thank you good morning your honor may it please the court and any railton and i represent the defendant appellant rebecca by and like to reserve two minutes for rebuttal when the government makes representations about the scope of its case th representation matter in this criminal tax fraud case the government does not dispute that it repeatedly represented that only the ficek tax returns were relevant and that all of those relevant return had been produced but then after two weeks of trial on the night before it plans to call it th and final witness the government produced and sought to introduce forty seven dollars completely new tax returns the district court recognized that admitting the return would be unfair in light of the government's representation and excluded them but the court allowed the government to admit a chart comprising the most prejudicial information from forty of these new returns admitting this e specifically excluded the one thousand other tax returns that might have been an issue and the other a part of the spreadsheet itself and i'd like to talk about both of those points the government have to graduate may i ask you when the chart that you're saying your client suffered as a result of its admission then at trial yeah but the unfairness really keys to the fact that the government had told the defense had told not by you that the universe of returns at issue and that th specifically raised the concern that the government might try to use some of the approximately one thousand dollars other returns that she allegedly filed during these five years and the government in response to that said that concerned with misleading because quote there are not nine hundred and fifty dollars tax returns in the in the discovery but rather there are one hundred and sixteen dollars heckert and the government also said quote the tax returns relevant to this case and quote have been produced and are base numbers and that there's no dispute that those representation did not include the spreadsheet that you know contains the one thousand tax returns those but rather by additions and their argument on appeal it's that happening pervasively and so that's why they're saying that it was a fair response to an issue that was stand raised at trial why shouldn't we accept that yes so a couple  you know the government has the ability to introduce rebuttal evidence but it has to do so within the limits of what constitutionally permitted and the circumstances of this admission you know constituted unfair surprise so that issue of you know dependent names you know appearing on multiple tax returns you know that but how would that i think there's a price if you knew three dollars weeks beforehand that i've been having trouble linking these two points that you're making yeah that's what i'm having trouble with yeah so the i'm very surprised it tied to both the disclosure that they got the representations that the government made before trial which were you know explicitly that the relevant that there was a universe relevant tax returns that did not include these forty returns that were then pretty and it's compounded by the timing of when they thought to introduce that here on our point you know that that the issue of a part of dependent appearing on multiple tax returns in a limited way was it was clear from the returns in issue earlier in the case and the defense strategy from the government's argument is that the forty additional returns responded to the defens or allegedly filed during the five years at issue in the case the chart that was ultimately admitted contained information about forty of those returned and the crux of our argument is that the production of this massive luminesce and inadmissible at the time it was produced spreadsheet did not put by you on notice that the government would seek to use or might to use these forty returns or frankly any other returns particularly so in light of the government's i think the timing matter if there your honor because the district court found that that's offense was clear from the very st you know from the defense examination of the very st witnesses in the case and we would submit that it was clear even from the arguments that we make about the you know prejudice under rule for a three you know potentially forty four b argument a constitutional argument you're right that that the timing there matters and i think it would really depend on the circumstances in which in which in which they were produced the timing in which they were produced you know i it's hard it's hard to answer that hypothetical without knowing where in the case we would have received them but the reality  yeah i think i think the argument would be would be different they're right i think i think the timing here is is this a significant component the government representations are still what they are but the fact is that in the cases we have those representations continue through two weeks of trial and it was on what was essentially the last minute in the government that they thought it meant that i think your honor is right if the timing if the timing issue was you know dramatically different i would say that would be a dramatically different scenario if we were them before trial and chart government wanted one hundred and eighty six are on september th from the i r s in the process of investigating various issues and preparing for trial and produce those spreadsheets along with other documents the same dependent as tax returns admitted already admitted at trial during the course of the trial and the government lays out a timeline that in which it that specific theory had never come up in any prior discussion with the defense up to trial nor did it come up in the government's opening there was the st inkling of that with respect to that st government argument was that was developing over the trial it was at that point the government the specifically looked for dependents that came up in other tax returns filed by the defendant where there was  ruling and the chart was created very conservatively it only included forty return because each of those returns that were listed had a dependent that had come up trier dependent the government had not looked for this previously in the data it simply had not what the defense mentioned that briefing that the government had looked for multiple tax defense from by you it was something that was not raised in prior discussion that was not raised in the opening it was not raised and buys pretrial motions certainly the government  that the defense was going to challenge the element of fent but we had not anticipated this particular argument and there's really nothing out of the ordinary for the government to seek to investigate and review its evident during trial and respond to defense argument the defense of course appropriately have no obligation to reveal to defend the government prior to trial but the not focused on whether any of those dependents were repeated across different tax payers who had tax returns filed i've a defendant that was not something articulated as part of the charge conduct it was not initially part of the government's theory it was a point that would develop typically in response to the defense's argument raise the trial on you know rd party came to the defendant tax act that pretending to be dennehy and had gotten her to unknowingly file fact or turn it was in response to that argument that is that that the government that no there was not and just to be clear the two spreadsheets that were produced to define it were produced three weeks before trial it contained approximately a one thousand entries for different without you wrote so no there was no request the circumstances of when the evidence was disclosed and the cause the result that it had on the case which was a sea change unofficial dependent overlap you know depriving the thought of any meaningful opportunity to to respond to that then and that the government sort of argument on rebuttal underscores why the chart did not provide the fight with constitutionally required notice the government essentially no your honor we're not suggesting babsy but the government's actions and representation are relevant to the inquiry right so regardless of you know why the government made the representation that it did about what the univers indisputably contain hundreds of returns that weren't within that relevant universe so let me look at choir i understand why you think you're prejudiced here you just pointed out that the government is expecting you to know what they say they didn't know but if i understand their argument correctly it's that you should have known it because you were going to make a defense you were going to advance that defense theory that was contrary to what was shown on the charts namely you were somehow going to try to suggest that the do use the reuse of dependence that was minimally shown by there at the end was explainable and now they were able to show that that would be unlikely because it happened so pervasively why wouldn't you have snow from statements suppressed under miranda are admissible if he takes the stand and come testifies to the contrary he can't say well i testified that way because my i thought my post arrest statements inadmissible so here too the government had committed itself to not putting in these other tax returns but when you advanced a theory that was  returns and you had been given notice of it in fact even clearer notice because it was on a chart it wasn't that you had to come through them what why are you prejudiced you took your chances when you advanced the theory that you knew there was evidence that would refute yes but with a question there your honor really key as to what the government represented here the government how you're entitled to do that and that's where i'm having trouble help me out yeah i think i think i think it i think it keys to the representations because the defense is entitled to rely on the disclosure that the government made it a point a defendant's pretrial statement as a volunteer and the court found that to be protected potentially misleading characterization because the government didn't disclose that that that defendant had invoked his miranda rights before making that statement of volunteer the court found that that rendered the trial unfair and that the the effect of non disclosure with aggravated by the prosecutor's potentially misleading statement that that's same principle applies here if the government return doubling the number of returns in the case that makes the government statement misleading and the prejudice comes from this bias having relied in preparing her defense strategy on the government statement which is then flipped on its head at a point when she