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 VOLUME 11 - CHAPTER 252
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252.10 Innocent Intent, Good Faith

    252.10.2 Good Faith

    252.10.2.1 Good Faith Defense: General Willfulness And "Intent To Defraud" Instructions Inadequate For Good Faith Defense
    252.10.2.2 Defenses: Good Faith Reliance Upon Attorney Or Other Professional Advice

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 VOLUME 11 - CHAPTER 252

    252.10.2.1    Good Faith Defense: General Willfulness And "Intent To Defraud" Instructions Inadequate For Good Faith Defense

POINTS AND AUTHORITIES: Good faith negates fraudulent intent and thus precludes conviction of any crime that includes fraudulent intent as an element.  (See Spies v. United States (1943) 317 US 492, 497 [63 SCt 364; 87 LEd 418] [tax evasion]; Durland v. United States (1896) 161 US 306, 314 [16 SCt 508; 40 LEd 709] [mail fraud]; United States v. Booth, 454 F2d 318, 321 (6th Cir. 1972) [perjury]; United States v. Wilkinson, 460 F2d 725, 729 (5th Cir. 1972) [mail fraud]; United States v. Mulder, 147 F3d 703, 707 (8th Cir. 1998) [good faith is absolute defense].)

    Because the jury may not fully understand the defense theory of "good faith" from the general instructions, specific instruction on the theory should be given when requested. (See e.g., U.S. v. Morris (11th Cir. 1994) 20 F3d 1111, 1117-18.) The general instructions on matters such as "willfulness," "knowledge" and "intent to defraud" are not adequate substitutes for specific instruction on the good faith defense theory. (Id. at 1116-17; see also U.S. v. Haddock (10th Cir. 1992) 956 F2d 1534; U.S. v. Grissom (10th Cir. 1995) 44 F3d 1507, 1512 [recognizing right to specific instruction but instruction must be supported by the evidence]; Cheek v. United States (1991) 498 US 192 [111 SCt 604; 112 LEd2d 617]; Durland v. United States (1896) 161 US 306 [16 SCt 508; 40 LEd 709]; United States v. Ballard (1944) 322 US 78 [64 SCt 882; 88 LEd 1148]: United States v. Peterson, 101 F3d 375 (5th Cir. 1996), cert. denied, 520 US 1161 (1997); United States v. Hauert, 40 F3d 197 (7th Cir. 1994), cert. denied, 514 US 1095 (1995); United States v. Hilgeford, 7 F3d 1340 (7th Cir. 1993); United States v. Harrold, 796 F2d 1275 (10th Cir. 1986).)

    See also FORECITE National™ 252.11.2 [Defense Theory: Good Faith In Tax Cases].

    See also FORECITE National™ 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction].

    See also FORECITE National™ 252.5.13 [Claim of Right: Good Faith As Complete Defense To Charge Involving Intent To Defraud Or Willfulness].

RESEARCH NOTE:  "The Circuit Split Over Instructing The Jury Specifically On The Good Faith Defense: A Consequence Of Superlegislation By Courts Or The Standards Of The Appellate Review?" by Daniel S. Jonas, 46 Syracuse Law Review 61 (1995) [discussing the circuit split and arguing that good faith instruction should be given as a defense theory and to promote fairness]. 

Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-1, Comment, p. 8-3.

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 6.10.

See also 8th Circuit Model Jury Instructions - Criminal 9.08.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 17.

SAMPLE INSTRUCTION # 1:

    Good faith is an absolute defense to the charges in this case.

    (If false statement charged: A statement made with good faith belief in its accuracy does not amount to a false statement and is not a crime. This is so even if the statement is, in fact, erroneous.)

    (If fraud charged:) If the defendant believed in good faith that he was acting properly, even if he was mistaken in that belief, and even if others were injured by his conduct, there would be no crime.)

    (If tax evasion charged:) If the defendant in good faith believed that he paid all of the taxes he owed, he cannot be guilty of criminal intent to evade taxes. Therefore, if you find that the defendant honestly believed that he owned no taxes, even if that belief was unreasonable or irrational, then you should find him not guilty. However, you may consider whether the defendant’s belief was actually reasonable as a factor in deciding whether he held that belief in good faith. It should also be pointed out that neither the defendant’s disagreement with the law nor his own belief that the law is unconstitutional, no matter how earnestly that belief is held, constitutes a defense of good faith misunderstanding or mistake. It is the duty of all citizens to obey the law regardless of whether they agree with it.

    The burden of establishing lack of good faith and criminal intent rests upon the prosecution. A defendant is under no burden to prove his good faith; rather, the prosecution must prove bad faith or knowledge of falsity beyond a reasonable doubt.

[Source: Cheek v. United States (1991) 498 US 192 [111 SCt 604; 112 LEd2d 617].

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 VOLUME 11 - CHAPTER 252

    252.10.2.2    Defenses: Good Faith Reliance Upon Attorney Or Other Professional Advice

RATIONALE: The defendant's reliance on the advice of counsel may negate criminal intent. Therefore, a defense theory instruction on the advice of counsel may be necessary to assure that the jury understands this issue.

POINTS AND AUTHORITIES:  Good faith reliance on the advice of an attorney, an accountant or other professional has been recognized as an affirmative defense in some jurisdictions. (Cook and Hermann, Criminal Defense Checklist (West, 1999 ed.) § 3.04(4).)  However, many cases reject this theory because it would place the advice of counsel "above the law."  (See People v. Honig (CA 1996) 48 CA4th 289, 347 [55 CR2d 555].)

    "To be entitled to a good-faith reliance instruction, a defendant must show that (1) he fully disclosed all material facts to his attorney; and (2) he relied in good faith on advice given by his attorney." (U.S. v. Condon (11th Cir. 1998) 132 F3d 653, 656; U.S. v. Eisenstein (11th Cir. 1984) 731 F2d 1540, 1543.)

    "The advice of counsel is a more specific form of the defense of good faith." (O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 19.08 [Action On The Advice Of Counsel - Explained] p. 816 (West, 5th ed. 2000); see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.1(e)(4).)

    For example, "[i]t is a valid defense to a charge of filing a false return if a defendant provides full information regarding his taxable income and expenses to an accountant qualified to prepare ... tax returns, and that the defendant adopts and files the return as prepared without having reason to believe that it is incorrect." (United States v. Whyte (7th Cir. 1983) 699 F2d 375, 379; see Annotation, Reliance on Advice of Attorney, Accountant, or Tax Expert as Defense in Criminal Prosecution for Attempt to Evade Federal Income Tax Under §7201 of the Internal Revenue Code of 1954 (26 USC 7201) (1970), 3 ALR Fed 665.)

    Even if reliance on advice of counsel is not a complete defense it at least tends to establish the defendant lacked the requisite mens rea.   For example, advice of counsel is relevant when the elements of a criminal charge include willfulness or specific intent. (Williamson v. U.S. (1908) 207 US 425, 453 [28 SCt 163; 52 L. Ed. 278] [ scienter]; Pittsburgh Terminal Corp. v. Baltimore O.R.R. (3rd Cir. 1982) 680 F2d 933, 942 [ lack of good faith or due care]; Panter v. Marshall Field & Co. (7th Cir. 1981) 646 F2d 271, 297 [ propensity to commit future violations]; U.S. v. Traitz (3rd Cir.1989) 871 F2d 368, 382 n9; SEC v. Harwyn Industries Corp. (S.D.N.Y. 1971) 326 FSupp 943, 956-57; United States v. Conforte (9th Cir. 1980) 624 F2d 869, 876.) Instructions on this defense should be given when supported by the evidence. (Bursten v. United States (5th Cir. 1968) 395 F2d 976, 981; United States v. Mitchell (4th Cir. 1974) 495 F2d 285, 288-289; see United States v. Williams (5th Cir. 1978) 573 F2d 284, 291-292; United States v. Vannelli (8th Cir. 1979) 595 F2d 402, 404-405; and Whyte, supra, 699 F2d 375, 379-380, for approval of instructions given therein.)

STRATEGY NOTE:   Generally, the defendant must establish that he or she: 1) made a complete disclosure to counsel; 2) requested counsel's advice on the lawfulness of the contemplated action; 3) received advice that it was lawful; 4) relied in good faith on that advice (see SEC v. Savoy Industries Inc. (D.C. 1981) 665 F2d 1310, 1314 n28); 5) counsel must have been competent (qualified and unbiased) to render the advice given; 6) the advice must have been sought before the action in question (see U.S. v. Polytarides (4th Cir. 1978) 584 F2d 1350, 1352); 7) only legal advice can form the basis for an advice-of-counsel defense; and 8) there must be actual advice given.  The defendant cannot rely on an absence of advice.  

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTE:

Advice Of Counsel. Wharton’s Criminal Law (West, 15th Ed. 1993) § 42.

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 6.10.

See also 8th Circuit Model Jury Instructions - Criminal 9.08.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 17.

SAMPLE INSTRUCTION:

    Good faith is a complete defense to the charge in the indictment since good faith on the part of the defendant is inconsistent with the existence of willfulness which is an essential part of the charge. The burden of proof is not on the defendant to prove good faith, of course, since the defendant has no burden to prove anything. The prosecution must establish beyond a reasonable doubt that the defendant acted willfully as charged in the indictment.

    So, a defendant would not be "willfully" doing wrong if, before taking any action with regard to the alleged offense, the defendant consulted in good faith an attorney whom the defendant considered competent, made a full and accurate report to that attorney of all material facts of which the defendant had the means of knowledge, and then acted strictly in accordance with the advice given by that attorney.

    Whether the defendant acted in good faith for the purpose of seeking advice concerning questions about which the defendant was in doubt, and whether the defendant made a full and complete report to the attorney, and whether the defendant acted strictly in accordance with the advice received, are all questions for you to determine.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst. 18 [Good Faith Reliance Upon Advice of Counsel] (1997).]