U.S. v. Helina

• Decision Date: 04 March 1977
• Docket Number: No. 74-3453,74-3453
• Citation: 549 F.2d 713
• Parties: 77-1 USTC P 9290 UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HELINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 713

549 F.2d 713

77-1 USTC P 9290

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HELINA, Defendant-Appellant.

No. 74-3453.

United States Court of Appeals Ninth Circuit.

March 4, 1977.

John W. Flynn, argued, Stern, Gayton, Neubauer, Seattle, Wash., for defendant-appellant.

Stan Pitkin, U. S. Atty., Marvin L. Gray, Asst. U. S. Atty., argued, Seattle, Wash., for plaintiff-appellee.

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

Before ELY and WRIGHT, Circuit Judges, and LUCAS, ^* District Judge.

OPINION

LUCAS, District Judge:

I. FACTS

Defendant was indicted on three counts of income tax evasion, in violation of 26 U.S.C. § 7201, and four counts of wilfully subscribing a false income tax return, in violation of 26 U.S.C. § 7206(1). Defendant was convicted by a jury on all seven counts. He now appeals from the judgment of conviction and urges as error:

(1) That the prosecution was permitted to comment upon the fact that he chose to exercise his fifth amendment right in declining to turn over his books and records to Government agents who were conducting the criminal investigation of his tax returns.

(2) That the trial court admitted into evidence the Government's bank deposit analysis.

In January, 1971, the defendant, Helina, was contacted by Revenue Agent Marx, who had been assigned the audit of Helina's 1969 tax return. At the end of March, 1971, the audit of Helina's tax returns shifted to a criminal investigation and Marx referred Helina's case to the Intelligence Division of the Internal Revenue Service. On August 25, 1971, Special Agent O'Boyle of the Intelligence Division of the Internal Revenue Service met with Helina and Marx. According to O'Boyle, he immediately advised Helina that a criminal tax investigation was in progress and that Helina had the right not to talk to or furnish the agents with any books and records. Throughout the investigation, Helina refused to produce his business records.

Prior to trial, defense counsel made a motion in limine to exclude any evidence that Helina had exercised his fifth amendment rights and had refused to provide the Internal Revenue Service with his books and records. The trial court precluded direct examination by the Government on this issue but, in case the subject was raised by the defendant during the trial, refused to prevent cross-examination and rebuttal on the issue.

At the trial, the Government was forced to use the net worth method of proof ¹ and a bank deposit analysis. ² Evidence of the bank deposit analysis, in the form of testimony by Special Agent Huntsman and Mrs. Clark, Helina's assistant, was admitted over the objection of defense counsel.

The thrust of Helina's defense at trial was that although the Government's net worth analysis showed an increase in net worth during the years in question, he was not guilty of any of the crimes charged as the increases were due to his negligent bookkeeping and were not a result of his intent to evade his income

taxes. II. COMMENT ON HELINA'S EXERCISE OF HIS FIFTH

AMENDMENT PRIVILEGE

Primarily, although recent United States Supreme Court cases ³ and cases from other circuits ⁴ perhaps intimate a different result, we initially conclude that Helina was within his rights, granted pursuant to fifth amendment protections against self-incrimination, to refuse to produce his books and records during the Internal Revenue Service criminal investigation. Additionally, the Government does not challenge Helina's invocation of his fifth amendment rights.

The fifth amendment commands that "No person . . . shall be compelled . . . to be a witness against himself." It has been the law for ninety years that compelled production of documents falls within the ambit of the privilege against self-incrimination. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). In Boyd, the Supreme Court held that production of an invoice on goods belonging to defendants could not be compelled under the fourth and fifth amendments and stated: "(W)e have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself." Boyd v. United States, supra, 116 U.S. 633, 6 S.Ct. 534. This sound legal principle has been applied by this circuit to cases involving the production of tax records. United States v. Cohen,388 F.2d 464 (9th Cir. 1967). ⁵

Having established that Helina was entitled to exercise his fifth amendment rights in the manner in which he did, the next question is whether the prosecutor improperly commented on Helina's invocation of those rights. To answer this, it must be determined what language will constitute "comment."

On five occasions during the course of trial, it was evident that investigators did not have access to all of Helina's records. The first exchange, which took place on direct examination, ⁶ made no reference to why the records were not available. This was in no way a comment upon the defendant's failure to produce. See United States v. Grammer, 513 F.2d 673, 676 (9th Cir. 1975). Any connection between this testimony and defendant's fifth amendment privilege was so remote as to escape the notice of Helina's counsel and the judge.

The conclusion that this was not a comment is strengthened by noting that the judge had already granted Helina's in limine motion as to direct examination by the prosecutor. The failure of the judge to make a ruling at this juncture, and of defense counsel to call it to the judge's attention, indicates that no prejudicial comment had been made.

Later in the trial, during the prosecutor's cross-examination of Helina, the following exchange took place:

"Q: Now, these particular checks (in exhibit), how long had you had these checks?

A: Since I imagine since they came back on the bank statements.

Q: How long has that been?

A: This is 1967 through 1970.

Q: So you had them that period of time ?

A: Yes.

Q: Did you ever lose them?

A: Not that I know of.

Q: Do you recall Mr. O'Boyle asking you particularly about these checks?

A: I recall Mr. O'Boyle calling me on the telephone and asking me if I cashed a check for $5,000.00 . . . and what it was for . . .

Q: In addition to that check and other checks, did you have some of these records available also when Mr. O'Boyle was asking you about those that you brought in here today?

A: I think Mr. O'Boyle asked me (Objection by defense counsel. The basis for this objection is unclear; however, it does not appear to be upon fifth amendment grounds.)

The Court: This is cross-examination on this subject on this particular check.

(Prosecutor): I was going to go into the record of Mr. Helina's records, also, your Honor.

The Court: Objection denied.

Q: Isn't it a fact during the periods that Mr. O'Boyle talked to you and also Mr. O'Leary, they asked you on a number of occasions about your business records, didn't they?

A: That's not true.

Q: They never asked you?

A: The only man that ever asked me to see anything in my office was Mr. Marx, and I showed him everything he asked for, with the exception of Mr. O'Boyle, which was two years after this investigation began and he asked me for all of my cancelled checks from 1963 through 1970. That is the time that I sought legal counsel and I was told not to give them to the Internal Revenue Service, and at no other time did they ask me for the records.

Q: Well during this period of time in 1971 and '72, you did have your business records available to you, did you not ?" (Tr. 540-42) (Emphasis added).

Crafty questioning may constitute "comment" despite its obliquity. In Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973), the court found that the question, "Now, Mr. Johnson, you didn't tell the police this, did you?", constituted comment, reasoning that the jury could as easily draw prejudicial inferences even where the comment was not direct. Id. at 1067-68.

In United States v. Rose, 500 F.2d 12 (2d Cir. 1974), vacated 422 U.S. 1031, 95 S.Ct. 2648, 45 L.Ed.2d 688, aff'd, 525 F.2d 1026 (2 Cir. 1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976), however, defendant was asked several times on cross-examination whether he told his story to the police upon arrest. 500 F.2d 14, n. 1. This was not held to be improper comment.

Here, the prosecution questioning could have been answered by "Yes" or "No" responses for the most part. Instead, defendant volunteered the information that legal counsel advised him to use the fifth amendment and withhold his records.

Assuming arguendo, without deciding, that this was improper prosecutorial comment, it must be noted that defense counsel failed to object to this exchange. ⁷ His in limine motion having been denied with respect to cross-examination and rebuttal testimony, defense counsel once more bore the burden of making a proper objection at the appropriate time.

Although it is error for the prosecution to comment on an accused's pretrial silence for purposes of impeaching his trial testimony in a situation where the earlier silence is not clearly inconsistent with the subsequent testimony (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Fowle v. United States, 410 F.2d 48 (8th Cir. 1969)), for the reasons that follow, we affirm the judgment of the district court.

Objections not made at trial cannot be raised on appeal to the court of appeals absent the presence of plain error. See, e. g., United States v. Rose, supra, 500 F.2d at 17; United States v. Machado, 457 F.2d 1372, 1375 (9th Cir.), cert. denied, 409 U.S. 860, 93 S.Ct. 96, 34 L.Ed.2d 106 (1972); Fed.R.Crim.P. 52; Fed.R.Evid. 103(d).

With regard to this second exchange, it is our conclusion that it did not amount to plain error. This holding is supported by the fact that defense counsel, during his...