court good morning your honors my name is david sigmund i represent appellant melissa morton we have raised three issues on this appeal and of course want to discuss whatever your honour's prefer to discuss but i'd like to begin with a couple of brief observations the st is i'm glad i'm in front of a panel that has a lot of trial court experience and has seen cases very similar to this and judge wilson had a tough job dealing with the mortons there's no question about that however these tax protester cases shouldn't be an excuse to water down the mens rea required for a task case there's a great irony here the government and the defen arguing the same set of facts there is no disagreement about what happened and the only disagreement is about whether the mortons held a good faith belief that what they were doing was allowed by law that's the only disagreement in that respect it is no different than any number of fraud trials that we run into i mean sometimes in fraud trials people attempt to deny what they did but the mortons didn't do that indeed they embraced it mr morton at every turn would say explain his theories which were wide ranging about why he was not liable to pay taxes now turning to the issues themselves this case is like this ad absurdum we begin with the affidavit why oh why would the affidavit be left in a law car when we're going to search the home of the mortons that was creating an unnecessary issue it would have been easy enough to bring the affidavit to the search knowing that the whartons were likely to litigate anything and everything especially with respect to what mr morton considered to be his constitutional rights  now given my introduction and given what i've said the defense has essentially embraced all the facts and the lion's share of the government's evidence was documents that revised did to the s that had there would be no basis to move to suppress as the mortons themselves provided this evidence to the i r s so i think so i think we understand your are you  argue that the affidavit did not accompany the warrant and that's problematic there were two exhibits that were attached to the warrant is that correct i believe so you were there with a part of the warrant from the inception  attached to the the warrant is equally attached the warrant that i don't know the answer to that question as i understand as i understand the issue it is the affidavit itself as cordoning the agent's discretion in searching and whether the search team itself was properly apprised and whether he's ok you know excuse me you know whether the attachments were present at the search the the the affidavit that is the subject of the know know your argument regarding one thing i'm talking about the attachments i can see that i do not know that your honor but i was given that what i said about the documents from the mortons to the i r s forming the bulk of the evidence that naturally transitions to the other two issues and there's actually a little synchrony between these two issues miss morton's claim that there should have been a mistrial granted when mr morton was allowed to have his freestyle narrative statement aps ryle was that miss morton he talked about her experience and banking and this morton's defense on the jury instructions is that the jury instructions downgraded the now ordinarily when we have tried cases the government begins middle and end with overwhelming evidence overwhelming evidence overwhelming evidence but in this particular case there cannot be overwhelming evidence because it is about whether mr morton actually had a good faith belief no good is used there in genuinely held belief rather than being morally righteous belief and i think there's a lot of evidence to indicate that miss morton has these police when it came to mr morton mr morton deserves his own special focus given his conduct and what he's done to get himself in prison for seventy two months the guy quite the story teller i looked at what he said at trial and i saw little that bit of what he said outside of trial says things that involve area fifty one and aliens and mythical peace and he says these things so fast in such quick succession that once he said them and the person does not dispute them they all of a sudden become like their acknowledged facts that these are just things that happened that he really did expose area fifty one and that his mother was a serious contender for the vice presidency which apparently she was and miss morton who fell in love with mr borden several years before this that she genuinely believed all this stuff and i just don't understand what the government is so afraid of in these tax protester cases i cannot imagine a jury of twelve people who all pay their taxes being with the idea that these people have a personally vested personal belief that the tax law doesn't apply to them and doesn't apply to anyone and never should of and that this thing is just unfair in my experience when jurors find out that their time away from their jobs and their family is being spent so that someone like mr morton can explain to them why no one ever ever has to pay taxes and to the contrary they are do millions of dollars i think that's a pretty quick conviction in fact the government was able to achieve a conviction and what was it ninety minutes in this case so i think that there's a danger in saying ok well because this is a tax protester case we have to really guard differ against this whole we really believe this stuff because that actually isn't a good defense in almost any kind of trial i had a client who was an arson client who claimed to rub kerosene on his skin when he was caught smelling like kerosene as a way to preserve his skin and you know the jury convicted him pretty quickly too i think that the government should take these people at their word let them put on their crazy theory that no one is required to pay taxes because in one thousand and thirty three there was a secret cabal of bankers that took over the united states he referred to her as having banking experience why and why is that a problem well for a couple of reasons and the st one is that i think judge walton you know it's a tough call about whether to let someone  day believe this theory i don't know that it seems like those two things are two ships passing in the night the tax protester i don't believe that the laws apply or the laws currently written and being interpreted by the courts the courts are just getting them wrong and i have the correct solution involves me getting millions of dollars that somehow i did not earn mr morton's banking experience which shows you know if you are serious comment was there a curative instruction given to the jury to disregard the comment i think in just in the same general curative instructions that you know questions that are stricken are not considered to be evidence and the judge definitely hit it right when it happened and it was stricken and it isn't the bell kind of situations pacifically because the nature of the defense the defense and here there's i mean there's no factual disagreements that i can spot i accept in sort of how the investigation itself proceeded but with respect to the underlying conduct the mortons have embraced they they still embrace that this was legal that this was consistent with the law so in that kind of situation where the only contest is miss morton's good faith belief that's a serious problem when mr morton says well you know she was also a banker and it wasn't you know it wasn't i hesitate to say because mr morton put the court in such a difficult situation but it seems a little bit of an unforced error like there was no need to give mr morton hadn't asked for his time to give his narrative description  unless the court has anything further i'll reserve the rest of my time for a bottle execution of the search warrant in this case they were confronted with a situation where they had discovered evidence that the mortons were engaged in a sort of a cottage industry of fraud they had found evidence that they were engage preparation of false financial instruments on behalf of other individuals frivolous u c c filings as well as evidence through trash runs excuse me showing that the morn's may have also been involved in filing frivolous litigation claims on the half of their clients the government also found evidence that all of this was a sort of being run through a nominee corporation called heaven and earth l l c at the morn's it actually been using it as sort of a crock pot where they were putting in their legitimate income as well and running it out of any appeal box confronted with that situation the i arrest drafted an affidavit which was based on the circumstances on the ground that they were confronted with which is that there is not a clear picture of just how the records regarding this enterprise are being maintained but that information regarding the investigation they had conducted date that was outlined in an eighty seven page affidavit of special agent loose talk and the attachment of the items to be seized which was included with the search warrant listed out twenty two dollars distinct categories of items incorporation that affidavit it was provided to the agents who executed the search on two separate occasions on a pre operation briefing the day before as well as a pre operation breathing or a briefing that took place directly before the search and the searching agent who was the sort of head agent of this search peterloo he did let the other agents know that the warrant was available or the affidavit was available if they chose to need to review it during the search and defense counsel for miss morton has taken great pains to point out that it was in a locked car however that locked car was across the street the agent who was ahead  head of the search was the individual with the keys he had informed all of the agents executing the search if they need to review the affidavit is available so your position is that sufficient to meet the requirement that the affidavit accompany t where the distance would preclude or seriously inconvenience the agents to the point where they might think we're not going to do it then that's a different situation but where it literally is across the street and where agent has let the agents know this is available it's sort of a glorifying of substance over form to say that no it needs to actually be inside the room where it searched i mean it's available they've read it on two separate occasions and they know it's there for them to use should they so need it and additionally your honor it's important to note that of these twenty two categories of items that miss mines council has identified there's really only one that they've pointed out and said this was a real problem and it is at the the end of that list and it's the essential of the category the allows for the seizure of correspondence as the record shows the search warrant evidence that was produced at trial was produced by calling two agents luke you and john cursing you lukey was a seizing agent john cursing was a human a computer forensics agent and essentially the evidence that was introduced it was composed of two categories one was a series of client files that had been found in a plastic tub inside the defendant's residen and where the client files were actually grouped together these were the bonds the u c c filings certified mailing receipts and the computer files were centrally the same thing only kept in p d f form it's essentially this evidence that was seized and was actually used at trial it would have fallen entire any number of the permissible categories in this warrant if we decide that the attachment which is said accompany the  that satisfies the particulary climate do we need to reach the question of whether the affidavit properly accompanied the warrant well if if the court decides that the the attachment of the list of items to be seized which was attached to the search warrant if that satisfies particularly and the overground analysis then no i don't think it is need to actually decide whether or not the affidavit was incorporated but if if the if the attachment standing alone does not satisfy those requirements i think you would need to reach whether or not this affidavit was incorporeal as to overpack doesn't the exclusionary rule apply and we'd have to do that analysis yes your honor i believe that under over breath you would still need to look to the affidavit and so i misspoke to determine whether or not probable cause is shown for each of the kind of course so yes you are correct but i don't believe that necessarily for that analysis you would need to determine whether or not it was corporate incorporated for a purpose not that's what i'm asking and perhaps i'm being confusing  is the category that opposing counsel has highlighted there is that's the correspondence category and there is a provision that says any correspondence or corresponds with any rd party  and i think standing alone that that could present some problems and was there any thing introduced a trial starting there that would qualify as correspondence with any rd party that would not otherwise fall within the scope of the war correspondence seized during the search warrant that was introduced at trial and the correspondence that was seized was i believe exclusively correspondence that was kept inside these files where they'd maintained their bond client files that we covered by other it would been covered by another category i believe the there was also correspondence between mr morton and the california franchise tax board regarding his personal bonds that he had submitted to the california franchise tax  however that correspondence was again kept inside a file that he had maintained his bond the u c c filings and the sort of five million dollars receipts and you would say for example that would be covered by category  i believe the categories describing what is necessary and the three hundred and seventy one conspiracy those same cases they also describe willfulness as a standard that is analogous to what exactly is listed in the th circuit's model jury instructions for three  for mrs morton it was only thirty three dollars through fifty six dollars that instruction was essentially created by the court and so it was not the subject of the joint jury instructions that were submitted by the parties in this case  as we laid out in our brief the court's creation of that instruction it was the product of the fact that our and mischel five hundred and fourteen instruction which the parties had agreed to the that instruction listed the wrong counts at its hatter while trial was ongoing as the jury instructions were being given the government realized that the wrong counts had been listed in that instruction and then alerted the court to that that instruction did and as it was sort of this sort constantly changed thing it did end up omitting the instruction regarding the requisite intent for those five hundred and fourteen counts however as we laid out in our brief essentially these were extremely analogous facts you have financial instruments that were virtually identical to the financial industry and submitted by mrs morton to the i r s on her own behalf and the jury did find that she had submitted that financial instrument with the intent to defraud two to determine that she lacked that intent with regard to subsequent instruments it would have essentially needed to find that she had developed a good faith and the belief in the legitimacy of the program after she knew it was fraudulent once admitting these bonds on our own behalf to the i r s and this just to the government's mind no reasonable probability that that there is no reasonable doubt that she had that intent to defraud and she said method the financial instrument of the i r s which the jury found and so that intent i mean would have would have carried over to the subsequent instruments prepared on behalf of rd parties well there any other questions and with regard to that i'll just very quickly address the two hundred and eighty seven and the mistrial motion for the mistrial motion this was this was given in the midst of sort of a rambling screed by mr morton he had to claim during this speech that he had interviewed janet yellen that the government was bankrupt and that really it was just in the mix of a mishmosh of testimony which really did not have a great impact on the jury a cure of instruction was very quickly given and i would point out that the government's mind really did that statement was there is no reason why it should have been admissible anyway and it was just one of the several pieces of evidence that was provided regarding her intent with regard to the two  particular questions i would also submit thank you very much both sides fighting in this case the matter submitted