U.S. v. Amundsen, s. 89-50161
| Decision Date | 04 March 1992 |
| Docket Number | 89-50164 and 89-50165,89-50162,Nos. 89-50161,s. 89-50161 |
| Citation | 967 F.2d 592 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Eva R. AMUNDSEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leon G. HILL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wayne G. HILL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hyrum J. AMUNDSEN, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.
Eva Amundsen, Hyrum Amundsen, Leon Hill, and Wayne Hill appeal their convictions for making and subscribing false tax returns and assisting in the preparation of false returns, in violation of 26 U.S.C. §§ 7206(1) and 7206(2). We affirm.
We are met at the outset with a question of jurisdiction. Hyrum Amundsen contends that the district court lacked jurisdiction because: (1) the Treasury Secretary did not properly delegate enforcement authority to the Commissioner of Internal Revenue; and (2) the Internal Revenue Service failed to comply with the Paperwork Reduction Act of 1980, 44 U.S.C. § 3501 et seq. Both theories are meritless.
According to Amundsen, the district court lacked jurisdiction because the agency delegation order was not published in the Federal Register as required by the Federal Register Act, 44 U.S.C. § 1501 et seq., and the Administrative Procedure Act, 5 U.S.C. § 552. These statutes do not create a jurisdictional issue, but rather relate to the lawfulness of the actions taken by the I.R.S. In any event, the FRA argument is untenable under our recent holding in United States v. Saunders, 951 F.2d 1065, 1067-68 (9th Cir.1991) (). The APA also affords no support, as that statute does not require publication of orders "which internally delegate authority to enforce the Internal Revenue laws." See United States v. Hoyland, No. 91-55233, slip op. 2781, 2785 (9th Cir. Mar. 20, 1992) (citation omitted).
Amundsen alternatively argues that the I.R.S. failed to comply with the Paperwork Reduction Act of 1980, 44 U.S.C. § 3501 et seq. This argument also is irrelevant to the jurisdictional issue. The PRA simply requires that any "information collection request" from a federal agency display an Office of Management and Budget control number. 44 U.S.C. § 3512. The consequence of noncompliance is that "no person shall be subject to any penalty for failing to maintain or provide information" to the agency. Id.
Apart from the jurisdictional concern, the PRA provides no defense in this case. The statute is designed to control agency activity, and does not provide an escape hatch to taxpayers who violate criminal statutes. United States v. Hicks, 947 F.2d 1356, 1359 (9th Cir.1991). Accordingly, the PRA does not relieve Amundsen of liability under 26 U.S.C. §§ 7206(1) and 7206(2). See id.
Having determined that the district court had jurisdiction, we turn to the Fifth Amendment issue. Hyrum Amundsen contends that the prosecutor impermissibly commented on his failure to testify by referring to statements Amundsen made "through his attorney and through his wife." This comment came during the rebuttal phase of closing argument, after the prosecution had summarized Amundsen's views that wages are not taxable and that the tax system is unfair and unconstitutional. Amundsen objected and moved for a mistrial, but the district court denied his motion.
Our review of this decision is de novo. United States v. Schuler, 813 F.2d 978, 980 (9th Cir.1987). We must assess whether the language used was manifestly intended to be a comment on the failure to testify, or was of such character that the jury would naturally and necessarily take it to be a comment on the failure to testify. United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir.1984).
The prosecutor seems to misspeak by first referring to Amundsen's direct statements, but then refers to statements made through Amundsen's attorney and his wife. It thus appears that the government intended to address the argument being rebutted and the appeal to the jurors' sympathy, rather than the decision not to testify. Accordingly, the first prong of the Soulard test is satisfied. See United States v. Diecidue, 603 F.2d 535, 552 (5th Cir.1979) ().
We next must consider whether a reasonable jury would naturally and necessarily perceive the remark as a comment on the failure to testify. Because the remark was indirect, the jury probably did not focus on the implications of speaking through a lawyer. See United States v. Kessi, 868 F.2d 1097, 1106 (9th Cir.1989) (). And because the rest of the statement dealt with the defense's arguments, the jury may well have perceived it as a fair reply. See Soulard, 730 F.2d at 1307. Accordingly, these circumstances indicate that the jury would not naturally and necessarily perceive the statement as a comment on the failure to testify. See Kessi, 868 F.2d at 1106; Soulard, 730 F.2d at 1307.
Even if the comment was impermissible under Soulard, reversal would not be warranted. The prosecutor made an isolated statement that did not stress inferential guilt, and a curative instruction followed. In light of these facts, any error was harmless beyond a reasonable doubt. See Soulard, 730 F.2d at 1307.
Three of the defendants contend that their convictions do not rest on sufficient evidence. Viewing all the evidence in the light most favorable to the prosecution, we must determine whether a rational trier of fact could have found the essential elements beyond a reasonable doubt. United States v. Marchini, 797 F.2d 759, 766 (9th Cir.1986), cert. denied, 479 U.S. 1085 (1987).
Amundsen argues that the evidence fails to support the jury's finding of willfulness, an element essential to his convictions under both 26 U.S.C. §§ 7206(1) and 7206(2). 1 A defendant in a criminal tax prosecution acts willfully by committing "a voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976). According to Amundsen, the status of the I.D.I. scheme was unsettled until the Eighth Circuit's decision in United States v. Landsberger, 692 F.2d 501 (8th Cir.1982), and thus he could not have intended to violate a known legal duty. Alternatively, he argues that mere advocacy provides insufficient evidence of willfulness under United States v. Dahlstrom, 713 F.2d 1423, 1426-27 (9th Cir.1983), cert. denied, 466 U.S. 980 (1984).
Amundsen's first argument is untenable in light of United States v. Russell, 804 F.2d 571, 574-75 (9th Cir.1986). The fact that the I.D.I. scheme itself had not yet been invalidated is not controlling. See id. at 574. Amundsen had fair notice of its illegality under the bedrock principle that anticipatory assignments of income are ineffective to shift income for tax purposes. See id. at 574-75
With respect to the advocacy argument, the record reflects that Amundsen enrolled participants, received commissions, and paid finder's fees to other recruiters. He picked up checks from investor Armstrong Dowell and later delivered "gift checks" to him. In addition, Amundsen advised investors on how to prepare returns and even attended audits. Viewing this evidence in the light most favorable to the government, Amundsen's role transcends mere advocacy and thus prevents him from relying on Dahlstrom. See, e.g., United States v. Solomon, 825 F.2d 1292, 1297 (9th Cir.1987) (), cert. denied, 484 U.S. 1046 (1988).
Like Hyrum Amundsen, Wayne Hill contends that there was insufficient evidence of willfulness to support his conviction under 26 U.S.C. § 7206(2). This contention is without merit. A self-professed tax expert, Hill had taken and passed two accounting courses. He admitted that he received a warning from Charles Spurrier about possible "questions" concerning the I.D.I. program. Further, Paul Craig testified that Hill's Bookkeeping Service told him to be careful and "not to send up any red flags." In addition, Hill received an indication of problems from a lawyer's opinion letter warning about scrutiny by the I.R.S. and containing no statements approving "gift checks." Hill's handling of tax returns for Craig and Walter Greider further indicates willful activity. When viewed in the light most favorable to the government, the evidence establishes willfulness beyond a reasonable doubt. See Marchini, 797 F.2d at 766.
Other evidence indicated that Hill played an active role in the operation. He not only helped to prepare returns, but also enrolled at least three program participants and acted as a check courier. Accordingly, the evidence supports the jury's finding that Wayne Hill violated 26 U.S.C. § 7206(2). See id.
Eva Amundsen also contends that the evidence was insufficient to support willfulness or any other element of 26 U.S.C. §§ 7206(1) and 7206(2). According to Amundsen, the jury's finding of willfulness is belied by two opinion letters prepared by a lawyer and a certified public accountant. Her reliance on these...
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