UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. HASHIMOTO, Defendant-Appellant.
No. 87-1332.
United States Court of Appeals, Ninth Circuit.
Decided June 21, 1989.
Rehearing and Rehearing En Banc Denied Sept. 11, 1989.
878 F.2d 1126
Argued and Submitted Nov. 10, 1988.
Leslie E. Osborne, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee, the U.S.
Before NELSON, REINHARDT and WIGGINS, Circuit Judges.
NELSON, Circuit Judge:
Daniel T. Hashimoto was indicted on three counts of failing to file an income tax return, in violation of
FACTUAL AND PROCEDURAL BACKGROUND
On February 12, 1987, a three count indictment was handed down against the defendant, Daniel T. Hashimoto, alleging that he willfully failed to file income tax returns for the years 1979, 1980, and 1981, in violation of
The defendant had also submitted 90 proposed voir dire questions.4 Proposed Question No. 35 was as follows:
Are you afraid of the IRS, and do you fear the liklihood [sic] that the IRS will seek retribution against you if you were to render a verdict of acquittal for an innocent defendant? If so, ... would this fear or concern affect in any way your ability to be a fair and impartial juror?
The magistrate reviewed the proposed questions, and covered some of them in the course of his questioning of the prospective jurors. However, no question was asked that was comparable to, or covered the same subject matter as, Question No. 35. Although defense counsel did specifically request at voir dire that the magistrate ask some of the questions that had been submitted, the defense did not go over the proposed questions one by one, and no specific reference to Question No. 35 was made. Instead, counsel stated that, for the remainder, he would “stand on the record as to what we submitted.”
The jury was impaneled on July 20, 1987, and the trial began three days later. On July 30, the jury returned a verdict of guilty on the first two counts of the indictment (i.e. failure to file a return for 1979 and 1980), but acquitted Hashimoto on the third count (failure to file for 1981).
On August 6, Hashimoto filed a motion for a judgment of acquittal on counts I & II or, in the alternative, for an evidentiary hearing or a new trial. On September 24, 1987, the court denied Hashimoto‘s motion without a hearing. Hashimoto filed a motion for reconsideration but it was denied. On October 13, Hashimoto received a sentence of a $5,000 fine and one year in prison on each count, with the prison sentences to run consecutively. The prison sentence on count II, however, was suspended on the condition that defendant be placed on probation for five years after his release from prison on count I. On October 20, 1987, Hashimoto filed a timely appeal to this court. See Fed.R.App.P. 4(b). Hashimoto is currently free pending the resolution of this appeal.
DISCUSSION
1. Introduction
Hashimoto argues that the trial court‘s failure to grant his motion for a jury panel list, which he requested pursuant to
Section 6103(h)(5) states:
In connection with any judicial proceeding described in paragraph (4)5 to which the United States is a party, the Secretary [of the Treasury] shall respond to a written inquiry from an attorney of the Department of Justice (including a United States Attorney) involved in such proceeding or any person (or his legal representative) who is a party to such proceeding as to whether an individual who is a prospective juror in such proceeding has or has not been the subject of any audit or other tax investigation by the Internal Revenue Service. The Secretary shall limit such response to an affirmative or negative reply to such inquiry.
Unfortunately, this provision, which was enacted as part of the Tax Reform Act of 1976, Pub.L. No. 94-455, § 1202(a)(1), 90 Stat. 1525, 1675 (1976), has never been subject to interpretation in any published opinion. The question posed by this appeal is thus one of first impression.
We begin by noting that the statutory right conferred by this provision is broadly phrased. Section 6103(h)(5) states that the Secretary “shall” respond to a written inquiry from a party to a judicial proceeding pertaining to tax administration. Since the Secretary has no discretion to refuse to provide the information requested, the right to such information is absolute so long as (1) the proceeding is one in which the right conferred by
2. Applicability of Section 6103(h)(5)
When Hashimoto initially filed Motion # 26, requesting that he be given a list of prospective jurors so that he could apply to the Secretary for the relevant information, the government resisted the motion solely on the grounds that
3. Procedures for invoking rights under Section 6103(h)(5)
Rather than arguing that
In evaluating the government‘s argument, one must first consider what procedure is envisioned by
It is apparent that a request to the Secretary concerning more than 40 prospective jurors will take some time to process. Furthermore, the request must be in writing, and, given the lack of regulations on this point, must presumably be addressed to the Secretary of the Treasury in Washington, D.C. If the defendant is to obtain this information before voir dire, it seems clear that he or she will have to obtain it sufficiently far in advance of the scheduled trial date to permit a request to be filed and a response to be received. Accordingly, the defendant should be permitted to receive the jury list as soon as it has been drawn. In this case, that means that Hashimoto should have received the list of the more than 40 prospective jurors summoned for this case as soon as these individuals had been selected. Thus, while jury summonses were being prepared and issued for these prospective jurors, Hashimoto could have been preparing his request for the juror information described in
The Hawaii Juror Selection Plan, enacted pursuant to
The erroneous nature of the court‘s ruling is reinforced by the fact that, during the proceedings below, neither the government, the magistrate, nor the district court indicated any basis for failing to grant the
Although the failure of the magistrate and the district court to grant Hashimoto‘s motion for early release of the list was thus incorrect as a matter of law, this does not dispose of the government‘s argument on appeal. The government argues that Hashimoto should have filed a request under
The defendant‘s response to this argument is threefold. First, Hashimoto argues that it would be unfair to expect a pro se defendant to have realized that he should go forward with a request to the Secretary despite the magistrate‘s earlier6 denial of the motion. The force of this argument is undercut by the fact that Hashimoto appears to have been represented by counsel during most of the relevant time period. The records of the trial court indicate that Hashimoto‘s trial attorney attended the final pretrial conference held in Honolulu on July 17. Therefore, it appears that Hashimoto was represented by counsel during at least part of the brief pretrial period during which he had the juror panel list. Thus, if the appeal of the motion was in fact moot, there would be nothing inequitable in expecting the defense to have realized this fact and to have proceeded accordingly.
Second, Hashimoto argues that a request under
Nonetheless, one might still argue that a court order should be required under
Finally, Hashimoto argues that he could not reasonably have been expected to obtain the juror information from the Secretary in the short period of time between the release of the list and voir dire. The government responds by arguing that Hashimoto could have applied for a continuance.7 The government emphasizes that Hashimoto should have realized that his appeal of the magistrate‘s order had been mooted by the release of the list, and that he should have promptly moved for a continuance while he filed a request with the Secretary. The government asserts that his failure to do so means that he has waived his rights under the statute.
We reject the government‘s argument because we conclude that Hashimoto‘s appeal of the magistrate‘s order had not been mooted by the release of the list. Hashimoto‘s motion under
4. Is the error reversible?
We next must decide whether the error warrants reversal. The government argues that reversal is only required if the error resulted in substantial prejudice to Hashimoto‘s rights. The government asserts that reversal would be unwarranted in this case because the possibility of prejudice to Hashimoto is too speculative and that therefore any error was harmless. The defense argues that the
Inasmuch as
In United States v. Baldwin, 607 F.2d 1295 (9th Cir. 1979), this court spelled out the standards for deciding when inadequate voir dire required reversal:
[Where] the trial judge so limits the scope of voir dire that the procedure used for testing does not create any reasonable assurances that prejudice would be discovered if present, he commits reversible error. The reason for this is that, as a result of such error, the number of meaningful peremptory challenges or challenges for cause available to a defendant necessarily is reduced, and the inhibition of the right to challenge for cause or peremptorily is in that instance deemed to be prejudicial.
607 F.2d at 1298. Thus, at a minimum, reversal is required in this case if an erroneous denial of
We emphasize that only a “significant risk of prejudice” must be present to require reversal. Again by analogy to the voir dire cases, we conclude that no showing of actual individualized “prejudice” is required. See Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Baldwin, 607 F.2d at 1298-99; United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977); United States v. Hill, 738 F.2d 152, 153-55 (9th Cir. 1984); United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977); see also United States v. Washington, 819 F.2d 221, 224-25 (9th Cir. 1987) (reversing conviction and refusing to order an evidentiary hearing as to prejudice). The government is thus incorrect in arguing that Hashimoto is required to make an
The government argues, however, that there was no significant risk of prejudice because a mere “yes” or “no” answer to a question concerning whether a juror has been audited is of “little or no value in exercising an intelligent peremptory” (emphasis in original). Indeed, in its brief to this court, the government goes on at great length in order to show just how little value there is in the information provided under
In this case, none of the questions asked during voir dire was sufficient to counter the presumption of risk of prejudice that, at a minimum, arises from a violation of the statute.9 Nonetheless, the government argues that the defendant never attempted to explore the issue of such possible prejudice during voir dire, and that none of the voir dire questions proposed by the defense concerned this subject. Thus, the government appears to assert that, to the extent voir dire was inadequate on this point, it was the fault of the defendant. However, the record indicates that the defendant did raise the
Moreover, we are doubtful that the defense in a criminal case has a continuing, affirmative obligation to try to undo the effect of an earlier erroneous ruling to which a proper objection has already been
Accordingly, we conclude that the error in failing to give Hashimoto the juror tax information to which he was entitled raises, at a minimum, a presumption of a risk of prejudice, and that the examination of the jurors during voir dire was not such as to negate that inference. Hashimoto‘s conviction must therefore be reversed.
CONCLUSION
The judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
WIGGINS, Circuit Judge, dissenting:
Danny Hashimoto had an income of $271,680.21 in 1979 and $106,820.66 in 1980. For whatever reason, he decided not to file an individual tax return in either year. He pleaded not guilty to charges of violation of
The majority performs an admirable job in applying the statute notwithstanding the lack of help from Congress and in the absence of any administrative regulations. I agree, based on the circumstances of this case, that the district court erred in failing to grant Hashimoto‘s motion for early release of the jury list. It cannot reasonably be argued that seven days is sufficient time to file and receive a response to a written request submitted pursuant to section
I part company with the majority, however, in its conclusion that the district court‘s failure timely to release the jury list is reversible error. Looking for guidance to our previous decisions in which we have sought to determine when inadequate voir dire requires reversal, the majority holds that denial of information under section
It seems to me that the proper point of departure in attempting to determine whether the “risk of prejudice” was negated by the questions asked during voir dire is the identification of the prejudice caused by the defendant‘s lack of knowledge concerning the prospective jurors’ status with the IRS. Presumably, the benefit derived by a defendant from knowing whether a potential juror has been or is being audited (aside from the fact that the defendant is placed on equal footing with the government) is the added insight in determining whether a particular juror may be biased or partial either for or against the defendant. This being the case, questions designed to
The magistrate‘s specific questioning of the jurors in this case regarding their willingness to be fair to both sides, their possible bias, prejudice against either side, and freedom from influence was calculated to guarantee educated exercise of the peremptory challenges and to lay a proper basis for challenges for cause. The negative answer given by each of the prospective jurors to the following question is itself sufficient proof that any risk of prejudice was negated: “Do you know of any reason why you may be prejudiced for or against the Government or this Defendant because of the nature of the charges? You know the nature of the charges.” Reporter‘s Transcript, July 20, 1987, at 57. Based on the magistrate‘s questioning, neither Hashimoto nor the court had any basis upon which to speculate that a verdict rendered by any of the prospective jurors would not be impartial.1
Even if the magistrate‘s questioning did not negate the risk of prejudice, I would not find the district court‘s failure timely to release the list to be reversible error because Hashimoto did not request that the magistrate inquire whether any of the jurors had or were being audited. Although, as the majority notes, he did renew his request for the information before the magistrate, Hashimoto did not ask the magistrate to question the jurors on that issue. Indeed, Hashimoto submitted over one-hundred requested jury instructions to the court, but apparently did not deem the issue important enough to include a question asking whether the jurors had or were being audited. Hashimoto‘s disinterest with the question during voir dire is further evidenced by his failure to join the government‘s request that the magistrate inquire of the jurors whether or not they had “any dealings with the IRS.” Although Hashimoto did request that the magistrate query the jurors about whether they feared IRS retaliation, the issue of retaliation is separate and distinct from whether the jurors had been or were subject to an audit. Fear of retaliation is likely to exist apart from whether one has been audited.
Congress has created a trap which operates against the successful prosecution of defendants charged with failing to file their income taxes. Regardless of the evidence of their guilt, a defendant need only plead not guilty and request a jury trial. When the names of the prospective jurors are revealed to the defendant, he then exercises his right, granted under
Congress should address the issue raised by this appeal. Until it chooses to do so, however, we must inject some common sense into a statute that unreasonably burdens successful prosecution. The best basis for doing so in this case is to find the error of the government not to be prejudicial. The next case may not be disposed
For the foregoing reasons, I respectfully dissent.