United States v. Edward J.S. Picardi, 739 F.3d 1118

Picardi, a western South Dakota surgeon, participated (1997–2003) in an employee leasing program via attorney/Kritt involving Montrain Services (Irish) and Professional Leasing Services (Nevada).
Leasing scheme routed Picardi’s income to foreign accounts; a large portion remained undeclared from 1999–2003 while a part was paid as wages and reported as income.
From 2004–2008, Picardi did not disclose his financial interest in foreign accounts to the IRS.
A superseding indictment charged five counts of income tax evasion, five counts of filing false returns, and three counts of failing to file FBAR-related forms.
Picardi claimed good-faith belief in the legality of the deferred-compensation arrangement and relied on Kritt’s advice; the jury convicted on all thirteen counts and he was sentenced to 60 months.
On appeal, Picardi challenges juror replacement, exclusion of a defense exhibit, limitation of a defense witness, and a proposed theory-of-defense instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Juror replacement – error required reversal?	Picardi argues replacement of S.R. and M.K. without his presence violated rights.	Picardi contends district court abused discretion; replacement affected fairness.	No plain error; substitutions were proper and non-prejudicial.
Exclusion of Exhibit 621 under Rule 403	Exhibit supported his good-faith and reliance defenses.	Exhibit was marginally probative and likely confusing; proper Rule 403 balancing.	Exclusion affirmed; not reversible error.
Limitation on Brodnik testimony	Re-direct sought relevant evidence of reliance on counsel defense.	Hearsay and irrelevance to elements; proper exclusion.	Limitation affirmed; testimony was inadmissible hearsay.
Theory-of-defense instruction on vagueness	Instruction on void-for-vagueness should be given to negate requisite intent.	Vagueness is a question of law for the court, not jury.	Instruction not required; court did not abuse discretion.

United States v. Cannon, 475 F.3d 1013 (8th Cir. 2007) (abuse of discretion standard for juror replacement; plain-error review if no objection)
United States v. Bad Cob, 560 F.2d 877 (8th Cir. 1977) (alternate juror substitution is within trial court’s prerogative)
United States v. Ellenbogen, 365 F.2d 982 (2d Cir. 1966) (preference for presence at proceedings; rationale for replacement context)
Runyon v. United States, 707 F.3d 475 (4th Cir. 2013) (plain-error review requires substantial rights impact; absence of objection weighs against prejudice)
Olano v. United States, 507 U.S. 725 (1993) (plain-error standard: error, plain, and substantial rights affected)
Becht v. United States, 403 F.3d 541 (8th Cir. 2005) (structural error concept; narrow category)
Summage v. United States, 575 F.3d 864 (8th Cir. 2009) (Rule 403 balancing standard applied to evidentiary rulings)
Hiland v. United States, 909 F.2d 1114 (8th Cir. 1990) (vagueness of law as a court-determined issue)
Olszewski v. Spencer, 466 F.3d 47 (1st Cir. 2006) (presence rights and impact on trial process)
Rushen v. Spain, 464 U.S. 114 (1983) (fundamental right to presence at critical stages)