United States v. Grabinski, 3-81 Cr. 35.

• Citation: 558 F. Supp. 1324
• Decision Date: 16 March 1983
• Docket Number: No. 3-81 Cr. 35.,3-81 Cr. 35.
• Parties: UNITED STATES of America, Plaintiff, v. John M. GRABINSKI, Defendant.
• Court: U.S. District Court — District of Minnesota

558 F. Supp. 1324

UNITED STATES of America, Plaintiff, v. John M. GRABINSKI, Defendant.

No. 3-81 Cr. 35.

United States District Court, D. Minnesota, Third Division.

March 16, 1983.

M. Susan Murnane, U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Donald W. MacPherson, Phoenix, Ariz., for defendant.

MEMORANDUM ORDER

ALSOP, District Judge.

This matter comes before the court upon defendant's motion for judgment of acquittal notwithstanding the verdict or, in the alternative, a new trial. For the reasons set forth more fully below, the court will deny these motions.

Defendant John M. Grabinski was originally indicted in the United States District Court for the Eastern District of Missouri for failure to file a federal income tax return for the calendar year 1976. Defendant moved to dismiss the indictment for lack of jurisdiction on the grounds that he had been a lifetime resident of St. Paul, Minnesota. Alternatively, defendant moved for a change of venue. Based upon affidavits, documents and defendant's testimony introduced at a pretrial hearing, the District Court for the Eastern District of Missouri denied defendant's motion to dismiss but granted a change of venue to Minnesota.

At the time for trial in Minnesota, the Missouri court sitting in St. Paul dismissed the indictment. Subsequently, defendant was charged in Minnesota by way of a two-count information with failure to file a federal income tax return in each of the calendar years 1975 and 1976.¹ Prior to trial, defendant made a motion to dismiss the information on various grounds including vindictive prosecution. In an order dated July 23, 1981, this court denied defendant's motion in all respects.

An appeal of the July 23, 1981 order was taken to the Court of Appeals for the Eighth Circuit. The Circuit Court, sitting en banc, dismissed defendant's appeal for lack of jurisdiction. United States v. Grabinski, 674 F.2d 677 (8th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982). After a five-day jury trial, defendant was found guilty on both counts of the information.

I.

Defendant now moves for judgment of acquittal on both counts of the information on grounds of vindictive prosecution. This motion is merely a renewal of defendant's pretrial motion to dismiss the information which was denied and from which defendant appealed. In fact, the arguments defendant now makes regarding vindictive prosecution are set forth fully in the dissent to the Eighth Circuit's dismissal of defendant's appeal and need not be repeated here. See id. at 681-83 (Lay, J., dissenting).

Defendant's motion was originally denied because the court concluded that defendant had made no showing of vindictiveness. In addition, any showing made by defendant was successfully rebutted by the government. Defendant has introduced no new evidence nor made any new arguments in support of his post-trial motion for judgment of acquittal on grounds of vindictive prosecution and that motion will be denied.

Defendant additionally moves for judgment of acquittal on Count I of the information on "grounds of Fifth Amendment violation: right against self-accusation and due process of law." Specifically, defendant alleges that information supplied by him in support of his motion to dismiss the indictment in the Eastern District of Missouri was used against him by the government in prosecuting him for failure to file in 1975 as alleged in Count I of the subsequently filed information. Defendant argues that this procedure violated his due process rights as well as his right against self-incrimination.² The court finds defendant's arguments to be totally without merit and will, therefore, deny defendant's motion.

II.

Defendant also moves for a new trial on the grounds that he was denied his right to a jury determination upon all essential elements of the offenses charged in the information. Three essential elements must be proved in order to establish a failure to file a return in violation of 26 U.S.C. § 7203:

1. Defendant was required to file a tax return for the year in question;

2. Defendant failed to make such a return; and

3. Defendant's failure was willful.

United States v. Ostendorff, 371 F.2d 729, 730 (4th Cir.), cert. denied, 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229 (1967); Devitt & Blackmar, Federal Jury Practice and Instructions, § 35.29 (3d ed. 1977).

As regards the second element of the offense, the court charged the jury as follows:

The second element of the offense of failure to file an income tax return is that a defendant failed to make such a return at the time required by law.

Whether the documents that the defendant claims to have filed with the Internal Revenue Service are valid tax returns is a question of law for me to decide. You are instructed that those documents are not valid tax returns because they do not contain sufficient information relating to the taxpayer's income from which a tax can be computed.

It does not necessarily follow, however, from the fact that the defendant filed documents that are not valid tax returns that the defendant willfully failed to file valid tax returns.

Defendant objected to this instruction at the time it was given and again raises his objection in his motion for a new trial.

Defendant specifically argues that (1) the documents he filed for the years in question were income tax returns because they contained numbers for taxable income and computations therefrom and (2) this court erred in taking the issue from the jury by instructing that they were not returns. Defendant further argues that this court's action whittled away his defense to the third element of the offense — willfulness.

Defendant is a 42-year old college graduate. He has been employed since 1963 by various companies around the country as a contract engineer working primarily in the area of aircraft stress analysis. Defendant filed federal income tax returns as required by law until 1975. In September of that year, he began filing W-4E forms claiming that he had no tax liability for the previous year and did not anticipate any in the current year.³ In fact, defendant's income tax liability was over $3,500 in 1974, and he had gross income in excess of $37,000 in 1975 and in excess of $22,000 in 1976.

Defendant did attempt to file a 1040 form for each of the tax years at issue. In response, the Internal Revenue Service mailed a letter to defendant in each year informing him that his 1040 form was not acceptable as a tax return. To fully address defendant's arguments, it is necessary to describe in detail the 1040 forms which defendant attempted to file.

The 1040 form submitted by defendant for 1975 contains only his name, Social Security number, address, marital status and, on the taxable income line (line 47), the figure "6540.72" with a reference to a footnote which explains that the figure is in "lawful US dollars." In addition, lines 16 through 26 contain a figure reflecting a computation of a refund due based on the taxable income figure from line 47. The remaining applicable lines on the form relating to income, taxes and credits have the notation "OBJECT" (instead of dollar figures) with a reference to another footnote explaining that such an entry "indicates I object to answering the question on grounds that it violates my rights under 4th and 5th amendments to the U.S. Constitution." Attached to the document is over 100 pages of tax protest materials.

The 1040 form submitted by defendant for 1976 is similar to the form submitted for 1975 except that the taxable income line (line 47) contains a zero as do the majority of lines 16 through 28, which reflect a computation of tax due based on a taxable income of zero.⁴ The remaining applicable lines on the form relating to income, taxes and credits have the notation "OBJECT" with reference to the same footnote as is referenced in the 1975 form. Defendant also attached over 100 pages of tax protest materials to this document.

A.

The first issue raised in defendant's motion for a new trial is whether the 1040 forms submitted by defendant for the tax years 1975 and 1976 are tax returns. The court ruled as a matter of law that they are not. It is clear that the mere act of filing a form 1040 does not constitute filing a return for purposes of § 7203. United States v. Smith, 618 F.2d 280, 281 (5th Cir.), cert. denied, 449 U.S. 868, 101 S.Ct. 203, 66 L.Ed.2d 87 (1980). The traditional standard for determining whether a document is a tax return was first set forth in United States v. Porth, 426 F.2d 519, 523 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), and adopted by the Eighth Circuit in United States v. Daly, 481 F.2d 28, 29 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973):

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 Commissioner.

Defendant argues that his 1040 forms are returns because they contain figures on the taxable income line from which a tax could be computed. The court agrees that a tax can be computed given a taxable income figure⁵ but does not agree that this alone is the standard for determining whether a document is a tax return. The mere fact that a tax could be calculated from information on a form should not be determinative of whether the form is a return. United States v. Moore, 627 F.2d 830, 835 (7th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). The taxpayer in Daly had filed documents which contained no financial information whatsoever and so the Eighth Circuit had no reason to analyze the sufficiency of the basic definition of a return developed in Porth. This court is now faced with that task.

The 1040 forms submitted by defendant are not tax returns because they do not provide...