Petition for Writ of Certiorari — Amos v. United States

BUPREM- Cour ; 7

JUL 1 197%

MICHAEL RODAK, JR., CLE .

In the Supreme Court of the United States

OCTOBER TERM, 1973

No. W=-19 9) 5)

LUCIEN V. AMOS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

RosBert G. DUNCAN

2700 Kendallwood Parkway

Kansas City, Missouri 64119

Counsel for Petitioner

E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

ty Raetgty . |

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TABLE OF CONTENTS

Opinion Below 1

Jurisdiction 2

Questions Presented 2

Constitutional Provisions Involved 2

Statutory Provisions Involved ............---sssssssssssseceeseesseeee 3

REE BNR 5 SEES Ak A aR ee IO 4

Statement of the Case ........... : 4

Reasons for Granting the Writ—

1. The Court of Appeals Has Decided an Im-

portant Question of Federal Law Which Should

Be Settled by This Court 10

Jury Poll ' 10

Events Outside the Indictment and Evidence

of Other Crimes 13

Exhibits 23, 24, 25, 26, and 27 15

NN i 17

2. The Eighth Circuit Court Rendered a Deci-

sion in Conflict with the Decision of Another

Court of Appeals on the Same Matter _.......... 19

Jury Poll | 19

Conclusion ie 20

Appendix—

Memorandum Opinion _22222.000..eeeecececececececeeeeeee Al

ee Al6

ORGANI NALA LANE PSII OEE LORIN FELL ROL IED, PERG GO ELE AAS LD NEGATE SE A ERE LS OES Ce,

II

Table of Authorities

CASES

Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402,

90 L.Ed. 350 18

Brasfield v. United States (1926), 272 U.S. 448, 47 S.Ct.

135, 71 L.Ed. 345 11,12

Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824 19

Government Employees Insurance Company v. Davis,

le ae ee CE RB Steet 18

Hartman v. United States, 215 F.2d 386 (8th Cir. 1954) 16

Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25

L.Ed.2d 156 (1970) 16

United States v. Edwards (1972, 5 CA), 469 F.2d 1362 20

United States v. Harvey, 428 F.2d 782 (1970) ............ 18

United States v. Matthews, 252 A.2d 505 (D.C. App.) 20

United States v. McCoy, 429 F.2d 739 (D.C. Cir. 1970) 20

United States v. Sexton (1972, 5 CA), 456 F.2d 961... 19

United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971) 20

CONSTITUTIONAL PROVISIONS, RULES AND STATUTES

Constitution of the United States—

I is sicssemctircicectecmenas 2, 11,19

Sixth Amendment 3,11

18 U.S.C., Federal Rules of Criminal Procedure, Rule

31 4, 10, 11, 12, 20

SIN, OUI © cciciccsscsscciassbaedretermeceeteen 16

26 U.S.C. 6531 a ' 5

Gh ie annie 3, 4, 16

pe REE EOL Oe SCAN ae Oe 16

Ie Ts ee ce 2

SO AME Mae ARS -—

5 ep STAY BARE DN TL IRE

In the Supreme Court of the United States

OCTOBER TERM, 1973

No.

LUCIEN V. AMOS,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

The petitioner, Lucien V. Amos, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Eighth

Circuit entered in this proceeding on May 15, 1974.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit, not yet reported, appears in the Ap-

pendix hereto. The memorandum opinion of the United

States District Court for the Western District of Missouri,

Western Division, not officially reported, filed September

27, 1973, appears in the Appendix hereto.

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JURISDICTION

The judgment and opinion of the United States Court

of Appeals for the Eighth Circuit was entered on May 15,

1974. A timely Petition for Rehearing or for Transfer to

the Court en Banc was filed therein and was denied on

June 4, 1974. This petition for certiorari is filed within

thirty (30) days of that date. This Court’s jurisdiction is

invoked under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Was the petitioner unconstitutionally denied a fair

trial by an impartial jury as a result of the trial court’s

requiring a juror to reveal his vote on each count in open

court?

2. Was the petitioner denied a fair trial as a result of

the introduction in evidence of events and crimes occur-

ring prior to 1968 which were not alleged in the Indictment

and were barred by the Statute of Limitations; and by the

introduction in evidence of exhibits which were irrelevant

and prejudicial?

3. Was the petitioner denied a fair trial and prej-

udiced as a result of the trial court charging the jury that

the defendant-petitioner, rather than the Government,

contended that several documents were false and fraudu-

lent?

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment to the United States Constitution.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

BRL I LMS BBN TR LAME MLSE AS TOE AY RT

3

vice in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use without just com-

pensation.

Sixth Amendment to the United States Constitution.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the assistance of counsel

for his defence.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 26:

Section 7206

(2) Aid or assistance—Willfully aids or assists in, or

procures, counsels, or advises the preparation or presenta-

tion under, or in connection with any matter arising under,

the internal revenue laws, of a return, affidavit, claim, or

other document, which is fraudulent or is false as to any

material matter, whether or not such falsity or fraud is

with the knowledge or consent of the person authorized or

required to present such return, affidavit, claim or docu-

ment; or

* * *

eat SNe

—

RULES INVOLVED

United States Code, Title 18:

| Federal Rules of Criminal Procedure:

Rule 31. VERDICT

(a) Return. The verdict shall be unanimous. It

shall be returned by the jury to the judge in open court.

(d) Poll of Jury. When a verdict is returned and

before it is recorded the jury shall be polled at the request

of any party or upon the court’s own motion. If upon the

poll there is not unanimous concurrence, the jury may

be directed to retire for further deliberations or may be

discharged. ,.

STATEMENT OF THE CASE

The petitioner, Lucien V. Amos, was convicted on

each count of a 14-count indictment after trial by jury

on August 21 through August 24, 1973, before the Honor-

able Paul X Williams in the United States District Court

for the Western District of Missouri. Each count of the

indictment charged a violation of 26 U.S.C. §7206(2), in

that the defendant wilfully and knowingly aided and as-

sisted in the preparation of certain tax returns which

were false and fraudulent as to a material matter in that

the returns represented that the taxpayers were entitled

to claim itemized deductions exceeding that which the

defendant knew the taxpayers were entitled to claim. Each

count of the indictment was in the same format ‘with

variances as to the years, taxpayers named, and the

amounts involved. The years covered in the indictment

were, as to the five taxpayers, between 1968 and 1972.

Only one of the taxpayers (none of whom were criminally

AMR CAIOS Ni PIA TSS BOR Sa BIST RHEL RAS DAI: SS LISLE Be iS aa Ot RTCA ON, INS Lam ah Oo MORN SE WRES 2

5

charged) admitted having knowledge of the false claimed

deductions. During the direct examination of the various

taxpayers, testimony was elicited that petitioner had been

preparing their returns in the past, during years that were

not alleged in the indictment and which were barred by

the Statute of Limitations, 26 U.S.C. §6531.

The petitioner testified that he prepared the tax re-

turns from information supplied him by the taxnayers.

Certain documents (Government’s Exhibits 23, 24, 25, 26

and 27), which the Government claimed were false, were

furnished to the Internal Revenue Service by the petitioner

when the various returns were audited. These documents

were prepared and furnished at dates after the alleged

returns were prepared.

During the trial court’s instructions and charge to

the jury, the court substituted the word “defendant” for

the word “Government” so that the instruction as to these

documents was:

“Several documents have been offered in this trial

which the defendant contends were false and fraudu-

lent. You are instructed that the defendant, Lucien

V. Amos, was not charged with the submission of

these documents and they are only allowed into this

trial for the purpose of showing the defendant’s intent

at the time he prepared the tax returns which are

the subject matter of the indictment.”

Although the correct instruction appears in the tran-

script, counsel for the Government and the defendant

agreed that the trial court misread the instruction.

After the evidence closed and the court instructed

the jury, the jury retired at approximately 2:48 P.M. and

deliberated until 4:07 P.M., when the jury returned to

the courtroom and announced that it had reached a ver-

6

dict. On the Court’s own motion, the jury was polled,

but juror Crockett told the Court that he did not join

in the verdict on all counts in the indictment.

The following statements were made in open court

after the jury had returned its first verdict:

“THE COURT: Now, Mr. Betts, since you are

the foreman and have signed the verdict, I wil! just

take everybody and start with you, is this not only

ine verdict of—the unanimous verdict of the jury,

is it your personal verdict in each of the 14 cases?

MR. BETTS: Yes Your Honor. . . (Transcript

p. 840).

THE COURT: Mr. Crockett?

MR. CROCKETT: Nosir.

THs COURT: Did you join in the verdict in

any of the counts?

Mit. CROCKETT: Yessir.

THE COURT: The jury will retire to reconsider

its verdicts, then as soon as you have reached unani-

mous verdicts—return the forms to Mr. Betts, there

has been a misunderstanding. As soon as you have

reached unanimous agreement, now—now, Mr. Fore-

man, in as much as there are 14 counts, if there is

unanimous consent on any counts, indicate the ones

on which it is unanimous, because the court would

be inclined to receive that verdict, that is unanimous

as to a count; that would leave the jury to consider

the ones that are not, am I making myself clear?

... (Transcript p. 841).

> * *

aE ARIS ALO ARES IETS

7

THE COURT: We are talking about as to each

count. Let me have that verdict—

THE COURT: I got down to Mr. Crockett; Mr.

Crockett as to the verdict in Count I, which is the

C. F. and Nina Schnabel count for 1967, did you or

did you not—is this verdict in Count I, is that or

is that not your individual verdict?

MR. CROCKETT: I misunderstood in a way, I

thought we were voting a different way than that.

THE COURT: I am trying to find out now—

the verdict must not only be the verdict of the jury,

it must also be the individual verdict of each juror.

Now, I am down to you. As to Count I, which is

the 1967 one conceruing C. F. and Nina Schnabel,

in which it appears the verdict of guilty, is guilty

your individual verdict in that particular count?

MR. CROCKETT: Nosir. I don’t think he would

be guilty on that.

THE COURT: Count II, the Schnabel one for

1968, do you agree with that one?

MR. CROCKETT: Nosir.

THE COURT: As to 1969 for the Schnabels?

MR. CROCKETT: Onsome parts of it I do.

THE COURT: It either is or is not.

MR. CROCKETT: It is not.

THE COURT: Count IV, the 1970 of the

Schnabels?

MR. CROCKETT: Guilty on that I believe.

THE COURT: As to the count on C. R. and Ear-

lene Powell, 1969?

MR. CROCKETT: I could not go along with that

one either.” (Transcript pp. 842-843).

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8

The trial court then interrogated Mr. Crockett on each

and every count of the indictment concerning his vote.

Juror Crockett reported that on every count except Count

IV that he did not believe the defendant was guilty and

had voted not guilty during the jury deliberations. The

Court then resumed its interrogation of the remainder

of the jury and each of them stated that they had found

the defendant guilty. At the conclusion of the remainder

of the poll, the following occurred:

“THE COURT: The verdict of the jury as to

Count IV, the C. F. and Nina Schnabel count will

be received by the court as a finding of guilty. The

clerk will prepare a new form eliminating Count IV.

This is received as to Count IV only...

MR. KING: (Petitioner’s trial counsel) I am

wondering if you could ask if it was unanimous as

to that count again?”

The trial court then again polled each member of

the jury up to Mr. Crockett. Each juror preceding Mr.

Crockett voted guilty on Count IV of the indictment. When

the Court reached Mr. Crockett, however, the following

occurred:

“THE COURT: Mr. Crockett?

MR. CROCKETT: [still say the same.

THE COURT: Mr. King is entitled to know and

the court is entitled to know as to Count IV, the

C. F. and Nina Schnabel verdict for 1970, is it your

individual verdict, Mr. Crockett, that the defendant

is guilty?

MR. CROCKETT: I think the one that is his

claim, I don’t think the one who prepared the income

tax, the preparer, was guilty.

THE COURT: Ladies and gentlemen of the jury,

none of these verdicts will be received. This is not

a unanimous verdict and we cannot receive it. Any-

thing that is less than a unanimous verdict I cannot

receive and I am going to send you back with this

and be certain and will give you another chance. I

hope you are able to arrive at a verdict. If you

are, well and good, if you are not, well and good.

We will keep you for a longer period of time. Take

this back and give it to Mr. Betts and conduct the

jury back to their jury room.” (Transcript pp. 84€-

847).

After the jury had again retired at approximately

4:25 P.M., the court noted that there was a substantial

possibility of a mistrial and Mr. King, the attorney for

the defendant so moved, but the trial court overruled

that motion and stated that they would await the jury’s

findings. (Tr. 847-848). At 4:48 P.M. the jury returned

and was polled and each one of the jurors, including Mr.

Crockett, stated that they had found the defendant guilty

on all fourteen counts. The jury had deliberated again

only a matter of a few minutes before returning with

this second verdict. The court then interrogated juror

Crockett as to this verdict:

“THE COURT: Now, since we have had the mat-

ter of the identity, Mr. Crockett, are you certain you

understand?

MR. CROCKETT: Iam certain I understand.

THE COURT: You intend to return a verdict

of guilty on each of the 14 counts?

MR. CROCKETT: Yes sir...” (Transcript p.

852).

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Petitioner was sentenced, on October 23, 1973, to a

term of imprisonment of three years, the execution of

which was suspended on the condition that he spend at

least three months in a jail type institution, and he was

placed on probation for three years on the remaining

thirteen counts.

Petitioner appealed to the United States Court of Ap-

peals for the Eighth Circuit which affirmed his conviction.

The trial court’s action regarding the jury poll was sus-

tained because of Federal Rules of Criminal Procedure,

Rule 31 (d) and because the Court of Appeals found that

the action of the trial court did not coerce a final verdict.

The introduction in evidence of the exhibits and the evi-

dence of prior events was held to be proper as bearing

on the issue of intent. As to the misdirection during

the court’s charge the Court of Appeals held that it was

error, but harmless.

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals Has Decided an Im-

portant Question of Federal Law Which Should Be Set-

tled by This Court.

Jury Poll

The trial court interrogated juror Crockett in open

court concerning the extent, nature and basis of his verdict

after the court learned that the verdict returned by the

jury was not unanimous. Juror Crockett, no doubt, was

embarrassed over the entire situation and it is obvious

he was coerced into surrendering his own views, opinions

and conscience to the will of the majority. August 24,

1973, the day the verdict was returned was a Friday,

and the hour was growing late in the afternoon. It was

11

brought clearly to his attention that the other eleven jurors

disagreed with him and he was told by the court that

he, and his fellow jurors, would be kept “for a longer

period of time”, because of his failure to agree with the

majority. This action by the trial court unfairly invaded

the province of the jury, coerced a verdict, destroyed the

sanctity of the privacy of the jury deliberations and uncon-

stitutionally denied petitioner his Sixth Amendment right

to a fair and impartial jury and the requirement of Federal

Rules of Criminal Procedure, Rule 31 (a) that verdicts be

unanimous, which is a fundamental right under due process

of law under the Fifth Amendment.

This Court in Brasfield v. United States (1926), 272

U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, held that an inquiry

by a trial court of a jury unable to agree asking the

extent of its standing rumerically is erroneous. Mr. Justice

Stone wrote:

“We deem it essential to the fair and impartial

conduct of the trial, that the inquiry itself should

be regarded as ground for reversal. Such procedure

serves no useful purpose that cannot be attained by

questions not requiring the jury to reveal the nature

or extent of its division. Its effect upon a divided

jury will often depend on circumstances which cannot

properly be known to the trial judge or to the appel-

late courts and may vary widely in different situations,

but in general, its tendency is coercive. It can rarely

be resorted to without bringing to bear in some degree,

serious although not measurable, improper influence

upon the jury, from whose deliberations every con-

sideration other than that of the evidence and the

law as expounded in a proper charge, should be ex-

cluded. Such a practice, which is never useful and

is generally harmful, is not to be sanctioned.”

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12

‘ The situation in the present case is clearly in line

with the coercion condemned in Brasfield. The jury re-

turned to the courtroom and each and every member of

the jury was polled as to his verdict. Thus, the judge

asked and found out how the jury stood numerically.

Juror Crockett versus the eleven others. Mr. Crockett

was required to vote in open court on each and every

count in the indictment, and to reveal his position to all

those present. Rather than stopping his interrogation of

the.jury, the trial court then proceeded to inquire of the

remaining jurors how they had voted on the indictment.

The \coercive nature of the trial court’s acts were

heightened by the procedure which the Court chose to

use. \The trial court then went to great lengths to empha-

size the importance of a unanimous verdict and the fact

that the jurors would quite obviously have to deliberate

until a unanimous verdict was reached. Juror Crockett

was placed in the obvious position of being embarrassed

and humiliated simply because he had conscientiously held

out and ‘had voted as his conscience dictated. He had

been foreed to stand and openly announce his conflict

with the entire jury on each and every count.

The shortness of time in which the jury deliberated

during the second deliberation, clearly emphasizes the pres-

sure that Juror Crockett felt. The original “verdict” had

iaken almost two hours to reach. The subsequent verdict

was returned in a matter of a few minutes. The trial

court then again drew everyone’s attention to juror Crockett

when he was asked in open court if he was certain “that

he understood” the verdict.

Rule 31 (d@) provides that if upon a poll there is not

unanimous concurrence the jury should be directed to

retire for further deliberations or be discharged. Here

the trial court ‘early in the proceedings learned the jury

\

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ROE BERG FIO SD RN ee TNS TLS TIRE EIR

13

was not unanimous. If the court believed there might

be unanimity on one or more counts the jury should have

been directed to retire to deliberate and return a verdict

upon such counts.

Petitioner respectfully suggests that this is an issue

that should be settled by this Court because of the im-

portance of the question and the need for guidelines to

be followed by trial courts in such situations.

Events Outside the Indictment and

Evidence of Other Crimes

From the very beginning of the opening statement

of the Government, throughout the entire trial, and in

the Government’s closing argument, the Assistant United

States District Attorney went to great lengths to empha-

size the long and continued nature of the defendant’s in-

come tax preparation business, constantly emphasized the

possible criminal nature of his business prior to the years

mentioned in the indictments, and repeatedly insinuated

that the defendant had been practicing criminal fraud

against the United States for numerous years, but had

only recently been brought to the bar of justice.

For example, even in her opening statement, the As-

sistant United States Attorney noted that Mr. Schnabel

had gone to the defendant for income tax assistance as

early as 1964, and when his conscience began bothering

him about certain deductions, he filed amended tax returns

from 1964 through 1971. However, the indictment charged

only that the income tax returns from 1968 to 1971 had

been fraudulently prepared. The same inferences were

made as to other taxpayers.

Each witness was asked as to how long the petitioner

had prepared his tax returns, and as to what years he

had filed amended tax returns, and as to how long they

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14

“knew” that the defendant might be claiming improper

deductions for them. The defendant’s objections to the

introduction of such evidence was overruled by the trial

court.

The trial court instructed the jury:

“Since intent has an element your objection will

be overruled. Ladies and gentlemen of the jury, for

any evidence admitted into the record here for your

consideration it does not concern one of the specific

counts, you will consider that iaformation only in re-

gard to whether or not there was an intent to violate

the law on behalf of the defendant.” (Tr, 195).

Of course, the instruction itself was clearly improper

and highly prejudicial in that it allowed the jury to con-

sider any evidence which did not concern one of the specific

counts on the question of intent. Such an instruction

is over broad, an improper statement of the law, and

allows the jury a roving commission to consider any evi-

dence which it chooses on the question of intent, perhaps

even evidence which has been objected to and the objection

sustained by the trial court.

During the closing arguments by the Assistant United

States District Attorney, Miss Senner argued:

“Now, Mr. Schnabel told you ladies and gentlemen

that when he looked at the ’64 return, his ’64 return,

he noticed there were items on there that he was

not entitled to claim and that he asked Mr. Amos

about them when he noticed these on the return. Well,

the first one he noticed was the credit union entry

of interest. As I recall Mr. Schnabel’s testimony, he

said that he had called Mr. Amos about this and did

not tell him as he should have ‘what is that doing

on my return, I don’t have any credit union interest’

Ie AA BNE LO EP AIS LS -

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*

15

but he said ‘What about this credit union interest’

and Mr. Amos said ‘Don’t worry about it, I can pro-

vide a receipt of the credit union’. . .” (Tr. 751-752).

Exhibits 23, 24, 25, 26, and 27

The trial court erred in admitting into evidence the

Government’s Exhibits No. 23, 24, 25, 26, and 27, in that

the exhibits constituted evidence of other crimes, and were

irrelevant to the defendant’s intent at the time of the

alleged offense.

For example, Government’s Exhibit No. 24 was a re-

ceipt made out to Frederick Keith Taylor indicating that

the Blue Ridge R.L.D.S. Church had received a financial

contribution from Taylor. It was the Government’s con-

tention that the receipts were false and fraudulent, and

were admitted into evidence although it was acknowledged

that the receipts were made out long after the alleged

offense had been committed. Government’s Exhibit No.

25 was a mass produced letter sent out by the Mission

Health Foundation to list the contributions which they

had received from the contributor who received the letter.

The Government contended that the letters were false

and fraudulent and they were admitted into evidence al-

though the particular exhibits were completed long after

the alleged offense had occurred. Government’s Exhibit

No. 26 was a record of local church contributions made

out in the name of Mr. and Mrs. Powell. It was also

admitted into evidence under the same conditions noted

earlier as was Government’s Exhibit No. 27, a listing from

the Central Stakes Savings Association showing interest

paid by Mr. Powell. Even assuming the documents to

be false and fraudulent, they constituted evidence of other

unrelated crimes in that presenting the same to the In-

ternal Revenue Service auditor constituted a criminal of-

fy Sue te ot RHE AO OR Bee SBE PLR! API i NMEA a LRP IER pat

16

fense in violation of 18 U.S.C. 1001, and 26 U.S.C. 7207,

and 26 U.S.C. 7206(c). In any event, because of the re-

moteness in time between the filing of the tax return

and the submission of the documents to the Government

auditor, these documents cannot logically be said to show

defendant’s intent at the time the tax returns in question

were prepared.

In Toussie v. United States, 397 U.S. 112, 90 S.Ct.

858, 25 L.Ed.2d 156 (1970), Mr. Justice Black stated:

“The purpose of a Statute of Limitations is to

limit exposure to criminal prosecution to a certain

fixed period of time following the occurrence of those

acts the legislature has decided to punish by criminal

sanctions. Such a limitation is designed to protect

individuals from having to defend themselves against

charges when the basic facts may have become ob-

scured by the passage of time and to minimize the

danger of official punishment because of acts in the

far distant past.”

The evidence clearly established that the documents

were not made, printed, or even thought of by the peti-

tioner until well after the time of the offense, and the

evidence was unreputed by the Government. In Hartman

v. United States, 215 F.2d 386 (8th Cir. 1954), the court

held:

“In order for wrongful acts not included in a

charge to be admissible to prove intent, they must

be of such a character that as a matter of logic they

tend to demonstrate a criminal intent in the acts within

the charge.”

As also noted in Hartman, such evidence may well

» have a cumulative effect which requires reversal. As the

court found:

17 p

“It need not be decided that some particular item

of the irrelevant testimony was of itself so prejudicial

as to necessitate reversal. The cumulative effect of

the mass of evidence outside the scope of the indict-

ment that was brought into the trial was to obscure —

the issue and to permit conviction that may well have —

been based on the general character of the defendant —

... The overall effect of the mass of evidence extrane-

ous to the issue was to allow the jury to suspect —

that the defendant was a bad character. His right

was to be tried for the specific offense charged against

him.”

SOT OES FOES

Ae RTE fC Be

Instruction

The trial court charged the jury that:

“Several documents have been offered in this trial

which the defendant contends are false and fraudulent.

You are instructed that the defendant, Lucien V. Amos,

was not charged with the submission of these docu-

ments and they are only allowed into this trial for

the purpose of showing the defendant’s intent at the

time he prepared the tax returns which are the subject

matter of the indictment.” (Tr. 804).

Obviously from the evidence it was the Government’s

contention that the exhibits were false and fraudulent,

and the petitioner contended (in fact it was an essential

part of petitioner’s defense) that the documents were valid.

Both the Government and the defense objected to

it and the trial court acknowledged its error, but refused

to correct it. The trial court’s only statement was “Some-

body is entitled to reverse me”. (Tr. 832). The court

reporter did not reflect the error, but all parties agree

it occurred.

ee ee te Ce a ice |

18

When the court exchanged the word “defendant” for

the word “government” it, in effect, removed all of the

precautionary element involved, which was the essence

and necessity of the instruction. In fact, the instruction

as given was highly prejudicial and inflammatory to the

defendant in that it told the jury that the defendant had

admitted the false and fraudulent nature of the documents.

The court, by this sc uciacit deprived the petitioner of

his defense.

Generally, the giving of an erroneous instruction to

the jury is grounds for a new trial where such instruction

influenced or may have influenced the verdict and was

prejudicial. In determining what is misleading or prejudi-

cial, the commonly accepted test is how the instructions

will naturally be understood by the average men compos-

ing juries. Government Employees Insurance Company

v. Davis, 266 F.2d 760 (5th Cir. 1959). Where the instruc-

tion is erroneous, or even confusing, reversal is required.

United States v. Harvey, 428 F.2d 782, 783 i970). A

conviction cannot rest on an ambiguous instruction or an

instruction which improperly defines a basic issue or de-

' fense for the jury. Bollenbach v. United States, 326 U.S.

/ 607, 613, 66 S.Ct. 402, 90 L.Ed. 350.

P Of course, it must be assumed that the jury listened

+ to and understood and followed the instruction as given

| by the court. To do otherwise would defeat the entire

\ purpose and meaning of jury instructions, and the court

instructed the jury it was their duty to follow the court’s

» instructions. Neither the balance of the instruction, nor

* any other portion of the instructions given by the trial

* court did anything to correct the false direction which

" had been given to the jury.

The Court of Appeals, in its opinion, found this to

be harmless error. This appears not to be reconcilable

19

with the guidelines on harmless error set out in Chapman

v. California (1967), 386 U.S. 18, 87 S.Ct. 824. A defendant

has, or should have, the constitutional right to have his

defense presented in the trial court’s charge and that that

charge be correct as to law and fact. Certainly due process

as guaranteed by the Fifth Amendment should include

this as a fundamental right of fairness. Petitioner submits

that this Court should decide this very important question

of federal law and that the Court of Appeals sanctioned

such a departure by the district court as to call for an

exercise of this Court’s power of supervision.

2. The Eighth Circuit Court Rendered a Decision

in Conflict with the Decision of Another Court of Ap-

peals on the Same Matter.

Jury Poll

The Fifth Circuit Court of Appeals in United States

v. Sexton (1972), 456 F.2d 961, held contrary to the Eighth

Circuit. In Sexton the trial court polled the jury at the

defendant’s request. When one of the jurors was asked

if the guilty verdict was her verdict, the juror responded

“I didn’t vote either way”. The Court then asked her if

the guilty verdict was her verdict and she then answered,

yes that it was. The trial court, however, sent the jury

back to the jury room to reconsider their verdict and to be

sure that it was the verdict of each one of them. He em-

phasized that there must be a unanimous verdict and

that all jurors must vote on it. Thereafter, the jury re-

turned from a second consideration of its verdict and an-

nounced a unanimous verdict of guilty. Another poll

showed that the verdict was then unanimous and the court

accepted the verdict.

The Fifth Circuit there found that the juror had been,

in effect, required to vote in open court and without fur-

ther deliberation with the other jurors, The court found

20

that by requiring the juror to vote publicly in an open

court room, rather than the jury room, Fed. Rule Crim.

Proc. 31 was violated and a reversal for a new trial was

required. The court further noted the obvious pressure

kept by the juror after returning to the jury room.

The Fifth Circuit quoted with approval with princi-

ples announced in United States v. Thomas, 449 F.2d

1177, 1181 (D.C. Cir. 1971). The court there found:

“Every defendant in a federal criminal case has

the right to have his guilt found, if found at all, only

by the unanimous verdict of his peers. Any undue in-

trusion by the trial judge into this exclusive province

of the jury is error of the first magnitude. When ef-

forts to secure a verdict from the jury reach the point

that a single juror may be coerced into surrendering

views conscientiously entertained, the jury’s prov-

ince is invaded and the requirement of unanimity

is deluded.”

See also United States v. Edwards (1972, 5 CA),

469 F.2d 1362; United States v. Matthews, 252 A.2d 505

(D.C. App.) and United States v. McCoy, 429 F.2d 739

(D.C. Cir. 1970).

CONCLUSION

Petitioner respectfully submits that this proceeding

involves a decision that conflicts with decisions in other

circuits, involves important questions of federal law

which has not been, but should be, settled by this Court,

and that the decision below has so far departed from the

accepted and usual course of judicial proceedings as to

cal] for an exercise of this Court’s power of supervision.

Rosert G. DUNCAN

2700 Kendallwood Parkway

Kansas City, Missouri 64119

Counsel for Petitioner

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APPENDIX

IN THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 73-CR-78-W-4

UNITED STATES OF AMERICA,

Plaintiff,

vs.

LUCIEN V. AMOS,

Defendant.

MEMORANDUM OPINION

(Filed September 27, 1973)

The 14 count indictment in this case charged in each

count that the defendant, Lucien V. Amos, did in violation

of 26 U.S.C. 7206 (2) willfully and knowingly aid and

assist in the preparation of certain specified United States

Individual Income Tax Returns for certain years, knowing

each of said returns was false and fraudulent as to a ma-

terial matter, namely, the itemized deductions which said

taxpayers were entitled to claim.

After a trial lasting several days the jury returned

a verdict of “guilty” on all counts (and judgment was

entered accordingly.) The court now has pending the

“Defendant’s Motion in Arrest of Judgment or in the al-

ternative Motion for New Trial” and the 10 points alleged

by defendant are as follows:

1. The indictment filed herein fails to state all the

essential facts or elements of the offense, and is not a

A2

plain, concise and definite statement of the essential facts

constituting the offense as required by Federal Rules of

Criminal Procedure 7(c); that said indictment does not

advise defendant of the nature and cause of the accusa-

tions made against him as required by the Fifth and Sixth

Amendments of the United States Constitution.

2. The evidence fails to establish the guilt of the

defendant of the offense charged beyond a reasonable

doubt.

3. That the evidence does not establish that the al-

leged offense was committed by the defendant with a

criminal or felonious intent.

4. The verdict is not supported by substantial evi-

dence.

5. The Court erred in denying defendant’s motion

for a directed verdict at the close of the government’s

evidence, for the reasons set forth in said motion which

are hereby incorporated by reference.

6. The Court erred in admitting into evidence the

government’s Exhibits Nos. “23”, “24”, “25”, “26” and “27”,

said exhibits constituting evidence of other crimes, irrele-

vant to defendant’s intent at the time of the alleged of-

fense, and inadmissible as hearsay.

7. The Court erred in charging the jury as follows:

“Several documents have been offered in this trial which

the defendant (emphasis added) contends are false and

fraudulent. You are instructed that the defendant, Lucien

V. Amos was not charged with the submission of these

documents and they are only allowed into this trial for

purposes of showing the defendant’s intent at the time

_ he prepared the tax returns which are subject matter

_ of the indictment,” and in refusing to charge the jury

A3

as follows: “Several documents have been offered in this

trial which the government (emphasis added) contends

are false and fraudulent. You are instructed that the

defendant, Lucien V. Amos was not charged with the sub-

mission of these documents and they are only allowed

into this trial for purposes of showing the defendant’s

intent at the time he prepared the tax returns which

are the subject matter of the indictment.”

8. The Court erred in charging the jury as follows:

“A deduction from gross income is allowed by the Internal

Revenue laws, within limits not pertinent here, for such

charitable contributions as are actually paid by the tax-

payer during the taxable year to religious, charitable, ed-

ucational and similar nonprofit organzations,” and in re-

fusing to charge the jury that charitable contributions

also include out-of-pocket expense and transportation ex-

penses in carrying out the charitable endeavors.

9. The Court erred in denying defendant’s motion

for a mistrial after the polling of the jury.

10. The verdict of guilty was not freely and unani-

mously given in violation of the Fifth and Sixth Amend-

ments of the United States Constitution.

In defendant’s Motion, the first five points deal with

the sufficiency of the indictment and the evidence. How-

ever, they are not substantiated in defendant’s brief by

any citations, references or comments.

We have carefully considered these and all the other

points raised and find no error in the record which war-

rants disturbing the verdict.

Count 1 of the indictment reads as follows:

That on or about the 26th day of January 1968 Lucien

V. Amos, in the Western District of Missouri, did, in viola-

A4

tion of 26 U.S.C. §7206(2), willfully and knowingly aid

and assist in the preparation of the U.S. Individual Income

Tax Return of Charles F. and Nina L. Schnabel, Jr., here-

inafter taxpayers, for the calendar year 1967 which are

false and fraudulent as to a material matter, in that it

represented that the said taxpayers were entitled under

the provisions of the Internal Revenue Laws to claim item-

ized deductions in the total sum of $2,292.43 whereas,

as the said LUCIEN V. AMOS then and there well knew

and believed, the total itemized deductions which the said

taxpayers were entitled to claim for the said calendar

year were in the total sum of approximately $1,720.43.

All other counts followed the same format with proper

variances as to the years, parties named, and the amounts

involved.

We fail to see how the indictment is in any manner

defective. It follows the language of the statute and com-

plies with the requirements of Federal Rules of Criminal

Procedure 7(c) in that it is a “plain, concise and definite

written statement of the essential facts constituting the

offense charged.”

Furthermore, it sufficiently informed the defendant

of the charges against him so that he could prepare to

meet them; and it was sufficiently definitive for the defen-

dant to plead double jeopardy in the event of further

proceedings against him. See, U. S. v. Grayson, 416 F.2d

1073 (5th Cir. 1969), cert. denied 396 U.S. 1059, reh. den.

399 U.S. 917 and Wheeler v. U. S., 317 F.2d 615 (8th

Cir. 1963).

As to the sufficiency of the evidence, there was an

abundance on all counts to support the charges in the

indictment, and the jury chose to disbelieve the testimony

of the defendant.

AS

Of the allegations of error contained in defendant’s

motion, it is the contertion of defendant that the most

aggravated was the denial of defendant’s motion for a

mistrial after the Court, on its own motion, polled the

jury. The Court first polled the foreman, Mr. Betts, who

was asked whether the verdict was not only that of the

jury, but also his personal verdict. Juror Betts responded

in the affirmative, and the Court proceeded to question

six more jurors in the same manner. Each of these jurors

indicated that the verdict was in fact his own. The next

juror was Mr. Crockett. Juror Crockett indicated that

he did not agree with the verdict of the other jurors.

Juror Crockett then stated something to the effect that

he had not understood what the jury was voting on and

said he thought the taxpayer should be held responsible

for the accuracy of his own tax return. The Court ques-

tioned juror Crockett with regard to each of the fourteen

counts to determine on what counts Juror Crockett dis-

agreed with the other jurors. Juror Crockett indicated

that he believed the defendant was probably guilty on

Count IV. The Court then proceeded to poll the remain-

ing jurors as to Count IV, and each stated defendant was

guilty. Upon request of defendant’s counsel to re-poll Juror

Crockett as to Count IV, the Court polled all the jurors pre-

ceding Juror Crockett as to Count IV and each stated that

defendant was guilty. When the Court again questioned

Juror Crockett concerning Count IV he again indicated that

he felt it was the taxpayers who were guilty. The Court

then asked the jury to retire to see if they could reach

a verdict, and defendant moved the Court for a mistrial.

The Court determined from polling that Juror

Crockett’s responses were based on his belief that the

taxpayer rather than the one who prepared the tax returns

should be responsible for their accuracy.

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The Court in the exercise of iis discretion felt that

the jury should re-consider the verdict and directed the

jury to go back to the jury room.

After a brief time fhe foreman sent word that the

jury had arrived at verdict’.

The Court, on its own motion, again polled the jury

and afforded opportunity to counsel for defense to ask

questions of the jury. This poll revealed proper verdicts

of the jury as toeach count. ~

Federal Rules of Criminal Procedure, Rule 31(d) pro-

vides as follows: =

“When a verdict is returned and before it is recorded,

the jury shall be polled at the request of any party

or upon the court’s own motion. If upon the poll,

there is not unanimous concurrence, the jury may be

directed to retire for further deliberations or may be

discharged.” ~

The purpose of polling the jury is to ascertain whether or

not the verdict, as announced by the foreman, is in fact

the verdict of all the jurors. It enables the jurors to cor-

rect a verdict mistakenly reached or about which the jurors,

on reflection, have some doubt. Humphries v. District of

Columbia, 174 U.S. 190, 194 (1899).

In this case the Court of its own motion polled the

jury. After the poll of the jury disclosed lack of unani-

mity, the Court sent the jury back to the jury room to con-

sider its verdicts.

~

The case at bar is not analogous to Brasfield v. United

States, 272 U.S. 448 (1926) cited by defendant, since in

that case the jury had indicated their inability to agree to

a verdict and the court asked the jury to reveal its division.

This case is more similar to Williams v. United States, 419

A7

F.2d 740, 744-47 (D.C. Cir. 1969), where as in this case a

juror became confused and the court tried to clarify the

verdict of the juror. The Court of Appeals for the District

of Columbia Circuit held (at 746) that “in our view these

efforts were essentially neutral and are not objectionable

as having been intended or calculated to affect her judg-

ment.” The Court distinguished a situation where the

trial judge attempted to clear up some confusion and ac-

tions that produced a likelihood that a juror had been

coerced.

In the Williams case, the court did not conduct an ad-

ditional poll when the jury again returned with a unani-

mous verdict. Here, the Court again polled the jury and

specifically asked Juror Crockett if he understood and

agreed with the verdict. Mr. King (attorney for defendant)

was asked by the Court if he desired to ask the jurors any

further questions and he indicated that he did not.

In United States v. Sexton, 456 F.2d 961, 964 (5th

Cir. 1972) the court condemned the practice where a juror

was “in effect, required to vote in open court and without

further deliberation with the other jurors.” In the Sexton

case the juror indicated that he had not voted either way

and the court continued to ask him what his verdict was.

The Court, citing its own case of United States v. Bendicks,

449 F.2d 313 (5th Cir. 1971), approved the procedure where

a district judge found upon poll of the jury that the verdict

was not unanimous, sent the jury back for further deliber-

ations, and when a unanimous verdict was reached and

the jury again polled the verdict was upheld.

The exact language of the Court at P. 315 is as follows:

“{5] Appellant’s additional contention that the ver-

dict was not unanimous likewise without basis. The

jury returned a verdict finding appellant sane. At

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the request of defense counsel, the jury was polled

and one member thereof declared that he had reached

an opposite verdict. The District Judge then in-

structed the jury to retire and resume its delibera-

tions as the verdict was not acceptable. Upon fur-

ther deliberation the jury again returned a verdict of

sanity and, as before, was polled. All jurors stated

that the verdict as read was their true verdict. De-

fense counsel thereupon accepted the poll as satis-

factory.

We find no error in the District Court proceed-

ings.

Affirmed.”

In the instant case, the Court, after juror Crockett’s

initial answer, merely polled the jury to determine whether

or not there was agreement as to Count IV. The Court

had previously indicated that if the jury agreed to only

part of the counts it would accept their verdicts on those

counts. The defendant made no objection to this proce-

dure previously announced by the Court.

In United States v. Brooks, 420 F.2d 1350, 1353 (D.C.

Cir. 1969) the Court of Appeals for the District of Columbia

Circuit held that Rule 31(d) of the Federal Rules of Crim-

inal Procedure “clearly . . . invests the trial judge with

a measure of discretion in assessing the impact of a

dissenting vote during a jury poll, and the reasonable ex-

ercise of this discretion should be accorded proper defer-

ence by a reviewing court.” The Court went on to say

that a jury poll clearly is on a different footing than the

Brasfield case supra, where the trial judge asked for the nu-

merical division of the jury. The court stated:

[The jury poll] has long been regarded as a “useful”

and necessary device for preserving the defendant’s

" x < eS EP RMN EI OE AN A AME RPE SODIEIOEE LEAL TELE

A9

right to a unanimous verdict even though, as appellant

points out, its psychological effect may be to exert

more pressure toward conformity than mere questions

on numerical division because of its tendency to isolate

the dissenting jurors. (Id. at 1354.)

The trial Court made several inquiries of jurors in the

Brooks case but the appellate court held that the in-

quiries were essentially neutral and not calculated to affect

the juror’s judgment. The situation is the same in the

present case.

ADMISSION OF DOCUMENTS PRESENTED TO

TAX AUDITORS

The defendant argues that Government’s exhibits 23,

24, 25, 26, and 27 were erroneously admitted into evidence

in violation of “the principle of law that prohibits the

introduction of evidence showing other criminal miscon-

duct on the part of the defendant.” The defendant further

claims that there was a long time lapse between the time

when the respective income tax returns were prepared

and the time the documents were presented. The defen-

dant further argues that there is no logical connection

between the intent at the time the tax return is prepared

and the intent at the time the documents were presented.

The Court finds that the jury was entitled to consider

whether the defendant’s action in submitting these docu-

ments to the tax auditors was consistent with his claim

that he merely put information provided by the taxpayer

on the returns. The jury was also entitled to consider

this in connection with the defendant’s statement to Agent

Roper that all these documents (except the T.I.C.U. docu-

ment) had been given him by the taxpayer. Evidence

of other crimes may be presented when it is necessary

to prove a material issue in the case and when its relevance

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outweighs any prejudicial effect. Wharton’s Criminal Evi-

dence §245 (1972). Here the defendant admitted on cross-

examination that he had prepared all of these documents.

In a case involving a violation of 26 U.S.C. §7206(2) a

basic issue is whether or not the defendant has made

an innocent mistake, has innocently written down the in-

formation the taxpayer had given him or has acted kinow-

ingly and wilfully. The defendant Amos claimed that

he had only put items on the tax returns which were

provided to him by the taxpayers. This testimony on

the part of the defendant was directly contradicted by

the taxpayers’ testimony. Thus, the question of intent

was a basic issue for the jury’s determination. The jury

was entitled to consider whether Amos’ actions were con-

sistent with his testimony or with that of the taxpayers

who testified Amos claimed deductions for amounts for

which they did not supply him information.

The defendant alleges that “Agent Roper had no per-

sonal knowledge that defendant had in fact, presented

these documents to the Internal Reveiue auditors, but he

was, nevertheless, permitted to so testify.” Agent Roper’s

testimony was to the effect that Mr. Amos had told him

that these were documents he had presented to the two

tax auditors and with the exception of the T.I.C.U. docu-

ment, Mr. Amos claimed these documents were ones fur-

nished to him by the taxpayers!

When Mr. Amos testified, he admitted that the docu-

ments were all prepared by him and had been presented

to the two tax auditors in support of the deductions claimed

on the taxpayer’s return. Agent Roper’s testimony was

that Internal Revenue Auditors in the ordinary course

of their business often make copies of the receipts or

documents presented to them by the taxpayers in support

of the deductions claimed on their return.

All

As to the question of whether or not the documents

should have been excluded cn the basis that they tended

to show evidence of other ‘crimes, there are many cases:

In United States v. Fidanzi, 411 F.2d 1361 (7th Cir.),

cert. denied, 396 U.S. 929 (1969), the Seventh Circuit held

that evidence relevant to a prosecution for filing fraudulent

tax returns and failing to file returns was not inadmissible

because it tended to show the defendant guilty of extortion,

another crime with which he was not charged. The Court

said at 1363:

The conversation, however, was an intergral part of

the transaction given rise to the payment of money

to Fidanzi, and clearly relevant to the issues in the

case. It was not rendered inadmissible because it

tended to show Fidanzi guilty of some other crime.

The Seventh Circuit reaffirmed this position in United

States v. Turner, 423 F.2d 481 (7th Cir.), cert. denied,

398 U.S. 967 (1970), where it said at 483-84:

It is well-settled that evidence of other crimes may

be presented when ‘they are so blended or connected

with the one on trial as that proof of one incidentally

involves the other; or explains the circumstances

thereof; or tends logically to prove any element of

the crime charged.’ [citations omitted]

The Eighth Circuit has also been faced with this ques-

tion and in United States v. Edwards, 443 F.2d 1286, 1293

(8th Cir.), cert. denied, 404 U.S. 944 (1971), held as follows:

While evidence of another crime is generally inadmissi-

ble, it is admissible when used to establish a material

fact or issue in the case. Spencer v. Texas, 385 U.S.

554, 560, 87 S.Ct. 648, 17 L.Ed. 2d 606, reh. denied,

386 U.S. 969, 87 S.Ct. 1015, 18 L.Ed. 2d 125 (1967);

en ¢

Al2

Love v. United States, 386 F.2d 260, 266 (8th Cir.

1967), cert. denied, 390, U.S. 985, 88 S.Ct. 1111, 19

~ L.Ed. 2d 1286 (1968); Tucker v. United States, 375 F.2d

363, 371 n.9 (8th Cir.), cert. denied, 389 U.S. 888,

88 S.Ct. 128, 19 L.Ed. 2d 189 (1967); Hess v. United

PI 3 8 TIGERS RINE PRE AL EGR IE NS ARNE OER DVT AEE EES

States, 254 F.2d 585, 588 (8th Cir. 1958); Smith v.:

United States, 236 F.2d 260, 267-268 (8th Cir.), cert.

denied, 352 U.S. 909, 77 S.Ct. 148, 1 L.Ed. 2d 118

_ (1956), reh. denied, 353 U.S. 989, 77 S.Ct. 1280, 1

L.Ed. 2d 1147 (1957); Bram v. United States, 226 F.2d

858, 863 (8th Cir. 1955); Hardy v. United States,

199 F.2d 704, 707 (8th Cir. 1952). We extensively

discussed this exception in Hardy v. United States,

supra, where we said: ‘|I]t has repeatedly been held

that the [exclusionary] rule will not be given ap-

plication to excluiie evidence which may incidentally

show arrest, incarceration or conviction for some other

offense, but which has relevancy and competency

otherwise, and which the trial court responsibly deems

a necessary or not inappropriate means in the par-

ticular situation of establishing some material fact or

aspect of the prosecution’s case.’ and in Love v. United’

States, supra, 386 F.2d at 266, where we held; ‘Evi-

dence of other criminal acts may, however, become

relevant and admissible where such evidence tends

to determine certain issues in the case tried.’ The

admissibility of such evidence is within the trial court’s

discretion. See United States v. Lewis, 423 F.2d 457,

459 (8th Cir.), cert. denied, 400 U.S. 905, 91 ‘S.Ct.

146, 27 L.Ed. 2d 142 (1970) and cases cited therein.

In Wakaksan v. United States, 367 F.2d 639, 645 (8th

Cir. 1966), cert. denied, 386 U. S. 994, 87 S.Ct. 1312,

18 L.Ed. 2d 341 ( 1967), we said: ‘Unless it is clear

that the qustioned evidence has no bearing upon any

of the issues involved, this determination is left to the

discretion of the trial judge,’

BEEP IGG PCS ON TTL IF OES

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COURT’S READING OF JURY INSTRUCTIONS

In reading an instruction which stated as follows:

“Several documents have been offered in this trial which

the Government contends are false and fraudulent... .”

Both counsel for the Government and the defendant were

reading from the court’s typed instructions as the court

orally instructed the jury. In reading this instruction,

the court made a slip of the tongue and substituted the

word “defendant” for the word “government.” The defen-

dant argued that this confused the jury. It is quite doubt-

ful that anyone would have noticed this slip of the tongue

if he had not been following along the typed instructions

as the court read them. The balance of the instruction

read as follows:

You are instructed that the defendant Lucian V. Amos

was not charged with the submission of these docu-

ments and they are only allowed into this trial for

purposes of showing the defendant’s intent at the

time he prepared the tax returns which are the subject

matter of the indictment.

This was in conformity with the court’s instructions

to the jury at the time the documents were admitted

into evidence, to-wit, that the documents were admitted

only for purposes of the jury’s consideration of the defen-

dant’s intent at the time the tax returns were prepared.

It is not reasonable to assume that anyone (after four

days of testimony in this trial) would not understand

that it was the Government’s and not the defendant’s

contention that the documents were false and fraudulent.

Any question raised by this minor misstatement was clari-

fied by the balance of the instructions.

It should also be noted that the court read the indict-

ment in its entirety and instructed the jury as to the

Al4

particular statutory provision which the government al-

leged the defendant violated. The court further instructed

the jury as to the essential elements of the offense. The

court finds that if there was any error it was clearly

harmless beyond a reasonable doubt.

CHARITABLE CONTRIBUTIONS INSTRUCTION

The defendant argues that the court should have in-

structed the jury on all possible items which could be

claimed as charitable contributions. This is not necessary

in view of the fact that the taxpayers testified they did

not furnish Mr. Amos with information justifying his claim-

ing the amount for charitable contributions that he placed

on their returns. In fact, as to taxpayers David K. Taylor

and Frederick Keith Taylor the taxpayers both testified

they furnished the defendant Amos with no information

as to any charitable contributions. It should be remem-

bered that it was in regard to Frederick Keith Taylor’s

tax return that Mr. Amos produced the receipt from the

Blue Ridge R.L.D.S. church showing contributions made

to that church by Frederick Keith Taylor. Frederick Keith

Taylor testified that he was not attending any church

during the years in question and that he had never been

to the Blue Ridge R.L.D.S. church and had not made

any contribution to that church.

It should further be noted that the court instructed

the jury that:

The evidence in the case need not establish beyond

a reasonable doubt that the deductions, as allowed

by the revenue laws, totaled the exact amount alleged

in the indictment, or that the allowable deductions

were overstated in the exact amounts alleged; but

only that the accused wilfully overstated, or caused

— SR A ON SIM a TERE NAS NY TOPIC

Al5

to be overstated, in some substantial arnount, the de-

ductions to which the taxpayer was entitled under

the Internal Revenue Laws, as charged in the indict-

ment. (emphasis added.)

The Court further instructed the jury that if the defen-

dant:

in good faith believed that an income tax return, as

prepared by him, truthfully reports the taxable income

and allowable deductions of the taxpayer under the

Internal Revenue laws, he cannot be guilty of wilfully

preparing or presenting, or causing to be prepared

or presented, a false or fraudulent return.

The Court’s instructions clearly stated that the defen-

dant could not be found guilty if he had innocently placed

an incorerct figure on the taxpayer’s return. The issue

in the case was not Whether or not the defendant had

misconstrued the tax law but whether or not he had wil-

fully and knowingly placed fraudulent items on the return.

This was the issue presented to the jury and upon which

they returned their verdict.

After a full consideration of all ten allegations of

error offered by the defendant, the Court finds that each

is without merit and defendant’s Motion should be denied.

Order to that effect will be entered this day.

DATED: This 24 day of September 1973.

/s/ Paul X Williams

United States District Judge

I Ne Ds MM GNI ASE SS LAB DI TN kw te

Al6

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 73-1819

Lucien V. Amos,

Appellant,

v.

United States of America,

Appellee.

Appeal from the United States District Court for the

Western District of Missouri.

Submitted: March 12, 1974.

Filed: May 15, 1974.

Before GIBSON, BRIGHT and STEPHENSON, Circuit

Judges.

BRIGHT, Circuit Judge.

Lucien V. Amos appeals his conviction on all counts

of a 14-count indictment charging him with willfully aiding

and assisting in the preparation of false and fraudulent

income tax returns of various taxpayers in violation of

26 U.S.C. §7206(2). He makes these contentions: (1)

that the trial judge, Judge Paul X Williams,’ committed

error in coercively questioning one juror during a poll

of the jury; (2) that the trial | judge erred in permitting

1. Of the Western District of Arkansas sitting by special

assignment in the United States District Court for the Western

District of Missouri.

ey ee ee iad

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the prosecution to introduce evidence showing that prior

to the dates covered by the indictment Amos had com-

mitted other crimes relating to income tax matters; and

(3) that the trial judge erred in instructing the jury.

We reject these claims and affirm the conviction.

Although Amos raises no claim of insufficiency of

the evidence to support the convictions, we believe it help-

ful to briefly relate the factual background. Amos is

a retired railroad postal service worker, who, for several

years has engaged in the practice of assisting taxpayers

in the preparation of their federal income tax returns.

Generally, these taxpayers were wage earners of modest

incomes. The evidence disclosed that as to each count,

Amos made false claims for deductions from the taxpayers’

income. The false deductions ranged from a low of about

$500 on the return covered by count one to a high of

about $2,700 on the return covered by count four. In

all but one instance, the various taxpayers who signed

the returns were unaware of the false deductions. When

some of these returns were audited by the Internal Rev-

enue Service, Amos attempted to cover up some false

deductions by submitting falsified receipts in support of

the deductions.

With this background, we turn to the issues raised

on appeal.

L

THE JURY POLL

After deliberating for about an hour and fifteen min-

utes the jury returned with its verdict finding Amos guilty

2. In his testimony, Amos contended that errors appeared

in the questioned returns because of honest mistakes made in their

preparation or as the result of information received

from the taxpayer. The jury resol any dispute in the testi-

mony in favor of the Government.

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on all counts. The court then proceeded to poll the jury.

The eighth juror polled, Mr. Crockett, stated that he did

not join in the verdict of guilty as to all counts. Thereupon

the following colloquy occurred:

THE COURT. Did you join in the verdict in any

of the Counts?

MR. CROCKETT. Yes, sir.

THE COURT. The jury will retire to re-consider

its verdicts, then as soon as you have reached unani-

mous verdicts—return the forms to Mr. Betts [jury

foreman], there has been a misunderstanding. As

soon as you have reached unanimous agreement, now

- - - Now, Mr. Foreman, in as much as there are

fourteen counts if there is unanimous consent on any

counts indicate the ones on which it is unanimous

because the Court would be inclined to receive that

verdict that is unanimous as to a count; that would

leave the jury to consider the ones that are not, am

I making myself clear?

MR. BETTS. Yes, sir.

Since the jury had been instructed that its verdict

on any one count should not control the verdict on any

other count, Judge Williams proceeded to inquire of juror

Crockett whether he agreed with his fellow jurors, who

had already responded, on any one count. Crockett indi-

cated his disagreement with his fellow jurors’ verdict on

all coutns except as to a guilty verdict on count four.

The judge then questioned the remaining four jurors as

to whether each agreed with the guilty verdict on count

four. Upon receiving affirmative replies, the court an-

nounced that it would receive the verdict only on count

four and that it would send the jury back to reconsider

the remaining counts. At that point, counsel for Amos

Alg

requested a further poll relating to count four. Accord-

ingly, the court proceeded to repoll the jury on count

four. In responding to the court’s further query, juror

Crockett said, “I don’t think the one that prepared the

income tax, the preparer, was guilty.”

At this point, the trial judge declined to accept any

verdict and in part instructed:

Ladies and gentlemen of the jury, none of these

verdicts will be received. This is not a unanimous

verdict and we cannot receive it.

The jury returned after 25 minutes with another

guilty verdict. Again the court polled the jury, but this

time all 12 agreed with the foreman’s pronouncement of

guilt. Thereafter the court further inquired of juror Croc-

kett, who responded as follows:

THE COURT. Now, since we have had the ma<-

ter of the identity, Mr. Crockett, are you certain you

understand?

MR. CROCKETT. I am certain I understand.

THE COURT. You intend to return a verdict

of guilty on each of the fourteen counts?

MR. CROCKETT. Yes, sir.

THE COURT. Mr. King [Amos’ attorney], do

you desire to address any questions to the members

of the jury?

MR. KING. No, Your Honor.

Amos now asserts that the interrogation in requiring

a juror to disclose his vote in open court on each count

and in thereafter directing that the jury retire to recon-

sider its verdict coerced a verdict in violation of Rule 31

(d), Fed. R. Crim. P. which, in pertinent part, reads:

SOMES cS es Bento eee |

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(d) Poll of Jury. When a verdict is returned

and before it is recorded the jury shall be polled at

the request of any party or upon the court’s own mo-

tion. If upon the poll there is not unanimous concur-

rence, the jury may be directed to retire for further

deliberations or may be discharged. ;

This rule specifically grants the trial judge a measure

of discretion in determining either to require the jury to

deliberate further or to grant a mistrial if it appears that

the verdict was not unanimous. See United States v.

Brooks, 420 F.2d 1350, 1353 (D.C. Cir. 1969). In this case,

Judge Williams directed that the jury retire for further

deliberation after learning that juror Crockett did not con-

cur in the finding of guilt on any of the counts. Whether

that ruling constitutes error depends on whether it is likely

that the proceedings conducted by the trial court coerced

the juror in arriving at his final verdict. Compare United

States v. Bendicks, 449 F.2d 313, 315 (5th Cir. 1971); Wil-

liams v. United States, 419 F.2d 740, 744-47 (D.C. Cir.

1969) (en banc); United States v. Brooks, supra at 1351-

54 (verdicts sustained as not coerced), with United States

v. Sexton, 456 F.2d 961, 964-67 (5th Cir. 1972); United

States v. McCoy, 429 F.2d 739, 741-742 (D.C. Cir. 1970);

Matthews v. United States, 252 A.2d 505, 506-507 (D.C. Ct.

App. 1969) (verdicts found to be coerced) .*

We need note a distinction between a case where

the trial judge interrogates the jury to clarify the confu-

3. Generally, in the cases upholding verdicts as not co-

erced, the trial courts have questioned the polled juror to resolve

any questions and then returned the juries for further delibera-

tions. In the cases finding verdicts to be coerced, the trial courts

have demanded in-court categorical responses from jurors who

expressed reservations or recalcitrance when polled, instead of

returning the juries for additional deliberations. Cf. Bruce v.

Chestnut Farms-Chevy Chase Dairy, 126 F.2d 224, 225-226 (D.C.

Cir. 1942) (civil suit).

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A2l1

sion engendered by a juror’s response to a poll which

is inconsistent with the foreman’s announcement of the

verdict, as in the present case, and one in which the

court requires a jury to reveal its decision when no verdict

has been returned, as in Brasfield v. United States, 272

U.S. 448 (1926). In the latter circumstances, the court’s

actions will be deemed coercive. But in the former, Rule

31(d) gives the court some latitude in polling of the jury

to clear up an apparent confusion. Williams v. United

States, 419 F.2d at 746.

Moreover, in evaluating the trial court’s polling pro-

cedure, since the trial judge is present on the scene, we

must pay due deference to his views on whether the recalci-

trant juror’s ultimate acquiescence in the verdict came

freely, without pressure from the cour:. United States

v. Brooks, 420 F.2d at 1353; Jackson v. United States, 386

F.2d 641, 643 (D.C. Cir. 1967).

Applying these principles, we hold that this record

demonstrates that Judge Williams interrogated juror

Crockett to dispel any confusion. When juror Crockett

on the second interrogation, which was requested by Amos’

counsel, indicated an apparent change of mind as to guilt

on count four, Judge Williams promptly refused to receive

the verdict and directed that the jury resume deliberations,

adding this comment:

I hope you are able to arrive at a verdict. If

you are well and good, if you are not well and good.

Additionally, after the jury returned its verdict, Judge

Williams ascertained from juror Crockett that he under-

stood the import of the verdict and that he agreed with

the guilty verdict on all counts.

We think it significant, too, that Amos’ attorney voiced

no objection to the court’s procedures in polling the jury

PRI Bie Fin LE ESO PY Ree BREEN

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or questioning of juror Crockett. This lack of objection

by counsel permits an inference that the procedures uti-

lized did not appear coercive at the time. See United

State v. Brooks, 420 F.2d at 1353-54.‘

In denying Amos’ post-trial motion to arrest judgment

or for a new trial, Judge Williams stated that ‘the inquiries

were essentially neutral and not calculated to affect the

juror’s judgment.” We find no error of law or fact in

this determination and, accordingly, affirm this ruling.

|

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re Rew

II.

ALLEGED ERRORS DURING THE TRIAL

Aros’ contention that the trial court erred in admitting

evidence of other crimes relating to income tax matters

_ rests on evidence introduced showing that defendant had

’ claimed false deductions for at least one taxpayer com-

mencing as early as 1964, although the indictment covered

. the tax returns prepared for the years 1968 to 1971, and

the Government’s introduction of certain exhibits showed

that Amos attempted to verify false deductions with false

documentation. The trial court rejected this same conten-

tion noting that the questioned evidence bore on intent

and was logically connected with proof of elements of

the crime charged, citing United States v. Fidanzi, 411

F.2d 1361 (7th Cir.), cert. denied, 396 U.S. 929 (1969);

- United States v. Turner, 423 F.2d 481 (7th Cir.), cert.

* denied, 398 U.S. 967 (1970), and United States v. Edwards,

_ 443 F.2d 1286 (8th Cir.), cert. denied, 404 U.S. 944 (1971).

_ We agree that the Government’s proof was proper. The

3 4. Amos’ counsel made no objection to the questions asked

by the trial court but, after the jury had retired to further con-

sider thcir verdict, did move for a mistrial at the suggestion of

the trial court to protect the record. Counsel in agreeing to

the court’s suggestion added nothing to the record by way of

specific grounds for the requested relief.

ahd ee RE RN cds Sais

A23

admission of such evidence fell within the trial court’s

discretion.

Amos also challenges certain instructions and com-

ments to the jury. In particular, appellant directs an

objection to the court’s limitation in its explanation of

charitable deductions under the Internal Revenue Code

to amounts “actually paid during the taxable year by the

taxpayer to religious, charitable, educational and similar

non-profit organizations.”

While the instructions did not specifically incorporate

such items as out-of-pocket expenses which taxpayer might

have incurred, the instruction in a general way appropri-

ately explained the law in the context of the case since

taxpayers testified that Amos did not receive information

from them justifying the charitable contributions listed

in various returns. The failure to further explain this

deduction in light of the record at best must be deemed

harmless error.

Finally, during the reading of the instructions the

trial court erroneously misread the text of his instructions,

stating that:

Several documents have been offered in this trial

which the defendant contends are false and fraudulent.

You are instructed that the defendant, Lucien V. Amos,

was not charged with the submission of these docu-

ments and they are only allowed into this trial for

5. In reviewing the transcript, we must note that the court

reporter has failed to index the exhibits offered and received by

designating the place in the transcript where any such exhibit

was marked and where any such exhibit was either received or

refused admission. This court finds it very difficult to review

claims of error without such an index. Court reporters in ful-

filling the:r duties to the court in preparing transcripts must

properly index the materials contained therein including a listing

of the exhibits as marked, received, or rejected.

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A24

purposes of showing the defendant’s intent at the time

he prepared the tax returns which are the subject

matter of the indictment.

The underlined word should have read “Government.”

Although the court apparently misspoke, we hold that

the error must be deemed harmless. As Judge Williams

aptly observed in his post-trial ruling on this issue:

It is not reasonable to assume that anyone (after four

days of testimony in this trial) would not understand

that it was the Government’s and not the defendant’s

contention that the documents were false and fraudu-

lent. Any question raised by this minor misstatemen‘

was clarified by the balance of the instructions.

We agree.

Judgment affirmed.

A true copy.

Attest:

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