The Due Process Clause protects
criminal defendants against conviction “except upon proof beyond a reasonable doubt” of every element of the crime charged. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970).
“‘Wellendorf’s first contention is that his testimony concerning the advice he received at a tax protestors’ meeting was improperly excluded as hearsay thereby weakening his defense of good
faith. The trial judge erred in excluding this testimony since it was offered for proof of Wellendorf’s intent and not for the truth of the statement. See Federal Rules of Evidence, Rules 801(c), 803(3).’
“‘The Supreme Court in Cheek held that ‘forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment’s
jury trial provision.’ Cheek, 111 S.Ct. at 611. Although a
district court may exclude evidence of what the law is or should be, see United
States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir. 1987), cert. denied, 484 U.S. 1064, 108 S.Ct. 1024, 98 L.Ed.2d 989 (1988), it ordinarily cannot exclude evidence relevant to the jury’s determination of what a defendant thought the law was in §7203 cases
because willfulness is an element of the offense. In §7203 prosecutions, statutes or case law upon which the defendant claims to have actually relied are admissible to disprove that element if the defendant lays a proper foundation which demonstrates such reliance. See United States v. Harris, 942, F.2d 1125, 1132 n. 6 (7th Cir. 1991); United States v. Willie, 941 F.2d 1384, 1391-99 (10th Cir. 1991). Legal materials upon which the defendant does not claim to have
relied, however, can be excluded as irrelevant and unnecessarily confusing because only the defendant’s subjective belief is at issue: the court remains the jury’s sole source of the law. In addition, the court may instruct the jury that the legal material admitted at trial is relevant only to the defendant’s state of mind and not to the requirements of the law, and may give other proper cautionary and limiting instructions as well.’
The Court in Peck v. Lowe, 247 U.S. 165, 172- 73 (1918) (Ex. 14) did state that the “Sixteenth Amendment * * * does not extend the taxing power to new or excepted subjects.” And the Court did state in United States v. Bishop, 412 U.S. 346, 361 (1973), that the “requirement of an offense committed ‘willfully’ is not met, therefore, if a taxpayer has relied in
good faith on a prior decision of this Court.”
