counsel to without adequate consideration or consultation promised that mr udo would take the stand to testify in his open the opening statement he made this promise that mr hutto would take the stand to testify to directly deny the allegations of the government's back witnesses and to permanently present an opposing version of the facts this coupled with mr udo's counsel's failure to actually provided that testimony constitutes the videotape only applies to one count of the twenty five counts of conviction most of the other evidence at trial was simply provided by fact witnesses who came in and had a very strong self interested motivation to tell the story that they did  in light of that testimony there's also problems with the video in that and counsel pointed this out in in his examinations and during the some nation that the video had any number of different points i think over twenty five in the transcript where the transcript indicated that the video the videotape was quote inaudible and i think so and attend in the article indications during the operative conversation about about the work commuting expenses so that's one thing also the jury could very well have felt that that there was an entrapment aspect of that video that the officer came calculated the correct how collated a tax form that did not account for commuters expenses and then the agent complaining that about having to pay for a refund and then apparently they had a discussion about commuting now that doesn't that doesn't address the knowledge or sorry the willfulness element of whether or not the government could have proved or adequately prove that mr ito was aware of what could or could not have been deducted but i don't believe that the videotape in and of itself changes the calculus that just one juror could have refused there was evidence that there it there were work commuting expenses discussed to some of the witnesses had less than perfect record recollections and said that they didn't recollect talk their conversations in detail  of the well one of the witnesses ended up taking their tax returns to someone else who calculated the exact same tax return as mr udo someone from h r block another person when when they were initially question about it indicated that she actually had had verification of all the deductions she had taken and that they had burned in a fire and then she changed her story to the  udo actually made up the numbers after she after further questioning so so the witnesses testimony that the facts against mr go were not assailable and the case is recognize that the prejudice here is inherent and it's significant many of the cases recognize it to be essentially presumed prejudice and the cases that do discuss the fact that there is a this the reviewing court to find that the state court because they were viewing a state court decision applied and under a reasonable interpretation of supreme court precedent so all of something like that then unforseen circumstances would account for the for council's decision to change course that is not present here so that's on the diligence problem with respect to the prejudice problem i do believe that the prejudice is inherent i believe but i also believe that in this case because of the way counsel structured his defense he struck for the defense as he said she said he basically told the jury you're going to have to believe you have two diametrically opposed versions of the facts here you're going to have to believe one or the other and you have a perfect provided the other so once you take that away the jury if there's a negative inference all the cases that that's what the case is recognize the jurors apply a negative inference to the defense case and in fact it is essentially this rates the presumption of innocence and the defendant's right not to testify in addition to affecting h because he was sitting by his nation in the district court not in the circuit court but he recognized that that that this argument could have been made but hey he still he still had other options available and i think that and i mean he discusses this more at length i won't bore the court with additional well but but williams does address this and i think that that's the case when you promise the jury that the defendant is going to testify it alters the course of the acquittal is not the only thing that the proceedings would have i believe been different and a mistrial is also something so just one juror one juror holding out and i  trial wouldn't change it's simply it's less than a preponderance that's not that is how strictly expressly it defines the standard and so it's not it is not an extremely high one and we were talking about whether one jerk in the face of a very self interested witness testimony could have could have believed in this case i think that the opening statement of promising the defendant's testimony then failing to deliver and then in his some nation the only explanation he gave was he said look i made a promise i didn't deliver but we didn't know it was coming at us that simply the government's evidence essentially and he even more reason to doubt the credibility of defense counsel when you're saying hey we didn't even know what was coming at us so so now the defense definitely not going to testify all of all of the cases recognize that the negative inference that the jury can draw all based on the defendant's not testifying they can believe that otherwise he would have perjured himself that he would have been a terrible witness that he would have any any number of things the cases recognize the prejudice that is inherent in this type of not fulfilling this type of promise and in this case the defense was built around it was completely dependent the way that he struck her this case it was completely dependent on the defendant's testimony and i think that at least under a member shaad the pressure is strong one we don't know whether and what defense counsel may have done differently had he not structured the the case in that way maybe the case would have turned out differently the evidence would have been presented differently this would be a different case perhaps if counsel had not structured his whole argument based on the defendant's testimony so i think under rashad at the very least we can do that every man is warranted to see whether or not please the court alyssa heard me and for the united states the defendant in this case was charged with twenty five counts of willfully preparing false tax returns and the indictment allege that the defendant added false and reimbursed employee expenses to those tax returns while knowing that his clients were not entitle to take those expenses as deductions and the evidence at trial was the six defendants clients all of them testified consistently that the defendant added these  reimbursed employee expenses to their returns and that they had not provided the defendant the information underlying those claims on the tax returns and significantly there was also a videotape of an undercover i r s agent who went to the defendant to have him prepare her return this videotape corroborated all of the testimony of the six other clients the fact pattern was almost identical the defendant had it on reimburse employee there's no reasonable probability of a different result here your honor given the consistent credible testimony of the government's witnesses and the other documentary evidence here even if defense counsel had not promised that the defendant was going to take the stand the jury would have convicted the defendant anyway it's it's very your honor in a white collar case that you have a videotape of the defendant committing the crime typically the government has to rely on circumstantial evidence here there was direct evidence that the jury could judge for themselves that the defendant had made up these deductions out of whole  s duties under the ribs yes your honor and as we acknowledge in our brief it was error for the prosecutor is to say that the defendant was deemed you know the government bears the burden of proving all the elements of the offense beyond a reasonable doubt and the jury was properly instructed regarding the government's burden and that the defendant had no burden to present any type of evidence i would note that if you read the prosecutor's closing in its entirety the focus of this case was that the defendant knowingly added these false deductions to the returns now in the defense closing defense counsel attempted to use that return from our action to suggest that the defendant didn't know what his loot legal duty was and wasn't the jury is properly instructed regarding the elements of the offense and the government's burden of proof that can cure an error in a prosecutor's closing statement and this charges as i remember is was on the  propose this but seeks tent that the government argues that defense counsel use this in his favor if the court actually greets the entirety of the summation which i did again last night counsel actually runs from this instruction under the instruction but i do want to make clear i mean that that's another reason why counsel is that effective but but i do want to be clear that this was not of people instruction to him and he did not use it as such it was much more favorable to the friend it because it allowed and and it's a it's an instruction that that is quite shocking to give to a jury it's inappropriate in and of itself but it did allow the jury especially without the knowledge the separate knowledge requirement but it allowed the jury to convict and attached criminal liability to the violation of professional standards as opposed to i e he did not exercise due diligence and or he did not as i do good questions and it is in and there's any number of aspects of the instruction which indicate you know some provisions of the tax code do require additional information and then at and before i sit down i do i want to make clear that it's this instruction in combination with the willfulness instruction which requires that the defendant knowingly faith language actually in the good faith language says the following good faith is an absolute defense to the charges in this case this is because good faith is simply instance inconsistent with willfully preparing a false or fraudulent tax return while the term good faith has no precise definition it means among other things and on this belief and the intent to perform all lawful obligations this the  contraction is he directly to someone's intent to perform lawful obligations so in that sense it highlights again that the willfulness element deals with someone's knowledge and intent to violate the legal duty as opposed to the factual of a known for providing a false sorry knowingly false tax return but but in getting back to the interview that but in introducing this instruction the district stated the reason i am about to describe certain provisions of the tax law is because some of the elements of the charge crimes that i have described depend on the application of the tax code so she so you're essentially apply them together i don't think she said there i'm set out the elements discreetly at absolutely yes yes that's exactly what she did she she set out the elements first and then said and now i'm going to give you some instructions about the tax laws in there and then she said in doing that the reason i'm about to describe that is because some of the elements again that that she had just given have described depend on that location of the tax code so i'm not in that sense i'm saying she she did it directly he this these instructions these tax code instructions to the elements in a way where the jury could have thought that that the willfulness instruction was informed by this legal duty this is really the only place in the in the instructions and in the trial where the jury was told about what actually the legal duty was and in that sense i think that the text here instruction should not have been proposed by counsel i think that it was deficient to do so and prejudicial