305 371-8101

Court's Failure to Give Requested Willfulness Instruction was Not Sufficient to Reverse Tax Evasion Conviction

 U.S. v. Botha, 2012 U.S. App.LEXIS 4342  (9th Cir. 2012)

        A jury convicted Botha of tax evasion, 26 U.S.C. § 7201, and the United States District Court for the District of Nevada sentenced him to 60 months in prison. On appeal, defendant challenged his conviction and sentence.
        Defendant first argued that the district court's refusal to provide his requested jury instruction regarding "willfulness" deprived him of the ability to argue his theory of defense.

        The court found that the district court provided a legally correct definition of the term "willfully," as well as a "good faith" instruction in substantially the same form defendant requested. The instructions, read together, adequately covered defendant's defense theory. Nor did the court err in failing to instruct on "gross negligence."

        Defendant contended that the government destroyed two pieces of potentially exculpatory evidence. The trial testimony showed that the evidence at issue was either destroyed for innocent  reasons or accidentally misplaced; the record contained no evidence of bad faith. Defendant also argued that the prosecutor engaged in misconduct by claiming in opening and closing that Botha had not paid any taxes since 1997. Read in context, the challenged statement during the prosecutor's opening could not have been deemed misleading, as counsel was then discussing tax years 1998-2001, and defendant had not, at the time he was indicted, paid towards those years.

[NOTE: The issue of filing returns and paying taxes after the investigation has started is often the subject of debate in criminal cases.]
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