U.S. v. McKee, 90-1693

Decision Date09 August 1991
Docket NumberNo. 90-1693,90-1693
Citation942 F.2d 477
Parties-5349, 92-1 USTC P 50,214 UNITED STATES of America, Appellee, v. Joseph V. McKEE, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Carol Marcotte, argued (Rodolfo Rivera, on brief), Clayton, Mo., for appellant.

Steven Muchnick, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Joseph V. McKee appeals from his conviction on three counts of attempting to evade or defeat the federal income tax in the tax years 1981, 1982, and 1983, in violation of 26 U.S.C. § 7201 (1988). The district court sentenced McKee to prison for five months followed by three years of probation, and fined him $6,000 plus the costs of prosecution. On appeal, he argues that the district court abused its discretion by improperly answering a jury question asked during deliberation, and by admitting evidence of McKee's taxpaying activities in years other than those charged. We affirm.

To convict McKee of violating section 7201, the government had to prove the existence of a tax deficiency, an affirmative act of evasion or attempted evasion, and that the act was willful. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965); United States v. Frederickson, 846 F.2d 517, 520 (8th Cir.1988); United States v. Felak, 831 F.2d 794, 798 (8th Cir.1987). Each count of the indictment alleges, by year, a separate violation of section 7201. The indictment (which was read to the jury as part of the court's instructions) also alleges, in each count, instances of conduct by which McKee violated section 7201. In count 1, for instance, the indictment charges that McKee attempted to evade and defeat the income tax "in the following respects:" e.g., by failing to file a tax return or pay income tax due by April 15, 1982; by filing a false withholding form (W-4); and by submitting various documents containing false social security numbers. Thus, the district court instructed the jury, "Various schemes, subterfuges, and devices may be resorted to in an attempt to evade or defeat a tax. The indictment alleges failing to make an income tax return on or before the date required by law, filing a false Form W-4, and using false Social Security Numbers." Instruction No. 19, reprinted in Appellant's App. at 93.

In this context, the district court gave the supplemental instruction to which McKee objects. The jury asked: "Do all items in a Count (Count 1, Count 2, or Count 3) have to be completely agreed upon to reach a verdict, or may specific items be excluded?" Trial Transcript vol. 4, at 87; Exhibit 4. The court received the jury's question around seven o'clock on Friday night, and, after talking to counsel, took it under advisement until Monday morning. Because the court was not certain what the jury meant in its question by "items," it asked the jury foreperson if she could state the question differently. She responded:

[L]ike in Count 1, there are, I believe, seven items. And we have a questionable doubt as to willfully mischarging with that one. Like if one specific item out of those included in a count--if we have a problem with that, does that have to change our ruling on the whole--our verdict, in other words?

Trial Transcript vol. 5, at 8. The district court then understood that by "items" the jury meant those instances of conduct alleged in each count of the indictment. In other words, the jury asked whether it must find that McKee was guilty of each alleged instance to find him guilty of attempting to evade or defeat the tax.

The district court answered the jury by first pointing out that the jury must consider all the instructions, including the one defining "willful" and the one setting forth the burden of proof. Id. at 9. The court also mentioned the instructions setting forth the essential elements the jury must find to convict, and told the jury, "You can't cast out any one of the elements. You've got to find them all to return a verdict of guilt or otherwise you acquit." Id. The court continued as follows:

Now--and I think from what you said, I may understand your question. Let's go deer hunting. I'll try to give you an illustration. Let's say we have a charge of taking too many deer in Denton County. And I'll use the county because it varies in different counties. Maybe you could take one doe in Denton County, and with a firearm. Because the rules may be different between firearms and bow and arrow. Okay? And in this county the limit, let's say, is one doe. Now, let's [say] there's evidence that three does were taken by firearm in that county. Some of you may believe that two were taken and some could believe that three were taken. And if that were the case--if you had found the proper county and found the firearm and found in excess of one doe was taken, the Court believes a verdict of guilt[y] would be appropriate. If you didn't--if somebody said, well, I just believe one--, you couldn't get an unanimous verdict then, on exceeding the number. But you wouldn't have to find three. You'd have to find at least two. I hope that's somewhat helpful.

Id. at 10. 1 McKee argues that this answer was "clearly misleading and confusing to the jury," that it "emphasized the case for the prosecution without giving equal emphasis or importance to the defenses available to" McKee, and that it "created the impression that if the jury were going to find [McKee] guilty of one Count, they would have to find him guilty" of all counts. Brief for Appellant at 7, 9, 10.

" 'The response to a jury request for supplemental instructions is a matter within the sound discretion of the district court.' " United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir.1988) (quoting United States v. White, 794 F.2d 367, 370 (8th Cir.1986)). The district court does not abuse its discretion when its answer is "accurate, clear, neutral, and non-prejudicial." Id. While each of us might have answered the jury's question differently (differently not only from the district court's answer, but also from each other's), we think that the district court's supplemental instruction in this case was accurate, clear, neutral, and non-prejudicial.

In essence, the jury asked whether they must find McKee guilty of each instance alleged in each count of the indictment. The district court answered no, and illustrated its answer with the hunting analogy. If a statute required that a hunter could not take more than one deer, a jury could convict him so long as it unanimously found that he took more than one, regardless...

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