please the court mr fadden obstructed justice but he wasn't guilty of bankruptcy fraud and the reason he wasn't guilty of bankruptcy fraud is they didn't act with an intent to deceive and we know that from the trial evidence because he would have been dealing with his only creditor the i r s outside of the bankruptcy if he had an intent to fraud now this court now has heard an argument that the jury was told to disregard the jury didn't hear it in the closing argument and for purposes of today in this appeal it certainly didn't hear it in the theory of defense instruction now at the horror of the adversarial system is the two parties argue points of fact and law for the fact and the judge here the defense had a fairly chart and the jury told the jury sorry the judge told the jury that in order to convict it had to find that fadden acted with intent so what purpose is served by giving the same intent instruction twice well first of all the that's generally true but the fact of the matter is is that the law says the defendant is entitled to a theory of defense that district instruction that explains for puts his point of view based on the law i should think his lawyer puts his point of view before the jury and that a theory of defense instruction is for thump something that is actually a defense yes as opposed to just denying an element of the charge well it's denying an element of the charge based on the trial evidence that's what a defense it know most defenses are affirmative defense otherwise you're just saying the prosecution didn't prove its case and that seems to be the theory here prosecution did not prove its case that's correct yeah well then what the jury needs to know is what does the prosecution have to prove beyond a reasonable doesn't need to know anything more than that yes and no and i think where i presentation of why or how it doesn't prove the case no defense lawyer would be very effective if the defense was they didn't prove their case without explaining why or how it's probably the defense in substantial majority of all cases where the defense rests without putting on any evidence and i don't testify and the argument to the jury is the prosecution didn't prove guilt beyond a reasonable that perfect normal that hasn't been my experience in federal court but i haven't been in court for nearly as long as you have or any of the judges but i would point out to you is that here that there was there was a case it can be both ed that certainly do you have any cases saying that the judge has to charge the same element in two ways once the prosecutor's way and once the defense way of course not there wouldn't be such a case that's what you're arguing in this case the intent had to be charged two ways no one shows an element and once was a defense makes no sense to me i disagree with that characterization  satisfied with an instruction that said fat content you should not convict him because the prosecutor failed to show intent as the law requires for conviction now we wouldn't have what's wrong with that  job of closing argument and that's i'm glad you brought that up not the judge's job in the instructions to highlight particular pieces of evidence of course not but i  during closing when the point was argued about the separate dealing with the i r s outside of the bankruptcy the the government objected and  the court gets cured of instruction with far beyond outlining or saying this is what the trial evidence was of this is what wasn't said there's no lot told the jury there's no evidence of any such offer in this trial and shouldn't does here is it underscores the jurisprudence around jury instructions is that theory of defense instruction which is ok the district court says may say to the parties i'm not going to include your theory of the defense and thank you because maybe this isn't the proper vehicle for it and the district court might be forgiven for that on appeal as long as the jury got to hear it from the defense itself it either came in by instruction or it came in through closing argument here that didn't even get to happen and that's why the objection and the district court's overly broad curative instruction  did you did you actually raise the fact that that the the you weren't able to order you you made that argument with or wanted to make an argument but the court kept it away from the jur the document itself was tossed or with the judge in the last hour we objected but testimony about the sending of that document and  testimony about my clients or testimony from these three forty one meeting about my client's understanding of that document that was sent to the i r s did come in so more limited instruction of would have said no you can't you know there's no such document that going to get back there in the jury room but you can consider the other evidence the offer that you heard i was there my time to  district court said i'm not going to i'm not going to give the instruction but i'll allow you to make the are so the defendant makes all kinds of arguments related to attempt to deceive but there's also a separate dialogue between the court and the parties about what is being referred to differently by the parties we refer to as a set off find the defendant refers to it as an offer and compromise the defendant mr fad while his bankruptcy was pending he of course collected and kept the cash that he got as an inheritance during the pendency of the bankruptcy while simultaneously lying about it to the bankruptcy trustee so he got the cash but he was nice enough to send the i r s one of these tax protester style buttons during the course of the bankruptcy when the automatic stay was in effect and when the i r s couldn't collect anything anyway so the issue actually of this bond and what to do with this bond that was actually addressed by the parties pretrial because one of the things the government was very concerned about was this is a bankruptcy fraud case this isn't a tax evasion case it's not a tax protester case mr faddist tax protester believes are not supposed to be before the jury we filed a motion in limine a saying that you know anything referencing his his tax protester beliefs are not supposed to be before the  the court granted the motion of the defendant did not appeal that so during the course of the trial the defendant then starts to try and introduce this notion of this set off behind and the court goes back and forth a number of times with the defining about what the relevance of this dock jimenez and the court ultimately concluded what is the point of this confusing jibberish document that you've sent only to the i r s it does not disclose any previously undisclosed assets it certainly doesn't absolve you it's not a defense to concealment of the assets during the course of the bankruptcy proceeding and it's very confusing to the jury i actually am included in my appendix so that we don't have competing characterizations of the document so that the courts could see it for itself so what ended up happening as then during the course of closing argument the defendant th tries to get into the exact contents of this offer in compromise and the court says act i excluded this document and you're not to get into it but i it is it is an erroneous characterization of the record and the government's feel when you rea entire closing argument the defendant was free to argue all he wanted that there wasn't intent to deceive it's just that when he got into the contents of this tax protester bar and which he said he called an offer in compromise but it's clear it's not really an offer in compromise that the court said no you're not going to get into that and gave a cautionary instruction that the contents of that actual bond was not before the court of the disclosure of an error and well i guess it was that was one count two was making material false representation and on the bankruptcy schedules what's sort of interesting about the defendants defense is that he really never said i didn't lie in my schedules and i he never even really said i didn't mean to lie on the schedules i think the the way since when sideways here is that the defense was conflating intent to deceive and intent to defraud but like we think of an other types of fraud cases where you know he means intent to that there just simply is overwhelming evidence that the defendant intended to lie to the trustee he intended to lie on the schedules he continued that process of lying about his inheritance and his  assets at the three forty one meeting which he doesn't even contest and that he intended to conceal the assets and you know he was we didn't have to prove he was successful but he actually was he walked away with hundred twenty eight thousand dollars neither the s or the trustee got it so his his misrepresentations of bankruptcy in this case stalled out the case long enough for the automatic stay to prevent the the iraqis from collecting and from the trustee from doing its job and you know that the defendant got to argue his defense is just frankly it didn't seem to very be a very good one to the court and ultimately the jury convicted him nonetheless and lost the court as any other which i think based on the court's questions the the most useful stuff for it in our brief will be twenty eight twenty nine and thirty