U.S. v. Graham

• Decision Date: 22 April 1985
• Docket Number: Nos. 83-1797,83-1798,83-1837,83-1805,83-1836,83-1810,83-1932,s. 83-1797
• Citation: U.S. v. Graham, 758 F.2d 879 (3rd Cir. 1985)
• Parties: -1337, 85-1 USTC P 9317 UNITED STATES of America v. GRAHAM, Robert B. Appeal of Robert B. GRAHAM Sr. UNITED STATES of America v. GREENSPUN, Milton, Appellant. UNITED STATES of America v. KIRBY, William P. Appeal of William P. KIRBY. UNITED STATES of America v. BALCHAITIS, Joseph, Appellant. to 83-1935.
• Court: U.S. Court of Appeals — Third Circuit

Page 879

758 F.2d 879

55 A.F.T.R.2d 85-1337, 85-1 USTC P 9317

UNITED STATES of America v. GRAHAM, Robert B.

Appeal of Robert B. GRAHAM Sr.

UNITED STATES of America v. GREENSPUN, Milton, Appellant.

UNITED STATES of America v. KIRBY, William P.

Appeal of William P. KIRBY.

UNITED STATES of America v. BALCHAITIS, Joseph, Appellant.

Nos. 83-1797, 83-1798, 83-1805, 83-1810, 83-1836, 83-1837,

83-1932 to 83-1935.

United States Court of Appeals Third Circuit.

Argued Dec. 13, 1984.

Decided March 20, 1985.

Rehearing and Rehearing In Banc Denied

April 22, 1985 in Nos. 83-1798 & 83-1810,

83-1805 & 83-1836 and

83-1837 & 83-1935.

Robert B. Graham, Sr., Holland, Pa., pro se.

Ronald Brent Boutwell (argued), Las Vegas, Nev., for appellant, Graham.

Edward S.G. Dennis, Jr., U.S. Atty., Chief of Appeals, Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Edward F. Borden, Jr. (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

David E. Shapiro (argued), Philadelphia, Pa., for appellant, Greenspun.

Stephen P. Patrizio (argued), Dranoff & Patrizio, Philadelphia, Pa., for appellant, Kirby.

Joseph Balchaitis, pro se.

Bonnie B. Leadbetter (argued), Leadbetter & Becker, Philadelphia, Pa., for appellant, Balchaitis.

Before GARTH and HIGGINBOTHAM, Circuit Judges, and McCUNE, District Judge. ^*

OPINION OF THE COURT

GARTH, Circuit Judge:

Robert B. Graham was convicted of conspiracy to defraud the United States, 18 U.S.C. Sec. 371, and aiding the filing of false tax returns. 26 U.S.C. Sec. 7206(2). William Kirby was convicted of conspiracy to defraud. Joseph Balchaitis was convicted of conspiracy to defraud, filing a false W-4 exemption certificate, and failure to file income tax returns. Milton Greenspun was convicted of conspiracy to defraud the United States. Each appealed.

All the appellants were involved in a group called the Committee for Constitutional Taxation. This group conducted a series of public seminars directed at educating citizens about tax protest, the constitutional aspects of income tax reporting, and the methods by which they could avoid paying taxes and thwart IRS investigations. At these seminars, attendees were instructed about how to file "fifth amendment tax returns" which disclosed little or no information about the taxpayer's income, but which contained entries stating "OBJECT--FIFTH AMENDMENT." They were also advised to set up foreign bank accounts and they were instructed to claim loss of memory if called by a grand jury.

The defendants challenge their convictions on a great number of grounds, all of which we find to be without merit. ¹ Only a few of the alleged errors warrant discussion. Perhaps the most troubling challenge concerns a supplemental charge given to the jury after it had indicated that it was deadlocked. However, finding no reversible error preserved for review, we affirm all the judgments of conviction.

I.

The defendants' trial started on Wednesday, August 31, 1983. On Monday, September 12, while testimony was still being heard and two days before deliberations began, one juror sent the judge the following note:

Your Honor,

I would like to request of the court on behalf of the Jewish juror's [sic] and possible others, that we be dismissed on Friday at 4:00 P.M. This is the eve of Yom Kippur which starts the beginning of a 24 hour fast. We must be home to prepare and eat dinner before 6:00 P.M. in order to begin the holiday tradition of synagogue and our fast.

Thank you very much for your consideration.

Susan Ball

Seat # 12

Ct. Ex. # 3. The district court judge never directly responded to the jury with respect to this request. No member of the jury ever raised the issue again.

After hearing nine days of testimony, the jury retired at 3:44 pm on Wednesday, September 14, 1983 to deliberate on the thirty-six counts of the indictment. The jury was sent home at 5:27 that evening, then resumed its deliberations at 9:30 am the following morning, Thursday, September 15. The jury deliberated all day Thursday and was sent home at 10:05 pm. The jury resumed its deliberations at 9:00 am on Friday, September 16. The evening of Friday, September 16, 1983 was the commencement of the Jewish High Holy Day of Yom Kippur.

On the morning of Friday, September 16, at 11:00 am, the jury sent the following note to the district court judge:

Your Honor,

After approximately 17 hours of deliberation we have reached a verdict against only one of the defendants on two counts.

After careful and intensive debate, there is no doubt in any of our minds that we can not reach a unaminous [sic] verdict on any of the other charges.

Therefore further deliberations would be fruitless.

David Racher Ct. Ex. # 8. The judge read this message to counsel and indicated that he would give the jury a supplemental charge.

At this point, counsel for Kirby, concerned that the jury might consider four o'clock that afternoon as a deadline for its verdict, requested that the jury be informed in the court's supplemental charge that they need not reach a verdict by four o'clock to be excused for the Jewish holiday. The judge assented to this request, stating, "All right I'll say something to that [effect]." However, in instructing the jury the judge failed to address the specific subject of a four o'clock departure time. The judge did tell the jury that "There are no time deadlines within which you must reach your verdict." Appendix at 239a. Thus, the instruction given to the jury did not directly respond to the juror's request which had been made four days earlier, but it did unequivocally state that no time limitations restricted the jury's deliberations.

The charge did include language which was aimed at obtaining a jury verdict by breaking the jury's deadlock:

If much the greater number of you are for a conviction, each descenting [sic] juror ought to consider whether a doubt in his or her mind is a reasonable one, since it makes no effective impression upon the minds of so many equally honest, equally conscientious fellow jurors who bear the same responsibility, serve under the same oath, and have heard the same evidence with, we may assume, the same attention, and an equal desire to arrive at the truth.

On the other hand, if a majority or even a lesser number of you are for acquittal, other jurors ought to seriously ask themselves again, and most thoughtfully, whether they do not have reason to doubt the correctness of a judgment which is not incurred [sic] in by so many of their fellow jurors, and whether they should not distrust the weight and sufficiency of evidence which fails to convince the minds of several of their fellow jurors beyond a reasonable doubt.

Immediately after the supplemental charge had been read to the jury and the jury had retired, counsel for Kirby again asked that the jury be informed that there was no four o'clock deadline. The district court judge replied, "Well, I don't know how I could make it any clearer." Appendix at 240a.

Counsel for Graham at this stage requested a further charge with respect to first amendment protection for some of Graham's activities. Counsel for Greenspun objected to a portion of the supplemental charge which discussed the length and expense of the trial. At no time before the announcement of the verdicts by the jury did any defendant object to the portion of the charge that directed a minority number of the jurors to reconsider their positions in light of the positions taken by the majority number of the jurors.

At 3:20 pm that Friday (September 16, 1983), the jury announced that it had reached verdicts on a total of eight of the thirty-six counts. The district court judge accepted this verdict. No timely request to poll the jury was made. ² The judge dismissed without prejudice the counts on which the jury was unable to reach a verdict and then discharged the jury.

II.

Under Federal Rule of Criminal Procedure 30,

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

This Court in a recent in banc opinion reconfirmed that it will not consider on appeal, objections that were not timely raised before the trial court. United States v. Gibbs, 739 F.2d 838 (3d Cir.1984) (in banc ), cert. denied, --- U.S. ----, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985). The bar against review of objections that have not been timely made is especially important where, as here, a timely objection would have allowed the trial judge to correct his error and obviate the need for a new trial.

In Gibbs, we declined to review a defendant's sixth amendment confrontation clause claim that was not timely asserted before the district court. In Gibbs, the defendant challenged the admission of testimony of an alleged co-conspirator who had not been proved to be unavailable. No constitutional objection to this testimony was made until after both parties rested. We noted in Gibbs that had the defendant made a timely sixth amendment objection, the sixth amendment defect could have been cured by calling the declarant or by proof of the unavailability of the declarant of the challenged testimony. 739 F.2d at 849.

Similarly, had any defendant here timely objected to the charge which required the jurors in the minority to reconsider their position, the district court judge could have given a corrective instruction. Indeed, had any defendant called the court's attention to this Court's opinion in United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969), there can be no question but that the district court judge would have revamped his supplementary charge and given the proper Fioravanti instruction. Since no such objection was made, however, the issue has not been preserved for review.

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