Appendix — MacLeod v. United States

ARMA A TSIEN . .

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APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 20,106

United States of America,

, A 1

Appellee, ppeal from the

United States Dis-

trict Court for the

Kastern District of

Missouri.

V.

Douglas MacLeod,

Appellant. 5

[January 25, 1971.]

Before Van Oosterhout and Bright, Circuit Judges, and

Neville, District Judge.

Bright, Circuit Judge.

Appellant Douglas MacLeod, a St. Louis, Missouri,

lawyer, failed to file federal income tax returns for the

calendar years 1963, 1964 and 1965. A three-count indict-

ment charged him with violation of 26 U.S.C., § 7203 in

‘‘willfully and knowingly’’ failing to make an income tax

return to the Director of Internal Reverue or to any other

proper officer of the United States in each of the years.

Each count alleged defendant’s receipt of substantial gross

income ($35,133.56 in 1963; $12,821.92 in 1964; $18,143.53

in 1965). A jury found the defendant guilty on all counts.

as

Judge Meredith sentenced him to the maximum penalty

on the first count, imprisonment for one year plus a fine

of $10,000.00, but granted him probation for five additional

years under counts two and three. The probation terms

require that MacLeod be gainfully employed and abstain

from drinking.

In this appeal, MacLeod raises seven contentions run-

ning the gamut from attacks upon the constitutional valid-

ity of the pertinent federal statute to the legality of the

procedures, pre-trial, trial and post-trial. We have con-

sidered each contention and find all wanting in merit.-We

briefly comment upon each.

Appellant argues that the evidence is insufficient to show

guilty intent. The government, however, need not produce

direct evidence of guilty intent. It can establish a willful

violation of the federal statute by circumstantial evidence

alone. Gennaro v. United States, 369 F.2d 106, 112 (8th

Cir. 1966), vacated and remanded on other grounds, 390

U.S. 200 (1968). In this case, evidence that the defendant

conducted his law business, paid expenses and collected

fees, as well as other evidence, satisfied the government’s

burden of proof. See Lumetta v. United States, 362 F.2d

644, 646-47 (8th Cir. 1966).

Appellant admitted that he failed to file returns for

the years in question and that his receipts exceeded

$600.00 in each of the years. He claims the trial court

erred in permitting the government to introduce detailed

evidence bearing upon his total gross receipts for the

years in question. Clearly, this detailed evidence bears

upon the willfullness of defendant’s act and, therefore,

it is admissible. Lumetta, supra, 362 F.2d at 645-46.

Appellant contends that he would have shown the prose-

cution to be politically motivated had the trial judge, at a

pre-trial proceeding, not restricted questioning of an IRS

er oe

agent about the defendant’s political background. Obvi-

ously, an accused’s political background is immaterial to

his failure to file tax returns. Appellant offers no evi-

dence which even tends to suggest a ‘‘bad faith’’ prosecu-

tion. We deem this issue to be frivolous and to require

no further comment.

Appellant contends that the IRS agent should have

given him Miranda warnings in telephone conversations

prior to their face-to-face meeting. Firstly, MacLeod fur-

nished no information to the IRS agent at these conversa-

tions. Secondly, our prior decisions make it clear that

Miranda’ is inapplicable to non-custodial interrogations.

United States v. Brevik, 422 F.2d 449, 450 (8th Cir.), cert.

denied, ... U.S. ... (1970); Muse v. United States, 405

F.2d 40, 41 (8th Cir. 1968), cert. denied, 393 U.S. 1117

(1969); Cohen v. United States, 405 F.2d 34, 35-40 (8th

Cir. 1968), cert. denied, 394 U.S. 943 (1969).

The trial judge, in his instructions, defined the terms

‘‘willfully’’ and ‘‘knowingly’’ to the jury in the context

of the indictment which charged that defendant ‘‘did will-

fully and knowingly fail to make said income tax re-

turn[s].’? Appellant argues that the instructions gave an

erroneous standard of guilt to the jury. Although the

statute speaks only in terms of ‘‘willful’’ failure to make

a return, we perceive no prejudice to appellant by includ-

ing the additional element of ‘‘knowingly’’. See Jaben

v. United States, 349 F.2d 913, 915 (8th Cir. 1965). Nor

do we perceive any error in defining the term ‘‘willful’’

as requiring a voluntary and intentional omission as dis-

tinguished from a careless, thoughtless, heedless, inad-

vertent or negligent act, and as requiring a ‘‘bad purpose

either to disobey or disregard the law.’’ We have re-

viewed the instructions and find them fair and appropriate.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

pacer eae

Appellant argues that the trial court should have made

the pre-sentence report available to the defendant prior

to sentencing. Appellant recognizes that Rule 32, Fed.R.

Crim.P., specially grants the trial court discretion to dis-

close all or part of the pre-sentence investigation material

to the defendant or his counsel. United States v. Gross,

416 F.2d 1205, 1214 (Sth Cir. 1969), cert. denied, 397 U.S.

1013 (1970). Appellant demonstrates no abuse of disere-

tion in this case.

Appellant urges us to find the pertinent federal statute,

upon its face and as applied in this case, violative of the

Fourth, Fifth, Kighth, Tenth and Thirteenth Amendments.

Appellant cites no authority to support his Fourth Amend-

ment unlawful search and seizure contention. He contends

that the language of 26 U.S.C. §7203 which requires a

taxpayer to supply information to the government, when

considered in conjunction with an IRS agent’s power to

summon materials (see 26 U.S.C. §7602), may compel a

taxpayer to subject himself to an unlawful search and

seizure. We recognize that an IRS agent does not have

authority under 26 U.S.C. §7602 to make an unlawful

search and seizure. Wild v. United States, 362 F.2d 206,

209 (9th Cir. 1966). See United States v. Giordano, 419

F.2d 564, 568-69 (8th Cir. 1959), cert. denied, 397 US.

1037 (1970). The defendant made no disclosure of any

records in response to legal process. His disclosure other-

wise must be deemed voluntary.

Appellant’s Fifth Amendment challenge, resting on

double jeopardy, self-incrimination and deprivation of due

process, is, likewise, inadequately supported by ease au-

thority. The mere fact that 26 U.S.C. §7203 encompasses

willful failure to pay a tax, willful failure to file a tax

return, willful failure to keep records, and willful failure

to supply information would not necessarily subject a per-

son to double jeopardy. See Clemas v. United States, 423

F.2d 461, 462-3 (8th Cir. 1970). The statutory require-

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ment to file an income tax return does not violate a tax-

payer’s right against self-incrimination. United States v.

Sullivan, 274 U.S. 259 (1927). We find nothing vague

about the statutory language requiring each taxpayer to

pay a tax, file a return, keep records, and supply informa-

tion when required by law.

The facts in this case demonstrates no violation of the

Kighth Amendment prohibition against inflicting cruel and

unusual punishment. We do not characterize the maximum

statutory penalty of one-year imprisonment, plus a $10,-

000.00 fine, as cruel and unusual. In this case, the defend-

ant’s cumulative penalty on the three counts is less than

the maximum that could have been assessed. We do not

find this so greatly disproportionate to. the offense as to

be shocking to the sense of justice. See Weems v. United

States, 217 U.S. 349 (1910); Kasper v. Brittain, 245 F.2d

92, 96 (6th Cir.), cert. dented, 355 U.S. 834 (1957).

We have also examined appellant’s contentions that

§7203 offends against the Tenth and Thirteenth Amend-

ments. Again, appellant cites no authority, and we find

none.

While we have carefully examined all of appellant’s con-

tentions, it should be apparent that we deem several to

be frivolous. The increasing federal case load places heavy

demands upon the time of the federal appellate judges.

Counsel who raise abstract issues on appeal, which are

neither documented by the facts in the case nor supported

by legal authority, serve ill the interests of their client,

the courts and the public.

Affirmed.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

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APPENDIX B

Judgment

United States Court of Appeals

For the Eighth Circuit

No. 20,106 September Term, 1970

United States of America,

Appellee,

vs.

Douglas MacLeod,

Appellant.

Appeal from the United States District Court for the

Kastern District of Missouri.

This Cause came on to be heard on the record from the

United States District Court for the Eastern District of

Missouri and was argued by counsel.

On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the judgment and sentence

of the said District Court, in this cause, be, and the same

is hereby, affirmed.

And it is further ordered by this Court that the defend-

ant in the said District Court, Douglas MacLeod, do sur-

render himself to the custody of the United States Marshal

for the Eastern District of Missouri, if not now in cus-

tody, in execution of the judgment and sentence imposed

upon him, within thirty days from and after date of filing

of the mandate of this Court in the District Court.

January 25, 1971

NCA

ee sa

APPENDIX C

Sentences under 26 U. S. C., § 7203 (not including gam-

bling tax cases) in the United States District Court for

the Eastern District of Missouri since 1963:

No. of

Case No. Defendant Counts Sentence

63 Cr 25(3) James B. Mooney 4 1 year and $2,000 fine

63 Cr 37(3) Michael R. Wiejaczka 4 Sentefice suspended,

3 years probation

63 Cr 138(3) Gordon C. Perry 3 6 months

64 Cr 138(3) Stephen Lumetta 3 1 year and $1,500 fine

64 Cr 203(2) Arthur L. Hilliard 3 1 year

64 Cr 204(1) Oliver Paul Hurd 3 1 vear

64 Cr 270(1) Juanita Boyd 1 6 ruonths

65 Cr. 13(2) Alfred C. Vyver 4 1 year

65 Cr 48(3) Paul H. Nash 3 Sentence suspended,

3 years probation

65 Cr 57(3) Sam M. Schnidman 5 1 year

65 Cr 79(3) William Shafer 2 1 year and $3,500 fine

65 Cr 102(2) Alvin E. Powell 12 Sentence suspended,

two years probation

65 Cr 228(2) Marco D. Vainikos 3. 1 year

66 Cr 35(3) Wallace N. Jenkins 4 3 months and $2,000 fine

66 Cr 66(2) Jacob J. Frohmann 2 1 year

66 Cr 191(3) Harold H. Dawley 4 Sentence suspended,

- 2 years probation

66 Cr 192(2) Jesse Gilbert 2 6 months

67 Cr 9(1) Cleophus Robinson 3 $3,000 fine

67 Cr 94(2) Manuel L. Sislen 3 6 months

67 Cr 144(3) Alexander Dobbin, Sr. 1 $1,000 fine

68 Cr 6(3) Edward M. Heligman 2 1 year

68 Cr 17(1) Roy O. Brown 6 6 months and $1,800 fine

68 Cr 35(2) William E. Wilson 3 6 months and $10,000

fine, but fine stayed

if civil penalties are

paid

68 Cr 100(3) Harlan L. Kelley 4 2 years imprisonment,

but execution sus-

pended, 3 years

probation

68 Cr 150(1) Harold G. Fallert 4 9 months and $4,000 fine

69 Cr 5(2) Dale Alcorn 3 6 months

69 Cr 131(1) A. J. Huffman 3 6 months and $3,000 fine

69 Cr 160(1) William A. Boddie 2 6 months

69 Cr 207(1) Billy Ray Gibbs 2 6 months and $2,000 fine

69 Cr 249(2) Frank C. Mueller 8 Sentence suspended,

5 years probation

69 Cr 264(1) Robert A. Hall 3 6months and $12,500 fine

70 Cr 37(2) Penrose C. Martindale 3 6 months

70 Cr 110(1) Charles J. Morse 3 6 months and $1,500 fine