Hans C. Sherrer - Page 32




                                        -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.             



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