1 In a final (and unsuccessful) effort to challenge his conviction on due process grounds, Sanders argues that in affirming his conviction by reference to the "intrinsic value" (rather than the "investment") theory of taxable transactions (for a more detailed discussion of these theories, see infra pp. 16-18 and n.2) the state appellate courts affirmed his conviction on grounds not presented to the jury at trial. See, e.g., Dunn v. United States, 442 U.S. 100, 106-07 (1979) ("To uphold a conviction on a charge that was . . . no[t] presented to a jury at trial offends the most basic notions of due process . . . . Appellate courts are not free to revise the basis on which a defendant is convicted." (emphasis added)); see also United States v. Minarik, 875 F.2d 1186, 1196 (6th Cir. 1989) ("Prosecutors and courts . . . may not allow the facts to define the crime through hindsight after the case is over").

2 Under the "intrinsic value theory," the sale of a coin is taxable as a sale of personal property if the price of the coin is based on the value of the coin's precious metal content rather than on its face value as currency.

3 As demonstrated by the hypotheticals set forth in Sanders's briefs, even the most clearly written statute could not anticipate every situation that might arise between a buyer and seller of coins and precious metals.