United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
before the Court in part is the Motion in Limine filed by the
government (Doc. 140). Oral argument was presented to the
Court on August 28, 2019; the Court took under advisement the
issue of whether secondary sources, expected to be offered by
Defendant Van Raymond Brollini (“Brollini”),
should be excluded. The Court has reviewed the materials.
has provided secondary sources to the government and has
indicated he will offer them as exhibits at trial. The
secondary sources include a book entitled IRS Humbug, IRS
Weapons of Enslavement, a Memorandum, and a video. The
government asserts the defense materials are irrelevant,
inflammatory, include prejudicial information and hearsay,
and will confuse the jury. Brollini argues, however, that he
is entitled to introduce evidence of the materials he has
relied on in forming his opinions. Indeed, Brollini asserts
that, if the jury is permitted to have the Truth About
Frivolous Tax Arguments material during deliberations,
the jury should also have the materials relied upon by
Brollini. Brollini argues if the IRS document is permitted to
accompany the jury but Brollini's materials are not, the
IRS document is effectively being vouched for, i.e., it makes
a distinction between legitimate and illegitimate materials,
effectively telling the jury Brollini was unreasonable or
illogical in relying on information other than what was
produced by the IRS. During argument, defense counsel stated
the materials were not being offered to show what the law is,
but to show these materials were part of the influence on
Brollini and were the sources Brollini relied on in forming
his conclusions; i.e, the admission is not to provide a
statement of the law, but to show the information available
points out that, in United States v. Powell, 955
F.2d 1206 (9th Cir. 1991), the court determined that
“statutes or case law upon which the defendant claims
to have actually relied are admissible to
disprove [willfulness.]” In making this statement, the
court cited to United States v. Willie, 941 F.2d
1384, 1391-99 (10th Cir.1991). The Willie court
pointed out that “‘[w]illfulness] is defined as
the ‘voluntary, intentional violation of a known
legal duty.'” 941 F.2d at 1392
(citation omitted, emphasis in original). The court further
To be a relevant defense to willfulness, then, Willie,
because of his belief or misunderstanding, must not have
known he had a legal duty. [Cheek v. United States,
498 U.S. 192, 202, 111 S.Ct. 604, 611, 112 L.Ed.2d 617 (1991)
(defendant must be “ignorant of his duty”). Thus,
his belief must be descriptive-he must believe the law does
not apply to him. A normative belief that the law should not
apply to him leaves Willie fully aware of his legal
obligations and simply amounts to a disagreement with his
known legal duty and a “studied conclusion . . . that
[the law is] invalid and unenforceable.” Id.
at 612-13. In Cheek, the Supreme Court stated that
“a defendant's views about the validity [or
constitutionality] of the tax statutes are irrelevant to the
issue of willfulness [and] need not be heard by the jury . .
. [I]t makes no difference whether the claims of invalidity
are frivolous or have substance.” Id. at 613.
Thus, a defendant's good faith belief that he has no
legal obligation to file and evidence showing the
reasonableness of that state of mind is relevant. But, proof
of the reasonableness of a belief that he should not have a
duty only proves the reasonableness of the defendant's
disagreement with the existing law and is, therefore,
properly excluded as irrelevant.
It is apparent that it is a delicate task to differentiate
between a belief that the law should be different and a
belief that the law is different . . .
Id. Additionally, the Ninth Circuit has stated:
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.
Powell, 955 F.2d at 1214 (emphasis in original).
Court recognizes that it may preclude a defense theory where
“the evidence, as described in the defendant's
offer of proof, is insufficient as a matter of law to support
the proffered defense[, ]” United States v.
Boulware, 558 F.3d 971, 974 (9th Cir. 2009) (citation
omitted)[, ] and considers the admissibility of the evidence
in light of this principle. Here, Brollini is not offering
the materials to show what the law is, but to show the
materials available to him and upon which he relied. It
appears this evidence is relevant to Brollini's alleged
good faith belief that he had no legal obligation and to show
the reasonableness of that state of mind. This is evidence
that is relevant to a jury's determination of whether
Brollini knew he was voluntarily and intentionally violating
a known legal duty. For example, the government points out
some issues that it believes indicates the video is
irrelevant: violating and ignoring statutory requirements.
However, this arguably goes to Brollini's good faith
belief as to any known legal obligation as set forth in
relevant statutes. The government's argument addresses
the weight of the evidence, not its admissibility. The
parties will be able to argue whether this evidence, while
considering the government evidence (e.g., the Truth
About Frivolous Tax Arguments material), establishes
whether Brollini had a good faith belief he had no legal
obligation. The Court finds this evidence is admissible.
as this evidence is relevant and admissible, the Court finds
it is appropriate for this evidence to go to the jury during
deliberations. However, the Court finds the danger of unfair
prejudice of the discussion in the video regarding the
acquittal in federal court of a commentator substantially
outweighs the probative value, Fed.R.Evid. 403. The Court
finds, therefore, this discussion must be redacted from the
IT IS ORDERED the government's Motion in Limine as to the
admissibility of secondary sources (Doc. 140) is DENIED.
However, the defense shall redact the discussion ...