Some circuits have ruled upon this issue because the defendant has received the potential juror names from the district court, but has not received some or all of the information requested from the Secretary of the Treasury prior to the date of trial and the trial court proceeded with the trial. See United States v. Droge, 961 F.2d 1030, 1037 (2d Cir. 1992); United States v. Spine, 945 F.2d 143 (6th Cir. 1991); United States v. Masat, 896 F.2d 88, 94-95 (5th Cir. 1990). Other circuits have ruled upon this issue because the trial court has refused to provide information on the potential jury pool.

Nearly all of those cases, however, have analyzed limitations on the time period covered by a § 6103(h)(5) investigation under the rubric of harmless error. See, e.g., United States v. Axmear, 964 F.2d 792, 793 (8th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 963, 122 L.Ed.2d 120 (1993); United States v. Droge, 961 F.2d 1030, 1034 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 609, 121 L.Ed.2d 544 (1992); Huguenin, 950 F.2d at 29-30; United States v. Schandl, 947 F.2d 462, 469 (11th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2946, 119 L.Ed.2d 569 (1992); United States v. Hardy, 941 F.2d 893, 896 (9th Cir. 1991); United States v. Masat, 896 F.2d 88, 95 (5th Cir. 1990), cert. denied, ___ U.S. ___, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992). But see Nielsen, 1 F.3d at 858 (where there is substantial disclosure of the information about the persons audited or investigated, voir dire supplements the information, and there is no palpable suggestion of prejudice, § 6103(h)(5) was not violated).

The Second, Fifth, and Sixth Circuits have concluded the denial of a taxpayer defendant's request for a continuance to obtain additional section 6103(h)(5) information is not reversible when the district court conducts an appropriate voir dire. United States v. Droge, 961 F.2d 1030, 1034 (2d Cir. 1992); United States v. Masat, 948 F.2d 923, 927 (5th Cir. 1991); United States v. Spine, 945 F.2d 143, 147-48 (6th Cir. 1991). But see United States v. Sinigaglio, 942 F.2d 581, 583 (9th Cir. 1991).

¶ 24. A judge may not base a sentencing decision, or any decisions related to the sentencing process, on personal animus or bias against a defendant, even if the sentence is otherwise valid. Ingerson, 2004 VT 36, ¶ 10, 176 Vt. 428, 852 A.2d 567 ("Reversal for resentencing is required if the defendant can show that the sentencing judge's decision was driven by personal bias or animus against the defendant."); see also United States v. Droge, 961 F.2d 1030, 1038 (2d Cir.1992) (stating that if judge had imposed sentence "out of personal spite and in retaliation," then "resentencing would be required"); United States v. Giraldo, 822 F.2d 205, 209 (2d Cir. 1987) ("A defendant has, of course, a due process right to a trial before a judge who has no actual or apparent bias."). Upholding a sentence driven by personal animus would "impair the integrity of the judicial process and tarnish its reputation for fairness."

Reversal for resentencing is required if the defendant can show that the sentencing judge's decision was driven by personal bias or animus against the defendant. See United States v. Droge, 961 F.2d 1030, 1038 (2d Cir. 1992) (observing that resentencing is required if a judge imposes a sentence out of personal spite against the defendant); United States v. Giraldo, 822 F.2d 205, 210 (2d Cir. 1987) ("A sentence imposed for an improper purpose is subject to vacation on appeal."). Although a sentence that is based on improper information may be vacated on appeal, see, e.g., Neale, 145 Vt. at 436, 491 A.2d at 1033, it must be recognized that the district court may properly consider more than the facts of the particular crime at issue when sentencing a defendant.

While a defendant's good-faith reason need not be objectively reasonable, the objective reasonableness of a claimed belief may be probative of whether the defendant held the belief in good faith. Id. at 203-04; cf. United States v. Droge, 961 F.2d 1030, 1038 (2d Cir. 1992) (observing that the jury was properly instructed to determine whether the defendant "actually believed that he was not required to file a return or pay taxes"). Moreover, unlike "innocent mistakes caused by the complexity of the Internal Revenue Code" which may support a good-faith defense, "[c]laims that some of the provisions of the tax code are unconstitutional" cannot because "they reveal full knowledge of the provisions at issue," notwithstanding the defendant's belief that those provisions are "invalid and unenforceable."

And although the district court in Shannon admonished the potential juror not to "volunteer an answer," the potential juror was excused without further sanction. We presume that potential jurors answer truthfully the questions of voir dire. See, e.g., United States v. Droge, 961 F.2d 1030, 1036 (2d Cir.), cert. denied, 506 U.S. 1003 (1992). This assumption does not hold, however, when jurors are given reason to fear reprisals for truthful responses.

Since the decision in Schandl, a number of circuits have adopted the same approach. See United States v. Axmear, 964 F.2d 792, 793 (8th Cir. 1992); United States v. Droge, 961 F.2d 1030, 1032-37 (2nd Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 609, 121 L.Ed.2d 544 (1992); Spine, 945 F.2d at 145-48. In their briefs, Callahan and the government raise a number of arguments as to why this court should or should not adopt a per se rule.

Accordingly, the Court will issue an Order for expedited release of the jury list once the final trial date is set. See United States v. Droge, 961 F.2d 1030 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 609, 121 L.Ed.2d 544 (1992). Section 6103(h)(5) provides, in pertinent part: In connection with any judicial proceeding . . . to which the United States is a party, the Secretary shall respond to a written inquiry from any person (or his legal representative) who is a party to such proceeding as to whether an individual who is a prospective juror in such proceeding has or has not been the subject of any audit or other tax investigation by the Internal Revenue Service The Secretary shall limit such response to an affirmative or negative reply to such inquiry 26 U.S.C. § 6103(h)(5).

However, neither the statute nor any regulation interpreting the statute sets forth any procedures to be followed in implementing the statute. See, United States v. Droge, 961 F.2d 1030, 1033 (2d Cir.1992). Droge set forth the procedures in which courts within the Second Circuit should implement 26 U.S.C. § 6103(h)(5).