U.S. v. Motley
| Citation | 940 F.2d 1079 |
| Decision Date | 20 August 1991 |
| Docket Number | No. 90-3833,90-3833 |
| Parties | -5730, 92-1 USTC P 50,104, 33 Fed. R. Evid. Serv. 1022 UNITED STATES of America, Plaintiff-Appellee, v. Johnny L. MOTLEY, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Christina McKee, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.
Jeffrey H. Frandsen, Parr, Richey, Obremskey & Morton, Indianapolis, Ind., for defendant-appellant.
Before CUDAHY and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.
Johnny Motley prepared income tax returns on a contingency fee basis. The greater the refund, the greater his fee. In an effort to increase his income, Motley fabricated tax deductions to garner a greater refund for his clients and thus larger fees for himself. His clients signed the returns, claiming they were unaware of Motley's illegal technique. Motley never signed the returns, but he did mail a number of them himself. The remainder were mailed by the taxpayers.
An undercover agent named Sherree Anderson paid Motley a visit, and he agreed to prepare her tax returns. Motley was able to recover a $4,000 refund for Anderson by, among other things, listing her cat as a dependent and claiming nonexistent charitable deductions. A grand jury returned an indictment against Motley, charging him with nineteen 1 counts of presenting false claims to the federal government. Motley was charged with violating 18 U.S.C. Sec. 287, which provides that "[w]hoever makes or presents to ... the United States ... any claim ... knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years," and he was also charged under 18 U.S.C. Sec. 2, which reads as follows:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Motley was tried by a jury and convicted on all nineteen counts. He was sentenced to two concurrent terms of 24 months, three years probation, and a special assessment of $950. He raises three issues on appeal, all related to his conviction.
Motley first argues that the trial court erred in failing to give a jury instruction he offered. Motley clearly had a right "to have the jury consider any theory of defense which is supported by law and some evidence in the record." United States v. Monzon, 869 F.2d 338, 345 (7th Cir.1989); see also United States v. Boucher, 796 F.2d 972, 975 (7th Cir.1986). Thus, Motley was entitled to the instruction if he could show that:
(1) the instruction is a correct statement of the law; (2) the theory of defense is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) failure to include an instruction of the Defendant's theory of defense in the jury charge would deny the Defendant a fair trial.
Monzon, 869 F.2d at 345; see also United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987). Motley's proposed instruction read, in part, as follows:
A person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself.
Accordingly, you may find a defendant guilty of the offense charged if you find beyond a reasonable doubt that the government has proved that another person actual [sic] committed the offense with which the defendant is charged, and that the defendant aided or abetted that person in the commission of the offense.
As you can see, the first requirement is that you find that another person has committed the crime charged. Obviously, no one can be convicted of aiding or abetting the criminal acts of another if no crime was committed by the other person in the first place.
....
(emphasis supplied). Motley claims that district court's jury instructions failed to include the highlighted section above and that the jury therefore convicted him of aiding and abetting crimes that, he argues, the government never proved anyone committed.
To the extent that Motley's instruction implies that the jury may not convict him unless one or more of the taxpayers was also charged and convicted of some crime, the instruction is not legally correct. "The failure to prosecute or obtain a prior conviction of a principal ... does not preclude conviction of the aider and abettor...." United States v. Ruffin, 613 F.2d 408, 412 (2d Cir.1979); see also United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986) (). Nonetheless, "[i]t is hornbook law that a defendant charged with aiding and abetting the commission of a crime by another cannot be convicted in the absence of proof that the crime was actually committed." Ruffin, 613 F.2d at 412; Powell, 806 F.2d at 1424.
It is the proof of an underlying offense that Motley claims was missing at his trial; the government, Motley argues, failed to show that he aided the taxpayers in committing some crime. The court gave the following two jury instructions related to aiding and abetting:
Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of a crime is guilty of that crime. However, that person must knowingly associate himself or herself with the criminal venture, willfully participate in it, and try to make it succeed.
In other words, every person who willfully participates in the commission of a crime may be found to be guilty of that offense, and it does not matter whether the participation consists of actually executing the crime or causing it to be done. The defendant must commit an overt act designed to aid in the success of the criminal venture. The defendant need not personally perform every act constituting the crime charged.
In considering the defendant's guilt or innocence of the crimes charged in the indictment, you may consider whether the defendant aided, abetted, or assisted the commission of the crimes as charged in the indictment.
These jury instructions did not convey to the jury all of the criteria it needed to convict Motley. There was no mention of the requirement that the government prove that some crime was actually committed.
The government claims that such proof was unnecessary in this case because 18 U.S.C. Sec. 2 covers both traditional aiding and abetting, which requires proof that the principal committed some underlying offense, as well as a second type of aiding and abetting. The traditional notion of aiding and abetting is found in subsection (a) of 18 U.S.C. Sec. 2: "[w]hoever commits an offense ... or aids, abets, ... or procures its commission, is punishable as a principal." A variation of the traditional rule appears in subsection (b) of 18 U.S.C. Sec. 2: "[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal." Motley could thus be found guilty of causing a taxpayer to commit the crime even though the taxpayer did not have the criminal intent necessary to sustain a conviction. Whether the taxpayer committed a specific criminal offense becomes irrelevant; the question is whether the act Motley caused the taxpayer to perform (i.e., mailing a false claim to the government) would be actionable if performed directly by Motley. "It is ... clear that under 18 U.S.C. Sec. 2(b) one who causes another to commit a criminal act may be found guilty as a principal even though the agent who committed the act is innocent or acquitted." Ruffin, 613 F.2d at 412; see also United States v. Cook, 745 F.2d 1311, 1315 (10th Cir.1984) (). The record in this case clearly supports the argument that the government entered evidence sufficient to sustain a conviction under section 2(b).
The problem with the government's section 2(b) argument, however, is that it never requested (and the court never gave) a jury instruction on section 2(b). The jury instructions on aiding and abetting related solely to section 2(a)--traditional aiding and abetting that requires proof of an underlying offense. Motley's conviction under section 2(a) was thus improper because the government failed to offer any proof that the taxpayers in question committed some offense against the federal government. Our analysis does not end here, however.
Motley does not claim on appeal that he had no connection to the illegal deeds charged in the indictment, only that the government selected the wrong statute under which to charge him. According to Motley, the government could have secured a valid conviction under 26 U.S.C. Sec. 7206(2), which makes it a felony to "aid[ ] or assist[ ] in ... the preparation or presentation under ... the internal revenue laws, of a return ... which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return." (emphasis supplied). Obviously, a conviction for aiding and abetting under this section does not require proof that the taxpayer committed an offense against the government. See United States v. Hooks, 848 F.2d 785, 791 (7th Cir.1988).
At oral argument, we asked defendant's counsel if section 7206(2) was not simply a lesser-included offense of the section 2/section 287 violation charged in Motley's indictment, and he conceded that it was. A lesser-included offense is one...
To continue reading
Request your trial
-
US v. Jackson, 94-40001-01/02-SAC.
...Subsection (b) is simply a "variation" on the traditional notion of aiding and abetting found in subsection (a). United States v. Motley, 940 F.2d 1079, 1082 (7th Cir.1991). "The purpose of § 2 is to permit a person operating from behind the scenes to be convicted even though that person is......
-
U.S. v. Jimenez-Torres, 03-1138.
...offense of using a firearm during a federal crime of violence in violation 18 U.S.C. § 924(c)(1)(A). See United States v. Motley, 940 F.2d 1079, 1082 (7th Cir.1991) ("A lesser-included offense is . . . by definition included in an indictment charging a greater While Jiménez's indictment inc......
-
Keating v. Hood
...914 F.2d 1239, 1241 (9th Cir.1990) (citing United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986)); see also United States v. Motley, 940 F.2d 1079, 1081 (7th Cir.1991) ("It is hornbook law that a defendant charged with aiding and abetting the commission of a crime by another cannot be......
-
U.S. v. Freed, 17-2816
...). Additionally, it is axiomatic that one cannot aid and abet a crime unless a crime was actually committed. See United States v. Motley , 940 F.2d 1079 (7th Cir. 1991). Freed latches onto this requirement and asserts the district court’s aiding and abetting instruction was deficient becaus......
-
Corporate Tax Departments and the New Focus on Corporate Criminality
...743 F.2d 1450 (10th Cir.), cert. denied, 471 U.S. 1015 (1985). 19 United States v. Carrodeguas, 747 F.2d 1390 (11th Cir. 1984), cert. denied, 474 U.S. 816 (1985). 20 United States v. Dale, 991 F.2d 819 (D.C. Cir.), cert. denied, 114 S. C......
-
False statements and false claims.
...the government "'without regard to whether that person had direct contractual relations with the government'"); United States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991) (finding preparer of income tax returns violated [section] 287, although he did not actually submit (170.) 18 U.S.C. [......
-
False statements and false claims.
...contractor, knowing claims would be presented to General Services Administration for reimbursement). (169.) See United States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991) (finding preparer of income tax returns violated [section] 287, although he did not actually submit (170.) 18 U.S.C. [......
-
False statements and false claims.
...the government "'without regard to whether that person had direct contractual relations with the government'"); United States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991) (finding preparer of income tax returns violated [section] 287, although he did not actually submit (172.) See e.g., U......
-
False statements and false claims.
...contractor, knowing claims would be presented to General Services Administration for reimbursement). (169.) See United States v. Motley, 940 F.2d 1079, 1082 (7th Cir. 1991) (finding preparer of income tax returns violated [section] 287, although he did not actually submit (170.) 18 U.S.C. [......