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7205- Fraudulent Withholding Exemption Certificate: Information

 

[78-2 USTC ¶9549] United States of America , Appellee v. Douglas W. Johnson, Appellant

(CA-8), U. S. Court of Appeals, 8th Circuit, No. 78-1191, 576 F2d 1331, 6/16/78 , Aff'g unreported District Court decision

[Code Secs. 7203 and 7205--result unchanged by 1976 Tax Reform Act]

Crimes: Failure to file returns: False withholding certificates: Sufficiency of information: Variance.--A conviction of failure to file a return and supplying a false withholding statement to an employer was affirmed. A phrase in the information properly referred to the date employment commenced, not the date the offense was committed--that phrase was not necessary to adequately charge an offense. Nor did it matter that, because the trial judge failed to correct a typographical error, the information misstated the date that a false statement was supplied.

Robert D. Kingsland, United States Attorney, James J. Barta, Assistant United States Attorney, St. Louis, Mo. 63101, for appellee. David M. Nissenholtz, 314 N. Broadway, St. Louis , Mo. 63102 , for appellant.

Before LAY, BRIGHT and Ross, Circuit Judges.

PER CURIAM:

Doublas W. Johnson appeals from his conviction on one count of failing to make an income tax return in violation of 26 U. S. C. §7203, and two counts of supplying a false and fraudulent statement to his employer, in violation of 26 U. S. C. §7205. Finding no merit in either of the grounds asserted by Johnson for reversal of his conviction, we affirm.

Johnson contends that counts II and III of the information charged him with supplying a false and fraudulent statement to his employer on or about the date of commencement of his employment, whereas the evidence proved a different date. He misconstrues the information. It charged him with supplying false and fraudulent statements on September 10, 1974 , and March 11, 1975 , not the date of commencement of his employment. The phrase Johnson refers to was intended to identify him as an individual required to supply information to his employer under 26 U. S. C. §3402, which is a prerequisite to liability under 26 U. S. C. §7205. The language was not necessary to adequately charge an offense under 26 U. S. C. §7205. United States v. Quility [76-2 USTC ¶9631], 541 F. 2d 172, 176 (7th Cir. 1976).

Johnson's second argument is that the district court erred in failing to rule on the government's motion to correct a typographical error in the information. Count II of the information charged that Johnson supplied a false and fraudulent statement to his employer on September 10, 1974 , when in fact the date was September 1, 1974 . While it may have been preferable for the court to have corrected this typographical error by amendment, see FED. R. CRIM. P. 7(e); cf. Stewart v. United States, 395 F. 2d 484, 489 (8th Cir. 1968), a variance between the date in the pleading and the proof is not fatal if the proof shows that the acts charged were committed within the period of the statute of limitations and prior to the date of the information, as long as the date is not a material element of the offense, and the defendant is not prejudiced. United States v. Powell, 564 F. 2d 256, 259 (8th Cir. 1977), cert. denied, 98 S. Ct. 1449 (1978); United States v. Joyner, 539 F. 2d 1162, 1164-65 (8th Cir.), cert. denied, 429 U. S. 983 (1976). Section 7205 does not make the precise time or date an essential element of the offense of supplying false information to an employer.

Although Johnson alleges that he was prejudiced by the error in the preparation of his defense, he does not provide facts which demonstrate prejudice. He and the attorney appointed to assist him had ample opportunity to become fully acquainted with the nature and scope of the government's evidence. They had actual notice of the error by service of a copy of the motion to correct. Johnson did not answer the motion, object to evidence pertaining to the date of the offense, or move for a continuance. It is difficult to see how he could have been prejudiced, since he did not present any evidence in his defense. Cf. Gregory v. United States, 364 F. 2d 210, 213 (10th Cir.), cert. denied, 385 U. S. 962 (1966). The record establishes that the typographical error was harmless and did not affect Johnson's substantial rights.

The judgment of conviction is affirmed.

 

 

[78-2 USTC ¶9595] United States of America , Plaintiff-Appellee v. Hugh R. Johnson, Defendant-Appellant

(CA-10), U. S. Court of Appeals, 10th Circuit, No. 77-1366, 3/22/78 , Affirming unreported District Court decision

[Code Secs. 61 and 7205--result unchanged under '76 Tax Reform Act]

Criminal penalties: Withholding exemption certificates, fraudulently made: Constitutionality: Federal Reserve notes.--The taxpayer's conviction for filing false withholding exemption certificates with his employers was affirmed on appeal. His various constitutional arguments and contentions were rejected.

Toshiro Suyematsu, Charles E. Graves, United States Attorneys, Lawrence A. Bobbitt, III, Assistant United States Attorney, Cheyenne, Wyo., for plaintiff-appellee. Hugh R. Johnson, pro se.

Before MCWILLIAMS, BARRETT and DOYLE, Circuit Judges.

DOYLE, Circuit Judge:

Defendant was here charged in five counts with filing false Withholding Exemption Certificates with his employers during the period 1974 and 1976, contrary to §7205 of the Internal Revenue Code. He was convicted on each of these counts following a trial and was sentenced to four months imprisonment and to a $2,000 fine.

The contentions advanced here are, first, that appellant had no taxable income during the years in question because all of his income was in the form of federal reserve notes, and that these are not actual or real dollars but are merely promises by the United States Government to pay dollars. The promises will not be fulfilled, so the argument goes, because the notes are not convertible into silver or gold, which constitutes the only real money.

Second, that appellant is exempt from paying income tax because his religious belief rejects "false weight," which is his description of paper money not backed by silver or gold.

Third, appellant claims that his constitutional right under the Sixth Amendment was violated because he was not permitted to have a non-lawyer, lay person represent him. A distinct aspect of the third contention is that his retained counsel was incompetent.

Fourth, he maintains that the oath taken by the jurors is not in compliance with Article 6, Clause 3, of the Constitution, which requires all judicial officers to be bound by oath or affirmation to support the Constitution.

Fifth, he contends that the jury panel had a disproportionate number of Cheyenne residents and federal and state employees on it and that this was not a fair cross section of the community.

Finally, the contention is that the court erred in refusing to instruct the jury that in order to find that the appellant had acted willfully, as required by the statute, they must find that he acted with evil intent and bad purpose. It was claimed that the trial court merely defined a willful act as one "done voluntarily and intentionally and with specific intent to do something the law forbids."

We conclude that we must reject all of the arguments and contentions of the defendant-appellant.

The first argument that the federal reserve notes were not pure dollars is frivolous, and this has been so held. See United States v. Wright, No. 77-1021, slip op. at 4 (10th Cir. Feb. 13, 1978 ); United States v. Whitesel [76-2 USTC ¶9726], 543 F. 2d 1176, 1180-81 (6th Cir. 1976), cert. denied, 431 U. S. 967 (1977); United States v. Daly [73-2 USTC ¶9574], 481 F. 2d 28, 30 (8th Cir.), cert. denied, 414 U. S. 1064 (1973).

As to the contention that the income tax conflicts with his religion: the First Amendment does not relieve the appellant of his obligation to pay regardless of the fact that he is sincere about his religious beliefs. See United States v. Carroll [78-1 USTC ¶9141], 567 F. 2d 955, 957 (10th Cir. 1977).

Appellant's right to counsel was not violated, first, because he is not entitled to have a lay person come into court as his representative. See United States v. Wright, supra, at 3-4; United States v. Afflerbach [77-1 USTC ¶9127], 547 F. 2d 522, 525 (10th Cir. 1976), cert. denied, 97 S. Ct. 1118 (1977). No evidence as to the incompetence of the retained lawyer is offered. He does state, however, that the lawyer was later disbarred, but this does not mean that he was incapable of representing the defendant at the time of the instant trial. See United States ex rel. Ortiz v. Sielaff, 542 F. 2d 377, 380 (7th Cir. 1976).

The argument that the oath taken by the jurors did not comply with the Constitution must be rrejected because the constitutional provision relies upon is not applicable.

The reason why there was a disproportionate number of Cheyenne residents on the jury panel is that a number of those called were excused because of the great distances from the place of holding court. This is a factor which is recognized by the applicable statute as an excuse for not serving. See United States v. Test, 550 F. 2d 577, 594-95 (10th Cir. 1976) (en banc); 28 U. S. C. §1863(b)(7). In any event, it was not shown that the number of government employees on the panel was disproportionate to the general population nor that the non-government employees were an underrepresented group and there was an unfair cross section under the statute and under United States v. Test, supra. Moreover, there was no intentional discrimination shown. See Swain v. Alabama , 380 U. S. 202, 204-09 (1965).

We are of the opinion that the definition of intentional conduct applicable to this particular offense was correct. Our decisions so hold. See United States v. Afflerbach [77-1 USTC ¶9127], 547 F. 2d 522, 524 (10th Cir. 1976), cert. denied, 97 S. Ct. 1118 (1977); United States v. Dowell [71-2 USTC ¶9642], 446 F. 2d 145, 147 (10th Cir.), cert. denied, 404 U. S. 984 (1971).

The judgment of the district court is affirmed.