Indictment

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7205- Fraudulent Withholding Exemption Certificate: Indictment

 

[78-2 USTC ¶9492] United States of America v. Michael R. Lee

U. S. District Court, East. Dist. Pa., No. 77-275, 9/14/77

[Code Sec. 7205--result unchanged under '76 Tax Reform Act]

Criminal penalties: False withholding exemption: Indictment: Insufficient information.--The taxpayer's motion to dismiss the indictment against him for filing a false withholding statement, on the ground that it did not sufficiently inform him of the nature of the crime, was dismissed.

David W. Marston, United States Attorney, Philadelphia , Pa. 19106 , for plaintiff. Cole Y. Gittman, 2215 Green St., Chester, Pa. 19103, Carmen Nasuti, 1325 Spruce St., Philadelphia, Pa. 19107, for defendant.

Memorandum and Order

NEWCOMER, District Judge:

Defendant Michael Lee has filed three motions with the Court regarding his indictment and arrest for violation of the Internal Revenue Service Code. This Court has considered these motions and briefs and has decided to deny all three.

The defendant, who is now proceeding pro se with the help of a non-lawyer friend, moves for dismissal of the indictment. This motion attacks the indictment primarily for its alleged vague and conclusory nature. He claims that it is insufficient to inform him of the nature of the charge so that he is unable to prepare a defense and would be unable to rely on it as protection for double jeopardy purposes. He also attacks the indictment as containing no specific facts but only "mear (sic) conclusions" or "at most a general theory as to what, in the government's opinion, might constitute a violation of the United States Code . . ." Therefore, defendant contends, the indictment violates the Fifth and Sixth Amendments.

This Court does not agree, since this indictment meets the criteria laid down by the courts. See Hagner v. United States, 285 U. S. 427 (1932); United States v. Kenny, 462 F. 2d 1205 (3d Cir. 1972); cert. denied sub nom. Kropke v. United States , 409 U. S. 914 (1972); United States v. Gibbons, 463 F. 2d 1201 (3d Cir. 1972). First, the indictment's language tracks that of the statute alleged to have been violated, 26 U. S. C. §7205. Therefore, it sufficiently describes the offense charged. Second, it specifies the date on or about which defendant is claimed to have acted. By so doing, defendant is protected from being placed in double jeopardy, since the crime alleged is narrowed by its description and is placed specifically in time. The facts alleged therein are such that he can fully understand the charges made against him and can prepare to defend against them. Every fact to be put into evidence need not be embodied in the indictment. It is sufficient if, as here, it contains the time, place and essential elements. Kenny, supra; United States v. Weiss, 491 F. 2d 460 (2d Cir. 1974), cert. denied, 419 U. S. 833 (1974); United States v. Marra [73-2 USTC ¶9578], 481 F. 2d 1196 (6th Cir. 1973) (indictment for IRS violations). Therefore, the Court finds that it is not violative of the Fifth and sixth Amendments.

Defendant also claims that the indictment fails to charge any fact or act that would bring the cause within the Court's jurisdiction. Since the indictment's charges parallel the language of 26 U. S. C. §7205, and charges a false withholding statement filing which, if proven, would be a federal crime, this claim must fail. No more specific facts need be charged, such as alleged means of committing the crime or the amount of taxes in question. Hayes v. United States [69-1 USTC ¶9204], 407 F. 2d 189 (5th Cir. 1969), cert. dismissed, 395 U. S. 972 (1969).

Defendant also seems to have confused the warrant and the indictment. He asserts, wrongly, that a complaint should have been submitted to the grand jury before the indictment could issue. Rule 4 of the Federal Criminal Procedure rules requires that a complaint issue to form the basis of an arrest warrant. This is not a prerequisite, however, for a grand jury to indict.

In his final attack on the indictment in this motion, he complains that the indictment does not list the witnesses who testified before the grand jury. This is closely related to his motion to inspect the grand jury minutes and the Court will consider these issues together. The Sixth Amendment right to confront witnesses against a defendant does not mandate that a person be apprised of the grand jury witnesses' identity. Wilson v. United States , 221 U. S. 361 (1911). Therefore, this is certainly not grounds for the drastic measure of dismissal of the indictment. Furthermore, a presumption of regularity attaches to the grand jury's procedure. In re Grand Jury Proceedings, 486 F. 2d 85 (3d Cir. 1973). This presumption of course, may be challenged but it requires more than just a suspicion of irregularity. Under Fed. R. Crim. P. 6(e), the Court may allow inspection of the minutes "upon a showing tht grounds may exist for a motion to dismiss because of matters occurring before the grand jury." This decision is committed to the discretion of the trial judge, United States v. Bertucci, 333 F. 2d 292 (3d Cir. 1964), cert. denied, 379 U. S. 839 (1964); United States v. Byrne, 422 F. Supp. 147 (E. D. Pa. 1976), aff'd in part and rev'd in part, C. A. 76-2461 et al. (3d Cir. August 11, 1977 ). Defendant has presented only the most conclusory allegations in his affidavit of basis whatsoever to support these suspicions. This Court sees no special circumstances here to overcome the established rule of grand jury secrecy. With such a lack of a factual basis, Rule 6(e) does not envision revealing of the grand jury minutes.

Finally, defendant has moved to strike his arrest warrant. Since it fully complies with Fed. R. Crim. P. 9, this motion will also be denied.

Order

AND NOW, to wit, this 14th day of September, 1977, the motions of defendant Michael R. Lee to strike the arrest warrant, dismiss the indictment and to inspect the grand jury minutes are hereby DENIED.

AND IT IS SO ORDERED.

 

 

 

[79-2 USTC ¶9580] United States of America , Plaintiff-Appellee, v. Alton R. Moss a/k/a John L. "Snoopy" Freeman, Defendant-Appellant

(CA-8), U. S. Court of Appeals, 8th Circuit, No. 78-1895, 604 F2d 569, 8/16/79 , Affirming unreported District Court decision

[Code Sec. 7205 and 18 U. S. C. §2]

Crimes: False withholding forms: Aiding and abetting: Miscellaneous defenses.--The defendant was properly convicted of aiding and abetting others in filing false withholding forms. His conduct did not fall within the rubric of free speech. No indictment was required because the defendant could not have been required to serve his sentence in a penitentiary, so his crime was not infamous. Nor was he selectively prosecuted.

Edward G. Warin, United States Attorney, Richard J. Nolan, Assistant United States Attorney, Lincoln, Nebraska 68508, for plaintiff-appellee. William Dee Morris, 127 East Main, Missoula , Montana 59807 , for defendant-appellant.

Before HEANEY and STEPHENSON, Circuit Judges and MARKEY, ^* Chief Judge, United States Court of Customs and Patent Appeals.

MARKEY, Chief Judge:

Appeal from a jury conviction before Chief Judge Urbom of the United States District Court for the District of Nebraska, on charges of aiding and abetting the willful filing of fraudulent withholding forms by others. We affirm.

Background

Defendant-appellant Alton Moss, also known as John L. Freeman (Freeman), travels throughout the United States giving a speech in which he challenges the constitutionality of the federal income tax laws and describes how to avoid the federal withholding tax.

Defendants Vanosdall, Gronewold, Lilienthal, Spencer, and Sanne (principal defendants) are employees of Van's Electric Company (Van's).

In late February 1978, Gronewold, Sanne, and Vanosdall heard Freeman in a radio interview. On March 8, Gronewold attended and recorded a speech given by Freeman at a local hotel. In mid-March, Gronewold played his recording for the principal defendants. On April 8, Freeman came to Van's and spoke to all the principal defendants except Spencer, and advised them that, were they to run afoul of the law, he would defend them for a stated fee.

Motivated by Freeman's speech, the principal defendants filed falsified W-4 forms. All were charged by information with violation of 26 U. S. C. §7205 (§7205), ¹ and pleaded guilty. ² Each information also charged Freeman in a second count with violation of 18 U. S. C. §2. ³

During his arraignment, Freeman, acting pro se, asked that his case be submitted to a grand jury. When his request was denied, Freeman filed a corresponding motion, which was also denied.

Immediately prior to trial, Freeman moved for, inter alia, reduction of the charges to a single charge and dismissal on grounds of illegal selective prosecution. Those motions were denied.

The jury found Freeman guilty on all five counts. The court sentenced him on each count to the custody of the Attorney General for a period of one year, the sentences to run concurrently.

Issues

The issues are whether: (1) Freeman's actions are protected by the first amendment, (2) an indictment is required to charge aiding and abetting in violation of 18 U. S. C. §2, and (3) Freeman was illegally selectively prosecuted. ⁴

1. Freeman's actions are not protected by the First Amendment. Freeman alleges that his speeches "[challenge] the constitutionality of the income tax laws as . . . enforced in this country . . .," that he "espouses a political cause aimed at changing the tax law in the United States . . .," and that his actions were "absolutely protected" by the first amendment, any conviction founded on the present record being "outside the . . . perview of . . . the laws of this country."

Freeman's objection was answered by this court in United States v. Buttorff [78-1 USTC ¶9265], 572 F. 2d 619 (8th Cir. 1978), on facts similar to those here, 572 F. 2d at 623-24:

[T]he Supreme Court has distinguished between speech which merely advocates law violation and speech which incites imminent lawless activity. See Brandenburg v. Ohio , 395 U. S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). The former is protected; the latter is not.

Although the speeches here do not incite the type of imminent lawless activity referred to in criminal syndicalism cases, the defendants did go beyond mere advocacy of tax reform. They explained how to avoid withholding and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue. This speech is not entitled to first amendment protection and, as discussed above, was sufficient action to constitute aiding and abetting the filing of false or fraudulent withholding forms.

Freeman also alleges that his conviction must be overturned because §7205, on which it is based, is unconstitutionally vague. ⁵ Gooding v. Wilson , 405 U. S. 518 (1972), on which Freeman bases his argument, requires that the proscribed actions be constitutionally protected. ⁶ Because we find Freemant's actions not so protected, that argument is without merit.

2. An indictment was not required. Freeman was charged by information. Fed. R. Crim. P. 7(a). ⁷ Because violation of §7205 is punishable by "a" prison sentence, and because under 18 U. S. C. §2 Freeman may be punished as a principal, he alleges that his crime was infamous. Hence, says Freeman, the government's failure to obtain a grand jury indictment was a violation of the fifth amendment's requirement therefor in relation to "capital or otherwise infamous" crimes.

An infamous crime is one punishable by death, or by imprisonment in a penitentiary or at hard labor. United States v. Moreland, 258 U. S. 433, 436-37 (1922); Ex parte Wilson, 114 U. S. 417, 426-29 (1885). Under 18 U. S. C. §4083: "Persons convicted of offenses against the United States . . . punishable by imprisonment for more than one year may be confined in any United States penitentiary. A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant." If punished as a principal under §7205, Freeman could not be imprisoned for more than one year. Because he could not therefore be required to serve his sentence in a penitentiary without his consent his crime cannot be deemed infamous ⁸ and an indictment was not required. ⁹

3. Freeman was not illegally selectively prosecuted. Freeman alleges that the government's only purpose in prosecuting the principal defendants was to enable the government to prosecute and "convict him for exercising his First Amendment rights," in violation of his rights to due process and equal protection set forth in the fifth and fourteenth amendments. He cites as evidence the guilty pleas of the principal defendants, their light sentences, their promises in writing to testify at Freeman's trial, and the acquittal of Boruch.

In Oyler v. Boles, 368 U. S. 448, 456 (1962), the Supreme Court stated:

Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore, grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra; cf. Snowden v. Hughes, 321 U. S. 1 (1944); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (by implication).

This court stated the test in United States v. Catlett, 584 F. 2d 864, 866 (8th Cir. 1978):

To establish the essential elements of a prima facie case of selective discrimination, a defendant must first demonstrate that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted. Second, the defendant must demonstrate that the government's discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his first amendment right to free speech. United States v. Berrios, 501 F. 2d 1207, 1211 (2d Cir. 1974). We approved of this two-pronged test of "intentional and purposeful discrimination" in United States v. Swanson, 509 F. 2d 1205, 1208-09 (8th Cir. 1975). See also United States v. Ojala, supra, 544 F. 2d at 943.

Catlett involved a Quaker long active in protesting certain government policies by refusing to file federal income tax returns. Upon being prosecuted for willfully and knowingly failing to file income tax returns, Catlett produced evidence that the Internal Revenue Service had adopted a selective approach to its investigations of tax noncompliance, centering on "individuals who have achieved notoriety as tax protestors." 584 F. 2d at 865-67. This court concluded, 584 F. 2d at 867, that, even assuming the government's selective policy had been applied to Catlett, he had:

[F]ailed to establish a prima facie case of purposeful discrimination. While the decision to prosecute an individual cannot be made in retaliation for his exercise of his first amendment right to protest government war and tax policies, the prosecution of those protestors who publicly and with attendant publicity assert an alleged personal privilege not to pay taxes as part of their protest is not selection on an impermissible basis.

Here, Freeman has not shown that he was (1) singled out for prosecution, or (2) selected for prosecution upon the impermissible ground of an exercise of his first amendment rights. "The prosecution of those who publicly and with attendant publicity [encourage people to file fraudulent withholding forms in violation of the law] as part of their protest is not selection on an impermissible basis." Id. at 867.

Finding no error, we affirm the judgment.

^* HOWARD T. MARKEY, Chief Judge , United States Court of Customs and Patent Appeals, Washington, D. C., sitting by designation.

¹ §7205. Fraudulent withholding exemption certificate or failure to supply information.

Any individual required to supply information to his employer under section 3402 who willfully supplies false or fraudulent information, or who willfully fails to supply information thereunder which would require an increase in the tax to be withheld under section 3402, shall, in lieu of any other penalty provided by law (except the penalty provided by section 6682), upon conviction thereof, be fined not more than $500, or imprisoned not more than 1 year, or both.

² A sixth defendant, Boruch, also pleaded guilty, but later withdrew his plea and was acquitted. He did not take part in Freeman's trial, and the case against Freeman based on Count II of the information charging Boruch was dismissed.

³ §2. Principals

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

Aiding the filing of fraudulent withholding forms is also a violation of 26 U. S. C. §7206(2):

§7206. Fraud and false statements

Any person who--

(2) Aid or assistance

Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such reburn, affidavit, claim, or document . . . shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.

⁴ We decline comment on multiplicity of charges, a matter mentioned in the government's brief but neither raised nor argued by Freeman on appeal.

⁵ Freeman alleges: (1) that "criminal culpability based upon §7205 must rest on . . . the definition of 'liability' as . . . used on the W-4 forms . . .," and that "the absence of a definition of 'liability' in the Internal Revenue Code invalidates the statute;" and (2) that the tax laws are vague because the same figures can be made to yield different results for tax liability.

Both allegations are without merit:

"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U. S. 612, 617, 74 S. Ct. 808, 812 98 L. Ed. 989 (1954) (footnotes omitted). There is no doubt that the code sections named in the indictment proscribe the filing of a false or fraudulent withholding form and that defendants were capable of understanding this meaning of the statute.

United States v. Butorff, 572 F. 2d at 625.

⁶ Freeman quotes from Gooding, 405 U. S. at 520-21. In pertinent part that quote reads:

At least when statutes regulate or proscribe speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," Dombrowski v. Pfister, 380 U. S. 479, 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," id., at 486; see also Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); id., at 619-20 (White, J., dissenting); United States v. Raines, 362 U. S. 17, 21-22 (1960); NAACP v. Button, 371 U. S. 415, 433 (1963). [Emphasis added.]

⁷ Rule 7. The Indictment and the Information

(a) Use of Indictment or Information

An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by the information. An information may be filed without leave of court.

⁸ For the same reasons, Fed. R. Crim. P. 7(a) does not, as Freeman alleges, violate the fifth amendment.

⁹ That Freeman was charged with and convicted of five separate offenses with a possible total sentence of five years does not convert the offenses charged into "infamous" crimes for purposes of the fifth amendment. United States v. Jordan [75-1 USTC ¶9154], 508 F. 2d 750, 753 (7th Cir. 1975).

 

 

[81-1 USTC ¶9194] United States of America , Appellee v. Nancy E. Wilson, Appellant United States of America , Appellee v. Buddy Rex Wilson, Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, Nos. 80-1255, 80-1256, 2/9/81 , Affirming unreported district court decisions

[Code Sec. 7205 and U. S. Constitution]

Filing false withholding statements: Selective prosecution claim: Failure to produce sufficient evidence: Appeal of interlocutory order: Requirements.--The district court's denial of the taxpayers' motion to dismiss an indictment charging them with filing false withholding statements on the grounds of selective prosecution was affirmed. The interlocutory order dismissing the motion was immediately appealable because such an order was a complete and final determination of an issue wholly collateral to the actual cause of action and involved rights which would be lost if appellate review were postponed until final judgment. However, the taxpayers failed to produce evidence which convincingly demonstrated that they were prosecuted because of their exercise of their First and Fifth Amendment rights. Specifically, they failed to show that other, similarly situated taxpayers who did not exercise their constitutional rights were not prosecuted.

John G. Hawkins, Assistant United States Attorney, Tucson , Ariz. 85702 , for appellee. Jo Ann D. Diamos, Assistant Federal Public Defender, P. O. Box 2710, Tucson, Ariz. 85702 for Nancy E. Wilson. Gerald S. Frank, Assistant United States Attorney, Tucson , Ariz. 85701 , for appellee. S. Jeffrey Minker, 120 W. Broadway, Tucson , Ariz. 85701 , for Buddy Rex Wilson.

Before KILKENNY and GOODWIN, Circuit Judges, and REAL, ^* District Judge.

GOODWIN, Circuit Judge:

The Wilsons, who were charged with filing false withholding statements during 1979 in violation of 26 U. S. C. §7205, moved to dismiss the indictment on grounds of selective prosecution. They argued that the government prosecuted then only because they had exercised their First Amendment right to protest the income tax or because they had exercised their Fifth Amendment right not to answer IRS' questions. The district court denied the motion and they appeal.

Two issues are presented. The first is whether this court has jurisdiction under Abney v. United States, 431 U. S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977), and its progeny, to hear this interlocutory appeal. If so, we must decide whether the Wilsons presented sufficient evidence of an illegal prosecution to warrant pretrial dismissal.

I. JURISDICTION. Abney held that a double jeopardy ruling is immediately appealable under the collateral order exception to the final judgment rule. In United States v. Griffin, 617 F. 2d 1342 (9th Cir. 1980), this court extended the Abney exception to certain orders denying motions alleging "vindictive" prosecution. The question whether the Griffin exception should be applied equally to allegations of selective prosecution appears to be one of first impression.

Little substantive difference can be detected between selective prosecution and vindictive prosecution. Vindictive prosecution arises only where the government increases the severity of alleged charges in response to a defendant's exercise of constitutional rights. See United States v. Burt, 619 F. 2d 831, 836 (9th Cir. 1980); see generally, United States v. Groves, 571 F. 2d 450, 453 (9th Cir. 1978) (vindictive prosecution claim brought after new charges were filed following defendant's motion to dismiss on speedy trial grounds); United States v. DeMarco [77-1 USTC ¶9354], 550 F. 2d 1224, 1226 (9th Cir.), cert. denied, 434 U. S. 827, 98 S. Ct. 105, 54 L. Ed. 2d 85 (1977) (vindictive prosecution claim brought when new indictment filed after defendant successfully moved for a change of venue).

Selective prosecution challenges arise when a defendant alleges that he is being prosecuted initially for having exercised a constitutional right. See United States v. Oaks [76-1 USTC ¶9120], 527 F. 2d 937, 940 (9th Cir. 1975), cert. denied, 426 U. S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1191 (1976). The interests involved are the same as in vindictive prosecution cases: the defendant seeks protection from criminal prosecution initiated punitively, in response to the exercise of his constitutional rights.

To be heard, all interlocutory appeals must meet three criteria.

"First, there . . . [has] to be a complete and final determination of the issue in the district court. No appeal may be taken if the matter was left, 'open, unfinished or inconclusive.' . . . Second, the decision . . . [can] not be simply a 'step toward final disposition of the merits of the case [that would] be merged in the final judgment'; rather, it must resolve an issue wholly collateral to the actual cause of action asserted. . . . Finally, the right involved in the decision would be 'lost, probably irreparably,' if appellate review was postponed until final judgment. . . ." United States v. Griffin , 617 F. 2d at 1344.

A selective prosecution appeal does satisfy the Griffin criteria. The trial court's selective prosecution ruling is no less a complete and final determination than is a "vindictive" prosecution ruling. Second, the selective prosecution decision is not a step towards final disposition of the merits that would be merged into the final judgment. As in Griffin, selective prosecution does not constitute a challenge to the merits of the charges brought against the accused, nor could a disposition of the claim affect, or be affected by, a decision which is based on the merits. Id. at 1345. The issue of selective prosecution has nothing to do with whether the Wilsons did or did not file false withholding forms. Last, selective prosecution, as much as vindictive prosecution, possibly involves a right to be "free from prosecution itself, rather than merely the right to be free from a subsequent conviction." Id. Thus, because selective prosecution cases meet the Griffin-Abney criteria, they are immediately appealable.

We note that even the government did not attempt in its brief to distinguish selective prosecution claims from vindictive prosecution claims. Instead, it concentrated on explaining why Griffin type defenses should not be immediately appealable. We are sympathetic with the government's argument, but it must be addressed to the court en banc. This panel is bound by Griffin . ¹

II. SUFFICIENCY OF THE SHOWING BELOW. The district court denied the Wilsons ' motion to dismiss, finding that they had failed to carry their burden of showing improper selective prosecution. The Wilsons asserted that they were selected for prosecution either because they refused to answer questions on their 1040 tax form and attached a 40-odd page memorandum on the unconstitutionality of the tax laws, or because they had exercised their Fifth Amendment rights when an IRS officer called on them. Their bare assertion does not make a case.

A. Standard of Review. In Griffin , 617 F. 2d at 1347, this court may have used an abuse of discretion standard to review the denial of a motion to dismiss on vindictive prosecution grounds. While Griffin and the instant case arise in the same procedural posture and involve substantially similar issues, we believe it is technically accurate to follow the "clearly erroneous" standard in reviewing the fact finding process here. ²

B. The Selective Prosecution Test. The district court used the following test to decide whether there was improper selective prosecution:

"The law in this Circuit places the burden squarely upon the defendants to prove in a selective prosecution:

1. That others are generally not prosecuted for the same conduct;

2. The decision to prosecute this defendant was based upon impermissible grounds such as race, religion or the exercise of constitutional rights."

All parties agree that this was the proper test.

The initial case setting the selective prosecution standard was Oyler v. Boles, 368 U. S. 448, 456, 82 S. Ct. 501, 505, 7 L. Ed. 2d 446 (1962). It did not mention prosecution based on exercise of constitutional rights, but prosecution based on "arbitrary classification." United States v. Steele, 461 F. 2d 1148, 1151 (9th Cir. 1972), came next; it expanded the test to cover prosecution based on the defendant's exercise of his First Amendment rights. Then came United States v. Berrios, 501 F. 2d 1207, 1211 (2d Cir. 1974), a Second Circuit case; Berrios' formulation of the test included prosecution based on exercise of constitutional rights. United States v. Scott, 521 F. 2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U. S. 955, 96 S. Ct. 1431, 47 L. Ed. 2d 361 (1976), followed; it phrased the test in terms of exercise of First Amendment rights, but cited Berrios (constitutional rights) and Steele (First Amendment rights) as support. United States v. Oaks, supra, 527 F. 2d at 940, which came next, was a tax protest case; the court used the First Amendment test, but the facts suggest that a Fifth Amendment right was also involved. United States v. Gillings [78-1 USTC ¶9388], 568 F. 2d 1307, 1309 (9th Cir.), cert. denied, 436 U. S. 919, 98 S. Ct. 2267, 56 L. Ed. 2d 760 (1978), said that the test in this circuit is that used in Berrios (constitutional rights), but it cited Oaks (First Amendment test, Fifth Amendment facts) as support. In United States v. Choate [80-2 USTC ¶9499], 619 F. 2d 21, 23 (9th Cir. 1980), the court said that the Ninth Circuit had expanded the Oyler test to include exercise of First Amendment rights. We now expressly approve the selective prosecutive test as formulated by the district court and Gillings: prosecution based on exercised of constitutional rights is impermissible.

C. The Evidence. The Wilsons first argue that if only two persons out of approximately 425 who filed "exempt" W-4's are prosecuted, the probable explanation has to be that they were "chosen" because of their tax protest, an exercise of a constitutional right. Perhaps the strongest testimony in the Wilsons ' favor is that elicited by the trial judge. He asked the IRS investigator: "[D]o you know of any case in Tucson since you've been here that involves someone who filed a [W-4] form but didn't give any other information on their tax return and paid no taxes and was a tax protestor that has not been prosecuted?" Investigator Lujan answered, "No, I don't know of anyone."

Buddy Wilson 's attorney asked Lujan: "It the most recent case that you know of that you've prosecuted the one that you mentioned that's three years old in the Tucson area?" Lujan answered, "yes". The attorney then asked whether that individual had refused to give information on First and Fifth Amendment grounds and Lujan again answered "yes." Thus, there was some evidence suggesting that all "tax protestors' are prosecuted and that the IRS has not recently prosecuted any nonprotestors.

The Wilsons ' argument also relies on the following evidence:

1. In 1979, 5140 people in Arizona filed "exempt" or excessive W-4's;

2. 1689 of these W-4's were checked; 1/4th of these (approximately 425 people) had not filed a 1040 form either;

3. At any given time in the district (unclear if in Phoenix only or all of Arizona ) there are 75-100 investigations; 30-35 percent involve violations similar to this case (false withholding, failure-to-file a 1040);

4. There were two 1979 false withholding cases from Tucson pending; there were two 1980 false withholding cases from Tucson pending (including the Wilson case); there was one 1972 false withholding from Tucson pending; there were three 1979 and 1980 false withholding cases from Phoenix pending; there were three 1980 failure-to-file cases from Phoenix pending.

5. Investigator Lujan's survey of the Wilsons ' place of employment revealed 25 others who had filed exempt W-4's. No investigation or prosecution on those is mentioned in the record.

The Wilsons have made some showing, then, that others whose W-4 forms might bear investigation have not been prosecuted. The Wilsons do not prevail, however, because they have not introduced evidence which convincingly shows that they were prosecuted because of their exercise of constitutional rights. They have not shown, as the Oaks test requires, that other similarly situated who have not exercised their rights have not been prosecuted. The statistics listed above show that there were other prosecutions and the Wilsons have not shown that those defendants were also tax protestors. This being so, we cannot find that the Wilsons carried their burden of proving that the decision to prosecute was made because they exercised their constitutional rights.

All prosecutions are to some degree "selective." The government concedes as much. Tax cases, because of budgetary and other institutional limitations, are perhaps the most selective of all. United States attorneys, and before they get the file, enforcement officers in the field, constantly practice some degree of selectivity in deploying their limited enforcement resources. In the tax field, with millions of returns, and many thousand that reveal some basis for further investigation, it is not surprising that only a very small number can be prosecuted. It is also not surprising that the limited enforcement resources are deployed to develop the strongest cases for prosecution. It is also not surprising that tax protestors, who seek by various attention-getting devices to attract enforcement attention to their cases, succeed. They undoubtedly present the strongest cases where "willfully" is an element of the cause of action. It is to be expected that a disproportionate number of tax protestors will be prosecuted. Unless one can show that the tax laws are deployed against protestors in retaliation for the exercise of their rights, a selective prosecution argument will fail. ³

The only Ninth Circuit case we have found where defendants prevailed on a claim of invidious selective prosecution was not a tax case. In United States v. Steele, 461 F. 2d supra, at 1150-52, defendant and three others were prosecuted for refusing to answer questions on a census form. All four had been notoriously involved in a census resistance movement. Steele had difficulty getting statistics, but those he produced were sufficient to show that only the protestors had been prosecuted while six others (nonprotestors) had committed the same offense. Unlike Steele, the Wilsons did not show that others similarly situated who had not exercised their speech rights were not prosecuted. They did not show that the other pending cases also involved tax protestors.

The Wilsons also argue that IRS deviation from routine procedure in their case indicates selective prosecution. This argument is nonsense. If there were a departure from IRS procedure, there would have to be proof that the departure was motivated by animus against the Wilsons because of the exercise of their constitutional rights. We cannot say that the findings of the district court were clearly erroneous.

The order appealed from is affirmed.

^* The Honorable Manuel L. Real, United States District Judge for the Central District of California, sitting by designation.

¹ Promiscuous resort to interlocutory appeals following Griffin has been counterproductive. If is frustrating the speedy trial policy, and the interlocutory appeals multiply the work of this court. Many of the claims of selective or vindictive prosecution are so patently frivolous that they can be disposed of summarily; but even summary disposition cranks into the life of a district court case several weeks of delay. Delay, disruption of calendars, loss of jury time, and needless expense follow in the wake of these interlocutory appeals. Once the Griffin rule was established, defense attorneys, as advocates, properly added "vindictive prosecution" to their check list of possible strategy for delay, continuance, severance, or dismissal. The resulting outpouring of motions was predictable. This court processed 13 Griffin and 25 Abney appeals during the months of June, July, August and September of 1980. Few appeared to have any merit.

There is no denying the need for a remedy in the truly deserving case, but there is no evidence of injustice resulting by leaving the parties to mandamus or to post-conviction review. We have seen no evidence that any of the tax protest cases, in which most of the claims of vindictive prosecution have been asserted, were brought for an improper reason. The very nature of the self-assessment tax system of this country requires both a modest degree of citizen cooperation and prompt enforcement action against those who attempt by obstructive behavior to bring down the system. The present case is a case in point.

² Several cases in this circuit have raised selective prosecution claims on appeal. See United States v. Choate [80-2 USTC ¶9499], 619 F. 2d 21 (9th Cir. 1980); United States v. Gillings [78-1 USTC ¶9388], 568 F. 2d 1307, 1309 (9th Cir. 1978); United States v. Oaks [76-1 USTC ¶9120], 527 F. 2d 937, 940 (9th Cir. 1975); United States v. Scott, 521 F. 2d 1188, 1195 (9th Cir. 1975). See United States v. Steele, 461 F. 2d 1148, 1151-52 (9th Cir. 1972). In each of them, the court appears to have decided, de novo, whether the charge of improper selective prosecution was sustained. We prefer the "clearly erroneous" standard for several reasons. First, even though the selective prosecution cases did not articulate the standard of review, we are not convinced that the court did not follow the fact-finding standard. Second, selective prosecution, even more than vindictive prosecution, lends itself to the fact finding standard. Vindictive prosecution only requires a substantial "appearance" of vindictiveness, but selective prosecution requires a finding that the decision to prosecute was based on impermissible grounds. United States v. Oaks [76-1 USTC ¶9120], 527 F. 2d 937, 940 (9th Cir. 1975). Because this is a factual question, involving the credibility of witnesses, we believe the better standard is the clearly erroneous standard well known to the bench and bar and involving no novelty.

³ Title 26 U. S. C. §7205 says:

"Any individual required to supply information to his employer under section 3402 who willfully supplies false or fraudulent information . . . shall . . . upon conviction thereof, be fined not more than $500, or imprisoned not more than 1 year, or both." (Emphasis added)

[Concurring Opinion]

REAL, District Judge (concurring).

I concur in the result.

I do not agree that selective prosecution should be treated in the same manner as the double jeopardy claim made in Abney v. United States, 431 U. S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977) or the vindictive prosecution claims made in United States v. Griffin, 617 F. 2d 1342 (9th Cir. 1980). I do share with the majority their concern for the proliferation of interlocutory appeals caused by Griffin but do not approach the selective prosecution questions raised by this appeal from that standpoint. I differ with the majority because they run headlong into the semantic trap of putting vindictive and selective prosecution in the same basket when they come from totally different gardens.

No one should question the distinction between a claim of double jeopardy expressly prohibited by the 5th Amendment and a claim of selective prosecution. Double jeopardy--aside from its constitutional underpinnings--involves a defendant who is being put to the trauma and expense of a second prosecution for conduct already subjected to the scrutiny of a trier of fact and decided either for or against the defendant in the first prosecution. Selective prosecution involves a single prosecution. Clearly the distinction could lead courts to declare that the defendant now claiming his 5th Amendment double jeopardy rights need not be "forced to 'run the gauntlet' a second time before an appeal could be taken; . . ." Abney, 431 U. S. at p. 662, 97 S. Ct. at p. 2041.

The vindictive prosecution claim in Griffin brought this Court to apply the Abney rationale and raise vindictive prosecution claims to the same level of protection offered by the Constitution to 5th Amendment claims of double jeopardy. The wisdom or unwisdom of Griffin aside the Court there gave three reasons for the adherence to Abney rationale none of which is persuasive in a claim of selective prosecution. First, the Court said the denial of the motion to dismiss the vindictively brought prosecution is a complete and final determination of that claim in the trial court. Second, a vindictive prosecution claim is wholly collateral to the issue of guilt or innocence of the defendant on the first charge. The collateral nature of the claim is that a second prosecution is brought by the prosecutor in retaliation of the exercise of some legal right in the original prosecution. Third, vindictive prosecution claims involve a right to be free from the second prosecution itself. The claim in substance is that "I'm being prosecuted in this case because I made the prosecutor mad by exercising a legal or Constitutional right in another case."

Selective prosecution, on the other hand involves a single prosecution. The claim arises out of the exercise of prosecutorial discretion in picking this defendant to prosecute for this crime at this time. The search into the motivation of a prosecutor--vigor, sincere belief of the deterrent value or bad faith--requires a court to delve into empirical data not vaguely relevant to guilt or innocence in the very prosecution in which the claim is made.

Prosecutorial discretion is certainly not untrammeled. Neither should it be subjected to the scrutiny of a Court except for a clear showing of abuse of discretion. This is not the stuff from which interlocutory appeals are made. To subject claims of abuse of discretion to the interlocutory appeal rationale of Abney and Griffin would in effect bring into the chambers of trial and appellate judges the day to day decisions of a prosecutor as to why this defendant was chosen for prosecution while the prosecution of some other person--claimed by the defendant to be guilty of the same conduct--is delayed or not prosecuted at all. I, for one, eschew the invitation to be such a super prosecutor.

If selective prosecution has any review-ability--and I believe it does--it can only intelligently be reviewed after all the facts relevant to the conduct being prosecuted are disclosed at trial. Otherwise prosecutors will be required to mini-try their entire portfolio of investigations to justify why this defendant was chosen to be prosecuted while others claimed by the defendant to be equally or more culpable of the same kind of conduct are not prosecuted. Prosecutors will be required to reveal and rationalize the relative strength of their case against this defendant as compared to others being considered for presentation to a Grand Jury or otherwise rejected for prosecution.

The appealability of rulings on selective prosecution claims ought to march hand in hand with the holding in United States v. MacDonald, 435 U. S. 850, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978) where the Supreme Court considering a speedy trial claim declined to "exacerbate pretrial delay by intruding upon accepted principles of finality . . ." to allow an interlocutory appeal.

One last thought. What ultimately is the victory of a defendant claiming selective prosecution? None, for the remedy would be for the prosecutor to present to the Grand Jury all violations of the same criminal statute. Acceding to the majority's view of selective prosecution claims would bring the Court into direct supervision of the prosecutor's office. I cannot abide such a legal and logistic mistake.

 

 

[84-2 USTC ¶9843] United States of America , Plaintiff v. Michael D. O'Ferrall, Defendant

U. S. District Court, Dist. Del., Crim. Action No. 84-22-WKS, 5/4/84

[Code Secs. 7203 and 7205]

Failure to File Return: Fraud and False Withholding Statements: Jurisdiction: Sufficiency of Indictment.--The court upheld the validity of an indictment for willfully failing to file income tax returns and willfully submitting a false withholding certificate. The court rejected as meritless the taxpayer's claims that: (1) the court lacked subject matter jurisdiction; (2) the taxpayer had a Fourth Amendment right to an affidavit of probable cause; (3) the IRS Privacy Notice and Paperwork Reduction Act notice on Forms 1040 and W-4 failed to satisfy the requirements of the Privacy Act; and (4) the Freedom of Information Act required that the IRS Privacy Act notice and the Forms 1040 and W-4 be published in the Federal Register.

Joseph J. Farnan, Jr., United States Attorney, Richard J. McMahon, Assistant United States Attorney, Wilmington , Delaware , 19801 , for plaintiff. Michael D. O'Ferrall, pro se.

Memorandum Opinion

STAPLETON, Chief Judge:

On March 13, 1984 , citizens sitting as the Federal Grand Jury for the District of Delaware found probable cause to believe that Michael O'Ferrall had committed federal crimes described in their indictment as follows:

COUNT I

That during the calendar year 1980, Michael O'Ferrall, who was a resident of the town of Marydel, State of Delaware, had and received a gross income of $20,463.10; that by reason of such income he was required by law, following the close of the calendar year 1980 and on or before April 15, 1981 , to make an income tax return to the District Director of Internal Revenue for the Internal Revenue District of Delaware, at Wilmington, Delaware, in the Judicial District of Delaware, stating specifically the items of his gross income and any deductions and credits to which he was entitled; that well knowing all of the foregoing facts, he did wilfully and knowingly fail to make said income tax return to the said District Director of Internal Revenue, or to any other proper officer of the United States.

In violation of Section 7203, Internal Revenue Code, 26 U. S. C., Section 7203.

COUNTY II

That during the calendar year 1981, Michael O'Ferrall who was a resident of the town of Marydel, State of Delaware, had and received a gross income of $25,119.14; that by reason of such income he was required by law, following the close of the calendar year 1981 and on or before April 15, 1982 , to make an income tax return to the District Director of Internal Revenue for the Internal Revenue District of Delaware, at Wilmington, Delaware, in the Judicial District of Delaware, stating specifically the items of his gross income and any deductions and credits to which he was entitled; that well knowing all of the foregoing facts, he did wilfully and knowingly fail to make said income tax return to the said District Director of Internal Revenue, or to any other proper officer of the United States.

In violation of Section 7203, Internal Revenue Code; 26 U. S. C., Section 7203.

COUNT III

That on or about the 25th day of March, 1981 within the Judicial District of Delaware, Michael O'Ferrall, a resident of Marydel, Delaware, in the Judicial District of Delaware, who during the calendar year 1981 was employed by Catalytic, Inc., whose local place of business was Delaware City, Delaware, and who was required under the Internal Revenue laws, to furnish Catalytic, Inc., with a signed withholding exemption certificate relating to the number of withholding exemptions claimed on or about the date of the commencement of employment by Catalytic, Inc., did wilfully supply a false and fraudulent statement to Catalytic, Inc., on which he claimed exempt status, whereas, as he then and there well knew, he was not entitled to claim such exempt status.

In violation of Section 7205, Internal Revenue Code; 26 U. S. C., Section 7205.

Mr. O'Ferrall has filed a number of documents challenging the jurisdiction of this Court over his person and the subject matter, attacking the validity of the indictment and asking for various forms of relief. I have examined each of the arguments therein set forth and find each to be without merit. The following comments on some of them will suffice.

Section 3231 of Title 18 of the United States Code provides:

The district court of the United States shall have original jurisdiction, exclusive of the courts of the state, of all offenses against the laws of the United States .

The Grand Jury has charged Mr. O'Ferrall with having violated two laws of the United States--namely, 26 U. S. C. §7203 and 26 U. S. C. §7205, on three occasions while in Delaware. As a result, this Court has jurisdiction to determine whether these alleged "offenses against the laws of the United States " in fact occurred. United States v. Spurgeon [82-1 USTC ¶9241], 671 F. 2d 1198 (8th Cir. 1982).

Turning next to the "Jurisdictional Challenge," Mr. O'Ferrall asserts that "IRC 1954 is concerned with voluntary contractual or quasi-contractual acts by 'persons' who knowingly and willingly obligate themselves." He denies having voluntarily assumed any obligation under "the revenue laws." While I accept this latter assertion, it simply is not true that a citizen can "opt out" of his or her obligations under the Internal Revenue Code.

Since the Grand July has indicted Mr. O'Ferrall, he has no right under the Fourth Amendment to an "Affidavit of Probable Cause . . . prior to issuance of an arrest warrant." Costello v. United States [56-1 USTC ¶9321], 350 U. S. 359, 363 (1956).

The indictment provides Mr. O'Ferrall with ample notice of what the Grand Jury claims he has done.

Mr. O'Ferrall has the right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. He also has the right to have a jury determine his guilt or innocence. These rights will be accorded to him at the upcoming trial.

In his "Memorandum of Law" Mr. O'Ferrall argues that "IRS Privacy Act and Paperwork Reduction Act Notice" on Form 1040 and Form W-4 fail to comply with the Privacy Act and, in particular, with 5 U. S. C. §552a(e)(3) and 31 C. F. R. §1.35(b)(2). The government has supplied copies of the relevant portions of these forms (copies are attached hereto) and I will take judicial notice of these portions unless the defendant tenders evidence at the pre-trial conference tending to show that these were not the forms in effect at the times of the alleged failures to file. A review of the forms indicates that they meet the requirements of the Act and all of the courts which have considered this issue have so held. See, e.g., United States v. Wilber [83-1 USTC ¶9119], 696 F. 2d 79 (8th Cir. 1982) (Form 1040); United States v. Rickman [80-2 USTC ¶9788], 638 F. 2d 182 (10th Cir. 1980) (Form 1040); United States v. Annunziato [81-1 USTC ¶9405], 643 F. 2d 676 (9th Cir. 1981) (Form W-4). These forms give clear notice that there is a mandatory duty to supply the information.

A review of these forms also reveals that there is no "fraudulent deception" in the notice as asserted by defendant.

The defendant also relies upon the Freedom of Information Act, 5 U. S. C. §552(a)(1), and 26 C. F. R. §601.702(a)(2)(ii). He argues that alleged failure to publish the Privacy Act Notices, the Form W-4, the Form 1040 and rules covering withholding, obviate any requirements placed upon him by the laws which require him to complete a W-4 Form and a tax return.

The defendant's argument is without merit because the obligations imposed upon him in this regard are created by statute and not by a "rule" of the Internal Revenue Service. The obligation to file an income tax return each year is created by 26 U. S. C. §§ 6011 and 6012. The obligation to complete a withholding exemption certificate is created by 26 U. S. C. §3402(f)(2)(A).

While it is apparently true that Form W-4 and Form 1040 have not been published in the Federal Register, I find no requirement that they be so published. Contrary to defendant's contention they are not "rules;" they simply facilitate the submission of information which a citizen is obligated to report by statutes and by regulations which have been published in the Federal Register and codified in the Code of Federal Regulations. See, e.g., 26 C. F. R. §31.3402(f)(2)-(5), with respect to Form W-4, and 26 C. F. R. §1.6011, et seq., with respect to Form 1040. In note, for example, that the duty to report the information required by the statute and regulation is not conditioned on the availability of a standardized form prepared by the I. R. S. See, e.g., 26 C. F. R. §1.6011-1(b).

The relief sought by defendant will be denied and the case will proceed to trial as currently scheduled.

 

 

 

[89-1 USTC ¶9144] United States of America , Plaintiff-Appellee v. Robert W. and Rebecca A. Flitcraft, Defendants-Appellants

(CA-5), U.S. Court of Appeals, 5th Circuit, 87-2574, 12/29/88 , 863 F2d 342, Reversing and remanding unreported District Court decision

[Code Secs. 7203 and 7205 ]

Suits by U.S.: Jurors: W-4 forms: Returns.--The taxpayers' conviction for filing false withholding certificates was reversed. Insufficient information was provided in the charges to allow the jurors to examine the specific charges in light of the evidence. In particular, in reaching its verdict, the jury may have taken into account doubtful W-4 forms for years and employers not mentioned in the indictment. Additionally, once notified of the jury's confusion over the verdict form, the court attempted but failed to clarify matters by marking "1040" and "W-4" beside each charge. With respect to convictions for failing to file returns for two years, although the jury may not have known which count applied to which year, the convictions were not reversed. The lack of information was not prejudicial because there was not extraneous or misleading evidence as to the charges. Finally, no violation of the taxpayer's fifth amendment right against self-incrimination occurred when a mistrial in which the taxpayer served as a juror and expressed her views against taxation was investigated.

Bob Wortham, United States Attorney, Paul E. Naman, Assistant United States Attorney, Beaumont , Tex. 77701-1899 , for plaintiff-appellee. Robert W. Flitcraft, 320 E. Church St., Beaumont, Tex. 77705, pro se, Howard L. Close, Gregg R. Brown, Orgain, Bell & Tucker, 470 Orleans St., Beaumont, Tex. 77701-3075, for defendants-appellants.

Before GEE, SNEED ^* and WILLIAMS, Circuit Judges.

GEE, Circuit Judge:

This case has already required three trials. The first came to grief because of the incompetency of counsel. A second found the defendants guilty on all charged counts of tax fraud. On appeal, we reversed because of an improper jury instruction on intent. [86-2 USTC ¶9778 ] 803 F.2d 184 (5th Cir. 1986). The result of that remand was a third trial, one in which the Flitcrafts were found guilty on all twelve counts of providing false W-4 forms to their employers and failing to file tax returns under 26 U.S.C. §§7203 and 7205 . We reverse in part and remand for resentencing.

Background

Mrs. Rebecca Flitcraft served as a juror in a tax fraud case and was the sole vote for acquittal. The jury foreman mentioned possible jury misconduct to the judge, and federal investigators concluded that neither she nor Mr. Flitcraft had filed income tax for calendar years 1981 or 1982, and that they had filed several false withholding forms in 1982 claiming exemption from tax. The grand jury returned an indictment on twelve counts.

In the third trial, Robert Flitcraft was again convicted of two counts of failure to file and seven counts of filing false W-4s. Rebecca Flitcraft was convicted on two counts of failure to file and one false W-4 count. At trial the defendant waived reading the indictment and the government summarized it. Counts one and two against Robert Flitcraft and counts ten and eleven against Rebecca Flitcraft were explained. Count twelve against Mrs. Flitcraft was described generally.

The remaining counts, three through nine, were described together; and the jury never knew when the Flitcrafts were alleged to have filed false W-4 forms, or with which employers these might have been filed. Because this information was not provided in the charge, the jury never knew to what these counts pertained. The government urges reversal of these counts along with count twelve because the jury never received details of the charges sufficient to allow them to compare the specific charge to the evidence.

Three of the W-4 forms received in evidence were submitted to employers not mentioned in the indictment, and six W-4s introduced were for a year not included in the indictment. The verdict form apparently confused the jury because it listed no years for the counts and failed to specify whether the count charged a failure to file ("1040"), or for filing a false withholding form ("W-4"). The jury asked for assistance with the following written note, which was delivered to the judge:

Could you identify the charges by number so that we can separate our votes, please.

The court suggested the jury receive the indictment, but the defendants' standby counsel objected. Standby counsel, in fact, objected to every solution discussed, including the one which the judge adopted. The solution chosen was one recommended by Mr. Flitcraft: simply to place "1040" beside the counts charging failure to file, and "W-4" by the ones related to false withholding forms. No indication of the year was given for any count, nor any of the employers to which the withholding forms were submitted. Even so, the jury found the defendants guilty on all counts.

Analysis

It is patent that the jury was confused as to what evidence applied to which charge of filing false W-4 forms. To clarify the verdict form, the jury requested assistance. The defendants' standby counsel agreed to none of the suggested remedies, and the method selected by the judge--simply designating the 1040 and W-4 counts as such--was unsatisfactory. As the United States Supreme Court has held:

Discharge of the jury's responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge's responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.

Bollenbach v. United States , 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). In the circumstances presented, it was the judge's responsibility to clear up the jury's confusion. United States v. Anderton, 629 F.2d 1044, 1049 (5th Cir. 1980). But the haze never lifted. The jury never heard the details of the W-4 charges, never knew what evidence applied to which charge, and must have been quite at a loss to understand these counts. Merely characterizing these counts as either 1040 or W-4 ones provided inadequate information for determining criminal guilt or innocence for each count.

Commendably, the government recommends reversal on the W-4 counts. Although the government's recommendation does not bind us, it is entitled to great weight, Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511-12, 86 L.Ed. 832 (1942); Every v. Blackburn , 781 F.2d 1138, 1140-41 (5th Cir. 1986). Because the jury was uninformed about the charges relating to the filing of false W-4s, and in particular because evidence of doubtful W-4s pertaining to years and employers not mentioned in the indictment were placed before the jury and may have been taken into account in their findings of guilt, we must reverse on those counts.

Whether the rest of the counts should be reversed is a difficult issue. The government contends that the jury knew what it was doing with regard to counts one, two, ten and eleven because the prosecution explained those counts in the summation of the indictment. The notation of "1040," the prosecution suggests, reminded the jury that these counts related to failure to file income tax returns. While conceding that the procedure of answering the jury's request for help by making the notation was "unorthodox," the prosecution claims that enough information was available to determine guilt fairly.

The fact is that the jury knew that each of the defendants was being charged with failure to file returns in two tax years only--1981 and 1982. Although the jury might not have known which count applied to which specific year, lack of that information was not prejudicial since each defendant was found guilty on both counts of failing to file. As to each, the evidence was crushing, and as to none was any significant extraneous or misleading evidence before the jury. In these unique circumstances, we conclude that the circumstance that the jury may not have known which "guilty" finding written down by their foreman applied to which count is not of significance. They knew that they were finding each defendant guilty of both charged counts of failure to file; that suffices. As a result, no grounds for reversal exist and these counts are remanded for resentencing.

Finally, the defendants further assert impropriety in the investigation of the mistrial where Mrs. Flitcraft served as a juror. They cite Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as support for the proposition that Mrs. Flitcraft's expression of her views against taxation was a coerced confession. In addition to the obvious fact that Mrs. Flitcraft was not in custody as required by Miranda, however, Mrs. Flitcraft never asserted her fifth amendment right to silence, which would have been the proper response to an incriminating question. The investigation was proper and no error is shown. See Clark v. United States , 289 U.S. 1, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1933). The argument that it is a violation of the fifth amendment right against self-incrimination to have to sign a W-4 form and 1040 tax return is similarly without merit. Garner v. United States [76-1 USTC ¶9301 ], 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). Nor does the Fifth Amendment afford a defense when no income is reported. United States v. Shivers [86-1 USTC ¶9404 ], 788 F.2d 1046, 1048 (5th Cir. 1986).

The judgment of the district court is therefore REVERSED on the counts pertaining to the W-4s and the cause is REMANDED for resentencing on all counts relating to the 1040s.

^* Circuit Judge of the Ninth Circuit, sitting by designation.