*3 required currency transaction reports, Before WELLFORD, MERRITT and Cir- checks, Hook cashed sometimes made out Judges, cuit and CELEBREZZE, Senior to fictitious payees, totalling excess of Judge. Circuit million through $1.2 a neighborhood gro- cery, Market, Linden neighborhood and a CELEBREZZE, Senior Judge. Circuit branch bank. Throughout cov- Defendant-appellant Frank L. Hook ap- indictment, ered Hook used credit peals from his convictions of two counts of cards in the names of purchase to others feloniously attempting to pay- evade the oil, heating rentals, obtain car and make taxes, ment of income in violation of personal I.R.C. expenditures, and used automo- and four willfully § counts of biles titled in persons’ other names. Final- failing to pay income taxes, ly, Hook employed contraven- cash to every- tion of thing I.R.C. appeal, legal On from fees to pools. § swimming Hook felony contends that the convictions timely filed and accurate tax re- must be set aside charged because was turns with the IRS for the through under wrong statute, that his convic- years 1980 tax showing a total almost relating tions to the 1975 and 1976 tax $300,000 due, paid only taxes but a few years are by the barred limita- thousand dollars satisfaction of this lia- tions, that presented the evidence at trial bility. Although repeated the IRS made support insufficient to con- demands and attached liens prop- Hook’s victions, trial court erred in erty, the generally Government was unsuc- admitting prejudicial evidence per- and in cessful in locating belonging assets mitting his ex-wife to testify to acts which Hook. The subsequently Government ob- occurred during their marriage. After tained against an indictment Hook on No- carefully reviewing issue, each we affirm. vember I charged 1983. Count Frank
H69
Hook,
through
Hook,
Nancy
and the
the concealment of assets can
his ex-wife
if the
conspir-
prosecuted under Section 7201
Market
be
of Linden
proprietor
a fraudulent
return or
taxpayer also files
income taxes
payment
ing to evade
attempts
conceal the
otherwise
existence
through
Counts
years
income.
but-
or amount
taxable
Nancy
charged Frank and
through VII
II
by pointing
tresses this assertion
out that
pay-
to evade the
attempting
Hook with
7206(4) explicitly refers to conceal-
Section
the tax
for each of
income taxes
ment of
by arguing
interpretation
ment and
that an
1980, in
violation
years
of Section 7201 to cover concealment would
Section
implicitly
irrational conduct
attribute
co-defendants were sev-
Frank
7206(4)
amending
Congress in
Section
pro-
Government
before trial
ered
activity
criminalize
lengthy
him. After a
solely against
ceeded
already
provided for in
would have
been
the con-
trial,
acquitted on
Hook was
disagree.
Section 7201. We
count,
III
convicted under counts
spiracy
*4
Initially,
argument
attempting to evade
feloniously
and VI of
concealing assets is not included
sole act of
tax
income taxes for the
payment of
purview
is con
within the
of Section 7201
on the
and convicted
1976 and
years
trary
plain language
of that statute
counts of the lesser-includ-
remaining four
anyone
a
if
which establishes
violation
willfully failing
offense of
ed misdemeanor
any
in
manner”
to
“willfully attempts
years
the tax
taxes for
to
income
payment.
a tax or its
I.R.C.
evade
§
1977, 1978,
appeal
This
ensued.
and 1980.
added).
Supreme
(1982) (emphasis
felony
argues that his two
first
Spies
Court,
v. United
in
317 U.S.
must be reversed because
convictions
87 L.Ed.
convicted under
charged and
was
(1943), interpreted Section 7201 to subsume
argument focuses
wrong
This
statute.
acts,
including “con
affirmative
several
statutes,
of two
Section
interpretation
covering up
or
sources
cealment of assets
part,
pertinent
in the
which states
income, handling
affairs
to
of one’s
any
willfully attempts
“Any person who
making
records usual in transac
avoid
any
or
or defeat
tax ...
manner to evade
kind,
conduct,
any
of the
tions
guilty
shall
payment thereof
... be
to mislead
would be
likely effect of which
and Sec-
felony...,”
I.R.C. §
cautioned
The Court
or to conceal.”
7206(4)
provides,
tion
illustrative
affirmative acts was
its list of
deposits,
[rjemoves,
Any person who
...
interpreted
limiting, lest it be
only, and not
any goods or commodi-
or conceals ...
and unlimited
restricting the undefined
as
any tax is
respect
whereof
ties for or
intended to criminalize
Congress
acts which
any property
imposed,
shall be
the “in
by the use of
under Section
by
levy is authorized
Sec-
upon which
language. Spies, 317 U.S.
manner”
any
defeat
intent to evade or
tion
Although Spies was a
499,
\YJ\
demonstrates
the
jury instructions
reciting
II
VII
a different
counts
date)
of the Section 7201
found
elements
jury
the
up
and
to
includ-
“continuing
and
”
ap-
(empha-
to
first
7203 crimes4
ing
and Section
the date
the indictment.
of
prior
added).
to
peared
natively,
was
tions
Similarly,
November
1977.5 Alter-
with
the
regard
sis
argues
jury
that since the
of
and
willfulness element
7203,
Sections
statutory
never
of the
limita-
apprised
jury
court instructed the
the trial
period or
to determine
asked
when
any
it
“entitled
consider
state-
that was
completed,
possibility
crimes were
the
by
done or
done
made and acts
ments
Defendant,
jury may have
convicted him
arises
on the
all
facts
circum-
the
and
of
acts which occurred outside
basis
in
may
in
aid
the
stances
evidence
period,
he
the limitations
which
contends
mind
of the
of
jury’s determination
state
reversal of
count
requires
his
II
count
the
instructions direct-
Defendant.” These
III convictions.
period
more to a
jury’s
ed
attention
the
beginning
the date mentioned
with
time
and
jury
argument that
support of
In
ending
of the indictment
date
with
the Section
elements
determined
any
specific
date recited
than to
ap
first
crimes
and Section
Furthermore, even
the individual counts.
if
November
prior to
peared
was directed to the
jury’s
attention
which
instructions
jury
those
upon
relies
II and III
specific
counts
dates contained
prove
must
the Government
stated
indictment,
nothing
find
which
respect
with
doubt
reasonable
beyond
the
any requirement
upon
impressed
under consideration
count
particular
the crimes
of the elements of
it
all
that
to have occurred
on
charged occurred
“that
on or about
dates
indictment.
in the
alleged”
the date
about
The
Next,
massive amounts
evi-
alleged.6
Hook, effec
according to
instructions,
testimony concerning conduct
dence
Hook to conceal assets
to the
in the
attention
jury’s
tively directed
presented in
dates
about
of time
apparent attempt
case
little
this
which
dates
reflect
indictment
specific
specific
relate
indictment,
acts
counts
returns, April
tax
filed
specific dates with-
alone to
counts.
let
III.
count
June
II and
count
Hook
indictment,
al-
in the various
though
damag
most
points out
also
reciting forty-three overt acts un-
at trial
him
against
offered
evidence
ing
count, provided no lists
conspiracy
der the
of
“shell”
of the
formation
consisted
refer
could
to which
acts
the house
purchase
corporation
*6
II
under counts
rendering
verdicts
the
Barford,
of
both
Linda
of
name
the
in
which
VII,
brought
nothing has been
and
16,1977.
November
prior to
occurred
attention,
income
apart from some
to our
a
as
instructions
jury
the
Interpreting
evidence,
indicates
which
expenditures
and
Power,
v.
Inc.
Fluid
whole, Cincinnati
Hook
or
at-
either
Government
that
the
773,
92, 95
Cir.
Inc.,
Rexnord,
of
jury’s
the
consideration
tempted to limit
not
however,
are
curiam),
1985) (per
periods of time.
particular
the evidence
instructions
jury
con
the
that
persuaded
ap-
what
Last,
recognize
although we
that
times out
on
jury’s attention
the
centrated
damaging evidence
most
pears to be the
period.
limitations
the
side
occurred
was conduct which
against Hook
period, other evi-
the limitations
outside
dence showed
curring
count
charges for each
First,
jury
the
by Hook oc-
acts
numerous
indictment,
language
the
tracked
which
limitations
which
the
within
violating Section
charged Hook
v¿th
by
jury
the
employed
have been
could
(each of
dates
or about certain
on
7201
both
applicable to
limitations
of
statute
5. The
7201 violation
a Section
elements of
three
4. The
I.R.C.
years. See
is six
7203
and
willfulness,
7201
Sections
an affirma
and
deficiency,
a tax
are
was re-
(1982).
indictment
attempted
Since the
6531
constituting
§
evasion
an
act
tive
1983,
States,
16,
con-
crimes
the
v. United
on
turned
November
Sansone
tax.
the
of
evasion
1010,
1004,
count III
351,
13
II and
by
count
343,
Hook’s
templated
S.Ct.
85
U.S.
380
act re
November
after
(1965).
occurred
The affirmative
must
882
convictions
L.Ed.2d
quirement
period.
the
from
distinguishes this
limitations
16,
the
within
to be
1977
Spies v.
offense.
misdemeanor
7203
Section
364,
492, 499,
S.Ct.
63
U.S.
317
9.
footnote
6. See infra
368,
418
87 L.Ed.
1172
we consider
the adequacy
and Section
of
jury
7201
the
the
that
Section
conclude
charges.
convicted
Hook was
for which
crimes
7203
16,
November
until after
complete
not
were
object
Since Hook failed to
1977.
see Fed.R.
jury
trial,8
instructions
at
30,
only required
Crim.P.
is
in
reversal
this
we can
foregoing,
upon the
Based
jury
case if the
of
omission
instructions
and evi
jury instructions
say
the
not
“plain
constituted
error.”
Fed.R.Crim.P.
to concen
sufficient
case were
dence
this
52(b).
Supreme
The
Court and numerous
15,
April
jury’s attention
trate
federal
repeatedly
courts have
stated that
by
suggested
6, 1977 dates
and June
1976
plain
spar
error doctrine is to be used
argu
Hook’s
reject
Accordingly, we
Hook.
Frady,
United States v.
ingly,
456 U.S.
instructions,
in this
jury
ment
14,
1584, 1592
14,
163 n.
n.
71
S.Ct.
guilty
Hook
jury to
case, required the
v.
United States
(1982);
L.Ed.2d
of
outside
occurred
upon acts which
based
Byers, 740 F.2d
1126-27 & n.
period.
limitations
(D.C.Cir.1984)
cases),
(citing
only
excep
United States v.
alternative,
circumstances,
At
maintains
tional
In the
kinson,
jury
instructions
297 U.S.
S.Ct.
a review
Byers, 740 F.2d at
(1936);
jury instructions
attempted
failure to
to excuse his
upon
8. Hook has
argument,
Robinson
Hook relied
At oral
jury
at the
matter
California,
S.Ct.
raise the statute of limitations
370 U.S.
v.
1419-20,
(1962),
proposi-
by pointing
stage
out that
H73 ently very opera- existed at trial over the objection has been nal conviction when no tion of statute of the in this limitations Kibbe, trial, v. Henderson 431 U.S. at made case, say we cannot that the failure of the 1730, 1736-37, 145, 154, 97 S.Ct. 52 L.Ed.2d give jury district to instructions con- court incomplete 203 and an omitted or cerning the statute of limitations was an likely justify is less to even instruction plain error so obvious that it constituted reversal, since such an instruction is not as Furthermore, error. the trial court’s al- law, prejudicial as a misstatement of the omission, leged error an act of not Kibbe, 431 at 97 at 1737. U.S. S.Ct. commission; the court lower did not mis- jury direct to convict state the law or the standards, no these Judged by Hook even if the crimes it found to have jury regard the with occurred plain error peri- before the limitations completed been the trial that argued at charges. od. The omission of statute of limitations when to run began limitations of statute merely instructions created a situation the filed when returns were tax his jury which the could have convicted Hook later. due, whichever returns were finding that the crimes occurred while be- trial, at argued has The Government 16, 1977, possibility fore we November run begins to that the statute appeal, on speculative require find too reversal constituting act last affirmative when Kibbe, plain error. See based on 431 U.S. non-pay willful of tax evasion the crime Bak- 1738; 97 at Continental S.Ct. appears trial court completed. The ment States, ing United Co. v. 281 F.2d 155 trial under Govern operated at (6th Cir.1960). cannot find re- Since we motion for theory denied but ment’s instructions, jury error in the we versible view, ac announcing the acquittal while hold Hook’s convictions are barred limita appeal, by Hook on cepted by the of limitations.10 statute the elements begins period when tion light In foregoing,11 of total of lack appear.9 Given first crime judgment of the district court is affirmed. uncertainty appar- agreement Meeker, accepted the district court’s F.2d 687-88 Since has United v. 701 States denied, (7th Cir.) cases), (citing concerning cert. 464 U.S. run- post-verdict determination 102 Our period argument S.Ct. 78 L.Ed.2d ning and his 104 of limitations holding possibility reduces the that a crimi fails even if also time-barred that the convictions are ambiguous rely or incom appeal, will accept, purposes nal defendant for of this also we regarding jury statute of begins plete instructions to run these the limitations appeal if the verdict is appear, we ex- first limitations the elements when crimes Development concerning Board See Industrial opinion the Government’s adverse. no press of Section, Fuqua Indus by non-payment Alabama v. the Town of taxes that evasion notion Cir.1975). tries, Inc., (5th 1238 F.2d constitutes a continu- assets and ing which, conspiracy, like a for much challenges to three additional 11. Hook makes begins to run statute of limitations carefully reviewing After these his convictions. of the crime. act furtherance affirmative last contentions, be without we find each merit. First, allegation reject that the evi Hook's we case, support it was this trial was disposition of dence at insufficient our toDue consider, express Virginia, and we See Jackson unnecessary convictions. us to for value concerning, precedential S.Ct. L.Ed.2d U.S. 560 opinion no (6th Stone, (1979); Cir. F.2d F.2d 99 States v. v. United Benes Next, proposi .1984). Hook’s con Cir 1960), stands presumably a non- acts as its discretion the trial abused limitations tention that court a statute tion admitting conse prejudicial An obvious in violation of bar. evidence jurisdictional waivable however, place on is to to be holding, of the Federal Rules Evidence Rule 403 of our quence clarifying Brady, United States v. responsibility without merit. See defendant denied, Cir.), cert. matters limitations *8 (1979); for 84 United convictions S.Ct. 62 L.Ed.2d possibility of the to avoid order least, or, Jenkins, at Cir. crimes States v. F.2d may be time-barred what 1975) curiam). incomplete Finally, reject er (per timely objection to making a money subject. giving do not wife We that acts of charges on the contention jury roneous acts unduly pay or burdensome bills were communicative harsh household an this is believe privilege by protected federal law defendant the common place a criminal requirement to See communications. have held marital circuits confidential fact that some light the Robinson, are affirmative States of limitation statutes criminal 1985). trial. not raised Cir. if are waived which defenses MERRITT, Judge, dissenting. Circuit 27, 1984, pretrial Memorandum and Order denying dismiss, motions to the District government's theory in this The criminal Court stated that: “the six-year limitations although tax case is that the defendant period imposed by 6531(2) 26 U.S.C. § personal timely filed tax nonfraudulent income evasion of payment the of taxes runs from years the six calendar returns for from the last affirmative act constituting the guilty he is of the felo- attempt to evade payment.” ny evading payment taxes due years through for each of those affirmative Upon acquittal, jury motion for after the acts of concealment of assets in violation of convicted the defendant for these two committing section as well as the years, the District Court found the continu- willfully lesser included misdemeanor of ing theory inapplicable. But the failing pay co taxes in violation of section Court refused set the verdicts aside. It jury 7203. The convicted him of the sec- did not conclude that the defendant had years tion 7201 offenses for the waived the statute of limitations. It 1976 and and section 7203 (ac- reached the conclusion the merits misdemeanor offenses for and 1978 cepted here) by majority as sound Thus, jury guilty found him the statute had not run on the 1975 and of affirmative acts of concealment in 1976 counts because “there was sufficient years. two of the wrongful It convicted him of support finding evidence to that all ele- failure to for the other four ments of the upon and offenses [1975 1976] years. which defendant was convicted came into existence some time after the commence- Since the statute of limitations is six ment (App.56.) year period.” of the six limitations years, and U.S.C. the indictment § Or, majority, the words of the was not filed until November wrongful November, acts after 1977 “could (making 1977), the cutoff date November employed by been to con- government has a statute of begin clude” that the statute did not run problem years limitations for the 1975 and (Supra p. 1172.) earlier. I believe that 1976. This statute of problem limitations government both the and the defendant are because, years arises for these under the correct in their contention that the 1975 general rule, the begins to run on committed, all, and 1976 offenses were earlier than if at committed, i.e., date the offense is first November, 1977 and hence whenever acts of affirmative concealment against that the statute has run those two nonpayment or willful April occur after the counts. government’s 15 due problem date. The claimed, proof that is strongly suggest- the defendant government and Both the ed, that the acts of concealment and willful- problem approach to the disagree with the triggering ness the running of the statute by our District Court and now taken for the 1975 and years 1976 tax occurred adhering to its government, The Court. prior to November 1977. con- tolling argument, continuing offense District Court “reached tends that the In order to extricate itself from this di- The wrong right result for the reason.” lemma government adopted a “continu- point as follows: argues on this defendant ing offense” theory. proof sug- Since its gested however, the acts would approach, concealment and This have been willfulness limitations up continued until the if the appropriate date of jury, indictment in government put had been questions ar- gued that the during was tolled not where appropriate statue period of continuation and that the limita- any of the date advised that tions accrued began to run only The any moment. in issue was events upon the occurrence of the last of the acts determine asked to never jurors were of concealment or conduct became willfulness defendant’s committed when the connection act of with the affirmative continuing offenses. or when willful rea- is no And there occurred. evasion government agree the defendant they made determina- to assume son tions which make. that the District adopted Court this “con- instructed they never were tinuing position offense” before throughout kept trial and years Brief, p. 32. Appellant’s 1975 and 1976 in the case. In February its
U75 ” interpreted point this in favor repose.’ argument It has The defendant’s “[sjtatutes also said not asked to that jury was The correct. limitations nor- seems mally begin running of to run when regarding crime is facts com- decide plete.” Toussie, parties at because of limitations S.Ct. at 860. adopted the had the court thought that Therefore, I would hold that the statute theory. continuing offense government’s had years run on the 1975 and 1976 and implicitly explicitly did not The these counts should have been dis- Again, it issue. to this facts relevant any missed. remaining The question is wheth- neither side emphasized be should er we simply should knock out the counts issue, on this jury instructions asked for relating to years these and affirm the other Dis- thought the they because apparently convictions, or remand for a new trial on government’s adopted had trict Court the other counts. The majority opinion difficult theory. It is continuing points out that: circumstanc- these how under for me to see [Mjassive amounts of evidence and testi- have held to should be defendant es the mony concerning conduct by Hook to asking by not the statute waived conceal assets presented in this case instructions.1 with little apparent attempt to spe- relate cific specific acts to counts in the indict- question that the It seems to me then ment, let specific alone to dates within government is correct whether the becomes in its ly, the various indictment, counts. The al- argument; name- continuing offense though reciting forty-three overt acts un- begins to run from the the “statute count, der the conspiracy provided no of evasion.” Govern- last affirmative act lists of acts to which the jury could refer brief, pp. 29-30. ment’s in rendering the verdicts under counts II govern- out the Supreme The Court set through VII, nothing has been issue in Toussie ing considerations on this brought attention, to our apart from 112, 114-15, States, 397 some expenditures income and evidence, 859-60, L.Ed.2d S.Ct. which indicates that either the Govern- language explicit “the must find that We the substantive ment or attempted to limit the compels criminal statute jury’s consideration of the evidence to conclusion, nature of the or the such crime involved is such particular periods of time. Congress must Op. at 1171-1172. intended that it be treated assuredly have I assume from this statement continuing one.” Id. as a majority, had it decided otherwise on the at 860. question, limitations would have concluded and 7203 language of sections 7201 The that a remand for a new trial necessary is It compel such a conclusion. does not so that the case can be restructured for Congressional more consistent seems presentation jury. Although the evi- to run good policy in tax cases intent and dence on the other counts of the indictment from the date of of limitations the statute strong presents unsympath- a record offense, as the tradi- the commission defendant, etic to the I am say unable to rather than the date requires, rule tional the last that the errors discussed above were harm- Other- act related to the offense. less under Rule Fed.R.Crim.P. of assets or will- acts of wise “WELLFORD, J., CONCURRING the after the first committed decades fulness rehearing: denial of my knowledge, To Mr. revive or extend wrongful tax acts would appeared Dershowitz has never before me liability. criminal and has never any pro- been involved in has, ceedings my before me in Supreme years on several occa- fifteen Court Judge District sions, crimi- or as a principle Judge prior “the Circuit reaffirmed to this case. I no liberally are ‘to be recollection of nal limitations statutes lawyer 1. If it is true that the defendant’s waived I should have been exonerated. think it defense, good grips statute of limitations then I do to come to with the would be much better why not see he would not win a case for problem § 2255 rather than now and order a new trial proceed- ineffective assistance counsel. The post waiver with it later in a conviction to deal highly prejudicial, causing ing. the defendant to be convicted of at least two offenses for which *10 having previously cism about published read his criti- my part in a trial which took CORPORATION, et CROUNSE place years ago some ten in Memphis, but Petitioners, al., it is clear that Mr. Dershowitz was not then any involved in way in that jury trial. COMMIS “Mr. Dershowitz himself acknowledges INTERSTATE COMMERCE that he request my did not recusal at the and United States of SION hearing oral ever suggestion and made no what- America, Respondents. any alleged problem about my 84-3753, Nos. 84-3743 participating until after the decision in this case, and 84-3868. client, 84-3842 adverse to his was filed. He acknowledges that his contention now Appeals, Court of United States petition made in a rehearing “may seem Sixth Circuit. belated.” (Appellant’s Petition, p.6). Mr. Dershowitz states that at the time of the Argued April argument he “did not even precisely know 23, 1986. Decided Jan. what it is that he (Petition, previously had written.” 4-5). pp. If Mr. Dershowitz did >vrote, not know what he I then knew even less than he since I do not recall having (I read the article. was aware that Mr. participated Dershowitz had in a number of first amendment eases and that he has publicly expressed strong views with re- spect to pornography prosecutions, but this had absolutely nothing to do with the case hand.) reference to 28 “Mr. Dershowitz makes During the consideration U.S.C. § case, I no notion in this had and decision questioned impartiality right was my defendant, Hook, Mr. by the counsel, impartiality. appearance of perceived I no and enter- I entertained then prejudice personal now no bias tain against defendant nor Mr. against Dershowitz, rep- has an able advocate who I am resented his client well this case. potential conflict of interest in aware of no relationship any any respect, nor me serve as improper make it would in this case.
judge attitude about regret I Mr. Dershowitz’ sincerely and what I be-
my participation uncalled his unwarranted and lieve to be me set out in his inferences about for petition.”