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United States of America v. James L. Jensen and Robin L. Jensen

May 4, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES L. JENSEN AND ROBIN L. JENSEN,
DEFENDANTS.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

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."*fn1 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."*fn2 The court also agrees with defendants that, although, for instance, United States v. Kraeger*fn3 upheld exclusion of documentary evidence, United States v. Schiff*fn4 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. Conforte*fn5 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.*fn6 The 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.*fn7

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.*fn8

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 ...


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