tag:blogger.com,1999:blog-1519969502186924526.post3839910077641095822..comments2023-10-24T08:00:53.865-05:00Comments on Federal Tax Crimes: Be Careful When Using Pattern Jury Instructions -- a Tax Evasion Example (5/17/11)Jack Townsendhttp://www.blogger.com/profile/14469823736335455874noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-1519969502186924526.post-81576412233535107592011-05-18T06:50:43.745-05:002011-05-18T06:50:43.745-05:00Steve,
Judge Pauley's instruction requires un...Steve,<br /><br />Judge Pauley's instruction requires unanimity as to at least one affirmative act. Here is the relevant portion of Judge Pauley's instructions:<br /><br />Second Element: Attempt to Evade or Defeat a Tax <br /><br />The second element that the Government must prove beyond a reasonable doubt is that each of the defendants committed or caused to be committed an affirmative act of evasion <br />described in the Indictment. For each count, the Government must prove that the defendant you are considering took an affirmative act to attempt to evade or defeat taxes. The phrase “attempt to evade or defeat a tax” involves two elements: first, the formation of an intent to evade or defeat a tax, and second, willfully performing some act to accomplish the intent to evade or defeat that tax. There are many different ways in which a tax may be evaded or an attempt may be made to evade it. <br /><br />You should also keep in mind that while the Government must prove that the defendant you are considering committed some affirmative act of tax evasion, it need not prove each act of evasion listed in the Indictment. For each count, it is enough if the Government proves one affirmative act by the defendant you are considering. <br /><br />However, you all must agree on the same affirmative act of evasion that the defendant in question committed in order to satisfy this element. In other words, it is not sufficient for you to agree that the defendant in question committed or caused to be committed some affirmative act of evasion without agreeing on the same affirmative act that he or she committed or caused to be committed.Jack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-6072814541187869422011-05-17T21:03:57.975-05:002011-05-17T21:03:57.975-05:00Steve, to address your issues:
1. I don't th...Steve, to address your issues:<br /><br />1. I don't think the Supreme Court has ever said that "substantial" tax due and owing is an element of the crime. A fair, more literal reading of the statute is the only tax due and owing is required. Substantial is an interpretation that some courts (including the Second Circuit) have grafted onto the statutory text. Other courts suggested at least in dicta that there is no "substantial" requirement but then say that, in any event, in the case at hand the tax due and owing was "substantial." And, of course, we all know that many juries instructed that simply tax due and owing is an element will not convict if they think the tax due and owing is not substantial at least in some relative sense. Finally, whoever is in charge of the criminal tax enforcement system should not be pursuing evasion cases where the tax due and owing is not substantial. That was precisely the point of the examination question I posed to my students.<br /><br />2. Until I re-read Sansone (which I will do tomorrow), I am not sure about what Sansone adds. I will be back if I think I can add something.<br /><br />3. You asked what I think about whether the jury must find unanimity as to the affirmative act or acts. I would rephrase that to be whether the jury must be unanimous as to at least one affirmative act. If my thoughts counts, I think unanimity is or should be required. But I am not the judge. I do recall that there are some unanimity instructions in Judge Pauley's charge, but I don't recall now whether unanimity is required for at least one affirmative act. I think so. I will come back to this question tomorrow.<br /><br />Steve, thanks for your comments and questions. Always good and move the discussion forward.<br /><br />Jack TownsendJack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-23333700160050531902011-05-17T18:52:43.067-05:002011-05-17T18:52:43.067-05:00Good post. But there is more to the story.
The r...Good post. But there is more to the story.<br /><br />The requirement that a substantial tax be due and owing was never actually held by the Supreme Court. Appellate courts that say that are wrong, and there is actually a limited difference of opinion in the circuits. <br /><br />Some years ago some circuits had only two element paragraphs in a 7201 pattern charge, ignoring Sansone.<br /><br />Do you think that all jurors must find the same affirmative act or acts?STEVEN M HARRISnoreply@blogger.com