UNITED STATES of America, Plaintiff-Appellee, v. Raymond SAWYER, Defendant-Appellant.
No. 78-2098.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 1979. Decided Aug. 16, 1979.
Rehearing Denied Dec. 6, 1979.
607 F.2d 1190
This case is reversed and remanded and the district court is directed to enter judgment for the plaintiff in the amount of $137,093.
Reversed And Remanded With Instructions.
On Petition for Rehearing
The plaintiff-appellant has petitioned this court for a rehearing pursuant to
Under Wisconsin law, prejudgment interest can ordinarily be recovered if the amount claimed and recovered was readily determinable. The defendant‘s denial of liability will not defeat a claim for prejudgment interest. Wyandotte Chemicals Corp. v. Royal Electric Manufacturing Co., 66 Wis.2d 577, 585, 225 N.W.2d 648, 652 (1975). We have held in this case that the full amount of the excess judgment was recoverable as a matter of law once liability was established.
A genuine dispute as to the amount due, however, will defeat the claim for interest because the defendant cannot reasonably determine the amount due and tender it. The Supreme Court of Wisconsin found such a genuine dispute where the plaintiffs were entitled to a determinable amount of back pay, but the parties disagreed, as did the trial and appellate courts, on whether the amount should be reduced by earnings from other employment. State ex rel. Schilling v. Baird, 65 Wis.2d 394, 402, 222 N.W.2d 666, 671 (1974). The latter case controls our decision. In this case the parties and the trial and appellate courts disagreed on the proper measure of damages where the plaintiff was an assignee on an excess judgment claim. The plaintiff-appellant is not entitled to prejudgment interest.
As to interest on the judgment of the district court, the defendant concedes it is liable for interest on the $59,186 awarded by the district court for the period July 7, 1977 to July 20, 1979. After the latter date, interest should accrue on the entire amount awarded by this court. The mandate of this court shall direct that judgment be entered accordingly. See
The Petition for rehearing is DENIED.
Thomas P. Sullivan, U. S. Atty., Scott Turow, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, and SWYGERT and BAUER, Circuit Judges.
The appellant Raymond Sawyer was charged by information on two counts of violating
In his first argument on appeal, Sawyer claims that the jury was improperly instructed on the meaning of “willful” as used in
As used in the statute . . . the word “willful” means voluntarily and purposeful and deliberate and intentional as distinguished from accidental, inadvertent or negligent.
Now, the failure to do an act is willfully done if it is done voluntarily and purposely and with a specific intent to fail to do what the law requires to be done; that is to say, with a bad purpose to disobey and disregard the law . . . .
In essence, Sawyer argues that the jury should have been instructed that his failure to file was not “willful” if it resulted from an “innocent reason” or “justifiable excuse.” The omission of this language, Sawyer maintains, prevented the jury from considering his only defense, namely, that his physical and emotional condition rendered him incapable of filing his income tax returns on time.
However, in an en banc decision, this Court approved a jury instruction on “willfulness” that is virtually identical to the one given in this case. United States v. McCorkle, 511 F.2d 482, 484 n.2 (7th Cir. 1975), cert. denied, 423 U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975). Like Sawyer, McCorkle argued that the instructions “had the effect of eliminating justifiable excuse as a consideration in resolving the issue of willfulness.” Id. at 486. In rejecting the claim, the Court noted that only a limited set of circumstances could legally justify a failure to file—namely, “an inadvertent failure to file or ‘a bona fide misunderstanding as to [defendant‘s] . . . duty to make a return.‘” Id. The Court then reasoned that “[s]ince the instructions required the jury to find an intentional violation of a known legal duty, it would have been essential for the jury to conclude that McCorkle‘s conduct was unjustified.” Id. Finding this logic applicable to the case at hand, we hold that the trial court did not commit reversible error in its instructions to the jury on the meaning of “willfulness.”
Sawyer next challenges the trial court‘s instruction to the jury on false exculpatory statements. That instruction read:
Now, evidence has been introduced that the defendant made certain exculpatory statements, which were outside the courtroom, when he was interviewed, explaining his actions to show that he was innocent of the crime charged in an [sic] information. Now, evidence contradictory [sic] such statements has also been introduced and if you find that the exculpatory statements were untrue and that the defendant made them voluntarily and with knowledge of their falsity, you may consider such statements as circumstantial evidence of the defendant‘s consciousness of guilt.
This Court has recognized that a defendant‘s false, out-of-court exculpatory statements may be taken as evidence of guilt. See, e. g., United States v. Riso, 405 F.2d 134, 138 (7th Cir. 1968); United States v. Lomprez, 472 F.2d 860, 863 (7th Cir. 1972). The appellant argues, however, that the instruction did not require the jury to determine that he did in fact make the alleged statements. We are not persuaded by this claim, for, in our view, such a requirement is implicit in the language of the instruction, particularly since the appellant argued the issue to the jury. We thus find no grounds for reversal in the trial court‘s instruction on exculpatory statements.
The appellant next argues that the district court improperly admitted evidence
On the issue of authentication, there is sufficient circumstantial evidence, in our view, to satisfy
The admissibility of the agent‘s report, however, raises a more difficult issue. It would seem, as the government argues, that the report satisfies the criteria for admissibility as a recorded recollection under
Nevertheless, Sawyer claims that the referral report should have been excluded because it represents the report of a law enforcement officer. Relying heavily on United States v. Oates, 560 F.2d 45 (2d Cir. 1977), Sawyer argues that law enforcement reports that are barred under the “public records” exception of
We are not persuaded, however, that the restrictions of
What I am saying here is that in a criminal case, . . . we should not be able to put in the police report to prove your case without calling policeman. I think in a criminal case you ought to have to call the policeman on the beat and give the defendant the chance to cross examine him, rather than just reading the report into evidence. That is the purpose of this amendment.
120 Cong.Rec. H 564 (Feb. 6, 1974). And the Oates court itself identified the loss of confrontation rights as the underlying rationale for
[The] pervasive fear of the draftsmen and of Congress that interference with an accused‘s right to confrontation would occur was the reason why in criminal cases evaluative reports of government agencies and law enforcement reports were expressly denied the benefit to which they might otherwise be entitled under FRE 803(8).
560 F.2d at 78. We therefore decline to hold that
Finally, Sawyer claims that the trial court erred in excluding proof that he had eventually paid his taxes for 1971 and 1972. However, as this Court noted in United States v. Ming, 466 F.2d 1000, 1005 (7th Cir. 1972), “[i]t has been clearly established that late filing and late tax payment are immaterial on the issue of willfulness in a Section 7203 prosecution.” We see no merit in the appellant‘s argument that this principle is somehow inapplicable to the case at hand because the government was allowed to
We have examined the appellant‘s other arguments and find no grounds for reversal. The judgment of the district court is therefore AFFIRMED.
SWYGERT, Circuit Judge, concurring in the result.
With some reluctance, I concur in the affirmance of defendant‘s conviction. My reluctance stems from the admission of Revenue Officer Schroeder‘s reading from his referral report dated January 14, 1974 which stated that “a phone call was made to the taxpayer‘s husband who stated that the 1040 returns . . . 1971 and 1972 had been filed.”
An examination of the referral report shows that it comes within the literal definition of records excluded pursuant to section
The problem here is whether section
Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Officer Schroeder testified that he obtained defendant‘s telephone number from defendant‘s wife in September 1973 and that it was his routine practice to attempt to contact a taxpayer under investigation by telephone in such circumstances. He further testified that it also was routine to record all taxpayer contacts on a history sheet and that notations reflecting phone calls would be made immediately after the calls were completed.
Officer Schroeder said that he had no independent recollection of his phone conversation with defendant and that the history sheet on defendant had been destroyed after he had closed his part of the investigation. He testified that he had used the history sheet to prepare his referral report—the disputed document.
Although we are dealing with a record of a record, not made contemporaneously with the event, and in a sense double hearsay, I am satisfied that the requirements of section