because it failed to specify what particular activities we perform the cave rise to a duty to file a return and what was that specifically assuming for the whether in time it should be valid do you earn income as a lawyer do ironing some of the law or i would say do you know do you file federal income tax returns i would say that i do are you a volunteer well but my client did request a bill of particulars he was denied that request and i think a bill to particulars was necessary in this case to give my client and appreciation for the book that the kept my from the witnesses indicated that mr karr referenced invited them to remain his clients and there was testimony from witnesses that his understanding through mr kyle of this tax was that explains why it's the filing of returns is a voluntary act and there's no duty to do so there is testimony from witnesses that mr columbina been to attend a seminar that would assist book admitted in evidence at the trial i believe if it i'm not certain if it was either a book or a flyer referencing a book that had the the front cover of the book on the flyer clients to participate in a seminar that would provide essentially the same justification and understanding that the filing of return was a voluntary act and there's no law that requires he you know you can look at the whole case and see that he didn't even have an opportunity to present evidence because i don't really are hearing and i think it was in august he was asked about witnesses obligated to file the taxes correct so these people who are going to look at the records and say under these records this man was not required to file a tax return that's what he sa faith belief that he did not have to file tax returns and he wants to present evidence to that effect but you have to look at the following statement by the judges i won't permit such witnesses you have any witnesses at all testifying about your income or that you didn't ear these are the issues that you can present evidence about your income how much income you make and there's no discussion about mr kyle subjective belief in the duty to file a return and i think it's a critical entrance when it went to the heart of the case and i think mr kyle belief in his duty to file is at the heart of this case and whether it's misguided or not of course cheek states that that's not statement that says his client's made about his conviction we think he was a huckster and greedy which was essentially the argument by the prosecution that rather a jury that the jury had an opportunity consider that they could have they wanted struck in on that they were really instructed to consider that's whether he acted willfully which is not accidental or negligence so it seems that here's acted willfully for the purpose of the gating his duty under the tax laws and not as a result of accident or negligence so the court the jury when they convicted him necessarily found that he did not act under a good faith belief know there was no instruction and the courts have found that when the jury is properly instructed on specific intent there's no need for a separate good faith instruction and of course in this case there was no evidence what the defendant's belief was regarding his responsibility file returns in his opening he basically said there's going to be a lot of evidence from the record from the government records and bank statements they've collected and there's a lot of evidence that was brought out to show that mr kyle did not i say it again did not earn the minimum requirement so his main argument seems to be from his opening statement that he didn't have the income to require him to file a return and again in his closing argument he said i submit to you that the government has not proven all of the elements of the offense against me beyond a reasonable doubt he never said to the court your honor i want to put in evidence about my beliefs about the tax code when he had the pretrial conversation with the court about what witnesses he was going to present he said he wanted to present expert witnesses that would testify about the filing requirement and the court said properly i'm not going to allow any expert testimony about the taxpayers who receive a certain level of gross income don't have a duty to file tax returns because that is not the law that says you can put on fact witnesses that will testify about the amount of income you had deductions  in some evidence of a royal counsel statement his conclusion is incorrect the government did put in evidence that the defendant attempted to sell this vultures an eagle clothing book and also attempted to get some of his clients to go to these three thousand dollars seminars none of those witnesses said and the defendant told me he believed those things all we know is that the defendant tried to sell these things there are witnesses couldn't testify about what the defendant's belief was or about what the state of mind was but that's evidence of that is of course the defendant's own testimony is the best evidence but i suppose you can draw inferences from with somebody you could have i believe there is a way that you could put on a evidence of your good faith belief possibly without yourself testifying  let's say you have written letters to the internal revenue service saying here is that this is my understanding of the laws as they apply to me i don't believe they applied to me you know for whatever reason or perhaps maybe if you could get over the hearsay objection perhaps if you had explained to clients look this book is great i believe everything in here and that's why i don't file my tax returns and you shouldn't file yours either but there's absolutely no evidence of that kind of conversation going on just evidence of commercial transactions where he's trying to get people to buy these things and if they don't he goes ahead and file their tax returns i suppose there are just two new princes you could draw from documents like that somebody put record this guy whether he was mistaken or not they have believed i don't think there's any evidence of what he made them believe i mean it's quite clear he prepared tax returns for twenty nine years he filed his own hash returns up until hundred ninety one and then stop filing his returns for whatever reason he became convinced he didn't have to let me ask you this did judge fitzgerald define willfulness in his instructions to the jury the only instruction on will cannot ask for the purpose of abating your duty under the tax laws if you don't know what your duty is so there wasn't a duty that he knew and it had to be conduct that was not an accident or negligence so all of and in this case i think it's clear that while the language was not the exact language out of components there is no requirement that that language be the only language used as long as the specific intent element is conveyed in terms that are understandable and if you look at this court's opinion in hoc several there are at least i think three different formulations of the definition of willfulness in that case so obviously in one opinion you can have three different definitions that the courts are not bound to use some magic word if willfully were to be defined for the jury you would somehow or another work into that instruction that definition the words voluntary and intentional right and that would be the only difference that the only difference so if we look at this instruction hoodie or one thirty nine and says he acted willfully and you point out for the purpose of evading his duty under the tax laws  indicate intention it seems to me yes and not as a result of accident or negligence i think you're arguing to us that voluntarily voluntary and intentional was necessarily body in the instruction it was given that's correct and therefore there was no instruction there that's correct suppose there had been an instructional error where would that lead us well it would depend on the error if for example the court did not mention anything you for your argument very clear very concise thank you your honor i just wonder if the court has any questions about the disposition of the case and whether the supreme court's decision in booker if not i don't think we do thank your honor all right actually mr pelz opening statement he did say and mr kyle didn't have a duty a legal duty to file taxes there are certain sorts of situations that they should apply before and for any of those be done that is the fourth elements in the pattern structure in the defendant did not have a good faith belief that he was complying with the provisions of the tax laws a belief maybe in good faith even if that is unreasonable we don't have that instruction in this case we don't have the type of instruction that's suggested and modern federal jury instructions and which again talks about if he believes in good faith that the act actions comply with the law he does not act willfully if he filing and then there's the belief in not filing and without separating those two issues willfulness becomes so ambiguous that a jury word mistake and a jury could say well he was mistaken he didn't think he had a file but that wasn't an instruction so mr prout belief wasn't even considered by the jury the mr kyle was limited to issues how much income he earned and that was the type of evidence that he could present i think that that back colloquy limited his ability to present evidence of his personal  his personal belief in an obligation to file and so he was convicted of a crime that doesn't exist because there is no crime to failure so intentionally fail to file a tax evasion because you can only convicted of the crime if you believe you have an obligation to file it out that leaves you can't be convicted of the crime it's important that the jury the right by the judge every element of crime so that the defense can truly receive a trial by jury and i think it's fair for  and we can't guess what the jurors were thinking either because they were never given the instruction it would be very hard for us to determine that your client was not credible since we didn't testify well that's well beyond our reach and i agree with you th which is really an element of the crime and mr kyle was deprived of his right to a jury trial because they didn't consider all the elements