U.S. v. Perez, 1401

• Decision Date: 11 November 1977
• Docket Number: D,No. 1401,1401
• Citation: U.S. v. Perez, 565 F.2d 1227 (2nd Cir. 1977)
• Parties: 78-1 USTC P 9297 UNITED STATES of America, Plaintiff-Appellee, v. Daniel PEREZ, Defendant-Appellant. ocket 77-1076.
• Court: U.S. Court of Appeals — Second Circuit

Page 1227

565 F.2d 1227

78-1 USTC P 9297

UNITED STATES of America, Plaintiff-Appellee, v. Daniel PEREZ, Defendant-Appellant.

No. 1401, Docket 77-1076.

United States Court of Appeals Second Circuit.

Argued July 20, 1977.

Decided Nov. 11, 1977.

Helena Pichel Solleder, New York City, for defendant-appellant.

Jeffrey S. Blum, Washington, D. C. (Myron C. Baum, Acting Asst. Atty. Gen., Washington, D. C.), Gilbert E. Andrews, and Robert E. Lindsay, Tax Div. Dept. of Justice, Washington, D. C. (David G. Trager, U. S. Atty., and Allan K. Sleppin, Sp. Atty., Brooklyn, N. Y., of counsel) for plaintiff-appellee.

Before MESKILL, Circuit Judge, and NEAHER and COFFRIN, District Judges. ^*

COFFRIN, District Judge:

This is an appeal from a conviction entered after a jury trial in the United States District Court for the Eastern District of New York, Bramwell, J., for two counts of violating 26 U.S.C. § 7206(2) by unlawfully and willfully causing the preparation and presentation of a United States Information Return (Internal Revenue Service ("IRS") Form 1099) which was false and fraudulent as to material matters. ¹ Appellant raises three issues on appeal. The first is whether his retrial on two counts on which the jury had been unable to reach a verdict in a prior trial violated his right to be free from double jeopardy. The second is whether there was sufficient evidence produced at the second trial to establish appellant's guilt beyond a reasonable doubt. Finally, Perez raises various miscellaneous claims of error upon which we must determine whether the convictions should be reversed. We hold that Perez was not placed twice in jeopardy and that there was sufficient evidence for his conviction. We see no merit in his miscellaneous claims. Accordingly, we affirm.

On May 19, 1976, Perez was indicted on three counts of violating 26 U.S.C. § 7206(2). The indictment arose out of an investigation conducted by the IRS at the Aqueduct Racetrack in New York. During the course of that investigation, between November 1975 and February 1976, IRS Special Agent Gerald Levy observed that Perez was at the racetrack daily, and that he would often be in the vicinity of a widow where bettors could cash winning tickets on triple bets, ² sometimes approaching and speaking to people who were cashing their winning tickets at the window. ³

At appellant's first trial, Agent Levy testified that on November 24, 1975, he had observed Perez cashing a winning ticket paying more than $600 and completing the form (Form 317) necessary to cash the winning ticket. Levy examined and initialed the form, which contained the name, address and purported signature of Miguel Valles, 865 Crotona Park, New York, New York. This form was the subject of Count I of the three count indictment tried at that trial.

On January 21, 1976, Levy observed Perez filling out a form at the over $600 previous day window, and, after turning in the form, receiving several hundred dollars from the cashier. After Perez left the window, Levy directed another agent to initial the form. The form contained the name Carlos Diaz, and the address 148 West 17th St., Apt. 5, New York, New York. It also included a signature purported to be that of Carlos Diaz and the social security number 129-48-1254 which was supposed to be that of the person named on the form. This form was the basis of Count II of the indictment.

On January 27, 1976, this same sequence occurred, except that in this case agent Levy himself initialed the form. That form contained the same information as the one filled out on January 21, and was the subject of Count III.

Perez was originally tried on July 21, 1976, on all three counts of the indictment. The jury acquitted him on Count I the count arising out of the form signed in the name of Miguel Valles but was unable to reach a verdict on Counts II and III. Because of their inability to agree on a verdict for those two counts, the trial judge declared a mistrial after two days of deliberation. By that time the jury had sent Judge Bramwell a total of twelve notes containing nine inquiries and three statements that they were deadlocked.

The jury's first note to the court was delivered at 5:35 p.m. on July 26, 1976, three hours after it began its deliberations. The note read:

What is the procedure when the jury cannot come to a unanimous decision?

While counsel and the court were discussing this note and defense counsel's request that the jury be discharged, a second note arrived from the jurors:

Re: Number 1 and 2. Conceding that all the information on the 1099 is accurate and correct and that all the information on the NYRA Incorporated form number 317 is in fact accurate and correct, other than the signature which is conceded to be a forgery authorized by the person whose name is used, to wit: Don Carlos Diaz, can he be guilty of the last two counts?

To this inquiry the court responded that the question was too long to permit an appropriate answer and that the jury should go back and rephrase it. Defense counsel objected to this procedure, contending that the question was clear and called for a simple "no" answer.

The jury did comply about fifteen minutes later, asking the court:

If all the information on the 1099 form is accurate, can Daniel Perez still be guilty by virtue of the forged signature on the NYRA 317?

Defense counsel again suggested that the court answer in the negative, and informed the court that any verdict which came in as a result of further delay would be a coerced verdict. The court disagreed, telling the jury:

Now there is confusion as to the word "accurate." Does that word "accurate" mean duplication or does it mean truthful? In other words, the jury will have to go back and consider, they may send the Court another note as to whether "accurate" as used meant a duplication or it meant truthful. That's what the Court would like to know. Thank you.

The jury exited the courtroom at 6:10, but returned at 6:13 with a note which asked

(i)f all the information on the 1099 is truthful, can Daniel Perez still be guilty by virtue of the forged signature and the NYRA 317.

The court then instructed the jury that

it would be a question of fact for the jury to decide, in light of the testimony and the evidence which is before the Court, as to whether or not Daniel Perez can be so found guilty. It is a question of fact for the jury. The jury will return for deliberation.

At 7:30 p.m. the jury sent the court a note which said simply:

We are at a deadlock. What now?

At that point the jury was excused for the night and instructed to return the following morning.

The next morning, over defense counsel's objection, the court again gave the jury general instructions on the law of the case. Then, in its seventh note, the jury asked if it could hear the minutes regarding the search for Diaz and queried:

If no information in the 1099 in counts two and number three is incorrect can these 1099's be false and fraudulent?

The court answered "no." The jury also asked whether the thoroughness of the search for Carlos Diaz was a fact in dispute and, if so, how much weight it should be given. The court's response to their inquiry was that this was a question of fact for them to consider.

At 3:30 p.m. on July 27, the jury sent the following note:

We would like a review of our messages to the Court and the Judge's comments on the same.

Judge Bramwell replied that he had answered only the seventh question and that his answer had been "no." At the jury's request, Judge Bramwell also reread that portion of the charge dealing with the elements of the offense.

At 4:56 p.m. the court was notified that the jury was hopelessly deadlocked on Counts II and III, but that Perez was not guilty on Count I. After delivering an Allen -type charge at defense counsel's request, the judge received the jury's final note indicating that it was deadlocked. At this point Judge Bramwell discharged the jury and declared a mistrial.

Following the first trial, Perez moved to dismiss the indictment on the grounds that he was "brought to trial once on these charges, and acquitted of the First Count which is the same crime as is charged in the remaining two counts." This motion was denied.

Appellant also petitioned this court for a writ of mandamus to prevent a retrial on Counts II and III. The writ was denied, and Perez was retried and convicted on Counts II and III. The principal difference between the two trials was the testimony of an 18-year old student named Carlos Diaz. Diaz did not testify in the original trial, but at Perez' second trial he testified that he had lost his social security card (numbered 129-48-1254); that he had never been to a racetrack or placed a bet at the offtrack betting corporation and had never asked anyone else to place a bet for him; that he had never lived at nor did he have any relatives living at the address given by Perez on the identification forms; that he did not know and had never before seen Perez; and that he had never authorized anyone to fill out in his name the identification forms filled out by appellant.

Perez himself testified that he had never won over $600 on a $2 bet and that the most he had ever won on a single bet was $500. He further testified that he realized that winners of over $600 on a $2 bet were required to fill out the identification form before they could collect their winnings. He denied ever having cashed a winning ticket for Carlos Diaz, and, in response to a question posed by the judge, he denied having signed either identification form.

I

Appellant's double jeopardy claim rests on his assertion that the jury in the original trial had actually made the factual finding that he was not guilty of any violation of 26 U.S.C. § 7206(2), but that the trial court failed to properly answer the jury's inquiries and, by the responses it made, confused the jury into its ultimate inability to reach a unanimous verdict on Counts...