United States v. William Lee Workinger

governmental scarce action wastes agency Corp., F.3d at See BellSouth

resources. (“Even judi- of concern modicum strongly against con- economy militates

cial review].”). judicial [agency and current

Further, poses pos- review simultaneous a court agency authority

sibility that ju- rulings. Allowing conflicting issue

would agency middle of the review in the

dicial unjustifiably process interferes

review possibly consider and agency’s right to position during its

change its administrative Dietary Supplemental,

proceedings. (stating that should F.2d at 563 courts opportunity apply agency of deprive modify expertise and to correct errors ap- An proceeding). in course of

positions may higher agency authority also

peal to a judicial review. See the need for

obviate Bd., 284 F.2d v. Civil Aeronautics Outland (“[W]hen (D.C.Cir.1960) party always a rehearing to seek a there

elects complained of will

possibility the order judicial way renders

be modified unnecessary.”).

review proper- district conclude that the

We complaint for lack of

ly dealers’ dismissed jurisdiction.

subject matter

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, WORKINGER, Lee

William

Defendant-Appellant.

No. 95-30200. Appeals,

United States Court Circuit.

Ninth 8, 1996.

Argued and March Submitted July

Decided

14H unreported holding numerous bank accounts funds, unreported depositing substantial receipts into bank accounts business forms, failing had not listed on IRS real estate he controlled. disclose which Heehtkopf, Lindsay Alan E. and Robert government alleged also that he had Justice, Tax Department of United States by showing a investigators misled federal Schumacher, Division, A. and Scott agreement prove form to he rental Justice, Ap- Department of Criminal States actually a home which owned and rented Section, Policy Enforcement peals and Tax by filing false of financial condi- statements D.C., Division, Washington, William Tax tion. an,d Cardani, Christopher As- L. Fitzgerald Workinger was counts for indicted five Attorneys, Eugene, Or- sistant United attempting payment to evade federal in- plaintiff-appellee. egon, for 1980, 1981, 1983, come tax for 1984 and 1985 Wetzel, DeFrang, Port- Wetzel Joseph and (Counts 3, 4, 1, 2, respectively). He and 5 land, Oregon, defendant-appellant. for making indicted for and subscrib- was also 1987 federal tax return on

ing his income income which he understated his total (Count 6). Finally, for cor- he was indicted obstructing and the due ad- ruptly impeding laws ministration of internal revenue submitting inaccurate to IRS forms financial REINHARDT, and KOZINSKI Before: separate on occa- collection officers three FERNANDEZ, Judges. Circuit February on and twice sions—once (Count 7). Workinger on March FERNANDEZ; by Judge Partial Opinion prosecution latter count claims that on the by Judge Concurrence KOZINSKI. by the limitations. was barred statute of FERNANDEZ, Judge: Circuit issued, before indictment Workinger convic- appeals his Lee William by Donald Workinger had been interviewed willfully failing pay taxes in viola- for tion Johnson, lawyer representing filing a willfully of 26 U.S.C. tion Although reporter was former wife. no court tax of 26 income return violation false Workinger that he would present, affirmed 7206(1), obstructing corruptly and U.S.C. tape- truth and the was tell the conversation the due impeding and administration secretary, who was Mr. Johnson’s recorded. laws in violation of Internal Revenue interview, typed a present at the then We affirm. U.S.C. The tran- of the conversation. transcription notations, included handwritten

scriptions interruptions sections omitted numerous and BACKGROUND trial, transcript At “inaudible.” 23, 1994, Workinger, a dentist March On court and was that interview received practice Oregon, indicted was licensed time, the jury. By read verbatim scheme participation his an elaborate Workinger asserts been tapes had erased. from the his income assets to conceal have been should not of his Revenue The heart Internal Service. best evi- not the admitted was using vari- creating scheme consisted authenticated, and dence, properly income, purposely to hide mis- entities ous hearsay. income, sub- stating filing his forms trial, prosecution underreported value and In the course stantially testify Agent Brock and hold- Revenue1 June quantity of his financial resources called Brock testified1 expert witness. Ms. diverting practice his income as an ings, and charge that government’s Among things, gov- support spouse. for 1987 maintaining Workinger signed a 1040 form false accused ernment Corona, did not believe to be correct. which he States v. Cir. 1994). $7,855.55 was omitted Brock testified it was a discount.” She

income “because DISCUSSION $8,625 testified that was omitted further found that an government because the come I. Statute Limitations by Workinger sold no basis in his asset had When indictment was filed on testimony Workinger claims that this hands. 23, 1994, charged March Count 7 that Work- false. inger corruptly impede, “did obstruct and 25, 1995, and endeavor to obstruct January due was con- On administration of the internal revenue Laws charged 6 and 7. victed as on Counts On States .... in 5, the United violation of Title through he was of the Counts convicted 7212(a).” 26, Code, United States Section included offense of willful failure to lesser specifically, charged Workinger More pay appealed. income taxes. He February a false had submitted document on 17, 1988, and two false documents on March JURISDICTION AND STANDARD 29, 1989, very for those purposes. Working- OF REVIEW er filing contended because the of the jurisdiction pursuant The district court had place years took indictment more than three jurisdiction § to 18 U.S.C. 3231. We have question, after the incidents the indictment § pursuant to 28 U.S.C. three-year was barred of limi statute § tations. 26 U.S.C. 6531.1 The district The district court’s conclusion re instead, disagreed applied, court and the six- garding applicability a of limi statute 6531(1) (6). year § statute limitations. and a tations is matter of law de novo. reviewed The statute of provide limitations does 1188, Manning, States v. general, proceedings criminal tax (9th Cir.1995). statute, construing a years must be initiated within three objective our court’s “is the con to ascertain provides eight exceptions offense. It then gressional give legis intent and effect for which the statute of is six limitations will.” Glodgett, lative Philbrook v. U.S. years. exceptions of those One establishes 713, 1893, 1898, 95 S.Ct. 44 L.Ed.2d 525 six-year period limitations “for (1975). This court must first determine volving defrauding attempting or to de- plain language whether the makes mean any fraud the United States ... manner.” Samuels, ing reasonably Negonsott clear. 6531(1). § exception Another establishes 104-05, 1122-23, 507 U.S. 113 S.Ct. period “for offense (1993). clear, 122 L.Ed.2d 457 If it that is 7212(a) described in Section to in- (relating inquiry. the end of See Sullivan v. of officers employees timidation and Stroop, 496 U.S. States).” 6531(6). § Section (1990). “In L.Ed.2d 438 ascertain provides penalties following: criminal for the statute, plain ing meaning [we] Corrupt or forcible interference. —Whoev- statutory particular must look to lan corruptly er or force or threats of force issue, guage as well as the any to impede endeavors intimidate or design the statute as whole.” K-Mart employee officer or of the United States Cartier, Inc., 281, 291, Corp. v. tile, acting capacity in an official under this (1988). 1811, 1818, 100 L.Ed.2d any way corruptly other force or threats of force ... or im- obstructs evidentiary rulings A district court’s pedes, impede, or endeavors to obstruct or are reviewed for an abuse of discretion. the due administration of this title.... Manning, “Evidentiary 56 F.3d at 1196. rulings Thus, § will be provides punishment reversed for abuse discre only if tion such nonconstitutional error more impede those who endeavor to obstruct or likely than not pro- affected the verdict.” United the administration of Title 26. It also 1. Hereafter all references sections are to 26 U.S.C. unless otherwise stated. statutory manner to evade defeat tax or punishment for those who endeavor vides 6531(2). § employee who is thereof....” These impede payment an intimidate exceptions appear that title. cover most acts capacity official under two acting in his perform attempt person that a could corruptly charged Because put As paying avoid taxes. one commentator impeding administra- obstructing or the due general “Although [§ 6531] it: states the laws, Workinger Internal Revenue tion of the 3-year being period, rule as there are does not provision urges exceptions the 3- numerous which render argues that him. first apply to year period almost Patricia T. irrelevant.” by applying erred district Morgan, Tax Procedure Fraud in a and Tax 6531(1) 6531(1). § § He contends that Nutshell, (1990). § That 13.1.7 observation charged with expressly applies to defendants (2). 6531(1) surely applies §§ defrauding the United States. 6531(1) who apply cannot to one avers Nevertheless, go on and list does only impeded or the internal obstructed has Among specific exceptions. more or obstruct laws because revenue “offenses in sections those is described necessarily require the defendant does (relating and 7207 to false statements He then asserts the United States. defraud documents).” fraudulent 6531(6) apply not to him because § does that 7206(1) § particu- § Both and 7207 deal with 6531(6) § limits parenthetical language of the fraud, 6531(5) (cid:127)§ might and there- lar kinds of exception scope of the limitations the thought of as fore be somewhat redundant 7212(a) involving § those offenses 6531(1). Still, undoubtedly Congress § employees of the of officers and timidation any par- argument wanted to avoid that the argues He States. 7206(1) § ticular offense in mentioned —false internal impeding was indicted not penalty perjury under of declaration —is 7212(a) laws, § falls out- offense revenue Similarly, Congress in itself. undoubt- fraud 6531(6) exception. § scope of side of the edly argument that wanted to forestall an rejected truly § aspects both Work- of 7207 not fraud- The district some were court first inter- inger’s contentions. The the section refers to documents ulent because any in preted parenthetical language to be “fraudulent” or “false as known 6531(6) short, limit- descriptive Congress § than to be rather matter...!” In material and, therefore, applied six-year statute dis- ing, to be sure that mere technical wanted In the in the of limitations to claims. tinctions would not make a difference alternative, alleged the court found that “the limitations. That underscores statute of § ... involves of 26 U.S.C. than undercuts the breadth violation rather 6531(1). applied attempt § to defraud” and therefore forth in period limitations set 6531(1) Thus, Congress applied §in 6531(1). While, explain, we § as we will sixryear period to offenses regarding disagree with district court in sections other than those mentioned which 6531(1) case, §of to this application direct “fraud,” offenses did labeled if those agree that it must inform our determi- we do activity. In reflect fraudulent 6531(6) apply. § nation that does Grainger, 346 U.S. 6531(1), terms, its does own Section (1953), Supreme Court con L.Ed. 1575 indict- require expressly that a defendant be Act, which Suspension strued Indeed, reading which so tax ed for fraud. language of rather similar limited it would be inconsistent with 6531(1). running suspended § That Act “the § structure of statute. The overall any any applicable to statute of limitations very broad exceptions start out with two involving attempted ... fraud offense exception, as The first formulations. broad any agen against the United States or fraud mentioned, “in- already any offense ” any Id. at cy thereof manner.... any defrauding the volves” United States at 1073. § covers The second manner. See “willfully any said: attempting The Court the offense of parenthetical language if the Congress sought peculiar that its most We believe 6531(6) “involving any § phrase fraud man- were meant to restrict section Suspension applica- § make Act portion ner” to to the intimidation As 6531(1) fairly are already offenses which identifi- explained, § ble all we have covers in which fraud is an essential able as those ingre- all is an essential offenses where fraud they 6531(2) ingredient, whatever words be de- Similarly, § dient. all willful covers fined, did not seek to attempts to evade or defeat taxes. Perusal applicability limit to such those iden- portions § reveals that labeled 6531(3) as also are tifiable offenses aiding § willfully prepa- in the covers symbol. particular returns, ration of false or fraudulent 6531(4) pay the willful tax covers failure Here, there, Id. at 73 S.Ct. at 1074. 6531(5) return, § presenta- or to file a covers expressed breadth Congress has a similar tion of false statements and fraudulent docu- purpose. 6531(8) ments, conspiracies covers all asserts, however, payment “to evade or defeat tax do not under necessar thereof.” covers activi- Section then ily ingredient.” fraud as an include “essential by corrupt government agents. ties All of Still, agree. we With that must would be exceptions deal obtaining these with the person an unusual case where a would cor improper advantages through benefits ruptly the administration obstruct corruption. use of fraud or laws, having activity of the tax without element of fraud. The difficul include some 6531(6) only §If actual covered intimi- course, ty, corruption is that and fraud are dation, Congress jumped beyond would have same, necessarily latter nor solely those concepts upon focused every included in instance of former. As doing crimes of violence and force. so it said, ‘corrupt’ we “An act is within the corruption. would have left behind crimes performed § it meaning of is if unlikely That very legislative leap. is a More unlawful the intention to secure an benefit likely Congress’s recognition that is the ar- for or for another.” United States oneself v. gument being us now made to would be (9th Hanson, 942, Cir.1993); 2 F.3d 946 see is, despite made. That defendant’s 450, Dykstra, 991 also United States v. F.2d in attempt submission of false an documénts Cir.) (8th denied, 880, 453 cert. 510 U.S. 114 taxes, the collection of he would 222, (1993); 126 S.Ct. L.Ed.2d 177 United really assert acts that his were not fraudu- Reeves, (5th 995, States 752 F.2d (cid:127) 998-99 v. they merely corrupt. lent but that were To Cir.), denied, 474 106 cert. U.S. S.Ct. prosecution forestall a defendant’s evasion of (1985). may 88 87 That L.Ed.2d not by three-year statute, use of the shorter involve fraud. § expressly included of- Nevertheless, six-year excep- fenses within the list of there is a clear the often rela- short, § tions. In tionship corruption fraud the structure 6531 between be- examples apparent it paradigm parenthetical “are of activi- makes that the lan- cause both 6531(6) gain improper guage § an descriptive, ties done with intent to is not limit- advantage.” ing. Corruption benefit or United States v. was within the section’s (4th Cir.1993). Mitchell, purview. 985 F.2d 1278 result is that the stat- hand, example, Workinger applied the case ute of to Count filing impeded by false obstructed docu- activity That ments. was which was fraudu- Transcript II. The Admission the Thus, by very although lent nature. the its Workinger next contends the technically wrong, district court was district court abused its when it discretion 6531(1)

breadth illuminates what Con- transcript depo admitted the of his recorded gress it was about when added sition into evidence. asserts that exception three-year statute. rule, transcript violated evidence the best 1002; transcript In the context of the overall Fed.R.Evid. cover 802; age hearsay, it exceptions, would be Fed.R.Evid. 801 and and that deed, having secretary sufficiently be like transcript authenti- would was not 901(b)(1). testify, “I come court to have listened to required by Fed.R.Evid. cated as tape, says.” here is what it That Rule A.The Best Evidence right; precisely cannot be it is what the best designed to evidence avoid. rule that the admission of claim evidence rule is transcript the best violated Thus, tape was again; the the best evi- pro Fed.R.Evid. 1002. rule otiose. See it, upon dence what was recorded but the prove “To the content a writ vides that: not best evidence rule was violated this recording, original photograph, ing, case. required, writing, recording, photograph except provided these rules as otherwise Hearsay B. by Congress.” govern Here the Act next, contends that sought prove tape the content ment transcripts hearsay. inadmissible Fed. were during Workinger’s deposition. The made 801(c). “hearsay” R.Evid. That rule defines therefore, of its was the best evidence tape, statement, as “a other than one made v. content. See States Gonzales- own testifying at trial hear declarant while Benitez, Cir.), cert. 537 F.2d prove ing, truth of offered evidence denied, U.S. However, the matter an admis asserted.” (1976). However, tape L.Ed.2d hearsay. sion party-opponent been because it had erased not available 801(d)(2)(A). Workinger’s state Fed.R.Evid. owner, Johnson, prior Mr. trial. its ments in were admissions of a ordinary That had been done course party-opponent; they hearsay. at the behest of the his business and not Therefore, tape use of the it government. C. Authentication required. was not See Fed.R.Evid. self Ross, 1004(1); see also Workinger additionally contends (11th Cir.1994), 1507, 1513-14 cert. de transcripts that because the were not ade —nied, -, authenticated, quately .district (1995). The best evidence rule L.Ed.2d when them abused discretion admitted was not violated. into Fed.R.Evid. That evidence. See Rule states that for authentication there We, course, of are well of the aware a support must be “evidence sufficient to tape recording that a cannot be to fact said finding question its that the is what matter best a conversation when be the evidence of A proponent claims.” document can be au participant party seeks call a in or a to testimony thenticated the of a witness testify to to it. observer conversation Childs, knowledge. with United States instance, In that the best evidence rule has Cir.1993), F.3d cert. de Gonzales-Benitez, application at no all. See —nied, -, at That is not 537 F.2d 1053-54. this case. (1994). government L.Ed.2d need that, ultimately, transcript the It is true showing facie authen prima make a tape was the content the intended to reflect juror ticity “so that a reasonable find could But, place. took the conversation that authenticity favor of or identification.” Unit to proximately, more it was intended reflect Yin, Kong ed States v. Chu When tape the content the itself. John- (9th Cir.1991) (citation omitted). the Once secretary tape the told given son’s met, authenticity prima facie case it, prepare a to transcribe what she did matter probative of the evidence is a value purported to indicate what document Id.; Black jury. for the United States v. somebody on But if tape. heard she (9th Cir.1989) wood, (per 878 F.2d know of that tape, to the content wanted curiam). of that. itself was best evidence A differ- tapes, government transcripts To being rule would sub- authenticate ent lead me, person testimony from the who tran- “Trust elicited mitted with admonition lis- taped.” tape. In- She testified that she transcript does what was scribed the reflect Cir.1987) (burden tened “over and over” to make sure on defendant make to them showing transcription prima prosecutorial facie case that her was accurate. The mis- conduct). government testimony elicited from Mr. also Johnson, attorney who conducted the

taped Mr. interview. Johnson testified that CONCLUSION shortly transcript he had after examined can There be little doubt that compared it was made and had to the deprive government set out to of taxes recordings an affi- tape actual and then filed properly Despite that he owed. his almost attesting state davit with the its paying daedalian schemes to avoid his share (cid:127) accuracy. He testified to the best his maintaining society, cost of our he was recollection, transcript accurately repre- escape found out. He now seeks from testimony during deposition. sented the liability part asserting criminal Although trial that he could he testified corruption because he was accused rather listening' specifically recollect fraud, such, than against one of the counts (cid:127) tapes, testified that would not he also him barred the statute of limitations. signed affidavit had he not done so. wrong He is when it because enacted The district court did not its discre- abuse that the corrupt assured transcript tion when it admitted the subject as well as the would be fraudulent (cid:127) certainly testimony minimum met a statute of limitations. requirements Working- for authentication. AFFIRMED. therefore, objections, simply er’s jury matter for the it de- consider when KOZINSKI, Judge, concurring Circuit weight it termined the afford' to the would part concurring judgment: in the transcript. result, agree majority’s I with the but can- join opinion. all of Specifically, I Testimony Agent III. Brock agree why with don’t its reasons Workinger next contends three-year and not a statute of limitations prosecution false offered evidence when it join applies Count 7. Nor can its ratio- I testimony from Agent elicited Brock that for concluding nale the best evidence monetary characterized two as in amounts preclude government rule didn’t from First, $7,855.55 come. she testified that introducing instead of tape payed to the defendant from Ira Lawrence deposition. defendant’s merely was income—not a loan as Second, claims. she testified entire I $8,625 in proceeds Workinger from received charged Workinger violating Count equipment the sale of to Lawrence was in 26 U.S.C. That statute makes it a by come—not an amount reduced his in basis to: felony property. Workinger disagrees with her corruptly by or or force threats of force analysis, differing opinion but his of the re ... endeavor[ ] to intimidate or manipulations sults of various does not any employee officer or of the United agent’s contrary convert the characterization acting in capacity States an official under perjury. testimony into Brock’s did have a title, any way or in corruptly this other or basis in and in the facts the law and Work by force or threats of force ] obstruct! inger’s disagreement analysis with Brock’s ], impede! or or ] to obstruct or endeavor! testimony did not her transform into false impede, the due administration of this title. Campbell hood. v. Gregory, See 867 F.2d Cir.1989) (8th 7212(a), (testimony expert Workinger according violated section (and perjury merely is not jury’s verdict), because it differed by to the indictment short, opinions from In experts). submitting of other false documents to the IRS. prima charge has made a facie case Count therefore did not that he had government officials, misconduct. United only See intimidated United States but (9th Paris, States v. 827 F.2d n. 3 corruptly impede, that he “did and obstruct begin by examining language impede” the I would and to obstruct and endeavor 6531(6), -Indictment, N.Y. see of section of the tax laws. administration Conference —Ins., U.S. -, v. Travelers Blue Cross at 4. ER -, L.Ed.2d filed much more than The indictment (1995), majority something the does. never years the last after he submitted three ordinary usage, with section Consistent points Workinger thus false documents. 6531(6)’s parenthetical naturally is more un provides three- 26 U.S.C. rather descriptive as than restric derstood for tax limitations criminal year statute of Singer, 2A See Norman J. tive. Sutherland offenses, eight listed in its sub- except those 45.13, (5th Statutory Construction at 78 ed. provides a six sections. Subsection 1992) rely (“[Ljegislators presumed be can de- of limitations “for the offense statute Thus, usage.”). language on conventional 7212(a) (relating to intimi- 6531(6) section scribed easily if of reads most “the section employees 7212(a)” of officers and dation fense described in section is taken States).”1 view, 7212(a) In entirety, in its United to section and refer parenthetical parenthetical language reference is understood as subsection’s way identifying, by general restricts of a de States officials further timidation United content, scription of its applies section intended. coverage, thus subsection’s statutory This does not violate the canon of involving in- only to section says courts should strive construction timidation, involving ob- not those otherwise language superflu in a not to render statute structing impeding. Because he language commonly Parenthetical ous. only obstructing impeding, charged with and, purposes descriptive used for the in- intimidating, argues, 6531(6), Congress used it section extent so limi- by barred statute dictment fully descriptive functional under a it remains tations. interpretation. Congress to es If intended majority rejects argument this on the for tablish statute of section ground three-year that the other subsections “intimidating” for statute Congress sought to distin- suggest obstructing impeding, don’t it chose a otherwise way be- It purposes, particularly for awkward achieve this. guish, statute of limitations straightforward more would have been much involving or violence tax offenses force tween intimidating United States officials to outlaw offenses; no therefore and other tax there’s subsection, to outlaw form in one other such to think tried to draw reason another, obstructing them impeding 6531(6). maj. op. in section a distinction only refer to the first in section and to tell enough, but this doesn’t True 6531(6)refers much about whether section us entirety, to section its interpreted courts identical Other criminalizing portion “intimidation” descriptive. as parenthetical is that States officials. reason Herring, 6531 Cir.1979), subsections of section example; none other defendant was “racketeering activity” offenses like section de- charged refers substantive terms, 7212(a), which, criminalizes 1961. Section 1961’s fined 18 U.S.C. force, to other or threat of addition reference incorporated use definition offenses, identifying by their specifically them conduct. Because section federal par- brief but omits “obstruct- section a mentions “intimidation” United States Code Herring, 602 Workinger’s argument description. is “impeding,” enthetical ing” or of the statutes so majority’s analysis. F.2d at 1223 n. 3. One by not defeated candor, and, fact,, ac- timely commendable based with 1. The district court found Count 7 6531(6), knowledges authority be that it to only shows on but also on section not section (citing 6531(1). Appellee n. 5 Br. of at 15 provides a statute of error. The latter 235, 244, defrauding Grainger, 73 involving v. limitations "for offenses 1074, (1953)). 1069, majori- any The attempting or L.Ed. defraud the United States or 1413-14, issue, maj. op. at gov- ty's § discussion agency The thereof." 26 U.S.C. superfluous. appeal reasoning therefore this on is ernment doesn’t defend incorporated parenthetical language, § which U.S.C. tion 9722’s which is transport clearly descriptive. made it a crime securities not restrictive but commerce, knowing interstate them to have Workinger’s explanation is why Nor “stolen, by or fraud.” been converted taken Congress provided would have Herring, at n. 2. 602 F.2d Section “intimidating” statute limitations for but a “(re however, only described section 2314 as three-year statute “obstructing for otherwise lating transportation of to interstate stolen persuasive. impeding” or .He claims that at property).” (quoting' 1223 & n. 3 Id. intimidation offenses are somehow less “dan- 1961) added). (emphasis § U.S.C. Defendant 7212(a) gerous” violations, than other section charge, moved to dismiss section 1961 Appellant’s Reply Br. but this doesn’t claiming Herring while the securities in language into account take of section might have been “converted”- or “taken 7212(a). illegal only statute makes not fraud,” they it was clear had not been “sto impede” to “intimidate or United States offi- len”; part hadn’t he therefore violated the cials, way any but to “in corruptly or incorporated section 2314 that had been into or threats obstruct[ ] or force of force section See id. at 1223. The Fifth ], impede[ or endeavor[ ] obstruct or im- rejected argument, Circuit this explaining pede, the due administration this title.” parenthetical [language] that “the ... was words, 18 U.S.C. In other section merely intended to aid the identification of 7212(a), by terms, anticipates “obstruct- proscrip section 2314 rather than to limit the ing” “impeding” or that involve the Id.; tions of that section.” accord United threats, use of force or can therefore be Garner, 1404, 1418-19 States v. 837 F.2d “dangerous.” quite Suppose, example, Cir.1987) (section 1961’s reference to “title Workinger had into broken the home of (relating United States Code: Section 201 agent investigating the IRS who was him and bribery)” any amounting reached conduct agent’s slit slept. throat while Work- violation, to a section 201 conduct inger wouldn’t have agent, intimidated the within bribery”); “the common definition of surely but he would have endeavored to ob- Metal, Fidelity Deposit Stromberg & Sheet impede struct the administration of the (statuto (D.C.App.1987) 532 A.2d 678-79 particularly “dangerous” tax laws man- ry “title 40 ... reference to 270a- sections ner. (known Act, relating 270e as the Miller bonds)” performance the entire Miller meant legislative history, though not conclu- Act, “only portion per dealing sive, favors the view that section bonds”). formance section refers to in its entirety.2 Ac- cording to Report, the House section point any doesn’t cases any type was intended to reach of “interfer- interpreted parenthetical similar lan- laws, ence” with the administration the tax guage as restrictive. He cites U.S.C. viewed all such interference as 1(a)(1), refers “every which married equally serious: (as 7703),” dividual section defined and 26 principal U.S.C. “If provision states: A [current] the ... Code purpose any $5,000 transaction is to evade or punishable by makes an offense liability avoid chapter, chap- years’ under this this imprisonment fine or or both to (and applied liability forcibly assault, ter shall resist, oppose, etc., be such shall imposed) be regard without employee acting to such transac- officer under inter- similar, tion.” help Workinger. These sections don’t amplified, nal revenue laws. A but 7212(a), Unlike the provision section lan- all this bill covers cases where 1(a)(1) guage naturally injured; section is more the officer intimidated is, understood as restrictive uses corruptly, by because it where force or threat of phrase force, communication, restrictive “as directly defined.” And it’s not attempt clear what comfort gets from sec- made to the administra- clear, 2. general understanding Because I do not believe the is it section of what drafters had appropriate legislative history is consult to for a mind. The are entitled to notice of what’s internal-revenue laws. defendants tion of the illegal they so can conform their conduct. attempts case such to penalty in the of all Bass, 336, 348, United States v. 404 U.S. of the See administration interfere (1971). 515, 522, 92 S.Ct. 30 L.Ed.2d 488 But to be a fine of not internal-revenue laws is unlikely a $10,000 not it is in the extreme that defendant imprisonment for more than would elect to commit crime because he years or both. more than 5 for believed statute limitations Cong., 2d H.R.Rep. 83d Sess. No. years six; only offense three instead of (1954), reprinted, 1954 U.S.C.C.A.N. no plausible there is rebanee interest at Report de- 4135-36. The House further only here. The second rationale is that stake providing 6531 as scribes section courts, legislatures, not should make conduct intimidating period “for criminal; lenity prevents the rule of Id. at 4134. Given States officers.” resolving ambiguity in a from criminal that section Report’s evident view expand scope as of a statute so to crimi- offense, single forth a reference sets legislature what beyond nal statute clear- is, in “intimidating United States officers” But ly intended. id. there’s no concern See context, prohibition entire to the a reference here that a court render criminal what will 7212(a), by section denoted established legislature legal. meant to remain Work- result) (or, precisely, it the first act more clearly inger’s conduct was criminal under proscribes. 7212(a); only doubt is whether section points also to Waters v. United Workinger government long prosecute. waited too States, Cir.1964), where F.2d 739 328. apply lenity no the rule of There’s reason “[sjince the Tenth Circuit reasoned point. on is an 6531] limitation section [under rule, [three-year] general exception to the II strictly apply to those must be construed argument best evidence rule Id. at specifically enumerated.” considerably force than language out of commands less 743. takes this interpretation of section He claims The Tenth there refer context. Circuit government al- tax should not been ring to in sections of the offenses listed deposi- of his lowed to introduce in section code that enumerated were 7212(a), contrast, deposition had also been tion because the is listed 6531. Section majority properly The tape. recorded on “specifically is enu and therefore number rejects argument, wrong for the this but those merated” as the Tenth Circuit used According majority, the tran- points reason. also to Waters’ words. scripts deposi- liberally were admissible because “is to statement that section 6531 be tapes destroyed by their tion owner interpreted in favor the accused.” Id. ordinary trial “in the course of his Supreme has ex before Court since govern- however, and not at the “rule of behest plained, the so-called business Maj. op. at 1415. only of a ment.” lenity” applies where the ambiguous.” “grievously criminal statute join analysis pre- I cannot this States, Staples 511 U.S. v. United rule appbes best supposes that the evidence n. L.Ed.2d n. It not. The evidence rule here. does best (1994) (brackets omitted); Chapman original “the for introduction of cabs States, 453, 463, recording, photograph” writing, (1991). 1919, 1926, That L.Ed.2d prove the proponent “[t]o where the seeks Although Workinger’s met here. test isn’t recording, writing, photo- content of a hand, interpretation rejected can’t be out of Here, gov- graph.” Fed.R.Evid. 1002. persuasive it’s not as the alternative. seek, by introducing the ernment did tapes lenity transcript, prove the content of the I apply see no reason rule of deposition prove what was said at Supreme Court has artic- but event. rule, itself; Br. Workinger admits as much. ulated rationales for the neither two (“The prosecution in this Appellant at 17 implicated The first is here. transcript quire transcript. the the sought case to introduce as its introduction lieu of by Workinger”) Dr. only imagine upheaval admissions can evidence One the this will (the added) govern- (emphasis (citing ER 137 Ninth cause the trial courts of the Circuit. testimony “to authenticate ment offered the virtually transcripts prepared Since all are transcript (an as substantive evidence of what intervening tape, from an medium audio occurred”))-3 reporter It is true that the stenograph paper, computer tape), the prepared transcript by listening the implication today’s opinion clear is that the nevertheless, tapes. transcript, pur- The precludes best rule introduction evidence ports at the deposi- to reflect what was said intervening if transcript the medium is tion, tapes.4 was on the The what best told, strange available. All I think this is a application. rule has no evidence entirely unnecessary. result and majority independent attributes some join remaining portions majori- I significance tape transcript by arguing ty opinion. lead to “[a] different rule would tran- being scripts submitted with the admonition me, transcript

‘Trust does reflect what taped.’ precisely

was [This] is what the designed rule

best evidence was avoid.”

Maj. op. hopelessly at 1415. But this confus- policies

es best evidence rule with hearsay transcript

those rule. The accurately here was admissible not it America, UNITED STATES of tape, reflected the but because Donald John- Plaintiff-Appellee, son, ex-wife, attorney for the defendant’s accurately depo- testified that reflected the ER at 90-92. sition. Without this testimo- COLLINS, Kevin James Defendant-

ny present, from someone who was I’m not Appellant. transcript at all would sure have been No. 95-10304. since, notes, majority admissible as the present was not transcriber when the testi- Appeals, United States Court of mony given thus could authenti- Ninth Circuit. transcript cate the as an accurate reflection maj. of what said at deposition. See Argued May and Submitted 1996. op. at 1415. July 23, Decided 1996. And here is what I find curious about the majority opinion. ensuring In the name of my integrity transcripts, colleagues

permit transcript the introduction of a where intervening tape destroyed. has been tape

Since we no evidence what the itself, transcript really

said than the we secretary

do have a situation where who tape us

transcribed can tell “I have tape,

listened and here what time,

says.” Maj. op. at 1415.5 At the same majority say seems to tape

available, the best evidence rule would re- majority's contrary, maj. lently tape, 3. altering statement to the the best evidence rule 1414-15, op. might isn’t accurate. well bar admission of the prove tape. what was on the case the In this distinction doesn't matter much, case, noted, tape example, 5.Fortunately, says really it well but could. In a what the charged supra. the defendant where with fraudu- doesn't matter. note

Case Details

Case Name: United States v. William Lee Workinger

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 23, 1996

Citation: 90 F.3d 1409

Docket Number: 95-30200

Court Abbreviation: 9th Cir.