U.S. v. Verkuilen

• Decision Date: 27 October 1982
• Docket Number: No. 80-2082,80-2082
• Citation: 690 F.2d 648
• Parties: 82-2 USTC P 9618, 11 Fed. R. Evid. Serv. 1417 UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. VERKUILEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 648

690 F.2d 648

82-2 USTC P 9618, 11 Fed. R. Evid. Serv. 1417

UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. VERKUILEN, Defendant-Appellant.

No. 80-2082.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 1982.

Decided Oct. 6, 1982.

As Modified Oct. 27, 1982.

Shelly Waxman & Associates, Robert K. Mayer, Chicago, Ill., for defendant-appellant.

Robert W. Tarun, U.S. Atty., Sheila A. Markin, Asst. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, WOOD and CUDAHY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The defendant was found guilty in a jury trial of two counts of failing to file individual federal income tax returns. Appellant raises a variety of issues all of which we find to be without merit.

I.

Verkuilen was employed between 1975 and 1979, earning sufficient income to file tax returns for 1976 and 1977. In 1975, Verkuilen filed an individual (1040) income tax form with the words "Object: Self-incrimination" or "None" typed on most of the lines where income information was requested. There was no other information on the form which indicated his tax liability.

On May 8, 1976, Verkuilen was notified by the IRS that his 1975 tax form was not a proper tax return and that his failure to file an acceptable tax form could result in criminal prosecution pursuant to 26 U.S.C. § 7203. ¹ Verkuilen submitted similar 1040 forms to the IRS from 1976 through and including 1979. On the lines of the tax return calling for income information, he simply typed either "Object: Self-incrimination" or "None." Again, there was insufficient information on these forms from which to compute Verkuilen's tax liability.

Verkuilen correctly completed a W-4 income tax withholding form in 1974, validly claiming two allowances. In 1976, however, he filed a W-4(e) exemption form alleging that he was totally exempt from all federal taxes. Later in 1976, he submitted a W-4 withholding form on which he claimed ten allowances. No charges were based on these filings, but they were admitted into evidence.

II. Jury Instructions

Appellant's first contention relates to jury instructions B and C. Verkuilen argues that these instructions shifted the burden of proof in violation of due process, relieving the government of its burden of proving every fact necessary to constitute the offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Appellant also contends that the jury instructions removed the presumption of innocence to which all criminal defendants are entitled.

First, it is necessary to determine whether defense counsel properly objected to the court's instructions. Second, if the objection to the instructions was waived, we must determine whether the jury instructions amounted to plain error. ²

Defense counsel did not adequately object to the court's instructions B and C. During the conference on jury instructions, pursuant to Fed.R.Crim.P. 30, the following colloquy took place between the court and defense counsel:

The Court: (N)ow, I have, which I am going to pass to you, Court's Instruction (sic) B and C.

(Defense attorney): Your Honor, I-we strenuously object to this.

Your Honor, with regard to the Fifth Amendment, I have an alternate instruction.

The Court: I don't find any problem with your instruction ... this is his defense. I will give it along with (court's instructions B and C).

(Defense attorney): Right.

Counsel's objection to a jury instruction must state "distinctly the matter to which he objects and the grounds of his objection." Fed.R.Crim.P. 30; United States v. Jackson, 569 F.2d 1003, 1009 (7th Cir. 1978); United States v. Clavey, 565 F.2d 111, 118 (7th Cir. 1977). Counsel had a duty to make the district court aware of any alleged error in jury instructions so that the court may take appropriate action. See Fed.R.Crim.P. 51; Jackson, 569 F.2d at 1009. Counsel's objection at the Rule 30 conference hardly put the court on notice that defense counsel believed the instructions shifted the burden of proof. Although counsel apparently ³ offered a general objection to court's instructions B and C, a global objection to jury instructions is insufficient to satisfy the mandate of Fed.R.Crim.P. 30 that counsel's objection be specific and distinct. Jackson, 569 F.2d at 1009; Clavey, 565 F.2d at 118. In addition, counsel apparently acquiesced in the court's instructions when the court agreed to read defendant's instruction to the jury.

In deciding whether instructions B and C constituted plain error under Fed.R.Crim.P. 52(b), we must consider the entire trial record, Jackson, 569 F.2d at 1010; United States v. Johnson, 515 F.2d 730, 736 (7th Cir. 1975), and discern whether the alleged error in the district court's charge had "a probable impact on the jury's finding that the defendant was guilty." Jackson, 569 F.2d at 1010; Johnson, 515 F.2d at 736. Moreover, in determining whether there was plain error, we examine whether the instructions removed the presumption of innocence.

First, examining all of the jury instructions together "as a connected series, without undue emphasis given to any of them," United States v. Hamilton, 420 F.2d 1096, 1098 (7th Cir. 1970); Federal Criminal Jury Instructions, Committee on Federal Criminal Jury Instructions of the Seventh Circuit, § 1.01 (1980), the court's instructions B and C did not impermissibly shift the burden of proof to the defendant. At the outset of the trial proceedings, the jury was advised that the burden of proof was on the government. ⁴ Moreover, the record reveals that defense counsel repeatedly stated during his closing argument that the government had the burden of proving the defendant guilty beyond a reasonable doubt. Statements of the law in final argument have been considered in ascertaining whether there has been plain error, see, e.g., Jackson, 569 F.2d at 1010; United States v. Napue, 401 F.2d 107, 110 (7th Cir. 1968), cert. denied, 393 U.S. 1024, 89 S.Ct. 634, 21 L.Ed.2d 568 (1969), although such statements do not supplant jury instructions. Jackson, 569 F.2d at 1010.

Second, the court's instructions properly stated the law regarding the assertion of the Fifth Amendment privilege against self-incrimination on an income tax return. Court's instruction B provides:

A taxpayer's return which does not contain any information relating to the taxpayer's income from which the tax can be computed is not a return within the meaning of the Internal Revenue Code or the regulations adopted by the Commission.

The knowing and willful filing of such a document is a violation of the law unless the defendant can establish that his failure to supply the required information was legally justified and the burden of establishing such a justification is on the defendant and until the defendant makes such a showing, the government is not required to prove that the defendant's failure to file was unjustified.

Political or social protest does not constitute a valid legal justification for failure to file a tax return containing sufficient information as required by law from which the tax can be computed.

A tax form which does not disclose sufficient information from which tax liability can be calculated is not a tax return under the Internal Revenue Code. United States v. Moore, 627 F.2d 830, 834 (7th Cir. 1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981); United States v. Stout, 601 F.2d 325, 328 (7th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979); United States v. Jordan, 508 F.2d 750, 751-52 (7th Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1975). Moreover, a taxpayer must make a colorable showing that he is involved in some activity for which he could be criminally prosecuted in order to validly claim the Fifth Amendment privilege on his income tax return. United States v. Karsky, 610 F.2d 548, 550 n.5 (8th Cir. 1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1058, 62 L.Ed.2d 781 (1980); United States v. Daly, 481 F.2d 28, 30 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). ⁵

Court instruction C states:

An individual who refuses to disclose the amount of his income derived from a legitimate source on the grounds that such disclosure would violate his Fifth Amendment privilege against self-incrimination has improperly invoked and asserted the Fifth Amendment privilege, unless he can show some possibility that such a disclosure may lead to a criminal prosecution.

The mere unsupported assertion of a Fifth Amendment privilege, without some additional explanation, does not establish that the invocation of the Fifth Amendment was proper.

An improper invocation of the Fifth Amendment is not an adequate justification for failure to file a tax return.

Instruction C, like court instruction B, accurately states the law by requiring the defendant to come forward with something more than a bald assertion of the privilege in order to validly invoke the Fifth Amendment on his tax return. Karsky, 610 F.2d at 548, 550 n.5; Daly, 481 F.2d at 30. See also United States v. Neff, 615 F.2d 1235, 1240 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980); United States v. Carlson, 617 F.2d 518, 523 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980).

The district court's instructions B and C properly indicated that the defendant had to establish the affirmative defense of the Fifth Amendment privilege. Verkuilen's blanket assertion of the privilege on his income tax return was an ineffective invocation of the privilege. See, e.g., Stout, 601 F.2d at 328; Jordan, 508 F.2d at 752. Verkuilen needed to show that his invocation of the privilege was based upon a colorable claim that he was involved in activities for which he could be criminally prosecuted and that such activities would be revealed if he supplied data on his 1040...