ELBERT L. HATCHETT, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1544

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1-36) is reported at
918 F.2d 631.  The opinion of the district court (Pet. App. 37-47) is
not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 7,
1990.  A petition for rehearing was denied on February 8, 1991.  Pet.
App. 48.  The petition for a writ of certiorari was filed on April 8,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court properly limited the testimony of a
witness in connection with petitioner's proffered defense of advice of
counsel, in a case where the witness neither recommended that
petitioner take the actions for which he was prosecuted nor advised
petitioner that those actions were legal.

   2. Whether it was permissible under now-repealed 18 U.S.C. 3651
(1982) to require petitioner, as a condition of his probation, to
fulfill his legal obligation to pay his outstanding taxes.

                               STATEMENT

   After a jury trial in the United States District Court for the
Eastern District of Michigan, petitioner was convicted on four counts
of failure to pay federal income taxes (for 1982, 1983, 1984, and
1986), in violation of 26 U.S.C. 7203.  The court sentenced petitioner
to three consecutive one-year sentences, a five-year term of
probation, and a $100,000 fine.  As a condition of his probation,
petitioner was ordered to pay all his outstanding taxes.  The court of
appeals affirmed.  Pet. App. 1-36.

   1. Petitioner is a well-compensated attorney who for years has
failed to keep up with his federal income tax obligations.  The
Internal Revenue Service determined in the late 1970s that petitioner
owed back taxes of $107,454.14 for the years 1973-1977.  In the summer
of 1978, petitioner entered into an agreement with the IRS pursuant to
which he would pay $750 per week -- $500 for his 1978 estimated tax
payments and $250 for his delinquent taxes.  Pet. App. 2.  After some
of petitioner's checks to the IRS were dishonored, the IRS terminated
the agreement at the end of 1978.  Id. at 16.

   During subsequent years, petitioner filed tax returns indicating a
substantial amount of income and acknowledging the existence of
substantial tax liabilities, but making little or no payment.  Pet.
App. 2.  For example, during the five years from 1982 through 1986,
petitioner filed returns indicating a total gross income of $2,910,199
(more than $580,000 a year) and acknowledging a tax liability of
$1,007,615.  During that period, however, he made only a single
payment of $100,000 toward his tax liability.  Moreover, only one of
petitioner's returns during that period was filed in a timely manner:
three were filed one year late, and a fourth was filed two years late.
 Id. at 5-6.  Petitioner was indicted on October 28, 1988.

   2. At trial, petitioner contended that he did not have the intent
required for the offense of failure to pay taxes, because he had
relied on the advice of a long-time friend who was also an attorney.
The friend and attorney, Franklin Gettelson, testified that he had
spoken with petitioner in late 1979 or early 1980 about how petitioner
should deal with his tax problems.  Pet. App. 61-62.  Gettelson
testified that he had told petitioner at that time that "the best
thing (petitioner) could do was to file the tax returns which were
then due and to wait and pay the tax (when) he was able to resolve all
of the problems he was having." Id. at 65.  Gettelson added that he
had advised petitioner that that course of action, although a "sound
position," id. at 70, would subject him to penalties under the tax
code:  "I explained to him it would be expensive in terms of interest
and penalties.  I further explained to him that the interest would be
deductible when he paid it and there would be some relief in that
regard but that it would cost substantially, substantially more to
defer the payment." Id. at 66.  On cross-examination, Gettelson
clarified that he had not advised petitioner to withhold payment of
taxes or estimated tax payments during the years for which petitioner
was indicted.  Id. at 43.  /1/

   At one point in Gettelson's testimony, petitioner's counsel asked
what petitioner had told Gettelson in the course of their 1979 or 1980
discussions.  The prosecutor objected on grounds of hearsay and
relevance.  Pet. App. 62.  The prosecutor pointed out that the
conversation in question occurred in 1979 or 1980, and the indictment
charged tax violations beginning in 1983.  She contended that a proper
foundation had not been laid for the evidence in question because "it
is too far removed from the time frame of the indictment for reliance
on counsel at that time to be an appropriate predicate for the
hearsay." Id. at 63.

   Petitioner's counsel conceded at the outset that the testimony
would be hearsay.  She argued, however, that it was admissible because
it was not being offered as evidence of the truth of the matters
contained in petitioner's statements to Gettleson, but rather to show
that petitioner had disclosed his tax situation to Gettleson.  Counsel
argued that the testimony should be admitted because adequate
disclosure is an element of the advice-of-counsel defense on which
petitioner was relying.  Pet. App. 63-64.

   The prosecutor responded that testimony about advice petitioner
received in 1980 could not form the basis for a defense of advice of
counsel with respect to a course of conduct beginning in 1983.  She
therefore renewed her objection to Gettleson's testimony on that
ground.  Pet. App. 64.  The district court sustained the government's
objection, subject to reconsideration if petitioner wished to submit
further briefing on the point.  Id. at 64-65.

   3. After trial, petitioner renewed his challenge to the exclusion
of the testimony, arguing that the decision of the district court
conflicted with the Eleventh Circuit's decision in United States v.
Eisenstein, 731 F.2d 1540 (1984).  The district court rejected that
argument for three reasons.  Pet. App. 37-47.

   First, the court observed that Gettleson's testimony, unlike the
testimony in Eisenstein, was the only evidence offered to prove the
disclosures.  Pet. App. 40-42.  The court noted that although
Gettleson's testimony "may have been admissible for the limited
purpose of showing (petitioner) made a disclosure, it was not
admissible to prove the facts constituting the disclosure." Id. at 41.
 There was no evidence submitted at trial, the court explained, "to
support the conclusion the disclosure to which attorney Gettleson was
to testify was a disclosure of the relevant facts." Ibid.  That
element of the advice-of-counsel defense could be satisfied, the court
concluded, only if the jury "had * * * considered as truthful the
out-of-court statements which attorney Gettleson was asked to recite."
Id. at 41-42.  Because there was no evidence to provide the factual
basis for the disclosure, the statements by Gettleson, unlike those in
Eisenstein, "were necessarily offered not only to prove that
disclosure was made, but also to prove the truth of the out-of-court
statements" that petitioner sought to elicit from Gettleson.  Id. at
42.  Therefore, the court concluded, the testimony in question was
inadmissible on hearsay grounds.  The court added that its ruling on
the admission of the statements might have been different if counsel
had indicated that the factual basis underlying the disclosure would
be provided through a different witness, or even if counsel had asked
that the statements be admitted subject to a cautionary instruction
limiting their use to showing that the disclosure was made.  Ibid.

   Second, the district court noted that it had excluded the evidence
not only because it was hearsay, but also because it was irrelevant,
and that petitioner had failed to show how the evidence was relevant.
Pet. App. 40, 47 n.3.  The court explained that it had found the
evidence irrelevant "because it called for testimony regarding the
time period of 1979-1980, a period not relevant to the charges of
willful non-payment of taxes commencing in 1982." Id. at 47 n.3.

   Finally, the district court concluded that even if the exclusion of
Gettleson's testimony about petitioner's disclosures was error, the
error was harmless, because "there was absolutely no evidence to
suggest Mr. Gettleson advised (petitioner) not to pay his taxes in the
years in question." Pet. App. 42-43.  Because Gettleson never
specifically advised petitioner to follow the course of conduct he
ultimately pursued, the court held that the advice-of-counsel defense
would not have been available even if the testimony had been admitted.
 Id. at 43-44.

   4. Petitioner raised numerous contentions on appeal, but only two
are relevant to this petition:  (1) his claim that the district court
erred in excluding Gettleson's testimony;  and (2) his claim that the
district court did not have the authority to require him to pay back
taxes as a condition of his probation.  The court of appeals rejected
both claims.

   On the evidentiary point, the court of appeals rejected
petitioner's argument for two reasons.  First, it distinguished
Eisenstein by noting that the facts to which the attorney wished to
testify in Eisenstein were independently narrated to the jury by one
of the defendants.  Thus, in Eisenstein there was admissible evidence
from which the jury could assess the credibility of the statements
made to the lawyer.  In this case, by contrast, no admissible evidence
was offered to show that the disclosures made to Gettleson were true
or that petitioner believed them to be true.  Moreover, there was no
suggestion from counsel that other evidence would be forthcoming to
provide a proper foundation for the admission of petitioner's
out-of-court statements to Gettleson.  Under these circumstances, the
court of appeals held, the district court did not abuse its discretion
by excluding the statements.  Pet. App. 14-16.

   The court further found that the exclusion of the evidence "could
not have undermined the jury's ability to determine the strength of
the advice of counsel defense." Pet. App. 16.  After summarizing the
testimony that petitioner was permitted to present, the court
concluded that it "was sufficient for a jury to determine whether
(petitioner) had made a full disclosure to Gettleson of all pertinent
facts." Id. at 17.  The court noted that the government had not argued
to the jury that petitioner's advice-of-counsel defense should fail
for lack of full disclosure, but rather that it should fail because
the advice had not been sufficiently specific to justify the inference
that petitioner had relied on that advice when he engaged in the
conduct for which he was prosecuted.  Accordingly, the court
concluded, there was little or no risk that the exclusion of the
evidence affected the verdict.  Ibid.  /2/

   The court of appeals also rejected petitioner's argument that it
was improper to order petitioner to pay back taxes as a condition of
his probation.  Pet. App. 28-30.  The court acknowledged that 18
U.S.C. 3651 (1982) allowed a court to order restitution as a condition
of probation only for the counts on which a defendant had been
convicted.  It found that the district court's order requiring
petitioner to pay all his back taxes was lawful, however, because it
was not a restitutionary order;  instead, the court held, the order
was "no more than" a requirement that petitioner "comply with the law
as a condition of probation." Pet. App. 29.  /3/

                               ARGUMENT

   1. Petitioner contends (Pet. 14-28) that the district court erred
in excluding a portion of Gettleson's testimony that petitioner claims
was essential to his advice-of-counsel defense.  The exclusion of that
evidence was not reversible error, for several reasons.

   a. First, the district court was correct in excluding Gettleson's
testimony about petitioner's disclosures on hearsay grounds.  It is
true, as the district court noted, that Gettleson's testimony
regarding petitioner's disclosures to him might have been admissible
if it were offered solely to show that the statements were made.  As
the district court pointed out, however, petitioner did not offer to
have the jury instructed that the testimony could be used only for a
nonhearsay purpose.  Moreover, if the testimony had been limited to
that purpose, the district court could properly have found it to be
irrelevant.

   Gettleson's testimony about petitioner's disclosures to him was
relevant only to petitioner's advice-of-counsel defense.  In order to
raise that defense, petitioner had to show that his disclosures to
Gettleson were accurate and complete, or at least that petitioner
believed them to be so.  See Williamson v. United States, 207 U.S.
425, 453 (1908) (approving an instruction that in order to be entitled
to the advice-of-counsel defense, the client must "fully and honestly
lay() all the facts before his counsel");  E. Devitt & J. Blackmar,
Federal Jury Practice and Instructions Section 14.12 (3d ed. 1977)
(standard instruction on advice-of-counsel defense requires the
defendant to make "a full and accurate report to his attorney of all
material facts of which he has the means of knowledge").  As to the
accuracy of the disclosures and petitioner's belief in their accuracy,
however, Gettleson's testimony was clearly hearsay.  Because
petitioner offered no other evidence from which the jury could assess
the accuracy and completeness of petitioner's statements to Gettleson,
the district court and the court of appeals correctly concluded that
in effect Gettleson's testimony was being offered not only for the
proper purpose of showing that the statements were made, but also for
the improper purpose of proving the truth of those statements.  See
Pet. App. 15-16.

   Petitioner overstates the breadth of the court of appeals' ruling
on this point.  The court did not suggest that testimony by an
attorney regarding disclosures made to him by a defendant should
always be excluded on hearsay grounds.  To the contrary, the court
quoted the district court's observation that if defense counsel had
asked that the testimony be admitted with a limiting instruction, or
had indicated that another witness would provide a foundation for the
testimony about the disclosure, Gettleson's testimony might have been
admitted.  Pet. App. 15.  The court of appeals held the evidence
inadmissible only because the court agreed with the district court
that, under the circumstances of this case, "Gettleson's testimony was
offered to prove the truth of (petitioner's) out-of-court disclosures,
and in the absence of a proffer by (petitioner's) counsel of other
evidence that could prove the truth of the disclosures, the court
properly ruled that (petitioner's) declarations came within the
definition of hearsay and were inadmissible." Id. at 15-16.  /4/

   The court of appeals' decision does not conflict with United States
v. Eisenstein, 731 F.2d 1540 (11th Cir. 1984), on which petitioner
relies.  In Eisenstein, the defendant who sought legal advice
testified personally about his statements to the attorney.  731 F.2d
at 1546.  It was therefore likely that the attorney's testimony would
be used only for the proper, non-hearsay purpose of showing that the
statements were made, and unlikely that the attorney's testimony would
be used by the jury for the improper purpose of establishing the truth
of the statements or the defendant's belief in their truth.  In
Eisenstein, then, unlike in this case, there was no significant risk
that the attorney's testimony would be called upon to serve two
distinct functions, one of which was illegitimate.

   Petitioner argues (Pet. 25 n.15) that Eisenstein is not
distinguishable from the present case on the ground cited by the
district court and the court of appeals, because in Eisenstein neither
defendant had testified before the attorney was called to testify.
That fact does not undermine the distinction between this case and
Eisenstein, however, because neither court in this case premised its
ruling on the order of proof.  Instead, the courts in this case based
their analysis on the absence of any independent proof regarding the
accuracy of the disclosures anywhere in the record, as well as the
absence of any proffer by petitioner that such evidence would be
forthcoming at any point in the trial.  See Pet. App. 15, 42.  /5/

   b. Second, the district court properly excluded Gettleson's
testimony about petitioner's disclosures to him because it was
irrelevant.  See Pet. App. 40, 47 n.3, 63-64.  Nothing in Gettleson's
testimony indicated that his advice was applicable to future years.
Instead, the testimony suggested that petitioner spoke with Gettleson
not to secure general advice for future tax problems, but to ascertain
how to deal with his current liabilities.  For example, Gettleson
testified that the consultation in 1979 or 1980 related to taxes owed
"at that time," id. at 62, and that the advice he rendered dealt with
"the tax returns which were then due," id. at 65.  As the government's
cross-examination made clear, Gettleson never advised petitioner to
take the specific actions for which he was prosecuted.  App., infra,
1a-9a.  /6/ Therefore, even if the hearsay objection did not justify
exclusion of Gettleson's testimony, the district court properly
excluded the testimony for lack of relevance.

   c. Third, it is clear from the record that the testimony introduced
in this trial would have been inadequate to make out a defense of
advice of counsel, even if the advice had been contemporaneous with
petitioner's conduct.  Reliance on the advice of counsel is material
to specific intent crimes because it may vitiate the willfulness that
is an element of such crimes.  /7/ The advice-of-counsel defense rests
on the common-sense notion that a factfinder reasonably may doubt that
the government has proved a "voluntary, intentional violation of a
known legal duty," Cheek v. United States, 111 S. Ct. 604, 610 (1991)
(quoting United States v. Bishop, 412 U.S. 346, 360 (1973)), if the
defendant's attorney, after full disclosure of the relevant facts,
advised the defendant that the challenged course of action would be
legal.  That advice can create the sort of misunderstanding of the law
that defeats the government's effort to prove actual knowledge of the
legal duty in question, see Cheek, 111 S. Ct. at 610-611.
Accordingly, for this defense to apply, the advice must be that the
proposed course of action is legal.

   Petitioner was convicted of failure to pay taxes.  To make out an
advice-of-counsel defense, he therefore needed to establish that his
attorney advised him that failure to pay taxes did not violate any
applicable legal rules.  Gettleson's testimony, however, shows that he
explicitly advised petitioner that his conduct was unlawful.  See Pet.
App. 66 ("I explained to him (that) it would be expensive in terms of
interest and penalties.").  The advice in this case, then, was not
advice that a proposed course of action was legal;  rather, it was
advice that a proposed course of action was tactically preferable.
/8/ Advice of that sort is not likely to lead a criminal defendant to
believe his conduct is lawful.  /9/ It is therefore inadequate to
establish a valid advice-of-counsel defense.  For that reason, the
district court could properly have barred all of Gettleson's testimony
going to the advice-of-counsel defense.

   d. Finally, even if it was error for the district court to exclude
the evidence at issue here, the error was harmless.  As the court of
appeals concluded, the exclusion of that portion of Gettleson's
testimony "could not have undermined the jury's ability to determine
the strength of the advice of counsel-defense." Pet. App. 16.
Although Gettleson was not allowed to relate some of petitioner's
statements to him, he repeatedly was allowed to testify about facts he
knew as a result of his conversations with petitioner, thus allowing
him to provide the jury a fair picture of the extent of petitioner's
disclosures to him.  For example, Gettleson testified that he knew the
amount of taxes owed and how the deficiency had occurred, that
petitioner had been audited, and that petitioner had made some
payments.  Id. at 16, 62.  On the other hand, Gettleson acknowledged
that he did not know that petitioner had been in an installment
program, that the IRS had terminated because petitioner wrote bad
checks or that petitioner was not then making current estimated tax
payments.  Id. at 16-17.

   Moreover, the government did not argue to the jury that
petitioner's defense should fail because of nondisclosure.  Rather,
the government's argument was that Gettleson's advice was not specific
enough, with respect to the conduct charged in the indictment, to
undermine the government's proof of willfulness.  Pet. App. 17.  For
that reason, as the court of appeals explained, it was highly unlikely
that the exclusion of petitioner's statements had any effect on the
way the jury viewed the case.  Ibid.

   2. Petitioner devotes substantial attention (Pet. 14-23) to the
argument that the district court's evidentiary ruling in this case
denied petitioner his constitutional right to call witnesses and
present a defense.  /10/ The short answer to that claim is that the
Constitution does not trump ordinary applications of the rules of
evidence and require that those rules give way whenever they impede a
defendant's effort to present his case.  See Michigan v. Lucas, No.
90-149 (May 20, 1991), slip op. 4;  Rock v. Arkansas, 483 U.S. 44,
55-56 & n.11 (1987);  Marshall v. Lonberger, 459 U.S. 422, 438 n.6
(1983);  Washington v. Texas, 388 U.S. 14, 23 n.21 (1967).
Countervailing interests -- most importantly, the integrity of the
truth-finding process -- justify applying rules of evidence to
restrict the manner in which the defense presents its case, just as
those rules restrict the manner in which the government may prove its
case.

   In this case, the district court applied familiar hearsay
principles in a traditional fashion;  the court simply sought to avoid
the risk that the jury would make improper use of defense evidence
that the government would not have a meaningful opportunity to
challenge through cross-examination.  Nothing in the district court's
ruling prevented petitioner from seeking to show that he did not have
the specific intent to violate the law.  And, assuming petitioner
could have shown that Gettleson's testimony was relevant, he
presumably could have obtained its admission by offering admissible
evidence as to the truth (or his belief in the truth) of the contents
of the disclosures petitioner allegedly made to Gettleson.  The
district court's ruling that petitioner failed to satisfy that basic
foundational requirement is not constitutionally suspect simply
because the effect of that ruling was to bar the admission of evidence
that was offered as part of petitioner's defense.

   3. Petitioner also contends (Pet. 28-30) that the now-repealed
version of the Federal Probation Act, 18 U.S.C. 3651 (1982), did not
authorize the district court to impose as a condition of petitioner's
probation a requirement that petitioner pay all his back taxes.
Because Section 3651 has been repealed and does not apply to offenses
committed after October 31, 1987, see Pub. L. No. 98-473, Section
212(a)(1) and (2), 98 Stat. 2031, this issue is not of continuing
importance and thus does not warrant review by this Court.  In any
event, the decision below is correct and its rationale does not
conflict with the rationale of the decisions cited in the petition.

   District courts imposing terms of probation under former Section
3651 enjoyed broad discretion in setting the conditions of probation.
Section 3651 provided that the court "may * * * place the defendant on
probation for such period and upon such terms and conditions as the
court deems best." See Burns v. United States, 287 U.S. 216, 220-221
(1932) (noting that, "(t)o accomplish the purpose of the statute, an
exceptional degree of flexibility in administration is essential").
The sentencing court's discretion was limited only by the requirement
that the terms and conditions of probation bear a reasonable
relationship to the rehabilitation of the accused, the protection of
the public, deterrence of future misconduct by the probationer or
others, warranted punishment, or some combination of those objectives.
 United States v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979).

   A judge would not violate the terms of Section 3651 by imposing as
a condition of probation a requirement that a defendant comply with
the law.  Cf. Burns, 287 U.S. at 218 (noting without criticism a
condition requiring compliance with laws).  The condition in this case
-- that petitioner comply with his legal obligation to pay federal
income taxes -- does nothing more, and in fact is less onerous than a
general requirement of compliance with the law.  Moreover, in light of
petitioner's convictions for failure to pay taxes, this condition
seems particularly fitting.  Our tax system depends on the voluntary
assessment and payment of taxes.  Failure to pay taxes that are
acknowledged to be due and owing undermines that system;  if the
government were forced to resort to litigation against every citizen,
the system would fail.  See Pet. App. 78-82 (letters by petitioner
indicating that he would pay taxes only after litigation).  A
requirement that petitioner comply with his legal duty to pay the
taxes he already owes is thus entirely legitimate.  See United States
v. Schiff, 876 F.2d 272, 275 (2d Cir. 1989) (upholding condition of
probation requiring payment of "all legally required" income taxes);
United States v. Merritt, 639 F.2d 254, 256 (5th Cir. 1981) (upholding
a requirement that defendants pay taxes falling due during the
probationary period).

   Petitioner does not discuss the language of the statute or the
broad construction the courts have given it.  Instead, he notes that
one paragraph of Section 3651 specifically authorized restitution as a
condition of probation, and that this paragraph did not authorize the
imposition of restitution for crimes for which a defendant had not
been convicted.  Accordingly, he argues, the order in this case
violated Section 3651.  Pet. 28-29.  The flaw in this argument is that
it focuses on only one provision of Section 3651.  It fails to address
the broad introductory language of Section 3651, which provides ample
support for the order entered in this case.

   This flaw also demonstrates why the rationale of the decision below
does not conflict with the reasoning of the four circuit court
decisions on which petitioner relies.  To be sure, two of those cases,
United States v. Green, 735 F.2d 1203, 1205 (9th Cir. 1984), and
United States v. McDonough, 603 F.2d 19, 24 (7th Cir. 1979), reversed
trial court orders conditioning probation on the payment of taxes due
for years other than the years of conviction.  Those courts, however,
assumed that the orders were entered only under the restitution
provision and did not consider whether the orders could have been
upheld under the general language that introduced Section 3651.  Thus,
while there is a difference in outcome among the decided cases, there
is no conflict in the rationale of the decisions, which addressed
different issues under Section 3651.

   The other two cases cited by petitioner are farther afield.  One of
them, United States v. Johnson, 700 F.2d 699 (11th Cir. 1983), is a
nontax case that, like the Green and McDonough cases discussed above,
stated that a court could not order restitution under Section 3651 for
crimes for which the defendant had not been convicted.  The final
case, United States v. Taylor, 305 F.2d 183 (4th Cir.), cert. denied,
371 U.S. 894 (1962), although somewhat ambiguous in its reasoning
concluded only that a district judge could not deprive a defendant of
his right to contest the amount of taxes he owed, agreeing that the
defendant could be required to pay "all taxes and penalties * * *
determined to be due and collectible." 305 F.2d at 188.  /11/
Accordingly, the decisions cited by petitioner reached results
contrary to the result in this case only because they relied on a
portion of Section 3651 other than the one relied on below.  Because
the result below is correct and does not conflict with the reasoning
of any other court, and because Section 3651 does not apply to any
offenses committed after October 31, 1987, this issue does not warrant
further review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   SHIRLEY D. PETERSON

      Assistant Attorney General

   ROBERT E. LINDSAY

   ALAN HECHTKOPF

   BRETT DIGNAM

      Attorneys

   MAY 1991

   /1/ The portion of Gettleson's testimony that is not included in
the appendix to the petition is set forth as an appendix to this
brief.

   /2/ Judge Jones dissented on the evidentiary point, arguing that
the decision conflicted with Eisenstein and that it was irrelevant
that the matters to be related by Gettleson had not independently been
established, because it was up to the jury to evaluate the truth of
the disclosures.  Pet. App. 30-33.

   /3/ Judge Jones also dissented on the probation issue, noting that
other courts had held that it was impermissible to impose conditions
on probation that required restitution for crimes other than those for
which the defendant had been convicted.  Pet. App. 33-36.

   /4/ For that reason, petitioner is incorrect in his broad
contention (Pet. 23) that the effect of the court of appeals' decision
is "to void the advice of counsel defense sub silentio." The court of
appeals did not hold that evidence regarding statements made to and
advice obtained from a lawyer is admissible only if there is
corroborating evidence in the record regarding the statements and
advice.  The court simply held that a particular out-of-court
statement could be used only for non-hearsay purposes, and that it
could be excluded if it was likely to be used for an impermissible
purpose.

   In this case, petitioner would be in a position to know whether his
disclosures to Gettleson were accurate and complete, or at least
whether he believed them to be so (and thus justifiably could rely on
the advice he received).  Therefore, petitioner could have testified,
even without corroboration from Gettleson, about the disclosures he
made to Gettleson (assuming the court had found that the disclosures
overcame the prosecutor's relevance objection).  Petitioner also might
have been able to establish the accuracy of his disclosures to
Gettleson through other admissible evidence -- perhaps even through
Gettleson's testimony, taken in conjunction with other evidence
regarding the disclosures.  Contrary to petitioner's suggestion,
nothing in the decision of either court below would foreclose such a
result.  The district court and the court of appeals held only that,
in the context in which Gettleson's evidence was offered, it was
apparent that that evidence would be taken to vouch for the accuracy
of petitioner's disclosures.

   /5/ Petitioner relies (Pet. 24) on several other cases that
allegedly conflict with the decision of the court of appeals in this
case.  United States v. McLennan, 563 F.2d 943 (9th Cir. 1977), cert.
denied, 435 U.S. 969 (1978), the only other court of appeals case
cited, is clearly inapposite.  In that case, the court held admissible
the government's evidence that the lawyer had told the defendant that
his proposed course of action was unlawful.  That evidence was
obviously admissible to rebut the defendant's advice-of-counsel
defense, because the fact that the lawyer had given negative advice
was highly relevant to the claim of good faith reliance on advice of
counsel, regardless of whether the advice was correct.  The three
state court cases on which petitioner relies likewise do not address
the issue presented here.  In two of them, Salmen v. Kamberos, 206
Ill. App. 3d 686, 565 N.E.2d 6 (1990), and Tate v. Connel, 3 Ariz.
App. 534, 416 P.2d 213 (1979), the defendant testified, so those cases
are subject to distinction on the same ground as Eisenstein.  In the
third case, Morin v. Moreau, 112 Me. 471, 92 A. 527 (1914), the
testimony at issue was the defendant's testimony, so again there was
no risk that the jury would use evidence from an attorney for hearsay
purposes.

   /6/ See Bisno v. United States, 299 F.2d 711, 720 (9th Cir. 1961)
(noting that "advice of counsel is no defense in a situation in which
the accused is generally advised by counsel but counsel is not shown
to have advised the specific course of action with which the accused
is charged"), cert. denied, 370 U.S. 952 (1962);  United States v.
McLennan, 563 F.2d at 946.

   /7/ See, e.g., Pet. 23;  United States v. Duncan, 850 F.2d 1104,
1117 (6th Cir. 1988) (explaining that a "defense of good faith
reliance upon * * * counsel is a critical circumstance that may be
dispositive of the central issue of willfulness");  Eisenstein, 731
F.2d at 1543 ("A defendant * * * can attempt to negate proof of
specific intent by establishing the defense of good faith reliance on
advice of counsel.");  United States v. McLennan, 563 F.2d 943, 946
(9th Cir. 1977) (agreeing with defendant's claim that good faith
reliance upon the advice of counsel can negate fraudulent intent);
see also Williamson v. United States, 207 U.S. 425, 453 (1908)
(approving a jury instruction stating that someone "could not be
convicted of crime which involves willful and unlawful intent" if he
"in good faith and honestly follows (the) advice (of his counsel),
relying upon it and believing it to be correct, and only intends that
his acts shall be lawful").

   /8/ See, e.g., Pet. App. 71 ("I felt if (the IRS) reduced (its)
claim to judgment a district judge would have to look reasonably on a
payment plan.");  id. at 72 (agreeing with the suggestion that "a
judge would be more reasonable in affording an installment payment
plan than the IRS").

   /9/ Gettleson's testimony can be read to suggest that Gettleson
told petitioner that his proposed conduct, although subject to civil
penalties, would not result in criminal prosecution.  See Pet. App.
70.  But even if Gettleson's testimony is read in that manner, it does
not buttress petitioner's proposed advice-of-counsel defense, because
it does not undermine the requisite intent to violate a known legal
duty.  In fact, by referring to the penalties petitioner would incur
by failing to make timely tax payments, Gettleson was making clear to
petitioner that he had a legal duty to pay his taxes on a timely
basis, and that his proposed course of action would violate that duty.
 In specific intent crimes, the only knowledge the government must
prove is that the act in question violates the law;  it need not also
prove knowledge that the act is criminal.  See, e.g., Liparota v.
United States, 471 U.S. 419, 425 n.9 (1985);  United States v. Freed,
401 U.S. 601, 614-615 (1971) (Brennan, J., concurring).

   /10/ The court of appeals did not address petitioner's
constitutional argument, which appears to have surfaced for the first
time in petitioner's petition for rehearing before the court of
appeals.  Even there, petitioner devoted only one sentence to the
argument and did not even cite an applicable constitutional provision.
 See Pet. App. 95 ("The denial of such a fundamental right (i.e., the
alleged abolition of the defense of advice of counsel) deprives the
defendant of due process under the Fourteenth Amendment.").  It
therefore appears that petitioner has not properly preserved his
constitutional claim for review.

   /11/ Relying on Taylor, the court of appeals imposed a similar
limitation on the order in this case.  See Pet. App. 30.

   APPENDIX