Opposition Brief — Shorter v. United States

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No. 86-1744

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

JOHN A. SHORTER, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

MICHAEL C. DURNEY

Acting Assistant Attorney General

MICHAEL L. PAUP

ROBERT E. LINDSAY

ALAN HECHTKOPF

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the district court erred in excluding

expert testimony concerning the characteristics of

compulsive gamblers.

2. Whether Count One of the indictment, which

charged attempted evasion of payment of taxes due

for 12 tax years, was duplicitous.

(1)

TABLE OF CONTENTS

Page

I as pteidipiesicnaiontasiondpe 1

aa ncsaeminbdnidtanbahanabahndioen 1

RRS I Ve ae 2

GR te ON 8

a a cisinenselbionanngaaieis 17

TABLE OF AUTHORITIES

Cases:

Frye v. United States, 293 F. 1013 (D.C. Cir.

1 caseodepihanbiannbinrnanl 8

Lott v. United States, 309 F.2d 115 (5th Cir.

1962), cert. denied, 371 U.S. 950 (19638) -........... 15

Salem v. United States Lines Co., 370 U.S. 31

Ge Se ne Oe 9

United States v. Alsobrook, 620 F.2d 139 (6th

Cir.), cert. denied, 449 U.S. 843 (1980) —........... 14

United States v. Baker, 262 F. Supp. 657 (D.D.C.

Tag the ca 15

United States v. Baller, 519 F.2d 463 (4th Cir.),

cert. denied, 423 U.S. 1019 (1975) -.....2.00.00000022.. 10

United States v. Baum, 485 F.2d 1197 (7th Cir.

1970), cert. denied, 402 U.S. 907 (1971) —.......... 16

United States v. Berardi, 675 F.2d 894 (7th Cir.

a cenibuniasioatne 14

United States v. Brady, 595. F.2d 359 (6th Cir.),

cert. denied, 444 U.S. 862 (1979) ..........00.0200002..... 10

United States v. Brown, 557 F.2d 541 (6th Cir.

SRE ARS wor Oe ee 10, 11

United States v. Canas, 595 F.2d 73 (ist Cir.

| SG a Nee nee ee 14

United States v. Daley, 454 F.2d 505 (1st Cir.

a cana pionestluganes 14

United States v. Downing, 753 F.2d 1224 (3d Cir.

AERIS DEUTER Re let pat RC ic 10

United States v. Franks, 511 F.2d 25 (6th Cir.),

cert. denied, 422 U.S. 1042 (1975) 2.000... li

(III)

Cases—Continued : Page

United States v. Girard, 601 F.2d 69 (2d Cir.),

cert. denied, 444 U.S. 871 (1979) .........2002200220002... 14

United States v. Haskell, 327 F.2d 281 (2d Cir.),

cert. denied, 377 U.S. 945 (1964) "a 15

United States v. Hendershot, 614 F.2d 648 (9th

atts, ITI - sacs hblacineies cosihacdaecacneinioneilnanbiatnand tchiadauenbiensse 10

United States v. Margiotta, 646 F.2d 729 (2d Cir.

1981), cert. denied, 461 U.S. 913 (1983) 2.0.0.0... 14

United States v. Navarro-Varelas, 541 F.2d 1331

(9th Cir. 1976), cert. denied, 429 U.S. 1045

PIPED seccaceesauithscviedininnenbinannsdatinenlbaiassdiiiniaiieotinnecins 9

United States v. Pavloski, 574 F.2d 933 (7th Cir.

I in sc esktcen deiceeladeddea ns Stance ei AE ee 14

United States v. Robin, 693 F.2d 376 (5th Cir.

eT AED: ie oe i IPRA A 5 RN eo ae I 14

United States v. Tranowski, 659 F.2d 750 (7th

Cees ME © 4cinhtecnsenmataaecoseakees ten tue eee 10

United States v. Trownsell, 367 F.2d 815 (7th Cir.

UNUTUED cisinsiiticcéccsnsnshaieaaidenbacadimhdanepicctna a icaceadidberaeiasaanieen 16

United States v. Williams, 583 F.2d 1194 (2d

Cir. 1978), cert. denied, 489 U.S. 1117 (1979)... 10

United States v. Zeidman, 540 F.2d 314 (7th Cir.

PETUTEED cacsscubeipbudasehsetganeiaenasassieaiceaa delat eae 14

- §$tatutes and rules:

SE ee oe. 2,15

RF LY, RVR ER RCE NOD CEE SEN eae eS 2

Pes ne I Os I eee 5

Fed. R. Evid.:

ER ne ok reer ee ee 16

RRR Cea ecto wr st einer aes Hla OS RET 8,11

Miscellaneous:

American Psychiatric Ass’n, Diagnostic and Sta-

tistical Manual of Mental Disorders (DSM-III)

IE IE I scouts secede ieee nce eee 12

1 C. Wright, Federal Practice and Procedure:

Crtamnommns BE CT ah. TO accion 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-1744

JOHN A. SHORTER, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

la-15a) is reported at 809 F.2d 54. Prior opinions of

the district court (Pet. App. 16a-27a, 28a-46a) are

reported at 608 F. Supp. 871 and 618 F. Supp. 255.

JURISDICTION

The judgment of the court of appeals was entered

on January 18, 1987. A petition for rehearing was

denied on March 5, 1987 (Pet. App. 47a-48a). The

petition for a writ of certiorari was filed on May 1,

1987. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

iain aaa

STATEMENT

Following a jury trial, petitioner was convicted of

the felony of attempting to evade the payment of

income taxes due for the years 1972 through 1983, in

violation of 26 U.S.C. 7201, and six misdemeanor

charges of failing to pay income tax for each of those

years, in violation of 26 U.S.C. 7203. The district

eourt sentenced him to 40 months’ imprisonment on

Count One, the tax evasion count. On the remaining

counts, the court imposed concurrent sentences of six

months’ imprisonment. Pet. App. 2a. Petitioner was

also fined $10,000. The court of appeals affirmed (id.

at la-15a).

1. For each of the years 1972 through 1983, peti-

tioner, an attorney in the District of Columbia, filed

an income tax return on which he reported tax due

and owing. Except for paying $36.40 toward a tax

liability of over $3,000 for 1975, however, petitioner

failed to pay any of his tax liability when he filed.’

According to the returns, petitioner’s total tax liabil-

ity during the period amounted to nearly $135,000.

From at least 1973, petitioner conducted ali of his

professional and personal business in cash. He had

no bank accounts or credit cards, and he acquired no

assets, such as real property or automobiles, that

could be attached by the IRS. However, his law part-

ner, Bernadette Gartrell, had a number of credit

ecards and would charge purchases for petitioner on

her credit cards. Petitioner would then reimburse

Gartrell for the purchases in cash.

In the summer and fall of 1974, Gartrell opened

two bank accounts for the firm’s use. She opened the

1 The summary of the facts is taken from the government’s

brief in the court of appeals.

accounts in her own name, and she was the only sig-

natory on the accounts. One account was used as an

office account into which all fees received by the firm

(including those received by petitioner) were de-

posited and from which the firm paid its expenses and

partnership draws. The other was used as a reserve

account to pay office expenses during periods when

fees were not being collected.

Checks for partnership draws were made payable

to cash. Although Gartrell endorsed her checks, peti-

tioner did not endorse his. Instead, petitioner’s checks

were endorsed by Gartrell or the office secretary.

Evidence at trial showed that the practice of drawing

checks payable to cash made it difficult to trace funds

through the bank accounts.

During IRS investigations into petitioner’s ability

to pay his taxes, petitioner was asked on several occa-

sions whether he had any cash in bank accounts. Peti-

tioner denied that he had any bank accounts: he never

revealed the two accounts Gartrell had opened for

the firm. Petitioner also claimed on a number of occa-

sions that he lacked sufficient funds with which to pay

his taxes. Notwithstanding these claims, petitioner

spent substantial sums on a number of items. For

example, he made half the payments of $200 to $300

per month on a $5,400 Rolex watch Gartrell pur-

chased for him in December 1978. In addition, be-

tween December 1980 and July 1981 petitioner paid

$10,000 in cash for furniture. The receipts for the

furniture were in the name of a woman with whom

petitioner was living.

Four IRS revenue agents who were assigned to

petitioner’s case over the years were unable to locate

any assets belonging to petiticner. Finally, in June

1979, the case was referred to the IRS Criminal In-

vestigation Division (CID). The investigative efforts

of the CID agents led to the discovery of the firm

accounts. Petitioner was placed under surveillance

and was observed entering one of the banks at which

Gartrell had opened accounts for the firm. The IRS

also obtained from another law firm two checks drawn

by that firm and made payable to petitioner’s firm.

The IRS then issued summonses to the banks and to

petitioner’s law firm. Records obtained pursuant to

the summonses showed that, during the relevant

period, petitioner had received sufficient funds to pay

his taxes each year.

Between April 1, 1980, and January 5, 1981, while

the criminal investigation was in progress, petitioner

made five payments to the IRS totalling $2,500. Prior

to the criminal investigation, petitioner had re-

peatedly promised the IRS that he would make such

payments. In the course of negotiating a payment

plan during the criminal investigation, petitioner pro-

vided the IRS with a financial statement in which he

made false claims regarding his expenses. Further-

more, while petitioner paid only $2,500 toward his

tax liability, he gave his former wife a check for

$6,500 during October 1980, which she deposited in

her own account. She then withdrew various amounts

from that account between October and December

1980 and gave the money to petitioner.

2. Prior to trial, petitioner moved to dismiss the

tax evasion count, asserting that it was duplicitous.

His position was that that count, which alleged that

petitioner had evaded taxes owed for 12 tax years,

charged 12 separate offenses. Pet. App. 3a. The dis-

trict court concluded that “tax evasion covering sev-

eral years may [be] charged in a single count as a

course of conduct in circumstances such as these

where the underlying basis of the indictment is an

allegedly consistent, long-term pattern of conduct

directed at the evasion of taxes for these years” (id.

at 40a). Furthermore, to ensure that any guilty ver-

dict would be unanimous, both with respect to at least

one affirmative act of evasion and one tax-year delin-

quency, the court gave the jury a-special unanimity

instruction and required the jury to answer special

interrogatories (id. at 3a). The court of appeals

upheld the ruling of the district court on that issue

(id. at 6a-7a).

3. Prior to trial, petitioner also filed a notice of

defense based on mental condition pursuant to Fed.

R. Crim. P. 12.2(b). The notice advised that peti-

tioner intended to offer expert testimony with respect

to a claim that he suffered from a compulsive, or

pathological, gambling disorder (Pet. App. 8a). Peti-

tioner asserted that the expert testimony would tend

to negate willfulness. He argued that the testimony

would show that he suffered from a disorder that com-

pelled him to spend nearly all of his available finan-

cial resources on gambling, leaving him with no funds

to meet his tax obligations. Jd. at 8a-9a. Alterna-

tively, petitioner argued that the expert testimony

would provide an explanation for his cash lifestyle,

his failure to keep financial records, and his failure

to maintain bank accounts in his own name (id. at

9a).

The government moved to exclude the proffered

evidence. Following a two-day evidentiary hearing,

the trial court issued an order holding that the expert

testimony was not admissible (Pet. App. 16a-27a).

The district court noted that the courts that have

addressed the issue have held that the link between

pathological gambling and criminal intent has not

def

been sufficiently accepted by mental health profes-

sionals to render the disorder relevant to an insanity

The same analysis, the court held, would

apply to the claimed link between pathological gam-

bling and the element of willfulness. Pet. App. 2la-

DV<«

Apart from its reliance on the applicable preced-

ents, the court concluded that expert evidence on the

pathological gambling disorder was not relevant to

the offenses charged, based on the expert testimony

proffered outside the presence of the jury. The court

heard testimony from the three defense experts, each

of whom testified that pathological gamblers often

fail to pay their taxes. Their testimony, the court

observed, was “less certain” as to the existence of a

link between the gambling disorder and the absence

of a willful intent to commit tax offenses. Pet. App.

22a-23a. The court found the testimony of one of the

defense experts to be “vague and contradictory” (id.

at 23a), the testimony of the second expert to be of

limited relevance to the issue (id. at 23a-24a), and

the testimony of the third expert to support the view

that an individual, such as petitioner, who embarks

on a gambling spree “makes a volitional choice to

gamble rather than pay” his tax liabilities (id. at

24a).

The court ultimately accepted the view of the gov-

ernment’s expert witnesses, who testified that there

exists no recognized link between pathological gam-

bling and criminal tax offenses, and that the “vast

majority” of psychiatrists reject the proposition that

pathological gamblers are unable to choose between

gambling and paying taxes. Pet. App. 24a-25a.

Based on that testimony, the court was “firmly con-

vinced” that there was no general acceptance of the

asserted link between pathological gambling and

criminal tax offenses at the present time (id. at 25a).

The district court also rejected petitioner’s alter-

native argument in favor of admission of the expert

testimony—to explain his so-called “cash lifestyle,”

and thus to show that his conduct was not indicative

of an intent to evade taxes. On this point, the district

court observed that “the Court has been given no com-

pelling indication suggesting that defendant’s gam-

bling activities and their impact on his financial

habits require the testimony of experts, as opposed to

lay witnesses familiar with the defendant’s activities.

When the specialized knowledge of an expert is un-

necessary to a jury’s assessment of the salient factual

issues, expert testimony will normally be excluded”

(Pet. App. 26a n.14 (citation omitted) ).

The court of appeals agreed with the district court’s

analysis of the admissibility of the expert testimony.

The court first noted that petitioner did not challenge

on appeal the district court’s exclusion of the proffered

expert testimony on the ground that it was relevant to

the element of willfulness. Instead, petitioner argued

on appeal only that the expert testimony would have

helped explain petitioner’s “cash lifestyle’ and

thus negate the inference that his cash dealings were

part of a scheme to evade taxes. Pet. App. 9a. The

court of appeals then held that the district court had

properly excluded the expert evidence for that pur-

pose, since the specialized knowledge of an expert was

not needed to explain the relationship between peti-

tioner’s gambling activities and his financial habits.

Pet. App. 9a-10a, 14a. Based on the district court’s

analysis, the court of appeals concluded that “the Dis-

trict Court’s careful determination that the proffered

expert testimony was cumulative and unnecessary did

not constitute an abuse of discretion” (id. at l4a

(citation omitted) ). Although noting that petitioner

had not pressed on appeal the admissibility of the

expert testimony because of its relevance to the issue

of willfulness, the court of appeals nonetheless agreed

with the district court’s conclusion that the expert

testimony was excludable on that issue because there

is no general acceptance among the experts in the

relevant scientific community that there is a link

between pathological gambling and the failure to pay

taxes (id. at 10a-13a.)

ARGUMENT

1. Petitioner first contends (Pet. 10-18) that the

district court erred in excluding the testimony of his

expert witnesses. That testimony, he argues, was

admissible to show that the conduct alleged by the

government to constitute affirmative acts of evasion

was instead the product of compulsive gambling.

In making this argument, petitioner asserts that

his claim places in issue the continuing validity of the

test established in Frye v. United States, 293 F. 1013,

1014 (D.C. Cir. 1923), which held that the theory on

which expert testimony is based must “be sufficiently

established to have gained general acceptance in the

particular field in which it belongs.” That test, peti-

tioner claims, has not survived the adoption of Rule

702 of the Federal Rules of Evidence, which provides

that “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the

form of an opinion or otherwise.” Petitioner urges

that the circuits are in conflict on validity of the Frye

test and that the conflict should be resolved by this

Court. In fact, however, the judgment of the court in

this case did not turn on the correctness of the Frye

test, for several reasons.

To begin with, the evidentiary ruling that peti-

tioner challenged in the court of appeals was not based

on the Frye test. The only point petitioner argued in

the court of appeals in support of the admissibility of

the expert testimony was that it would provide an

innocent explanation for his “cash lifestyle” (Pet.

App. 9a, 14a). The district court held (id. at 26a

n.14) and the court of appeals agreed (id. at 14a)

that even if the evidence offered on that issue satisfied

the reliability requirement of the Frye test, it was

properly excluded on the ground that it was unneces-

sary. As the district court explained (id. at 26a

n.14), the relationship between petitioner’s gambling

activities and his financial habits did not require the

testimony of experts, but could readily be provided by

“lay witnesses familiar with defendant’s activities.”

It is well settled that expert testimony may prop-

erly be excluded in the discretion of the trial judge if

all the primary facts can be accurately and intelli-

gently described to the jurors, and if the jurors, as

persons of common understanding, are as capable of

comprehending the primary facts and drawing cor-

rect conclusions from them as are witnesses with spe-

cial or peculiar training, experience, or education.

Salem v. United States Lines Co., 370 U.S. 31, 35

(1962); United States v. Navarro-Varelas, 541 F.2d

1331, 1334 (9th Cir. 1976), cert. denied, 429 U.S.

1045 (1977). Petitioner and persons familiar with

his activities could have described his claimed gam-

bling problems to the jury, and petitioner could have

offered the explanation that his financial conduct

resulted from his alleged compulsion to gamble. There

is no reason to believe that an average person serving

on the jury would not have been able to understand

the claim that a person wrapped up in gambling

would let his financial affairs slide or that he would

deal in cash to facilitate his gambling. Thus, even

without regard to the Frye test, the district court was

correct in ruling that expert testimony was not neces-

sary in this case.

In any event, this case would not warrant review

even if it were necessary, in order to affirm the dis-

trict court’s evidentiary ruling, to determine the

reliability of the proffered expert testimony. Since

the adoption of the Federal Rules of Evidence, a

number of circuits have reaffirmed the Frye test.

United States v. Tranowski, 659 F.2d 750, 755-756

(7th Cir. 1981); United States v. Hendershot, 614

F.2d 648, 654 (9th Cir. 1980); United States v.

Brady, 595 F.2d 359, 362 (6th Cir.), cert. denied, 444

U.S. 862 (1979). Other courts have adopted a test

balancing the reliability of expert testimony against

its potential to mislead. United States v. Downing,

753 F.2d 1224 (3d Cir. 1985); United States v. Wil-

liams, 583 F.2d 1194, 1197-1200 (2d Cir. 1978), cert.

denied, 439 U.S. 1117 (1979) ; United States v. Baller,

519 F.2d 463, 465-466 (4th Cir.), cert. denied, 423

U.S. 1019 (1975). The difference between the two

tests is not great and is not likely to lead to material

differences in the outcome of similar cases in different

circuits.

Both tests vest broad discretion in the trial judge.

See, e.g., United States v. Downing, 753 F.2d at 1240;

United States v. Brown, 557 F.2d 541, 556 (6th Cir.

1977). In addition, the two tests are not as distinct

as petitioner suggests: the Frye test has not been

eee

applied restrictively to bar the admission of all but

the most well-established scientific evidence, while the

so-called “balancing test” requires a showing of some

substantial scientific acceptance before permitting the

admission of expert testimony. Thus, the Sixth Cir-

cuit, while reaffirming the Frye test, has “equated

general acceptance in the scientific community with

a showing that the scientific principles and procedures

on which expert testimony is based are reliable and

sufficiently accurate.” United States v. Brown, 557

F.2d at 556, citing United States v. Franks, 511 F.2d

25, 33 n.12 (6th Cir.), cert. denied, 422 U.S. 1042

(1975). And while the Third Circuit concluded in

Downing that a “pure” Frye approach was inappro-

priate under Rule 702, it recognized (753 F.2d at

1233) that Frye was a “seminal” case and that the

“general acceptance” of a technique in the scientific

community is an important, and often dispositive,

factor in determining admissibility (id. at 1238 (cita-

tions omitted) ) :

The district court in assessing reliability may

examine a variety of factors in addition to scien-

tific acceptance. In many cases, however, the

acceptance factor may well be decisive, or nearly

so. Thus, we expect that a technique that satis-

fies the Frye test will usually be found to be reli-

able as well. On the other hand, a known tech-

nique which has been able to attract only mini-

mal support in the community is likely to be

found unreliable.

Petitioner’s evidence, which failed the Frye test,

also would fail the balancing test or any other reason-

able standard designed to identify legitimate expert

testimony. Petitioner contends (Pet. 13 (footnote

nin ener

omitted) ) that “[t]he proffered testimony would have

offered the jury another explanation for the defend-

ant’s behavior, i.e., that this conduct was a product

of his compulsion and not of any criminal intent.”

Yet petitioner presented no evidence that a cash life-

style, financial mismanagement, and the relinquish-

ment of control over financial affairs are clinically

accepted characteristics of compulsive gambling. The

1980 edition of @€@ American Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Dis-

orders (DSM-II1) (3d ed.), which includes a ref-

erence to compulsive gambling, does not list these

as diagnostic criteria associated with the disorder.’

Petitioner’s own experts did not even agree as to the

status of cash lifestyle and relinquishment of control

as indicia of compulsive gambling. One of the experts,

Dr. Ciarrochi, was asked to give a list of “what’s

typical for a gambler and how they conduct their

financial affairs.” In response to that question, he

2 DSM-III lists two criteria for compulsive gambling: (A)

that the individual is chronically and progressively unable to

resist impulses to gamble; and (B) that gambling com-

promises, disrupts or damages family, personal, and voca-

tional pursuits as indicated by seven characteristics, at least

three of which are required to be present in an individual

diagnosed as a compulsive gambler (Tr. 27-28, 316). The

seven characteristics are: (1) arrest for forgery, fraud, em-

bezzlement, or income tax evasion due to attempts to obtain

money for gambling; (2) default on debts or other financial

responsibility; (3) disrupted family @ relationships due

to gambling; (4) borrowing of money from illegal sources

(loan sharks); (5) inability to account for lost money or

to produce evidence of winning money, if this is claimed;

(6) loss of work due to absenteeism in order to pursue gam-

bling activities; and (7) necessity for another person to pro-

vide money to relieve a desperate financial situation (id.

at 28).

did not mention a cash lifestyle or relinquishment of

control over financial affairs. Tr. 96-97. Dr. Mora-

vec, another of petitioner’s experts, merely stated

that “it was not uncommon” for a pathological gam-

bler to lead a cash lifestyle (Tr. 185). Only the third

defense expert, Dr. Resnik, stated that he had seen a

cash lifestyle ‘‘a number of times’ with gamblers,

but even Dr. Resnik made no mention of relinquish-

ment of control (Tr. 324). Finally, none of the gov-

ernment’s experts mentioned a cash lifestyle, financial

mismanagement, or relinquishment of control during

their testimony, and petitioner did not cross-examine

them about whether those traits are recognized char-

acteristics of compulsive gamblers.

Thus, on the record developed in this case, the

proffered testimony would have amounted to no more

than the isolated observations of three individuals,

who did not themselves agree as to the charac-

teristics associated with petitioner’s claimed mental

disorder.* Accordingly, exclusion of the evidence was

3 Petitioner argues (Pet. 16-17 n.7 (citation omitted) ) that

even if the Frye test survived the adoption of the Federal

Rules of Evidence, it is inapplicable here since the proffered

testimony “related solely to the characteristics of compulsive

gamblers and not to novel scientific evidence such as poly-

graph tests.” But the limitations as to scientific evidence are

applicable here for the simple reason that petitioner offered

the expert testimony as scientific evidence in support of his

defense. The evidence at issue was offered to prove that cer-

tain characteristics were, in petitioner’s words, “symptoms”

(id. at 9) or the “product” (id. at 13) of a mental disorder.

Thus, the testimony was offered as medical evidence. To the

extent that petitioner now means to suggest that the char-

acteristics of compulsive gamblers are matters not requiring

scientific expertise to explain or understand, his argument

supports the district court’s ruling that the subject is not one

requiring expert testimony.

not an abuse of discretion under either the Frye test

or the balancing test that is applied in some circuits.

2. Petitioner also asserts (Pet. 19-27) that Count

One of the indictment, which charged petitioner with

evading the payment of taxes for 12 tax years, was

duplicitous and that his conviction on that count

should have been reversed. That claim is without

merit, and there is no conflict among the circuits on

that issue that might warrant this Court’s review.

Duplicity is the joining in a single count of two or

more separate offenses. 1 C. Wright, Federal Practice

and Procedure: Criminal 2d § 142 (2d ed. 1982).

As the courts below pointed out (Pet. App. 3a-4a,

32a, 34a), however, it is well established that, absent

unfairness to the defendant, two or more acts, each

of which would constitute an offense standing alone

and could therefore be charged in separate counts,

may be charged in a single count if those acts may be

characterized as part of a single, continuing scheme.

United States v. Robin, 693 F.2d 376, 378-380 (5th

Cir. 1982); United States v. Berardi, 675 F.2d 894,

897-899 (7th Cir. 1982); United States v. Margiotta,

646 F.2d 729, 732-734 (2d Cir. 1981), cert. denied,

461 U.S. 913 (1983) ; United States v. Alsobrook, 620

F.2d 139, 142-143 (6th Cir.), cert. denied, 449 U.S.

843 (1980); United States v. Girard, 601 F.2d 69, 72

(2d Cir.), cert. denied, 444 U.S. 871 (1979); United

States v. Zeidman, 540 F.2d 314, 316-318 (7th Cir.

1976); United States v. Daley, 454 F.2d 505, 509

(1st Cir. 1972); United States v. Pavloski, 574 F.2d

933, 936 (7th Cir. 1978); see also United States v.

Canas, 595 F.2d 73 (1st Cir. 1979). Nothing in the

court of appeals decisions on which petitioner relies

(Pet. 24-25), the language of the statute, or its legis-

lative history suggests that this principle is inappli-

cable to indictments charging the attempted evasion

of the payment of taxes.

The cases on which petitioner relies on do not turn

on the issue he raises. None of those cases suggests

that attempts to evade the payment of taxes for a

number of tax years must be charged in separate

counts. To the contrary, as the courts below pointed

out (Pet. App. 4a, 35a), a number of decisions sup-

port the view that such attempts may be charged in a

single count. See United States v. Haskell, 327 F.2d

281, 284 (2d Cir.), cert. denied, 377 U.S. 945 (1964) ;

Lott v. United States, 309 F.2d 115, 120-121 (5th Cir.

1962), cert. denied, 371 U.S. 950 (1963); United

States v. Baker, 262 F. Supp. 657, 684 (D.D.C. 1966).

The tax evasion statute does not explicitly define

the crime of tax evasion as evasion of tax liability

for a single year. Rather, it refers to failure to pay

“any tax imposed by this title.” 26 U.S.C. 7201.

Thus, to fail to pay income tax or excise tax is to

violate Section 7201. Petitioner did so throughout the

period from 1972 through 1983; he thus violated the

plain terms of the statute. Moreover, the charging of

petitioner’s conduct as a single offense resulted in the

reduction of the potential punishment confronting

petitioner. There is no reason to read the statute as

barring this more lenient method of charging the case.

The facts of this case illustrate the propriety of

charging petitioner’s ongoing tax evasion as a con-

tinuing offense. Year after year from 1972 to 1983,

petitioner engaged in conduct designed to prevent the

IRS from collecting the taxes petitioner owed. He did

not change his methods every year, nor did he attempt

to avoid liability for only the current year’s taxes.

Thus, as the court of appeals determined (Pet. App.

6a), petitioner’s “activities could be regarded as evi-

dencing a continuous course of conduct. In short, as

the government argues, each affirmative act of tax

evasion was intended to evade all taxes owed, or

which [petitioner] expected to owe, at the time of the

affirmative act.”

Petitioner claims (Pet. 26-27) that he was pre)-

~ udiced by evidentiary rulings during the trial that

were attributable to the “duplicitous” charging of

Count One. Primarily, he asserts that, if each year

had been charged in a separate count, evidence of

wrongdoing during the years 1972 through 1977,

years beyond the limitations period, would have been

subject to greater scrutiny under Fed. R. Evid. 403

and would have been subject to cautionary instruc-

tions. There is no merit to petitioner’s position.

First, petitioner could have been prosecuted under

separate counts for attempting to evade the payment

of taxes for 1972 through 1977 in any event, as long

as he committed affirmative acts of evasion within the

six years preceding the return of the indictment, as

the evidence showed he did. United States v. Trown-

sell, 367 F.2d 815, 816 (7th Cir. 1966) ; United States

v. Baum, 435 F.2d 1197, 1200-1201 (7th Cir. 1970),

cert. denied, 402 U.S. 907 (1971). Furthermore, if

petitioner had been charged in separate felony counts

for each of the 12 years alleged in Count One, all of

the same evidence admitted at his trial would have

been admissible to prove each of the separate counts.

Petitioner does not specify any particular evidence

that might have been excluded or as to which a limit-

ing instruction might have been given if he had been

charged in separate counts. Thus, petitioner has

failed to demonstrate that he suffered any prejudice

as a result of being charged in one felony count rather

than 12 felony counts.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.