United States v. Bursten, 30224

• Decision Date: 09 March 1972
• Docket Number: No. 30224,71-2139.,30224
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard L. BURSTEN, Defendant-Appellant (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

453 F.2d 605 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Leonard L. BURSTEN, Defendant-Appellant (two cases).

Nos. 30224, 71-2139.

United States Court of Appeals, Fifth Circuit.

December 28, 1971.

Rehearing and Rehearing Denied March 9, 1972.

Virgil M. Wheeler, Jr., New Orleans, La., Jesse G. Silverman, Jr., New York City, Andrew C. Hall, Hugh W. Gibert, Atlanta, Ga., David W. Walters, Miami, Fla., Sehrt, Boyle, Wheeler & Butler, New Orleans, La., and Roberts & Holland, New York City, for defendant-appellant.

Robert W. Rust, U.S. Atty., Miami, Fla., Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks, Atty., Joseph M. Howard, Acting Atty., John M. Brant, Atty. Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and PHILLIPS^* and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 9, 1972.

INGRAHAM, Circuit Judge:

The direct appeal from appellant Bursten's conviction for violation of 26 U.S.C. § 7201 is the subject of appeal No. 30224. Appeal No. 71-2139 is an appeal from the denial of appellant's motion for a new trial. These appeals have been consolidated at the request of the parties.

The conviction at issue followed this court's reversal of appellant's prior conviction on the same indictment. Since the underlying facts adduced in both trials are the same, we need only briefly state the facts relevant to this appeal, and we refer the reader for a fuller exposition of the underlying facts to this court's prior opinion in Bursten v. United States, 395 F.2d 976 (5th Cir., 1969).

The focus of our attention is a 1957 tax return filed by Bursten in 1960. Appellant's entries on that return indicated that no tax liability had accrued for the taxable year 1957, nevertheless on the line reserved for entry of tax due the Government, appellant entered the phrase: "Please compute and bill if owed." After an extensive audit of this return, the Government disallowed certain claimed capital losses, and in 1965 obtained the subject indictment.¹

As noted, this appeal is from appellant's second trial on the indictment. This time the trial was unmarred by the procedural infirmities which had marked his first trip to the bar as a criminal defendant.² He here, however, asserts five grounds for reversal: (1) that the Government's failure to prove that appellant's tax return contained the language attributed to it by the grand jury precludes his conviction; (2) that the prosecutor's argument was so improper as to require reversal; (3) that appellant was entitled to have the jury instructed that it draw no inference from the defense resting without adducing evidence, and that it not infer that a lawyer defendant has any greater knowledge of the tax laws than any other citizen; (4) that the Government's evidence was adduced in violation of the parol evidence rule; and (5) that the prosecutor's argument about Bursten's criminal intent was in contradiction to the evidence. In No. 71-2139 appellant asserts that the trial court erred in denying his motion for a new trial based on newly discovered evidence. After review, we have determined that Bursten's conviction must be affirmed. Our following discussion is limited to those arguments advanced of plausible merit.

I.

Appellant's first point of appeal was stated to be "whether the conviction was precluded by the Government's failure to prove that Appellant stated in his 1957 Income Tax Return that `no tax was due and owing.'" This issue raises the problems of a variance between an indictment which a grand jury has returned and proof adduced at trial. Here, the grand jury's indictment alleged that Bursten had stated on his 1957 tax return that no tax was due and owing. At trial, however, the evidence adduced irrefutably demonstrated that the subject return did not use the quoted language. Instead, on the line reserved on Form 1040 for computation of tax liability, it showed that appellant had entered the language: "Please compute and bill if owed." Bursten here asserts that this difference between allegation and evidence was an "effective" amendment of a grand jury indictment and requires reversal.³

The cases considering this problem have drawn a distinction between the "effective" amendment of the grand jury indictment which requires reversal,⁴ and less material variances which do not destroy a defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury, and thus, such a lesser variance may be harmless.⁵

The distinction has been articulated by the District of Columbia Circuit in Gaither, supra, where the court stated:

"The courts have recognized two kinds of erroneous departure from the original indictment of a grand jury, each with its own standards governing prejudice. An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.

"An amendment is thought to be bad because it deprives the defendant of his right to be tried upon the charge in the indictment as found by the grand jury and hence subjected to its popular scrutiny. A variance is thought to be bad because it may deprive the defendant of notice of the details of the charge against him and protection against reprosecution." 413 F.2d 1071-1072.

The distinction has also been considered to turn on the question of whether the defendant was tried for some crime other than that upon which the grand jury had indicted. In United States v. Beard, 436 F.2d 1084 (5th Cir., 1971), the issue was raised and the court there stated that an infirmity arose, and we quote:

"The only case ever presented by the prosecution to the Grand Jury necessarily was on the theory that the actions of the appellant constituted a violation of Title 18, U.S.C., Section 13, by reason of violation of the Texas embezzlement statute, Section 1534 of the Texas Penal Code. The appellant was tried and convicted for violating a wholly different statutory provision. Title 18, U.S.C., Section 661. Permission was not asked of or given by the trial judge for formal amendment of the indictment, but nevertheless the indictment was in effect amended by the government\'s change in position during the course of the trial when the fatal defects in the proof came to light, and the court refused to grant the motion to dismiss the indictment."

Bursten's case differs. This case is distinguished from Beard in that it is not a case of a grand jury indicting for an offense under one section of the United States Code and the prosecution proving guilt of a second and different offense. Appellant here was charged with a violation of 26 U.S.C. § 7201. Considering the nature of appellant's tax return, a sufficient allegation of an offense under this section was made whether the grand jury alleged taxpayer's statements to be as they are on his return or as alleged in the indictment. Nor does Janko v. United States, 281 F.2d 156 (8th Cir., 1960), reversed on other grounds, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846, require a contrary result. Further, we note that regardless of the language on line 12 of Bursten's return, the 1957 return was on its face a "loss" return and showed no taxable income had accrued.

Since there is no assertion, nor, as this is the second trial on the indictment, could there be, that appellant had no notice of the charge against him or of the kind of evidence to be introduced, we conclude that in the absence of a showing of prejudice to appellant the variance at issue was not material and was harmless. Berger v. United States supra; United States v. Tremont, supra; compare United States v. Birrell, 447 F.2d 1168 (2nd Cir., 1971).

II.

Appellant's second theory for reversal involves the scope of permissible prosecutorial argument. Bursten contends that the prosecutor's rebuttal argument was prejudicial and impermissible in that its reference to defense's opening statements and its charge of "panic" and "inability to put on a defense" amounted to a commentary on defendant's refusal to testify or conduct a defense. What is precisely at issue are the following statements:

"You heard defense counsel get up here. I want you to remember what he told you in his opening statement. I am not going to go through it. Remember, what he told you, and remember, please, that I told you that this is what we expected to prove, what he hoped to prove.

* * * * * *

"I say to you and I ask you to remember that the Government told you to look at the evidence in the case, see if the Government did what it told you that it hoped to prove, what it expected to prove, and thing sic about what the defense told you—

* * * * * *

"I submit to you that the defense panicked in this case. I submit to you they didn\'t think the Government could do it. It did go back some years. Kadison showed up. Sawyer showed up. Burris showed up. Adcock showed up. They panicked. They couldn\'t put on a defense, I submit to you. That\'s what happened." See 395 F.2d 976 for background.

Fairness, in considering the propriety of prosecutorial comments, requires that the context and circumstances of the statements be considered.

Appellant's defense as indicated by his attorney's closing remarks was based upon the belief that the prosecution had failed to prove its case beyond a reasonable doubt. Consequently, Bursten rested at the close of the Government's case without calling any witnesses. In summation to the jury defense attorneys argued:

"Going now to the question that I hope to present to you, ladies and gentlemen, is a fact that I say in this case, I submit, that the evidence clearly demonstrates that the Government has failed miserably,...