we understand that we're privileged to have in attendance of some lost and from memory and we welcome you what you're going to witness as a conversation between only was the jury told that he had previously been convicted of a tax fraud offense but the government went further the case agent read from an unverified document and made it into evidence the government characterize that document as providing mr todd's description for how his prior fraud scheme worked to a congressional subcommittee and there were some damning statements in that exhibit for example when mr todd told the committee he thought his odds of actually getting caught were small and that he was not afraid of his skin being detected by law enforcement but you see wasn't that the kook the the statement that he us that it was and verified i think i know what you mean but it was certified right it was an authentic document at least in so far as admissibility purposes were concerned your your arguments a little bit different take it in that is that there was no verification that what was in the document was accurate correct your honor and i think at the trial level you know reflecting i probably in artfully used the word authentic n when i made my objection at the bench but yes my my objection is not that i think the document was faked or forged in some way but that there was no verification that what the contents of the document work were  accurate i recognize that it contained a certification from the library of congress and that certification which was included with the government's exhibit contains language that says this is to certify that the library of congress contains a publication and then it listed out the title and that the attached photocopies are a true representation from the work so really what the what the document was was not mr todd statement it was actually whoever created that document we don't know who it is it was really they are statement saying here's what mr todd said to the congressional subcommittee so that was the focus of my objection at trial where where is whoever it is that made this document and there was nothing within the document to indicate how the recreation was made we don't know if the you know the testimony before the committee was audio recorded and later transcribed or if there was a court reporter there taking down the testimony there's just no indication from the document at all is that different from courts looking at legislative materials to figure out the meaning of a statute and looking at what was said on the senate floor or the house floor in a given day or what a witness said at a subcommittee hearing when you say courts looking at that are you are you talking still about in the trial context because that to me seems like what the difference would be i mean we're talking about a document that got edited and read to the jury and that's the goal my argument was not let my and my question was not so much a technical legal one but the concept of looking at those materials and sort of assuming that what is in a certified document at the library of congress or the senate or the house is what it purports to be i have to say i haven't thought about that particular angle you know when i was analyzing the argument i was trying to think of more analogies like the one i put in my brief you know when the when the government seeks to introduce taped recordings that an officer has made or or using an undercover informant but you know to some extent when we go back and we look at you know house bills or legislative materials you know part of it intends part of it  relies on you know where you go get the document from there's something in the document that says ok this is a house bill you know this is the procedural history side i get your point but i've i have looked at it a little bit differently because we are talking about you know a document that has to follow the rules of evidence before it can be read to the jury or publish to the jury and this document not only was it read from during the trial but it did go back with the jury during their deliberations as an exhibit so it was something that they were able to refer to and read from and analyzed later oh wasn't judge jordan asking you judges often rely on a record of this is the legislative history here of floor statements that were made during the bill's consideration isn't that the kind of document this was about yes admittedly my argument is not that i think this document was honor this court has repeatedly said going back to just the concept of a prior conviction coming into evidence at all this court has repeatedly said that prior crime evidence has significant potential for prejudicial effect and should not be employed and less really necessary and in the government's brief they seem to argue with regards to this conviction a little bit and both ways you know in one respect they say well the other evidence in this case was overwhelming so even if this kaman erroneous lee it didn't harm mr todd but at the same point the government's brief points out just how problematic this exhibit exhibit was this exhibit really put flesh on the bones of mr todd decades old tax fraud conviction it was used to tell the jury how he previously recruited clients how he concealed his activity and the value he put on targeting poor members of the community particularly women so it medically i recognize there's no bright line rule that this court has set forth for saying well once a conviction reaches a certain number of years old and it's too old to be admitted but there are two prior cases and the government to one in their in their brief from the circuit muna's united states versus i'm not sure that's perry or perrier how the water is pronounced but that was an unpublished opinion from two thousand and fifteen i think maybe judge dourdan if i'm remembering correctly that was your opinion where this court found that a prior conviction for a felon in possession of a firearm was too remote in time to be admitted at the current trial and i think the time discrepancy in that case was approximately the same as what we're facing here in mr todd's case and then there's also the case of united states versus sanders which was a two thousand and twelve decision and in that case this court said a twenty two year old conviction for possession of marijuana was too remote in time to be considered for the defendants current charges of a cocaine conspiracy so i would argue that mr todd's conviction in this case falls in line with those two cases and should have been excluded at the trial court level the district court apparently believed that the spike the length of time that had a lapse the conviction should have been admitted because in the district court's view the schemes were so similar that i believe that's what judge cohen said and ruling that the evidence should come in that's right so this court has said two things you know one is that the older a conviction gets the less probative value it has but at the same time that when a prior conviction is more similar to a current conviction then it's got the much more potential for a unfairly prejudicial effect so that's the part i would focus my argument on and just with my remaining minute or so i just want to briefly touch on the issues of loss and restitution i recognize that with regards to restitution i didn't object at the trial court level so the court's review at this point is fairly limited and i think the court heard extensively on the restitution yesterday in the related case of michele field so i won't expand on that but with regard to the issue of  loss it is true that loss can be an estimation and doesn't have to be proven with precision but in this case there was reliable and specific data available to the government and the facts of this case are not like the facts of the cases cited in the government's brief where the information the trial court had to estimate the loss amount was really either not there or just very though in this case intended loss and actual loss where the same you know the amount of refunds claimed on the tax returns was the same as the amount that the i r s actually paid out but there were some there were some line items all they might not have made a difference to your argument there were some line items in that spreadsheet were nothing was paid right there were some there were some tax payers listed where no money came back from the i r s so maybe at least in theory the intended loss might be higher than the actual loss i think maybe that's true in a few circumstances but by and large i believe the amount claim was paid out by the i r s thank you  refund and he used different tools at different points in time ever that twenty five year period but the goal was always the same to get them as high a refund as he could by claiming tax tax refunds tax  tax credits that they were not entitled to and i really can't say did any better than the appellant doesn't his brief which is that he is and i'm quoting here good at preparing taxes and helping his clients maximize their refunds that's the issue here but the problem for him that he maximized those refunds by manipulating credits that he knew his clients were not entitled to and so the scheme charged was this education scheme and it was a conspiracy between the defendant and his two coconspirators but the problem for the government  is that the defendant forecasted that his theory of the case was going to be a mere presence theory he was going to argue i was in the same office i was there with these women but i really didn't know what they were doing it was all them and so by doing that it's not just that he pled guilty that put his intent in question it's that he specifically said he didn't know what was going on and so the government needed to walk the jury back in time and explain to them that what was happening in that office was a page out of the fra tod playbook and something that he had been doing for years and so that's why we wanted to introduce the conviction not just because intent was an issue although that is one of the issues but in a fraud scheme but now you say the conviction doesn't really matter well there's that tension right i mean on the one hand in order to show harmless error we have to prove that there was other evidence supporting the conviction but it matters for this reason that the government is always arguing in these cases they argue with the district court that they desperately need before zero four be evidence that they can't get to a jury without it and then on appeal when there's arguing about the four of four be evidence having been improperly admitted the government says all we really did need it we could have succeeded without it and so it's harmless error well in your honor i'm not aware of a single case that says that the government has to prove that its case rises and falls on the floor of four b i think the question in jernigan is the government has to demonstrate its profits and its need for it so there has to be a need and when you're dealing with an old conviction i think the need does have to be higher i think the probative value has to be higher and this is why in this case there are all the other cases that i think both sides cited to you jernigan james perrier and a lot of the cases dealing with for a for b you're looking at someone who may be charged with a drug crime or charged with a gun crime and the prior conviction is basically just a conviction for that same thing and said you really don't see much in terms of similarity other than they did it before so they did it again but fraud cases are different for this reason in a fraud scheme you're looking at a machine and there are cards and there are wheels and what the government tried to do was break apart those cars and wheels and show the jury that look it's not just that he committed a tax crime before it's that he committed tax crimes in the same way and those specific the similarities and why that congressional testimony was probative is because he told congress and there was evidence at trial showing that it was similar in this case that the way that he chose his victims victims is not the right word clients  taxpayers the way that he would hire recruiters to go out he would pay them fifty dollars a piece to go out and find people and bring them into the scheme the way that he would use electronic filing numbers that belonged to other people even as the acronym that the i r s uses he would use events of other people to file these returns online so that the i r s couldn't trace it back to fraser todd because he was a convicted felon and so brian jacobs testified at trial that frazier todd stole his even to file  electronic returns and so that was another similarity so why did the government need this a because frazier todd was showing it was arguing that he was just there and wasn't really involved and that was a real problem for us because his name was on very few of the tax returns that were filed as part of the conspiracy he didn't use his name to file these tax returns but the second problem for the government is that most of the people who worked in that office dealt primarily with michele field and miss walker they didn't deal with mr todd much he was not involved in the running of the business day to day he was more in the background he was the idea man he taught both of the defendant both of the co defendants had a prepared taxes and so we proved that by introducing testimony from cozy walker the codefendant but she was a  guilty she had the same impairment that a lot of co defendants do which is that she you know the defense pointed out that she had an incentive to cooperate with the government and so what this conviction allowed us to do was corroborate her testimony that he's the guy with the plan he's the guy who knows how to identify these tax credits that taxpayer that he can use to maximize taxpayer refunds he's the guy who taught them about how to select clients who otherwise wouldn't have a tax burden so that you guarantee that all that money is going to come back and is not going to be intercepted by the i r s or by child support or something else and so that conviction it's not just that he had committed tax fraud the way that he did it allowed us to argue to the jury that he was still behind the scenes that this was his fingerprint and it had his name all over it out of the document the congressional testimony miscible your honor they objection that was raised to trial was authentication and so we introduced a certified public record it had the gold seal a exact objection the objection that was raised at trial was authentication nothing was said and i think about the content miss palmer did say that there was no certification from a court reporter but there was not a hearsay objection if there had been i would have said that you know it's a it's a statement by an opposing party it's an admission by the defendant and i was but you don't have the party that made this received the admission you don't have the person the person who actually and that's correct your honor and palmer said something in her argument i think i'm this may not be one hundred percent accurate but she said she's looking at when she when she's analyzing why this document is objectionable she's looking at the fact that it has to follow the rules of evidence and so that's the question i asked the court to look at what will a babbitts as she identified that says that there has to be a court reporter certification before a document comes in she cites richardson and her case which is the case dealing with an undercover tape recorder and how do you certify that the transcript is an accurate recording and this court has a preferred practice that's the term it uses in richardson but the richardson case the government had a problem that i don't have i had a certified public record there's no rule of evidence and no case that has been cited by the defendant saying that the government in addition to got it it wasn't and if it had been made your honor i would have said that you know there is this residual exception to the hearsay rule and here we have testimony that is given before congress you could have this what you could have shown that he appeared before congress for whatever relevance that would be but what he's what we're supposedly said is another matter well and i understand it would respectfully your honor at that everyone on the panel either currently is or has been a district court judge and in judge cohen she was may have made a you're biting off more than you want to ok your honor so i would like to address another issue that was raised by the defendant which is the balance when dealing with the age of the conviction so at the time of trial the conviction was old it was twenty years old but i want the court to look at from the time of the the conduct in the conviction to the earliest conduct in this case and it's less than twenty years so that conviction was from one thousand nine hundred two it was from a fraud scheme that was discovered in ninety one so that's our first point in the time line count two of the indictment which was the one that alleged the fuel tax credit and the false w two scheme the first filed tax return in that scheme was two thousand and seven so we're actually looking at a time span of sixteen years and that how much how much time with bruce i believe it was three years i know he was sentenced to three years i don't know how much he actually served i assume he got good time credit or unique but you needed the congressional testimony to make the link why the conviction itself was probative because as you said in the beginning of your argument if all you had was the fact that he did something similar in the past that wouldn't be enough well it could be enough i mean if we look at for example it was what i saw you said that in the cases that were cited it's just that somebody did something similar in the past and that's not enough well you you needed that congressional testimony right this talk has not said that's not enough  that's not my question to you sorry you needed that congressional testimony to make a stronger argument about the relevancy of the conviction you would have meant by you would have been in a much tougher place in another  if you did not have the congressional testimony and all you had was a naked conviction absolute the same type of conduct no question at all sir but even then even in the situation it's still not clear that it should not have come in so if we look at james i believe the conviction in james was fifteen years old it comes in in perrier it's twenty two years it doesn't come in so does a conviction that sixteen years old does it come in or not sixteen years old it's the time of admission that counts right as any court ever said that you start counting the time backwards from when the crime was actually being committed i'm actually don't know the answer to that your honor of whether there is a case where it says that you only look at crime to crime if we look at conviction to conviction original conviction and this was pointed out in the decision was committed when they defend it was twenty years old and so that was a factor so it's not just that it was old as that it was twenty years old when it was committed whereas the one thousand nine hundred two conviction mr todd was in his forty's and had been a tax preparer for a long time at that point and so that's another distinguishing factor for perrier but i absolutely agree that it's the congressional testimony that allows us to ask the jury to draw the inference that fraser todd is the man behind the curtain case while in any case the loss amount can be based on intended loss but i but i want to point out that the issue that has been raised by the defendant which is that it's just an estimate that was not raised below the only issue that was raised below was when do we start his presence and his ending time in the conspiracy the government argued that all tax returns filed before may twenty fifth two thousand and twelve should be included the defendant argued that we should stop at may second two thousand and twelve and yesterday and i forget having any old i was you i'm sorry it's been a long week that that there were there were duplicate entries there i think as you recognized right and your honor that doesn't change actual loss of the test and this is in the record here they agent lorgnon testified that that spreadsheet was pulled that was every single tax return filed out of that business and that business did file more than one tax return for it to individual taxpayers for the same year for the same year now the i r s didn't always i was told us yesterday that there were duplicate that could not be explained thirty one of them for restitution purposes that's true loss to your honor respectfully for intended l no no i'm talking actual i understand the argument about intended rights no for actual us you're absolutely right should not be done you're just saying that because the tax return was prepared and submitted the intent was to grab that amount of money of like to be brief and touched very briefly on the question of four zero four b and judge jordan to what you said you know that's the frustration with four of four be a lot of times as if we don't wind down at the trial level that's basically it even though we can talk about it on appeal you know just generally that's not a successful argument on appeal but in in this case as miss baron said the prior conviction was used to corroborate miss walker's testimony who was a codefendant who had pled and was in cooperating miss walker there was a lot of impeachment evidence that we presented with regards to her not only her bias and her interest in pleasing the government but some other prior false statements that she had made to a different organization so i would argue that's that's why that's part of the reason why this prior conviction was so important to the government's case because without it without that corroboration it may have been that the jury chose to disbelieve her and miss walker was the one who argued for the governor or provided testimony that the government used to argue that mr