ADVICE OF COUNSEL OR OTHER EXPERT
United States v. Tobin, 676 F.3d 1264 (11th Cir. 2012)
The court held that “willfulness” is not an element of a § 841 offense (distribution of a controlled substance) and therefore, it is no defense that the defendant did not realize that his conduct was illegal or that he had consulted with a lawyer and the lawyer said the conduct was not illegal (this was an Internet Pharmacy prosecution). However, to be convicted of conspiracy to distribute a controlled substance, the defendant is required to act with knowledge of the illegality of his conduct, because under § 846, willfulness is an element of the offense and therefore, advice of counsel is a defense to a § 846 offense.
United States v. Kottwitz, 614 F.3d 1241 (11th Cir. 2010)
The trial court erred in refusing to give an instruction on good faith reliance on advice of an accountant in this tax fraud prosecution. The defendant bears an extremely low threshold to justify the good faith reliance instruction and does not neet to prove good faith. Whether the defendant fully disclosed the relevant facts, failed to disclose all relevant facts, or concealed information from his advisor, and relied in good faith on his advisor are matters for the jury – and not the court – to determine, under proper instruction. See also United States v. Morris, 20 F.3d 1111 (11th Cir. 1994); United States v. Eisenstein, 731 F.2d 1540 (11th Cir. 1984). (Note, rehearing resulted in reversal of additional counts on 12/22/2010, 627 F.3d 1383).
United States v. Moran, 493 F.3d 1002 (9th Cir. 2007)
Excluding evidence about what the defendant was told by her attorney and CPA about the legitimacy of the tax shelters was reversible error. Such testimony is not hearsay and cannot be excluded pursuant to Rule 403.
United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997)
The defendant was charged with bankruptcy fraud and money laundering on the basis of his failure to disclose during his bankruptcy proceeding that he had received certain money and deposited some of those funds in a bank account he controlled through an unincorporated business he managed. The defendant’s bankruptcy attorney testified that he was aware of the existence of the unincorporated business and was remiss in failing to inquire further and determine if its existence should have been disclosed to the bankruptcy court. This evidence was sufficient to prompt an “advice-of-counsel” instruction and the failure to instruct the jury on this defense was error.
United States v. Walters, 913 F.2d 388 (7th Cir. 1990)
The defendant was prosecuted for his actions in connection with recruiting college players to play pro football. The players would lie about their amateur status in playing one more year in college despite the existence of a contract to play with a certain pro team. The defendant contended that he had sought the advice of counsel and had been informed that although this violated NCAA rules, it would not be a criminal offense. The trial court erred in refusing to give an “advice of counsel” instruction to the jury. The trial judge’s decision that the defendant did not provide sufficient information to his attorneys was not a matter which should have been resolved by the judge – that is a matter for the jury.
United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997)
The trial court erred in failing to instruct the jury on the defense of reliance on advice of counsel. Though the defendant did not tell the lawyer virtually every fact that was needed to render sound advice, the primary facts which a lawyer would think pertinent were disclosed. Moreover, the fact that the defendant disregarded some of the lawyer’s advice did not negate the defense.