Appeal
Waiver
7203:
Willful Failure to File Return, Supply Information, or Pay Tax: Appeal
Waiver
[81-2
USTC ¶9719]
United States of America
, Plaintiff-Appellee v. James J. Touchet, Defendant-Appellant
(CA-5),
U. S. Court of Appeals, 5th Circuit, * Unit A, No.
80-3931, 658 F2d 1074, 10/14/81, Affirming in part and remanding in part
an unreported District Court decision
[Code Sec. 7201]
Crimes: Attempted income tax evasion: Waiver of non-jurisdictional
defects in indictment: Plea of nolo contendere: Sentencing: Release
conditioned on payment of taxes.--The taxpayer waived all
non-jurisdictional defects in the indictment by entering a plea of nolo
contendere and thus the court, affirming his conviction on four counts
of attempted income tax evasion, refused to consider his appeal of the
denial of his motion to compel election. The case was remanded for a
re-determination of sentencing because the trial court improperly
conditioned probation or release upon payment of taxes when the amount
of tax owed had not been adjudicated.
George
Phillips, United States Attorney, E. Donald Strange, Assistant United
States Attorney, Jackson, Miss. 39205, M. Carr Ferguson, Assistant
Attorney General, Michael L. Paup, John F. Murray,
Rob
ert E. Lindsay, Arthur L. Passar, Department of Justice, Washington, D.
C. 20530, for plaintiff-appellee. Roland J. Mestayer, Jr., Raymond L.
Brown, P. O. Box 787, Pascagoula, Miss. 39567, for defendant-appellant.
Before
BROWN, POLITZ and WILLIAMS, Circuit Judges.
PER
CURIAM:
James
Touchet was indicted on four counts of attempted income tax evasion, for
the years 1973, 1974, 1975 and 1976, in violation of 26 U. S. C. §7201.
Each count charged that the attempts were made by preparing, signing,
and mailing false and fraudulent returns in which his taxable income was
substantially understated.
Touchet
pleaded not guilty and moved to compel the government to elect the
substantive offense, on each count, with which it intended to proceed. 1 The district
court denied the motion; Touchet thereafter withdrew his plea of not
guilty and entered a plea of nolo contendere, which was accepted
by the court.
Touchet
was sentenced to 18 months imprisonment and fined $10,000 on count I. He
was also ordered to pay the $18,078.04 tax deficiency charged in count
I. Imposition of sentence was suspended on counts II, III and IV, but
the court: ordered a $5,000 fine on count II and a $2,500 fine on count
IV, required the payment of the tax deficiencies charged in count II
($17,745.96), count III ($3,033.60), and count IV ($7,002.28); imposed
court costs; placed Touchet on probation for five years; and required
that as a condition of probation Touchet pay all fines and taxes and do
so prior to his release from custody.
Touchet
appeals the denial of his motion to compel election and his sentence,
insofar as it orders payment of taxes and makes the payment a
precondition to release and a condition of probation. We affirm the
conviction but remand for resentencing.
Motion
to Compel
Touchet
argues that the indictment is fatally defective because he is charged in
each count with three discrete offenses punishable under 26
U. S.
C. §§ 7206(1), 7206(2), and 18
U. S.
C. §1341. We may not consider this contention. By entering a plea of nolo
contendere, Touchet waived all non-jurisdictional defects in the
indictment. As we observed in United States v. Broome, 628 F. 2d
403 (5th Cir. 1980), "[a] defendant who enters such a plea is then
limited to claiming that the indictment failed to state an offense, that
the statute is unconstitutional or that the statute of limitations bars
prosecution."
Id.
at 404-05 (citing United States v. Sepe, 474 F. 2d 784 (5th
Cir.), aff'd, 486 F. 2d 1044 (5th Cir. 1973) (en banc)). None of the
vices listed in Broome apply. Touchet does not contend that the
indictment fails to state an offense; to the contrary, he argues too
many offenses are stated. No allegation of unconstitutionality of the
statute under which he is charged, 26
U. S.
C. §7201 is made. Nor is a plea of limitations raised. Touchet's
complaint of improper cumulation "may not be considered by this
court on appeal."
United States
v. Tallant, 547 F. 2d 1291, 1295 (5th Cir. 1977). Any such
complaint was waived by entry of the plea of nolo contendere.
Sentencing
The
government concedes that the case should be remanded for a
re-determination of sentencing. A trial court may not condition
probation upon payment of a specified sum of taxes when that sum has not
been acknowledged, conclusively established in the criminal proceeding,
or finally determined in civil proceedings. Touchet is entitled to
litigate his civil liability; "the conditions attached to probation
must be removed." United States v. White [69-2 USTC ¶9675],
417 F. 2d 89 (2d Cir. 1969) (citing United States v. Taylor [62-2
USTC ¶9590], 305 F. 2d 183 (4th Cir. 1962); United States v. Stoehr
[52-1 USTC ¶9299], 196 F. 2d 276 (3d Cir. 1952)). Until there has been
a definitive determination or adjudication of the amount of taxes
Touchet owes, he may not be required to pay charged deficiency sums as a
prerequisite of probation or as a condition for release from custody.
The
conviction is AFFIRMED; the matter is REMANDED for resentencing.
*
Former Fifth Circuit case, Section 9(1) of Public Law 96-452--October
14, 1980.
1
Touchet ingeniously suggests that the counts are duplicitous under Rule
8(a) of the Federal Rules of Criminal Procedure because each imporperly
joins offenses separately punishable under 26
U. S.
C. §7206(1) (preparation of false return), 26 U. S. C. §7206(2)
(aiding in the preparation of false return), and 18
U. S.
C. §1341 (mail fraud).
[75-1
USTC ¶9322]
United States of America
, Plaintiff-Appellee v. Peter J. Kondos, Defendant-Appellant
(CA-7),
U.S. Court of Appeals, 7th Circuit, No. 74-1619, 509 F2d 1147, 1/20/75,
Appeal from District Court, 74-1 USTC ¶9190, 635 F. Supp. 174,
dismissed
[Code Sec. 7201]
Criminal penalties: Appeal waiver: Nolo contendere plea.--Taxpayer's
appeal was dismissed since he had waived his right to appeal all
nonjurisdictional defects when he voluntarily entered his plea of nolo
contendere.
William
J. Mulligan, United States Attorney, Joseph P. Stadtmueller, Assistant
United States Attorney Milwaukee, Wis., for plaintiff-appellee. David
Walther, 22 E. Mason St., Milwaukee, Wisc., Dean Leslie Foschio,
University of Notre Dame Law School, Notre Dame, Ind., for
defendant-appellant.
Before
SWYGERT, Chief Judge, CASTLE and KILKENNY, * Senior
Circuit Judges.
PER
CURIAM:
Defendant
Peter J. Kondos pleaded nolo contendere to wilfully evading income taxes
in violation of 26 U. S. C. §7201, and a judgment of guilty was entered
on the plea. On appeal, the defendant complains of pre- and
post-indictment delays, and also argues that the district court erred in
denying his motion to suppress certain evidence. We do not decide these
issues, however, because the defendant's plea has waived his right to
appeal all nonjurisdictional defects in the proceedings.
The
record reveals, and the defendant does not assert otherwise, that at the
time of the plea the defendant recognized that a plea of nolo
contendere, like a plea of guility, would waive all nonjurisdictional
defects in the proceedings. See Tollett v. Henderson, 411
U. S.
258 (1973); McGrath v.
United States
, 402 F. 2d 466, 467 (7th Cir. 1968); 1 C. WRIGHT, FEDERAL PRACTICE
AND PROCEDURE §177, at 387-388 (1969). The defendant now seeks to avoid
the impact of that rule by contending that his plea was conditioned on
his right to appeal. The defendant relies on decisions in which the
courts have reached the merits where the plea entered below was
conditioned on the availability of an appeal. See, e.g.,
United States
v.
Mendoza
, 491 F. 2d 534 (5th Cir. 1974); United States v. Rothberg,
480 F. 2d 534 (2d Cir.), cert. denied 414
U. S.
856 (1973); Unites States v. Cox, 464 F. 2d 937 (6th Cir. 1975).
We
express no opinion as to the propriety of accepting
"conditional" pleas because we cannot conclude that the
defendant pleaded nolo contendere on the condition that his right to
appeal was preserved or that he was induced to believe that an appeal
would lie. At the change of plea proceedings, the government attorney
stated, without objection from the defendant, that the availability of
an appeal was not part of the plea bargain. Moreover, the Government
expressly stated in open court that it would not consent to the
preservation of the defendant's right to appeal. Finally, it was the
district court's position that although it would accept the nolo
contendere plea, the defendant proceeded at his own peril without
agreement or assurance from anyone that an appeal would be permitted.
The present case is therefore unlike United States v. Brown, 499
F. 2d 829 (7th Cir.), cert. denied, 43 U. S. L. W. 3327 (U. S. Dec. 10,
1974) because the district court here did not hold out any reason for
the defendant to believe that he was pleading nolo contendere subject to
the right of appeal. Thus, there is here no possible failure of
consideration within the plea bargaining process. Cf. Santobello v.
New York
, 404
U. S.
257, 262 (1971).
Accordingly,
we find that the plea of nolo contendere was voluntarily and
intelligently entered, and that the defendant's plea waived his right to
raise on appeal alleged nonjurisdictional defects. McGrath v. United
States, supra; United States v. Selby, 476 F. 2d 965 (2d Cir. 1973);
United States v. Matthews, 472 F. 2d 1173 (4th Cir. 1973); United
States v. Clark, 459 F. 2d 977 (8th Cir.), cert. denied, 409
U. S.
880 (1972). The appeal is therefore dismissed.
Appeal
Dismissed.
*
Senior Circuit Judge John F. Kilkenny of the United States Court of
Appeals for the Ninth Circuit sitting by designation.
[71-2
USTC ¶9770]
United States of America
, Appellee v. Oscar S. Mann, Appellant
(CA-2),
U. S. Court of Appeals, 2nd Circuit, Docket No. 71-1678, 11/8/71,
Affirming unreported District Court decision
[Code Sec. 6213--Result unchanged by '69 Tax Reform Act]
Appellate rights: Entry of guilty plea: Trial court's consent.--A
guilty plea waived the taxpayer's right to appeal from an order denying
his motion to dismiss an indictment because of the delay in bringing the
case on for trial. Neither the trial judge nor the prosecutor consented
to withhold the issue for appeal.
Whitney
North Seymour, Jr., United States Attorney, William B. Gray, Jon A Sale,
Assistant United States Attorneys, New York, N. Y., for appellee. Sandor
Frankel, Louis Bender,
New York
, N. Y., for appellant.
Before
MEDINA
,
MANSFIELD
and MULLIGAN, Circuit Judges.
PER
CURIAM:
In
connection with the entry of appellant's plea of guilty to Count Two of
an indictment filed on February 21, 1963, which charged appellant with
knowingly signing and filing a false and fraudulent income tax return
supposedly signed by his deceased father, appellant made an attempt to
reserve his right, despite the plea of guilty, to appeal from the order,
previously made, denying his motion to dismiss the indictment because of
the delay in bringing the case on for trial. It is settled law in this
Circuit that the point may be preserved for appeal provided the
reservation is "accepted by the court with the Government's
consent."
United States
v. Doyle, 348 F. 2d 715, 719 (2d Cir. 1965). See also United
States v. D'Amato, 436 F. 2d 52, 53 (3d Cir. 1970).
Here
neither the trial judge nor the prosecutor gave any consent whatever.
All Judge Cannella said was, "I make no judgment at this time
whether there is an appealable motion or whether any relief can be
granted." The prosecutor said nothing. The consents referred to in
Judge Friendly's opinion in Doyle must be clearly stated in
writing or on the trial record and not left to equivocal inference.
Accordingly, the guilty plea waived the claim of violation of rights
under the Sixth Amendment as well as all other non-jurisdictional
defects. United States v. Doyle, supra, 348 F. 2d 715 (2d Cir.
1965); United States v. Spada, 331 F. 2d 995 (2 Cir.), cert.
denied, 379
U. S.
865 (1964).
The
appeal is dismissed for lack of jurisdiction.