U.S. v. Poll
| Decision Date | 25 June 1976 |
| Docket Number | No. 76-1009,76-1009 |
| Citation | 538 F.2d 845 |
| Parties | 76-2 USTC P 9549 UNITED STATES of America, Plaintiff-Appellee, v. Stanford Robert POLL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before WRIGHT and CHOY, Circuit Judges, and WHELAN, * District Judge.
In 1973 appellant Stanford Poll, president of P. B. Industries, Inc., directed the corporate bookkeeper to prepare a false tax return, understating the amount withheld from employees' wages during the first quarter of 1973. Poll signed the return knowing it was false.
In March, 1974, Poll was indicted for the willful failure to truthfully account for and pay over taxes withheld from employees' wages during the first quarter of 1973, in violation of 26 U.S.C. § 7202. A second count charged a similar offense as to the second quarter of 1973. Poll was tried and convicted as charged. On appeal, this court reversed the judgment and remanded the case because the district court refused to admit relevant evidence concerning the willfulness of his failure to pay over. United States v. Poll, 521 F.2d 329 (9th Cir. 1975).
The Government elected not to pursue the § 7202 charge on remand, but instead promptly secured a new indictment charging willful signing of a false tax return under penalties of perjury, in violation of 26 U.S.C. § 7206(1). The new indictment contained only one count, pertaining to the first-quarter return, because the second-quarter return was submitted unsigned. Poll was again found guilty as charged, and sentenced to four months imprisonment and a $2,500 fine.
On appeal from the second conviction, Poll raises three objections: (1) his conviction under § 7206(1) is in violation of the constitutional protection against double jeopardy; (2) the Government denied the appellant a speedy trial; and (3) the evidence was insufficient to support the conviction. We affirm.
Poll acknowledges that the Government was entitled to retry him under § 7202 after his previous conviction was reversed. He contends, however, that the subsequent prosecution under § 7206(1), an offense not joined in the first indictment, violated the double jeopardy clause of the fifth amendment. He argues that since the violations of § 7202 and § 7206(1) arose from the same criminal transaction, that of filing a false tax return, they are the "same offense" for double jeopardy purposes.
We find that Poll's right against being subjected to double jeopardy has not been violated. United States v. Ewell, 383 U.S. 116, 124-25, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), is dispositive on this issue. The Court in Ewell makes it clear that when the first conviction has been reversed and the matter remanded, the slate has been wiped clean and the Government is free to prosecute the defendant on a different statutory violation regardless if it is considered the same or a separate offense. 1
Poll further argues that the Government used the first trial as a "dry run", a tactic expressly forbidden by the Court in Ashe v. Swenson, 397 U.S. 436, 447, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Poll claims that the Government used the decision on the first appeal to obtain a tactical advantage in the second trial, by deciding to prosecute the defendant under a different statute carrying a lower burden of proof. Ashe is clearly distinguishable from the instant case, however, because in Ashe the defendant was acquitted in the first trial. In Ewell, the Supreme Court approved of the Government modifying its prosecution in this fashion, and the holding was not disturbed by its decision in Ashe.
Poll also argues that by approving the second trial we may be permitting the Government to circumvent the prohibition in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), against retaliatory sentencing. Pearce prohibits a trial court from increasing the sentence upon retrial without explaining the change in circumstances which warrants the increase. Poll, however, is not claiming that he has received a harsher sentence upon retrial, and therefore, has no ground for complaint.
Whether a delay in prosecution amounts to an unconstitutional deprivation of sixth amendment rights depends upon the circumstances. Ewell,383 U.S. at 120, 86 S.Ct. 773. In this case, Poll's trial after the new indictment on October 7,...
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