U.S. v. Gaines

• Citation: 690 F.2d 849
• Decision Date: 01 November 1982
• Docket Number: No. 81-7174,81-7174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Solomon GAINES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 849

690 F.2d 849

UNITED STATES of America, Plaintiff-Appellee, v. Solomon GAINES, Defendant-Appellant.

No. 81-7174.

United States Court of Appeals,

Eleventh Circuit.

Nov. 1, 1982.

Charles T. Erion (court-appointed), Macon, Ga., for defendant-appellant.

W. Louis Sands, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

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

Before VANCE, KRAVITCH and CLARK, Circuit Judges.

VANCE, Circuit Judge:

Appellant Solomon Gaines was convicted after trial by jury of three counts of willfully and knowingly filing a false income tax return, in violation of 26 U.S.C. § 7206. ¹ Specifically, Gaines was convicted of filing tax returns for the years 1975-1977 that seriously understated his gross income. On appeal Gaines argues that the district court erred in refusing several proposed jury instructions and in restricting his attorney's summation to the jury. We affirm.

Gaines, a lifelong resident of Monroe County, Georgia, dropped out of school after the fifth grade and appears to be functionally illiterate. After working on his family's farm for several years Gaines began to work in the pulpwood business, where he proved to be very successful. In less than ten years he learned enough of the industry to establish his own independent contracting business and employ other people as needed. This business included cutting standing timber and hauling it to the lumber mills of Georgia Timberlands, Inc. ² For each delivery Georgia Timberlands issued scale tickets that indicated the weight of the timber received. At the end of each week Gaines took the scale tickets to the company office and company personnel computed the gross amount due less deductions for stumpage, ³ workmen's compensation, and cash advances. Gaines then received a check for the net amount due with an attached stub indicating the gross income, the relevant deductions, and the net income remitted.

In 1975, 1976, and 1977 Georgia Timberlands provided Gaines with an appropriate written statement indicating his gross income for the year. Gaines, however, did not rely upon the statements in preparing his income tax returns for the three years in question. Instead, he gave his weekly check stubs and receipts for any business expenses to a bookkeeper, who then completed his tax returns. It is undisputed that Gaines failed to turn over all of the weekly check stubs to his bookkeeper and that, as a result, his returns seriously understated his income for the years in question. The discrepancies between the gross receipts reported in the returns and the gross receipts reflected in the annual statements provided by Georgia Timberlands were as follows:

                        Actual      Reported
                       Receipts     Receipts    Discrepancy
                      -----------  -----------  -----------
                1975  $ 30,408.07  $  7,762.00  $ 22,646.07
                1976    24,793.35    14,196.69    10,596.66
                1977    23,616.45     9,665.65    13,950.80
                      -----------  -----------  -----------
                      $ 78,817.87  $ 31,624.34  $ 47,193.53
                

After receiving the incorrect tax returns Gaines signed and mailed them to the Internal Revenue Service.

Gaines was subsequently indicted for willfully and knowingly filing false income tax returns. At trial he did not dispute that the returns were false or that he had failed to give all of his weekly check stubs to his bookkeeper. The only issues for the jury, therefore, were whether Gaines had known that the tax returns contained false information and whether he had willfully filed the returns despite that knowledge. The jury convicted Gaines and this appeal followed. ⁴

I.

At trial, the district court gave the following jury instruction:

Now, whenever the fact appears beyond a reasonable doubt from the evidence in the case that the defendant signed his income tax return, the jury may draw the inference and find that the defendant had knowledge of the contents of the return. Whether or not the jury draws such an inference is left entirely to the jury.

Gaines contends that this instruction effectively required the jury to presume that he knew the contents of the three tax returns if he signed them. He argues that the upshot of the instruction was to shift to him the burden of proof as to one of the elements of the crime charged, in violation of the due process clause of the fifth amendment. Gaines argues further that the district court compounded the error by refusing to instruct the jury that it should not conclusively presume knowledge of the contents of the returns merely from the fact that Gaines signed them. We reject both contentions.

A conclusive presumption is an evidentiary device that tells the trier of fact that it must find a certain elemental fact upon proof of a basic evidentiary fact, at least in the absence of some proof by the defendant to rebut the presumed connection. County Court v. Allen, 442 U.S. 140, 157-59 & n.16, 99 S.Ct. 2213, 2224-2226, 60 L.Ed.2d 777 (1979). Because such a required finding may affect the placement of the burden of proof the use of conclusive presumptions in criminal cases may raise difficult constitutional questions. ⁵ See, e.g., Sandstrom v. Montana, 442 U.S. 510, 519, 99 S.Ct. 2450, 2456-2457, 61 L.Ed.2d 39 (1979); County Court v. Allen, 442 U.S. at 157-59 & nn. 16-17, 99 S.Ct. at 2225-2226; Leary v. United States, 395 U.S. 6, 31-36, 89 S.Ct. 1532, 2224-2226 & nn. 16, 17, 23 L.Ed.2d 57 (1969). A permissible inference, on the other hand, is a common evidentiary tool that allows, without requiring, the trier of fact to infer the existence of an elemental fact upon proof of a basic evidentiary fact. County Court v. Allen, 442 U.S. at 156-57, 99 S.Ct. at 2224-2225. Permissive inferences are a commonplace staple of the law of evidence that do not affect the placement of the burden of proof unless the connection permitted by the inference is irrational, and, absent proof of the invalidity of an inference as applied to a particular case, their use is generally countenanced. See, e.g., id.; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244-1245, 87 L.Ed. 1519 (1943); Crane v. Lessee of Morris, 31 U.S. (6 Pet.) 598, 620-21, 8 L.Ed. 514 (1832); Georgia Southern & Florida Ry. v. Perry, 326 F.2d 921, 925 (5th Cir. 1964); see also 1 J. Weinstein & M. Berger, Weinstein's Evidence P 300(01) & n.3 (1981) (justifiable inference is not synonymous with presumption).

The determination whether a jury instruction describes a conclusive presumption or a permissible inference requires a careful examination of the words actually spoken to the jury. Sandstrom v. Montana, 442 U.S. at 514, 99 S.Ct. at 2454. The instruction does not create a conclusive presumption if no reasonable juror could have interpreted the words of the instruction to require a certain ultimate conclusion upon the finding of a subsidiary evidentiary fact. Id. In this case the district court instructed that "the jury may draw the inference and find that the defendant had knowledge of the contents of the return" (emphasis added). Indeed, emphasizing the permissive rather than mandatory nature of the instruction, the district court continued:

Whether or not the jury draws such an inference is left entirely to the jury.

The language of the instruction is clear: it permits the jury to draw an inference as to the requisite state of mind from a certain probative fact. Because the jury remained free to accept or reject the inference the instruction neither removed the issue of knowledge from the jury nor relieved the government of its burden of proving every material element of the crime charged. ⁶ See United States v. Freeman, 619 F.2d 1112, 1123 (5th Cir.1980) (similar jury instruction upheld as allowing permissible inference), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981).

Gaines relies heavily upon the seventh circuit's decision in United States v. Bass, 425 F.2d 161 (7th Cir.1970). In that case a jury instruction indistinguishable from the one at issue in this case was condemned as creating a conclusive presumption. By failing to appreciate the manifestly permissive language of the instruction the Bass decision created constitutional problems where none existed, and we decline to follow it. Rather, we adopt the position of the tenth circuit on this issue. In Wainwright v. United States, 448 F.2d 984 (10th Cir.1971), cert. denied, 407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 684 (1972), that court reviewed and upheld a jury instruction that is indistinguishable from the ones given below and in Bass, ⁷ and explicitly rejected the conclusion reached by the seventh circuit. Id. at 986-87; see also United States v. Romanow, 505 F.2d 813, 814-15 (1st Cir.1974) (signature at bottom of tax return is only prima facie evidence of taxpayer's knowledge of contents of return).

Gaines also argues that his presentation of evidence suggesting he is illiterate rebutted any inference concerning his state of mind that might be drawn from his signature. Gaines contends that this rebuttal necessitated additional evidence of his knowledge and a jury instruction to that effect. We understand this argument to mean that even if the instruction given by the district court established a permissible inference rather than a conclusive presumption it was invalid in light of the circumstances of this case.

Although it is clear that the use of a permissible inference may be invalid in some cases, the burden of demonstrating invalidity is on the party challenging the use of the inference. See Barnes v. United States, 412 U.S. 837, 844-46 & nn. 8-11, 93 S.Ct. 2357, 2362-2363, & nn. 8-11, 37 L.Ed.2d 380 (1973). This burden is a heavy one. An instruction based on a permissible inference will be overturned "only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." County Court v. Allen, 442 U.S. at 157, 99 S.Ct. at 2224- 2225; see United...