Escobar v. United States

Decision Date22 April 1968
Docket NumberNo. 23529.,23529.
Citation388 F.2d 661
PartiesJose ESCOBAR, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

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J. Edwin Smith, Houston, Tex., Towner S. Leeper, El Paso, Tex., for appellant.

Harry Lee Hudspeth, El Paso, Tex., for appellee.

Before BELL, GODBOLD and DYER, Circuit Judges.

Rehearing En Banc Denied February 1, 1968.

Certiorari Denied April 22, 1968. See 88 S.Ct. 1411.

DYER, Circuit Judge:

Appellant was charged in a four count indictment1 with willfully making and subscribing false income tax returns for the years 1957, 1958, 1959 and 1960.2 He was acquitted on Count 1 and found guilty on the other three counts. In his appeal from the conviction on Counts 2, 3 and 4, he seeks reversal because of (1) the failure of the indictment to state an offense; (2) the non-disclosure of the identity of an informer; (3) the refusal of requested instructions; (4) the insufficiency of the evidence; and (5) the estoppel of the appellee by the not guilty verdict as to Count 1. We affirm.

Sufficiency of the Indictment

Each count in the indictment alleges that the defendant did "make and subscribe an * * * income tax return."3 Appellant urges that the failure to allege the filing of a return is a failure to allege an essential element of the offense and that the indictment therefore does not charge a crime against the United States. It is unnecessary for us to attempt to analogize cases decided upon other statutes as appellant would have us do, because this argument is foreclosed by our recent decision in Hoover v. United States, 5 Cir. 1966, 358 F.2d 87. There, as here, the indictment alleged "the offense substantially in the language of Section 7206(1), which contains all of the essential elements of the offense and is thus sufficient within the meaning of Rule 7(c), Federal Rules of Criminal Procedure. An indictment alleging an offense substantially in the language of the statute is sufficient unless the words of the statute do not contain all of the essential elements of the offense. Russell v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed. 2d 240; Reynolds v. United States, 225 F.2d 123 (5 Cir. 1955), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955)." Id. at 88; accord Worthy v. United States., 5 Cir. 1964, 328 F.2d 386, 392.

The Informer's Identity

During the cross-examination of a Special Agent for the Internal Revenue Service, it developed that the investigation of appellant had its genesis with an informer. The appellee advised the court that the informer had only provided information about someone other than the appellant. It was brought out that other members of appellant's law firm were investigated simultaneously and were all convicted of failure to file income tax returns. The court sustained the appellee's refusal to disclose the identity of the informer, but required appellee to submit to the court the name of the informer in camera, and announced that if either side should call the informer to testify the court would excuse the jury and notify both sides. The informer was not called.

Appellant claims that he was prejudiced by the non-disclosure of the informer because he could not call unspecified defense witnesses without the risk that he would be placing the informer on the stand. But this ignores the court's representation to counsel that it would notify both sides if the informer was called to testify. Moreover, in the absence of some compelling reason for doing so, disclosure of an informer's identity is generally declined. Rugendorf v. United States, 1964, 376 U.S. 528, 534-536, 84 S.Ct. 825, 11 L.Ed.2d 887; Robinson v. United States, 5 Cir. 1964, 325 F.2d 880, 883.4 Appellant fails to make any showing that he was "prevented from making his defense without knowledge of the informer's identity." Firo v. United States, 5 Cir. 1965, 340 F.2d 597, 598.

Requested Instructions on Perjury

Appellant requested and the court refused to instruct the jury on the so-called "two witness rule" and the stringent burden of proof applicable to cases of perjury. Appellant contends that the instructions should have been given because the language of the statute punishes the willful making and subscribing of a false return "which contains or is verified by a written declaration that it is made under the penalties of perjury."5 He asserts that the indictment against him charged perjury and that the refusal to give the instructions was reversible error. Weiler v. United States, 1945, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495.

Under the "plain meaning rule" of statutory construction it is clear that appellant was not charged with perjury. The statute does not say that one who willfully makes a false return "shall be guilty of perjury." In fact, it contains no language indicating that the crime of perjury is involved at all. The language "made under the penalties of perjury" is of purely historical significance.6 The phrase remains in the present statute as a "catch phrase" or "signpost" to indicate what types of documents are covered by the statute. Without this phrase any document would come within the purview of the statute and it would be identical (except for penalty) to 26 U.S.C.A. § 7207, which is a misdemeanor statute.

When viewed in this light it is understandable that Congress left the phrase in the statute and that the Internal Revenue Service left the statement in its return forms after the statute requiring the returns to be sworn to was repealed.7 The phrase, outdated though it was, remained to provide an easily discernible limit to the application of § 7206(1) and its predecessors. It relieved Congress from having to substitute some new phrase. That it serves no other purpose is evidenced by the fact that perjury requires an oath, Smith v. United States, 5 Cir. 1966, 363 F.2d 143, 144, and no oath is required in an income tax return. Furthermore, in spite of the "penalties for perjury" language, Congress went on to provide another and much lighter penalty for the offense proscribed by § 7206(1), (3 years) than that provided for perjury under 18 U.S.C.A. § 1621 (5 years).

Appellant cites no cases, and we have been unable to find any, applying the rules of proof in perjury cases to prosecutions under 26 U.S.C.A. § 7206(1). It is significant that in the most serious of all tax offenses, 26 U.S.C.A. § 7201 (which proscribes willful attempts to evade and defeat taxes and which carries the heaviest maximum penalty found in the Internal Revenue Code — five years imprisonment and $10,000 fine, plus costs of prosecution) the offense may be proven by circumstantial evidence, Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. It would be contradictory indeed to accept appellant's argument that there must be an application of stricter rules to the lesser offenses under § 7206(1).

Finally, appellant urges that we held in Hoover v. United States, supra, that a prosecution under 26 U.S.C.A. § 7206 (1) is analogous to a perjury prosecution.8 But read in context, what we said there had reference only to the defendant's contention that the court had failed to charge on the term "material matter." We pointed to the reasoning in the perjury cases as to what subject matter was material. Comparing the element of "material matter" in a prosecution under § 7206(1) with that element in a perjury prosecution does not make the two offenses analogous. We are convinced that the court acted properly in refusing appellant's requested perjury instructions.

Refusal of Lesser Included Offense Charge

Appellant contends that the court erred in refusing to charge that the jury could find him guilty under 26 U.S.C.A. § 72079 (misdemeanor) even though he was indicted for violating 26 U.S.C.A. § 7206 (1) (felony). There is an element in § 7206(1) which is not in § 7207, i. e., the document must contain a statement that it is "made under the penalties of perjury."

Section 7207 applies to income tax violations. Sansone v. United States, 1965, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882. Since the other statute involved (§ 7206(1)) also applies to income tax violations, under the rationale of Sansone, "the lesser-included offense doctrine applies to these statutes in an appropriate case." Ibid.

The question then becomes whether this is "an appropriate case." Sansone offers the guidelines:

But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses.

Id. at 349, 350, 85 S.Ct. at 1009.

In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.

Id. at 350, 85 S.Ct. at 1009. (Emphasis added.)

Accepting these guidelines, the question narrows to whether there is "a disputed factual element" in § 7206(1) which is not present in § 7207. As pointed out the only difference between the two statutes is in the "made under the penalties of perjury" requirement in § 7206(1). If there was any question for the jury concerning whether some or all of the returns involved here were or were not "made under the penalties of perjury" appellant would have been entitled, under Sansone, to the requested charge. However, appellee contends, and appellant does not dispute, that all returns involved here contain the "perjury declaration." Therefore, there was no factual dispute concerning the charged greater offense to be submitted to the jury, ergo appellant was not entitled to his requested charge. See Sansone v. United States at 354-355, 85 S.Ct....

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26 cases
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • May 17, 1984
    ...on the facts proved a 26 U.S.C. section 7207 violation was included in a charged section 7206(1) violation (Escobar v. United States (5th Cir.1967) 388 F.2d 661, 666, cert. den. 390 U.S. 1024, 88 S.Ct. 1411, 20 L.Ed.2d 282; United States v. Gaines (11th Cir.1982) 690 F.2d 849, 856; see Unit......
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    • U.S. Court of Appeals — Fifth Circuit
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    ...where, otherwise it might be claimed that the acts in the tax years were either inadvertent or innocent. See Escobar v. United States, 5 Cir. (1967), 388 F.2d 661." United States v. Jernigan, 5 Cir., 1969, 411 F.2d 471, 473.15 The prosecutor attempted to establish an avaricious motive on th......
  • People v. Ramos
    • United States
    • Michigan Supreme Court
    • June 7, 1988
    ...certified his statements "under penalties of perjury." Relying on the State Bar committee report noted above, and on Escobar v. United States, 388 F.2d 661 (CA 5, 1967), where the court held that as a matter of federal law the signer of a federal tax return that included the language "under......
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    • U.S. Court of Appeals — Eleventh Circuit
    • November 1, 1982
    ...the lesser included offense instruction has been squarely foreclosed by precedent binding upon this court. 12 In Escobar v. United States, 388 F.2d 661 (5th Cir. 1967), cert. denied, 390 U.S. 1024, 88 S.Ct. 1411, 20 L.Ed.2d 282 (1968), the former fifth circuit stated that a "lesser-included......
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3 books & journal articles
  • TAX VIOLATIONS
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • July 1, 2021
    ...‘The language “made under the penalties of perjury” is of purely historical signif‌icance.’” (citing Escobar v. United States, 388 F.2d 661, 664 (5th Cir. 1967))). This merely clarif‌ies that the law of perjury and its heightened burden of proof does not apply to § 7206(1) prosecutions. 239......
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    • July 1, 2023
    ...‘The language “made under the penalties of perjury” is of purely historical signif‌icance.’” (quoting Escobar v. United States, 388 F.2d 661, 664 (5th Cir. 1967))). This merely clarif‌ies that the law of perjury and its heightened burden of proof—such as requiring more than one witness to e......
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    • American Criminal Law Review No. 59-3, July 2022
    • July 1, 2022
    ...‘The language “made under the penalties of perjury” is of purely historical signif‌icance.’” (quoting Escobar v. United States, 388 F.2d 661, 664 (5th Cir. 1967))). This merely clarif‌ies that the law of perjury and its heightened burden of proof—such as requiring more than one witness to e......

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