may please the court my name is wayne young i represent the appellant we were agreed jr this is the tax fraud case for mr green was a tax preparer he was convicted of assisting taxpayers and filing fraudulent tax returns council we've got couple of cases to solomon and so forth to each of our member correctly that say that if the instruction on intent is correct and adequate then there is no entitle them to find the defendant a specific intent in this case the court did neither if you look at the instructions nowhere in the instructions in this case to the word specific content ever appear on separate contents never help to a jury it's got to be telling the jury just what specific intent is needed with the i'm trying to get in front of me right now but intent is not necessary to prove the claim was false so i'm not all men alone it's confusing and if you look at the knowledge instruction for its states specifically the instruction that was given that the government is not required to prove the defendant knew his actual unlawful if that's true that's not true if you look at the commentary that's six instruction five point six of the modern instructions if you look at the commentary it specifically states that language should not be given in a case in which knowledge is an issue so the wrong instruction was given i'm confused knowledge is and is an element but not knowledge of i'm off on this knowledge of untruth the knowledge instruction which is five point the statute says knowing such claim to be false fictitious or fraudulent instruction says must prove beyond a reasonable doubt that the claim was false for fictitious or fraudulent and it says perfect issues are fraudulent the defendant has to know that it's on crew and for fraudulent he has to inten defraud the united states now what you wanted was a good faith and structure but i can't figure out for how the claim could be in good faith funder the terms of the statute if the defendant knew when he made the claim that it was false or fictitious or if he intended by the claim to defraud the united states so if that's right then it means that the request of instruction will be superfluous for the problem arises your honor is that the jury was instructed that the government is not required to prove the defendant knew his acts  unlawful that was so worth their stack to tory requirement that he no with x or unlawful knowledge has to be an element of this knowing such the statute says that the knowledge element is know in such a claim to be false faith doesn't say that the knowledge element is knowing that it's against the law to file a false for testers to frogmore claim file i guess a jury looking at these instructions would find them hopelessly confusing to be told that the and knowledge is required here he had to knew what he was doing was wrong and so the commentary states that the government that sentence should be given but it wasn't the government wasn't required to prove what he knew that he knew what he was doing was an awful  thing it's it's a rare case for very specialized statutes where it's a defense for to say that the government has failed to prove that i knew i was breaking the law futilely the government just asked to go well i know i knew that i waive submitting a false return i knew the figures are wrong for and the government doesn't have to go one step further and say for them where i knew that submitting a return with the figures on an arai violates some criminal law they usually don't have to make that extra that when mr green's defense here was that he didn't know what he was doing was wrong and the court will tell you that i had to know that they were false and i didn't know they were false and therefore you shouldn't convince me but the jury was still told that the government wasn't required to prove knowledge and wasn't required to clear whether the guidelines were mandatory were advised or if he thought the sentence was worth a well and line requires that at least you have the opportunity to be heard in a rematch it was no he was not  here on of the at the rematch and there was nothing there was no notice there was no hearing there was no counsel no opportunity here what happened was it was remanded and judge we'll if you want to brief the judge as supposed to just having the judge decide whether it was done the same at least in my understanding have a chance to argue for a reduction under book or that even if the guidelines work correctly applied have an opportunity to and from sample there might be other evidence that you can put on because it wasn't need to check that out but if you've already done the work then you can do it for me i believe i have a copy may i just briefly just if you didn't if you have it handy just read the words to and he said he didn't give us anything well the guideline sentence in this case was thirty to thirty seven months and he did choose the low end of the guidelines the judge and it was the same s end i was going to briefly address the arthur andersen case if your honour's are interested in that we don't believe that it's really a political in this case because that statute is much more complicated than the section two eighty seven that's an issue in this case which in that case just basically had to do with the shredding documents of enron that's the that's the believe the first that way in the in which this case is distinguished from arthur andersen and secondly i would government  they simply were carrying out a document to redemption policy of of arthur andersen and that you know that that that that did not require any finding of this honesty for the jury to convict and supreme court agreed with that with that position another way in which the  in arthur andersen all be fined or imprisoned so yes that did that that did require an element of knowingly as well in this case though we believe that based on the jury instructions that were given that the jury had to find that the the claim was either false fictitious or fraudulent and the defendant must have known about that at the time and so it seems to the government that there's no way that the jury would have convicted mr green had it credited his defense and he was also able story that what the defendant would do is get a name and social security number and then make up an entirely fictional schedule c with no questions to the non taxpayer  answers by the non taxpayer just make it up that's right right that's and there were some self employed there was a self employed cashier in one of the women will see so that there didn't need to be the view to write correct your honor and these things up with nothing but her name and social security yes and he needed more and once lost her the number needed the social security numbers of the dependent children as well i mean let me take you back a minute to this sam issue that first is with the judge had given the same sentence had he known that the guidelines were merely advisory that is not a reset and say that's just a look back at the the second if he says yes you're done if he says no you go to the second decision that's a reset and say that the feminists brought back into court and it's a hold we sensing that he could get evidence on whether he's supporting his sick at so he just answer the first question adeline says he's supposed to get the views of counsel at least in writing before answering that first question he did how would matter how might it matter what my counsel say that would matter i am i guess i'm affected a little bit by knowing who the judge is but i'm trying to figure it out logically what do you do besides bring it to the judge's attention you know to tell you the truth your honor i don't know what additional evidence or arguments could have been made we don't get evidence because it's not a reset and say you're just saying to the judge if you did i would think that if you had a transcript where he said for i really hate to do this but the guidelines require me to then you quote that part of the transcript back to him and said here's what you said i can't think of much else what is or i don't therefore there was no reason putting on a case about why now i'm not sure if i quite follow your honor and i don't think i said if x y and z is the case the sentence is easy then there was no point in having putting on evidence about something that it applies to this case but conceptually there are different sets of facts that might be pertinent now that warrant apartment before i understand your question your honor i believe the the best the way to answer it is just two thirds of the record the to do and now you no longer have to do that so i ask you to consider now my age for argument was not mean i have no chance to make it right well i believe they made the argument anyway or were that was age a prohibited basis for prohibited basis wife i'm white so you shouldn't give me a harsh sentence for i i don't really know i don't understand what what it what else you could have argued example mr green it's a vet with an honorable discharge that was a factor that wasn't you can use that to get a reduction in any kind of sentencing now you can the court has discretion to use it and the last thing is if you have that in the sentencing griefs your argument dressing anderson other than that a kind of obstruction of justice if the court would look at the united states be dobson which is for nineteen and third to thirty one it's a third circuit case it's a mail fraud case and in which the