Trial,
Timeliness
7205-
Fraudulent Withholding Exemption Certificate: Trial, Timeliness
[86-1
USTC ¶9354]
United States of America
, Plaintiff-Appellee v. Kenneth L. Thomas, Defendant-Appellant
(CA-7),
U.S. Court of Appeals, 7th Circuit, 85-2120,
4/17/86
, 788 F2d 1250, Reversing, vacating and remanding unreported District
Court decision
[Code Sec.
7205 ]
Criminal tax violation: Failure to file return: Tax protestor: Speedy
Trial Act.--Judgments rendered against a taxpayer who failed to file
tax returns for three tax years, and who wilfully filed false exemption
certificates, were reversed and/or dismissed by the Court of Appeals for
the Seventh Circuit as violating the Speedy Trial Act. Only 70 days may
pass from the time an appearance is made in response to an indictment
and the time when a trial gets underway. In this case, the appellate
court ruled that the trial on the indictments against the taxpayer had
exceeded this amount and was untimely. BACK REFERENCES: 86FED ¶5709.095
Anton
Valukas, United States Attorney, Sharon E. Jones, Assistant United
States Attorney, Chicago, Ill. 60604, for plaintiff-appellee. Andrew B.
Spiegel, 77 W.
Washington St.
,
Chicago
,
Ill.
, for defendent-appellant.
Before
CUDAHY
and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit
Judge.
EASTERBROOK,
Circuit Judge:
From
1966 through 1976 Kenneth L. Thomas filed tax returns. Then he stopped,
claiming that he had no tax liability. He filed a form informing his
employer that he had 23 withholding allowances, which dramatically
reduced the tax his employer withheld. He ceased filing returns.
An
indictment filed
March 19, 1984
, charged Thomas with wilfully failing to file tax returns for the tax
years 1979, 1980, and 1981, in violation of 26 U.S.C. §7203 . A superseding
indictment filed
October 1, 1984
, retained these three charges and added four more: failing to file tax
returns for 1982 and 1983, and wilfully filing false certificates asking
his employer to cease all withholding on the ground that he is
"exempt" from taxation, in violation of 26 U.S.C. §7205 . The 1983 return
was due after the filing of the first indictment. The trial began on
January 15, 1985
, and the jury convicted Thomas on all counts. The district court
sentenced Thomas to a total of four years' imprisonment and fined him
$22,000. As the time sequence suggests, the principal problem is one of
compliance with the Speedy Trial Act, 18 U.S.C. §3161 et seq. Before
considering this problem, we clear out the underbrush.
I
1.
Thomas is a tax protestor, and one of his arguments is that he did not
need to file tax returns because the sixteenth amendment is not part of
the constitution. It was not properly ratified, Thomas insists,
repeating the argument of W. Benson & M. Beckman, The Law That
Never Was (1985). Benson and Beckman review the documents concerning
the states' ratification of the sixteenth amendment and conclude that
only four states ratified the sixteenth amendment; they insist that the
official promulgation of that amendment by Secretary of State Knox in
1913 is therefore void.
Benson
and Beckman did not discover anything; they rediscovered something that
Secretary Knox considered in 1913. Thirty-eight states ratified the
sixteenth amendment, and thirty-seven sent formal instruments of
ratification to the Secretary of State. (
Minnesota
notified the Secretary orally, and additional states ratified later; we
consider only those Secretary Knox considered.) Only four instruments
repeat the language of the sixteenth amendment exactly as Congress
approved it. The others contain errors of diction, capitalization,
punctuation, and spelling. The text Congress transmitted to the states
was: "The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment among the
several States, and without regard to any census or enumeration."
Many of the instruments neglected to capitalize "States," and
some capitalized other words instead. The instrument from
Illinois
had "remuneration" in place of "enumeration"; the
instrument from
Missouri
substituted "levy" for "lay"; the instrument from
Washington
had "income" not "incomes"; others made similar
blunders.
Thomas
insists that because the states did not approve exactly the same
text, the amendment did not go into effect. Secretary Knox considered
this argument. The Solictor of the Department of State drew up a list of
the errors in the instruments and--taking into account both the
triviality of the deviations and the treatment of earlier amendments
that had experienced more substantial problems--advised the Secretary
that he was authorized to declare the amendment adopted. The Secretary
did so.
Although
Thomas urges us to take the view of several state courts that only
agreement on the literal text may make a legal document effective, the
Supreme Court follows the "enrolled bill rule." If a
legislative document is authenticated in regular form by the appropriate
officials, the court treats that document as properly adopted. Field
v. Clark, 143
U.S.
649 (1892). The principle is equally applicable to constitutional
amendments. See Leser v. Garnett, 258 U.S. 130 (1922), which
treats as conclusive the declaration of the Secretary of State that the
nineteenth amendment had been adopted. In United States v. Foster,
No. 85-1925 (7th Cir.
Apr. 10, 1986
), slip op. 10-12 & n.6, we relied on Leser, as well as the
inconsequential nature of the objections in the face of the 73-year
acceptance of the effectiveness of the sixteenth amendment, to reject a
claim similar to Thomas's. See also Coleman v. Miller, 307 U.S.
433 (1939) (questions about ratification of amendments may be
nonjusticiable). Secretary Knox declared that enough states had ratified
the sixteenth amendment. The Secretary's decision is not transparently
defective. We need not decide when, if ever, such a decision may be
reviewed in order to know that Secretary Knox's decision is now beyond
review.
2.
Thomas testified before the grand jury that returned the superseding
indictment. He presented his explanations for not paying taxes,
including his belief that wages are not income and an assertion that
"all individual income tax revenues are gone before one nickel is
spent on the services which taxpayers expect from their
Government." In response to questions asked by the prosecutor,
Thomas conceded that he had received technical training paid for by the
Navy, payment funded by taxes. Thomas maintains that the indictment
should be dismissed because of these questions, which he says are
improper; because the prosecutor failed to present the grand jury with
exculpatory evidence (other than Thomas's own testimony); and because
the prosecutor advised the grand jurors that Thomas's legal theories are
incorrect.
The
short answer is that "[a]n indictment returned by a legally
constituted and unbiased grand jury, like an information drawn by the
prosecutor, if valid on its face, is enough to call for a trial of the
charge on the merits." Costello v. United States [56-1
USTC ¶9321 ], 350 U.S. 359, 363 (1956) (footnote omitted).
See also United Staes v. Calandra, 414
U.S.
338, 344-45 (1974). A somewhat longer answer is that even if the
district court should have required the prosecutor before trial to
obtain a fresh indictment, there is no reason to restart the process now
that there had been a trial and conviction. The grand jury is designed
principally to prevent the prosecutor from subjecting innocent people to
the burden and trauma of trial. The real "victims" of any
abuse of the grand jury process are a subset of those who are indicted
and acquitted at trial. We know now that Thomas was not tried
unnecessarily. The Supreme Court held in United States v. Mechanik,
106 S. Ct. 938 (1986), that procedural errors before the grand jury do
not require the reversal of a conviction by the petit jury. See also United
States v. Burke, 781 F.2d 1234, 1245 (7th Cir. 1985); United
States v. Roth, 777 F.2d 1200, 1203-06 (7th Cir. 1985); United
States v. Murphy, 768 F.2d 1518, 1533-34 & n.2 (7th Cir. 1985), cert.
denied, 54 U.S.L.W. 3562 (U.S.
Feb. 24, 1986
). The principle disposes of Thomas's contention.
3.
This assumes, however, that the petit jury properly convicted Thomas,
which he denies. He asserts that the evidence was insufficent. Not so.
Thomas filed returns for at least ten years, so he knew of the tax laws.
The IRS sent Thomas a letter in 1978 informing him of the need to file
(and the penalties for not filing). He was a field engineer at IBM,
obviously capable of understanding enough to act wilfully. He failed to
file a tax return for 1983, even though this was due after the return of
the first indictment. It is not for want of information that Thomas did
not file. A jury was entitled to find his neglect wilful, as that term
is used in tax law. United States v. Pomponio [76-2 USTC ¶9695 ],
429 U.S. 10 (1976); United States v. Copeland, No. 84-2646 (7th
Cir.
Dec. 17, 1985
). The false certificates claiming exemption were filed knowingly;
Thomas's evidentiary position here is that because IBM (on the advise of
the IRS) ignored his certificates, he cannot be convicted. Section 7205 forbids the
filing of "false" forms, however, and reliance on the forms is
not an element of the offense. United States v. Lawson [82-1 USTC ¶9197 ],
670 F.2d 923, 928 (10th Cir. 1982).
Thomas
relies on United States v. Snider [74-1 USTC ¶9620], 502 F.2d
645 (4th Cir. 1974), which reversed a conviction for filing a claim of
three billion exemptions. The employer in Snider was a
Friends
School
; the taxpayer, a Quaker, objected to the use of taxes for war; the
claim of exemption, transparently symbolic, was accompanied by Snider's
explanation that as an objector to war he would not pay tax voluntarily
but invited the government to levy on his bank account. Toleration of
this form of symbolic speech does not help Thomas, who did everything
within his power to deceive IBM and rid himself of tax.
4.
The district court gave the following instructions on the meaning of
wilful conduct and the defense of good faith misunderstanding.
When
the word "wilfully" is used in these instructions, it means
the voluntary and intentional violation of a known legal duty. The
failure to act is wilfully done if done voluntarily, purposefully,
deliberately and intentionally, as distinguished from accidentally,
inadvertently or negligently.
The
requirement that an offense be committed "wilfully" is not met
if a taxpayer in fact relied in good faith on a prior decision of the
United States Supreme Court which was known to him and of [sic] his
reliance was reasonable.
A
good faith misunderstanding of the law based on reasonable grounds may
negate wilfulness. . . .
Defendant
has testified as to his beliefs concerning the filing of income tax
returns and the filing of exempt Forms W-4. If you find that these
beliefs were the result of a good faith misunderstanding of the law and
that his good faith was reasonable and not the result of negligence or
inadvertent conduct of Mr. Thomas, then you must find Mr. Thomas not
guilty.
.
. .
Defendant
has testified as to his beliefs concerning the filing of income tax
returns and the filing of exempt Forms W-4. If you find that these
beliefs were the result of a good faith misunderstanding of the law and
that his good faith was reasonable, then you must find Mr. Thomas not
guilty. Alternatively, if you find that his conduct was negligent or
inadvertent, then you must also find him not guilty.
The
last two instructions are two versions of an instruction proposed by
Thomas--the second one the accurate version, the first a misreading that
the court corrected by giving the second. Thomas says that the
correction was confusing, but we do not think so. The jury ended up with
the correct instruction.
His
principal contention is that all of the wilfulness instructions are
flawed because they afford a defense of "good faith
misunderstanding" only to one whose belief is
"reasonable." This objective component was approved in United
States v. Moore [80-2
USTC ¶9627 ], 627 F.2d 830 (7th Cir. 1980), cert. denied,
450 U.S. 916 (1981), which observed that a mistake-of-law defense should
be confined within exceptionally narrow bounds. Two other courts have
disagreed with
Moore
. United States v. Phillips, 775 F.2d 262, 264 (10th Cir. 1985); United
States v. Aitken [85-1
USTC ¶9209 ], 755 F.2d 188, 191-93 & n.2 (1st Cir.
1985).
Since
Aitken disagreed with
Moore
, defendants have asked us to abandon the standard of that case.
We have twice declined to revisit
Moore
when the defendant did not adequately press an objection in the district
court. United States v. Bressler [85-2 USTC ¶9646 ],
772 F.2d 287, 290 (7th Cir. 1985); United States v. Witvoet [85-2 USTC ¶9530 ],
767 F.2d 338, 339 (7th Cir. 1985). See also United States v. Anton,
683 F.2d 1011, 1018 (7th Cir. 1982) (following
Moore
). We decline again today. The "reasonableness" requirement
appeared in the instruction that Thomas himself proposed. And when the
district court was discussing its own wilfulness instruction, it asked:
"Is that [the instruction] agreeable?", to which Thomas's
counsel replied "It is agreeable, your Honor." After the jury
retired to consider its verdict Thomas moved for a mistrial, relying in
part on an objection to the wilfulness instruction, but this objection
came too late under Fed. R. Crim. P. 30. Bressler and Witvoet
hold that, no matter the status of
Moore
, instructions like the ones given here are not plain error.
II
The
most difficult questions come from the time that lapsed between the
indictments and the trial. The superseding indictment, which was filed
on
October 1, 1984
, does not pose a serious problem. Thomas appeared and pleaded to the
four new charges in this indictment on
October 9, 1984
; his trial began 97 days later, on
January 15, 1985
. The Speedy Trial Act allows 70 days from appearance within which to
get the trial underway, 18 U.S.C. §3161(c)(1), less any excludable
time. At least 27 days between October 9 and January 15 were excludable
for reasons discussed below, and so the trial on the superseding
indictment was timely.
Things
are otherwise for the three charges contained in the original
indictment, filed
March 19, 1984
. Thomas appeared before a judicial officer on
March 26, 1984
, and it took 295 days to bring these charges to trial. The government
contends that all but 19 were excludable. Its position seems to be that
everything necessary to prepare the case for trial must produce
excludable time--that the 70 days refers only to time when everyone was
twiddling his thumbs. That is not so. The statute requires the
government to do all of the things ordinarily necessary to get a case to
trial within the 70 days; only a few categories of time are excludable.
Thomas, on the other hand, contends that almost none of the time is
excludable. The parties having done little to narrow their dispute, we
review the course of events.
The
time started on
March 26, 1984
. On
April 9, 1984
, the magistrate set a briefing schedule for the filing of pretrial
motions. This brought into play the holding of United States v.
Tibboel, 753 F.2d 608, 610 (7th Cir. 1985), that if a party requests
an allocation of time within which to prepare and file motions, the
ensuing time is excludable under 18 U.S.C. §3161(h)(1). The time to
prepare motions is not covered by §3161(h)(1)(F), which excludes
"delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt
disposition of, such motion". But the statute allows judges to
exclude extra time if necessary to accommodate complex or unusual
motions. 18 U.S.C. §3161(h)(8)(B)(ii). The legislative history of the
1979 amendments to the Speedy Trial Act demonstrates that §3161(h)(8)(B)(ii)
may be used to afford extra time for the preparation of complex motions
as well as for their disposition. See S. Rep. No. 96-212, 96th Cong.,
1st Sess. 34 (1979). Tibboel relied principally on the fact that
§3161(h)(1) begins by reciting that excludable time includes "but
[is] not limited to" the periods expressly provided; §3161(h)(8)(B)(ii)
fortifies the conclusion of Tibboel.
Thomas
then asked for and got a series of extensions within which to file his
motions, and after the government answered Thomas got a further
extension to reply. All papers were on file by
July 10, 1984
, when a magistrate took the motions under advisement. This started the
period of exclusion provided by §3161(h)(1)(J): "delay
attributable to any period, not to exceed thirty days, during which any
proceeding concerning the defendant is actually under advisement by the
court." We held in Tibboel and United States v. Janik,
723 F.2d 537, 544 (7th Cir. 1983), that this exclusion--and not the more
elastic "prompt disposition" proviso of §3161(h)(1)(F)--governs
the period that may be excluded while a motion is under advisement.
This, too, is strongly supported by the legislative history. See S. Rep.
96-212, supra, at 33-34; H.R. Rep. No. 96-390, 96th Cong., 1st
Sess. 10-11 (1979).
The
picture is complicated, however, by the fact that the statute refers to
the "proceeding", as if there were bound to be only one, and
"the court" as an institution rather than to a particular
judicial officer. Thomas filed two motions to dismiss the indictment,
three motions concerning discovery, and a motion to suppress evidence,
six separate documents in all, over a period of weeks. The case then
went to a magistrate and as we relate below to the judge. Tibboel
and United States v. Regilio, 669 F.2d 1169, 1172-73 (7th Cir.
1981), cert. denied, 457 U.S. 1133 (1982), allow a court faced
with multiple motions to take more than 30 days, without granting a
continuance under §3161(h)(8)(B)(ii), which was how Congress expected
the court to deal with complex matters. We recognized in Tibboel
that other courts have enforced the 30 day limit even when there were
multiple motions, but Tibboel and Regilio control here.
Our problem then is how much time beyond 30 days is excludable in a case
of this character.
The
magistrate took the motions under advisement on July 10 and on August 1
issued a 17-page report and a recommendation to deny all six motions.
The clock, stopped since April 9, commenced to run. The motions were no
longer under active consideration, not unless the defendant objected to
the recommendations, which under the local rules he had ten days to do.
These ten days are not automatically excluded; under Tibboel only
time expressly granted by the court is excluded. Otherwise far too much
time would be excluded, for in a sense every day that passes after the
indictment is spent "preparing" things. The Speedy Trial Act
sets 70 days as the limit on ordinary preparation. So on August 1 the
clock started, just as it would have done if the judge rather than the
magistrate had written the opinion. The difference is that the
magistrate's recommendation was not final, which set the stage for a
further exclusion if Thomas objected. (It may also have required a
continuance under §3161(h)(8)(A) or (B)(ii) if the judge had overruled
the magistrate, for then the time spent preparing for trial on the
assumption that the magistrate's recommendations would be adopted might
be wasted. We need not consider this possibility further.)
The
"if" came true on August 13, when Thomas filed objections. The
prosecutor did not ask for time to respond; indeed the prosecutor did
not respond. So as of August 13 the case was back under advisement, and
the time was again subject to exclusion under §3161(h)(1)(J). But for
how long? The magistrate had taken 22 days. Did this leave eight more
for the judge, or did it start a new 30-day period (subject to
"reasonable" increase because Thomas filed six motions)? The
Eleventh Circuit--so far as we can tell, the only court that has
considered this question--has held that the district judge has a full 30
days. United States v. Mastrangelo, 733 F.2d 793, 796 n.2 (11th
Cir. 1984); United States v. Mers, 701 F.2d 1321, 1335-37 (11th
Cir.), cert. denied, 464 U.S. 991 (1983). The court reasoned in Mers
that the judge's 30 days is supposed to begin only after all of the
preparatory activity (hearings and the like) has been completed and the
time for that purpose exhausted under §3161(h)(1)(F). Mers
treated the proceedings before the magistrate as time necessary to get
the motions in position for consideration by the judge, and it therefore
concluded that the judge has thirty days of his own to act. It found
support in the Judicial Conference's Guidelines to the Administration
of the Speedy Trial Act of 1974 43 (1979), which state: "[W]hen
a pretrial matter is considered by both a magistrate and a judge . . .
the Committee believes that the [Speedy Trial Act] permits two thirty
day periods for consideration of the same matter."
The
statute, however, refers to 30 days' advisement by "the court"
rather than by each judicial officer, and we hesitate to read "not
to exceed thirty days" in §3161(h)(1)(J) to permit an automatic
exclusion of 60 days just because the judge seeks the advice of a
magistrate. Magistrates are supposed to accelerate rather than retard
the disposition of cases. The magistrate can turn to the case more
quickly than the judge, who (aided by the magistrate's report) may
concentrate on the remaining areas of dispute between the parties. If
both judge and magistrate have 30 days, then in an ordinary case, with
nothing more complex than a request for discovery of Brady
materials, 60 days of automatic exclusion would be added to the 70 days
provided by the Speedy Trial Act. We doubt that Congress meant to afford
an all-but-automatic doubling of the statutory time. The Senate
committee that recommended the 1979 amendments was worried that motions
practice would subvert the time limits of the Act, and it was adamant
that "the Committee does not intend to permit circumvention of the
30-days, 'under advisement' provision contained in Subsection (h)(1)(J).
Indeed, if motions are so simple . . . that they do not require a
hearing, necessary advisement time should be considerably less than 30
days. Nor does the Committee intend that additional time be made
eligible for exclusion by postponing the hearing date or other
disposition of the motions beyond what is reasonably necessary." S.
Rep. No. 96-212, supra, at 34. A judge with the report of a
magistrate in hand does not need much time to act; in the rare event
that the judge needs extra time, he may grant a continuance under §3161(h)(8)(A)
or (B)(ii). The argument that the magistrate's efforts simply put the
judge in the position to decide could be made equally well of the time
consumed by the parties in preparing motions, or even of the time
consumed by the judge's law clerk in doing research. The Senate
committee expressly rejected a proposal to exclude all time consumed in
motions practice (id. at 33-34), and for the same reasons we
think--at least tentatively--that "the court", which includes
magistrates as well as judges, has only 30 days' excludable time under
§3161(h)(1)(J).
We
are tentative, however, for several reasons. First, the parties have not
briefed this question adequately, and we hesitate to act without the
advantage of more complete submissions. Second, even if we allow the
district judge 30 days from August 13 in which to act, there are at
least 70 non-excludable days elsewhere. Third, the Speedy Trial Act
should be interpreted to allow precise computations of the remaining
time, so that people may readily identify which cases are furthest
advanced and need priority handling. It is undersirable for an appellate
court to announce a surprise interpretation of the Act. Our discussion
here, then, is a warning signal rather than a holding. Our initial
encounter with the issue does not leave us convinced by the holding of Mers,
but it does not produce a firm resolution the other way. There may be
other arguments that have not come to our attention, and we are open to
them at the proper time.
One
thing is clear, however: A judge may not take advantage of both a second
30-day period and our holding in Tibboel that multiple motions
may permit the exclusion of more than 30 days' time under advisement. A
judge who has received the report of a magistrate is well on the way to
decision. There is no need of a further enlargement past 30 days for the
judge just because the magistrate may have wrestled with a complex set
of motions. By the time the judge sees things, the wild beast has been
tamed; 30 days is more than enough. (If for some exceptional reason 30
days will not do, the only appropriate recourse is an extension under §3161(h)(8)(A)
or (B)(ii).) So the exclusion provided by §3161(h)(1)(J) expired no
later than
September 12, 1984
, when the 30 days were up. The clock was running again.
The
district judge adopted the magistrate's report in a four-page opinion on
September 20, 1984
. The superseding indictment was filed on October 1, and Thomas pleaded
to the four new charges on October 9. The superseding indictment does
not affect the running of the time on the three charges that were in the
original indictment as well as the superseding indictment. 18 U.S.C. §3161(h)(6);
United States v. Rush, 738 F.2d 497, 510-11 (1st Cir. 1984), cert.
denied, 105
S. Ct.
1355 (1985). On October 24 Thomas filed a request for extra time to
submit new motions. The judge set a briefing schedule on October 29, so
under Tibboel a new period or exclusion started.
On
October 29 the district judge also issued a minute order stating:
"Excludable delay due to filing of a superseding indictment began
Oct. 1, 1984
and ends
Oct. 31, 1984
." The judge did not elaborate, but the parties assume that the
judge meant to exclude time under §3161(h)(8)(A), which he may if
"the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial." There
are two problems. First, §3161(h)(8)(A) states that no period may be
excluded "unless the court sets forth . . . its reasons for finding
that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a speedy
trial." The cryptic notation "due to the filing of a
superseding indictment" does not supply the necessary finding; the
judge did not point to anything unusual about the case. Second, a court
may not exclude time retroactively under §3161(h)(8)(A). United
States v. Janik, supra, 723 F.2d at 545. The order of October 29 is
therefore ineffectual. (We do not imply that the filing of a superseding
indictment is never an appropriate occasion for exclusion of time under
this section. If all parties would be better served by trying all counts
together, it may be. But the district court did not give this reason,
and at all events it acted belatedly.)
The
briefing schedule set on October 29 called for Thomas to file his
motions by November 2 and gave the prosecutor until November 9 to
respond. Thomas did not comply with this schedule. Instead he filed a
series of motions, mostly duplicating motions filed before but adding a
motion based on misconduct before the grand jury. The last was filed on
November 13, 1984
. All of the time from October 29 through November 13 was excludable
under Tibboel. Now complications set in. The prosecutor could not
be expected to respond by November 9 to motions filed as late as
November 13. The government could have had an extension for the
asking--most likely until November 20, a week after Thomas's last motion
(November 9, the original date, was a week after Thomas's date), longer
if the government had shown need. But the prosecutor did not seek an
extension. The prosecutor did nothing until
January 4, 1985
, when the government filed a six-page response, some four pages of
which were devoted to Thomas's objections to the prosecutor's conduct
before the grand jury, the only new material in Thomas's motions. The
response attached the magistrate's recommendation of August 1 and the
judge's decision of September 20. On
January 7, 1985
, the judge summarily denied Thomas's motions, and the trial began on
January 15. When did the period of exclusion stop?
The
prosecutor insists that the time remained excludable until January 7,
when the judge denied the motion. As the prosecutor sees things, the
entire time was a reasonable period in which to decide the motion. The
judge did not see it this way; he acted with dispatch once the
prosecutor responded. If the entire period were excluded, a prosecutor
could obtain indefinite exclusions of time by the expedient of not
responding to frivolous motions. That would undercut the structure of
the Speedy Trial Act.
The
correct answer, we conclude, is that the motion must be deemed
"under advisement" as soon as the prosecutor's response was
due, no matter when the prosecutor filed. Section 3161(h)(1)(F) limits
pre-advisement time to the date of the hearing or, if there is no
hearing, for a "prompt" time. It is not a "prompt"
disposition if the prosecutor takes more time than the briefing schedule
contemplates. The House report on the original Act states that the
advisement time now covered by §3161(h)(1)(J) begins "after all
oral argument is heard and all briefs have been submitted on the
matter." H.R. Rep. No. 93-1508, 93d Cong., 2d Sess. 33 (1974). The
committee did not consider what would happen if the government neglected
to submit its brief. But the Judicial Council of the Second Circuit
addressed this question in a set of guidelines that were highly
influential when the Act was amended in 1979. These guidelines, which
were reprinted in the hearings and the subject of favorable reference in
the committee reports, state that the time excluded by §3161(h)(1)(F)
(the pre-advisement time) runs until "the date of oral argument (or
the due date of any post-argument submission), or, if there is to
be no oral argument, the due date of the reply papers."
Judicial Council Speedy Trial Act Coordinating Committee, Guidelines
Under the Speedy Trial Act (1979), reprinted in The Speedy Trial
Act Amendments of 1979: Hearings on S.
961 and S. 1028 Before the Senate Comm. on the Judiciary,
96th Cong., 1st Sess. 386, 398-99 (emphasis added). The due date rule is
consistent with the Act. It fixed an easily ascertained time to shift
the case to the "advisement" exclusion of §3161(h)(1)(J), yet
it preserves flexibility of the parties to seek additional time (to
extend the due date) if more is necessary.
Yet
what was the prosecutor's due date? We have explained why the actual due
date of November 9 cannot be right; Thomas was not done filing motions
until November 13. It is therefore appropriate to treat the prosecutor's
due date as November 20, one week afterward, the same seven days the
prosecutor had in the original schedule. On November 20 the 30 days
provided by §3161(h)(1)(J) began to run; this exclusion ended on
December 20. Because Thomas made only one new motion, the 30 days is an
outer limit. See Janik, supra. Maybe only three days, the amount
the judge actually took, should be excluded. There is no reason to
extend the time on account of any difficulty. The bulk of the motions
had been made and rejected before, and the judge ultimately rejected all
out of hand. Nothing else happened until the trial began, so the period
between December 20 and January 15 is not excludable.
To
add up the time that counts: March 26 to April 9 is 15 days; August 1 to
August 13 is 12 days; September 12 to October 29 is 47 days; December 20
to January 15 is 26 days. That is a total of 100 days. The Act allows
only 70. The convictions on counts 1 to 3 must be reversed under 18
U.S.C. §3162(a)(2). As in earlier cases, we leave to the distict court
the initial decision whether the counts should be dimissed with or
without prejudice.
Unfortunately,
the reversal of these counts disrupts the district judge's sentencing
scheme. Thomas was convicted on seven counts, five with a maximum of one
year's imprisonment and two with a maximum of three years' imprisonment.
The district court gave Thomas one year on each count but made counts 1
and 2, 4 and 5, and 6 and 7 concurrent, each pair of sentences to run
consecutively with the other pairs. The addition of count 3 as another
consecutive sentence produced a total of four years' imprisonment. The
reversal of counts 1 to 3 would reduce the sentence from four years to
two, and it would reduce the fine from $22,000 to $12,000. The maximum
sentence on the four counts we have affirmed is eight years'
imprisonment and a fine of $30,000. We therefore vacate the sentences on
counts 3 to 7 and remand for resentencing. See Pennsylvania v.
Goldhammer, 106 S. Ct. 353 (1985); United States v. Jefferson,
760 F.2d 821 (7th Cir.), vacated, 106 S. Ct. 41 (1985), on
remand, 782 F.2d 697 (7th Cir. 1986).
The
judgments on counts 1 to 3 are reversed and the case is remanded with
instructions to dismiss the indictment on these counts. The judgments on
counts 4 to 7 are vacated and the case is remanded for resentencing on
these counts.
[78-1 USTC ¶9391]
United States of America
, Appellee v. Ronald M. Pryor, Appellant
(CA-8),
U. S. Court of Appeals, 8th Circuit, No. 77-1939, 574 F2d 440,
4/20/78
, Aff'g unreported District Court decision
[Code Secs. 7203 and 7205--result unchanged by 1976 Tax Reform Act]
Crimes: Failure to file: False withholding statement: Evidence:
Variance.--An employee of an automobile manufacturer was properly
convicted of failing to file a return and of filing a false withholding
statement. As to the former, a Form 1040 that contained his name and
address but no data as to his income or expenses was not a return. As to
the latter, there was not a fatal variance between the information and
the proof merely because the information stated that he was required to
file an exemption certificate when he commenced employment and the proof
showed that the failure occurred five years later.
Robert D.
Kingsland, United States Attorney, James J. Barta, Assistant United
States Attorney, St. Louis, Mo. 63101, for appellee. Ronald M. Pryor,
Route 4, Box 253, De Soto, Mo. 63020, pro se.
Before HEANEY,
STEPHENSON and HENLEY, Circuit Judges.
PER CURIAM:
Appellant
Ronald M. Pryor filed this pro se appeal from his conviction upon two
counts of violating the federal tax laws. The jury 1
found Pryor guilty on one count of willfully failing to file an income
tax return for the year 1975 in violation of 26 U. S. C. §7203 2
and one count of willfully filing a false withholding statement with his
employer in violation of 26 U. S. C. §7205. 3
Appellant claims that the evidence was insufficient to support
conviction on either count. We affirm.
Pryor was
first employed by Chrysler Corporation in August of 1969 and remained at
that job through the trial of this matter in November of 1977. For each
of the tax years from 1967 through 1974 Pryor filed an income tax return
reflecting that he had received taxable income during the applicable
period.
During October
of 1974, Pryor filed an Internal Revenue Service Form W-4E with the
Chrysler Corporation, certifying that he had incurred no tax liability
in 1973 and anticipated incurring no tax liability in 1974. See 26 U. S.
C. §3402(n). He sent a similar form to the
IRS
Service
Center
in
Kansas City
,
Missouri
, at about the same time. On
April 9, 1975
, Pryor filed a second Form W-4E with the Chrysler Corporation. He
certified that he incurred no tax liability during 1974 and anticipated
none during 1975.
In response to
Pryor's request that no money should be withheld from his income the IRS
sent him a registered letter dated
February 12, 1976
, inviting him to attend a conference to discuss the "filing of a
false Form W-4E." On
February 18, 1976
, Pryor sent a letter to the IRS in which he stated that
United States
money is illegal "[d]ue to devaluations in 1934, '64 and '68."
Thereafter, the IRS sent another letter to Pryor informing him that the
forms he had filed were indeed false. No response was received to this
letter.
In April of
1976 Pryor filed an IRS Form 1040 for the calendar year 1975 which
contained only his name, address, and the statement: "Filed under
protest. This violates the 4th and 5th Amendments to the Constitution.
Ronald M. Pryor,
April 11, 1976
." The form contained no information concerning Pryor's income,
deductions, or exemptions. In response, the IRS sent a registered letter
to Pryor advising him that a Form 1040 which does not contain any
information about income, deductions, or exemptions is not a valid
return and that failure to file a valid return could subject the
individual to criminal prosecution. Subsequently Pryor attended a
conference with the regional counsel for the IRS at which he was allowed
to present any information in his defense.
On
September 30, 1977
, a two-count district attorney's information was filed in the Eastern
District of Missouri. Pryor was charged in Count I with willfully
failing to file an income tax return for the year 1975, and in Count II
with willfully making a false statement to the Chrysler Corporation in
which he claimed he incurred no liability for federal income tax during
1973 and that he anticipated incurring no liability for federal income
tax in 1974. After a three-day trial, the jury returned a verdict of
guilty on both counts.
Pryor claims
on this appeal that there was not sufficient evidence presented to
support his conviction on Count I. He maintains that the filing of an
IRS Form 1040 containing his name and address but no information
relating to income or expenses was sufficient to comply with the section
7203 requirement that an individual "make a return."
This
contention was presented to this court in United States v. Daly
[73-2 USTC ¶9574], 481 F. 2d 28 (8th Cir. 1973), and rejected. Quoting
from the Tenth Circuit case of United States v. Porth [70-1 USTC
¶9329], 426 F. 2d 519, 523 (10th Cir. 1970), the court stated:
A taxpayer's
return which does not contain any information relating to the taxpayer's
income from which the tax can be computed is not a return within the
meaning of the Internal Revenue Code or the regulations adopted by the
Commissioner.
United
States v. Daly, supra, 481 F. 2d
at 29 (citations omitted).
Pryor's claim
that he filed a return is without merit. There was ample evidence to
sustain a conviction of the offense charged in Count I. Accordingly, the
district court properly denied Pryor's motion for judgment of acquittal
on that count.
With respect
to Count II, Pryor claims that the information charged that he filed a
false or fraudulent withholding statement on or about the date of
commencement of his employment with Chrysler Corporation in 1969. He
then notes that the evidence offered at trial demonstrated that the
false withholding statement was actually filed several years later in
October of 1974. Pryor concludes that there was insufficient evidence to
sustain his conviction because of a variance between the offense charged
in the information and the activities provided at trial.
Pryor's
argument is based upon a misreading of the information. Count II of the
information read as follows:
COUNT
TWO
The
United States Attorney charges further that:
On
or about the 25th day of October, 1974 in the Eastern District of
Missouri
,
RONALD
M. PRYOR,
a resident of
Desoto in the Eastern District of Missouri, who during the calendar year
1974 was employed by the Chrysler Corporation assembly plant in Fenton,
Missouri and who was required under the Internal Revenue Laws to furnish
the Chrysler Corporation 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 the Chrysler Corporation, did
willfully supply a false and fraudulent statement to the Chrysler
Corporation on which he claimed that he incurred no liability for
federal income tax during 1973 and that he anticipated incurring no
liability for federal income tax in 1974, knowing full well that he in
fact had incurred federal income tax liability in 1973 and had reason to
anticipate incurring federal income tax liability in 1974.
In
violation of Section 7205, Internal Revenue Code; Section 7205, Title
26, United States Code.
It is clear
that the information charged Pryor with filing a false withholding
statement with his employer in October of 1974. The part of the
information which identifies Pryor as an individual who was required to
furnish his employer with a signed withholding exemption certificate on
or about the date of the commencement of employment was included to
indicate that the strictures of section 7205 applied to Pryor. See 26 U.
S. C. §§ 3402(f)(2)(A), 3402(n), 7205. See also United States v.
Quilty [76-2 USTC ¶9631], 541 F. 2d 172 (7th Cir. 1976).
Section 7205
only applies to persons who are required to supply information to their
employer under 26
U. S.
C. §3402. Section 3402(f)(2)(A) requires an employee to file with his
employer on or before the date of commencement of employment a signed
withholding exemption certificate specifying the number of withholding
exemptions the employee claims. Thus, this language in the information
was used to show that Pryor was required to file a signed withholding
exemption certificate and consequently was covered by the provisions of
section 7205.
The government
presented sufficient evidence to support Pryor's conviction for filing a
false withholding statement in October of 1974. Pryor's motion for
judgment of acquittal on Count II was properly denied by the district
court.
Affirmed.
1
The Honorable James H. Meredith, United States District Judge for the
Eastern District of Missouri, presided. Pryor was fined $2500 and was
sentenced to one year imprisonment on each count, to be served
concurrently.
2
26
U. S.
C. §7203 provides:
Any person
required under this title to pay any estimated tax or tax, or required
by this title or by regulations made under authority thereof to make a
return (other than a return required under authority of section 6015 or
section 6016), keep any records, or supply any information, who
willfully fails to pay such estimated tax or tax, make such return, keep
such records, or supply such information, at the time or times required
by law or regulations, shall, in addition to other penalties provided by
law, be guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $10,000, or imprisoned not more than 1 year, or
both, together with the costs of prosecution.
3
26
U. S.
C. §7205 provides:
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.