*3 during years. those BOGGS, Before JONES and Circuit Hatchett claims that he consulted with GIBBONS,* Judges, Judge. and District Gettleson, attorney, an Frank on several BOGGS, Judge. Circuit occasions in 1979 and 1980 in order to ways handling consider different his tax appeals L. Elbert Hatchett his conviction problems. He claims that Gettleson ad- on four misdemeanor counts of willful fail- vised him to file returns that were then pay ure to federal income taxes for tax payment overdue but to withhold until he 1982, 1983, 1984, 1986, and in viola- negotiate was able to with the IRS a con- 20, tion of 26 U.S.C. 7203. On October § payment for all solidated schedule taxes. 1988, charged eight- Hatchett was in an timely filed a Hatchett thereafter return count indictment with one count of tax 14, 1980, year April for tax 1979 on but evasion, 7201; in violation of 26 U.S.C. § payment. accompanying without He filed collection, count of of tax one obstruction 14, year April 1980 on a late return for tax 7212(a); of 26 violation U.S.C. one § 1982, filed his day the same he 1981return. property subject count of concealment of in- Neither the 1980 nor 1981 return 7206(4); levy, in violation of 26 U.S.C. § payment. cluded pay and five counts of willful failure to month-long 26, 1980, income taxes. After a tri- Hatchett August wrote to On 1989, February al in and March Hatchett it that he to inform wished to make IRS or, acquitted felony alternatively, three lump-sum counts a settlement (failure pay per liability and one misdemeanor count month until his pay $1000 1985). guilty tax for returned a Hatchett claims that the liquidated. IRS counts, letter, respond verdict on the other four for which to his he did not but never- began sending monthly pay- sentenced Hatchett to three con- theless $1000 one-year making pay- sentences. Hatchett He these stopped secutive also ments. 21, when, 1981, suspended January one sentence and received was ments IRS placed years’ probation. property on five and sold certain real owned seized * Gibbons, Tennessee, sitting designation. The Honorable Julia Smith United Judge States District for the Western District of regarding Hatchett. March documents his assets. Gibson request an in-
again wrote to IRS to testified Hatchett told her at the June plan; he payment meeting he claims that pay stallment that “he and wanted he response. government, planned received no always his taxes.” Gibson however, a claims that Hatchett received also testified that her notes of June reply April informing written follow-up telephone with conversation $847,- that he a total of owed Hatchett indicated that she believed he was ($827,791.96 taxes, 780.46 in income inter- “making pay.” moves to est, $19,988.50 penalties, and busi- July On Hatchett met with Gib- taxes). ness requested by son to review the documents *4 government introduced evidence however, meeting, the summons. At this indictment, during period covered in the any Gibson never looked at of the doc- money earning of large Hatchett was sums uments provided. Hatchett At this meet- case that from his cases. He settled one ing, Gibson and a num- Hatchett discussed $900,000 legal in fees. resulted possible payment plans ber of that could converted government claims that Hatchett in discharging assist Hatchett his tax liabil- impossible it monies so to make these ity. meeting, having After this typically levy on them. He for the IRS to agreement reached an with Hatchett about exchanged his checks for a series of clients’ payment plan, began serving a Gibson checks; when the IRS levied on cashiers’ prepared. 300 levies she had See United accounts, it discovered that no his bank Var-Ken, Inc., (6th F.2d States satisfy were available to the levies. funds Cir.1989) (unpublished curiam) (revers- per money purchase goods He also used the summary judgment against a 1983, people’s names. In March in other government levy in an action to enforce a $28,447.12 paid a Hatchett cash for assertedly and foreclose on funds owned contemporane- for his son. He Porsche 911 Hatchett). ously spent large sums on the construction 1985, Throughout Hatchett made several training camp a for his son in of boxer payments totalling his tax toward debt 1983, Lake, Michigan. May In Otter $80,000. weekly He discontinued his $5000 $113,744.20 bought worth of car Hatchett 23, 1985, payments September on when equipment washing for a business called Royce. IRS seized his Rolls Wash, Sparkle which he held in the Car reported adjusted gross Hatchett income 1985, elderly father. In name of his $329,940 and a tax for 1982 of due of purchased Hatchett a foster care home return, $98,789. pay- He filed this without $100,000 name for cash. his wife’s ment, 7, 1984, nearly year one on March 1984, Agent April Internal Revenue late. Gibson, newly assigned to Christine adjusted gross reported Hatchett income case, reviewed his assets and a Hatchett’s $755,977 for 1983 of and a tax due of involved, cases in which he was list of court $336,799. return, He filed this without might any attorney’s that the IRS attach so 15, payment, year April a late on 1985. prepared then a list fees due him. Gibson reported adjusted gross Hatchett income 300 levies to be served on of over $307,410 counsel, a clients, for 1984 of and tax due of opposing and return, $132,145. He filed this without companies, directing any insurance 15, payment, April on 1985. paid to the to Hatchett be monies owed IRS. reported adjusted gross Hatchett income $400,788 11,1984, Agent met with for 1985 of and a tax due of Gibson
On June
return,
$158,360.
pre-
He filed this
without
discuss whether he was
Hatchett
15,
payment, April
an amend-
payment
make
on his taxes owed.
on
On
pared to
return,
adjusted gross
unwilling
reported
he
an
Hatchett was
to disclose
ed
When
information,
$571,437
of
and a tax due
Gibson served
income for 1985
any financial
return,
$244,183.
this
with a
produce
with a
all of
He filed
summons
payment
$100,000,
April
total
on
government that
allegedly
were
more un-
years late.
pleasant
two
than
juror’s.
the Black
One was
audited in
he
admitted to the
reported adjusted
gross income
court that he wasn’t “thrilled about paying
$445,535
for 1986 and a tax due of
taxes.” Another
[his]
had fallen behind in
$195,699. He
filed this return
April
his
taxes five
before the trial and had
year
one
late and
payment.
without
to make payments over a three-year or
eight assignments
Hatchett raises
of er-
four-year period. A third had been arrest-
ror:
concerning
one
pro-
selection
ed for
driving
drunken
in October 1985.
cess,
concerning
four
evidentiary rulings, One of the
jurors,
alternate
a white wom-
and three concerning
sentencing.
We
an, had been audited in January 1989, one
consider them in that order.
month before
began.
the trial
claims that the
reason the
did
II
excuse
jurors
these white
because did not want to risk impaneling
Hatchett’s first claim
a
govern-
is that the
replacement
Black
juror from the venire.
ment exercised
peremptory
its
challenges
during jury selection in racially
discrimi-
While the
waived each of its
*5
natory manner. We find no merit in this
peremptories
first four
against the remain-
claim.
ing jurors, the defense exercised each of its
peremptories
first four
to excuse a white
jury
The
consisted of three Blacks and
juror.
replaced
Each was
by a
juror.
white
whites.
nine
The record indicates that the
After
government
the
waived its fourth
jury venire
people.
consisted of 70
Fifty-
peremptory, the
requested
defense
a con-
white,
five identified
as
themselves
as
ference
presence
outside the
jurors.
Negro,
Black or
and
one
Asian. The
Hatchett, whom the
permitted
court had
to
prosecution
given
was
peremptory
six
chal-
participate
presentation
in the
case,
of his
while the
lenges,
had
defense
ten. Each
made
following
the
appeal to the court:
side had one additional peremptory chal-
impact
It seems the
of what the Govern-
lenge that could be
only against
exercised
doing,
ment is
although
perfect
she has a
an
juror.
alternate
The district court ruled
right
it,
to
negate
potential
do
is
our
of
party
if a
pass
that
chose to
on the exercise
having a certain
people
number of black
of
peremptory challenge,
a
per-
then that
on
jury
try
the
my
to
andme
wife. We
was lost.
emptory
are entitled to a
of people
fair selection
procedure
Hatchett claims that
the
us,
to
judgment
sit in
part
of
a
and
government
which the
exercised—or
parcel
group
people
would be a
of
who
peremptories
waived—its
racially
moti-
peculiar identity
have a
with me. The
discriminatory.
vated and
original
The
fact that the Government has chosen to.
panel
jury
drawn contained eleven whites
pass peremptorily
challenges
means
and one
government
Black. The
used its
prospect
that it
the
reduces
of it reduc-
peremptory
first
only
to strike the
Black
ing any
persons by
percent.
of those
juror.
juror
That
has a son who had been
The only peremptory she has offered has
criminally charged
1988;
in June
she also
challenge
been
disqualify
a
to
a black
recently
had
been
After
audited.
the
juror,
time she’s
that’s
exercised
government
juror,
excused
Black
she
her prerogative
summarily
to
remove a
replaced by
juror.
a
white
juror,
is
juror
that
You
black.
have held
government
The
then waived each of its
tightly
respect
us
to
many
with
how
chal-
peremptories against remaining
ju-
white
can
lenges we
have....
Court
[T]he
Hatchett claims
rors.
that the
mitigate
harm me
my
should
to
and
stronger
had
cause to excuse several of the
giving
us
challenges.
wife
more
We
jurors than it
white
did
excuse the
lone
people
ten black
left
have
on the jury
juror.
dire,
During
Black
voir
example,
for
panel and we have
except
none seated
an
out that
origi-
came
several
and,
eleven
judge,
alternate
going
we
are
jurors
nal white
had encounters with
any representatives
have
of the black
potential
solely
of their
jury
prosecution
jurors
if the
is
on account
race on this
persist
jurors
in her exercise of her
permitted
assumption
race or on the
that black
challeng-
peremptorily
prerogative
group
impartially
as a
will be unable
anybody.
against
consider the State’s case
a black
defendant.”4
have an in
government offered to
The
explain
hearing
the court to
camera
with
The
three ele-
Court enumerated
Batson
pro-
reasoning
its
selection
behind
prima
purposeful
ments of
a
facie case
objection.1 In
had no
cedure.
defense
First, the defendant must
discrimination.
chambers,
States at-
the assistant United
cognizable
show
that he is a member of
the court her reason
torney explained to
group
prosecutor
racial
has
and that
excusing
juror
the Black
and no other:
peremptory challenges
exercised
to remove
juror
recently
had
had an
only the Black
from
venire members of the defen-
court and been audit-
experience in criminal
Second,
race.
enti-
dant’s
the defendant is
jurors’ experiences were
ed. The other
rely
peremptory
“that
tled
fact
remote,
they
considerably
and thus
more
challenges
prac-
constitute a
selection
resentment
likely to harbor
were less
permits
discriminate who
tice
‘those to
The court was satisfied
against the IRS.
” Third,
of a mind to discriminate.’
are
prosecutor’s explanation, and found
by the
and
must show that “these facts
defendant
pro-
government’s juror selection
relevant
raise an
other
circumstances
tainted
racial discrimina-
cess was not
prosecutor
used that
inference
tion.
exclude the
from the
practice to
veniremen
process then contin-
jury selection
petit jury on account of their race.” 476
ued,
no oth-
exercised
(quoting Avery
at 1723
U.S. at
S.Ct.
challenges.2 After the de-
peremptory
*6
er
559, 562,
891,
Georgia, 345 U.S.
73 S.Ct.
v.
and sever-
peremptories
exercised its
fense
892-93,
(1953)).
L.Ed. 1244
Once the
97
cause,
for
jurors were excused
al other
case,
prima
a
facie
defendant has made out
impaneled and the
jurors were
additional
government
shifts to the
the burden
Blacks and
jury consisted of three
final
explanation
neutral
come forward with a
whites.3
nine
jurors.
Ibid.
challenging Black
for
fortuity
pure
argues that was
made out a
argues
Hatchett
that he has
impaneled on the
Blacks were
that three
and that
prima facie case of discrimination
does not
jury,
expla-
and that this end result
final
neutral
apparently
prosecutor’s
the
issue of the
moot the constitutional
render
nation is invalid.
discriminatory
allegedly
se-
government’s
prosecu
the
claims that
the
Hatchett claims that
process.
lection
juror
the Black
striking
tor’s reasons for
challenges vio-
peremptory
withholding similarly situ
equally applicable
were
right to be
amendment
lated his fourteenth
prosecu
the
thus
jurors,
ated
pro-
white
discriminatory jury selection
from
free
In such
pretextual.
explanation
tor’s
cedures,
Kentucky,
in Batson v.
as stated
explanation
case,
does
1712, 1719,
a
79, 89,
prosecutor’s
90
106 S.Ct.
476 U.S.
Morris,
v.
scrutiny. Garrett
(1986):
Equal Protection
not
“the
withstand
L.Ed.2d 69
Cir.),
(8th
de-
cert.
challenge
513-14
prosecutor
forbids
Clause
agreed
Blacks,
attorney so
of the in
and Hatchett’s
court announced the result
three
1. After the
however,
questioned
(The
whether
meeting,
defense did ob-
had
at
defense
camera
trial.
Asian-American,
holding
hearing
but she
ject
a
in camera.
juror
the court’s
or
one
was Black
jury question-
her
Black on
listed herself
naire.)
per-
government
its one available
did use
2. The
challenge
emptory
alternates to strike a
trial,
juror,
replaced
alternate
who
Black
the fourteenth
was a federal
4.Since
this
juror.
amendment,
appeals,
Asian
not
is
to which
Rather,
pursu-
be
Hatchett should
implicated.
amendment. See
under the fifth
claim
Although
that the
Hatchett claims in his brief
3.
Blacks,
Sangineto-Miranda,
F.2d
v.
859
all
United States
1501,
whites and two
consisted of ten
Cir.1988).
(6th
consisted of
1519
indications are
other
637
nied,
case,
In
jury pool
484 U.S.
108 S.Ct.
this
of 70 contained
(20%).
(1987).
14 Blacks
The final jury
L.Ed.2d 191
consisted
(25%
of three Blacks and nine whites
see
clear error in the court’s de-
We
no
Black).
that the circumstances of the
termination
Furthermore,
the district court credited
jurors
challenged
who
white
were
dif-
prosecutor's explanation
pat-
for her
fered from those of
two Blacks who
of striking
tern
or
striking
ju-
certain
juror
were excused.5
white
who
The Supreme
rors.
Court has ruled that
had been audited was audited
findings of no intentional discrimination
impor-
This remoteness of his audit was an
largely on
credibility,
turn
an evaluation of
juror
tant distinction. Another white
had
which we as a reviewing court should ac-
payments
fallen behind in his tax
five
great
Batson,
cord
deference.
at
U.S.
earlier, but there was no evidence that he
n.
We hold court did not substance refusing jury by abuse its discretion in other means. Al- to admit tleson before proffered testimony govern- Gettleson’s court sustained the regarding though the objection question asking Hatchett’s disclosures to him. The district to the ment’s government’s Upon objection, already A had codefendant related the asserted. initially disclosed, testimony counsel conceded that lawyer’s recounting and the matters trying hearsay. she was to elicit would be prove was needed to their of the disclosures contrast, By jury in this case would truth. argument collapses weight 8. This under the accept been induced to the truth of the have however, logic, its own Gettleson, because the fact that disclosed Hatchett when Gettleson matters Hatchett, get- was the vehicle for testified to them. ting jury the statements before the is what dis- Eisenstein, tinguishes Eisenstein. 15, 1989, panel lawyer's testimony June of this court admitted the 9.On because it was pending appeal. prove denying not offered to the truth of the matter versed the order bond him, directly jury). what Hatchett told from the simply Gettleson nevertheless testified to several in argued, closing Gettleson its initial and in its rebut- disclosures Hatchett: closing, tal that the advice of counsel de- pay ap- protect the tax fense should not prospec- —Hatchett“tried Hatchett parently opposition met with some in tively, because explicitly Gettleson never regard;” that pay advised Hatchett not to taxes from pay argued 1981 to 1986. in —“he couldn’t all at one time and turn in a fair money closing it was amount of at that that did have to “[Gettleson not] going try and he ’81,’82, time was and make ’83, tell in already me not to he orderly payments;” some I told me that when sat down and talked to “probably point jury —Hatchett owed one hundred him.” At no was the misled thousand, seventy-five to two hundred either as to the elements of an advice of area;” something in that or as quantum counsel defense to the proof necessary to find in —“I “willfulness” knew he had been audited incessant- time;” pay. ly prior Hatchett’s failure to Under cir- to that these cumstances, we find no abuse of discretion payments, —“I he knew he had made preventing testifying Gettleson from di- payments along some had made rectly as to the truth of Hatchett’s disclo- way;” sures. —“he concerned if there would be ramifications,
any other such as criminal ramifications, may befall him.” B examination, admit- On cross Gettleson Hatchett next contends that the dis ted that: trict preclud court abused its discretion exactly —he did not know when ing attorney explaining Gettleson from payment pro- had been on an installment legal authority gave for the advice he gram; government objected Hatchett. —he did not know that the installment proffered testimony ground that the payment program stopped at the end testifying jury witness would to the be bouncing of 1978 because Hatchett was legal about issues. The court limited Get checks; testimony tleson’s to statements about the —he did not know that Hatchett had general legal authority on which he relied payments failed to make estimated tax Hatchett, advising going “without into year; for the 1979 tax any specifics.” —they really “didn’t discuss” whether Hatchett would make current estimated testimony asserts 1980; payments in tax proved that conduct- would have Gettleson told him whether the —Hatchett never specific with- ed research on the issue of Hatchett, a condi- required had IRS good holding payment from the IRS payment program, tion of the installment faith. If have shown the Hatchett could with his estimated tax to remain current legal principles underlying payments. upon advice which he relied were well es- law, for the testimony This was sufficient tablished in the case he claims that he *9 made a to determine whether Hatchett had of could have made out his advice counsel pertinent all Moreover, full disclosure to Gettleson of insists that defense. facts. testimony have in- Gettleson’s would not province the vaded the court’s to instruct Furthermore, nothing closing in ar- said applicable jury on the law. Gettleson’s jury as to guments could have confused the proffered testimony allegedly only on bore advice of counsel defense. Hatchett’s advising competence correctly his government did not claim that law, on the while the court no Hatchett defense must fail because there was authority on to instruct (proof, Hatchett tained the ultimate proof of full disclosure argue, impermissibly kept the law. would that was examination, in limiting
We find no abuse of discretion to his taxes. On cross testimony permitted Gettleson’s to statements about the district court authority general legal attempt impeach credibility by on which his to Smith’s Testimony specif- questioning about the whether he himself had filed advice rested. legal any research income tax returns for tax 1981- ic results of was Gettleson’s responded Before the 1986. Smith that he had not properly excluded. any filed testify such returns. objected, was able that: Gettleson back at that time and I research did some objected The defense cross exami- to this did, in the research that I I was confident ground nation on the of relevance. The upon statute and based upon based prosecution argued questioning that that I found as a result of the case law was relevant because it concerned the wit- research, position that he had ness’s bias. There had been extensive tes- position taken was a sound and told timony partnership’s dealings about I part him as much. And based it in on IRS, questioning with this line of the case of— designed partners’ to illuminate the general cooperate failure to with the IRS. government’s The court then sustained the persuaded prosecu- The court was objection further statements permitted pursue tion should be this legal argument in front of would constitute questioning, especially on cross examina- not, however, jury. pre- The court did tion. proving vent Hatchett from that Gettleson give him competent sound advice. Mr. Smith’s cross examination was then merely
The court restricted the means day. continued to the next That next present argu- which Hatchett could morning, jury before the entered the court- ment, so as to limit confusion. room, the court entertained the defense’s Curtis, previous motion for a mistrial based on the United States (6th Cir.1986), day’s we noted that witnesses cross examination of Al- Smith. had, testify though law previous day, “do not about the on the legal knowledge pre- judge’s special objected prosecution’s ques- is to the line of sufficient, judge’s tioning only sumed and it is the to be basis of Fed.R.Evid. 609 duty (Impeachment by to inform the about the law that Evidence of of Conviction Crime), support is relevant to their deliberations.” This the memorandum in necessary prevent potential primarily rule motion for a is mistrial rested (Evidence if the confusion that can arise law as Fed.R.Evid. 608 of Character and Witness). 608(b) presented by the witness conflicts with the Conduct of Rule states in pertinent part: as instructed the court. Id. at 600. law rule, the soundness of this the dis- Given Specific instances of the conduct of a trict court did not its discretion abuse witness, purpose attacking for the or excluding specific references to case law supporting credibility, the witness’ other presented under the circumstances here. provided than conviction crime as 609, may proved by
rule not be extrinsic C however, They may, evidence. in the court, probative discretion of if complains Hatchett also about the untruthfulness, truthfulness or in- be government’s cross examination of one of quired into on cross-examination of the Smith, partners, Hatchett’s law Marvin (1) concerning witness the witness’ char- Hatchett, an associate in De who became untruthfulness, truthfulness or acter for walt, Hatchett, Mitchell, Morgan Hall in & (2) concerning or the character for truth- Hatchett, Dewalt, partner 1981 and fulness or untruthfulness of another wit- (of Hall which Hatchett is man Hatchett & ness as to the witness which character aging partner) in at trial as testified *10 being testified. cross-examined has partnership. to the nature of the law He impeachment only further testified about Hatchett’s efforts to Rule 609 allows for partnership felony in through obtain loans from the order evidence of a conviction.
641
argues
Hatchett
that
ap-
ly probative
Rule 609 did not
of
credibility.
his
Smith,
ply
inapposite
to
and Rule 608 was
disagree
does not
government’s
that
timely
because Smith’s failure to file
cross examination of Smith was intended to
turns did not relate to his character for
bias;
merely
show
he
contends that evi
Thus,
truthfulness
or untruthfulness.
dence of bias is not an
credibility.
attack on
contends,
cross
examination However,
showing
a
designed
bias is
based on
pay
Smith’s failure to file or to
attack
See,
a
credibility.
witness’s
e.g.,
his taxes was inadmissible to attack his
Alaska,
308,
Davis v.
415 U.S.
94 S.Ct.
credibility.
requested
The defense
if
that
1105, 1110,
(1974)(“A
The court ruled:
prejudices, or ulterior motives of the wit
ness”). This
going
give
I’m
rule is sound
evi
them an
instruction
dence of
jurors
bias allows
only purpose
appro
that
to draw
is to attack his
priate
credibility
reliability
inferences about the
problem
and that his tax
or his
pay
Smith,
failure
witness.
taxes is not an issue in this
See United
States
(6th Cir.1987)
I’m
F.2d
granting
(quoting
case.
not
a
motion for mis-
Dela
Arsdall,
673, 680,
trial.
ware v. Van
475 U.S.
1431, 1436,
(1986)
106 S.Ct.
not relevant to Smith’s character for truth- or fulness untruthfulness. Hatchett claims Hatchett’s next claim is that court, in finding had Smith “a district court its discretion ex abused untruthful,” merely motive to be found cluding videotaped seg from evidence a advantageous that it would have been to ment from a “60 Minutes” television broad testimony; give Smith to false cast that focused on collection tech not, not, did find that could Smith had niques During of a local office. IRS reputation being a untruthful. agent cross examination of IRS Robert specific filing pro- acts of tax returns Bednarczyk, attempted to show lie, vided Smith motive to but did not videotape order to convince the light shed on his character for truthful- agents oppressive that IRS used collection ness. Hatchet insists that failure to file government objected tactics. The on rele pay tax returns and taxes is unrelated to grounds, noting vance that the television character for truthfulness or untruthful- show made ref was broadcast 1981 and ness. evidence, erence and on to matters not agree hearsay grounds. We with the district court The court ordered de failure to taxes proceed topic Smith’s was clear- fense counsel to to another *11 examination until the court had viewed the lay only IRS. This basis in videotape; the tape ruled on its admissibility. Two its truthfulness would have to have been later, days ruling issued a deny- by assumed the in order for Hatchett’s request to show the video- proffered explanation to have had va- tape. Furthermore, lidity. way there was no for government the tape to detect whether the The court found tape was “clas- altered, had been and the hearsay.” sic It did not “know how the challenge would have been unable to possibly Government can cross-examine accuracy of the broadcast. Under these anything on this film. In addition ... [t]he circumstances, the court did not abuse its incidents in this case involve actions subse- excluding discretion in this evidence. quent to I hearsay 1981. find it first of all and, all, second of not relevant.” IV ruling
Hatchett claims that the court’s deprived right effectively him of his to A cross examine a He witness. Hatchett contends that the court tape contends that hearsay was not 32(c)(3)(D) violated by Fed.R.Crim.P. because it was not offered for the truth of adequately addressing allegation his that contents, its but to test the witness’s presentence report contained a factual conclusion that Hatchett’s failure to file a inaccuracy. argues He that the court nei joint return him for and his wife was un- finding ther made a as to the truth of the usual. Hatchett intended to show that it allegation, required by as Rule would have person been reasonable for a 32(c)(3)(D)(i),nor made a determination that forego the joint financial benefits of a re- finding no such necessary was because the (as returns) turn compared separate in matter would not be taken into account in exchange security reputedly from the sentencing, required Rule unreasonable actions of the local IRS divi- 32(c)(3)(D)(ii). Hatchett insists that disputes sion. Hatchett finding also court’s failure comply strictly with the tape Although was irrelevant. requires rule us to remand for resentenc tape procedures referred to IRS collection ing. government’s expert was able testify on direct examination about tax alleged presentence The error broadcast, by port 1979-1982. The 1981 relates to the applicability parole comparison, guidelines. (Hatchett was not too remote to be rele- was not sentenced vant. Guidelines, under the Sentencing since the court determined activity that the criminal again We find that the court did not charged in the indictment completed was abuse its making discretion this eviden- before the guidelines.) effective date of the tiary ruling. Despite Hatchett’s assertion probation estimated, officer according that he did videotape not intend to offer the to the Parole guidelines, Commission’s contents, for the truth of its there were no amount of time that Hatchett would serve other facts in evidence judge which to prison being parole. before released on independent its truthfulness. No evidence parole guidelines Hatchett claims that the prove had been admitted to the truth of the computation inaccurate, and that the allegations made in seg- the “60 Minutes” court relied on this presentence erroneous examining govern- ment. cross report.10 opinion ment’s witness on his filing joint Hatchett’s not return parole part calculations are not a unusual, Hatchett needed a basis for imposed by the sentence the court. Parole explanation attempting that he was determination, to release is an administrative alleged pressure separate avoid the tactics imposition from the of a term of actually oppor- preside The court stated: ‘Tve had an oppor- over this case and I've had an file, tunity opportuni- to review this I’ve had an tunity presentence report....” to review the notes, ty my opportunity to review I've had an
643
Furthermore,
imprisonment.
parole
the
was evidence of
expenditures
Hatchett’s
on
guideline worksheet
such luxury
states
it is an
items as furs and automobiles
effect,
estimate and that it
binding
has no
as late as 1987. There was evidence of
judge
either on the
substantial
sentencing
legal
or on the
by
fees earned
Hatchett
Parole
as late as
Commission. The district court ade-
December 1987. Hatchett claims
that if
quately responded
jury
the
argument
to Hatchett’s
found that his willful act of
non-payment
sentencing hearing:
at
beyond
1,
the
extended
November
1987, then the
court erred
not sentenc-
you
THE COURT: What
asking
are
me
ing him under the guidelines.
guidelines?
to do with the
They’re the
guidelines
parole commission,
of the
not We note that United States v. Sams
this Court.
support
does not
proposition
the
However,
suggests.
they
[DEFENSE
COUNSEL]:
issue
Sams was not
part
been made a
probation
have
whether the crime
completed
had been
be-
report.
1,
officer’s
they
We believe
fore
guidelines
are
November
1987 for
pur-
poses,
inappropriate
they
because
but
apply
do not
rather whether the crime had
extended
to misdemeanor
into the
prosecution
offenses. We would ask
time
disregard
statutorily permitted.
completely
Sams,
the Court to
In
the
we con-
parole guidelines
cluded that the
failure to
jury
assessment
we
instruct the
specify
they
believe
the date on
apply.
don’t
which the defen-
dant’s
failure to
his taxes became will-
Okay.
THE COURT:
error,
ful
plain
was not
jury
since the
could
agreed
The court
disregard
it would
the
have
every
concluded that
element of the
information.
process
contested
No due
vio-
crime occurred
prosecution
within the time
resulted,
ignored
lation
since the court
the
permitted.
during
period
probation.
argues
He
payment
tion on
taxes, interest,
of “all
this condition demands restitution
penalties
presently owed to the Inter-
*13
based on counts in the indictment of which nal
proper,
Revenue Service” is
but vacat-
acquitted.
he was
probation
the order that
be further
conditioned on reimbursing
per-
Hatchett notes that 18 U.S.C. 3651
§
expenses
for the
investigating
of
the of-
mits a court to order restitution as a condi-
fense).
probation,
only
tion of
but
for those counts
on which a defendant has been convicted.
Contrary
contention,
to Hatchett’s
Hatchett was convicted
on the misde- district court’s order
was
one for resti-
pay
meanor counts of failure to
taxes
Therefore,
tution under 18 U.S.C. 3651.
§
1982, 1983, 1984,
acquit-
and 1986. He was
conditioning probation
payment
on the
ted on the tax evasion counts and for fail-
“all
taxes”
back
was not an abuse of dis-
pay
ure to
taxes for 1985. Hatchett ar-
Taylor,
cretion. As in
the court could
gues that the court was limited
ordering
properly require “payment of those taxes
restitution for amounts included in the four
reported ... since
liability
such
is admit-
misdemeanor counts on which he was con-
ted.”
Id. at 187.
In addition to those
victed. He therefore demands resentenc-
by
taxes “shown
the defendant’s returns to
ing.
due,”
may
be
probation
condition
payment
by
of those taxes found
findWe
no abuse of discretion in the
jury to
willfully
paid.
have been
Id. at
district court’s order. The district court
Nothing
probation
in the
conditions
did no more than insist that Hatchett com-
interpreted
prevent
should be
ply with the law as a
proba-
condition of
contesting,
good faith,
from
any pro-
tion.
interpreted
The order should be
as
posed assessment.
being
obligations
limited to
that either have
gone
judgment
or are
legally
otherwise
reasons,
foregoing
For the
the conviction
owed. The order cannot be taken to re-
is AFFIRMED.
quire
payment
of tax debts that are
legitimately
JONES,
in contest.
NATHANIEL R.
Circuit
Judge, dissenting
111(A)
from Parts
The order need not be limited to
IV(C).
years
amounts owed for the
for which
payment
was convicted. The
I.
tax
debts for other
that have been
III(A)
In Part
opinion majority
of its
judgment
reduced to
or are due under 26
holds that
evidence offered
Frank Get-
appropriate
U.S.C. 6151 is an
condition of
§
tleson,
attorney,
Hatchett’s former tax
probation,
represent
since such debts
defi
disclosures made
Hatchett when he
legal obligations.11
nite
See United States
sought legal advice for his tax difficulties
(4th Cir.),
Taylor,
v.
305 F.2d
188
cert.
properly
hearsay.
excluded as
As this
denied,
371 U.S.
83 S.Ct.
9
testimony
establishing
was vital for
(1962) (the
may
L.Ed.2d 126
require,
court
essential disclosure element of Hatchett’s
probation,
payment
“as a condition of
advice of
defense and the
counsel
trial
penalties lawfully
of all taxes and
deter
judge’s improper exclusion of this evidence
collectible”).
mined to be due and
See also
proof
made
advice of counsel de-
McMichael,
United
v.
States
difficult,
substantially
fense
more
I would
(4th Cir.1983)(the
may
195
court
order the
reverse and remand.
repay
defendant to
taxes “whenever the
legally determined”);
amount ...
is
United
contends that
testimony
(4th
Vaughn,
truth,
States v.
made out his advice of counsel defense has bearing propriety on the of the trial no disagree analysis with the court’s I also judge’s ruling on the admission of Gettle- IV(C) opinion. in Part of its and conclusions testimony. appropriate proce- son’s The section, majority holds that the In that judge dure would have been for the trial did not its discretion when court abuse trial testimony give proper admit the limit- payment Hatchett’s of “all back it made they at of trial if instructions the close (not only those owed on indictments taxes” appropriate. seemed convicted), he was a condition for for which majority rea- majority place great weight probation. The The seems legitimate it was for the trial testify on the fact that Hatchett did not sons that judge and therefore to include in his conditions the matters disclosed assert pay that Hatchett majority suggests probation their truth. The that if Hatchett’s testified, those counts for which put Hatchett had or on other evi- back taxes even on acquitted rep- he was because these debts Bruchey, United States v. legal obligations.”
resented “definite (4th Cir.1987). Applying reasoning this interpreting the Victim and Witness Pro- majority’s reasoning here seems to Act, tection 18 U.S.C. 3579 and §§ faulty. The me to be fact that defendant Bruchey court reversed the district court’s outstanding legal obligations has unrelated conditioning year probation defendant’s 5 to those offenses for which he was convict- signing promissory payment note for ed should have no bearing on defendant’s of restitution of embezzled funds over a 21 probation relating to his convictions. For year period. While the Victim Act is not at example, it certainly would appropri- not be here, issue apposite: the rationale seems ate for the trial court probation to condition may not order restitution which from a criminal offense on the defendant’s probation. exceeds the term of While the paying his rent or his credit card debts. district court in the case at bar made no absurdity danger and inherent of al- findings ability as to Hatchett’s lowing probation trial to condition courts ordered, “restitution” appear giv- it would payment of debts unrelated to a *15 en Hatchett’s tenuous financial circum- merely defendant’s convictions prior payment arrange- stances and the they represent legal obligations” “definite negotiated ments he with the Internal Rev- seems clear. Service, enue pay that the court’s order to Green, In United States v. “all payments back taxes” will involve be- (9th Cir.1984), the district court Thus, yond year probation. the 5 in addi- years probation sentenced Green to three exceeding tion to authority by its condition- years for failure to file returns for the ing probation payment 1975-77, pay on the condition that Green convictions, debts unrelated to the the dis- owing. all back taxes due and The Ninth authority by trict court exceeded its order- Circuit ruled that the district court had ing restitution which will in all likelihood that, overreached authority stating its “In beyond probation period. extend cases, may criminal tax the court order only years restitution of back taxes for the recognize I has an agree involved in the I recovering conviction.” Id. may interest back taxes but with the Ninth Circuit’s conclusion and tacking not do so on debts unrelated to would reverse this case as the district criminal defendant’s conviction mak- only authority court had the to order resti- payment probation their a condition of tution for the tax in which Hatchett for offenses for which the defendant was was convicted of a tax crime. convicted. A defendant’s sentence must only relate to the crimes for which he was Such a rule makes sense not out of By allowing convicted. defendant, basic fairness to the but also payment acquitted include for offenses in a because an order to “all back taxes” ones, sentence for convicted the court to- may place obligation an on the defendant day principle. unsettles this time-honored probation term which exceeds the of the jurisdiction and hence the court’s over
case. III. ‘Normal’ criminal restitution remains foregoing For the respectfully reasons I equitable power judge within the dissent. it; modify who orders he can his order
(or probation at least refuse to revoke if comply)
for failure to the circum- change.
stances of the defendant When purports particular to order a payment extending beyond
schedule of period jurisdiction, of the court’s
however, opportunity equitable
adjustment ceases.