Instructions to Jury
USTC ¶9537]United States of America, Plaintiff-Appellee v. James Bazel
Carter, a/k/a "Red", Lemuel Sellers Morris, Thomas Edgar
Morris, Larry W. Jackson, James Holt Griffin, James Washington Griffin,
a/k/a "J. W.", Suzette Slade Jackson, Joe Veston Lightsey,
Charlotte Lightsey, and
ert Wayne Sapp, Defendants-Appellants
U. S. Court of Appeals, 11th Circuit, No. 82-8053,
, Affirming and reversing unreported District Court decision
[Code Secs. 7201 and 7206]
Criminal penalties: Tax evasion: Instructions to jury: Failure to
file return.--A conviction for tax evasion was reversed because the
district court judge failed to instruct the jury on how the cash
expenditures method was used to establish the taxpayers' income tax
deficiency. But one of the taxpayers' conviction for filing a false
income tax return was affirmed. The prosecution was not required to
prove the existence of any taxable income, but only had to show, which
it did, that the taxpayer did not believe his return to be correct.
T. Moore, United States Attorney, Frederick Kramer, Melissa S. Mundell,
Daniel I. Small, Assistant United States Attorneys, Savannah, Ga. 31412,
for plaintiff-appellee. Ronald A. Dion, 2020 Northeast 163rd Street,
North Miami Beach, Fla. 33162, for Carter, Lewis M. Groover, Jr., 2801
Buford Highway, N. E., Atlanta, Ga. 30329, William H. Glover, Jr., P. O.
Box 132, Brunswick, Ga. 31521, Edward T. M. Garland, 92 Luckie St., N.
W., Atlanta, Ga. 30303, M. Theodore Solomon, P. O. Box 467, Alma, Ga.
ert Killian, P. O. Box 1795, Brunswick, Ga. 31521, John P. Rivers, P. O.
Box 1935, Brunswick, Ga. 31521, Frank J. Petrella, 1515 1st Atlanta
Tower, 2 Peachtree St., N. W., Atlanta, Ga. 30383, for
JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD *, District
of prosecutions under the Racketeer Influenced and Corrupt Organizations
Act (RICO), 18 U. S. C. A. §§ 1961 et seq., the present case
involves ten appellants charged and convicted under various counts of a
seven count indictment; the common thread connecting the appellants is
found in their association with and participation in a drug smuggling
and bribery ring operating in and around Appling County, Georgia.
Untangling the skein of the various challenges to their convictions
raised by the appellants, 1 we begin at
the beginning of the prosecution. The indictment presented to the jury
in this case 2 charged
twelve defendants, including the ten appellants, with various crimes
arising from the drug smuggling and bribery activities. Count One, on
which eight appellants were charged and convicted, charged conspiracy to
violate RICO, in violation of 18 U. S. C. A. §1962(d). 3 Counts Two
through Four, on which nine appellants were charged and convicted,
charged possession of marijuana with intent to distribute, and aiding
and abetting in the possession of marijuana with intent to distribute,
in violation of 21 U. S. C. A. §841(a)(1) and 18 U. S. C. A. §2. Count
five, on which only appellant Charlotte Lightsey was charged and
convicted, charged perjury before a grand jury, in violation of 18 U. S.
C. A. §1623. Count Six, on which only appellants Larry and Suzette
Jackson were charged and convicted, charged tax evasion, in violation of
26 U. S. C. A. §7201. Count Seven, on which only appellant Larry
Jackson was charged and convicted, charged filing a false federal tax
return, in violation of 26 U. S. C. A. §7206(1). 4
appellant challenges his or her convictions on numerous and varied
grounds, some common to those of other appellants convicted on the same
count, and others necessarily unique to each appellant. Generally, these
challenges fall into one of six main categories: (1) the admissibility
of recorded conversations between certain appellants and a
co-conspirator; (2) challenges to the RICO conspiracy convictions; (3)
sufficiency of the evidence to convict appellants on various counts; (4)
the propriety of cumulative sentences for RICO conspiracy and possession
of marijuana with intent to distribute imposed on certain appellants;
(5) the alleged denial of certain appellants' right to conflict-free
counsel; and (6) tax issues raised by appellants convicted on Counts Six
and Seven. We address these contentions seriatim and, after a careful
review of the record, affirm each appellant's conviction on each count
charged in the indictment, with the exception of the convictions of
Larry and Suzette Jackson on Count Six, which we reverse.
stated, this case involves the association of a group of persons with
the common objective of profiting from criminal activity entailing drug
smuggling and bribery. The facts pertinent to each appellant's role and
participation in this objective are here set forth.
Lemuel and Thomas Morris owned the Morris Brothers Dairy Farms, Inc.,
located twenty miles south of Baxley, in
, a largely rural area. Prior to March of 1980, an airstrip was
constructed on an open field that was part of the dairy farm. This
airstrip was used to land planeloads of marijuana and hashish for both
Larry Jackson and Lemuel Morris, leaders of the smuggling operation.
Access to the airstrip on the dairy farm was provided by a dirt road
adjacent to Thomas Morris' house. A stash house for the drugs prior to
distribution was located nearby.
individuals involved in the drug smuggling and bribery operations can be
divided into two groups: those who participated in the drug smuggling
and bribery, and the law enforcement officials who provided protection
for the drug smuggling activities. In the first group, Larry Jackson and
Lemuel Morris were the leaders of the operations. Larry Jackson, a
resident of Baxley,
, received the air shipments of drugs, stored them and arranged for
their distribution. His partner, George Mitchell, a resident of
, arranged for the importation and delivery of the drugs to
. Larry Jackson was instrumental in bribing law enforcement officials
for protection of the drug smuggling. Lemuel Morris provided the
airstrip necessary for deliveries to both Larry Jackson and himself, and
bribed law enforcement officials for protection. Suzette Jackson, Larry
Jackson's wife, was the group's bookkeeper, handled the money, and was
present during deliveries. The other appellants played lesser roles in
the group's affairs. James "Red" Carter, the former sheriff of
Appling County, worked at the dairy farm and participated in deliveries
to the airstrip; he also unsuccessfully attempted to bribe the Sheriff
of Wayne County, Georgia, to permit the use of an airport in Wayne
County for deliveries of marijuana without fear of arrest.
ert Wayne Sapp, who occasionally worked at the dairy, was an unloader
for the drug shipments. James Holt Griffin refueled the airplanes and
helped unload the drugs. James Washington "J. W."
stored fuel for the airplanes and was present during the deliveries.
Thomas Morris, Lemuel Morris' brother, was a co-owner of the dairy farm,
the property upon which the airstrip and stash house were located, and
managed its affairs.
next group of individuals involved in the drug smuggling operations
included the law enforcement officials who provided protection for the
deliveries on the airstrip in return for bribes. Joe Lightsey, the
, headed this group. His wife, Charlotte Lightsey, monitored the police
radio from her station in the sheriff's office when planeloads of
marijuana were scheduled to arrive, and was present during meetings
between Joe Lightsey and the other law enforcement officials that
involved setting up the protection for deliveries. Larry Carter,
Lightsey's deputy, and Rayford Phillips, a Georgia Bureau of
Investigation agent assigned to Appling County, provided protection and
participated in the drug smuggling operations; they were paid on behalf
of Larry Jackson and Lemuel Morris by Joe Lightsey. Both Larry Carter
and Rayford Phillips testified on behalf of the government at
least as early as 1979, Larry Jackson and George Mitchell were bringing
. In December of 1979, Larry Jackson purchased approximately 2,000
gallons of airplane fuel from a company owned by Suzette Jackson, then
Suzette Slade. This fuel was stored at J. W. Griffin's farm. Prior to
March of 1980, the airstrip was constructed on the dairy farm, and the
Morris-Jackson operation began.
May of 1980, Joe Lightsey, Larry Carter and Rayford Phillips discussed
joining Larry Jackson's drug business, and in early August all three met
with Larry Jackson in a cemetery near
's house. At this meeting, Jackson told them that they could earn
anywhere from $5,000 to $10,000 each on every load of marijuana that
came in by monitoring the police radio during the delivery of shipments
and reporting the presence of the authorities. Larry Jackson told them
he was expecting a shipment any day.
the afternoon of
August 29, 1980
, Phillips and Larry Carter met with Joe Lightsey and Charlotte Lightsey
in Charlotte Lightsey's office at the sheriff's department. Joe Lightsey
told them that a load of marijuana would be arriving that night and
arranged a meeting with Phillips and Carter to discuss the details. Jose
Lightsey directed Carter to call the regularly scheduled sheriff's radio
operator for that night and arrange for Charlotte Lightsey to monitor
the radio and notify them if any calls came in about the drug delivery.
Carter and Phillips met with Joe and Charlotte Lightsey at the Lightsey
home as arranged. Joe Lightsey sent Charlotte Lightsey to monitor the
radio at the sheriff's office; Phillips was sent to
, to monitor calls on the state police band; Carter was told to meet
Larry Jackson at 7:30 that evening; and Joe Lightsey was going to be in
the vicinity of the dairy farm in an unmarked patrol car. Later that
evening, while present during the drug deliveries, Carter heard Joe
Lightsey on the sheriff's band radio calling Charlotte Lightsey at the
Joe Lightsey's car, equipped with a police band radio, Larry Carter met
Larry and Suzette Jackson at the appointed rendezvous. Carter followed
' car to a cemetery near the dairy farm, where the
left their car and proceeded with him in Joe Lightsey's car to the dairy
farm. Larry Jackson directed Carter through a dirt road connected to
Thomas Morris' driveway and on to the airstrip. Lemuel Morris followed
the car driven by Carter and blinked his headlights as a signal to stop
when the airstrip was reached. Carter was told to park near a hay baler
beside the airstrip. Two men began placing truck lights along the
approximately 10 p.m., the first airplane arrived. Larry Jackson told
Larry Carter that the plane contained 7,000 pounds of marijuana. James
Ricky Williams, assisted by others, loaded his truck with the marijuana
and drove away. James Holt Griffin operated the refueling truck for the
ert Wayne Sapp and J. W. Griffin were present and assisted with this
the unloading, Larry Jackson and Lemuel Morris talked to Larry Carter.
Lemuel Morris told him that he was expecting the arrival of another
airplane, and offered to pay him to stay and listen to the police band
radio in Lightsey's car. Carter agreed. J. W. Griffin drove Larry and
Suzette Jackson away from the airstrip;
ert Wayne Sapp and James Holt Griffin remained to assist Lemuel Morris.
Another aircraft arrived. Lemuel Morris told Larry Carter that it
carried 1,200 pounds of hashish. James Holt Griffin refueled the plane
ert Wayne Sapp and others unloaded it.
that evening, Phillips, Larry Carter and Lightsey met at the Lightsey's
house and discussed the two deliveries at the airstrip. Joe Lightsey
arranged to relieve Charlotte Lightsey at the sheriff's office.
following week Larry Carter and Phillips each received $5,000 in small
bills from Joe Lightsey as payment from Larry Jackson. Concerned that
Lemuel Morris had not paid up, and suggesting that they steal the drugs
if he didn't, Joe Lightsey drove Larry Carter and Phillips to a house
near the dairy farm known as
, where he said that the drugs were kept prior to distribution. Lemuel
Morris did, however, pay up, and Lightsey gave Larry Carter and Phillips
$1,000 each, stating that the money had come from Lemuel Morris.
mid-September 1980, Joe Lightsey told Larry Carter and Phillips that
Larry Jackson and the Morrises had a planeload of marijuana coming in
that night. Lightsey stated that the marijuana belonged to "the
Morrises and Larry Jackson." Larry Carter and Phillips again met
with Joe Lightsey and Charlotte Lightsey at
's office in the sheriff's department. Charlotte Lightsey told them that
James Carter had called and said there was going to be a party that
night, which was a code message that the Morrises were also expecting a
shipment. At that time, James Carter was working at the dairy farm.
Lightsey again told Larry Carter and Phillips to met him after work at
his house to work out the details. At this meeting, Joe Lightsey told
Larry Carter to monitor the police radio at the sheriff's office, sent
Rayford Phillips to
, again, and told them that he was going to meet the
as Larry Carter had done during the previous delivery. Joe Lightsey told
Larry Carter and Phillips that if they discovered any other law
enforcement agencies in the county to contact James Carter at the dairy
approximately 10 p.m. that evening, Larry Carter and Phillips received
the signal from Joe Lightsey that the delivery was complete. Phillips,
Larry Carter and Joe Lightsey then met at the Lightsey residence. Joe
Lightsey told them that Lemuel Morris and Larry Jackson had been on the
airstrip with him during the delivery, and that he had seen James Carter
at the dairy farm office. Lightsey stated that Larry Jackson's plane had
come in, and that the Morrises had a load delivered by a twinengine
Howard airplane whose landing gear had been damaged and grounded near
few days later, alerted by Rayford Phillips that law enforcement
officials were planning to fly over the airstrip and take photographs,
Joe Lightsey spoke with Lemuel Morris and Larry Jackson about the downed
aircraft. Larry Jackson assumed the responsibility for concealing the
aircraft in the woods near the airstrip.
days after the second delivery, Lightsey, Larry Carter, Phillips and
Larry Jackson, accompanied by Suzette Jackson, proceeded to the Winn's
, approximately a mile from the Appling and
line. Mr. and Mrs. Winn had been contacted by Larry Jackson in September
of 1980 about using a shed on their property as a stash house for the
marijuana prior to distribution. The Winns testified for the government
at appellants' trial. While at the Winn stash house, Larry Carter aided
Joe Lightsey, Larry Jackson, James Holt Griffin and another person in
loading bales of marijuana into a Winnebago. James Holt Griffin drove
the Winnebago. A total of two Winnebagos and three automobiles were
loaded with marijuana.
a week after the second delivery, Larry Carter and Phillips received
$5,000 in small bills from Joe Lightsey for Larry Jackson's shipment.
Later they received $1,000 each from Joe Lightsey for Lemuel Morris.
late October, Joe Lightsey, Larry Carter, Phillips and Larry Jackson
went to the Winn's stash house. Carter aided in loading wet marijuana
into a horse trailer. Larry Jackson told them that the marijuana had
arrived unexpectedly in the rain, and offered to pay them for the load
even though they had not assisted in the delivery. Suzette Jackson was
present at the stash house during this loading. As before, when Carter
and Phillips were brought to the stash house, they observed several men
involved in the marijuana loading whom they did not recognize as being
Larry Jackson gave Larry Carter $4,000 in payment for the third load, to
be divided between Carter and Phillips.
Behind the Scenes
May of 1980, William Breen, a marijuana distributor, was put in contact
with Larry Jackson by his partner, George Mitchell. Breen testified for
the government at appellants' trial. In May of 1980, Breen went to
, and met with Larry and Suzette Jackson to work out the details for the
marijuana distribution. Larry Jackson told him that he had airstrips, a
stash house, a guest house where Breen's crews could stay while awaiting
deliveries and that he had a sheriff, a chief of police, a Georgia
Bureau of Investigation agent, and a Drug Enforcement Administration
agent working with him. Larry Jackson took Breen on a tour of the guest
house, the stash house, and an airstrip. Breen declined
's invitation to meet the sheriff working with
mid September 1980, Mitchell made arrangements for Breen to bring a crew
. Breen met with Mitchell and Jackson at the guest house; James Holt
Griffin and Ricky Williams were also present. On Larry Jackson's
direction, James Holt Griffin drove Breen to a church parking lot where
Breen's vehicles were to meet after taking delivery of the marijuana.
Breen's crew, using two Winnebagos and three automobiles, picked up
3,300 pounds of marijuana from the stash house.
few days later, Mitchell contacted Breen about a 5,000 pound load of
marijuana to be picked up from
. Breen made the arrangements for one of his associates to drive an
eighteen wheeled tractor-trailer to the stash house; 5,500 pounds of
marijuana were loaded onto this trailer and taken to
late October of 1981, Breen was again contacted by Mitchell to pick up
. Using the tractor-trailer Breen and his crew loaded 12,500 pounds of
marijuana and took it to
late January and early February of 1981, Larry Carter and Rayford
Phillips agreed to cooperate with the FBI in its investigation of drug
. Both agreed to tape conversations with the smugglers and began wearing
a tape recording device for that purpose. In February of 1981, a special
grand jury for the Southern District of Georgia was convened in
, and began investigating drug smuggling activities. Numerous
conversations among Larry Carter, Phillips, and other members of the
drug smuggling operation were tape recorded and introduced into evidence
at appellants' trial. Most of these conversations centered around
detecting which members of the operation were cooperating with the grand
jury in its investigation.
February 27, 1981
, Larry Carter met with Larry Jackson at his residence. In a taped
conversation, Jackson and Carter tried to identify who might be
cooperating with the grand jury, and
offered Carter $10,000 to participate in unloading another plane.
March 3, 1981
, Larry Carter and Phillips met with Larry and Suzette Jackson at their
home. In a taped conversation, they discussed the grand jury
investigation and who might be involved; Suzette and Larry Jackson
discussed the amounts of payoffs made by Larry Jackson and Lemuel Morris
to James Carter and Joe Lightsey; and Larry Jackson stated that Suzette
Jackson had learned his business well in just one year.
March 20, 1981
, Charlotte Lightsey appeared before the special grand jury in
. Under oath, she denied that Larry Jackson had ever offered or paid
money to Joe Lightsey or his deputies for protection, or that she had
been present when Joe Lightsey discussed the drug protection business
with Larry Carter and Phillips. She rode back from the trip to
in a car with Larry Carter and Phillips. In a taped conversation, she
stated that she "lied like hell" 5 to the grand
jury, and that she was not afraid of a perjury prosecution because
prosecution for perjury was rare.
to Baxley on
March 20, 1981
, Carter and Joe Lightsey met with James Carter. They discussed the
grand jury investigation, the identity of the persons present at the
August 29, 1980
, delivery to ascertain who could link them to the delivery, and the
relationship between Larry Jackson and Lemuel Morris. James Carter
stated that Lemuel Morris had built the airstrip together with Larry
March 21, 1981
, Larry Carter met with Larry and Suzette Jackson. In a taped
conversation, they guessed that an associate of Lemuel Morris had been
co-operating with the grand jury, and that he had seen Larry Carter,
Larry Jackson and Suzette Jackson on the airstrip the night of the first
April 18, 1981
, Larry Carter and Phillips met with Lemuel Morris at the dairy farm. In
this taped conversation, Morris expressed his fear that either James
Ricky Williams or Suzette Jackson was cooperating with the authorities.
proceed to an examination of the various challenges raised by appellants
to their convictions.
The Admissibility of the Tape Recorded Conversations
claim that the trial court committed reversible error by admitting the
tape recorded conversations among Larry Carter, Phillips, and various
appellants into evidence, contending that these conversations are
co-conspirator hearsay statements. Under Fed. R. Evid. 801(d)(2)(E) a
statement made by a co-conspirator is not hearsay if it is made in
furtherance of the conspiracy and during its pendency. In this Circuit,
the requirements of Rule 801(d)(2)(E) have been explicated by United
States v. James, 590 F. 2d 575 (5th Cir. 1979) (en banc). 6 Under James,
in order to admit a co-conspirator's statement, the court must
determine, by a preponderance of the evidence: (1) that a conspiracy
existed, (2) that the co-conspirator and the defendant against whom the
co-conspirator's statement is offered were members of the conspiracy,
and (3) that the statement was made during the course and in the
furtherance of the conspiracy.
at 582-83. Appellants contend that the tapes were not admissible under James
because the conspiracy had ended by the time the conversations took
place and because the taped statements were not in furtherance of the
conspiracy, but were mere conversation about past events. We disagree.
ert Wayne Sapp, and Joe Lightsey, in a contention adopted by other
appellants, object to the admissibility of the tapes as a whole and fail
to identify which tape, or statement in a particular tape, is claimed to
be inadmissible. 7 In support
of this contention, appellants claim that the RICO conspiracy involving
drug smuggling and bribery ended prior to the taping of the
conversations in 1981, and that any statements regarding past drug
smuggling and bribery activities of the conspirators were not in
furtherance of the conspiracy. The trial court found, however, and we
agree, that the RICO conspiracy in which appellants were members
encompassed the further objective of the conspiracy to obstruct
justice--this objective continued until the return of the indictment in
this case. 8 In this
context, statements relating to strategy in the face of the grand jury's
investigation and an attempt to discover who was cooperating with the
grand jury were far more than mere conversation about past events, and
were clearly in furtherance of an objective of the RICO conspiracy. 9 Appellants
have failed to demonstrate that the tapes as a whole were erroneously
Thomas Morris specifically challenges one statement on a tape. In the
course of a conversation between Larry Carter and James Ricky Williams
April 16, 1981
, concerning the fact that someone had been talking to the grand jury
and that in order to identify the conspirators that person must have
been present at the
August 26, 1980
, delivery, Williams stated, "Tom and them might be trying to get
out of trouble or Lemuel and them." 10 We find
that this statement was made in the context of furthering an objective
of the ongoing RICO conspiracy, obstruction of justice, and was thus
properly admissible under Rule 801(d)(2)(E) against Thomas Morris, a
The RICO Conspiracy Challenges
appellants were charged and convicted under Count One of the indictment
with conspiracy to violate RICO. 11 Appellants
challenge their RICO conspiracy convictions on various grounds. We
consider each of their contentions and, for the following reasons,
affirm their RICO conspiracy convictions.
The Government's Proof of a Nexus Between the
and the Racketeering Activity
appellants' first attack upon the validity of their RICO conspiracy
convictions concerns the government's proof that the enterprise
conducted its affairs "through" a pattern of racketeering
activity as required by 18 U. S. C. A. §1962(c). 12 In this
case, the government elected to cast the enterprise for RICO purposes in
the form of the legitimate business, Morris Dairy Farms, Inc., wholly
owned by Lemuel and Thomas Morris. 13 The
government's proof of connections between the racketeering activity,
drug smuggling and bribery, and the dairy farm was that: (1) a pasture
located on the dairy farm was the site on which an airstrip was
constructed and utilized for bringing in shipments of drugs; (2) the
dairy farm office was used for communication between conspirators
concerning protection of the drug smuggling activities from law
enforcement authorities; (3) workers of the dairy farm participated in
the drug smuggling and protection activities; and (4) a house on the
dairy farm property was used for storing the drugs prior to
distribution. In short, the evidence revealed that the facilities and
employees of the dairy farm were utilized in furtherance of the drug
smuggling and bribery venture.
rely on United States v. Hartley, 678 F. 2d 961 (11th Cir.),
cert. denied, --
--, 103 S. Ct. 815, 74 L. Ed. 2d 1014 (1983), as establishing the
standard for the sufficiency of the required nexus between the affairs
of the enterprise and the racketeering activity. In Hartley, this
Court held that the government met its burden of proving conduct
"through" a pattern of racketeering activity since there was
"[a] sufficient nexus between the deceptive affairs employed by the
defendants in the inspection of breaded shrimp and the common everyday
affairs of the enterprise--the production of breaded shrimp."
at 991. Appellants seize upon this language in Hartley as setting
forth the minimal nexus required between an enterprise and the
racketeering activity to support a RICO conviction. Appellants' reliance
on Hartley is misplaced.
does not support the imposition of a requirement that in all RICO
prosecutions the government can meet its burden of proving conduct
"through" a pattern of racketeering activity only by
proof of a relationship between the enterprise and the illegal activity
affecting the common everyday affairs of the enterprise. The Hartley
court did not so hold; instead, the Hartley court applied the
standard articulated in United States v. Welch, 656 F. 2d 1039
(5th Cir. 1981), cert. denied, 456 U. S. 915, 102 S. Ct. 1768, 72 L. Ed.
2d 173 (1982), requiring a relation between the affairs of the
enterprise and the racketeering activity and holding that "by the
use of the word 'through,' Congress intended only to require a
sufficient nexus between the racketeering activities and the affairs of
the enterprise." Hartley, 678 F. 2d at 991 (quoting Welch,
656 F. 2d at 1062) (emphasis supplied by the Hartley court).
Welch, the former Fifth Circuit delineated the principles
governing the required nexus between the enterprise and the pattern of
racketeering activity. As in both Hartley and the present case,
the defendant in Welch relied on the original panel opinion in United
States v. Webster, 639 F. 2d 174 (4th Cir.), cert. denied, 454 U. S.
857, 102 S. Ct. 307, 70 L. Ed. 2d 152 (1981), in support of the claim
that conduct of an enterprise's affairs "through" a pattern of
racketeering activity requires that the affairs of the enterprise be
promoted or advanced by the racketeering activities. 14
Webster, the enterprise alleged was the 1508 Club and Tavern
Liquor Store, used to facilitate a pattern of racketeering activity
involved in the drug distribution operations of the Club's owner. No
proof was offered by the government that the drug distribution business
in any way promoted or advanced the operations of the Club. The
government argued that "the statute [18
C. A. §1962(c)] requires only a substantial nexus between the
racketeering and the conduct of the enterprise's affairs, regardless of
which direction the assistance flows."
at 184. The Webster court initially rejected this argument and,
in language relied on by appellants, held that:
meaning of the word "through" suggests that, at least where
the government elects to cast a §1962(c) indictment in a form in which
the "enterprise" is the legal or ostensibly legal activity, .
. . the statute should be applied in such a way as to punish where the
racketeering activity advances the nonracketeering business, but not
where the only relation between the two consists of benefits which the
racketeering activity derives from the nonracketeering activity.
court in Welch, however, disagreed with the Webster
court's interpretation of Section 1962(c), finding this analysis to be
"unduly restrictive." 656 F. 2d at 1061. Instead, the Welch
court held that the government is only required to prove "a
relation between the predicate offenses and the affairs of the
The Welch court found that "[i]n view of the link between
the enterprise--which makes possible the racketeering activity--and
the racketeering activity itself, it cannot convincingly be said that
the enterprise is not being conducted through a pattern of racketeering
(emphasis supplied). 15
link between the enterprise and the racketeering activity present in Welch
is precisely what was shown by the government's evidence in this case:
the enterprise, the dairy farm, made possible or facilitated the
racketeering activities through use of the dairy farm land as an
airstrip and a stash house for the drugs, the use of dairy farm
employees in the drug smuggling, and the use of the dairy farm office
for the drug smuggling and protection activities. Therefore, we hold
that, although clearly sufficient to support the required nexus between
the enterprise and the racketeering activity, proof of an effect upon
the common, everyday affairs of the enterprise is not the minimum
required to establish a relation between the enterprise and the
racketeering activity, and that proof that the facilities and services
of the enterprise were regularly and repeatedly utilized to make
possible the racketeering activity also establishes the conduct of the
affairs of the enterprise "through" a pattern of racketeering
activity. 16 To hold
otherwise would frustrate the major thrust of RICO, repeated time and
time again in its legislative history, as a weapon fashioned by Congress
to combat the infiltration of legitimate businesses by organized crime.
v. Turkette, 452
576, 591, 101
2524, 2532-33, 69 L. Ed. 2d 246 (1981). Such an infiltration of a
legitimate business does not have to reach the level on which the
everyday affairs of the business are affected before RICO is triggered.
"We do not believe that by the use of the word 'through,' Congress
intended to create additional limitations on the use of RICO to
eradicate the infiltration of legitimate businesses by organized
crime." Welch, 656 F. 2d at 1061 n. 29.
The Jury Instructions: Requirements of An Agreement to Violate RICO 17
second attack on the validity of their RICO convictions focuses on the
contents of an agreement to violate RICO. A RICO conspiracy requires
proof of an agreement to violate a substantive RICO provision in this
C. A. §1962(c). United States v. Phillips, 664 F. 2d 971,
1011-12 (5th Cir. Unit B 1981); 18 United
States v. Elliott, 571 F. 2d 880, 902 (5th Cir.), cert. denied, 439
U. S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978). Appellants contend
that an essential element of an agreement to violate RICO is that the
defendant must agree to personally commit two predicate acts, 19 and that
the trial court erred in declining to so instruct the jury. The charge
given by the trial court advised the jury of the elements of a
substantive RICO offense. The court then instructed the jury on the
general law of conspiracy as applicable to a RICO conspiracy. 20
issue thus presented is whether RICO alters general principles of
federal conspiracy law to require that the defendant must agree to
personally commit two predicate acts, or whether consonant with federal
conspiracy law a RICO conspiracy agreement consists of a defendant
agreeing to participate in the conduct of an enterprise's affairs with
the knowledge and intent that two predicate acts be committed. 21 In order to
resolve this issue, we need only to review the statute, the effect of
RICO on general federal conspiracy law, and the previous decisions of
1962(c) sets forth the substantive RICO offense in this case: "It
shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise's affairs through a pattern of
racketeering activity." A pattern of racketeering activity is
defined in Section 1961(5) as at least two acts of racketeering activity
within ten years of each other, with racketeering activity defined in
Section 1961(1) to include various state and federal offenses. Section
1962(d) provides that "It shall be unlawful for any person to
conspire to violate any of the provisions of subsections (a), (b) or (c)
of this section." When read together, the statutes speak only to
"conspiring to conduct or participate, directly or indirectly, in
the conduct of such enterprise's affairs through a pattern of
racketeering activity, i.e., two acts of racketeering activity
within at least ten years of each other." The statutory language
itself imposes no requirement that the defendant must agree to
participate in the conduct of an enterprise's affairs only by personally
committing two predicate acts. 22 Further we
note that "in enacting RICO, Congress found that 'organized crime
continues to grow' in part 'because the sanctions and remedies available
to the Government are unnecessarily limited in scope and import.'"
v. Elliott, 571 F. 2d 880, 902 (5th Cir. 1978). Imposing a
requirement that in all cases the government must prove that each
defendant agreed to personally commit two predicate acts would severely
limit the RICO conspiracy remedy provided by Congress.
the seminal RICO decision of United States v. Elliott, this Court
found that, in passing RICO, "Congress acted against the backdrop
of hornbook conspiracy law," 571 F. 2d at 902, and thus that in
order to find a RICO conspiracy agreement an overall objective was
necessary. The innovation of Congress in RICO was in "defin[ing]
that objective through the substantive provisions of the Act."
the object of a RICO conspiracy is to violate a substantive RICO
provision--here, to conduct or participate in the affairs of an
enterprise through a pattern of racketeering activity--and not merely to
commit each of the predicate crimes necessary to demonstrate a pattern
of racketeering activity.
The content of the agreement criminalized by RICO is still defined
against the backdrop of general conspiracy law, with the caveat of the
RICO definition of the objective contemplated by that agreement. The Elliott
court did not reject general federal conspiracy law as applicable to a
RICO conspiracy agreement. 23
claim that in our previous decisions this Court has required that a RICO
conspiracy contain an agreement by a defendant to personally commit two
predicate acts. In Elliott the court stated:
be convicted as a member of an enterprise conspiracy, an individual, by
his words or actions, must have objectively manifested an agreement to
participate, directly or indirectly, in the affairs of an enterprise through
the commission of two or more predicate crimes.
F. 2d at 903 (emphasis in original).
Each defendant in Elliott had actually committed two or more
predicate crimes, and, to the extent this language is claimed to apply
outside this context, it is dicta. Certainly, where the evidence reveals
that a defendant committed two predicate acts, "the inference of an
agreement to do so is unmistakable."
Finally, we note the Elliott court's emphasis upon agreeing to
participate in the enterprise, rather than agreeing to commit each of
the predicate acts through which the affairs of the enterprise were
conducted, as the proper focus of the inquiry:
Foster] may have been unaware that others who had agreed to participate
in the enterprise's affairs did so by selling drugs and murdering a key
witness. That, however, is irrelevant to his own liability, for he is
charged with agreeing to participate in the enterprise through
his own crimes, not with agreeing to commit each of the crimes
through which the overall affairs of the enterprise were conducted.
at 904 (emphasis in original) footnote omitted).
cases following Elliott on which appellants rely have one feature
in common: the agreement into which the defendant entered did not
contemplate the commission of the two predicate acts necessary to
constitute a pattern of racketeering activity, and thus was not a RICO
conspiracy agreement. In United States v. Phillips, 664 F. 2d 971
(5th Cir. Unit B 1981), the court reversed defendant Echezarreta's RICO
find that [Echezarreta] could be guilty of participating in a RICO
conspiracy, even though the conspiracy had the single objective of
importing the 200 pound load of marijuana, so long as he committed or
agreed to commit at least two separate crimes in furtherance of the
conspiracy's single objective.
. . .
there occurred two separate acts which Echezarretta agreed to do in
furtherance of the conspiracy to import marijuana, there was no pattern
of racketeering activity necessary for conviction for participation in a
theme of Elliott is echoed: in RICO, Congress expanded
traditional conspiracy law by creating a new objective for a RICO
conspiracy, violation of a substantive RICO provision. When an agreement
lacks this essential element, no pattern of racketeering activity
necessary for a RICO conspiracy is present unless the defendant supplies
the lack by personally agreeing to engage in a pattern of racketeering
activity in furtherance of the conspiracy's single objective. It does
not follow, however, that when the agreement contemplates the objective
of a RICO substantive violation, and a pattern of racketeering activity
is therefore present, a defendant must agree to personally commit each
of the predicate acts necessary for a pattern of racketeering activity.
States v. Martino, 648 F. 2d
367 (5th Cir. 1981), further illustrates this distinction. Defendant
Chase's agreement contemplated the single objective of the commission of
arson. No pattern of racketeering activity was agreed to by defendant
Chase. 24 The court
found that, in these circumstances, "in effect there are two
agreements contained in a RICO conspiracy charge: an agreement to
participate and an agreement to commit at least two proscribed
at 396. As in Phillips, when a defendant's agreement does not
include the objective of a RICO conspiracy, he must further agree to
personally commit two predicate acts in order for RICO to apply.
However, when a defendant agrees to become a member of a conspiracy with
the essential RICO objective, further proof that the defendant agreed to
personally commit two predicate acts is not necessary.
summary, we hold that where the government's evidence establishes that a
defendant agreed to participate in a conspiracy with a single objective,
the requisite pattern of racketeering necessary to the objective of a
RICO conspiracy is lacking. Only by demonstrating that the defendant
agreed to personally commit two or more predicate acts is this lack
cured. In a case of this type, the trial court must instruct the jury
that an essential element of a RICO conspiracy charge is an agreement to
participate in the enterprise's affairs by personally committing, or
agreeing to personally commit, two or more predicate acts. 25 When,
however, as in the present case, a defendant agreed to participate in
the conduct of an enterprise's affairs with the objective of violating a
substantive RICO provision, it is not necessary that the defendant agree
to personally commit two predicate acts for the required pattern of
racketeering activity. It is enough that the defendant agreed to the
commission of two predicate acts. An instruction on the objectives of a
RICO conspiracy followed by an instruction on general federal conspiracy
law is sufficient. In this case, the enterprise charged and proved was a
group of people who shared the common goals of drug smuggling and
bribery of law enforcement officials for protection of their illegal
activities, and who worked together to achieve those goals. Certainly
every member of the group was not involved in every transaction, but
every transaction was part of the conduct of the affairs of the
enterprise to which every member belonged. The trial court did not err
in refusing to instruct the jury that an agreement to personally commit
two or more predicate acts was required in order to convict a defendant
of a RICO conspiracy.
A Material Variance: Proof of Multiple Conspiracies When A Single
Conspiracy Was Charged?
Larry and Suzette Jackson, in a contention adopted by other appellants,
claim that a material variance between the indictment charging a single
RICO conspiracy and the government's proof of multiple conspiracies
affected their substantial rights. They rely on Kotteakos v. United
1239, 90 L. Ed. 1557 (1946), and United States v. Sutherland, 656
F. 2d 1181 (5th Cir. 1981). These cases are distinguishable from the
present case: in Kotteakos and Sutherland the government
failed to offer any proof of a single conspiracy. The Sutherland
court explained the significance of this distinction:
the government sufficiently supports its charge of a single conspiracy,
evidence at trial of multiple conspiracies does not of itself create a
material variance with the indictment; at most, such evidence creates a
fact question and entitles the defendants to a jury instruction on the
possibility of multiple conspiracies.
F. 2d at 1189 n. 5.
The trial court in this case instructed the jury that a single
conspiracy must be found in order to convict the appellants of a RICO
conspiracy. Evidence of a single conspiracy was also present: although
both Larry Jackson and Lemuel Morris each had his own deliveries, pilots
and stash houses, they both also used the same airstrip, the same
personnel to assist in off-loading, and the same law enforcement
officials for protection. From this evidence a reasonable jury could
infer a common objective and a single conspiracy. See
v. Howkins, 661 F. 2d 436, 457 (5th Cir. Unit B 1981).
C. The Sufficiency of the Evidence
challenge the sufficiency of the evidence to support their convictions
on both the RICO conspiracy count and the substantive counts of
possession of marijuana with intent to distribute, aiding and abetting
possession of marijuana with intent to distribute, and perjury before a
grand jury. Reviewing a conviction for sufficiency of the evidence
requires this Court to view the evidence, including all inferences that
may be reasonably drawn from it, in the light most favorable to the
government. Glasser v.
60, 80, 62
457, 469, 86 L. Ed. 680 (1942). "It is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided that a
reasonable trier of fact could find that the evidence establishes guilt
beyond a reasonable doubt." United States v. Bell, 678 F. 2d
547, 549 (5th Cir. Unit B 1982) (en banc). We review the counts in the
Count One: RICO Conspiracy
A. Suzette Jackson
Jackson challenges the sufficiency of the evidence to convict her of a
RICO conspiracy. The evidence demonstrated that she was present at the
August 29, 1980
, delivery and other critical meetings, and that she admitted that she
kept records of the income and expenses related to the drug smuggling
and bribery activities. We also note that she was convicted of two
substantive counts involving possession of marijuana with intent to
distribute. There was sufficient evidence to convict her of the RICO
Morris was convicted of the RICO conspiracy on the basis of
circumstantial evidence. 26 This is not
fatal to the government's case; "direct evidence of agreement is
unnecessary: proof of such an agreement may rest upon inferences drawn
from relevant and competent circumstantial evidence."
v. Elliott, 571 F. 2d 880, 903 (5th Cir. 1978). The
circumstantial evidence in this case consisted of evidence that Thomas
Morris was the co-owner and active manager of the dairy farm, and as
such was present at the dairy farm during and after working hours and
was the individual most familiar with the operations of the dairy farm;
that Thomas Morris was aware of the airstrip and offered its use to a
crop duster in 1980; that Thomas Morris was aware of the presence of a
camouflaged airplane next to the airstrip; that Thomas Morris' driveway
was located on the route to the airstrip; that a tape recorded
conversation between Larry Carter and James Ricky Williams contained a
statement that "Tom and them might be trying to get out of trouble
or Lemuel and them;" and that numerous statements were made by the
conspirators that the Morrises were expecting or had received deliveries
of drugs. Based on this evidence, and the inferences properly drawn from
it, we cannot say that a reasonable jury could not have found beyond a
reasonable doubt that Thomas Morris was a member of the RICO conspirary.
Count Two: Possession of Marijuana and Hashish with Intent to Distribute
Two charged the possession of 6,500 pounds of marijuana and 1,200 pounds
of hashish, in violation of 21 U. S. C. A. §841(a)(1), and aiding and
abetting the possession of these substances, in violation of 18 U. S. C.
A. §2, involved in the
August 29, 1980
, deliveries of two planeloads of drugs.
Lemuel Morris, Larry Jackson, and Suzette Jackson
appellants advanced opposite sides of the same argument: Larry and
Suzette Jackson argue that a material variance exists between the
indictment charging possession of both marijuana and hashish and the
government's proof that they left the airstrip before the hashish
arrived; Lemuel Morris claims that there was insufficient evidence to
convict him of possession of marijuana because he was not shown to have
taken custody of the marijuana. Each claim is without merit. The
multiple connections between the Jacksons and Lemuel Morris on the night
of the delivery established by the government's proof were a sufficient
basis for the jury to infer that all three were involved in both
shipments. All three met prior to proceeding to the airstrip that night,
followed Morris to the airstrip, and all three were present prior to the
arrival of the first shipment. Further, since Lemuel Morris provided the
airstrip, it is evident that he aided and abetted the possession of the
marijuana even if he did not personally take custody. In any event, even
assuming a variance between the indictment and the proof as to
possession of both marijuana and hashish for these appellants, the
further inquiry is whether such variance affected appellant's
substantial rights. They were not taken by surprise and prevented from
presenting a proper defense. Nor have they argued why they could not
successfully plead double jeopardy against reprosecution. See
v. Sheikh, 654 F. 2d 1057, 1066-67 (5th Cir. 1981).
Joe Lightsey, Charlotte Lightsey, and J. W. Griffin
government's theory as to each of these appellants 27 was that
they aided and abetted the illegal possession. In order to be convicted
of aiding and abetting, a defendant must associate himself with the
venture, participate in it as something he wishes to bring about, and
seek by his action to make it successful.
v. Houde, 596 F. 2d 696, 703 (5th Cir. 1979). There was
sufficient evidence for a reasonable jury to convict each of these
evidence revealed that the fuel used to refuel the airplanes was stored
on J. W. Griffin's property; that he owned the truck that was used to
refuel both planes; that he was present on the airstrip on the night of
the deliveries; and that he drove Larry and Suzette Jackson away from
the airstrip. Because J. W. Griffin failed to move for a judgment of
acquittal at the conclusion of the evidence, we find that on this record
affirmance of his conviction on Count Two is not a miscarriage of
v. Raffo, 587 F. 2d 199, 200 (5th Cir. 1979).
to Joe Lightsey, the evidence revealed that, although not actually
present during the deliveries, he directed and participated in the
protection activities, arranged for his wife to monitor the police radio
at the sheriff's office, and transferred the protection payments to the
other officers. A reasonable jury could infer that Joe Lightsey aided
and abetted the
August 29, 1980
Carter testified that Charlotte Lightsey was directed to relieve the
regular radio operator at the sheriff's office and that he heard her
voice on the sheriff's band radio while present during the
August 29, 1980
deliveries. Rayford Phillips corroborated this testimony. Charlotte
Lightsey's contention that her conviction should be reversed because
this evidence is circumstantial is without merit. Possession, as well as
aiding and abetting possession, may be established by circumstantial as
well as direct evidence. See
v. Garza, 531 F. 2d 309, 311 (5th Cir. 1976).
Count Three: Possession of Marijuana with Intent to Distribute
Three charged possession, and aiding and abetting the possession, of
5,000 pounds of marijuana involving a shipment in late September 1980.
We find the evidence sufficient to sustain appellants' convictions on
Larry Jackson and Suzette Jackson
appellants claim that there was insufficient evidence of the amount of
marijuana charged. However, the testimony of the distributor, William
Breen, that his crew removed 3,300 and 5,500 pounds of marijuana in late
September 1980, together with the fact that the bribes paid to the law
enforcement officials were equivalent to those paid for the larger
August 29, 1980
delivery, and the size of the vehicles required to move the marijuana,
sufficiently established the amount.
Jackson claims there was insufficient evidence to establish her guilt on
Count Two. The evidence showed that she was present at the late
September 1980 delivery; that she went with Larry Jackson, Joe Lightsey,
Larry Carter and Rayford Phillips to the stash house where the marijuana
was stored; and that she was present during the loading of the marijuana
for distribution. This evidence is sufficient to support the judge's
finding on Count Two.
Lemuel Morris and Joe Lightsey
Morris' claim that the evidence was insufficient to convict him is
without merit. Carter and Phillips were both told that a planeload
belonging to the Morrises had come in, and Morris allowed the
plane to land on the airstrip.
was also sufficient evidence to convict Joe Lightsey. His role in this
delivery was essentially the same as in the
August 29, 1980
delivery, with the addition that he was present at the airstrip when the
planes came in and participated in the transfer of the September
delivery for distribution.
Count Four: Possession of Marijuana with Intent to Distribute
Four charged possession, and aiding and abetting the possession, of
12,500 pounds of marijuana involved in the late October 1980 shipment.
Only Larry Jackson and Lemuel Morris were convicted on this count.
Jackson argues that there was insufficient evidence to support the
identification or amount of marijuana. His contention that the bales
contained a worthless substance is meritless in light of the payment of
bribes to Larry Carter and Phillips for this load, and the removal of
this load by Breen. Further, the uncontradicted testimony of Breen as to
the 12,500 pounds amount, coupled with the fact that an eighteen wheeled
tractor-trailer was necessary to transport the marijuana, is sufficient
to establish the amount.
Jackson stated that he used the dairy farm airstrip to bring in three
shipments of marijuana. Viewed in the light most favorable to the
government, the evidence of Lemuel Morris' provision of the airstrip for
the deliveries is sufficient to convict him of aiding and abetting in
the possession of the marijuana.
Court Five: Perjury Before a Grand Jury
Lightsey was the only appellant charged and convicted on Count Five. Her
sole challenge to this conviction is that the statements she made
concerning the protection activities 28 were not
material to the grand jury's investigation of drug smuggling and bribery
as required by 18 U. S. C. A. §1623. In support of this contention,
Lightsey claims that the government did not prove that her statements
actually influenced the grand jury because a complete transcript of the
grand jury proceedings and testimony of the grand jurors was not
introduced at trial. The government is not required to prove that her
statements actually influenced the grand jury; the determinative inquiry
for materiality is "whether the false testimony was capable
of influencing the tribunal on the issue before it." United
States v. Cosby, 601 F. 2d 754, 756 n. 2 (5th Cir. 1979) (emphasis
supplied). Further, although the methods suggested by Lightsey may be
the best means of proving materiality, they are not the exclusive means
of establishing materiality.
v. Thompson, 637 F. 2d 267, 268-69 (5th Cir. 1981). In this
case, Lightsey's trial for perjury also involved the trial of charges of
drug smuggling and bribery investigated by the grand jury. At this
trial, numerous tape recorded conversations were introduced discussing
the scope of the grand jury's investigation. On these facts, the
introduction of a partial transcript of the grand jury proceedings
consisting only of Lightsey's testimony was sufficient to support the
trial court's determination 29 that
Charlotte Lightsey's testimony that her husband had not received any
protection money and that she had not assisted any protection efforts
was material to the grand jury's investigation of the drug smuggling and
bribery operation in Appling County, Georgia.
Cumulative Sentences for RICO Conspiracy and Possession of Marijuana
with Intent to Distribute 30
Joe Lightsey, Larry Jackson, and Suzette Jackson claim that the
imposition of cumulative sentences for the RICO conspiracy counts and
the substantive counts of possession of marijuana with intent to
distribute violated the Double Jeopardy Clause or rendered the
indictment multiplicious. Similar claims have been analyzed in detail
and rejected by the former Fifth Circuit. United States v. Welch,
656 F. 2d 1039, 1054 n. 21 (5th Cir. 1981) (substantive RICO offenses
and conspiracy charges in same indictment not multiplicious); United
States v. Martino, 648 F. 2d 367, 382-83 (5th Cir. 1981) (RICO
conspiracy count and RICO substantive offense court not violative of
Double Jeopardy Clause.). The rationale of these decisions applies to
the present case: there is no double jeopardy violation because
"one offense requires proof of a fact not required by the
other." Martino, 648 F. 2d at 382. Clearly, a RICO
conspiracy charge requires proof of elements, including an enterprise
and an agreement, not required for proof of possession of marijuana with
intent to distribute.
Larry Jackson contends that the imposition of an enhanced sentence under
both the RICO conspiracy charge and the substantive charge of possession
of marijuana with intent to distribute violates the rule of Busic v.
United States, 446 U. S. 398, 100 S. Ct. 1747, 64 L. Ed. 2d 381
(1980). 31 In Busic
the Court held that 18 U. S. C. A. §924(c), which authorized an
enhanced sentence for felonies committed while using a firearm, cannot
be applied where a defendant is convicted of violating a statute which
itself authorizes enhancement if a dangerous weapon is used. The fallacy
's argument is that a RICO conspiracy charge cannot be equated with 18
C. A. §924(c). In Busic, the two enhancement statutes required
an identity of elements and of proof. However, as we have previously
noted, the RICO conspiracy count in the present case required proof of
elements not required for the substantive counts of possession of
marijuana with intent to distribute.
find no error in the imposition of cumulative sentences imposed on
appellants for RICO conspiracy and possession of marijuana with intent
The Right to Conflict-Free Counsel 1. James Holt
sole basis of
's appeal is that his Sixth Amendment rights were violated by his trial
counsel's conflict of interest stemming from his representation of
and five other co-defendants. Although the trial court did not advise
of his right to separate representation in accordance with the dictates
of Fed. R. Crim. P. 44(c) and United States v. Garcia, 517 F. 2d
272 (5th Cir. 1975), we have held that this failure does not constitute
error requiring reversal unless a defendant can demonstrate an actual
conflict of interest.
v. Mers, 701 F. 2d 1321, 1326 (11th Cir. 1983).
will not find an actual conflict "unless appellants can point to
specific instances in the record to suggest an actual conflict or
impairment of their interests."
must make a factual showing of inconsistent interests and must
demonstate that the attorney "made a choice between possible
alternative courses of action, such as eliciting (or failing to elicit)
evidence helpful to one client but harmful to the other. If he did not
make such a choice, the conflict remained hypothetical." There is
no violation where the conflict is "irrelevant or merely
hypothetical"; there must be an "actual, significant
actual conflict of interest exists if counsel's introduction of
probative evidence or plausible arguments that would significantly
benefit one defendant would damage the defense of another defendant whom
the same counsel is representing." Baty v. Balkcom, 661 F.
2d 391, 395 (5th Cir. Unit B 1981); see also United States v. Risi,
603 F. 2d 1193, 1195 (5th Cir. 1979) ("[t]here must be a
significant divergence in the interests of the jointly represented
person in order for an actual conflict to exist.").
's counsel employed a "unified front" strategy on behalf of
the co-defendants whom he represented on the grounds that the events
alleged in the indictment and proved by the government never happened.
argues that this strategy disadvantaged his defense because the evidence
against his co-defendants, particularly Larry and Suzette Jackson, was
much stronger than that against him. Faced with such evidence,
contends that his trial counsel should have followed a strategy of
emphasizing the relative weaknesses of the government's case against
him. Similar claims concerning the use of a "unified front"
defense have been advanced and rejected in previous cases. Mers.
701 F. 2d at 1330-31; United States v. Kranzthor, 614 F. 2d 981,
982-83 (5th Cir. 1980); Canal Zone v. Hodges, 589 F. 2d 207, 210
(5th Cir. 1979); see also United States v. Benavidez, 664 F. 2d
1255, 1259-62 (5th Cir. 1983). The determinative inquiry in such a case
is a "specific application of the general principal that to warrant
reversal, a conflict of interest must be actual, rather than
hypothetical," Mers, 701 F. 2d at 1331, thus "an
alleged conflict of interest that obstructs the use of a strategy or
defense is not significant unless the defense is plausible."
(quoting Foxworth v. Wainwright, 516 F. 2d 1072, 1080 (5th
Cir. 1975)) (emphasis in original).
alleges that a plausible alternative strategy to the united front
defense chosen by counsel would have been to seek a severance of the two
counts on which Griffin was charged; to call jointly represented
co-defendants to the stand to exculpate Griffin; to seek to discredit
the government's witnesses' identification of James Griffin, rather than
James Holt Griffin; to argue the disparities in the evidence between
Griffin and his co-defendants in opening argument and at sentencing; and
to argue the relatively minor role Griffin played in the operation in
relation to his co-defendants. 32
to adopt a strategy of shifting blame may well give rise to an actual
conflict of interest, but to do so the strategy must have been an option
realistically available to trial counsel." Mers, 701 F. 2d
at 1331. In this case, there is no evidence that such an option was
's counsel. The defenses of
and his co-defendants were not mutually exclusive or inconsistent. The
weaknesses of the government's case against
were argued by his counsel in his motion for judgment of acquittal at
the close of the government's case. In light of the identification of
Griffin by two government witnesses as present during and assisting in
the deliveries, along with co-defendants, we do not think that Griffin
stood to gain significantly by abandoning the united front defense.
points to no evidence that a co-defendant could have exculpated him. In
is unable to show that his counsel sacrificed the rights of one
defendant for those of another, and has failed to demonstate an actual
conflict of interest.
claims that he was denied the effective representation of counsel due to
a lawyer-client conflict. Carter's retained trial counsel were Emmett
Johnson and Lewis Groover. Johnson had previously formed corporations
for Larry and Suzette Jackson, and on that basis was notified by
prosecution that he would be called as a witness at appellants' trial.
Johnson filed a motion seeking clarification, and the court made a
pretrial ruling that Johnson need not withdraw as Carter's counsel. At
trial, the government withdrew its request for Johnson to testify, and
Johnson with Carter's consent withdrew as trial counsel for Carter.
Groover, who also represented defendant
ert Wayne Sapp, continued to represent both Carter and Sapp. At Carter's
trial, and before Johnson withdrew, the government announced its
intention to call Johnson as a witness. Three tapes were introduced at
trial of conversations between Larry Carter and James Carter in which
Johnson's name was mentioned. 33
only "conflict" here claimed is based on contention that
Carter was prejudiced by the announcement that Johnson would be called
as a government witness and the fact that his name was mentioned on the
tapes. We find that, in light of Carter's active representation by
Groover as well as by Johnson prior to Johnson's withdrawal at trial,
Carter was not denied his right to effective representation of counsel.
Further, we find that Carter has failed to establish any conflict of
interest arising from Groover's representation of both Carter and Sapp.
Larry and Suzette Jackson were charged with tax evasion, in violation of
C. §7201, under Count Six of the indictment. Larry Jackson was also
charged in Count Seven with filing a false income tax return, in
violation of 26 U. S. C. A. §7206(1). We reverse the
' convictions on Count Six, and affirm Larry Jackson's conviction on
establish a §7201 violation, the government must prove (1) the
existence of a tax deficiency, (2) an affirmative act constituting an
evasion or attempted evasion of the tax due, and (3) willfulness. United
States v. Fogg [81-2 USTC ¶9607], 652 F. 2d 551, 555 (5th Cir.
1981); (quoting United States v. Hiett, 581 F. 2d 1199, 1200 (5th
tax deficiency may be proved by circumstantial evidence: (1) the net
worth method, United States v. Hiett [78-2 USTC ¶9754], 581 F.
2d 1199 (5th Cir. 1981); (2) the bank deposits method, United States
v. Boulet [78-2 USTC ¶9628], 577 F. 2d 1165 (5th Cir. 1978); or (3)
the cash expenditures method, United States v. Penosi [72-1 USTC
¶9103], 452 F. 2d 217 (5th Cir. 1971).
this case, the government utilized the cash expenditures method of
proof. At the close of the trial, the court instructed the jury on the
elements of Section 7201. No instructions concerning the cash
expenditures method of proof were requested, and none were given.
Therefore, we review appellants' challenge to the failure of the court
to give explanatory instructions concerning the cash expenditures method
of proof under the plaint error standard. Fed. R. Crim. P. 30, 52(b).
Holland v. United States [54-2 USTC ¶9714], 348
121, 129, 75 S. Ct. 127, 132, 99 L. Ed. 150 (1954), the Supreme Court
recognized the dangers inherent in utilizing the net worth method:
we cannot say that [the] pitfalls inherent in the net worth method
foreclose its use, they do require the exercise of great care and
restraint. The complexity of the problem is such that it cannot be met
merely by the application of general rules. Trial courts should approach
these cases in the full realization that the taxpayer may be ensnared in
a system which, though difficult for the prosecution to utilize, is
equally hard for the defendant to refute. Charges should be
especially clear, including, in addition to the fomal instructions, a
summary of the nature of the net worth method and the assumptions on
which it rests, and the inferences available both for and against the
supplied) (citation omitted).
This language is clear; we therefore hold that
sets forth the standards governing and requiring explanatory
instructions in a net worth method case. Accord United States v. Hall
[81-1 USTC ¶9209], 650 F. 2d 994, 998 (9th Cir. 1981); United States
v. Tolbert [66-2 USTC ¶9682], 367 F. 2d 778, 780-81 (7th Cir.
1966); United States v. O'Connor [56-2 USTC ¶9956], 237 F. 2d
466, 472-73 (2d Cir. 1956); see also United States v. Meriwether
[77-1 USTC ¶9390], 440 F. 2d 753, 756-57 (5th Cir. 1971) (reversing
Section 7201 conviction; trial court failed to instruct jury on method
we find no principled basis for distinguishing between the Holland
mandated explanatory jury instructions concerning the net worth method
of proof and the present cash expenditures method: both invoke the same
concerns regarding the defendant's right to a fair trial based on the
jury's understanding of the method of proof utilized by the prosecution.
See United States v. Newman [72-2 USTC ¶9719], 468 F. 2d 791,
793 (5th Cir. 1972) ("The 'expenditures' method [is] a simple
variant of the 'net worth method,'"). In sum, we hold that in
Section 7201 cases utilizing the cash expenditures method of proof, as
well as the net worth method,
requires that the trial court charge the jury concerning the nature of
the cash expenditures method and the assumptions on which it rests, and
the inferences available both for and against the accused.
now determine if the omission of such explanatory instructions required
constitutes plain error. Plain error exists where a highly prejudicial
error affects the defendant's substantial rights. United States v.
Herzog [81-1 USTC ¶9110], 632 F. 2d 469, 472 (5th Cir. 1980). The
plain error rule will not be invoked unless the omission of the
instructions is error so grave as to result in a likelihood of a
miscarriage of justice or to seriously affect the fairness, integrity or
public reputation of the judicial proceedings. See
v. McMahon, 715 F. 2d 498, 500 (11th Cir. 1983). We find that
the omission of the required explanatory instructions concerning the
cash expenditures method of proof in this case "goes to the very
basis of the jury's ability to evaluate the evidence," Hall,
650 F. 2d at 999, and to the very core of the deliberative process
necessary to guarantee the fairness of the proceedings. We therefore
hold that the omission of the explanatory instructions required by
concerning the cash expenditure method of proof constituted plain error
affecting appellant's substantial rights. See id.; Tolbert, 367
F. 2d at 781; see also Meriwether, 440 F. 2d at 756-57. We
' convictions on Count Six.
Jackson contests his conviction on Count Seven of filing a false income
tax return, in violation of 26 U. S. C. A. §7206(1), on the grounds
that the government failed to establish the element of an opening net
worth required in Section 7201 cash expenditures method prosecutions to
prove taxable income. See United States v. Marshall [77-2 USTC ¶9581],
557 F. 2d 527, 529 (5th Cir. 1977). Section 7206(1) is a fraud statute
and, unlike Section 7201, does not require the prosecution to prove the
existence of any taxable income. United States v. Taylor [78-1
USTC ¶9474], 574 F. 2d 232, 234 (5th Cir. 1978).
section [7206(1)] requires simply that the government prove that
defendant willfully made and subscribed a return, that it contained a
written declaration that it was made under penalties of perjury, and
that the defendant did not believe the return to be true and correct as
to every material matter.
burden was met in the present case, and we affirm Larry Jackson's
conviction on Count Seven. 34
AFFIRM the appellants' convictions on each count charged in the
indictment, with the exception of the convictions of Larry Jackson and
Suzette Jackson on Count Six, which we REVERSE.
Honorable Clarence W. Allgood, U. S. District Court Judge for the
Northern District of Alabama, sitting by designation.
Although on certain issues duplicating arguments are made by other
appellants, the combined total of the ten appellants' arguments in brief
is forty-seven. Additionally, all but four of the appellants adopt the
arguments raised by co-appellants.
The original indictment returned charged eighteen defendants in ten
counts. Thirteen defendants were tried together. At the close of the
government's case, the court dismissed without objection the one charge
against co-defendant Johnny Morris. A redacted version of the original
indictment, omitting the counts not pertaining to the defendants on
trial, the names of the defendants not on trial, and the charge
pertaining to Johnny Morris, was presented to the jury. Eleven
defendants were convicted on each of the counts with which they had been
charged. Co-defendant Arlton Z. Jackson, charged only in Count Seven,
was acquitted by the jury. All eleven of the convicted defendants
appealed; the motion of appellant James Ricky Williams to dismiss his
appeal was granted by this Court.
C. A. §1962(d) provides that:
shall be unlawful for any person to conspire to violate any of the
provisions of subsection (a), (b), or (c) of this section.
were charged with conspiring to violate 18
C. A. §1962(c). Section 1962(c) provides that:
shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise's affairs through a pattern of
racketeering activity or collection of unlawful debt.
District Court for the Southern District of Georgia imposed the
Morris: Imprisonment for twenty years and a $25,000 fine on Count One;
consecutive terms of imprisonment for fifteen years and consecutive
fines of $125,000 on Counts Two through Four. The prison terms on Counts
Two through Four are concurrent with the sentence under Count One. The
aggregate sentence is forty-five years imprisonment and a $400,000 fine.
Morris: Imprisonment for twenty years and a $25,000 fine on Count One.
Jackson: Imprisonment for twenty years and a $25,000 fine on Count One;
consecutive terms of imprisonment for fifteen years and consecutive
$125,000 fines on Counts Two through Four; concurrent terms of
imprisonment for five years on Count Six, and three years on Count
Seven. All fines are cumulative; the sentence imposed on Count One is
concurrent with the sentences imposed on Counts Two through Four. The
aggregate sentence is imprisonment for forty-five years and a $400,000
Carter: Imprisonment for twenty years on Count one; imprisonment for
fifteen years on Count Three; fines of $25,000 on Count One, and
$125,000 on Count Three. The prison terms and fines are consecutive. The
aggregate sentence is imprisonment for thirty-five years and a $150,000
H. Griffin: Consecutive terms of imprisonment for ten years on Counts
Two and Three; consecutive fines of $50,000 on each Count. The aggregate
sentence is imprisonment for twenty years and a $100,000 fine.
W. Griffin: Imprisonment for ten years and a $25,000 fine on Count Two.
Jackson: Imprisonment for twenty years and a $25,000 fine on Count One;
concurrent terms of imprisonment for fifteen years and consecutive fines
of $125,000 on Counts Two and Three; imprisonment for five years and a
$10,000 fine on Count Six, with the prison term to run concurrently with
the sentence imposed on Count One but consecutively to the sentences
imposed on Counts Two and Three. All fines are cumulative. The sentences
imposed on Counts Two and Three are concurrent to that under Count One.
The aggregate sentence is imprisonment for twenty years and a fine of
Lightsey: Consecutive terms of imprisonment for fifteen years on Counts
One through Three; cumulative fines of $25,000, $125,000 and $125,000 on
these three counts. The aggregate sentence is imprisonment for
forty-five years and a fine of $275,000.
Lightsey: Concurrent terms of imprisonment for fifteen years on Counts
One and Two and a consecutive term of imprisonment for five years on
Count Five. A $125,000 fine imposed on Count Two. Aggregate sentence of
imprisonment for twenty years and a $125,000 fine.
ert Wayne Sapp: Consecutive terms of
imprisonment of ten years on Counts One and Two and cumulative fines of
$25,000 and $75,000. Aggregate sentence of imprisonment for twenty years
and a $100,000 fine.
Gov. Exs. 12A & 12B.
In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit adopted the case law of the former
Fifth Circuit handed down as of
September 30, 1981
, as its governing body of precedent.
The government contends that many of the tapes are admissible on grounds
other than Rule 801(d)(2)(E), such as a declaration against the
declarant's penal interest under Fed. R. Evid. 804(b)(3) or an
admission, and that the tapes have an evidentiary value as to the fact
that certain conversations took place, that certain subject matter was
discussed, and that certain appellants were known to one another in
connection with the drug smuggling, apart from the truth of the matters
asserted in the conversation. After a careful review of the tapes, we
agree that many portions of the tapes are admissible on grounds other
than Rule 801(d)(2)(E).
The original indictment alleged that one of the predicate acts
contemplated by the RICO conspiracy was the obstruction of justice. The
redacted version of the indictment omitted this reference. That omission
does not defeat the government's claim that there was an ongoing
conspiracy. Independent evidence of the objective of the RICO conspiracy
to obstruct justice was present in this case, including those portions
of the tapes admissible on grounds other than Rule 801(d)(2)(E). Cf.
v. Peacock, 654 F. 2d 339, 349 (5th Cir. 1981).
we note the presence of independent evidence that the drug smuggling and
bribery objectives of the conspiracy continued beyond the date of the
last substantive charge in the indictment, October, 1980. Gov. Exs. 10A
Without specifying which portions of the tapes are being challenged,
appellants claim that the tapes contain statements not in furtherance of
the conspiracy to obstruct justice. It is impossible to review this
contention without specific statements and the context in which they
arose being identified. We note, however, the government's argument that
in the event statements on the tapes were improperly admitted as not in
furtherance of the conspiracy to obstruct justice, in light of the
overwhelming evidence of appellants' guilt apart from the tapes, the
error was harmless.
Gov. Exs. 16A & 16B.
Lemuel Morris, Thomas Morris, Larry Jackson, Suzette Jackson, Joe
Lightsey, Charlotte Lightsey, James Carter and
ert Wayne Sapp.
Appellant Joe Lightsey claims that the government failed to prove that
the enterprise charged, Morris Brothers Dairy Farms, Inc., engaged in
interstate commerce as required by 18 U. S. C. A. §1962(c). This claim
is contradicted by the record. The dairy farm's bookkeeper testified
that the dairy farm engaged in out-of-state business. 19 R. 5-6.
v. Cagnina, 697 F. 2d 915 (11th Cir. 1983) (enterprise can include
informal criminal network engaged in racketeering activity); United
States v. Martino, 648 F. 2d 367 (5th Cir. 1981) (RICO applicable to
group whose sole purpose is to engage in criminal activities).
Appellants also rely on United States v. Nerone, 563 F. 2d 836,
850-52 (7th Cir. 1977), cert. denied, 435
1577, 55 L. Ed. 2d 801 (1978), and United States v. Mandel, 591
F. 2d 1347, 1376 (4th Cir. 1979). As in Welch, we find the
conclusion of the court in United States v. Bright, 630 F. 2d 804
(5th Cir. 1980), equally applicable here: "[T]his case is
distinguishable from those where the pattern of racketeering activity
alleged was not linked to the alleged enterprise's affairs." 656 F.
2d at 1062 (quoting Bright, 630 F. 2d at 830-31).
In a like vein, subsequent to Welch, the original panel opinion
in Webster was modified on rehearing, and the Fourth Circuit
withdrew its earlier interpretation of Section 1962(c).
v. Webster, 669 F. 2d 185 (4th Cir. 1982). Affirming defendants'
convictions, the Webster court on rehearing reviewed the
government's evidence that the affairs of the 1508 Club were conducted
through a pattern of racketeering activity:
introduced at the trial tended to show that, by means of the telephone
company's call-forwarding service, telephone calls to Webster's and
Thompson's home telephone . . . were frequently forwarded to the
telephone at the 1508 Club; [and] that Club facilities and personnel
were used to accept and relay narcotics related messages . . .
. . .
evidence which the government has offered as sustaining the convictions
under subsection (c) indicates that the facilities of the 1508 Club were
regularly made available to, and put in the service of, the defendants'
drug dealing business.
evidence was held sufficient to establish the nexus between the
racketeering activities and the enterprise.
In United States v. Cauble, 706 F. 2d 1322 (5th Cir. 1983), the
Fifth Circuit formulated a test for determining the sufficiency of the
government's proof of the required nexus between the enterprise, the
defendant, and the pattern of racketeering activity. As we find the
nexus established in the present case clearly sufficient under Welch
and Hartley, we do not reach the issue of the appropriate test in
this Circuit for such a determination. We note, however, that under the Cauble
test the evidence in this case is sufficient to establish the requisite
nexus between the enterprise and the racketeering activity; "[t]he
prosecution need only prove that the racketeering acts affected the
enterprise in some fashion."
at 1333 n. 24.
Appellants also contend that the trial court erred in declining to
instruct the jury that proof of the conduct of the affairs of an
enterprise "through" a pattern of racketeering activity
required proof of an effect on the common everyday affairs of the
enterprise. Since we find that this is not the required standard,
refusal to give such an instruction was not error.
Thomas Morris claims that the trial court erred in failing to instruct
the jury that, in order to establish a conspiracy under general
conspiracy law, the government was required to prove knowledge of the
conspiracy, actual participation and criminal intent beyond a reasonable
doubt. A review of the record reveals that the conspiracy charge given
adequately set forth the elements of general conspiracy law, including
knowledge, participation and criminal intent.
In Stein v. Reynolds Securities, Inc., 667 F. 2d 33, 34 (11th
Cir. 1982), this Court adopted as binding precedent the post-September
30, 1981, decisions of the Unit B panel of the former Fifth Circuit.
Predicate acts or crimes are those acts defined in §1961(1) and (5) as
establishing a pattern of racketeering activity. In this case, the
predicate acts charged were drug smuggling and bribery.
The trial court's instructions:
the evidence in the case must show beyond a reasonable doubt is:
(1) That two or more persons in some way or manner, positively or
tacitly, came to a mutual understanding to try to accomplish a common
and unlawful plan, as charged in the indictment;
(2) That the Defendant in question willfully became a member of such
(3) That one of the conspirators, during the existence of the
conspiracy, knowingly committed at least one of the means or methods
(overt acts) described in the indictment; and
(4) That such overt act was knowingly committed at or about the time
alleged in an effort to accomplish or effect some object or purpose of
19 R. 85.
We note that this charge actually gave appellants the benefit of a
requirement than an overt act in furtherance of the conspiracy be proved
by the government. In United States v. Coia, 719 F. 2d 1120 at
1123-1125 (11th Cir. 1983), this Court held that unlike the general
federal conspiracy statute, 18
C. A. §371, the RICO conspiracy statute does not require proof of an
overt act in furtherance of the conspiracy. We further note the
government's argument that, because a RICO conspiracy does not require
proof of an overt act in furtherance of the conspiracy, there is no
basis for requiring that a RICO conspiracy agreement contemplate that
the defendant will himself commit two predicate acts. We find, however,
that the overt act requirement and the elements of an agreement to
violate RICO are conceptually distinct, and that it is possible that the
agreement criminalized by RICO consists of a defendant's agreement to
personally commit two predicate acts without requiring any acts in
furtherance of this agreement.
Under the general federal conspiracy statute, 18
C. A. §371, a defendant need only agree to participate in the
conspiracy with knowledge of the essential objectives of the conspiracy.
v. Ballard, 663 F. 2d 534, 543 (5th Cir. Unit B 1981).
The natural reading of this language is that "through a pattern of
racketeering activity" modifies the preceding language "the
conduct of such enterprise's affairs," rather than, as appellants
urge, "conspiring to conduct or participate."
In relation to general conspiracy law concepts, the Elliott court
stated that Congress intended to replace the "wheel" and
"chain" concepts of traditional conspiracy law with a new
statutory concept, the enterprise. 571 F. 2d at 902. This language was
explicated by the court in United States v. Sutherland, 656 F. 2d
1181, 1192 n. 7 (5th Cir. 1981): "In context, . . . this language
suggests not that Congress in RICO sought to change traditional
conspiracy concepts, but that Congress instead sought to expand the
reach of traditional conspiracy charges by establishing a new
substantive crime around which a conspiracy might center."
Likewise, defendant Lostracco's RICO conspiracy conviction was reversed
by the Martino court. 648 F. 2d at 400. Lostracco agreed to
participate in a conspiracy with the single objective of committing
arson. "The mail fraud which was a part of that plan . . . [was]
not the mail fraud charged in the indictment."
v. Lee, 622 F. 2d 787, 791 (5th Cir. 1980).
The government's principal witness, Larry Carter, could not identify
Suzette Jackson argues that there was insufficient evidence to convict
her of Count Two. She claims that the evidence shows that she was a mere
bystander during the delivery. This claim is contradicted by the record.
The evidence of her participation in the deliveries involved more than
her mere presence at the airstrip; she stayed with Larry Carter in the
car and pointed out the activity on the airstrip; she kept the books for
Larry Jackson; and the jury could properly have inferred she was
interested in the arrival of the marijuana and its quantity. The
evidence was sufficient to convict Suzette Jackson of aiding and
abetting the possession of the illegal drugs.
Lightsey's testimony before the grand jury follows:
Are you aware of any contacts that Larry Jackson had with your husband
concerning or offering him money for protection for Larry Jackson's drug
I'm not aware of it, if he had any.
Are you aware of any involvement between Larry Jackson and any of the
deputies that worked for your husband while he was Sheriff?
No. You know, just talk, what I heard, I don't know anything really.
. . .
Question: Have you ever been present, say when Railford [sic] Phillips
talked to your husband or talked to anyone about giving protection to
assist in the drug business in that county?
. . .
How about Larry Carter, have you ever been present when you heard
conversations taking place where he was involved either in the smuggling
or drug business or offering to give protection to anyone?
No, sir. My office was separate from their's.
. . .
Did you ever hear of any airplane landing about that time in August of
No. I really didn't hear that much about any of this until Joe was out
of office and then, you know, you hear all kinds of stuff then.
. . .
To your knowledge, did Larry Jackson ever give or offer to give large
sums of money to your husband?
Not to my knowledge.
When I say 'give', I mean for protection or promises made to help him in
the drug business.
Not to my knowledge.
The question of materiality is a legal determination to be made by the
v. Forrest, 623 F. 2d 1107, 1113 (5th Cir. 1980).
Appellants Joe Lightsey, Larry Jackson, Suzette Jackson and Lemuel
Morris also challenge the propriety of the sentences and fines imposed
under substantive Counts Two, Three and Four. Appellants allege that the
government failed to prove that more than 1,000 pounds of marijuana were
involved in these counts as required by 21 U. S. C. A. §841(b)(6). The
evidence of quantity on Counts Three and Four has previously been
discussed in connection with appellants' challenges to the sufficiency
of the evidence and will not be repeated here. This evidence is
sufficient to establish that more than 1,000 pounds of marijuana were
involved for purposes of 21 U. S. C. A. 841(b)(6). The evidence of
quantity on Count Two was Larry Jackson's statement on the night of the
August 29, 1980 delivery that he had received 7,000 pounds of marijuana.
Larry Jackson's claim that this statement is insufficient because it is
uncorroborated is without merit. Suzette Jackson and Joe Lightsey claim
that the admission of Jackson's statement as to quantity against them
violated their confrontation rights under Bruton v. United States,
391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). However, we find
that this statement was properly admissible against appellants under the
co-conspirator hearsay exception, and thus did not violate the precepts
established in Bruton.
, 578 F. 2d 1058, 1075 (5th Cir. 1978). Lemuel Morris argues that
the evidence did not show his possession of the 6,500 pounds of
marijuana charged in Count Two, but only possession of 700 pounds of
hashish. Leaving aside the fact that Morris told Larry Carter that he
had received 1,200 pounds of hashish, as charged in the indictment, on
the evening of August 29, 1980, we have previously found other evidence
sufficient to support Morris' conviction of possession of the marijuana.
The RICO conspiracy statute, 18
C. A. §1962(d), carries a maximum punishment of 20 years imprisonment
and a $25,000 fine. 18
C. A. §1963(a). Possession of marijuana in excess of 1,000 pounds with
intent to distribute authorizes the maximum punishment of fifteen years'
imprisonment and a $125,000 fine. 21
C. A. §841(b)(6).
also contests his counsel's alleged failure to plea bargain in behalf of
his client. As a general rule this Court will not review on direct
appeal claims of ineffective assistance of counsel where such claims
were not raised before the district court and there has been no
opportunity to develop and include in the record evidence bearing on the
merits of the allegations.
v. Stephens, 609 F. 2d 230, 234 (5th Cir. 1980);
v. Rodriquez, 582 F. 2d 1015, 1016 (5th Cir. 1978). The record
is silent on the issue of plea negotiations in this case.
Gov. Exs. 17A & 17B; 18A & 18B; 24A & 24B.
Larry Jackson also claims that the imposition of a sentence under Count
Seven is improper because a Section 7206(1) offense is a lesser-included
offense under Section 7201. As we reverse
's conviction on Count Six, we do not reach this issue.
United States of America
, Appellee v. Emmanuel M. Loniello, Appellant
U. S. Court of Appeals, 8th Circuit, No. 84-1556,
, Affirming unreported District Court case
[Code Sec. 7203]
Crimes: Failure to file return: Instructions to jury.--The trial
court did not err in instructing the jury that, as a matter of law, the
taxpayer's tax forms did not contain enough information to constitute a
return. The taxpayer's conviction was affirmed.
ert G. Ulrich, United States Attorney,
Cynthia Clark Campbell, Assistant United States Attorney, Kansas City,
Mo. 64106, for appellee. Jeffrey Shrom,
P. O. Box 2021
, for appellant.
HEANEY, BRIGHT, and Ross, Circuit Judges.
M. Loniello appeals from a judgment entered in the district court 1 following a
jury verdict finding him guilty of four counts of willful failure to
file tax returns for 1978, 1979, 1980 and 1981 in violation of 26 U. S.
C. §7203. For reversal appellant contends that the district court erred
in instructing the jury. We affirm.
the years in question appellant submitted 1040 forms on which he
supplied his name, address, filing status and number of exemptions. On
several line items concerning income, credits and payments he responded
"none." In response to the remaining line items appellant
stamped "object-self incrimination."
the close of the government's case, the district court instructed the
jury that "as a matter of law . . . [appellant's] returns are not
sufficiently filled out and do not contain sufficient information to
constitute a federal income tax return as required by federal law."
Appellant's counsel did not object to the instruction. On appeal
appellant contends the district court committed plain error because,
among other reasons, the instruction eliminated his right to assert the
fifth amendment privilege against self-incrimination and because the
instruction deprived him of his right to a jury determination of whether
the returns were valid. Appellant's arguments are without merit.
a 1040 form it may be permissible for a taxpayer to claim his fifth
amendment "privilege in response to a particular question, such as
the source of the income[.]" Ueckert v. Commissioner [83-2
USTC ¶9696], 721 F. 2d 248, 250 n. 2 (8th Cir. 1983) (per curiam). A
taxpayer, however, cannot, as he attempts to do here, rely on the
privilege to support a "blanket refusal to supply
Furthermore, this court has recently held that "the issue of
whether a return is valid for section 7203 purposes is a question of law
for the court to decide." United States v. Grabinski [84-1
USTC ¶9201], 727 F. 2d 681, 686 (8th Cir. 1984). In determining whether
a return is valid for section 7203 purposes, a court must consider
"whether there is sufficient information given from which the IRS
can calculate tax liability based on the circumstances of the taxpayer's
In this case, because appellant filed forms that contained no
information from which tax liability could be calculated, the district
court correctly instructed the jury that as a matter of law the forms
were not valid tax returns. See id. at 687.
have considered appellant's other arguments and find them to be without
merit. Accordingly, the judgment of the district court is affirmed.
The Honorable Elmo B. Hunter, Senior United States District Judge for
the Western District of
United States of America
, Plaintiff-Appellee v. Donald Clifton Reed, Defendant-Appellant
U. S. Court of Appeals, 5th Circuit, No. 81-1399, 670 F2d 622,
, Affirming an unreported decision of the District Court
[Code Sec. 7203 and 7205]
Crimes: Failure to file returns: Fraudulent W-4: Evidence: Jury
instructions.--The taxpayer's conviction for filing false W-4 forms
and failing to file tax returns was affirmed. No error was committed by
allowing the admission into evidence of a copy of a civil suit filed by
the taxpayer and others against the IRS, in which the constitutionality
of the income tax laws was challenged. Evidence of a person's
philosophy, motivation and activities as a tax protestor is relevant and
material to the issue of intent. Furthermore, the trial court did not
err in insructing the jury that the Fifth Amendment does not give a
person the right to withhold non-incriminating information on a tax
return and that the revelation of income from legitimate activities does
not amount to self-incrimination. Finally, since there was ample
evidence to support the jury's guilty verdicts, the trial court's denial
of the taxpayer's motion for judgment n. o. v. was proper.
Rolfe, United States Attorney, Lubbock, Texas 79401, Clinton E.
Averitte, Assistant Attorney General, Dallas, Texas, for
plaintiff-appellee. Ben Blank, 2711
, for defendant-appellant.
BROWN, POLITZ and WILLIAMS, Circuit Judges.
C. Reed was indicted on two misdemeanor counts of failing to file an
individual income tax return for the years 1977 and 1978, in violation
of 26 U. S. C. §7203, and on one count of filing a false and fraudulent
Employee's Withholding Allowance Certificate, Form W-4, in violation of
26 U. S. C. §7205. Evidence adduced at trial reflected that Reed's
income, adjusted to his community interest, was $13,882 in 1977, and
$15,368 in 1978, resulting in income tax liabilities of $2,307 and
$2,966, respectively, in those two years. The jury returned a verdict of
guilty on all three counts. Reed appeals, contending that prejudicial
evidence was admitted, the jury was erroneously charged as to his fifth
amendment rights, and the trial judge erred in denying his motion for
judgment of acquittal non obstante verdicto. We find no error and
made tax return filings on which he purposely and intentionally failed
to disclose financial information and other pertinent data necessary for
the computation of his tax liability. Reed maintains that because of a
pending criminal investigation by the Internal Revenue Service, the
fifth amendment entitled him to withhold this information. Reed also
filed a W-4 form certifying he had incurred no tax liability in 1977 and
expected none in 1978, therefore no deductions were to be made from his
Inadmissible evidence. The government offered into evidence a
copy of a civil suit filed by Reed and others against the IRS, in which
they challenge the constitutionality of the income tax laws. No
objection was made at time of trial. On appeal Reed contends that this
evidence should have been excluded under Fed. R. Evid. 403 because its
probative value was outweighed by its prejudicial effect. To prevail in
this argument, under these circumstances, Reed must show that the trial
judge committed plain error. Fed. R. Crim. P. 52(b);
v. Pool, 660 F. 2d 547 (5th Cir. 1981).
recently considered and rejected the essence of this contention in United
States v. Tibbetts [81-1 USTC ¶9475], 646 F. 2d 193 (5th Cir.
1981). Evidence of a person's philosophy, motivation and activities as a
tax protestor is relevant and material to the issue of intent. See
also United States v. Brown [79-1 USTC ¶9285], 591 F. 2d 307 (5th
Cir.), cert. denied, 442
2831, 61 L. Ed. 2d 280 (1979); United States v. Stephen [78-1
USTC ¶9362], 569 F. 2d 860 (5th Cir. 1978). No error was committed by
allowing the filing of the civil tax pleadings. Such evidence relates
directly to the issue of intent.
Fifth amendment charge. Reed insists that the fifth amendment
protects his refusal to file a tax return containing sufficient
information upon which a proper computation of his tax liability could
be made. "It is well-settled in this circuit that [a] protest
return does not even amount to a 'return' as defined in §7203, United
States v. Smith [80-2 USTC ¶9476], 618 F. 2d 280, 281 (5th Cir.
1980), and that the protest return cannot be protected under the Fifth
Amendment." United States v. Booher [81-1 USTC ¶9304], 641
F. 2d 218, 219 (5th Cir. 1981) (citing
v. Brown [79-1 USTC ¶9285], 591 F. 2d 307 (5th Cir.), cert.
2831, 61 L. Ed. 2d 280 (1979); United States v. Johnson [78-2
USTC ¶9642], 577 F. 2d 1304 (5th Cir. 1978).
1977 return can be characterized as a protest return; he filed a Form
1040 reflecting only the amount withheld from his earnings. Reed claimed
a refund for this amount. No other dollar figure appeared on the return.
No proper filing was made in 1977. His 1978 return was likewise void of
meaningful data. Reed defends his failure to file on the grounds that he
was the subject of an IRS criminal investigation, the scope of which was
not certain and to provide the information required on the tax return
would incriminate him. Reed maintains he was entitled to invoke the
protections of the fifth amendment and that the trial court erroneously
charged the jury when it stated:
if the Defendant had a good faith belief in his right to assert his
privilege not to incriminate himself, then the Defendant would be not
guilty of the crime charged; however, a taxpayer may not avoid filing a
required income tax return by claiming his privilege against
self-incrimination unless the taxpayer in good faith believes that if he
furnished the required information on a tax return, that the relation of
such information would subject him to incrimination and possible
prosecution for violation of criminal law.
Fifth Amendment privilege does not give a person the right to withhold
the required information on the return concerning items the disclosure
of which would not incriminate him. Revelation of income from legitimate
activities in which no criminal activity was involved would not
approved this instruction in United States v. Tibbetts, 646 F. 2d
at 195 (5th Cir. 1981) (citing United States v. Johnson [78-2
USTC ¶9642], 577 F. 2d 1304 (5th Cir. 1978)). See also United States
v. Booher [81-1 USTC ¶9304], 641 F. 2d 218 (5th Cir. 1981). As we
explicated in Johnson:
Fifth Amendment privilege protects the erroneous taxpayer by providing a
defense to the prosecution if the jury finds that the claim, though
erroneous, was made in good faith. This assumes that a good faith claim
of the privilege is not made at one's peril and that erroneous taxpayers
will be afforded the opportunity to reconsider their responses, after
proper explanation of the limits of the privilege. Three principles may
be distilled from the authorities: (1) the privilege must be claimed
specifically in response to particular questions, not merely in a
blanket refusal to furnish any information; (2) the claim is to be
reviewed by a judicial officer who determines whether the information
sought would tend to incriminate; (3) the witness or defendant himself
is not the final arbiter of whether or not the information sought would
tend to incriminate.
F. 2d at 1311.
Reed's defense that he acted in good faith fails to pass muster. He
intentionally refused to file financial information which, according to
the evidence, was derived from legitimate sources. To have truthfully
disclosed this information might have civilly exposed Reed, but the
criminal exposure envisioned by the fifth amendment would not have been
Denial of judgment n. o. v. In reviewing the trial court's denial
of defendant's motion for judgment n. o. v., the test we apply is
whether the jury might reasonably conclude that the evidence, viewed in
a light most favorable to the government, is inconsistent with every
reasonable hypothesis of the defendant's innocence or, stated
differently, whether a reasonably minded jury must necessarily entertain
a reasonable doubt of the accused's guilt.
v. Diaz, 655 F. 2d 580, 583-84 (5th Cir. 1981).
evidence supports the jury's verdicts. Reed and his wife, together, had
income in excess of $27,700 in 1977 and $30,700 in 1978. Reed's
community interest required the filing of tax returns in those two
years. Reed refused to provide the financial data needed to compute his
tax liability. Evidence presented described Reed's expressed moral and
religious convictions against the payment of income taxes. The jury was
entitled to reasonably conclude that Reed had not acted in good faith
when he willfully failed to file proper tax returns and when he executed
the false W-4 form.
judgment of the district court is, in all respects, AFFIRMED.
United States of America
, Plaintiff-Appellee, v. E. L. Fowler, Defendant-Appellant
U. S. Court of Appeals, 5th Circuit, No. 78-5677, 605 F2d 181,
, Affirming an unreported District Court decision
[Code Sec. 7203]
Criminal penalties: Failure to file returns: Allegations of
procedural defects at trial.--The conviction of a taxpayer for
willfully failing to file income tax returns was upheld when the court
determined that none of the errors alleged to have occurred at trial
affected the fundamental fairness of the trial proceedings. The
taxpayer's decision to proceed with the trial without assistance of
counsel was a voluntary decision, and the trial court did not err is
rejecting unmerous motions and requests made by the taxpayer.
L. Rampey, Jr., United States Attorney, Richard Nettum, Assistant United
, for plaintiff-appellee. Frank Petrella, J. Roger Thompson, 2403
National Bank of Ga. Bldg.,
, for defendant-appellant.
GODBOLD, GEE and RUBIN, Circuit Judges.
cause provides eloquent testimony, albeit negative, to the value of
counsel's assistance to criminal defendants. Appellant Fowler, a dealer
in gravestones and an apparent tax protester among other things, ceased
filing federal income tax returns in 1953. A wheel that did not squeak,
Fowler's practices at last attracted Revenue's notice in time to result
in his indictment for wilful failure to file returns for the years
1971-75. During the investigation, he cooperated with investigating
revenue agents to further than by providing them with partial records
for the years in question. A trial at which the government employed the
"bank-deposits" mode of proof resulted in his conviction on
all counts, and he appeals.
who conducted his own defense at trial but is represented by counsel
here, advances seven points of error. Six present little of merit and
may be dealt with rather briefly, but the seventh is of slight
difficulty. Upon a careful consideration of all, however, we affirm his
convictions. We treat his contentions in the order is which he presents
first complaint is of the court's refusal of a continuance to allow him
more time to retain counsel. The real substance of his contention is
that putting him to trial pro se violated his right to assistance
of counsel. Defendant was first arraigned in March 1978 in the Northern
District of Georgia, at which occasion he was represented by temporary
counsel. His motion for change of venue to the Middle District was
granted in late April; and in July he waived speedy trial in order to
have his case tried in
at the October term of court to be held there. Over two months passed.
September Fowler was served notice to appear for re-arraignment on
October 6. He appeared there without counsel. At that time the court
carefully advised him of his right to counsel and elicited considerable
testimony from him about his financial condition, Fowler refusing to
answer the direct question whether he was financially able to retain
counsel on the ground of possible self-incrimination. The court then
found as a fact that he was financially able to do so, a ruling not
attacked here, and advised Fowler that his case would be called first on
the trial calendar on October 16.
October 8, Fowler called counsel in
Salt Lake City
, who in turn inquired of the judge and prosecutor about getting a
continuance. The judge advised counsel that no continuance would be
granted. On October 12, Fowler moved pro se for a continuance, attaching
counsel's affidavit that he could not take on the case because of
inadequate time to ready it. The case proceeded to trial as scheduled,
Fowler indignantly protesting the absence of counsel and representing
himself. Little authority need be added to these facts to support our
ruling. The grant or denial of a continuance rests in the broad
discretion of the trial judge.
v. Uptain, 531 F. 2d 1281 (5th Cir. 1976). We have held before
this that so short a time as twenty days is, in the circumstances there
presented, a reasonable time in which to retain counsel and that failure
to do so operated as a waiver.
v. Casey, 480 F. 2d 151 (5th Cir. 1973). We have done so even
when the failure resulted in a pro se defense. See United States v.
Gates, 557 F. 2d 1086 (5th Cir. 1977), and cases cited there. The
right to assistance of counsel, cherished and fundamental through it be,
may not be put to service as a means of delaying or trifling with the
court. This contention is meritless. 1
next point presents the greatest difficulty among those he advances, one
that arises from the somewhat unsettled and only partially charted law
of presumptions in criminal cases. In a nutshell, the problem is that
burden-shifting charges in such cases are of doubtful validity--a doubt
compounded by two recent Supreme Court cases going in at least
superficially different directions; 2 and in
Fowler's case the court gave the convicting jury what sounds like a
context was this. Duty to file an income tax return results from
receiving a given gross income during the accounting year concerned.
Gross income of a business such as Fowler's is, generally speaking,
calculted as gross receipts less cost of goods sold. In order to
establish under the mode of proof it followed that Fowler had violated a
duty to file, therefore, it was necessary for the government to
establish, for any given period, both his gross receipts and his cost of
goods sold. In the course of instructing the jury on this head, the
court stated, among other matter not complained of, the following:
prove the defendant's gross income for the years in question it is
incumbent upon the government to establish the cost of the goods sold by
the defendant in each of the tax years. In this connection I charge you
that it is incumbent upon the prosecution to investigate any leads which
may be offered to the government by or on behalf of the defendant as to
the cost of goods sold by the defendant in each of the taxable years. If
these leads are reasonably susceptible of being checked the government
must investigate into the truth of these leads or explanations. After
the government has made a reasonable effort to identify and produce
evidence of the cost of goods sold the burden then shifts to the
defendant to produce evidence of additional costs of goods sold.
When the defendant does then offer further evidence of off-setting costs
the burden is then on the government to persuade you members of the jury
that the costs are not allowable. It just depends on how the situation
added). Counsel for Fowler quite properly urges upon us the range of
weighty due process considerations that attend requiring defendant to
prove anything whatever in a criminal case. We conclude, however, that
in the special context presented here they carry little force.
the first place, Mr. Fowler--proceeding without counsel--voiced no
objection to this portion of the charge. Counsel's absence was of
Fowler's own doing, and he must take its consequences. The instruction
complained of could easily have been rephrased to remove its
"burden then shifts" phraseology, which was in no way integral
to the thought that it sought to convey. 3 Had the
objections now made for the first time to us about this terminology been
made to the charging judge, it is hard for us to conceive that he would
have refused to amend it. At all events, it must, being unobjected to,
amount to plain error to require a reversal. Plain error is defined by
this court as one "so obvious that failure to notice it would
'seriously affect the fairness, integrity, or public reputation of
judicial proceedings,'" United States v. Musquiz, 445 F. 2d
963, 966 (5th Cir. 1971) (quoting United States v. Atkinson, 297
U. S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)), to be noticed
"only in exceptional circumstances to avoid a miscarriage of
, 398 F. 2d 485, 486 (5th Cir. 1968). This mild instruction,
touching at most on the burden of production or proceeding and buried in
a charge that correctly and repeatedly placed the burden of proof beyond
a reasonable doubt on the government, does not constitute such an error.
the second place, the charge as given amounts to little more than a
statement of accounting fact and enjoys the additional merit of being
true. Once the government has shown a spread between gross receipts and
cost of goods sold, discharging its unusual task in such causes as this
of making reasonable efforts against its own case by finding and
adducing evidence of such costs, if the defendant wishes to narrow or
destory that spread by proving further costs it is up to him to do so.
Thus, the charge in no sense shifts to the defendant any burden that he
did not already have, Siravo v. United States, 377 F. 2d 469 (1st
Cir. 1967); at worst it merely tells the jury where the burden of going
forward rested at one point in the case. And as given here, the words to
which Fowler objects are followed in the court's next sentence by a
reminder to the jury that even as to evidence of any additional costs
produced by defendant, the burden of persuasion is on the government to
show they are not allowable--not on defendant to show that they
are. If the charge as given has a fault, it is in its implication that
the defendant has some obligation to come forward with evidence of
additional costs. This, of course, not so, and the charge should have
included some such disclaimer as "if he wishes" or the like.
Where, however, the only consequence of his failure to do so, under the
court's instructions, is that the government remains with the burden to
prove both edges of the receipts-costs spread beyond a reasonable doubt,
we see no harm to Fowler's substantial rights. On the above
considerations, we conclude that the charge was not reversibly
next complains that the court erred in refusing to allow him to testify
after he refused either to swear or affirm that he would tell the truth
or submit to cross-examination. At one point in their extended colloquy
on the point, the judge offered to accept the simple statement, "I
state that I will tell the truth in my testimony." Fowler was
willing to do no more than laud himself in such remarks as, "I am a
truthful man," and "I would not tell a lie to stay out of
jail." Rule 603, Federal Rules of Evidence, is clear and simple:
"Before testifying, every witness shall be required to declare that
he will testify truthfully, by oath or affirmation . . ." No
witness has the right to testify but on penalty of perjury and subject
to cross-examination. This contention is frivolous. 4
next urges that his sentence to three years' incarceration should be
vacated, basing this claim on the somewhat unusual case of United
States v. White, 529 F. 2d 1390 (8th Cir. 1976). There the appellate
court vacated a jail sentence, though affirming a conviction, because
"appellant did not clearly waive his right to counsel."
at 1394. Either Fowler waived his right to counsel by his actions or he
did not. We have held that he did; and whatever Scott v. Illinois,
-- U. S. --, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979), and Argersinger
v. Hamlin, 407 U. S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972),
may mean, they do not mean that a defendant can jail-proof himself by
waiving counsel and going to trial pro se.
final three contentions merit little discussion. The trial court did not
err in refusing to permit him to cross-examine a revenue agent about his
knowledge of the outcome of an unconnected case in
. The evidence was sufficient to support his conviction, even had a
motion for judgment of acquittal been made--as it was not. Nor do the
trial court's asserted errors, each of which we have found either not
error at all or not reversible, require a reversal when considered
cumulatively rather than singly.
cannot doubt that Fowler has derived substantial financial benefit from
a long refusal to carry his share of the common burdens of citizenship.
Sad to say, for he is a man no longer young, he must now respond not
only in currency but in another coin: incarceration. Counsel's efforts
on his behalf are commendable, but they came too late.
Defendant also makes a half-formed claim that he was required to
surrender his sixth amendment right to counsel in order to preserve his
fifth amendment right against self-incrimination. The court's findings,
not complained of here, that he was financially able to retain counsel
moots this contention.
Ulster County Court v. Allen, -- U. S. --, 99 S. Ct. 2213, 60 L.
Ed. 2d 777, handed down on June 4, 1979, upholds the New York statutory
presumption that each occupant of an automobile in which firearms are
present is in illegal possession of them, on the basis of the "more
likely than not" standard. Two weeks later came Sandstrom v.
2450, 61 L. Ed. 2d 39, striking down (on a "reasonable doubt"
standard) a presumption that a person intends the ordinary consequences
of his voluntary acts. Insofar as we are able to deduce a rule from
these opinions, it appears to be that merely permissive instructions to
the jury ("You may infer . . .") are to be tested by the
"more likely than not" standard, while so-called
"mandatory presumptions" of which the jury is advised
("The law presumes . . ..") are measured by a standard of
"reasonable doubt." Such deductions may well be rash, however,
the opinions being further complicated by distinctions between burden of
proof, burden of production, etc., dissents, special concurrences, and
the like. Even so, analysis of the two opinions suggests that, in
refusing to distinguish between permissive and mandatory language in
this area, we may have adopted a rule more stringent than the
Constitution requires. See United States v. Chiantese, 560 F. 2d
1244, 1255 (5th Cir. 1977), (en banc), where we condemned the so-called Mann
charge, similar to that given in Sandstrom, whether permissively
or mandatorily phrased.
As an example, for the clause commencing "the burden then
shifts" could have been substituted "it is then open to the
defendant, if he wishes, to produce evidence of additional costs of
Fowler also contends that the court erred in failing to determine his
competency to testify out of the presence of the jury. Fed. R. Evid.
104(c). This also is meritless: no request was made that they jury be
excluded, and on an earlier occasion Fowler had refused to meet with the
judge in chambers, grandstanding at length for the jury on the subject.
United States of America
, Plaintiff-Appellee v. Raymond Sawyer, Defendant-Appellant
U. S. Court of Appeals, 7th Circuit, No. 78-2098, 607 F2d 1190,
, Affirming unreported District Court decision
[Code Sec. 7203]
Criminal penalties: Failure to file return: Evidence supporting
penalty.--The taxpayer's conviction for failure to file returns was
upheld. The jury instructions as to willfulness were proper, as were the
instructions as to the taxpayer's exculpatory statements. There was no
error in the admission of a report, even though it was the report of a
law enforcement officer, because the officer was testifying and merely
using the report to refresh his recollection.
P. Sullivan, United States Attorney, Scott Throw, Assistant United
States Attorney, Chicago, Illinois 60604, for plaintiff-appellee.
William J. Harte, 111 W.
, for defendant-appellant.
CASTLE, Senior Circuit Judge, SWYGERT and BAUER, Circuit Judges.
appellant Raymond Sawyer was indicted by information on two counts of
violating 18 U. S. C. ¶7203 by failing to file timely income tax
returns for the calendar years 1971 and 1972. Sawyer pleaded not guilty
to the charges, but was found guilty by a jury. The court sentenced him
to a one-year term of imprisonment on each count, with the sentences to
run concurrently; in addition, the court fined Sawyer $10,000 on Count
I. Sawyer now appeals.
his first argument on appeal, Sawyer claims that the jury was improperly
instructed on the meaning of "willful" as used in 26 U. S. C.
§7203. The court instructed the jury as follows:
used in the statute . . . the word "willful" means voluntarily
and purposeful and deliberate and intentional as distinguished from
accidental, inadvertent or negligent.
the failure to do an act is willfully done if it is done voluntarily and
purposely and with a specific intent to fail to do what the law requires
to be done; that is to say, with a bad purpose to disobey and disregard
the law . . ..
essence, Sawyer argues that the jury should have been instructed that
his failure to file was not "willful" if it resulted from an
"innocent reason" or "justifiable excuse." The
omission of this language, Sawyer maintains, prevented the jury from
considering his only defense, namely, that his physical and emotional
condition rendered him incapable of filing his income tax returns on
in an en banc decision, this Court approved a jury instruction on
"willfulness" that is virtually identical to the one given in
this case. United States v. McCorkle [75-1 USTC ¶9270], 511 F.
2d 482, 484 n. 2 (7th Cir. 1975), cert. denied, 423
826 (1975). Like Sawyer, McCorkle argued that the instructions "had
the effect of eliminating justifiable excuse as a consideration in
resolving the issue of willfulness."
at 486. In rejecting the claim, the Court noted that only a limited set
of circumstances could legally justify a failure to file--namely,
"an inadvertent failure to file or a bona fide misunderstanding as
to [defendant's] . . . duty to make a return." The Court then
reasoned that "[s]ince the instructions required the jury to find
an intentional violation of a known legal duty, it would have been
essential for the jury to conclude that McCorkle's conduct was
Finding this logic applicable to the case at hand, we hold that the
trial court did not commit reversible error in its instructions to the
jury on the meaning of "willfulness."
next challenges the trial court's instruction to the jury on false
exculpatory statements. That instruction read:
evidence has been instroduced that the defendant made certain
exculpatory statements, which were outside the courtroom, when he was
interviewed, explaining his actions to show that he was innocent of the
crime charged in an [sic] information. Now, evidence contradictory [sic]
such statements has also been introduced and if you find that the
exculpatory statements were untrue and that the defendant made them
voluntarily and with knowledge of their falsity, you may consider such
statements as circumstantial evidence of the defendant's consciousness
Court has recognized that a defendant's false, out-of-court exculpatory
statements may be taken as evidence of guilt. See, e.g.,
v. Riso, 405 F. 2d 134, 138 (7th Cir. 1968); United States v.
Lomprez, 472 F. 2d 860, 863 (7th Cir. 1972). The appellant argues,
however, that the instruction did not require the jury to determine that
he did in fact make the alleged statements. We are not persuaded by this
claim, for, in our view, such a requirement is implicit in the language
of the instruction, particularly since the appellant argued the issue to
the jury. We thus find no grounds for reversal in the trial court's
instruction on exculpatory statements.
appellant next argues that the district court improperly admitted
evidence of an alleged phone conversation between Sawyer and Revenue
Officer Schroeder. It is Sawyer's position that the conversation was not
properly authenticated and that a memorandum which Schroeder prepared on
the conversation was inadmissible hearsay.
the issue of authentication, there is sufficient circumstantial
evidence, in our view, to satisfy Rule 901(6) of the Federal Rules of
Evidence, for it is undisputed that the number listed in the agent's
report was Sawyer's business number, and the personal nature of the
information sought makes it highly unlikely that anyone else would have
answered for Sawyer.
admissibility of the agent's report, however, raises a more difficult
issue. It would seem, as the government argues, that the report
satisfies the criteria for admissibility as a recorded recollection
under F. R. Ev. 803(5). The agent testified that he no longer had a
recollection of the conversation and that the history sheet was prepared
immediately after the conversation. In addition, the agent's testimony
tended to show that both the original notation and its later
transcription to the referral report were accurate.
Sawyer claims that the referral report should have been excluded because
it represents the report of a law enforcement officer. Relying heavily
on United States v. Oates, 560 F. 2d 45 (2d Cir. 1977), Sawyer
argues that law enforcement reports that are barred under the
"public records" exception of F. R. Ev. 803(8) are also
inadmissible under any other exception to the hearsay rule. In Oates,
the Second Circuit found "a clear congressional intent that reports
not qualifying under F. R. Ev. 803(8)(B) or (C) should, and would, be
inadmissible against defendants in criminal cases." 560 F. 2d at
are not persuaded, however, that the restrictions of Rule 803(8) were
intended to apply to recorded recollections of a testifying law
enforcement officer that would otherwise be admissible under Rule
803(5). In our view, the legislative history of Rules 803(8)(B) and (C)
indicates that Congress intended to bar the use of law enforcement
reports as a substitute for the testimony of the officer. Thus,
Representative Dennis, in offering the amendment which excluded law
enforcement reports from admission at criminal trials, stated:
I am saying here is that in a criminal case, . . . we should not be able
to put in the police report to prove your case without calling
policeman. I think in a criminal case you ought to have to call the
policeman on the beat and give the defendant the chance to cross examine
him, rather than just reading the report into evidence. That is the
purpose of this amendment.
Cong. Rec. H 564 (Feb. 6, 1974).
And the Oates court itself identified the loss of confrontation
rights as the underlying rationale for Rule 803(8):
pervasive fear of the draftsmen and of Congress that interference with
an accused's right to confrontation would occur was the reason why in
criminal cases evaluative reports of government agencies and law
enforcement reports were expressly denied the benefit to which they
might otherwise be entitled under F. R. Ev. 803(8).
F. 2d at 78.
We therefore decline to hold that Rule 803(8) disqualifies the recorded
recollections of a testifying law enforcement officer, when such
recollections would otherwise be admissible under Rule 803(5).
Accordingly, since the hearsay declarant in this case was available for
cross-examination, and since the referral report would otherwise qualify
as a recorded recollection, we find no reversible error in the admission
of the report.
Sawyer claims that the trial court erred in excluding proof that he had
eventually paid his taxes for 1971 and 1972. However, as this Court
noted in United States v. Ming [72-1 USTC ¶9449], 466 F. 2d
1000, 1005 (7th Cir. 1972), "[i]t has been clearly established that
late filing and late tax payment are immaterial on the issue of
willfulness in a Section 7203 prosecution." We see no merit in the
appellant's argument that this principle is somehow inapplicable to the
case at hand because the government was allowed to prove the amount of
taxes that Sawyer owed for 1971 and 1972.
have examined the appellant's other arguments and find no grounds for
reversal. The judgment of the district court is therefore AFFIRMED.
Circuit Judge, concurring in the result.
some reluctance, I concur in the affirmance of defendant's conviction.
My reluctance stems from the admission of Revenue Officer Schroeder's
reading from his referral report dated
January 14, 1974
which stated that "a phone call was made to the taxpayer's husband
who stated that the 1040 returns . . . 1971 and 1972 had been
examination of the referral report shows that it comes within the
literal definition of records excluded pursuant to section 803(8)(B) of
the Federal Rules of Evidence: "[M]atters observed pursuant to duty
imposed by law as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers and other
law enforcement personnel." (emphasis added).
problem here is whether section 803(8)(B) is inapplicable because of the
operative effect of section 803(5) which reads in its entirety:
recollection. A memorandum or
record concerning a matter about which a witness once had knowledge but
now has insufficient recollection to enable him to testify fully and
accurately, shown to have been made or adopted by the witness when the
matter was fresh in his memory and to reflect that knowledge correctly.
If admitted, the memorandum or record may be read into evidence but may
not itself be received as an exhibit unless offered by an adverse party.
Schroeder testified that he obtained defendant's telephone number from
defendant's wife in September 1973 and that it was his routine practice
to attempt to contact a taxpayer under investigation by telephone in
such circumstances. He further testified that it also was routine to
record all taxpayer contacts on a history sheet and that notations
reflecting phone calls would be made immediately after the calls were
Schroeder said that he had no independent recollection of his phone
conversation with defendant and that the history sheet on defendant had
been destroyed after he had closed his part of the investigation. He
testified that he had used the history sheet to prepare his referral
report--the disputed document.
we are dealing with a record of a record, not made contemporaneously
with the event, and in a sense double hearsay, I am satisfied that the
requirements of section 803(5) were met. Because Schroeder was available
as a witness for both foundation purposes and cross-examination, the
hearsay was admissible under the Federal Rules of Evidence and the
defendant was not deprived of the right of confrontation. If Officer
Schroeder had not been available for cross-examination, defendant's
right of confrontation would have been violated and a different result
would have been compelled. See
v. Oates, 560 F. 2d 45 (2d Cir. 1977).
United States of America
, Plaintiff-Appellee v. Ernest M. Millican, Jr., Defendant-Appellant
U. S. Court of Appeals, 5th Circuit, No. 78-5395, Summary Calendar *, 600 F2d
, Affirming unreported District Court decision
[Code Sec. 7203]
Criminal penalties: Failure to file return: Probable cause
determination: Improper jury instructions.--The taxpayer's
conviction for willfully failing to file an income tax return was
upheld. Although the taxpayer had claimed that he was denied a pretrial
determination of probable cause because his appearance in court was in
response to a summons rather than to an arrest warrant, the court found
that this was not a sufficient basis upon which to reverse his
conviction. The taxpayer's further contention that the trial judge had
made unfair statements and had given improper instructions to the jury
was found to be without merit.
Tallant, Assistant United States Attorney, Arnaldo N. Cavazos, Jr., 1100
Commerce, Dallas, Texas 75202, M. Carr Ferguson, Assistant Attorney
ert Lindsay, James A. Bruton, Gilbert E. Andrews, Department of Justice,
Washington, D. C. 20530, for plaintiff-appellee. Ernest M. Millican,
1204 Dover Lane
, pro se.
RONEY, GEE and FAY, Circuit Judges.
Ernest Millican was convicted after a jury trial of wilfully failing to
file a federal income tax return in violation of the Internal Revenue
Code, 26 U. S. C. A. §7203, and sentenced to one year in prison. His pro
se appeal argues several points.
other things, the defendant argues he was denied a pretrial showing of
probable cause because he appeared in court in response to a summons
rather than an arrest warrant, and that the court never conducted a
probable cause hearing before trial, although he requested one. Although
the denial of defendant's request for a probable cause hearing was
improper, it does not permit reversal of his conviction. The law appears
to be clear that defects in the procedures through which defendant was
brought before the court do not void his subsequent conviction. See Gerstein
v. Pugh, 420 U. S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)
(Conviction will not be vacated on ground defendant was detained pending
trial without determination of probable cause); Frisbie v. Collins,
342 U. S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952) (Defendant alleged
forcible abduction in violation of Federal Kidnapping Act); United
States v. Lopez, 542 F. 2d 283 (5th Cir. 1976) (Defendant returned
to United States by FBI after torture and interrogation by Dominican
Republic authorities, allegedly at instigation of United States); United
States v. Herrera, 504 F. 2d 859 (5th Cir. 1974) (Defendant alleged
illegal arrest, abduction and extradition from Peru).
a matter of practice, however, defendant should have been afforded a
probable cause hearing.
January 1978 a criminal information was filed against defendant Ernest
Millican by the United States Attorney for the Northern District of
Texas. The information charged defendant with wilfully failing to file a
federal income tax return for tax year 1975 in violation of the Internal
Revenue Code, 26 U. S. C. A. §7203. The information was neither
verified nor supported by affidavit. It contained a brief statement of
the facts underlying the crime charged and was signed by the United
States Attorney and an assistant United States Attorney.
to Rule 9, Fed. R. Crim. P., the clerk of the district court issued and
marshal personally served a summons which directed defendant to appear
before the court and answer the charge set forth in the information. The
day before defendant's scheduled arraignment he filed papers entitled
"Defendant's Special Appearance" challenging the court's
jurisdiction to hear the case and moved for a Bill of Particulars.
the arraignment, defendant, proceeding without counsel, filed a motion
to dismiss the information for lack of probable cause because it was not
supported by oath attesting that a crime had been commited. Further,
defendant filed a "Notice and Petition for Order to Show Cause or
an Order to Dismiss for Lack of Probable Cause," reasserting his
challenge to the validity of the unsworn information and alleging that
the summons failed because it was unsupported by oath or affirmation. In
addition defendant filed a Motion to Dismiss for Denial of Due Process
complaining of the denial of a hearing and proof of probable cause. All
of defendant's motions were denied by the district court. No application
for warrant of arrest of defendant was ever sought. From the record it
appears that at no time before trial did the Government ever make a
sworn showing of probable cause. Defendant was never taken into custody
and remains free on bail pending the outcome of this appeal.
crime with which defendant was charged, a misdemeanor punishable by not
more than one year's imprisonment, is properly charged by information
rather than indictment.
v. Kahl, 583 F. 2d 1351, 1355 (5th Cir. 1978); Fed. R. Crim. P.
7(a). The information here, as required by Rule 7(c), Fed. R. Crim. P.,
contained a "plain, concise and definite written statement of the
essential facts constituting the offense charged" and was signed by
the Government's attorney.
information, as originally used in
, was a formal accusation which the King could make in his courts
without any evidence and against all evidence.
v. Tureaud, 20 F. 621, 622 (5th Cir. 1884). As prosecution by
information became accepted practice in this country, courts disagreed
over the need for probable cause supported by oath or verification in a
valid information. Compare
v. Tureaud, 20 F. at 622; United States v. Morgan, 222 U. S.
274, 282, 32 S. Ct. 81, 56 L. Ed. 198 (1911);
v. Kennedy, 5 F. R. D. 310, 312 (D.
1946), with Weeks v.
, 216 F. 292, 298 (2d Cir 1914). See also Albrecht v.
1, 6 n. 2, 47 S. Ct. 250, 71 L. Ed. 505 (1927). This Court and others
required the support of an oath or verification only where the
information was made the basis for an application for an arrest warrant.
, 8 F. 2d 732 (5th Cir. 1925); Keilman v.
, 284 F. 845 (5th Cir. 1922). The significance of decisions that no
verification was needed may have been reduced by the fact that filing or
informations required leave of the court and before granting leave the
court had to satisfy itself that probable cause existed for the
prosecution. See Albrecht v.
at 5, 47
250; Orfield, Warrant of Summons Upon Indictment or Information in
Federal Criminal Procedure, 23 Mo. L. Rev. 308, 327 (1958). Rule 7(a),
Fed. R. Crim. P., now permits filing of an information without leave of
probable cause determination is not a constitutional prerequisite to
filing of the information itself, Gerstein v. Pugh, 420 U. S. at
125, n. 26, 95 S. Ct. 854, nor have the Federal Rules of Criminal
Procedure, in effect since 1946, been construed to require probable
cause in an information in order to state a prosecutable offense. See
v. Funk, 412 F. 2d 452, 455 (8th Cir. 1969);
v. Pickard, 207 F. 2d 472, 474-475 (9th Cir. 1953). A
demonstration of probable cause is required by the Fourth Amendment, of
course, where the information is the basis for an arrest warrant. Albrecht
at 5, 47
9(a) Fed. R. Crim. P., provides for the process used to secure
defendant's appearance, and provides:
the request of the attorney for the government the court shall issue a
warrant for each defendant named in the information, it if is supported
by oath, or in the indictment. The clerk shall issue a summons instead
of a warrant upon the request of the attorney for the government or by
direction of the court. Upon like request or direction he shall issue
more than one warrant or summons for the same defendant. He shall
deliver the warrant or summons to the marshal or other person authorized
by law to execute or serve it. If a defendant fails to appear in
response to the summons, a warrant shall issue.
Wright has concluded that since a summons may issue "instead of a
warrant," and a warrant may issue only on a sworn information, then
a summons may issue only on a sworn information.
procedure for a summons is set out in the second sentence of Rule 9(a),
and speaks of issuing a "summons instead of a warrant." The
first sentence allows issuance of a warrant upon an information only
"if it is supported by oath." If the information is not
supported by oath, no warrant can issue, and there would be no
authorization for issuing "a summons instead of a warrant."
This conclusion is further supported by the final sentence of Rule 9(a),
which provides that if a defendant fails to appear in response to the
summons, a warrant "shall issue." If a summons could be issued
on an information not supported by oath, and a warrant then issued for
failure to appear in response to the summons, the end result would be
that defendant could be arrested on warrant though there had never been
a showing under oath of probable cause. This is not permissible.
Wright, Federal Practice and Procedure, §151 at 342 (1969).
same conclusion was drawn in United States v. Greenberg [63-2
USTC ¶9598], 320 F. 2d 467, 471 (9th Cir. 1963), from a similar
analysis of the language of Rule 4, Fed. R. Crim. P., which provides for
issuance of summons and warrants upon a complaint, rather than an
information. A summons on a complaint may involve a higher degree of
restraint than one on an information since if a defendant appears in
response to the complaint he is likely to be required to post bail or
suffer arrest and detention until a decision has been made on charges
pending against him. See
v. Greenberg, 320 F. 2d at 471. See also 8
's Federal Practice, ¶4.05(1) at 4-32 (2d ed. 1978).
this case the Government asserts that, although the rule provides that a
warrant shall issue if the defendant fails to appear under the
summons, a warrant for arrest will issue only after the court satisfies
itself that probable cause exists for prosecution and the necessary oath
is made. We have serious reservations as to whether this happens in
practice. The Government's case support, United States v. Evans,
574 F. 2d 352 (6th Cir. 1978), is inapposite because there the warrants
under which the defendant was arrested were issued under a statute
stating that upon disobedience of an "appearance ticket" under
a complaint, the court may issue a warrant "based upon the
complaint filed." Furthermore the form signed by the judge to order
the warrants stated they were to be based on the complaint as did the
warrants themselves. See
v. Greenberg, 320 F. 2d at 471. Cf. Rule 4, Federal Rules
of Procedure for Trial of Minor Offenses before United States
if the Government's assertion is accurate, however, or because it is
accurate, a probable cause determination should also be made on the
request of a defendant who responds to a summons. The summons, although
not equal in physical restraint to a Rule 9 warrant carries considerable
compulsion. Most persons would feel compelled to respond to a summons,
as well they should. For the defendant who is subsequently found guilty
beyond a reasonable doubt, there is really no harm. It would be strange
indeed if evidence sufficient to convict were found to be insufficient
for probable cause. It is the defendant who is acquitted who suffers if
no probable cause under oath could have been furnished by the Government
if it had been required before trial. That defendant has been required
to suffer a trial that should not have occurred in the first place. Such
a defendant should not have to disobey a summons to trigger a probable
cause hearing. It is highly desirable for the district courts to
establish, where it is challenged, that the Government has probable
cause supported by oath before putting any defendant to trial.
Government argues that by appearing on the summons rather than forcing
his arrest by nonappearance, defendant waived any defects of process.
The defendant made persistent efforts to obtain a probable cause
determination. He should have had one, or the information should have
been verified. Having now been convicted beyond reasonable doubt,
however, he cannot upset that conviction on the argument that no
probable cause was shown prior thereto.
attacks his conviction on a number of other grounds: improper jury
instructions, failure to provide a fair trial and the use of an
information to charge him with failure to file an income tax return in
violation of 26 U. S. C. A. §7203.
argues he was entitled to a jury instruction that his claim of Fifth
Amendment privilege against disclosing his income on a tax return was
"to be considered by [the jury] as a proper defense against the
charge of willful failure to file . . .." United States v.
Johnson [78-2 USTC ¶9642], 577 F. 2d 1304, 1310 (5th Cir. 1978),
however, held rejection of a similar jury charge proper. See United
States v. Wade [79-1 USTC ¶9105], 585 F. 2d 573, 574 (5th Cir.
1978). There is no merit to Millican's claim of entitlement to an
instruction that the Internal Revenue Service was under a duty pursuant
to 26 U. S. C. A. §6020(b)(1) to prepare his tax return.
v. Harrison, 30 A. F. T. R. 2d ¶72-5104 (E. D. N. Y.
July 12, 1972
), aff'd [73-1 USTC ¶9295], 486 F. 2d 1397 (2d Cir. 1972), cert.
2144, 36 L. Ed. 2d 685 (1973). An instruction, to which Millican did not
object at trial, that limited the jury's view of the law upon which it
was to base its verdict to the court's instructions on the law was
proper and not plain error. Fed. R. Crim. P. 52(b);
, 156 F. 2d 433, 435 (9th Cir. 1946). See United States v.
Rodriguez, 375 F. Supp. 589, 595-596 n. 2 (S. D. Tex.), aff'd,
497 F. 2d 172 (5th Cir. 1974).
the fairness of the trial, Millican claims a number of errors. His
attack on the trial judge's opening statement that Millican did not file
a return according to law is without merit. Review of the record shows
the judge's statement was a clarification of a statement made by the
prosecutor, and no prejudice resulted. Millican's complaint that the
trial judge polled the jury improperly is also meritless. In United
States v. Sexton, 456 F. 2d 961 (5th Cir. 1972), cited by Millican,
the trial judge forced a juror who had expressed uncertainty to arrive
at a verdict in open court. In the instant case a juror, in response to
the poll, answered "It's the verdict of the jury." Following
defense counsel's request for clarification, the trial judge asked,
"Is this your verdict and the verdict of the jury?" The record
shows the juror did not indicate uncertainty, and the judge merely
sought a responsive answer to the poll. No error was committed. See United
States v. Duke, 527 F. 2d 386, 394 (5th Cir.), cert. denied,
3177, 49 L. Ed. 2d 1190 (1976). Examination of the record shows the W-2
forms and other forms Millican claims the Government destroyed were not
needed in connection with his conviction, and they did not contain
allegedly exclupatory information.
of Millican's other challenges to the fairness of the trial reveals no
error. Contrary to Millican's assertions, 26 U. S. C. A. §7203
requiring the filing of an income tax return is not unconstitutional for
vagueness, United States v. Lachmann [72-2 USTC ¶9766], 469 F.
2d 1043, 1046 (1st Cir. 1972), cert. denied, 411 U. S. 931, 93 S.
Ct. 1897, 36 L. Ed. 2d 390 (1973); United States v. Ming [72-1
USTC ¶9449], 466 F. 2d 1000, 1004 (7th Cir.), cert. denied, 409
U. S. 915, 93 S. Ct. 235, 34 L. Ed. 2d 176 (1972), and this Court has
held an information instead of an indictment can be used to charge a
defendant with failure to file an income tax return in violation of 26
U. S. C. A. §7203.
v. Kahl, 583 F. 2d at 1355.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty
Co. of New York et al., 5 Cir. 1970, 431 F. 2d 409, Part I.
United States of America
, Plaintiff-Appellee v. Charles E. Rice, Defendant-Appellant Appellant
Court of Appeals, 5th Circuit. * Unit A, No.
80-1312, 659 F2d 524,
, Affirming an unreported District Court decision
[Code Sec. 7203]
Wilful failure to file return: Proper venue: Selective prosecution:
Jury instructions: Prosecutorial misconduct.--A tax protestor's
conviction for wilfully failing to file an income tax return was
affirmed. The taxpayer had been properly indicted and tried in the
judicial district in which he was required to file. Further, the
taxpayer's contentions that he was a victim of selective prosecution,
that the jury instructions regarding his claim of a Fifth Amendment
privilege were in error and that the prosecutor made prejudicial
comments were all dismissed as being without merit.
J. Mighell, United States Attorney, Rebecca Gregory, Shirley
Baccus-Lobel, Assistant United States Attorney, Fort Worth, Tex. 76102,
Harry Koch, Assistant United States Attorney, Dallas, Tex. 75202, for
plaintiff-appellee. Joe Alfred Izen, Jr., 8191 S. W. Freeway,
, for defendant-appellant.
GEE, GARZA and TATE, Circuit Judges.
defendant Rice appeals from a conviction for one count of willfully
failing to file an income tax return with the Internal Revenue Service,
in violation of 26 U. S. C. §7203. We affirm.
appeal Rice asserts that his indictment should have been dismissed (1)
because of improper venue and (2) because the government engaged in
selective prosecution Rice also argues that his conviction should be
reversed and remanded for a new trial on the further grounds that: (3)
the trial court failed to submit to the jury, sua sponte, an
interrogatory to determine whether Rice's answers to questions on his
return would have been incriminating, and the trial court failed to
charge the jury properly on this issue; (4) the prosecutor made
prejudicial comments and arguments; (5) Rice should not be considered a
"person" required to file income tax returns within the
meaning of 26 U. S. C. §7343. We find no merit to these contentions for
the following reasons:
Venue. The crime of failure to file an income tax return is
committed in a judicial district in which the taxpayer is required to
file. United States v. Quimby [81-1 USTC ¶9196], 636 F. 2d 86,
89-90 (5th Cir. 1981); United States v. Calhoun [78-1 USTC ¶9203],
566 F. 2d 969, 973 (5th Cir. 1978). With exceptions not here relevant, a
return must be filed either "in the internal revenue district in
which is located the legal residence or principal place of business of
the person making the return" or else "at a service center
serving [that] internal revenue district." 26 U. S. C. §6091(b)(1)(A).
The defendant was therefore properly indicted and tried in the Northern
, in which he resided at
and in which was located the
internal revenue district.
motion to dismiss the indictment alleged that the crime was instead
properly cognizable only in the Western District of Texas, in
which is located
, the service center for the district. The basis for the argument is
that the 1976 returns for the Northern District were merely marked
"received" at the Dallas IRS office and were then forwarded to
service center for filing. Nevertheless, prosecution was instituted in a
district of proper statutory venue. The factual circumstance relied upon
is irrelevant to the venue issue and would not deprive the judicial
authorities of the statutorily authorized district of venue to entertain
Selective Prosecution". Rice claims that, as a "tax
protester", he was the victim of selective prosecution. He points
out that tax protestor are currently the subject of intensive tax
enforcement efforts. He relies, for instance, on procedures outlined in
an IRS manual entitled "Examination and Investigation of Illegal
Tax Protest-type activities" to identify such protestor's returns
and check them for illegality. He notes also that IRS policy normally
calls for criminal prosecution for failure to file an income tax return
only where the taxpayer's income exceeded $30,000 except in the
case of tax protestors. (Rice's gross income for the year was alleged by
the indictment to have been $13,005.07).
district court conducted an evidentiary hearing on this issue and ruled
prevail in a selective prosecution challenge, a defendant must first
make a prima facie showing that he has been singled out for prosecution
while others similarly situated and committing the same acts have not. United
States v. Tibbetts [81-2 USTC ¶9475], 646 F. 2d 193 (5th Cir.
1981); United States v. Lichenstein, 610 F. 2d 1272, 1281 (5th
Cir.), cert. denied, 447
2991, 64 L. Ed. 2d 856 (1980). If the defendant makes this showing, he
is further required to show that the government's discriminatory
selection of him for prosecution has been invidious or in bad faith, by
resting upon such impermissible considerations as race, religion, or the
desire to prevent his exercise of constitutional rights. Tibbetts,
supra; United States v. Kahl [78-2 USTC ¶9842], 583 F. 2d 1351,
1353 (5th Cir. 1978); United States v. Johnson [78-2 USTC ¶9642],
577 F. 2d 1304, 1308 (5th Cir. 1978).
the evidentiary hearing, the regional counsel for the Internal Revenue
Service testified that the criteria used in determining whether to
prosecute a given case under 26 U. S. C. §7203 was the same for
"tax protesters" as for any other individuals suspected of
violating the provision. Those criteria are: (1) whether the evidence is
sufficient to establish guilt beyond a reasonable doubt, and (2) whether
there is a reasonable probability of conviction. The regional counsel
also testified that factors such as flagrancy of the violation,
potential tax harm, and the dollar amount involved are all considered in
the determination whether there is a reasonable probability of
court has consistently rejected claims of selective prosecution by other
"tax protesters" similar to those advanced herein. See, e.g., Tibbetts,
supra, 646 F. 2d at 195; Kahl, supra, 583 F. 2d at 1353-54; Johnson,
supra, 577 F. 2d at 1309. We noted there in that selective
enforcement of the law is not in itself a constitutional violation, in
the absence of invidious purpose. We also held that selection of cases
for close investigation and for prosecution (only if illegal conduct is
discovered) is not impermissible simply because focused upon those most
vocal in a concerted effort to encourage violation of the nation's tax
laws. "The government's prosecution of tax protesters as a group
merely indicates a valid interest in punishing violators who flagrantly
and vocally break the law." Tibbetts, supra, 646 F. 2d at
195. The "selection for prosecution based in part upon the
potential deterrent effect on others serves a legitimate interest in
promoting more general compliance with the tax laws. Since the
government lacks the means to investigate every suspected violation of
the tax laws, it makes good sense to prosecute those who will receive,
or are likely to receive, the attention of the media." United
States v. Catlett [78-2 USTC ¶9775], 584 F. 2d 864, 868 (8th Cir.
1978). For similar reasons, it is not unconstitutionally selective to
focus for investigative purposes upon a group that on objective
examination is much more likely than at random to have committed tax
illegalities openly approved by them.
rationale of most of the decisions cited is that no prima facie case has
been made out of "selective prosecution" from among those
similarly situated, because tax protestors openly advocating
non-compliance with the tax laws are not "similarly situated"
to other taxpayers who merely neglect to file tax returns. It is
apparent, however, that the identical rationale would support a
conclusion, if indeed such a program amounts to selective prosecution,
it is not invidiously motivated and thus does not offend the
constitution. In either event, we find no merit to this contention.
Jury Interrogatory and Jury Instruction of Fifth Amendment Privilege.
Rice contends that the trial court erred in refusing to submit an
interrogatory to the jury for it to determine whether or not Rice was
mistaken in claiming a fifth amendment privilege against
self-incrimination with regard to his income tax "return" for
1976. This contention is frivolous, if only because Rice never requested
such action from the district court at the time of trial, as well as for
several other reasons.
we find to be patently unmeritorious Rice's related contention that the
district court erred in its instructions to the jury with regard to his
fifth amendment claim. In the first place, a tax-protestor defendant's
attack upon an identical jury instruction was rejected in Johnson,
supra, 577 F. 2d at 1310 n. 3. In the second place, as Johnson
itself noted, Id. at 1311, the instruction may have been unduly
favorable to the taxpayer; and under the facts herein present, the
taxpayer defendant may not have been entitled to any charge at all that
a good faith, although erroneous, claim of privilege against
self-incrimination negates the "willfulness" requisite for
criminal violation. United States v. Booher [81-2 USTC ¶9304],
641 F. 2d 218, 220 (5th Cir. 1981); see also United States v. Neff
[80-1 USTC ¶9397], 615 F. 2d 1235 (9th Cir. 1980).
Prosecutorial Misconduct. The gravamen of the improper-comments
complaint seems to be that the prosecutor improperly referred to the
amount of taxes owed and paid for the taxable year in question or in
previous years. The evidence to this effect had been properly admitted,
over objection, as probative of the willfulness and intent requisite for
the offense. See, e.g., United States v. Farber, 630 F. 2d 569,
571-72 (8th Cir. 1980), cert. denied, --
--, 101 S. Ct. 946, 67 L. Ed. 2d 114 (1981). We have some difficulty in
understanding as raising an arguable issue Rice's contentions that the
prosecutor's dispassionately stated arguments justifying admission of
this evidence in the face of the defendant's objection, or his questions
electing such testimony, constituted improper prosecutorial comment.
is slightly more substance to Rice's complaint of the prosecutor's
statement, in closing argument after summarizing the evidence, that:
"The long and short of it is that Mr. Rice has chiseled on his
income tax." However, the defendant did not object to it at the
time; in context, it seems to have been the prosecutor's argument that
the evidence was open to the conclusion he stated; in the absence of
objection at that time, which could have secured curative admonition (if
needed), we are unable to say that the conclusory comment was obvious or
"plain" error affecting the substantial rights of the
defendant, Fed. R. Crim. P. 52(b), so as to require reversal even in the
absence of trial objection as seriously affecting the fairness of the
v. Cormier, 639 F. 2d 1177, 1183 (5th Cir. 1981).
Rice Not a "Person"? Finally, Rice contends that he is
not a "person" required to file an income tax return by 26 U.
S. C. §7203, for violation of which he was convicted. He points out
C. §7343 provides that a "person", for such purposes, "includes
an officer or employee of a corporation, or a member or employee of a
partnership" (emphasis supplied) who has the duty to file such a
return. In a nigh frivolous non-sequitur, Rice concludes from the
statutory language that "[o]bviously, Section 7343 does not include
the term 'natural person'." Def. brief, p. 25. Perhaps so. Even
more obviously, however, the statutory provision was not intended to
exclude individual or to limit the ordinary meaning of the term
"person" so as to exclude individuals or "natural
persons", in counsel's phrase, from their responsibility to comply
with the tax laws.
no merit to the defendant Rice's contentions, we AFFIRM his conviction.
Former Fifth Circuit case Section 9(1) of Public Law 96-452--October 14,