U.S. v. Carrodeguas, 81-6204

• Decision Date: 05 December 1984
• Docket Number: No. 81-6204,81-6204
• Parties: -5106, 85-2 USTC P 9567 UNITED STATES of America, Plaintiff-Appellee, v. Vicente CARRODEGUAS, Guillermo Hernandez-Cartaya, Francisco J. Fernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1390

747 F.2d 1390

56 A.F.T.R.2d 85-5106, 85-2 USTC P 9567

UNITED STATES of America, Plaintiff-Appellee, v. Vicente CARRODEGUAS, Guillermo Hernandez-Cartaya, Francisco J. Fernandez, Defendants-Appellants.

No. 81-6204.

United States Court of Appeals Eleventh Circuit.

Dec. 5, 1984.

Jose E. Martinez, English, McCaughan & O'Bryan, Coral Gables, Fla., for Carrodeguas.

William A. Meadows, Jr., South Miami, Fla., Robert C. Josefsberg, Joel S. Perwin, Miami, Fla., for Hernandez-Cartaya.

Irwin J. Block, Fine, Jacobson, Block, Klein, Colan & Simon, P.A., Miami, Fla., for Fernandez.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Robert E. Lindsay, Terry L. Fredricks, Tax Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Appellants Vicente Carrodeguas, Guillermo Hernandez-Cartaya, and Francisco J. Fernandez were officers of WFC Corporation, a large financial organization headquartered in Miami, Florida. This company was engaged primarily in the business of facilitating international loans. Between 1973 and 1978, the company's operations were extremely successful, and each year the appellants agreed to award sizeable cash bonuses to themselves as well as other key officers. The appellants further agreed and instructed the recipients that these bonuses were not to be reported as additional compensation on their income tax returns. The appellants then arranged for the corporation's accounting records to conceal the payment of these bonuses, which totalled well over $100,000 each year.

The appellants were each convicted on one count of conspiring to defraud the United States in the ascertainment, computation, and collection of income and employment taxes. 18 U.S.C.A. Sec. 371. In addition, Carrodeguas was convicted on six counts of violating 26 U.S.C.A. Sec. 7206(1) (making and subscribing income tax forms not believed to be true and correct) and four counts of violating 26 U.S.C.A. Sec. 7206(2) (assisting in the preparation of income tax return forms that were false and fraudulent). Hernandez-Cartaya was also convicted on three counts of violating 26 U.S.C.A. Sec. 7206(1) and four counts of violating 26 U.S.C.A. Sec. 7206(2). Fernandez was also convicted on three counts of violating 26 U.S.C.A. Sec. 7206(1). We affirm the convictions of each appellant on every count.

The appellants join in contesting three issues on appeal. We shall address each of these in turn, before discussing the remaining issues that Hernandez-Cartaya and Fernandez raise separately.

First, the appellants challenge the denial of motions to dismiss their criminal indictments. These motions were based on the contention that the grand jury which handed down the indictments had been drawn from a jury venire lacking sufficient numbers of Hispanics to satisfy the fair cross-section requirement of the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C.A. Sec. 1861 et seq. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The denial of the appellants' motions occurred after a special evidentiary hearing in a separate district court combining similar motions made in thirteen other criminal trials. United States v. Cabrera-Sarmiento, 533 F.Supp. 799 (S.D.Fla.1982). The district court rejected these challenges because the movants failed to sustain their burden of proving a violation of the fair cross-section requirement, as defined in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The movants had not produced reliable data showing the number of Hispanics living in the relevant community. After hearing an appeal from convictions entered in one of the combined criminal cases, a panel from this Court recently affirmed the district court's order denying the motions to dismiss. United States v. Esle, 743 F.2d 1465 at 1469-76 (11th Cir.1984) (per curiam). We follow this binding precedent and likewise affirm the district court's denial of the appellants' motions to dismiss their indictments.

The second issue raised by all appellants concerns the trial court's instructions to the jury. Before charging the jury, the court gave counsel for each appellant a written copy of its proposed instructions. These instructions included a correct charge as to the government's burden of proving guilt beyond a reasonable doubt. After ruling on all objections and incorporating the accepted changes, the court verbally charged the jury in accordance with the written instructions, except for a one-word mistake the appellants now claim constitutes reversible error. From the trial transcript it appears the judge instructed the jury:

[E]very defendant is presumed by law to be innocent. The law does not require the defendant to prove his innocence....

The Government has the burden of proving him guilty beyond a reasonable doubt, and if it fails to do so, you must acquit him.

Thus, while the Government's burden of proof is a strict or heavy burden, it is not necessary that the defendants' guilt be proved beyond all reasonable doubt. It is only required that the Government's proof exclude any reasonable doubt concerning the defendants' guilt. (emphasis added)

The transcript differs from the proposed written instructions which correctly stated at this point that it was not necessary that the defendants' guilt be proved beyond all possible doubt. None of the appellants objected further when, after completing the charge, the judge asked if there were objections to the instructions as given.

We acknowledge the mistake and note the inconsistency between its language and that of the preceding and following sentences in the given instructions. Yet we do not review the propriety of particular language in the abstract. Rather, we look to the adequacy of the charge as a whole. United States v. Park, 421 U.S. 658, 674-76, 95 S.Ct. 1903, 1912-14, 44 L.Ed.2d 489 (1975); United States v. Pool, 660 F.2d 547, 558 (11th Cir.1981) (Unit B). Reading the entire charge satisfies us that the jury was adequately instructed as to the government's burden of proving guilt beyond a reasonable doubt. The trial judge directed the jury to follow the instructions as a whole and, in at least nineteen specific instances, correctly stated that in order to convict a defendant on a particular charge the jury would have to find him guilty beyond a reasonable doubt. In fact, with regard to the three federal statutes the appellants were found to have violated, the specific instructions were that the evidence for each count must show guilt beyond a reasonable doubt. Viewed as a whole, then, the charge fairly advised the jury that guilt could only be imposed absent all reasonable doubt.

In United States v. Vasilaky, 168 F.2d 191 (2d Cir.1948), the Second Circuit reviewed a jury charge in which, after stating three times in the course of the instruction that guilt must be proved "beyond a reasonable doubt," the trial judge summarized: "If the Government in this case has failed to establish [its ownership of the property allegedly stolen] by a fair preponderance of the evidence, then of course that ends the case, and you will direct a verdict for the defendants." Id. at 192. Later in the instruction, the judge again referred to the beyond-a-reasonable-doubt standard. On appeal, the Second Circuit characterized the judge's error as "patently a slip-of-the-tongue mistake" which would have been corrected had the defendant's counsel objected. Instead, the defendant's attorney had stated after the charge that "there is no exception or request to charge." Id. The court concluded that the single slip did not mislead the jury and affirmed the appellant's conviction.

This Court has in the past endorsed the Vasilaky holding and affirmed a criminal conviction where a trial judge apparently stated that the appellant had conceded an important element of the crime when in fact the appellant had not. Hoover v. United States, 358 F.2d 87, 88 (5th Cir.1966). Again, the appellant's counsel did not object to the jury charge as made. The Hoover Court reasoned: "[I]t can hardly be argued that the jury was affected to the detriment of the appellant by this charge when it was obvious that none of the experienced trial lawyers representing the appellant were so affected." Id. This comment is equally relevant to the appellants in the present appeal who similarly did not notice the mistake and did not, when asked by the court immediately after it verbally instructed the jury, register any objections to this portion of the instructions. We hold that the trial court's instructions, when considered as a whole, did not mislead the jury as to the government's burden of proving the appellants' guilt beyond all reasonable doubt.

The third issue raised by each appellant involves the trial court's refusal to declare a mistrial on motions the appellants made after closing arguments were completed. The basis for these motions was an allegation that the closing argument by counsel for co-defendant Henry Heitman, Jr., whom the jury eventually acquitted, improperly commented upon the appellants' failure to testify.

Heitman was the only defendant to take the stand during the trial. His testimony concerned conversations he had with Hernandez-Cartaya, in which Heitman expressed his desire not to receive the annual bonuses in the form of cash, but rather as non-taxable business perquisites or personal loans. Following Heitman's testimony, the appellants submitted a motion in limine seeking to restrict Heitman's counsel from referring to the failure of other defendants to testify. Heitman's attorney disagreed, arguing he should be able to point out to the jury that only Hernandez-Cartaya could deny the verity of Heitman's...