States v. Mitchell (4th Cir. 1974) 495 F.2d 285, 287–288; see Federal Jury Practice
and Instructions, Criminal (5th ed.) § 67.25.) “[T]he defendant must show he
actually relied on expert advice and that his reliance was in good faith.” (United
States v. Segal, supra, 867 F.2d at p. 1179.) Further, this defense is not available if
the defendant failed to provide the professional with all of the relevant information
or knew that the document was false or inaccurate when submitted. (United States
v. Claiborne (9th Cir. 1985) 765 F.2d 784, 798; see also United States v. Segal,
supra, 867 F.2d at p. 1179 [defendant, charged with failing to ﬁle tax return, knew
advice was inaccurate].) If there is sufficient evidence to raise a reasonable doubt
that the defendant relied on professional advice, the court has a sua sponte duty to
give this instruction.
Give alternative A if the defendant is charged with ﬁling a false tax return or
document. Give alternative B if the defendant is charged with failing to ﬁle a tax
return. The court may give both alternatives if appropriate based on the evidence.
• Reliance on Advice Defense. United States v. Mitchell (4th Cir. 1974) 495
F.2d 285, 287–288; United States v. Platt (2d Cir. 1970) 435 F.2d 789,
792–793; Bursten v. United States (5th Cir. 1968) 395 F.2d 976, 981; United
States v. Duncan (6th Cir. 1988) 850 F.2d 1104, 1117, disapproved on other
grounds by Schad v. Arizona (1991) 501 U.S. 624, 634–635 [111 S.Ct. 2491,
115 L.Ed.2d 555]; United States v. Phillips (7th Cir. 1954) 217 F.2d 435, 440;
United States v. Claiborne (9th Cir. 1985) 765 F.2d 784, 798; see also Federal
Jury Practice and Instructions, Criminal (5th ed.) § 67.25.
• Reliance Must Be Actual and in Good Faith. United States v. Segal (8th Cir.
1988) 867 F.2d 1173, 1179; United States v. Duncan (6th Cir. 1988) 850 F.2d
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes
Against Governmental Authority, § 128.
2862–2899. Reserved for Future Use
CALCRIM No. 2861 TAX CRIMES