Communication to
Jury
7203: Willful Failure to File Return,
Supply Information, or Pay Tax: Trial: Communication to Jury
[77-1 USTC ¶9175]
United States of America
, Appellee v. Benjamin Rodriguez, Defendant-Appellant
(CA-2),
U. S. Court of Appeals, 2nd Circuit, Docket No. 76-1188, 545 F2d 829,
11/30/76, Affirming unreported District Court decision
[Code Secs. 7201 and 7206(1) and Rule 52(a) Federal Rules of Criminal
Procedure]
Crimes: Evasion of tax: Filing false return: Assertions of error at
trial.--The taxpayer's convictions for tax evasion and filing a
materially false income tax return were upheld by the Second Circuit
Court of Appeals. Even though the trial judge erred when he failed to
inform counsel of receipt of a deadlock note from the jury and his
responding instructions that the jury continue to deliberate, the court
found that such error was without prejudice to the taxpayer and that it
did not warrant reversal. Other miscellaneous assertions of error were
more summarily dismissed as being without merit.
John N. Bush,
Assistant United States Attorney,
Rob
ert B. Fiske, Jr., United States Attorney, Audrey Strauss, Assistant
United States Attorney, New York, N. Y., for appellee. Albert J.
Krieger, New York, N. Y., Joseph Beeler, 2829 Bird Ave., Miami, Fla.,
for defendant-appellant.
Before VAN
GRAAFEILAND, Circuit Judge, KELLEHER *
and GAGLIARDI. **
District Judges.
GAGLIARDI,
District Judge:
On April 16,
1974 a two count indictment was filed charging Benjamin Rodriguez with
attempting to evade payment of income tax for the year 1967, 26 U. S. C.
§7201, and with filing a materially false income tax return for the
same year, 26 U. S. C. §7206(1). After a twelve day jury trial in the
United States District Court for the Southern District of New York
before
Rob
ert L. Carter, J., Rodriguez was found guilty on both counts. He now
urges reversal on several grounds, the most serious of which is his
contention that the trial judge committed reversible error when, in
response to a deadlock note sent by the jury, he sent instructions to it
to continue deliberations without notifying counsel of the note and his
response thereto. We turn first to this claim and the circumstances
surrounding it.
At
3:45
P. M. on March 2, after the jury had been deliberating for one and one
half days, Judge Carter received a note from the jury which indicated
that the jurors felt they were unable to reach a unanimous verdict.
Without informing counsel of the receipt of this note or its contents,
Judge Carter sent a message to the jury instructing it to continue
deliberating. 1
Two hours later the jury requested that the testimony of a crucial
government witness be read. Judge Carter summoned counsel, the note was
discussed, the relevant testimony was identified and read to the jury,
and the jury retired. The judge then notified counsel for the first time
that he had received the deadlock note two hours earlier. He informed
counsel that he had instructed the jury to continue deliberating and
that he was still of the opinion that continued deliberations were
appropriate. Counsel for the defendant made no objection upon learning
of Judge Carter's disposition of the earlier note. One hour after this
colloquy the jury returned with its verdict of guilty. Rodriguez now
contends that the District Court committed reversible error when it
responded to the jury's deadlock note without first notifying counsel of
it and soliciting their statements. We reject his contention.
Although we
recognize that the preferred course is for the District Court to notify
counsel of all communications from the jury, Rule 43, Fed. R. Crim. P.,
and we hold that the course followed here was erroneous, we find no
plain error warranting reversal of the conviction. We hold instead that
the error was harmless, for it did not prejudice the defendant, and may
therefore be disregarded. Fed. R. Crim. P. 52(a). See United States
v. Reynolds, 489 F. 2d 4, 7-8 (6th Cir. 1973), cert. denied,
416
U. S.
988 (1974); United States v. Arriagado, 451 F. 2d 487, 488 (4th
Cir. 1971), cert. denied, 405
U. S.
1018 (1972). Cf.
United States
v. Schor, 418 F. 2d 26, 30 (2d Cir. 1969); United States v.
Crutcher, 405 F. 2d 239, 244 (2d Cir. 1968), cert. denied,
394
U. S.
908 (1969); United States v. Compagna, 146 F. 2d 524, 528 (2d
Cir. 1944), cert. denied, 324
U. S.
867 (1945).
Rule 43, supra,
"guarantees to a defendant in a criminal trial the right to be
present 'at every stage of the trial . . .'."
Rogers
v.
United States
, 422
U. S.
35, 39 (1975). Here, however, we find that the note from Judge Carter to
the jury, directing it to continue deliberating produced no
"reasonable possibility of prejudice" to the defendant
although sent without prior notice to counsel. United States v.
Reynolds, supra at 8. See United States v. Toliver, Dkt. Nos.
76-1130, 76-1136, 76-1202 (2d Cir. September 2, 1976), slip opin. 5321,
5332, quoting Walker v. United States, 322 F. 2d 434, 436 (D. C.
Cir. 1963), cert. denied, 375
U. S.
976 (1964). See 3 Wright, Federal Practice and Procedure §724,
at 203 (1969).
Counsel were
informed of the communication to the jury two hours after it had been
given, and any objection to the continuation of jury deliberations could
have been taken effectively at that time. The intervening request for
the testimony of a key witness indicated that the jury had received the
court's instruction to continue in a responsive manner and was
deliberating in a responsible and conscientious fashion. The jury did
not request and Judge Carter did not give legal instructions in the
absence of defendant and defense counsel. Nor did the Judge comment on
the form or acceptability of the verdict in response to a jury inquiry.
These factual circumstances distinguish the case before us from Rogers
v. United States, supra, and Shields v. United States, 273 U.
S. 583 (1927). Accordingly, upon a consideration of the non-prejudicial
nature of the court's communication to the jury and the absence of
objection, we find no plain error requiring reversal.
We turn now to
appellant's other claims of error, which may be disposed of in more
summary fashion. He argues that the District Court erred in instructing
the jury that it could probably reach a guilty verdict without finding
that the source of his unreported income was the purchase and sale of
heroin, as averred in the indictment which charged him with attempted
income tax evasion. Appellant contends that such instructions
effectively amended the indictment and violated the rule against
prejudicial variance enunciated in Stirone v. United States, 361
U. S. 212 (1960). We disagree. The essential elements of the violation
charged were the realization of substantial unreported income by the
defendant and the wilful and knowing attempt to evade payment of the
income tax due. Sansone v. United States [65-1 USTC ¶9307], 380
U. S.
343 (1965). To establish these elements the government introduced
evidence under both the specific items and the expenditures methods of
proof. From the totality of the evidence the jury could reasonably and
properly have inferred the existence of the essential elements without
finding beyond a reasonable doubt that the specific source of the income
was heroin transactions. United States v. Massei [58-1 USTC
¶9326], 355
U. S.
595 (1958). The averment in the indictment of this source may be treated
as surplusage; since it is not essential to the proof of the violation
charged, the jury may be instructed to disregard it. United States v.
Cirami [63-1 USTC ¶9311], 510 F. 2d 69 (2d Cir.), cert. denied,
421 U. S. 964 (1975); United States v. Colasurado, 453 F. 2d 585,
590-591 (2d Cir. 1971), cert. denied, 406 U. S. 917 (1972); see
United States v. Rosenblum [49-1 USTC ¶9314], 176 F. 2d 321,
323-324 (7th Cir.), cert. denied, 338 U. S. 893 (1949).
We also find
appellant's attack on the supplemental charge delivered by Judge Carter
to be unpersuasive. At the close of its first day of deliberations, the
jury sent Judge Carter a note which stated that one juror felt that the
defendant had not received a fair trial and asked if this meant that it
would be unable to return a verdict. Judge Carter sent the jury home for
the evening and the next morning gave supplementary instructions
emphasizing the jury's duty to find the facts based on the evidence
presented. In addition, Judge Carter gave a modified Allen
charge.
This Court has
regularly upheld such a modified Allen charge. See e.g.,
United States v. Bermudez, 526 F. 2d 89, 99-100 (2d Cir. 1975); United
States v. Tyers, 487 F. 2d 828, 832 (2d Cir. 1973), cert. denied,
416
U. S.
971 (1974); United States v. Birrell, 447 F. 2d 1168, 1173 (2d
Cir. 1971), cert. denied, 404
U. S.
1025 (1972). We find nothing in the charge in this case which exceeds
the permissible encouragement of the jurors to pursue their
deliberations toward a verdict, if possible, in order to avoid the
expense and delay of a new trial. The jury was neither coerced nor
directed toward any verdict. Bermudez, supra at 100. In his
supplementary instructions Judge Carter responsibly and properly dealt
with the concern voiced by one juror concerning the fairness of the
trial by correctly delineating the respective responsibilities of the
court and the jury. In these circumstances the District Court's
reference to the reviewing responsibility of the Court of Appeals over
its conclusions of law neither coerced the jury in its determination of
the facts nor undermined the seriousness and conscientiousness with
which it undertook them. See, e.g.,
United States
v. Marchese, 438 F. 2d 452, 455 (2d Cir. 1971), cert. denied,
402
U. S.
1012 (1971).
Finally, we
find no merit in the claim that the prosecutor improperly called the
jury's attention to defendant's decision not to testify in his own
behalf. Cf. Griffin v.
California
, 380
U. S.
609 (1965). We have repeatedly held that the prosecutor may comment upon
the defense's failure to contradict the government's case. United
States ex rel. Leak v. Follette, 418 F. 2d 1266, 1268-1270 (2d Cir.
1969), cert. denied, 397
U. S.
1050 (1970). This is particularly proper where contradictory testimony
was potentially available from witnesses other than the defendant
himself. United States v. Lipton, 467 F. 2d 1161 (2d Cir. 1972), cert.
denied, 410
U. S.
927 (1973); United States v. Deutsch, 451 F. 2d 98, 117 (2d Cir.
1971), cert. denied, 404
U. S.
1019 (1972). The remarks of the prosecutor in this case were not of such
character that a jury would naturally and necessarily take them as
comment on the failure of the defendant to testify, and therefore were
not unfairly prejudicial. United States ex rel. Leak v. Follette,
supra.
We have
considered appellant's other assignments of error and find them to be
without merit. For the foregoing reasons, we affirm the judgment of
conviction.
*
Of the Central District of California, sitting by designation.
**
Of the Southern District of New York, sitting by designation.
1
Judge Carter was at that time conducting a hearing on an application for
a preliminary injunction in another matter.