U.S. v. Masat

• Decision Date: 03 December 1991
• Docket Number: No. 90-4846,90-4846
• Citation: 948 F.2d 923
• Parties: -361, 92-1 USTC P 50,009 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth J. MASAT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

948 F.2d 923

69 A.F.T.R.2d 92-361, 92-1 USTC P 50,009

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth J. MASAT, Defendant-Appellant.

No. 90-4846.

United States Court of Appeals,

Fifth Circuit.

Dec. 3, 1991.

Rehearing and Rehearing En Banc

Denied Jan. 10, 1992.

Kenneth Joseph Masat, pro se.

Robert E. Lindsay, Gail Brodfuehrer, Alan Hechtkopf, Karen Quesnel, Brett Dignam, Regina A. Hart, Dept. of Justice, Washington, D.C., Jeffrey J. Strand, Asst. U.S. Atty. and Bob Wortham, U.S. Atty., Tyler, Tex., for plaintiff-appellee.

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

Before KING, JOHNSON, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Pro se plaintiff Kenneth J. Masat ("Masat") appeals his conviction for tax evasion, alleging that he is entitled to a new trial due to improper voir dire procedure, discriminatory use of peremptory challenges, incorrect jury instructions, incorrect denial of a request for disclosure of alleged exculpatory materials, incorrect evidentiary rulings and quashing of subpoenas, and lack of subject matter jurisdiction and personal jurisdiction. Finding no error, we affirm.

I.

Masat was a pilot with Continental Airlines from 1979 through 1981. During these years, although he had a gross income that required him to file an income tax return, ¹ Masat failed to file his income tax returns.

Masat submitted numerous W-4 forms to Continental Airlines in order to limit the amount of income tax withheld from his wages. He maintains, however, that there was nothing false about those W-4 forms. Masat used various methods to conceal his income and assets: he claimed he was a minister and, thus, exempt from taxes; he also used false social security numbers and false names to conceal assets. Masat was tried and convicted by a jury for income tax evasion for the years 1979 through 1981. Masat now appeals ² and seeks a new trial.

II.

A.

Masat argues that the district court failed to use voir dire procedures that would reasonably disclose whether jury panel members were prejudiced as a result of being "the subject of any audit or other tax investigation" by the Internal Revenue Service. See 26 U.S.C.A. § 6103(h)(5) (West 1989 & Supp.1991).

This court reviews the district court's handling of procedures set forth in 26 U.S.C.A. § 6103(h)(5) to determine whether the procedure followed by the district court was prejudicial to Masat. See Masat I, 896 F.2d at 95. Even if this court finds error, this court evaluates that error to determine whether it is harmless. Id.

Section 6103(h)(5) of Title 26 of the United States Code provides that:

In connection with any judicial proceeding described in paragraph (4) to which the United States is a party, the Secretary shall respond to a written inquiry from an attorney of the Department of Justice ... involved in such proceeding or any person ... who is a party to such proceeding as to whether an individual who is a prospective juror in such proceeding has or has not been the subject of any audit or other tax investigation by the Internal Revenue Service. The Secretary shall limit such response to an affirmative or negative reply to such inquiry.

Prior to his second trial, Masat requested a list of prospective jurors so that he could make an inquiry pursuant to section 6103(h)(5). The district court ordered that Masat be provided with the list. Masat received the list and sent it to the Secretary of Treasury, and the Secretary of Treasury replied pursuant to section 6103(h)(5). However, prior to voir dire, defendant told the district court that the list only went back five years, despite the fact that section 6103(h)(5) contains no time limitation on the information to be provided by the Secretary of Treasury.

Masat argues that the information obtained from the Secretary of Treasury pursuant to section 6103(h)(5) was incomplete and that he was prejudiced by the district court's failure to strike the jury panel, or continue the jury selection until he obtained complete information. ³ The Government contends that Masat was not prejudiced, and that the district court allowed Masat ample opportunity to explore any alleged prejudices.

The Government's arguments are persuasive in light of this court's reasoning in Masat I, 896 F.2d at 95. In Masat I, Masat received the names of potential jurors in time to write to the Secretary of Treasury, but he did not receive complete information on all of the jurors in time for trial. Masat sought a continuance to get the additional information, but that motion was denied. However, on voir dire, the district court did ask the jurors if they had been the subject of an audit or controversy with the I.R.S. On appeal, this court stated that "[a]lthough the district court should have allowed Masat time to discover the juror information from the Secretary, any error was not prejudicial, for the jurors were asked the relevant questions by the trial judge." Id. Thus, this court found that any error in failing to grant Masat a continuance to obtain further information was harmless. Id.

In the present case, the district court asked the venirepersons questions regarding any potential prejudice they might have toward the Government or Masat as a result of the prospective jurors' prior interactions with the I.R.S. The district court also allotted the Government and Masat time to ask additional questions about any such association with the I.R.S. Masat has not shown how he was prejudiced by the venire process or by the inclusion of any specific venireperson onto the jury. As the district court asked the prospective jurors probing and specific questions regarding any past association with the I.R.S., this court finds that any error resulting from the Secretary of Treasury's limited list was harmless. Id.

B.

Masat asserts that the district court improperly denied his "Rejection of Jury" motion, which was based on the Government's alleged discriminatory use of peremptory challenges. Masat's argument is based primarily on Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69 (1986), in which the Court set forth a test to establish a prima facie case of discrimination because of the prosecutor's use of peremptory challenges at a defendant's trial. Defendant must show that: (i) he is a member of a cognizable racial group; (ii) the prosecutor has exercised peremptory challenges to remove people sharing the defendant's race from the venire; and (iii) these facts and other relevant circumstances raise an inference that the prosecutor used the practice to exclude persons from the venire on account of their race. Id. Once the defendant makes this prima facie showing, the burden shifts to the Government to come forward with a race-neutral explanation for excusing the jurors in question. Id. The trial court must then determine if the defendant has established purposeful discrimination. Id. ⁴ The Court also noted that a defendant's objection to the prosecutor's challenges must be timely. Id. at 99, 106 S.Ct. at 1725.

Both Masat and the Government agree that Masat did not object to the prosecutor's challenges until the first day of trial--long after the unselected venirepersons had been dismissed. ⁵ In fact, Masat did not object until several weeks after the jury was chosen, sworn in, and the unselected venirepersons released. The Government contends that Batson does not apply because Masat's motion in the district court was untimely. This court has stated that a Batson motion must be timely in order to be maintained. ⁶

Masat argues that he objected at such a late date because it was only then that he had enough time to examine the Government's challenges. Unfortunately, the district court was not in a position to entertain Masat's afterthoughts and therefore overruled his objections to the jury. The district court apparently made no findings regarding Masat's Batson challenge, and Masat apparently did not request that the district court make such Batson findings.

Because Masat offered no credible explanation for the last-minute nature of his motion, Batson does not provide him with a ground for reversal or remand. This court need not review the prosecutor's use of peremptory challenge where objections to those challenges are raised long after the unselected venirepersons have been sent home. See Thomas v. Moore, 866 F.2d 803, 804-05 (5th Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 124, 107 L.Ed.2d 85 (1989) (explaining importance of timely objection for Batson claim).

C.

Masat maintains that the district court failed to properly instruct the jury regarding: (i) his church defense; (ii) his defense of reliance on professionals; and (iii) the essential elements of willfulness.

Trial judges have substantial latitude in tailoring their instructions if they fairly and adequately cover the issues presented in the case. See United States v. Hunt, 794 F.2d 1095, 1097 (5th Cir.1986), later proceeding, 688 F.Supp. 265 (N.D.Tex.1987), later proceeding, 857 F.2d 1471 (5th Cir.1988), post-conviction proceeding, appeal dismissed, 940 F.2d 130 (5th Cir.1991) (citations omitted). A district court's refusal to deliver a requested instruction constitutes reversible error only if three conditions exist: (i) the requested instruction is substantively correct; (ii) the requested instruction is not substantially covered in the charge actually given to the jury; and (iii) the requested instruction concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present a given defense effectively. Id.; see also United States v. Molina-Uribe, 853 F.2d 1193, 1201 (5th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989) (citation omitted); United States v. Duvall, 846 F.2d 966, 971 (5th Cir.1988) (citations omitted). An abuse of discretion occurs only when the failure to give a...