all right our fourth case for this morning is united states against the court and counsel the principle contention of the defendant is the judge chang should have determined whether the fifth amendment could have been properly invoked for each question proposed to be asked of the two witnesses rather than allowing the two witnesses to not testify at all now mr b l i know it's done that way a lot but it seems to me that you are making a pretty expansive claim that it that it's beyond the discretion of a district court judge in a particular situation simply to accord a blanket fifth amendment protection for somebody whose that's essentially what what judge chang did he scheme was something well known to the district court so he just says i'm going to recognize your fifth amendment immunity so is it your position that this is just never all right for a district court well i would that certainly in the context of this case and the particulars that are mentioned just a minute is worked such a harm to her to her ability to present a defense that it's not permissible in the context of this case at the very all you know of any case really judge to tell a prosecutor to give unity the the ability of the court to don't know what use is yet there but cited in in the brief in fact i think that hawks reserves that he doesn't find it and in the context of that case and the third circuit has said the same thing th courts have put this little asterisk off to the side saying we hate to say the word never and so maybe they'll be circumstances so extraordinary that then they go on and say but this isn't one of those cases and i think what judge of our sayings my impression is discretion based on whatever the individual facts and procedural posture of the matter for them is to determine when someone may insert  amendment privilege why would it ever matter that one ruled one way in a grand jury proceeding and another rule to another pursuant to a motion given that they both have discretion well then what i would say to that is in the facts of this case that judge chang has abused his discretion because we have a situation where these two witnesses were the defendant only that's for example this third circuit en banc which reversed the errant third circuit case that said that the court couldn't impose could require the prosecutor that that's why they work to the approach of you can you can't order the prosecutor to give immunity but you can dismiss the case if they don't in a sufficiently egregious situation so that's how they got around the separation of powers of approach  honor my answer to that is that that to a certain extent misperceives the role that witness is played in a jury trial which is if the defendant up there by herself with no corroboration and just giving her own version it's very different than if she talks about what happened and then two other human beings get up and elaborate and corroborate that because the issue here is not whether this fact is true or that's fact is true the question is whether the whether the defendant is credible in her testimony but the most that these witnesses could have said is we were present at these meetings the queen or whatever we're supposed to call her queen on se things but critical to this girl is that conviction is her knowledge when she signs this tax return and she claims the three hundred thousand dollars refund that she arrangement whatever neutral word you want to use but i don't see how they is zero in on the critical issue of this case which is what did news gurra submit to the i r s why she violating the forms and they had to sign this whole stack of forms and and i don't know what the witnesses would have said about whether they actually read the forms when they signed them and if they did   the indication of what the information was who was going to the i r s that would make that more credible if the witnesses had done the same thing when they signed their forms i i mean  i mean we have the same thing with mike propensity except it's false that it should be same because he's other people who aren't paying attention you have to think i wasn't paying attention either i mean we have the same thing in mortgage fraud cases all the time where you have the hud one in the and the person does the closing and all these documents are signed and did the person read the hud one and know that what was on there this is very much the same thing is that that's a common question in a in a mortgage fraud trial and it's the same thing here and if you have someone else saying i did the same thing the evidence and they didn't get the testimony of the two witnesses the decision time mister oh i just make one one more point and that was that it's our position that the witnesses had no need for the refund right we asserted that you know no one who had gotten a check from the i r s had ever been prosecuted twenty people twenty of these worst temple people had been i'm not sure how far that gets you i mean that would be like saying today in the world of the trumpet ministration if you're out there in colorado you should just get up there and say yeah you know i smoke marijuana all the time because it's legal in colorado and the government under the obama administration had a policy of not prosecuting if the state law made it legal but that may be a different view now i would just say i challenge the government and then they never came back and said yes we are nothing not going to precommit to prosecute yes they could and doesn't make sense to the government  prosecute you know those who received in the hope of recovering those funds before they turned to the prosecution of the rats while i don't think they ever did prosecute before or since the the rest i mean they they were they were only interested in what i mean the record indicates that they were only interested in the people who receive the checks ok i'll give you a full minute on rebuttal mr bill so if you're not yes questions  but it's up to the court right to decide whether we wish to do that or reach the merits absolutely are which is why we went ahead and addressed the merits it certainly is discretionary but under jacobs we contend that it wants dismissal in this case but turning to the merits but there have been a lot of cases like this that have been coming up this was quite the scheme that this morrish science temple was running and so it's not clear to me whether mr gore and might try to come back to the united states whether there's some more general benefit for our addressing the legal arguments here you would say johnson cases moved  you i'm sorry which i would you're not saying it's a moat case are you i am i'm not saying it's moot but i am saying under jacobson this this court's holding in that case there's no indication she's going to come back and we do believe it w so your honor so but turning to the merits of this case and i think your honor hit on a significant point and that is that here judge change the court did not abuse its discretion and just altogether accepting the fifth amendment privilege invocation and deciding that the witness did not have to take a stand off together because the court of course had discretion to do so but in this case it made sense because of the nature of the posture of the case namely mrs johnson in order for the testimony of either the witness to be helpful they would have had to get into what happened at the meetings and that of course on cross examination would have led to questions about their own kind up in that meeting and their own now leads and things they did and heard and that would of course lead to them incriminating himself possibly on cross examination so the judge did not a things you know have been done has this been prosecuted for any of these crimes has she been a witness in any of the other certainly did she admitted that she did submit and we did have evidence that she had submitted three on her in her name and mr bras proffered or at least to counsel he he through can also apparently ross was the defendant's friend and so counsel proffered that he also submitted one but that's the one you couldn't find right that's the one you could not find but of course on questioning we would have asked him that and so the judge did not abuse discretion in accepting that implication given that that would have likely come up on cross examination so he did not because it of course that precludes not only the actual question but it and it the fifth amendment also  understood to be better practice for the fifth amendment to be invoked question by question there are possible questions that wouldn't in any way implicate someone in criminal behavior you know are you a person who attends the  more science temple well yes you are no you aren't that i don't see why that in and of itself is an incriminating question i think there's two things that are important about that number one the posture in other words what we should be i was saying as i want these witnesses to corroborate more than just i attended but i was there at meetings when packages were prepared when tex activity occurred and so from a practical standpoint to get the corroboration to get what he needed from the witness what he saw from those witnesses that would have opened up necessarily given the broad ranging nature of cross examination so that's number one if they would have opened up in other words  because of the refusal to grant immunity and this is certainly not that case where there's no dispute surrounding the facts on which the defendant wanted corroboration and so the judge did not abuse and finding that he defended did not meet their burden to show that we by substantial evidence intended to distort the fact finding process so is it your position that the testimony of me that the testimony of mr brosnan is johnson  was essentially cumulative and that strikes me as a little bit harsh you know i can imagine a criminal trial and of just the defendant stands there and says something the jury will think i don't know but if a couple of other people have the same story to tell it does bolster the defendant's story somewhat bolstering we we have now it is somewhat bolstering that if people say the same thing but in this context where there's really no dispute the government wasn't coming back and challenging those things saying that that didn't happen in that case we think that definitely militates towards it just being purely cumulative but the government wasn't standing up and saying for example there's a stipulation that the following events occur that would be a more attractive position to say well then we don't need this parade of witnesses to come through certainly there was no stipulation your honor but in closing the closing arguments we certainly acknowledged and said openly that the queen was involved the queen led the charge on these ten you yes i do thank you actually just you accepted this by point and we appreciate your efforts very much and thanks as well to the government we will take the case under advisement and the court will again take a brief recess