when really they're there to foment jihad and the gambling opinion is yes there's an element of not having good books but there's also falsifying to be used to hide income and every single strategy and how you focus this deal that is the get rid of count or i mean you still have these other three counts of conviction right the sentence imposed on count four runs concurrent with those other three sentences and as i believe that's even  that most of the evidence as these can ninety nine zero and other issues would not come in the government has argued that whether cow or was there or not almost everything that was presented trial would have come in anyway and i think you need to address it fundamentally the allegation which they make i'm and i'm again even in this court that they were misrepresenting actual income to the tune of seventy million dollars this if if you believe the government's theory that's a very very bad back in a case where there were we thought was pretty close we thought we had evidence to rebut each allegation lee and i and just to give your honor one sense of my last that he said you know profit we put up a c p a does a regression analysis who says now there was a near perfect correlation between profit and what he actually paid out and so there's no what you would normally have in a profit is the law and we felt like we were in a position where we were able to present evidence that suggested that maybe there wasn't the life that count was a big lie on a very disputed tax there that's that's the impression that it created and that's what we think we got wrinkle but i want to make two particular points about that first of all the offense does not require a exactly that the i r s be a victim it requires that it impede with the proper assessment of income taxes which it did but the second point which is perhaps more important is the united states put on evidence that mr burke's didn't file tax returns by his shifting all of this income to his victims that necessarily reduced yes i think that the causing nine thousand improper tax documents to ninety nine stevie file necessarily impedes the proper assessment of income tax period full stop now in addition to that it happened of help to mr burg so i don't it is there is an unusual wrinkle and i will grant the court that but i think that the united states charged this offense because it know it doesn't touch wilkinson and i'll tell you why i would refer the court to page twenty five eighty two in the record the defendant himself admits that in two thousand and eleven is company brought in thirty six million dollars and that they couldn't that they never they reported it because almost one hundred million dollars to be reported it didn't require that everyone come in and automatically request that money we're talking about a year tax year two thousand and eleven the company brings in thirty six million dollars but somehow all of these individuals report a total income of almost one hundred million dollars that those two things can't be true that is a lie that is false and that is why this is it didn't you know this this count doesn't actually require anything about everyone coming in to request money all at the same time it's figure how much money did that company bring in thirty six million dollars then they couldn't possibly have had to report constructive income because constructive receipt of income because there was a substantial barrier they could never have gotten all of the money that they had to report on those to ninety nine and that's why some of the victims called up and said how can this be i never got any money how could i possibly have to report court a thousands of dollars of income to the i so you know i this is not a that the constructive receipt issue and i want to address the motions to dismiss the united states does and that never thought there's not been  about the contours of the constructed in malice the primary case that they rely upon for the motion to dismiss there was the united states actually admitting conceded in that issue that treasury regulation was unclear as it applied to the defendants conduct that's why there was a due process issue there's no due process issue here because everyone agrees on the mall and if everybody agrees what the law says then a decision on the motion to dismiss necessarily requires that we get into the adequacy of the proof and that's not a proper determination mr ten says well we thought it was ok because other district courts have looked at em well fine but in those just the united states did not say district court by the way this is a rule twelve emotion and you can't really consider anything outside the four corners of the indictment but so the so and even if it's ok for him to ask the district court did not err in denying that motion and that's the issue before this court is did the district where they are now whether or not he had some basis for asking the district were properly denied that motion is this so let's look at the sufficiency of the  chen says that only one he has one at one government witness stand all of this is how it happened this is how those ten ninety nine s were first of all i note that the ten ninety nine issue the jury appears not to have even necessarily thought that it's because they created their own special furtak to relying on on other evidence but the united states presented multiple witnesses it wasn't just dan all of heiresses testimony to him anderson person who approached rather the person who prepared the ten ninety nine she testifies he came to me i talked to him i talked to her that's who she was in communication with that's how that's and ninety nine is her prepared than all  years well presumably terms of terms of yeah it would be that if i assume it would be the end come that was shifted so if that was real income and thirty six million dollars of it at least was income then by shifting that to be as income to the victims he doesn't have to report thirty six million dollars as part of his past year and for two thousand and eleven it got much worse in two thousand and twelve we never got to the point where they were filing to ninety nine and by that i just mean that the company kept bringing in you know more and more victims at the end of the day it cost seven hundred fifty five million dollars the amount of station that's how much investors lost so there was evidence there was more than sufficient evidence from which you're reasonably find an agreement overt acts and an intent to impede the i r s but even if there weren't even if somehow count for goes away the amount of evidence and your honour's have seen this very long record and this was not the only lie that mr burch told i'm afraid the government presented loads of have events about the lies he told about this program the money that they was always available he says fifty percent of the profits were always available to dole out and that they gave out about fifty percent of what kamen that's what kamen does equal warrants but what was mr  everybody they're not relying on rewards money because that would automatically be a ponzi scheme we know that's unlawful they're saying the ziegler options which lost at least four million dollars that that's where all this three point three billion dollars came from so there is no income that supports the assertion that fifty percent of the income that paul kirk said where was coming from are options no the income they're referring to is the ponzi scheme so there's a lot of there he just he lied through out about the nature of the scheme about where the money was coming from about how solid his company was in the induced investors any nine evidence is actually relatively small it's only you know this this trial transcript is somewhere around twenty six hundred pages and i think that the ten ninety nine evidence is a couple of hundred pages  it's nothing compared to all of the other evidence of what that went to the substantive it's the fraud it's the three fraud so even if somehow this court were to hold that that shouldn't have been presented and again though we exist they were reporting affiliate income that's well income even to the company the company only brought in thirty six million dollars and according to the ten ninety nine s they were reporting almost one hundred million dollars so even if we take out sort of the impact on her we have them reporting income that did not exist in the year two thousand and eleven and that is impeding the function of the i r s because it is necessarily rich having the i r s assessed taxes based on income that never existed so it's not just that it shifted there although it did so i often wonder why prosecutors add these outlier counts when you have such a strong case on the the mail fraud wire fraud because what you've done in this case is created all of this extra noise and opened the case to vulnerabilities the argument that by letting count for stay in the case evidence came into might not otherwise have been there and we have to evaluate whether or not that quantum of evidence was enough to perhaps have made a difference in the jury's valu risk here we weren't putting anything at risk this tax count works we charged it properly we proved it and i would suggest we proved it in a number of different through a number of different witnesses and explain had thirteen different financial accounts and this was evidence that was presented at trial thirteen financial accounts all these the wallets that happened and no record keeping about income and expenses no balance sheet  says they had all this terabyte of information yeah they had lots of information about how much false income they were allocating to their victims they had not one iota of information about what what it cost to run this scheme or what the income actually was no balance so that government's evidence that related to the wallets was related to the failure to keep financial accounts which and combined with the fact that mr burke's never filed tax main argument was that their main argument was that it should have been dismissed right as a matter of the indictments that they all are responsive argument was this was her very proper charge in terms of the exact elements of the statute and i don't know that you can you can argue that dismissing  evidence that was extra evidence beyond the indictment but i do want to be clear and fair to mr parks that they are challenging the denial of the motion for judgment of acquittal as well so they are they are they are arguing more exactly and that they did they they brought in this opinion letter from a tax attorney who was not well informed by the way about the nature of the scheme what was happening and they brought in this letter of the tax attorney and referred in their motion to the opinion of experienced tax counsel and they know that in the indictment we we mentioned the fact that they were brought in because they were trying to legitimize the scheme that doesn't mean that we've opened up ourselves  actually was i don't remember mr chen will know this he tried i want to say at least a couple weeks two to three weeks is what i believe it was a long trial judge cagr and took a lot of time with this evidentiary objections and he is the you know this trial went on this long of a somewhat longer record and the only objection to the conduct of it is this one of the objections which was wrong right and a district judge who's just enormously conscientious calm half the time it seems to me you know at the end of the  just it just from start to finish nothing about it passes the smell test and that's where the jury that's what the jury the way they understood this they understood what was going on i think so i mean i think their furniture he actually reflects a careful review and i think that the defendant got a fair trial as evidence i only one challenge to the way it was handled in terms of the we may have to try this case again and we court of that from the record it's true that we had a three week trial but we had a lot of evidence on both sides and in the facts and then you shouldn't have i'm sure it should have been put on a fare to fail that's right but what we're complaining is that the due process violation happened before trial and and we're also in the planning that the count never had sufficient i'll rest on the briefs on the one of six issue but that's that's  right we're not saying we were prevented from presented presenting something that we should have we didn't read any of those issues but what we are saying is that in a case that really was clear that that mean you've heard this argument you can i'm telling you what you already know which is that every time they say the time many millions were false our response is no because of this tax doctrine of constructive receipt that attend ninety nine may say that we're on the same page now with what requires but every time the parties disagree about what it and i mean i'm asked to report that's proof to the court that we're not on the same page we were on the same page in the trunk work or trial we were on the same page in front of the jury on the same page now and that's the issue that we we think this should have been resolved under rule twelve and that the seven should have never come in i do want to address the argument that our our client somehow saved