U.S. v. Salisbury, 2010-1 U.S.T.C. P50,224 (6th Cir. 2010)
Salisbury made large profits fraudulently selling guns owned by a private museum. He was charged with wire fraud, money laundering, and conspiracy. He was also charged with four counts of evasion for his willful failure to pay taxes on his profits.
The jury found him not guilty of all charges except two lesser included offenses pursuant to 26 U.S.C. Section 7203.
Salisbury appealed the conviction and sentence. He argued that the Court improperly limited the testimony of his expert. Salisbury wanted his expert to testify as to Salisbury's willfulness.
The Court found that Rule 704(b) prohibits experts from testifying as to the "ultimate issue". Salisbury's willfulness was the ultimate issue for the trier of fact.
Note: Salisbury should have argued below that the expert would express his opinion whether Salisbury understood certain accounting and tax principals.
This was not done until the appeal was filed. Salisbury also argued that the agents testified as to the ultimate issue. The Court found that the defense invited the answers or failed to properly object.
Salisbury also challenged his sentence. Salisbury noted that the guidelines treated misdemeanor tax offenses the same as felony tax offenses. The Court found that the sentence was appropriate in view of the tax loss that exceeded $1,000,000.
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