the person issue namely the exclusion of vital defense evidence of mental instability as i understand it the judge excluded all evidence from earth has been as to her mental instability at the time this particularly important in a tax case because the law requires not just that the government prove that the act was stability and it was invisible because he wasn't there was no notice given and it was an expert well of course you don't need to give notice of any kind of a mental defense except for expert  testimony here clearly the husband was going to testify that she was done wrong she was i mean it's difficult to imagine your spouse planting fruit trees at random in the backyard i mean that's not normal behavior there was other evidence that she's behind duplicate appliances for no apparent reason and if you got one lender why do you need to the fence there's no question here that this was the main piece of evidence really the only piece of that bit of downtown so i think you said a couple of times they completely do that but i think government argued that i mean the husband did get to testify is a life changing moment so that someone might react a little differently or feel i've got that they had this little thing to take care of they can tell him what's wrong with them and that you have to be you know a parent still that's very different than placing fruit trees at random it suggests the former is a natural process which does not put the powers of reason in advance but on the other hand what he was allowed to testify was what was important namely that she was a computer thinking that she was doing stuff that was weird that no rational person would be doing is specially important because the government has a higher burden of proving that the person acted knowingly as well as intentionally she was history this period of time we're talking about where she's still doing her job as a as a tax  would think for a jury to hear from an expert that she was having problems that would keep her from being able to develop their records a criminal intent as opposed to having her husband testify about planting fruit trees that seems a little the jury be quest juries tend to be very skeptical of that kind of evidence on the other hand if the husband comes in says look my weight was eight in the staircases yellow with the that was blue whatever was when you put it in terms that jurors can relate to is sometimes has more persuasive force even though the expert knows more and if the question was wanted it in a journal  or among other people in the piece of the secretary certainly an expert's opinion would be more or be given more weight but here you know when you do we sure is it is tough to sell a psychiatric of evidence and a critical evidence of the government's case here this was her only depends it was  crimes required no intending to do the act that you did it without knowing whether or not it's legal to the theory being that the tax laws are so complicated you know one impose criminal sanctions unless the person actually knew what  need to judge fletcher's question then does the does this argument about her not being in the right state of mind is that those that relate to her that the leading up the file arguably not but are you believe yes because if she was really you know one compass meant is it would relate to anything that she did is question what weight the jury gave that testimony is a higher standard of proof for the government as the tax crimes but there still is burden of proof on the government to show that she acted with intent to do the things that she did as opposed to her knowledge of the  only did she cheated on her personal taxes but that she cheated on certain returns that she filed for real estate trust that she stole from her employer and that she destroyed evidence once she knew that there was an investigation an appeal sure is three issues i know only some of the crimes here war specific intent crimes and so counts one through six here were the tax counts and those require a heightened state of willfulness requirement the other two crimes count eight was stealing from the i r s that was a six in their reply brief you your honor the these are really the we're really talking about two questions here that the district court sustained objections to and the two questions had to do with the husband's observation of partum that she just wasn't herself that she was having trouble that she maybe he was too stressed at work and that is the context in which the district court sustained the the objections now we talk about this sort of post hoc rationalisations about the planting of the fruit trees and buying too many appliances and having a messy car i think our position is even if all of that is true it's irrelevant to what we're talking about here which is this willful in a state which is did she know  under the federal tax laws and did she knowingly and intentionally violate that duty but you have to remember we're talking about abuse of discretion we're talking about the district court as it sat during the trial and as it sattar in the trial the district court never received any sort of a proffer like this never received a proffer of this sort of planting the fruit trees and having the messy car it was simply presented with defense counsel's assertion that he wanted to get out that miss ocky that had certain behavioral traits and that she had certain demeanor traits and at that point the district court made its decision and decided it was irrelevant now counsel talked about how he would have presented this case and he said well i might have elicited some testimony from the husband and i might have also had an expert testify as to how that would have tied in to welfare and i think if that was the scenario here we would have a different case because at that point you would have had some relevance to the husband's observations there would have been something tying the husband's observations to the to the willfulness here and to the legal issues here and here we just simply didn't have even if the jury accepted all of what the husband said is true it wouldn't have impacted the jury's it would not have impacted how the jury saw whether misawa kena had committed these crimes willfully or not  therefore the evidence wasn't sufficient that's not sure so the files there's there's a significant amount of testimony in this case one is one of the points is that there are there are a number of files that were irretrievably destroyed that the government was not able to retrieve with forensic tools that the government's experts were not able to retrieve secondly there is evidence that not only there's this file birth up there there's evidence that she had placed that file in the recycling bin that she had then deleted that file she then during the certain period of time between when the iris agents st came to her house and when they came back to her house after she had sent them on this sort of wild goose chase to her mother's house that she engaged in a number of actions she deleted her not put forward the attempt theory here we have the government going forward on a number of theories one of which is this destruction one of which is concealment and one of which is alteration and we would submit that the government proved  that's correct your honor the the idea of whether or not she was married it kind of came within under the under the sort of larger question of whether she was entitled to head of household status and and the other the other sort of part of this that we should remember is the jury isn't asked to determine whether or not she properly had house of household i'm sorry head of household status the jury is out to determine whether there was a material false or incorrect statement on the now the government have the government theory was and the jury accepted was that there were a number of falsities on each of these tax returns and that one of those was head of household but even if we accept the head of household even if we accept the  misawa his theory that well separation evidence should have come in through mr van house there's another part to head of household which is that she needed to provide it more than fifty percent of the of the household expenses and this case i each of the three years two hundred extension eleven there's uncontroverted evidence that she provided substantially less than fifty percent of the household expenses so your honour's we believe that the abuse of discretion is the correct yes there are three things i want to address st you know the record that we have in the case is not perfect because what happened is as to the issue as to the husband's testimony what happened is that but the fact the matter is that this discretion is only put on the record by the judge after the jury already been excused at that point all the participants know what was said at the bench but they may winnipegger on the record often they make assumptions because they know everybody heard it so you don't have to repeat what everybody know now that the net result is you get a record it's incomplete  here we don't know whether or not the defense counsel specifically discussed the bizarre things that she was doing at this time as though we don't know exactly what was said to to the destruction or of the finals you know it's really interesting knowing the government had every file that they claimed that she destroyed on her laptop and their main server so it can't be that it's a crime to destroy your company with the government this but i think also i think it is like if if there's two copies or something but i shred all my copies hoping they're the only copy and file they're still not in that it and whatever court documents that were filed destruction is destruction not destruction of countries and i don't think there are any cases that say if you make it is xerox copy of something that the government has that considers every bit as if that's a crime but what to look at i counsel but just to be clear so it sounds it sounds to me like you are acknowledging that he did succeed in you know destroying some copies but that the but your