Submitted: Oct. 24, 2013.
[Copyrighted Material Omitted]
John R. Murphy, Rapid City, SD, for Appellant.
Kevin Koliner, AUSA, Sioux Falls, SD, for Appellee.
Before LOKEN, GRUENDER, and SHEPHERD, Circuit Judges.
GRUENDER, Circuit Judge.
A jury found Edward J.S. Picardi guilty of thirteen counts of federal tax related offenses. On appeal, Picardi challenges the district court's  (1) replacement of two
jurors with alternate jurors; (2) exclusion of a defense exhibit; (3) limitation of a defense witness's testimony; and (4) refusal to give a proffered theory-of-defense instruction. We affirm.
Picardi was a surgeon in western South Dakota. In the mid-1990s, Picardi became a client of Anthony Kritt, an attorney and a certified public accountant. From 1997 until 2003, Picardi participated in an " employee leasing program" promoted and run by Kritt that required Picardi to enter a contract with Montrain Services, Ltd., an Irish corporation, to lease his services as a physician. Montrain Services contracted with Professional Leasing Services, Inc., a Nevada corporation that was operated by Kritt, to provide Picardi's services to Professional Leasing Services. In turn, Professional Leasing Services contracted with Picardi's medical group to " lease" Picardi's services to it.
Picardi's income from this program was distributed in a manner designed to avoid taxes. Picardi's medical group paid Professional Leasing Services a " leasing fee" for Picardi's medical services. Professional Leasing Services then paid Picardi a small portion of this " leasing fee" as wages, which Picardi reported as income on his tax returns. In a series of complex transactions, the other, larger portion of the " leasing fee" was transferred into foreign financial accounts set up for Picardi. Picardi did not report this portion as income on his federal income tax returns from 1999 until 2003. On paper, the unreported portion of Picardi's income was " deferred compensation" inasmuch as he was supposed to be unable to access it until he retired or turned seventy years old. Picardi did, however, access and use the funds through another series of complex transactions made to look like loans. Picardi further reduced his taxes by categorizing the portion of his income sent overseas as " professional leasing services" expenses on his medical practice's corporate income tax returns. In April 2003, Picardi withdrew from the " employee leasing program," but he continued to maintain his interest in the foreign accounts containing his " deferred compensation." For the 2004 to 2008 tax years, Picardi failed to disclose to the Internal Revenue Service (" IRS" ) his financial interest in the foreign accounts.
A federal grand jury returned a superseding indictment charging Picardi with five counts of income tax evasion, in violation of 26 U.S.C. § 7201; five counts of filing a false return, in violation of 26 U.S.C. § 7606(1); and three counts of failing to file with the IRS a required form regarding his interests in foreign accounts, in violation of 31 U.S.C. §§ 5314 and 5322 and 31 C.F.R. §§ 103.24 and 103.27(c). Picardi proceeded to a jury trial. At trial, Picardi claimed that he had a good faith belief that the " deferred compensation" component of the " employee leasing program" was legal and that he relied upon the expert and ...