that gives me about four and a half minutes and that's not a problem because i only have two little things to bring up both involving the first amendment the first is that the reliance defense package code and quote is in our view not subject to criminal prosecution when it's cold and that it is not the defendant's burden to determine who is going to use it properly in the event their charg file income tax returns as opposed to those who would merely feign a belief that they didn't believe that there was indeed any law requiring them to file a tax return absolutely protected it can never be admitted as relevant evidence to establish whether or not there was intent to violate the law well i wouldn't want to go quite that far your honor but it would have to be shown that it was in a context where lawless conduct was imminent i think that's the test is that why we had to let this case go to trial so that we can review the full record that shows us whether or not there was sufficient evidence to establish actual criminal culpability on the part of the i'm sure you won't be surprised you missed a no and the reason different about this case anything from a fourth amendment violation where we say to the defendant you're claiming that your constitutional rights were violated by this prosecution and that the conviction was a stain on the grounds of constitutionally protected evidence but you have to wait till after the trial is over and then you raise that as part of your direct appeal because this is a pure question of law and the burden on the first amendment is too great to await vindication which he said well mr hardy is trying to reduce people to sustain a belief that they're entitled not to file based on these materials but she said well that doesn't make any difference because count one also has allegations in it of fraudulent trusts and bankruptcies and ira rollovers their four count one charge and it's true we said yeah but there's no relationship between those two things and furthermore we have the crash of age problem prez which meaning eight nine was committed so that this is mere speech these are opinions here are the that the authors do not believe that people are required to file tax returns and our clients are well these two gentlemen represent individuals writing these that evidence coupled with whatever else the government is going to produce and whatever else the defense is going to offer in defense of spam alyssa's intends to obstruct the collection of the taxes and i don't know how we can make that determination by simply looking at the package each and saying as a matter of law this is or is not it miscible at a criminal crime that's a different question whether it would be admissible to trial is one thing to show something but i'm saying that the reliance defense package per se which is confusing conflated in count one with these allegedly fraudulent actually which could lead in fact that the package talks about not filing a tax return well how this is imminent lawless non con you really are asking us to declare as a matter of law that this package is not admissible under the first amendment for any purpose at the criminal trial that that's the only way we can grant you the relief as i understand your argument well that's that's not my that's not my argument this is not a and in many ruling it's a statement that this charge is pure speech which cannot be conduct it's failing to file a tax return which is a crime no willful failure to file one of the kind i got to know and they're back my intent problem so the question is whether or not this constitutes evidence of aiding abetting counselling procuring urging well it to all it's doing is saying if you don't file this may be useful to you in defending the charges so the real thing we're talking about here is criminal the retaliatory prosecution aspect of this case on the basis of which we believe the entire indictment should be dismissed and we just received ten days ago a critically important piece of the scope of tory evidence has been withheld for the last two you good morning i represent mr killing in this matter essentially my arguments very brief it's to the point that mr kayleen is exercising his rights in the first amendment by writing opinion letters this is a each it is a situation in which he generates an opinion based on his research and he essentially tells people that what he has found and what his opinion as he does not tell people not to file he actually tells people that if you don't believe what i say go talk to your own experts your own advisors in order to gain your own opinion so essentially this in its purest form is pure speech it's an opinion it's just like anybody that goes into a lawyers office paying money that's going to lawyer for an opinion it's like sports commentaries on the radio asking people give opinions all the time this in its purest sense its peers speech he was charged with writing these letters because people would pay him money now whatever somebody does with those letters after the fact is not up to mr kelly because he certainly is not advocating imminent lawless action by don't file your taxes he merely states my opinion is that the tax system is voluntary and you can volunteer to pay your tax you can volunteer not pay your  and that's essentially the basis of the letter so in and of itself mr caylee's letter is in its purest sense it's an opinion people may not like his opinion but that's the first amendment is all about that's what gives us the right to be the democratic society that we enjoy and on that basis the counts and then indictment relating to those letters should be dismissed how many counts we're all together with mr cause of expressing his opinion under the under the first amendment an opinion which people have the opportunity to accept or reject at their at their decision upon reflection which is not i in order for him to express his opinion yesterday have the opportunity under the first amendment to do that and when he expresses his opinion if he subject to an indictment such as this that's wrong and you should take  your answer to the chief's question we've got a supreme court opinion in hollywood motorcar that tells us that there are only three grounds on which one may have seen an interlocutory review double jeopardy the speech and debate and forget third one but this doesn't fit into any of the recognized exceptions and the supreme court has told us we don't like piecemeal appellate review of criminal case i understand your honor enjoy prosecution you have to have some evidence that the intent of the prosecution is really not a good faith prosecution they really don't want to get prosecuted out there bringing some sort of a grasping action opportunity to reflect upon this is not he's not standing on the at the door house of the jail with his opinion in his hand with people that are standing there with clubs and pitchforks saying get in there and get th is that you think i disagree with philco hand i think that the reliance to france is something which can't be used to prosecute my client because i think my client is doing nothing more than what's done in the library if you go down and like that's not the issue and in this case in this case the question is is fred or teased entitle to give the opinion that you don't have to file an income tax return period and the answer is under the first amendment yes and shouldn't be a vibrant one where is that in in the united states versus cheap that the answer might be no depending upon how the advice was given the good faith belief of the defendant in relying upon it and to the extent that the person who offered the advice was implicitly aiding or abetting the defendant in not filing then he could be criminally c as well but that is a question that the jury has to decide so you're a judge told me if i think your position so i give a cockeyed opinion that something is a certain way and somebody doesn't but takes my cock eyed opinion and takes action based upon it and this prosecutor i know they are in a better because i gave a cockeye the pendent jury thinks that in your heart of hearts it was truly a cockeyed opinion or whether you were really aiding and abetting the violation of the tax laws and trying to pass yourself off as some kooky researcher that may be a good defense but intel we see our record i don't see how we can simply dismiss your client on your representation two of the prongs fail here the defendant's first amendment claims are not separable from the merits of the case against them as this court held in freeman where the indictment is for counseling the circumstances of the ca determine whether or not the first amendment applies to this case has to go to trial it has to go before the jury for the jury to determine whether or not the first amendment protects the defendant from being tried the only way we will make this go away is that if you agree not to import any obscene materials into utah even materials that are protected by the first amendment it was very clear then that the government was trying to prevent the defendants from exercising their first amendment rights in this case we are trying to prevent the defendants from selling and encouraging and assisting in the use of materials to promote tax evasion this is not a case which where we are trying to prevent the defendants from exercising their legitimate first amendment commercial speech rights income and assets from the got from the government facilitation of early i or any withdrawals without the payment of taxes and penalties that were required this is not a case where we're just trying to prevent the defendants from telling the world that they think sealing income and assets from the u s to the allegations of count one i believe it is but it's certainly not one of the it's certainly not the most important looking now as to whether the two whether mister and mr killing should be dismissed from this case under caldwell we have to prove that the particular dependent entered into an agreement to obstruct unreviewable on appeal the case doesn't involve the right not to be tried unlike midland asphalt where it says that the right not to be tried has to rest on explicit statutory or constitutional guarantee