Friday, January 7, 2011

Fifth Circuit on the Nature of 7206(1), Commonly Called Tax Perjury

In United States v. Bishop, 629 F.3 462 (5th Cir. 2010), the Fifth Circuit affirmed the defendant's conviction for 3 counts of tax perjury (Section 7206(1)). The panel rejected the defendant's arguments that (1) her trial violated the Sixth Amendment right to speedy trial, (2) that "the trial court violated her constitutional right to present a complete defense by preventing her from arguing that her case was a 'perjury case' rather than a 'tax case;'" and (3) the trial court erred in denying her motion for new trial based on ineffective assistance of counsel.

The Fifth Circuit's panel decision, authored by Judge Garza, addresses the first and the third issues well. Those issues are not unique to criminal tax trials, so I refer the interested reader to the opinion. I address here the third issue -- dealing with the 'perjury case' issue.

For context, section 7206(1) defines the crime as:

Any person who willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter
The panel first sets up the issue as being subject to "plain error" review. Turning to the merits of the defendant's argument under the plain error review standard, the panel says (discussion quoted in full, with parallel citations omitted):

Bishop's allegation of error stems from the district court's ruling preventing her attorney from asking IRS Special Agent Robert Whalen whether this case was "basically a perjury case." The Government objected to the question, and the court sustained the objection, observing, "This is a tax case." Bishop then moved on in her cross-examination. Her counsel took no steps to inform the district court that barring the question potentially violated Bishop's constitutional rights or to clarify the nature of the defense she was pursuing. Her argument on appeal, therefore, must be reviewed for plain error. To establish plain error, Bishop must demonstrate: (1) there was an error; (2) the error is "plain"; and (3) the error affected her substantial rights, was prejudicial and affected the outcome of the district court proceeding. United States v. Olano, 507 U.S. 725, 731-32 (1993). We will correct a plain error only if the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 736.

Bishop's argument hinges on a misreading of our discussion of § 7206(1) in State v. Adams, 314 F. App'x 633, 638 (5th Cir. 2009). In that case, we stressed, in obiter dicta, that a § 7206(1) false return case is "a perjury case," unlike, for example, a tax evasion or failure to file case. We interpret those remarks simply to distinguish a charge under § 7206(1) from other types of tax-related charges. We did not hold, nor would it make sense to hold, that false return cases are not "tax cases." n1 Regardless, even if Bishop's characterization of Adams were accurate, she could not show that the district court's ruling affected the outcome of its proceedings, as is required for a reversal based on plain error. The court's lone ruling on her questioning of Whalen did not prospectively prevent her from emphasizing the elements of the Government's case that she considered weakest. Moreover, we see no reason to think that the jury's verdict would have been any different even if she had emphasized those points in the manner she says she would have preferred. Reversal on this point is not warranted.
n1 In fact, later in the opinion, we made clear that Adams was a "tax case." 314 F. App'x at 652 (referring to another case as "also a tax case").
I am not sure exactly what the defendant's attorney hoped to gain strategically by classifying the Section 7206(1) charges as a perjury case.  I do think that counsel was properly entitled to ask that question and argue the point, though.  In my judgment, that is a fair characterization of the Section 7206(1) crime.  Although not admitting that point, the panel rejects the argument under the plain error standard because (i) defendant's counsel 's failed to press the point and (ii) the context, in the panel's mind, showed that error (if there were one) did not influence the jury's verdict.

Perhaps readers can address the issue of whether the defendant was prejudiced by the failure to characterize the case as a perjury case.

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