Marc Weinstein Examines Potential Arguments in Tom Goldstein Appeal with Law360

Marc Weinstein spoke with Law360 about key appellate arguments in former U.S. Supreme Court advocate Tom Goldstein’s criminal tax case following his conviction on 12 counts involving tax evasion, false tax returns, unpaid taxes and making false statements to lenders.

Goldstein, known for his pioneering U.S. Supreme Court advocacy and the creation of SCOTUSblog, is expected to focus his appeal on several aspects of the proceedings, including the exclusion of text messages related to gambling income and changes to jury instructions concerning aiding-and-abetting liability.

“Having read his papers, I do think he’s got something. ... It does seem like he’s got a decent argument,” Weinstein said.

Addressing the exclusion of certain text messages concerning gambling income, Weinstein explained why the evidence may have been important to Goldstein’s defense. The messages, which Goldstein argued were relevant to his state of mind regarding gambling winnings, losses and debts, were excluded from trial on hearsay grounds.

“It seems [like a] pretty standard, non-hearsay reason to be admitting those, because they go to his state of mind at the time,” Weinstein said. “It kind of guts a criminal defense a little bit if you can’t get in [messages] that support what he says his intent was at the time.”

Weinstein also discussed Goldstein’s argument that jurors may have convicted him under an aiding-and-abetting theory without being instructed on the offense’s required elements, noting that Fourth Circuit precedent generally requires more than simply providing jurors with statutory language.

“There’s no way to know what the jury decided, and so, it may be that the jury found him guilty on the aiding and abetting theory without being instructed what the elements are,” Weinstein said. “And that’s a problem, in my mind.”

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