United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE
January 7, 2019, the Government filed a Motion in Limine 
to preclude certain anticipated arguments at trial. The Court
grants the motion as to 1) any argument
inviting jury nullification, and 2) any evidence or argument
regarding the possibility of a civil enforcement action.
However, the Court reserves ruling as to 1)
whether the Government's introduction of Form 4549-A
would open the door to evidence and argument concerning a
civil action, and 2) the admissibility of IRS regulations.
IRS Civil Action & Form 4549-A
Government argues that the Court should bar Defendant from
offering evidence regarding the possibility of an IRS civil
action, and that the Court should prevent Defendant from
arguing that a civil action would have been a more
appropriate forum to address Defendant's tax liability.
The Government contends any such arguments would invite jury
response, Defendant notes that the Government intends to
introduce evidence of his “tax loss” and the
corresponding Internal Revenue Agent Reports (Form 4549-A)
used by the IRS in audits and civil proceedings for
adjustments to income tax returns. Defendant argues that
introduction of Form 4549-A would open the door to evidence
and argument concerning the existence or propriety of an IRS
reply, the Government argues that Revenue Agents use Form
4549-A to calculate the tax loss in both civil audits and
criminal investigations. Therefore, the Government contends
that the form does not necessarily implicate the
Government's decision to bring a criminal, rather than
the Court grants the Government's motion as to any jury
nullification argument from Defendant. Although jury
nullification “is an important part of the jury trial
system, ” a criminal defendant has no right to
“make an improper argument encouraging the jury to use
its de facto power to refuse to apply the law as instructed
by the court . . . .” United States v.
Thompson, 253 F.3d 700, 2001 WL 498430, *16 (5th Cir.
the Court agrees with the Government that the possibility of
a civil, rather than criminal, action against Defendant is
irrelevant to the charged offenses. But the Court can not
assess whether the Government's introduction of Form
4549-A would open the door to such evidence because the Court
has not seen the form. For now, the Court generally grants
the Government's motion as to any evidence or argument
regarding the possibility of a civil, rather than criminal,
enforcement action - with the caveat that Defendant is free
to argue at trial that the Government has opened the door.
Defendant argues that it should be permitted to introduce
evidence of relevant IRS regulations, pursuant to United
States v. Morrison, 833 F.3d 491, 508 (5th Cir. 2016).
However, Morrison does not provide that IRS
regulations are generally admissible in defense of charges
under 26 U.S.C. § 7206. Rather, in Morrison,
the Court of Appeals held that the trial court did not err by
declining to include an IRS civil regulation in the jury
instructions when it was already in evidence and the
Court's willfulness instruction covered the same issue.
Id. at 509.
introduction of IRS regulations into evidence creates
numerous potential pitfalls for trial courts and is typically
subject to objections under Rule 403. For example, the
probative value of such regulations may be diminished because
they are cumulative of other evidence regarding the
defendant's intent or good-faith belief. See United
States v. Simkanin, 420 F.3d 397, 412-13 (5th Cir.
2005); United States v. Flitcraft, 803 F.2d 184, 186
(5th Cir. 1986). Likewise, they may present the danger of
“confusing the jury by suggesting the law is unsettled
and that it should resolve such doubtful questions of
law.” Flitcraft, 803 F.2d at 186. The Court
must strike a balance between “allow[ing] the defendant
to establish his beliefs through reference to tax law sources
and . . . avoid[ing] unnecessarily confusing the jury as to
the actual state of the law.” United States v.
Barnett, 945 F.2d 1296, 1301 (5th Cir. 1991). The Fifth
Circuit has generally approved of the trial court
“excluding the challenged documents but allowing the
defendant to testify about their contents and the effect the
information had in the formulation of his beliefs.”
United States v. Stafford, 983 F.2d 25, 27-28 (5th
end, this is a Rule 403 question, and context is key. At a
minimum, the Court would need to see the regulations that
Defendant wishes to introduce and more fully understand
Defendant's defense, which is wholly undeveloped at this
juncture. Accordingly, the Court declines to address this
issue now. The parties are free to raise it during trial,
outside the presence of the jury.
the Court grants the Government's motion
in part and reserves ruling ...