U.S. v. Gamble

• Decision Date: 18 September 1979
• Docket Number: No. 78-3407,78-3407
• Citation: 607 F.2d 820
• Parties: , 79-2 USTC P 9603 UNITED STATES of America, Plaintiff-Appellee, v. Albert R. GAMBLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 820

607 F.2d 820

51 A.L.R.Fed. 765, 79-2 USTC P 9603

UNITED STATES of America, Plaintiff-Appellee, v. Albert R. GAMBLE, Defendant-Appellant.

No. 78-3407.

United States Court of Appeals Ninth Circuit.

Sept. 18, 1979.

Rehearing Denied Nov. 16, 1979.

Albert R. Gamble, Gamble & Dean, Tucson, Ariz., for defendant-appellant.

Stephen M. Dichter, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court For the District of Arizona.

Before ANDERSON and HUG, Circuit Judges, and PORT ^*, Senior District Judge.

HUG, Circuit Judge:

The defendant-appellant, Albert R. Gamble, challenges his conviction on two counts of willful failure to file income tax returns in violation of 26 U.S.C. § 7203. He claims error based upon the constitutionality of the Internal Revenue Code, the double jeopardy bar to reprosecution, the admission of certain evidence, and the sufficiency of the evidence to support his conviction. We affirm.

FACTS

Gamble is an attorney who practices law in Arizona as a sole practitioner. The charges against him stem from his filing and failure to file income tax returns for the 1971, 1972 and 1973 tax years. Gamble made a timely filing of his return for 1971, with the notation "plan to review and amend if indicated." On the basis of that return, the Government charged him with filing a false return under 26 U.S.C. § 7206. Prior to 1975, Gamble did not file returns for either 1972 or 1973. As a result of those omissions, he was charged with two counts of willful failure to file returns in violation of 26 U.S.C. § 7203.

At his first trial, the jury found Gamble guilty of the two § 7203 counts, but could not reach a verdict on the § 7206 count. Gamble moved for and was granted a new trial. The grounds for the new trial were prosecutorial misconduct for the reason that the Government attorney continually gave his personal assurance that certain facts in issue were true. Gamble then filed a motion to bar reprosecution because of double jeopardy. That motion was denied, the district court finding that the Government attorney had not acted deliberately or purposefully in order to obtain a new trial. After a three-day trial, the jury found Gamble guilty on the two § 7203 counts and not guilty on the § 7206 charge.

DISCUSSION

A. Constitutionality of the Internal Revenue Code.

Gamble argues that the Internal Revenue Code violates the Fifth Amendment's privilege against self-incrimination and due process guarantees. This argument has no merit. United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927); United States v. Ming, 466 F.2d 1000 (7th Cir. 1972). Gamble's other arguments relating to the constitutionality of the Internal Revenue Code are frivolous.

B. Double Jeopardy.

Gamble argues that the trial court erred in denying his motion to bar reprosecution on double jeopardy grounds. Before reaching the merits of this claim, we must determine whether Gamble's appeal is timely on this issue. Gamble's motion to bar retrial was denied on August 23, 1978. The order denying that motion is immediately appealable. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Ajimura, 598 F.2d 510, 512 (9th Cir. 1979). Gamble did not appeal the denial until after the judgment of conviction was entered on October 23, 1978, following his retrial. Federal Rule of Appellate Procedure 4(b) specifies that an appeal in a criminal case must be taken within ten days from the entry of the judgment or order appealed from, unless the district court allows an additional thirty days. The notice of appeal was filed by Gamble well beyond this period.

The issue we face is whether a defendant must appeal an order denying a motion to bar retrial on double jeopardy grounds within the ten days prescribed by Fed.R.App.P. 4(b) after entry of the order, or be thereafter foreclosed from raising the issue. In Ajimura, 598 F.2d 510, 512, we left open the question of whether the denial of a double jeopardy claim may be reviewed on appeal, as here, or whether an appeal is foreclosed unless taken within ten days from such denial. We now hold that although an order denying a motion to bar retrial on grounds of double jeopardy is immediately appealable, this is permissive but not mandatory. The defendant may choose to appeal immediately or reserve the issue for appeal upon conviction in the subsequent trial.

The Double Jeopardy Clause is designed to protect the rights of the defendant, both against double punishment for the same offense, and against being twice put to trial for the same offense. Abney, 431 U.S. at 660-61, 97 S.Ct. 2034. However, it does not further the rights of the defendant nor promote judicial economy to Require that the defendant elect to appeal the issue immediately or be foreclosed from thereafter raising it. If the defendant seeks to avoid retrial, he may do so; however, if he does not insist upon this right conferred by the Double Jeopardy Clause, then it is preferable to avoid piecemeal appeals by permitting the issue to be reserved for an appeal of any subsequent conviction.

The Seventh Circuit recently reached this same conclusion in United States v. Gaertner, 583 F.2d 308, 310 (7th Cir. 1978), where the court stated:

Defendant was not required to appeal the double jeopardy ruling simply because he may have done so, and Gaertner was within his rights to delay an appeal pending final resolution of the case in the district court.

When a defendant moves for a mistrial and the motion is granted, the Double Jeopardy Clause does not bar a retrial unless there is bad faith conduct by the judge or prosecutor which threatens harassment of the accused by multiple prosecutions or affords the...