U.S. v. Goetz, s. 83-8667

• Decision Date: 13 November 1984
• Docket Number: 83-8668,Nos. 83-8667,s. 83-8667
• Parties: -390, 84-2 USTC P 9947 UNITED STATES of America, Plaintiff-Appellee, v. Glenn G. GOETZ, a/k/a "Glenn G. Getz" Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Calvin PERKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 705

746 F.2d 705

55 A.F.T.R.2d 85-390, 84-2 USTC P 9947

UNITED STATES of America, Plaintiff-Appellee, v. Glenn G. GOETZ, a/k/a "Glenn G. Getz" Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Calvin PERKINS, Defendant-Appellant.

Nos. 83-8667, 83-8668.

United States Court of Appeals, Eleventh Circuit.

Nov. 13, 1984.

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

Joe D. Whitley, U.S. Atty., Macon, Ga., for plaintiff-appellee in No. 83-8668.

Kenneth W. Musgrove, Albany, Ga., Jeffrey L. Shrom, Missoula, Mont., for defendants-appellants in both cases.

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

Before KRAVITCH and HENDERSON, Circuit Judges, and ALLGOOD, ^* District Judge.

KRAVITCH, Circuit Judge:

Defendants Glenn G. Goetz, a/k/a "Getz," and James Calvin Perkins ¹ were each convicted of two counts of willful failure to file federal income tax returns in violation of 26 U.S.C. Sec. 7203. ² In this appeal, defendants challenge the validity of their convictions based upon two pretrial determinations made by the court below. Because we believe that both of these rulings invaded the province of the jury and thus unconstitutionally denied defendants the right to a trial by jury, we reverse and remand these cases for new trials.

I. BACKGROUND

For the years 1977 and 1978, Goetz and Perkins submitted to the Internal Revenue Service (IRS) tax forms which contained only the words "object self incrimination" in each space requesting income information. Attached to these forms were several pages of typed information discussing the fifth amendment. No information regarding Goetz's or Perkins's income was included. Both defendants were indicted on two counts of violating 26 U.S.C. Sec. 7203 (Willful failure to file a return). In order to prove a violation of this statute, the government must prove the following three elements: the taxpayer was required to file an income tax return; the taxpayer failed to file such return; and the taxpayer's violation was willful.

In response to a series of pretrial motions, the lower court issued an order which stated that, as a matter of law, the documents submitted by the defendant were not tax returns within the meaning of section 7203. The pretrial order went on to rule that unless the defendants made a prima facie showing to the court in camera of the validity of their good faith defense, they would not be able to present this defense to the jury. The defendants claimed that requiring such an in camera showing on the issue of good faith was illegal and refused to take part in such a hearing. The juries at both trials were explicitly instructed that the documents submitted by the defendants were not tax returns and defendants were not permitted to produce any evidence of good faith.

Both Goetz and Perkins were convicted of two counts of violating section 7203, sentenced to two years imprisonment, and fined $20,000.

II. LOWER COURT'S DETERMINATION THAT DEFENDANTS DID NOT FILE A RETURN.

The trial court correctly ruled that, as a matter of law, alleged tax returns which do not contain any financial information are not "returns" within the meaning of section 7203. See, e.g., United States v. Pilcher, 672 F.2d 875, 877 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982); United States v. Booher, 641 F.2d 218, 219 (5th Cir. Unit B 1981); ³ United States v. Smith, 618 F.2d 280, 281 (5th Cir.), cert. denied, 449 U.S. 868, 101 S.Ct. 203, 66 L.Ed.2d 87 (1980); ⁴ United States v. Johnson, 577 F.2d 1304, 1311 (5th Cir.1978); United States v. Daly 481 F.2d 28, 29 (8th Cir.1973); United States v. Porth, 426 F.2d 519, 522-23 (10th Cir.) cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970). ⁵ The court, however, went on to determine that the documents filed by the defendants did not contain any financial information, and concluded that, as a matter of law, these documents were not returns. In doing so, the lower court applied the facts to the law, thus invading the province of the jury. In essence, the court directed a verdict as to one of the three elements of the alleged offense: failure to file a return.

The rule is firmly established that the trial judge cannot direct a verdict in favor of the government for all or even one element of a crime. The former Fifth Circuit emphatically stated this principle:

[N]o fact, not even an undisputed fact, may be determined by the Judge. The plea of not guilty puts all in issue, even the most patent truth. In our federal system, the Trial Court may never instruct a verdict either in whole or in part.

Roe v. United States, 287 F.2d 435, 440 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961); see also United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1946); United States v. Sheldon, 544 F.2d 213, 221 (5th Cir.1976); United States v. Bosch, 505 F.2d 78, 82 (5th Cir.1974); United States v. Musgrave, 444 F.2d 755, 762 (5th Cir.1971), cert. denied, 414 U.S. 1023, 93 S.Ct. 447, 38 L.Ed.2d 315 (1973); United States v. England, 347 F.2d 425 (7th Cir.1965); United States v. McKenzie, 301 F.2d 880 (6th Cir.1962); Brooks v. United States, 240 F.2d 905 (5th Cir.1957); Schwachter v. United States, 237 F.2d 640 (6th Cir.1956); United States v. Manuszak, 234 F.2d 421 (3d Cir.1956); Carothers v. United States, 161 F.2d 718 (5th Cir.1947). The rationale behind this rule is respect for, and adherence to, the jury system. The Supreme Court in United States v. Martin Linen Supply Company, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) spoke of the importance of the jury in a criminal trial:

[The jury's] overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction. For this reason, a trial judge is prohibited from entering a judgment of conviction or directing a jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51 [15 S.Ct. 273, 39 L.Ed. 343] (1895); Carpenters v. United States, 330 U.S. 395, 408 [67 S.Ct. 775, 782, 91 L.Ed. 973] (1947), regardless of how overwhelmingly the evidence may point in that direction.

Id. at 572-73, 97 S.Ct. at 1355-56. There is no reason to deny the defendant the right to a jury determination when the evidence seems overwhelmingly in favor of the government. As stated in Konda v. United States, 166 F. 91, (7th Cir.1908):

Our conclusion is that an accused person has the same right to have 12 laymen pronounce upon the truth or falsity of each material averment in the indictment, if the evidence against him is clear and uncontradicted, as he unquestionably would have if it were doubtful and conflicting. Inasmuch as jurors are rightly trusted, in close and difficult cases, to maintain the peace and dignity of organized society, surely they may be relied upon in the plain and simple ones.

Id. at 93.

The Seventh Circuit dealt with a case similar to the one at bar in United States v. England, 347 F.2d 425. In England, the defendant was charged with willfully attempting to defeat the payment of income taxes. To convict a defendant of this crime, the government must prove that it has a valid assessment of tax owed. The district judge instructed the jury that "as a matter of law" the assessments made against the defendant were valid. Id. at 429. In reversing, the appellate court ruled that "the defendant has an absolute right to a jury determination on all essential elements of the offense." Id. at 430. The court then went on to provide ample citation of cases in which the appellate court reversed a trial court's attempt to apply the facts to the law. E.g., United States v. McKenzie, 301 F.2d 880 (prosecution for the possession of non-taxed whiskey and trial judge found that the fact of possession existed); Brooks v. United States, 240 F.2d 905 (trial court ruled as a matter of law that the Internal Revenue Service agent who administered the oath had authority to do so); Schwachter v. United States, 237 F.2d 640 (in case involving the sale of an automobile moving in interstate commerce, trial judge ruled that the automobile in question was in interstate commerce); United States v. Manuszak, 234 F.2d 421 (in trial for theft of interstate goods, trial judge ruled that a theft had occurred); Carothers v. United States, 161 F.2d 718 (defendant was charged with violations of the Emergency Price Control Act and trial judge determined that the maximum ceiling price was established as a matter of law at a price less than defendant was charged with receiving).

The England court acknowledged a contradictory line of cases, albeit a shorter one. We, too, acknowledge these cases, but do not find them persuasive. Some are distinguishable from the one at bar because they involved judges who commented upon the evidence, perhaps expressing a strong opinion, but who left the final determination to the jury. See, e.g., United States v. Jonikas, 197 F.2d 675 (7th Cir.), cert. denied, 344 U.S. 877, 73 S.Ct. 171, 97 L.Ed. 679 (1952). In other cases, the appellate court weighed the evidence and deemed the error harmless. See, e.g., United States v. Rainone, 192 F.2d 860 (2d Cir.1951). This approach has been rejected by the Fifth Circuit, United States v. Ragsdale, 438 F.2d 21 (5th Cir.1971); Mims v. United States, 375 F.2d 135 (5th Cir.1967); cf. United States v. Bosch, 505 F.2d 78 (5th Cir.1974), and we decline to adopt it today. We conclude that a trial court's actions in directing a verdict in a criminal trial, either in whole or in part, cannot be viewed as harmless error.

Finally, we turn to United States v. Grote, 632 F.2d 387 (5th Cir.1980), cert. denied, 454 U.S. 819, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981) in which the Fifth Circuit dealt with the specific situation at bar: jury instructions...