whether the jury was improperly instructed that it had to find that mr presley also reasonably relied on the advice of his account when the supreme court laws to the opposite and the second is what the district court improperly precluded defense counsel's professional standards expert expert go to the heart of the case when his sole testimony was about conduct among accountants and the question was did the taxpayer properly disclose all the information to the account how is that relevant and how is that anything there were errors in the tax return and that that the defense had to explain those errors were either the result of somebodies incompetence but they were the result of somebodies fraud and by showing that the accountants involved in this case did not act up to professional standards we believe that was relevant to it would go to prove that there was more than likely not incompetence on the part of the accountant that's not x mutually exclusive with fraud but it does tend to show that the results are that the errors that are in the tax return o result of the it's incompetence but the real question before the court was not was the accounting competent the question was did the taxpayer fully disclose all the information to the accountant so when the accounting gave advice it was  up the focus was on the taxpayer not on whether the candidate was competent or not so why would this testimony from an expert who so we're going to talk about accounting standards and accounting conduct among professional accountants why is that not confusing and irrelevant well again so that our first ground would be that we think it gives an alternate explanation for the errors that were in the tax return the second ground but you don't think because it goes to strictly that alternative it's not confusing on the first point i thought i would say here's the second ground that we thought it was relevant too much was made in this trial about the various things that mr prescious or did not disclose i think and in footnote two of our pleasure if we list this to what mr laffer would have said she said that the that the account is allowed to rely on the information provided to the provided by the tax for the taxpayer laffer would have said that the information that was provided here was bit caught off guard she had said that she wasn't a professional standards expert and therefore when she got into this testimony i'm not sure was entirely what we anticipated happening those are the true grounds that we believed the professional expert  relevant and again this was a case where the government presented three accountants and an i r s tax expert we were trying to counter that by showing that the accounts weren't acting up to snuff and that the information mr press yes i disclosed was  sufficient i do want to make sure i cover the jury instruction issue as well because i actually think in some ways that's the clear error to the jury instruction are we not looking at that for plain error i don't think so your honor in this case we have a written objection that's at your fifty expansion of the objection of the bail hearing but my reading of the record was that there was simply a statement that it might be confusing and or objection to the extent that's an objection there was was there ever a time where instructions there was disputed jury instructions and at that point the defense indicated that it did not believe the instruction was not for you so it was because i i looked at what you cited in your briefs which was our eleven forty four to forty five i think and i didn't see any indication that the district court thought that was the same argument as the bill hear me saw i'm trying to find the same thing i'm sorry so you know eleven forty to forty three forty four that's the bail hearing  in the in the hearing on the jury instruction this is where the defense counsel said i think that the instructions are confusing and send miss mixed messages so this is where we're talking about the two different instructions right the willfulness instruction that said  only requires good faith and not and it doesn't need to be reasonable with the advice of a count instruction that required a reasonable reliance on the oral statement to the trial court was it might be confusing it might send miss mixed messages but never your honor i object to that it would be improper to give that instruction to this jury never anything approaching that those words were used but again i don't i don't think this was a radically different argument than were raising here and again you agree that the the law in the two instructions is accurate that there's not any error in the in the legal content of the instruction is given well it in that i think it's useful to to perhaps distinguish between the two objections we have to the jury instruction i think the there's one piece of this that says that the will from the general willfulness instruction set a defendant who acts in good faith does not act willfully even if his understanding of the law is wrong or unreasonable and that's directly from cheek and then the advice of the count instruction said that the defendant had to reasonably rely on the advice in good faith that part of it i do you think is actually simply an incorrect statement of law i think that it's part of the instruction has not kept track kept up with the changes that have come in the wilfulness instruction in the wilfulness instruction and in this court's model instruction five point five excuse me the court is acknowledge that there cannot be a model instruction for  your argument regarding bishop bishop only bishop only relates to the disclosure piece so it doesn't affect this argument and if i can close the loop then i'll come back to visit and just one moment so on this piece i do think there's a simply incorrect statement of law you've got one instruction that requires a reason on this you've got one instruction that says unreasonable is enough and i think the reason was the incorrect statement of law on that point now on the disclosure point right one of the instructions required disclosure of all material facts and an unqualified statement of the duty it never made clear that that's that instruction was also subject to cheek and sheiks requirement that the taxpayer need only act consonant with his good faith understanding of what the tax law required and so in that case i do think that it's a correct statement of law i just don't think it was clear to the jury how these two different interact these two instructions interact and so are you asking us to presume the jury doesn't have a modicum of common sense and ability to sort through these instructions without being irrevocably confused i think that of course i think the jury has tons of common sense what i think was difficult here was that there were two instructions that pointed in different directions one required reason on this one required did not require as much as no time during the trial and during their deliberations the jury sent out a note to the trial judge explaining to this explain to us how these two instructions royd to each other there was never a question raised by the jury during the deliberations right there were three questions but none of them went specifically went to the us that's correct your honor let me ask one other question are you conceding on the doctrine of a optional completeness issue you haven't raised that your argument so but i'm not conceding it your honor i don't think it's the strongest of the arguments we have i think the strongest argument we have is the reasonable versus on reasonable the contradicting disclosure requirements and particularly on the reasonable v under reasonable part i think even if we were suddenly deplaning or we would survive that standard because the because she is so clear that the text here is belief need not be reasonable it merely needs to be held in good faith and so on that to cure the completeness problem that i think you are trying to argue about here i mean i think that the clearest answer to that is the fact that the reading of the the tribe of the prior trial testimony gave impression that mr president so had tried had testified on another occasion under oath contrary to the testimony that he gave at this trial so even though he was able to present yes i did on a different day he said a different thing it starts to sound as if he simply  different things on different times when in fact his story has been consistent throughout i i'm hoping to reserve a little bit of time if that's all right thank you please the court nancy spiegel for the united states i'd like to start by putting these alleged errors in a bit of context and i just like to point out that most of the errors if there are errors are indeed harmless in the end so successful and he was able to receive an acquittal on all but one count and that one cow dealt with a time period that dealt with the twenty thirteen personal income tax return this was after the time th first accountant cave in had passed away and the new accounting from cake a j had taken over and the grab and then of the any kind of advice that defendant claimed he received was advice received by cavan he never contended that he received any advice regarding how to classify his personal expenses from k k j and if in fact he he admitted that he merely told them that the company was paying some his expenses and didn't go any further so as to the advice of a count instruction it really doesn't apply to the count of conviction because that was the cake a j count and specific to cake a j and and so if there was any error was harmless it was harmless especially because in addition to cross examine the government's i r s expert the defense cross examined at length  mr jensen who was one of the partners a k k j and they were able to extract from him you know all the information about the the duty of inquiry the fact that he knew about the accounting standards that that certain information provided by a client does trigger a duty to inquire that the defendant did say that some of his personal expenses were being paid by the company and that and he admitted jensen admitted that he didn't inquire further and those cases because the facts of this case are similar to those of st pierre in the sense that saint pierre involved somebody who was a burning company income into her own personal bank account and her purported defense was that the accounts should have inquired about some of you know why these monies weren't all going into the the account and the first circuit said that the negligence and the negligence of an accountant doesn't negate welcome ness on the part of the defendant and i think that's the case here that's the editor think if your defense is which i believe the defense is here but you can correct me on this i disclose all the information i thought that my accountant needed and i expected  if the account need anything more than he would ask i guess i'm just trying to figure out why would it be helpful and relevant to have testimony from an expert saying that any good accountant would have asked for more information well i think it's not relevant again because we're talking about whether the defendant himself acted willfully not you know whether his accounts were negligent and and so here it doesn't matter as you know but what the accounts did or didn't do it's the fact that does did the defendant know or not know when he was mischaracterizing the expenses and the company books that those should have been characterized as compensation on his w two form let me ask a question counsel the defendant here was charged with multiple counts convicted on only one of those yes the count convicted on equated to approximately sixteen thousand dollars in tax losses to the government the counts acquitted on i counted for something over two hundred thousand dollars of losses to the government yet he was sentenced to twenty four months in prison on the court can consider acquitted conduct as well as uncharged conduct and you don't see the disparity in those things and you don't think that should have been whether it could have been considered should it have been considered extended analogy to when you hire a plumber and you pay a plumber and you tell them to come in and nothing happens and year after year your figure pipes are fixed nothing happens then you assume that your plumber is doing a good job in the same is true of the account and i think this was  sorted out before the jury all the evidence was presented to the jury correct but the jury to decide whether or not the defense was persuasive and that's true i simply want to point out that i don't think it's correct that you can write off any jury instruction error because we is a whole lot different than calling a palm or and saying are my pipes ok it is but i think the analogy in some ways holds if you if you take the issue here is what did your client do what did your client fail today that and the level of what's required of a consumer who calls a plumber is a whole lot different than the duty that's on the pad taxpayer to fully disclose the relevant information to their candidate the perhaps it was a bad analogy i simply want to make clear that this was our that any instructional error leading to the advice of a count would have been harmless because you know this was the crux of our of our defense i mean didn't the government read into the record during the trial your conscience position that he thought he had given all the information as should have to his accountants and here i don't his accounts wasn't that fully laid out as drawn since or before during that was laid out there was a declaration from the civil case that was read to the jury but at the same time there  testimony from his from the first trial that made it appear that on a different occasion he said some think different and that's because the testimony was was carved out in ways that we believe was misleading and i'm sure dr of optional completeness our guess although i think if that if the testimony is misleading the rule of completeness is only one of the ways that we would say that the that the testimony should have time in under steve or we would say that misleading testimony there has to be some remedy to that for for constitutional reasons and i just don't see where the harm is when the government clearly put into the record your current posture and position and i am afraid i don't have any answer other than the one i've given up or perhaps have to agree to disagree and i says court has other questions i'm prepared to submit it appears not thank you both counsel the case is argued is submitted for decision by the court the final case on calendar united states versus mays has been submitted on the briefs that completes our calendar for the morning we are in recess until nine thirty