Petition — Buckley v. United States

IN THE

> °.8 7

SUPREME COURT OF THE UNITED STATES ©

October Term, 1978

No. ‘ ? *\

JAMES TRAVIS BUCKLEY, Petitioner,

Ve

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTICRARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

C. EVERETTE BOUTWELL

P. O. Box 4448

Laurel, Mississippi 39440

Counsel For Petitioner

February 26, 1979

INDEX

Opinion below eceececceceee

Jurisdiction oe @& 6 8..86 6. ee

Questions presented « « « « « « «

Statutory provisions involved. .

Statement of the case « « « « « «

Reasons for granting the writ °

1. The Decision Below Conflicts

with the Decisions of This

Court as to the Proper Inter-

pretation of 26 U.S.C.

Section 720le ee eee eee

2. The Decision Below Raises

Significant and Recurring

Problems Concerning Failure

to File Income Tax CaseSe « «

3. The Decision Below Raises

the Significant and Recur-

ring Problems Concerning

Freedom of Information .« « «

4. The Decision Below Violates

Due Process of Law by

Refusing Jury Instructions

as to pres ease “Ss ee

Conclusion - ee o£ se = fe

Appendix (Opinion and Judgment

of Court of Appeals). « « « « «

CITATIONS

Cases:

Meade Data Central,Incev. U.S.

213

214

16

217

e i

Dept. of Air Force, 566 F.2d 242.14

Notaro vSe UeS.; 363 F.2d 169 ..

Sansone vse U.S. 380 U.S. 343 «

Spies VSe UeSe 317 UeSe 492 « « o

UeSe vSe Benavidez, 558 F.2d 308.

U.S. vVSe Bishop, 412 U.S. 346...

UeSe VSe Bourque, 541 F.2d 290. +

U.S. vse Brown, 562 F.2d 1144(9 Cir)14

U.Se vse Murdock, 290 U.S. 389. .

UeSe VSe Oaks, 508 F.2d 1403 ..

el?

212

wi.

el?

212

~16

012

eL5

*

ie Re ae ee ene ene eee Sa eee

|

?

.

INDEX, Continued

5 U.S. CoA. Section 552(a). .

5 UeS.CeA. Section 552(b) (7)

26 U.S.CeA. (I-R.C. 1954)

Section 7201 e©eee ef &@ @ «@

26 U.S.C.A.e cZeR-C- 1954)

Section 7203 eeeseeeee-e

Rules of Procedure

Fre Crim. P. 52(B)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

JAMES TRAVIS BUCKLEY, Petitioner,

Ve

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT CF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner James Travis Buckley

respectfully prays that a writ of certi-

orari issue to review the judgment and

opinion of the United States Court of

Appeals for the Fifth Circuit entered

in this proceeding on December 18, 1978.

OPINION BELOW

The opinion of the Court of Appeals

appears in the Appendix hereto. No

opinion was rendered by the District

Court for the Southern District of Mis-

sissippi.

JURISDICTION

The judgment of the Court of Appeals

oie

a eee: LO Se ee

Pan es

for the Fifth Circuit was entered on

December 18, 1978. A timely petition

for rehearing en banc and a timely peti-

tion for a panel rehearing were both de-

nied on January 29, 1979, and this peti-

tion for certiorari was filed within 30

days of that date. This Court's juris-

diction is invoked under 28 U.S.C.

Section 1254(1) and Rule 22(2).

QUESTIONS PRESENTED

1. Whether the failure to file

an income tax return, 4 misdemeanor under

26 U.S.C.A. (IRC 1954) Section 7203, can

be an affirmative act required in order

to prove income tax evasion under 26

U.S.C.eA. (IRC 1954) Section 7201.

2. Whether so-called affirmative

acts which are not crimes within them-

selves, such as dealing in cash or neg-

ligence in keeping records must always

be considered in the light most favor-

able to the government, and if so,

whether this denies a defendant due

process of law by presuming willfulness

beyond a reasonable doubt to establish

income tax evasion, in the absence of

proof and showing by the government of

bad faith or evil motive.

3. Whether due process of law is

=2a

denied where a defendant is improperly

convicted of overlapping felony and

misdemeanor income tax charges for the

same year, where separate convictions

and sentences cannot be supported, and

where the defendant is denied a new trial

with the benefit of a lessor-offense

instruction and a recognition by the

trial court that such conviction and

sentencing is improper.

4. Whether a defendant in an

income tax case is deprived of due pro-

cess of law if he is denied discovery

of F.B.I. investigation files when the

tax investigation is started by infor-

mation furnished to the Treasury De-

partment by the F.B.I.

5. Whether the defense of fear

of entrapment as a reason for filing

income tax returns should be considered

by the jury as a defense.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 5:

Section 552a. Records Maintained on

Individuals.

No agency shall disclose any record

which is contained in a system of records

by any means of communication to any

oa Ge

person, or to amother agency, « « « « e

Section 552(b)(7). Open Meetings.

Members shall not jointly conduct

or dispose of agency business other than

in accordance with this section. Except

as provided... every portion of every

meeting of an agency shall be open to

public observation. Except .. . where

the agency properly determines that such

portion or portions of its meetings or

the disclosure of such information is

likely to . -« « disclose investigatory

records compiled for law enforcement

PUrPOSES. « e

United States Code, Title 26:

Section 7201. Attempt to Evade or

Defeat Tax.

Any person who willfully attempts

in any manner to evade or defeat income

tax imposed by this Title or the payment

thereof shall, in addition to other

penalties provided by law, be guilty

of a felony and, upon conviction there-

of, shall be fined not more than $10,000,

or imprisoned not more than five years,

or both, together with the cost of pro-

secution.

Section 7203. Willful Failure to

File Return, Supply Information, or

ona

Pay Tax.

Any person required under this

Title to pay any estimated tax or tax,

or required by this Title, or by regu-

lations 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 one year, or both, to-

gether with the cost of prosecution.

STATEMENT OF THE CASE

Petitioner James Travis Buckley,

an attorney, was charged in an eight-

count indictment with violating two

sections of the Internal Revenue Code

of 1954. The indictment charged Buckley

with three counts of attempted tax eva-

sion under 26 U.S.C.A.Section 7201 and

five counts for failure to file a return

under 26 U.S.C.A. Section 7203, all

= Se

. beein ees SI

allegedly occurring during a five year

period from 1970 through 1974.

The petitioner admitted at the

opening of the trial that he had failed

to file income tax returns for the years

1970 - 1974 and to pay a tax for any

such years, but defended his failure to

file returns on the basis of his fear

of entrapment by the F.B.I. and the

Internal Revenue Service if he had filed

such returns, the petitioner contending

he had been subjected to constant sur-

veillance, observation and harrassment

by the F.B.I. due to his having defended

several alleged members of the Ku Klux

Klan in a murder trial. The evidence

during six days of trial was directed

principally towards establishing the

exact amount of the tax and the manner

of receiving and handling income and

accounting, which the government conten-

ded showed a willful intent to evade

and defeat tax. The government contended

that the basis for the felony charges

rested solely on the petitioner's con-

cealing or attempting to conceal income

from all proper and lawful officers of

the United States. The petitioner's

testimony related to good character and

a

reputation as a competent attorney, his 1974, all being misdemeanor counts;

alleged harrassment by the F.B.I. at otherwise, the Court affirmed the re-

the times the returns became due, and | maining convictions and rejected his

a lack of willfulness in his defaults, arguments concerning a right of dis-

chiefly because of his fear of prosecu- | covery and entrapment.

tion on felony tax charges which he felt

would have been pushed by the F.B.I. had : REASONS FOR GRANTING THE WRIT

he filed i t °

e filed income tax returns. He also l. THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF THIS COURT AS

TO THE PROPER INTERPRETATION OF 26

contended he was entitled to discovery

of F.B.I. investigative files concerning

him for use in his defense, since a

letter was sent from the F.B.I. to the

Internal Revenue Service which triggered Section 7201 of Title 26 makes

an investigation of his income tax case. | income tax evasion a felonye Section

7203 of Title 26 provides that failure

to file income tax returns is a mis-

demeanor. This indicates that Congress

did not intend for a person who fails

| to file income tax returns to be pun-

ished for a felony. And yet, this is

the position that the petitioner finds

OR. SPP OES 9: SUCRE SY, SUES eae | himself in in the present case. The

MDERE BAL the validity of his convic~ Court below agreed with the petitioner

that failure to file is an offense

improperly brought under Section 7203

as a misdemeanor. However, in para-

graph (14,15) of its Decision, the

Court stated as follows:

Following a six day trial in the

United States District Court for the

Southern District of Mississippi, the

jury, after two hours of deliberation,

returned a verdict of guilty on each of

the eight-counts of the indictment.

tions for failure to file in the years

in which he was also convicted for

attempted tax evasion. The Court agreed

with the petitioner on this point, but

modified the decision below by vacating

the convictions and sentences for fail- "Where one of the affirma-

ure to file in the years 1970, 1973, and tive acts of evasion relied upon by

ate ‘ies

Poe ae VOT Ore See T te Se ee ee,

the government in proving attempted

tax evasion under Section 7201 is the

failure to file an income tax returm .

This clearly indicates that the Court

below considered failure to file to be

the required affirmative act to also

constitute income tax evasion. This

is directly contrary to the Decision

rendered by this Court in Spies v.

United States of America, 317 U.S. 492

(1943) since it would automatically

make failure to file income tax returns

both a felony and a misdemeanor if the

government chooses to bring charges for

both. The lessor-offense would always

support the felony conviction under

such an interpretation of what properly

constitutes an affirmative act. This

Court stated in Spies that the difference

between willful failure to pay a tax

when due, which is made a misdemeanor,

and willful attempt to defeat and evade

one, which is made a felony, is not

easy to detect or define. The Court

further held that an affirmative act

must be one that could be construed as

an attempt to willfully mislead or to

conceal for purposes of tax evasion,

= Qu

Pitts clit cne stihl Rieti he: em)

while willful but passive neglect of

a statutory duty may only constitute

the lessor offense (a misdemeanor).

The closest that the government could come

to anyting it could call an affirmative

act in the petitioner's case was negli-

gence in keeping records, the statement

of a former close friend turned enemy

by a lawsuit that the petitioner alle-

gedly stated that he did not intend

to pay tax, and the fact that some of

his clients paid him in cash. However,

the government completely failed to

show any evidence of bad motive or evil

intent or intent to evade income taxes,

and admitted that none of the above

acts were unlawful within themselves.

This is in direct conflict with the

illustrations set forth in Spies as to

what an affirmative act would probably

consist of, such as keeping a double

set of books, making false entries or

alterations, or false invoices or docu-

ments, destruction of books and records,

etCe

At any rate, no where can it be

found in any cases that hold that a

failure to file income tax returns

constitutes a sufficient affirmative

act as held by the Court below. It was

-10-

error for tive Court below to allow

the case to go to the jury in this

manner. Apparently the jury did not

understand the distinctions or it

would not have brought convictions

that were improper. Further, it was

error for the Court of Appeals to

throw out the misdemeanor charges after

agreeing that the overlapping confic-

tions were improper, since due process

of law calls for either throwing out

the felony conviction and letting the

misdemeanor convictions for failure to

file stand, or in remanding the case to

the District Court for retrial.

This Court stated in Spies that

a defendant is entitled to a charge

which will point out the necessity for

an inference of willful attempt to de-

feat or evade tax from some proof in

the case other than that necessary to

make out the misdemeanors, and that if

the evidence fails to afford such an

inference, the defendant should be

acquited. While a lessor-offense instruc-

tion may not have been specifically

requested at the trial in the exact

words of the usual lessor-offense in-

struction, Spies requires that a defendant

=Lle

ee em te 24

is entitled to a lessor-offense in-

struction, and this Honorable Court can

deal with this under the standards of

plain error rule found in F.R.Crim.Pro.e

52(b).

The Decision of the Court of Ap-

peals that alleged affirmative acts

must always be construed in the light

most favorable to the government in

an income tax evasion case under 26

U.S.C. Section 7201 has the practical

effect of precluding the jury from

being able to conclude that a reason-

able doubt exists as to the willfulness

tests required by Spies, Supra, as well

as in U.S. vse Murdock, 290 U.S. 3895,

U.S. vse Bishop, 412 U.S. 346, and

Sansone vse U.S., 380 U.S. 343. If a

jury is told that it must consider

inferences in the light most favorable

to the government, an otherwise inno-

cent act can be called an affirmative

act and the government has then met

its burden of proof to support a felony

charge in a case of this nature. The

affirmative acts should be such that

evil motive or bad faith is obvious be-

fore they should be construed in the

light most favorable to the government

~12@

in an income tax evasion case. The

Decision of the Court below does not

require a lessor-offense instruction

in an income tax case charging both

failure to file and income tax evasion,

although Spies specifically holds in

the last two paragraphs that there must

be a vourt charge to point out to the

jury the distinction between the nec-

essary elements of tax felonies and tax

misdemeanors.

2. THE DECISION BELOW RAISES

SIGNIFICANT AND RECURRING PROBLEMS

CONCERNING FAILURE TO FILE INCOME TAX

CASES.

It is significant that each year

thousands of taxpayers either file

cheir income tax returns late or do

not file at all until they receive noti-

fication from the Internal Revenue Ser-

vice that a return has not been received.

Considering this, it is interesting to

look back over the reported income tax

cases where a defendant was convicted

on income tax evasion charges, and to

note the number of such cases which also

included convictions for failure to file

income tax returns. Out of hundreds of

evasion convictions, the cases can be

-13-

eee oe

counted on one hand that also include

failure to file, and a review of these

few cases show very extreme circum-

stances, but there is not a single one

of these cases where failure to file

was used as the affirmative act neces-

sary to support the evasion charges.

If this Decision stands, it estab-

lishes a very dangerous precedent for

use in all future cases that involve

charges of both failure to file returns

and income tax evasion. As previously

eluded to, this was not intended by

Congress, and a careful reading of Spies

clearly shows that this Court likewise

did not intend such a situation.

3. THE DECISION BELOW RAISES THE

SIGNIFICANT AND RECURRING PROBLEMS

CONCERNING FREEDOM OF INFORMATION.

The Decision of the Court of

Appeals holding that F.B.I. investigation

records are not subject to discovery by

an income tax defendant is in conflict

with the Decision of the Court of Appeals

for the 9th Circuit in U.S. vse Brown,

562 F.2d 1144, with Meade Data Central,

Ince vse U.S. Department of Air Force,

566 F.2d 242, and with the Decision of

-14-

the Court of Appeals for the 9th Circuit

in U.S. Vse Oaks, 508 F.2d 1403. The

question of whether or not petitioner

was entitled to certain documents con-

tained in F.BeI. files and requested

under 5 U.S.C. 552(a) is a novel ques-

tion in many respects and one not pre-

viously presented to this Court in its

present context. The documents were

not exempted from disclosure under 5 U.

S.C. 552(b)(7) as claimed by the govern-

ment. There was no risk to the national

security involved, nor would the inves-

tigative processes of the F.B.I. be

disrupted by the disclosure. Since the

F.BeIe sent a letter to the Internal

Revenue Service notifying them that the

petitioner had received a substantial

legal fee which might be of interest to

them, it is not unreasonable to allow

the petitioner discovery as to the in-

formation contained in the government

files, since it certainly played a

substantial role in his being charged

with a tax offense. It should further

be noted in this connection that the

petitioner had been trying to secure

these files for several months prior to

indictment in his case and that no

factual reason was ever given for failing

=~] $=

to disclose the materials and no

specific exemption was ever claimed to

justify the failure to disclose the

additional documents.

Also, it should be pointed out that

the petitioner claimed harrassment by

the agency from which the documents were

sought, and that the agency had fostered

and promoted the prosecution of his case.

If this could be shown by the documents

sought or if the documents sought could

lead to evidence tending to support that

assertion, the petitioner would have

been able to defend the case on the

basis of discriminatory prosecution.

UeSe vse Oaks, 508 F.2d. 1403 (9th Cir.

1974); U.S. vse Bourque, 541 F.2d 290,

(lst Cir. 1976).

4. THE DECISION BELOW VIOLATES

DUE PROCESS OF LAW BY REFUSING JURY

INSTRUCTIONS AS TO ENTRAPMENT.

The 5th Circuit's Opinion in

this case reflects important statutory

and policy considerations growing out

of petiticner's contention that he was

entrapped and that this was a valid

defense for failure to file income tax

returnse The Opinion held that the

-16-

entrapment Decision is in conflict | but its refusal to throw out the felony

with the 5th Circuit's own Decision convictions instead or to order a new

in U.S. vse Benavidez, 558 F.2d 308, a trial cannot be justified.

Decision which quotes the rule in

Notaro vse U.S., 363 F.2d 169 (9th Cir.

1966). Certainly entrapment existed

in the mind of the petitioner. But

in the present instance, the question

is was the conduct of the F.B.I. to- Respectfully submitted,

wards the petitioner such as to cause

him to be in apprehension, and his | C path. (GAM

testimony alone should have been ade- i C. EVERETTE BOUTWELL

Pe O- Box 4448

quate in order to allow the jury to Laurel, MS. 39440

be charged on the question of entrap- | Counsel For Petitioner

For all of the above reasons, a

Writ of Certiorari should issue to

review the Judgment and Opinion of the

5th Circuit.

ment e February 26, 1979

CONCLUSION

Finally, the correctness of the

Decision below is open to serious

question. The jury improperly con-

victed the petitioner for overlapping

offenses contrary to law, and the trial

judge erred both in allowing the case

to go to the jury for consideration on

both felony and misdemeanor charges and

in imposing sentences for both felony

and misdemeanor chargese The 5th Circuit }

recognized this to some extent by throw-

ing out the misdemeanor convictions, -18-

=} Ja

APPENDIX

Opinion of Court of Appeals

Order Denying Rehearing

Order Denying Stay of

Mandate Pending Petition

For Certiorari

PAGE

A-45

A-47

~oee

ce eS 1 mt - _

UNITED STATES of America,

Plaintiff-Appellee,

Ve

James Travis BUCKLEY,

Defendant~-Appellant.

No. 77-5449.

United States Court of Appeals,

Fifth Circuit.

Dec. 18, 1978.

Defendant was convicted before the

United States District Court for the

Southern District of Mississippi, Walcer

L. Nixon, Jr., Je, of attempted tax eva-

sion and failure to file a return, and

he appealed. The Court of Appeals, James

C. Hill, Circuit Judge, held that: (1)

defendant was not entitled to entrapment

instruction where criminal intent did not

originate with the Government but formed

within defendant's own mind, in response

to alleged plot by government agency to

see him incarcerated; (2) even if defen-

dant's Sixth Amendment rights were in-

A-1

fringed by allowing prosecution witness

to invoke attorney-client privilege to

prevent his three attorneys from testi-

fying, defendant was not prejudiced where

subject information was elicited from

other sources; (3) as regards same tax

years, offense of failure to file was a

lesser included offense in attempted tax

evasion, and (4) defendant was not enti-

tled to discovery of FBI investigative

files.

Affirmed in part; modified in part.

le. Criminal Law - 739.1(1)

Issue of entrapment is for jury, as-

suming it is properly raised.

2. Criminal Law - 330

Defendant has initial burden of go-

ing forward with evidence on entrapment

defense and must produce some evidence,

but more than a scintilla, raising the

defense.

A-2

Si iat ects to cores i en

3. Criminal Law - 569

Once defendant has met his burden of

going forward with evidence on entrapment

defense the prosecution must ultimately

prove beyond a reasonable doubt that de-

fendant was not entrapped.

4. Criminal Law - 339

If defendant fails to carry his bur-

den of going forward with evidence on

entrapment defense, he is not entitled

to have jury consider such defense.

5. Criminal Law - 37(6)

Defendant was not entrapped into

committing offenses of attempted tax eva-

sion and failure to file where the crimi-

nal intent did not originate with the

Government but, instead, formed within

defendant's own mind, in response to

alleged plot by government agency to see

him incarcerated. 26 U.S.C.A. (IRC.

1954) Sections 7201, 7203.

A-3

6. Witnesses - 198(1)

Purpose of attorney-client privilege

is to encourage free-flowing communica-

tion and candid disclosure so vitally

necessary to effective representation by

counsel.

7. Witnesses - 198(1)

Invocation of attorney-client privi-

lege does not depend on a showing of

"sood faith" or "proper motive."

8. Witnesses - 198(1)

Where testimony sought to be elici-

ted was properly within scope of attor-

ney-client privilege, client was entitled

to invoke such privilege notwithstanding

that he sought to do so because it would

have been inconvenient for counsel to

testify rather than because of a specific

concern for confidentiality.

9. Criminal Law - 1170(2)

Even if client's Sixth Amendment

rights were infringed when prosecution

A-4

witness invoked attorney-client privi-

lege and prevented his three attorneys

from testifying defendant was not pre ju-

diced where he was able to otherwise

place before jury the very same evidence

sought to be adduced from the witness

‘and his attorneys. U.S.C.A.Const.Amend.6.

10. Internal Revenue - 2408

To sustain a conviction for attempt-

ed tax evasion the Government must prove

existence of a tax deficiency, an affir-

mative act constituting an evasion or

attempted evasion of the tax, and will-

fulness. 26 U.S.C.A. (I.R.C.1954)

Section 7201.

11. Internal Revenue - 2406

Elements of offense of failure to

file a tax return are proof of failure

to file and willfulness in doing so.

26 UeSeCeAe (I1eReC21954) Section 7203.

12. Internal Revenue - 2406, 2408

A-5

"Willfulness" within meaning of

statutes defining offenses of failure

to file a tax return and attempted tax

evasion means the intentional violation

of a known legal duty. 26 U.S.C.A.

(I.R.C.1954) Sections 7201, 7203.

See publication Words and Phrases

for other judicial constructions

and definitions.

13. Federal Courts - 800

In reviewing sufficiency of the evi-

dence claimed, the Court of Appeals must

view the trial evidence in the Light

most favorable to the Government, as it

does not have the license to weigh the

evidence or assess the credibility of the

witnesses.

14. Indictment and Information - 191

Where one of the affirmative acts of

evasion relied on by the Government in

proving attempted tax evasion is failure

A-6

———

os

to file income tax return, failure to

file is a lesser included offense. 26

U.S.C.A-~ (I.R.C.1954) Sections 7201, 7203.

15. Criminal Law - 199, 1184(4)

Where charges of attempted tax eva-

sion and failure to file return invol-

ved the same tax years, the latter was

a lesser included offense of the former

and defendant could not be punished for

both but only for the greater and, hence,

conviction and sentence for the lesser

offense were required to be vacated.

26 UsS.CeA. (1.R.C.1954) Sections 7201,

7203.

16. Criminal Law - 199, 1184(4)

Where one offense is included in an-

other, they cannot support a separate

conviction and sentence and, thus, where

defendant is improperly convicted for a

lesser included offense the proper reme-

dy is to vacate both the conviction and

sentence on the included offense, leaving

A-7

the conviction of sentence on the greater

offense intact.

_17. Criminal Law - 1181

Where it was obvious that improper

convictions for lesser included offenses

did not lead trial court to impose a

harsher sentence for the greater offense

than he would have in the absence of such

convictions, remand for resentencing was

not required.

18. Criminal Law - 627.8(4)

Requiring material sought for dis-

covery to be submitted to the court for

an in camera inspection is a practice

which is both reasonable and protective

of defendant's rights, especially where

request involves material the disclosure

of which is arguably not in the public

interest.

19. Records - 14

Federal Bureau of Investigation files

concerning criminal defendant were exempt

A-8

ee ten ee

from disclosure under Freedom of Infor-

mation Act. 5 U.S.C.Ae Section 552(b)(7).

20. Criminal Law - 627.8(1)

It is incumbent on defendant to make

a prima facie showing of materials in

order to obtain discovery. Fed. Rules

Crim. Proc. rule 16(a)(1)(C), 18 U.S.C.A~

21. Records - 14

Although Freedom of Information Act

provides an independent basis for ob-

taining information potentially useful

in a criminal trial, it was not intended

as a device to delay ongoing litigation

or enlarge scope of discovery beyond that

already provided by Federal Rules of

Criminal Procedure. 5 U.S.C.A. Section

552(a); Fed. Rules Crim. Proc. rule

16(a)(1)(C), 18 U.S.C.A.

Appeal from the United States Dis-

trict Court for the Southern District of

Mississippi.

A-9

Before RONEY, TJOFLAT and HILL,

Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellant James Travis veeinaa’ & an

attorney, was charged in an eight-count

indictment with violating two sections

of the Internal Revenue Code of 1954.

The indictment charged Buckley with three

counts of attempted tax evasion under 26

U.S.C.A. Section 7201 and five counts for

failure to file a return under 26 U.S.C.A.

Section 7203, all allegedly occurring

during a five-year period from 1970 through

1974. Following a six-day trial in the

United States District Court for the

Southern District of Mississippi, the jury,

after two hours of deliberation, returned

a verdict of guilty on each of the eight

counts of the indictment. On appeal

Buckley challenges, inter alia, the vali-

dity of his convictions for failure to

file in the years in which he was also

A-10

4 Sa eeee Sas

convicted for attempted tax evasion.

Because we agree with appellant on this

point, we modify the decision below by

vacating the convictions and sentences

for failure to file in 1970, 1973 and

1974; otherwise, we affirm.

I. Entrapment

Buckley raised an "entrapment" de-

fense at trial consisting of testimony

by him and his friends to the effect that

the F.B.I. was engaged in a plot to see

him "behind bars." Buckley asserted that

he had incurred the ire of the F.B.I. by

representing several of the criminal de-

fendants in a trial arising out of the

fire bombing death of Vernon Dahmer, the

Hattiesburg, Mississippi, civil rights

leader, and by his representation of

numerous other defendants in cases where

he had had occasion to cross-examine

F.BeI. agents. Appellant's friends

testified that they had overheard remarks

A-11

made by F.B.eI. agents to Buckley stating

that "we will get you one way or the

other." Buckley himself testified that

an I.R.S. agent had visited him in 1966

in connection with an audit of his return

and warned him that the F.B.I. was "out

to get him" regardless of whether he

filed or not. Numerous acts of harass-

ment were also alleged. As a result of

his conversation with the I.R.S. agent

and his experiences with the F.B.I.,

Buckley testified that he failed to file

income tax returns because he was afraid

that if he were to file he would be in-

dicted with fabricated charges of filing

fraudulent returns, a felony. ! Choosing

the lesser of two evils, then, he elected

1. Although Buckley's testimony relating

to his entrapment defense at trial

consisted solely of his statement

that he was “afraid"™ to file a return,

the reasonable inference to be drawn

A-12

from that testimony and the argu-

ments in his brief is that he did

not file during the years in ques-

tion because he was afraid that the

F.BeI. would fabricate information

to charge him with filing fraudulent

returns, should he choose to file.

not to file, knowing it to be punishable

only as a misdemeanor. Arguing that the

above evidence was sufficient to raise

the issue of entrapment, appellant now

contends that the trial court erred in

refusing to instruct the jury on the de-

fense of entrapment.

[1-4] Appellant is certainly correct

in asserting that the issue of entrap-

ment is for the jury to decide, assuming

it is properly raised. United States v.

Benavidez, 558 F.2d 308, 310 (5th Cir.

1977); United States v. Harrell, 436

F.2d 606, 612 (5th Cir. 1970); Pierce

A-13

ve United States, 414 F.2d 163 (Sth Cir.),

cert. denied, 396 U.S. 960, 90 S.Ct. 435,

24 LeEd.2d 425 (1969). Nonetheless, in

order to raise the issue, the initial

burden of going forward with the evidence

lies with the defendant; he must produce

"some evidence, but more than a scintil-

la," raising the defense. United States

ve Groessel, 440 F.2d 602, 606 (5th Cir.),

certe denied, 403 U.S. 933, 91 S.Ct 2263,

29 LeEd.2d 713 (1971). See also United

States ve. Benavidez, 558 F.2d 308 (Sth

Cir. 1977); United States v. Harper,

505 Fe2d 924 (5th Cire 1974). Once the

defendant has discharged this obligation,

the prosecution must ultimately prove

beyond a reasonable doubt that the de-

fendant was not entrapped into commit-

ting the offense. United States v.

Benavidez, 558 F.2d 308, 310 (Sth Cir.

1977); United States v. Harrell, 436

Fe2d 606, 612 (Sth Cir. 1970). If the

A-14

et ADELE Ae He oe

defendant fails to carry his burden of

going forward with the evidence, however,

he is not entitled to have the jury con-

sider the defense of entrapment. United

States ve Harper, 505 Fe2d 924, 926

(5th Cir. 1974); United States v.

Groessel, 440 F.2d 602, 606 (5th Cir.),

certe denied, 403 U.S. 933, 91 S.Ct.

2263, 29 LeEd.2d 713 (1971).

Entrapment occurs "when the criminal

design originates with the officials of

the government, and they implant in the

mind of an innocent person the disposi-

tion to commit the alleged offense and

induce its commission in order that they

may prosecute." Sorrells ve United

States, 287 U.S. 435, 442, 53 S.Ct. 210,

213, 77 LeEd. 413 (1932). See also

United States v. Russell, 411 U.S. 423,

434-35, 93 S.Ct. 1637, 3€ LeEd.2d 366

(1973); Sherman v. United States, 356

U. S. 369, 372, 78 SeCt. 819, 2 L.Ed.2d

A-15

848 (1958); United States v. Costello, information concerning Buckley

483 F.2d 1366, 1367 (Sth Cir. 1973);

to Internal Revenue simply as

United States ve. Groessel, 440 F.2d 602, a routine part of their investi-

605 (5th Cire), cert. denied, 403 U.S. gation into a threat on Richard

933, 91 S.Ct. 2263, 29 LeEd.2d 713 (1971). Castle's life. The F.B.I.

Although Buckley's story was vigorously claimed that this was the only

denied by the government at trial, we cee ta See ee ee

nonetheless accept it as true for the with the Buckley case.

purposes of deciding this issue. And

even assuming Buckley's allegations to [5] It is clear from the evidence that

be true, the evidence does not raise the che craminal intent oh net originate

defense of entrapment. with the government, but instead formed

within the defendant's own mind, in re-

2. The government adduced evi- | sponse to an alleged plot by the F.B.I.

dence at trial indicating to see him incarcerated. As Buckley

that Buckley's returns were | testified:

never audited in 1966, thus | In 1966 in my office in Bay Springs,

casting doubt on his assertion Mississippi an agent of the Internal

that he was visited by an Revenue visited me and audited my

Internal Revenue Agent. The P books and papers and accounts and

government also presented | then later came to my house « e« e e«

evidence to the effect that | I don't know the man's name and I

the F.B.I. had forwarded : A-17

A-16

oe eS

don't know if I knew it then, but

there were actually two different ones

visited me at different time[s], but

one of them told me then and told me

at my home later, said, that the

Federal Bureau of Investigation is

after you and he gave me this and

told me it was a friendly advice and

a friendly warning, he said, "they

will get you one way or the other

and I am telling you this as a matter

of trying to help you and trying to

advise you to be on the alert.' And

he said, 'I know them well enough to

know that it does not make any diff-

erence whether you file or not, if

they can get you," but he said, 'I'm

not telling you not to file and I'm

not telling you to file, but you know

the penalties for not filing,' and he

said, 'I'm under an obligation to

advise yon that the law requires that

you file.'

A-18

As the testimony thus shows, there was

no attempt by any law enforcement offi-

cial to induce or entreat Buckley to

commit the offenses for which he was

charged; rather, the decision not to file

returns for the years 1970 through 1974

was one conceived entirely by Buckley

himself, in response to an alleged

threat by the F.B.I. Whether that

threat is real or fancied is immaterial

to our decision here. The course of

action pursued by Buckley was the result

of a voluntary and informed decision to

violate the law, a far cry from the

genuine entrapment situation where an

otherwise innocent and law abiding citi-

zen falls prey to government seduction

and is persuaded to commit a crime. If

Buckley truly believed the F.B.I. was

“out to get him," then he should have

scrupulously obeyed the law, remaining

confident that he would be cleared of

A-19

any contrived charges. Because the

evidence presented by Buckley failed to

raise the defense of entrapment, it was

not error for the trial judge to refuse

to charge on entrapment.

II. Attorney-Client Privilege

Buckley next asserts that it was

error to allow prosecution witness Castle

to invoke the attorney-client privilege

and prevent his three attorneys from

testifying. Richard Castle had been a

close friend of Buckley's during the

years in question and supplied very dama-

ging testimony enumerating the various

affirmative acts of evasion practiced by

Buckley. In an effort to impeach Castle's

credibility, Buckley sought to call to

testify three attorneys who represented

Castle in a civil action brought by

Buckley to collect attorney's fees.

Buckley had represented Castle in a per-

sonal injury suit in which a $100,000

A-20

settlement had been procured, but the two

were unable to agree on Buckley's fee,

so Buckley brought an action to recover

his portion of the settlement. By way

of offer of proof, Buckley disclosed that

he intended to show that Castle was

biased against him because of their dis-

agreement over the amount of the fee;

furthermore, Buckley wished to prove that

Castle had lied to his attorneys about

the settlement offer he had originally

received in the personal injury case be-

fore he retained Buckley. Castle invoked

the privilege and prevented his attorneys

from testifying, asserting that it would

be inconvenient for them to have to do so.

[6-8] Appellant concedes that the

testimony sought to be elicited from Cas-

tle's attorneys was properly within the

scope of the attorney-client privilege.

Nonetheless, he argues that the privi-

lege may not be invoked solely for rea-

A-21

sons of convenience, but must be invoked

out of a concern for confidentiality.

While appellant's argument may have

some superficial appeal, it fails to

appreciate the pragmatic considerations

underlying the implementation of the

policy behind the attorney-client privi-

lege, which is to encourage the free-

flowing communication and candid disclo-

sure so vitally necessary to effective

representation by counsel. This policy

cannot be achieved unless a client is

free to communicate with his attorney

"without fear of consequences or the

apprehension of disclosure." Modern

Woodmen of America v. Watkins, 132 F.2d

352, 354 (Sth Cir. 1942). See Fisher v.

United States, 425 U.S. 391, 403, 96

S.Ct. 1569, 48 L.Ed.2d 39 (1976); Baird

ve Koerner, 279 F.2d 623, 629 (9th Cir.

1960); Schwimmer v. United States, 232

F.2d 855, 863 (8th Cir. 1956); 8 Wigmore

A-22

ae ne

on Evidence Section 2291 (McNaughton

rev. 1961). To condition the invocation

of the privilege upon a showing that it

was claimed out of considerations of con-

fidentiality would subject a client to

fear of subsequent disclosure and cause

him to question the wisdom of telling

all to his attorney. Doubting his abili-

ty to prove subsequently that the present

confidence entrusted in his attorney is

prompted by the assurance that he can

later claim the privilege, a client

might hesitate to be completely open

with his attorney and the policy behind

the privilege would be frustrated. Just

as we do not question the motives of a

litigant who wishes to invoke an exclu-

sionary rule of evidence, we should like-

wise not question the motives of a client

who wishes to invoke the privilege.

Predicating the invocation of the privi-

lege upon a showing of "good faith" or

A-23

"proper motive" would remove the protec-

tive shield of the privilege, and it

would cease to act as an inducement to

frank and unrestricted communications

between attorney and client.

Appellant further contends that

Castle's claim of the privilege denied

him his Sixth Amendment right to confront

witnesses against him and have compulsory

process run in his favor. As we have

recognized above, there is a valid in-

terest to be served by the existence of

the attorney-client privilege. Buckley

suggests, however, that the policy be-

hind the privilege is subordinate to

his Sixth Amendment rights in this case.

Davis v. Alaska, 415 U.S. 308, 94 S.Ct.

1105, 39 L.Ed.2d 347 (1974), relied upon

by appellant, does stand for the propo-

sition that the Sixth Amendment rights

of a criminal defendant may, in some

instances, be paramount to certain

A-24

governmental interests. In Davis, for

example, the state's interest in pro-

tecting juvenile offenders, implemented

by an evidentiary rule prohibiting the

disclosure of their court records in

subsequent judicial proceedings, was

outweighed by the defendant's right to

cross-examine a prosecution witness

effectively. Similarly, other decisions

by the Supreme Court have resolved the

conflict between the Sixth Amendment

and various governmental interests in

favor of the defendant's Sixth Amend-

ment rights. See, e. ge, Chambers v.

Mississippi, 410 U.S. 284, 93 S.Ct.

1038, 35 LeEd.2d 297 (1973); United

States v. Nixon, 418 U.S. 683 (1974).

[9] We need not reach this issue,

however, because even assuming arguen-

do that appellant's Sixth Amendment

rights were infringed, we find on the

basis of this record that Buckley has

A-25

suffered no prejudice. Buckley asserts

that his Sixth Amendment rights were

violated when he was prevented from ques-

tioning Castle and his three attorneys

on matters within the scope of the privi-

lege. Buckley wished to prove that

Castle was biased against him because of

their disagreement over the amount of

the fee owed by Castle to Buckley and

that Castle had lied to his attorneys

about the amount of the settlement offer

he had received in the personal injury

case before he retained Buckley. A re-

view of the record reveals that Buckley

was able to place this very same evidence

before the jury. Castle himself readily

admitted on cross-examination that he

had disagreed with Buckley over the

amount of his fee. In addition, Judge

George D. Grubbs, who presided over the

pre-trial proceedings in Buckley's state

court suit against Castle for the fee,

A-26

freely testified that Castle had lied to

his attorneys concerning the amount of

the settlement offered to him. With the

essence of the desired testimony before

the jury, it is obvious that Buckley was

in no way prejudiced by the invocation

of the privilege. See United States v.

Ashley, 555 F.2d 462, 465 (5th Cir. 1977).

III. Sufficiency of the Evidence

[10-13] Buckley challenges the suffi-

ciency of the evidence to support his

convictions under both Section 7201 and

Section 7203. To sustain a conviction

under Section 7201 the government must

prove the existence of a tax deficiency,

an affirmative act constituting an eva-

sion or attempted evasion of the tax,

and willfulness. Sansone v. United

States, 380 U.S. 343, 85 S.Ct . 1004,

13 LeEd.2d 882 (1965); Spies v. United

States, 317 U.S. 492, 63 S.Ct. 364, 87

LeEd. 418 (1943). The elements of an

A-27

offense under Section 7203 involve

proof of failure to file and willfulness

in doing soe Sansone v. United States,

380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d

882 (1965). Willfulness, within the

meaning of both sections, is simply the

"intentional violation of a known legal

duty."" United States v. Pomponio, 429

Ue-Se- 10, 12, 97 S.Ct 22, 23, 50 L.Ed.2d

(1976)(per curiam). In reviewing the

evidence presented at trial, we must

view it in a light most favorable to the

government, for we do not have the

license to weigh the evidence or assess

the credibility of witnesses. Glasser

ve United States, 315 U.S. 60, 62 S.Ct.

457, 86 L.Ed. 680 (1942); United States

ve Burrell, 505 F.2d 904, 907 (5th Cir.

1974). To reverse a conviction on the

ground of insufficient evidence we must

find that "a reasonably minded jury must

have [had] a reasonable doubt as to the

A-28

et Oe eae

existence of any of the essential ele-

ments of the crime charged."" United

States v. Stephenson, 474 F.2d 1353, 1355

(Sth Cir. 1973). We fail to reach such

a conclusion, and from our review of the

record, find the evidence more than

sufficient.

IV. Validity of the Section

7203 Convictions

Buckley was convicted for attempted

evasion of taxes (Section 7201) in 1970,

1973 and 1974. He was convicted for

failure to file (Section 7203) in these

same years, as well as in 1971 and 1972.

As shown by the diagram below, upon the

Section 7201 convictions for 1973 and

1974, concurrent one-year prison terms

were imposed; for the Section 7203 con-

victions for 1970, 1971 and 1973, concur-

rent six-month prison terms were im-

posed to run consecutively to the one-

year terms; finally, Buckley received

concurrent suspended sentences for the

A-29

3 ;

Section 7201 count in 1970 and the Sec- argumente” Where one of the affirma-

tion 7203 counts in 1972 and 1974, but tive acts of evasion relied upon by the

with concurrent one-year probation terms government in proving attempted tax eva-

to be served upon release from prison. sion under Section 7201 is the failure

Section 7201 to file an income tax return, failure to

file is a lesser included offense, and

1970 - Suspended sentence with probation

1971 - Congress did not intend for the defendant

1972 - to be punished for both offenses. United

1973 - One Year States ve Newman, 468 F.2d 791, 796 (5th

1974 - One Year Cir. 1972), cert. denied, 411 U.S. 905,

Section 7203 93 S.Ct. 1527, 36 LeEd.2d 194 (1973).

1970 - Six Months

3. Two of the contentions made by

1971 - Six Months

1972 - Sentence suspended with probation the government in their brief

1973 - Six Months were abandoned at oral argu-

1974 - Sentence suspended with probation ment: first, the government

conceded that probation was

[14,15] Appellant argues, and we agree, "punishment'"' for the purposes

that failure to file is a lesser offense of the Double Jeopardy Clause's

included in a Section 7201 conviction protection against multiple

based on the facts of this case. The punishments for the same of

government conceded as much at oral fense; second, the government

A-30 | A-31

conceded that they had mis-

applied the test of Block-

burger ve United States, 284

U.S. 299, 52 S.Ct. 180, 76

LeEd. 306 (1932), for deter-

mining whether two offenses

were the "same'"' for double

jeopardy purposes, and there-

fore, that failure to file was

a lesser included offense of

attempted tax evasion on the

facts of this case.

[16] Although the government con-

cedes that punishment may not be impo-

sed under both statutes, it nonetheless

argues that the convictions for failure

to file should stand for the years 1970,

1973 and 1974, reasoning that a convic-

tion without a sentence imposed there-

4

upon is harmless.” We disagree. Where

4. The very fact that the

A-32

a ee es

government strenuously calls

for retention of the conviction

belies their assertion that it

is "harmless",

one offense is included in another, it

Cannot support a separate conviction

and sentence. Jeffers v. United States,

432 UeSe 137, 97 SeCte. 2207, 53 LeEd.2d

168 (1977); Brown ve Ohio, 432 U.S. 161,

97 S.Ct. 2221, 53 LeEd.2d 187 (1977);

United States v. York, 578 F.2d 1036,

1040 (5th Cir. 1978). Thus, in situations

such as the present one, where a defen-

dant is improperly convicted for a lesser

included offense, the proper remedy is

to vacate both the conviction and sen-

tence on the included offense, leaving

the conviction and sentence on the greater

offense intact. United States v.

Elutsky, 487 F.2d 832, 845-46 n.18

(2d Cir. 1973), certe denied, 416 U.S.

A-33

937, 94 S.Cte 1937, 40 LeEd.2d 287

(1974); United States v. Rosenthal,

454 F.2d 1252, 1255-56 n.e2 (2d Cir.),

cert. denied, 406 U.S. 931, 92 S.Ct.

1801, 32 L.Ed.2d 134 (1972); United

States ve Newman, 468 F.2d 791, 796

(5th Cir. 1972), cert. denied, 411

UeS. 905, 93 S.Ct. 1527, 36 LeEd.2d

(1973).

The government emphasizes that in

Jeffers the conviction on the lesser

included offense was allowed to stand, >

432 U.S. at 148, 97 S.Ct. 2207, and

urges a similar result here. We find

the government's reliance on Jeffers

to be misplaced. In Jeffers the Court

dealt with the contention by the defen-

dant that 21 U.S.C. Section 846, pro-

hibiting conspiracies to commit drug-

5- In Jeffers v. United States,

432 U.S. L37, 155 Ne25;, 97

A-34

S.Ct 2207, 53 LeEd.2d 168

(1977), the Court pointed to

United States v. Gaddis, 424

U.S. 544, 549 n.12, 96 S.Ct.

1023, 47 L.sEd.2d 222 (1976),

as involving a situation where

both the conviction and sentence

on the lesser included offense

were vacated,

related offenses, was a lesser included

offense of 21 U.S.C. Section 848, which

prohibits conducting a continuing cri-

minal enterprise to violate the drug

laws. Arguing that the two offenses

were the same for double jeopardy pur-

poses, Jeffers maintained that his trial

and conviction for violating 21 U.S.C.

Section 848, occurring subsequent to

his conviction under 21 U.S.C. Section

846, was invalid because it placed him

twice in jeopardy for the same offense

A-35

in contravention of the Double Jeopardy

Clause of the Fifth Amendment. Assuming

arguendo that Section 846 was a lesser

included offense, the Court nonetheless

concluded that Jeffers had waived his

double jeopardy rights by persuading

the trial court to order separate trials

and by failing to raise any double jeo-

pardy objections at the time. Having

concluded that Jeffers could not object

to being separately tried and convicted

for the two offenses, the Court then

turned to the question of whether Congress

had intended to allow cumulative punish-

ment for those defendants whose conduct

violates both statutes. The Court con-

cluded that Congress did not so intend,

and accordingly reduced the fines given

Jeffers to the maximum amount allowable

under Section 848.

In contrast, we deal here with two

offenses, one of which is admittedly

A-36

included within the other, and a defen-

dant who is neither responsible for his

multiple convictions nor has exhibited

any conduct resembling a waiver of his

rights. Jeffers could not be heard to

complain of successive prosecutions be-

cause he had in fact caused them; Buck-

ley, on the other hand, has done nothing

to estop him from complaining of his

multiple convictions. Jeffers turned

on a finding of waiver; we find no waiver

in this case.

(17] Therefore, we modify the judg-

ment below by vacating the convictions

and sentences for failure to file

(counts two, six and eight) in the years

1970, 1973 and 1974. Because it is

obvious that the convictions on the

Section 7203 counts did not lead the

trial court to impose a harsher sentence

on the Section 7201 counts than he would

have in the absence of such convictions,

A-37

there is no need to remand for resen-

tencinge See United States v. Slutsky,

487 F.2d 832, 845-46 n.18 (2d Cir. 1973),

cert. denied, 416 U.S. 937, 94 S.Ct.

1937, 40 LeEd.2d 287 (1974); United

States ve Rosenthal, 454 F.2d 1252,

1256 (2d Cire), certe denied 406 U.S.

931, 92 S.Ct. 1801, 32 L.Ed.2d 134

(1972).

Ve Disclosure of the F.B.I. Files

[18,19] As a final point of error,

Buckley argues that the trial court com-

mitted reversible error by refusing to

order discovery of the F.B.I. investi-

gative files concerning him. Buckley

contends that he is entitled to dis-

covery by virtue of the Supreme Court's

decision in Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

in which the Court held that the suppres-

sion of exculpatory evidence by the pro-

secution in response to the request of

A-38

an accused violates due process when-

ever that evidence is material to either

guilt or punishment. In response to

Buckley's motion for the discovery of

these materials, the trial judge ordered

the F.B.I. to submit the files to the

prosecution for review and to the court

for an in camera inspectione Both the

prosecution and the trial court con-

cluded that the files contained no excul-

patory materials within the meaning of

Brady. Having examined these files,

sealed by the district court for possible

review on appeal, we agree. Requiring

materials sought for discovery to be

submitted to the court for an in camera

inspection is a practice which is both

reasonable and protective of the defen-

dant's rights, and, we might add, one

which has received a measure of approval

by the Supreme Court. See United States

ve Agurs, 427 U.S. 97, 106, 96 S.Ct.

A-39

2392, 49 LeEd.2d 342 (1976). Moreover,

in areas where, as in the present case,

the request involves materials the dis-

closure of which is arguably not in the

public interest, ©

this Court has sanc-

tioned the use of in camera inspections

to resolve the conflicting demands of the

defendant and the government. United

States ve Brown, 539 F.2d 467, 270 (Sth

Cire 1976); see also United States v.

Johnson, 577 F.2d 1304, 1309-10 (5th

Cire 1978). Thus, we conclude that

Buckley's rights were adequately pro-

tected by the procedure employed by the

district court and we concur in its

conclusion that the F.B.I. files contain

no information that would have been

helpful to Buckley's defense.

6. Aside from the obvious security

risks created by the disclosure

of the F.B.I. files, such

A-40

A eee NR ee ee

information is also exempted

from disclosure by the Freedom

of Information Act. 5 U.S.C.A.

Section 552(b)(7).

[20] Buckley also contends that there

‘are two independent statutory provisions

which entitle him to the requested infor-

mation "as a matter of law." The first

of these, Fed.R.Crim.P. 16(a)(1)(C),

conditions the disclosure of information

upon a showing by the defendant that the

documents sought are "material to the

preparation of his defense." Contrary

to Buckley's assertion that Rule 16(a)

(1)(C) "mandate[s] the production of

such documents upon request," it is

incumbent upon a defendant to make a

prima facie showing of "materiality"

in order to obtain discovery:

Materiality means more than that

the evidence in question bears

A-41

some abstract logical relation-

ship to the issues in the case...

There must be some indication

that the pretrial disclosure of

the disputed evidence would have

enabled the defendant signifi-

cantly to alter the quantum of

proof in his favor.

United States ve Ross, 51l F.2d 757,

762-63 (Sth Cire), cert. denied, 423

U.S. 836, 96 S.Ct. 62, 46 LeEd.2d 54

(1975). Buckley has made no such showing

heree Alternatively, even if we were to

assume that a showing of materiality

had been made, the information sought,

by Buckley's own admission, related only

to his entrapment defense, which as we

have already decided, was not a "defense"

in this case.

[21] Similarly, Buckley's reliance

on the disclosure provisions of the

Freedom of Information Act (FOIA), 5

A-42

UeS.C.A. Section 552(a)’, does not

support his claim of entitlement to

the files. Although the FOIA provides

an independent basis for obtaining in-

formation potentially useful in a cri-

minal trial, it "was not intended as a

device to delay ongoing litigation or

to enlarge the scope of discovery be-

yond that already provided by the Fed-

eral Rules of Criminal Procedure."

United States v. Murdock, 548 F.2d

599, 602 (5th Cir. 1977).

VI. Conclusion

We affirm the judgment of the dis-

trict court but modify it by vacating

the convictions and sentences for fail-

ure to file in 1970, 1973 and 1974

(counts two, six and eight).

AFFIRMED in part; MODIFIED in part.

7. The F.BeI. files were the sub-

ject of a separate civil action

A-43

brought by Buckley prior to

trial under the Freedom of

Information Act.

A-44

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

January 29, 1979

Edward We Wadsworth, Clerk

Tel 504-589-6514

600 Camp Street

New Orleans, LA 70130

TO ALL PARTIES LISTED BELOW:

NO. 77-5449 Nid U.SeAe Ve

JAMES TRAVIS BUCKLEY

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition( )

for rehearing, and no member of the

panel nor Judge in regular active ser-

vice on the Court having requested that

the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16)

the petition( ) for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of Appellate

A-45

UNITED STATES COURT OF APPEALS

Procedure for issuance and stay of the

FIFTH CIRCUIT

mandate.

OFFICE OF THE CLERK

Very truly yours,

. February 7, 1979

EDWARD W. WADSWORTH, .

Clerk Edward We Wadsworth,

Clerk

600 Camp Street ;

New Orleans, LA 70130

BY_Sally Hayward Telephone 504-589-6514

Deputy Clerk

; TO: Mr. Harvey Ge Henderson, Clerk

cc: Mr. Travis Buckley U. Se District Court

| P. O. Box 769

Mre C. Everette Boutwell Jackson, MS. 39205

Mr. Robert E. Hauberg NO. 77-5449 - UNITED STATES OF

AMERICA V. JAMES

Mr. Me Carr Ferguson TRAVIS BUCKLEY

Messrs. Gilbert E. Andrews (Dist. Ct. Noe CR J76 54 (N) )

Robert Ee Lindsay Dear Sir:

Charles E. Brookhart (XX) Enclosed is a certified copy of the

Ms. Mary Le Jennings judgment of this Court in the above case

issued as and for the mandate.

( ) Enclosed is a certified copy of

the Rule 21 Decision in the above case

issued as and for the mandate.

( ) Having received from the Clerk of

the Supreme Court a copy of the order

A-46 of that court denying certiorari, I

A-47

enclose a certified copy of the judg- Enc. (LETTER ONLY)

ment of this Court in the above case, cc: Mr. Travis Buckley

issued as and for the mandate. Mr. Robert E Hauberg

( ) We have received a certified copy E Mr. M. Carr Ferguson

of an order of the Supreme Court denying Mre C. Everette Boutwell

certiorari in the above cause. This

Court's judgment as mandate having

already been issued to your office, no

further order will be forthcoming.

Enclosed herewith are the following

additional documents:

(XXX) Copy of the Court's opinion.

( ) Original record on appeal

or review.) TO BE RETURNED

( ) Original exhibits.) LATER

( +) Bill of Costs approved

by this Court.

Very truly yours,

EDWARD We. WADSWORTH, Clerk

BY: Brenda Hauck |

Deputy Clerk

A-48 A-49

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FILED

FEB 7 1979

EDWARD W.

WADSWORTH

NO. 77-5449 -~- Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES TRAVIS BUCKLEY,

Defendant~-Appellant.

Appeal from the United States District

Court for the Southern District

of Mississippi

ORDE R:

(LF The motion of APPELLANT

for stay of the issuance of the

mandate pending petition for writ

of certiorari is DENIED. See

Fifth Circuit Local Rule 15, as

amended January 1l, 1972.

A-50

(

) The mot ion of

for stay of the issuance of the man-

date pending petition for writ of

certiorari is GRANTED to and

including P

the stay to continue in force until

the final disposition of the case

by the Supreme Court, provided that

within the period above mentioned

there shall be filed with the Clerk

of this Court the certificate of

the Clerk of the Supreme Court

that the certiorari petition has

been filed. The Clerk shall issue

the mandate upon the filing of a

copy of an order of the Supreme

Court denying the writ, or upon

the expiration of the stay granted

herein, unless the above mentioned

certificate shall be filed with

the clerk of this Court within

that time.

A-51

(

) The motion for a further stay of

the issuance of the mandate is

GRANTED to and including :

under the same conditions as set

forth in the preceding paragraph.

) IT IS ORDERED that the motion for

a further stay of the issuance

of the mandate is DENIED.

James C. Hill

UNITED STATES CIRCUIT JUDGE

A-52

le ee