entrapment is in the air this morning it also seems as though like the prior case a lot of the issues before this court this morning would be perfect for law review article and we don't have that but in this case it's pretty clear what happened facts are very simple there were two trials in this case in both trials it was the defense of entrapment in both trials the government on opening statement not the first agent at the very beginning of two thousand and nine in june when told by dr shaw that there were brother and sister that to her meant well and make the  you and i are from india we're both hindu and so absolutely and he was talking in hindi and she was dancing in english yes and that's what the district thought no to so so who started the ethnic  two but to get back to the issue of race is common and it is not the issue before this court factual or legal in fact we conceded that dr shah started the discussion about being from india both that's not putting statement in direct examination the government offered the additional point that because in india it was an opening because in india corruption was rampant a lot of corruption goes on there because of to earlier judge wardlow does it make a difference whether we apply a structural error a plane or analysis in this case it doesn't because it involves the same concept and we are claiming structural error to be very direct but it really practically there are some issues in trials that affect the public perception that the very requirement of planning her it also goes to structural error the very perception of the trial of the fairness of a trial the very fairness of a jury that is sent tempered by an acceptable notions of racism but we don't lawyers lawyers have a responsibility now to object and they have to make a record and so many of these issues that you've raised there were no objections to to these matters at trial and you know it's just it's a higher standard that applies when  there's no objection at trial and things are race for the first time on appeal absolutely the trial judge the trial just didn't have to deal with these issues absolutely so it's just that it's and you just got higher burden it is to judge  great thank you for that question because one of the cases that we cited in the briefing the buck the buck case was in post conviction relief for twenty years two decades that's what the supreme court noted and at every stage of the proceedings the simply a sacrifice of somebody else sixth amendment dupe and due process right to a fair trial i am keenly aware that no one object and indeed it goes further judge strain in the second trial having been on notice of what happened in the first then being exploded a closing argument then the jury begins to think with it's ok to say that when the issue when the critical issue is whether doctors just create this post pre disposed then we could consider  them heritage how could anyone say that and so for a lawyer not to object to judge trained i do a lot of twenty to fifty five to twenty to fifty for work in my years i've seen a lot of lawyer sit under  not object sometimes it's tactical sometimes strategic but many times they just fall asleep on the job and i don't know why no one objected to this type of testimony it is the type to test them with that you don't have to be told of reinforces that he was created as not because necessarily what happens in india but just because he was predisposed and that gets to the point of the german structure and the jury's question when they were deliberating the jury asked the court can we consider the tape recordings for predisposition what with our living in egypt ham judge world law there was a lot of interaction including very intimate interaction about psychological problems and for seven months to a tort law for seven months number one there was no tape recording there was no reporting of any bribe for seven months no bribe was offered and  in lightning of these questions you're asking because again with this one was a supervisor she was a supervisor of ham dr she had complained about having problems with revenue agent ham ok and so she come see him and predisposition so you see the reason why this case is very difficult it was difficult for me i have four months to prepare everything for sentencing ok and look at the trial record how expensive it is it's real simple and this is the wife right at the way finally figured it out so in march may may in june two thousand and nine the i r s decides to do an audit of a doctor it doctor opposite of the black case this court's black decision in black the court this court found plenty of evidence of immediate predisposition this is the exact opposite you have a lot of contact with revenue agents no bribes are being offered yet this a lot of fight about record production deductions and all that kind of stuff so do we really want to have an individual like dr shaw with no prior history of anything illegal there's nothing in the record nothing up to a cover two thousand and nine still nothing and then when he's told you us almost half a million dollars in taxes what does he say seen too many when you start tape recording a target after the target has been warmed up properly of course there are going to be confessions the grahams is going to be criminal conduct and it's going to be incriminating but that's what we have  t the actual conduct here is between may two thousand and nine and november two thousand and nine and unfortunately for the jury when they ask and we consider the tape recordings that is th may two thousand and nine because that's the period of time when the defense and the theory of the defense was this man was entrapped by him in that in the context of a psychiatric consultation ongoing psych tapes clearly show that there were not defendant told revenue agent ham i'm giving you the greatest opportunity of your life you are working for i mean now he even goes on to say that if he was an i r s revenue he would have accepted bribes revenue agent told the defendant for fifteen separate times that what he was doing was illegal yet the defendant proceeded anyway the defense counsel has made much to do about revenue agent rag happens testimony at the trial revenue and revenue ragga had came to the stile and testified that the defendant said to her in he started talking to her and candy asked her where she grew up based on her accent when she told him that she was from new delhi he then talked to her and handy and sighed you are my brother i am your brother you are my sister let's make this i go away she interpreted those words in the context in which they were said and the way that they were said as a bribe overture and in fact she those that sympathy shows that it was never defend its intention to pay taxes as opposed to what defense counsel just argue and says that he was predisposed to ask the house of the revenue agent to make it go away he was going to play on the ethnic commonalities to say hey there's so much going on in this world started talking to her handy to make it go away and the revenue agent interpreted that as a bribe overture that's her testimony therefore there was  absolutely no objection and in fact on cross examination the defense used that testimony asked all about different areas of india and even in closing argument called the government inappropriate and capitalized on that testimony on the other hand i did the closing argument my case i never mentioned one time i never once mentioned the those words that the revenue agen y therefore there wasn't no error and revenue that agent right have is testimony and more importantly it was definitely not clear obvious and moreover there was no prejudice as there was overwhelming evidence of defendant's guilt as shown on the tapes if there are no other questions also in that i don't know i'm just a book curious about how someone's tax liability goes from four hundred thousand down the hundred thirty some thousand euros point out by revenue agent you the defendant after trying to pay the thirty thousand dollars bribe and it not obviously panning out the way he wanted it to decided to actually follow the rules and hire a accountant who would then put together using what books and all the receives put together the books and records that cause seventy five percent of the law of the difference between the original tax and  and and january fifth in a recorded conversation doc dr shah told revenue agent him you are working for me now and he also told him subsequently that i'm giving you the greatest opportunity of your life if you seem so choice as opposed to just doing your getting your own lawyer and doing your own review of the records to see how much you thought you really would because the defendant thought he could get away with it and that's what he said in the tapes he basically said i don't want to do that work i'd rather pay you that's what he said in the recording ok can you give me a citation where he said that that's  ready in dialogue with ham but number one the government just told you and i tried to develop this theme in this theme in our brief the government just told you she did she did the closing argument and she didn't refer to raghavan staff the morning she just told you that i refer you to page one fifty nine of the transcript trial transcript based lines fourteen through nineteen which she specifically mentions raghav ben's commonality with india he was finding a way into her and he was trying to get her to make the audit go away he was exploited and closing argument i don't know why counsel tells you i but then you get back to that wonderful quote but before i give you the cordon i'll shut up then i'd like to refer you again to witherspoon's exact words counsel just told you that i'm saying he wanted to  not his intention not to pay taxes i don't just invented it's right there in the press and so they issue as we get to some point since are toxic in this trial and it touches almost every issue was the government intentionally elicited the second part a rag of ben's will pinion about what shot told or shut didn't tell her anywhere from india we bribe a lot of people there can i bribe you he didn't do that he didn't raise that when you go to a jury trial and you have some testimony like that number one a few of the fence attorney humoring the motion for exclusion there were many basis to excluded that the defen attorneys didn't do it how could that be a strategic strategic decision then the government bring said and for what purpose the central issue for the jury the central issue for the jury was was dr shah predisposed before government contract that was the central issue for this jury if you're going to allow juries to consider someone with this if he has a propensity which is supreme court has said no you cannot and especially in even when the defen