U.S. v. Barry, No. 09-13457. Non-Argument Calendar (11th Cir. 3/24/2010)
| Decision Date | 24 March 2010 |
| Docket Number | No. 09-13457.,09-13457. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHERI REDEKER BARRY, WARREN THOMAS BARRY, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Middle District of Florida, D. C. Docket No. 08-00056-CR-FTM-99SPC.
Before BIRCH, BLACK and PRYOR, Circuit Judges.
DO NOT PUBLISH
Sheri Redeker Barry ("Sheri") and Warren Thomas Barry ("Warren"), (collectively "the Barrys"), proceeding pro se, appeal their convictions for conspiracy to defraud the United States by defeating the lawful functioning of the Internal Revenue Service ("IRS") in the ascertainment, computation, assessment, and collection of federal income taxes, in violation of 18 U.S.C. § 371, and failing to make income tax returns, in violation of 26 U.S.C. § 7203. On appeal, the Barrys argue (1) that the government failed to prove by a preponderance of the evidence that the Middle District of Florida was the proper venue, (2) that their Fifth Amendment right not to be tried except upon presentment or indictment by a properly empaneled grand jury was violated, and (3) that the district court did not have subject-matter jurisdiction over their case because all of the alleged crimes took place in the State of Florida. We AFFIRM the Barrys' convictions.
On 23 April 2008, a federal grand jury in the Middle District of Florida issued an indictment, charging that: (1) the Barrys conspired to defraud the United States by defeating the lawful government functions of the IRS in the ascertainment, computation, assessment, and collection of income taxes in Lee County in the Middle District of Florida, in violation of 18 U.S.C. § 371 ("Count One"); (2) Warren and Sheri each both passed a false or fictitious instrument, in violation of 18 U.S.C. §§ 514, 513(c), and 2 ("Counts Two and Three"); (3) Sheri, as a resident of Lee County, Florida, willfully failed to make an income tax return for the tax years 2002, 2003, 2004, and 2005, "to an authorized representative of the Internal Revenue Service in the Middle District of Florida, or to the Director of the Internal Revenue Service Center at Atlanta, Georgia, or to any other proper officer of the United States," in violation of 26 U.S.C. § 7203 ("Counts Four through Seven"); and (4) Warren willfully failed to make an income tax return for the tax years 2003, 2004, and 2005, "to an authorized representative of the Internal Revenue Service in the Middle District of Florida, or to the Director of the Internal Revenue Service Center at Atlanta, Georgia, or to any other proper officer of the United States," in violation of 26 U.S.C. § 7203 ("Counts Eight through Ten"). R1-3.
Warren filed a motion to dismiss the indictment, in which Sheri joined. R1-78, 79. In the motion, Warren first argued that the district court "lack[ed] subject matter jurisdiction over the Grand Jury claims against [Warren] because not a single State, nor two or more States, are identified within the Grand Jury claims that could trigger Congress' power to regulate the alleged activity within the `among the several States' to which the several States limited Congress to act therein." R1-78 at 4. Second, Warren argued that the court lacked subject-matter jurisdiction over the "`Grand Jury' claims" because "each of the acts alleged are only alleged to have taken place within the State of Florida . . . thereby refusing from any Court created by Congress the power to pick the place or places any trial shall be had." Id. at 4-5. Third, he argued that Congress "lack[ed] the power to place the trial of the alleged crimes of or against [Warren] within its own Court, making 18 U.S.C. § 3231 unconstitutional and in violation of Article III, Section 2, Clause 3." Id. at 5. Finally, Warren argued that the grand jury's indictment violated the Tenth Amendment because "[a]ny claim that [Warren] violated a duly enacted law of Congress exercised under its enumerated power `among the several States', can only be placed within a State, . . . that being the State of Florida, by a Grand Jury of the County where the claimed crime is alleged to have occurred." Id.
The district court denied Warren's motion to dismiss. R1-100 at 9. The court found that all of the offenses with which Warren was charged were "offenses against the laws of the United States," such that the district court had jurisdiction and was empowered under 18 U.S.C. § 3231 to enter judgment on the merits of the indictment. Id. at 5-6. Next, the court found, based on various constitutional provisions, Warren's argument that Congress lacked the authority to enact the statutes at issue was without merit. Id. at 6-8. Finally, the court agreed that the grand jury "is not relegated by the Constitution to any one of the three branches of government," but found that "Congress certainly has the power to enact grand jury statutes as necessary pursuant to the Fifth Amendment." Id. at 8-9.
Sheri also filed a motion to dismiss the indictment, in which Warren joined, arguing that the indictment neither alleged the elements of the crime nor adequately described the alleged crimes. R1-89 at 2. The district court dismissed Counts Two and Three of the indictment because "the failure to allege an intent to defraud renders Counts Two and Three fatally defective since an essential element of the offense has been omitted." R2-101 at 7. A redacted indictment listed the conspiracy charge as "Count One," the charges against Sheri under 26 U.S.C. § 7203 as "Counts Two Through Five," and the charges against Warren under § 7203 as "Counts Six Through Eight." R3-151.
Subsequently, there was a six-day jury trial. See R2-135, 136, 137, 138, 144, 149. While the record on appeal includes transcripts of certain portions of testimony and closing arguments, the Barrys did not have the entire trial proceedings transcribed. See, e.g., R6; R7. The jury found Sheri guilty as to Counts One through Five, and Warren guilty as to Count One and Counts Six through Eight, as listed on the redacted indictment. R3-152, 153.
Following the trial, Warren filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), in which Sheri joined. R3-155, 157. In the motion, Warren alleged, inter alia, that Counts One, Six, Seven, and Eight, as charged in the redacted indictment, should have been dismissed because the government failed to prove venue by a preponderance of the evidence given that, since March 2001, there have been no "internal revenue districts" as described in 26 U.S.C. § 6091(b)(1)(A) due to passage of the IRS Reform and Restructuring Act of 1998. R3-155 at 3-11. Warren attached a document titled "IRS Notice of Proposed Rulemaking (REG-118886) Clarifying Section 6411 Regulations by Cross-Reference to Temporary Regulations (T.D. 9355)," dated 27 August 2007 ("Notice"). Id., exh. 1. The Notice's "Summary" section provides that the IRS was issuing temporary regulations relating to section 6411 of the Internal Revenue Code — dealing with tentative carryback and refund adjustments — and that the regulations, inter alia,
remove all references to IRS district director or service center director, as these positions no longer exist within the IRS. The offices of the district director and service center director were eliminated by the IRS reorganization implemented pursuant to the IRS Reform and Restructuring Act of 1998.
Warren also filed a motion to dismiss in which Sheri joined. R3-156, 158. In the motion, he again argued that the court should dismiss the indictment for improper venue and lack of jurisdiction, submitting that, "[b]ecause there were no internal revenue districts and no district directors, at any time during the alleged prohibited conduct, the acts alleged could never have been completed within any place within the jurisdiction of this United States District Court." R3-156 at 1, 5-13.
The district court denied both motions. R3-179 at 7. With respect to Warren's venue argument, the court found that "the evidence presented at trial clearly established venue in the Middle District of Florida," and that
[t]he fact that venue may be established in more than one district does not preclude conviction in the district of the taxpayer's residence, particularly where, as here, the evidence established that defendant did not file a tax return in any district during the years at issue.
Id. at 3. With respect to Warren's argument concerning the lack of any "internal revenue district" or "district director" in the Middle District of Florida, the court noted that Warren relied on an IRS Notice of Proposed Rulemaking concerning a "subject matter unrelated to this case," and found that his reading of the notice was "clearly erroneous." Id. at 3-5. The court found that "[t]he bureaucratic restructuring of the [IRS] authorized by the Internal Revenue Service Reform and Restructuring Act of 1998 did not eliminate the statutory requirement that defendant file tax returns under the circumstances set forth in the tax statutes." Id. at 5 (footnote omitted). The court determined that venue was proper in "either the district of residence or the district where the service center is located" under 26 U.S.C. § 6091(b)(1)(A)(i), (ii). Id. at 6. Accordingly, the court found that Warren's argument concerning venue lacked merit. Id. at 6.
Warren filed a motion for reconsideration, in which Sheri joined. R3-180, 182. In support of his contention that "internal revenue districts" no longer existed, Warren attached the 8 May 2001 Testimony of David C. Williams, Treasury Inspector General for Tax Administration, during a joint congressional hearing, in which Williams generally testified as to organizational restructuring of the IRS. See R3-180, exh. A. Warren also attached a response to a motion to dismiss that the government filed in Case No. 09-cr-043 from the U.S....
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