[00:00:00] Speaker 02: 24, 2078, United States versus Kearney. [00:00:06] Speaker 02: Ms. [00:00:06] Speaker 02: Lopez. [00:00:10] Speaker 00: Good morning, Your Honors. [00:00:12] Speaker 00: My name is Alicia Lopez. [00:00:13] Speaker 00: I'm here today on behalf of the appellant, Victor Carney. [00:00:18] Speaker 00: We believe that the central issue on appeal today is a straightforward one. [00:00:24] Speaker 00: My client was charged with one crime, but convicted of a wholly separate offense that happened to appear in an alternative clause of the same statute. [00:00:35] Speaker 00: the Federal Conspiracy Statute, Section 371. [00:00:37] Speaker 00: Now, there's more than one difference between these crimes, but the material one for our purposes is that a heightened mens rea attaches to a conspiracy to defraud the United States. [00:00:51] Speaker 00: And that intent requirement required the government to prove that Mr. Kearney not only [00:00:57] Speaker 00: intended to cheat the United States, but that he intended to obstruct its functions by means of deceit, craft, trickery, or at the very least by means that were dishonest. [00:01:11] Speaker 00: That language is very familiar because it's all over jury instructions used across this country. [00:01:17] Speaker 00: It's contained in this court's own jurisprudence that's directly on point. [00:01:21] Speaker 00: And it comes directly from the Supreme Court [00:01:24] Speaker 00: that held in 1924 in Hammersmith versus U.S., that that is the standard, and in fact went on to note that the word defraud, as it appeared in the predecessor statute to Section 371, is far more narrow in its definition than defraud might appear in other statutes. [00:01:46] Speaker 02: Council, can you step back a minute and address the preservation issue that's been raised? [00:01:51] Speaker 02: Certainly. [00:01:53] Speaker 02: Well, first of all, with respect to this instruction, talk about the other one. [00:01:56] Speaker 00: Yeah. [00:01:57] Speaker 00: The government relies on an argument, almost exclusively, an argument that the objections to the jury instruction were insufficiently preserved by Mr. Kearney and his trial counsel. [00:02:10] Speaker 00: That's not the case. [00:02:11] Speaker 00: We've made no attempt to hide the ball here. [00:02:14] Speaker 00: Where preservation occurred is noted specifically [00:02:18] Speaker 02: in our briefing, but briefly to- Well, I struggled a little bit with what you were saying about where it occurred. [00:02:24] Speaker 02: You talk about the fact that the district judge in the new trial, or maybe a hearing on the new trial, I'm not sure where this occurred, but that the judge said essentially that you'd raised an objection. [00:02:39] Speaker 02: Is that right? [00:02:40] Speaker 00: Preservation occurred prior to that. [00:02:43] Speaker 02: Well, it needed to, and so I don't want to rely on that, but I was struggling to see [00:02:48] Speaker 02: where exactly you preserved this objection to this instruction. [00:02:55] Speaker 00: At the jury instructions conference at the outset, a trial counsel noted, I need to make a record here, Judge, how do you want me to do it, knowing that that district court judge sets the rules for his own courtroom. [00:03:08] Speaker 00: And the judge reflected that counsel had proposed jury instructions that varied from the court's [00:03:15] Speaker 00: you know, latest round of proposed jury instructions and said the government noted your objections. [00:03:22] Speaker 02: So it was treating... Well, what that indicated to me was the district court was saying that any time the proposed instruction was different than the instruction he gave, he would note an objection just automatically. [00:03:39] Speaker 02: He said if you want to rely on that. [00:03:40] Speaker 02: Is there any authority for that being an objection? [00:03:44] Speaker 02: Your jury instruction you proposed is not what you're proposing now that should have been given. [00:03:50] Speaker 00: The initial proposed instruction was sufficient, though. [00:03:53] Speaker 00: The district court noted after the fact when counsel moved for a new trial, proposed a different jury instruction. [00:04:01] Speaker 00: And in fact, trial counsel for Mr. Kearney said on the record, we think that we did before was sufficient. [00:04:07] Speaker 00: But prompted to offer a different one, counsel did so. [00:04:11] Speaker 00: That said, while it's an interesting question as to whether what the district court said is adequate to preserve, but you don't have to rely on that because when the jury instructions conference proceeded to take up the elements of the conspiracy to defraud, trial counsel did interject and initially said, I've made proposals that differ on the elements. [00:04:35] Speaker 00: The district court judge said, what do you mean by those deviations? [00:04:39] Speaker 00: And counsel went on to give his grounds [00:04:42] Speaker 00: sufficient to satisfy Federal Rule of Criminal Procedure 30D, because he said, we intend, we're trying here to incorporate the context of tax fraud. [00:04:52] Speaker 00: And that, coupled with the annotated proposed instruction, which contains the language from Hammersmith, and at least as it was adopted by U.S. [00:05:02] Speaker 00: v. Klein, a case because it involved the IRS that was directly on point, [00:05:07] Speaker 00: Our position is that that's sufficient. [00:05:09] Speaker 00: Unfortunately, people don't speak as fluently as they write. [00:05:14] Speaker 00: That's what many a transcript shows. [00:05:17] Speaker 00: But the district court judge certainly understood what counsel was conveying. [00:05:22] Speaker 00: So we don't simply have to rely on this. [00:05:24] Speaker 06: What did the district court say in response? [00:05:26] Speaker 06: Did the district court say, you don't need to make any other objections, or we're good? [00:05:31] Speaker 06: Or what did the court say? [00:05:33] Speaker 00: He didn't say we're good. [00:05:34] Speaker 00: He said, [00:05:36] Speaker 00: Let's see if I can appease you, I think, with other instructions, with my advice of counsel instruction. [00:05:43] Speaker 06: So is the court saying the issue is still open then? [00:05:46] Speaker 00: Well, I think the district court understood that counsel objected to that instruction and then proceeded to cleave to the pattern instruction on a wholly separate crime, noted it for the record. [00:05:58] Speaker 00: I mean, I don't know what else counsel was supposed to do except say, by the way, court, I continue to object at every [00:06:06] Speaker 00: available interval. [00:06:07] Speaker 06: If the defendant says, I've got a problem, and the court says, well, we'll see. [00:06:13] Speaker 06: Maybe I'll have addressed it, and this is what I'm going to do. [00:06:20] Speaker 06: At that point, I think the issue's not yet been resolved. [00:06:25] Speaker 00: Well, the district court thought that [00:06:28] Speaker 00: you know, optimistically that its advice of counsel instruction was going to be sufficient to somehow show the mens rea that would have attached to a proper... Well, maybe there'll be a solution, but until there's a solution, you've got to make clear to the court that you are objecting to the status quo that exists before some solution comes along. [00:06:49] Speaker 00: I think that that is definitely what trial counsel did because he noted the grounds for his point of disagreement with the court. [00:06:57] Speaker 00: and never went on to say, I am now sufficiently appeased by an advice of counsel instruction that doesn't even mention that the jury instruction that was faulty, that doesn't even get to the mens rea needed to prove a conspiracy to defraud. [00:07:16] Speaker 05: First of all, I thought we were talking about the conspiracy instruction and not advice of counsel instruction. [00:07:23] Speaker 05: And I know we want to get to that too. [00:07:26] Speaker 05: But let me just ask it this way. [00:07:28] Speaker 05: Did defense counsel ever object to the conspiracy instruction on the grounds that it addressed the offense clause of 371 rather than the defraud clause [00:07:44] Speaker 05: and also failed to include a proper mens rea to defraud. [00:07:49] Speaker 05: Was that objection ever stated in so many words? [00:07:54] Speaker 00: It was stated a different way because counsel said that the instruction was lacking because it was based on a pattern instruction based on the offense clause and that it failed to capture the intent requirement to prove conspiracy under the defraud clause. [00:08:12] Speaker 00: That is the essence of what counsel said. [00:08:15] Speaker 05: Objection. [00:08:16] Speaker 05: Where in the record would we find counsel saying what you just said? [00:08:21] Speaker 00: He says it differently. [00:08:22] Speaker 00: Again, as I said, there isn't a long protracted paragraph of speech. [00:08:28] Speaker 00: But I think if one looks at the transcript. [00:08:31] Speaker 05: I think I understand your point. [00:08:34] Speaker 05: Just one quick follow up. [00:08:35] Speaker 05: How have our cases treated the defrauding the United States [00:08:41] Speaker 05: offense as the underlying prime for Section 371's offense clause. [00:08:49] Speaker 05: Is that what the approach that we've taken in our circuit in cases like Bedford? [00:08:54] Speaker 00: Yes, in Bedford, the court said that a challenge to jury instruction on conspiracy to defraud was sufficient because it reflected the intent necessary to commit the offense of the conspiracy. [00:09:08] Speaker 05: In that case, as here... [00:09:10] Speaker 05: My question, counsel, is if that's how our cases treat defrauding the United States, then how is there any error here? [00:09:21] Speaker 00: Because there is no indication of the intent requisite to commit the offense of the conspiracy anywhere within the four corners of the jury instruction packet. [00:09:31] Speaker 00: And I don't mean to confuse the court by invoking the advice of counsel instruction. [00:09:36] Speaker 00: I only do so because the district court [00:09:38] Speaker 00: saw an interplay between the conspiracy count and the advice of counsel instruction. [00:09:44] Speaker 00: The district court kept promoting the notion that if I include an instruction on advice of counsel, that will somehow instruct the jury that that would negate the mens rea necessary to prove a conspiracy to defraud. [00:10:02] Speaker 00: That is a leap. [00:10:04] Speaker 00: And as it happens, it never occurred because of the deficiencies in the advice of counsel instruction. [00:10:10] Speaker 00: And tellingly, the district court, when explaining its rationale for not explaining how advice of counsel or the reliance on one's counsel could negate the mens rea for the underlying object of the conspiracy to defraud, said, I didn't mention that because the mens rea for the conspiracy count is, quote, [00:10:32] Speaker 00: not straightforward," unquote, which makes it all the more incumbent upon a court, in my view, to render that not so straightforward mens rea so that it is clear to a jury deciding my client's fate. [00:10:47] Speaker 00: That didn't happen here. [00:10:48] Speaker 00: I want to say, though, that even if the court finds that this instruction was insufficiently or the objections were insufficiently preserved, a notion with which we disagree [00:11:01] Speaker 00: That does not end the court's analysis, I hope, because the district court's error was plain. [00:11:08] Speaker 00: One of your sister circuits, the Fifth Circuit in US v. Haga, took up a near identical situation, I should say, except that in that instance, the defendant was charged under the offense clause and convicted under the defraud clause. [00:11:23] Speaker 00: And the court held that what happened offended the most basic notions of due process. [00:11:30] Speaker 00: It was tantamount to multiple constitutional violations, including the defendant's Fifth Amendment right to a grand jury and his Sixth Amendment right to notice of the charges against him. [00:11:42] Speaker 00: That, to me, is a plain error. [00:11:45] Speaker 00: And it really is so here because the only issue in the case was whether or not Mr. Carney intended to deceive the government. [00:11:54] Speaker 00: He has not disputed that that was his signature on the challenge to tax returns. [00:11:59] Speaker 00: What he did dispute was that he intended to deceive and cheat the government by means that were dishonest. [00:12:08] Speaker 00: And so the jury simply didn't have the tools with which to assess countervailing evidence of my client's lack of intent. [00:12:20] Speaker 00: And that is spoken to in the brief. [00:12:23] Speaker 00: But briefly, that included the credibility contest between Mr. Carney and his tax counsel. [00:12:30] Speaker 00: a gentleman who was a convicted tax cheat with his legal license suspended before he ever encountered my client. [00:12:38] Speaker 00: Though I note that he did testify under oath that Mr. Carney was unaware of his criminal background at the time he hired him. [00:12:48] Speaker 05: Counsel, could I just jump in and ask you, under plain error argument, [00:12:56] Speaker 05: In our decision in the United States against Scott, we have held instructions that didn't expressly mention or define defraud. [00:13:06] Speaker 05: But we said that the instructions adequately described it. [00:13:12] Speaker 05: So was the district court, in your view, required to use the word defraud or other specific words [00:13:23] Speaker 05: I guess as part of that question, how could the error be blamed in light of the Scott decision? [00:13:33] Speaker 00: I don't have Scott front of mind, but I can tell you that under the governing standards, we know from Hammersmith that defraud has a special meaning in this statute that just can't be met by simply including the word defraud. [00:13:51] Speaker 00: The word defraud appears in one place in the jury instruction packet. [00:13:54] Speaker 00: It appears in the indictment. [00:13:56] Speaker 00: But the indictment otherwise doesn't provide the elements of the offense because why should it? [00:14:01] Speaker 00: It doesn't have to. [00:14:02] Speaker 00: And it certainly doesn't explain what it means to defraud within the context of Section 371. [00:14:08] Speaker 00: So there's no guidance there. [00:14:12] Speaker 00: There's no guidance anywhere in the jury instruction packet. [00:14:16] Speaker 00: Every case is different, but here there is no indication of the standards set forth by the US Supreme Court. [00:14:22] Speaker 00: The courts below it are bound to follow. [00:14:25] Speaker 00: So what the government is left to argue here is that the arguments of counsel in their respective opening and closing statements were somehow sufficient to do the job because they invoked the word cheat sometimes, as if the atmosphere of the trial or the sort of ether around the case [00:14:45] Speaker 00: would have done the job of instructing the jury. [00:14:47] Speaker 00: I disagree, and so does the US Supreme Court. [00:14:51] Speaker 05: I understand that argument, counsel, but you just made reference to the Supreme Court. [00:14:56] Speaker 05: Is there a Supreme Court case that shows that any error here was plain? [00:15:02] Speaker 05: What's your best Supreme Court case? [00:15:05] Speaker 00: I think it's Hammersmith because it defines defraud and what it means to defraud within the context of this particular offense. [00:15:14] Speaker 00: The jury was left with no understanding of that, and that did offend Mr. Kearney's due process rights. [00:15:22] Speaker 00: I've exceeded my time. [00:15:24] Speaker 06: One quick question. [00:15:25] Speaker 06: Did the jury get a copy of the indictment? [00:15:28] Speaker 06: Was it an indictment here? [00:15:31] Speaker 00: They did, for all the good it did them. [00:15:32] Speaker 00: The district court itself acknowledged that you've quote, got to look somewhere else and that he only included the indictment so that the jurors could see how many counts were in issue. [00:15:42] Speaker 06: But they had the whole indictment in front of them. [00:15:44] Speaker 00: They did have the indictment, which again does not contain any indication as to the heightened mens rea required for the government to meet its burden of proving its case. [00:15:57] Speaker 00: Thank you. [00:15:57] Speaker 00: If there's nothing further, thank you. [00:16:00] Speaker 00: Thank you. [00:16:07] Speaker 02: Yes, I'm sorry. [00:16:08] Speaker 03: Good morning. [00:16:09] Speaker 03: I'm Sean Sullivan for the United States. [00:16:11] Speaker 03: I'd like to begin talking about the conspiracy jury instruction, since that's where we spent most of the time already this morning. [00:16:19] Speaker 03: And I re-emphasize that the error was not preserved for harmless error review on appeal. [00:16:32] Speaker 03: Think about the purpose behind the plain error rule, which is to encourage counsel or require counsel to bring things to the judge's attention, the district judge's attention, at the time where he can rule or she can rule and decide and avoid the error in the first place. [00:16:49] Speaker 03: We have to look at this from Judge Browning's perspective. [00:16:53] Speaker 03: And it's one thing to have proposed jury instructions from the government and from the defense counsel to look at. [00:16:59] Speaker 03: But then they had a charge conference, and Judge Browning needed more clarity, understandably, here. [00:17:07] Speaker 02: Well, Judge Browning is the individual who said, I don't need you to do anything. [00:17:12] Speaker 02: I'm just going to note here, or the government's going to note, that the defendant filed a proposed instruction, and that he didn't use it, and he would consider that an objection. [00:17:21] Speaker 02: So I'm not sure he needed anything. [00:17:23] Speaker 03: Well, but he did make a more specific inquiry. [00:17:26] Speaker 03: And if you think about it from his perspective there, he has the standard 10th circuit pattern instruction on 371. [00:17:33] Speaker 03: He probably knows of the Bedford decision. [00:17:36] Speaker 03: There's other circuits that address this issue. [00:17:38] Speaker 02: Does anybody talk about Bedford? [00:17:40] Speaker 02: No. [00:17:40] Speaker 02: I don't think so. [00:17:41] Speaker 03: No. [00:17:42] Speaker 02: I don't think we can assume that he knew that. [00:17:44] Speaker 03: Okay. [00:17:45] Speaker 03: He also, if he were to look to other circuits, they approach this in different ways. [00:17:50] Speaker 03: So he specifically asked defense counsel, what is your basis for deviating from the pattern instruction? [00:17:58] Speaker 03: And the response on page 1471 of the record is, from Mr. Lindenberger, first he says, [00:18:06] Speaker 03: If we're having a separate alliance on counsel instruction, I think that addresses part of what was my proposed nine. [00:18:12] Speaker 03: Well, proposed nine was the substantive Title 26 charge. [00:18:16] Speaker 03: So that doesn't address the conspiracy, which was the elements of that. [00:18:22] Speaker 03: And that was what I was trying to do and was incorporate like I think it was the cheek decision in the context of tax fraud. [00:18:29] Speaker 03: Well, cheek, the transcript says the chief's decision. [00:18:34] Speaker 03: I think it's fair to assume because both of the defense's proposed instructions, eight and nine, reference to United States versus Cheek that he's talking about. [00:18:43] Speaker 03: Cheek. [00:18:44] Speaker 03: And if you look at Cheek, that's not a conspiracy case. [00:18:46] Speaker 03: So here, Judge Browning doesn't get any assistance. [00:18:49] Speaker 03: He might have said in the beginning, you don't need to note your objections any further, because the government noted your objections in their response, and I'm aware of what those are. [00:19:00] Speaker 03: But then on this specific thing, he asked for more information, and he doesn't get enough. [00:19:05] Speaker 03: So I do think that this should be assessed under the plain error standard. [00:19:10] Speaker 02: He certainly does, in his proposed instruction number eight, [00:19:16] Speaker 02: refer to a specific intent to defraud and explain what it means. [00:19:23] Speaker 02: And if the court did take that language to be an objection and the fact that it did not use that language, that should be sufficient. [00:19:33] Speaker 03: I would disagree. [00:19:35] Speaker 03: I would say it would not be sufficient. [00:19:39] Speaker 03: Especially when we look at the motion for a new trial and how artfully [00:19:43] Speaker 03: defense at that stage is able to raise his arguments, which are basically, one, you use the wrong clause, and two, that there's no intent to defraud language. [00:19:54] Speaker 03: As far as the error being plain or obvious, we don't have the case law to say that it was plain or obvious. [00:20:01] Speaker 03: We can't point to this court or the Supreme Court to say that this was obviously wrong, particularly in light of Bedford, which allows you to look into the [00:20:10] Speaker 03: to the reading of the indictment. [00:20:13] Speaker 06: As far as... Well, I think you get plainness or obviousness from the statutory requirements. [00:20:19] Speaker 06: I mean, if there is a statutory element and you don't give an instruction on that, that's as plain as if you had a case on it. [00:20:31] Speaker 03: If you don't instruct on an element, I believe that the proper analysis is harmlessness. [00:20:40] Speaker 03: Is what? [00:20:40] Speaker 03: Is harmlessness, like the Needer case from the Supreme Court where they didn't instruct on materiality. [00:20:46] Speaker 03: And it was reviewed for harmless error rather than automatic reversal. [00:20:51] Speaker 02: And how is this harmless? [00:20:54] Speaker 03: How is this harmless? [00:20:55] Speaker 02: Because there is no re- We haven't got any instruction on the intent. [00:20:58] Speaker 03: There is no reasonable probability that the error would have affected the outcome of the trial. [00:21:04] Speaker 03: I point the court back in the direction of the reading of the indictment right before the conspiracy that lays out the language, which is that the allegation is willful conduct, combining, conspiring, et cetera, to defraud the United States for the purpose of impeding, impairing, obstructing, and defeating. [00:21:27] Speaker 03: lawful government function of the collection of taxes. [00:21:29] Speaker 06: Willful conduct could be construed simply to mean it wasn't accidental. [00:21:34] Speaker 06: You didn't put the wrong piece of paper in there. [00:21:38] Speaker 06: It was intentional. [00:21:39] Speaker 03: It doesn't satisfy intent, really. [00:21:42] Speaker 03: Well, there's a willfulness instruction that then immediately follows the conspiracy instruction. [00:21:49] Speaker 03: So I think if you read the three together, it adequately leads the jury in the right place. [00:21:54] Speaker 03: But I'd also say that this is a unique crime under the federal code because it might be the one crime. [00:22:00] Speaker 03: that pretty much every adult in the United States has faced the exact same situation that Victor Carney is, which is file a tax return with a jurat in front of you. [00:22:11] Speaker 03: Everybody knows that that number that you put in terms of your income is going to affect the IRS. [00:22:20] Speaker 03: And people also know the common law definition of defraud. [00:22:24] Speaker 03: The Haas case and the Hammershmit case are interesting because they talk about how you take it away from just cheating the government on money or property and you expand that definition under 371 into other areas like filing paperwork with the Department of Agriculture that's going to affect crop prices, that was Haas, or Hammershmit, disseminating information about the requirement to register for the draft. [00:22:50] Speaker 03: Here we've got something everybody understands. [00:22:52] Speaker 03: They know what fraud is. [00:22:53] Speaker 03: Every time someone were to go on vacation, say to Florida, and you make a purchase, you're going to get a fraud alert that says, and people know what that means, somebody's doing something dishonest in order to take money. [00:23:06] Speaker 03: And that's exactly what [00:23:08] Speaker 05: What is happening here? [00:23:10] Speaker 05: If I'm hearing you correctly, it seems that you're saying that even if the instruction didn't include the proper mens rea, everybody understands it anyway, so it doesn't matter. [00:23:24] Speaker 05: Is that your argument? [00:23:25] Speaker 03: My argument is that, well, the jury instructions only reference to intent to defraud was in the indictment. [00:23:35] Speaker 03: My argument is that that's sufficient. [00:23:37] Speaker 03: in this context. [00:23:39] Speaker 03: The jury instruction uses the term to fraud the United States in Instruction 12, which is the indictment. [00:23:55] Speaker 03: My position is that that's sufficient. [00:23:57] Speaker 03: But what was that in connection with? [00:23:59] Speaker 03: What charge was that in connection with? [00:24:01] Speaker 03: It was read immediately before the conspiracy charge. [00:24:06] Speaker 06: So I submit then that we- So before the conspiracy charge. [00:24:09] Speaker 06: Yes. [00:24:09] Speaker 06: So that the jury could construe that that wasn't related to the conspiracy charge, but rather to whatever preceded it. [00:24:16] Speaker 03: Well, there would be nothing else to tie it to. [00:24:19] Speaker 03: I'd submit that they could construe it as the theory or the allegation that applied to the conspiracy charge. [00:24:27] Speaker 03: So then when they got the conspiracy charge that said they needed to decide as an element, did Mr. Kearney agree with one other person to violate the law, that that was the law they were talking about, the law that had been alleged right before. [00:24:40] Speaker 03: And when they had to decide that Mr. Kearney knew the essential objective of the conspiracy, it was that. [00:24:45] Speaker 03: Especially because the manner and means section of the indictment that was read says the manner and means sought to accomplish the objectives of the conspiracy include, and then it lists a lot of, or it lists three or four instances where Mr. Carney are more generally preparing and signing federal income tax returns substantially under reporting the taxable income, filing those returns, making false statements [00:25:14] Speaker 03: It's very clear that what the objectives of the conspiracy are, which is to cheat the IRS out of money. [00:25:21] Speaker 01: Could you, while you still have some time? [00:25:23] Speaker 01: I'm sorry. [00:25:24] Speaker 01: Go ahead, Judge Manson. [00:25:26] Speaker 05: Just a quick follow-up. [00:25:29] Speaker 05: Can you give us a case example where reading the indictment to the jury can cure an instructional error? [00:25:42] Speaker 03: I would submit the best case for that is Bedford, where the court approached it as they were reviewing the jury instructions as a whole. [00:25:51] Speaker 03: And they included what was presented to the jury from reading the indictment in that. [00:26:00] Speaker 04: Thank you, counsel. [00:26:03] Speaker 02: I was running if wondering if you could address the the second instruction issue the advice of council instruction don't you have a problem there to Even if we're on plain error you and I understand that's what your argument is that there was no objection on that either and Presuming there wasn't why wasn't it plain error? [00:26:27] Speaker 02: that it didn't even reference, the instruction only referenced count two and the defense on count two, or the facts of count two, I guess. [00:26:34] Speaker 02: And it contained no reference to count one. [00:26:38] Speaker 02: And the only explanation the judge gave for that was that he was giving the facts of count two as an example of what the defense was to. [00:26:52] Speaker 02: It just doesn't seem like, I don't know how it can't be plain error to not reference Count Juan, because the defense was as to both. [00:27:00] Speaker 03: In terms of error, before I address plain error, the only thing I'll say on that point is that reference to the 2011 tax return was not only a reference to the Title 26 offense, but it was also an overt act. [00:27:14] Speaker 03: in the conspiracy offense. [00:27:16] Speaker 03: So the 2011 did have some relevance to the conspiracy offense. [00:27:20] Speaker 03: But I want to jump to the plain error and whether it affected substantial rights, because I think that's really the government's best argument here, and remind this court that there's no [00:27:35] Speaker 03: Contest there's no dispute that the jury was properly instructed on advice of counsel as it opposed to the second But how do they know how does the jury know from that instruction that the advice of counsel? [00:27:49] Speaker 02: That specifically refers to count two was supposed to also refer to count one Well, that's I don't know how they're supposed to concoct that from this [00:28:03] Speaker 03: I think that they could conclude it for a couple of different reasons. [00:28:08] Speaker 03: The most important one is there's really only one piece of legal advice that we're talking about here, and it doesn't pertain specifically to the 2011 tax return. [00:28:19] Speaker 03: It's noted on page [00:28:31] Speaker 03: 955 and 956 of the record. [00:28:34] Speaker 03: This is the testimony of Robert Fizer. [00:28:37] Speaker 03: And he says that Victor Carney came to him the first time, before they did even the tax return for 2007, I think was the first one. [00:28:46] Speaker 03: And he says, I don't have the money to pay my taxes. [00:28:49] Speaker 03: And that's when Fizer tells him that we're making a joint decision that we're not going to report the trust income in the first instance, and soon you need to give me sufficient [00:29:01] Speaker 03: documentation so that we can amend the returns. [00:29:04] Speaker 02: So everything flows from the same piece of legal advice. [00:29:17] Speaker 02: The facts all flow for each. [00:29:21] Speaker 02: Maybe the evidence was sufficient, but that's not what we're talking about. [00:29:24] Speaker 02: We're talking about the jury not being instructed. [00:29:27] Speaker 03: The jury rejected the advice of counsel defense on the second charge. [00:29:33] Speaker 03: And my position is they were talking about the same piece of advice, so necessarily [00:29:38] Speaker 03: they would have had to reject it on the conspiracy charge. [00:29:41] Speaker 03: There's no reasonable way that they could come and conclude it differently. [00:29:49] Speaker 05: Is this a step three plain error argument you're making at this point? [00:29:57] Speaker 05: In other words, it seems like you're almost, maybe you're not quite conceding error. [00:30:07] Speaker 05: This argument seems to be that, well, it doesn't matter because if they convicted on both, even if it had been more clear, the result would have been the same. [00:30:21] Speaker 05: Is that what you're saying now? [00:30:23] Speaker 03: Yes, Your Honor. [00:30:23] Speaker 03: That's where we want to focus most of our efforts here is on that piece. [00:30:28] Speaker 05: Are you conceding error at step one? [00:30:32] Speaker 03: I wouldn't, only because I think there's enough in there with the reference to 2011, and that being an overt act, that the jury might have understood it to mean both. [00:30:49] Speaker 05: Let me just ask you this. [00:30:52] Speaker 05: We're talking about instruction 18, right? [00:30:55] Speaker 03: Yes. [00:30:57] Speaker 05: OK, but then leading up to instruction 18, [00:31:01] Speaker 05: the court instructs in 16 on the false statement on an income tax return. [00:31:08] Speaker 05: The court instructs in 17 about a false statement on an income tax return. [00:31:16] Speaker 05: Then we get to 18, and we're talking about, again, false statement on an income tax return, and only then we get to advice of cancel. [00:31:27] Speaker 05: It seems like the instructions put the jury in a mindset [00:31:31] Speaker 05: that this is all about count two, or at least, yeah, it's all about count two. [00:31:38] Speaker 05: I just don't see how they, otherwise at least they would be confused, wouldn't they? [00:31:44] Speaker 03: I don't think there's a reason to be confused based on all of the circumstances. [00:31:49] Speaker 03: And I will say specifically, defense counsel here did not object to the order. [00:31:57] Speaker 03: So. [00:31:58] Speaker 06: But that's why we're [00:32:00] Speaker 06: We're reviewing it under a plain error review, right? [00:32:03] Speaker 03: Yes, yes. [00:32:04] Speaker 06: But even under plain error, it is a review. [00:32:07] Speaker 03: It is a review, yes. [00:32:09] Speaker 03: It is a review. [00:32:10] Speaker 03: The instructions. [00:32:11] Speaker 02: Your action time, I don't know if we have any further questions. [00:32:14] Speaker 03: No. [00:32:15] Speaker 02: All right, thank you, counsel. [00:32:16] Speaker 02: Thank you. [00:32:18] Speaker 02: All right, I don't think there was any rebuttal. [00:32:20] Speaker 02: Yeah, thanks. [00:32:22] Speaker 02: We appreciate your arguments. [00:32:23] Speaker 02: They've been very helpful, and the case will be submitted, and counsel are excused. [00:32:28] Speaker 02: Thank you.