issue of the first amendment i'm starting off my argument by trying to give a background and i'm going to make a distinction here between what i think the government targets and the on commercial speech that has no protection my concern is is this that  don't think there is any right to an instruction to the grand jury it'd just be the pit jury where there might be a real issue and so i want to sort out my own mind what we're talking about you caught me completely by surprise and i think i understand where you're coming from i can become an issue with the with the petit jury first amendment violation if you're maybe you can help me with the roadmap on this you have placed really large number of issues before the court there's obviously not time to cover but a small fraction of them what are you going to focus on  were an author and you were resigning information and you got thirty or forty dollars for your book and you were started in there how the i r s reacted to start filing people in my he started in there about how the i r s reacted when they gave people certain letters you acted informationally and recorded and you got a forty dollar big book thing that there were some other issues here about selling the trust for five hundred dollars which had some benefit to the taxpayer evidence supports that but let's look at the evidence in the light most favorable to the verdict and so let's assume the evidence supports that they still didn't get over the sudden eminent criminal action and brandenburg that was cited now bereft by the panel in the end bank as far as filing returns goes i mean if you sell a book that advocates some illegal act and person buys the book and nine hundred eighty six and that then having five ten years later when the issue comes up for them they look at their old book and act on it well there i can see where you'd have a first amendment defense but my gosh it takes quite a lot of kind of repair tax return three weeks until like much theater can be accomplished fast and some criminal actions like a lot of kinds of fraud can't be accomplished fast so and filing  nonsense tax return is in the latter category you just can't do with that fast so i wonder i'm still wondering why three weeks is not a minute and if you want to craft an exception i'm cooked turning over your first amendment argument in my mind because you have some significant points there and i want you to tell me what in the indictment and what in the instructions permitted the jury to convict based indictment to look at and what instruction to look at to find where the jury might have convicted any of these people just for writing and distributing a book and i think the indictment has the language that  there are some other aspects of this organization it's not just the book in the end was drawn on the heart and there were letters written to the are asked by any misdirection say that they can be convicted for the book alone and did you submit an instruction defendants with whom she was on trial she performed and the government indicates in their brief as well nothing more than clerical services she was working for a law first on the same floor where she then should write letters to his first amendment argument had presented a template letters in their books those template letters had been or were available to anyone who had the books all of the persons who were re was not involved in either the publication the distribution the sales the encouragements to file she merely inserted into to the template letters that were in the books that they had purchased their names defendant teresa mann harth you're gonna also serve as a paralegal who would charge taxpayers of before drafting protests correspondence on their behalf to the i r s after the ira after the taxpayers have encountered problems with the i r s as a result of following defendants advice that fal their name and address and some security names tell a fact they might get somebody else could've done this doesn't change the fact that that was part of the process that was built and to this arrangement if there were a problem they come to be with the people their for sufficiency of evidence challenging the evidence has to be taken most favorably to the government so it really doesn't matter what your ground zero admitted or what the other defendants admitted if the my six figures are high one hundred thousand some other years that you must have been doing a lot more than just being a scribe throwing in a couple blanks well your honor i believe that's the figure that you're referring to the government has rationally made by the jury and when you see that's a jury acquits erickson and more erickson being the right hand woman for when meredith assisting in selling books according to her everything said this kind of money i mean if i want to know what role somebody plays in an organization if you postulate a bar when he's trying to impress a girl i figure that's hyper persuasive if minimize the sort of crowd saying i hardly did anything i was just nothing in this organization well that may not be persuasive and the money they paid him to do whatever it is that he does may be the most persuasive thing well if that same kind of money as your down are when they work for this organization your honor i don't recall whether or not the income was comparable but their participation was active as opposed to the be activity that mr o'donnell was performing and i think when you look at what she did not do she did not urge the purchase of pure trust she was honest with the persons who came to her for example he indicated that she mentions to her to him that she considered herself lucky because she was following the same program and had not been harris by the government or the i r s she also indicated to him honestly that other persons were i focus on no one that jumps out at me right away a jury instruction number fifty five is a very brief so i'll just read it this is not ours the government required to prove an intent to abate or defeat any taxes so on the misdemeanor charge and twenty six u s c seventy two zero three indicates that that particular statute applies to an individual who in quote willfully fails to pay such estimated tax or taxes so on how do you reconcile the difference between the instructions which indicated that there was no requirement to prove an intent to evade and the willfulness requirement of of i gather your point is that even though the instruction number fifty five did not cover it other instruction did you think that was adequate to cover the requirements of seventy two or three yes you're right back now that i do have this particular page  shall refer to that because it's very specific about this crime which is under seventy two or three right in because it is offending for whatever reason let's say i mean let's just take like an al capone type example you have someone who just doesn't want to be on the federal government's radar even though they may not in fact be trying to evade taxes they just don't want the government looking in their books and so they're the government doesn't have to show intent to actually e may come back to the stuff you're taking the evidence most favorably to the government what enabled the jury to conclude beyond a reasonable doubt that she was guilty of the crime charged in that she wasn't merely  be your own personal giordano was not just described filling in names in two forms certainly there was a large component of her conduct that can be described that way but she interacted with these clients that were referred to her by weak people and based on the information that they sent her relating to their tax problems she would then sell them one or another or sometimes multiple rounds of documents and so while i may not be down originally a couple days a week for a couple of years and then you don't cave in more and more regularly and she sat next to tony smith and over time she eventually started actually even handling customer complaint calls were there any instances in the record where she individualize these letters got it out of the template other than just name address and social security number i'm not aware of any other i mean i just go there one of the then the she did notaries to have a book yes in which the person whose signature is being notarized signs if there's real property involved have to do a thumbprint of a like she do that with any of these point that the government's concessional restitution somehow it undercuts our reliance on her skyrocketing income i mean we just i don't believe that that will hold any water if you look at it this is in the past are the  all she provided she did not write full tax returns for any of the years just the front page the business income numbers are certainly lower than the last numbers that the government relied on trial with this other was but we don't have the schedule excess of fifty thousand dollars some years up over one hundred thousand dollars either way she's making a lot of money over this and it's certainly allows a rational jurors to conclude that she had and a motive for doing what she was doing on that restitution in third world countries you have public scribes and people come to him and say i want to write a letter to my husband saying i love him very much and the scribe may do that forbade him or may make up her own flowery letter and  there the lawyer may just dictate to a secretary i don't know if they dictate anymore they probably do it on their computer now what name and address and such to fill in the blanks but the lawyer was somewhere between somebody who just mechanically filton what somebody tells them and the lawyer is exercising all their judgment what that the evidence show about what she did there were the uninsured for example that i believe was victim form and it doesn't require a lot of judgment i know it's fairly formulaic but she's not just simply taking dictation and typing it up there is more interaction for purposes of the conspiracy count would she have had to do any more than to correspond with clients and recommend one of these packets would that have been sufficient to convict or i think for for profit versus yeah yeah for profit and a have to piece the testimony that you could parse differences from that's what the jury is there to do the testimony we're relying on is that he said she when she told him she was filing this kind of course of the arrest and was not being bothered and in fact six months or six months and i think there probably is a person mehmet defense of somebody just charged with conspiracy with their literary agent publisher to cause people to evade taxes  all they do is write a book as had i'm not sure whether it's clear or not from the way the case was presented to the jury whether meredith and the others could have been convicted on a kind of a bad book my problem with books that say false things they can be just grossly outrageously false and i still think there's a first amendment protection my gosh i thought and i thought hitler's mind cop i've also bought numerous books that are less egregious but i think two thirds of the books i i on current affairs have all sorts of nonsense in them surely there's a first member protection for that was a clear to the jury that they couldn't be convicted just because of the book i believe it was your honor i mean the court is why show me exactly the book did go to the jury a a prior restraint it's clear injunction case from this court from two thousand and four where the court enjoined the release of a book called the federal market which basically is lynne meredith's book and while shift may have been doing other things the the book in combination with the counseling and the filling in a form from the mailing off of forms that's one thing the book may be evidence of an tend to all sorts of stuff in connection with those things but if the jury can convict on the book alone even if they think somebody didn't do all those other things that's where i have to really confront shift correct and i wonder and you know what the jury convict put on seminars where she peddled the book and then peddled the trusts that were discussed in the book and in fact on one occasion the one of our who we are going to cover agent go to one of these seminars and they offered a special deal if you go over to the table and buy the trust right then and there  and then if people are having problems with either the zero income aspect of their program which is detail the earlier versions of the book or with the trust that then you can come back to them and they refer you to your donald who would charge you for the letters that they would be sent into the had no guns so they went around giving a lot of lectures for that fact and what's more he was promoting activity which was the deprivation of what the supreme court decided in heller were constitutional rights  think i can imagine the professor bill whilst could be indicted for lying in his book and the evidence later came out that he just flat like he said he looked at the state and states that were in  was from selling the book or if the offer presents record for us and then if speaking tours it probably made a whole lot of money for speaking tours and universities sometimes pay celebrity speakers as much as fifty thousand dollars just to come and give a talk absolutely those two facts that is that the full universe of what he did was speech and arguably in a pure speech whereas here once you start dabbling in providing forms that if you know the case into brandenburg with the really apples and oranges i don't have a bright line rule to offer i think the courts need to take a pragmatic approach to it when we're talking about you know fraud white collar crimes where the imminence is measured or right to speak and and specifically here this means that the expression of belief that a law is invalid or unconstitutional is protected by the first amendment but then it goes on to indicate that that the defendant's arguments here are protected  last one of the following our present one the defendant intended to incite others to eminently file false claims for refunds or to hide their income from the i r s on the eminent gets to the concept that mr eisen mentioned it is that is the government's position that assuming for a moment that there were no filing of forms no helping with protest nothing else i just say summer i buy the book and i have it there and i don't like get it right away but it comes tack time i look at this and the government just drives me crazy i can't stand this this makes a lot of sense to me and so i follow that i set up a trust and i do all of things that are indicated there does that mean that the book alone meets that requirement of specifically here i have been cited to eminently file false claims for refunds or to hide income know the judge left it up for the parties to argue and i think this was his life actually allows for it even broader time period because i'm not certain if you read the book for two years that what not or anybody's definition qualif and a lot of them were prosecuted out there wouldn't have today but they they were they were prosecuted for what they said there was no proof of anybody ever having followed up on it i think it was they even eugene debs or somebody was file a tax return it's it is it is criminal and yet this is just fine so that again we have people all over this country who make outrageous claims and books of all kinds of encourage people to you know to do any number of  i don't think we drilled down on it that way just like we probably could go back and define because there were a number of our number the witnesses we brought in said that they came in actually went into the we the people offices to talk with america after having book and then follow its rubric for the for example the zero income tax return send it in and then it wouldn't work and then they would go meet with meredith to figure out what to do next so the actual  no evidence was introduced by the government about the time period between the purchase of the park and the filing of the faults returned the eminent requirement could not be reasonably founded by the three who were convicted where they never went into the office and got any papers all they did was buy the book read the book and follow the book i'm sorry just like  what i'm trying to figure out i just don't buy your point that the book would be enough by itself i just don't buy it and i don't see the the dominion seaven comes into it i mean gosh back in the days when i did my own taxes i might have bought a tax book and may consider to be half price and not looked at it so the following march or april when when it was time to start working on my taxes could any of them have been convicted because someone bought the book and acted on it and that's all or were all three of them in position such that the overwhelming evidence was that somebody came in and they did forms for them wrote letters for them or did something subsequent to the book and that  here we do have this fully what we have here is what i was asking about and we have here is this fully integrated scene where there are all of these steps and the only parts that are all you believe even covered by the first of them are the book and the seminars and so at that point once you add it all up it's just you know more than enough evidence for the jury to it was enough to allow the defense to get a first amendment struction which was something it wasn't uncommon meredith people came in and talked to her and she did you could tell we're all troubled by the dark part we really are and the jury instruction is a jury instruction and less you can point me to something else it seems pretty clear that the first amendment struction says there is this right but if you meet these exceptions the first amendment is not going to help you and the exceptions all the all with eminent see which is defined on the next page of the instruction there's no evidence so eminently filed what what would you like us to do with that you want us to look at it in the numbers or we're going to do it i'm just saying if the government had its druthers how would we how would you have us treat the book as can't as part of the other things and if so how do you distinguish the effective jury instruction number thirty nine or do you want to really consider the book in isolation how do we deal with it i think the solomon shulman smith george freeman all the cases that we rely most heavily on for the proposition that when you have speech bundled with fraudulent profit taking