U.S. v. Grote, 79-5279

• Decision Date: 14 July 1980
• Docket Number: No. 79-5279,79-5279
• Citation: 632 F.2d 387
• Parties: 81-1 USTC P 9109 UNITED STATES of America, Plaintiff-Appellee, v. Alex R. GROTE, Jr., Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 387

632 F.2d 387

81-1 USTC P 9109

UNITED STATES of America, Plaintiff-Appellee, v. Alex R. GROTE, Jr., Defendant-Appellant.

No. 79-5279

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 14, 1980.

Rehearing and Rehearing En Banc Denied Dec. 8, 1980.

Rip Collins, a Professional Corp., Austin, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before HILL, GARZA and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

The appellant, Alex Grote, was convicted under two counts of an information charging him with violating 26 U.S.C. § 7203, in that, for the years 1975 and 1976, he failed to file income tax returns "stating specifically the items of his gross income and any deductions and credits to which he was entitled." ¹ On appeal he challenges the trial court's instructions to the jury; the exclusion of evidence offered as relevant to his specific intent; the admission of opinion testimony by an IRS agent concerning the "acceptability" to the Service of those 1040 forms filed by the appellant for the two years in question; the adequacy of his arraignment proceedings; his prosecution under an allegedly unpublicized change in agency policy; and the trial court's exercise of personal jurisdiction over him based on an arrest warrant issued pursuant to an unverified information. Finding no merit in any of appellant's contentions of error, we affirm.

The evidence at trial disclosed that during the years in question the defendant Grote was an employee of the Hill Bookbindery in Austin, Texas. His employer's W-2 forms show that Grote received $10,000 in "wages, tips, and other compensation" in 1975, $10,323.00 in 1976. Grote did not submit his W-2's for either of those years along with his 1040's; instead his returns reported "total income" figures of $155.00 for 1975 and $554.00 for 1976. He attached to his 1975 return a letter explaining his belief, only recently arrived at, that Federal Reserve notes were not "legal money" under the Constitution, and complaining further that his privacy rights are violated by the filing requirements of the income tax laws. Grote applied for a refund of the $177.30 which was withheld by his employer in 1975. No withholdings were made in 1976, presumably the result of a withholding exemption certificate, purportedly filed by Grote in January of that year, in which he stated that he expected to incur no income tax liability in 1976.

The first of Grote's enumerations of error, in the order in which they are said to have occurred, concerns the trial court's jurisdiction over his person. It is undisputed that the defendant's presence at his arraignment proceedings was secured by an arrest warrant issued pursuant to an unverified information. Fed.R.Crim.P. 9(a) provides for the issuance of an arrest warrant for a defendant named in an information, but only "if it is supported by oath ...." The procedure for raising objections to the personal jurisdiction of the court, however, is governed by Fed.R.Crim.P. 12.

Rule 12(b)(1) of the Rules of Criminal Procedure requires that objections based on the institution of the prosecution be raised prior to trial, and the failure to adhere to the requirements of that Rule results in a waiver of the objection. Unlike the objections to the subject matter jurisdiction of the court which cannot be waived under Rule 12(b)(1), ... objections to personal jurisdiction over a particular defendant can be.

United States v. Kahl, 583 F.2d 1351, 1356 (5th Cir. 1978) (citation omitted). Grote contends that his objection to the court's jurisdiction at arraignment preserves the issue of the defective warrant on appeal. ² As the motions which were filed by Grote's counsel after arraignment and before trial make clear, however, defendant's objection was to the subject matter jurisdiction of the trial court. R., pp. 22, 44-51. At no time was the trial court's attention ever called to the defective warrant. Grote's failure specifically to object to the personal jurisdiction of the court under the faulty arrest warrant thus constitutes a waiver of that objection under Rule 12(b)(1).

Grote next complains of the conduct of the arraignment proceedings. The record discloses that the trial court failed specifically to read the indictment, to read the contents of the information to the defendant or to state to him the substance of the charge. ³ But the record also reveals that, subsequent to the appointment of counsel to represent Grote, a recess in the arraignment proceedings was held in order for counsel to consult with Grote concerning the charges against him. ⁴ "Vacating convictions for lack of formal arraignment proceedings is predicated on the existence of possible prejudice." United States v. Rogers, 469 F.2d 1317, 1317-18 (5th Cir. 1972). We do not believe that any prejudice has resulted from the failure of the trial judge personally to inform the defendant of the charges against him. The trial judge assigned that responsibility to appointed counsel, and he satisfied himself that that responsibility had been discharged before calling upon the defendant to plead.

The appellant next complains of two evidentiary rulings made by the court in the course of trial. The first of these concerns the testimony of David Clore of the IRS. In its effort to prove knowledge on the part of the defendant in failing to make the required disclosures of income on his 1975 and 1976 returns, the Government sought testimony from Clore concerning the contents of Grote's returns for the three years prior to 1975. Throughout this line of inquiry Clore was allowed, over objection, to contrast the evidence of these returns with those of 1975 and 1976 in terms of the "acceptability" of each return to the Service for purposes of computing a tax. ⁵

Grote objects to the use of the word "acceptable" as suggesting to the jury that it should defer to the opinion of the IRS on the question of his guilt. This argument is without merit. As the Government's counsel made clear by successive questioning, the purpose of this inquiry was to contrast the contents of those returns which were in fact accepted by the Service with those which were not, in order to show prior knowledge on Grote's part of what was required of him. Clore's qualifications as a witness were as Chief of the Criminal Investigation Staff at the Austin, Texas, Service Center with access to the documents themselves. Trans., Vol. 2, pp. 46-48. As such, his testimony in the form of an opinion concerning the acceptability to the Service of the returns in question is admissible under F.R.E. 701 so long as it is "limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." The "facts in issue" were the contents of the returns and the inferences that the jury might draw therefrom. It might have been possible for the Government to highlight this contrast without having Clore express an opinion as to the acceptability of any of these returns. But "(t)estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." F.R.E. 704. We conclude that it was not an abuse of discretion to admit this testimony.

Appellant also objects to the exclusion from evidence of a court opinion which purportedly held that returns substantially similar to Grote's had been accepted by the court and the Government in that prior action. Unfortunately, the record fails to disclose the citation of this authority, so we have no occasion to assess its relevance to Grote's argument that he relied thereon in filing his own returns. This does not foreclose us from ruling on this objection, however, for it appears from the record that Grote's argument was fully developed before the jury. David Martin, the "tax consultant" whose advice is no doubt partly responsible for the trouble Grote finds himself in, was called, recalled, and recalled again, to testify to the defendant's version of this missing judgment. "With the essence of desired evidence before the jury, any harm in the ... exclusion (of the documentary evidence) was eliminated." United States v. Sanfilippo, 581 F.2d 1152, 1155 (5th Cir. 1978). See also United States v. Ashley, 555 F.2d 462, 465 (5th Cir. 1977). Since we are unable to conclude that "a substantial right of the (appellant) is affected," F.R.E. 103(a), we find no abuse of discretion in the exclusion of this opinion.

When both sides closed, Grote moved the court for a judgment of acquittal. His motion was denied. He contends that it had been the policy of the Government not to prosecute protest tax returns of his variety before 1975, and that his prosecution marked a departure from that alleged policy without the benefit of notice and comment rulemaking. The sole support for the existence of this policy is the cross-examination testimony of Clore that such returns "may have been" accepted before 1975. ⁶ In short, Grote contends that similar transgressors in the past have not been prosecuted.

Mindful of the separation-of-powers implications permeating this entire area, (this court has held) that in order to make out a claim of selective prosecution, the defendant must show: 1) that others similarly situated have not been prosecuted, and 2) that the Government's prosecution of him is selective, invidious, in bad faith or based on impermissible considerations such as race, religion, or his exercise of constitutional rights.

United States v. Hayes, 589 F.2d 811, 819 (5th Cir. 1979) (footnote omitted); United States v. Kahl, supra, at 1353. Grote alleges no more than that he has been "caught in the net of increased awareness and...