my clientele says this and they are educated professionals so that's pamela rand's direct testimony about who she was relying on i think this becomes more clear in her redirect testimony and that's you are six sixty to sixty one where the question where the answer is clearly from cameron and there were several of these quote several of these professionals upon whom we relied and she sa she refers to them as the attorneys who give them opinions without the interface of the attorney who's telling the clients anything so yes i think it matters but i think the transcript is clear both on  evidence concerning her good faith belief we've got a government objection on the basis of hearsay and the trial court excluding it perhaps on the basis of hearsay perhaps on the basis of four or t place there's no balancing what the court statements are about is what's first hand and what second hand and the court erroneous lee says bring in your first hand witness to the firsthand witness was actually testifying what is the standard of review that we have cases that suggest if there was no balancing that it would be knowable rather than the typical evidentiary abuse of discretion and so what the judge said here seems to be fit somewhere between just saying four or three and doing balancing because the judge says well the probity of their use only by the potential for prejudice so my question is do you have what is your view on the versus lame and ninth circuit case from two thousand and three and i think what we have here is the district court's construction of the hearsay rule because the district court judge is pointing to the wrong person example her research through the internal revenue code herself she uses the word that i not the word we should also point out that the government months mr and mr swan ran together for purposes of what they knew and what they you and your husband mr moran and whether they had seen it so he used a we was not inadvertent and i believe that there's claim covers mr moran as well relied on the formal structure as well as how that structure had been applied or used by the people and to do that he looked at the testimony of particular witnesses he didn't do his own investigation he testified and i think this is you are for are not i that he looked at documents some grand jury transcripts that the government provided to him and he listened to testimony testimony up to the time that he testified in court the defense expert in contrast was giving a summation based on the law are saying that these forms are fine if they are applied correctly and i guess i'm having now trouble understanding what precise objection was first i read the briefs to think it was because they were using the term sham and then because the expert was somehow incorporating other dan or testimony within the experts testimony so you could narrow what conclusions selectively on witness testimony that he believed while not basing it all on other witness testimony let's go to the second one first and isn't that precisely what is left goes to the weight rather than the chief and was given grand jury testimony testimony selectively by the government he's not an expert in credibility he's an expert in tax law yet he selectively chose to credit those things that he'd been given and not to credit other testimony for example are we borrowers really on the hook for the loan he credited the testimony of the borrowers who said no i never thought i'd have to pay it back and discredited testimony of borrowers who said yeah i conclusion and when he's making those credibility determinations and the kids having trouble because you're really in this case it has the added element of about judging and that really is what's underlying is that you're suggesting that he's basically putting stars that's great overall conclusion that's the sham point that's the fact that he didn't testify hypothetically that of corporation or with such and such a structure used in such a manner would be a sham he testified look forward is a sham looking back is a sham and the essays are a sham and that was the key question before the jury we know that because there was a jury instruction on it you are sixty eight has the jury instruction telling the jury how to figure out if something is a sham transaction or his economic substance based on the experts testimony they didn't have to figure it out at all it was delegated to him instruction that they needed to look at economic and whether there was any economic substance to the transaction etc in determining whether it was a sham those were the steps that professor sherman took for them and his conclusion was that it was a sham so i think it's an example of the expert telling the jury what to do with that instruction to find that it was a sham that being a legal conclusion i mean like in criminal any trust cases that counsel table for the last two and a half weeks i listened to what these people were really doing and based on what these people in the government's case say they were really doing it was a sham i think that's completely different because discrediting their witnesses fraudulent tryst with the tinfoil packets of currency getting sent back and forth and we've got agent dowling talking about in one nine hundred ninety eight this money laundering scheme to get money out of new jersey to defraud the bankruptcy evidence are just similar money laundering acts from the conduct that our clients were charged with and they involve different people than are our clients and it was extensive evidence that was complex history is most difficult for the jury to ignore even with proper instructions in this case the only instruction was at the end of the trial and the testimony took up which i believe that the government concedes was inadmissible as to these represent clients took up a large portion of the trial in addition there was the spillover effect of the conduct of the proceedings at the trial and that's a little bit difficult to get a handle on on appeal but i do want to point out she  seven hundred there's no legal basis to do that and there's no factual basis to do that there's no legal basis to do that because the prostitutes antics in court when they're not on the witness stand are not to be taken as evidence these represented defendants i'm going to start and turn my time over to mr ness if there's any remaining time i'd like the three vital in how much time that you intended to reserve for rebuttal i'll leave that up necessary competency to represent himself but the earth is that if you're sitting there now the judge has made the decision to move forward with the trial and then you look at the trial transcript participation in the trial he has unusual you there's no doubt about that but that doesn't make their on evil to participate it seems he does participate in the trial does that really kind of contradict that the judge should have had some big red flag at that point to say well you better hope these proceedings and get a competency exam well i agree at that right there tells me being on appeal if you have that situation and he goes to trial and the judge was there and watched this and we don't have any evidence on the transcript that would make you for the judge perceive you can make sure number one they are confident then that you're going to represent yourself i've got that knowledge that you have the ability intellectually to do that voice is very thin startle caucus level i can addressing the way the andersen issues first it's clear from the record that he was not going to accept counsel who was who was a member of the washington state bar no matter what the judge tried to do to measure judges to try to convince him that he was in his best interest to use counsel that this with a good complicated case that there was a there were a lot of issues but he simply refused he was as you said before he was attempting to manipulate the system he didn't want to go to trial he wanted what he called counsel who apparently was someone not a member of the bar someone who was basically going to tell him what he wanted to hear and there is no right to that it's also given his confused sister refusal to accept counsel there was no reason to continue standby counsel after the third with the third hearing he simply refused to work with knew what was going on you can tell from his cross examination dealing with issues that were dealing with matters that were issue in trial we addressed those pages twenty to twenty five of our the court has no further questions the clientele that we were speaking to they were all professional people doctors dentists chiropractors you know they were they were people of high intelligence and they all believed in the legality of the plan or planners  not an instance where she where pamela moran was a topic attempting to talk about other tax professionals so i think it's fairly clear that the direct the matter on direct is was clearly excluded was properly excluded perhaps the judge could have said more as to why it was a four three professionals and there's no way for anyone to cross examine them so we're everything that you take everything is for face value which this is very unlike vision because in addition have the defendant actually hearing the professionals that this court found that it was exclude that here you don't have that at least not in this portion eleven not in the direct portion of the examination of family around you have she wants to testify as to what other people told other people that's double hearsay and counsel  that that's a problem so i think we can i think we can take care of this part without without a problem event when there are a number of instances where she's trying to say what the c p a stat and what she was told b correct that's correct so therefore if the judge excluded testimony that was first level here saying that was offered not for the truth of the matter but for the state of mind it would be an  before this point in time it's never been directly stated to him that's being used for state of mind  about people among whom she was claiming for a lie about all the materials of mine in the internal revenue code her study of the code there's been an awful lot already put forward in terms of her reliance on her belief that what she's doing is not he says we don the prejudice so without articulating why there's any prejudice i don't know you know you didn't make the transcript ok so we're just obviously you just are trying to help us through the the argue that the whether something operates the way it is whether it's something here's what it says it is i'm not sure that's legal i think that might be a factual determination i oppressive and awful as the defend it would like it to come out meaning you have the testimony  sammon that's really quite an argument talking about what happened in one nine hundred ninety i think i did a jury properly instructed as this one was is going to understand that that that's not something that they're going to sit her against the counsel defendants and the country what on whether mr moran gets to ride her contact the local jail writing here on whether or not she was testifying as to what we believe only an individual belief is that that sorry or where you should reverse sit down good think you think you got all the way to the end with that was in your voice it's not like you may have two minutes scar has which i think is the case that says that when the expert gets there on the stand and tracks the language of the statute and the relevant cases and in fact corrects himself to use the language of the legal cases and the statute in order to draw his conclusion it's a keystone and he's drawing a legal conclusion for the jury the final thing that i wanted to touch on was the four or three wasn't prejudicial this stuff that pam on iran wanted to testify to no actually it was the only first hand testimony that there could be about her good faith reliance everything else might have been she knew of him and might have been totally different in quality than anything to which she had been allowed to testify it was undisputed that she relied on the prose days the nutty ones who were sitting next to her what she wasn't allowed to tell the jury was that she relied on