U.S. v. Green

• Citation: 757 F.2d 116
• Decision Date: 04 February 1985
• Docket Number: No. 84-1075,84-1075
• Parties: -853, 85-1 USTC P 9178 UNITED STATES of America, Plaintiff-Appellee, v. Wiley F. GREEN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 116

757 F.2d 116

55 A.F.T.R.2d 85-853, 85-1 USTC P 9178

UNITED STATES of America, Plaintiff-Appellee, v. Wiley F. GREEN, Defendant-Appellant.

No. 84-1075.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 1984.

Decided Feb. 4, 1985.

David J. Ryan, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

John F. Ittenbach, Cottrell, Ittenbach, Helbert & Sheeks, Indianapolis, Ind., for defendant-appellant.

Before ESCHBACH and COFFEY, Circuit Judges, and GRANT, Senior District Judge. ^*

COFFEY, Circuit Judge.

The defendant, Wiley F. Green, appeals his conviction in the United States District Court for the Southern District of Indiana for three counts of failure to file an income tax return in violation of Title 26 U.S.C. Sec. 7203. ¹ For the calendar years 1976, 1977, and 1978, the defendant was sentenced to one year of incarceration with six months of the sentence suspended. We affirm.

I.

The facts of this case are undisputed. The appellant, Wiley F. Green, is a dentist who resides in Zionsville, Indiana. He and his wife filed joint tax returns for the years 1972 through 1974. He testified that based upon his experiences while serving in the Army, together with the information he received while attending various seminars regarding a citizen's constitutional rights, he began to question the government's constitutional authority to tax. Thus, beginning in the year 1975 Green requested that his employer, the University of Indiana, withhold no taxes from his paycheck since he contended he had incurred no federal income tax liability for the taxable year of 1974. ²

Between 1976 and 1978, the appellant filed various protest documents in place of or in connection with his tax return. ³ Warning letters were sent to the defendant by the Internal Revenue Service (IRS) for each year that the defendant filed an improper return. Following his third year of filing deficient returns, IRS Special Agents contacted the appellant regarding his tax return deficiencies. He then filed amended returns for each of the three years inscribing on each line the statement "object self-incrimination." Based on his continued failure to file proper tax returns, the defendant was indicted, tried and convicted for failure to file a proper return in violation of Title 26 U.S.C. Sec. 7203 for the years 1976 through 1978.

Green appeals this conviction alleging that the government failed to sufficiently identify him as the defendant at trial. He also asserts that the district court abused its discretion in allowing evidence to be received at trial detailing his income and in allowing him to be cross-examined on certain tax computations. Next, he contends that the district court submitted several erroneous jury instructions concerning the sufficiency of the information to be disclosed on his tax returns and the nature of his Fifth Amendment good faith defense.

II.

A. Identification of the defendant.

The appellant initially contends that the district court improperly denied the defendant's motion to dismiss based upon the government's failure to properly identify the individual in the courtroom as the defendant, Wiley F. Green. We hold that the appellant's argument is without merit.

This court, in United States v. Weed, 689 F.2d 752 (7th Cir.1982), held that while "an in-court identification of the accused is an essential element in the establishment of guilt beyond a reasonable doubt.... identification can be inferred from all the facts and circumstances that are in evidence." Id. at 754. In this case, at the close of the government's case-in-chief, the district court had before it various stipulations entered into between the parties at the beginning of trial that had been signed by the defendant, Wiley F. Green. When the government offered these stipulations into evidence, the only objections raised by Green were to their materiality and relevance. In fact, Green's counsel at trial stated that he objected "since we have offered to stipulate that the defendant in this case has earned sufficient income...." Similarly, the defense counsel failed to object properly to the prosecution's reference to the "defendant" throughout its case-in-chief and since there was only one defendant in this case there was no opportunity for confusion or mistake. Id. at 756. Thus, the district court did not act improperly in denying the defendant's motion to dismiss for failure to properly identify the defendant during the government's case-in-chief. It should be noted that the district court allowed the government to reopen its case-in-chief and present an IRS agent who specifically identified the defendant as Wiley F. Green. Green contends that the district court abused its discretion in allowing the government to reopen its case in order that they might identify him as the defendant. However, the district court is invested with broad, discretionary powers in allowing a party to reopen its case. See, e.g., United States v. Papia, 560 F.2d 827, 849 (7th Cir.1977). "The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities inherent in the adversary process.... The judge's control over the proceedings must necessarily be substantial.... In the final analysis, the admissibility and the scope of examination of witnesses must be determined by the trial court in the exercise of its discretion...." Caruth v. Pinkney, 683 F.2d 1044, 1051 (7th Cir.1982). We disagree with Green that the district court judge abused his discretion in allowing the government to reopen its case in order to present the IRS agents who could specifically identify Green as the defendant. Certainly, this evidence was relevant and did not prejudice Green in any manner. Further, the jury could very logically infer his identity as that of the defendant from all of the testimony and exhibits presented during the government's case. Thus, the added specific identification of Green as the defendant after the reopening of the government's case was, at best, cumulative evidence of his identity.

B. Evidentiary matters.

The defendant next argues that the district court committed prejudicial error when it allowed the government to introduce the amount of the defendant's income during the years in question into evidence since the defendant was willing to stipulate that he had made enough income during these years to be required to file a return. The district court allowed not only the introduction of the amount of the defendant's income into evidence, but also allowed evidence concerning its source, reason for receipt, and time of receipt. Clearly, all of this information was introduced and properly received into evidence as it related to the issue of the defendant's intent or "willfulness" in failing to file a return, a fact that the defendant was obviously not willing to stipulate. The evidence as to the income's source, reasons for receipt, etc., was particularly relevant since the defendant based his defense upon his good faith belief in claiming the Fifth Amendment right against self-incrimination on his tax return. The evidence as to the amount of income derived from the various sources and the time that those amounts were received was also relevant as it related to the defendant's Fifth Amendment good faith defense since it detailed the percentage of the defendant's income from its various sources from wages, dividends, and interest for the tax years in question. ⁴ Further, on many of the documents introduced into evidence, such as Green's canceled checks, he often stamped the back with a notation protesting the constitutionality of Federal Reserve Notes. Certainly, this evidence was relevant in assessing his intent in failing to file his tax returns. See United States v. Moore, 627 F.2d 830, 832, 833 n. 1 (7th Cir.1980) (This notation on the back of the checks was relevant since Green deposited the amount of money reflected on the check into his account at the bank and, thus, the evidence tended to undercut his own assertion that he believed those dollars to be worthless).

The defendant also contends that he was compelled to testify on cross-examination against his will concerning the computation of his tax liability for the years in question. The appellant is correct in his assertion that every citizen of the United States must be guaranteed a free choice to admit, deny, or refuse to answer any questions, except that once he takes the stand to testify this privilege against self-incrimination is lost for purposes of cross-examination as to matters reasonably related to his direct examination. Brown v. United States, 356 U.S. 148, 155-56, 78 S.Ct. 622, 626-27, 2 L.Ed.2d 589 (1958); Neely v. Israel, 715 F.2d 1261, 1264 (7th Cir.1983). ("The rationale is that a witness who foregoes his right not to testify cannot then claim that he is immune from cross-examination on matters that he has chosen to put in dispute through his direct testimony." Id.) When determining the "relation to the subject matter of one's direct examination" both the United States Supreme Court and our court have liberally interpreted the extent of the defendant's direct examination for purposes of establishing the proper scope of the cross-examination. See Neely, 715 F.2d at 1264, interpreting United States v. Havens, 446 U.S. 620, 628, 100 S.Ct. 1912, 1917, 64 L.Ed.2d 559 (1980); see also United States ex rel. Doss v. Brewer, 685 F.2d 1003, 1013 (7th Cir.1982).

The defendant in this case testified on direct examination that he compared the possible penalties for failure to file against his possible tax liability. He explained that since the possible penalties were much greater than the tax liability incurred if he did file a legitimate return, he must have sincerely believed in his cause since he was willing to accept those penalties by not filing a return. He was then asked to disclose how he computed his liability and the basis for...