doubt that the air was harmless and did not contribute to the verdict so the starting point here is reversal as to why this is not harmless and certainly not harmless beyond a reasonable doubt there's a number of reasons for one the issue with respect to her credibility a jury is instructed to take a witness and event and trust their testimony in part in whole or not at all certainly the jury had issues with the government's quantum of proof they acquitted on five of the eleven counts including one of the counts related to miss that kills made the jury understood exactly what this case was all about acquittal related to her statements regarding the witness tampering simply does not mean that they discredited her testimony in a whole that those two things are not equal they could not convict beyond a reasonable doubt as to some of her statements but it but here's the problem mate you've got all of this other evidence you've got tate taylor and washington are testifying about how they went in the only person they spoke to was mr steele mr stay told mr seale all of their information provided him with their documents some of them waited for him while he went back and then he came out and had them sign they didn't go through line by line at the time but they later discovered that there was fast information that they had not provided i mean that why is that not enough and the assisting in the preparation of fraudulent tax returns counts well why isn't that not enough beyond a reasonable doubt certainly those taxpayers offered circumstantial evidence but circumstantial evidence counts as much as direct evidence absolutely does but there's a reason that every court gives the instruction to a jury that circumstantial evidence counts just as much as direct evidence and that reason is juries five direct evidence extremely persuasive and so each taxpayer came in they provided returns they provided testimony that gave in circumstantial evidence but ms stewart came in and provided direct evidence she was the glue by this case she said i don't know how i know and i'm the only person who testified that he was regarded as a tax preparer max tax that he was employed other testimony in evidence here that would allow a jury to find beyond a reasonable doubt that mr steele committed the crimes for which he was convicted there was evidence your hon the question is not can we support the verdict i agree the question is whether we are convinced that beyond a reasonable doubt if there was the then that would not have resulted in a different product that's what the question is and what i'm asking you is ra i based on the testimony that i've just discussed why we can't find that because i'm not i understand was there something wrong with the the government needed to bind together their offers through those witnesses and so could it have been enough for had the government offered evidence only of those taxpayers providing that circumstantial evidence it could have but because mr wertz testimony was offered because it bolstered the testimony of those witnesses because it offered direct evidence that is extremely persuasive evidence mr steel had a sixth amendment right to confront that evidence and he was denied that right and so i think we can piece back and separate out each piece of evidence when there is compelling evidence that has been introduced and has erroneous shifts in the criminal case it's always on the government to prove beyond reasonable doubt the deferment skill but in brown we said the jury after hearing the family can choose to credit or discredit  him or at least believe the government had proved on several counts so his testimony did line up with that in addition there are the inconsistent statements being excluded wrongly not only prevented the defense from impeaching mr heard it also facilitated the government's impeachment of mr steele and his testimony there was a contradiction between mr ste mr regarding her work hours and the government in both cross examination and in closing as the you know said to the jury well who's who's telling the truth here so we have that direct contradiction and so not only did impeach miss would it have impeachment stewart based on the offers of proof we believe it would have bolstered mr steele's testimony and undermine that that impeachment by the government so i think it's important to note that not only that there's three fronts to this and to address your question although i'm not familiar with that case i think it the evidence that was wrongly denied could have bolstered mr steele's testimony in a way that effects the quantum of persuasion that you're referring to i think it's also important to note that the particular prior inconsistent statements were relevant to miss stewart story about how mr steele admitted  making false statements they tied into that and i may address that further when my time remains actually if you want to just do one brief statement on it because otherwise you won't be able to address it on rebuttal yes or miss steward's offered testimony that mr sed that she prepared her mother's taxes she left for the day mr steele was the one there the next morning she came back in and she said i had added these statements to your mother's tax return it inflated the refund and i transmitted those to the i r s that was her story very incriminating as to mr steele's comments re the statements the inconsistent statements regarding her hours and also the fact that she had previously stated that any tax return that was transmitted would be reviewed by one of the owners before that it makes that story less plausible on it undermines the credibility i  whole please the court elizabeth holt for the united states mr c e o was convicted of five counts of aiding in the preparation of materially false tax returns and one count of witness tampering he was acquitted of five coun testimony the prior inconsistent statement would have affected any other count the prior inconsistent statement actually was not about the review generally of tax returns it was a question about the review of tax returns miss to work her prayer my own and maybe i misunderstood maybe you can correct me if i'm wrong my understanding was that one of the impeachment problems had to do with ms stewart say that she arrived after mr steele and left before he did and then the next morning when she would come in and he would say everything's been filed and that that she supposedly told count why wouldn't that and do i have that right if your are not for several reasons for him to go ending the government would actually argue that that argument is waived it raised anywhere in the opening mr steele's opening brief that was put into the reply brief our soul in preparation for the or argument in reviewing the reply brief the government actually went and was able to find the memorandum of interview that is the issue in this case the memorandum of interview actually reflects that miss steele excuse me mr work did not make a prior inconsistent statement ok but that's not a part evidence no your honor but you have a situation so part of my answer to your honor is you have a situation where the defense counsel has asked mr or will didn't you tell the agent this she said no on redirect the government asked well didn't you actually tell the the agent that it was mr steele who work from eight to eight not you yes so you have that back and forth for the jury to review however even regardless even if we assume that that is a prior inconsistent statement and that those are the work hours of miss stuart and mr steele that does not necessarily mean that mr steele could not abetting in the preparation park and procurement of those tax returns he did not necessarily have to transmit them so we're gargle it's of the timeframe there was not evidence one way or the other that would have suggested that mr steele could not have otherwise transmitted the tax returns at some other point in time or that someone else could you have very strong evidence as the court noted all of the actual counts of conviction there were six counts of a conviction over two year tax time period two of those counts of conviction mrs stewart didn't even work at max tax twenty three twenty two and yes you are correct and so those two witnesses tate and washing ten testified for their interactions with mr steele in two thousand and ten i came men i gave him my tax return this is what happened centrally i came back the next year and did the same thing with mr mr steele miss stewart wasn't even there for the first two for the first year of those tax returns where they established their relationship with mr steele the third individual taylor was the one where her testimony was bolstered if you will by the fact that there was a two hundred dollar check that was admitted that mr stewart signed that mr stewart gave her that she testified was a bribe none of that testimony relates in any way to any testimony acquitted up clearly if the court noted the the jury did not believe her she impeached her self over and over she admitted she falsified tax returns she admitted she falsified her own tax return she did have a prior inconsistent statement the defendant was allowed to cross examine her did impeach her in these ways and she impeached herself and so for those reasons because it is the government would argue from the get go completely immaterial the decision itself to exclude agent testimony was not an abuse of discretion even if it was an error to exclude that agent testimony the government would then argue that it was harmless error there was no effect on the jury because it is clear that the individuals the taxpayers came and testified to day our interactions and i understand your point but the supreme court has told us that we have to examine when there is constitutional or whether it was harmless beyond a reasonable doubt and that's what we're doing and we're assuming there was error so that that's why we're focusing on the second the government's case relied on certain categories of stewart was the category that said here's his mens rea here is he was how he we know he acted knowingly because there is a constitutional lawyer but about the fact that you know of course he was cho with assisting in the preparation and aiding and abetting so so the government is crabbed of course that he doesn't have to have done  witnesses testifying that some of them that he admitted that he got it wrong with respect to them so you know he said it's my my bad i don't you know when the witness  were i mean i think generally though like the payment to miss washington i believe it was was framed as a tax refund and what we're focusing on here is now with him but instead with a red headed woman and she did make that testimony other witnesses mr whalen mr le trois also made statements that he had approached them and and he was acquitted on those counts there were concerns about the government's quantum of proof and when he was denied the opportunity to discredit that government  infected those counts to separate out now i think assumes more knowledge of the jury's deliberation than were entitle to if there's circumstantial evidence and very damning direct evidence we can move that direct evidence in our minds but we can't remove it in the minds of the jury and so if that was the nail in the coffin which i think it very well may have been if if we were to agree with you what else would we vacate you've got tax fraud counts you've got witness tampering but what would this affect it affects all counts how does it affect the witness tampering with  relates to the underlying count of the tax fraud in other words if the the allegation is mr steele fraudulent prepare this tax return and then  bribed or offered mr stewart to say something different if you didn't if the if the he didn't prepare that tax return or if it's not proved beyond a reasonable doubt that he prepared the tax return it's certainly less likely that he would have engaged in that witness tampering certainly it is another inferential step but i think it is clearly related to and because miss miscue was wrong to deny the opportunity to undermine those tax fraud counts he was also wrongly denied the opportunity to undermine the case for witness tampering so i do believe reversal on all counts is appropriate because it's a constitutional error that's the starting point and the government has not carried it beyond a reasonable dobro you can  the next case is raymond versus robert and really just a moment and tell the courtroom settles down