U.S. v. Dark

• Decision Date: 04 May 1979
• Docket Number: No. 78-5237,78-5237
• Citation: 597 F.2d 1097
• Parties: 79-1 USTC P 9371 UNITED STATES of America, Plaintiff-Appellee, v. Joel H. DARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1097

597 F.2d 1097

79-1 USTC P 9371

UNITED STATES of America, Plaintiff-Appellee, v. Joel H. DARK, Defendant-Appellant.

No. 78-5237.

United States Court of Appeals, Sixth Circuit.

Argued April 10, 1979.

Decided May 4, 1979.

Walter S. Clark, Phyllis L. Bateman, Nashville, Tenn., for defendant-appellant.

Hal D. Hardin, U. S. Atty., Richard L. Windsor, Asst. U. S. Atty., Nashville, Tenn., for plaintiff-appellee.

Before ENGEL and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

Appellant Dark was convicted of two counts of willfully failing to file income tax returns, in violation of 26 U.S.C. § 7203 (1976), after a jury trial in the United States District Court for the Middle District of Tennessee. He was sentenced to five months' imprisonment on count one and to one year's imprisonment on count two, the latter sentence suspended in favor of three years' probation.

The government's evidence was plainly sufficient to support the verdict. During 1973 and 1974, Dark was self-employed as a certified public accountant, he taught elementary accounting at Tennessee State University in Nashville, and he attended law school at night. His total receipts on accounts receivable from his accounting practice amounted to $36,331.10 in 1973 and $40,779.22 in 1974. In 1973 he received a salary of $5,420 from Tennessee State. He failed to file income tax returns for either year, despite the fact that he had been specifically warned by the Internal Revenue Service of his obligation under the law to file timely returns. Dark had failed to file his returns for the years 1967-1971 until March 1973, when he learned that he was under investigation by the IRS. At that time, Dark assured the IRS that he would comply with all filing requirements in the future.

Dark's defense was that his failure to file had not been "willful." He testified that his financial books and records were simply "not in shape to file a tax return" on the respective due dates, principally because of the complicated and cumbersome nature of his personal accounting system, and that the pressures of his accounting practice and legal studies had distracted him from properly maintaining his books. The jury deliberated only five minutes before returning its verdict of guilty on both counts.

Dark raises numerous claims of error on appeal, most of which are wholly without merit. He contends that the testimony of certain witnesses subpoenaed by the government should have been excluded at trial because the Assistant United States Attorney had instructed the Marshal not to place the returned subpoenas in the case file in the district court clerk's office, thereby preventing defense counsel from looking at the case file to find out who was going to testify for the government. The short answer to this claim is that defense counsel was not entitled to know, in advance of trial, who was going to testify for the government. United States v. Conder, 423 F.2d 904, 910 (6th Cir.), Cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970).

Dark contends that the district judge committed reversible error during jury selection by telling the panel, in the course of explaining the presumption of innocence and burden of proof in a criminal case, that "Neither side has the edge." Read in context, the remark was apparently calculated to impress upon the prospective jurors that both parties in a criminal case come before the court with equal dignity and that neither should be arbitrarily favored out of prejudice for or against the government or defendants as a class. While perhaps better left unsaid, the remark could not have confused the jury,...