U.S. v. Buford, 88-1924

• Decision Date: 29 November 1989
• Docket Number: No. 88-1924,88-1924
• Citation: 889 F.2d 1406
• Parties: -479, 89-2 USTC P 9676 UNITED STATES of America, Plaintiff-Appellee, v. Bob A. BUFORD and Stephen M. Buford, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1406

889 F.2d 1406

65 A.F.T.R.2d 90-479, 89-2 USTC P 9676

UNITED STATES of America, Plaintiff-Appellee, v. Bob A. BUFORD and Stephen M. Buford, Defendants-Appellants.

No. 88-1924.

United States Court of Appeals, Fifth Circuit.

Nov. 29, 1989.

Michael Logan Ware, Fort Worth, Tex., for Bob Buford.

Michael Louis Minns, Houston, Tex., for Stephen Buford.

Delonia A. Watson, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before GEE, JONES and SMITH, Circuit Judges.

GEE, Circuit Judge:

Facts

Stephen Buford and Charles Samuels were partners in the business of selling trust instruments and arrangements to individuals. Their clients were told to convey all of their assets to the trust and to open a checking account in its name. According to the Bufords, the clients were told not to use trust checks for personal items. According to the government, the clients paid all of their bills with trust checks.

Stephen Buford and his father, Bob Buford, assisted the clients in preparing trust returns. Personal expenses incurred by the individuals were shown as losses to their trusts. The loss generated on the trust return was then transferred to each individual's personal tax return. In this manner, each individual's personal tax liability was reduced.

Stephen and Bob Buford were each charged with 14 counts of aiding and abetting the preparation of false tax returns and one count of conspiring to defraud the United States government. Stephen was convicted on all counts and sentenced to 5 years on count I, three years each on counts II through VIII (all to run concurrently), and to five years probation on counts IX through XV. Bob Buford was convicted on the conspiracy count only and sentenced to three years probation. Both appeal, raising several issues only two of which need be discussed here: 1) whether the district court improperly denied discovery of certain Internal Revenue Service, Individual Master Files and 2) whether the charge to the jury was erroneous. We find error as to both issues.

Discussion

1. Discoverability of the IMF

In a pretrial order, the district court ordered the government to comply with all discovery and inspection requests required by Fed.R.Crim.P. 16, and to provide the defendants by a specified date with all Brady and Jencks Act material. Stephen Buford requested a copy of his Individual Master File (herein "IMF"). ¹ The government refused to produce the IMF on the ground that it was beyond the scope of the district court's order. The government argued that the IMF was an internal document and was, therefore, not discoverable. Fed.R.Crim.P. 16(a)(2). It argued further that the document was immaterial and irrelevant and, finally, that Brady did not require its production. The district court denied Stephen Buford's request, apparently relying on the government's assertion that it contained no Brady material.

At some later time, believing that his IMF was exculpatory, Stephen Buford requested that the district court review his IMF in camera. The court granted Buford's request but failed to make the inspection. (The IMF is written in coded form. In order to decipher the codes, an "A.D.P. code book" is needed. The court ordered the government to produce the book. The government agreed to produce the book but failed to do so. In the meantime, the trial continued to a verdict before any in camera inspection was performed.)

At trial the government introduced evidence, for impeachment purposes only, that Stephen Buford had not filed his own income tax returns for the years 1980 to 1984. On cross-examination of Stephen Buford the government asked whether it was true that he had not filed tax returns from 1980 to 1984. Buford testified that he had filed.

The government then called Marsha Boatright, an IRS records custodian, who testified that there was no record of a return filed for Stephen Buford. Ms. Boatright based her testimony on Certificates of Assessments and payments, which were admitted into evidence. Buford's attorney, in a very able cross-examination of Boatright, elicited testimony that the Certificates of Assessments were hand prepared, using information taken from the IMF. When asked whether a mistake might have occurred, she said she had never seen one.

In addition, Buford's attorney offered, through Boatright, AMDISA ² reports on Stephen Buford for the years 1980 through 1984. He then elicited testimony from her that the AMDISA contained information that would not have been there unless a tax return had been filed. Her testimony made clear that the Certificates of Assessments were hand prepared and that the entry "No record of return filed" was hand written onto the certificates (by someone other than Boatright), which had been prepared specifically for the trial. Her testimony continued that the AMDISA reports came directly from the computer and contained a Dif Score. ³ She also testified as to the effect of a freeze code. ⁴ In the meantime, repeated requests by Buford's attorney for an in camera review of the IMF apparently fell on deaf ears.

Thus, the district court denied discovery of the IMF, yet admitted in evidence two conflicting secondary sources of the data contained in it. In addition, the court agreed to review the IMF in camera, but never did so. Stephen Buford's conviction on the 14 counts of aiding and abetting likely rests, in part, on this evidence, or the lack thereof. The jury was far more likely to believe that Buford had assisted others to evade their taxes if they thought that he had failed to pay his own. The IMF will show conclusively whether or not Buford filed. The district court abused its discretion in denying Stephen Buford's request for production of the IMF and in failing to perform the promised in camera inspection.

There is no authority for the district court's action. As Buford's brief puts it, "The I.R.S. has successfully used the IMF transcript and often attached a Certificate [of Assessments] to it as an official interpretation and if the issue is not objected to or uncontested used a mere certificate, but there are no reported cases allowing a certificate over objection to be utilized without the underlying official record. To the contrary, the existing case law shows the government as the force generally trying to admit the I.M.F./N.C.C. [National Computer Center] rather than the Defendant." See United States v. Farris, 517 F.2d 226 (7th Cir.1975) (officially certified "I.M.F. forms" are self-authenticating; IRS central data compilation introduced by government as evidence of defendant's failure to file); United States v. Hays, 525 F.2d 455 (7th Cir.1975) (government proved the defendant's failure to file by use of official computer data compilations) (citing Farris ). See also Fed.R.Evid. 1004 (original required unless lost, destroyed, not obtainable, in possession of opponent, or collateral). Neither the government nor the defendant has cited a case in which the government sought to exclude an IMF report.

2. Jury Instruction

Both Stephen and Bob complain that the district court's charge to the jury impermissibly shifted the burden of proof and negated the willfulness element of the offenses charged. The court charged the jury as follows:

It...