a privilege to be with you again as we open court for our january court week we have continued to hear cases this virtual forum as opposed to our ability to assemble together the physical presence this has proven to be a workable alternative though not ideal and certainly not what we would prefer to be in the same place  but this is working and we appreciate councils participation and we will continue as long as circumstances require with that that includes call st case for the morning elements and a specific targeted perceiving element in this case the grand jury that return the indictment never found probable cause for these two elements because they were not alleged in any way shape or form in the indictment and that you know mr gunson did the supreme court call those items elements to refer to them as illness or could they be construed as his being that additional proof itself expressly stated that elements are constituent parts of a crime the prosecution must prove to sustain a conviction in the southern union company case and so as a practical matter when all of these things are considered the nexus requirement and the specific targeted administrative proceeding requirement should be considered elements that have to appear in the it's important to recognize your honor that in this case count two of the indictment not only does not use the words nexus or administrative perceiving but in no way shape or form even suggests what for example administrative perceiving would even be a political to be allegations have to the government has to prove some additional information which is the knowledge and yet i don't think that any court has said that that had to be included an indictment by a grand jury do you consider that to be a similar action of a gun for example that's a different situation than what ringback we have here because what we have here are essentially reigning in the scope of us as opposed to further defining the statute based on statutory interpretation and what's particularly important in this case is that by adding that these two elements regardless of what the supreme court calls them elements it literally limits the scope of the kind of conduct that this particular statute section seventy eight to twelve bay can actually cover so i think it's a different situation or i think furthermore as a practical matter it's important to recognize that when the courts use terms like elements in other words when beckon use the word elements that was not broad or in precise language as the government suggests and the reason why is because this court's analysis in the bakken case which is the st and i believe the most significant post offense in other words the court's analysis the opinion in becca regardless of whether it uses the word elements makes no sense if elements were not omitted in that case from the jury instructions in light of seven have binding precedent those circuits like beck i'm in the circuit that expressly recognize that these are elements and correctly so beckett is not an outlier graham in the th circuit just last month confirms that furthermore what's interesting about the post cases is those particular cases your honor actually they don't use the word necklet nexus and the court is right that some district courts acknowledged that essentially they didn't have to be alleged in the indictment but those cases do express we allege that they perceive things that further give the defendant notice so for example the defendant refers i'm sorry the government refers to perk the government refers to try those cases and those are not otherwise and that's a significant distinction and so it's not that this court necessarily has to separate itself from these post aguilar cases although i do think that the southern district of ohio's explanation in the the in case of pronouncing that correctly really recognizes this important distinction between the th amendment grand jury right and essentially instructional error cases and so i think that that's particularly important what's further important here is that these particular quote unquote corrupt acts that are alleged in the indictment have no nexus whatsoever to a pending targeted at ministry of proceeding and and what about actions or activities like a collection activities that apply to millions of taxpayers given day post mera nello and i think the adams court in the district of columbia recognizes that those are considered remedies after some sort of proceeding or investigation basically had already no collections activity at all ended before the beginning at that time period before march of two thousand and thirteen that's a fact the government does not dispute correctly so in this case and the civil statute of limitations for closed subsequent collections activit generally ubiquitous as routine tax administration activities would fall but then with the statute it can't fall within the scope of the statute year when by the government's own admission there was no ongoing collections activity this matters because the supreme court answer that period in any way shape or form a trial and nd of all there's no evidence even in the light most favorable to the government that these kinds of acts for example cashing one's paycheck when one doesn't have a bank account could somehow impede or obstruct a criminal investigation that was never suggested by the government there's no evidence that would support that there was no testimony or evidence at trial about how that could have even had any impact about the criminal investigation so in theory your honor a criminal invested investigation of course could be a target administrators proceeding a civil audit could be targeted administrate of proceeding but when the court looks at the facts of this case and what was actually alleged and established at trial this whole cashing paychecks concept doesn't apply furthermore the st two acts use of corporate funds to pay what it but personal expenses secured creditors and quote unquote structuring cash withdrawals from a corporate account the government acknowledges there was never any collections activity on the  as including anything is beyond the day to day work of the agency and goes on to talk about that they've got difficulty finding targeted administrative action when they find some activity was was going on but there was no targeted industry to collections activity going on after the civil statute of limitations legally prohibited any such collections activity and i think that's the distinction in grand the defendant in that case walked into an i r s office and handed basically a quote unquote tax protester document a check so to speak check with the mean literally and iris notice attached to it which is a far cry from you which emphasizes that the defendant in that case actually ringback filed a nearly identical motion to dismiss the indictment in this case and the government instead of opposing it like it did in this case actually went back to the grand jury and correctly  fed mentions the graham case we could have superseded the a diet but in this case that is true but that's not the issue with the case the issue was whether or not the indictment adequately alleged the constituent elements of the offense we believe that they did we believe that all of the case law that we have cited supports that we don't believe that back them is to the contrary let's start out by pointing out that i don't think there's any dispute over this the indictment in this case mirrored the language of the statute and in almost every case involving sufficiency of an indictment the courts have held that where you try where your indictment tracks the language of the statute you're going to be good now as far as the nexus requirement is concerned and the court has already mentioned this this issue arose in the aguilar cases where the supreme court decided that there was a necessary nexus requirement that previously had not been held to exist and twenty five years have passed since that decision there hasn't been a single case that has required the government to prove that particular nexus issue i should also point out that with respect to this particular had pleaded guilty so there was no point in or there was no above bail ability for the government to appeal that case before i go any further one of the cases that i cite in my case in my br taken under submission in october and it has this for size issue in it i was reading their brief last night i see that our briefs are very similar in terms of citations of cases and what not  and what it talks about is it says and what i and this is what i think we have here an implicit allegation of an element of a crime is enough the indictment need not specifically allege every component part of the offense and that's really what they're saying here that we have to specifically allege every component part of the offense now let's talk about back them for a nd that them does refer to these as adding new elements now we know that only congress can do that the supreme court doesn't add elements to a case what it can do is define what you need to prove those particular but think about it that's exactly what we did and back them the court in back of them basically says you need to mourn no more than that you simply possess the weapon you need to know that you had the status that made the possession of that weapon illegal it narrowed the universe of individuals who are subject to prosecution and yes beck and call them elements but let's get back to the rehab cases for a moment there are i think it's much like the term jurisdiction the courts over the years this court the supreme court has noted that that jurisdiction means different things depending on the context and when we're talking about elements that need to be alleged in an indictment we're not necessarily talking using that word in the same fashion when we're talking about verdict directing instructions we're talking about facts that have to be proven beyond a reasonable doubt to the jury to to opinion that's a case where the court seems to recognize that john her is a that the requirement of status be proven is an element in the sense clear that in their analysis that there needed to be a proceeding administrative proceeding in action or reasonably foreseeable to the defendant and the indictment doesn't alleged any or identify any administrative proceeding is that it isn't that significant i would say i don't know not significant enough to not significant enough to find that the  in it is insufficient know because it talks about that's basically how you show that there was an obstruction or a paddock adamant to a a an i r s collection activity no i  i do not think that's any more significant than like i said the the aguilar cases where you have to show that you impeded the the administration of justice basically again these are facts that we have to prove but they're not something that we have to allege we don't have to allege the septics of how the crime was committed so i don't think i mean it's a distinction but i don't think it's a a meaningful distinction seven we list the various things all we need to show here is that there was an investigation and or some sort of targeted proceedings against him and on page thirty seven we list all of these all of these things i don't want to go read them for you i know the court is capable of doing that himself but we're talking about notice of lean's we're talking about actions taking against when attack when tact rather  wages he had do we seized his his one of his vehicles that he was driving i mean there was a long list that he this went beyond a mere investigation these were numerous we list seven plus his corporate and personal c p a david emerick got a collection due process notice directed to him telling him that the i r s was doing everything and remember these levees these lanes they they were still in effect it's true that at some point the i r s suspended actively trying to collect money as they moved into this into the criminal realm but to respond to judge kelly's question yeah i think you know if you're talking about a targeted investigation what could be more targeted than a criminal investigation and a criminal investigation includes not only prosecution but it also includes obviously restitution and he's taking actions that are going to prevent us or at least are designed to prevent us from collecting the monies that are owed and dude do i bade the the structuring of withdrawals that were obviously designed and there was that e mail that he sent that basically saying i'm blowing low here i'm trying to keep as out of sight as i can so that the i r s can't collect from me he knew that this was more than just the routine i hear heard mr galpin say this is just a routine i r s activity but the case law and again he says we're relying on premier and elo case law but we're relying primarily on six circuit case law which had already adopted the mirror and elo standard it was really the only circuit and so those cases i think are very persuasive when they speak in terms of what do you need to show in terms of i r s activity and this is just counter one the statute of limitations ran on the trust fund amount for the recovery amount then are you only relying on the criminal investigation and the pending a reasonably foreseeable administrative proceeding a think that they were also and the record will show if i'm wrong or not but they were also seeking reimbursement for his personal liabilities as opposed to the stress so he also of personal record shows his checking account was always there at some point it had a negative balance but no evidence presented at the trial and it was presented to the jury that that there when there there was activity to collect on the personal taxes owing i believe so yes mr gelfand can correct me if i'm wrong but i believe that's true there was there was both that was why ability in terms of his personal liability there was also a liability in terms of the funds it had should have been sequestered for the i r s in the trust fund and basically were either not ever sequestered or were used so again the idea that filing all of these about is processing income tax returns any time you start getting like notices of deficiency and notices that at least liens and levies and seizures of property i mean that's obviously investigated that's obviously targeted activity and that's exactly what marion l is saying was covered there say gritty just processing in other words if you don't if you file late for example or you activities of the six circuit case that we've signed i think it's minor that says filing liens and levies is not the kind of routine activity that is taken against the average the average tax payer again if you look at all of the things that happened here he was the subject of a direct investigation that was ongoing these liens and levies you know he said we stopped we stopped trying to collect are still outstanding that were never withdrawn and clearly he was attempting to avoid those collection activities which i think is precisely the kind of activity that marion allen is basically says that does fall within the scope of the statute here i may be leaving something out i have got a minute and a half left but i think you know two things here number one the indictment clearly sufficient we don't have to allege every component part of a particular element i think the case law is clear when you're relying solely on a said the government just decided to cover their bases it's like why bother to do that i would point out that in the in the rehab's cases the government is now alleging the status we don't believe we have to the case law says we don't have to but we do it to avoid these sort of problems and these sort of arguments but it's not a concession by any means nor should be interpreted as that that we believe that it is a element that we have to allege in the indictment which is to what degree is all because what we're saying is and i can't make this point any more forcefully what they're talking about when they talk about elements in an instruction is different than what they're talking about when they refer to elements in an indictment and i think the cases of this language of the statue and i could not disagree more as united states supreme court said in coral sea a r l l it's not sufficient to set forth the offense in the words of a statute unless those words fully directly and expressly without any uncertainty or ambiguity set forth all the elements necessary and so i think judge kelly to answer your question that you asked mr coffey that's very significant because there's no reference in the indictment to the existence of any collections activity there's no reference in the indictment to the existence of a criminal investigation there's no suggestion that this had some nexus each particular alleged quote unquote corrupt act to anything the government argues that there's no there's not a single case post aguilar which came down in one thousand and ninety five dollars that basically supports our premise but the reason why they are under is because the government like in ri is actually indicting fifteen of three cases correctly now just like they're indicting seven thousand two hundred and twelve a case is so well laid knowledge that that may not be a concession that these are elements the government's own actions are avoiding these precise issues the government in this case decided to double down what's particularly interesting is that in the westbrooks case a similar argument the sufficiency of the indictment was raised in assert its mission to the u s supreme court post marinello the u s supreme court without opinion rebirth back to the th circuit and then the government itself and seated on the other issue essentially that the marital issue that we've raised on that the rule twenty nine dollars if you the government conceded that because there is at least one theory that falls outside of the scope of language and back him was just so careless and haphazard and this court should just ignore you know a published well thought out decision from th in both you know of and all of this court that took the decision very seriously i think this court should reject outright the final thing that you just briefly mention is this suggestion that the th circuit case the government sites where they're going to write its one a j letter changes the game it