# United States v. Dorothy R. Garber

> Court of Appeals for the Fifth Circuit · November 19, 1979 · 607 F.2d 92

URL: https://www.frixlaw.com/law-library/cases/9466145

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Dorothy R. GARBER, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 19, 1979
- **Citations:** 607 F.2d 92; 44 A.F.T.R.2d (RIA) 6095; 1979 U.S. App. LEXIS 10349
- **Precedential status:** Published
- **Opinion:** Dissent by Tjoflat
- **Judges:** Brown, Coleman, Goldberg, Ainsworth, God-Bold, Clark, Roney, Gee, Tjoflat, Hill, Fay, Rubin, Vance, Kravitch
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized in part by People v. Smith, 155 Cal. App. 3d 1103 (1984).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466145

## How later opinions describe it (automated extraction)

- concluding that the taxability of earnings from the sale of blood plasma “was completely novel and unsettled by any clearly relevant precedent”
- reversing the exclusion of expert testimony to show that defendant reasonably believed no tax was due

## Opinion text

TJOFLAT, Circuit Judge,
with whom AINSWORTH and ALVIN B. RUBIN, Circuit Judges, join, dissenting:
I would affirm the conviction of defendant Garber for essentially the reasons stated by Judge Ainsworth. The majority opinion disturbs me more by its analysis than by its result, however. The majority says that the Government should never have prosecuted Garber for tax evasion. The criminal proceedings were “inappropriate,” the majority intimates, because it is an open question whether the proceeds of her blood plasma constituted taxable income and because even if they were taxable, the doubt surrounding the taxability issue suggests that Garber could not have had the willfulness that is an essential element of the crime of tax evasion. Notwithstanding the majority’s belief that the prosecution was a mistake, it apparently feels trapped by an assumption that the Government is entitled to prosecute Garber. The majority’s response is to manufacture a rule of evidence that might permit Garber to extricate herself.
The new rule of evidence embraces any case where someone is charged with an offense involving willfulness. If the defendant avers that the requirements of the law were too vague to give adequate notice, the trial court must permit the parties to call to the stand “experts” to give their opinions about the state of the law. I have no doubt that this innovation in trial procedure, by allowing the jury to consider matters irrelevant to factual issues, will spawn unfair convictions and acquittals. In addition, the rule will inevitably lead to a protracted and unmanageable sequence of impeachment and rehabilitation of every expert allowed to present such testimony. My intention is first to demonstrate that this new rule springs from the majority’s failure to confront straightforwardly certain legal questions that this court has the responsibility to resolve and second to define exactly why I think the majority’s holding will have such a pernicious effect.
The case before us involves three distinct issues that are present in every tax evasion prosecution. The threshold issue is whether the “income” in question is subject to federal income taxation. If the “income” is taxable, the trial court next must determine whether the civil obligation to pay taxes was sufficiently clear to support a criminal prosecution for tax evasion. Finally there arises the factual issue whether the defendant acted with the willfulness that is an essential element of the crime. The majority’s analysis goes astray, in my view, by confusing the legal issues of taxability and sufficiency of notice with the factual issue of intent. For the court to dispose of this appeal properly, it is essential that these three issues be sorted out and considered individually.
I
Dorothy Garber was charged under section 7201 of the Internal Revenue Code with willfully attempting to evade her obligation to pay taxes on “income” she received for her blood plasma. This allegation is premised on the notion that Garber actually had such an obligation. Of course, section 7201 does not itself create any duty to pay taxes; it merely sets out criminal sanctions that enforce the tax liability imposed by other sections of the Internal Revenue Code. Whether Garber was actually liable for taxes on the sums in question depends on whether those sums are a part of her “gross income” within the meaning of section 61(a) of the Internal Revenue Code. This question of the meaning of “gross income” is purely a legal one, a matter of statutory construction. See, e. g., Haverly v. United States, 513 F.2d 224 (7th Cir.), cert. denied, 423 U.S. 912 , 96 S.Ct. 216 , *110 46 L.Ed.2d 140 (1975). Such a question of law is for the court alone, United States v. Seaboard Coast Line Railroad, 368 F.Supp. 1079, 1083 (M.D.Fla.1973), although the court would certainly be free to consider the opinions of the parties’ experts or any other sources of authority in making this threshold determination.
At the outset of the trial, Judge Fulton endeavored to determine whether the defense intended to challenge the indictment by contending that the proceeds from the plasma sales were not “income.” Record, vol. 2, at 2-12. If the monies were not “income” he would have had no choice but to dismiss the indictment under Fed.R. Crim.P. 12(b)(2) for failure to charge an offense. Strangely, the defendant’s attorney ignored this opportunity to move for a dismissal; rather, he expressed the view that the taxability of the sale proceeds was not a question of law for the court but a factual issue for the jury. Counsel implied that he would introduce proof that in the defendant’s mind, the proceeds were not taxable. Judge Fulton responded:
Well, we are talking about two different things. I think I understand your position. Certainly your client can contend in this case and you can argue, if the facts justify and support that argument, that your client did not have the requisite intent . . . but I think that whether it is income or not is a question of law for the Court.
Record, vol. 2, at 11. Although counsel declined to address the legal question whether the indictment charged an offense, the trial court clearly could have dismissed the indictment sua sponte. United States v. Purvis, 580 F.2d 853, 858 (5th Cir. 1978), cert. denied, 440 U.S. 914 , 99 S.Ct. 1229 , 59 L.Ed.2d 463 (1979). The court effectively sustained the indictment on this point, however, when it ruled that the proceeds were income. 1 I believe Judge Ainsworth’s analysis conclusively shows that this ruling was correct. The majority casts doubt on the ruling but purportedly declines to settle the issue. Nevertheless, the majority apparently assumes that the sales proceeds are taxable income and that the indictment is sufficient, for the opinion hinges on an evidentiary question that would otherwise never arise. If the court really believes that the monies are not taxable, it is unfortunate that it does not so hold and avoid an unnecessary retrial.
II
After ruling on the taxability issue, the district court was confronted with a second question of law: whether, at the time of the alleged tax evasions, the taxability of the monies was so uncertain as to make it fundamentally unfair to prosecute Garber. Due process requires that the language of a criminal statute convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. De George, 341 U.S. 223, 231-32 , 71 S.Ct. 703, 708 , 95 L.Ed. 886 (1951). At the commencement of trial, Garber’s attorney argued to the court that the taxability of the monies is “so uncertain” that “defendant cannot be guilty of willfully evading and defeating taxes on income.” Record, vol. 2, at 16. This argument contained the essential elements of the vagueness challenge, although it was not put squarely in those terms or in the *111 form of a motion to dismiss the indictment. 2 Here the vagueness issue is whether the obligation to pay taxes on monies received for plasmapheresis was too uncertain to give notice that a taxpayer who willfully evaded such taxes would be subject to prosecution under section 7201. The question narrows to the consideration whether it was or should have been reasonably clear to Garber that those monies were a part of her “gross income” within the meaning of section 61(a). Although “common understanding and practices” are the standards by which the adequacy of the notice given by a criminal statute is to be measured, it is settled that the question of vagueness is for the court rather than the jury. The question is separate from the court’s threshold inquiry whether the monies are taxable at all. The court might well have held that although the monies are taxable, their taxability was so uncertain at the times when Garber filed her returns that she did not have constitutionally sufficient notice of the conduct proscribed by section 7201. If this had been the court’s conclusion, the proper disposition of the case would, again, have been to have dismissed the indictment under rule 12(b)(2). Whereas the trial judge did not rule specifically that the obligation to pay taxes was not unconstitutionally vague, he effectively rejected any vagueness challenge when he sent the case to the jury.
United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974), relied on by the majority, suggests what is essentially another approach to the vagueness issue. Critzer is premised on the proposition that “when the law is vague or highly debatable, a defendant — actually or imputedly — lacks the requisite intent to violate it.” Id. at 1162 . The court held that “willfulness” could not be shown in a prosecution under section 7201 given the uncertainty concerning whether the sums in question were taxable:
As a matter of law, defendant cannot be guilty of willfully evading and defeating income taxes on income, the taxability of which is so uncertain that even co-ordinate branches of the United States Government plausibly reach directly opposing conclusions. As a matter of law, the requisite intent to evade and defeat income taxes is missing.
Id. (emphasis added). As under the conventional “vagueness” analysis, the inquiry focuses on the certainty of the obligation to pay taxes at the time the tax return was filed. Id. at 1164 . Under either approach, if the obligation was unclear, the defendant cannot be guilty as a matter of law, so the indictment should be dismissed for failure to charge an offense.
Just after discussing Critzer , the majority opinion says:
The tax treatment of earnings from the sale of blood plasma or other parts of the human body is an unchartered area in tax law. The parties in this case presented divergent opinions as to the ultimate tax-ability by analogy to two legitimate theories in tax law. The trial court should not have withheld this fact, and its powerful impact on the issue of Garber’s willfulness, from the jury.
Ante at 99. While I agree that Critzer says that the clarity of the law has an impact on Garber’s willfulness, Critzer does not support the suggestion that confusion in the tax laws is a “defense” that should be considered by the jury. The Critzer court reiterates that the impact of any vagueness of the law on the defendant’s intent is a matter of law — a determination to be made by the court alone.
Under either the conventional vagueness analysis or the Critzer analysis, the question on appeal is whether Judge Fulton should have dismissed the indictment on the ground that the taxability of the monies was too unclear to support criminal liability. My view is that the monies were so clearly a part of Garber’s “gross income” that no reasonable person could have supposed oth *112 erwise. The majority, on the other hand, appears to give much credence to Garber’s contention that she reasonably supposed the monies to be nontaxable. 3 If this is the majority’s persuasion, the proper resolution of the case would be to dismiss the charges as the court did in Critzer , not to remand for a new trial. Since the certainty of the law would be assessed as of a past date, a dismissal on this ground would be perfectly consistent with a ruling that money received for blood plasma is indeed taxable. Thus, no future defendant in Garber’s position could escape under the same vagueness challenge.
The majority’s mysterious refusal to follow the logic of its reasoning and dismiss the indictment leads to certain inconsistencies. The opinion, like the opinion in the Critzer case, ends with the observation that “[a] criminal proceeding pursuant to section 7201 is an inappropriate vehicle for pioneering interpretations of tax law.” Ante at 100. This conclusion makes sense in Critzer , but in the present case it is blatantly inconsistent with the court’s decision that there should be a new “criminal proceeding” that will allow the jury to hear evidence concerning the certainty of the tax laws.
Ill
The court need consider the propriety of Judge Fulton’s refusal to admit the testimony of Nall, Garber’s expert, only if we find that Judge Fulton correctly declined to dismiss the indictment. Assuming that the indictment is sufficient, the critical issue in the case becomes a factual one: whether Garber acted with the requisite willfulness in failing to pay taxes on the sums in question. To be admissible, the proffered testimony must be relevant to this issue, Fed.R. Evid. 402, 4 and its probative value must outweigh the danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed.R.Evid. 403. 5 I conclude that Nall’s testimony is not relevant to Garber’s intent, and that it certainly fails the weighing test. I would hold, therefore, that Judge Fulton properly excluded the evidence. 6 It is necessary to examine closely this relevance issue to show the dangers created by the majority opinion.
A
The factual question for the jury, narrowly stated, was whether Garber had an honest belief that the money she had received for her blood plasma was nontaxable. The inquiry is a subjective one. Garber’s belief does not have to have been reasonable; in fact, if her asserted belief had been reasonable, presumably the indictment should be dismissed for failure to charge an offense. The majority opinion obscures the subjective nature of the issue: “The court erred by refusing to instruct the jury that a reasonable misconception of the tax law on her part would negate the necessary in *113 tent.” Ante at 99, (emphasis added). 7 By drawing the notion of reasonableness into the inquiry, the majority improperly broadens the scope of relevancy, causing certain evidence to appear admissible although it would be excluded if the factual issue were correctly identified.
Fed.R.Evid. 401 defines relevant evidence as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See, e. g., United States v. Madera, 574 F.2d 1320, 1322 (5th Cir. 1978). Garber sought to introduce expert testimony that the taxability of the plasma sales proceeds was in doubt. Conceivably, there are two ways in which such testimony might be relevant. It might provide evidence of the defendant’s state of mind, or it might indirectly buttress her explanation of her actions. Concededly, there was never any communication between Garber and Nall. Record, vol. 3, at 430. Since Nall neither influenced Garber’s opinion nor learned of her opinion, it follows that he could have nothing to say that would bear directly on Garber’s intent. So if Nall’s proffered testimony is relevant at all, it can only be relevant through reinforcing the credibility of Garber’s explanation.
On direct examination, Garber was asked whether, at the time she entered into the plasma sale contracts, she had come to any conclusion concerning whether the monies she was to receive were taxable. She replied:
I had arrived in my own mind that it was definitely not taxable, that this was their gain, a part of me, it was my body, it was a very human element . . ., and I felt that it definitely was not taxable, that it was like I said, part of me, something—
Id. at 370. Garber testified that she had discussed this idea that sales of portions of the human body are inherently nontaxable with fellow donors and with her husband, but that she had never sought any professional advice about her theory. Id. at 370-80.
On the proffer of his testimony, Nall, like Garber, stated that he considered the proceeds of the plasma sales nontaxable, but that is the extent of the similarity between his testimony and Garber’s. Nall bases his opinion solely on his reading of the law. For example, when he was asked, “Sir, when would you say that, if somebody, based upon what you say, sold his plasma, that there is no income because there is no way of determining the basis?”, he responded:
Under this particular concept of the Supreme Court definition of income, the amount received for the part of the body if a person did sell a part of their body, no, there would not be a taxable transaction.
I might add, if I may . . . that the Solicitor’s Opinion 132 said, “No, these things are not income by reason of the definition of income . . . .”
Id. at 425.
In deciding the relevancy of this testimony, the trial judge should have, in essence, asked himself whether a reasonable juror could believe that the proffered testimony makes it more probable that Garber actual *114 ly believed no tax was due on the money. See, e. g., McCormick, Evidence § 185, at 438 (2d ed. 1972). I am certain that what this professional accountant concluded after studying the law could not make one whit more or less probable the truth of Garber’s explanation that she had not paid taxes on what she had received for plasmapheresis because “in my heart I did not feel it was taxable . . . .” Id. at 361. Therefore, the proffer does not pass the rule 401 test, and the testimony should be excluded.
The relevance issue could possibly be resolved differently if the expert’s testimony bore some relation to the context of the defendant’s explanation. For example, an accountant might testify, “I have advised twenty laypeople concerning the taxability of transactions analogous to the ones in the instant case. None of them have communicated with Mrs. Garber, and none of them have had any more legal training than Mrs. Garber. Seventeen of the twenty told me that they had a gut feeling — like the feeling Mrs. Garber testified she had — that the monies they had received were not taxable.” Putting aside the hearsay problem, it appears that a juror might reasonably infer from this statement that since other people have the belief that Garber says she had, it is slightly more likely that Garber did indeed have the belief. 8 On the other hand, such an inference would not be reasonable if it could be shown: that the expert was somehow not qualified to present the proffered testimony; that the seventeen people did not state their opinions in good faith; or that the situations were not truly analogous. Consequently, on the proffer of such testimony, the Government would have been entitled to cross-examine the expert in an effort to exclude his opinion altogether. Failing that, the Government would have the option to call each of the seventeen people and to cross-examine them in order to destroy the foundation of the expert’s testimony and thus to demonstrate its irrelevancy for lack of probative value. Cross-examination and rehabilitation could go on forever, and the principal issues in the trial would be lost in this sea of collateral nonsense.
B
Even if the relevancy of this hypothetical testimony is established, the testimony should still not be admitted into evidence because the danger of prejudice and confusion manifestly outweighs the mere scintilla of probative value. The process of impeachment and rehabilitation before the jury would be just as wide-ranging as in the voir dire hearing on relevancy. In fact, even if the problem could be escaped in the voir dire hearing, it would certainly surface in the presence of the jury. The trial would no longer be focused on the defendant’s intent, but on the intent of each of the people embraced by the expert’s testimony. The case would quickly become untriable.
The majority’s holding is so broad that it would require the admission of testimony that is even more destructive of the trial process than my hypothetical testimony. The majority opinion says that the trial court should have permitted Nall to testify simply as to the “unresolved nature of the law,” ante at 98, or as to the “reasonableness” of Garber’s belief, ante at 99. This testimony is less relevant than testimony referring to the opinions of a particular number or percentage of people because it requires an additional inference. The testimony is not probative unless the jury can *115 assume: (a) since this “expert” says there was doubt as to the state of the law, it is likely that a number of people believe that money such as that received by Garber is not taxable; (b) since other people have the belief that Garber says she had, it is somewhat more likely that she actually had the belief.
My major concern here is that these inferences are so questionable that it is reckless to permit a jury to indulge them. The danger is that the jury will see the relationship between Nall’s opinion and Garber’s belief as much more substantial than it could possibly be. The risk of confusion inherent in juror unfamiliarity with the assessment of probabilities is here compounded by the intellectual, abstract character of the evidence; it has no place in the factual context of the case. Jurors can draw on their own experience in assessing most circumstantial evidence. They will be traveling without a map, however, when they attempt to determine the impact of one man’s legal theories on the probability that Garber’s story about her state of mind, when she declined to report the monies as income, is the truth.
An even more serious problem results from the jury’s being asked to assess the merits of Nall’s legal opinion. In essence, Nall’s testimony is that Garber’s asserted belief is reasonable. Presumably, the more meritorious Nall’s opinion, the greater the number of people likely to share the opinion and the greater the probability that Garber is telling the truth. But however persuasive Nall may be, the court has already concluded in deciding the vagueness issue that the belief Nall is defending is not reasonable. The risk is that the jurors, who lack the training necessary to assess legal arguments, will too willingly accept the expert’s opinion. To permit the jury to base its verdict on an interpretation of the law that is at odds with the court’s will inevitably create the appearance of injustice. Assuming that the testimony is relevant, I believe that it would be foolhardy to lead the jury onto such treacherous ground when the possible benefits are so miniscule. 9
IV
Expert testimony about the state of the law will not only befuddle the jury; it will, in my view, utterly undermine the usual constraints on expert testimony, creating the potential for intolerable abuses. Until today, there has been a requirement that expert opinion testimony be founded on facts or data that comprise the context of the alleged offense. See Fed.R.Evid. 703. Under the majority’s approach, however, the expert may ignore the factual context and say nearly anything he desires about the legal issues in the case. Opposing counsel will find it impossible to lock him into a particular interpretation of the law because the range of his interpretation is practically infinite. The bestowal of such freedom on expert witnesses creates the opportunity for a well-coached expert to “manufacture” testimony while he is on the stand, shaping *116 his testimony to fit the facts that counsel has succeeded in eliciting from the defendant.
I think it manifest that the danger of prejudice and confusion that would result from the admission of testimony like that proffered by Nall outweighs any probative value. But even if this court should weigh the probative value and prejudice elements differently, we should affirm Judge Fulton’s ruling as clearly within the broad discretion a trial judge has under rule 403. See United States v. Johnson, 558 F.2d 744, 746 (5th Cir. 1977), cert. denied, 434 U.S. 1065 , 98 S.Ct. 1241 , 55 L.Ed.2d 766 (1978). Unfortunately, however, the majority has avoided the rule 403 weighing process altogether.
A further difficulty with the majority’s holding is that it apparently requires the district court in a case like this to permit practically anyone professing expertise in the subject to give his opinion about the law. The trial is likely to degenerate into a confused battle among experts. Such a situation can benefit no one but the experts themselves.
The majority’s failure adequately to consider the consequences of the rule of evidence that it has fashioned is particularly grave because what we decide today may prove irretrievable. I suspect that in future criminal trials involving the defendant’s state of mind, the introduction of expert testimony concerning the state of the law will be initiated by the defense. 10 Once the trial judge has upheld the sufficiency of the indictment, the Government can have no interest in showing the clarity of the law unless the defense first presents testimony that it is vague or that the defendant’s misunderstanding of the law was reasonable. If the defense introduces such testimony and the defendant is acquitted, that will be the end of the matter, since the Government has no right of appeal.
Alternatively, suppose that the defendant introduces expert testimony that the law is vague or that the defendant’s misconception was reasonable and that the Government counters with expert testimony to the contrary. If the defendant is convicted, he may choose to argue on appeal that the trial court committed reversible error when it permitted the Government’s expert to testify. He can hardly object to the nature of the testimony — to its relevance to any fact in issue — because he put in testimony of the same character. Thus, his complaint on appeal will have to be that the court should have excluded the Government’s testimony, even assuming that it was relevant, on grounds of prejudice, confusion, or waste of time. Fed.R.Evid. 403. The trial court has broad discretion in deciding whether to exclude evidence on these grounds, however, and this court “may not disturb his ruling unless he has clearly abused his discretion.” United States v. Johnson, 558 F.2d at 746 . In my opinion, this restricted standard of review will prove an inadequate tool for repairing the damage made possible by the majority’s holding.
Because I conclude that the district court correctly decided the issues of law before it and properly excluded “expert” testimony concerning the state of the law, I would affirm Garber’s conviction.
. Judge Fulton indicated in the colloquy at the beginning of the trial that he considered the monies in question to be income. Since the defense made no motion for a judgment of acquittal at the conclusion of the Government’s case-in-chief, he was not called upon to rule on the issue at that time. It was not until the defense proffered the testimony of Nall that the issue was disposed of as a matter of law. Record, vol. 3, at 431.
The Government agreed with Judge Fulton that the taxability of the monies is a question of law for the court. Id., vol. 2, at 3. The prosecutor proffered the testimony of the Government’s expert, Bierman, ante 607 F.2d at 94-95, solely as a precautionary measure. At the close of Bierman’s proffer, the prosecutor told the court: “[T]he Government . would not request that this witness testify to the Jury unless the Court plans on allowing expert witnesses to testify for the Defense on the law.” Record, vol. 3, at 332.
. Whether or not the question was properly raised below, this court may consider the sufficiency of the indictment on appeal. United States v. Seuss, 474 F.2d 385 , 387 n.2 (1st Cir.) cert. denied, 412 U.S. 928 , 93 S.Ct. 2751 , 37 L.Ed.2d 155 (1973); 8 Moore’s Federal Practice ¶ 12.03[1], at 12-16 & n.9 (2d ed. 1978).
. For example, at the conclusion of the opinion the court states that “the tax question was completely novel and unsettled by any clearly relevant precedent” and suggests that the case involves “pioneering interpretations of tax law.” Ante at 100.
. Rule 402 states:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
. Rule 403 provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. This court has sometimes made the distinction between “logical relevance” and “legal relevance.” See, e. g., Rozier v. Ford Motor Co., 573 F.2d 1332, 1347 (5th Cir. 1978). Evidence is said to be “logically relevant” if it has any probative value and “legally relevant” if that probative value outweighs the counter factors of prejudice, confusion, and repetition. In this discussion I have adopted Professor McCormick’s view that it makes for clearer thinking to discard the term “legal relevancy” altogether and use “relevancy” to refer to what has been called “logical relevancy.” See McCormick, Evidence § 185, at 441 (2d ed. 1972).
. None of the cases cited by the majority in support of this proposition suggest that the reasonableness of the defendant’s belief is material. Rather, they make it clear that there is no requirement of reasonableness. For example, in Mann v. United States, 319 F.2d 404, 409 (5th Cir. 1963), cert. denied, 375 U.S. 986 , 84 S.Ct. 520 , 11 L.Ed.2d 474 (1964), the court held erroneous a jury instruction that imported the notion of reasonableness:
[Section 7201] specifically provides that the crime of income tax evasion must be accompanied by a specific intent on the part of the accused to defeat or evade the tax, which must be proved by independent evidence. . Under the instruction here involved, the jury is invited to speculate as to what any other person similarly situated to [the defendant] and with like knowledge, would reasonably have expected to be the consequences of the conduct under consideration as shown by the evidence. The test is whether [the defendant] himself wilfully attempted to evade or defeat the tax.
Id. at 409 (citation omitted).
. Cf. Haigler v. United States, 172 F.2d 986 (10th Cir. 1949), where a rancher defended a prosecution for willful evasion of income tax with the argument that he had acted in accordance with what was “generally understood among sheepmen.” Id. at 988 . The court apparently assumed that testimony concerning the beliefs of the other sheepmen would be relevant and admissible. Note that the Haigler case differs from my hypothetical in that I am assuming that none of the seventeen people communicated with Garber. There may well have been communication about the issue between the Haigler defendant and the other sheepmen, so the testimony could be seen as directly probative of the defendant’s state of mind. The testimony that I hypothesize, like the pure opinion testimony the majority holds should come in, goes only to the question of the credibility of the defendant’s exculpative explanation.
. Neither Nordstrom v. United States, 360 F.2d 734 (8th Cir.), cert. denied, 385 U.S. 826 , 87 S.Ct. 59 , 17 L.Ed.2d 63 (1966), nor United States v. Bridell, 180 F.Supp. 268 (N.D.Ill.1960), cited by the majority, support the admissibility of this expert testimony. In Nordstrom , the defendant did not argue that the alleged vagueness in the law was relevant to his actual intent. Rather, he argued that due to the vagueness “the Court cannot attribute to him the requisite intent to violate the tax law.” 360 F.2d at 735 . The court admitted that for the defendant to be convicted, “his civil liability must have been so clearly the law at the time the erroneous return was filed that failure to report the embezzled funds amounted to a willful evasion,” id., but held that the law had been clear. Certainly, the court did not address the question whether the state of the law was relevant to the defendant’s intent. It was talking about the sufficiency of the indictment, a purely legal question. See United States v. Mann, 517 F.2d 259, 266 (5th Cir. 1975), cert. denied, 423 U.S. 1087 , 96 S.Ct. 878 , 47 L.Ed.2d 97 (1976). In Bridell , another tax evasion case, the court said: “. . . I have taken into consideration the fact that the law is more clearly delineated today, as to the offense charged, than it was during the years in question . .” Bridell, 180 F.Supp. at 279 . Bridell must be distinguished, however, on the ground that the trial in that case was a bench trial, so there was no need for the court to be concerned about the danger of prejudice and confusion as it must be in a jury trial.
. For example, in a criminal antitrust prosecution arising from a complex series of business transactions, a defendant may admit the alleged transactions but contend that he had not believed his actions unlawfully anticompetitive. The defense is that the defendant has not acted with the mens rea required for a criminal conviction. See United States v. United States Gypsum Co., 438 U.S. 422, 431-433 , 98 S.Ct. 2864, 2876-78 , 57 L.Ed.2d 854 (1978). The antitrust defendant would surely welcome the opportunity to put a law professor or some other expert on the stand to testify as to vagueness in the law or to the reasonableness of the defendant’s belief in the legality of his conduct.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466145. Public record. Not legal advice.