United States v. Strong ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4897
GERALD D. STRONG,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-91-DKC)
Submitted: September 30, 1997
Decided: November 17, 1997
Before LUTTIG and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph J. Gigliotti, Fulton, Maryland, for Appellant. Loretta C.
Argrett, Assistant Attorney General, Robert E. Lindsay, Alan Hecht-
kopf, Gregory Victor Davis, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gerald D. Strong was convicted by a jury of willfully failing to file
income tax returns for 1989, 1990, and 1991, in violation of 26 U.S.C.
§ 7203 (1994), and received a sentence of twelve months imprison-
ment. He was acquitted on three counts of tax evasion. Strong appeals
his conviction, arguing that the district court abused its discretion in
excluding testimony concerning a stroke he suffered in late August
1993 and in its response to a jury question about a tax "amnesty" pro-
gram. He also contends that the district court clearly erred in denying
him an adjustment for acceptance of responsibility under U.S. Sen-
tencing Guidelines Manual, § 3E1.1 (1995). We affirm the conviction
and sentence.
Strong applied for extensions of time to file his tax returns for each
of the years in question, but each time falsely represented that he
owed no tax. The extensions were granted, giving Strong an extra
year to file each return. However, he never filed them. Internal Reve-
nue Service Agent John Robertson testified at trial that he met with
Strong in June 1993 and advised him that he was the subject of a
criminal investigation. Subsequently, Strong completed his tax returns
for the years 1988, 1989, 1990, and 1991 and delivered them to Rob-
ertson. Under cross-examination by defense counsel, Robertson testi-
fied that Strong delivered the 1988 and 1989 returns in mid-August
1993 and delivered the 1990 and 1991 returns in October 1994. When
Strong's attorney asked why the 1990 and 1991 returns were deliv-
ered over a year later, the government objected. Defense counsel prof-
fered that Strong had suffered a stroke and was unable to complete
the last two returns until he had sufficiently recovered. The govern-
ment argued that the stroke was not relevant because it occurred well
after the crimes had been completed. The district court sustained the
government's objection.
2
The trial court's evidentiary decisions are reviewed for abuse of
discretion. See United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
1993). Evidence is relevant if it has "any tendency to make the exis-
tence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. "Evidence which is not relevant is not
admissible." Fed. R. Evid. 402. Because Strong's 1993 stroke did not
make his willful failure to timely file tax returns for the years 1989-
91 any more or less probable, it was irrelevant to the issue before the
jury. Consequently, the district court did not abuse its discretion in
excluding this evidence.
Strong maintained at trial that his failure to file was negligent
rather than willful. He testified that in 1992 or 1993 he read about an
"amnesty" program for delinquent filers and at that time decided to
complete and submit his tax returns. He said he was working on his
returns when Agent Robertson contacted him. Other than his testi-
mony, there was no evidence of any amnesty program for delinquent
filers1 or that he had actually begun work on his returns when he was
first interviewed by Agent Robertson. During jury deliberations, the
jury sent out a note asking for more information about the "Amnesty
Period." The district court responded that the amnesty program
involved a matter of law and was not a matter of concern for the jury.2
When a jury makes clear that it is having difficulties, the trial court
should "clear them away with concrete accuracy." United States v.
Ellis, ___ F.3d ___, 1997 WL 438752, at *14 (4th Cir. Aug. 6, 1997)
(quoting Bollenbach v. United States, 326 U.S. 607 (1946)). At the
same time, "the court must be careful not to invade the jury's prov-
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1 The government asserts on appeal that the IRS has a voluntary disclo-
sure program which was publicized in 1992. The program does not pro-
vide immunity from prosecution, but the voluntary disclosure is a factor
which is taken into consideration, as a matter of internal IRS practice, in
deciding whether to recommend criminal prosecution.
2 The parties have not chosen to include this portion of the trial tran-
script in the joint appendix or supplemental appendix. Because they
appear to be in general agreement about the question and the court's
response, we have not resorted to the original transcript to resolve the
issue.
3
ince as fact finder." Ellis, 1997 WL 438752 at *14 (quoting United
States v. Blumberg, 961 F.2d 787, 790 (8th Cir. 1992)). Here,
although the government did not object to Strong's testimony about
the supposed "amnesty" program, the existence of such a program
was not relevant to the issue of his guilt or innocence because Strong
learned of it only after he completed the crime of failing to file his
tax returns in a timely fashion. The court thus properly instructed the
jury that it was not a matter for them to consider.
Last, Strong maintains that the district court clearly erred in finding
that an adjustment for acceptance of responsibility would be "totally
inappropriate." The court cited the commentary to guideline section
3E1.1, which provides that the adjustment is not intended to apply to
a defendant who goes to trial maintaining his factual innocence as
Strong did. See USSG § 3E1.1, comment. (n.2). Strong argues that he
earned the adjustment by offering to enter into plea negotiations con-
cerning the failure to file counts. He maintains that he did not plead
to those counts because of the government's intention to charge him
with tax evasion as well. In any event, Strong did go to trial asserting
his innocence on all counts. In this circumstance, we find that the dis-
trict court did not clearly err in denying him the adjustment.
The sentence is therefore affirmed.3 We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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3 Strong's sentencing range was 12-18 months. The statutory maximum
for each of the three counts of conviction was 12 months. The district
court imposed a 12-month sentence in the belief that it could not impose
more. Had the court wished to impose a higher sentence, it had authority
under U.S.S.G. § 5G1.2(d) to impose a consecutive sentence on one of
the counts to the extent necessary to produce a sentence of up to 18
months. However, the government has not claimed error in this regard.
4