U.S. v. Cowart, s. 78-3308

• Decision Date: 28 February 1979
• Docket Number: 78-5387,Nos. 78-3308,s. 78-3308
• Citation: 590 F.2d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip COWART, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 603

590 F.2d 603

UNITED STATES of America, Plaintiff-Appellee, v. Phillip COWART, Defendant-Appellant.

Nos. 78-3308, 78-5387

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Feb. 28, 1979.

James C. Fleming, Lee H. Henkel, Jr., Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., Dorothy Y. Kirkley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.

AINSWORTH, Circuit Judge:

Phillip Cowart appeals his conviction, following a jury trial, for failure to file federal income tax returns in violation of 26 U.S.C. § 7203. Cowart asserts that he was deprived of a fair trial because of ineffective assistance of counsel. We reject that contention and affirm the conviction.

Appellant was indicted for failure to file federal income tax returns in 1973, 1974 and 1975. At a pretrial conference, the Government announced its intention to offer in evidence tapes of a tax protest seminar allegedly attended by appellant. The tapes purportedly demonstrated that Cowart willfully failed to file, since the information included on his returns followed the advice given at the seminar. ¹ On the Government's assurance that it would establish appellant's presence at the tax protest meeting, the district court tentatively agreed to admit the tapes for the purpose of showing Cowart's "motive and state of mind for filing 'protest type returns.' " However, on the objection of appellant's counsel at trial, the district court excluded the tapes and transcripts of the seminar from the Government's case in chief, because the Government had failed to establish the fact of Cowart's presence at the protest meeting. The court advised that it would reconsider the admissibility of the tapes if Cowart chose to testify and the Government established his presence at the seminar. Cowart did not take the stand and his counsel presented no evidence and called no witnesses.

Appellant now contends that his attorney's failure to present a defense constitutes ineffective assistance of counsel. In an affidavit submitted with the Government's response to appellant's motion for a new trial, Cowart's trial counsel stated that he "probably would have advised the defendant that he ought to testify to dispel some impressions left by the tape(s)" of the tax protest seminar if they had been admitted in evidence. However, when the trial court ruled that the tapes would be admissible, if at all, only if appellant took the stand, counsel concluded that "tactically we were in a better position if the tax protest seminar tapes were never admitted. This could only be assured if the defendant did not testify. . . . The Government had introduced the entire set of protest and corrected returns and had no other direct evidence of willfulness. In my opinion, it was more advantageous to the defendant to proceed with closing argument on that record than to risk the possibility of introduction of the tapes and other impeachment of ...