791 F.2d 336 (5th Cir. 1986), 85-2633, United States v. Nelson

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation791 F.2d 336
Docket Number85-2633.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Edwin NELSON, Defendant-Appellant.
Date05 June 1986

Page 336

791 F.2d 336 (5th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Edwin NELSON, Defendant-Appellant.

No. 85-2633.

United States Court of Appeals, Fifth Circuit

June 5, 1986

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Susan L. Yarbrough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal From the United States District Court For the Southern District of Texas.

Before RUBIN, POLITZ, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant William Edwin Nelson was indicted on two counts of tax evasion for the tax years 1980 and 1981, in violation of 26 U.S.C. Sec. 7201. Count I of the indictment alleged that Nelson attempted to evade taxes by deliberately understating his income on his 1980 tax return. Count II of the indictment alleged that Nelson, for the tax year 1981 "did wilfully and knowingly attempt to evade and defeat ... tax ... by failing to make such income tax return ... and by failing to pay ... income tax ... and by concealing and attempting to conceal

Page 337

from all proper officers ... his true and correct taxable income...." On Count I, the jury found Nelson guilty only of a lesser-included misdemeanor offense of making a false statement on his 1980 tax return. See 26 U.S.C. Sec. 7207. As to his 1981 tax year (i.e., Count II), the jury found Nelson guilty of the felony offense of tax evasion under 26 U.S.C. Sec. 7201. The district court sentenced Nelson to imprisonment of one year on each count, to be served concurrently, but consecutively to a previously imposed four-year sentence for an unrelated marijuana conspiracy conviction.

On this appeal, Nelson challenges only his conviction with respect to Count II. With respect to Count II, Nelson first contends that the indictment was defective; Nelson secondly contends that the jury charge was defective. With particularity, Nelson contends that the indictment and charge under Count II allowed Nelson to be convicted of the felony offense under section 7201 without the jury finding that he committed an affirmative act to evade or defeat tax. See Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). We hold that Nelson's conviction on Count II (i.e., that count relating to the 1981 tax year) must be reversed due to the defective jury charge.

In Spies, the Supreme Court explored the distinction between the felony statute i.e., section 7201 (formerly section 145(b)), and the misdemeanor statute, i.e., section 7203 (formerly section 145(a)). 1 The defendant Spies was convicted of the felony statute. The trial court in Spies instructed the jury that Spies' failure to file a return and pay tax was sufficient to sustain his conviction under the felony statute. The trial court refused Spies' requested instruction that an affirmative act was necessary to convict Spies of the greater felony offense; the Supreme Court thereupon reversed Spies' conviction. The Supreme Court held that the felony offense differed from the misdemeanor offense in that the felony offense required "some willful commission in addition to the willful omissions that make up the list of misdemeanors." 317 U.S. at 499, 63 S.Ct. at 368. The Supreme Court continued:

Willful but passive neglect of the statutory duty [to file a return and to pay tax] may constitute the lesser [misdemeanor] offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony.

Id. The Supreme Court concluded, "[W]e think a defendant is entitled to a charge which will point out the necessity for such an inference of willful attempt to defeat or evade tax from some proof in the case other than that necessary to make out the...

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