Advice of
Counsel Page1
7203:
Willful Failure to File Return, Supply Information, or Pay Tax:
Defenses: Advice of Counsel
[90-2
USTC ¶50,566]
United States of America
, Plaintiff-Appellee v. Elbert L. Hatchett, Defendant-Appellant
(CA-6),
U.S. Court of Appeals, 6th Circuit, 89-1679, 11/7/90, 918 F2d 631,
Affirming an unreported District Court decision
[Code Sec.
7203 ]
Willful failure to pay tax: Jury selection: Evidence: Sentencing.--An
individual's conviction and subsequent sentencing on four misdemeanor
counts of willful failure to pay federal income tax was proper; the
defendant prevailed on none of the following eight errors he claimed
were made by the trial court. (1) The fact that the government used its
peremptory challenge to exclude a black potential juror from the jury
did not render the jury selection process discriminatory inasmuch as the
potential juror was excluded for valid nondiscriminatory reasons and the
final jury consisted of three black members out of 12. (2) The trial
court's exclusion of the defendant's (prior) attorney's testimony
concerning the defendant's tax situation did not render the defendant's
"advice of counsel" defense a nullity; the excluded testimony
was hearsay and the defendant adequately presented the same evidence in
other ways. (3) The trial court did not err in preventing that attorney
from testifying as to the legal authority for the advice he gave
counsel; he did testify that he had done research and further testimony
would have confused the jury as to the applicable law. (4) The trial
court did not err in allowing the government to impeach the testimony of
the defendant's witness and law partner by raising the witness's failure
to file tax returns because such information was clearly probative of
his bias against the government and, therefore, his credibility. (5) The
exclusion of a videotaped segment from a television broadcast that
focused on the collection techniques of a local IRS office was proper
because it was not relevant to the case and was hearsay. (6) The trial
court did not err in sentencing the defendant on the basis of erroneous
information in his presentence report inasmuch as as the court stated at
the time of sentencing that it would not consider the erroneous
information. (7) It was not error for the trial court to sentence the
defendant without regard to national sentencing guidelines; it was not
necessary to obtain a specific finding from the jury as to the
completion date of the offenses because there was no question that the
crimes were prosecutable before the effective date of the guidelines.
(8) The trial court did not abuse its discretion in requiring the
defendant to pay all back taxes as a condition of probation even though
the order included taxes owed for a year not covered by the convictions.
Although "restitution" is restricted in this way, an order to
pay a legal obligation is not a restitution order.
Kathleen
Moro Nesi, Assistant United States Attorney,
Detroit
,
Mich.
48226
, for plaintiff-appellee. William T. Coleman III, Phyllis Golden Morey,
Pepper, Hamilton & Scheetz, 100 Renaissance Center, Detroit, Mich.
48243-1157, for defendant-appellant.
Before
JONES and BOGGS, Circuit Judges, and GIBBONS, * District
Judge.
BOGGS,
Circuit Judge:
Elbert
L. Hatchett appeals his conviction on four misdemeanor counts of willful
failure to pay federal income taxes for tax years 1982, 1983, 1984, and
1986, in violation of 26 U.S.C. §7203 . On October 20,
1988, Hatchett was charged in an eight-count indictment with one count
of tax evasion, in violation of 26 U.S.C. §7201
; one count of obstruction of tax collection, in violation of
26 U.S.C. §7212(a) ; one count of
concealment of property subject to levy, in violation of 26 U.S.C. §7206(4) ; and five counts
of willful failure to pay income taxes. After a month-long jury trial in
February and March 1989, Hatchett was acquitted on the three felony
counts and one misdemeanor count (failure to pay tax for 1985). The jury
returned a guilty verdict on the other four counts, for which the court
sentenced Hatchett to three consecutive one-year sentences. Hatchett
also received one suspended sentence and was placed on five years'
probation. Hatchett was also fined $100,000 ($25,000 on each count) and
ordered to pay "all back taxes" as a condition of probation.
I
Hatchett
is an attorney in the
Detroit
area who concededly began to fall behind in his tax payments in the
1970s. Audits conducted in the late 1970s by the Internal Revenue
Service (IRS) revealed that Hatchett owed back taxes for tax years
1973-1977 in the amount of $107,454.14. On August 23, 1978, he entered
into an installment agreement with the IRS, whereby he would pay the
government $750 per week--$500 for his 1978 estimated tax payments and
$250 for his delinquent taxes. From 1979 through 1986 (with the
exception of tax year 1985), Hatchett submitted tax returns without any
accompanying payment at all; he also failed to make any estimated tax
payments during those years.
Hatchett
claims that he consulted with an attorney, Frank Gettleson, on several
occasions in 1979 and 1980 in order to consider different ways of
handling his tax problems. He claims that Gettleson advised him to file
returns that were then overdue but to withhold payment until he was able
to negotiate with the IRS a consolidated payment schedule for all taxes.
Hatchett thereafter filed a timely return for tax year 1979 on April 14,
1980, but without accompanying payment. He filed a late return for tax
year 1980 on April 14, 1982, the same day he filed his 1981 return.
Neither the 1980 nor the 1981 return included payment.
On
August 26, 1980, Hatchett wrote to the IRS to inform it that he wished
to make a lump-sum settlement or, alternatively, to pay $1000 per month
until his liability was liquidated. Hatchett claims that the IRS did not
respond to his letter, but he nevertheless began sending $1000 monthly
payments. He stopped making these payments when, on January 21, 1981,
the IRS seized and sold certain real property owned by Hatchett. In
March 1983, Hatchett again wrote to the IRS to request an installment
payment plan; he claims that he received no response. The government,
however, claims that Hatchett received a written reply in April 1984,
informing Hatchett that he owed a total of $847,780.46 ($827,791.96 in
income taxes, interest, and penalties, and $19,988.50 in business
taxes).
The
government introduced evidence that during the period covered in the
indictment, Hatchett was earning large sums of money from his cases. He
settled one case that resulted in $900,000 in legal fees. The government
claims that Hatchett converted these monies so as to make it impossible
for the IRS to levy on them. He typically exchanged his clients' checks
for a series of cashiers' checks; when the IRS levied on his bank
accounts, it discovered that no funds were available to satisfy the
levies. He also used the money to purchase goods in other people's
names. In March 1983, Hatchett paid $28,447.12 in cash for a Porsche 911
for his son. He contemporaneously spent large sums on the construction
of a boxer training camp for his son in
Otter Lake
,
Michigan
. In May 1983, Hatchett bought $113,744.20 worth of car washing
equipment for a business called Sparkle Car Wash, which he held in the
name of his elderly father. In 1985, Hatchett purchased a foster care
home in his wife's name for $100,000 cash.
In
April 1984, Internal Revenue Agent Christine Gibson, newly assigned to
Hatchett's case, reviewed his assets and a list of court cases in which
he was involved, so that the IRS might attach any attorney's fees due
him. Gibson then prepared a list of over 300 levies to be served on
Hatchett's clients, opposing counsel, and insurance companies, directing
that any monies owed to Hatchett be paid to the IRS.
On
June 11, 1984, Agent Gibson met with Hatchett to discuss whether he was
prepared to make payment on his taxes owed. When Hatchett was unwilling
to disclose any financial information, Gibson served Hatchett with a
summons to produce all documents regarding his assets. Gibson testified
that Hatchett told her at the June 11 meeting that "he wanted to
pay and he always planned to pay his taxes." Gibson also testified
that her notes of a June 22, 1984 follow-up telephone conversation with
Hatchett indicated that she believed he was "making moves to
pay."
On
July 13, 1984, Hatchett met with Gibson to review the documents
requested by the summons. At this meeting, however, Gibson never looked
at any of the documents Hatchett provided. At this meeting, Gibson and
Hatchett discussed a number of possible payment plans that could assist
Hatchett in discharging his tax liability. After this meeting, not
having reached an agreement with Hatchett about a payment plan, Gibson
began serving the 300 levies she had prepared. See United States v.
Var-Ken, Inc., No. 88-1251 (6th Cir. May 1, 1989) (unpublished per
curiam) (reversing a summary judgment against the government in an
action to enforce a levy and foreclose on funds assertedly owned by
Hatchett).
Throughout
1985, Hatchett made several payments toward his tax debt totalling
$80,000. He discontinued his $5000 weekly payments on September 23,
1985, when the IRS seized his Rolls Royce.
Hatchett
reported adjusted gross income for 1982 of $329,940 and a tax due of
$98,789. He filed this return, without payment, on March 7, 1984, nearly
one year late. Hatchett reported adjusted gross income for 1983 of
$755,977 and a tax due of $336,799. He filed this return, without
payment, a year late on April 15, 1985.
Hatchett
reported adjusted gross income for 1984 of $307,410 and a tax due of
$132,145. He filed this return, without payment, on April 15, 1985.
Hatchett
reported adjusted gross income for 1985 of $400,788 and a tax due of
$158,360. He filed this return, without payment, on April 15, 1987. On
an amended return, he reported an adjusted gross income for 1985 of
$571,437 and a tax due of $244,183. He filed this return, with a total
payment of $100,000, on April 7, 1988, two years late.
Hatchett
reported adjusted gross income of $445,535 for 1986 and a tax due of
$195,699. He filed this return on April 8, 1988, one year late and
without payment.
Hatchett
raises eight assignments of error: one concerning the jury selection
process, four concerning evidentiary rulings, and three concerning his
sentencing. We consider them in that order.
II
Hatchett's
first claim is that the government exercised its peremptory challenges
during jury selection in a racially discriminatory manner. We find no
merit in this claim.
The
jury consisted of three Blacks and nine whites. The record indices that
the jury venire consisted of 70 people. Fifty-five identified themselves
as white, 14 as Black or Negro, and one as Asian. The prosecution was
given six peremptory challenges, while the defense had ten. Each side
had one additional peremptory challenge that could be exercised only
against an alternate juror. The district court ruled that if a party
chose to pass on the exercise of a peremptory challenge, then that
peremptory was lost.
Hatchett
claims that the procedure by which the government exercised--or
waived--its peremptories was racially motivated and discriminatory. The
original jury panel drawn contained eleven whites and one Black. The
government used its first peremptory to strike the only Black juror.
That juror has a son who had been criminally charged in June 1988; she
also had recently been audited. After the government excused the Black
juror, she was replaced by a white juror.
The
government then waived each of its peremptories against remaining white
jurors. Hatchett claims that the government had stronger cause to excuse
several of the white jurors than it did to excuse the lone Black juror.
During voir dire, for example, it came out that several of the eleven
original white jurors had encounters with the government that were
allegedly more unpleasant than the Black juror's. One was audited in
1980, and he admitted to the court that he wasn't "thrilled about
paying [his] taxes." Another had fallen behind in his taxes five
years before the trial and had to make payments over a three-year or
four-year period. A third had been arrested for drunken driving in
October 1985. One of the alternate jurors, a white woman, had been
audited in January 1989, one month before the trial began. Hatchett
claims that the reason the government did not excuse any of these white
jurors was because it did not want to risk impaneling a Black
replacement juror from the venire.
While
the government waived each of its first four peremptories against the
remaining jurors, the defense exercised each of its first four
peremptories to excuse a white juror. Each was replaced by a white
juror. After the government waived its fourth peremptory, the defense
requested a conference outside the presence of the jurors. Hatchett,
whom the court had permitted to participate in the presentation of his
case, made the following appeal to the court:
It
seems the impact of what the Government is doing, although she has a
perfect right to do it, is negate our potential of having a certain
number of black people on the jury to try me and my wife. We are
entitled to a fair selection of people to sit in judgment of us, a part
and parcel would be a group of people who have a peculiar identity with
me. The fact that the Government has chosen to pass peremptorily on
challenges means that it reduces the prospect of it reducing any of
those persons by 50 percent. The only peremptory she has offered has
been a challenge to disqualify a black juror, that's the only time she's
exercised her prerogative to summarily remove a juror, that juror is
black. You have held us tightly with respect to how many challenges we
can have. . . . [T]he Court should mitigate the harm to me and my wife
by giving us more challenges. We have ten black people left on the jury
panel and we have none seated except an alternate and, judge, we are not
going to have any representatives of the black race on this jury if the
prosecution is permitted to persist in her exercise of her prerogative
of not peremptorily challenging anybody.
The
government offered to have an in camera hearing with the court to
explain the reasoning behind its jury selection procedure. The defense
had no objection. 1 In chambers,
the assistant
United States
attorney explained to the court her reason for excusing the Black juror
and no other: only the Black juror had recently had an experience in
criminal court and been audited. The other jurors' experiences were
considerably more remote, and thus they were less likely to harbor
resentment against the IRS. The court was satisfied by the prosecutor's
explanation, and found that the government's juror selection process was
not tainted by racial discrimination. The jury selection process then
continued, and the government exercised no other peremptory challenges. 2 After the
defense exercised its peremptories and several other jurors were excused
for cause, additional jurors were impaneled and the final jury consisted
of three Blacks and nine whites. 3
Hatchett
argues that it was pure fortuity that three Blacks were impaneled on the
final jury, and that this end result does not render moot the
constitutional issue of the government's allegedly discriminatory
selection process. Hatchett claims that the withholding of
peremptory challenges violated his fourteenth amendment right to be free
from discriminatory jury selection procedures, as stated in Batson v.
Kentucky, 476 U.S. 79, 89 (1986): "the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account
of their race or on the assumption that black jurors as a group will be
unable impartially to consider the State's case against a black
defendant." 4
The
Batson Court
enumerated three elements of a prima facie case of purposeful
discrimination. First, the defendant must show that he is a member of a
cognizable racial group and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant's race.
Second, the defendant is entitled to rely on the fact "that
peremptory challenges constitute a jury selection practice that permits
'those to discriminate who are of a mind to discriminate.' " Third,
the defendant must show that "these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice
to exclude the venire-men from the petit jury on account of their
race." 476
U.S.
at 96 (quoting Avery v. Georgia, 345
U.S.
559, 562 (1953)). Once the defendant has made out a prima facie case,
the burden shifts to the government to come forward with a neutral
explanation for challenging Black jurors. Ibid. Hatchett argues
that he has made out a prima facie case of discrimination and that the
prosecutor's apparently neutral explanation is invalid.
Hatchett
claims that the prosecutor's reasons for striking the Black juror were
equally applicable to similarly situated white jurors, and thus the
prosecutor's explanation was pre-textual. In such a case, the
prosecutor's explanation does not withstand scrutiny. Garrett v.
Morris, 815 F.2d 509, 513-14 (8th Cir.), cert. denied, 484
U.S. 898 (1987).
We
see no clear error in the court's determination that the circumstances
of the white jurors who were not challenged differed from those of the
two Blacks who were excused. 5 The only
white juror who had been audited was audited in 1968. This remoteness of
his audit was an important distinction. Another white juror had fallen
behind in his tax payments five years earlier, but there was no evidence
that he had been audited or had had a bad experience with the IRS. The
government exercised its one peremptory challenge reserved for the
alternate jurors against the Black alternate rather than against the
white alternate because the Black alternate had been a client of
Hatchett. Although the white alternate had been audited one month before
trial, there was no indication that her audit did not proceed favorably;
the government saw the Black alternate as a greater risk to
impartiality, for reasons apart from her race.
Furthermore,
we find that Hatchett did not establish a prima facie case under Batson.
All of the attendant circumstances do not raise an inference that the
prosecutor excluded Blacks from the jury on account of their race. In
United States
v. Sangineto-Miranda, 859 F.2d 1501, 1521-22 (6th Cir. 1988), we
reasoned:
If,
after the jury selection process has ended, the final jury sworn has a
percentage of minority members that is significantly less than the
percentage in the group originally drawn for the jury (or in the whole
jury pool or in the district), then that would be a factor pointing
toward an inference of discrimination. If, on the other hand, the
percentage of minority members in the ultimate jury is the same or
greater, that would be a factor tending to negate the inference of
discrimination.
In
this case, the jury pool of 70 contained 14 Blacks (20%). The final jury
consisted of three Blacks and nine whites (25% Black).
Furthermore,
the district court credited the prosecutor's explanation for her pattern
of striking or not striking certain jurors. The Supreme Court has ruled
that findings of no intentional discrimination turn largely on an
evaluation of credibility, which we as a reviewing court should accord
great deference. Batson, 476
U.S.
at 98 n.21.
Contrary
to Hatchett's implication, he is not entitled to a jury composed largely
of members of his race. In Batson, the Court ruled "that a
defendant has no right to a 'petit jury composed in whole or in part of
persons of his own race.' " 476 U.S. at 85 (quoting Strauder v.
West Virginia, 100 U.S. 303, 305 (1880)). Rather, the defendant has
a right "to be tried by a jury whose members are selected pursuant
to nondiscriminatory criteria." Ibid. Because Hatchett was
tried before a fairly selected jury, we deny his claim of racial
discrimination.
III
A
Hatchett
next assigns as error the exclusion, during direct examination of Frank
Gettleson, of testimony by Gettleson about statements allegedly made by
Hatchett to Gettleson about his tax troubles. The defense called
Gettleson to testify about the tax advice he gave Hatchett in 1979 and
1980. When Hatchett's trial counsel asked Gettleson to explain to the
jury the content of a conversation Hatchett had with him in 1980, the
government objected that the answer would be hearsay and would be
irrelevant. The district court sustained the objection, apparently on
the ground of hearsay, and precluded Gettleson from testifying about any
disclosures Hatchett made to him. 6 Hatchett now
claims that the district court improperly excluded Gettleson's
testimony, which was crucial to Hatchett's defense that he relied on the
advice of counsel in withholding tax payments. He argues that the
court's ruling improperly made proof of the "advice of
counsel" defense difficult.
Hatchett
argues on appeal that the testimony Gettleson would have provided would
not have constituted hearsay because it would not have been offered for
the truth of the matter asserted. 7 F.R.E.
801(c). The statements would have concerned disclosures that Hatchett
made to Gettleson about his tax liabilities as of 1980. Hatchett claims
that this testimony was offered not to prove the truth of the content of
Hatchett's statements about his tax situation, but rather to prove that
Hatchett made a full disclosure of all pertinent facts to Gettleson.
Hatchett claims that the court prevented the jury from accepting
Hatchett's advice of counsel defense, by disabling it from determining
whether Hatchett made a complete disclosure to Gettleson. Hatchett
argues that the testimony was not offered to prove its truth, but rather
so that Hatchett could comply with the full disclosure requirement of
his defense. See United States v. Eisenstein, 731 F.2d 1540, 1545
(11th Cir. 1984).
Hatchett
declined to testify. Gettleson's testimony, therefore, was allegedly the
only vehicle for getting Hatchett's advice of counsel defense before the
jury. 8 Hatchett
thus contends that the exclusion of this testimony completely deprived
Hatchett of his right to make out a defense.
We
hold that the district court did not abuse its discretion in refusing to
admit Gettleson's proffered testimony regarding Hatchett's disclosures
to him. The district court, in denying Hatchett's motion for bond
pending appeal, 9 noted that
[a]lthough
attorney Gettleson's testimony may have been admissible for the limited
purpose of showing defendant made a disclosure, it was not admissible to
prove the facts constituting the disclosure. The advise [sic] of counsel
defense requires not only evidence of disclosure, but also evidence that
the facts disclosed are relevant. . . . The relevance of the facts
disclosed could only have been determined had the jury considered as
truthful the out-of-court statements which attorney Gettleson was
asked to recite.
Had
defense counsel represented to the Court the evidence of the factual
basis underlying the disclosure would be tied in through a different
witness, or asked that the statements be admitted for the limited
purpose of showing disclosure and with a cautionary instruction to the
jury, this Court's ruling may have been different. However, no such
request or representation was made.
(Emphasis
supplied.) Having determined that Gettleson's testimony was offered to
prove the truth of Hatchett's out-of-court disclosures, and in the
absence of a proffer by Hatchett's counsel of other evidence that could
prove the truth of the disclosures, the court properly ruled that
Hatchett's declarations came within the definition of hearsay and were
inadmissible.
We
find that the court's ruling could not have undermined the jury's
ability to determine the strength of the advice of counsel defense. The
defense managed to get the substance of Hatchett's statements to
Gettleson before the jury by other means. Although the court sustained
the government's objection to the question asking Gettleson directly
what Hatchett told him, Gettleson nevertheless testified to several
disclosures by Hatchett:
--Hatchett
"tried to pay the tax and apparently met with some opposition in
that regard;"
--"he
couldn't pay it all at one time and it was a fair amount of money at
that time and he was going to try and make some orderly payments;"
--Hatchett
owed "probably one hundred seventy-five to two hundred thousand,
something in that area;"
--"I
knew he had been audited incessantly prior to that time;"
--"I
knew he had made payments, he had made some payments along the
way;"
--"he
was concerned if there would be any other ramifications, such as
criminal ramifications, that may befall him."
On
cross examination, Gettleson admitted that:
--he
did not know exactly when Hatchett had been on an installment payment
program;
--he
did not know that the installment payment program was stopped at the end
of 1978 because Hatchett was bouncing checks;
--he
did not know that Hatchett had failed to make estimated tax payments for
the 1979 tax year;
--they
"didn't really discuss" whether Hatchett would make current
estimated tax payments in 1980;
--Hatchett
never told him whether the IRS had required Hatchett, as a condition of
the installment payment program, to remain current with his estimated
tax payments.
This
testimony was sufficient for the jury to determine whether Hatchett had
made a full disclosure to Gettleson of all pertinent facts.
Furthermore,
nothing said in closing arguments could have confused the jury as to
Hatchett's advice of counsel defense. The government did not claim that
Hatchett's defense must fail because there was no proof of full
disclosure (proof, Hatchett would argue, that was impermissibly kept
from the jury). The government simply argued, in its initial closing and
in its rebuttal closing, that the advice of counsel defense should not
protect Hatchett prospectively, because Gettleson never explicitly
advised Hatchett not to pay taxes from 1981 to 1986. Hatchett in turn
argued in his closing that "[Gettleson did not] have to tell me not
to pay in '81, '82, '83, he already told me that when I sat down and
talked to him." At no point was the jury misled either as to the
elements of an advice of counsel defense or as to the quantum of proof
necessary to find "willfulness" in Hatchett's failure to pay.
Under these circumstances, we find no abuse of discretion in preventing
Gettleson from testifying directly as to the truth of Hatchett's
disclosures.
B
Hatchett
next contends that the district court abused its discretion by
precluding attorney Gettleson from explaining the legal authority for
the advice he gave Hatchett. The government objected to the proffered
testimony on the ground that the witness would be testifying to the jury
about legal issues. The court limited Gettleson's testimony to
statements about the general legal authority on which he relied in
advising Hatchett, "without going into any specifics."
Hatchett
asserts that the testimony would have proved that Gettleson conducted
specific research on the issue of withholding payment from the IRS in
good faith. If Hatchett could have shown the jury that the legal
principles underlying the advice upon which he relied were well
established in the case law, he claims that he could have made out his
advice of counsel defense. Moreover, Hatchett insists that Gettleson's
testimony would not have invaded the court's province to instruct the
jury on the applicable law. Gettleson's proffered testimony allegedly
bore only on his competence in correctly advising Hatchett on the law,
while the court retained the ultimate authority to instruct on the law.
We
find no abuse of discretion in limiting Gettleson's testimony to
statements about the general legal authority on which his advice rested.
Testimony about the specific results of Gettleson's legal research was
properly excluded. Before the government objected, Gettleson was able to
testify that:
I
did some research back at that time and I was confident in the research
that I did, based upon the statute and based upon the case law that I
found as a result of that research, that the position he had taken was a
sound position and I told him as much. And I based it in part on the
case of--
The
court then sustained the government's objection that any further
statements would constitute legal argument in front of the jury. The
court did not, however, prevent Hatchett from proving that Gettleson was
competent to give him sound advice. The court merely restricted the
means by which Hatchett could present his argument, so as to limit jury
confusion.
In
United States v. Curtis [86-1
USTC ¶9195 ], 782 F.2d 593, 599 (6th Cir. 1986), we noted
that witnesses "do not testify about the law because the judge's
special legal knowledge is presumed to be sufficient, and it is the
judge's duty to inform the jury about the law that is relevant to their
deliberations." This rule is necessary to prevent the potential
confusion that can arise if the law as presented by the witness
conflicts with the law as instructed by the court. Id. at 600.
Given the soundness of this rule, the district court did not abuse its
discretion by excluding references to specific case law under the
circumstances presented here.
C
Hatchett
also complains about the government's cross examination of one of
Hatchett's law partners, Marvin Smith, who became an associate in
Hatchett, Dewalt, Hatchett, Mitchell, Morgan & Hall in 1981 and a
partner in Hatchett, Dewalt, Hatchett & Hall (of which Hatchett is
managing partner) in 1983, testified at trial as to the nature of the
law partnership. He further testified about Hatchett's efforts to obtain
loans from the partnership in order to pay his taxes. On cross
examination, the district court permitted the government to attempt to
impeach Smith's credibility by questioning whether he himself had filed
any income tax returns for tax years 1981-1986. Smith responded that he
had not filed any such returns.
The
defense objected to this cross examination on the ground of relevance.
The prosecution argued that the questioning was relevant because it
concerned the witness's bias. There had been extensive testimony about
the partnership's dealings with the IRS, and this line of questioning
was designed to illuminate the partners' general failure to cooperate
with the IRS. The court was persuaded that the prosecution should be
permitted to pursue this questioning, especially on cross examination.
Mr.
Smith's cross examination was then continued to the next day. That next
morning, before the jury entered the courtroom, the court entertained
the defense's motion for a mistrial based on the previous day's cross
examination of Smith. Although Hatchett had, on the previous day,
objected to the prosecution's line of questioning only on the basis of
Fed. R. Evid. 609 (Impeachment by Evidence of Conviction of Crime), the
memorandum in support of the motion for a mistrial rested primarily on
Fed. R. Evid. 608 (Evidence of Character and Conduct of Witness). Rule
608(b) states in pertinent part:
Specific
instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of crime as
provided in rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1)
concerning the witness' character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being cross-examined
has testified.
Rule
609 allows for impeachment only through evidence of a felony conviction.
Hatchett argues that Rule 609 did not apply to Smith, and Rule 608 was
inapposite because Smith's failure to file timely returns did not relate
to his character for truthfulness or untruthfulness. Thus, Hatchett
contends, cross examination based on Smith's failure to file or to pay
his taxes was inadmissible to attack his credibility. The defense
requested that if the court was unwilling to grant a mistrial, it should
at least give a curative instruction to the Jury.
The
court ruled:
I'm
going to give them an instruction that the only purpose is to attack his
credibility and that his tax problem or his failure to pay taxes is not
an issue in this case. I'm not granting a motion for mistrial.
Hatchett's
counsel and the court then engaged in this exchange:
[DEFENSE
COUNSEL]: I would like to know whether the Court is making a specific
finding that the activity elicited relates to [Smith's character for
truthfulness or untruthfulness].
THE
COURT: I'm saying the questions and the answers tend to bring out any
interest or bias that this witness may have and that this bears upon his
credibility and I believe that's fair cross-examination.
Hatchett's
argument rests on the notion that the testimony permitted on cross
examination was inadmissible because it was not relevant to Smith's
character for truthfulness or untruthfulness. Hatchett claims that the
court, in finding that Smith had "a motive to be untruthful,"
merely found that it would have been advantageous to Smith to give false
testimony; the court did not, and could not, find that Smith had a
reputation for being untruthful. The specific acts of not filing tax
returns provided Smith a motive to lie, but did not shed light on
his character for truthfulness. Hatchet insists that failure to
file tax returns and pay taxes is unrelated to character for
truthfulness or untruthfulness.
We
agree with the district court that Smith's failure to pay taxes was
clearly probative of his credibility. Hatchett does not disagree that
the government's cross examination of Smith was intended to show bias;
he merely contends that evidence of bias is not an attack on
credibility. However, a showing of bias is designed to attack a
witness's credibility. See, e.g., Davis v. Alaska, 415 U.S. 308,
316 (1974) ("A more particular attack on the witness' credibility
is effected by means of cross-examination directed toward revealing
possible biases, prejudices, or ulterior motives of the witness").
This rule is sound because evidence of bias allows jurors to draw
appropr
