United States v. Madsen
| Decision Date | 26 March 2013 |
| Docket Number | Case No. 2:09-cr-00808 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DOUGLAS R. MADSEN, Defendant. |
| Court | U.S. District Court — District of Utah |
ORDER ENTERING VERDICT
After substantial briefing by the parties and numerous hearings, the court has satisfied itself relating to its concerns about the trial and jury verdict in the Government's case against Defendant for attempted tax evasion. Accordingly, the court now orders the entry of the jury's verdict against Defendant and the sentencing phase to proceed. The court also addresses Defendant's motions pursuant to Rules 34, 45, 29, and 33 of the Federal Rules of Criminal Procedure.
A grand jury first indicted Defendant on one count of tax evasion in violation of 26 U.S.C. § 72011 on October 22, 2009, then again in a Superseding Indictment on October 5, 2011, and finally in the Second Superseding Indictment on October 19, 2011 [Dkt. No. 64]. TheDefendant was tried beginning on January 9, 20122 under the Second Superseding Indictment on the one count of tax evasion in the amount of approximately $1.3 million in tax, assessed interest, and penalties for tax years 1995, 1999, 2000, 2001, 2002, 2003, and 2004 based on various specified affirmative acts allegedly committed by Defendant in furtherance of his intent to evade the payment of tax. The Second Superseding Indictment lists affirmative acts committed between September 12, 2003 and 2007. The Defendant, after having been fully advised, elected to represent himself during trial with the assistance of stand-by counsel. The jury returned a verdict of guilty on January 12, 2012, unanimously finding Defendant guilty as to Count 1 of the Second Superseding Indictment charging Defendant with attempted tax evasion. (See Tr. Jury Verd., at 4:2-6 [Dkt. No. 164].)
After the jury entered its verdict the court requested the parties to submit memoranda briefing the following three issues: (1) "[H]as the statute of limitations run on the collection of those taxes [for the 1995 tax year] to the effect that they no longer can serve as a basis for proof that there is tax due and owing for the Indictment period?"; (2) Was "the income that was presented in evidence . . . once appropriate deductions and offsetting arrangements are made . . . sufficient to create a substantial tax liability"?; and (3) "[I]s an assessment by the IRS, without supporting evidence, sufficient proof to sustain in a criminal case the requirement that there's proof of a substantial tax due and owing?" (Id. at 6.) Post-trial motions have been argued by counsel for the Defendant.
The court's primary concern in delaying the entry of the verdict was whether the statute of limitations effectively barred the first year included in the Indictment (1995), thus casting doubt on whether it would be possible for the jury to return a unanimous verdict because theSecond Superseding Indictment charged all acts of the evasion of payment of tax in a single count. This seemingly duplicitous3 approach of presenting the charges in the Second Superseding Indictment meant that it would be impossible to know whether or not a juror convicted Defendant based on evidence relating specifically to the tax deficiency for 1995.4 In sum, if the statute of limitations barred the tax year 1995, then because all acts of the evasion of payment of tax are charged in a single count in the Indictment, a conviction would violate the Sixth Amendment because if any single juror considered 1995 as a basis for conviction (and it would not be possible to know whether that were the case), then the jury verdict would not have been unanimous based on eligible tax years.
The court will address its three questions under two heads below, combining its second and third questions for consideration under the heading "Sufficiency of the Evidence."
In delaying the verdict to allow for briefing, the court has been guided by the fundamental principle that the Sixth Amendment guarantees criminal defendants a right to a unanimous verdict. U.S. Const. amend. VI.5 Whether the Second Superseding Indictment in this instance is actually technically "duplicitous" or not, by including a tax year that is arguablybarred by the statute of limitations, it invites the same concerns as a formally duplicitous indictment. See Haddock, 956 F.2d at 1546 (). Thus, the jury might have convicted Defendant without having unanimously agreed on acts not barred by the statute of limitations. The Tenth Circuit has expressed the importance of jury unanimity in a manner that this court believes justifies its request for additional briefing on the statute of limitations question by explaining that "upon the appearance of any uncertainty or contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt, for there is no verdict as long as there is any uncertainty or contingency to the finality of the jury's determination." Morris, 612 F.2d at 489 (internal citations, quotations and alteration omitted).
The court commends the parties for their detailed and sensitive briefing of this issue. As noted above, because of its constitutional concerns about the jury's verdict, the court has not accepted the verdict pending briefing on these concerns.6 The briefing has raised a substantial question about whether, in the Tenth Circuit, the statute of limitations is viewed as a jurisdictional bar.7 If it is a jurisdictional bar, and if the Defendant is correct in his argumentabout the mechanics of the applicable statute of limitations in this case, then the court's constitutional concerns about the unanimity of the verdict would be validated. The briefing on the mechanics of the statute of limitations, however, has persuaded the court that it need not settle this question to resolve its present concerns. That is, because the court finds that tax year 1995 is not barred by the statute of limitations, contrary to Defendant's arguments, and because the jury was properly instructed that they must find an affirmative act within the statute of limitations period, the question of whether the statute of limitations is jurisdictional is moot and the court must accept the verdict.
Because the court had not yet accepted the verdict and in light of the jurisdictional question surrounding the statute of limitations, Defendant moved the court to arrest judgment pursuant to Rule 34 of the Federal Rules of Criminal Procedure during oral argument on April 5, 2012. (Tr. Hrg. Apr. 5, 2012, at 36, 39 [Dkt. No. 177].) Under Rule 34, "the court must arrest judgment if (1) the indictment or information does not charge an offense; or (2) the court does not have jurisdiction of the charged offense." Fed. R. Crim. P. 34(a) (2012). A court can take thisaction "on its own" motion, id. at 34(a), or upon the defendant's motion, in which case the defendant "must move to arrest judgment within 14 days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere." Id. at 34(b) (emphasis added). Defendant argues that because he raised this motion before the court has accepted the verdict, the motion is timely. (Def.'s Am. Mem. Supp. Mot. Judg. Acquittal 3 [Dkt. No. 180].) The Government contends that the motion is untimely because the court is not "empowered, through an intrinsic grant of inherent authority, to indefinitely extend the timing provisions of the Federal Rules of Criminal Procedure." (Pl.'s Opp. Def.'s Mem. Supp. Mot. Judg. Acquittal 3 [Dkt. No. 182].) As to the phrase "after the court accepts a verdict" in the timing requirement for bringing a Rule 34 motion, the Government explains that it means "when the jury comes back and gives a verdict to the court." (Tr. Hrg. Apr. 5, 2012, at 39 [Dkt. No. 177].) Absent direct guidance on this novel question, the court finds that the plain language of the Rule should govern and that the motion is timely based on the court's own expressed posture that it has not yet accepted the verdict.8
The Second Superseding Indictment charged that Defendant "did willfully attempt to evade and defeat the payment of a large part of the income tax due and owing . . . for tax years 1995, 1999, 2000, 2001, 2002, 2003, and 2004. . . ." (Second Superseding Indictment 2-3 [Dkt. No. 64].) In considering Rule 34(a)(1), the court finds that this language is sufficient to charge the offense and that words such as "specifically intended" or "intentionally" are not additionally required in order to express the requisite specific intent, as argued by Defendant. (See Def.'s Am. Mem. Supp. Mot. Judg. Acquittal 5 [Dkt. No. 180]; compare Pl.'s Opp. Def.'s Mem. Supp. Mot.Judg. Acquittal 4 [Dkt. No. 182].) The most important considerations in reviewing the sufficiency of an indictment are whether it "first, contains the elements of the offense charged" and next, whether it "fairly informs a defendant of the charge against which he must defend, and, second enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974). "An indictment is 'generally sufficient if it sets forth the offense in the words of the statute so long as the statute adequately states the elements of the offense.'" United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988) (quoting United States v. Salazar, 720 F.2d 1482, 1486 (10th Cir. 1983)). More importantly in this case, although "the legal sufficiency of an indictment may be challenged at any time, where the objection is not raised before or during trial, the challenged language will be 'construed liberally in favor of validity.'" United States v. Sullivan, 919...
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