Sunday, December 30, 2007

Case o' The Week: Ninth Gets "Cheek"-y with Tax Evasion Defendant, Cohen

One of the last decisions of '07 is a very good Tallman opinion emphasizing the right to a defense expert, and explaining the mens rea requirements in tax evasion cases. United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007), decision available here.

Players: Good defense-expert decision by Judge Richard Tallman.

Facts: Cohen was an “acolyte” of recidivist tax protestor Irwin Schiff. Id. at *1. (Schiff's book is shown above left).

With Schiff, Cohen faced charges for assisting the filing of false tax returns. Id. The defense wanted to introduce the testimony of a shrink, who would have opined that Cohen suffered from a “narcissistic personality disorder” and that his “will was in the service of irrational beliefs.” Id. According to this expert, Cohen “did not intend to violate the law.” Id. The district court excluded the witness, holding that the expert “failed to explain ‘how the alleged mental disorders negate mens rea. Rather, his opinion merely explains or justifies Cohen’s conduct.” Id. at *7. Cohen was convicted. Id. at *1.

Issue(s): “Cohen argues that his conviction must be overturned because the district court wrongfully excluded the expert testimony of his psychiatrist who would have offered evidence of Cohen’s mental state.” Id. at *1. “The threshold issue is whether . . . [the expert’s] testimony would have assisted the tried of fact within the meaning of Rule 702. According to Cohen, [the expert’s] testimony would have bolstered the contention that Cohen had a good faith belief that he was acting in accordance of the law, thereby negating the mens rea element of 26 U.S.C. § 7206(2), which requires that a defendant ‘[w]illfully assist in the filing of a false return.’ See Cheek v. United States, 498 U.S. 192, 201 (1991) (holding that a defendant cannot be convicted of violating a federal tax law if he harbors a good faith belief that he was not violating any of the provisions of the tax laws).”

Held: “We agree, and we reverse Cohen’s conviction, vacate his sentence, and remand for a new trial.” Id.

Of Note: Judges Tallman and Ikuta – two-thirds of the Cohen panel – aren’t known as great defense allies. What gives with this good decision? The opinion hews closely to two great precedents: Cheek, 498 U.S. at 201, and United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). As noted above, the Supremes in Cheek held that the government has to negate “a defendant’s . . . claim that because of a misunderstanding of the law, he has a good-faith belief that he was not violating any of the provisions of the tax laws.” Cheek, 498 U.S. at 202. In Finley, the Ninth reversed a tax conviction when – like here – the defendant fell under the sway of a tax protestor, and wasn’t allowed to call a shrink to explain why he clung “doggedly to [his] beliefs even in the face of overwhelming contradictions.” Cohen, 2007 WL 4485629, *9. Cheek, Finley, Tallman and Ikuta make Cohen an unlikely en banc candidate.

How to Use: As noted above, the expert would have opined that Cohen “did not intend to violate the law.” Id. at *9. That’s verboten - a shrink can’t opine that a defendant didn’t have the requisite mental state. Id.; FRE 704(b). Cohen acknowledges this problem, but helpfully explains that this should not have barred the expert’s testimony. Id. at *10. “[T]he best way for the district court to have insured the exclusion of the potentially inadmissible aspects of [the expert’s] testimony was not to bar him from testifying altogether, but to sustain the government’s objections to particular questions likely to elicit inadmissible evidence under the rule. The district court also could have discussed with the parties before he testified the limits that would be imposed on the scope of [the expert’s] testimony.” Id. Cohen’s useful for the proposition that a defense expert cannot be excluded simply because parts of his testimony are inadmissible or irrelevant; the solution is instead to address specific problematic questions.

(A related lesson is to be very careful with a shrink’s testimony before making a proffer– it would have been better in this case for the expert to have avoided opinions that clearly violated FRE 704(b) in his report).

For Further Reading: Cohen has sparked much interest among bloggers. For a taste of a law prof's sour grapes (he was on the government's early briefing), see Brian Galle's comments here. More mens rea analysis (and some interesting gossip on other details of the case) can be found here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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