# Petition — Haskin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 836

## Text

ae

Supreme Court, U. S,
FILED

JUN 26 1978

Supreme Couri of the Unite sptates - an

October Term, 1977

ae 1830

JAMES HASKIN,

Petitioner.
VS.
UNITED STATES OF AMERICA.

Respondent

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DONALD M. RE, ESQ.
9911 West Pico Boulevard

Suite 1000
Los Angeles, California 90035
| Telephone - (213) 553-8698

Attorney for Petitioner

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

Ce cee

. ~~ eT a ee a

2 i Pete. «cer

i
TOPICAL INDEX

Petitioner, James Haskin, prays for
Ee ee l

—
g
nN N N

EPO TS Pee eT Ee

Constitutional Provisions and
Se Ns os sco Soi Oaks EERE Co oi dx 3

Seatemment Of Che Case... css on oc tbs owidn wes 0% 4
Reasons for Granting AWrit ................ 7

I‘ The various circuit courts of appeals,
and the various panels within the Ninth
Circuit Court of Appeals, are in com-
plete disarray on the issue of the appro-
priate standard to be applied to a question
of whether a criminal defendant has receiv-
ed the effective assistance of counsel ...... 7

Il The provisions of Title 26, United States
Code § 7203 cannot rationally or legally
be applied to a corporate officer solely
based upon his status as such an officer .... 10

Ill A conflict in the circuit courts of appeals
exists with regard to the standard to be
applied to prosecutorial assertions of
personal belief and argument to the jury
based upon matters not inevidence ...... 11

IV The Court of Appeals was incorrect in
formulating an ad hoc exception to the
hearsay rule based upon an after-the-fact
determination of “reliability.” .......... 13

a aes

ii
TOPICAL INDEX
Page
SD whvewe setbredveuccdtoetaeemen 15
TABLE OF AUTHORITIES CITED

Cases
Anderson v. United States,

406 F.2d 1057 (9th Cir. 1969) .......... 12
Berger v. United States, 395 U.S.78 .......... 12, 13
Cooper v. Fitzharris, 551 F.2d 1162

I ak oo el 8
de Kaplany v. Enomoto, 540 F.2d 975

Gra Ges Cree TU Cera. SE 8
Devine v. United States, 403 F.2d 93

Cree Ga Coane SCARRED 13
Gideon v. Wainwright, 372 U.S. 335 (1963) .... 7
Gillihan v. Rodriguez, 551 F.2d 1182

GORGE By re hs OE Gee oS 7
Glasser v. United States, 315 U.S.60 .......... 9,10
Gradsky v. United States, 373 F.2d 706

Gun Gis, CRS) CCP Wi 13
Greenberg v. United States, 280 F.2d 472

ei Sn a aR a 12, 13
Harris v. United States, 402 F.2d 656

Ge, Ce. FRG UI EA PR i as il 13

iii
TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Newsom v. United States, 431 F.2d 742
CSG ADIED civ cccccccccccscvcces 11

Orebo v. United States, 292 F.2d 747
(9th Cir, 1961)... ee eee eee eee ners 12

Patriarca v. United States, 402 F.2d 314
(let Cir. 1968) 2... ccc ccc ccc ccccesens 12

Smith v. United States, 353 F.2d 838
(D.C. Cir. 1965) .... ccc cceccvecccee 15

United States v. Easter, 539 F.2d 663 (8th Cir. 1976)

United States Ex Rel. Williams v. Twomey,

510 F.2d 635 (7th Cir. 1975) .......,...-.. 7
United States v. Leach, 429 F.2d 956

Ge BGT cn cccencveceveescecess 13
United States v. Madrid Ramirez,

535 F.2d 125 (ist Cir. 1976) ............ 7
United States v. Spanglet, 258 F.2d 338

>) 8 A). rns eee 13
Whitely v. Warden, 401 U.S. 560(1971) ........ 15

United States Constitution
i a ces ech oven egesaness 2,3

Statutes (United States)
Title 26, United States Code

| Pee CTE TEP LL. 11

— ——— ew — cvadwtecadwbacese debi 4,11
S7OUD ....0065..3 NS DSR ERS ee bee 4, 10
97908 rat a i aes,

ation in the Ninth Circuit pursuant to the grant of hearing
in Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977), the
most recent en banc consideration in this circuit purports,
itself, to offer a variety of standards. See de Kaplany v.
Enomoto, 540 F.2d 975, 987 (9th Cir. 1975). The court
below in fact quoted the three standards of de Kaplany v.
Enomoto, supra, (Appendix p. 4) and apparently purport-
ed to apply the standard of the panel opinion in Cooper v.
Fitzharris, supra, that counsel rendered “reasonably effec-
tive assistance.”” (Appendix p. 4.)

The present case presents an appropriate vehicle for
discussion of this issue for a variety of reasons. First,
unlike the overwhelming majority of cases upon this issue,
the errors of counsel in this case may be analyzed with
regard to discreet portions of the record and without the
necessity of reference, at this state, to either the entire
record or to matters concerning the general preparation of
the case. See cases cited in de Kaplany v. Enomoto, supra.

Moreover, the opinion of the court below clearly
resolves a series of issues raised by the petitioner in the
petitioner’s favor, but finds that it either cannot consider
the issues as a result of the failure of the counsel to object
or finds that the failure to object imposes a higher stand-
ard of review. Thus, irrelevant, highly inflammatory and
hearsay evidence was admitted concerning alleged “‘skim-
ming” operations of the petitioner and concerning the
“pornographic” nature of the petitioner’s business, and
while the Court of Appeals’ opinion recognizes that the
evidence regarding “skimming” was irrelevant and that the
“gratuitous insinuation” of the word “pornography” into
the trial was “unworthy of a government lawyer” (Appen-

ia

dix p. 3), the court concludes:
“An error requiring reversal might have been
presented if defense counsel had objected at
the time the government insinuated the foreign
matter.” (Appendix p. 3.)

The court similarly finds that assertions of personal
belief by the prosecutor concerning matters not in evi-
dence were not reversible error as “[n] 0 objection was
raised.” (Appendix p. 4.) _

Finally, the court below, in agreeing with the peti-
tioner’s contention that various business records should
not have been excluded upon the ground that the custodian
of the records at the time of trial was not the custodian at
the time the various documents were made, finds that the
relevancy of the documents was never established, as a
result of the failure of petitioner’s trial counsel to make
the requisite offer of proof. (Appendix p. 2.) The court
concludes that “[i] f Haskin had a valid foundation for the
documents, he neglected to make it.” (Appendix p. 2.)

It is consequently submitted that it is absolutely
essential that this Court quiet the uncertainty surrounding
the appropriate standards to be applied to a denial of effec-
tive assistance of counsel and that the instant matter is an
appropriate case for making that determination. This is
especially so in view of the recognized principle that once
denial of effective assistance of counsel has been determin-
ed, the harmless-error standard does not apply. As stated
in Glasser v. United States, 315 U.S. 60, 76:

“The right to have the assistance of counsel
is too fundamental and absolute to allow courts
to indluge in nice calculations as to the amount

I~ *

~10—
of prejudice arising from its denial.”

i
The Provisions Of Title 26, United States Code
§ 7203 Cannot Rationally Or Legally Be Applied
To A Corporate Officer Solely Based Upon His
Status As Such An Officer.

The case presented to the District Court by the govern-
ment was largely based upon the assertion that Haskin, as
president of Ecktagraphics, was criminally responsible for
a corporate failure to file a tax return based primarily upon
his position in the corporation. The possible crippling effect
of such a rule upon the operation of all but the smallest corp-
orate businesses in the country is apparent. A corporate
officer cannot possibly become personally i~volved in each
of the day-to-day activities of the corporation, and yet, the
holding of the Ninth Circuit below would appear to require
him to do so at his criminal peril.

The basis for attaching liability under § 7203 to this
petitioner arises solely from the provisions of Title 26, U.S.C.
§ 7343 which defines the “person” as used in Chapter 75 of
that title as including “an officer . . . of a corporation

. who as such officer . . . is under a duty to perform
the act in respect of which the violation occurs.” On at least

two separate bases, however, that section does not make the ,

provisions of § 7203 applicable to this petitioner.

First, § 7343 applies only to such officer who is under
a “duty to perform the act” in question. Of necessity, the
term “duty” must be related to some other statutorily impos-
ed duty. In contrast to sections involving civil penalties,

=e

where such a “duty” is specified, no such duty is detailed
with regard to the criminal corporate filing sections.
Furthermore, § 7203 applies only to “any person re-
quired under this title to . . . make a return” (emphasis
added). That language leads one directly to the provisions
of Title 26, U.S.C. § 6012 entitled “Persons Required To
Make Returns Of Income.” That section requires the
returns to be made by “every corporation” but imposes
no such responsibility upon the corporate officers.
Moreover, under somewhat parallel legislation, at
least one circuit court of appeals has decided that the term
“person” does not include corporate officers. Thus, in
Newsom v. United States, 431 F.2d 742 (1970), the Fifth
Circuit refused to extend the liability for taxes withheld or
collected under 26 U.S.C. § 7501 to corporate officers.
Finally, unless the petitioner is correct in his analysis
of the sections, a corporate officer has greater protection
with regard to liability from civil tax collection actions
than he does in criminal actions. For, under § 7215 of
Title 26, U.S.C., in such civil collection actions, notice
is required prior to the initiation of ihe lawsuit. In con-
trast, under the government’s analysis, which appears to
have been adopted by the court below, criminal liability
may be imposed without knowledge or intent, and merely
as a result of the individual status of the corporate officer.

ii
A Conflict In The Circuit Courts Of Appeals
Exists With Regard To The Standard To Be
Applied To Prosecutorial Assertions Of Per-
sonal Belief And Argument To The Jury Based

—12—

Upon Matters Not In Evidence.

During the course of argument to the jury, the Assist-
ant United States Attorney made various references to
matters outside the record regarding the alleged extent of
petitioner's activities and importuned the jury to adopt the
government’s case by continually utilizing the phrase “‘I
think” while commenting on both the government and
defense case. The court below announced that the rule
of the Ninth Circuit is that “assertions of personal belief based
on matters not in evidence constitute reversible error unless no
objection is made. . . . No objection was raised [here]}.”
(Appendix p. 4.) The court thus found no reversible error.
(/bid. )

As indicated by the court, the Ninth Circuit generally
subscribes to the standard that assertions of belief based on
matters not in evidence would constitute reversible error
unless no objection is made or the prosecutor is attempting
to rebut insinuations of defense counsel. Orebo v. United
States, 292 F.2d 747, 749 (9th Cir. 1961); Anderson v.
United States, 406 F.2d 1057 (9th Cir. 1969). However,
while all circuits recognize that the prosecutor bears a
special responsibility as a representative of the government

(Berger v. United States, 395 U.S. 78, 88), the various circuit
courts do not agree on the appropriate standard to measure
prosecutorial expressions of personal belief. Thus, the First
Circuit appears to have the strictest standard, requiring rever-
sal whenever the prosecutor expresses his personal belief.
Patriarca v. United States, 402 F.2d 314, 321 (1968); Green-
berg v. United States, 280 F.2d 472 (ist Cir. 1960). The
District of Columbia Circuit relies upon Greenberg v. United

ma

States, supra, but requires that an objection be made. Harris
vy. United States, 402 F.2d 656 (1968). The Second Circuit
applies the rule to those situations which indicate that the
prosecutor was relying upon information other than that
which had been presented in court. United States v. Spanglet,
258 F.2d 338 (1958). This appears to be the rule in the Fifth
Circuit. Gradsky v. United States, 373 F.2d 706 (1967). The
Eighth Circuit has held that “statements by counsel or the
court are not cause for reversal unless prejudicial error is
apparent.” United States v. Leach, 429 F.2d 956 (1970). The
Tenth Circuit, while recognizing such error, has determined
to decide on a case-by-case basis whether the grounds for
reversal exist. Devine v. United States, 403 F.2d 93 (1968).
The standards of prosecutorial behavior relate, of course,
not only to the interest of the criminal defendants but also to
the manner in which society at large views and may rely upon
the responsibility of government officials and the judicial
process. It is therefore of utmost importance that this Court
take this opportunity to reaffirm the notions announced in
Berger v. United States, supra, and to give appropriate guid-
ance to the various circuit courts as to the standard to be
applied.

IV
The Court Of Appeals Was Incorrect In Form-
ulating An Ad Hoc Exception To The Hearsay
Rule Based Upon An After-The-Fact Determina-
tion Of “Reliability.”

The petitioner argued before the court below that the
evidence produced at trial was insufficient as a matter of law

mt

~14—

to establish the failure of Ecktagraphics Corporation to file
the requisite income tax return. Obviously, if the petitioner
had been successful upon this argument, an essential element
of § 7203 would not have been demonstrated and the peti-
tioner would be entitled to an acquittal. The government's
evidence utilized to show failure to file a tax return was
produced through one Keith Krouge, a representative of the
Internal Revenue Service, whose jurisdiction extended
throughout the states of California and Hawaii. Krouge’s
testimony established that he never requested a search to be
made with regard to Ecktagraphics Corporation, a Nevada
corporation, and that in fact the only search which he made
was to request a computer printout from Washington con-
cerning Ecktagraphics, a California corporation. The peti-
tioner argued (1) that the failure to search for the Nevada
corporation rendered Krouge’s testimony incompetent to
establish Ecktagraphic’s failure to file, and (2) that the ex-
tent of Krouge’s testimony was deficient to meet the require-
ments of Federal Rule of Evidence 803(10), concerning the
absence of a public record.

The interpretation given to Rule 803(10) by the court
below purports to remove the requirement that the custodian
of the records testify as to such search. The court’s interpre-
tation imposes, in its place, a requirement only that the records
in some unspecified manner be determined “reliable.” (Appen-
dix p. 7.) While the court, in its opinion, states rather blandly
that “reliability was never seriously in question,” the memo-
randum opinion overlooks the fact that the petitioner was
asserting that the search which had been made did not go far
enough in checking the filing status of the Nevada corporation.
Only through appropriate cross-examination of the requisite

ae

custodian could this requirement be satisfied. The Ninth
Circuit's opinion, however, authorizes the non-custodian
Krouge to testify to the results of a search made by some
unidentified person. This approach is not only contrary

to the historical background of Rule 803(10), which is
based upon Federal Rules of Criminal Procedure, Rule

27 and Rule 44!, but serves also to deprive criminal de-
fendants of their effective right to cross-examination. It

is indeed anomalous that the court is willing to view second-
hand governmental in-channels information with the aura of
reliability when the evidence is used as an element to con-
vict a criminal defendant, in the face of the requirement that
the ultimate source of such evidence must be subjected to
cross-examination on the less stringent standard of probable
cause to arrest. Whitely v. Warden, 401 U.S. 560 (1971).

CONCLUSION

This petition presents fundamental issues regarding
a variety of questions which remain unsettled in the various
circuit courts of appeals. These questions relate to the funda
mental right of representation by counsel, and to the special-
ized duty of a prosecutor to the defendant, the court and to
society. Furthermore, the petition presents a rather serious
issue concerning the liability of corporate officers for a
corporate failure to file tax returns, in the absence of know-
ledge or intent on their part. Finally, the petition raises an

-16-

issue concerning the propriety of judicial modification and
substantial alteration of the Federal Rules of Evidence
concerning utilization of governmental in-channels hearsay
information to convict a criminal defendant.

Each of these matters may be decided upon limited
portions of the record. And, each of thes. matters is raised
in the context of a criminal defendant convicted of three
misdemeanor offenses and, as a result of such convictions,
facing two years imprisonment, $30,000 in fines, proba-
tion and restitution. The issues are obviously substantial
to the petitioner. It is submitted, moreover, that the issues
are extremely important to the administration of justice
and to the conduct of the judicial system.

For each of these reasons, it is respectfully requested
that a Writ of Certiorari issue to review the judgment and
order of the United States Court of Appeais for the Ninth
Circuit.

Respectfully submitted,
DONALD M. RE

Attorney for Petitioner

United States Court of Appeals for
so
ER Uy regs ceausdcs

Notice of Entry of Judgment ..........

Order denying Petition for Rehearing
and Suggestion for Rehearing En Banc
[filed May 25,1978] ............+...

Pertinent statutory provisions
_ 5 NER Wy Se
Oh awk bebe ceceetes
26 USC. 7343 ses i Wades ceubeet

10
10

ES eS SR ce Saget &

APPENDIX “A”

MEMORANDUM OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth
Circuit.

UNITED STATES OF AMERICA, Appellee, v. JAMES
HASKIN, Appellant.
No. 77-2410.

[FILED MARCH 29, 1978]

Appeal from the United States District Court
for the Central District of California.

Before: TRASK and GOODWIN, Circuit Judges, and
SOLOMON *, District Judge.

James Haskin was convicted on three counts of failure
to file income tax reterns on behalf of a corporation, Eckta-
graphics, of which he was president and sole owner.

On appeal, Haskin argues that some of his business
records were improperly excluded and that prejudicial
testimony, ineffective representation, misconduct of the
prosecutor, and a lack of impartiality by the court require
reversal.

Haskin also asserts that the government produced
insufficient evidence to prove: (1) that the corporation
was required to file a “calendar year” return, (2) that
Haskin was a person required to file these returns, (3) that
his conduct was willful, and (4) a failure to file. On these

* The Honorable Gus J. Solomon, Senior United States District Judge for
the District of Oregon, sitting by designation.

Appendix 2.
points, the evidence was sufficient for the jury to reach the
guilty verdict.

The business-records exclusion followed a ruling by
the trial court which interpreted Fed. R. Evid. 803(6) to
require the witness to have been the custodian of the records,
at the time the various documents were made, in order to
qualify the records under the hearsay exception. In C. S.
Johnson Co. v. Stromberg, 242 F.2d 793, 799 (9th Cir. 1957),
cert. denied, 355 U.S. 816 (1957), under the predecessor to
Fed. R. Evid. 803(6), 28 U.S.C. § 1732(a), we held otherwise.
It is not necessary to produce someone who was working at
the business when the documents were prepared, so long as
authenticity is otherwise established.

In the instant case, however, the relevancy of the docu-
ments was never established. Moreover, there was no founda-
tion for many of the exhibits, and no reason to believe that
others had been prepared in the regular course of business.

The purpose of introducing the excluded documents
was to show that one Jerry Lynn, an employee, was respon-
sible for taxes. The jury heard testimony to this effect. The
exclusion of the documents, under all the circumstances, was

not error. If Haskin had a valid foundation for the documents,

he neglected to make it.

Haskin argues that questions to witnesses about “skim-
ming’, and other remarks by the prosecutor that his business
was related to pornography or “adult” literature, and ques-
tions abcu:t the income of the business were irrelevant and so
highly prejudicial as to require a reversal. There was no evi-
dence that Haskin engaged in other illegal activity either with
respect to pornography or personal tax evasion.

The government explains that the prosecutor’s questions

Appendix 3.

about the nature of Haskin’s business and possible use of
corporate receipts for personal purposes was necessary

to prove Haskin’s total control of the business, to attack
the credibility of a defense witness, and to show that Eckta-
graphics and not some related corporation was indeed doing
the business which generated the income for which a tax
return was due.

Testimony about “skimming” was irrelevant to the
issue of whether corporate tax returns had been filed or
who was responsible for filing them. The gratuitous insin-
uation of the word “‘pornography”’ into the trial was the
sort of pettifogging that is unworthy of a government lawyer.
An error requiring reversal might have been presented if
defense counsel had objected at the time the government
insinuated the foreign matter. However, Fed. R. Evid.
103(a) (1) forecloses the assignment of error on appeal
when the point was not raised on trial. Had the point
been raised, we assume that the trial court could have made
the necessary corrections on the spot. The error, if any, was
not so prejudicial as to be plain error which we might notice
on appeal even though not raised in the trial court.

An exchange between the IRS agents and Haskin’s
attorney does not show the invocation of a Fifth Amend-
ment claim. The agents were attempting to obtain business
records from Haskin. He had no privilege as to these records.
United States v. White, 322 U.S. 694, 699 (1944), Wilson v.
United States, 221 U.S. 361, 380-8 (1911).

Haskin now argues that because “‘irrelevant, highly
inflammatory, and hearsay” evidence was admitted, largely
without defense objection, and because certain evidence
proffered by the defense was excluded, he received ineffective

(eo

.
i
)

ee eee

Appendix 4.

representation by counsel. He had constitutionally adequate
counsel. The trial was not perfect, but it was fair.

In de Kaplany v. Enomoto, 540 F.2d 975, 987 (9th
Cir. 1975), we noted the various standards by which appel-
late courts measure the conduct of counsel: (1) was the per-
formance so poor and incompetent as to make the trial a
farce or mockery of justice?, or (2) do the circumstances
show a denial of fundamental fairness?, or (3) does the
record show a lack of effective aid in the preparation and
trial of the case?

Counsel in this case was able to render and did render
reasonably effective assistance. This was far from a model
trial, but the errors and omissions of counsel, if any, under-
score the efficacy of hindsight. They do not rise to a denial
of due process.

Haskin argues that the introduction of prejudicial evi-
dence, combined with highly inflammatory pre-entations
of personal belief or knowledge by the prosecutor in the
final argument, amounted to reversible misconduct.

The rule in this circuit is that assertions of personal
belief based on matters not in evidence constitute reversible
error unless no objection is made. Orebo v. United States,
293 F.2d 747, 749 (9th Cir. 1961), cert. denied, 368 U.S.
958 (1962). However, the prosecutor can argue inferences
to the jury based upon the evidence. United States v. Parker,
549 F.2d 1217, 1221, 1222 (9th Cir. 1977). Here the prose-
cutor stated, “This is a big business, that Mr. Haskin was
running, a big business. Only a portion of it is reflected
here.”’, and at various times used the phrase “I think”
while commenting on the evidence. No objection was
raised. The court later instructed that statements of counsel

Appendix 5.

are not to be considered as evidence. We find no reversible
error here.

Haskin claims the court was not impartial. On balance
we cannot say that because the trial judge was sometimes
short with defense counsel the case must be reversed. The
court was sometimes abrupt with both counsel. We noted in
United States v. Schmitz, 542 F.2d 782 (1976),“Canon 3A(3)
of the Code of Judicial Conduct says: ‘A judge should be
patient, dignified, and courteous to litigants, jurors, witnesses,
lawyers, and others with whom he deals in his official capacity
* * * * ” 542 F.2d at 785. Here there is no reason to say
that the judge’s conduct did not meet that standard.

Haskin says that time is an essential element of an
indictment in a § 7203 criminal action. This is true. Haskin
then relies on the Intergraphs Corporation (a related company)
fiscal return to show that the indictment was invalid.

Title 26, U.S.C. § 441(g) reads in part:

“(T] he taxpayer’s taxable year shall be the
calendar year if — .
(1) the taxpayer keeps no books;
(2) the taxpayer does not have an annual
accounting period; or
(3) the taxpayer has an annual accounting
period, but such period does not qualify
as a fiscal year.”
The jury heard evidence that the books were inadequate or
insufficient for Ecktagraphics Corporation to have the
privilege of the option.
Haskin argues that there was no evidence to prove the
element of willfulness. Under United States v. Hawk, 497
F.2d 365, 368 (9th Cir. 1974), cert. denied, 419 U.S. 838

Appendix 6.

(1974), the standard of willfulness in § 7203 actions does

not include an independent element of bad purpose or evil
motive. It is sufficient that there is proof of conscious
wrongdoing rather than mere carelessness or mistake. If the
notion of mens rea is adequately conveyed, instructions to
include the terms bad purpose or evil motive may be reject-
ed. Here evidence was introduced to show that Haskin had
stated he would pay all taxes, that he had been made aware
tax returns had not been filed, and that he knew of a duty
to file. The jury could conclude that his failure to file was
willful.

Haskin argued at trial that the employee Lynn was
the “person required” to file the corporate income tax
returns and that the government never proved Haskin was
required to file the returns. In this court he assumes that
his position as corporate president was the sole basis of the
prosecution’s case. But there was more.

We have defined the “person” responsible for the pay-
ment of the tax as that individual who “had the final word
as to what bills should or should not be paid, and when.”
Dudley v. United States, 428 F.2d 1196, 1201 (9th Cir.
1970) (action to recover funds collected by Internal Revenue
Service), quoting from Wilson v. United States, 250 F.2d
312, 316 (9th Cir. 1958). “Final” means significant rather
than exclusive control. Turner v. United States, 423 F.2d
448, 449 (9th Cir. 1970). Haskin had total control.

Haskin argues that we should follow the reasoning in
United States v. Fago, 162 F. Supp. 125, 129 (W.D. N.Y.
1958), that where there are other officers the government
must show that the defendant is the one responsible. Whether
Or not we might agree with that abstract proposition, the jury

Appendix 7.

verdict can survive. The jury heard testimony that the
employee Lynn was just a figurehead; that Haskin had final
authority; and that Haskin ran the operations and negotiated
business deals. The jury may well have inferred that Haskin
knew that Lynn and Cornell (another employee) would never
file the required returns without Haskin’s approval, even though
they were stipposedly responsible.
The final issue is whether there was sufficient evidence of

a failure to file a return. The testimony of the IRS investigator
showed that two employer identification numbers were search-
ed. Haskin says this is hearsay. The important point of the
hearsay exception is reliability. Here the investigator could
request information from the Federal Records Center and
Archives and the National Computer Center. The government
made an explanation of how a diligent search is conducted.

We can discern no reason to have the person who actually

ran the computer testify. Reliability was never seriously in

question. The investigator’s evidence was admissible under

Fed. R. Evid. 803(10). It was up to the jury to give it such

weight as it deserved.

Haskin’s other contentions are without merit.
Affirmed.

APPENDIX “B” 8.

NOTICE OF ENTRY OF JUDGMENT

OFFICE OF THE CLERK
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Please take notice that the judgment was filed and entered

in the case noted on the attached disposition (opinion, memo-
randum or order). Also, please take special notice of the date
of filing as it represents the date of entry of judgment.

Important Time Periods

There are fourteen (14) days from the date of entry of judg-
ment in which to file a petition for rehearing. The mandate
of the court shall issue twenty-one (21) days after the entry
of judgment unless the court orders otherwise. If the court

enters an order denying the petition, the mandate will issue

(7) days thereafter. For further information regarding these
processes, please refer to Rules 36, 40 and 41 of the Federal
Rules of Appellate Procedure.

APPENDIX “C” 9.

ORDER DENYING PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING EN BANC

In the United States Court of Appeals for the Nir:th
Circuit.
UNITED STATES OF AMERICA, Appellee, JAMES

HASKIN, Appellant.
No. 77-2410.

[FILED MAY 25, 1978]

Appeal from the United States District Court
for the Central District of California

Before: TRASK and GOODWIN, Circuit Judges, and
SOLOMON’, District Judge.

On April 11, 1978, appellee filed its petition for
rehearing and suggestion for rehearing en banc.

The panel as constituted in the above case has voted
to deny the petition for rehearing and to reject the sugges-
tion for a rehearing en banc.

The full court has been advised of the suggestion for
en banc hearing, and no judge of the court has requested
a vote on the suggestion for rehearing en banc. Fed. R.
App. P. 35(b).

The petition for rehearing is denied and the suggestion
for a rehearing en banc is rejected.

* The Honorable Gus J. Solomon, Senior United States District Judge
for the District of Oregon, sitting by designation.

11.

APPENDIX “D” 10. Appendix

| of a partnership, who as such officer, employee, or member
| PERTINENT STATUTORY PROVISIONS is under a duty to perform the act in respect of which the

| violation occurs.

Title 26, United States Code

87203. Willful failure to file return, supply informa t
tion, or pay tax |

Any person required under this title to pay any esti-

mated tax or tax, or required by this title or by regulations

made under authority thereof to make a return (other than

a return required under authority of section 6015), keep

any records, or supply any information, who willfully fails

to pay such estimated tax or tax, make such return, keep

such records, or supply such information, at the time or

times required by law or regulations, shall, in addition to

other penalties provided by law, be guilty of a misdemeanor

and, upon conviction thereof, shall be fined not more than

| $10,000, or imprisoned not more than | year, or both,

together with the costs of prosecution. —

87215. Offenses with respect to collected taxes

(a) Penalty.—Any person who fails to comply with
any provision of section 7512(b) shall, in addition to any
other penalties provided by law, be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than
$5,000, or imprisoned not more than one year, or both, —
together with the costs of prosecution.

§ 7343. Definition of term “person”
The term “person” as used in this chapter includes an
officer or employee of a corporation, or a member or employee

County of Orange )

L, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, State of California,
over the age of eighteen years and not a party to the within action or proceeding;
that

My business address is 326% Main Street, Huntington Beach, California 92648,
that on SUNEQ, 1978, | served the within PETITION FOR WRIT OF CER-
TIORARI (HASKIN v. UNITED STATES OF AMERICA) on the following

named parties by depositing the designated copies thereof, enclosed in a sealed
envelope with postage thereon fully prepaid, in the United States Post Office in
the City of Huntington Beach, California, addressed to said parties at the addre sses
as follows:

Clerk, United States Court of Appeals
For the Ninth Circuit
Seventh and Mission Streets
P. O. Box 547
San Francisco, CA. 94101

Ref. 77-2410 - 1 copy

United States Attorney

312 North Spring Street

Los Angeles, California 900i 2
2 copies

Clerk, United States District Court
Central District of California

312 North Spring Street

Los Angeles, California 90012

1 copy

Soiicitor General of the United States
U. S. Department of Justice
Washington, D.C. 20530

3 copies

I declare under penalty of perjury that the foregoing is true and correct.

Executed on JUNE J71978, at

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1212%3A1. Public record. Not legal advice.