United States v. McCarthy, 15929.
| Decision Date | 05 February 1968 |
| Docket Number | No. 15929.,15929. |
| Citation | 387 F.2d 838 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William J. McCARTHY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barnabas F. Sears, Maurice J. McCarthy, Chicago, Ill., Wayland B. Cedarquist, Chicago, Ill., for defendant-appellant. Boodell, Sears, Sugrue & Crowley, Chicago, Ill., of counsel.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee. Robert A. Galbraith, Asst. U. S. Atty., of counsel.
Before MAJOR, Senior Circuit Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.
William J. McCarthy, defendant, has appealed from a judgment of the district court, convicting him, on his plea of guilty, of a violation of § 7201 of the Internal Revenue Code (26 U.S.C. § 7201), as charged in an indictment, upon which he was given a prison sentence of one year and ordered to pay a fine of $2500 and costs.
The first question raised here is whether the plea of guilty was accepted in accordance with rule 11 of the Federal Rules of Criminal Procedure,1 and the second is whether the court abused its discretion in entering judgment after it allegedly knew or should have known that defendant did not understand the nature of the charge. Lastly an issue is raised as to whether the court denied defendant his rights under the fifth and sixth amendments to the constitution, by entering judgment without any basis for a determination that the defendant understood the nature of the charge.
The grand jury, in count II, charged that defendant willfully and knowingly attempted to evade and defeat a large part of the income tax due and owing by him for the calendar year 1960, by filing and causing to be filed a false and fraudulent income tax return stating his taxable income was $16,804.59 and the tax due was $4,193.56, whereas, as he then and there well knew, they were $29,738.85 and $9,337.26, respectively, in violation of said § 7201.
On April 14, 1966, government attorney Galbraith and attorney Sokol, representing defendant, together with defendant, appeared in court and a plea of not guilty was entered. The cause was then set for trial on June 13, 1966.2
When the case was called for trial on July 15, 1966, there were present defendant's counsel Sokol and government attorney Hughes, as well as defendant. The following proceedings then occurred:
On September 14, 1966, the case was called for disposition and the court asked defendant personally if he had "anything to say prior to the time that sentence is imposed?" He asked a similar question of defense counsel. The court heard their answers. Sentence was then imposed. The court also stayed execution for sixteen days.
1. Defendant's counsel urge that, because of three changes made in rule 11, Federal Rules of Criminal Procedure, effective July 1, 1966, the conviction of defendant on his plea of guilty herein should be reversed. First, they say that a judge is now required to address the defendant personally. Secondly, they say a judge is now required to "determine from his personal interrogation of defendant that he understands the consequences of the plea", and thirdly the court must determine that there is a factual basis for the plea. However, it is clear the district judge in this case had these recent changes in mind, as the contents of his remarks and questions to defendant indicated.
Counsel for appellant urge that defendant did not understand the nature of the charge against him. They base this upon defendant's own statement to the district judge when he was asked if he had anything to say prior to the imposing of sentence. The record shows that defendant then said:
"I am very unhappy, your Honor, that this happened and I am sure that if it were not for my health and the things that I have gone through that it never would have happened and it is not deliberate and I am very sorry."
They also rely on the fact that the probation officer informed the court that "defendant had become a member of Alcoholics Anonymous at approximately the time the guilty plea was entered" and that the court was also informed that defendant "is 66 years of age, who had been hospitalized at one time for alcoholism".
However, a complete answer to this contention is that the offense involved here refers to the filing of defendant's income tax return for the year 1960, which occurred on March 19, 1961, or about five years before sentencing which did not occur until 1966. On this appeal the critical date as to defendant's physical and mental being was July 15, 1966 when his plea of guilty was entered — not some five and a half years before sentencing.
Under these facts, we hold that the district court satisfied the requirements of rule 11 in effect on and after July 1, 1966, in accepting defendant's plea of guilty. Cf. United States v. Rizzo, 7 Cir., 362 F.2d 97, 99 (1966); and United States v. Lowe, 7 Cir., 367 F.2d 44, 45 (1966). While these cases involved sentencing before July 1, 1966, we find their reasoning in substantial accord with the result we now reach in this case.
2. Next, defendant's counsel contend that the charges made against defendant were complicated and may well have been confused by defendant with lesser included offenses within § 7201, inasmuch as count II of the indictment charged violation of § 7201 of the Internal Revenue Code, by the filing of a "false and fraudulent income tax return". Defendant's counsel insist that such an allegation is undoubtedly quite common, since such an allegation would also form the basis for a violation of § 7207, which would amount to a misdemeanor. Further, they say, the existence of a tax deficiency "without more would amount to a misdemeanor, if it had been lodged under § 7203. * * *"
They cite Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) as indicating that the distinguishing characteristic of § 7201 is a willful attempt to evade or defeat taxes. Counsel then argue that the only statement appearing in the record concerning defendant's understanding the charge is that the defendant said "it is not deliberate". His counsel now argue that the legal force of such a statement is not clear and yet the court made no attempt to clarify the statement by further questioning of defendant.
The government in reply points out that the plea of guilty was to count II, which charged a violation of § 7201, and that a plea of guilty to a lesser included offense may not be accepted without consent of the government. United States v. McCue, 160 F.Supp. 595, 602 (D.C. Conn.1958). The government argues, in essence, and we agree with it, that under this record, a plea of guilty forecloses applicability of a lesser included offense. Certainly there is no confusion evident upon the record before us. Defendant was represented by able counsel when his plea was entered. He was not then entitled to plead to a lesser included offense. He did not plead to such an offense. The point seems to...
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