good morning i would like to reserve three minutes for about off shore in light of the government's rule twenty eight j letter i'd like to move directly to insufficiency do we need to track any up the second thing issues in this case given the concession that re something is necessary i believe the acceptance issue is still on the table well so there's going to be a recent something hearing in this case right so i exceptions let me ask you something about the assisting whether the evidence was sufficient why couldn't the jury conclude that considering her position  being the main person responsible for payroll considering her compensation and this much is a almost a quarter of a million a year plus a couple of mercedes that they just didn't believe her when she said i thought locking on the return and then correcting it later would make it ok under the law and why couldn't the jury just believe that they didn't have to believe her they don't even have to believe or refer testimony was not contradicted i'm assuming that they didn't believe her but the record on plan or a review in my review still does not show that the government proved beyond a reasonable doubt and not just downloaded some of it well under sufficiency claim now that you're here all reasonable inferences have to be tried on in the government's favor she presented a good faith defense at trial right which the jury instructed on the good faith defense and the jury rejected that right so tell us why there's insufficient evidence through the proper standard yes i don't see in the record in the testimony of jason harvey or collette fox or david  nicholls or brennan littlefield i don't see in the testimony of anyone or in the testimony of mr browning that the government proved beyond a reasonable doubt that she had the specific intent to defraud the government  enforcement of its tax laws she admitted that the forms whether said testimony about the human after she was told to do it right and she says it is comma totally legit question mark and why couldn't the jury read that as filed as it is totally legit like are you kidding i addressed that in the reply that argument actually i believe that the e mail i believe actually supports this browning and could be argued that way that i understand that but the question is whether the here the judges are such on the jury saw her testify listen to her story and i think it's a fair inference or conclude as the judge did that she was why she wasn't telling the truth  i don't know whether in this case you know false and one false of anything in terms of evaluating testimony that if you find the witness to testify who was testify falsely one part you can consider mrs testified truthfully all through seems to me looking at this that that's what happened she took the risk of getting on the stand she told a story thirteen people in the courtroom clearly didn't believe it yet ironically there's no testimony in this case other than miss browning's as to what her intent was except the fact which the government is not just  that she refused to sign the false forms she refused to sign them under penalty of perjury and she was asked that and she testified about that so that act of refusing to sign the forms which jason harvey then side is a window into her and ted that is a good defense argument and a court of salt that said it's a pretty pretty solid then possibly persuasive one but in this case it didn't persuade she a hypothetical to illustrate my concern here let's suppose that all the jury gets is that a person made one hundred thousand dollars a year from his business during the relevant years in net profits and there's no question that's the net profits and let suppose he files income tax returns saying that he got income from his business of twenty thousand dollars a year during those years the jury knows from various other evidence this person probably knows something about how to fill out an income tax return why wouldn't that be sufficient by itself to show willfully beige and they're not that might be a different situation these are not her forms these are global forms but she didn't believe that they were truthful and they were sorry for it did she believe they were there's no quid pro quo where she got to keep her job yes just quite like a page that was the argument by the government i still don't think and i don't see that amount of time how it rises to the necessary level right you can take the rest of your time if you wish thank you let's hear from the government good morning may please the court junk laundry on behalf united states i'm glad that the court received our concession letter i apologize for when it was submitted but as the course probably aware we have to consult with washington before we confess error even based on a recently decided controlling precedent we usually open is there any need that you see in this case address the other sentencing issues that will raise i think that was an obstruction issue which the government conceded on there was an acceptance of responsibility was on the table and  unreasonableness do we need to reach those issues in our disposition under this court's on bond decision in matthews the court need not reach them but the court of course has discretion to regenerate so as to advise the district court and potentially minimize further appeal so if the co me to address those issues at all i'm happy to i can address in the back end or just now or just go straight to i really don't know because because i was thinking on acceptance of responsibility that with up to the district court to then possibly take arguments a new and it's a new sentencing reach issues that will come back anyways that i'm a little bit surprised but that does seem to be the exception matthews's the seemingly controlling standard of this court and it has a spirit strong presumption full of tact i sense a degree of agreement that the three of us are not likely to  fraudulent tax return we had we had abundant evidence here in fact if not overwhelming evidence is a crime just with that well as you noted at the outset mr price presentation she had her own peril company she was paid two hundred thousand dollars per year to be payroll director her  received eighty nine thousand dollars per year he was a ghost employee as harvey's admitted there are mercedes provided to both her and her husband company funds were used to pay her personal credit card and generally i guess she should have known what she was doing even if she started working in payroll for michael harvey one thousand nine hundred seventy one nine hundred ninety eight additionally we know a fair amount about her character on cross examination she admitted that she discussed putting a bogus degree on her resume she didn't disclose benefits on her personal returns namely the mercedes and the payment of the credit card bills and that she generated with martha should check own a bogus check stub to disclosed and deceive her mortgage lender of course that's not all that's just kind of  general stuff about her on top of that and i think this is probably the key point here this is not an evasion case had this been an evasion case than perhaps defendants defense relying on for nine forty one c might have some salience this was essentially a false statement case where she was charged with making a false statement on government's exhibit one which is the actual nine forty form itself and it has a penalty of perjury disclaimer that disclaimer right there puts her on notice that whoever signed that has to be truthful and he or she was convicted of aiding and abetting the harveys false statements and so we think that's sufficient right there i mean this court could look to its precedents from other willfulness contexts where there are disclaimers on forms and if and it's signed them and they sort of said that under jackson that presence of that disclaimer sufficient to make the the conviction dance i missed something what you just said who signed what so it was jason harvey who actually signed the one forty and on line five there is a you know i declared a penalty of perjury that the foregoing is true and correct jason signed she didn't sign it right she prepared or jason signature on it so the argument is that she must know when she prepared for a signature that he would sign it and there are all these other indications want to call it occurred she cheated and she you know created the instrument and then turned it over she may have been reluctant to sign that she said perjury oh boy i don't want to get charged with perjury ok you should have known and you know as a matter of law that most of other things you get charged with that's exactly right that's why i think this case was perfectly charged and why we don't have a really ever jackson problem here because there was abundant evidence that the defendant acted willfully when she prepared this form for treason her signature and my that there was actually an admission by her she knew the number she put down she knew the numbers were false and that that's what her good faith defense was all about well yeah jason dictate that the numbers to me i know their fault but i thought that i could still love it if we still have men by the end of the year whatever time frame she testify to that it's somehow the not in violation of the law and the jury listen stocked up on that defense yes i mean so that was her theory and the jury rejected it we believe soundly rejected it because again in this case she's hearing something from jason do this on this form and she's reading the form that says this form has to be accurate and so the jury is free to decide whether they believe her or whether they want to believe the abundantly logical inference that when she's looking at that form that says this has to be true and correct i can't make something up just because jason harvey tells me to and so and again that goes back to my point earlier where if this was an evasion case the instructions on the form nine forty one c might have some relevance because they're the questions are you trying to evade the pain of taxes and so if you make it up later maybe that's you know ambiguous wording in the instructions which say that that's ok to make it up later but here we're talking about a form that when it goes in you have to submit with your best information you can't even submit knowingly false information and she admitted that the information that she put on that form for jason her signature was and assume that again i don't know but i assume that the jury was given a standard charge on how this goes about determining once intent you can't read a person's mind so therefore you look at all the facts admitted that the nine forty one's and w tos should match that there after she submitted the false nine forty charged in count four so she's not only on notice from the form that yes to be true and correct in filling it out for jason hart a signature she's also told and confirms to an i r s agent that these forms have to be accurate and yet she goes and does it again and then of course she admitted to the harveys that she wouldn't sign themselves because of the perjury disclaimer which shows that she knew it was there and she didn't want to you know be squarely in the cross hairs and charge not with aiding abetting but with the charges that the harveys were charged with so in a way your best argument is the defense argument yes for refusal to side i mean it is a very strong case for the few little sign your argument to the jury you argue this to the jury that her refusal to sign shows that you knew perfectly well yes that whoever signs this false form gets in big trouble yes we argued that to the jury or and that is the last two items she clearly knew how t right in two thousand and five at the same time that she was preparing the false nine forty's charge in counts three and four she's preparing perfectly accurate ones for the company that was her own employer that implicated her own withholding and potentially her own refunds and then finally we have that two thousand seven e mail that kleinfeld you mentioned earlier where she squaring whether the harveys really want legit returns instead of presumably illegitimate ones like she had done previously and based on all of that evidence i think it was really an overwhelming case once the jury returns a verdict and credit please the court so i don't think any of the evidence really answers the question and i would also like to observe that mrs browning did not file any more nine forty ones after the one that was filed in count