United States of America, Cross v. Thomas M. Hajecate and Thomas H. Hajecate, Cross Lance Eisenberg
683 F.2d 894
5th Cir.
1982
Check Treatment

*3 with violating the federal conspir- criminal CLARK, Chief Judge, Before GEE and statute, acy (1976). 18 U.S.C. 371 GARWOOD, Judges. Circuit alleged conspiracy objects, had four all vio- GEE, Judge: lations of federal (1) Circuit law: defrauding by obstructing the IRS in its case, this criminal ap- In taxes; (2) collection of income defrauding peals pretrial dismissal of an eleven- the United States obstructing Customs against indictment count businessmen Service maintenance of records of financial (“Mick”) Hajecate M. Thomas and Thomas transactions between foreign financial insti- (“Tom”) Hajecate H. and their tax attor- citizens; tutions and United (3) ney, Eisenberg. Lance The defendants knowingly willfully and making false state- Hajecate cross-appeal the district court’s returns; ments on income (4) fail- denial of their motion to dismiss the indict- to report money ure transferred between on prosecutorial ment based vindictiveness. the United Cayman States and the Islands. I. AND DISPOSITION FACTS BELOW. The defendants attacked the indictment’s 21, 1981, January grand jury On in the object invalid, statement each facially Southern District of Texas returned an we address each in turn. indictment, charging eleven-count the three Obstruction defendants with violations of the IRS several feder- al criminal All laws.1 these violations attacking In object, the first the de stemmed from a scheme to conceal the fendants claim that two transactions named (Cayman interest an offshore as means and furthering methods of Islands) account. gleaned bank As from conspiracy, a loan obtained one of the indictments, part and parcel of this Hajecates’ oil companies and .silver strad scheme were obstruction of IRS tax collec- engaged dles Hajecates, are in tion, false statements on income tax re- legal Therefore, fact transactions. since turns, report failure to financial transac- these equally transactions are capable of persons tions between in the United States legal interpretation, the indictment is inval foreign institutions to the Customs Ser- id because does not state an offense. See vice, unreported money transfers of and. Oil Standard Co. v. United between Cayman the United States and the The give Islands. We shall more details on the responds that the indictment does allege necessary counts as in our discussion that these illegal transactions were in and On appeal. issues February a of themselves that they but lost their legal superseding indictment covering the same character bring because were used to containing scheme and the same number of scheme, about the unlawful counts was filed. obstruction IRS. sought defendants particulars bills of government’s position is correct: “it on the indictment and moved for its dis- is well settled that acts which are them- missal as well. After a March legal legal selves lose their character when hearing, the district court dismissed all they become constituent elements of an un- Only applied Hajecate. counts 1-3 to defendant Eisen- berg; applied all 11 counts to either or both of support v. “means and methods are cited in Co. Continental Ore scheme.” lawful 690, 709, 82 count This has 370 U.S. in the remainder of one. Corp., Carbide Union 1404, 1415, longer 8 L.Ed.2d 777 more com- rendered one S.Ct. “equally” counts, Thus, yet these transactions than the it is still the plex other interpretation, legal capable required by and concise statement plain claim, not, as defendants’ 7, since it outlines the essen- Fed.R.Crim.P. of silver straddles testing legality complex conspiratorial tial elements of the one’s In context of count case. charged against scheme defendants. other conspiracy recital of allegation of Unnecessary not found one detail in count acts, lose their two transactions illegal these was made available one not render count and do legal character lengthy particulars. bills of invalid. posit specific failures Defendants several *4 Next, allege that the defendants we address. particularize to that must alleged particularize the one failed to First, they an of Ei- allegation claim that scheme. senberg’s purpose obstructing the is IRS sufficiency of lacking. the fatally argument The test to determine This has no mer- An is well established. Eisenberg clearly indictment alleged an it. is to be if the sufficient it contains indictment is conspirator, thereby pur- and he shares the the so that of offense essential elements the poses conspiracy, of which are also of the fairly the defendant it informs clearly alleged in the indictment. if against adequately him and it charges Second, clarity claim a lack of protected the to be enables defendant to whose taxes the IRS was obstructed same prosecution for the against further ascertaining. clarity This lack al- from of Furthermore, an is indictment offense. legedly reading arises from indictment purpose, of its which is light be read government’s answers to a bill of charges of the inform the accused that particulars. responds validity against governed Its is him. the indictment reveals that the taxes at technical, practical, not considerations. Hajecates are those and that issue Mouton, 736, 739 657 F.2d United States v. corporations they allegedly the four that curiam) (citations 1981) omit- (5th (per Cir. Thus, were owned used in the obstruction. ted). Conspiracy indictments have response stated careful given particularly scrutiny: particulars bill of that obstruction IRS duty carefully is our It affirmative charge taxpayers. all six involved under the broad scrutinize indictments We see no flaw here. The see language conspiracy statute be- inconsistency an between the indictment inherent in a possibility, cause particulars and the bill of where none ex- charge, its wide conspiracy criminal that They clearly ists. are from notice well as net ensnare the innocent as charge goes indictment the obstruction guilty. only taxes that the Porter, 1048, 1057 United States v. 591 F.2d corporations four were used to conceal (5th 1979). Cir. taxes. those examining In indict conspiracy Even if the bill inconsistent ment, the first test is to ascertain whether indictment, proper remedy is with the beyond goes generic it of 18 terms clarifi not dismissal the indictment but 371 statutes violated here, The indictment cation of bill. conspiracy allege specific details or superseded, amended properly unless Van about scheme. See Liew v. United statement of 1963). constitutes the full 664, 321 669-74 F.2d Cir. face charges against They the defendants. claim easily passes The IRS obstruction bill, from since jeopardy A alle no additional paragraph test. concise makes the indictment, an see and cannot be used to amend gation, numerous “overt acts” Willoz, 449 F.2d v. Obstruction of the Customs Service is the It repeat Defendants their allegation goes beyond the bill the indict- suffers if generic pleading object. as to this improperly charges. adds new ment and allegation against has no more merit Thus, any inconsistency here does not harm object against than it did sense, the defendants constitutional obstruction of the IRS. is stated the indictment is clear and since determines in a paragraph supported concise by a jeopardy.2 the issues of notice and lengthy list overt acts and means and methods. We do not particular examine Finally, complain the defendants ambi- paragraphs of an indictment out guity in definitions of several terms in context of the remainder indictment. company,” the indictment —“shell “affili- Hand, See United ates,” and “utilized and controlled.” We 1974), adopted 934-35 on rehearing believe in their clear contexts banc, (1975), en cert. de any ambiguity and that does not rise to the nied, S.Ct. L.Ed.2d Therefore, level of a constitutional defect. repeated, As we have oft appropriate remedy request a bill validity governed indictment’s “is practi particulars, not dismiss indictment. cal, technical, considerations.” United *5 453, v. Varkonyi, (5th States 645 F.2d Overall, then, is there no defect in 1981). Cir. object the first one. of count What Contrary seek, defendants’ claim that of many allega defendants their “none” of alleged overt acts relate to essentially tions is disclosure Service, obstruction of the Customs we find government theory of its full case that several do. The list of means and evidentiary support and all the facts to it. methods object, references this list this required That is not and never has been at suffiently is detailed to quite easy make it stage only require indictment —the to ascertain which overt acts are involved in ments are notice the defendants and object. This claim has no merit. preclusion of jeopardy. govern double Finally, ment need do no more in the allege indictment. improper ready remedy “pyramiding” motion for a bill offenses under this object. This particulars requires explanation. is add claim specifics available to be some Usu- ally, withholding yond information required those for the indictment from the Cus- toms muster, Service under 31 pass constitutional 1121 is a § see United However, Williams, misdemeanor. when done in fur- 572, States v. 203 F.2d therance of another Cir.), offense it a denied, 822, becomes cert. 37, felony. See 31 U.S.C. §§ 1059. The (1953), although, L.Ed. 347 course, government charges in count one that even particulars a bill of cannot be section 1121 violation was in furtherance of compel revelation of theory the full a violation of both 18 U.S.C. 371 and §§ facts, case all the evidentiary see However, 1001. the defendants claim that United Murray, States v. alleged has no false state- 1976); Bonnet, United States v. 1001; ment violation of therefore, section 247 F.Supp. 417 (E.D.La.1966) (Ains charge really is conspiracy further- worth, J.). We conclude that govern ance of a conspiracy, which impermis- is an ment has its duty present fulfilled here in pyramiding sible charges. ing constitutionally adequate indictment object under one and in voluntarily furnish logic Defendants’ has fatal flaw: ing particulars two bills of to assist alleged has section 1001 vio- defendants. lation. illegal Section 1001 renders inten- We, course, govern- 2. response will not abuse, countenance the bill. such here, ment present tactics that confuse request creat- is to clarification of bill, inconsistencies between the indictment and not to dismiss indictment. concealment, Eisenberg well of 18 U.S.C. and indict as § tional falsification clearly aiding abetting them The indictment in violation of statements. false concealment of informa- intentional 2. alleges 18 U.S.C. § reported tion that should The defendants attack counts “defendants Service: Customs ways. mer- in several We find [foreign their bank account] concealed] uphold in one and the dismissal of these Ser- ... United States Customs from counts. added). (emphasis vice.” properly When exercised is valid in its entire- object therefore This Haje- discretion and chose to indict the its ty. general making cates under the statute crime, a federal false statements 18 U.S.C. on Income Tax Returns Statements False of under 26 instead U.S.C. § this ob- attacking Defendants’ success Code, specif- the Internal Revenue which their the success of ject predicated is re- ically penalizes false statements on tax five, on counts two attack turns, precedent it of course invoked all the under of offenses allegations contain the precedent section Part of under statute, 18 U.S.C. the false statement no” “exculpatory is the doctrine formulated invalid, these we find counts 1001. Since in this circuit in Paternostro United infra, also invalid. is 311 F.2d 298 In court a conviction Paternostro this reversed Currency Between the United Transfer a man allegedly 1001 of who Cayman Islands knowingly willfully made a false state- entirety. in its valid special agent. ment to an This false IRS during statement was made under oath Conclusion *6 vestigative questioning by agent. Af- the conspir in prosecute order to a Since reviewing origins the history ter the successfully government must be acy law, surveying statute case see id. separate provisions, point to out two able 301-05, the in at court Pasternostro derived crime making conspiring the act of a one guide application to principles con making of the and another 1001; designed primarily pre- a section to crime, spiracy a see United States v. Mea claims, fraudulently obtaining privi- vent cham, 1980), 626 507 Cir. leges, employment or from the United conspir government prosecute liability For to attach under section States. three, acy indictment “aggressively the defendant must held invalid. we have deliberately positive initiate ... or af- [a] one, objects on government may proceed pervert to firmative statement calculated two, and four. legitimate functions of Government.” negative responses at 305. Id. “[M]ere through Five. B. Counts Two by investigating agent ... an questions 1977 tax their income On appellant” .. not initiated are not . returns, Hajecates their off concealed section 1001. Id. actionable under answering the fol bank account shore spawned This doctrine has evolved and you time lowing any “Did at question “no”: progeny. In considerable United States v. any interest during year the taxable Bush, 1974), F.2d 813 court bank, authority or other over a signature or a section 1001 indictment based dismissed securities, in a or financial account other taxpayer’s pre- signing affidavits If on country foreign . .. ? Yes-No- definitions, by IRS officials that contained false (for pared see ‘yes’ attach Form signature taxpayer’s in- statements. The was 4683).” Counts Form essentially “exculpatory an no.” Hajecates making state- held false dict the Schnaiderman, agency States v. in violation In United ments to 1978), we held an oral denial need burdening avoid unreasonably put Cus- question persons to a to a defendant who legitimately engage in trans- agent arrival in the toms defendant’s foreign actions with financial agencies, to invoke the doctrine. shall by regulation require any resident or citizen of person the United States or Hajecates negative made “mere Since in the United doing States and business way responses” “aggres- and in no made therein, who engages transaction or or affirmative positive sive” “deliberate or maintains any relationship, directly or statement,” presented the question here is indirectly, on behalf of himself or anoth- “investigation” occurring whether an er, a foreign with agency financial Hajecates question answered that when maintain records or reports, to file or so, If on their tax returns. doctrine both, setting forth of the following such counts two applies, five fail. information, in such form and in such government claims that all detail, as the Secretary may require: no” cases an “exculpatory individual was (1) The identities and addresses of by a singled out acting official parties to the transaction or rela- police capacity, e.g., in a agent, an IRS tionship. agent, magistrate, Customs and so forth. (2) legal capacities in which the distinguishable, argues This case is parties to the transactions or relation- since government, on the tax ships acting, and the identities of applied to all similarly form situated indi- parties real in interest if one or Hajecates viduals: the were singled out more parties acting are not sole- investigation. Therefore, there nowas ly principals. Hajecates, coercion or intimidation of the (3) description no confrontation that A threatened their transaction rights. Finally, or points relationship including the amounts Supreme credit, of money, Court’s characterization of in- or property other questions come return as “neutral on volved. face,” “not their directed at those ‘inherent- (b) person No required to maintain rec-

ly suspect activities,” of criminal and not ords under this section shall be involving compulsion “the to incriminate.” produce or otherwise disclose the con- Garner v. United 660- tents of their except records compli- 1178, 1185-86, L.Ed.2d ance a subpoena duly summons authorized and issued as may other- *7 wise required by be law. However, point out that this question is a novel one on the tax form: it The Secretary of the Treasury has elected absolutely has nothing to do with the calcu- to “reports” obtain these part as of the lation of one’s taxes. Thus it is in a of kind annual federal income tax required returns limbo, “investigative” not in the traditional of all citizens: “exculpatory doctrine, sense of the yet no” person Each subject jurisdiction obviously not administrative. Seeking the United States (except a foreign sub- characterize the question, nature of this we sidiary a person) of U. having S. a finan- it, turn to the statute authorizing 31 U.S.C. in, cial interest signature or or other au- regulation the implementing § over, thority bank, a securities or other statute, (1977), 31 C.F.R. 103.24 and the § financial account in foreign country legislative history undergirding both. shall report relationship such as The statute declares: on his Federal income tax return for each

(a) Secretary year of the in which Treasury, exists, hav- such relationship regard due provide the need to avoid shall such information con- impeding controlling or export im- each cerning such account as shall be port of currency specified or other monetary in a special tax form to be filed and having regard struments due by also for person. such holding, With these limitations on our we (1977). The Supreme 103.24 31 C.F.R. § purpose a correct application believe to be characterized Court has 1970, of which section Secrecy Act of doctrine will “exculpatory no” that Bank express “The part, follows: is a hamper legitimate functions. require Act is to mainte- purpose records, making of certain and the

nance through C. Counts Eleven. Six degree of use- high which ‘have a reports, by allege nine failures Counts six criminal, regulatory tax or inves- fulness Hajecates report transportation ” proceedings.’ California tigations currency four dates violation of 31 on Schultz, Association v. Bankers 1059(1) and 1101. ten Counts §§ 1494, 1500, 39 L.Ed.2d 812 with the failure and eleven deal 1829b(a)(2), (1974), quoting 12 U.S.C. §§ reports foreign make bank annual 1951; This characteriza- 31 U.S.C. 1051. account in violation of 31 U.S.C. §§ legislative amply supported by tion 1059(1). Act, we find pre- where history of Congress foreign secret that sumption pros Before can foreign and secret financial bank accounts allege ecute under 31 U.S.C. it must inevitably linked criminal institutions that violation was committed in fur H.R.Rep. See activity in United States. therance of the commission of another vio No.975, (1970), Cong., 2d 4-5 re- 91st Sess. lation of law or part federal committed as Ad. Cong. & in 1970 U.S.Code printed pattern illegal activity involving 4394, 4397-98; S.Rep.No.1139, 91st News exceeding specified transactions dollar Bank (1970); Foreign Cong., 2d Sess. Secre- eleven, amount. In counts six Hearings H.R. Bank Records: on cy and alleges companion Comm, Banking on Before the House necessary prosecution crimes for a under Currency, 1st & 2d Cong., 91st Sess. section 1059 were violations of 18 U.S.C. (1969-70); Foreign Secrecy: Bank Hear- in none of §§ 3678 & H.R. 15073 Before the ings on S. government provide these counts does the on Financial Institutions of Subcomm. Hajecates with notice the violations Comm, Banking Currency, 91st Sen. of federal law that are accused of Cong., 2d Sess. 371 and sections 1001. While the statute, language Based on implicit may prior reference be to the it, characterization of Supreme Court indictment, implicit counts in the such compelled history, we are legislative its satisfy reference requirements does must be classified as hold that process. 7(c) due Fed.R.Crim.P. declares investigative and that therefore “excul- allegations made in one count patory applies no” doctrine here. We are incorporated reference in another count. assuage quick government’s fears long ago But this court held that while the holding sanctions false answers to in an specificity required indictment can be First, question. holding our any tax return count, incorporation achieved of another *8 only question this on a return as covers incorporation this must be not im express, by permits it. statute illuminated plicit. See v. 357 F.2d Davis United today questions not deal with such as We do denied, Cir.), 440 & n.2 cert. forms, government questions this on other 284, 17 L.Ed.2d are administrative in nature and that by the simple oversight taxes, computation are related incorporate prior statutory with a different basis. questions —failure count Further, expressly counts six only this doctrine is a creature of —renders 1001; through defective the section still eleven as to section allegations. simply These do prosecute containing tax returns counts fraudulent provide perjury under the statute of sufficient notice to the defend this IRC, 26 ants of crimes the sections and 371 they charged. Gregory, 1981). See Van are We with Liew, supra. by Gregory bound and therefore have jurisdiction no appeal to entertain this cross allega- and 1121 to the sections 1101 As by Hajecates. eleven, through the rec- in counts six tions never made reveals that defendants ord APPEAL IN AFFIRMED AND PART them, and we attack on do a Davis-based REMANDED; REVERSED IN PART AND sufficiency under pass on their Davis. CROSS-APPEAL DISMISSED. addition, see merit other In we no alleged. defects GARWOOD, Judge, Circuit concurring in Therefore, through six eleven re- counts part dissenting and in part. part. main valid in I concur in the dismissal join cross-appeal, in all of majority and D. Conclusion. opinion related thereto. summarize, uphold we the dismissal of To agree I likewise majority’s hold- through entirety their counts ings as to six through counts eleven and portions of counts one and dismissal join in so opinion much of the as deals with by through six eleven the district court and those counts. (1) but reverse the dismissal count one as one, two, four, (2) objects por- the majority, having held counts six eleven. tions of six counts eleven part valid in III. THE HAJECATES’ CROSS-AP- in part, invalid nevertheless holds the relat- PEAL. (the portions ed second and fourth sets of object offenses) of the conspiracy count Hajecates appeal cross the denial (count one) entirely I respectfully valid. district court dismissal of entire dissent from this holding. I would hold prosecutorial indictment based vindic- these allegations offense invalid to tiveness. The factual basis of claim this is extent seek charge juries grand that in 1979 two in the South- violations of 31 U.S.C. 1101 and 1121 §§ District ern of Texas returned 84- and 29- were “in furtherance of the commission of against Hajecates indictments violations of” 18 U.S.C. 371 and 1001. §§ others. These indictments were dis- court, district missed but their dis- The “in allegations furtherance” are obvi- reversed and missal was remanded ously designed to convert these of- Oil, court on appeal United States Uni fenses from a 31 U.S.C. 1058 misdemean- Inc., While the 1059(1) into felony. Although appeal from dismissal of these indictments count one expressly incorporates the re- court, pending govern- before this maining counts, nowhere in the entire in- ment grand jury convened another dictment is the conduct allegedly constitut- sought and the indictment at obtained issue “in furtherance” offenses identified Hajecates immediately here. The moved to general way. even most Neither on indictment, dismiss the alleging that it was argument brief nor on does the vindictive. court The district denied this favor us with such identification. The motion, Hajecates and the appeal. took this majority suggests that the conduct consti- tuting the “in We furtherance” go need than offenses is no further an concealment of the jurisdiction foreign examination of our bank to entertain account appeal from in order the Customs to resolve this issue. Service. So far as I am aware, only obligations The order from Haje which the disclose such appeal eate order, imposed accounts are interlocutory those under section *9 court recently has at ruled that an inter least under other sections of the locutory appeal Act, Secrecy Pub.L.91-508, does not lie 1970 Bank from denial of pretrial prosecu 1059, 1101, motion to dismiss which sections and 1121 torial vindictiveness. United v. are part. Accordingly, such an offense counsel, argument government ques- when of Federal an “other violation not be would 1059(1). Nor by section about disavowed discrepancy, law” as tioned brief, same in dragging the conduct taken in the and said position does of 18 a violation by labeling correct, door particulars except the back was bill govern- 371 and enhance §§ the count did not relate to MAPCO’s income as I in this far position regard. So ment’s taxes. com- aware, conspiring offense

am (and reproduced slightly As apparently to the federal conspiracy is unknown mit a brief, size) government’s reduced in in the Moreover, “defrauding” the criminal law. approximately count one is nine and a half respect performance government length, extremely complex in and is pages Act, Secrecy under the Bank functions its confusing. certainly and While it should be conceal) (or concealing conspiring to whole, nevertheless, read as a when so read of the jurisdiction within the something infer, state, clearly it fails to or even whose Act, can- Department such Treasury income taxes are involved. One “enhancing” of- properly constitute an not alleged conspiracy means effectuate 1059(1). The contrast under section fense “engaging in a ‘silver in June straddle’ (1) (2) of section subsections and between apparent paper 1977 in order to create an applies plain makes it that the former profits of MAPCO” (em- loss to offset “activity involving violations only to added) phasis government in the event the See Secrecy Act.” the Bank discovered the interest in and Beusch, control over MAPCO’s secret bank account. Accordingly, I would hold the second suggests a concealment of MAPCO object count offenses under fourth sets income; yet, government twice told has charging extent one valid us, majority agrees, and the that MAPCO’s sections violations of 1058 misdemeanor alleged taxes are not Another involved. extent of and invalid to the 1101 and a sham bank conspiracy means 1059(1) charging section felonies. Gas, Hajecate loan to Oil Inc. and Tom majority upholds validity of the Hajecate, that the suggests and Mick count, object conspiracy offense of the first However, taxes former’s included. impeding defrauding the United States government’s position, intermediate “assess- Internal Revenue Service in the majority agrees, with which the is that such I ment, and collection of income taxes.” taxes corporation’s are not in issue. hold this disagree and would respectfully conspiracy indictment alleged portion being count one exces- invalid three-year period, covers a and it seems to general of its vague by reason sively jeopardy purposes me to be vital for double give indication of whose failure to know whose taxes indictment Although the re- come taxes are involved. charges conspired that defendants to de- vio- charge substantive maining counts If, government example, fraud the of. and subse- which form second lations conspiracy does charge the indictment conspir- object offenses in the quent sets of during govern- time to defraud count, incorporated acy expressly taxes, of MAPCO’s or does it ment Uni Oil’s it, supports remaining none of the counts subsequent protect against one. The the first offense in count charge for such offense? The appeal took the its brief on regard- positions has taken three different position that the taxes are those relevant meaning of the indictment in this Hajecate, majority Tom and Mick connection, and on each occasion the indictment. adopts this construction of the government’s appears action its bill particulars taken in full deliberate and considered and position por- took the that this significance. of its Under the also awareness count one related to the income tion of Gas, circumstances, Oil, Inc., adequately Hajecate one fails taxes of Uni Oil Inc., MAPCO, Iran, of the con- identify and H. Ltd. On oral the first offense C.

904 por- incorporate I in Accordingly, would hold this one

spiracy. place previously scat- of count one invalid. provisions tion tered criminal dealing with viola- four, ry no” doctrine. The majority, these counts and offenses under majority five for the same also invalid under the holds counts constitute offenses reason, the third set one, two, “exculpato- charged also holds three, printed in carefully News Revenue tions of the Internal Revenue Code. See H.R.Rep.No.1337, 4017, 4135, graduated Code [1954] Congress 83d U.S.Code 4573. scheme of criminal Cong., In the Internal has Cong. 2d provided Sess. & Ad. pen- re- a alties. example, one I For tax portion respect- of count invalid. willful evasion is punishable fully disagree holdings, by imprisonment with these as I of up to five “exculpatory years, 7201, not no” doc- would extend 26 U.S.C. while willfully § fail- answering questions to this or similar ing trine to file a or pay return the tax due is related specting counts such an official document government. tinctly exculpate, The “exculpatory take his or her time and to consult the answer need fenses likely ally making question question is both asked and answered is dis- created pose, confrontational. The I tory on income tax Nevertheless, the question appears on virtu- tion do One matter remains to be illegal part majority (or declining advisors, selected all and has or than others to include those should not exception tax portion think of thé is asked for 7206, determination manner and activities. under these returns, investigatory, deliberately group nothing all returns. government, should be extended so as to without no” doctrine is a maintain not or answer), the conspiracy and. is not directed at to denounces the willful question respondent groups thought Moreover, setting be do with the calcula- circumstances, statutory false statement on I any knowledge investigatory pur- charged given fully agree intimidating, filed with before answer- income taxes. considered and of course which while the these of- investiga- is free to judicially engaging law, legal person. count. more re- printed in five quired to establish a violation of 18 U.S.C. violation of section 1001 is confinement for more alty necessarily encompasses all elements re- Ad.News ed for a penalty News at 4573 with S.Rep.No.1622, 83d Cong., 2d $5,000. Compare H.R.Rep.No.1337, supra (Conference Rep.), evade taxes —is an offense of intermediate severity, onment duced the maximum to one ly, the House version of intentional misstatement of material version, which aon Sess., reprinted in three punishable by imprisonment substantial In these Proof of a 1001 (although, true). years year, which return — violation of section, 7206, the specific years, 5280, the maximum 4621, and a circumstances, 26 Yet the maximum penalty for Congress rejected [1954] 5344. violation regardless statute. $10,000 fine, U.S.C. U.S.C. 5252 and H.R.Rep.No.2543 $10,000 [1954] U.S.Code 83d up ultimately course, as to whether § § Cong., section 7206 26 U.S.C. § fine, 7203. prison 7206. five U.S.Code I believe there is three while the Senate any the converse is Cong. the very years’ 2d as excessive adopted, re- intention to Significant- term Making up years later Sess., Cong. section 7206(1) provid- to impris- & Ad. being pen- only fact re- an & 1001 can properly procure used making of a tax return known contain a higher penalty for fact false what is in a viola statement as to a material matter. As tion of out, section point 7206. See Busic v. correctly United States, 398, 405-07, 1747, Internal Revenue Code 1954 was S.Ct. 1752-53, 381, enacted 1001, subsequently (1980); L.Ed.2d 388-90 U.S.C. § the latest Simpson 15, version of which was enacted in v. United 435 U.S. Section 7206 forms a part chapter (1978); S.Ct. 55 L.Ed.2d 75 of the 1954 designed Code which was Meacham, United

905 v. one United 1980); relating to these States substantive (5th n. 6 Cir. 508 1975).1 Beer, is (5th Cir. One 518 F.2d 168 counts. Congress that sim- to hold

indeed reluctant reducing the maxi- its time

ply wasted 7206. penalty under section

mum

Nevertheless, I do not believe that sufficiency in

problem goes five suffi

dictment. Counts constituting a

ciently facts violation allege 7206. Defendants do not

of 26 § U.S.C. that an claim claim otherwise —indeed COMPANY, Petitioner, AUSTIN ROAD offense is alleged under section 7206.2 Un v. 7(c)(3), provisions of Rule express der OCCUPATIONAL SAFETY AND Fed.R.Cr.P., wrong statutory citation of HEALTH REVIEW COMMISSION and grounds not for dismissal of provision is Raymond Donovan, Secretary J. of La- ... did mislead indictment “if the error bor, Respondents. prejudice.” his Here the defendant any of there is assertion that the defend no 78-2986, 81-4050. Nos. misled, nor does the prejudicially ants were Appeals, United Court of States v. United See States such. suggest record Fifth Circuit. Welch, 1039, (5th n. 26 F.2d 1059 Cir. 656 denied,-U.S.-, cert. 1981), 102 S.Ct. 25, Aug. 1982. 1768, United States (1982); 72 L.Ed.2d 173 4, Duncan, v. 839, n. 11 F.2d 848 854 n. 598 denied, 871, cert. Cir.), 444 100 U.S. (1979).3 148,

S.Ct. 62 L.Ed.2d

Accordingly, I would dismiss five, nor part

counts two hand, chargeable 2(a) aiding favor- under 18 U.S.C. for § 1. On the other a similar contention ing prosecution abetting the 1939 Internal Reve- under violation of 26 analogue reject- nue to section 7206 7206(1). Clearly 2(a) Code was U.S.C. 18 U.S.C. § is 386, ed in v. United Cohen not in terms restricted to offenses denounced in however, 1953) (note, 392-93 deny Title is no reason to and there its penalty willfully for a under the 1939 Code application to the offenses denounced in Title $2,000 fine, years and a false return was See, Johnson, e.g., 26. v. specific of a con- and there was no indication gressional , 514-15, 1233, 1238-39, 63 S.Ct. intention to reduce maximum (1943). Eisenberg L.Ed. alternatively 1555-56 could Payner, sentence). 727, In United States v. 447 U.S. charged under 26 be (1980), L.Ed.2d 468 7206(2). penalty in each instance would prosecution section was under 1001 but the be same. question it should have under of whether been expressly alleged While is not 7206(1) was neither raised nor dis- penalties signed perjury, returns were Knox, cussed. In United States v. 396 U.S. alleged instance the it is that in each return (1969), 90 S.Ct. appear 24 L.Ed.2d it does not Return, signed Income Tax “Individual wagering whether the form return years respective 1040” 1976 and prosecution Form was such as would be forms, judicial 7206(1). of which under section See also 1977. These official United Carter, taken, 1976) (how- knowledge printed be contain a dec- can ever, opinion pen- seems to view each the return is made under the laration that requiring proof statutes as some satisfy involved perjury, require- and hence alties not). did element which other 7206(1). regard in this of section ment charged Eisenberg 2. in counts three two and plea guilty having There is no abetting Haje- aiding Tom and Mick misapprehension taken under a respecting cate in their 1977 the offenses sentence, nor, course, maximum has the requisite come Since mental tax returns. sentencing stage been reached. Hajecates respectively, alleged state is as to the Eisenberg, Eisenberg well as to would