good morning judge branch and i have enjoyed having judge fences with us this week from the northern district of florida you're coming down from pensacola to help us decide these cases  week thank you for inviting me and we have three that are scheduled for argument this morning and the first is ashley scott versus the united states and mr johnson is here for scott  bradley is here for the government you're ready to proceed mr johnson miss  bramlett morning may please the floor the first thing i'd like to do is just a little record keeping when i was reviewing this last night i realize that you know vacuum these spreadsheets may be a little difficult to understand some of the points that were being made so i want to go through a spreadsheet real quick just to try to clarify any problems if anybody was having and also some insights to it one of the things about these spreadsheets when we make reference to the pay checks there's two spears of checks but they're one account so what ashley scott did is she she would pull out a sequence of checks so like on the two thousand and six french seat we have a notation about  the czech series seven thousand to ten thousand are the majority payroll checks really what that's saying is the seven thousand to ten thousand are the checks that she pulled out of the the normal bank account and she set aside to do payroll so this is all in the record ok i just don't well take a look at the record i write it to me it just wasn't clear what that that might be the other point is that for the two thousand and six in two thousand and seven when this was prepared all of these type checks were put first and then it dropped so these checks go first and then it goes back to january and starts with what i would call the normal operating checks that were a different sequence will take a look at on that and so you're here to say that when we look at the evidence in this case in you this initially how this case was before us on summary judgment on the appeal from a summary judgment and we already decided i think in that prior appeal that the evidence was sufficient and we said that the government had presented enough to show that you know she was a responsible person and you know there was a genuine issue of fact and the issue was close enough to go to the jury so we sent it back and the case went to the jury and your jury found that there was enough evidence was that it was a jury issue and the jury found that there was enough evidence is there any new evidence that was present at between scott one and  when the court discusses it says it it it admits that she had a very limited role and she was doing ministerial duties and but the government had presented enough you know of these little what i would call minor factors that it really need to go to the jury for an overall view and the ability for it to be developed so what we're saying is that never got developed what was presented in scott to to the jury was even a weaker case than what the government had presented on their motion for summary judgment even though most government presented evidence that she prepared scott errors form nine forty one which reported a trust fund taxes that are owed to the government she prepared that herself she handled the i r s form be afforded w two she wrote checks she had the authority to disperse corporate funds she had influence who was hired and fired she was the sole contact person with the accountant who prepared the company's tax returns she was a corporate secretary that's not the returns she copied them over that's not preparing their terms even if you sign the returns she signed two of them correct but she prepared the other one right i mean she's i think she prepared the two thousand and seven returns that's exactly what i'm saying your honor the the testimony the trial record says that high scott prepared the returns and because his handwriting wasn't as good as her he had  says even report return preparation by itself is not a sufficient factor but again we don't agree that she even prepared to see she performed a ministerial duties all these others are ministerial duties the w for the the employee feels that out he claims the allowances and then she takes that information and puts it into the payroll computer that's again a ministerial what happened let me ask you about the ind submitted to the jury in the instructions one of those is a corporate officer a new challenge the instruction which was not objected to when it was denied how can that be plainer well we're distinguished seen that the governments submitted their proposed or instructions the judge davis or adams using then went through various things and basically came up with his own but assuming that it's relevant and i think because the definition of the induce you says an officer you need to identify that officer's responsibilities i think it was relevant to his error but you didn't object to that so it's got to be plainer and has it plain well again in the brief we it we addressed that we there was a discussion the government spending asli objected well there was this and i walked ways back and forth i don't think you explained it in the brief and that's why i'm asking you now yeah well even if if the panel doesn't accept my attempt to distinguish this from a erroneous jury instruction then you know we would argue it's act of futility the judge has already rolled there has been this discussion the government objected the rules so there's no room you know we don't do exception to the judge's ruling anymore you know there's no need to keep bringing it up technically before a jury you know where would be disruptive to the  process but it was discussed the government did object and the judge ended up if not expressed rolling a least a de facto ruling because he came up with his own jury instructions which excluded this this  description of what a corporate secretary's responsibility is and as the jury had their question at the end of the case so how important that jury instruction was but assuming we're going to apply the plainer standard how do you meet that burden assuming we apply the plain error standard how do you how do you meet that standard here  good again my only response to that is you know i tried to distinguish that and then it's it's a futility but it's not because your entire defense was that she was just the corporate secretary and that's a ministerial function and that's what you wanted to argue to the jury and had the jury heard that instruction that she was she her role was just ministerial because she was the corporate secretary i was denied the opportunity to make that argument to the jury because the pages and pages and pages where she's not writing checks you know for these corners that's a friendly question are you you know for these quarter the second quarter of two thousand and seven she wrote t good morning your honour's i'll get first to the questions with respect to the jury instructions the government's minutes that this proposed jury instruction number seven which was attributed  different case but to the question of relevancy really turns on the term officer and in the industry what is what is that officers duties and if you don't know what that duties with those duties  are you're missing a big part of it so that it never relevant i bet the government believes that the jury instructions that were provided to the jury by the district court adequately covered what is a responsible officer the court in fact the bread directly from this court's opinion two thousand and sixteen opinion to describe various features from which the jury could find that caught was a responsible officer and again here counsel for the appellant had numerous opportunities to object to the omission of his proposed jury instruction all how does it define the off well well well i think and hopefully i'm just it's a matter of semantics a corporate officer is the president the vice president the secretary or a treasurer and so i think there was absolutely no dispute here is what it says he says the law defines a person responsible for paying as including an officer or employee of a corporation who's under a duty to perform the act in respect of which the volley in the kurds who how does that define what what her of officer job was well again i think there's no dispute that she was a corporate officer in that she was designated as the secretary the facts here showed with the guidance of this court on re manned that there were various features that established that she was a responsible party in her position as secretary first the court so that it could find in favor of the jury could find him paper of the government into far as the testimony of the outside accountant whose name was monica he was pretty clear in his testimony before the jury that scott was the contact person for him when he was preparing payroll issues with the payroll tax returns but went on defense at the trial her whole defense was that yes i was the corporate secretary my dad wasn't charge and he did i was just you know performing a ministerial function i didn't even know i was the corporate secretary so to have that jury instruction and then i had to have the jury told this is you know secretary just performs a ministerial function that pretty much depleted our entire defense well i think the facts presented to the jury depleted her defense that she was ministerial in so far as for two of the quarter she actually signed the quarterly fica trust fund tax returns for that third quarter of two thousand and in the second quarter for two thousand and seven she she copied over what her father gave her but to the extent she's copying over and putting down numbers on the form reflecting for that year i think the liability was in excess of eighty thousand dollars and the two other returns for which she actually admits that she signed reflecting why abilities i think between fifty and seventy thousand dollars between that between  was really not an interested party here it wasn't the testimony of the father or her brother to the extent he testified that ashley was the go to person the contact person for purposes of what he did in preparing the forms are there are there other cases where the i r s has gone after a corporate secretary as a responsible person off the top of my head i can't think of one that was a corporate secretary but again here i think the jury recognized that this was just a small company it was just a small heating and air conditioning business you know her father her brother and her sensually the company here again mr montague testified that the designated treasurer whose name was mike jenkins that he never had any contact with him with with respect to anything so it that mr jenkins was probably just in title only again the testimony here showed that she was able without unfettered ability to write checks i don't believe there's anything in the record that her father or anybody else limited her capacity to write checks and one thing that is a little different here it was established below that actually misc aat did open the company's bank account here are opened it only required one signature as we recite in our brief she wrote numerous checks many to herself she wrote checks to her mother she actually did for the second quarter of two thousand and seven write a check to the i r s for federal unemployment taxes did the i r s and the small company deem anybody else a responsible person or was it just miss cobb i believe it was also her father and i believe she filed bankruptcy but we did not assert that her brother ryan was responsible officer the facts pretty much established that he was just a field person actually doing the nitty gritty of the heating air conditioning business where by contrast in the scott here it minutely wrote the paychecks she had signatory authority over the one bank account  where you have a lot of you have a lot of standards that you have to comply with before you go after someone as a responsible person the responsible party and the evidence or seems to be awfully strong that the father made all the important decisions in this business that she was made secretary when she was a teenager she didn't even come to the office very much  she just was given things to do and then write checks when he wasn't there well is that consistent with your standards the i am standard of what i want i'm not quite sure what standard court is referring to that the government needs to meet before we find somebody responsible to assert the trust fund penalties here to the extent appellant was citing the internal revenue manual provision the internal revenue manual process provision is not mandatory it provides no rights for a taxpayer here i think the government before they decided that miss cop was responsible again given the indicia that this court explained in its two thousand and sixteen opinion and before that she had more rights and responsibilities than her defense was that you know i wasn't here i didn't do was you know in court to testify under oath as to certain facts and circumstances and again here the record that was before the jury again the jury heard us so the jury was free to weigh the credibility of the witnesses they could fully discredit the testimony of the father or tice god could fully disregard the testimony of misc aat because obviously started trying to get out of  could you explain the jury's verdict they found her responsible for one quarter in each year two thousand and five two thousand and six two thousand and seven right well for the first two quarters of two thousand and five and deuce from her signature on those returns which i believe are under penalty of perjury or some other strict standard that she signed them that you can't just th sign it so she she did have the authority to sign it and there's no dispute in the record that you know she didn't have the capacity there's still no dispute in the record that it only required one signature her signature on the bank account i don't believe that there's any evidence in the record where either she or anyone else including her father testified that she couldn't sign any checks above a certain amount that she couldn't sign any non routine amounts and there certainly is nothing in the records that says she couldn't sign a check to the arrest and in fact she did sign some checks to the i r s and again for that  second quarter of two thousand and seven she it medically signed a check to the i r s for the federal unemployment taxes and again construing all this in the government's favor and the jury verdict there was substantial evidence in the record to support the jury's finding here that miss kotch was a responsible officer again this court found that the case to close the first time around so here appellant was able to put forward her arguments the government put forward their arguments so and so why do we apply our plane there review them because again she didn't she didn't later object when the district court said here are the jury to the extent the district court advised the parties what instruction it was going to be giving and she failed to at those points in time say to the district court judge you know hey we had this other jury instruction i think it's important to be included she failed to do that there was a couple of opportunities where she could have put forth what about what about the judges sustaining the objection the government made to the inquiry about some sort of a title section that said secretary again when that evidence came before miss got at the jury trial the government objected and i believe to that point the district court also asked counsel after asking misc aat when was the last time you had read the bible was and miss caught said that she hadn't read those bylaws since back at her deposition so the district court said to counsel for the appellant well what's the relevancy here since she hasn't read this obviously wasn't familiar with it at the time that it wasn't relevant and again the other factors here and the other testimony over five days with nine witnesses and i believe there were in excess of one hundred exhibits before the jury who heard all of this testimony for five days concluded that again for the three quarters here at issue on this appeal that miss kotch was a responsible party so we asked that this court not second guess the jury and its findings that she is a responsible person and that there is no plane error in the failure to give the jury instruction i would only note that again and miss cots reply brief we cite several decisions of this court system marketing i know was one and in her reply brief and maybe she'll address it here in her rebuttal but but offered no no no no way around the holding this court's decisions there so we asked th role was very limited she did not make financial decisions or authorized payment of any bills to vendors or creditors she did not open close bank accounts goes on and in descried seized ministerial functions they were giving trial on the right and the evidence is worse than in scott won that there was nothing that the judge wouldn't even let us keep calling witnesses has he in his own words he said this is cumulative the cumulative testimony she's performing these clerical ministerial acts so he kind of cut it off so what we're saying is all of the evidence establishes there's nothing establishing that she's making the required higher level decision making this that's necessary to hold her responsible the the the eleventh circuit all the courts say it's status duty in authority now she had the status of the corporate secretary but we weren't allowed to present to the jury exactly what that met but the evidence is overwhelming she had no duty to collect these taxes she wasn't making the payments she she didn't have the authority to say well dad i don't think you're paying the taxes i'm going to pay him she didn't have to authority and then under sixty six seventy two she's required to collect truthfully account for and pay over the federal withholding taxes again and dad have the passwords in the user id numbers you know she's not doing performing this function there's testimony by force tucker that one time he saw or the jury was the finder o fact here and we we can't second guess and as long as substantial evidence that what's the legal error that you're trying to base your appeal on there there are no facts showing that she had any of these responsibilities the jury could not rationally find for the government for these three quarters the there's nothing in the record that was support anything other than she was a clerical person she's really a party girl you know she's slipping and flip now collectin the big paycheck but you can't be libel for that   those are the standards and the government didn't get here to those standards and determining that she she was a responsible person in going forward with the case she signed two tax returns control of your financial affairs you sign checks the authority to disperse corporate funds again she sighed check stock ownership she didn't have that but the ability to hire and fire employees mentally there was one in indication that she had somebody fired right know there the testimony at trial was she tried to have michael jenkins fired and he tried to have her file they're both unsuccessful and then her boy boyfriend was working there for a while and she went to daddy and try to have him fired and i don't remember whether she was successful or not but that's not exercising control again you know jenkins tried to say that she had responsibility over other people but everybody else that came in said no in jenkins try to overpower trade her he called her office manager but the real office manager came in and testified i was the office manager so again prong attack there's nothing in the record showing any higher level decision making authority and the spread sheets so the checks are being written sporadically yes she is never been disputed she wrote or handled most of the payroll checks but that's minister of duty we pulled out of the operating checks these are going to pay electricity and other bills other than payroll and they're very sporadic but but you said that there's no no reasonable jury could have found her to be a responsible person when when this court sent it back we said that you can go to trial on ten quarters and the jury only found that she was a responsible person for three so doesn't that suggest that the jury did take in and all of this evidence coming from both sides and pick and choose the quarters i mean and very much limited down to three well if you look at the question the jury posed to the court i think the jury it's clear the jury didn't understand how a corpus secretary fit into the equation and the co declined to give any further instruction so our logical conclusion is well we don't really understand this so we'll just do one one per here you know that's i think that's a very sound