U.S. v. Moore

• Decision Date: 08 October 1980
• Docket Number: No. 79-2041,79-2041
• Citation: 627 F.2d 830
• Parties: , 80-2 USTC P 9627 UNITED STATES of America, Plaintiff-Appellee, v. David N. MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 830

627 F.2d 830

60 A.L.R.Fed. 148, 80-2 USTC P 9627

UNITED STATES of America, Plaintiff-Appellee, v. David N. MOORE, Defendant-Appellant.

No. 79-2041.

United States Court of Appeals,

Seventh Circuit.

Argued June 11, 1980.

Decided Aug. 22, 1980.

Rehearing and Rehearing In Banc Denied Oct. 8, 1980.

Jeffrey B. Steinback, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Joseph H. Hartzler, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Circuit Judge, WOOD, Circuit Judge, and LARSON, Senior District Judge. ^*

LARSON, Senior District Judge.

Defendant David Moore was charged with failing to file income tax returns for the years 1972, 1973, and 1974, in violation of 26 U.S.C. § 7203. Defendant was tried in June 1979 and the jury found him guilty on all counts. Defendant was a businessman whose income in each of the years he failed to file was in excess of $30,000. He had filed valid tax returns for at least five years prior to 1972.

In April 1973 defendant and his wife submitted a joint return for the 1972 year to the I.R.S. This form contained only their names, occupations, social security numbers and number of dependents. Fifth Amendment objections were written across the form and a packet of tax protest literature was attached. The form was signed by the defendant and his wife, but the verification was scratched out. The I.R.S. notified defendant in August 1973 that the forms were not sufficient returns. In a rather contentious January 1974 letter, defendant replied to the I.R.S., stating that he considered dollars to be worthless and his tax return to be adequate.

In May 1974, however, defendant submitted an amended 1040 form for the 1972 year. This form was filed for himself only. On the amended form defendant filled in the various blanks calling for numerical information with "none," except that under interest income he put $41 and under dividend income he placed the figure $22. The Fifth Amendment objections were retained and more tax protest material was appended. Although signed, the certification on the form was again marked over.

In 1974 defendant also filed a return for the year 1973 which was substantially the same as his amended form for 1972. It contained a small amount in interest income and the certification was scratched out. The I.R.S. notified defendant by letter in July 1974 that it did not consider this to be a return. In 1975 defendant filed a similar return for the 1974 year. The I.R.S. again informed him that it did not consider this to be a return.

On appeal defendant raises a number of supposed errors made by the district court. Defendant claims that the district court allowed the introduction of irrelevant and prejudicial evidence. The district court judge allegedly participated excessively in the trial, particularly in questioning the defendant while he was testifying. Defendant contends that the instructions did not adequately inform the jury of his good faith defense. Finally, defendant contends that the district court usurped the jury's function in deciding the issue of whether or not a return had been filed. Defendant claims that the documents he filed with the I.R.S. are returns.

It is acceptable for a judge to question a witness as long as he is careful not to do so in a way which would communicate a belief in the defendant's guilt to the jury. United States v. Baron, 602 F.2d 1248, 1249 (7th Cir.), cert. denied, 444 U.S. 967, 100 S.Ct. 456, 62 L.Ed.2d 380 (1979). Defendant was the subject of some interrogation by the district court. The questioning was not hostile, nor was it of a type which would impair the defendant's right to a fair trial.

Defendant claims that the district court committed several evidentiary errors. Testimony accepted from an I.R.S. agent was allegedly improper. No objection was made to this evidence at trial, and it was clearly permissible in any event. Some mention was made of a trust fund which defendant had established and which the government thought may have been a tax avoidance device. Any problem here was eliminated by a stipulation that the trust fund was not intended to be used to avoid taxes. Some of defendant's returns prior to 1972-74 were introduced as evidence. It is acceptable to use earlier returns to show willfulness. See United States v. Stout, 601 F.2d 325, 329 (7th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979), and cases cited therein. Finally, defendant contends that evidence that he purchased an expensive house and a Mercedes car during the period 1972-74 was irrelevant and highly prejudicial. Defendant said that he believed Federal Reserve Notes were worthless and therefore he did not have any real income. The use of these notes in making various purchases tends to undercut the good faith or reasonableness of a belief that dollars are worthless, and is therefore plainly relevant.

Defendant next argues that he was not given the opportunity to adequately present his theories of defense, largely because of the failure of the district court to give requested instructions. In particular, he claims that he could not present to the jury his defense of good faith. A defendant is entitled to have the jury instructed on a theory of defense which has some foundation in the evidence and which is supported by the law. United States v. Cullen, 454 F.2d 386, 390 (7th Cir. 1971); United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969).

Willfulness is an element of the 26 U.S.C. § 7203 crime. Willfully in the tax crime statutes means a voluntary, intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976); United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973); United States v. McCorkle, 511 F.2d 482, 484 (7th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975). The Supreme Court has specifically ruled that no additional good faith defense instruction need be given. United States v. Pomponio, 429 U.S. at 13, 97 S.Ct. at 24. See United States v. Sawyer, 607 F.2d 1190, 1192 (7th Cir. 1979), cert. denied, 445 U.S. 943, 100 S.Ct. 1338, 63 L.Ed.2d 776 (1980). The district court here several times gave the correct definition of willfully to the jury. ¹ It did not need to do more.

The district court apparently concluded that the true nature of defendant's defense was that he had made a mistake of law, because he believed that he had filed an adequate "return." The mistake of law defense is extremely limited and the mistake must be objectively reasonable. United States v. Barker, 546 F.2d 940, 948 (D.C.Cir.1976). See United States v. Moore, 586 F.2d 1029, 1033 (4th Cir. 1978); Kratz v. Kratz, 477 F.Supp. 463, 480 (E.D.Pa.1979). The district court correctly instructed the jury on this defense. After telling the jury that as a matter of law what defendant filed were not returns, the court continued:

"The question is, did he reasonably believe that they were. . . . it is Mr. Moore's theory that during the time which he was required to file these returns . . . he did timely (file) what he then reasonably believed to be a proper income tax return . . . and he did not, therefore, willfully fail to file a proper return."

It may not even have been necessary for the district court to give this instruction. The I.R.S. rejected defendant's returns because they did not contain adequate information to allow calculation of a tax liability. Defendant believed his returns were sufficient not because they provided the necessary information, but because he believed he had no legal income to report. This belief was based on the alleged unconstitutionality of the income tax and of Federal Reserve Notes. If defendant had studied United States v. Daly, 481 F.2d 28 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973), and United States v. Porth, 426 F.2d 519 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), as carefully as he claims, he would have noticed that the courts have consistently rejected these views as totally frivolous. It would appear impossible for a taxpayer to reasonably believe that Federal Reserve Notes are worthless and therefore that income received in that form does not have to be reported.

Finally, defendant contends that what he filed was a return and that the district court erred in taking this issue from the jury. The determination of what is an adequate return is a legal question and it was proper for the district court to decide that question.

Defendant asserts that he filed an acceptable return because he did provide some figures, although incomplete and inaccurate, from which a tax could be computed. He argues that his return is therefore unlike those which contain blanket objections and no income figures at all. This is a difficult problem and one which we fortunately do not have to decide. The forms defendant supplied to the I.R.S. were not returns for another reason: they were not verified.

26 U.S.C. § 6001 states that "every person liable for any tax imposed by this title . . . shall . . . make such returns, and comply with such rules and regulations as the Secretary (of the Treasury) may from time to time prescribe." Section 6011(a) requires taxpayers to make returns "according to the forms and regulations prescribed by the Secretary." Section 6061 provides that returns "shall be signed in accordance with forms or regulations prescribed by the Secretary." Section 6065 (section 6065(a) at the time defendant filed his returns) states that "any return . . . required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury." In 26 C.F.R. § 1.6065-1(a) the Secretary of the Treasury has by regulation also required income taxpayers to verify their returns. Defendant...