*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 understating 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 taxable $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- ceived 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- reported, 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 ed, 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 a 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 ness 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 the 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, 1 L.Ed.2d 87 352 U.S. 77 S.Ct. asking by ment whether his witnesses Bender, (1956); 218 States v. United made wife had statements them which denied, 869, (7th Cir.), cert. F.2d 872 Yet, claims. he would undermine their 920, 660, 75 S.Ct. 99 L.Ed. 1253 349 U.S. call his to the stand to failed to wife (1955); States, v. United Schuermann verify he she had told the what claimed (8th denied, Cir.), F.2d cert. 174 397 Thus, Appellant attempted to witnesses. 505, 69, 70 S.Ct. 94 L.Ed. 831, 338 U.S. implicit support use wife’s as his silence denied, 156, 881, reh. S.Ct. 338 U.S. 70 statements, for her since would 94 L.Ed. The Government 541 testimony sup that her would assume receipt need not corroborate of in implicit port Appellant, refuta and as Appellant reported come which on his In tion the Government’s witnesses. 1969 return. permit circumstance, we must such a Second, argues contrary Appellant argue that he was Government deprived pros- Appellant’s fair trial because failure to call ference that ecutor commented on her tes failure his to the stand meant that wife damaged Appellant timony to call him. his wife stand. would Cf. argued States, F.2d had that some farm income had v. Himmelfarb United 175 operat- 1949). Any unreported 924, (9th he marital been because was 951 Cir. ing joint may privilege was venture with his have existed farm parents, Appellant were entitled to the unre- introduced who when waived during ported was income. wife cross-examina- statements wife’s bearing privy , conversations witnesses. essential tion of the Government States, 147, required In cases corrobo- Smith was net worth v. United 348 U.S. 75 (1954), made rate statements 99 L.Ed. 192 oral written S.Ct. relating Calderon, essential elements 75 the defendants States 348 U.S. S.Ct. against (1954), 99 them. L.Ed. 202 the Government the cases

996

Third, argues determining Appellant de- sue when a proof 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. case 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 concerns (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 determined 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 civil 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 have 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 lationship 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 taxes 54, 53, (1920): 65 L.Ed. 185 penalties Helvering and in a civil case. 630, Mitchell, 391, v. 303 U.S. 58 bring S.Ct. jury power has the “[T]he (1938); 82 S.Ct. 917 Heindel v. United a verdict in the teeth of both and law States, 1945). (6th 150 F.2d 493 Cir. judge always facts. But the the has liability right civil The matter of not an is- duty is to tell them the what If, jury instance, said, “We believe. their verdict would no have effect guilty, him ability Defendant X is not but we want Government’s to collect Defendant pay him, his back taxes. If we X’s back taxes. obligations ?,” will he trial cautionary might A standard be statement judge virtually purge any obligations would be forced that ject civil sub- would be the prejudice by telling jury trial of separate proceeding. of a

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 litigation.” 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- of 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 sworn 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 course 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 direct 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 Appellant’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) ; apply 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 sponse 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.