U.S. v. Cohen, 75-3966

• Decision Date: 03 January 1977
• Docket Number: No. 75-3966,75-3966
• Citation: 544 F.2d 781
• Parties: 77-1 USTC P 9128, 1 Fed. R. Evid. Serv. 570 UNITED STATES of America, Plaintiff-Appellee, v. Leon A. COHEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 781

544 F.2d 781

77-1 USTC P 9128, 1 Fed. R. Evid. Serv. 570

UNITED STATES of America, Plaintiff-Appellee, v. Leon A. COHEN, Defendant-Appellant.

No. 75-3966.

United States Court of Appeals, Fifth Circuit.

Jan. 3, 1977.

Taylor W. Jones, Atlanta, Ga., Ernest Morgan, San Marcos, Tex., for defendant-appellant.

John W. Stokes, U. S. Atty., Atlanta, Ga., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Chief, App. Sec., Robert E. Lindsay, Daniel W. Schermer, Attys., Tax. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before AINSWORTH and RONEY, Circuit Judges, and ALLGOOD, District Judge.

RONEY, Circuit Judge:

Defendant Leon A. Cohen appeals his conviction for filing with the Internal Revenue Service a Department of the Treasury Form 656, entitled "Offer in Compromise," containing materially false statements, in violation of 26 U.S.C.A. § 7206(1). Defendant asserts four errors on this appeal: (1) that there was a fatal variance between the proof offered and the offense alleged in the indictment and that the evidence was insufficient to show that his statements as to his assets were false; (2) that a last minute substitution of indictments worked an unfair deprivation of his right to be informed of the charges against him; (3) that the district court abused its discretion in ruling that a thirteen-year-old mail fraud conviction would be admissible to impeach the defendant if he chose to testify; and (4) that a five-year-old letter received in evidence was irrelevant and should have been excluded. Finding these claims without merit, we affirm.

On February 13, 1970, Cohen, who was over $150,000 delinquent in federal income tax payments, completed an Offer in Compromise form for submission to the Internal Revenue Service. He signed that document under a declaration stating that "I have examined this offer, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete." With that document he also filed a Statement of Financial Condition, which stated it was "as of" January 30, 1970. Neither document listed as assets three checks dated February 5, 1970 and payable to Cohen, in a total amount of $30,000. Defendant stated on the Offer in Compromise "I have no assets."

In September of 1974, a five-count indictment was returned against the defendant. The first four counts charged perjury in connection with false statements made on various income tax returns. The fifth count charged perjury in connection with the omission from the Offer in Compromise of various assets supposedly in defendant's possession. Approximately a week and a half before trial commenced, the Government, with the district court's permission, substituted a new count five, alleging solely the omission of the $30,000 in checks from the Offer in Compromise. Before the trial actually began, the Government then dismissed the four counts pertaining to false income tax returns. Defendant was tried and convicted solely for omitting the three checks worth $30,000 from the Offer in Compromise.

Variance Between Indictment and Proof

The indictment on which Cohen was tried alleged that:

(O)n or about the 13th day of February, 1970 . . . Leon A. Cohen . . . did wilfully and knowingly make and subscribe a Department of the Treasury Form 656 entitled 'Offer in Compromise,' . . . together with an attached and accompanying Department of the Treasury Form 433, entitled 'Statement of Financial Condition and Other Information,' . . . (which) said 'Offer in Compromise' and attachments thereto stated that he had total assets having a cost of $12,502 and a fair market value of $1,619.50, whereas, as he then and there well knew, he had substantial assets in addition thereto, to wit: $30,000 consisting of three Federal Reserve Bank drafts . . ..

The defendant alleges that the only document which definitely sets forth his assets is the Statement of Financial Condition, which was "as of" January 30, 1970. The defendant's position is that the checks dated February 5, 1970, were properly excludable from that document, and that when he certified on February 13, 1970 that the accompanying statement of Financial Condition was "true, correct and complete," he was merely certifying that it reflected his financial position as of the 30th of January, which he maintains it did.

The uncontested facts show that on February 13, 1970, the date of the Offer in Compromise, the defendant was in possession of $30,000 in checks. Defendant did not disclose his possession of those checks on the Offer in Compromise form. This failure to indicate possession of those checks as of the date of the compromise offer was a material omission, making the form something other than "true, correct and complete." The Government proved precisely what was alleged when it demonstrated that on February 13, 1970, Cohen "then and there well knew" that he had $30,000 in Federal Reserve checks, which he failed to disclose. The omission of a material fact renders such a statement just as much not "true and correct" within the meaning of 26 U.S.C.A. § 7206(1), as the inclusion of a materially false fact. See United States v. Jernigan, 411 F.2d 471 (5th Cir.), cert. denied, 396 U.S. 927, 90 S.Ct. 262, 24 L.Ed.2d 225 (1969); Siravo v. United States, 377 F.2d 469 (1st Cir. 1967). Thus there is no force to the contention that there was a variance between facts proved and the crime alleged, and the evidence was sufficient to support the conviction.

Substitution of Indictments

The defendant contends that he was misled as to the nature of the charges against him because of the last minute change in the wording of the indictment, and that therefore he should be afforded a new trial. The defendant particularly protests what he conceives to be the change in the operative date of the perjury count from January 30, 1970 to February 13, 1970.

Since the same offense was charged in both the original and substituted indictments, the question of permitting the dismissal of the original indictment and the related substitution was, in the first instance, for the trial court. See F.R.Crim.P. 48; United States v. Perkins, 383 F.Supp. 922, 931 (N.D.Ohio 1974). Since the various forms filed by the defendant were all part of one continuous course of dealing with the Internal Revenue Service, and since the original indictment made reference to the date of February 13, 1970, as well as January 30, 1970, the district court's determination that the substitution was not prejudicial was not in error. United States v. Arradondo, 483 F.2d 980, 983 (8th Cir. 1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974).

Furthermore, when the substitution was requested by the Government, the accompanying motion explicitly stated "(t)he new indictment also contains some clarifying language with respect to the date of the offense." The new indictment was read aloud in open court to the defendant. At the close of the Government's case, when the defendant claimed he learned of the true import of the change, he did not request a continuance or the opportunity to recall and reexamine any of the Government witnesses. There is no indication that there was any secret or surprise involved in the substitution. Given these factors, there was no prejudice to the defendant resulting from the change in indictments which would warrant a new trial.

Admissibility of Prior Conviction

The trial of this case commenced six days after the new Federal Rules of Evidence became effective. Because there was no showing by either party that the "application of the rules would not be feasible, or would work injustice," the rules were applicable to the proceedings below. See Rules of Evidence, Pub.L.No. 93-595, § 1, 88 Stat. 1926 (1975). Rule 609 provides that a prior conviction cannot be admitted without special court determination of probative value, if more than ten years have elapsed since the date of conviction or release, whichever is the later date. The Rule provides:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime . . . (2) involved...