U.S. v. Hinderman, 79-1342

• Citation: 625 F.2d 994
• Decision Date: 15 July 1980
• Docket Number: No. 79-1342,79-1342
• Parties: 80-2 USTC P 9571 UNITED STATES of America, Plaintiff-Appellee, v. Bernard John HINDERMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 994

625 F.2d 994

80-2 USTC P 9571

UNITED STATES of America, Plaintiff-Appellee, v. Bernard John HINDERMAN, Defendant-Appellant.

No. 79-1342.

United States Court of Appeals Tenth Circuit.

Submitted Dec. 12, 1979.

Decided July 15, 1980.

Bernard John Hinderman, pro se.

M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Robert E. Lindsay, and Francis J. Gould, Attys., Tax Div., Dept. of Justice, Washington, D. C. (Hubert H. Bryant, U. S. Atty., Tulsa, Okl., of counsel), for plaintiff-appellee.

Before DOYLE, McKAY and LOGAN, Circuit Judges.

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir. R. 10(e). This cause is therefore ordered submitted without oral argument.

Bernard John Hinderman appeals from his conviction for willfully supplying false information to his employer on a withholding exemption certificate in violation of I.R.C. § 7205, 26 U.S.C. § 7205. Proceeding on appeal pro se as he did at trial, Hinderman makes various assertions that we think fall into three categories: (1) the evidence was not sufficient to sustain the conviction, (2) the trial court erred in not granting his motion for judgment of acquittal after the prosecution rested its case-in-chief, and (3) he is a victim of selective prosecution. We affirm.

In brief, the evidence adduced at trial showed that on or about March 13, 1976, Hinderman supplied to his employer a withholding exemption certificate form W-4E in which he certified that he "incurred no liability for Federal income tax for 1975 . . . ." Expert testimony showed this statement to be false; defendant incurred a tax liability of at least $427.01 for that year. The trial court held the government proved beyond reasonable doubt that appellant knowingly, voluntarily and intentionally supplied his employer the false information with knowledge that he had incurred a tax liability for 1975.

I

Hinderman makes two arguments in support of his claim that the evidence supporting his conviction is insufficient. First, he contends the government failed to show defendant's statement on the withholding certificate was false, i. e. that he had incurred a tax liability for the 1975 tax year, because the government admitted owing him a refund for overwithholding. The argument is specious. See Treas.Reg. § 31.3402(n)-1 ex. 2 (1980).

Second, defendant contends the government failed to show he had a bad purpose or wrongful intent in supplying the false information to his employer. This argument is also without merit. It is well-settled that to prove a violation of I.R.C. § 7205 the government is not required to show bad purpose or evil intent. See, e. g., United States v. Malinowski, 472 F.2d 850 (3d Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). Section 7205 proscribes "willfully" supplying false information. Willfulness means "a voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 24, 50 L.Ed.2d 12 (1976). See United States v. Hudler, 605 F.2d 488 (10th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). The evidence here more than adequately justified the trial court's conclusions that defendant voluntarily and intentionally certified he had no tax liability for 1975, that he knew this was false and that he knew he had a legal duty to supply true information.

II

Hinderman next contends the trial court's failure to grant his motion for judgment of acquittal in the circumstances present was error. We disagree.

After the government rested its case-in-chief, defendant moved for judgment of acquittal as is permitted by Fed.R.Crim.P. 29(a). Before ruling on the motion, the court expressed concern that the government's proof of venue was deficient. The court then allowed the prosecution to reopen its case to supply the relevant evidence given by a witness the prosecution had used in its case-in-chief following which the court denied Hinderman's motion.

Fed.R.Crim.P. 29(a) provides in relevant part that "(t)he court on motion of a defendant . . . shall order the entry of judgment of acquittal . . . after the evidence on either side is closed if the evidence is insufficient to sustain a conviction" of the offense charged. The question here is whether the trial court, by allowing the prosecution to supply necessary evidence after having once rested, impermissibly circumvented Rule 29(a).

Ordinarily, the trial court is vested with wide discretion to permit the reopening of either party's case. United States v. Keine, 424 F.2d 39, 40-41 (10th Cir. 1970). We hold that the rule is no different in the specific context presented here. Rule 29(a), as it concerns a motion for acquittal at the close...