*1 America, STATES UNITED Plaintiff-Appellee,
Floyd BURKHART, Defendant- E. Appellant.
No. 74-1269. Appeals, States Court Circuit. Sixth
Argued June 1974. Aug.
Decided
pellee; Coleman, Frederick M. S.U. Atty., Bauer, Robert R. First Asst. S.U. Atty., Cleveland, Ohio, Cramp- P. Scott ton, Atty. Gen., Justice, Dept, Asst. of Washington, C.,D. on briefs. PHILLIPS, Judge,
Before Chief and CELEBREZZE PECK, and Circuit Judges. Judge.
CELEBREZZE, Circuit Floyd Appellant E. Burkhart in- April dieted on five on counts wilfully undеrstating knowingly years income tax for due through 1970, in violation 26of U.S.C. § 7201. A found him not on II, V, I, counts III and but convicted IV, pertaining him on count to 1969. appeal This ais direct from his convic- days’ imprison- tion and sentence of ten ment and fine. $3500 The Government introduced items operation unreported income from the Bucyrus, farm Ev- Ohio. Appellant idence showed that for 1969 reported $8,868.- had taxable income of reported had but not other taxаble $32,261.21, resulting income of in an $12,222.31. omitted tax due of There Appellant was evidence that knew at the time he filed correctly in- his 1969 return that it income,
stated his and there was sufficient evidence for the infer that the understatement had been wilful.
Appellant objections makes four on appeal.
First, Appellant claims that in order prove its case the Government must only Appellant not establish re- unreported ceived certain items in- Appellant actually come also but re- сeived report. Appellant’s argument the amount income that he did
is that
corroborating
receipt
not
of income
reported
return,
in his 1969
the Govern-
prove
Appellant
ment failed to
ac-
tually received a .substantial amount of
Kennedy Lynch, Cleveland, Ohio,
John
subsidy
farm
Appellant
income which
defendant-appellant.
reported on his 1969 return.
If farm
Friedland,
J.
subsidy
Edward
Asst. U.
S.
income was
rather
$0
Cleveland,
Atty.,
Ohio,
plaintiff-ap-
rеported, Appellant
than the amount
credibility
defense,
his
on the
unreported
would not
argues,
income
closing argument
prosecutor
report-
substantially
the amount
exceed
joint
to disbelieve
asked
еd,
no understate-
would be
so that
there
defense, partly
basis
venture
ment of income.
his wife to tes-
had
called
superficially
object
tify. Appellant
to this
did not
genious argument
the rule re
*3
confuses
statement.
extra
quiring
of certain
corroboration
recently outlined
This circuit
judicial
with
Govern
admissions1
allowing
prosecu
requirements
a
in a tax evasion case.
ment’s burden
failure
tor to
a defendant’s
comment
prove а substan
Government must
The
produce certain
In
witnesses.
United
In
of income.
so
tial understatement
Blakemore,
193,
F.2d
195
v.
489
States
may
doing,
taxpayer’s report
it
take the
1973),
(6th
prosecu
that
held
Cir.
we
amount earned
ed income as an admitted
produce a
torial
on failure to
comment
designated
If it can then
sources.
from
only
proper
where the
was
wit
witness
that
considerable
additional
show
peculiarly
the defendant’s
within
nеss
reported,
received but
amounts were
testimony
and the witness’
would
control
prima
it has
a
case
established
facie
question.
in
elucidate
transaction
United
substantial
understatement.
Cf.
here,
Both conditions are satisfied
be
336,
Campbell,
F.2d
339
v.
351
States
Appellant
cause
in
was
control
his
1965),
denied,
(2d
cert.
383
Cir.
U.S.
testimony
wife’s
and because her testi
884,
L.Ed.2d
907, 86
15
662
S.Ct.
mony
have elucidated the transac
would
Shavin,
(1966);
v.
320
States
United
Appel
tions
were
which
thе basis
(7th Cir.),
denied,
308,
F.2d
311
cert.
“joint
lant’s
venture” defense. Further
349,
944, 84
11 L.Ed.2d
375 U.S.
S.Ct.
more,
injected
Appellant
in this case
his
Doyle,
(1963); United States v.
234
273
testimony
dispute. He
into the
wife’s
.
788,
(7th Cir.),
denied,
cert.
F.2d
794
challenged
testimony
of two Govern
893,
132,
996
Third, argues determining Appellant de- sue when a рroof liability venue, eva- there was no essential fendant’s criminal tax Appellant of the case. But element sion. object until failed to to venue after Appellant argues jury’s ques- completed. casе been Government’s had Ap- it tion demonstrated that believed objection thereby The was waived. unwilling pellant was innocent but was Co., United States v. Fabric Garment Appellant if him it meant that (2d 1958), de F.2d cert. 262 631 Cir. liability. would way his tax Another nied, 1117, L. 3 U.S. 79 S.Ct. jury’s question, how- view (1959). Furthermore, Ed.2d venue ever, is that the believed may proved circumstantially, and be willing charged was as but was ' there was circumstantial evi sufficient he him if it was excuse assured that dence show 1969 tax return pay would have to his back taxes. prepared been had the Northern Dis Judge Thus, the District *4 Ohio, proper of a trict for venue. basis problem avoiding prej faced with the of Court, v. United States U. S. District jury udice out of cоncerns (6th 1954). 209 F.2d Cir. 575 proper which were finding extraneous a Appellant’s objection fourth relates guilt not or and innocence judge a and communication between encouraging jury acquit Appel the jury. deliberating After for an about similarly for lant irrelevant reasons. half, jury hour and a sent the a written stating rigid rule,2 a Without we believe Judge, stating, note to “If the District Judge proper the that District chose the guilty, vote is not the does defendant in course this case. Rather than advis pay penalties?” have to his taxes and ing jury legal the an about the effect of Judge The District conferred with coun- acquittal Appellant’s liability, he on civil initially sel and detеrmined that he jurors liability told the that civil guilty would answer that a not verdict in back taxes not an the crimi was issue would have no effect on civil jury case nal and that the should follow penal- back liabilities for taxes and сivil determining Appel in his instructions objected, arguing The ties. Government guilt. lant’s or innocence cannot We this not an in was issue the case. response. find in error this agreed The District Court and wrote By advising jury acquit- not the response: this “The in case issues this obliga- tal’s effect on tions, civil jury by considered and be decided the re-emphasized the District Court been forth in the in- have set Court’s jury’s obligation uphold the their oath you question structions. The hаve determining —to follow the law in inno- is raised not in issue in this case.” guilt. jury properly cence or The ignore everything told to but the facts agree legal Both on re sides the presented legal charge and their ar- in lаtionship civil tax between and criminal riving at a verdict. Mr. As Justice
proceedings.
in
A not
verdict
a
Horning
Holmes
wrote
v.
District
criminal case has no effect on the Gov
Columbia,
138,
135,
254 U.S.
41
ability
S.Ct.
ernment’s
to collect back taxеs
54,
53,
(1920):
997 ground. prejudiced “A mere sus- upon of facts such a or that state this law is ” jury picion has not may . . . . . be found. . followed court’s instructions is system justice, judge jury In our reversal], since that sufficient [for though jury law, must state too vulnerable would make the verdict compro- indulge vagary free to litigatiоn.” prolong needlessly and would once the case is sent mise Moore, Federal Practice 59-140 6A J. Dotterweich, v. room. States United may (1974). verdict “That 134, 277, 279, L.Ed. 88 64 S.Ct. 320 U.S. compromise, result or been the (1943); States, 284 Dunn v. United 48 part jury, possi- оf the mistake on 390, 394, 189, L.Ed. 356 52 76 U.S. S.Ct. upset But verdicts cannot be ble. Although (1932). stands as speculation inquiry into mat- or such against it deems un- laws which bulwark States, ters.” Dunn v. 284 U.S. harsh, just excessively United States or 191, 390, 394, 189, 52 S.Ct. 76 356 L.Ed. Quarles, U.S. Toth 350 ex rel. (1955); 18-19, L.Ed. 8 76 S.Ct. 100 145, 155, Louisiana, U.S. Duncan v. judgment The of the District Court is 20 L.Ed.2d 88 S.Ct. affirmed. judge’s place (1965),3 to ad- it is not possible collateral of the vise (concurring). PECK, Judge Circuit decision, information effects of their legal nothing do with the that has agreement with the dis- I am in entire *5 ap- they swоrn to standards which position in the of the first three issues ply- majority opinion, but have reservations concerning considera In the circum- to a final the fourth. come We Judge’s though preferable District I feel that the сourse Even stances tion. judge even to for the trial were correct would have been instructions response though prosecutor judge nor a direct neither have made impermissible jury’s question, jected into but concur on element necessary case, ground if of dis- it not an abuse a new trial would be that was It to do so. verdict for him to decline were convinced cretion we groundless colloquy fear between the dirеct result unfortunate tax obli in the did not occur would court and counsel gations jury Reporter him that' presence found unless Court significant guilty. indica is therefore There is no record thereof a verbatim Appellаnt’s conviction rests on for review. tion that not available 1875) ; present “jury (the Jury (2d 3. The nullification” ed. Kun- law of Trial 217-20 jury’s acquit “Jury power stler, Cas- to a defendant out of Nullification Conscience clearly Note, (1949) ; apрly es,” “To- law evi- refusal to facts L. 10 Va.J.Int’l dencing violation) Principles Jury Equity,” L. 83 Yale a criminal seems ward jury require permit judge tell or J. 1023 Judge’s right ignore approval as re- the law it has the of the District Our attorney charged spоnse standards a defense current but to allow in line with the judge leeway persuading nullification, some under which apply mercy attempts persuade or obedience of considerations out “Jury Scheflin, charges, higher legal exclusion Nullifi- law. he See standards Right Say No,” beyond standards. cation : The So.Cal.L. those of concerns History (1972) ; Forsyth, Rev. 168 W.