-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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