good afternoon your honors may please the court my name is franklin gamble and i am here today representing the defendant appellant george curtis george curtis is a seventy eight year old lawyer who practice and continues to practice personal injury lawyer cash wisconsin he is a lawyer who has had great success based on evidence that was developed during the record both in terms of those witnesses who testified as to his character and as to his taxable income this case is one which was charged in june of two thousand and thirteen in january of this year we appeared before judge  respond in green bay wisconsin to face a jury on three counts of the allegation that mr curtis had intentionally failed to pay his income taxes for the years two thousand and seven two thousand and eight and two thousand and nine and obvious there he of defense that was urged from the get go of this trial was that for the jury to make a reasonable decision on whether or not mr curtis acted whet bad intent that's required to find that is nonpayment of taxes for the charged years were intentional under the criminal instructions one had to look first at his history with the arris and within the a brief submitted on behalf of mr curtis there is an appendix and on page one twenty of the appendix there is what was received in the court by stipulation exhibit number one thousand and this exhibit becomes extremely critical to the issues that are here before you today because it is a an exhibit that demonstrates a relationship that existed between mr curtis and the arris which was extraordinarily unique it certainly was unique from the perspective of his lawyer me who has practiced for fifty four years five of those years as a federal prosecutor myself because if you look at the back human exhibit number one thousand you will see that for the years prior to the charge two years within which mr curtis did not pay income taxes attributed to his obligations for those years he paid an amount of one million nine hundred and one hundred ninety three thousand seven hundred seventy seven dollars on what his tax obligations were up one million seven hundred fifty four thousand nine hundred ninety eight dollars and i'm looking at i don't see those numbers those that does my addition and subtraction ok if you look at exhibit if you take the tax and a column two and add them up through two thousand and six which shows the tax obligation that he incurred for the years  hundred six through two thousand and six the mathematics of that will bring you to the number of one million seven hundred fifty four thousand nine hundred ninety eight dollars today and then if you look at the amount of taxes the total that he one million nine seventy three seven seventy so if it was it's about four hundred thousand dollars more pay then what is taxes well because as you can see in the exhibit during each and every one of these years he was t the tardiness occasioned him to incur a liability for interest and penalties an as a result of his tardiness he got himself into a what i will call a creditor debtor relationship will represent the mr when mr curtis was interacting with a revenue officer for the internal revenue service he was making payments and notwithstanding the fact that the payments were were short of his entire obligation as he was going down that road of being behind in his payments he was incurring substantial penalties and interest all of which the internal revenue made decisions on how to to his own disadvantage by not finding a way to pay his taxes not timely fashion well well it's he paid zero in two thousand and seven eight and nine correct he was paid zero that was credited him in those years if you look on exhibit number  ninety three thousand seven hundred seventy dollars and that money was applied by the heiress to cover his tax and penalty and interest obligations for the years two thousand and five and two thousand and six which is also indicated on this exhibit was also taking a look at exhibit one forty four ok which i think the government prepared as a summary of personal expenditures during those years so i think may be relevant at least to the question of harmless error and into how significant this for a for b evidence was taxable income of about one point two million over the three years yes forty two thousand dollars paid for a car heat hundred thousand dollars paid for wine one hundred forty three thousand dollars paid  for life insurance thirty two thousand paid for donations and political contributions four thousand dollars for firearms eleven thousand dollars for hats nothing for the i very little correct however to your question and it's a it's a very relevant question because i expect the government to get up here and talk harmless error because very clearly if you look at the behavior of judge reese back and mr jacobs before and during the trial with respect to the four hundred four b evidence i think that it's up it's so per se essentially a violation why is this not harmless error that's the essence of your question and i want to answer that it's not harmless error because the moment that this jury her that george curtis was tardy in recent tax obligations he was toast in terms of his ability to get the jury to look at whether or not he really haven't tamped back in zero seven zero eight zero nine to violate the criminal law in not paying taxes when he had this history of having the civil relationship with the iris and nothing gave him a warning that ok now we're taking a different road mr curtis we're not now not was clarified one especially in this case testified that he put a stop order i am a but in the internal revenue service talking to him during the investigation which he did not become aware of until they became aware of the criminal investigation well happened while i was interrogating mr curtis about exhibit number one thousand and i said since the charge years in two thousand and ten you have filed your returns and you have paid those factors and he said according to the record yes the record we are talking about very clearly is exhibit number two thousand and seven and if you look at it isn't that the kind of can textual judgment that a district judge has to make not if you read your own the situation and gone as i think the judge testable beyond that and i think the judge went on a wrong made a wrong perm here because he made the i look at this and it's self evident how the judge reached the conclusion hear your guy claim you know the judge keeps the two thousand and thirteen payroll tax evidence out and chill your guy claims the moral high  ground and the judge then decides to allow rebuttal of that to prevent undue prejudice to the government and that reasoning is transparent i don't agree your honor that he took the moral high ground all he said was i paid my income taxes in the years after the chargers he did take the moral high ground because he says in this testimony i still all money on those years and i'm being charged with and that's in his testimony as well so he's not taking the moral high ground as i now clean across the board with the ira you say i paid those three years or two years after the charge years but he now which is in his testimony that he still owes money on the two thousand seven eight nine and so i just disagree with the characterization that his testimony was taking the moral high ground that had to be to give the government i'm not a crack at him by saying that you've got this payroll tax situation a couple of quick o are any cases after pump tonio which you know of finding reversible error for failure to instruct a jury in tax evasion cases that bad motive was required no but i want this court to reinstate that instruction in a case like this because this is a very unique fact situation where where willfulness really was was something that that that my client couldn't logically say through his lawyer to this jury was not it was not intended to to be criminal misconduct i was here working with the government to pay them my taxes pay them my penalties pay them my interest and all of a sudden they closed the star and i no longer have an audience ok that one last question if i could page thirteen and fourteen of your reply brief you say a conviction under curtis is unique circumstances essentially subject him to debtors prison for his inability to dig himself out of the impossible hold with the i r s dug for him i read that and frankly my jaw dropped hold the i r s dug for him that's probably a bad choice of words what what he does has dug a hole for himself and the application by the iris of interest that was far beyond a market rates and the penalties that they imposed really be had an accumulating effect that made it almost impossible for him to get even on the on the score sense unquestionably and it's intended for that to encourage pay your taxes on time but but in his sense looking at this broader picture of where he was from one thousand nine hundred six through the charge years  he was pouring hundreds of thousands of dollars at the ara all be it at a time when he had other expenses to survive but he was also incurring taxable income which nobody says was was not evidence only came up once the defendant testified and introduced evidence on cross exam that he had concerning his subsequent tax compliance all call it he introduced evidence that he paid his income taxes for two thousand and ten to two thousand and twelve testified that his taxes were fully paid the government therefore believe it was only fair to correct that miss that potential a misimpression because that's false the defendant had paid his payroll taxes  not just withholding them from his employees but paying his his share employer share of those taxes well can you legally through the chain of reasoning that connect the payroll tax  honor we did not introduce it as intent evidence again it was it was introduced only on cross examination it only used to refute the defendant's testimony that his taxes were fully paid as well as  intent evidence this court and other courts have said other acts evidence such as other tax violations is admissible in specific intent crimes such as failure to pay income tax court rejected that though and so the government accepted the court's ruling and did not introduce it as intent evidence it was based on the court's rulings the government believe that was legitimate intent evidence i think in this case in particular the chain of events would go something like this the defendant argued that he had a good faith misunderstanding that eliminated his willfulness again i'm interpreting a little but  i believe the argument was had the defendant known he would be criminally prosecuted for failing to pay his taxes he would have paid them and therefore his failure he didn't mean to commit a crime i mean he acknowledged on test on direct testimony as well as cross that he knew he would you know the taxes he filed tax returns saying i made a million to a million for during these three years i owed three hundred seventy thousand dollars he signed tax return saying all that he it was undisputed that he spent a million one during those three years and literally paid none towards those taxes nonetheless his argument appeared to be that i didn't think i'd be criminally prosecuted for it i knew i was required to i knew i wasn't doing it i knew i was spending the money on other things but nonetheless sort of a good faith had i known they were charged with a crime i would have paid the taxes and so the government argued that the fact that after indicted after being indicted in this case and being charged with willfully family pays taxes so then being made well aware that failing pay taxes is a crime in two thousand and thirteen really while preparing for trial he again knowing it's a crime not to pay taxes doesn't pay as payroll taxes undermines a claim of good faith that it's false that had he known to be charged with a crime he would have paid it because he has been charged with a crime and still is not paying his payroll taxes so it's in that way that the government believes the evidence should have been admissible as intent evidence but that's not how it was admitted it's not obvious to me why the defendant's testimony about the payments he made in two thousand and ten eleven and twelve was real right i think even the judge may have recognized that that really i mean did the defendant thinks his subsequent tax conduct is relevant he thinks it shows he lacks intent so he the defended by introducing his subsequent payments again i argue an art of the government argues in its brief that really it's just a veiled attempt at jury nullification the defendant acknowledges i know i owe these taxes i know i haven't paid him spiled return saying i haven't paid them and i spent the money on other things and so he really has acknowledged guilt but he's trying to engender  good faith that i'm a decent guy i'm a good human being all of which could be true but it's not really defense so he tries to show hey in these later years i'm paying all my taxes and it's really in response to that the governor says that's not a fair representation of who this defendant is he is sort of trying to take the moral high ground that once they told me it was being investigated i sed i paid my taxes and that it just was not a complete picture then in fact during that same period of time he quit paying the payroll taxes that were his personal obligations to pay so was just that he was current as to his taxes the documents that were introduced only pertained to the years two thousand and the subsequent years two thousand and ten to two thousand and twelve but it's also worth noting that the two thousand and twelve taxes were not paid until october of two thousand team so that to the extent he's saying i'm making current payments it's really contemporaneous with the period of time covered by the payroll taxes the third and fourth quarters of two thousand and thirteen so he was really taking credit for paying some taxes during two thousand and thirteen and sort of keeping from the jury the fact well i'm not paying others so you know he wants the best of both worlds i want i want the jury to think that i'm a good guy i'm making a good faith effort i'm paying my taxes and keep away sort of by selectively picking which taxes i'm going to tell the jury about i think the judge saw that is given that they're happening really contemporaneously simultaneously so i say third and fourth quarters of thirteen and that income taxes being paid finally on october thirteenth i think is what it says on exhibit one thousand fair to point out that hasn't paid his taxes and so what's the unfair aspect of that i don't know what that is i will say as judge hamilton mentioned the evidence against the defendant was strong that is he filed tax returns acknowledging substantial income a million for substantial tax obligations three hundred seventy thousand dollars he paid zero dollars and during that same three year period of time spent more than one point one million dollars and other personal expenditures the defendant testified he was aware of his obligation video the taxes that he was required to pay those taxes and then he didn't because he spent the money on other things so again i agree the evidence was strong but i would say in the context of what was happening there i think the judge saw this was fair response to the defendant's selective representation of what taxes he had paid for a contemporaneous period of time and that no one has identified any unfair prejudice and that further to the extent there was any unfair prejudice the defendant expressly rejects any curative instruction any limiting struction and while it may be his option to forgo an instruction the consequence of that is is to really waive any claim that there was unfair prejudice either that or we just say the jury instructions mean nothing and we shouldn't give them at all any weight unless the court has any further questions of me i will rely on the government's pretty well thank you very much  exchange between myself and mr curtis that judge respects they open the door to the government coming back and putting in this four hundred four b evidence the question that i ask  mr curtis i'm line twelve is and as exhibit number one thousand indicates and do you have that in front of you answer i do question your tax obligations for the years two thousand and ten two thousand and eleven and two thousand and twelve are fully paid is that correct answer that's what the record shows question and do you still have significant obligations with respect to the charged years here and some obligation with respect to the couple of years earlier than that is that also true answer that's what the record shows so essentially what judge re d has used as a trigger to say now you attorney campbell have opened the door to letting in for all for be evidence because he has said that he's blameless is just not that happen many many times i have why i like this an example because i think that what you said this court in gomez is that we're going to create a very very most tight filtering screen that you have to go through in order to put in four hundred four b evidence that that evidence that mr jacob solicited was his having based on his own statement today and i'm supported fear of losing the case so he wanted to dirty up mr curtis that when he put it in for he claims it was for intent but all it was to do was to say this guy isn't so clean i can tell you because just a couple of months ago he didn't pay as payroll tax and judge and judge reese back i think in appropriately says well juries don't know differently peril taxes and income taxes and i don't think a federal judge should say that with all due respect to judge respect there is a difference between those types and i hope that you'll do this first that the protocol that is a spammer syndrome as was not addressed by either the court or by the u s attorney and that it's it's not harmless because the whole theory of the defense of this case was undermined by reason of the fact that he had some recent recent inappropriate reaction to a tax bill