good morning inmate please the court based on the united states supreme court's decision in the marin mellow case following the trial of this case the government has correctly confessed that the instruction that the jury was given as to the sole count of conviction was error mr beck i'm who is here on bond from this court was acquitted of every count in which the jury was properly instructed because the jury in this case was not required to find mr beck i'm guilty beyond a reasonable doubt of every element every fact necessary for a conviction under section seventy two twelve a the sole count of conviction we ask this court reverse what the supreme court did in the mare and l it case is it found that a conviction for the criminal tax equivalent of the obstruction statue twenty six u s c seventy two twelve subsection a requires proof not only of the elements but the jury was instructed it had to find beyond a reasonable doubt in this case but if two additional elements number one that mr beck i'm was aware or that it was reasonably foreseeable of an ongoing i r s proceed and number two that any corrupt act or any corrupt conduct done with that mens rea was done there was a nexus in other words that the e two questions about them one one is did you object you were trying to be subject to the language of the special yes your honor we specifically objected to the special verdict form it's in the transcript in volume six on page eight and what we said there is that the verdict form that the jury was proposed i'm sorry that the government was proposing does not cure the issue at all in the context of the instructions conference where we made that objection what we were talking about was our request on behalf of the defense that the jury be properly instructed beyond a reasonable doubt that it had to find the two with now consider the  did you object on the basis that it didn't contain a reasonable doubt standard yes and no your honor not not expressly in other words there's nothing in the record that would reveal an objection from mr beck and counsel which was me saying this verdict form does not contain a beyond a reasonable doubt standard however in the context of what we were requesting i think that we did your honor and the reason why is because we proposed defense proposed instruction f which would have required the jury to find the so called marron l o l m and beyond a reasonable doubt and we have objected to the government i'm sorry to the courts refusal to instruct the jury as to there is a noble doubt language so by saying that this doesn't cure the issue at all which was the language that's in the transcript that i do believe that we objected furthermore your honor i don't think that that controls whether or not reversal is necessary in this case the reason why is because as a practical matter no panel of the eighth circuit has ever held that a special interrupt a turing not subject to the beyond a reasonable doubt standard can cure an erroneous jury instruction that's never happened in the history of this court three circuits the first the fifth and the tenth have found that it's actually plain error regardless of any lack of objection to exclude the beyond a reasonable doubt language from any but not completely what was insufficient what the special verdict form did your honor is the special verdict form instructed the jury if you find the defendant guilty in other words if you've already found the defendant guilty then you must answer the following questions and the questions asked was did the defendant commit at least one corrupt act after becoming aware of the existence of an internal revenue service audit or perceiving and then it basically gave a list of twelve paragraphs which were paragraphs of count one of the indictments sense of the corrupt acts quote unquote as they're alleged and then it asked the jury to find unanimously which one there was never a question about the nexus and the supreme court  held that that's a fact that must be found beyond a reasonable fact because that's a fact that must be found beyond a reasonable doubt case law going as far back as the winship case before the united supreme court clearly establishes that a criminal defendant has a due process right under the fifth amendment to have every fact necessary for a conviction to be found beyond a reasonable doubt by the jury so in this particular case the verdict form fails and two capacities number one this was not found beyond a reasonable doubt and we do think that that's significant but number two the jury was not even asked about the nexus requirement the fifth circuit squarely addressed this exact issue in the stanford case which we cited in our brief and it was obviously a difference statute but the issue in that case was whether a special interrupt atory in a federal criminal case essentially save in other words justify and affirm and of a criminal conviction when the special inner aga tory was not subject to the beyond a reasonable doubt standard the fifth circuit interesting the enough in the divorce case which we cited in our brief as well and what the fifth circuit did is expressly say we cannot presume the jurors applied the correct standard of proof other words that's not something that that we speculate about or guessed at and a defendant is entitled to a jury determination that he is guilty of every element beyond a reasonable doubt so absent an appropriate instruction the fifth circuit correctly reversed that conviction and did so based in part at least expressly addressing this court's precedent in the divorce case there are two instances where the eighth circuit has addressed a similar situation at least the only through that we could find were cited in the government's proof as well it's ryan and devor ak in both of those cases the jury the special in a raga tory at issue that was used to basically affirm the convictions expressly included the beyond a reasonable doubt language within the inner raga tory itself and in the ryan this court actually said i'm reading verbatim the jury considered and made findings as to each and every element of the statute that was at issue using the standard beyond a reasonable doubt in other words this court gave significance to the fact that the standard beyond a reasonable doubt language was used that's not picked up that's based on the fifth circuit requirement that a finding necessary for a count of conviction has to be found beyond a reasonable doubt in divorce act this court did not form in this case do you make this finding beyond a reasonable doubt and we think as a matter of constitutional law these are significant distinctions in the trial itself in this case the district court's instruction to the jury as to the significance of what the verdict form was was this court's pattern jury instruction on that issue where the district court told the jury the verdict form is simply the written notice of the decision that you reach in this case in other words it is not a supplemental jury instruction on the reasonable doubt question hasn't this essentially said we're looking into whether there's a reasonable likelihood that the jury instructions it's the exact same scenario as the fifth circuit dealt with in stanford in other words the jury is told here are specific things you have to find using the beyond a reasonable doubt standard we had actually asked that the jury be similar if not identical it to the case in the fifth circuit stanford if you find the defendant guilty then we want you to answer these two questions without any direction at all so the only way that this court could conclude that the jury applied the beyond a reasonable doubt standard to those special in our good tories is essentially to assume or to guess and exactly as the fifth circuit explained in stanford absent an appropriate instruction we would be presuming this court would be presuming that the jurors applied the correct standard of proof so as a practical matter there is a fairly significant leak that this court would have to make other circuits only not maybe not the  t only in that context your honor of sentencing drug quantity issues as far as i'm aware in fact the first circuit in a case does not matter i believe it does your honor because it goes to the due process requirement that every fact necessary for a conviction be found beyond a reasonable doubt by a jury the first circuit in dugout omer arrow if i'm pronouncing that correctly actually concluded it was plain error to omit reasonable doubt from a special iraq a tory and that's identical to the fifth circuit in stanford in the tenth circuit and johnson and again this court has never held otherwise what the government is asking this court to do is to for the first time ever in th history to conclude that a special in or i get turing not subject to the beyond a reasonable doubt standard somehow saves a conviction as opposed to perhaps a sentencing issue and this court has never even gotten that far as far as my research reveals in other words other circuits have been and i acknowledge that but this court has and as a private matter the argument that the jury verdict was supported by overwhelming evidence and so any error was harmless i mean even in plain error analysis you get down to a harmless error can still survive we believe that to the extent this court does not a novo review it would actually be harmless beyond a reasonable doubt and with respect to the evidence at trial these were hotly contested issues at the trial of this case for a couple of different reasons number one the jury actually acquitted mr every count on which the jury was correctly instructed and so to say that the evidence was overwhelming is really inconsistent with the verdict itself second of all the government's argument as to this issue that they raised in the brief relies extensively on the testimony of john horseman who admitted significantly on cross examination to making statements that were inconsistent with statements that he made on direct examination mr horseman's testimony if it was believed would very likely have led to a conviction on counts two three and four of the indictment which the jury acquitted mr markham on and so as a practical matter to argue that the evidence was overwhelming i think is very inconsistent with knapp for the united states if i may before turning to the special verdict form i would like to discuss the other reason why the instructional air in this case was harmless and that is the incontrovertibly evidence that mr moreover mr breckon eagerly and fraudulent lee participated in that audits and as a result no one has no practical effects on the outcome of this case because unlike marinello the defendant in this case was not oblivious to an i on the contrary mr beckons knowledge of and participation in the i r s audit were uncontested and so it follows that this court can conclude consistent with need of the united states that the failure to express fully instruct the jury on pending proceeding requirements there was no possible dispute mr breckon participated in the audit from day one of the audit as mr horseman's representative and so even if the jury had been properly instructed on merit knows pending procedure requirements no rational jury would have failed to find the requirements now in the brief they're more than just an ending proceeding requirement that the holding of that there must be a nexus between the defense conduct and a particular ministry to proceed that's correct we are arguing that there is no possible dispute as to that connection between the defendants conduct and the i r s audit because from day one of that audit mr breckon was participating as mr horseman's represent now the defense of their reply brief and here again today during arguments have attempted to point to a dispute based on the credibility issues of john horseman based on an alleged hotly disputed issue that existed at trial first of all those assertions are not supported by any citation to the record in the reply brief but more importantly in seconds that dispute to the extent it exists does not go to marin that was pending proceeding requirements rather if anything that goes to the defendant's criminal intent whether he knew that first we did not object to reasonable doubt requirement per se we objected to the proposed instruction by the defense which i should add was not itself completely correct with respect to the subsequent decision and merit of the united states the proposed defense instruction merely would have directed the jury to some of the allegations in the indictment but not others rather only those allegations that occurred after the audit commenced but the holding of mary nello is that the government must show a nexus between the defense conduct and  my argument here today the court would not even need to rely on the special verdict form to affirm but putting that aside there are distinctions reasonable doubt is required because the evidence is so strong why are we even here you know what we are arguing with respect to our first arguments is that had the jury properly been instructed that they needed to find beyond a reasonable doubt that there was a nexus between the defendant's conduct and in particular in the history proceeding there is no rational doubt that the jury would have made that verdict form there are critical distinctions between this case and the fifth circuit and tenth circuit and first circuit cases cited by the defense in those cases cases like stanford cases like delgado mode arrow there was a high degree of separation od tory is separate and apart from the finding of guilt and is just for my assistance and then they all got tomorrow the other case by the defense the separation was even more extreme in that the jury was not even asked to make a special  drug quantity and till after they had completed their deliberations and were told that they were about to go home now in this case there was no separation the special honor auditoriums on the pending proceeding requirements appeared immediately after the find if guilt or innocen and that as a parent if the court wishes to look at the special verdict form it's reproduced in the a dent into the blue brief it's very apparent that these special interactive tori's on the special verdict form were placed on equal footing with the findings of guilt or innocence and that is a critical distinction between whatsoever in the failure to reiterate reasonable doubt language on the special verdict form itself because there was no reason to believe that the jury applied any lesser standard so here too there is no reason to believe that the jury applied any standard other than the reasonable doubt standard on which they were exclusively instructed so back to your first argument armors beyond a reasonable doubt have now we would have to find harmless beyond reasonable doubt that there was evidence of awareness of the proceedings and the nexus correct i think arrested elf and suggested well that requires relying think he might have said solely on horsemen what is the evidence that school wellman on those two points the evidence was first that when the audit began in november two thousand and eleven mr beck m so made a series of false power attorney reforms to the iris odder falsely representing that he was auditors would have to be that shows where correct exactly so that if whether they were false or not that would be more relevant to criminal intent but there still can be no rational dispute there's a nexus between the defense conduct and the particular administrative proceeding but that's not all horseman's work for our homes of course as part of that there was a submission of the fall state planner calendar no one disputes of that day planner calendar was false at most the defense disputes who falsified it but again that would be an issue as to criminal intent it would not create any reasonable doubt as to the existence of a connection between the defendants conduct an iris proceeding we also cite never even instance where mr breckon submitted to the i r s auditor a false letter under the signature of greg sommer hoffa indicating that where the court found no error in the failure to reiterate reasonable doubt language on the form itself given the fact that the form was excuse me that the special interactive tori's on the omitted elements appear on the same verdict  form the district court delivered those in iraq or tories and placed them on the same footing as the finding of guilt or innocence and so there was no reason to believe that the jury applied any lesser standard earlier with respect to these other circuit presidents there suggestion that the fact that the first circuit case i cited involved a drug quantity finding should somehow reduce its persuasive weight i disagree with that assertion because in those cases drug was also a finding that the jury was required to find beyond a reasonable doubt in order to trigger a more severe penalty that is a classic a pretty error where the supreme court instructs that the jury has to find this make this finding beyond a reasonable doubt and so that type of  fours with the type of error that occurred here and so there is no reason to to downplay the precedential weight of that are there any other questions i can address for the court you argue if we don't buy your first argument and look at your second argument on the special verdict form you argue that we should look at the reasonable doubt question under plain you're correct what about the idea though that they submitted a jury instruction that included a plain air a reasonable doubt standard on these two questions well first of all the proposed instruction as i tried to indicate earlier did not directly address the two issues that the defense is raising here today and that makes sense because at that point right now it wasn't decided and so it wasn't as though the proposal struction include reasonable doubt language tied to the requirement that there be a nexus between the conduct and the particular in this reference it was it was styled much differently seconds that the defense had every opportunity to object to the particular language of the reasonable doubt the particular language of the special verdict form more than a month before trial the district or indicated they would use a special verdict form and then more than a week before trial the defense had access to the specific form that was used because the specific form that ultimately was used was the same form that the government proposed along with its proposed jury instructions and so in the briefing the defense makes much of the fact of how throughout the proceedings they raise the marital issue fine i can agree with that but that only illustrates that they had multiple opportunities to also object to the reasonable doubt language and make this court's job particular potentially much easier there was also a significant post trial briefing on the rule twenty nine motion for judgment of acquit and there too there was no suggestion that the verdict form was erroneous and that it failed to express the carry over the reasonable doubt language and so under these circumstances we believe that the application of plenary view is appropriate so i will also say that in the first instance we argue that even under they know the review the error would still not be reversible error ah law which i cited earlier because that was that was the in that case the first circuit concluded that under any standard of review there would be no cases in which this court has applied a nature of the united states type analysis to conclude that an instructional error was harmless there is the inman case cited in the government's brief in which there was a failure to express fully instruct on i believe in interstate commerce elements but because there was no reasonable dispute as to the existence of the elements there was no reversible error and if i may just finish the answer to your honor's question another case is united states v feel rito that's not cited in the brief but it's six forty fed third three forty eight and two thousand and eleven decision from the circuit in which the court also found a harmless error from an instructional error which had to deal with whether the conduct that the jury was asked to find beyond a reasonable doubt the so called corrupt acts had a nexus to the proceeding and the reason why that's in huge dispute and was in trial is a revenue officer testimony the jury on the special verdict form check to one box check one one of the twelve options and that was involving the alleged delivery of a day planner that mr horsman himself admitted under cross examination was in his own handwriting and contained a variety of dates that only he could have known he was available in other words what he thought on direct examination was implausible at best and the jury clearly rejected it there was a lot of questions of mr was your client to the i r s yes your honor absolutely and the record reflects that mr grinstead for example kept referring to his memory he kept referring to his notes in his so called diary where he attributed it to our honor there was no doubt mr horsman admitted he wrote the entries and if i may complete my answer mr horsman admitted under cross examination under oath that he wrote the entries that was a little and with what he thought on direct examination but he admitted it there was dispute over role if any was in providing this to the i r s and knowing what was in it which does deal with whether it's a corrupt act the whole point here your honor that we ask is that just like in the stanford let the jury decide this issue with a proper instruction instead of having an appellate court essentially go through the transcript and make factual credibility determinations about who to believe and who not to believe that's why we asked for a jury instruction in the first place and we're