his two thousand tax return in relation to his a to z income when the government said you have to declare your agency income on your ten forty return if your personal attorney should those deductions are followed and the state of the record is like i'm not this is not sufficient you case this isn't a can any reasonable fact finder find it's a jury instruction case and compared to the cases earlier i'm way more than just a week basis or a insubstantial is regarding income so given that i have a basis in the evidence and that it is a legitimate defense government to pillows around this issue but there's no question about it the government has to prove tax to fifteen c as part of a tax prosecution proving a tax deficiency is different than proving that there is under clear income you can have under cleared income and not have a tax of deficiency indeed i think that probably for most of my college years when i earned think fifteen hundred to two thousand dollars as a a i didn't declare that money not pretty sure i didn't know any income on it just because of the standard deduction and i couldn't be prosecuted for tax evasion because there wouldn't be attached efficiency and that would be true regardless of what my intent was i could have thought to it is that it's a specific intent crime it's the most specific intent a specific intent crime if you have to understand you you can have a good faith belief that what you're doing is correct and it can turn out to be wrong still not guilty of tax evasion so those are my issues the only thing i want to highlight is that i raised this issue early on in the case i brought this up eliminating i moved to have the government be precluded from arguing against the deductions because of what the case agent said to the grand jury branch or asked a case agent what about deductions case agents and i'm paraphrasing of course that's not part of our theory our theory is that you know he has this unclaimed income end  i raise that government says we're not going to talk about deductions then that the jury instruction conference they blindside me and maybe i should have known about the case but i didn't they say look you loser doctor you can argue this but overnight recess for me to go research this find out what it is and rethink and i've made this argument to the district court i made it in the new trial motion and i'm making it today tax deductions are a legitimate defense and for the government to claim that the district court did which would have offset his tax liability such as for there was no tax to knowing that there is no tax deficiency the problem we had with the instruction of the from the district court had was with the word on claimed if you take that word out then the certainly he's entitled to show that the auctions reduced or eliminated tax deficiency and that is essentially what the deficiency instructions to the jury on that element read so the word unclaimed is necessary in this he placed them on the corporate turn in two thousand and the corporate return in one thousand nine hundred ninety what he wanted to do and what he wanted to argue through this instruction was that if the jury transpose these deductions moving from year to year likewise with that restriction that is the deductions have to stay on the return from which they were claimed there's also nowhere in the guide like calculation the defense asked the court any deficiency and therefore reduce the guideline loss that's that was an improper thing to ask a district court to do this court declined the invitation told the defendant his ruling he was stuck with the actions as claimed on the  element and provide a complete defense to the crime but that's not this case that its actions were on the table used by the defendant they were used improperly in a corporate form to reduce that of the deficiency in ninety nine and in two thousand thank you makes a general statement that yeah usually see corporation is a corporation has to duction so you can't just say well i own the corporation they're now my deductions but that's not the situation half what we have is income the income created  unclaimed thing that the idea of the problem my defense was i used the word unclaimed unclaimed is the language from the case law regarding the deductions that aren't on the return obviously they're not claimed without point he using it in  the technical tax argument is he wouldn't be able to use a carry back laws if he did the deductions in the way the government suggests if you have the ten forty you can't do it carry back in the manner that mr kaiser did you can only do it kerry back if you had a corporation so yeah you're right i'm not have a problem i'm a bigger hill to climb with garbage can one of the we're here to talk about part one because count one got a hung jury on so whatever reason the jury found was the reason the jury found and all we're talking about is count two and you know if the government wants to re indict they can re indict and we can have the same trial again only he should be allowed to bring his defense to count to count a conviction couple of quick points about miller i made the sufficiency argument it's still an address it's never been addressed and the cases i cite from this court from the ninth circuit over what not are much earlier in time so even if miller somehow was in conflict with the pro state i got the earlier in time once so they control and i also want to mention that you know i quote at least six other circuits that agree with this proposition they stated clearly that deductions you know are