Opposition — Sawyer v. United States

No. 79-1059 ‘s

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-~ Side at, Jit.

In the Supreme Court of the United States

OCTOBER TERM, 1979

RAYMOND SAWYER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

WaADE H. McCreE, JR.

~~ Solicitor General

Department of Justice

Washington, D.C. 20530

_ CLERK

at

Gn the Supreme Court of the Hnited States

OcTOBER TERM, 1979

No. 79-1059

RAYMOND SAWYER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner seeks review of his conviction for failure to

file income tax returns, contending that the trial court

erred in admitting a government agent’s report into

evidence and in instructing the jury with respect to

willfulness.

Following a jury trial in the United States District

Court for the Northern District of Illinois, petitioner was

convicted on two counts of failing to file timely income

tax returns: for 1971 and 1972, in violation of 26 U.S.C.

7203. The trial court sentenced him to concurrent one-

year terms of imprisonment on each count. He was also

fined $10,000 on the first count. The court of appeals

affirmed (Pet. App. 2a-8a).

(1)

The pertinent facts may be summarized as follows:

Petitioner is an accountant who had gross income of

$63,918.84 in 1971 and $73,955 in 1972 (Govt. Ex. S-2;

Tr. 43-44, 83).' He did not file timely income tax returns

for those years and sought to excuse his actions by

testifying that his failure to file was due “to his diminished

capacity, stemming from a greatly impaired physical

condition and his resultant deep-seated apprehension of

impending death” (Pet. 5). This incapacitation allegedly

ended in 1974 when petitioner’s condition was diagnosed

as a kidney stone by Drs. Sparberg and Lewis (Pet. 7-8).

Petitioner's explanation, however, was refuted by

evidence that his kidney stone was diagnosed by Drs.

Sparberg and Lewis in 1971, and not in 1974 (Govt. Ex.

S-l; Tr. 267, 270, 284). It was also contradicted by the

testimony of another physician (Dr. Wendel) that, as of

November 3, 1972, petitioner was able to play handball,

squash, and paddleball without undue discomfort from a

‘kidney disorder; by Dr. Sparberg’s testimony that

petitioner came to. him on February 22, 1974. complain-

ing, inter alia, of “tennis elblow”; and by the fact that for

the year 1972, when he claimed to: be incapacitated: by his

“deep-seated apprehension of impending: death” (Pet. 5).

petitioner claimed a deduction of $7.194 for business

entertainment. There was, in short, substantial evidence

from which a jury could have reasonably concluded that

petitioner was overstating both his physical discomfort

and his fears of death.

There was further evidence that in a_ telephone

conversation with Revenue Agent Schroeder. petitioner

had falsely claimed that he had filed income tax returns

for 197! and 1972 (Tr. 52-53, 66). The evidence was

“Govt. Ex.” refers to the exhibits introduced into evidence at trial

by the government. “Tr.” refers to the trial transcript.

embodied in the agent’s referral report. Although the

agent testified that he no longer remembered the

telephone conversation, he had made notes. of the

conversation at the time it occurred and. then incor-

porated those notes in his referral report, after which the

notes were destroyed. The referral report was read into

evidence as a past recollection recorded, pursuant to

Fed. R. Evid. 803(5).

1. Petitioner claims (Pet. 10-16) that the trial court

erred in allowing the agent’s referral report into evidence

as past recollection recorded even though the terms of

Rule 803(5) were met. In support of this contention,

petitioner relies on United States v. Oates, 560 F. 2d 45

(2d Cir. 1977), for the proposition that law enforcement

reports that cannot qualify under the public records

exception to the hearsay evidence rule (Fed. R. Evid.

803(8)(B) and (C)) may not be admitted under any other

exception to the rule against hearsay evidence (Rule

802).. Accord: United States v. Ruffin, 575 ¥. 2d 346, 356

(2d Cir. 1978); United States v. Quinto, 582 F. 2d 224,

235 (2d Cir. 1978). But as the court of appeals poin ©”

out, Oates identified the loss of confrontation rights as

the underlying rationale of Rule 803(8).

Congress wished to preclude the government from

using a law enforcement officer's report as evidence

against an accused without making the officer available

for cross-examination. Here, however, that rationale

does not apply because Agent Schroeder was available

for cross-examination (see Pet. App. 6a, 8a). But ctf.

United States v. Cepeda Penes, 577 F. 2d 754, 761 (Ist

Cir. 1978). At all events, given the overwhelming

evidence that petitioner had acted willfully in failing to

file his tax returns (see page 2, supra), the admission

of the revenue agent’s referral report was at most

harmless error.

wre x

2. Petitioner further argues (Pet. 16-17) that the trial

court’s jury instruction on willfulness was fatally

defective cause it did not advise that willfulness

required an “evil motive.” But in United States v.

Pomponio, 429 U.S. 10, 11-13 (1976), this Court rejected

the same contention. Indeed, the instruction given in this

case was “virtually identical” (Pet. App. 3a) to the one

contained in United States v. McCorkle, 511 F. 2d 482

(7th Cir.) (en banc), cert. denied, 423 U.S. 826 (1975),

which this Court cited with approval in Pomponio (429

U.S. at 13).

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Wave H. McCree, Jr.

Solicitor General

FEBRUARY 1980

DOJ-1980-02