United States v. Marra

Decision Date24 July 1973
Docket NumberNo. 72-2154.,72-2154.
Citation481 F.2d 1196
PartiesUNITED STATES of America, Appellee, v. John J. MARRA, Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

John J. Raymond, Detroit, Mich., for appellant; Carl H. Wienberg, Ramond, Fletcher & Dillon, Detroit, Mich., on brief.

Robert H. McKnight, Jr., Tax Div., Dept. of Justice, Washington, D. C., for appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Robert H. McKnight, Jr., Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; Ralph B. Guy, Jr., U. S. Atty., of counsel.

Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

John J. Marra, M.D., was charged in a two-count indictment with violation of Title 26 U.S.C. § 7206(1)—making false income tax returns. Count I had to do with his return for the year 1965; Count II related to his return for the year 1966. He was convicted on Count I, and upon a jury's inability to agree a mistrial was ordered as to Count II.1 Dr. Marra does not challenge the sufficiency of the evidence upon which he was convicted. He asks reversal of his conviction upon his claim that Honorable Fred W. Kaess, Chief Judge of the United States District Court for the Eastern District of Michigan, erred in denying two pretrial motions—one to dismiss the indictment, and the other to suppress, on Fifth Amendment grounds, whatever evidence he had furnished to agents of the Internal Revenue Service. These motions were renewed at the close of proofs in support of appellant's then motion for a directed acquittal. They were again denied and the case was submitted to the jury.

We affirm the denial of the pretrial motions.

I. Motion to Dismiss

Count I of the Indictment charged:

"That on or about April 15, 1966, in the Eastern District of Michigan, JOHN J. MARRA, a resident of Lake Orion, Michigan, wilfully and knowingly made and subscribed a 1965 Federal Income Tax Return (IRS Form 1040), which was verified by a written declaration that it was made under the penalties of perjury, and which was filed with the District Director of Internal Revenue at Detroit, Michigan, and which tax return he did not believe to be true and correct as to every material matter: in that he reported Schedule C gross receipts of $54,742.59, interest income of $2,536.45, and Schedule C other business expenses of $16,773.07, whereas, as he then and there well knew and believed, the correct amounts he should have reported were $78,330.58, $3,168.79, and $15,955.07 respectively; in violation of Section 7206(1), Title 26, United States Code."

Count II charged:

"That on or about June 1, 1967, in the Eastern District of Michigan JOHN J. MARRA, a resident of Lake Orion, Michigan, wilfully and knowingly made and subscribed a 1966 Federal Income Tax Return (IRS Form 1040) which was verified by a written declaration that it was made under the penalties of perjury and which was filed with the District Director of Internal Revenue at Detroit, Michigan, and which tax return he did not believe to be true and correct as to every material matter: in that he reported a $12,000.00 charitable contribution based upon a real estate appraiser\'s report secured by false information (furnished by the defendant) when in fact he well knew and believed that the correct amount of the charitable deduction was substantially less; and in that he reported interest income of $1,396.48, well knowing and believing the correct amount of interest income was $3,282.47; in violation of Section 7206(1), Title 26, United States Code."

Appellant's motion to dismiss contained these averments:

"1. The indictment fails to state the particular act or acts charged with reasonable definiteness so as to enable the defendant to prepare his defense, and that it is so vague, indefinite and uncertain that it does not inform the defendant of the nature or cause of the accusation made against him, and in the foregoing respects does not comply with the Fifth and Sixth Amendments to the Constitution of the United States.
"2. The indictment does not contain a plain, concise and definite written statement of the essential facts constituting the offense charged, and, therefore, does not comply with Rule 7(c) of the Federal Rules of Criminal Procedure."
"3. In Count One, the Indictment purports to allege that defendant willfully and knowingly made and subscribed a 1965 Federal income tax return which he did not believe to be true and correct as to every material matter. This merely states a conclusion rather than the essential allegations of fact which constitute the alleged offense, in that:
a. No facts are stated which allege that defendant signed a completed tax return (when in fact the Agents knew or should have known the defendant signed a blank tax return).
b. The defendant has, by affidavit attached, set forth the facts proving the signing of two blank tax return forms, an extra copy of which was part of the files shown to the Agents by the defendant\'s accountant, Angus Campbell (copy of said blank return attached).
"4. In Count Two, the Indictment alleges in vague and uncertain terms that the defendant furnished false information to an appraiser. This is a mere conclusion. No facts are alleged which would constitute the elements of an alleged offense or apprise the defendant sufficiently to enable him to prepare a defense.
"Likewise in Count Two the indictment alleges that the defendant did not report all of this interest-income.
"In his attached affidavit, the defendant denies that he gave any such alleged false information to the appraisers and in substantiation thereof attaches a copy of said appraisal which states as follows:
a. That the appraisers made a careful inspection of the subject property, noted and analyzed all of the determining factors, both favorable and unfavorable, that indicate value, and then arrived at the opinion that the fair market value of the property as of January 6, 1966 was $12,000.00.
b. That the appraisers were furnished a survey of the property and the dimensions and legal description used in the appraisal were taken off this survey made on October 25, 1965 by Kieft Engineering of Clarkston, Michigan."

The factual material of Dr. Marra's affidavit supporting the motion said:

"In April 1966, while discussing my income tax matters with my accountant, Angus Campbell, he requested that I sign two blank forms 1040, Federal income tax forms, since there was not sufficient time for him to finish the return and send it to me for signature. Mrs. Marra and I signed two such blank forms and returned them to Mr. Campbell.
"After delivering the signed blank income tax forms to Mr. Campbell, I did not meet, or discuss the contents of my 1965 Federal income tax return, with Angus Campbell.
"To the best of my knowledge and belief the finished product, that is the completed 1965 Federal income tax return was mailed from the office of Mr. Campbell."

The District Judge held that the indictment was legally sufficient. His order recites:

An indictment does not have to be put in the most definite and certain terms possible. An indictment is sufficient if it (1) alleges all of the elements of the offense; (2) fairly informs the defendant of what he must be prepared to meet; (3) protects him against double jeopardy; and (4) enables the Court to determine whether the facts alleged are sufficient in law to withstand a motion to dismiss or to support a conviction. Hagner v. U. S., 285 U.S. 427 , 52 S.Ct. 417, 76 L. Ed. 861 (1932); U. S. v. Levinson, 405 F.2d 971 (6th Cir. 1968)."
* * * * * *
"Thus, the Court finds that the indictment is neither vague nor indefinite. An offense is charged, and defendant is well aware of the nature of the offense and the underlying transactions which form the basis for the charge. Therefore, the indictment fully complies with all of the requirements of the Fifth and Sixth Amendments to the Constitution of the United States and Rule 7(c) of the Federal Rules of Criminal Procedure."

A reading of the indictment makes clear the correctness of the foregoing.

In dealing with the factual and defensive allegations of appellant's affidavit supporting his motion, the District Judge said:

"Paragraphs 3a., 3b., 4a., and 4b. of defendant\'s motion raise factual issues. A trial is the appropriate place to resolve these issues. A motion to dismiss the indictment cannot be used as a device for a summary trial of the evidence. The sole function of this type of motion is to test the sufficiency of the indictment to charge an offense. U. S. v. Sampson, 371 U.S. 75 , 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); U. S. v. Luros, 243 F.Supp. 160 (N.D.Iowa, W.D.1965); U. S. v. Winer, 323 F.Supp. 604 (E.D.Pa. 1971). The Court should not consider evidence not appearing on the face of the indictment. Winer, supra."

The District Judge's recited reasons for his ruling are so clearly correct that we need not support them with our own dissertation.

At trial, Dr. Marra's accountant testified that on the evening of April 14th he had already prepared a pencil draft of the proposed return and went over it with Dr. Marra who either approved it or did not question its accuracy. The accountant or his secretary typed in all of the material from the pencil draft onto the 1040 return already signed by the doctor and his wife. This was sent in to the Internal Revenue Department as appellant's tax return for 1965.

Appellant does not question the sufficiency of this evidence to warrant his conviction under Count I, and we mention it only as supporting the propriety of the District Judge's refusal to consider Dr. Marra's ex parte affidavit in denying the motion to dismiss.

II. Motion to suppress.

Appellant's brief to us, as a statement of issue presented, says:

"1. Whether the lower court erred in denying the Defendant\'s motion to suppress evidence when the facts upon which
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