U.S. v. DeClue

• Decision Date: 05 February 1990
• Docket Number: No. 89-5664,89-5664
• Citation: U.S. v. DeClue, 899 F.2d 1465 (6th Cir. 1990)
• Parties: 90-1 USTC P 50,198, 29 Fed. R. Evid. Serv. 1217 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence G. DeCLUE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1465

899 F.2d 1465

90-1 USTC P 50,198, 29 Fed. R. Evid. Serv. 1217

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence G. DeCLUE, Defendant-Appellant.

No. 89-5664.

United States Court of Appeals Sixth Circuit.

Argued Jan. 30, 1990.

Decided Feb. 5, 1990.

Devon L. Gosnell, Asst. U.S. Atty. (argued), W. Hickman Ewing, Jr., U.S. Atty., Office of the U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

April R. Ferguson, Asst. Federal Public Defender (argued), Memphis, Tenn., for defendant-appellant.

Before MILBURN and NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Defendant-appellant Lawrence DeClue appeals his conviction on three counts of income tax evasion in violation of 26 U.S.C. Sec. 7201 with respect to his individual income tax returns for the years 1975, 1976 and 1977, and on two counts of willfully and knowingly making false statements on his corporate tax returns in violation of 26 U.S.C. Sec. 7206(1) with respect to corporate tax returns filed by him for fiscal years ending in 1976 and 1977.

I.

Defendant-appellant Lawrence DeClue filed individual income tax returns for 1975 and 1976. The return address was P.O. Box 161084, Memphis, Tennessee 38116. In 1977 DeClue sent the IRS a Form 1040 which contained no financial information. Instead questions were answered "object, self-incrimination." The return address was 4050 Markham Circle, Memphis, Tennessee. The IRS sent a letter to DeClue at this address regarding the insufficient 1977 tax return, but the letter was returned unclaimed. An amended tax return for 1977 was received by the IRS on August 13, 1979. The return bore a return address of 4050 Markham, Memphis, Tennessee. DeClue filed corporate returns for Mortgage Consultants, Inc. for the fiscal years ending June 30, 1976, and June 30, 1977. DeClue was the sole stockholder of Mortgage Consultants.

During the tax years in question, DeClue was in the insurance business and received commission checks from the following insurance companies: Louisiana and Southern Life Insurance Co., University Life Insurance Co., United Family Life Insurance Co., and Commercial Estate Life Insurance Co. Forms 1099, in which the insurance company indicates the amount of commission paid to its agent, were issued by these companies to either Mortgage Consultants or to DeClue personally. Finding a discrepancy between the 1099 forms and the amount of money which Mortgage Consultants or DeClue declared as income for the years in question, the IRS began an investigation of DeClue in 1979.

Nancy Bridges was a special agent with the IRS, who had graduated from Memphis State University with a degree in accounting in 1976 and had completed the income tax course offered by the IRS. Special Agent Bridges went to 4050 Markham Circle and found DeClue there on April 25, 1979. Bridges identified herself as a special IRS agent with the Criminal Investigative Division. DeClue denied that he was Lawrence DeClue, stating that he was Lawrene DeCleux, but refusing to give any identification. Two days later, Bridges sent a certified letter to 4050 Markham, but it was returned to the IRS unclaimed. On May 3, 1979 Bridges reached DeClue by telephone. DeClue said that it was his right to file a "Fifth Amendment" tax return for 1977 and refused to talk about his taxes. Agent Bridges verified that DeClue was leasing an apartment at 4050 Markham.

Bridges tried to serve DeClue with an administrative summons during the investigation but DeClue would not identify himself so the summons was never served.

During an interview that Agent Bridges was conducting at the home of a witness in the case, concerning trusts that appellant was selling, DeClue showed up and identified himself, but did not discuss his taxes. DeClue called Bridges and asked her to meet with him in Mississippi, concerning the trusts that he was selling, but she refused to go to Mississippi, stating that she needed to talk with him about his personal taxes and would be glad to meet with him about that. It took Agent Bridges three years to investigate the case which involved three personal returns and two corporate returns.

For the fiscal year ending in June 1976, Agent Bridges identified unreported gross receipts of $16,281.62; for the year ending June 1977, she identified unreported gross receipts of $15,936.57. The unreported gross receipts were comprised of insurance commission checks not deposited in the corporate bank account and retained by DeClue. Agent Bridges then computed the taxes due and owing based on the unreported income. For 1975, there was additional tax due and owing of $2085; for 1976, $1994; and for 1977, $3120.

On March 8, 1982, a federal grand jury returned a five-count indictment charging Lawrence DeClue with three counts of income tax evasion in violation of 26 U.S.C. Sec. 7201, with respect to his individual income tax returns for the years 1975, 1976, and 1977, and with two counts of subscribing to false tax returns in violation of 26 U.S.C. Sec. 7206(1), with regard to corporate tax returns filed by him for fiscal years ending in 1976 and 1977. A warrant was issued for his arrest for income tax evasion.

After the indictment, Agent Bridges went to the 4050 Markham address in an unsuccessful effort to locate DeClue. She also tried to locate him at 3444 Spottswood in Memphis.

On July 6, 1983, DeClue filed a Tax Court petition regarding an unrelated disputed tax obligation. The address on the petition was 3444 Spottswood, Memphis, Tennessee 38111. Motions and notices concerning the Tax Court case were sent by registered mail from the IRS to DeClue at five different addresses: 3444 Spottswood, Memphis, TN 38111; 4050 Markham Drive, Memphis, TN 38116; Post Office Box 161084, Memphis, TN 38116; Box 2123, Grand Prairie, Texas 75051; and Post Office Box 11944, Memphis, TN 38111. All of the correspondence was returned, marked "resident refused to accept," "return to sender," or "present address unknown."

In August 1983, after DeClue filed the Tax Court petition, Jay Horne, a special agent with the IRS Criminal Investigative Division, attempted to locate DeClue at the Spottswood address to arrest him on the indictment. Horne talked to a man there who identified himself as DeClue's son, Donald DeClue. Horne identified himself, told him he worked for the IRS and that he needed to reach Lawrence DeClue in connection with a judicial matter. He asked the man to give his father the message.

On June 24, 1985, a hearing was set for the Tax Court petition filed by appellant. An IRS agent from the Criminal Investigative Division was sent to the hearing to apprehend DeClue, but he did not appear at the hearing. DeClue never appeared in the civil case.

Special Agent Bridges took a leave of absence from the IRS from October 1982 until 1987. Upon her return, she suggested trying to trace appellant through his social security account because by that time he was old enough to receive social security. Jeffery Lawson of the IRS was assigned to obtain information about appellant from Social Security, which he received in two or three days. The information from Social Security indicated that a social security check was being sent to DeClue at Post Office Box 241575 in Memphis, Tennessee.

On August 3, 1988, IRS agents arrested DeClue in Memphis as he retrieved his social security check from Post Office Box 241575, which was rented in the name of Jimmy Gillard. DeClue refused to identify himself and former Special Agent Jay Horne had to be called to identify him.

On November 7, 1988 appellant filed a motion to dismiss for denial of a speedy trial. After a detention hearing was held, the district court denied the motion on January 3, 1989. The case proceeded to trial on February 6, 1989. At trial, testimony revealed the following:

DeClue started receiving social security checks on the record of his deceased wife in March 1980. The checks were originally mailed to Post Office Box 161084, Memphis, Tennessee 38116. On November 8, Post Office Box 241575 was opened in the name of Jimmy Gillard. DeClue then used this post office box in order to collect social security checks. DeClue moved from Memphis to St. Louis in 1985. He continued to receive social security checks at Jimmy Gillard's post office box in Memphis. Appellant had no driver's license in his name. He did not have a car, house, or bank account in his name. In August 1988, after his arrest, DeClue filed a social security claim on his own record.

Donald DeClue, the son of appellant, testified that for a time during the early 1980s his father lived with him in an apartment on Spottswood in Memphis. Donald DeClue stated that he returned mail sent to his father by the IRS to the IRS and did not tell his father of the envelopes he had received and returned. He confirmed that an IRS agent had been to his apartment looking for his father, but stated that he had not told his father about the meeting. He stated that his father kept a key to the Spottswood apartment and showed up on occasion. He stated that he did not get along with his father and had not spoken with him for two years.

Charles Ralph Hawkins, who ten years earlier had worked for appellant writing insurance, testified that at the time of his employment DeClue had told him that he did not intend to pay income tax and would diversify his income in such a way in order to avoid paying tax. DeClue denied making the statement.

At the close of the government's proof, defense counsel moved for a judgment of acquittal, which was denied. The jury returned a verdict of guilty on all counts on February 9, 1989. On May 17, 1989, DeClue was sentenced to six months imprisonment. DeClue timely filed this appeal. DeClue was permitted to remain on bond pending this appeal.

II.

Appellant DeClue argues that he was denied a speedy trial under the Sixth Amendment as a result of the government's delay in bringing him to...