i'm going to ask you have now the material that was submitted but i'll do it after you know we get going so mr brain your up verse and know that you found out or somebody motioned warning additional time and so on and so forth but we sentence of we believe she's been wrongly convicted as a result of insufficient evidence of violation of her right to confrontation the withholding of material exculpatory and impeachment evidence and then wrongly sentenced based of as a result of a lack of evidence allowing the district court to reasonably estimate and that's out of sleep the standard for loss reasonably estimate that loss count six charged is bolton with willfully signing a false tax return for the year two thousand and nine she wrote loans on checks for that your totaling around fourteen to sixteen thousand leading up to trial there was a question on whether the government would rely on writing loans on these checks to prove that something was false in the two thousand and nine return but at trial the government's witnesses accountant renee moore and agent luker made clear that the government was not relying on those loans that instead the government's case as to count six tax year two thousand and nine was based upon cas checks but the testimony about cash checks coming from agent luker established that quote most of them were endorsed by charles bolton and the government was unable to tell  the jury who the other three endorsements were signed but so there's zero evidence that ms bolton signed any check over to cash as for two thousand  leaving the oldie of an answer as to mr bolton and again it's only about the cash checks not about any loans when it comes to two thousand and nine and that's her argument that count six has to be reversed as to count six through ten among a couple of arguments ms bolton reasonably relied on a tax professional and had no reason to believe the accounting firm was reporting things falsely the testimony especially over a name or but also agent luker here again a stablished that ms bolton wrote the word loan on items and submitted them in two thousand and nine and the accounting firm the nicholson firm treated them properly as income all of all of this argument was very vociferously made in closing argument to the jury yes and then the jury returned to particularize verdict so the notion that she was never told by them and never explained to them that was fully presented to this jury and are obviously we understand that the jury verdict went against visible but our argument is that the it takes an inference upon an inference to get to the point of finding that she's willfully signing the document knowing it's false if no one's to approve ever approaching her and sending when you say well when you write loan what you mean by a loan do you know loan makes us do  i think it's particularly salient that no one approached her between two thousand and nine and two thousand and ten to say you know what we're completely changing our practice used to give us something that said loan and we treated it as what it was income who is that what was the name of the accountant before renee that she claimed had said it because it was bolton stated at sentencing that it was a male and she could not remember his name the government's case did not present the name of that person so the record shows that it was a male right was violated when the government presented the testimonial statement of attorney john leaves through agent luke or the government's two arguments before getting to the merits and i respectfully submit that's because we have a really good merits argument here is that plain error applies and that we've somehow waived this argument plain or does not apply because this arg i mean plain air and this court is leading when it comes to making clear  don't go there it was the defense counsel the decided to go there for it appears like a tactical approach which was defense theory is missing mr levy is the one that's really guilty here and the ledger is with some communicating us but you can't believe not bound to it it's angry at the at the bar that the statements of bar implied that york i don't know if it was you that counsel was in accord with this attack on lee it was not me but i believe the context of that question shows that the attorney is trying to clarify what the court's ruling is remember the district court was asked to rule on this question was looked like he was going to go and allow the evidence in took a break and came back from the break and then there was still back and forth the judge made a ruling and ms bolton's attorney said so the evidence going is going to be allowed right is that the ruling but clearly the attorney norm is bolton did not dissent or object at that moment i have to say that's true or not at that moment but i think it's still not playing air because of the two and then the post judgment we also submit that material evidence was withheld i see that the district court and the government want this court to didn't get it so it's that paragraph in the p s r you say contains brady or that's correct and at that four paragraph is pretty incriminating because it says least said i didn't even ask the questions i just gave them money and yet we didn't have the opportunity to cross examine anyone or even judge agent luker based upon that document to show that that statement that mr lee says all two hundred seventy three thousand dollars that all of it for sure is food and services yet we have a document that says i'm not even sure and i give sit on in jail based on the evidence for the individuals now been convicted of following the hans vaults tax return is that affirmation that the government used to convict based but recognizes case built on eighty because it was directed by the court to have the hearsay and what i mean by that there is a bench conference in which the court says in and age of lucas question what he can and cannot say try to understand the lay of the land  court system to tell you something different it was written on the checks it is kind of looking at the judge she says go ahead says lee told me the checks are for food and liquor at that moment in time instead the court saying no that's not what we mean that's hearsay the court says continue to go ahead replied as in reference to hey this is really what happened there never wasn't a waiver and so that's right use abolish different in this case we also see we have a brady violation not only did the government and one time focus on john late as well as mr o the government then begins to have an investigation into john lee and we know this best geisha into place in march of two thousand and fifteen and once again the government didn't provide the three octaves they were suppressed and was information we say was favorable but yes there was a small segment in there was very fair because what the defense attorney could have done with three o two is looked at to find out is there an investigation what other information is possibly you knew there was an investigation he knew that there in your home closing argument was built on the fact that lee's being investigated ladies and gentlemen he's the guilty one not these guys but it was but it's also has the opportunity to have more information if you receive that donor more information is that he said i can't  identify which check on where exactly he says in the p s r he said that because they showed him a spreadsheet but i just sense before says i'm looking at your spreadsheet i don't know how is that inconsistent with anything agent like luke or testified verbatim that that p s r paragraph would be in any way inconsistent with he said all the checks are for liquor as well as food all the checks means all the money at that moment times for liquor food and you could have the impeachment with that to go to your o however in looking at that shot if we do not necessarily that would give an opportunity for defense counsel follow up with an investigation and so many other ways so many directions we do reckon not to dismiss information as material but the court did not give the correct standard  test for materiality without us really big and now the government is even said hey let's send it back with a chance and to back the reason we can sniff back unlike before now we know that john that mr li has a conviction for tax fraud you s likely or not that this would lead to the conviction you know over time which we know is going standard and at that moment in time your honor when you look at that it didn't even do with the proper size analysis because it into the proper analysis even the government has made it in their brief there has to at least go back we're arguing that it cannot go back because now i want to totally different position because before looking at b issue in the office of materiality it was argument you're not pursuing that here yes we will we have that will pursue my correct that your client handed the checks from lee to mr l and so he knew it lee was paying for his representation haber's is your statement to us that there should be an exception or said another way that this record is so complete that there's reason to to look at that issue in this context as opposed approach to its client because of that i think this is something we've asked the court to address charges right so this was a hard case for the tour there were allen charges and the jury asked a question about willfulness and i wanted to clarify that i'm not sure our brief says what happened after that but immediately after the jury asked about willfulness the judge read the willfulness instruction the to say and the two substantive instructions these are thirteen fourteen fifteen taught to counsel and he told the jury to read we read those he told them to read those again that's a twenty seven sixty six of the record so they heard willfulness in three different  and signs some of the checks and that she didn't do it in two thousand and nine doesn't doesn't mean she didn't know about it i mean she knew she was signing checks herself throughout the course of use of cashing cashing out checks and industry taking the cash and running with it was part of the pattern a consistent pattern over the years the jury could also in er that the reason she didn't get money from the loans in two thousand and nine was because she didn't get away with it she did write loans b customer checks for liquor from the liquor store and food from the rest rot she just didn't get away with it that year i in that year the boltons had to pay  pay taxes the following years when she did get away with it they got refunds so those were all cheery calls as your honor pointed out and the jury heard all of the evidence against m and the jury could use its common sense to infer when you're cashing checks for cash and you are writing loan next to talley's you're giving to your c p a you're trying to avoid paying income tax by turning it turning the checks into cash or hit the books and by marking customer checks as loans and we had five witnesses testify that they didn't lend potence money they bought the government liquor store and food for the restaurant so there is a lot of strong evidence you know on the loans honest businesses to stop some some not at issue here don't deal in lot of large amounts of pass and they don't have a pattern of underreporting and they they don't he was going to take the fifth he later pleads guilty but somehow his statements come in so confrontation cause violation or somehow his statements get misconstrued and we don't know about it brady violation  then also levy is the behind their ineffectiveness argument because their claim is that he's working with the government but at the same time he's paying for the trial attorneys so the trial attorneys have a conflict and they're ineffective so leaves role is sort of central to most of their arguments that the district court mishandled had a result that if i'll allow you to may have to remind well here's the question then i guess the one that concerns me most is the ineffectiveness one so do you agree that since there were new trial proceedings on this the issue is presented to us ineffectiveness the record is complete and shouldn't be pushed off the because you haven't argued that in your brief view there's no evidence rehearing in the other typical things well let me just clarify a few things about john lee he wasn't a government witness in fact at sentencing charles bolton got up and under oath he said that he had been meeting with john lee up until the very day of trial and that's it twenty eight sixty of the record so with in terms of brady since he's meeting with the person who made the statement as he said at twenty eight sixty one we think that he can define some diligence what the statement was we also agree with judge higgins and that there's not a lot in there that could even be with a lot of imagination construed as helpful to them and there's a whole lot in that statement that is very helpful to the government and so you can't really fault the usa is for seeing all that really helpful stuff and  making the middle contortions that are necessary in order to find something positive for the defense in there but the biggest thing is john lee was thoroughly impeached and he wasn't a witness to what what we did is we use the business letters and we got those from his firm not from him and the business ledgers themselves were thoroughly impeached in the sense that the government asked about john lee being under investigation the defense asked about john leaving under investigation the jury was told that he exercised his fifth amendment privilege not to testify and the court heard that john lee was using business to duction which as far as the boltons were an issue here he was using business deductions to pay for our twenty five thousand dollars worth of fine store here and he won the ineffectiveness their argument was we've got newly discovered evidence that our our attorney owen had a conflict because he was being here he's being paid by the guardian the government gets a guilty plea well that's the essence of their argument and your answer to that is it is it true that charles bolton was the one that was handing the checks that was the question i was asking opposing counsel twenty one discovered this as of april in may twenty seventh cheney well the district court found that a little hard to believe and so and that is for the conflict of interest he knew from the get go he might have held this out and sandbagged with it but he knew from the get go that john lee was paid to represent him in the and he also knew he was under investigation he did and that's why  have later on in this in this case and another buddy of theirs karl nicholson was also at the at the hearing i'm sorry the interview with the theater was generated confrontation clause as to miss bolton would suppose and stevens apply to a codefendant you understand my question i do i haven't found a case but i don't think that you need to reach that because well we interpret her council statement as to charles bolton's asking the hearsay question as encouraging is that he says he can ask the question loop or he can their theory was it's not believable that two hundred seventy four thousand dollars is spent on food and liquor and they after asking the question about the two hundred seventy three thousand dollars  charles bolton's counsel said that's a whole lot of ribs now isn't that so they were using that to impeach the ledgers you know that and the documents that he had who john the really they wanted and that was that it doesn't doesn't come in and then the defense argued to bring it in and says like i said linda bolton's counsel did not object whatever he was saying it was not an objection so cured not only by the written instructions but even by the instructions that he was giving orally to the jury because number thirteen is the general willfulness instruction and he did say it's a calm to evade the law basically which would seem nonsensical and i have seen writings that say it's if something just makes no sense whatsoever  you don't have to you know say that the jury believed it but the the other two things right after he said thirteen which was the definition of willfulness he gave the two substantive instructions tax standard and then he gave the written instructions to the jury and the jury asked a question about willfulness and mediately after that he met with counsel and she told the jury to go back and reread instructions thirteen which is willfulness fourteen and tax evasion and fifteen both of those also having definitions of willfulness in them and you'll find that it page twenty seven sixty six the written instructions are a seventy three zero nine and thereafter and when the jury is told go back and with telling them that it's a crime to obey the law and which was a slip of the tongue a transcript description here i mean nobody would say that on purpose and when it didn't mention materiality in the brady context and the district court in is order and that surrounds page three seventy one of the record on brady at first state standard that was used incessant bagley and that is a reasonable probability of a different result that would call into question the and heavier confidence in standard so he has both of those in there under any standard and this is the three o two is not material but we did want to point out to you that there there was that instance where he did mistake the standard at the beginning of that particular order although he thought it corrects later but regardless the three o two is immaterial the p to say that resolution doesn't start immediately but it starts at the beginning of the supervised release term and i'm sorry your honor  typical closing argument there's nothing that we're just telling the jury to look it up on google this lieberman didn't tell them that she said she was talking about the testimony of the air national guard sergeant who didn't know what a temple contribution was and she said he said he didn't know you would have to look it up you know like he would look it up on google she didn't tell the jury to do it she was just saying as it is for an example the sergeant had looked it up on google and when you read that in contests you can see that and the jury was instructed with the standard to circuit pattern instructions including consider only the evidence don't consider arguments don't consider anything outside the record that's presented to you here are all the government misstatement arguments subject to plane air or do they make a contemporaries objection or object after closing they didn't object contemporaneously i cannot tell you given the volume of the new trial motions i can't i can't recall whether they raise that objection in their new trial motions because they're about this high and but that doesn't preserve as well as i can recall there were so many things that we had to respond to in this case and i don't have a perfect memory but there was one other thing judge winner that you asked about of the prosecutor misconduct blocked quoting the government counsel and he was asking a series of rhetorical questions which he's not to do you know do you believe you know do you believe in a more you've got to believe this in order to do that and there were questions and in the brief they stood up situated bracketed periods for those question marks so that they became you have to believe you have affirmative statements and they're not and that concerns me there are other things that concerns me as well but as we are you in our briefs them that the prosecutor holmes conduct cla well at least at the very least incorrect and sometimes pretty disturbing that they were argued in the way they were i'll hold you provided you the united states of america provided an exporter a seal motion to provide seal granger material to the three judge found them so this presented to us for the purpose of putting on a record that you purging yourself from some a stance of rule iraq and not by any purpose germ ain't to the issues that are appealin this case your honor we didn't violate the rules i didn't say you did i'm asking is this presenting it as anything probative to the issues appeal to us or merely putting on a record there you've done your due diligence found these documents and want it to be said that you didn't violate drove when we responded to charles bolton's motion to supplement the record he took what appeared to be a grand jury request and he slaps the documents behind it and we didn't know where they came from at the time because we had to answer very quickly but we told the court that we would engage in further in further review and at the what purpose do i and three of us have these papers to to follow up on what we said in our opposition to supplementation in order to demonstrate that what was attached was not correct in the supplemental documents by a source only i take you at your word that that's true why do we need to look at these because i wanted to follow up when i told the court i would look i the defense suggested it was in combining those into an exhibit with a subpoena on top and calling it the chronicle since subpoena that's not right and because it's not right i felt like i had a duty when i said i would keep apologize for having cut you off but i'm not to stay worried about sixty violations with  honour's as to count six in response to your honor's question i heard the government attorney use the word that a lot not as linda bolton and i heard the government's counsel say you you are cashing checks they are calling checks something the problem is there's no there's no evidence upon which a reasonable inference can be made th knows about those cash checks because the check checks are cast by mr bolton and three or unknown upon what shall we infer that she knows about them because they're married we can't do that that  awful president because she wrote loans on checks we've established on the record establishes that she she's done that in a way that the accounting firms still understand that those are taxable income and they don't change that until a year later and do not tell ms bolton i think yeah the government can respond and talk about the mannheim in the lead checks from two thousand and nine that's government's exhibit seventy five but none of that shows that  will fully signed two thousand and nine stacks return knowing anything in there was wrong there's no evidence that she got that the cash the cash went for mr bolton to her nothing as to confrontation and whether this is an objection or a waiver i thought i heard the government's counsel suggest that a not objecting is equal to acquiescing in a constitutional violation not objecting may mean that there is a plain er review but not objecting does not mean a waiver of a constitutional right it's an attorney failing to stand up again and say this is this is wrong please don't allow this to happen we just urge the court to not review for plane air but even if it is plane air we found we believe plane air is shown but it's certainly not an argument that's been waved and as to the f b i three o two the government's reliance on the fact that karl nicholson was in the meeting with attorney john lee the district court relied upon that as well but there's no way that ms bolton has the burden to interview an accountant who she doesn't even know was in a meeting and pepper him once question all that paragraph in the p s r did you make any effort to request that the three are to be placed in the record yes that was that was a motion for the three o two is in the question is now we have to sit back and look at the ledges and all the other information based on the john lee tax return i guilty plea on and so bass one of the ways i think the defense would have also been able to bolster the motion for a new trial that information in two thousand and ten he also hired accountants so we sit down and we look at that in terms of counts one through five we asked the court to strike that however we also sit down and look at the fairly comes by name elements of and lots of a briefing gone through it we will go through the record in the side a case thank you