United States v. Coppola

• Decision Date: 28 May 1969
• Docket Number: Cr. No. 12202.
• Citation: 300 F. Supp. 932
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Paul A. COPPOLA, Defendant.

300 F. Supp. 932

UNITED STATES of America v. Paul A. COPPOLA, Defendant.

Cr. No. 12202.

United States District Court D. Connecticut.

May 28, 1969.

COPYRIGHT MATERIAL OMITTED

Reginald W. Gibson, Cono R. Namorta, Tax Division, Dept. of Justice, Washington, D. C., for plaintiff.

Jacob D. Zeldes, Elaine Amendola, Bridgeport, Conn., Sachs, Sachs, Giaimo & Sachs, New Haven, Conn., for defendant, H. William Shure, New Haven, Conn., of counsel.

MANSFIELD, District Judge.^*

Following acceptance of defendant's plea of guilty to one count of the indictment, which charges that on April 15, 1962 he wilfully and knowingly attempted to evade and defeat income tax due and owing for the year 1961 by filing a false and fraudulent income tax return on behalf of himself and his wife, defendant has moved pursuant to Rules 12 and 34, F.R.Cr.P., for an arrest of judgment and dismissal of the indictment on various grounds, all of which have previously been rejected by Judge Timbers in a decision filed on January 6, 1969, D.C., 296 F.Supp. 903, denying defendant's earlier motion to dismiss.

Although we are not required automatically to follow Judge Timbers' decision as the law of the case, we nevertheless, after careful review of the papers and after hearing extensive oral argument, subscribe to his well-reasoned opinion and deny the motions.

Defendant's first contention is that he cannot constitutionally be prosecuted under the felony statute, 26 U.S.C. § 7201, for conduct punishable as a misdemeanor under § 7207. This argument proceeds on the assumption that since the facts and evidence relied upon to establish a violation of § 7201 would be identical with those establishing a violation of § 7207, instructions permitting a finding of guilt of the lesser offense would be precluded under the teachings of Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); see Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Achilli v. United States, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 (1957). On this premise defendant argues that since the identical conduct could be prosecuted either as a felony or a misdemeanor, defendant's constitutional rights are violated because of vagueness and uncertainty as to the penalty that might be imposed, excessive delegation by Congress of the power to place limits on the punishment for such conduct, and denial of equal protection of the laws.

Although willfulness is a common element required to be proved in order to establish a violation either of § 7201 or § 7207, each of these sections requires proof of some elements not required by the other. For instance, proof of a tax deficiency and of an attempt to evade or defeat tax are essential elements required to be proved in order to establish a violation of § 7201, but not required to establish violation of § 7207. Likewise proof of delivery of a return and of knowledge of its material falsity, essential elements of a violation of § 7207, need not be proved to establish a violation of § 7201. Thus the Government could prove a violation of § 7207 without necessarily proving the more serious alleged violation of § 7201.

The fact that in some instances the evidence relied upon by the Government to establish a violation of the felony section might be identical with that relied upon to show a violation of the misdemeanor statute does not render the felony statute void for vagueness or unconstitutional, or require that the conduct be prosecuted as a misdemeanor rather than as a felony. See Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956). Congress clearly intended that if the elements of willfulness, tax deficiency, and intent to defeat the tax could be proved beyond a reasonable doubt, the offense should be prosecuted as a felony rather than as a misdemeanor. If, on the other hand, the proof, though insufficient to establish a tax deficiency or an attempt to defeat the tax, is sufficient to show delivery of the return and knowledge of its material falsity, which would amount to less heinous conduct than that defined in § 7201, the offense should be prosecuted as a misdemeanor.

Since the defendant in this case has pleaded guilty to all of the essential elements constituting the felony defined in § 7201, his conduct must be prosecuted as a violation of that section, and he may not escape such prosecution because of the happenstance or coincidence that in this particular case his conduct might also have encompassed the less heinous elements required to establish a violation of § 7207. For the same reasons he is not entitled to be sentenced for a violation of § 7207 rather than § 7201.

Defendant's second ground asserted in support of his motion for arrest of judgment and dismissal is that the "net worth" method of establishing a violation of § 7201, which the Government stated in its Bill of Particulars that it proposed to use if the case went to trial, is unconstitutional. In rejecting this contention Judge Timbers did not, as defendant now suggests, base his decision wholly upon Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). On the contrary the record reveals that except for an argument based on the Supreme Court's recent decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (May 19, 1969), all of defendant's arguments in support of this contention were before Judge Timbers, including those based upon Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and they were expressly rejected by Judge Timbers in his memorandum decision of January 6, 1969, wherein he stated:

"Defendant would have this Court disregard that decision Holland in light of recent decisions by the Supreme Court which defendant asserts have expanded the privilege against self-incrimination. This should not, and will not, be done by this Court."

Furthermore, the defendant, by pleading guilty to the essential elements charged against him in the indictment here, has waived an attack upon the net worth method of prosecution, his plea...