fifteen fourteen forty six united states of america versus doreen and rick's an oral argument not to exceed fifteen minutes lester's the drone for the defendant  frankly because she had the temerity to refuse to say that she believes something that she does not believe to be true and at its core that's what this case is about in two thousand and two in two thousand and three ms hendri owned those tax returns they took the position that the earnings for which those holding withholdings were withheld we did not constitute income and was not properly subject to the tax in april of two thousand and six four zero one three the contempt statute that we're dealing with here ordinarily one cannot be litigated the concept of the word ordinarily means something here so for example if something is facially invalid and i would hypothetically and that was affirm you would not have to not have to comply with that order to not be held in contempt but their promise makes it no where they go that if you've got a higher court that says you could do that but when when you when you see more legal it's just it's another stamp of of prominence for lack of a better word but the reality of it is is is that if if an injunction is facially invalid then one can it is to be complied with and that's there's much ambiguity in this case and we could talk about that at any point or if the order on its face is invalid and therefore on lawful i it would seem to me that th aside from whether the issue itself the the legality of the order bars prosecution the court committed several other errors below in relation to the legality of the order for example the court below did not allow ms hendricks into ever articulate her belief that the order was illegal and this would have gone directly to her good faith defense on there for a one three which three or argument side it's pretty clear this court knows the procedural history of all the cases i'm assuming the court understands the procedural history of this case it's a little bit complicated we have to deal with two different proceedings but the reality of it is that  jury was required to agree to i mean there's a whole issue in my view probably the most important issue in this case and the most pressing issue is the issue of a lack of human unanimity instruction which you know i'm prepared to address at any point but counsel unilaterally decided to not ask a series of questions that were permitted in the first trial and then when she tried to argue those matters she didn't so i read the record it's even in your your client did not counsel's not asking the questions she wants to ask but she stays with you she doesn't pipe up and say could i tell the court i want to say this she didn't and not till after the fact to realize this she doesn't stay mute she tells her counsel she says i'm troubled her stand by counsel i'm a problem but doesn't let the court know am i right about that well she does not go to the court and say your honor i thin at that point time she says nothing and at that size into the government's theory that somehow this was waived the reality of it is is when you look at the declarations of both ms hendricks and and mr wise she did have a concern and mr weiss basically says don't worry about it bring it up during your closing you'll be able to do that so she i mean her standby counsel has some obligation to give her some assistance in the situation where he's the one who unilaterally makes a decision she's calipso because she's represented or so she is and because of court edict he has interjected into the questioning process and then does not follow through with her directions and she's left omitted questions when asked in the first case resulted in a hung jury and then she's defending the case essentially on a good faith claim which would in essence allow her to discuss her understanding of the law whether right or wrong but she would be allowed to do it and yet there's no testimony about her understanding of the law and then she's not allowed to make an argument concerning her on her side but i thought this might have been raised as a violation of her sixth amendment right she asked the court as it and the court would know that early in the process the court said if you are to testify you have to go through this question and answer process can give your lawyer and that is a procedure that has been blessed over and over again when pro se defendants seek to represent themselves so now we're stuck for lack of a better word with this you have to have your lawyer asked the questions you don't even have a stat back questions questions that would requested of the court but it's sometimes there are it is not stand by counsel and they have to do it that way sometimes courts allow the defendants has to to testify in a narrative in this particular instance the district court insisted that the defendant use this question in answer to be provided for by were asked by her attorney and he did not dispatches obligations to do so and she's now stuck with this did not object does not necessarily mean that she and the fact she didn't utter the words i do not object doesn't mean she didn't have a problem if she articulated the problem through her sitting in her room if you have a problem and your honor with all due respect she's articulate stu her standby counsel that you didn't ask me all of these questions and he then says don't worry about it you'll be able to do this how is it how does a pro se litigant even though she's you know not to be given any per each mean is required when the means are not sufficiently related i think that the term of art is marginal it is there's only a marginal relationship or connection to them right the injunction in this case the orders in this case they really are two warders if it's the times people talk about is one injunction there's two separate orders one requires action and one requires not actually all this is part of the same us scheme or whatever you want to call it  part of one course of conduct well your aren't that implies that this is a crazy tax case she is convicted of contempt and one of the problems that i've seen throughout this whole process is that there seems the whole thing seems to get confused with with with the discussion about tax matters vs criminal process and so forth what injunction that we're talking about rights one injunction has two separate distinct orders as one piece of paper that has t amended returns and on both instances those returns were determined by the government to not be acceptable or qualified but she did file amended returns or in an in june june of two thousand and ten and then again in january two thousand and eleven didn't she maintain in those two in those again in those her her view that the tax code was unconstitutional which i guess i'll just touch on a couple things that were mentioned first of all the defendant testified for nearly a day regarding her good faith beliefs her alleged good faith beliefs in the tax system and so the few in order to interfere with someone's right to represent themselves it has to be a significant interference with a tactical or strategic decision and the fact that the judge found that these questions were just cumulative suggests that it wasn't a significant interference with a tactical or strategic decision in this case and going back to the first trial the hungary on your honor judge seiler was right but it was one holdout in to convict but it's my understanding i believe it's not saying ends up in here leave us on the record also point out that the procedure where she was asked questions by stand by counsel was something she didn't object to  and she had an opportunity to voice to the court that she believed that questions when asked there was a side bar after her testimony were it she she was at present it wasn't brought up  so all those things i think go to show that the judge's decision that she acquiesced in the decision was not clearly erroneous and that that's a factual decision and the standard is clearly erroneous returns and don't file frivolous the flipside of that don't file frivolous arguments so i you know you i don't see that this is too unrelated that any type of unanimity instruction this court is pretty clear that different means of committing the same crime do not require specific unanimity instructions these are not different elements the element is disobeying the court that's in the statute these are means alleged in the indictment in this case in the in the contempt indictment try to argue before the jury this this theory it did the court stop her from doing that no she did argue to the jury in clothing that she had a good faith belief that you didn't have to pay taxes i'm not sure she went into all the cases that she wanted to do i mean i think these questions related to specific supreme court cases she wanted to discuss i'm not sure how those are relevant if it's if she's saying it's not a constitutional issue that taxes aren't con unconstitutional why she needs to  she had a fairly long closing argument and testified again for nearly a day on our own so the jury got a full view of what her views were and whether they believe her that she thought the injunction was invalid or that she was mentioned a few minutes ago the long line of rulings by the united states supreme court about attempts by the government officials to take control of a man or woman speech as it happens the most recent of these was issued by a court just a few weeks ago after i was indicted in this case mr mcclellan government counsel objection your honor the court what's the objection to citation of the court's case in argument that aren't from the judge in this case is instructions the court and is it's up to the judge to the jury what the lower a in a case where there is a good faith defense a criminal defendants good faith understanding of what the law is is certainly relative relevant analysis she was deprived of evidence from which she could argue good faith well i mean it would seem like looking at this record but one thing probably everybody agreed on is that she sincerely believes cracking the code there's i mean you really think th believed it but at the end of the day the jury still has to consider her mental state and the way they met the case was in see it with the way the jury was instructed for example to not consider instruction really does bother me primarily the council here you know talks about the flip side of different coins we're talking about two completely different concepts one prohibiting action and one requiring action and up filing refer returns according to cracking the code and file a return that isn't by crabbe code so fair that's fair yes questions sir thank you we will issue an opinion