U.S. v. Pinner, 77-5174

• Decision Date: 27 October 1977
• Docket Number: No. 77-5174,77-5174
• Citation: 561 F.2d 1203
• Parties: 77-2 USTC P 9706 UNITED STATES of America, Plaintiff-Appellee, v. William Thomas PINNER, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1203

561 F.2d 1203

77-2 USTC P 9706

UNITED STATES of America, Plaintiff-Appellee, v. William Thomas PINNER, Defendant-Appellant.

No. 77-5174

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Oct. 27, 1977.

Joseph G. Young, John F. Roscow, III, Gainesville, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Lee S. Carlin, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GOLDBERG, RONEY and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant, William Thomas Pinner, appeals his conviction in a non-jury trial on six counts of willfully failing to file employer's quarterly federal tax returns in violation of 26 U.S.C. § 7203. ¹ The trial was tried on stipulations which allowed the Government to introduce two exhibits, (description below). The Government then rested its case without introducing any testimony. Counsel for appellant then made a Motion for Judgment of Acquittal pursuant to Rule 29(a), F.R.Crim.P., and for Special Findings of Fact under Rule 23(c), F.R.Crim.P. The motions were denied. Defense then rested without introducing any testimony or evidence and renewed the Motion for Judgment of Acquittal. After argument, Pinner was found guilty on each of the six counts with which he was charged. Defense counsel again asked the Court for Special Findings of Fact and the Court granted this request by entering the document set out in the margin. ²

Appellant raises three assignments of error, all of which we find to have some merit, and on this basis we remand to the trial court for findings consistent with this opinion.

FACTS

Appellant opened Bill Pinner Footwear in March, 1968, as a sole proprietorship which operated at a loss until approximately two years ago. During the last two quarters of 1973 and all four quarters of 1974, appellant failed to timely file the Employer's Quarterly Federal Tax Return, Internal Revenue Form 941.

At trial, the only evidence consisted of two exhibits submitted by the Government. Exhibit 1 contained summaries of interviews by Internal Revenue representatives with appellant.

The first interviews, in March, 1974, were with Kathy Howell, Taxpayer Service Representative for the Internal Revenue Service. At that time Pinner acknowledged he had not filed the required returns. ³

In March, 1975, IRS Revenue Officer Lynn D. Mathis interviewed appellant concerning all six quarters. ⁴ Two months later the investigation intensified and Special Agent Larry E. Wine, Department of the Treasury and Revenue Officer Mathis contacted appellant concerning the forms not filed. Exhibit 1 contains a summary of this interview set forth by Agent Wine. ⁵

Several days later, on May 9, 1975, Agent Wine again contacted appellant to return records provided by appellant. At that time appellant stated, "I could have filed, but I didn't" for which a specific question had not been asked to elicit that response. Agent Wine asked Pinner if he was aware that he could have filed the returns without including payment to which Pinner responded, "At the time I was not aware I could file without paying." The last comment set forth by Agent Wine in his interview summary was made after Wine explained that he could have filed without including payment. Pinner's response was, "I didn't understand."

ISSUES

Appellant argues that the Court's entry of the document captioned Findings of Fact and Conclusions of Law was an inadequate response to his request for special findings of fact. Rule 23(c), F.R.Crim.P. We agree.

A defendant's request for special findings must be granted. Although these findings may be written or gleaned from comments from the bench, they must afford a basis for intelligent appellate review. United States v. Johnson, 496 F.2d 1131, 1138 (5th Cir. 1974).

In this case, the trial judge did not make either a specific written finding or a comment from the bench clearly announcing his findings as to appellant's credibility during his interviews with the IRS. This finding is especially important because appellant's belief that he did not have to file if he was not able to pay the tax owed is a recognized legal defense against the element of "willfulness". ⁶ United States v. Haller, 543 F.2d 62 (9th Cir. 1976); United States v. Rosenfield, 469 F.2d 598 (3rd Cir. 1972). We therefore remand to the trial judge for a specific finding with respect of Pinner's credibility.

During argument for Pinner's Motion for Judgment of Acquittal, the trial judge made several statements ⁷ which make it difficult to decide whether he was applying the correct rule of law in evaluating the circumstantial evidence presented by the Government to prove the element of "willfulness".

There has been some confusion and a metamorphosis in the law on circumstantial evidence.

In 1954, the Supreme Court held that it was not necessary for the trial judge to instruct the jury " . . . that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt." Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166 (1954). " . . . (T)he better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect . . . ." (citations omitted) Holland, 348 U.S. at 139-140, 75 S.Ct. at 137.

Since Holland this Court has formulated a standard to be used by trial courts in determining whether a case should be submitted to a jury or whether in a case tried to a judge a motion for judgment of acquittal should be granted. That standard is:

" . . . if the trial or appellate court is satisfied that the jury could not reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt then the trial court, or on appeal, this Court must hold that 'the jury must necessarily have had a reasonable doubt as to the inconsistency.' " (citation omitted)

United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977). Thus in responding to a defendant's motion for judgment of acquittal the trial judge must ask:

"On this evidence do I find that a reasonably minded jury must necessarily entertain a reasonable doubt?"

Haggins, 545 F.2d at 1013.

If the trial court answers in the negative then the motion should be denied. Then as fact finder and using the correct legal principles the judge must determine whether or not he was convinced the Government had established each element beyond all reasonable doubt.

On the basis of the foregoing we remand this case back to the trial judge for specific findings, particularly as to "why" Pinner did not file, ⁸ and application of the proper legal principles.

The denial of the motion for judgment of acquittal, the adjudication of guilt, the findings of fact and conclusions of law, and the judgment and commitment are all vacated and the matter remanded for additional proceedings consistent herewith. If further appellate proceedings are necessary, the parties may file a supplemental record with supplemental briefs as this court retains jurisdiction for such later review.

* Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 "Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution." 26 U.S.C. § 7203.

2 Document entered by Trial Court pursuant to Motion for Special Finding of Fact:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On this the 8th day of March, 1977, came on for trial the above styled and numbered cause and the Court, pursuant to the request of counsel made under Rule 23(c) of the Federal Rules of Criminal Procedure, hereby enters its Findings of Fact and Conclusions of Law.

1. During the periods covered by each of the six Counts of the Information defendant was required to make a return of Federal Income Taxes withheld from wages and Federal Insurance Act taxes pursuant to 26 U.S.C., Section 6001 et seq.

2. The defendant for each of the six periods in question failed to make a timely tax return.

3. The defendant's failure to make a timely Income Tax Return for each of the taxable periods in question was a knowing and wilful failure.

4. Pursuant to the above, the defendant should be found guilty of each of the six counts contained in the Information and Judgment should be entered accordingly.

ENTERED this 8th day of March, 1977 at Jacksonville, Florida.

s/John H. Wood, Jr.

s/ JOHN H. WOOD, JR.

s/ UNITED STATES

s/ DISTRICT JUDGE

s/ BY DESIGNATION

3 "Again while I do not recall the specific conversations with Mr. Pinner I can state from the absence of any notations that Mr. Pinner did not present any questions concerning his requirement to file or pay. Should he have presented any questions I would have answered them or referred him to the Gainesville office and made a notation to that effect on the TDI. Should there have been any questions concerning his ability to pay the taxes I would also have made a notation on the TDI and informed him that even if he couldn't pay to go ahead and file the returns and he could go over payment with the Revenue Officer once a TDA had been issued. I do not recall any explanations or comments that may have been made by Mr. Pinner as to why he had not filed...