Friday, August 27, 2010

Seventh Circuit on Speedy Trial, Prosecutor Misconduct and Statute of Limitations

In United States v. Hills, 618 F.3d 619 (7th Cir. 2010), here, the Seventh Circuit addressed many common defendant arguments for reversal of their convictions and, for the most part, rejected them on grounds familiar to practitioners. The opinion is 45 pages long so I pick out only a few items that I think worthy of calling to the attention of readers.

1. Speedy Trial. The court rejected arguments that the statutory and constitutional rights to speedy trial had been violated. During the pre-trial phase, the attorney for one of the defendants made a strategic decision that he needed more time to prepare for trial even though his client did not want him to seek a continuance.
Notwithstanding [his client's] position, however, [the attorney] thought it best to continue the trial. [The attorney] told the district court that he had explained to [his client] that seeking a continuance was within his discretion as an attorney, and that he believed it was in [his client's] best interests to have the trial continued.
The other defense attorneys also were not ready for trial, so the court continued the case. The court of appeals ultimately sustained that continuance under the speedy trial analysis. In doing go, the court said (Some text, quotation marks and case citations omitted for readability):

Certain rights are fundamental, and therefore personal, to a defendant. Such rights include the waiver of the right to a jury trial, the right to plead guilty, the right to testify on one's own behalf, or the right to take an appeal. Although Appellants assert that the waiver of a right to a speedy trial is among these rights, they are incorrect. The right to a speedy trial is certainly an important right, yet trial tactics have always been within counsel's province. There is no requirement that counsel obtain the defendant's consent prior to making purely tactical decisions such as the decision to seek a continuance.
2. Improper Reference to Invocation of Fifth Amendment. The court reversed one of the defendant's conviction for prosecutorial misconduct. Despite being warned by the trial court, in closing argument, the prosecutor said:
And you don't really need to worry about that Fifth Amendment protection unless you're worried that you're [d]oing something illegal. They knew perfectly well precisely what they were doing.

* * * *

There are a number of things that are inconsistent with good faith in this case. Hiding things from the IRS, hiding records, lying to the IRS, paying a little tax to make it look like it's legitimate, creating entities that really do nothing except to funnel money through, taking the Fifth Amendment. In this case, they're using the Fifth Amendment not as a shield to protect themselves from incrimination, but as a sword to prevent the IRS from getting the information that they are entitled to.
There was some noise about which of the defendants the prosecutor was referring to, but apparently the defendant complaining on appeal was the only defendant who did not testify at trial. (Arguably, just arguably, the prosecutor's references were to a prior invocation of the Fifth Amendment by the other defendants during the investigation.) In any event, the court resolved any doubt by holding that the error was sufficiently egregious to warrant reversal. The court said:
What ultimately guides our conclusion that these comments were made in error was the fact that the prosecution cast invocations of the Fifth Amendment in a negative light, which is surely the very thing that the right against self-incrimination seeks to protect. As such, we are unable to say that the jury did not "naturally and necessarily" conclude that the prosecution's comments regarding the Fifth Amendment referred to Hills, the only defendant who did not testify in her own behalf. We therefore conclude that it was error for the government to make these references.
And, not only was it error, it was plain error and affected that defendant's substantial rights sufficient to warrant reversal but without prejudice:
The government's references to the Fifth Amendment cast insinuations of guilt upon defendants who linger in its protections. Were we to allow these sort of references, the government would have an incentive to undercut a defendant's Fifth Amendment rights in future cases, which is, of course, unfair to defendants. The public would be at a disservice because a fundamental protection ensured by our Constitution would be severely hampered. And the integrity of the judicial system and the respect for the rule of law established by our Constitution would be strained because we would be ignoring the very rationale for the Fifth Amendment's existence. We cannot permit the government's comments to pass without consequence under these circumstances. We must vacate Hills's conviction.

That does not mean, however, that Hills will necessarily walk free. Because Hills's convictions are being vacated due to the government's improper references to the invocation of the Fifth Amendment right against self-incrimination, there is no double jeopardy bar to her retrial. United States v. Doyle, 121 F.3d 1078, 1083-86 (7th Cir. 1997). In Doyle, we squarely addressed whether the prosecution's reference to the Fifth Amendment in closing arguments amounts to misconduct that would bar retrial. 121 F.3d at 1086. We explained that our circuit has implicitly rejected the idea that a prosecutor's intent to "prevail at trial by impermissible means" is enough to bar retrial. Id. (internal quotation marks omitted). Instead, we noted our position that the only misconduct that bars retrial is "the prosecution's intent to abort the trial. . . ." Id. (emphasis added). We declined to determine expressly our position, however, because Doyle did not present evidence that the prosecutorial misconduct at issue in his case was designed to secure a victory by resorting to impermissible tactics. Id.

We also decline to elaborate on this issue today. Instead, we find that because the government's references to the Fifth Amendment, although improper, likely were intended to refer to Tylman's use of that Amendment, there was no deliberate intent to secure a victory by using impermissible tactics. Because we have already addressed Hills's sufficiency of the evidence claims and found them to be lacking in merit, there are no other obstacles to the government's retrial of Hills. See id. at 1083. Her convictions will be vacated and remanded.
3. Calculation of Starting Point for Statute of Limitations. This is a really picky point, but the Seventh Circuit was just wrong in its statement (or, perhaps it was less precise than it should have been). In rejecting a statute of limitations argument, the Court gave the following dicta (case citations omitted):
The date on which an offense is complete, and thus, the date on which the statute of limitations begins to run, depends on whether the return is timely filed. If a return is timely filed, the statute of limitations begins to run on the due date of the return. For returns that are untimely, the operative date is the filing date, or the date on which the IRS receives the return. In such a case, the statute of limitations begins to run on the date that the IRS received the return.
The rules are more nuanced than the court suggests. The concepts turn upon whether the return is filed on or before the original due date of the return (for individual returns, April 15). Returns filed on or before the original date of the return are deemed filed on April 15. § 6501(b)(1); see Regs . § 301.6501-1(a) (deemed filing date applies to the original due date only). Returns filed after that original due date are still timely returns if there is an extension which normally extends to October 15. But, returns filed during the extension period are filed on the date they are received by the IRS. (The foregoing discussion does not take into account the special rules for returns due on a holiday or weekend or returns that the IRS receives outside the period otherwise allowed but which qualify for the timely-mailing, timely-filing rule of § 7502.) Are you yawning yet? But this is important because it can make a difference. Although we discuss here the criminal statute of limitations where the Government must act, there are parallel statutes of limitations, such as the refund statute of limitations, requiring the taxpayer to act within a certain number of years from the filing of the return; many practitioners assume that returns filed during the extension period have their statute of limitations calculated from October 15, the last date that they could have timely filed.  During the extension period, the statute of limitations is calculated from the date of actual filing, not the last day that the return could have been timely filed pursuant to the extension.


  1. Both the Seventh Circuit and Jack Townsend err re statute of limitations trigger for signing false tax return. The Court states the right statute of limitations trigger: the date upon which the offense is complete, but then defines "complete" to be upon the filing of the return (never mind that the taxpayer can only sign and mail the return; he can not receive or file it). The statute defines this crime to be the signing of a false tax return. Roughly: "Any person who signs an return knowing it not to be true and correct as to every material matter is guilty of perjury." It is a perjury offense and thus complete upon signing, i.e., complete upon the affirmation of the false statement. The statute adds no other elements to the crime beyond signing the document. Moreover, the Justice Department's prosecution manuel oks prosecuting any that have signed a return but never mailed it. All discussion about late returns and extensions & etc. are relevant only in the civil context, not in the criminal. Signing a tax return that is not true and correct as to every material matter is, as a matter of law, perjury: an act of affirming something to be true, while knowing it is false. In short, perjury is not lying under oath, but is an oath that is a lie. Thus, the crime is complete upon the oath or affirmation: whether fore swearing, as does the witness before testifying; or after swearing, as does the taxpayer in signing the return under penalties of perjury.
    But this case is all the more curious because the government expert CPA admitted that Defendant would have had to made another $50,000 for the year in question before he would have owed any tax; further, the government never identified any false statement on the return! The defendant reported all income and in fact took every deduction listed.
    Nevertheless, the government sends this poor fellow to jail and appoints self-confessed tax evader Turbo-Tax Tim secretary of the U.S. Treasury.
    The Seventh circuit has agreed to an en banc hearing on this question.

  2. To Anonymous:

    It helps me in thinking through your comments for me to state your position in my words. As I understand your position, it is the signing of the false tax return that starts the statute of limitations running rather than the filing of a false tax return signed under penalty of perjury. I understand your logic, but it is counterintuitive to me (that does not mean that it is wrong, just counterintuitive to me).

    What if the taxpayer signs a false year 01 return on 4/1/02 but doesn't send it in? Instead, on 4/15/02, he sends by mail a nonfalse year 01 return. Has he committed a crime by signing the false year 01 return on 4/1/02?

    To move to an analogous circumstance, suppose a litigant signs a false affidavit to be submitted to the court in order to obtain summary judgment. Has he committed a crime merely upon the signing or does the false matter have to uttered in the court?

    I have never focused on these concerns the way you have. Now, you do say that the DOJ Criminal Tax Manual says that tax perjury can be charged for false returns that are signed but never filed (I think that is what you say, although you use the term mailed). When you speak, I have found that you speak with authority, but still I would like to read that for myself. Can you point me to a citation for that proposition?

    Just speculating based on what I know now, perhaps the analysis (to support my intuitive view that the filing is required) would be something like this: A document that looks and smells like a return but is never filed is not a return. In this view, for something to be treated as a return subject to civil and criminal penalties (as well as assessment ab initio) would require that the document be filed with the IRS. Are you suggesting that the civil penalties can also apply to an unfiled document otherwise in the nature of a return and signed under oath?

    I hope we continue the discussion so that, we can (with contributions from others, hopefully) either get the right answer or just agree that there is no right answer pending a pronouncement from a court that gains traction with other courts.

    On the rehearing en banc which, as I read your comment, relates to the identification of a false statement issue, if you have the petition and related documents, I sure would appreciate your emailing them to me (which might, of course, blow your cover, unless you get a nondescriptive email account) or, alternatively, advise me in a further comment where I might obtain them.

    Thanks for all your comments on this blog.

    Jack Townsend


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