# Petition for Writ of Certiorari — Amos v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 896

## Text

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

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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
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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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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’

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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

a

Al

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

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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

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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.

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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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Me ERY 4

fT ad OR

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2125%3A1. Public record. Not legal advice.