hymens constitutional right to present to the defense that right was violated by multiple erroneous evidentiary issues helloween was just a few days ago but the horror story for their homines started years ago and undercover agents flew down from michigan to bastrop texas and recorded ten account worse of conversations with the herman's and there was one team in those conversations over and over and over again he said tell me about the cash how are you how d much cash are you getting out of this business i want to know about the cash and the nightmare continued into the trial multiple evidentiary issues depth to the point the jury didn't hear critical evidence the jury never heard testimony from the herman's expert witness the jury never heard audio clips that would have put the government's audio clips from those undercover recordings into context and the jury also didn't hear critical cross examination testimony that would have gone to the heart of the government's case and really their lead witness the undercover who had done all of those recordings i want to begin by starting with the expert witness the harmons proffered the testimony of william browne he is a former f b i agent bastrop texas trying to run a business and yes they did pay personal expenses with their business account but at about an equal amount they paid their business expenses with their personal accounts and they also the government made this case if you read the indictment the government indicted the harmons for making false statements about  receipts on their taxes gross receipts d not cash at trial it was all about cash that was actually charged was this issue of gross receipts and brown would have testified that the gro number it was all wrong the harmons had hired an accountant greg hadn't and pen would actually actually pay this guy forty one thousand dollars over the course of this alleged conspiracy to do their taxes draggled would have explained that pending got the gross receipts number all wrong that that number included transfers between banks and loan repayments and as a result what was we've all been in a situation maybe at a restaurant or somewhere where you don't get enough change back are maybe you get too much change and if it's a dollar or two it might not get your attention but if the numbers bigger if you're expecting you know forty bucks back and you many was very careful to say we're going to what i'm going to wait and i'm going to have a proffer and that proffer was sort of question and answer and quite thorough and in my right that brown admitted he had never looked at cash not being reported and he never looked at personal expenses being disguised as business expenses it was very clear he had no information if that's true then judge regus is willing was not a an article you know a seven hundred ruling it was a four they made the case about the cash and the cash testimony came from the undercover with recordings and you're right the defense was the one who wanted to focus on gross receipts but without brown's testimony it was it was nearly impossible to make that argument to the and you know if we want to focus on whether or not it was confusing this court in the cabin case said that when you're looking at specialized areas of the law it's important to allow expert testimony on that accounting by its own nature to the late juror might be confusing but the government got to put on agent fanning who essentially provided expert testimony and the defense never got to and the defense had to present a case needed to be able to explain her paid accountant and on the line for gross receipts the number looks great in her reply group we show the percentages for years in one year it was just one point six percent off payne would have said and she did not have the willfulness she did not see how off that number was and you know account to get some money can be expert testimony by its very nature you're asking an expert to explain something that's complicated but i think rodriguez went too far when he said it was confusing it was it was critical the the probative value of of his testimony was so high that that the jury should have heard it case that is the pretty interesting involving the sale of plasma it's the garber case it's it's from the cook at the late seventy's and there was a question of whether you make money by selling your plasma whether that income it's a it's an interesting little case to read and yes the case was reversed reversed a tax conviction where the expert was a clue to who would have the time and whether the sale of plasma created taxable income it's not exactly what you said about poor bookkeeping but it goes to the the idea that in tax cases i mean there's a reason congress wants willfulness because everyone pays their taxes and a lot of people get an accountant to help them with it so to be charged with  were these cherry picked statements from the government about cash and where we can get the cash and how we're going to get the cash that they got but the jury didn't get to hear that the government also said you know we take a salary they weren't using the business as their piggy bank that they didn't get to hear that while agent vella who's pretending to be a buyer is asking about cashed my kerman kept trying to talk seek to actually invoke one of the six during valence direct during bail as directed they ever say we want to put it in context now or did they are greedy to do it in cross with that because he didn't shut it down what he said was you can bring it up in cross and there was both cross and recross available and there herman's were allowed to bring in their context statements over and over again including their answers and thirty two dollars so it looked to me like they got the context in extensively through their suit and what they shut down was actually emitting the transcripts in the audio i agree that they were allowed to cross examine on it but it the but that's a different it's different to say he agent vella did you say x y and z verses the actual audio in the tone and the exact words in the repetitiveness and one thing of the trial lawyers did here is they actually created exhibit exhibit one hundred and thirty nine that showed the questions that showed them over and over and over again in the repetitive nature and in the judge didn't let that in as well what they could cross examine it develop about about these statements by asking leading question did you say x did you say why it's just not the same as having those actual clips in the fairness school's the fairness of one of six requires this i think it is reversible error especially when you put it together with with brown at the experts out what you are here is just a legal issue that was a little hard i think this is a difficult question you may have an easy straightforward answer let's imagine their context included exculpatory statements by your clients do you think the law is that one of the six requires that those answers come in for their truth even if they're hearsay or is that not implicated in this case well i think that jury that this court certainly doesn't have to get to that question because we did offer  the statements for the truth of the matter asserted but only to consider them for the context right now but i don't think the court has to get to that issue of course there is a somewhat of a circuit split it's not as clear it could be some of the language from from the cases we cite it's not clear how much to get the court to actually win the issue as opposed to just addicted mentioning hearsay but certainly one of six is it is an bull that really is too great a benefit to both sides in civil cases criminal cases and certainly in criminal cases in a case like this where you have such an aggressive investigation by the undercover officer it goes straight to those that have the the rights of the herman's to present a defense i see i'm almost out of time i just want to close with the cumulative error there are so many cases out there were committed error don't get to the mark but i think this is one where it does and three the court said i remain convinced that mr brown's testimony is not relevant to the issues presented for the jury's consideration in this case that the testimony that mr brown would have presented to the jury would merely cause confusion to the jury and would not aid the jury in its analysis of the facts it needs to find so under forth rebalancing it should be excluded in addition to lack of relevance to the court pointed out that brown is looking at this  twelve years after the fact the government sort of previewed in its response earlier that it wasn't convinced that all of brown's recalculations were accurate so this was certainly something  it was going to have to be gone into a detail and that was going to do nothing but confuse the jury it is a little bit it's a little government essentially got two experts in the case then the difference had there one expert in the government charging document did focus on gross receipts not cash ordered so i guess let me phrase that as a question why would it have been confusing to the jury to hear from round that business expenses were paid with personal forms how would that have been that would not have been nearly as confusing as dealing with the gross receipts question that there was no dispute as far as the government is aware that the it was a five hundred and seventy thousand dollars in cash was not reported to the accountant brown didn't challenge that the defendants have a challenge that so that was certainly not something that was going to be before it as you pointed out while the indictment charges gross receipts everything at trial was cash it was all about cash cash that was coming in the defendant skimmed off the top and never reported to their account even though they were counting basically said i need to deposit all of this income all of your gross receipts because that's the way i'm going to do the taxes the defense promised that they would do with what the the accountant said had asked them to do but then they did ok i mean i guess the overlay the emphasis they're giving is besides the charging decision cheek imposes a much higher see interest and heard and so if they were just cheating a little rather than cheating a lot maybe the jury would have thought that they didn't have the willfulness i understand the arguments it's hard to see how one hundred and twenty thousand dollars is cheating just a little many people i'm sure would be delighted to  have to have an extra one hundred and twenty thousand dollars in their pocket and they wouldn't find that just a little cheating that's a lot of people are using personal money to cover business expenses i mean mr brown would have testified i presume you mean wouldn't that have sort of negated this deception intent and maybe show that they were sloppy or careless but  not your honor that relates to the the payments but essentially that was what the testimony was based on mr brown's proffer that there were about ninety four thousand dollars that they paid for a bit of business  penses they paid for using personal funds and ninety four thousand dollars of personal expenses they paid using business funds so assuming that brown's testimony was correct that was a wash but that did nothing to the amount of cash receipts that were not reported which is why and in the brief we focus focus more on the cash receipts because that's very plain that that's not something brown was able to challenge you for excluding an expert here under four of three would be manifest error correct and if we were see there were latest error would it affect all counts it's hard to see how it affects the conspiracy count because the affects the other elements my concern with this case actually though and i don't mean to you you go into whatever direction you want to go my concern was really one of the six which is a very important role and as opposing counsel pointed out you've got ten hours of surveillance sort of staying tapes the government reduces that to about twenty three minutes of best hits that are highly incriminating and then the defense has got its whatever forty three minutes of no no no  exactly was that is the government's position we get to put in what we've pulled out is incriminating but you don't get to put in you're exposed to tory context no definitely not to our response is that the excerpts that they are trying to introduce were not they don't fall within rule one hundred and six i mean i we provide office prepared a chart dealing with all ten of the inn in the reply briefings in theater reply brief she goes through and if you look at the exhibit i mean if you go through the clips are not what the excluded clip is not does not explain or qualify the how would that not be directly responsive to the government's favorite clip that you can quote do whatever you want with the gaming machine governments leaving the implication that they said during these you know secret tapes oh you can do whatever you want with that cash coming out of the machine but they have another section that says we put it all in the bank of course i mean thirty two f they say that is responsive to governments dollars which talks about being paid eight hundred dollars in cash per month by was it call vending yes it's difficult to see how we're talking eight hundred dollars of those kinds of not be persuasively responsive it is not up to the jury i thought your answer we will judge rodriguez this rule requires fairness and he came up with a rule that was same day same topic and he let anything in that fit in that wall on argument i well we don't have quite understand you're saying well we don't think that was can text really favorable to them is that harmless is argument i mean i never thought one of the six allowed you to sort of say well their context isn't real contents is that what you're saying i'm not saying that i'm just saying that it doesn't that as i read the excerpts the thirty it is not really explained it doesn't relate to the eight hundred dollars in cash receipts from the gaming ok what about thirty two j isn't that where they said we put so those that his entire defense is we put the money in the bank and well he doesn't say that we put all of the money in the bank it's to the extent we have to the extent we deposited it went into this particular bank that's different than saying we deposit all of the money into the bank so to the extent it was excluded it would have been confusing simply because of the way it read because of because of what it says it doesn't say all of the cash we received went to the bank did did their herman's actually make a one hundred and six objection during bayless direct as opposing counsel mention most of this was taken most of this happened before simply whether they were allowed to go down a route in cross or not which is more of a hearsay question i do not recall exactly but i but based on my memory i do you do not remember during the the direct asking the fans asking to play the excerpts and that's when one of the six comes in right one of six is not a cross examination correct i as i said i think i do not recall exactly but to be extended i remember the transcript but certainly i'm happy to look at the transcript again oh what clearly did happen was on cross and recross judge regus didn't allow in the entire thirty two series lead in the m and n but many not up so then the issue is did he not do that properly because that's hearsay and it's inadmissible was that the government's position or do you think it was still sort of a one hundred and six echo or what we would classify it more as a one of six rather than hearsay and here's i mean here's say to the extent that it was being offered for purposes other than the truth of the matter asserted then it's not hearsay to the extent they were offering it for cont t but of course then it becomes more difficult because the time to have to have offered it or context was during direct and not office yeah i mean the district court certainly let them get in several statements that  sorry there were a couple of excerpts i think it's on page thirty of our of our brief either thirty or thirty one dollars that were more favorable to the defendants than many of the excerpts that they claim should have come in let me see if i excluded they basically have michael stating it's better to follow the law to do what you're supposed to don't cheat the otherwise you have the state and the or the county coming after you so the jury was aware that the statements were not all inculpatory there were many statements that were exculpatory and just to to the extent discussion i think the best i can say is that the court doesn't have to go there well that's true opposing counsel said yeah i and i would agree with opposing counsel it's i don't think the court needs to reach that question the history of the of the statutes are very different the language is extremely different when you when you look at three hundred and seventy one being hammerschmidt sort explain the limiting factor as the actually see there's deceit crafter trickery or at least means that are dishonest so the supreme court has already put judicial gloss on the three hundred and seventy one if the court if the supreme court wants to do anything else with three hundred and seventy one it's for the supreme court about whether or not there was a constructive amendment or variants and i believe the answer is no i don't think that this is an issue where the government charged one thing and proved up another but how they proved their allegations is highly relevant to the evidence the defense was prevented from submitting on behalf of their theory of defense and i can give you specific record sites where agent fanon very clearly testifies to his method which is he assumes the cash was not deposited and he assumes that if cash was not the positive then it was not included in gross receipts he does his own analysis about whether or not he can total up an estimate of cash receipts and he compares it to the numbers on the tax returns assuming those numbers are correct that is how he identifies what he believes is the missing total of growth of cash receipts and also the overstated expenses that tell the government prove their case and that's fine the problem and the significant error that deprive the herman's of a fair trial is that the defense had affirmative witness testimony and a robust cross examination all of which which would have undercut those assumptions by the agent and and the government's case  cash receipts would be but the issue the the assumption that the government makes in what fanon makes in his investigation is that the number i'm going to stick with gross receipts but this is equally true to expenses but the number of gro receipts is accurate but for his estimate of cash receipts and what bill brown would have testified to is that assumption that that total gross receipts is correct is wrong and he could clearly outline what those errors are it's the crime in these in these counts both conspiracy and seventy six dollars it's not that the numbers wrong it's that it's knowingly and willfully wrong with an intent to defraud the united states so there's there's room for error and as there grows then we have evidence that goes to intent and whether or not there was the requisite mens rea up we also have evidence that would cut against the credibility of the government's case and the investigation by fan it bill brown would have very clearly outlined where the accounting mistakes were that mr peterson made which were identified by agent famine and adopted an incorporated into his analysis thereby ensues using those same errors of accounting into the government's case and that is directly relevant not only to the facts that the or the evidence that the government alleges but directly to the theory of defense that we may not have best practices when it comes to bookkeeping and we may not have best practices when it comes to c p a accounting but the areas themselves are not criminal there are other explanations then this will fall and for both defendants but what's your best argument for why our sister circuits are wrong on merit alone and the relevance here i don't think it is  to cabin the supreme court's reasoning to that particular subsection of statutes so this these are sophisticated context in which these crimes arise and to make the standards so low it would be it's hard to distinguish what is a mistake and what or even negligence and what is an actual willful intent  this is new area both parties have identified all the case all there is and my only denim to the is a concern that that addresses count one but the significant errors of  excluding bill brown cabin mean the defense cross examination regarding the assumptions made by fan and his investigation those are things that affect all counts and for that reason the