US v. Strawberry

• Decision Date: 10 July 1995
• Docket Number: No. 94 CR 954 (BDP).,94 CR 954 (BDP).
• Citation: 892 F. Supp. 519
• Parties: UNITED STATES of America, v. Darryl STRAWBERRY and Eric Goldschmidt, Defendants.
• Court: U.S. District Court — Southern District of New York

892 F. Supp. 519

UNITED STATES of America, v. Darryl STRAWBERRY and Eric Goldschmidt, Defendants.

No. 94 CR 954 (BDP).

United States District Court, S.D. New York.

July 10, 1995.

Margaret Groban, U.S. Attys. Office, White Plains, NY, for U.S.

Catherine Redlich, Peter Driscoll, Driscoll & Redlich, New York City, for defendant Eric Goldschmidt.

MEMORANDUM DECISION AND ORDER

PARKER, District Judge.

FACTS

This action for conspiracy and tax evasion is before this Court on Defendant Goldschmidt's motions (1) to dismiss Counts Two and Three of the indictment on the grounds of improper venue, pursuant to Rule 18 of the Federal Rules of Criminal Procedure, (2) for an Order directing the Government to provide a bill of particulars, pursuant to Rules 7(f) and 16 of the Federal Rules of Criminal Procedure, (3) for an Order directing the Government to disclose § 3500 material and impeachment material two weeks before trial, and (4) for an Order directing early disclosure of jury panel information, pursuant to 26 U.S.C. § 6103(h)(5).

The three-count indictment charges the Defendants, Eric Goldschmidt ("Goldschmidt") and Darryl Strawberry ("Strawberry"), with an alleged scheme to conceal from the Internal Revenue Service ("the IRS") income earned in cash by Strawberry at various promotional events. The indictment alleges that, as Strawberry's contractual agent, Goldschmidt negotiated his on-field baseball contracts, provided financial services, and prepared or assisted in the preparation of Strawberry's tax returns for the years 1988, 1989 and 1990.

Counts Two and Three of the indictment charge Goldschmidt with aiding and abetting Strawberry's attempt to evade "a large part of the income tax due and owing ... by various means, including the receipt of cash" at various promotional events in the Southern District of New York for the tax years 1988 and 1989, respectively, in violation of 18 U.S.C. 2(a) and 26 U.S.C. § 7201.¹ Both tax returns were allegedly prepared, signed and filed in California where Goldschmidt and Strawberry reside. On February 9, 1995, Strawberry pled guilty to one count of tax evasion in violation of 26 U.S.C. § 7201.

DISCUSSION

1. Venue

a. Legal standard

The Sixth Amendment to the Constitution provides that the accused in a criminal prosecution has the right to be tried in the "district wherein the crime shall have been committed." See also Fed.R.Crim.P. 18. Where the offense charged is a "continuing offense" — an offense that occurs over space or time — 18 U.S.C. § 3237(a) provides that venue is proper in any district in which the offense was "begun, continued, or completed." "The prosecution must show, by a preponderance of the evidence, that some part of the crime was committed within the district of prosecution." United States v. Maldonado-Rivera, 922 F.2d 934, 968 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991).

If the federal statute defining an offense does not indicate explicitly where Congress believes the criminal act is committed, "the locus delecti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). The test for venue "is best described as a substantial contacts rule that takes into account a number of factors — the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding," United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985). To determine whether venue is proper, it is helpful to examine the "key verbs" used by the statute in defining the offense. United States v. Chestnut, 533 F.2d 40, 46-47 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976).

Because an "attempt to evade" tax can occur over time and in more than one judicial district, a violation of § 7201 is a "continuing offense" within the meaning of 18 U.S.C. § 3237(a). Courts have found venue for § 7201 offenses to be proper in any district where an affirmative act constituting an "attempt to evade" was begun, continued or completed. See United States v. Slutsky, 487 F.2d 832, 839 (2d Cir.1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287 (1974). To establish an "attempt to evade," the Government must show that the defendant engaged in some affirmative act with a tax evasion motive. See United States v. Marchant, 774 F.2d 888, 891 (8th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986).

In cases where venue was premised on acts other than those connected to the preparation, signing, mailing or filing of the tax return at issue, courts have turned for guidance to the Supreme Court's analysis in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943) to determine whether the defendant engaged in an affirmative act constituting an "attempt to evade."² See, e.g., Beaty v. United States, 213 F.2d 712 (4th Cir.1954), vacated on other grounds, 348 U.S. 905, 75 S.Ct. 312, 99 L.Ed. 710 (1955), aff'd on remand, 220 F.2d 681 (1955); United States v. Goodyear, 649 F.2d 226 (4th Cir.1981); United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973). In Spies, the Supreme Court stated that the affirmative act requirement should be read broadly: "Congress did not define or limit the methods by which a willful attempt to defeat or evade might be accomplished and perhaps did not define lest its efforts to do so result in some unexpected limitation." Spies, 317 U.S. at 499, 63 S.Ct. at 368. The Court provided examples of conduct from which an "attempt to evade" could be inferred:

By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax-evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime.

Spies, 317 U.S. at 499, 63 S.Ct. at 368.

b. Whether the receipt of cash payments constitutes an "attempt to evade"

The Government premises venue for the § 7201 offenses on Strawberry's receipt of cash on several different occasions in the Southern District. In Counts Two and Three, the indictment alleges,

"in the Southern District of New York and elsewhere, Darryl Strawberry and Eric Goldschmidt, the defendants, did unlawfully, willfully, and knowingly, attempt to evade and defeat a large part of the income tax due and owing by Darryl Strawberry and his wife to the United States of America for the calendar years of 1988 and 1989 ..., by various means, including the receipt of cash on specified dates at specified locations in the Southern District; and by preparing and causing to be prepared, by signing and causing to be signed, and by filing and causing to be filed a false and fraudulent U.S. Individual Income Tax Return ... wherein defendant Darryl Strawberry aided and abetted by defendant Eric Goldschmidt under-reported Strawberry's promotional income ..."

The Government does not allege that Strawberry or Goldschmidt reside or has a principal place of business in the Southern District. The Government does not allege that the tax returns at issue were prepared, signed, mailed or filed in the Southern District. Rather, the receipt of income in cash at the promotional events cited in the indictment are the only contacts that Strawberry and Goldschmidt are alleged to have had with the Southern District.

Goldschmidt argues that venue in the Southern District is improper because the receipt of cash does not satisfy the Spies affirmative act requirement.³ He argues that conduct satisfying Spies, including conduct found sufficient to support venue, has been, without exception, unambiguous, blatantly tax-motivated acts of deception, concealment and obfuscation. Goldschmidt argues that, in these cases, there was no question or ambiguity that the offense of tax evasion had been "committed," for the purposes of Rule 18, in the district. For example, Goldschmidt argues, in Beaty, the Fourth Circuit found that the conduct at the heart of the defendant's "attempt to evade," i.e., the making of false records and the concealment of assets, occurred in the district, see Beaty, 213 F.2d at 715, and in United States v. DeFabritus, 605 F.Supp. 1538 (S.D.N.Y.1985), the Court concluded that "where the evasion charge is based on the making of false records, proper venue for an evasion charge includes the district in which the corporation maintaining those records has its principal place of business." DeFabritus, 605 F.Supp. at 1543-44.

Goldschmidt attempts to distinguish the receipt of income in the form of cash from what he terms the "patently tax-motivated acts of deception, obfuscation or concealment" in Beaty and DeFabritus. He argues that while deceit is inherent in the making of false records and the concealment of assets, electing to be paid in cash is not inherently deceptive. Goldschmidt asserts that "in the `here today, gone tomorrow' world of baseball card shows, it is considered prudent business practice to insist upon receiving one's fees in cash rather than accept a check from a transient show promoter."

In response, the Government argues that it will prove at trial that Strawberry received cash payments in the Southern District with the intent to evade tax, making venue in the Southern District proper. The Government argues that it will introduce sufficient evidence at trial to permit a jury to infer that Strawberry received...