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Tax Fraud — right to present defense

United States Court of Appeals For the Seventh Circuit


Tax Fraud — right to present defense — expert testimony

The district court properly excluded proposed expert testimony that consisted of legal explanations of tax regulations.

“Nor did he supply factual support for his basis in JAS Partners. Nothing in the record put the district court on notice that Simon’s experts or fact witnesses would present factual support for his basis in JAS Partners. Simon sought to demonstrate his basis theory primarily through experts, including Herbert Long and Howard Richshafer. Simon’s Notice of Proposed Testimony of Herbert Long, however, covered only his theory that the disbursements from JAS Partners were legitimate loans that Simon intended to repay and had the ability to repay. R. 82. A review of Simon’s Notice of Proposed Testimony of Howard Richshafer reveals that Simon intended for Richshafer to instruct the jury largely on legal principles. R. 104. For example, Richshafer was to testify to ‘a general overview and the operating rules of Subchapter K of the Internal Revenue Code’ and give ‘an overview of the grantor trust rules under Subchapter J of the Internal Revenue Code,’ among other things. R. 104, ¶¶ 5, 8. The court was correct to preclude any witness from generally explaining the law to the jury. United States v. Farinella, 558 F.3d 695, 700 (7th Cir. 2009). ‘District judges, rather than witnesses, must explain to juries the meaning of statutes and regulations.’ Farinella, 558 F.3d at 700. See also United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008) (the meaning of the statute and regulations is a subject for the court, not for testimonial experts); United States v. Jungles, 903 F.2d 468, 477 (7th Cir. 1990) (trial court properly excluded expert’s simple recitation of legal principles surrounding the ‘independent contractor’ relationship). The jury is to apply the law as it is given by the court in its instructions, and may not apply a legal opinion given by a witness, including an expert witness. Farinella, 558 F.3d at 700. Nonetheless, the court did allow Simon to present evidence of his own direct contributions to the partnership.”


11-1837 U.S. v. Simon


Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Rovner, J.

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