Moser v. U.S.
| Decision Date | 09 March 1994 |
| Docket Number | No. 93-2370,93-2370 |
| Citation | 18 F.3d 469 |
| Parties | Valli MOSER, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John W. Vaudreuil, Asst. U.S. Atty., Timothy O'Shea (argued), Office of the U.S. Atty. Madison, WI, for plaintiff-appellee.
Russell J. Mittelstadt (argued), Madison, WI, for defendant-appellant.
Before CUDAHY and FLAUM, Circuit Judges, and SHARP, District Judge. *
In the district court, the appellant, Valli M. Moser, was charged in a two-count indictment. The appellant was charged in Count I with bribing an IRS employee in violation of 18 U.S.C. Sec. 201(b)(1)(A); and in Count II with making false statements to an IRS inspector in violation of 18 U.S.C. Sec. 1001. Specifically, the indictment charged the appellant as follows:
directly, corruptly gave, offered and promised something of value to a public official with intent to influence an official act, specifically, the defendant VALLI M. MOSER, acting with the intent to influence the collection group manager for the Internal Revenue Service in Eau Claire, Wisconsin, in his official actions regarding the reduction of a tax liability, directly, corruptly gave, offered and promised that public official that she, VALLI M. MOSER, would sell and market that public official's home at no cost to that public official, and, further that she, VALLI M. MOSER, would return to that public official her part of the commission on the purchase of an existing home by that public official.
(All in violation of Title 18, United States Code, Sec. 201(b)(1)(A)).
knowingly and willfully made false material statements and representations to the United States Department of the Treasury, Internal Revenue Service, a department of the United States, in a matter within the jurisdiction of that department, specifically, the defendant VALLI M. MOSER stated and represented to an inspector from the Internal Revenue Service, Department of the Treasury, that she was not aware of the amount owed to the IRS by her ex-husband and that she had not discussed this tax liability with the collection group manager for the Internal Revenue Service in Eau Claire, Wisconsin, the defendant then knowing that these statements and representations were false.
(In violation of Title 18, United States Code, Sec. 1001).
The appellant was found not guilty of Count I and guilty of Count II by a jury. Chief Judge Crabb sentenced her to three years probation, and the appellant was ordered to serve the first four months in home detention and was fined $5,000.00. This appeal followed.
The appellant raises overlapping contentions with regard to the so-called "exculpatory no" doctrine, and argues further that the appellant's motion to dismiss Count II at the conclusion of the government's case in chief should have been sustained. It appears that the appellant has preserved the so-called "exculpatory no" argument with a motion to dismiss Count II pretrial, motion in limine, and a motion for judgment of acquittal made pursuant to Fed.R.Crim.P. 29 at the end of all the evidence. Precisely the same argument which was made in all these motions and the district court denied same in all instances.
The standard of review here is de novo review of a question of law. United States v. Church, 970 F.2d 401, 404 (7th Cir.1992). See also United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (9th Cir.1988); United States v. Taylor, 907 F.2d 801, 803 (8th Cir.1990). This is a case where one might be tempted to speculate and surmise about subjects that are beyond the formal record. That subject was broached during oral argument and this court will stay faithfully within the formal record of this case.
While the jury found the defendant not guilty of Count I, a bribery charge, it found the defendant guilty of Count II, which purported to assert a violation of Title 18 U.S.C. Sec. 1001:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
18 U.S.C. Sec. 1001 (1976).
To some extent, both at oral argument and in the briefs, counsel for the appellant has attempted to reach well beyond the issues preserved and to suggest other possible arguments. This court will confine itself to those issues which have been adequately preserved. In reference to Count II, the government's key witness, apparently, was IRS Inspector John Idleberg. The evidence discloses that this appellant's ex-husband was the principal target of the IRS activities in this case when he was refinancing property with a bank in Menomonie, Wisconsin. This appellant was involved with that transaction because she was still listed on the existing mortgage. In order to complete that refinancing, it was necessary for the ex-husband to pay an outstanding tax liability to the IRS, which was thought to be approximately $11,000 but actually turned out to be $21,000. That fact caused problems in regard to the refinancing. Brian Best was the collections manager of the IRS in Eau Claire, Wisconsin. Best had met the appellant in her capacity as a realtor. Conversations passed between the appellant and Best, and in 1992, the appellant discussed her current problem involving her ex-husband and his tax liability. Best explained the IRS procedures of "abatement through reasonable cause and offer in compromise" programs. Best believed as a result of these conversations that the appellant had offered him a bribe. These meetings with the appellant were recorded. Since the appellant was found not guilty of Count I, it is not necessary to explicate much of the Brian Best testimony. Nor is it necessary to put the label of entrapment on it, which her counsel repeatedly did in oral argument. 1
The event appears to have taken place on the morning of August 27, 1992, when Inspectors John Idleberg and Thomas Irvin of the IRS visited the appellant's home in Eau Claire, Wisconsin, to interview her. The interview was quite professional and quite formal, except that the appellant was attired in a bathrobe and declined the opportunity to change her clothes. However, she did not appear nervous or frightened. She was advised of her constitutional rights and executed an IRS form titled "Waiver of Right to Remain Silent and of Right to Advice of Counsel." She read the form, said she understood her rights, as they were orally explained to her. She signed the form indicating that she understood her rights and was willing to waive them and speak to the inspectors. She was then asked to describe her last contact with the IRS. She told the inspectors that her husband was re-financing a loan and since she was named on some of the property, she contacted the bank and the IRS to obtain an exact payoff figure. She said that the IRS did not give her any details. The appellant also told the inspectors that she did not know the amount of the taxes owed to the IRS, and further related that once the loan was signed at the bank, the bank personnel had given her the check to drop off to the IRS office in Eau Claire. She did not recall the amount of the check. Inspectors suggested a different version of when the check had been dropped off at the IRS office, and gave her a chance to correct her statement. The appellant said that she wasn't sure how she had obtained the check, but she believed that she got the check and gave it to Brian Best of the IRS the next day in an envelope. She claimed that she did not know the amount of the check and that the envelope was not opened in her presence. She denied that there had been any discussion of taxes between her and Brian Best, and denied any efforts to cut any deal with the IRS and Brian Best to have her ex-husband's taxes reduced. This interview lasted approximately forty minutes, covering discussions about the selling of Brian Best's house at no cost to him. She also did not tell them that she had spoken to Brian Best on at least five occasions, on July 14, 15, 31, August 4 and 6, regarding her ex-husband's tax problems. The appellant was given an opportunity to change the information she had provided, and then expressed her discomfort with the interview and it was terminated. A later call was made by Brian Best, in which appellant indicated a desire to talk to him about her ex-husband. When Best asked her if she told the inspectors that he had reduced the taxes in return for her letter, she said, "no, definitely not." The appellant said that she had told the inspectors that she didn't know the dollar amount and that she had said nothing about the arrangements with Best. The appellant testified at her own trial regarding these interviews, claiming that she believed that the inspectors were accusing her of receiving a $10,000 kickback. She testified that she had called the IRS office to inquire about the accuracy of the tax bill, and that she told the inspectors that she had not contacted Brian Best about the reduction of a tax liability, and she admitted that she told the inspectors that she did not know the exact amount of the check given to Brian Best.
The appellant attempts to argue in her brief that the district court erred by failing to instruct the jury on the "exculpatory no" doctrine in addition to failing to...
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