we'll just wait for a moment to get judge officer back with  fifteen seventy five united states versus start mar mr straw to mr sanders good afternoon your honor i would like to reserve five minutes for yes or rebuttal thank you of your five arguments maybe and this is just me asking it seems to me that the the direct what you do on the other argument a great so lot of the one that i had to pick let me start by saying that the central issue in this case was specific intent and all of those five arguments in our judgment stem from the government's successful efforts to make its burden of proving that element of the crime more lighter than the law actually allows the clearest example it will fall blaine's instruction because we know from the supreme court's opinion in ch f that willful blindness requires actual knowledge of the relevant legal requirement and the purpose to disobey the law and the and the look it looks as if on pages appendix three thirty nine seventy three and thirty nine seventy four that he's attempting to talk about knowledge but then he throws in the seventh out of the eighth paragraphs there knowingly and willfully probably should not have used that word willfully well i think that there are fundamental problems in each paragraph of the of the of the instruction was i don't know this but on the paragraph that you just mentioned let me point out that it comes in the paragraph that sums up the import of the instructions with the award therefore as i recall  you may find it right it looked to me almost as if it was a almost a carry on from the last sentence in the preceding paragraph that you must find instead to defend it was actually where of a high probability the tax returns were false or fraudulent as to a material matter and deliberately avoided learning about it now that seems to be fine and then it goes therefore you may find that if pendant acted knowingly and willfully if you find beyond a reasonable doubt either that he actually knew that the tax returns or falls are fraudulent to material matter or that he deliberately closed his eyes to what he had every reason to believe it's the words and wilfully that caused the problem but before i ask other questions let's go back what other paragraphs in that willful blindness instruction on those two pages do you perceive that either the word willfully was used or something akin to the word wolf let me let me take you know the point that i was just about to start answering in response  question and the problems in the instruction are two fold and they go through each of the elements that cheek outline of being the essential components the purpose element has to do with this being a specific in crime and our basic submission is that no part of the instruction ought to have been given in light of this court's opinion in pierre all if he was clearly limited to facts now i am not saying that he will fall by that instruction cannot be given in a tax case if it is clearly limited to two a fact or two facts appears as is the mere knowledge that a result is substantially certain to follow from one's actions is not sufficient to form a specific intent or willfulness correct and and here we're dealing with third parties and what their specific intent is here we're dealing with the party in the court and isn't that a world apart isn't that a tremendous difference i don't think it makes a difference and the point i think that pierre was trying to make is this even a certainty that something is bound to occur is enough for knowledge of that fact but does not translate into the conscious purpose to achieve that end if i were to give you a hypothetical that that comes out of the statute in pierre for exam where the issue was did you have the inten inflict severe pain on with your jailers interact haiti and right tent right to withhold a liquid diet knowing it would cause pain but it is but to me that is so farther much farther afield that i don't see the applicability to where we are dealing with the and the person in the courtroom well the it and we let me try to to get at it from this way in pierre one of the issues was if certainty if knowing the certainty of the outcome could be equated with purpose then willful blindness could be adequate to meet the specific intent but we have a stack is there in p r i mean to really make sense someone in the condition of pierre is sort of an afterthought because you're not going to change the the conditions of the prisons here it's a very different set of facts because you're talking about not third parties in we know in another country in fact we're talking about is what this defendant standing charges in this trial whether he was willfully blind to actions that he was taking such that one could at least and for knowledge the issue got amber o with all due respect is whether it will fall by innocent structuring can be given with respect to the purpose of a specific intent requirement any specific intent requirement certainly would be given with respect to knowledge can it not know what your facts yes out now the second point of my argument is that it may not be given with respect to element of knowledge of law and i'll get to that in a second but just to close the loop on whether it matters that you're looking respectively at what will happen in haiti or whether you're looking at the person in the courtroom if you had a criminal trial for torture and the statute at issue in pierre happens to be a criminal trial eighteen u s c twenty three forty you would have the same intent issue and if you had the defendant in the courtroom you could have issue may made his specific intent to inflict severe pain be proven by willful blindness now the question in peer was does even then the absolute certainty that that sort of pain will be the outcome does that equate with the purpose to achieve that end and just a simple hypothetical i think would demonstrate why cannot you have a defendant in trial for torture and he is accused to have taken a chainsaw and cut off the limb of the victim he clearly given the nature of the actions had a a a certainty that he would be inflicting the level of pain and that is of concern in the peer opinion both under the cat in the immigration conflicts and in the criminal statute change one fact is a field doctor in the army the victim sort of paul is dying the only way to save his life is to cut off that leg the doctor knows to a certainty that the exercise with the saw will inflict the life in those circumstances let's take let's take a hypothetical let's say that you have a defendant who claims an obviously improper  trip to hawaii for a honeymoon he thinks about it as a business expense and he says look the might have been a probability that that was wrong but i didn't know about it anybody tr to tell me about it i wasn't really listening it sounds to me like under that set of facts clearly that person would still be in trouble for that for abating the tax loss could he not i don't i i i am not failed to acquire actual knowledge that this was a country to the law that person and to cheat a would not be guilty is actually far more reasonable necessary since that's when you know that they are not do that that sounds like a real problem under the tax laws because don't tell me don't tell me i'm concerned i think i can do it and we'll do it i think we have moved from the discussion that i started out on whether whether the willful blindness instruction is consistent with the purpose problem cheek and we have moved into the now that makes my concern is the way that i think that your brief appears to be reading cheek that you the consequences of your reading could cause problems elsewhere i mean to me it's you have a knowing prong you know certain facts and then you have you willfully intended to after you knew those facts to redeem to know those facts willfully determined to violate the law said they are both equally in front of you and either of them would be enough to overturn this verdict but but then my question is when you look at pages prior to thirty nine seventy three and thirty nine seventy four it looks like on thirty nine sixty five and thirty nine seventy two the court really is trying to say to the jury here's what willfully means and it looks like the court at least it appeared to me that the court was defining willfully correctly and all that happened here when you had the willful blindness instruction on seventy three and seventy four is that a couple of words the words and willfully got dropped you never by mistake that is not that is not  may be right but and the reason for that is that you know the government's argument which this is somewhat of a variant of is that the jury got many good instructions on actually intent and that was one of them and you know the fundamental problem with any argument about of that nature is is that the jury could have been given every perfect instruction an option a and a wrong instruction an option b and so long as the jury was told b was as good an an option as a they were fleeing they were free to convict soley on their willful blindness instruction so that the entirety of the instructions he could look at it from the point of view of the jury became irrelevant the moment that they were told that merely having this state of mind which is some sort of a subjective form of negligence was enough for the conviction and for all that the government goes out to minimize you know the appearance of the end wilfully on the theory that it was only two words in fact it was the summing up paragraph of this scheme struck and in the case in an issue in which intent was the issue and in addition in thirty nine sixty five the courts defined willfully i mean it's actually defining willfully as requiring proof quote that the defendant voluntarily and intentionally violated a known legal duty of that's that's a correct instruction is it not as far as it goes and the problem is that then you say but it way you can fully satisfy your burden and let me read it to you this is from you look at the totality of this of this instruction when you've got what i just quoted to you from thirty nine sixty five then you also look at thirty nine i think it's seventy two with the court you must show beyond a reasonable doubt that stuart acted with knowledge that the income tax returns in question was false or fraudulent as charged and to that he acted willfully we're going to find then is acting quote with a purpose to disobey or disregard the law your honor i take your point as i as i explained earlier that a set of instruction was given under one alternative for conviction that may have been accurate my issue is that my issue is with the superstition that this independent alternative would be imported into the independent alternative number two let me read you please how the jury heard that last sentence you know the the the there force and therefore you may find that the defendant acted knowingly and willfully which is exactly you know the subject of all of these definitions that we have been discussing if you find beyond a reasonable doubt either that the defendant actually knew that the tax returns were false and fraudulent estimate carol manner or the defendant deliberately close his eyes to what it every reason to believe and therefore well that the jury needed to find is you may find that they acted knowingly and willfully if you find that the defendant deliberately closed his eyes to what he had  deleted the words and willfully would that be an ok instruction it would not be it would be it would not be he would fix this problem now we haven't actually finished actually talking about the knowing part of the instruction if i could go on and i think that in order to understand what is fundamentally wrong with the knowing part of the instruction patrick want us in its place i think your honor and the difference between knowing facts and knowing law you need to when there was no objection to a willful blindness instruction being given here was there oh yes oh yes sir let me let me go back to that but the reference on the r r we filed the twelve page brief that starts at appendix eleven thirty three and goes on for twelve pages and when we came back to the colloquy which is at thirty nine zero five to thirty nine zero seven we said expressly that after the government try to change the proposed instruction that it willful blindness instruction should not been given here at all at all we had all but wasn't the defense theory that scott mara was simply not involved in the preparation of the returns and instead completely relied on the accounting firm yes it was but i mean and if that's the case then doesn't that sort of lead to if you're going to try to convict him on those charges that he was willfully blind for the answer to your question i where the defendant has to have actual knowledge of the fact why they're in stewart the defendant said that look i didn't commit fraud or money laundering because i relied on the solvency reports of state examinations and we said that the trial evidence justified a willful blindness destruction there that seems to be by analogy a pretty decent case were to be here your honor let us make very clear as to when an instruction would be appropriate in a case like this if the government's case were that there was no roofing work that there was not proper deductions and that all of the invoices were in fact for yuri's that were fraud not all like the and there were evidence that he took affirmative steps not to find out for sure that these things were forgeries and were bad of course an instruction would be appropriate but was just post more pointed out in the opinion that i pointed out to you on the question of whether the whether an instruction is warranted as a matter of fact you really have to distinguish the person who is an inquisitive from the person who takes affirmative states excuse me steps not to gain knowledge and and his and his hypothetical is in a drug type case of that or if it was a gambling case if the prosecution theory is that that this house of gambling was just down the street from where he lived and around the corner the prosecutor could not rely on the fact that he did not turn the corner or less that was his usual route however if the house was in his same block and he went the other way he took affirmative action to avoid gaining knowledge that would be a basis for a willful blindness and my point here is that the most that the government had on the factual point was simply that he failed to gain knowledge of the law now we've been talking here about whether as a factual matter this this this could be given and i haven't finished dealing with the is a condition of the mind it's subjective condition that describes the state a full ability that is comparable to knowledge and that's key in this case in the tax area because if you look at brody you look at ruiz you look at rolls royce what the court says is that this is a state of mind that is deemed deemed that to satisfy the statutory element of well i disagree with you your honor because i do think that a rule that is applied in every case under a theory that is deemed like deemed knowledge and imputed knowledge does not satisfy what cheeks said is actually  required in this unusual secretary context which is on like every other context in which you know the knowledge of the law is never relevant which is actual knowledge of the long look at this willful blindness instruction realizing that you say you don't think it should be here where else in that there is a paragraph you think there was such a misstatement of law that the word was in there once you got any notion of this this applying to what i'm looking to is the start of the very first paragraph the element of knowledge on the part of the defendant may be satisfied by inferences drawn from prove the defendant close his eyes to what would otherwise have been obvious to the defendant finding is that you know the jury could only infer that that that the defendant that the that the tax returns were false or fraudulent as the material matter by factoring and what the prosecutor concluded was a to the soup assertion that the that that whether a tax return his fraudulent is a question solely a fact and in a in a case in which the government was required to prove beyond a reasonable doubt that the defendant had actual knowledge of the legal requirement you cannot put to the jury the ultimate question of legality under a willful blindness standard and that is a i mean we can go through each and every one of the paragraphs but found that yes i would i would direct the court to appendix b just thirty nine zero five that's where it begins and it ends i thirty nine of the committed players i'm not getting that it actually begins on page thirty nine zero five and you can see about the middle of the page right hand is where the colloquy gets started between the prosecutor on the court did back plan for this is that the previous day were else are you making the arguments your mo making today i you know we made all of these arguments ember in our opening brief and in our a reply brief and in fact in our reply brief when the government tried the it's only two warts please let us go argument we pointed out that that the essence of our objection was that the giving of the instruction i don't all with respect to any legal aspect of this case was a violation of cheek and there is there is a in discussion in our reply brief that points out to the use of the ward fraudulent and falls and expressly makes the argument that every paragraph this is this is how we put it  thirty three yes we had we had submitted to previous night a twelve page brief on this question the fact versus law and we made it very and we made it very clear said that the version then when the consideration was no better we re invoked all of the all of the statements in our brief and then the judge recognizing that this was the case invited us to put on the record and this is this is a charge is legally a puppet if the facts warrant it we have always maintained in this case that the facts in this case do not warrant a factual charge i mean there are three issues here your honor the first one is whether it instruction it's ever consistent with the purpose brawl of cheek the second one is whether the actual knowledge requirement of cheek can be met by by any knowledge rule such as as willful blindness and the third issue which also it's in our brief is whether you've been in the assumption that this had been offered us to a question of fact whether there were any facts in this case that supported the given off a willful blindness instruction on the last point are are key argument is the distinction that i adverted to earlier from the judge pos case which is the north for there to be a factual basis a factual basis in any case for it for an instruction of this type there has to be some evidence that there was affirmative conduct or something that was merely beyond failing to inquire that's our submission on each of those three prongs there are three different and distinct problems with this instructor and that's why i should not have been given at all i'd have to think that if i'm accepting your argument on the drive base the question is were raised for that trial because briefed on the record this was the filed briefs that the court had before hand the court adverted to our brief and invited additional objections and i am quoting here now from thirty nine  nine dash one forty four ok so if you look at the at page thirty nine zero five when we open the discussion of this and this is the left side water and bottom quadrant when the court hears from defense counsel first miss rule is on to say at thirty nine zero six after after a brief colloquy fully understanding that we had brief their objections at twenty nine eleven forty four this is the next page and is the upper right quadrant this time the court says that if he was expecting exceptions and objections to be put would under record quote other than has already been stated in our in your brief even so we went on to point out that this was inappropriate in a tax case and that there was no factual basis for it which were two of the points made in the brief that we had a minute but of all of the arguments made by the government and disc aids some of which  some of which are quite interesting and innovative you know the notion that this could be forfeited just cannot withstand scrutiny i mean it is rare in the heat of trial that an objection is so important that counsel takes the trouble to go home at night and write a poem page brief which is actually a pretty good advice although as i understand it this law firm that's what it typically does and it's very good at it i mean that's why they had this law firm involved well people are entitled filed brief on the docket because if you go to those ten pages and i put them in my supplemental appendix at pages eleven thirty seven through forty two because those are the pages that the defendant cites to support his claim that he objected to this instruction on the ground that and willfully was inconsistent with the intent component was page eleven thirty seven was a deliberate ignorance charge is improper as a matter  in writing you have the four corners of that document and then you have on the record defense counsel saying we are rate re raising what we raise in our brief plus what we say here said in their brief never are think what he's saying he's great race that they're plus what was said at the exactly and what they said in their brief never articulated this argument based on peer which is not surprising because p r came down after a day after the trial concluded but they never argued that the end willfully or any language in the entire  blindness charge contradicted the intent component of all of this there are their arguments in the district court were two fold that he was inconsistent with the knowledge component and that there was no factual evidence in this record that he deliberately avoided learning his legal that you should not give a willful blindness instruction with with respect to knowledge as was given on page thirty nine seventy three and seventy four let's just start off with that for the where do you agree that the words and willfully should not have been in that particular instruction i agree they should not have been in there because our entire intent after we got the brief objecting to the instruction to the extent  that it referred to knowledge of the law we said that's not really our willful blindness theory if we're going to argue our willful blindness theory is that he's claiming or he's going to claim in his summation that i don't know that these fraudulent deductions which i know were on the books and records that went to the accountant just dumb dumb questions did the did the prosecution see this instruction before it was actually given on this and well we were the ones who revised it but you didn't take why did why are the words and wilfully in there that it's that it's inconsistent with the knowledge component but we have several circuits going the other way so he's asking you to create a circuit split on that issue well she addressed his argument then that you should not even have a willful blindness instruction with respect to knowledge basically was how many returns that he sign how many returns that he signed how much time did he spend on it he really didn't look at it diddy that's almost written in fairness he didn't review those returns did he so that's  or should have known just by glancing at the tax return during the course assigning eight hundred returned how all of those items and returns were treated so that's a page appendix page four one three five and page seventy two of the transcript quadrants so that evidence plus that argument equal easily allowed us to argue which we didn't do by the way even though this argument was made so here's the argument i may have known what was on the books and records of the of the partnerships that went to the accounting firm but i didn't i didn't care for a look at those returns but our entire theory of this case was that he knew that the financial statements that went to the accounting firm the  could even be more public in a case like this because he's sitting there with documents he knows for instance and would village for his own internal review of the documents has made a four hundred thousand dollars profit during the year he's looking at documents every day he's going to meetings where he knows that that's the profitability partnership but a tax attorney comes heat knowing all he knows he doesn't sign it but he sees a claim the two hundred thousand dollar loss and he may not know each specific way that that return is fraudulent but he knows that  he has legal duty is not to intentionally file a tax attorney knows is false and in order to mislead the i r s that's his duty that's the willfulness and we have plenty of evidence that consciousness of guilt things that that defendants don't do unless they know they're doing something wrong and intending to violate the law so i know i've sort of what ok what about the law i think for the same reason i think your argument is that the district court's instruction did not apply to the law correct no i say we the government didn't offer this provides instruction with the intent that it applied to the law if at all it was only supposed to apply to whether he knew the specific what was on the returns when he find them so he would willfully blind himself to the fact that an expenditure from one partnership was falsely represented as a deduction of another partnership regardless of its knowledge of the text that's one in a more glaring example is that an expense not someone partnership but having nothing to do with any real if a partnership like like the ten or twenty thousand that was spent for the political consulting expense he would have to know that but that's number one it's just one fourth of our case maybe one fifth if you count the two school tuition reimbursement as a separate part of the contribution claim but and that may be true if one or two expenses are treated improperly but here you have tax return after tax return after tax returns were nothing nothing no matter how clearly a capital expenditure of entire roof entire sidings a building new windows an entire unit or expense our expense and you're starting to mr steadman or is not the average citizen caught up in the complexity of the tax code he's not the sort of person that that supreme court had in mind or congress had in mind in saying that the wealth in this requirement require this special  wear he starts off with this he p a with a law degree and with his nose buried so deep in these books if you look at the testimony from everybody they're talking about how detail oriented was how how he would question you know  bulb at a meeting but looking at the willful bias instruction it looks to me but it looks you could argue that the district court's instructions which referred to knowledge that quote the tax returns at issue were false were fraudulent as to a material matter that seems to be tracking the statute twenty six u s c seventy six zero two two and that doesn't that confirm or that the instruction applied to knowledge of the law as opposed to just facts we don't know we argue that the jury would have understood it that way the element of knowledge and by the way in this case and why not because the element of knowledge was separated out  and in fact i've gone back and researched if i had on any other jury instructions that did this where you had at the first elements of the tax returns are false and fraudulent after material matter element number two that the defendant knew they were an element number three  that the defendant acted willfully so we sort of added an extra element of knowingly but that element when it talks about facts and circumstance and later in the structure of material items the jury taking that instruction of the whole would have understood it we think as applying to knowledge or fact only but even if they would have understood at the point of knowledge of the law for the reasons we cited in our brief and relying on the out of circuit cases and the policy reasons this court has started by not letting people deliberately close their eyes when they know when they s  only suspect criminality of the foot and they don't take that last step they don't they find a certification on the tax return but they don't according to the certification read the return or read the schedules that are attached that is a classic example of someone who sh liability for their misconduct and i want to add there was a good faith their words and both of count defense here which was the charge correctly there was a good faith defense that was charged correctly twice and we know the jury rejected the advice of count and defense because they would have acquitted him in all counts presumably so they convict so we know they're there and if that's all the entire defense was about did the accounting firm did mr satmar in good faith believe no matter what he knew about the state of the records when he handed them over the coming from did he really believe in good faith that they were going to take everything and we characterize it and put him in the right but we had we had a charge of conspiracy we convicted of conspiracy and doesn't obligate the jury to find it not true it's entirely up to you whether you want to find that he deliberately close out and it's up to you to decide what what to do with that it didn't compel them to return a finding on this theory and it wasn't argued in summation we argued actual knowledge we have all sorts of evidence of consciousness of guilt in this case and evidence of filing returns correctly when it was in their interest to do so and that is powerful evidence the courts have routinely cited in cases especially with people of that kind of background with a c p a with a law degree who are deeply enmeshed in the records that are more than sufficient to satisfy the intention component of willfulness the want to dress pierre because you i think in your brief you argue that here doesn't necessarily says one thing to have a specific intent as to result but it's another thing to know to know your legal obligation or to be deliberately wycherly legal obligation and deliberately proceed in face of it if you know the law and you proceed anyway  in most circumstances you're acting intentionally and by the way this jury was instructed that the defendant you may presume that the defendant intends to normal consequences of the acts that he does knowingly so my argument really is a peer w now this ties into our argument about this is i'm playing a review for this aspect of the claim because we do not read a just citing to cheek in a written brief that spans five pages as encompassing an argument that that this instruction was inconsistent with the intent component of willfulness and that's what the argument appears based on your trying to bootstrap into their present their preserve claim that it was inconsistent with the knowledge component its additional claim and what they think now is a better claim based on just ask you a couple of questions on the issue relating to the risk he's a lay opinion as to what he believed his understanding was when there was the question from start myer did you review these  returns and he said yes he said his understanding was x given that he testified as the basis for his belief that sought more knew the return for fraud how was this testimony helpful to opinion which which are cases about gratuitous i mean in one case it's a speculation by testifying when if he must i have no reason to believe he didn't know and polish and i believe it was a document that said this kind of fraud couldn't have gone on without the defendant's know on this and it would seem that this was a pretty important one for the government this was his understanding the risk is understanding this thought more knew he was violating the filing law the answer was knowledge of problems in the returns not that he knew he was violating the law or had committed a crime number two at the end it was at the end of the government's opening summation that mr eicher stressed that testimony but at the end of  and here's what would have been a perfectly permissible question answer an argument to the jury are the returns ok to sign yes i signed them what did you mean by that i meant i knew there were problems in these returns but i are asking his paid accountant who's who who he claims is paid to do everything right are the returns ok to sign and why is he counting sort of saying yes saying i signed them so two people a conspiracy we're talking to each other who kno know what they've been doing with each other even though they don't say it out loud this answer by the christie helped the jury understand what he was thinking so even if we take the improper opinion out we still would have had a powerful argument based on the circumstantial evidence and by the way as i stressed my brief they had poisoned the well in that you know on their cross examination of a mr benson long before this happened they got mr benson to give far more damaging an opinion testimony in the us and so my argument wasn't did of course i didn't want him not to sign returns he knew the stuff that was in there between the meetings the lose the bill between this that he said he had to ignore it so i don't have to tell him not to sign return so once that testimony is in the record you can't claim that this additional question  willfulness let me say that there is a fundamental failure to appreciate the part of the government the difference between a harmless error standard and a rule twenty nine standard time and again you know the argument being made here is that they had two pieces of evidence maybe three e and we did not have a two month trial on the question of intent where the whole issue for the defense this was the defense was that he was in charge of the business and he knew lots about the business and he knew some about the money flow in the company but he was not in charge of the taxes it is a nullification of the entire theory of the defense as i understand what the government's argument here and the error with the word use of these two words and willfully it almost seems like it's three fold one you can certainly our case law says you can look at the instruction as a whole and not just to one particular sentence or one particular paragraph or even a couple of pages as was a lengthy instruction secondly at the beginning of the instruction with respect to count one which is the conspiracy to defraud the united states by filing the false tax returns a district court to find well fully as i noted before consistent with cheek i think as requiring that the defendant voluntarily and intentionally violated a known legal duty that's on thirty nine sixty five and then what i say it seems that the court goes on in the structure the jury that stop m would not be found guilty if he believed in good faith that the tax laws did not make his conduct unlawful or that his believe it need not be reasonable so long as it was honestly help then it goes on with counts two through eighteen which is the substantive counts here and the court's address that the elements of knowledge and willful seemed to address the elements of knowledge and wilfulness separately instructed the jury that the government had to prove beyond a reasonable doubt that stop mark quote acted with knowledge mechanism thirty nine seventy two and i will say again your temper with all of the respect and capable of i believe your questions while correct in their statement of the record are misdirected because the question here is going to sort of repeating what i think what i understood the government's argument yes and i and the governments argue argument boils down to the proposition that if i give you a delicious plate of food and this plate and a plate of poison in this wine and you eat both it doesn't really matter that i gave you have played a poisoned because oh geez you know there was a lot of good food on that on that first plate now you can not pick up the meaning of a willfulness based on the earlier instructions because that therefore sentence told them that all they needed to know in order to find that wilfulness was fully and completely satisfied was that he closed his eyes that's the fundamental problem with the case and just so that so that i don't let go you know this notion that the government gives propagating that this is all about plain violations of the tax laws i just want you know the court to understand quite clearly because analysts that very complicated record that a lot of the fight in the district court was whether you should capitalize or expensed based on what the relevant unit of property was and one of the really it was part of a but there were a host of other things but of course and the question is who is the proper that you know the government witnesses had given and used to recite the charles question he did all these things now know those are your words i'm just i'm just saying that the government's argument is that you look to the instruction as a whole and i think you certainly do the question is did the use of the words and willfully and perhaps were other things that you crying that were incorrect if we agree