*1 disturbеd, absent may not be which and subse- tion of court, elaborating on West This Roper v. United showing v. of error. Waganer in Sea-Land case law a clear quent 1; 1973), F.2d 7 L.Ed.2d Service, (5th Cir. S.Ct. Inc. 368 U.S. Compa- Steamship the test: Brothers Lykes further refined Erwin v. 1973). (5th Cir. ny, must have been question (1) ship “dead”, status, navigational We are unwilling on the basis of the upon whether depends in turn upset record to the trial court’s factual de major, and minor or work is contracted termination. The judgment ship of the district custody and control has who court should be done; (ii) affirmed. It is. being the work is while tradi- reflect work repair must pattern seamen, ordinarily done
tionally and such tasks
excluding persons performing dry- making major repairs requiring v. Martinez
docking special skills. 1976), Carriers, (5th Inc.
Dixie 457, at 469.
F.2d a Menhaden fish-
The MV was LaSALLE is set stat-
ing fishing The season boat. Monday in the third
ute and runs from Tuesday in October of
April to the second afloat at year. The vessel was any given America, UNITED STATES The district Protein dock. the Southern Plaintiff-Appellee, judge concluded that the LaSALLE major idled, of the need not because BROWN, Sr., Amos P. undergo an annual mainte- repairs, but to Defendant-Appellant. custody and and care schedule. The nance intents and of the vessel was to all control No. 75-3503. retained the owner.2 purposes Appeals, Court of engines generators The were aboard. Fifth Circuit. week to It would have taken an “intensive” opera- place completely the vessel back in a March tive condition. being per
The amount of work approximately
formed on vessel
$30,000. was in The value of the vessel $1,000,000. type of work
excess of
being could be done performed Warner shoreworkers or seamen. Cus
by either season,
tomarily, at the conclusion of the up to
fishing type were tied boats of The fish
undergo repair. maintenance and departed group and a new
ing crew aboard repairs. Mr.
came aboard to handle the group. was a member of that
Warner these circumstances MV La
Whether under navigation at the time
SALLE was fact, the resolu- injury question is a ownership 2. The separate corporation, interlocking corporate owner was a there were but s between it and Southern Protein. *3 McDonnell, Tallahassee, Michael R. N. Fla., for defendant-appellant. Pensacola, Ashmore, Atty., U. Clinton S. Carrouth, Atty., Asst. U. Fla., J. S. Stewart Fla., Tallahassee, plaintiff-appellee. BROWN, Judge, Before Chief and TUT- GEE, Judges. TLE and Circuit BROWN, Judge: R. JOHN Chief case, very few1 in one This history of year annals of the 85 recorded Circuit, the trials and Fifth involves not tribulations, attempted frauds and other are com- taxpayers, derelictions Rather, it involves grist for our mill. mon Twenti- preparer, tax one whose fraud a occupation almost indis- Century is now eth who taxpayers all save pensable to those use, of, a short form or risk use can In this Bicen- deductions. with standard foray we see hazards both tennial rights of protection system and to concerned. public and the individuals 236, 186; United v. S.Ct. 42 L.Ed.2d Washburn, Cir., 1973, 139; Hull v. F.2d States, Cir., 1966, 919; United Hull 356 F.2d Cir., 1963, 817; v. United Kaplan States, Cir., 1957, denied, 521, cert. 354 U.S. 77 S.Ct. Burks,Cir.,1975,672,denied, 1012,2418,681;Dobbs,Cir.,1975,445;Johnson, Cir.,1974,1097;Miller,Cir.,1974,638,denied, 664,denied, L.Ed.2d 1539. 1.SeeUnitedStatesv.5 508F.2dcert.421U.S.95S.Ct.44L.Ed.2dUnitedStatesv.5 506F.2dUnitedStatesv.5 495F.2dUnitedStatesv.5 491F.2dreh.493F.2dcert.419U.S.95 preparation. is that To be remembered it is fraud or Except for the H. & R. Block preparer, course, not the false misstatement he has had no formal courses in Indeed, counts. taxpayer, which the tax accounting. He has prior criminal no, properly only due be of second- record. ary, significance. course R. Block H. & taking the After Brown, Defendant-Appellant Amos P. neigh- and friends helping began he Sr., part-time preparer, income tax incomes had low whom bors, most by jury on 12 convicted counts counsel- edu- formal or no little of whom many ing, procuring advising the preparation returns.4 tax their income cation,3 prepare presentation fraudulent false relied returns, preparing United States Individual Income Tax Re- of ex- evidence5 and oral both written turns for others in violation of 26 U.S.C.A. taxpayer. him furnished penses 7206(2), Internal Revenue Code.2 § *4 dou- defendant ever, the would Rarely, subsequently Court denied Brown’s District by the him given information the ble-check judgment acquittal of and motions for from a seeking information taxpayer by Brown to 11 con- trial and sentenced new concerning proper the or other source bank each, years followed terms of three current deductions.6 taxpayer’s amount appealed, years probation. Brown by three evidence, asserting insufficiency of the the approximately an audit In IRS evidence, prejudicial improper admission prepared which had been returns investigate pos- Trial failure to the Court’s sub- many contained revealed Brown misconduct and ineffective assist- jury sible these Of deductions.7 stantially over-stated the Trial of counsel. We find ance as the returns, out to serve were culled Judge by improperly committed error case.9 The present basis high- which was admitting certain evidence agent whether the IRS reveal not does According- prejudicial to the defendant. ly received, supporting docu- for, or asked we reverse and remand for a new trial. ly, claimed both for deductions ments taxpay- case, only one byor in each spouses AIn Nutshell also does not The evidence pair. the er of agent the IRS grounds on the reveal Brown, Sr., teacher is a school Amos P. does The evidence deductions. disallowed schools public in Florida taught who has whether ask did not agent the disclose background in- since 1947. His еducational different same or gave the taxpayer the Agricultural degree in cludes a bachelor’s defendant before to defendant information University A. & M. Education from Florida return.10 audited prepared the tax in income an H. R. Block course and & 7206(2) provides: charged approximately $10.00 2. 26 for this § U.S.C.A. 4. He IV, at 48. Any person service. R. who— Willfully (2) Aid or aids or assistance.— V, See, g., at 183. R. e. 5. in, counsels, procures, or advises assists or under, preparation presentation the or or in I, 20. See R. at 6. under, any arising connection with matter laws, return, the internal revenue of a affida- audit, proving prop- In each the burden of 7. vit, claim, document, or other which is fraud- taxpay- upon the er amount of deductions matter, ulent or is false as to material V, 131, 132. er. R. at falsity whether or not such fraud or is with knowledge person the thorized or affidavit, claim, or consent au- joint return. 8. Each of the 17 returns was a required present return, such document; or counts, original the District Court 9. Of guilty felony and, upon of a shall convic- 1, 2, 4, acquittal a verdict of on Counts directed thereof, tion $5,000, shall be fined not more than grounds that the evidence on imprisoned years, or not more than 3 or V, insufficient. R. at 139. both, together prosecution. with the costs of V, V, g., 10. 3. See e. R. R. at 132. taxpayers, have a list of tried, She did not
When the case was the Government her, names, with nor or their records primarily proof its on the their based to the documents of one access spouse taxpayer for each of did she have refreshing memory (the witnesses) her be- counts count purpose and on the agent who, all of prior did audit IRS she testified. She fore trial, she question. an audit of Because conducted most of the tax returns Brown. her recollection prepared by solely Almost all testifying of was that, audits, the count witnesses11 testified were not the tax returns of these items, respect challenged taxpayers their true de- introduced into evidence figures ductions were less than the taxpayers) 17 count stated for the (save concerned addition, on their witnesses, returns. some testi- Peacock was were not called as they fied that did not tell or authorize the considered why tell the IRS not able to put higher defendant down the figure overstated,12 to be various deductions the return. In only three counts did the direct supply unable to was further prosecutor inquire about deductible ex- the overstatements.13 penses incurred known the non-tes- spouse. The evidence the other tifying evidence, Upon consideration all the figures does not reveal whether counts including testimony, Witness Peacock’s given by taxpayer include other as to guilty a verdict of jury returned 3, 7, 8, 9,10,11,12,13,14,15,16 the non- expenses incurred known to Counts to con- Judge sentenced spouse. testifying *5 every each for years of three current terms testimony damaging most to the de- The count, that the 17. For except Count count given by agent, fendant was the IRS Adri- years three to defendant Judge sentenced Peacock. Witness Peacock testified enne prison his sen- served after probation, to be prepared by 160 about returns the sen- guilty found being tence. After by Court, been audited the IRS moved defendant had the by the defendant tenced notwithstand- acquittal of judgment that between and 95% these returns for a of 90% a new and for jury the verdict ing itemized deductions. contained overstated tri^l. taxpayers of audit- The the witnesses is conversations with each ed. the of count 11. Presumably, proof summarized, consisted either of infra, the at note 17. by taxpayers to Peacock that statements these only, point up illustration we For sake of the they gave all different information to the de- could have contribut- factors which five of the put preparer in than was down fendant tax their inability of the [i] to the overstatements: ed taxpayer returns, they or that were unable to sub- deductions, through prove his to deductions, they did because The not stantiate their available never had records he lost or fact that proof supporting could also records. have have consisted legitimate expenses, the fact support his claimed [ii] to IRS had of the fact disagree- arguable legitimate the IRS that ments with supplying disagreements arguable all or claimed, [iii] the deductions However, claimed. a deductions some by incorrect information of false or proof prerequisite be the form would this taxpayer time the defendant by with each tax- Peacock initial conversation payer, returns, taxpay- prepared [iv] defendant er’s so could determine that Peacock agent giving or data information to the IRS deductions taken. for the bases preparer either as from that furnished different to point therefore, emphasized, The to be is that purposeful spouse, taxpayer or [v] or his by the information obtained Peacock from the by preparer of an inclusion even inadvertent audited, taxpayers 160 out-of-court conver- by that furnished item othеr than or amount each, absolutely sations with vital to her spouse taxpayer, or both. in-court ultimate and conclusion that between 90% 160 returns she audited con- conclusion to arrive at the In order 95% tained overstated itemized deductions. out these Peacock, overstat- With- 160 returns were in these deductions taxpayers’ ed, (i) tax re- out-of-court statements to each individual Peacock needed -oturn, showing taken her in-court could have deductions no the itemized n fact, way proof (ii) basis have taxpayer; that those since she would and some ".each n knowing got materially that the were deductions overstated. false. Peacock were (cid:127).deductions through “proof” overstatements this
1199
Judge
denied both motions and this
rell,
Cir., 1974,
904;
505 F.2d
United
appeal followed.
Jernigan,
Cir., 1969,
States v.
471,
proof willfulness,
since direct
as that
Requirement
The Intent
of 26 U.S.C.A.
term is
in Pomponio
defined
and in Bishop,
7206(2)
§
may
readily
not be
available.
prosecution
In a
under 26 U.S.C.A.
case,
In
proof
of defendant’s willful-
7206(2),
§
the element of willfulness or in
ness
preparing
materially
false
tent
is usually the most difficult
to prove.
proved
fraudulent
returns
to be the focus of
In the
felony
misdemeanor and
tax evasion
much of the
proof.
part,
Government’s
(26
statutes
7207,
U.S.C.A.
§§
inclu
proof of willfulness was offered through
sive),
the word “willfully” generally con
the testimony of
notes a
the count witnesses
voluntary,
intentional violation of a
legal duty.
known
showing cumulatively
United
Pompo
repetitious
States v.
over-
-
nio, 1976,
-,
U.S.
22,
97 S.Ct.
statement of
deductions
the defendant.15
12;
L.Ed.2d
United States
Bishop, 1973,
v.
The Peacock's Tale
U.S.
93 S.Ct.
COUNT *8 Allowed Amount on Tax Amount overstated Item By Payer1s Return IRS_ $167.00 $417.00 (a) MIPS $309.00 (b) IEIP $167.00 $350.00 (c) CCs $50.00 (d) CLs (c), taxpayer not how did remember As to testimony: Taxpayer’s keep any paid he did not and that much he records of tor (a), taxpayer first did that he testified As to prosecu- church contributions. paid he that much he remember how not actually per paid $194 suggested that he Later, supporting any he records. have did not year. paid that he that he told defendant testified taxpayer (d), he sustained testified that As to year). ($167.44 per per $3.22 week casualty no losses. no he had taxpayer that (b), testified toAs expenses. interest PITTMAN & EVELYN JOE L. 11: COUNT Amount on Tax- Allowed Amount Item overstated By Payer's Return IRS_ _ (a) $450.00 MIPS testimony: Taxpayer’s There no in the record as how much, any, was Mr. Pittman’s deducted from (a), taxpayer her hus- testified that toAs salary premiums. for medical insurance insurance, paid company medical band’s they medical insurance. but SHACK 12 & JOE J. & LILLIE B.
COUNTS 13: Tax- Amount Amount on Allowed Item overstated Payer's By Return IRS_ (a) 1971 MIPS $582.00 $250.38 (b) 1971 IEIP $395.00 (c) MIPS $644.00 $250.38 (d) IEIP $617.00 (c), taxpayer paid testimony: he Taxpayer’s As testified figure actually $305.96, gave (a), taxpayer he he could not recall what As to testified he but paid $384.80 did not out and that he recall what the defendant. gave (d), taxpayer figure he not he As testified that did defendant. (b), expenses taxpayer not know had and did As to that he did not recall what what he testified recall, for, supporting gave figure He did not and had no he the defendant. records expense any supporting not did have amount of interest remember what in 1971. He did not have records and figure gave the the IRS. he defendant. when he audited COUNT 14: CLARENCE A. & EVELYN SIKES Items overstated Amount on Tax- Amount Allowed Payer's By Return IRS_ (a) MIPS $381.00 $89.90 Taxpayer’s testimony: though completely he was fig- sure of the (a), taxpayer toAs testified he and his ure. He did not remember the exact amount paid approximately per year, paid. $89.80 wife al- *9 SIMS & MARY L. 15: ROBERT A.
COUNT Amount Allowed Amount Tax- overstated Items Payer1s By Return IRS_ _ (a) MIPS $412.00 $223.48 (b) Total contributions $360.00 $80.00 (c) IEMH $723.00 (d) IEIP $412.00 (e) CLs $36.00 Taxpayer’s (c), testimony: taxрayer As to claimed that he had no mortgage expense (a), home ble for taxpayer interest that taxa- paid As to testified that he year. per ($262.44 $21.87 per year). month He testi- (d), taxpayer testimony. As to there was no gave fied that he receipts the defendant the (e), taxpayer toAs testified that he sus- this. casualty year. tained no losses that taxable (b), taxpayer As to testified that he and his paid per year. sup- $146.00 wife He had no porting records. 16: & C. SPEIGHTS
COUNT TOMMIE SILVIA Tax- Amount Allowed Amount on Item overstated By Payer's Return IRS_ _ (a) IEIP $492.00 (b) . CCs $298.00 $100.00 (c) MIPS $606.00 $167.44 (b), taxpayer actually Taxpayer’s testimony: As to that he testified $100, paid about but he could not remember (a), taxpayer As to testified that he did not figure gave he defendant. what expenses remember what his were or he what (c), taxpayer As to testified that he told the any sup- told the defendant. He did not have ($167.44 paid per per $3.22 defendant he week porting records. year). 17: EDDIE LEE & LOLA MAE TRIPP COUNT Item overstated Amount on Tax- Amount Allowed Payer's By Return _ IRS_ (a) MIPS $541.00 $140.92 (b) CCs $722.00 $520.00 (c) IEIP $397.00 Taxpayer’s testimony: tions, he did not remember what he told the (a), taxpayer paid As to testified that he defendant, and supporting he had no records. per $2 $3 between not week and that he did (c), taxpayer As to testified that he did not paid per $3 believe that he more than week remember paid how much he or how much he ($156.00 per year). any sup- He does not have told the defendant. porting records. (b), taxpayer As to testified he did not paid know how much he in church contribu- *10 1204 particu- was conclude, however, tes- Peacock’s that Peacock’s We jury), Broadway devastating. under
larly timony was inadmissible counterpart, F.R. (as well as its modern admissible, testimоny was If Peacock’s and, important, 404(b)), more Evid. 403 and 31, See might this case. note we affirm under the independently inadmissible was admissible, infra. If the was not the ultimate under- hearsay rule. Because however, we must vacate the conviction and testimony was its in Peacock’s lying defect trial, light remand for a new of the a discus- character, proceed to we hearsay of the evidence prejudicial espe- nature first. issue sion of counts, permeated all the cially since it both strong, weak and probatively and the Hearsay cumulative effect of numerous counts of repetitive acts could serve to meet the ele- 1, July after trial, conducted This infra. 26, See ment of willfulness. note of rules the federal 1975, governed by 801, hearsay is F.R.Evid. Under Evidence. asserts appeal, this the Government On one statement, than as “a defined testimony was admissible Peacock’s testifying while declarant made the rule that evidence under evidence hearing, offered the trial closely re other crimes of asserted.”18 of commission matter truth of the prove the nature in both time
lated be- case, testimony that Peacock’s In this to estab be admitted charged may crime she au- the returns and 95% of tween 90% States, 5 v. United identity, Halfen lish substantially overstated contained dited denied, 556, 558, cert. 1963, 321 F.2d introduced for deductions itemized 704, 934, 11 1964, S.Ct. U.S. circumstantially, proving, of purpose sole knowledge, United 653, guilty L.Ed.2d 7206(2). requirement § “willfulness” 1970, 423 F.2d Dryden, 5 Cir. v. States that the at the conclusion order to arrive 950, denied, 1178, 398 U.S. 1175, cert. overstated, were in these returns deductions intent, United 290, 1869, 26 L.Ed.2d S.Ct. the 160 tax returns perusal of Smith, 1970, 433 F.2d v. 5 Cir. States sufficient, returns obvi- since the was not 1971, denied, 1270, 401 U.S. 1266, cert. their face which de- do not show on ously motive, 328, 1206,28 L.Ed.2d 977, 91 S.Ct. The record shows are overstated. ductions 1959, 5 Cir. v. United Huff gotten “proof” her must have Peacock scheme, plan, 56, 60, common or a F.2d through conversa- the overstatements activity of criminal design system audited. taxpayers with each tions part, charged is a which the crime either of consisted Presumably, Sutherland, 1970, v. 5 Cir. taxpayers to Peacock by these statements 1152, 1156. information to gave different they all preparer than defendant tax Cir., 1973, 477 Broadway, United States returns, they or that their put down on 991, F.2d demolishes significantly, ... substantially similar. 18. Most definitions are Most misconception that wide-spread fairly Williamson, Cir., In United States v. alone, they not the are 585, 589, denied, words cert. 405 U.S. somehow person testifying, must auto- 92 “hearsay” 31 L.Ed.2d we defined words of the S.Ct. matically Words are not hear- be excluded. statements, any say they unless constitute out-of-court statement introduced evi- purpose proving dence for the truth are themselves not out-of-court statements the matter contained in the statement. [Cit- hearsay they unless are introduced for the McCormick, 228; ing (3d Ed.) Evidence § in, proving purpose contained or as- facts Wigmore, (3d Ed.) 1361], Evidence Most if § by, serted those statements. mystery fog enshrouding not all of the Evidence, ALI, Model Rule See also Code traditionally enigmatic rule definition, evaporate if that textbook well law, kept entrenched in our case in mind. unable to substantiate their deduc- assumptions were through cross-examination. tions, (or they *11 because not have He obviously did had could not cross-examine the inadequate) proof taxpayers records. supporting concerned, The because they werе not of the fact in might also have consisted court. He could not even cross-examine disagreements with legitimate Peacock IRS had adequately, because she did not claimed. the deductions have or some of with her any all of the records of conver- However, to this form of sations prerequisite a she had with had these taxpayers, but initial conversation be- was would be the proof testifying solely from memory, taxpayer, general, so that most Peacock and each amorphous tween Thus, terms. the jury the bases for the could determine had Peacock no way to examine the trust- claimed. worthiness of deductions Peacock’s testimony, because it could not examine the statements of the therefore, is point emphasized, The to be declarant taxpayers or others on which Pea- by Peacock the information obtained cock’s testimony was directly and substan- statements made from the out-of-court tially founded. Given the rationale of the returns she taxpayers whose audit- hearsay rule,19 a clearer case of hearsay ed, absolutely vital to her was ultimate testimony would be difficult to imagine.20 between conclusion that 90% and in-court she of the 160 returns audited con- 95% substantially overstated testimony itemized de- Nor is her
tained admissible un testimony Because her had to ductions. der exceptions of the to the hearsay directly on been based the out-of-court have rule. This is not recorded recollection taxpayers, of these (F.R.Evid. statements defendant 803(5)), a record of regularly con opportunity test their ultimate ducted activity21 (F.R.Evid. 803(6)), or a Twenty-five years аgo, 19. Morgan regular Professor ness and if it was the course of busi- analyzed hearsay rule and ness to identified its make such records within a reasona- ble time of the or rationale as transaction based on the occurrence. 28 untrustworthiness of 1732(a). purpose U.S.C. § The hearsay the federal recog- statements: we not “[S]hould dispense Business Records Act is to with the hearsay nize that the basis for rational necessity proving every each and book formula, classification is not the ‘assertions of- entry by person actually making it. The asserted,’ fered for the truth of matter but theory underlying Act is that business presence rather the of substantial risks of in- regularly kept by records in the form narration, memory, faulty Morgan, and and sincerity and particular company and relied on Dangers Hearsay perception?” company ordinary in the course of its busi- Hearsay Concept, 62 Application probability ness have a certain of trustwor- 177, (1948). Harv.L.Rev. thiness. & Louisville Nashville RR Co. v. 1965, Corp., 887, Knox Homes 5 Cir. inescapably 343 F.2d also Peacock’s 20. 896; Jersey leading Central R. of New Co. v. Jules S. by implication the facts presented Co., 1958, 85, Sottnek got Cir. F.2d other non- which she her conclusion testifying Therefore, regard long paid taxpayers “so declarants, is as the to the indispensable strong implication that to others that fundamental was trustworthiness concerned. she satisfied ‘ * * * record, proffered talking of the should of the statute herself from liberally interpreted what the preparer was not course be so as entered what the implied away assertion do an taxpayer It was anachronistic told him. rules rep- responsible for the gave whiсh need and that the rise to its at which it ” jury which the practices from etitious acts could assertion, was aimed.’ Pacific RR Missouri Co. v. an requisite It was willfulness. Austin, 1961, 415, infer the 5 Cir. 422. Of words, fact the ultimate course, in other may not all records be admissible in to defend- faulty were due that these trial; duty all cases a criminal it is the acts. ant’s the court determine each instance particular whether the record is constitution- statutory discuss the We had occasion ally admissible the Sixth under Amendment 803(6), F.R.Evid., the Business forerunner of Records guarantee of confrontation witnesses. 1732(a), Act, in United § 28 U.S.C.A. McDaniel v. United Cir., 802: Lipscomb, 5 v. States F.2d 785. in federal admissible records are Business analysis explicitly adopted by or occur- This transaction evidence of court as rence regular Burrell, Cir., course of busi- Court in in the if made 803(8)). (F.R.Evid. formity report may however, therewith. It record ad- public unrefreshed, missible for purposes, sometimes such as the mere It was motive, opportunity, intent, testifying preparation, of a witness borrowed, memory plan, knowledge, identity, or absence of told had been she of what the basis mistake or accident.”23 Furthermore, can be no there others. was ex- that Peacock’s doubt course, 404(b) subject, Rule See note to defendant. tremely prejudicial that, provides strictures of Rule hearsay Thus, 17, supra. because relevant, “Although be ex- problem raised testimony, we probative substantially cluded its value is case, would reverse and remand this *12 even if outweighed by danger preju- of unfair testimony her was otherwise admissible un- dice, issues, misleading confusion of the or Broadway der the standard.22 jury, or considerations of undue de- time,
lay, presentation wаste of or needless “Other Crimes” Evidence of cumulative evidence.” today We do not decide the extent 404(b) provides F.R.Evid. that “Evi evidentiary which these new rules alter the crimes, wrongs, dence of other or acts is not prove admissible to Broadway per the character of a common law rules set forth in son in order to show that he acted in con- However, giving and its ilk.24 F.R.Evid. 22. sion noted that liams, supra, 404(b) provide: that what she was opinion past. personal knowledge. defendant had committed similar acts she was was to establish as a fact —not take to pert as an witnesses that Peacock was not this Court (en banc). ny was admissible under F.R.Evid. 703 States v. ant’s his Frisco, tax evasion case the piled by 505 F.2d The Senate Committee kind under Rule facts termination tive value of the evidence in view of the crimes, ger availability “No mechanical solution The The dissent “This rule discharge. the rule stated in testimony. of undue employer The expert —was appropriate Advisory 5 testify incompetent 904, 908-09, wrongs, Williams, Cir., 1971, may rely upon hearsay testimony, deficiency Cir., 1971, properly accounting In this have of other means of witness. Neither did she under- must not known provides suggests prejudice outweighs to audit his accounts as an See also United States v. De- We do not nothing Committee or acts is not admissible to 403.” affirming 5 be made whether the dan- case, however, investigatory report held en banc in United Therefore, to hold inadmissible in a in expert. 441 making firm that that evidence of other United express opinions, fact Report to do is offered. sufficiently dispute we F.2d engaged as a fact —not an put Notes to proof decision of this find is Her States Wil- on this opiniоn F.R.Evid. 703 on the stand 137, it is clear testimony in defend- this case. and other following not that testimo- 139-40. to her proba- —that expert as provi- Rule com- but de- ex- as 24. At the pp. H.Rep. reprinted Ad.News (1974), reprinted S.Rep. we where, al Rules. Cir., 1976, pre-Rule ground greater emphasis the final Court version.” The House Committee ever, amended this words ‘This subdivision does not exclude the evidence when offered’. The Committee judge. submitted to the time.” 403, the trial basis of those considerations set forth in Rule confer respect with ty that the use of other prove motive. 7075, “The second sentence of Rule “Although your crimes, wrongs, applying rely in No. i. e. respect No. amending Advisory pointing specified purposes character but in [1974] any arbitrary that this formulation cases pp. Rather, on for this admissible’, very See, 93-650, judge may 538 F.2d permissible prejudice, 93-1277, 7051, may supply language e. least, out “the policies underlying g., the rule it is U.S.Code Committee 93d 7071. committee sees no necessi- Congress began [1974] or discretionary United States v. admissibility 93d exclude it confusion or waste of the words used in the Cong., purpose discretion admissibility uses for such acts is would anticipated to read ‘It Report provides 708. The main case strong possibility itself, guidance U.S.Code Cong., Cong. such as be admissible for 2d Sess. properly placed appear draft, it only on & of evidence intended to word may, anticipates 2nd Sess. Broadway, 404(b) that with Ad.News evidence, than did with the Cong. Bloom, proof on the that the divining (1974), on the Feder- ‘may’ how- trial as & 404(b) interpretation, Pea- its most liberal ting Peacock’s testimony, we should not testimony would be inadmissible vacate the conviction cock’s because defendant crimes, wrongs, оbject. Court, failed to however, or acts” This “evidence of other can recognize minimum, without, proof affecting re- errors defects at rights substantial substantially even if there is timely turns testified contained 52(b). See, objection at trial. deductions, ex- F.R.Crim.P. for it is overstated itemized e.g., Morales, United States v. actly which constitutes evi- Cir., 1973, get 1309, 1315; crimes. order 477 F.2d United States v. Col dence 1018; lins, Cir., 1972, re- proof, necessarily25 must have Peacock in out-of- United Garber, Cir., 1972, States v. given upon information her lied 212, 217; v. Jacquillon, taxpayers with the Cir., court conversations we she audited. As have whose F.2d 386. As im the name shown, plies, plain as to these already her errors “are involving those seri de- ous fairness, out-of-court deficiencies which out-of-court statements affect integrity hearsay. public reputation judicial clarants constituted inadmissible proceedings or which Because of its infection as inadmissible constitute obvious err Collins, or.”26 United States v. supra, hearsay, her was also inadmissi- at 1018; Jacquillon, United States v. supra, 404(b), her ble under F.R.Evid. because tes- *13 386. timony necessary contain admissible evidence Such a strict standard did not “is crimes, wrongs, promote or order to judicial of other acts. efficient adminis to prevent parties tration and gam from
Plain Error
bling for favorable verdicts
then
and
resort
that,
It
position
ing
is the Government’s
to appeal
might
on errors
that
have
easily
even
the District Court erred in
by
admit-
been
objection
corrected
at trial.”
prejudice
plain
struggle
in the use
inherent
of
26. The
[other
to define
error has result-
evidence,”
995,
variety
and
its tend-
crimes]
in a
ed
of formulations:
ency
jury,
“in
to confuse the
we ruled that
Wright,
See
Federal
&
Practice
Procedure:
guilty knowledge
is
where intent or
cases
856,
372,
pp.
373,
Criminal §
where cases are
sought
by
proved
to be
evidence of similar
variously
as,
defining “plain
cited
error”
proof
“
offenses
.
.
of other related
substantial,’82
‘error both
or
obvious
clear,
conclusive,
plain,
offenses
‘be
[must]
Sykes
States,
"82.
C.A.5th, 1966,
v. United
vague
of
and evidence
a
and uncertain charac-
607,
F.2d
612.
is
ter
not admissible.’
.
[W]hen
errors,’83
‘seriously
‘serious and manifest
or
assertedly
an
is
of
similar offense
tendered
"83.
States, C.A.5th, 1954,
Feutralle v. United
intent,
necessary
establish
offense
159,
F.2d
163.
physical
proved
ele-
include the essential
must
prejudicial error,’84
‘grave
or
errors which
charged,
physi-
of
and these
ments
the offense
States,
10th, 1957,
"84. Cleaver
United
v.
C.A.
elements,
ingredients
but
of
cal
not the mental
766,
States,
F.2d
770. Himmelfarb
United
v.
clearly
by compe-
the offenses must be
shown
C.A.9th, 1949,
924, 950,
certiorari
evidence.”
Id.
tent
103,
860,
denied 70 S.Ct.
338 U.S.
94 L.Ed.
solely
If we were
decide this case
527.
Broadway,
same
we would reach the
conclu-
seriously
rights
affect substantial
of the ac
as we do under the Federal Rules of Evi-
sion
cused’.85
dence,
give competent,
for Peacock did
"85.
Wright
10th, 1962,
v. United
C.A.
physical
of
admissible evidence of the
elements
F.2d
414.”
charged
offense
fact that
—the
90% 95%
52.02(2).
See also Moore’s Federal Practice §
substantially
these
returns contained
over-
Garber, supra,
also
See
v.
at 217:
contrary,
stated itemized deductions.
To
questionable
“Where it is
that an error could
point
testimony
her
as to this
was blatant hear-
by
have been cured
mere correction
counsel
say,
competent
nor ad-
therefore neither
Court,
an instruction from the
the error
Therefore,
missible.
our end rеsult is the same
rises to the level of
and fundamental
rely upon the
whether we
Federal Rules
error.”
Broadway.
case,
upon
In either
Peacock’s tes-
timony was inadmissible.
13, supra.
See
note
16, supra.
note
See
given.
notice
struction was
we will take
Id.27 Whether
or not
that
admission of the
finding
“must
our
ultimately
From
raised below
an error not
error,
the error was
testimony
that
case.”
was
particular
facts of the
depend on the
obvious,
Morales, Cir.,
substantially prejudiced
that
it
United States
defendant,
was not
prejudice
and that
1309, 1315.
F.2d
instruction, we
cautionary
removed
commonly
matter
No
of Peacock’s
the admission
conclude
we
applied,
plain error
definitions
used
necessitating re-
plain error
finding
the admis
difficulty in
have no
See
new trial.
and remand
versal
stan
testimony meets the
sion
Peacock’s
32, infra.
note
its admis
First,
error of
required.
dard
two dif
and manifest
was obvious
sion
Odds
Ends
First,
hearsay
it was
ways.
ferent
Sufficiency of Evidence
inad
independently
and was
kind
rankest
case,
reviewing
record
this
404(b) and
under F.R.Evid.
missible
that,
we have determined
were the trial
testimony that
Second,
the admission
error,
evidence in at
prepared
free
otherwise
of the returns
95%
90% to
would have been
the counts
overstat
least some of
substantially
contained
jury’s
verdict
sustain
severely prejudicial
sufficient
deductions
ed
under the Glass
counts,28
supra.
as to those
guilty
See
note
the defendant.
of review.
standards
er29
Judge imme
and Warner30
Trial
by the
given
instruction
sen
(see note
of the concurrent
reverse twist
As a
diately
after
the case
and the fact
prej
doctrine
removed the
tence
not have
supra) could
retried,
further exam
ad
we do not
resulting
to be
has
unfairness
udice and
as to each count.32 Ben
sufficiency
in-
testimony. No other
ine
mission of
*14
recently
27.
opportunity
We have
adequate
had an
United
counts].”
as to all
the
[of
was
emphasize
1971,
Varner, Cir.,
“sandbag-
our intolerance of
Defendant also claims that the Dis
trict Court
plain
committed
error in admit
Hearsay
More
ting
(without
objection) of the fact
that defendant
to give
refused
complains
Defendant
admis
certain in
formation to an
Special
IRS
Agent during
response
sion
certain evidence.
to a
informal,
an
non-custodial visit by the
request by
prosecutor,
one of
count
agent.34 In United
Hale,
States v.
1975,422
statement,
prior
witnesses read
his
171,
2133,
U.S.
95 S.Ct.
1214
trary discretion on the trial
judges.
turns.5 Relevant and admissible under
Rather,
anticipated
it is
that with respect
404(b), the
properly
Rule
evidence could
permissible
evidence,
uses for such
only
Rule
if the
excluded under
403
trial
judge
trial
it only
exclude
on the
judge
probative
that “its
value is
found
of those
basis
considerations set forth in
substantially outweighed by
danger
of
403, i.
prejudice,
Rule
e.
appellant
confusion
prejudice.”
or
unfair
Even if
Brown
objected
waste of time.
had
below to admission of Pea-
testimony,
cock’s
I
be reluctant
would
Cong.
1974
&
pp.
U.S.Code
Admin.News
judge
find that the trial
abused
discre-
Thus,
(emphasis added).
Broad-
by
given
finding
tion
in Rule 403
him
way’s hostility toward admission of such
probative
value of the Peacock evidence
is supposed
is—or
replaced
evidence
be—
outweighed
substantially
by danger
was not
by Congress’ hospitality
receptive
view
prejudice.
of unfair
toward it.
Agent Peacock’s
was both
neces-
Advisory
The
Committee Note to Rule
sary
highly probative
on the crucial
404(b)
leaves
doubt that the admissibility
disputed
appellant’s
issue of
intent. Her
of other-offense evidence should be deter-
unchallenged testimony that 90 to
per-
mined
reference to Rule 403’s balancing
cent of the more than 160 returns prepared
prejudice against
test of
probativeness:
by appellant Brown contained overstated
No mechanical solution is offered. The
certainly
deductions
tended
rebut
determination must be made whether the
that he had not
Brown’s defеnse
intention-
danger
prejudice
of undue
outweighs the
deductions,
ally
implying instead
inflated
probative value of the evidence in view of
from
that overstatements resulted
mistakes
availability
of other
means of
taxpayers.
information from
erroneous
and other facts appropriate for making
government’s
The
acute need
Peacock’s
decisions of
kind under Rule 403.
entirely by
was created
defense
brought
counsel when he
on cross-ex-
out
language
of Rule 403
And
itself re-
government
witness the
amination of
au-
tilting the scales in favor of
quires
admissi-
had
appellant
prepared.
dit of 163 returns
sanctioning
only
bility,
pro-
exclusion
when
explanation of the audit results
Peacock’s
substantially outweighed
is
bativeness
necessary
abruptly
thus
became
to forestall
prejudice.
argument
only
17 of
defense
that she
Agent Peacock’s
of
returns contained mistakes
overstated
in 90 to
deductions
found overstated
deductions.
prepared by
tax
percent of the
clearly
under
admissible
Rule
appellant
dangers
prejudice
of unfair
to de-
The
tending
appellant’s
to show
willful
404(b)
testimony are mini-
as
fendant
absence of mistake or acci-
and the
on other occa-
appellant
intent
mal.
Proof
of the indicted re-
preparation
in his
income tax returns with
prepared
dent
sions
See, g.,
King,
(“Proof
e. United
repetitious
States v.
505 F.2d
of this
conduct was admis-
(5th
1974) (“The
Cir.
admission of
.
.
.
purpose
showing
sible for the limited
highly
similar
[of
is
acts]
where,
relevant
appellant,
-||idence
intent of the
otherwise
aere,
here,
repetition
as
there has been a
might
years
be claimed that the acts in the tax
dealings
.udulent
great
as to indicate a
innocent.”);
were either inadvertent or
Escobar
probability
ignorance
innocent
in-
(5th
1967)
v. United
Cir.
149 (6th
4t.”);
Tunnell,
United States v.
(in prosecution
attorney experienced
in tax
1973) (in
Cir.
trial for willful evasion of
willfully making
subscribing
field for
false
íes,
pattern
consistent
understanding
returns,
taxpayer
tax
evidence that
understated
g
couples
amounts of income
with evidence
his
almost
for four
income
one-half
consecu-
nadequate
kept
taxpayer
records
years
tive
relevant and
admissible
issue of
willfulness);
fits
inference
United States
willfulness).
v. Jernigan,
(5th
1969)
court,
type
Broadway
is not
deductions
fearful of
possi-
overstated
bility
prejudice
appeals unduly
evidence that
inherent
in allegations
other-crimes
jury,
of a
as
defendant had
prejudice
emotions and
committed other
of-
fenses similar to
opprobrious
charged,
those
of more
“other
would evidence
established
the rule in
government
this circuit that the
trafficking or
drug
armed
crimes” such
*20
could
merely
not
intimate that defendant
majority,
robbery. As noted
had committed other similar crimes. Evi-
simple overstatement of allowable deduc-
tending
dence
to show similar offenses
on a tax return
occur in several
tions
would be excluded unless
government
ways:
innocent
misinformation from
quite
clearly prove
could
that defendant had com-
IRS,
taxpayer,
dispute
an honest
with
mitted acts
charged:
similar to those
mistake,
paucity
or a
of records to substan-
degree
possi-
The
tiate the deductions.
and
holding
Our
is simply that
when
prejudice from
bility of undue
an assertedly similar offense is tendered
lessened
considerably by
is thus
to
intent,
establish necessary
the other
explanations
the numerous
innocent
for
proved
offense
must include the essential
Applying
overstated deductions.
Rule 403’s
physical elements of the offense charged,
balancing
particular
test to the
facts of this
and these physical elements, but not the
case,
simply
I
cannot conclude that
the ne-
ingredients
mental
of the offenses must
cessity
probative
and
value of Peacock’s
be clearly
by competent
shown
evidence.
substantially outweighed by
evidence was
how to
weeks before
suspicion
standard,
the reversal
because
them under surveillance
sive”
surprisingly,
Vos-
of sufficient
Not
on the lack
other robberies.
Broadway turned
prove
that,
offered
held
charged
per
court
the offense
similarity between
crimes,
agent’s
reference
oth-
similar
Eighth
alleged.8 One
acts
the other
Broad-
was deficient under
er robberies
approval in Broad-
cases cited
Circuit
clear,
test.
way’s
and conclusive”
“plain,
light
type
on the
however,
some
sheds
way,
which,
its
under
of other-offense
Vosper
Kraft and
contain classic illustra-
as too
test,
excluded
should be
superceded
unreliable,
type
unsubstanti-
tions
In Kraft v. United
and uncertain.
vague
ated
accusations of other
intimations or
(8th
1956),
defend-
Broadway
crimes that
rule
de-
with a scheme to defraud
charged
ant was
signed
five-year-old
exclude. The
com-
money in
inducing
him
persons
send
plaint letters in Kraft and the reference to
*21
geraniums”
receiving “rare
anticipation of
“suspicion”
Vosper
robberies in
of other
newspapers. Kraft
as
in several
advertised
injected
weight, yet
probative
carried little
against
charge by denying
the
defended
highly preju-
into the
trials the
defendants’
possessed
requisite
had
the
criminal
previous
that he
similar crimi-
implication
dicial
help
to defraud. To
show his fraud-
nal activities.
intent
government
intro-
ulent
intentions
in
circuit in which chal
Recent cases
this
the court admitted over defend-
duced —and
lenged
evidence was admitted
other-offense
objection
sent in
from
ant’s
letters
—39
despite
test consult the relia
Broadway
Minneapolis
Tribune to defendant when
certainty
and the
bility of the evidence
tulip
operating
he
been
a mail-order
had
have,
fact,
in
been com
other similar acts
The letters
intimated that de-
venture.
example,
in
For
by
mitted
defendant.
dilatory
making
had
in
re-
fendant
been
Pollard,
(5th
v.
delivering
as
in
funds or
bulbs
advertised
denied,
1975), cert.
U.S.
Cir.
Eighth
the Tribune. The
Circuit ruled
(1976),
ant had
engaged
also been
that defendant had
Plain Error?
marketing marijuana, and
procuring and
magnitude
Whether an error rises to the
prior
that defendant had had considerable
error,
even
justifying
reversal
ab-
heroin for
experience
procuring
Mexican
timely
objection,
sent
trial
calls for sub-
prospective buyers.
panel,
opin-
in an
jective judgments
questions
of fairness
Ainsworth,
Judge
specifically held
ion
prejudice
inherently
involve con-
agents’ “extrinsic evi-
that the undercover
siderable latitude for defensible differences
heroin,
marijuana
dence of
cocaine and
*22
judicial opinion.
regis-
already
of
I have
”
clear,
dealings
‘plain,
convincing.’
and
disagreement
my strong
my
tered
with
Thus,
at 709.10
the court’s conclu-
error, if any,
brothers’ conclusion that the
met the
sion that the other-offense evidence
admitting
testimony
in
Peacock’s
was “ob-
Broadway
upon
standard must have turned
prejudi-
“severely
vious and manifest” and
witnesses,
credibility of the
the reliabili-
the
to the defendant.”
To further bela-
cial
(i. e.,
testimony
of their
ty of
source
my arguments
points
bor
on these
would
himself),
clear and con-
and the
profit
However, beyond my
little.
disa-
vincing
testimony
nature of their
about
greement
grounds
significance
with the
and
defendant,
dealings
in which he
their
with
by
majority,
of the errors discovered
I
his
with other
had revealed
involvement
gravely
by
application
am
disturbed
of
drug transactions.
particular
error rule to the
facts
A
practi-
of this case.
consideration of the
The testimony
Agent
Peacock
IRS
in
will,
holding
cal ramifications of the
I
the instant case was at least as detailed as
think,
grounds
my
illustrate the
for
con-
the evidence in Pollard and was far more
cern.
specific
testimony
than the
in Bloom. Her
results,
majority’s opinion
Even the
leaves no
undisputed
evidence of tax audit
defendant,
unimpeached
and
by
clearly
government may properly
es- doubt that
Although
special
majority gives
in a
concurrence the other
One of the reasons that the
for
members,
Clark,
panel
Judges
finding
testimony “severely prejudi-
Tuttle and
disa-
Peacock’s
Judge
greed
alleged
that a
Ainsworth
substantial
cial” is the
weakness of other evidence
existed, they
appellant’s guilty
majority
need for the extrinsic evidence
to show
intent. The
exception
finding that
appellant’s guilty
took nо
to his
the evi-
intimates that the
clear,
sufficiently “plain,
dence was
and con-
probably
intentions was so weak that he
would
vincing.”
stantially affected evidence, plain error rule exists
priate him from the unfair
to rescue conviction objection. trial proper
even absent a In the however, case, subject and sub-
instant government’s
stance of the other-offense properly admissible on the evidence was VALLEY COMPANY, VIEW CATTLE intent; Brown’s appellant ma- issue Plaintiff-Appellee, only to the form jority objects which the took, specifically, alleged its hear- say plain character. The error rule was PROCESSORS, INC., IOWA BEEF designed to reverse simply not otherwise Defendant-Appellant. proper convictions mere technical evi- No. 75-4245. dentiary objection defects when no United States Court Appeals, below. A defects was raised successful ob- Fifth Circuit. jection protected at trial would not have March defendant from admission of the the instant Rehearing Rehearing En Banc probative other-offense evidence of- highly 15, 1977. April Denied Peacock; by Agent would have fered required government to alter simply Thus,
slightly proof. its manner of it is easily
difficult to understand how this cor-
rectible in the form of admissible defect prejudiced could have so defendant as
to make his unfair. conviction
Because the admission of Peacock’s testi- it,
mony gave error, in the form she substantially
not a error prejudicing leading
defendant or to his conviction on evidence,
wholly improper and because the
majority’s rulings appeal in this are unlike-
ly significantly to alter either the conduct trial,
or the outcome of another I appli- find
cation of the error disturbingly rule
inappropriate to the facts of this case.
Thus, I vigorously dissent from the reversal
of appellant’s ground conviction on the 15. would jury one of the ness was related tion with one of the all relief. engaged during I jurors misconduct. affidavits, had been His motion for new not, however, deny appellant principal prosecution the trial in a raised serious by marriage) Specifically, he claimed that subjected jurors (to private and that one of trial, supported whom the wit- improper pres- witnesses had allegations conversa- Brown would, therefore, investigation” McKinney, its tions. inquiry sures to reach a verdict The court below failed effect into the into the required by allegations remand the case for alleged during (5th jury conduct a “full misconduct and delibera- the misconduct. States v. 1970). proper I