three cases to be submitted today on oral argument beginning with united states versus morrison mr n  on a new trial you know how rare it is for us to directly to be assigned to a different judge that almost has to be egregious misconduct on the part of the judge it how do you are you sure you really want to make that request mean to me it undermines the credibility of your case but you're entitled to make the argument if you really think the standard is satisfied well i'd like to make two independent arguments if i may your honor first that her testimony was arbitrarily limited and that alone warrants a new trial i ask for a new trial in front of the new judge your honor because another independent ground that i asserted was that judge mcbride appeared impartial in this criminal trial and person cognizant of all the circumstances in the case would think in this situation judge mcbride's actions really mirror a case from the sixth circuit in which they did order a new trial  and in that case a judge interrupted the defense approximately forty times over six days took over cross examination to elicit information not revealed on direct verbal insult of the fence counsel in front of the jury and only interrupt the prosecution the relatively small number of times to assistance i believe that that's similar to the situation for example during ms morrison's testimony which was only allowed one hour and fifty minutes to testify and direct judge mcbride interrupted her twenty three and these do not include the objections your honor that were raised by prosecution this does not include with their evidence being admitted into their record this does not include questions or statements from either counsel so while was concerned that over six days there were forty interruptions in less than two hours there were twenty three year on it and not only in the defense but in the accused direct testimony additionally judgment issue of limiting the time of her testimony he didn't impose some arbitrary time limit he asked counsel how long is it going to take what do you think you need and largely deferred to that so presumably of countless that i need four hours he would have given more time they did something isn't really an issue of of trial coming from this misjudging the time it was needed i don't believe ms marson should be punished for the mistake of her counsel while assistance of counsel however expert is only an assistant that does not impair the fundamental constitutional right to testify on your own behalf in your own criminal trial your honor furthermore if that were generally approved of reasonable time limits in those you're emphasizing that she was testifying in her own defense which of course someone has the right to do and that's important but you have a constitutional right to confront witnesses any witness so really any any time limit which we said it is allowed is going to you know somewhat interfere with with those constitutional rights but we've said if it's reasonable it's allowed so how do you get around that i think support to understand the theory of the defense here your honor ms morrison unlike the prosecution which presented twenty two witnesses to support the seventeen counts brought against  morrison was meeting those seventeen counts and those twenty two witnesses almost entirely through her direct testimony that was how the defense intended to present their defense there were only seven other witnesses besides ms morris into briefly speak on her behalf thus there was no other witnesses to meet the charges brought against ms morrison and that's why the limitation on these morrisons testimony was not reasonable in the situation moreover you mentioned earlier that  the testimony in that line at the end of the two hours judge mcbride asked counsel if he wanted to make a proper of her remaining testimony and he declined to do so he said i've got too is how can we even review how much time she could have or should have needed in the light of the fact that a proper wasn't might well until two weeks after the trial yes your honor at that time limit again was something that i think would be a  mistake the defense counsel that was ours and should not be punished again her or her right belongs to her the right of the accused or their right to confront each witness belongs to the accused not her defense counsel well she has a right to pick her lawyer i don't know why she had to have a federal public defender at trial and now she apparently and she has retained counsel now but that's neither here nor there but you know you're bound by the decisions of your counsel as far as on a direct  along that line for you the failure to make a proper a quarter testimony should be what do you consider the standard of review to be for that i still assert that it's the chapmans harmless error analysis because we're discussing a constitutional violation you're under how can we judge what her testimony would have been when we don't know other than something submitted two weeks up to trial well i don't see that two week time period necessarily being a debilitating factor to the credibility of the proffer well the whole point of the properties so the judge can have a contemporaneous understanding of what the person wants to test yes your honor and that was not given but nonetheless even taking that taking a step back just looking at what she was not able to testify at the trial we can can determine what that proffer would have contained your honor i'm looking at the seventeen charges the twenty two witnesses specifically the six witnesses that were former clients and jackson more so that had the fraudulence allegedly fraudulent tax returns morrison was not able to speak on how she trained her employees in the training she received which directly rebuts counts one through seven one through fourteen year on it she did not talk about the returns that excuse me your honor only counts nine and ten festa fide that jacqueline morrison was not involved in the preparation of her tax returns so whether or not she prepared the returns is of crucial importance third your honor jack morson was not able to testify and discuss why the amounts in the schedule cs were appropriate given the circumstances just because a low income tax payer has schedule c losses does not necessarily mean that that is fraudulent again because of the public defender however i would like to flesh that out specifically as i mentioned there were six witnesses that form the entire basis for counts two through fourteen against ms morrison three of these witnesses i believe were used to convict mr morrison on counts one through fifteen and then with regard to fifteen the court taking on a prosecutorial role in aiding the government to present sufficient evidence on that were prepared for the client they then revealed they reviewed the returns that would be filed and signed and i guess you could refer to them as i took out a station forms asserting died if they had reviewed the information with the information provided was correct so it's not the schedule c that he prepared and in fact in counts three through twelve for those five tax payers each testified that gladstone morrison never met with him he didn't prepare their returns they never saw him directing anyone else in the said down with the the clients and go over the schedule c and them there at that station they had to sign that he prepared the forms and liked and often office policy i created this form that we will use with our clients not that he sat down with each client and as i mentioned with counts three through twelve those five taxpayers in fact said the opposite that they never met with and in any regard his name isn't on their files in any regard  transitioning to counts thirteen and fourteen involving stephanie brown the only taxpayer out of the five i just discussed in the two undercover ira shoppers that testified that gladstone had anything to do with the preparation of her return  again this to this court won't overturn a sufficiency based on the credibility of that witness but i think it's worth pointing out whether a rational jury could have found counts thirteen and fourteen against mr morrison in light of the fact that mr brown signed the same forms saying she had reviewed the information and that it was correct but more importantly that after she left janet she continued to file even larger schedule c losses  appeal and mr gregory i believe then took a position with the state of texas and filed a motion to withdraw i was then appointed and given the opportunity to review the record confer with my client and decide whether to file my own and that they're located in fort worth i believe it was at this point after those two witnesses that the court asked out of out of the presence of the jury advised the government in the defense counsel that he did not believe that the government has satisfied the element of interstate commerce with regards to that transfer and the court the government ultimately decides to recall paul hawkins to ask him further questions about the locations so submit that even upon recall the evidence is still insufficient to support the interstate element of that wire fraud charge because we're so government takes a position that it sufficiently proved it before the recall i'm correct on it i think if you look at who's actually looking at the details of the wire transfer she she notes that the actual bank that made the wire transfer was what cobia bank it was agent are presumably agent on kansas city who either authorized to or said we're going to make this transfer but it's well cobia bank that actually and makes the transfer to on the american and there's nothing in the record about locally a bank's location neither paul hawkins mary ray even on recall could an address address that in and i see my time is with defense counsel and i want to just say to start you know the ins counsel is good he is experienced he knows what he's doing but it was that he had gotten through a lot of his testimony and i think he wanted to do more but you get all of the high points possibly that's why he had trouble explaining to the judge what he needed to cover at the end judge mcbride was willing to let him have an opportunity because the defense counsel couldn't really offer anything and in fact on appeal another defense counsel is really unable to offer anything substantive that would have been covered if she had been allowed to continue to testify and this is really a pretty simple issue that he did not arbitrarily limit her testimony defense was simple the defense by both this and mr carson was very simple the client's said them the numbers to put on the tax returns and they didn't knowingly put false information on those returns they just believed with the clients only testified for thirty minutes that wasn't because judge mcbride limited his testimony he did not he asked mr morrison is counsel totally different counsel how much time do you need and mr and that defense counsel said thirty minutes and he did not go over that time and trial progressed and the government did not spend much time on its witnesses that it did spend more time at the beginning on its witnesses and so midway through putting on the clients judge mcbride told the prosecutor you need to cut out some of this because it's too repetitive you're talking about the same forms which seem to be the same for each client so you don't need to read each form each time and so he was even telling the prosecutor shorten it even though the direct weren't going along and so he was quite generous compared to how much time the government witnesses got in giving this morrison so much time and he as i said in the briefs he based it explicitly on with the defense counsel estimated that he would meet and if you want to look at the defense counsel's redirect which you know the prosecutor took i believe it was a half an and so the fact is there's nothing in the record to show anything substantial that ms morrison would have testified to if she were given more time so in terms of the idea that the judge act acted partial explained in the brief to standards on this are basically you look at the totality of what happened at trial and you you ask was the jury getting the impression that the judge was basically a serger prosecutor was he personal to the government and there are several reasons that i outlined in my brain for why that's simply not true and those reasons are that i thought this was out of the presence of of the jury exactly so it's a different point though but it's a fairly fairly serious one which is whether the judge is it is trying to tell a party you have improved enough here's what you need to do because that abstractly at least would indicate some degree of trying to help one shot over the other so yes your honor there are two two prongs of this argument that the defendants put forth one is a general argument that he was impartial based in part on things he said in front of the jury and things he said are out of the jury's presence the second prong is one that's raised by mr gladstone on this gladstone and that is the wire fraud issue so i would just that first in terms of did the judge help the government establish wire fraud as you've noted and there were  to answer so that first if you look at the conversation that occurred at the bench which i think both briefs have a description of what happened it was more a clarifying conversation it wasn't one where the judge was saying i think you need to add more he was just trying to understand with the evidence was of course we understand why that is because he knew he was going to have to decide a motion for judgment of acquittal to end of the trial and not the judge at a really good job of keeping up with all the evidence in this case but he was confused on exactly what the testimony had been so he was talking with counsel outside of the jury's presence about it and the prosecutor was reminding him now actually mr harkins testified that the wire came from h and r block bank services in kansas city caution the prosecutor did based on conversation go ahead and recall mr hawkins to talk about it again but it wasn't an instruction from the judge to do that and the reason partially that we know that one of the reasons that we know that this wasn't some of a blatant partiality is because defense counsel never objected never objected to this conversation or what occurred at the time and that's why i say in the briefs that my error view applies and that is one of the things that's really fatal to mr morrison's claim on th the point if he's helping the government whether you object after that or not it's it's the damage is done well i mean it matters in terms of the standard of review but it also matters in terms of what judge or bright can do in terms of explaining himself like this is why i'm asking you this i'm not trying to help the government i'm that's really all that he did was try to understand the evidence that is a big difference as i understand it between federal practice and texas state court practice where judges are allowed to make comments on the evidence yes the judges have a lot of leeway and i decided to prior cases where the district court used very similar practices in terms of control of the trial that occurred here great i'm a zero and i talked about that in terms of was the judge partial here and the judge in general aside from the wire fraud issue which i just addressed but just more generally in terms of how he treated the parties treated them very similarly and i outlined i cite cases and that really the only thing that the defense are they opponents response that is oh he was really trying to help you by asking some you know some more questions on to government witnesses but i went back and i looked and the he asked clarifying questions to defense witnesses he helped the defense attorney reword questions to make it more clear for the witnesses that he was examining he cut off some government witnesses statements basically the judge is very concerned with efficiency and with getting things right and he likes to kind of you know me that's a substantial issue and i don't really see that the government has tied him factually to those counts which i believe is the test or at least one to test that we apply so i focused in my the protocol he created the way in which the system works and he created as was mentioned previously the forms that were used one of the forms that was used was on him some sort of liability that was mentioned previously and is extremely i would there i'm looking for a word but basically it it is saying what it's not a thing is even if we committed fraud it's your fault and he put that there and that was used for all of these tax payers and  well before i get to the lawn this week i want to talk about the jury instruction because that was not challenge on appeal and the jury instruction including an eight included an aiding and abetting instruction that instruction is on why didn't you ask for a room because i think a lot of the evidence you cite goes to the conspiracy charge but then there's the substantive counts the judge smith asked about why didn't the government ask for a pinkerton charge because that might have brought in all the substantive counts but it wasn't i don't see the instruction it was and i don't know the answer that question your honor but basically the government's theory was that the conspiracy was the agreement to carry out this fraud now but that individual tax returns that were fraudulent were the overt acts that supported the conspiracy and the ones that were three through twelve the time i was in the scheme and it was in not just as you know the answer to my question is no there were there was no evidence he did not help prepare these returns but the law on the circuit does not require that i want to emphasize that and the law on the circuit on this when i was preparing for this return in the case i'll cite it now but i will submit a letter on this is united states versus clark five seventy seven s third to seventy three the pin site is to eighty five it says criminalizes an act that facilitates another person's crime when the act is undertaken willfully and with knowledge of the circumstances that make the other person's act illegal and then this is the critical senate liability under this section is not limited to return preparers forms and also there's evidence in the record that he was one of the people who showed the employees how to do this and that comes from vernal j haney i cited in my brief mr hani was so confused when he took over the company as to why all the him employees were creating fraudulent schedules these and he discovered that that came from jackie and gladstone that's his quote jacking doesn't not just jackie jackie and guts and we know that mr gladstone understood that because he himself created some of these fraudulent tax returns he created stephanie brown's of times which are charging counts thirteen fourteen and he did the same thing that ms morrison did in these other counts and so it's really it's really clear that the way in which he participated in the overall scheme and that cause these  returns to be able to be prepared also allows him to be held liable for substantive seventy two zero six counts not just for the conspiracy and that what that would have been true even if there had been returns  after he had left the company and under your theory because he if he had set up the systems that yes your honor it would be as well as long as someone that i think was related to him was there or had learned from the system or losing his forms or the protocol was  was related to him yes or was there any evidence about the standard operating procedure at this from because i understand he's not an accountant right was there any evidence about how for example he and his wife would review the type of schedule c claims made each day or each week or each monster was there any evidence about how their income increased  during this period of the charge to conspiracy substantive offenses that would that would supposedly allow a reasonable person to know that something illegal was ongoing well their client lasts and that was something they both knew that they in fact they bragged about it during the trial the client list had five thousand lions on it and they agree that in a very short amount of time and then of course we know later from the other people who tried to take the company over that that was because  these defendants were committing fraud in their whole operation with there's also a flow chart that mr morrison himself created and that was talked about during the trial that is government exhibit sixty seven he created the flow chart and what it talks about  is right up at the front it talks about what documents that they return preparers need to look at and they and included schedule c documents like you need to look at a schedule c z are they even mention in a footnote in the slow chart that it's good to give them the prior version of their schedule say to look at so he created the system there's also a roster that was found in the kitchen of the morrisons house that included right at the top of that employee roster gladstone morrison jacqueline larson that is government exhibit one ninety two so it was their scheme together they perpetrated this game they both profited from it we know that they that enabled mr morrison to negotiate a contract with express tax for seven hundred fifty thousand dollars to sell their client list so that's one way in which they profited he knowingly profited and then of course they tried to resell their business including their client list to mr heinie for i think that was four hundred fifty thousand dollars and then finally they did end up selling their business to mr r he still has it today i don't remember the purchase price of that but mr morrison was the point person on these things it was a mutually beneficial operation he was benefiting just as much business morrison was and giving just the broad standard that applies to a substantive conviction under this and deference to the jury's verdict and to the evidence that supported that he was creating this and that he supported and aided and abetted the filing of these returns i don't think there's a way that this court to vacate those convictions under the law whatever it was that was there or that he ever looked at any say there was and i don't recall any evidence that he looked at particular schedule sees that were filed i just have in terms of laying eyes on a schedule c ms brown's returns because he created the schedule c and then we also have the intent evidence which was for for be evidence and those were his own tax returns with ms morrison that they submitted to the i r s and then he had a duplicate set of returns but they had different numbers in them that he submitted to his mortgage company and that was to show that he understood this practice of inflating loss amounts to lower income because identical tax returns that were submitted to the iris in the mortgage company had totally different income amounts by one hundred thousand dollars and think it was over one hundred thousand dollars because on the copy that was submitted to the i r s and that was for the business return for jamie so that was another schedule c actually because they had her g m a return for their own selves risk had huge losses that resulted in i think it was something like twenty six thousand dollars in income they claim for that year whereas when they were trying to get their mortgage payments on a different schedule they submitted returns to wells fargo that showed income over one hundred thousand dollars because they didn't have those inflated last amounts they knew what they were doing they did it together mr brown may have actually completed more of the returns that were charges to substantive counts but that does not matter i just briefly the only thing that i think was the only other issue that was mentioned in the previous discussion with an appellant's was the brady issue that's a non issue total non issue i don't even recall the defense filing anything after trial about brady and they didn't file a real brady claim goes only it and they wanted us to stipulate to something that would think they probably call the brady document but it wasn't that we weren't giving them evidence it was that they wanted us to stipulate that with regard to transcripts of tax returns for the early to thousands for which iris doesn't keep whole returns that when there was a schedule c mentioned with a wife that meant that the person had followed schedule c even though we had known it was what was on the sc the government stipulated that during trial but the government turned over every single tax return for all relevant years two thousand to two thousand six thirteen for each one of the tax repairers at issue there were the transcripts for two i'd like to begin but discussing the misfortunes testimony first of all the judge did not have to limit this this was an arbitrary limitation as opposed counsel mentioned this was soon as the trial was going on this was not decided before trial moreover if the judge was so concerned about time there are other ways to limit the time of the defense without limiting the time that he seems to me it's arguable and i think the common practice is judges impose time limits before trial during the pretrial conference when they're going to impose those limits here it's arguably more flexible because then you are going to see other trials going to going to hear in the middle of trial before you call the witness he says how much time are you going to need one why isn't that actually a more favorable policy than than the week before saying here's what's going to govern this entire trial i've never seen but even i know don't know what's going to happen i believe asking counsel on the spot how much time they need they may be caught up in their thoughts in the direct testimony and they won't have a well reasoned answer i believe it is more deferential to ask them in advance so that way they can review their entire plans testimony and really consider that in a well thought out theories in the pro choice on the spot i don't think there's enough time to really make that decision moreover opposing counsel mentioned that there was no substance it was difficult for multiple of means more since counsel to determine what she actually didn't get stressed file on and as i mentioned earlier she didn't get just fine training she didn't get to  their terms that she prepared personally and as judge mcbride interrupted her defense counsel and told him to sit down she was actually testifying about the schedule c amounts on the tax returns and this is crucial to counts one through quite aware made very very different claims to mr and mrs morris and mr morrison was not implicated in the majority of the counts however ms marson was and so she had more witnesses to meet more testimony to refute and based on that morrison's testimony she was interrupted twenty three times in two hours that never even approached that number with the prosecution moreover he she mentioned that the judge assisted defense counsel by rewording the we ask you challenge all the counts on sufficiency grounds let's say we were to agree that there was some were insufficient but some were ok that would obviously result in vacating the conviction sentences on this particular county found insufficient and i think that there's two important points to that question one is to note that counts three through fourteen which includes thirteen and fourteen with miss brown which i discussed earlier those are the overt acts of the conspiracy so i think if those are vacated on insufficient evidence that includes counts one through fifteen so we're left with i'm sorry counts one hundred fourteen we're left with the wire fraud counts which which primarily had to do with various sales or franchise agreements for the business i don't believe that the loss calculated to the i r s in tongues month to fifteen would be the same so i believe that that that would be the primary factor in turning the sentences and judgments to your point opposing counsel to clarify mcbride's and assistance to the government on top to tina's clarifying questions if you look at records cite sixteenth that three he says and i quote i don't think you had the evidence of what made what bank made that transfer and i it's obvious that the agent or employee hawkins is talking about where the funds within agent are came from he clarified that further on recall that he's talking about we've got our fiduciary bank department it's right across the street in kansas city it's obvious he's talking schudrich rights and obviously he's talking about where the funds within agent are originated not what bank made the transfer what made what bank made the transfer is the evidence necessary to establish