U.S. v. Bernhardt, 80-1819
| Citation | 642 F.2d 251 |
| Decision Date | 05 March 1981 |
| Docket Number | No. 80-1819,80-1819 |
| Parties | 81-1 USTC P 9301, 7 Fed. R. Evid. Serv. 1222 UNITED STATES of America, Appellee, v. Bobby J. BERNHARDT, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Grant & MacPherson by Donald W. MacPherson and John M. McKindles, Phoenix, Ariz., for appellant.
Edward G. Warin, U. S. Atty., District of Nebraska and Robert F. Kokrda, Asst. U. S. Atty., Omaha, Neb., for appellee.
Before HEANEY, ROSS and ARNOLD, Circuit Judges.
Bobby J. Bernhardt was charged with two counts of willful failure to file an income tax return under 26 U.S.C. § 7203. Evidence admitted at trial showed that Bernhardt had filed joint returns with his wife from 1968 through 1972 but failed to file a return during either 1973 or 1974. In 1975 Bernhardt submitted a 1973 Form 1040 and a 1974 Form 1040 to the Internal Revenue Service, but both forms contained only the words "none" or "object, self-incrimination" in the space where income information was to be listed. No income information was provided on the forms. Further evidence was introduced to show that Bernhardt had sufficient income in 1973 and 1974 to necessitate the filing of returns.
At trial Bernhardt was represented by Mark McClellan with John McKindles as cocounsel. Trial began on May 6, 1980. On May 12 McKindles moved for a continuance of several days because McClellan would be unable to continue Bernhardt's defense due to a family emergency and McKindles needed time to prepare himself to properly conduct the defense. The court denied the motion for a lengthy continuance but did agree to continue the case until the following morning.
During trial the defense attempted to introduce into evidence a copy of Garner v. United States (no citation given) and other legal references which Bernhardt claimed to have relied upon in determining that he was not required to file a return, tending to show a lack of intent. The trial court denied admission of the materials into evidence on the ground that legal materials could not properly be submitted to the jury, but did permit testimony regarding the content of Garner v. United States. Bernhardt was convicted on two counts of violating Section 7203. On appeal, he alleges that: (1) the trial court abused its discretion in refusing to grant the requested continuance, thus denying his counsel adequate time to prepare his defense; and (2) the trial court erred in denying the admission of the copy of Garner v. United States into evidence.
Bernhardt maintains that under the circumstances in this case the court abused its discretion in refusing to grant a continuance. The determination of whether a denial of a continuance is arbitrary enough to violate due process depends on "the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). In United States v. Little, 567 F.2d 346, 348-49 (8th Cir. 1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1978), this court noted five factors that the trial court must weigh in determining whether to grant a continuance. They are:
1) the nature of the case and whether the parties have been allowed adequate time for trial preparation;
2) the diligence of the party requesting the continuance;
3) the conduct of the opposing party and whether a lack of cooperation has contributed to the need for a continuance;
4) the effect of the continuance and whether a delay will seriously disadvantage either party;
5) the asserted need for the continuance, with weight to be given sudden exigencies and unforeseen circumstances.
The trial court, in refusing to grant the motion for a lengthy continuance, considered the numerous earlier continuances, the conduct of defense counsel in not informing the court of McClellan's situation earlier and the fact that McKindles had entered his appearance as cocounsel. The court apparently felt that the defense had been allowed sufficient time to prepare for trial and that McKindles, as cocounsel, should have...
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...right to compulsory process is violated if relevant evidence is excluded without sufficient justification. United States v. Bernhardt, 642 F.2d 251, 253 (8th Cir.1981); see also Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). We review the court's evidentiary de......
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