Legal Case Summary

. Well, but he only restricted his objection to relevance. He didn't say anything about prejudice. Oh, he did, he did, Your Honor. Respectfully, I'd ask the court to look at 306 and 307. He said it's definitely got some prejudicial value. The lawyer for this man said this? No, you're right. Judge Moon did. Yeah, well. Judge Moon did. I'm looking at the objection. Well, not wanting to leave a paper trail. Mr. Johnson also, sorry, he said, I object to the relevance. Legal obligations, he charged with failing to comply with his tax obligations are not any child support obligations. So I think the relevance of any is minimum. Correct, and I wasn't there. So I mean, I understand what you know how it is. When you take a case over on appeal, out of good or for ill, you take the record. And I think this one is for good, Judge, because under Rule 103, she's supposed to be specific, but if the context is clear, then it's clear. I think it's his clear. And he's making a relevancy, are you? But I think the judge recognized that he needed to weigh relevance versus prejudice, which is a standard emotion. And I think Judge Moon did that. He undertook the proper test. So the fact that she didn't say the magic word Rule 404, the magic word prejudice, really shouldn't matter

. He undertook the proper test. I just think he got it wrong. And so there are, there's a four considerations under Rule 404, reliability, and necessity, relevance, and absence of undue prejudice. I'll concede that the documents, these exhibits are reliable. But as far as relevance, they weren't. This was not a case about his child support or re-reaches. It was a case about his tax obligations and his tax obligations. No, but you told us a little earlier in your argument, the question was that we were supposed to look at his sincerity. And I think that they're relevant to go to his sincerity in meeting his obligation, whether they be tax obligations or child support obligations. Well, you're on, I think in the last couple of years though, the court has really focused on the two cases that I really focused on in the briefs, McBride from 2012, and then Chief Judge Tracks' last year's opinion in April of 13 in the more case. And just briefly, the focus in those cases under the relevance, Pong, is how similar in nature and purpose is the charged act with the uncharged act. For example, in the McBride case, the defendant was charged with distributing cocaine powder, the District Court of Laudi and Evidence, he distributed cocaine base or crack. Those are certainly similar, but this court said not sufficiently similar, not exceedingly similar, and they reversed his conviction. And in the more case written by Chief Judge Tracks' lawyer, the allegation, the charge was he used a revolver in a carjacking, and the District Court of Laudi and Evidence that he not only possessed a revolver prior to the carjacking, but also a semi-automatic pistol. Now, those two items are certainly have some general superficial similarity revolver and a pistol, but the court said insufficient, not exceedingly similar. But most importantly, even if I'm wrong about that judge and there's some relevance to the child support exhibits, they weren't necessary. And I think that is the biggest problem here. There's, I think that it's almost impossible to say that something is not necessary in a criminal conviction, because we give the government so much opportunity. We are not second-guessing Assistant United States attorneys on piling on evidence. I mean, I quite agree that they shouldn't do it, but they don't know when they're trying to case how much is piling on, how much is necessary to convict and how much is it. And so courts have just made the call. I mean, we have two former United States attorneys here, and they can probably speak to that issue better than I can. But I don't remember a case that I've sat on in 20 years in which we've ever held evidence is not necessary. Well, I appreciate that, Judge, I would ask the court just to consider one of the

... Might make some history then. Yeah, that's right. That's right. That's the first impression here. But there's a case called Wilson, I believe, that cited in my brief, and they said, if it doesn't meet the necessity problem, it's 2010 published by this court, it doesn't meet the necessity problem. If it doesn't meet the necessity problem... There's always a fact there. Judge, you caught me there. It was a drive-by shooting case and nothing to do with taxes. It was a violent crime case, and it was introduced some evidence that was not charged. But the holding was, since we find it wasn't necessary, we don't even need to look at the other prongs. And there's no... There's no... I'm sorry. Judge was on the top. Probably I wrote that

. I think I believe it's Wilson, Judge, and I don't remember, I'm sorry. Wilson, I've got your site here on that. You don't remember where the panelists were. No, sir, I'm sorry. Okay. I apologize. There's no argument in their brief that it's essential that I can find. Maybe Ms. Bagley will educate me on that, but I can't see it. The essential is not necessary. You do recognize that. I respectfully disagree, Judge. I think that necessary in this context has been held to mean essential to the government's case. It has to be essential. It can't just be sort of Bagley, you know, might be relevant, might be... It has to be essential. You know, but you're focusing on the wrong thing. You know, the worst hits if it goes too well. I think I understand that. All right. No point in me. Well, Judge, let me just say that the third prong is the undue prejudice prong

. So even if I were wrong, there's some relevance, even if there's some necessity. Suddenly, this was highly prejudiced. He's being branded as a deadbeat father who's scheming to avoid his tax obligations. I can't... I mean, that's pretty prejudicial. I think the average juror would be very put off by that, and I think they were. Finally, the government has raised harmless error, and I like to just highlight a couple of points on that. I think there are three decisive factors there. The centrality of the issue affected by the error. I think here they say that this... They say this goes to his men's reyes. So there's no question it's affects the central issue in the case. And secondly, is the mitigating efforts the district court undertook, meaning a limiting instruction. There was no limiting instruction when he let in this child support a rearriage evidence at all. So there was no mitigation. Did the debt was one S4? No, you're on. There was not. It was not. And I don't.

.. And again, I don't think the honest is on... I don't think that is part of the... But the usually good and limiting instruction on poor OB... Poor OB stuff is the S4. Right. But this court has not said that defense counsel needs to ask for it. You know what the court has said in the bride and more in these recent cases is, did the district court mitigate by undertaking a... By delivering a limiting instruction? She's got to be tried. I mean, that's what you're allowing the lawyers for. They got... Yes, you're on. And like at the S4 limiting instruction. If you're going to let it in, after the judge says he's going to let it in, then you try to limit it

. All right. If you're going to let it in, you better tell the jury not to consider it for any... Except... Yes, Your Honor. It's very narrow stuff. Yes, Your Honor. But I would just respectfully ask the court to consider the more... Otherwise, we would review it for plain error. So we would review this claim for plain error if your raising is freestanding claim. And I don't think it should be reviewed for plain error. You know, I just addressed that in the beginning. I think that lawyer made it clear to Judge Moon, who knows Rule 403, 404, as well as anybody, that that's the objection. He understood that was the objection and he undertook the balancing test. But under these cases, I've cited more in McBride. They never... The court has never said

... Has never required defense counsel or a public counsel to demonstrate the defense counsel asked for limiting instruction. The question under this recent test, this three-part test, this is the case I'm referring to is Ivesivic. It's a Bosnia name. So it certainly be part of the argument that when you say, what I'm going to say, you didn't get one. That is what you didn't ask for. Right. But I'm not... That's not really... The question is, can they prove it was harmless error if it was error? And did that analysis... The question is... They prove it's harmless error. Now you have to show it's plain error. You don't ask for something and then go up here and say it was wrong. I think the judge respectfully, I think the burden is on the government if there's error to prove

... Well, a harmlessness. It's harmless. You're saying it was error, not to give the instruction that you didn't ask for. But then on the harmless error point, the admission of it, that's what you're saying. The government now says, well, if it is error, it's harmless, right? The government is saying if it is error, it's harmless. I thought that supports your proposition that it wasn't necessary. That's right. That they've got the government talking out of those sides of the smell on that point. Well, I don't think they're doing it in this characterizing, that they're not being all that consistent, perhaps. But judge... They do it as a what if. They're arguing any alternative. But I think, under the harmless error analysis, the question is, was the limiting instruction given by the district court? That's the end of that factor. And then the third is the closeness of the case. And of course, they say the case was overwhelming. We don't look at the cold, appellate record. What did the jury think of this case? I mean, there was one issue. They took a little over two hours, and they asked a question. They actually asked to see the statutes. They didn't want to just rely upon Judge Moon's oral summary

. They actually sent a note out asking to see the statutes. And under the IV-CIVIC case that's cited from 2012, which sets out this three-part test for harmless error, a request from the jury for guidance. Do you remember how long the jury was out in IV-CIVIC? Four hours. And do you remember what the issues were there? Not enough to articulate them, Judge. I remember. I think it was the travel act. Is that right? It was the travel act. And a person didn't speak English very well. Yes. Right. Different facts. Right. But the fact that the jury sent out a question asked for more guidance was in Disha that the jury was struggling with the case, which is what we have here. If there are no further questions, this concludes the panel. Sorry. Thank you very much. Thank you. Is Bagley? May I please the court, Katie Bagley, on behalf of the United States? I'd like to start by addressing the standard of review in this case, as the court has suggested. This case should be reviewed for plain error. The defendant clearly objected only on the grounds of relevance. Judge Moon took it upon himself to consider whether the prejudicial nature of the evidence might outweighs probative value under 403. Absolutely no indication was given by defense counsel that they were making any kind of 404B objection. They didn't say 404B. They didn't say bad acts. They didn't say propensity. They didn't say anything to indicate to the judge that that was the grounds of their objection. Well included within 403 is a balancing test and you include within that is possible prejudice, right? That's correct. And Judge Moon said they did make in their 403 objection, they did bring into play whether there would be prejudice. Well actually I think actually the objection did not refer to the objection. No, the objection didn't. But I thought that you said at the beginning of your argument that they made a 403 argument. They did not. Judge Moon did. When you said I understand that you said that he brought into play all this analysis. But when they said it's not relevant, they clearly were pointing us to 403, right? I just agree with that character. Well where else would you go for it to pie in the sky? I mean 403 is what tells you what you have to do, right? That's correct. The objection from counsel was purely on the grounds of relevance. I understand that. Judge Moon then in the basis where a relevant objection is 403. Not in this case, Your Honor, the exact way where else do you have to be based on? What's the rule that applies then? That irrelevant evidence. If they say they object on the basis of relevance and you pick up the rule book. To find out whether they're right or not, where else? Where is it? What rule do you go to? I believe it's 401, but now I'm terrified of being quoted on that. It's 403. 403. I'm sorry. So they objected on the grounds of relevance. I'll try to be more clear. Then considered the question of prejudice

. They didn't say propensity. They didn't say anything to indicate to the judge that that was the grounds of their objection. Well included within 403 is a balancing test and you include within that is possible prejudice, right? That's correct. And Judge Moon said they did make in their 403 objection, they did bring into play whether there would be prejudice. Well actually I think actually the objection did not refer to the objection. No, the objection didn't. But I thought that you said at the beginning of your argument that they made a 403 argument. They did not. Judge Moon did. When you said I understand that you said that he brought into play all this analysis. But when they said it's not relevant, they clearly were pointing us to 403, right? I just agree with that character. Well where else would you go for it to pie in the sky? I mean 403 is what tells you what you have to do, right? That's correct. The objection from counsel was purely on the grounds of relevance. I understand that. Judge Moon then in the basis where a relevant objection is 403. Not in this case, Your Honor, the exact way where else do you have to be based on? What's the rule that applies then? That irrelevant evidence. If they say they object on the basis of relevance and you pick up the rule book. To find out whether they're right or not, where else? Where is it? What rule do you go to? I believe it's 401, but now I'm terrified of being quoted on that. It's 403. 403. I'm sorry. So they objected on the grounds of relevance. I'll try to be more clear. Then considered the question of prejudice. And defense counsel did not suggest that the evidence was prejudicial, merely that it was so far a feel. To be sure. But when you make a 403 objection, one of the things you consider is prejudicial. Correct. They did make a separate prejudice. They did not. And I think what defense counsel is doing is conflating a 403 analysis with 404 and saying that because Judge Moon considered prejudice, he therefore somehow considered whether the evidence was admissible under rule 404b. And that never happened. Nobody in this case evaluated the evidence under that standard. Well, I think if evidence, I'm in scene a case where something was not prejudicial under 403, but was under 404. Maybe such cases exist. No, I think that you go forward with your argument. He made the objection he did. He didn't object to the other two things. That's correct. And we think that the district court reached the appropriate conclusion with respect to the evidence in terms of its prejudicial versus propitive value. What Judge Moon never considered, because he was never asked to consider, was any of the other factors under 404b, which I think in this case, then, this court is evaluating whether Judge Moon abused his discretion in admitting 401, excuse me, exhibit 40-1 under rule 403. Which we think he did not. And certainly, district courts are given great latitude in making that kind of analysis. So you would go through the fourth-actor test under 403, right? That's correct. And so what would I would that go? And I think in this case, first of all, the evidence is relevant. The Defense Council sites McBride and Moore and suggest that they somehow indicate that the acts must be very, very similar. What McBride and Moore say is the unsurprising restatement of what this court said in the touchstone case in Queen, which is that evidence can be similar in terms of intent, state of mind. In this case, the legal theories that the defendant was asserting to support his claim that he didn't have to pay taxes

. And defense counsel did not suggest that the evidence was prejudicial, merely that it was so far a feel. To be sure. But when you make a 403 objection, one of the things you consider is prejudicial. Correct. They did make a separate prejudice. They did not. And I think what defense counsel is doing is conflating a 403 analysis with 404 and saying that because Judge Moon considered prejudice, he therefore somehow considered whether the evidence was admissible under rule 404b. And that never happened. Nobody in this case evaluated the evidence under that standard. Well, I think if evidence, I'm in scene a case where something was not prejudicial under 403, but was under 404. Maybe such cases exist. No, I think that you go forward with your argument. He made the objection he did. He didn't object to the other two things. That's correct. And we think that the district court reached the appropriate conclusion with respect to the evidence in terms of its prejudicial versus propitive value. What Judge Moon never considered, because he was never asked to consider, was any of the other factors under 404b, which I think in this case, then, this court is evaluating whether Judge Moon abused his discretion in admitting 401, excuse me, exhibit 40-1 under rule 403. Which we think he did not. And certainly, district courts are given great latitude in making that kind of analysis. So you would go through the fourth-actor test under 403, right? That's correct. And so what would I would that go? And I think in this case, first of all, the evidence is relevant. The Defense Council sites McBride and Moore and suggest that they somehow indicate that the acts must be very, very similar. What McBride and Moore say is the unsurprising restatement of what this court said in the touchstone case in Queen, which is that evidence can be similar in terms of intent, state of mind. In this case, the legal theories that the defendant was asserting to support his claim that he didn't have to pay taxes. All of those things were similar. And this evidence was relevant to show that the defendant did not really believe what he was saying, that he acted inconsistently with his assorted beliefs, that his beliefs were opportunistic, and that he was not acting in good faith. Not paying child support is inconsistent with not paying taxes. The reasons he asserted in the documents that he sent to the state of Virginia and to the Winchester District Court. First of all, the documents that he sent to the Winchester Court explained that he was not responding because he was not a United States citizen, because the courts had to do with the federal courts and arguments that he had about his relationship to the IRS and the federal courts. It doesn't make any sense. He was asked on cross-examination what the IRS or the federal government had to do with his state child support. He didn't have much of an answer. If you really believed what he was saying about the federal government and his obligation to pay taxes, it would be completely inapplicable to his obligation to pay child support. The fact is, he was asserting these frivolous arguments in an attempt to impede the state courts in the same way that he was attempting to impede the IRS. Furthermore, the defendant testified and the evidence show that he had... But he just said since he was no longer a United States citizen, he didn't have to pay child support. I suppose that was his argument, but I actually... We don't think he made that argument. What he said was, frankly, a bunch of nonsensical statements that he sent to the state court, that was very similar to what he sent to the IRS. And the fact that he used those arguments to somehow respond to the... His obligation to pay child support showed that he didn't believe them, but rather that he opportunistically wielded whatever theories he came across, he can order to avoid paying illegal obligations. He didn't believe that they were valid reasons not to pay his taxes

. All of those things were similar. And this evidence was relevant to show that the defendant did not really believe what he was saying, that he acted inconsistently with his assorted beliefs, that his beliefs were opportunistic, and that he was not acting in good faith. Not paying child support is inconsistent with not paying taxes. The reasons he asserted in the documents that he sent to the state of Virginia and to the Winchester District Court. First of all, the documents that he sent to the Winchester Court explained that he was not responding because he was not a United States citizen, because the courts had to do with the federal courts and arguments that he had about his relationship to the IRS and the federal courts. It doesn't make any sense. He was asked on cross-examination what the IRS or the federal government had to do with his state child support. He didn't have much of an answer. If you really believed what he was saying about the federal government and his obligation to pay taxes, it would be completely inapplicable to his obligation to pay child support. The fact is, he was asserting these frivolous arguments in an attempt to impede the state courts in the same way that he was attempting to impede the IRS. Furthermore, the defendant testified and the evidence show that he had... But he just said since he was no longer a United States citizen, he didn't have to pay child support. I suppose that was his argument, but I actually... We don't think he made that argument. What he said was, frankly, a bunch of nonsensical statements that he sent to the state court, that was very similar to what he sent to the IRS. And the fact that he used those arguments to somehow respond to the... His obligation to pay child support showed that he didn't believe them, but rather that he opportunistically wielded whatever theories he came across, he can order to avoid paying illegal obligations. He didn't believe that they were valid reasons not to pay his taxes. You were saying because he used these exact same reasons. Exactly. Child support where you wouldn't have the same problem. Exactly. And it showed that he didn't really believe them. Furthermore, he rescinded his social security number at one point. But then subsequently began using it again on these fictitious financial obligations that he sent both to the state of Virginia and to the IRS in an attempt to pay off other legal obligations, including his mortgage. It's certainly... And that was charged as an act in the indictment. As was the money order that he sent to the state of Virginia, both of which relied on the same legal theory that there was some account at the department of the Treasury that he could access by using his social security number and directing the IRS to offset some debt. I hesitate to attempt to explain it in any greater detail. Again, because he used the same legal theory... Sorry, did you... To pay whatever his taxes, his mortgage, his child support indicated that this really wasn't about his good faith beliefs about the tax system or his study of the tax code leading him to have these beliefs, but rather he came across this at some seminar or some internet search and thought it sounded like a really good idea to get out of paying his debts. And that's exactly what Judge Moon found. That this evidence demonstrated that he was not acting in good faith. But he did not believe what he said he believed and that it went directly to the central issue in this case. Additionally, the

. You were saying because he used these exact same reasons. Exactly. Child support where you wouldn't have the same problem. Exactly. And it showed that he didn't really believe them. Furthermore, he rescinded his social security number at one point. But then subsequently began using it again on these fictitious financial obligations that he sent both to the state of Virginia and to the IRS in an attempt to pay off other legal obligations, including his mortgage. It's certainly... And that was charged as an act in the indictment. As was the money order that he sent to the state of Virginia, both of which relied on the same legal theory that there was some account at the department of the Treasury that he could access by using his social security number and directing the IRS to offset some debt. I hesitate to attempt to explain it in any greater detail. Again, because he used the same legal theory... Sorry, did you... To pay whatever his taxes, his mortgage, his child support indicated that this really wasn't about his good faith beliefs about the tax system or his study of the tax code leading him to have these beliefs, but rather he came across this at some seminar or some internet search and thought it sounded like a really good idea to get out of paying his debts. And that's exactly what Judge Moon found. That this evidence demonstrated that he was not acting in good faith. But he did not believe what he said he believed and that it went directly to the central issue in this case. Additionally, the... I'd like to respond to the claim that this evidence wasn't necessary. As this court has stated before, a necessary means that the evidence is probative of an essential claim or element of the offense. The defendant's intent in a tax case and whether or not he believed what he said he believed about the law was the issue in this case and the government had to testify. He testified was cross-examined. That's correct. That's a telly story. Yes, he did. How long did trial last? I believe the trial lasted three days. And on his cross-examination, he made a number of frankly nonsensical statements consistent with other documents that he submitted to the government. I believe he was asked if he was James Bauer's Johnson. His response was, I am right now. And he testified that he was not a resident of the United States and did not earn income in the United States despite the fact that he lived and worked in the state of Virginia. I think the probative value of this evidence was high because it went to show directly that he did not believe what he said he believed in good faith. I think the prejudicial value has been exaggerated by the defense in this case. Why do you fall back on harmless air? We don't think we need to. We don't think there was any error. But you do it in your brief. You do it in your brief. If you got so much confidence in it and you evidence overwhelming, why do you say harmless air? Why don't you just find your feet that you proved to get and everything was admissible? We believe it was admissible. It was property admitted. But you still fall back on harmless air. As to the 404B claim that the evidence was improperly admitted under 404B, our problem in this case is that Judge Moon never made the findings as to the 404B factors because he was never asked to

... I'd like to respond to the claim that this evidence wasn't necessary. As this court has stated before, a necessary means that the evidence is probative of an essential claim or element of the offense. The defendant's intent in a tax case and whether or not he believed what he said he believed about the law was the issue in this case and the government had to testify. He testified was cross-examined. That's correct. That's a telly story. Yes, he did. How long did trial last? I believe the trial lasted three days. And on his cross-examination, he made a number of frankly nonsensical statements consistent with other documents that he submitted to the government. I believe he was asked if he was James Bauer's Johnson. His response was, I am right now. And he testified that he was not a resident of the United States and did not earn income in the United States despite the fact that he lived and worked in the state of Virginia. I think the probative value of this evidence was high because it went to show directly that he did not believe what he said he believed in good faith. I think the prejudicial value has been exaggerated by the defense in this case. Why do you fall back on harmless air? We don't think we need to. We don't think there was any error. But you do it in your brief. You do it in your brief. If you got so much confidence in it and you evidence overwhelming, why do you say harmless air? Why don't you just find your feet that you proved to get and everything was admissible? We believe it was admissible. It was property admitted. But you still fall back on harmless air. As to the 404B claim that the evidence was improperly admitted under 404B, our problem in this case is that Judge Moon never made the findings as to the 404B factors because he was never asked to. And frankly, rather than conducting that analysis, finding harmless air is probably the easiest way for this court to resolve this case. We don't think there was error. We assert directly that the evidence was properly admitted, that the defendants claim that it didn't meet the requirements for 404B is incorrect. The evidence went directly to intent. And there was no error in admitting it. I thought you said the 404B stuff was reviewed for plain error. That's correct. That's correct. If this court were to find, for example, I guess we're trying to sort of cover all the bases. We don't think there was error. I think the evidence was admissible. To the extent there was error, it certainly wasn't plain error. This is a run of the mill evidentiary dispute. Were this court to find that the defendant had somehow preserved his objection and evaluated it under harmless error? And found it to be error. And found it to be error. They could say the evidence is overwhelming in its harmless. That's correct. I guess the confusion is that we responded to it. We do think the defendant objected on the grounds of relevance. And Judge Moon did conduct an analysis of the prejudicial value of the evidence. That is properly before this court on appeal. That the just report made those findings. The only object is not. Anything beyond that would be reviewed only for plain error

. And frankly, rather than conducting that analysis, finding harmless air is probably the easiest way for this court to resolve this case. We don't think there was error. We assert directly that the evidence was properly admitted, that the defendants claim that it didn't meet the requirements for 404B is incorrect. The evidence went directly to intent. And there was no error in admitting it. I thought you said the 404B stuff was reviewed for plain error. That's correct. That's correct. If this court were to find, for example, I guess we're trying to sort of cover all the bases. We don't think there was error. I think the evidence was admissible. To the extent there was error, it certainly wasn't plain error. This is a run of the mill evidentiary dispute. Were this court to find that the defendant had somehow preserved his objection and evaluated it under harmless error? And found it to be error. And found it to be error. They could say the evidence is overwhelming in its harmless. That's correct. I guess the confusion is that we responded to it. We do think the defendant objected on the grounds of relevance. And Judge Moon did conduct an analysis of the prejudicial value of the evidence. That is properly before this court on appeal. That the just report made those findings. The only object is not. Anything beyond that would be reviewed only for plain error. I do think that the prejudicial effect of this, of the improper prejudice, I'm sorry, was exaggerated. The government did not paint the defendant as a deadbeat dad. It never referred to his, him in any of those terms, no government witness used any term like that. The government was very careful in this case to relate the child support documents directly to the defendant's state of mind with respect to his taxes. For example, in the second volume of the Joint Appendent at 603, during closing argument, the prosecutor says, how does he pay his child support? Well, he turned into a social security number until he found another scheme that he could pay his child support, pay his back taxes. In other words, his use of his social security number demonstrated that he was inconsistent. And I think that if the court looks at where the government actually referred to this, we'll see there was no attempt to paint the defendant as a terrible person or somebody who left his children deprived. The government was using this evidence specifically to show that the defendant acted inconsistently with his claimed beliefs and that he was not acting in good faith. That his study of the IRS code would not lead him to these beliefs or to that weight, the actions that he took. Again, at 609, the prosecutor says Mr. Johnson testified about reading the code, but he couldn't tell me where in the code it says you can pay your child support with a fake money order. He couldn't tell me where in the code it says you can pay your mortgage with a fake promissory bond. He couldn't tell me where it related to state taxes or state courts. So again, this was not a case where the government was introducing this evidence to sort of blackball the defendant and it wasn't used in that way and no sort of inflammatory statements were made. And certainly this case is simply not close. In Abishovich, which the defendant referred to, the jury requested a definition of reasonable doubt, which certainly suggests that the jury was struggling with guilt. In this case, they asked for the text of 26 USC 72212, the statute the defendant was charged with. On cross examination, the defendant testified that he had read 26 USC 72212. And the prosecutor mentioned that fact as evidence that the defendant was aware of his legal obligations and chose to disregard them. The jury deliberated for two hours, including lunch. This was not a close case. The defendant testified, frankly, I think he hung himself in his own testimony, but there was other unrefuted evidence. I would point the court only to one particular piece, within days of being contacted by the IRS about being audited, the defendant closed his bank of America bank account and moved all his money to an anonymous warehouse bank, admitting that he did so in order to avoid creating a paper trail. Those are not the actions of a person who believes that they are in compliance with the law and who is attempting to satisfy their legal obligations in good faith

. I do think that the prejudicial effect of this, of the improper prejudice, I'm sorry, was exaggerated. The government did not paint the defendant as a deadbeat dad. It never referred to his, him in any of those terms, no government witness used any term like that. The government was very careful in this case to relate the child support documents directly to the defendant's state of mind with respect to his taxes. For example, in the second volume of the Joint Appendent at 603, during closing argument, the prosecutor says, how does he pay his child support? Well, he turned into a social security number until he found another scheme that he could pay his child support, pay his back taxes. In other words, his use of his social security number demonstrated that he was inconsistent. And I think that if the court looks at where the government actually referred to this, we'll see there was no attempt to paint the defendant as a terrible person or somebody who left his children deprived. The government was using this evidence specifically to show that the defendant acted inconsistently with his claimed beliefs and that he was not acting in good faith. That his study of the IRS code would not lead him to these beliefs or to that weight, the actions that he took. Again, at 609, the prosecutor says Mr. Johnson testified about reading the code, but he couldn't tell me where in the code it says you can pay your child support with a fake money order. He couldn't tell me where in the code it says you can pay your mortgage with a fake promissory bond. He couldn't tell me where it related to state taxes or state courts. So again, this was not a case where the government was introducing this evidence to sort of blackball the defendant and it wasn't used in that way and no sort of inflammatory statements were made. And certainly this case is simply not close. In Abishovich, which the defendant referred to, the jury requested a definition of reasonable doubt, which certainly suggests that the jury was struggling with guilt. In this case, they asked for the text of 26 USC 72212, the statute the defendant was charged with. On cross examination, the defendant testified that he had read 26 USC 72212. And the prosecutor mentioned that fact as evidence that the defendant was aware of his legal obligations and chose to disregard them. The jury deliberated for two hours, including lunch. This was not a close case. The defendant testified, frankly, I think he hung himself in his own testimony, but there was other unrefuted evidence. I would point the court only to one particular piece, within days of being contacted by the IRS about being audited, the defendant closed his bank of America bank account and moved all his money to an anonymous warehouse bank, admitting that he did so in order to avoid creating a paper trail. Those are not the actions of a person who believes that they are in compliance with the law and who is attempting to satisfy their legal obligations in good faith. They are the actions of someone who knows perfectly well that what they are doing is illegal and is seeking to avoid getting caught. So, in closing, I would just say, of course, we think Judge Moon properly admitted the evidence that it was highly probative of the defendant's intent to the extent this court disagrees with us that there was any error certainly just not rise to the level of harmless error, let alone plain error. If the court has no further questions, thank you very much. Okay, police, the court, I'd like to make three points briefly on the rebuttal. The first is, I want to go back again to this issue about what a trial council sufficiently raised or 403 and 404 enough credit here. I think clearly Judge Moon understood the objection. He understood he needed to undertake the weighing of a prejudicial effect versus probative value. The fact that the the trial or it did not mention 404 or anything like that, I don't think that matters. She made it clear and I think from the context, from the context, we can see that Judge Moon recognized that's the objection. There's a 403, 404. Do you have cases where do you have any case where somebody objects to the first sort of evidence and doesn't object to subsequent one same kind of evidence and the court holds that the objection is preserved? Not, I can't cite that too off the top of my head Judge, but the rule is very clear. Rule 103 says once you object and you receive it to that evidence. Yes, and you receive, but 41, 42, 43 is they admit in their briefs, they're all pieces of evidence. What's that? The different pieces of evidence. Well, they're all integrated. They all have, they're all in a progression. They're just a money order, then two notices, you didn't accept my money or even accept my money or they're all integrated as one and they even say that. I think she received a definitive ruling. There was no need to, you know, belabor the issue. And I also think, you know, there's a little bit of inconsistency here because the government, you know, mangled the statute a little bit when they drafted this complaint. When they drafted this pleading, the words are off. They don't, I mean, they don't, they excuse it as a typo, as a typo. And they said, look, there was no prejudice. It seems to me they're being a little bit inconsistent here

. They are the actions of someone who knows perfectly well that what they are doing is illegal and is seeking to avoid getting caught. So, in closing, I would just say, of course, we think Judge Moon properly admitted the evidence that it was highly probative of the defendant's intent to the extent this court disagrees with us that there was any error certainly just not rise to the level of harmless error, let alone plain error. If the court has no further questions, thank you very much. Okay, police, the court, I'd like to make three points briefly on the rebuttal. The first is, I want to go back again to this issue about what a trial council sufficiently raised or 403 and 404 enough credit here. I think clearly Judge Moon understood the objection. He understood he needed to undertake the weighing of a prejudicial effect versus probative value. The fact that the the trial or it did not mention 404 or anything like that, I don't think that matters. She made it clear and I think from the context, from the context, we can see that Judge Moon recognized that's the objection. There's a 403, 404. Do you have cases where do you have any case where somebody objects to the first sort of evidence and doesn't object to subsequent one same kind of evidence and the court holds that the objection is preserved? Not, I can't cite that too off the top of my head Judge, but the rule is very clear. Rule 103 says once you object and you receive it to that evidence. Yes, and you receive, but 41, 42, 43 is they admit in their briefs, they're all pieces of evidence. What's that? The different pieces of evidence. Well, they're all integrated. They all have, they're all in a progression. They're just a money order, then two notices, you didn't accept my money or even accept my money or they're all integrated as one and they even say that. I think she received a definitive ruling. There was no need to, you know, belabor the issue. And I also think, you know, there's a little bit of inconsistency here because the government, you know, mangled the statute a little bit when they drafted this complaint. When they drafted this pleading, the words are off. They don't, I mean, they don't, they excuse it as a typo, as a typo. And they said, look, there was no prejudice. It seems to me they're being a little bit inconsistent here. Yes, in this case, when it comes to this lawyer, she didn't say 404, she didn't make it explicit. It's a 404 objection, but they're saying, can't look at anything else, she didn't say it, but it seems there's an inconsistency there. I think the judge understood what the lawyer was saying, even if she didn't say it, letter perfect, just as they're arguing, hey, everybody understood what we're saying in this indictment, even though it's, it's garbled. And third, on the necessity prong, again, we have no real argument from the government showing us why it's essential. And the Wilson case, which is 624 F third, 640, page 644, explained that evidence is necessary in the real 404 B context, if it is quote an essential part of the crimes on trial, considered in light at the end of the quote. It goes to an element, that's correct. It has to go to an element and it has to be a... Right, and the element here that it goes to is intent, right? But it has to be essential to their case. It has to be with, given the other evidence available to them, they can only prove their case of this element with this particularly prejudicial evidence. And that, I don't think they did. And in Wilson's said, if they fail making the showing that it's necessary and essential, then that's the end of the analysis as a matter of law to conviction needs to be vacated. When you said they're all integrated, the three exhibits, you don't mean that the government moved to admit all three exhibits at one time to you. The government moved them separately. They moved them separately, that's right, Judge. But if you look at the exhibits, I mean they are, they're all about the same subject and they're all in the room. Thank you. Thank you very much.

I want to thank the court for pointing me to represent the appellant in this criminal case, James Johnson. It's been a pleasure. I'd like to focus on the issue that really is the focus of my reply brief, which is the evidentiary issue under rules 403 and 404. This case is a tax case, of course, and many of the facts are undisputed. They're very few disputed facts. I mean, he stipulated below, pro-say and then through his counsel, that he didn't file tax returns on the years in question, that he had the income on the years in question, and then in fact, he was going to owe the taxes for the years in question. So really, this is a pure men's reocase. The only issue that went to the jury was whether or not he believed some of these sovereign citizen arguments, these tax protester arguments that he raised, whether that was good faith belief, whether he got these, it was clear from the record he'd gone to a lot of seminars. This thing is out on the internet. And whether or not he embraced that or was he just being opportunistic and avoiding his tax obligations. That was the issue that went to the jury. And what happened was early in the case is the government introduced, injected his child support of virages. They introduced three exhibits, 40-1, 40-2, 40-3. They're on a row on pages 1202 through 1241 of the record, 5-3. And there was an objection from his counsel. She objected to relevance. That's clearly a 403, 404 objection. Judge Moon recognized that as an objection held itself. He objected to one of the exhibits, but not the other two. That is, she didn't object explicitly to the other two. She objected explicitly to 40-1. But Judge Moon weighed the probative value of the first exhibit as opposed to its prejudicial value and ended up saying he thinks it's more probative than prejudicial. So he let it in. So there was a definitive ruling from Judge Moon. I think under Rule 103, she had no obligation to renew that objection since he had so definitively ruled upon it. Well, but he only restricted his objection to relevance. He didn't say anything about prejudice. Oh, he did, he did, Your Honor. Respectfully, I'd ask the court to look at 306 and 307. He said it's definitely got some prejudicial value. The lawyer for this man said this? No, you're right. Judge Moon did. Yeah, well. Judge Moon did. I'm looking at the objection. Well, not wanting to leave a paper trail. Mr. Johnson also, sorry, he said, I object to the relevance. Legal obligations, he charged with failing to comply with his tax obligations are not any child support obligations. So I think the relevance of any is minimum. Correct, and I wasn't there. So I mean, I understand what you know how it is. When you take a case over on appeal, out of good or for ill, you take the record. And I think this one is for good, Judge, because under Rule 103, she's supposed to be specific, but if the context is clear, then it's clear. I think it's his clear. And he's making a relevancy, are you? But I think the judge recognized that he needed to weigh relevance versus prejudice, which is a standard emotion. And I think Judge Moon did that. He undertook the proper test. So the fact that she didn't say the magic word Rule 404, the magic word prejudice, really shouldn't matter. He undertook the proper test. I just think he got it wrong. And so there are, there's a four considerations under Rule 404, reliability, and necessity, relevance, and absence of undue prejudice. I'll concede that the documents, these exhibits are reliable. But as far as relevance, they weren't. This was not a case about his child support or re-reaches. It was a case about his tax obligations and his tax obligations. No, but you told us a little earlier in your argument, the question was that we were supposed to look at his sincerity. And I think that they're relevant to go to his sincerity in meeting his obligation, whether they be tax obligations or child support obligations. Well, you're on, I think in the last couple of years though, the court has really focused on the two cases that I really focused on in the briefs, McBride from 2012, and then Chief Judge Tracks' last year's opinion in April of 13 in the more case. And just briefly, the focus in those cases under the relevance, Pong, is how similar in nature and purpose is the charged act with the uncharged act. For example, in the McBride case, the defendant was charged with distributing cocaine powder, the District Court of Laudi and Evidence, he distributed cocaine base or crack. Those are certainly similar, but this court said not sufficiently similar, not exceedingly similar, and they reversed his conviction. And in the more case written by Chief Judge Tracks' lawyer, the allegation, the charge was he used a revolver in a carjacking, and the District Court of Laudi and Evidence that he not only possessed a revolver prior to the carjacking, but also a semi-automatic pistol. Now, those two items are certainly have some general superficial similarity revolver and a pistol, but the court said insufficient, not exceedingly similar. But most importantly, even if I'm wrong about that judge and there's some relevance to the child support exhibits, they weren't necessary. And I think that is the biggest problem here. There's, I think that it's almost impossible to say that something is not necessary in a criminal conviction, because we give the government so much opportunity. We are not second-guessing Assistant United States attorneys on piling on evidence. I mean, I quite agree that they shouldn't do it, but they don't know when they're trying to case how much is piling on, how much is necessary to convict and how much is it. And so courts have just made the call. I mean, we have two former United States attorneys here, and they can probably speak to that issue better than I can. But I don't remember a case that I've sat on in 20 years in which we've ever held evidence is not necessary. Well, I appreciate that, Judge, I would ask the court just to consider one of the... Might make some history then. Yeah, that's right. That's right. That's the first impression here. But there's a case called Wilson, I believe, that cited in my brief, and they said, if it doesn't meet the necessity problem, it's 2010 published by this court, it doesn't meet the necessity problem. If it doesn't meet the necessity problem... There's always a fact there. Judge, you caught me there. It was a drive-by shooting case and nothing to do with taxes. It was a violent crime case, and it was introduced some evidence that was not charged. But the holding was, since we find it wasn't necessary, we don't even need to look at the other prongs. And there's no... There's no... I'm sorry. Judge was on the top. Probably I wrote that. I think I believe it's Wilson, Judge, and I don't remember, I'm sorry. Wilson, I've got your site here on that. You don't remember where the panelists were. No, sir, I'm sorry. Okay. I apologize. There's no argument in their brief that it's essential that I can find. Maybe Ms. Bagley will educate me on that, but I can't see it. The essential is not necessary. You do recognize that. I respectfully disagree, Judge. I think that necessary in this context has been held to mean essential to the government's case. It has to be essential. It can't just be sort of Bagley, you know, might be relevant, might be... It has to be essential. You know, but you're focusing on the wrong thing. You know, the worst hits if it goes too well. I think I understand that. All right. No point in me. Well, Judge, let me just say that the third prong is the undue prejudice prong. So even if I were wrong, there's some relevance, even if there's some necessity. Suddenly, this was highly prejudiced. He's being branded as a deadbeat father who's scheming to avoid his tax obligations. I can't... I mean, that's pretty prejudicial. I think the average juror would be very put off by that, and I think they were. Finally, the government has raised harmless error, and I like to just highlight a couple of points on that. I think there are three decisive factors there. The centrality of the issue affected by the error. I think here they say that this... They say this goes to his men's reyes. So there's no question it's affects the central issue in the case. And secondly, is the mitigating efforts the district court undertook, meaning a limiting instruction. There was no limiting instruction when he let in this child support a rearriage evidence at all. So there was no mitigation. Did the debt was one S4? No, you're on. There was not. It was not. And I don't... And again, I don't think the honest is on... I don't think that is part of the... But the usually good and limiting instruction on poor OB... Poor OB stuff is the S4. Right. But this court has not said that defense counsel needs to ask for it. You know what the court has said in the bride and more in these recent cases is, did the district court mitigate by undertaking a... By delivering a limiting instruction? She's got to be tried. I mean, that's what you're allowing the lawyers for. They got... Yes, you're on. And like at the S4 limiting instruction. If you're going to let it in, after the judge says he's going to let it in, then you try to limit it. All right. If you're going to let it in, you better tell the jury not to consider it for any... Except... Yes, Your Honor. It's very narrow stuff. Yes, Your Honor. But I would just respectfully ask the court to consider the more... Otherwise, we would review it for plain error. So we would review this claim for plain error if your raising is freestanding claim. And I don't think it should be reviewed for plain error. You know, I just addressed that in the beginning. I think that lawyer made it clear to Judge Moon, who knows Rule 403, 404, as well as anybody, that that's the objection. He understood that was the objection and he undertook the balancing test. But under these cases, I've cited more in McBride. They never... The court has never said... Has never required defense counsel or a public counsel to demonstrate the defense counsel asked for limiting instruction. The question under this recent test, this three-part test, this is the case I'm referring to is Ivesivic. It's a Bosnia name. So it certainly be part of the argument that when you say, what I'm going to say, you didn't get one. That is what you didn't ask for. Right. But I'm not... That's not really... The question is, can they prove it was harmless error if it was error? And did that analysis... The question is... They prove it's harmless error. Now you have to show it's plain error. You don't ask for something and then go up here and say it was wrong. I think the judge respectfully, I think the burden is on the government if there's error to prove... Well, a harmlessness. It's harmless. You're saying it was error, not to give the instruction that you didn't ask for. But then on the harmless error point, the admission of it, that's what you're saying. The government now says, well, if it is error, it's harmless, right? The government is saying if it is error, it's harmless. I thought that supports your proposition that it wasn't necessary. That's right. That they've got the government talking out of those sides of the smell on that point. Well, I don't think they're doing it in this characterizing, that they're not being all that consistent, perhaps. But judge... They do it as a what if. They're arguing any alternative. But I think, under the harmless error analysis, the question is, was the limiting instruction given by the district court? That's the end of that factor. And then the third is the closeness of the case. And of course, they say the case was overwhelming. We don't look at the cold, appellate record. What did the jury think of this case? I mean, there was one issue. They took a little over two hours, and they asked a question. They actually asked to see the statutes. They didn't want to just rely upon Judge Moon's oral summary. They actually sent a note out asking to see the statutes. And under the IV-CIVIC case that's cited from 2012, which sets out this three-part test for harmless error, a request from the jury for guidance. Do you remember how long the jury was out in IV-CIVIC? Four hours. And do you remember what the issues were there? Not enough to articulate them, Judge. I remember. I think it was the travel act. Is that right? It was the travel act. And a person didn't speak English very well. Yes. Right. Different facts. Right. But the fact that the jury sent out a question asked for more guidance was in Disha that the jury was struggling with the case, which is what we have here. If there are no further questions, this concludes the panel. Sorry. Thank you very much. Thank you. Is Bagley? May I please the court, Katie Bagley, on behalf of the United States? I'd like to start by addressing the standard of review in this case, as the court has suggested. This case should be reviewed for plain error. The defendant clearly objected only on the grounds of relevance. Judge Moon took it upon himself to consider whether the prejudicial nature of the evidence might outweighs probative value under 403. Absolutely no indication was given by defense counsel that they were making any kind of 404B objection. They didn't say 404B. They didn't say bad acts. They didn't say propensity. They didn't say anything to indicate to the judge that that was the grounds of their objection. Well included within 403 is a balancing test and you include within that is possible prejudice, right? That's correct. And Judge Moon said they did make in their 403 objection, they did bring into play whether there would be prejudice. Well actually I think actually the objection did not refer to the objection. No, the objection didn't. But I thought that you said at the beginning of your argument that they made a 403 argument. They did not. Judge Moon did. When you said I understand that you said that he brought into play all this analysis. But when they said it's not relevant, they clearly were pointing us to 403, right? I just agree with that character. Well where else would you go for it to pie in the sky? I mean 403 is what tells you what you have to do, right? That's correct. The objection from counsel was purely on the grounds of relevance. I understand that. Judge Moon then in the basis where a relevant objection is 403. Not in this case, Your Honor, the exact way where else do you have to be based on? What's the rule that applies then? That irrelevant evidence. If they say they object on the basis of relevance and you pick up the rule book. To find out whether they're right or not, where else? Where is it? What rule do you go to? I believe it's 401, but now I'm terrified of being quoted on that. It's 403. 403. I'm sorry. So they objected on the grounds of relevance. I'll try to be more clear. Then considered the question of prejudice. And defense counsel did not suggest that the evidence was prejudicial, merely that it was so far a feel. To be sure. But when you make a 403 objection, one of the things you consider is prejudicial. Correct. They did make a separate prejudice. They did not. And I think what defense counsel is doing is conflating a 403 analysis with 404 and saying that because Judge Moon considered prejudice, he therefore somehow considered whether the evidence was admissible under rule 404b. And that never happened. Nobody in this case evaluated the evidence under that standard. Well, I think if evidence, I'm in scene a case where something was not prejudicial under 403, but was under 404. Maybe such cases exist. No, I think that you go forward with your argument. He made the objection he did. He didn't object to the other two things. That's correct. And we think that the district court reached the appropriate conclusion with respect to the evidence in terms of its prejudicial versus propitive value. What Judge Moon never considered, because he was never asked to consider, was any of the other factors under 404b, which I think in this case, then, this court is evaluating whether Judge Moon abused his discretion in admitting 401, excuse me, exhibit 40-1 under rule 403. Which we think he did not. And certainly, district courts are given great latitude in making that kind of analysis. So you would go through the fourth-actor test under 403, right? That's correct. And so what would I would that go? And I think in this case, first of all, the evidence is relevant. The Defense Council sites McBride and Moore and suggest that they somehow indicate that the acts must be very, very similar. What McBride and Moore say is the unsurprising restatement of what this court said in the touchstone case in Queen, which is that evidence can be similar in terms of intent, state of mind. In this case, the legal theories that the defendant was asserting to support his claim that he didn't have to pay taxes. All of those things were similar. And this evidence was relevant to show that the defendant did not really believe what he was saying, that he acted inconsistently with his assorted beliefs, that his beliefs were opportunistic, and that he was not acting in good faith. Not paying child support is inconsistent with not paying taxes. The reasons he asserted in the documents that he sent to the state of Virginia and to the Winchester District Court. First of all, the documents that he sent to the Winchester Court explained that he was not responding because he was not a United States citizen, because the courts had to do with the federal courts and arguments that he had about his relationship to the IRS and the federal courts. It doesn't make any sense. He was asked on cross-examination what the IRS or the federal government had to do with his state child support. He didn't have much of an answer. If you really believed what he was saying about the federal government and his obligation to pay taxes, it would be completely inapplicable to his obligation to pay child support. The fact is, he was asserting these frivolous arguments in an attempt to impede the state courts in the same way that he was attempting to impede the IRS. Furthermore, the defendant testified and the evidence show that he had... But he just said since he was no longer a United States citizen, he didn't have to pay child support. I suppose that was his argument, but I actually... We don't think he made that argument. What he said was, frankly, a bunch of nonsensical statements that he sent to the state court, that was very similar to what he sent to the IRS. And the fact that he used those arguments to somehow respond to the... His obligation to pay child support showed that he didn't believe them, but rather that he opportunistically wielded whatever theories he came across, he can order to avoid paying illegal obligations. He didn't believe that they were valid reasons not to pay his taxes. You were saying because he used these exact same reasons. Exactly. Child support where you wouldn't have the same problem. Exactly. And it showed that he didn't really believe them. Furthermore, he rescinded his social security number at one point. But then subsequently began using it again on these fictitious financial obligations that he sent both to the state of Virginia and to the IRS in an attempt to pay off other legal obligations, including his mortgage. It's certainly... And that was charged as an act in the indictment. As was the money order that he sent to the state of Virginia, both of which relied on the same legal theory that there was some account at the department of the Treasury that he could access by using his social security number and directing the IRS to offset some debt. I hesitate to attempt to explain it in any greater detail. Again, because he used the same legal theory... Sorry, did you... To pay whatever his taxes, his mortgage, his child support indicated that this really wasn't about his good faith beliefs about the tax system or his study of the tax code leading him to have these beliefs, but rather he came across this at some seminar or some internet search and thought it sounded like a really good idea to get out of paying his debts. And that's exactly what Judge Moon found. That this evidence demonstrated that he was not acting in good faith. But he did not believe what he said he believed and that it went directly to the central issue in this case. Additionally, the... I'd like to respond to the claim that this evidence wasn't necessary. As this court has stated before, a necessary means that the evidence is probative of an essential claim or element of the offense. The defendant's intent in a tax case and whether or not he believed what he said he believed about the law was the issue in this case and the government had to testify. He testified was cross-examined. That's correct. That's a telly story. Yes, he did. How long did trial last? I believe the trial lasted three days. And on his cross-examination, he made a number of frankly nonsensical statements consistent with other documents that he submitted to the government. I believe he was asked if he was James Bauer's Johnson. His response was, I am right now. And he testified that he was not a resident of the United States and did not earn income in the United States despite the fact that he lived and worked in the state of Virginia. I think the probative value of this evidence was high because it went to show directly that he did not believe what he said he believed in good faith. I think the prejudicial value has been exaggerated by the defense in this case. Why do you fall back on harmless air? We don't think we need to. We don't think there was any error. But you do it in your brief. You do it in your brief. If you got so much confidence in it and you evidence overwhelming, why do you say harmless air? Why don't you just find your feet that you proved to get and everything was admissible? We believe it was admissible. It was property admitted. But you still fall back on harmless air. As to the 404B claim that the evidence was improperly admitted under 404B, our problem in this case is that Judge Moon never made the findings as to the 404B factors because he was never asked to. And frankly, rather than conducting that analysis, finding harmless air is probably the easiest way for this court to resolve this case. We don't think there was error. We assert directly that the evidence was properly admitted, that the defendants claim that it didn't meet the requirements for 404B is incorrect. The evidence went directly to intent. And there was no error in admitting it. I thought you said the 404B stuff was reviewed for plain error. That's correct. That's correct. If this court were to find, for example, I guess we're trying to sort of cover all the bases. We don't think there was error. I think the evidence was admissible. To the extent there was error, it certainly wasn't plain error. This is a run of the mill evidentiary dispute. Were this court to find that the defendant had somehow preserved his objection and evaluated it under harmless error? And found it to be error. And found it to be error. They could say the evidence is overwhelming in its harmless. That's correct. I guess the confusion is that we responded to it. We do think the defendant objected on the grounds of relevance. And Judge Moon did conduct an analysis of the prejudicial value of the evidence. That is properly before this court on appeal. That the just report made those findings. The only object is not. Anything beyond that would be reviewed only for plain error. I do think that the prejudicial effect of this, of the improper prejudice, I'm sorry, was exaggerated. The government did not paint the defendant as a deadbeat dad. It never referred to his, him in any of those terms, no government witness used any term like that. The government was very careful in this case to relate the child support documents directly to the defendant's state of mind with respect to his taxes. For example, in the second volume of the Joint Appendent at 603, during closing argument, the prosecutor says, how does he pay his child support? Well, he turned into a social security number until he found another scheme that he could pay his child support, pay his back taxes. In other words, his use of his social security number demonstrated that he was inconsistent. And I think that if the court looks at where the government actually referred to this, we'll see there was no attempt to paint the defendant as a terrible person or somebody who left his children deprived. The government was using this evidence specifically to show that the defendant acted inconsistently with his claimed beliefs and that he was not acting in good faith. That his study of the IRS code would not lead him to these beliefs or to that weight, the actions that he took. Again, at 609, the prosecutor says Mr. Johnson testified about reading the code, but he couldn't tell me where in the code it says you can pay your child support with a fake money order. He couldn't tell me where in the code it says you can pay your mortgage with a fake promissory bond. He couldn't tell me where it related to state taxes or state courts. So again, this was not a case where the government was introducing this evidence to sort of blackball the defendant and it wasn't used in that way and no sort of inflammatory statements were made. And certainly this case is simply not close. In Abishovich, which the defendant referred to, the jury requested a definition of reasonable doubt, which certainly suggests that the jury was struggling with guilt. In this case, they asked for the text of 26 USC 72212, the statute the defendant was charged with. On cross examination, the defendant testified that he had read 26 USC 72212. And the prosecutor mentioned that fact as evidence that the defendant was aware of his legal obligations and chose to disregard them. The jury deliberated for two hours, including lunch. This was not a close case. The defendant testified, frankly, I think he hung himself in his own testimony, but there was other unrefuted evidence. I would point the court only to one particular piece, within days of being contacted by the IRS about being audited, the defendant closed his bank of America bank account and moved all his money to an anonymous warehouse bank, admitting that he did so in order to avoid creating a paper trail. Those are not the actions of a person who believes that they are in compliance with the law and who is attempting to satisfy their legal obligations in good faith. They are the actions of someone who knows perfectly well that what they are doing is illegal and is seeking to avoid getting caught. So, in closing, I would just say, of course, we think Judge Moon properly admitted the evidence that it was highly probative of the defendant's intent to the extent this court disagrees with us that there was any error certainly just not rise to the level of harmless error, let alone plain error. If the court has no further questions, thank you very much. Okay, police, the court, I'd like to make three points briefly on the rebuttal. The first is, I want to go back again to this issue about what a trial council sufficiently raised or 403 and 404 enough credit here. I think clearly Judge Moon understood the objection. He understood he needed to undertake the weighing of a prejudicial effect versus probative value. The fact that the the trial or it did not mention 404 or anything like that, I don't think that matters. She made it clear and I think from the context, from the context, we can see that Judge Moon recognized that's the objection. There's a 403, 404. Do you have cases where do you have any case where somebody objects to the first sort of evidence and doesn't object to subsequent one same kind of evidence and the court holds that the objection is preserved? Not, I can't cite that too off the top of my head Judge, but the rule is very clear. Rule 103 says once you object and you receive it to that evidence. Yes, and you receive, but 41, 42, 43 is they admit in their briefs, they're all pieces of evidence. What's that? The different pieces of evidence. Well, they're all integrated. They all have, they're all in a progression. They're just a money order, then two notices, you didn't accept my money or even accept my money or they're all integrated as one and they even say that. I think she received a definitive ruling. There was no need to, you know, belabor the issue. And I also think, you know, there's a little bit of inconsistency here because the government, you know, mangled the statute a little bit when they drafted this complaint. When they drafted this pleading, the words are off. They don't, I mean, they don't, they excuse it as a typo, as a typo. And they said, look, there was no prejudice. It seems to me they're being a little bit inconsistent here. Yes, in this case, when it comes to this lawyer, she didn't say 404, she didn't make it explicit. It's a 404 objection, but they're saying, can't look at anything else, she didn't say it, but it seems there's an inconsistency there. I think the judge understood what the lawyer was saying, even if she didn't say it, letter perfect, just as they're arguing, hey, everybody understood what we're saying in this indictment, even though it's, it's garbled. And third, on the necessity prong, again, we have no real argument from the government showing us why it's essential. And the Wilson case, which is 624 F third, 640, page 644, explained that evidence is necessary in the real 404 B context, if it is quote an essential part of the crimes on trial, considered in light at the end of the quote. It goes to an element, that's correct. It has to go to an element and it has to be a... Right, and the element here that it goes to is intent, right? But it has to be essential to their case. It has to be with, given the other evidence available to them, they can only prove their case of this element with this particularly prejudicial evidence. And that, I don't think they did. And in Wilson's said, if they fail making the showing that it's necessary and essential, then that's the end of the analysis as a matter of law to conviction needs to be vacated. When you said they're all integrated, the three exhibits, you don't mean that the government moved to admit all three exhibits at one time to you. The government moved them separately. They moved them separately, that's right, Judge. But if you look at the exhibits, I mean they are, they're all about the same subject and they're all in the room. Thank you. Thank you very much