of laying out all the facts i'd like to just jump forward into what i perceive as maybe one of the more crucial elements of these these arguments which is i think whether or not the united states or its castoff is applicable to this case  you know and of course it appears to us that it is it appears to us that that ought to be the governing walk here and warrants a reversal because the government did not demonstrate anywhere and it's proof that mr has knowledge of any sort of pending government action and specifically i think on page forty one of our brief we we brought this out that i'm sorry it's  be brought to rebut the idea that there need to be some ideas some information about an i r s pending action subpoenas some sort of court action something like that and there was no evidence at all in the government's case demonstrating that there was any knowledge of that sort of action that mr miner possessed either for himself in not paying his taxes or in assisting his clients so that may help help  they get his name right now respond to a deficiency letter back actually helped draft the water i think there was a notice if if i remember what you're talking about there was a notice that doesn't that show that he's aware that the i r s has a proceeding against this person and is is going as an active investigation going on and that that's enough  to show his awareness this is a in the obstruction but i think that i prefer the question because i think it kind of opens up a perspective on the government's case that that evidence wasn't shown this that that's ass just as you're kind of asking me to derive that from what was told to mr minor what mr minor did we know a deficiency letter sent went out but i don't know from the facts of this case and what's in this record what was involved prior to that record going out what correspondence the individual he was helping had received whether there was a notice that there was an investigation with something was subpoenaed whether a bank account was i don't know and the facts of the case don't show either so i think that's part of the problem there's a lot of inference is that the government asked the jury to make here that may or may not have been reasonable and i think this is one of you talk about the is going after and i wonder does that count as as one i mean is saying to you you know judge griffin you're fifty thousand dollars in tax well you know the i r s has an interest they've got a file open and i mean he's charged aren't very narrow i mean i understand it's a very narrow and you can't obstruct something that you don't know is going on and i think that's the purpose of the jury instruction moot if you do something and it the fact may be that it would chatting about a settlement that there was talk about whether they're going to have a settlement so it must have been a man going on i don't know if he was involved in the settlement i know he was involved in drafting the letter yet your client he has a standard letters and he would give his clients and respond then he is on this case and then well i mean in a sense doesn't that then qualify anybody who has taxes as you know having knowledge if you think about it the i r s has an interest in every penny of unpaid taxes were going on i i understand what you're saying your honor i guess my my response is is it sufficient for us to look and say well there are facts if the jury is asked  question there are facts that they could have answered yes they could have said guilty on that element without being asked that element or they required we required in a jury trial under due process to have the jury actually answer the question and here the jury was never asked the question the fact is not genuinely in dispute does it make any difference again and now that comes back to this question you and i just had is that faction lee not in dispute did is not in dispute is that no no i mean it's very clear what he assisted the letter ok now that's just a factual matter that's a legal issue now is it not whether that constitutes or bay constitute proceeding i mean i don't i don't i wouldn't wouldn't the jury still the judge would instruct them on the law and the jury would take that fact and apply it to the law to determine whether or not that in fact that we we don't necessarily have to have the jury render a verdict as to a fact that is not in dispute and even though normally they would render special verdicts of this fact this fact and this fact  one fact really is not genuinely dispute well even though they probably should you know what it matters not materials not material well i guess that's my question all right maybe the jury instruction should have been given which is the factual issue is that really material in the case yes his awareness is still material because the government is arguing this comes in to the on of this clause so his awareness is material and the issue here the for the jury to decide would have been whether or not the deficiency letter was sufficient indication that he was aware was he asked that he testified right yes he did was he asked questions of that nature whether he was aware of a pending i don't remember any testimony where he said that he was aware i don't have any recollection of that in the transcripts anywhere i throughly think the government would have had that in with like surrounding it if they can answer it if you don't know yeah so but i didn't see and i mean i didn't see the mission of that type in the record where you try out counsel i was not your honor i was appointed just for the appeal and side to review the record just like you  did so i think that you know from the main standpoint that to me is the big question that this court has to answer is ok we have that issue a should the jury a been asked that question to be to is it an indication that he understood had the did he have it or not and letter a letter of a deficiency is that the same as what this court has found previously to be notice of a pending action or now are we expanding a little bit on the other hand what is an order to know what it is a physical action that the i r s going to send an agent out or bring in your books bringing your documents let's see all your records so what happened here they just sort of a bill said hey your dear deficient pay your taxes we were talking about levels i think is that does that meet the level of the of the of the action as defined under the statute congress and to the obstruction statute why i mean why would not congress i mean if if the i r s has an investigation going on but it's you know letter matt was frivolous and obstructionist and qualified under the rest of the statute as something to interfere with it so we have to assume that in order to get to the next part of your question which is i have to do with i guess i don't really know because there has to be some level to i mean when do we crossed from the freedom of speech freedom of information act freedom to question your government authorities to an act of obstruction where is that line drawn and that's really i think that's really what we're getting to here ok you're saying an audit is on the far side of the line a lot and now you're you know if you're in if you're if you're with an audit then you're obstructing ok that's that's on the obstructionist side if you're sending a letter to find out more information whether it turns out to be a frivolous letter or not to find out more information about this deficiency because you're saying or something wrong with the filings is that obstructionist or is that permissive is that legal or illegal and i think in this particular case that is the line that we have to figure out here and we're saying it's not we're saying you have to leave it on the side that's not because the citizen has to be allowed to do something maybe mr miner i don't know what would his whether whether we find him in good faith or not i i i understand exactly where the court's coming from on that point but but we have to also look at how this is going to play to all citizens who may not like mr minor minute like his stands in his books and his videos and his website but how does this apply to every citizen who may legitimately be saying hey i want information about this before i agree i owe you sixty eight thousand dollars you might want to wind up your lies went on for quite a while i was trying to isn't a tourist tax protester who spent years promoting and selling bogus services and products that were intended for the sole purpose of helping people to illegally avoid the pain of their taxes as the court knows he was indicted on th seventy two twelve that isn't raised by counsel today i and is the court is aware that there is a there is some inconsistency among the rulings by the circuit on this matter but i'd like to offer that there is a manner in which those twelve statute required some knowledge of opinion ira's proceeding of which the defendant was aware and the court found that it was less than a year later in this court's boman decision this circuit reached a totally different decision different conclusion and it hill because suit had to be limited to a specific facts and holding then later in two thousand and four the court then in big bright case set forth as part of the political elements for seventy two do to disclose certain types of assets and income on his tax returns and and that this report found no this does not violate seventy two twelve because there was no knowledge of an ongoing investigation or perceiving by the iris at that time this is not the kind of conduct that that so much be criminalised for if they had no knowledge that they were being investigated but then we turn to the to the bowman case and we look at look at what happened in in bowman where bowman deliberately filed false and fraudulent in ninety nine and ten ninety six forms to try to get the iris to audit his creditors ok so there's a great distinction between the two of those and  because of that the sixth circuit decided to hold bowman to a specific facts and ruling and find that there was no requirement of a specific knowledge of an ongoing ira's proceeding as picture of the law is that in this sort of instance it is not necessary to be an awareness of an ongoing iris proceeding it wasn't required by the court instruct the jury in that manner in fact the instruction that the defendant requested in this case would have gone far outside of the scope of the consumer case because it wanted an instruction that said that there must be knowledge of some ongoing criminal or civil investigation and i believe as judge griffin that you noted that that a be the end of the the end of the matter because of that but but let me respond to one point that was raised by mr fogel i have and you know we turn we turn to the record itself looking at the at the testimony of my sluice gate was it he had read for the jury on the stand regarding his interaction with the risks and he stated this is on page eight thirty seven of the record i was on an installment agreement for years ninety seven through ninety eight i followed returns i used joy foundation going further federal tax liens were filed he had ongoing ira's problems he was trying to avoid those problems that's why i went to david files in that and that you all and as we presented in evidence at the trial many of those were faxes and letters that were from the i r s because minor told his clients when you get a letter or a matter from the iris send it to me i hope you respond to it or ask about this when he testified i did not ask him about that your honor because he'd been as asked whether previously and i didn't could get anywhere with that instead what we did is we put a witness after witness on the stand who  way i believe that was in the overall instruction of the court in defining the low itself there there was not a part of the instruction that said that there was that there needed to be knowledge of an ongoing iris proceeding but there is no possible way the jury could have not known that based upon all all of what the jury heard the testimony of numerous witnesses you know going to the testimony of of of mr l prepare letters to get your your i in that form because everybody knows that individuals have no obligation to file tax returns or pay taxes so will point out how in the i m f the iris is could use a corporation information that supports the jury knowing that there was an ongoing iris proceeding that that the that the defendant was trying to obstruct or impede and that much is clear just  materials and in that regard this is even a stronger case than the than the bowman case and you know i understand the slippery slope argument that that counsel for the problem is making that really couldn't this apply to anyone who has unpaid taxes but with all respect that's not the case here these were individuals who had who were going to minor because they wanted to avoid the pain of their taxes and they were going to  the four unit could not and then somebody says tax records you could do that through fall into ten forty tax return and that's the one thing the david miner never told them to do except joking at the that was that was deathly what minor was trying to do in this in this case this was not an effort of taxpayers want to get more information about their tax liabilities you look at the letters that were submitted they more they are more in the nature of  manifesto these are my positions and if you don't tell me your disagreement within thirty days then we're going to sing that i'm right so i think i've covered all of the issues raised  herself she'd interviewed the witnesses were willing to talk with her and then she testified her own knowledge there was fact there was opinion but the opinion fall squarely within the scope of seven to one it was not expert opinion but it was properly pinion issue of the defendant's knowledge or he said it didn't use the word and ted documents were intended to do this and might my expert opinion will she didn't say expert opinion and i don't but i would note that she was there for the entirety of the trial and other individuals including mr polio mister mr lewis others had gotten up and they testified to the end of this also and in fact mr minor's own papers that he prepared that he sent out told the intent as well said that you know were you have to threaten the appropriate people in this in this is the intent behind it i think if anything she was merely reiterating what other witnesses and what mr minor's own materials had said no argument is are there that is that is my position i don't think it contributed to the verdict in this case it was merely factual information that they did that have been brought in through other witnesses and at this point and whether she had said that or she had not said that i think the jury would have reached the same conclusion as to that issue and  being in that respect it was merely a reiteration of testimony that had been introduced earlier both in mr minor's own writings and in the testimony of witnesses earlier about the purpose of this program and so in that in that sense it was not an expression of her opinion and i realize i'm out of time but i'm happy to answer questions it's kind of a fine line that the effect of this would be to do this but he probably if you use another fifteen or twenty minutes after that the government i think the thing that struck out and rang the bell for me quite often there was well but there's enough to infer that the jury would have and the government said on leaves testimony well you know there's enough time for the god would have anyway and you know if we're given the instruction well they probably would have done it anyway so the government is basically saying you know it's ok for leaning to have speculated  what the purpose was here for her opinion about what the purpose was here because factual testimony was given about what he did but you see the government blurred that line real quick ok there is a distinction facts were presented leni inferred motive inferred into and and offered an opinion about those facts and that was improper but was it harmless there  facts and that's what this is agent did agent got up he asked her questions and she told the jury what to think about the facts i mean i assume the jury can't think about the facts on their own they have no ability to assess the facts on their improper testimony we have the proper testimony of a given a clear that the fact of all this is to obstruct the government and what other interests you have that this was this mean it wasn't a mistake was it that he intended to you the effect of the effect of his actions were not a mistake i mean if the effect of his actions are the natural result of right and that's for the jury to decide what the effect was not from look i could you come to any other conclusion ok well here's here's let's look at it this way what he may have done was irritating and frivolous but he needed it in the information did it as you joke what what what other reason would he have to do it other than to it in and to obstruct i mean ok but what he did was was what he did illegal under that statute and the here's the thing he did it two different department then is the one that's doing the unit ministration here he did it to the department is supposed to give out information they have