-32- years. We also believe the probative value of this evidence is not outweighed by the danger of unfair prejudice or confusion. We guard against any such danger by considering the evidence only for the purpose of determining petitioner's intent, and by reminding ourselves that there is no evidence that petitioner's use of the Bahamian bank account was itself illegal. 4. Effect of Petitioner's Failure To Testify Petitioner did not testify at trial, or otherwise offer an explanation of his failure to file. On brief, petitioner attributes these omissions to his unwillingness to waive his Fifth Amendment right against self-incrimination. Petitioner therefore asserts that we may not draw any adverse inference from his silence. As an initial matter, we note that because petitioner did not appear at trial, petitioner did not actually claim the Fifth Amendment privilege. Therefore, we did not have the opportunity to consider whether petitioner would have been entitled to assert the privilege, either generally or in response to specific questions. Nevertheless, because respondent did at one time conduct a criminal investigation of petitioner with respect to some of the years in issue, we will give petitioner the benefit of the doubt and assume he validly asserted the Fifth Amendment privilege. Petitioner is of course correct that a prosecutor may not comment on, or tell a jury that it may draw an adverse inference from, a defendant's Fifth Amendment silence in a criminal case.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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