am accompanied today by my law partner brian sawyer's for whom i am grateful carl nicholson did not get a fair trial in the lower court i have an enormous amount of respect for the trial judge in that case but the principally through the internal revenue service of summary testimony offered by summary witness by the name of bradley looper mr luker had not been designated as an expert prior to trial and but nevertheless offered what is essentially expert testimony throughout trial he also improperly adopted indorsed essentially bolstered the testimony of witnesses who were hotly contested and who offered strongly disputed testimony interestingly the government had designated an individual by the name of lisa once lee but chose for some reason not to call this one sleep mr luker was the last witness a trial and mr luker gave what was essentially a st closing argument mr luker was allowed to essentially regurgitate the testimony of prior witnesses witnesses who had cooperation agreements with the united states and witnesses who themselves in several instances were offering opinions of calcite and you're focused on the most difficult issue in the cage not necessarily the only one of some relevance to our deliberations it was a couple things on which you sense of form st it wasn't clear he was going to be the last witness in the case but it did work out that out and some of the cases in which has been found that something written is really was just giving a really closing argument i think is probably a rebuttal witness unlike the situation here but more rter for the and asked mr mcwhorter to opine as to whether or not certain charges would be reimbursable under the accounting firms reimbursement policy and then based upon that opinion he rendered an opinion as to what were false charges agent leuchars opinion number one he should have been given opinion he had not been designated as an expert number two he certainly should not have been able to give an opinion based upon the opinion of a can kotl less significant because he was the last witness and he well he didn't appear in the beginning of the he didn't appear somewhere to talk about facts that were not genuinely disputed or to summarize charts he didn't offer testimony such as a particular number appears on a form he took it one step further and he said and that is false he also  referenced testimony of john late john lee was a lawyer and hattiesburg mississippi who was indicted and pled guilty to felony x john lease testimony was also debated and agent luker in summarizing john cleese testimony basically testified in a manner that was inconsistent with mustard with what mr lee had previously testified to mr lay insisted at trial at least that sixty six thousand dollars in checks that he had written to call nixon was for accounting things and that mr nicholson he led him to believe that that was to satisfy accounts receivable and he look or stepped outside the bounds again of what's allowed under the rules this this court has used very strong language in multiple opinions about summary witnesses undisputed facts are facts beyond controvert become beyond controversy but let's say he got them testified to what the sum total was of checks that appeared in a check ledger or let's say that he had testified to what the final taxable income was as reflected on the phone or based on the the evidence that had been a dish previously in trot we would have a lot less arguments about what he did he he got on the stand he collaborated with a hotly contested witness he developed an opinion that col nixon was guilty and he told the jury that karl nixon was guilty and it was because i say sir that the i r s is not a body that needs any  help and they certainly didn't need help at trial they could have offered an expert that the government argues now that this was a complex trial and they cite some cases where the they were seventeen days long this case was i luker oddly enough it required mr mcwhorter i know the court probably noticed from the transcript that mr mcwhorter even blurted out during trial can somebody tell me what i'm looking at with respect to the documents that had been presented to him that mr look at testified about over objection mr loop mr mcwhorter was able to take those documents home review them and then mr luker was able to opine later in the trial about his conversations with mr that and certainly shares a lot of similarities with the price case that we've identified in our briefing the curative that the court i guess attempted to give we noted during the trial we believe are ineffective and that is essentially because in a similar vein this court we believe stands for the proposition that when summary witnesses are allowed to basically run wild the way mr luker was there is only one cure and that's a new trial you know the government makes a passing reference to objections and things l we made objections that not only one sided or objected to certain testimony we cited this court's holdings because we anticipated that this might happen prior to trial the trial and if the internal revenue service and the department of justice want to retry mr nixon and and go through the proper procedural hoops then you know so be it method this denied and then a fair trial you know all the way down to and we even pointed out special agent luker looking the jury in the eyes and basically telling them that based on what frank mcwhorter told him he had decided that an element of the case had been met that the statements were false well they make the government observes that in one instance in their br that certain holdings require an express statement that i believe somebody number one we don't believe that that's what it holds but number two even if it did certainly when agent looked her luker stared those people down and said i talk to frank newport or frank mcwhorter said they violated the policy and so they were false it's certainly one communicate with the jury that he didn't believe mr mcwhorter he would not have been offering that opinion based on not belief i don't think so he had it at a minimum if not expressly implicitly endorsed and basically deferred wholesale to mr mcwhorter who again was the subject of cooperation agreement and was staring down the barrel at the time at least in i guess presumably still could be of a prosecutor himself you couple that and i'll touch on some of the other things the other errors that were president trial you know john lee was a forty or fifty year practicing lawyer and hence bergen had a very tragic count fall on and  in testifying made reference to mr nicholson had been subpoenaed to testify before the grand jury but did we of course did i think move from this trial if i remember that correctly  judge here to some degree that when they return mr nicholson would either put on his case or that they would hear from mr nixon suffice it to say mr nixon has no obligation to put on a case in the court recognize that and we don't suggest any of those things in isolation might fairly be criticized as making a mountain out of a mobile but in the aggregate they were damaging they were certainly damaging when you basically put a spin on it one instance i recall was when he went to mr luker delve into testifying about the calculation of outside basis which a couple of c p a s a trial testified as one of the more complicated undertaking accountant can come across he said that mr mcwhorter had confirmed i believe the one hundred and fifty thousand dollars figure i'm not sure that he ever said that he confirmed that mr nicholson's outside bases an accounting firm one hundred and fifty thousand dollars but certainly the inference could be drawn from what mr luker said that that was what he intended that was a slant on the testimony luker was advocating at that point and he was invading the province of the jury he was he did not limit his testimony to observable facts that the jury could have assessed for their credibility he overstepped his bounds good morning your honors and please the court joseph c for center united states the just report was well within its discretion to admit summary evidence fourteen witnesses testified over four days of trial no one hundred and fifty documentary exhibits comprising of two thousand six hundred pages were admitted into evidence and the defendant was charged with eleven tax crimes ten of which related to different false for returns that he felt for him self or since it is client john lee and filing the superseding indictment alleged that these returns were false and various ways which vary depending on the type in the year return i summary charts you can find that was on page thirty and thirty three of the government's brief you know these these charts listed the various items that issues in some of the tax returns that were charges false  leuchars summary testimony related the already admitted evidence that showed the defendant in lee's returns were false to the particular to the particular charge in the indictment luker also testifying with reference to another set of summary charts one of which you can find on page thirty five dollars the government's brief summarized trial evidence that was drawn from several different sources that when put together showed the defendant had obtained reimbursement for personal expenses that he and his family had charged his american express account the defendant claims the agent luker and accurately summarized the evidence that john lee has two thousand and fourteen corporate return falsely deducted sixty six thousand dollars in payments firm made sue is trusting the state's attorney robert jackson to pay his personal life insurance policies defended also claims that agent linker mischaracterized trail witness frank waters testimony when he said to me that warner confirmed one hundred and fifty thousand dollars but this was an accurate summary of mcwhorter's testimony regarding the defendant's claim that he had an additional one hundred and fifty thousand dollars in outside basis from his initial investment it is accounting so that was completely accurate summary of of what you can order a testified to  case involving a complicated type of fraud channel stuffing that was similar testimony that related elated admitted evidence jones the charges in the indictment in a fraud case that involve but agent lugar never testified but the jury should believe recorder and this court's precedent does in fact you know where it expressed statement that another witness should be believed to make a claim of improper bolstering the price case  so you know that had recounted the trial testimony of other witnesses in this court pointed to price and said you know look there was no express statement i would add that you know none of the statements the defendant points to in his reply one of them is one of them's a statement about one of them is a statement about one of the defendants tax returns which was ordered it's evidence that another was another was a statement about what happens  really the contest element here a trial summaries with don't have to be complete the government can selectively summarize evidence of agent luker here was subject to cross examination there people is very able counsel you know took advantage of been less objectionable had it been offered by an expert witnesses or any sense here that allowing this particular summary witness we would be broadening what is a fairly limited use of summ the evidence that showed some of that for reporting false i think in this case you know there he really was you know basing it on the other testimony that came in during trial  associate fees and you know the sharing expenses essentially for these payments that that really went to his life insurance policies the evidence the trial offered before looking over took stands established reporting income on john lee's personal return that was the basis for them from the counts relating to those personal returns but that a fact was already testified to by the trial based on jones who was one of the o not and even after the district court of managed the jury that he didn't have to the th amendment didn't require him to he said but i'm giving you the opportunity to do that doesn't that have son present evidence i'm giving him the chance and it's like well you had your chance and you didn't take it that's because you couldn't defend yourself man so with respect to that i mean with respect to the church of on the district court you know immediately when the jury came back addressed it made clear that the you know the defendant didn't have any obligation to put on a case as a defense you know scored already told the jury opinions at all related to nominee income and how it should be reported on a tax return and how mr nicholson head run afoul of the calculation laid his outside basis  government itself nineteen's in its brief that the john lays sixty six thousand dollars and checks was not for a r that is one hundred and eighty degrees opposite than what the witness said at trot whether anybody believes him and not quite frankly i don't know but you know mr mcwhorter in offering up his opinions about whether or not a particular request for reimbursement was reimbursable or not said that that's my opinion and anybody that you might ask would be different there was no uniform reimbursement policy that any witness identified a trot this was truly the government seems to be saying that there was ample evidence in this case that to support a finding of guilt well i disagree but even if there is that's immaterial under the holdings  identify in our brief there's probably ample evidence in a case where the drug case where the fruits of the search were suppressed and nonetheless admitted improperly before the jury or in my basic question evidence you might have sufficient evidence in a the rules of evidence and particularly their interpretation by this court are clearly within the domain of the of the members of this court that sit  and render opinions the evolution of rule one thousand and six is a creature of case will one need not read the law to see that it has become more and more lax i ask you to do what you did and hard to say no no to basically a one witness trial no two witnesses who have not been designated as experts offering expert testimony no to the mischaracterization of testimony and no two witnesses adopting that of other witnesses and advocating from the box you can do something about that and i'm asking you to thank