U.S. v. Rojas

• Decision Date: 26 May 1977
• Docket Number: No. 76-3008,76-3008
• Citation: 554 F.2d 938
• Parties: 77-2 USTC P 9534 UNITED STATES of America, Plaintiff-Appellant, v. Juan Gerardo ROJAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 938

554 F.2d 938

77-2 USTC P 9534

UNITED STATES of America, Plaintiff-Appellant, v. Juan Gerardo ROJAS, Defendant-Appellee.

No. 76-3008.

United States Court of Appeals, Ninth Circuit.

May 26, 1977.

William D. Keller, U. S. Atty., Kathryne Ann Stoltz, Asst. U. S. Atty., argued, Los Angeles, Cal., for plaintiff-appellant.

Susan A. Guberman, Nasatir, Sherman & Hirsch, argued, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and GOODWIN, Circuit Judges, and TURRENTINE, ^* District Judge.

CHAMBERS, Circuit Judge:

This case presents two primary issues whether a government appeal in a criminal case from a district court's granting of a defendant's motion for judgment of acquittal under Fed.R.Crim.P. 29(c), which overturns the jury's verdict of guilty, is barred by the Double Jeopardy Clause; and, if not, whether the district court's favorable ruling on such motion was proper. We answer both questions in the negative in this case and therefore reverse.

Defendant, a qualified tax preparer, was indicted along with two other co-defendants for 1 count of conspiracy, in violation of 18 U.S.C. § 371; 3 counts of making false claims (in the form of income tax returns) against the government, in violation of 18 U.S.C. § 287; and 2 counts of possession of stolen property (in the form of the fraudulently obtained tax refund checks), in violation of 18 U.S.C. § 641. Defendant proceeded to trial by jury alone, the other two co-defendants having pleaded guilty to one count of the indictment. The government's evidence at trial revealed a scheme whereby defendant conspired with co-defendants Lisa Brock (Lisa) and Richard Smith (Smith) and unindicted co-conspirator Darlene Kirkwood (Darlene) to submit false federal income tax returns and to fraudulently obtain, forge and cash the corresponding tax refund checks, and committed various overt acts in furtherance of this conspiracy. Darlene, who was given a deal by the government under which all charges against her would be dropped upon her successful completion of 1 year probation, provided by far the most crucial testimony for the government. Her material testimony was to the following effect.

Darlene and her friend Lisa, who previously had had her own tax return filled out by defendant, discussed with him the idea of the two women obtaining some W-2 forms and then having defendant fill them out. Thereafter, Darlene stole three W-2 forms from L.A. City Hall, and she and Lisa took them to defendant's office. According to Darlene, defendant indicated that there would be a percentage involved for his filling them out, and it was stipulated that defendant did in fact fill out these tax returns and sign his own name thereto as the tax preparer. Darlene further testified that she and Lisa, in defendant's presence, inserted imaginary spouses' names on the returns along with the name from the stolen W-2 forms. When they reached the part of the return calling for dependents, defendant simply said "Give me some names," and imaginary dependents' names accordingly were entered by defendant. The women then forged the taxpayers and imaginary spouses' signatures on the returns, again in defendant's presence. Upon completion, these fraudulent tax returns were mailed out by Darlene. Thereafter, two of the corresponding refund checks were sent to defendant's office. According to Darlene, when she picked the first check up, defendant showed her a pink slip of paper with the figure "225" on it and indicated that that was what he expected as his cut from the check. ¹ The refund check was then fraudulently cashed by the two women, with the assistance of co-defendant Smith, after the women forged the taxpayer and imaginary spouse's signatures on the check. A similar procedure ensued for the other refund check that was received in defendant's office. ²

Darlene's story was shaken by defense counsel on cross and re-cross examination. Her recollection of the meetings with defendant and precisely what was said at such meetings was rather sketchy, and at times even inconsistent. Additionally, defense counsel, in an effort to critically impeach Darlene's credibility, brought out her prior conviction for shoplifting and her obvious motivation to testify favorably for the government in return for its favor to her.

The government also introduced certain exhibits found in a search of defendant's office carbon copies of 2 of the 3 tax returns prepared from the three stolen W-2 forms, which were found among a few other items in a locked desk drawer separate from defendant's other tax return records. In addition, it was shown that the names of the taxpayers whose W-2 forms had been stolen and whose names, along with the imaginary spouses' names, were used in completing the fraudulent tax returns were missing from defendant's "Accounts receivable" ledger, even though defendant testified that he prepared these returns without being paid in advance. This ledger did contain Lisa's name for her own return as well as names pertaining to tax returns prepared both before and after the fraudulent returns involved here. At the close of the government's case-in-chief, defendant moved for judgment of acquittal under Fed.R.Crim.P. 29(a), and this motion was denied by the district court.

Defendant testified on his own behalf and painted a picture of complete innocence. According to him, there was never any discussion of the fraudulent scheme related by Darlene. The two women, who defendant believed were cousins, simply came to his office with the three W-2 forms which, though unknown to him, had been stolen by Darlene from L.A. City Hall. (Defendant already knew Lisa since he had just recently filled out her own tax return.) The women told him that one of the three W-2 forms was Darlene and her husband's, that the second was that of Darlene's cousin or neighbor, and that the third was that of Lisa's cousin or neighbor. Defendant testified that he filled out these returns for the women thinking they had the taxpayers' permission to have them prepared. No fraudulent information was given by Lisa or Darlene as far as defendant knew, and he did not provide any information to be included in the returns. According to defendant, he only saw Darlene sign what he thought was her own name on what was represented to be her return. Defendant claimed that he had no knowledge or reason to know that the W-2 forms had been stolen and were being used to produce fraudulent tax returns, and that he never discussed or indicated that he expected a percentage for any wrongdoing. Defendant further stated that the checks were to be sent to his office and that the women would pay him the preparation fee after the checks were received. With regard to the government's exhibits, defendant essentially declared that he had no established record-keeping procedures as yet.

After deliberating for 2 days, the jury returned with a verdict of guilty on all 6 counts of the indictment in which defendant was charged. Upon the jury's discharge, defendant orally moved for judgment of acquittal under Fed.R.Crim.P. 29(c), and after immediately hearing argument thereon, the district court granted the motion and thus set aside the jury's guilty verdict. The government now appeals from that action by the district court.

The first question, which is of determinative importance to our jurisdiction, is whether the government's right to appeal in this situation is barred by the Fifth Amendment's Double Jeopardy Clause. The government's right to appeal is based on 18 U.S.C. § 3731, which has been construed to allow government criminal appeals so long as the Double Jeopardy Clause is not offended thereby. ³ See United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). The Double Jeopardy Clause "was directed at the threat of multiple prosecutions, not at government appeals, at least where those appeals would not require a new trial." Id. at 342, 95 S.Ct. at 1021. Thus, it is the possibility of a second trial with its attendant "embarrassment, expense and ordeal," which the clause was designed to prevent. ⁴ Id. at 343-44, 95 S.Ct. 1013, quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); see United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). This potential danger of a second trial is not present, however, in a situation such as this where the district court grants a post-trial motion for judgment of acquittal under Rule 29(c) and thereby sets aside the jury's verdict of guilty. In this situation, a successful government appeal will not result in the defendant's required subjection to a second trial, but rather will merely cause reinstatement of the jury's guilty verdict. ⁵ Since no further fact-finding proceedings will be necessary upon reversal and remand, the defendant's double jeopardy interests are not implicated by the appeal. ⁶

The Supreme Court's most recent exposition in the Double Jeopardy area does not alter this conclusion. In United States v. Martin Linen Supply Co., --- U.S. ----, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the Court held that a district court's judgment of acquittal granted under Rule 29(c) after a deadlocked jury had been discharged and a mistrial accordingly declared is not appealable by the government under 18 U.S.C. § 3731, because such appeal would violate the Double Jeopardy Clause. In so holding, however, the Court reaffirmed the basic principles established two Terms before in Wilson and Jenkins. The Martin Linen decision clearly re-emphasized that it is the potential danger of multiple trials or further fact-finding proceedings which the Double Jeopardy Clause was meant to prevent, ⁷ and the decision was expressly limited to the "hung jury" situation, ⁸ where the necessity for further proceedings upon appellate reversal and remand is...