USA v. Jensen et al

Filing 298

Order on Motion in Limine, Order on Motion to Strike

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
JAMES L. JENSEN and ROBIN L.
JENSEN,
Defendants.

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3:09-cr-00108 JWS
ORDER AND OPINION
[Re:

Motions at dockets
277, 278, and 291]

I. MOTIONS PRESENTED
At docket 277, the United States of America moves in limine for an order that the
defendants be required to establish a foundation for any evidence introduced to support
their beliefs regarding the federal income tax. Defendant Robin L. Jensen opposes the
motion at docket 285. Defendant James L. Jensen opposes the motion at docket 286.
At docket 278, the United States of America moves in limine to preclude the
defendants from introducing lay opinion testimony regarding the defendants’ views of
the federal income tax. James Jensen opposes the motion at docket 287.
At docket 291, the government moves to strike the opposition at docket 287.
James Jensen opposes the motion at docket 294.

II. DISCUSSION
A. Motion In Limine at Docket 277
Defendants are charged under Internal Revenue Code §§ 7201, 7206(1), and
7203. Each of those provisions requires a showing of willfulness. At issue is the
defendants’ assertion of good faith reliance on the advice of a tax professional to negate
willfulness. The thrust of the government’s argument is that the “actual reliance”
element of the good faith defense requires a foundation in the form of the defendant’s
testimony.
The government maintains that “[t]he majority of courts that have addressed th[e]
issue have limited . . . presentation of [a] good faith defense to the testimony of the
defendant and the defendant’s limited quotation of materials upon which the defendant
allegedly relied.”1 The court agrees with defendants that none of the cases cited by the
government “imposed an absolute requirement that the defendant testify before the
court would admit good faith or reliance evidence.”2 The court also agrees with
defendants that, although, for instance, United States v. Kraeger3 upheld exclusion of
documentary evidence, United States v. Schiff4 makes clear that the Second Circuit
does not treat a defendant’s testimony as a prerequisite to evidence of good faith.
The government cites United States v. Conforte5 for the proposition that “[o]nly
the defendants’ in court testimony can lay the proper foundation.” That case recites
general principles pertaining to assertion of a reliance on counsel defense.6 The

1

Doc. 277 at 5.

2

Doc. 285 at 3.

3

711 F.2d 6 (2d Cir. 1983).

4

801 F.2d 108, 111 (2d Cir. 1986). Schiff provides explicitly that “[t]he willfulness of one
accused of tax crimes may be proved by circumstantial evidence. . . . As a practical matter,
such evidence is likely to be the only type available to support or rebut a good faith defense
other than the word of the defendant himself.” Id.
5

624 F.2d 869 (9th Cir. 1980).

6

Id. at 877.

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requirement that a “defendant must also show that he actually relied on the advice,”
however, speaks to neither evidentiary foundation nor a defendant’s own testimony.7
As the defendants correctly point out, the government’s argument that the Jensens’
must lay a foundation for the evidence they introduce is self-evident.8
The government sets out a five-factor test governing admissibility even though
specific evidence has not been identified. Even if the court were to accept the
government’s test–a test which the court cannot say would be properly applied to the
evidence in this case–that test cannot be applied in the abstract.
Ultimately, the government’s arguments are premature and cannot be properly
considered without context.
B. Motion to Strike at Docket 291
The government argues that the response in opposition at docket 287 is actually
a motion in limine and that it was filed beyond the deadline for such motions. James
Jensen argues that his opposition does not seek to exclude any testimony, only to point
out that the government’s arguments apply to both parties. Because the court is not
treating the response at docket 294 as a motion in limine, it need not be stricken.
C. Motion In Limine at Docket 278
The government argues that “the defense should be prohibited from eliciting lay
opinion testimony concerning the existence of defendants’ good-fath beliefs.”9 James
Jensen agrees and suggests that the court “prohibit any lay or expert testimony from
any witness other than the [defendants] about their” tax views.10
Under Federal Rule of Evidence 701, lay opinion is only permissible where “(a)
rationally based on the perception of the witness, (b) helpful to a clear understanding of

7

Id.

8

Doc. 286 at 1–2.

9

Doc. 278 at 5.

10

Doc. 287 at 1.

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the witness’ testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”11
In United States v. Rea,12 the Second Circuit determined that lay opinion as to
the defendant’s knowledge would not be helpful to the jury. The court stated that where
a “witness has fully described what a defendant was in position to observe, what the
defendant was told, and what the defendant said or did, the witness’s opinion as to the
defendant’s knowledge will often not be ‘helpful’ within the meaning of Rule 701
because the jury will be in as good a position as the witness to draw the inference as to
whether or not the defendant knew.”13 The court generally agrees with the government
that the reasoning set out in Rea is persuasive here.
However, merely because lay opinion as to the defendants’ beliefs would not be
helpful to the jury does not mean that defendants are required to testify in order to
present evidence of their beliefs. The jury may infer from the properly presented
testimony of defendants’ witnesses (as contemplated in Rea) provided those witnesses
do not opine as to whether the defendants held the beliefs in question.
In general, the court agrees with the government’s assertion that “a lay witness
reciting statements allegedly made by defendants would be inadmissible” hearsay.14
However, without knowing specifically what a witness might say he heard one of the
defendants say, it is impossible lay down a blanket rule excluding all such testimony.
Conceivably there could be testimony about a defendant’s statement that would be
relevant to some issue but not offered “to prove the truth of the matter asserted” and
consequently not hearsay.15

11

Fed. R. Evid. 701.

12

958 F.2d 1206 (2d Cir. 1992).

13

Id. at 1217.

14

Doc. 278 at 6.

15

See Fed. R. Evid. 801(c).

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III. CONCLUSION
For the reasons above, the government’s motion in limine at docket 277 is
DENIED, but this ruling does not eliminate the need to lay some foundation for the
introduction of any evidence. The government’s motion in limine at docket 278 is
GRANTED as follows: Defendants may not elicit lay opinion testimony as to whether the
defendants held specific beliefs. The motion to strike at docket 291 is DENIED.
DATED at Anchorage, Alaska, this 4th day of May 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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