# Appendix — MacLeod v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0765%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1971
- **Citation:** 402 U.S. 907

## Text

ARMA A TSIEN . .

— * oa

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-

—<

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.

—A6—

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0765%3A2. Public record. Not legal advice.