and again i am sam hellman for appellant rick graham i appreciate the opportunity to speak to the court today i'm glad to report that this is a simpler case than the last one it was a two count criminal case a trial that lasted two days from from jury selection to verdict the main issue in the case is that the district court so thoroughly precluded the defense from offering evidence that would have allowed the jury at least  reasonable doubt on the one critical disputed issue of fact in the case and that critical disputed issue of fact was what was on rick graham's mind what was his intent was he as the a lot of taxes in that for years and years he tried diligently to pay them and he paid off a lot of them but st but then somehow in the summer of two thousand and fourteen he totally divorced will went from being a great some documents styled international bill of exchange and they're no good we all agree with that and some accompanying documents that contain some kooky stuff now the question is rick graham think that he was  s these documents were worthless but somehow thought the i r s would fall for them or on the contrary was he the guy who was defrauded by the people from it and the problem is that the district court with the fellows from atlanta who were the ones who created these documents and the district court would not even about let mr walker say what those fellows from atlanta told  him about the documents because the district court says that was hearsay it was not being introduced for the truth of the matter asserted the government recognizes that now obviously this what mr walker would have said about that would make a difference in terms of what was likely on rick graham's mind if he had been told by the fellows from atlanta hey this is a fun scam and it sometimes succeeds in fixing the matters because the jury might well say look if walter fell for walker who's more knowledgeable about this sort of thing than granted if walker fell for it how can i be sure that graham who was using walker as the go between why am i sure beyond a reasonable doubt that gray know i'm new that walker was a r bearing on walker's state of mind and therefore i'm graham was not in your honor but i have read the record i think the best answer to that is that the district court said sorry that i asked a question that may walk a state of mind might be relevant to graham state of mind if indeed walker communicated it to graham or there was any indication that the defendant was aware great state of mind but i didn't see in the record any indication that the defense attempted to introduce or proffered anything bearing on any statements walk that might have made to ram advice walker may have given a great or something to that effect have i misread the record have i missed that we handed that i don't  know your honor you have not missed out for him to the record but what i would emphasize is that the district court shut us down before you could even get to that you can't ask mr walker did you  and i gree with that your honor but let me suggest that that is not the end of the analysis because telling someone something is not the only way that one's mental state  thank you is not the only way that one's mental state can affect one's own right and you have a hard time as stablish ing an abuse of discretion it seems to me going to the question office state of mind in the absence of trying to show that walk a state of mind was x and he communicated in words or substance that state of mind for the defendant absent an effort to communicate i ok other hearsay rulings where for instance did you change the social security number on one check at the direction of banned from atlanta and the district court said that was hearsay all sorts of things were hearsay did you give the agent ben's telephone number that's hearsay those are not the more crucial things in the case the more crucial things in the case were if i could get back to mr walker mr walker would carry himself differently if he thought it was a scam versus if he thought it was real graham's got even crazier looking documents and at that point he canceled his contract with walker now the jury could understand from that that what happened was that this graham thought he was running a scam hadn't been thought he was had thought he was part of a scam back in july august october is it relevant yes because you can readily imagine the jurors understanding this whole story and and the government is always i guess i don't want to interrupt but i know you're you're running on time before you sit down sure you on would you like me to speak to that or do you have a question in particular essentially you said of the other issue is more important to you do you do you think that there's any investigation but what we suggest is that in the ministry of proceeding is something that proceeds something that as a swimmer know the administrative proceeding has to be pending or at least in the offing revenue officer they determine that there are substantial taxes due and are going and over an extended period of time they take many targeted and specific property selling property and through out giving him notice that he's an idol to a hearing on many of those steps if he chooses to a veil himself why isn't the totality of what happened here the kind of thing that goes far beyond a routine administrative matter such as simply accepting and processing a ta filing in the ordinary course seems to me they went far beyond the ordinary and routine when they began to collect revenue through all of these methods why isn't that enough to make the marin will say well just in general maybe we were going to keep on trying to collect but i submit to the court that in general we're going to keep on trying to collect does not constitute an administrative procedural  more than say in general we're going to keep trying to collect didn't they in this particular focus on him investigate him and seek to obtain monies to make the government whole there is evidence that had been done in the past yes your honor there is no evidence that any investigation was ongoing or pending at this time no indication that the government was investigating  how do you think that that without an investigation all of the actions that answer when to place it occurred that something certainly happened out of the ordinary besides a person submitting their tax returns and rick graham to be trying to obstruc to two thousand and fourteen the record makes clear that he did not comply with his tax evasion as he made some his tax obligations he made some partial payments and the revenue officers testified that you know he didn't attempt to obstruct their efforts to collect  but he was not in compliance with his tax obligation and two different revenue revenue officers testified at length about their efforts to collect their investigation into available assets and property their seizure of bank accounts and relevant to mr graham state of mind the i would note for the court that thomas walker did in fact testify about some statements that he made to graham and i would refer the court to page one hundred and fifty nine of volume two of the trial transcript and which walker describes how he met graham what he told graham about how he could have potentially help him with his tact that and he knew these guys that did the bills under rule for three because any marginal that it had with outweighed by the possibility that the jury would be confused or distracted by this testimony about walker's state of mind so the the district court properly the statements were clearly not offered for the truth of the matter asserted but we would note that that argument was never made to the district court and you know if if the defense counsel had pointed out to the district court that the statements were not being offered for the truth of the a court on the barren under mental issue i think that opposing counsel is the start of that although there was an investigation that this alleged abduction had nothing to do with that investigation what's your response to that contention and that you notice makes clear the virus is collection efforts are ongoing nothing has been completed and that that revenue officers you know continue to investigate and those are brief makes clear you know continue to exercise discretion about when   cali from the nd circuit is is helpful here that case also involves civil collection in that case the revenue officer was seeking missing tax returns so the defendant in that case has not  that's also part of the iraqi civil collection efforts is to contact taxpayers to try to get them to file delinquent tax returns so the revenue officer contacted the defendant and said we need your tax returns and then the defendant submitted false documents to the revenue officer what happened here the revenue officers were attempting to collect money rather than showing which tax returns they notified the defendant about their collection activities and the defendants admitted checks to the iraq so we think there's actually a very against all to taxpayers as a matter of course rather it is a targeted tax related proceeding and so it clearly satisfies the pending proceeding requirement and all how much more causation or logic with that proceeding is there a whole lot else you think we need to go into in order to flesh out that standard or is that pretty much it i mean i think that i mean i think the standard is pretty clear and i think that  you know the defendant here is arguing that some sort of quasi judicial proceeding is required some type of hearing some type of you know fact finding undertaking but make clear that a targeted civil collection action by concurrent sentence would not apply here because i was trying to look through the record it looks like he did get a separate did he not based on both convictions one hundred dollars for the total two hundred dollars fee attached  transcript or the sentencing proceedings so i can't i can either i can't answer that question i'd be happy to get back to the court and i think that probably yeah but i was just curious if it were totally concurrent all the way around it really wouldn't much matter  investigation in the past obviously what i'm suggesting is that a filed lianne or noticed levy do not themselves constitute standard for relevance is quite quite broad as as mccormick's as quoted in the in the committee comments to to the rule not every witness is supposed to be a homerun that's ok anything that gets you a little bit further there you know the government says that we did that maybe we waived the point that this wasn't hearsay about what about how the guys explained and  have to make a profit unless the content is clear otherwise clear from the context and it was quite clear from the even just from the opening statement a day earlier was what we wanted to prove so there's no issue there's no question that th layer of the of what the issue will but the evidence was under rule one and what i'm saying is that that's what a person has to do that that's how you can fail as a proponent of evidence when the dust when the district court said when we are opponent jumps up and says hearsay and the district court says sustain rule one of the three doesn't say you have to then argue with the district judge has already made the ruling and again you  all sorts of damning evidence that doesn't go exactly to what the defendant or to the state of mind of the government is allowed to complete its story to tell the whole story to put things in a certain light  have its witnesses tell as it's going off and tell the story in a way that includes everything that they would including integral and natural telling of their version of what happens that's what the government gets to do all the time and what i'm suggesting respectfully to this court is the defendant needs to be able to do that too and if mr walker had been able to say these guys told me the system that nobody knows about that you have a special account and like a fool i believe and that's why i said ok rick let's go to our ask i was acting in good faith you know i never gave any hint that i wasn't all that it was a scam when his agent walker who was doing all the talking did not that i suggest is the most important part of the case and i think the  jury would have been very hard pressed to convict beyond reasonable doubt had they been able to hear the calmest power thomas walker was fooled and