house but my virtual background is the harvard law school library i thought that was a little more appropriate and my kids bedroom it's steven's against trial the government successfully fought so excluded miscible evidence by arguing and i this is going to be the crux of their defense that mister didden acted innocently that he acted in good faith that will be prejudicial to the government allowing the jury to consider diggins april two thousand and nine he may indeed well that have been quite prejudicial to the government's effort to win at all costs the government however is supposed to win only when its prosecutors can win fairly dang well within the rules the government's closing arguments in this case no your honor i believe it is not and that's because the way this indictment is drafted if you take out the specifics of those acts that are listed all you're left with is a very wide allegation about conduct allegedly occurred over a period of five years now i do you have been restricted in any way to what tax years where it is you are to the subject matter of anything at all under the sun and personal injury attorney and then the trial record is actually quite clear on that you can walk the testimony by the government's expert about that and what they're counting in cost of goods sold advertising expenses absolutely does not fit within his two thousand and six tax return and that everything about the audit related two hundred and twenty million sixty two thousand and seven not two thousand and five when that income was generated so there would be no way for him to have reasonable notice defend against allegations that he is a bank account that he specifically reported on his tax return they held deposits for a tax year that wasn't an issue in the audit evidence and a major theme that the prosecutors brought at trial was the doogan redacted checks and then fought to prevent those checks from going to the how is that well it's right in the middle of the charge conduct so the charge conduct in count three we're not talking about the counts one in two which were involved in actually preparing the false return  is obstructing the i r s audit and that that conduct allegedly took place from october of two thousand and seven all the way through november of two thousand and twelve so in december of two thousand and eight he re written to him were almost exclusively all checks that were written in two thousand and five which was not one of the tax years under audit and it's very reasonable for a taxpayer to believe that when they're producing information in an audit of the two thousand and six tax year they don't have to produce information from two thousand and five and there's only one check that contained his name that was dated in two thousand and six and there were many many many checks where his you're complaining about the exclusion of the new nails yes now what if they had been if they had been admitted that was the been to use them as evidence of his good face because he had his defense was he was acting in good faith he thought he had to file a motion to quash and order to protect client confidence is what they said i'm sorry i didn't i couldn't hear you and th documents but he had good faith in not producing them because his lawyer told him he had to take this other action to protect a client confidence b where but what but but it doesn't get you very well what about the other one the other one is i've decided to produce i'm not putting it into evidence for the truth of anything that's buried in that narrative we need to put it into evidence to show that at that point in time he communicated that information it shows his state of mind at the time he made that communication which is right in the middle of the charge conduct then then it would come in under the exception for eight thousand and thirty three because this isn't the kind of situation where he's talking about something that happened in the past this is contemporaneous and it's showing it's a statement about his state of mind at the time he's making that statement so either it's not hearsay at all which i believe is the correct application of the rules of evidence or it would fall within the exception overall thirty three either way it's admissible and it's highly relevant because it undermines the core of the government's case about whether he was acting in good faith or not as he moved forward with the actions his attorneys recommended which was filing the motion to quash that took years then for the courts to decide because the government  argued that he was acting with bad intent that hold this action this one e mail undermines everything about the prosecution to the period of time of the indictment and it shows his state of mind at different points in time so for example the government alleges that he was acting with bad inten ma'am please the court she's give him her the united states i was tracked hands on this case i'd like to turn directly to the questions that were just raise judge present and you are correct that statement in the e mail is not a directive or an order that's possible that that nd part is more of a directive but that part would not be relevant to the issues at hand the e mail also shows the response from ms khan parents but shows that she did not interpret his statement as an order and  is the difference between them your honor is that under the age of thirty three dollars that would be hearsay but an exception for the state of mind here that does not apply because there are simply too much time for the defendant to reflect that the other had to that is referring to it being circumstantial evidence your honor here that does not apply because again for those cases including miller looks up at her example in those cases there has to be relevance and then also the time that is looked at so for example here in april two thousand and nine it does not show his state of mind at the time he redacted which was in december  two thousand any or at the time he found the petition to quash which was three months later in july two thousand and nine and so you can't have a showing of a state of mind before and if i could turn to if there are further questions on the april two thousand and nine e mail and there are questions raised about the indictment and construct an amendment judgment those who you asked about the language including but limited to there is actually were specifically went to advertising which is covered by paragraph nine of the indictment on appeal and vision and it is also critical that the court's review here under the plane air standard and in the case of low it's a commonsense non technical reading of the indictment and good defenses reading of to and then in the categories again there are some specific categories paragraph seven but there are also very broad categories like paragraphs six and paragraph nine and then just resign you yes the specifics could have been left out and the indictment would have been sufficient including the specifics here does not mean that the indictment was constructively amended because again there even if you facts presented in the indictment versus x presented at trial even if looked at under the variance standard there isn't a material or fatal variance here if you look at the facts presented at trial versus indictment invoice the defendant did not object to the instructions and instead actually agreed to the instructions and so there was no surprise or prejudice to mister doing here and then finally your honor if there are no further questions on the last argument about prosecutorial misconduct the statements by the government including and revise were based on a reasonable interpretation of the record focus the panel's attention on the entire sentence that's referenced rather than just the portion that the defense focuses on the entire sentence does that business letters shows that it is not just a bald assertion so the evidence in the record that supported that statement there's extensive evidence in the record of that and that goes to the actual drafting of the protests that are where and this is ad s v r seven  mister humans emails both the defendant as well as the accountant and provides a red line draft where the fee is changed that is not corrected in the final protest letter which is that as we are seven  the final letter includes and remains the final correct representation and then if you look at the final accountings and this is the client invoices and show the amount of fee that m letter shows it was not an affirmative assertion that he was an interpretation of the letter the reference to mister dubin actually reviewing and improving the letter that evidence did come in at the post evidentiary hearing the defendant's assertions that that was not discovered until after trial are not accurate there is actually a reference in the record and when i say the record here i mean the record that is before the court on appeal not the tr record there was e mails during that same time period that show mister dewey in reviewing and also approving the letter including similar language that answered your question  what is what is there to substantiate is that he received the giraffe's saw that if he had been changed to the lower in her acting out at those were not corrected and that the final included the incorrect  he also did not correct ms calls and statements in the same chain of e mails in the drafting of the protest where she also states again the incorrect amount and then all of the final accountings themselves your honor and this was the reference with misrepresents what's in the trial record and what's not in the trial record and if you look at page seventy five and seventy six and seventy seven where they argue that there's evidence in the record to support the closing argument that you can lie to his attorneys that's just not correct what they're citing is testimony from the post trial hearing exhibit that was produced in response to the post trial subpoena there was no evidence in the trial record the dubin ever saw and he never misrepresented the contingency to the lawyers is certainly not there's no evidence of that in the trial record and there's no evidence that he misrepresented it even in the post trial he did versus what his accountants and his lawyers did and the government's proof failed miserably in terms of showing that mister dubin was actually the source of any of these misrepresentations as opposed to his accountant we don't have that information in the record the government doesn't have that proof what if the government has not proven that he was making those representations to his accountants as opposed to his accountants preparing his tax returns which the jury seemed to believe with believe because they acquitted him on that count and then through the audit tried to defend what they had done which was use of improper accounting methods and things that were truly the accountants mistakes and not mister duke and mistakes and so it's critically important what he did versus what the accountants did