WILLIAM R. BARNES, PETITONER V. UNITED STATES OF AMERICA No. 90-7690 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The decision of the court of appeals (Pet. App. 4a1-4a2) is not reported. The opinions of the district court (Pet. App. 1a1-1a3, 3a1-3a5) are not reported. JURISDICTION The judgment of the court of appeals was entered on January 18, 1991. Pet. App. 4a1-4a2. The petition for a writ of certiorari was filed on April 15, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether it is duplicitous for an indictment to charge a defendant with committing willful tax evasion by failing to file a return, failing to pay the tax, and submitting a false W-4 form. 2. Whether Fed. R. Evid. 803(10) authorized admission of Internal Revenue Service documents showing that petioner had not filed an income tax return for any of the years of prosecution. STATEMENT After a jury trial in the United States District Court for the Western District of Pennsylvania, petitioner was convicted on four counts of tax evasion in violation of 26 U.S.C. 7201 (for the years 1983 through 1986). Pet. App. 3a1. The district court sentenced petitoner to two concurrent five-year prison terms, five years of probation, and special assessment of $150. Id. at 2a1-2a2. The court of appeals affirmed. Id. at 4a1-4a2. 1. Petitioner's salary during the years from 1983 to 1986 was between $25,000 and $32,000 per year. C.A. App. 93, 102-103, 108. Although he had filed federal income tax returns in earlier years, he did not file returns for these years. Id. at 298-333. In 1983, 1985, and 1986, he signed W-4 forms falsely stating that he was exempt from tax. Id. at 123-126, 130-133. Because of the false W-4 forms, the amounts withheld from his salary during this period were less than his tax liability. Id. at 93, 101-105, 108-112. In 1989 petitioner was indicted for tax evasion. Id. at 7-10. Each count of the indictment charged that petitioner "did willfully attempt to evade and defeat the income tax due and owing * * * by failing to make an income tax return * * * by failing to pay * * * the * * * tax, and by providing his employer with a false and fraudulent W-4 Employee's Withholding Allowance Certificate," in violation of 26 U.S.C. 7201. Pet. 7; Pet. App. 1a1. 2. Before trial, petitioner sought dismissal of the indictment. He argued that it was duplicitous because it charged him with two crimes: attempted evasion of assessment of income tax and attempted evasion of payment of income tax. Pet. App. 1a2. The district court rejected this challenge because the indictment charged petitioner only with attempted evasion of assessment, not attempted evasion of payment. Id. at 1a3. Petitoner renewed this objection after trial, but the district court summarily rejected it. Id. at 3a2. 3. During trial, the government introduced four documents certifying that the IRS had no record of a return filed by petitoner and his wife for 1983, 1984, 1985, or 1986. Petitioner objected and argued that the documents were inadmissible hearsay. The court admitted the documents under Federal Rule of Evidence 803(10) as proof of the absence of a public record. C.A. App. 314-328. 4. On appeal, petitioner contended, inter alia, that the district court (1) improperly denied his motion to dismiss the indictment as duplicitous, and (2) improperly admitted the IRS documents into evidence. The court of appeals summarily affirmed the judgment of the district court. Pet. App. 4a1-4a2. ARGUMENT 1. Petitoner's first contention (Pet. 6-9) is that the indictment was duplicitous. This claim is meritless. 26 U.S.C. 7201 provides: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 * * *, or imprisoned not more than 5 years, or both, together with the costs of prosecution. The indictment tracked the language of the statute, charging that petitoner "did willfully attempt to evade and defeat the said income tax due and owing to the United States of America" and then listed three acts by which petitoner evaded the tax: failure to file a return, failure to pay the tax, and signing a fraudulent W-4 form. Pet. 7. Petitioner contends that Section 7201 creates two crimes, attempted evasion of assessment of the tax (proscribed by the phrase "evade or defeat any tax") and attempted evasion of payment (proscribed by the phrase "or the payment thereof"), and that the indictment charged him with both of these crimes. Even granting petitioner's assumption that Section 7201 creates two separate crimes, this indictment clearly charges petitoner only with one of them. As the district court noted (Pet. App. 1a3), the indictment charges only that petitioner "attempted to evade and defeat the tax"; it does not charge that petitoner also attempted to evade and defeat the "payment thereof" /1/ Therefore, the indictment was not duplicitous. See United States v. Waldeck, 909 F.2d 555, 556-559 (1st Cir. 1990) (applying this analysis to reject a duplicity challenge to a similarly structured indictment). This claim warrants no further review. 2. Petitioner also contends (Pet. 10-13) that the trial court erroneously admitted certain documents under Fed. R. Evid. 803(6), the business records exception to the hearsay rule, even though the government did not prove who had created and examined the records. This claim is frivolous. Although petitioner conducted extensive voir dire in the district court to demonstrate that the documents were not admissible under Fed. R. Evid. 803(6), this argument was irrelevant to the district court's ruling, because the district judge explicitly stated that he was admitting the documents under Fed. R. Evid. 803(10) as evidence of the lack of a public record. /2/ Petitoner's arguments regarding admissibility of the documents under Fed. R. Evid. 803(6) thus offer no reason to doubt the correctness of the district court's interpretation of 803(10). Moreover, the courts that have addressed the question uniformly have held that IRS certificates of assessments and payments are admissible under Rule 803(10). See United States v. Bowers, 920 F.2d 220, 223-224 (4th Cir. 1990); United States v. Neff, 615 F.2d 1235, 1241-1242 (9th Cir.), cert. denied, 447 U.S. 925 (1980). Accordingly, this claim does not merit further review. CONCLUSION The petiton for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General SHIRLEY D. PETERSON Assistant Attorney General ROBERT E. LINDSAY ALAN HECHTKOPF BRET DIGNAM Attorneys MAY 1991 /1/ Petitioner's assertion that the indictment charges him with both crimes rests on the indictment's charge that failure to pay the tax was one of the actions by means of which petitioner attempted to evade assessment of the tax. In petitoner's view, this statement of a means by which he evaded assessment of the tax should be treated as a duplicitous charge of an entirely separate crime. See Pet. 8. But this cannot be correct, because, standing alone, the allegation that petitoner failed to pay the tax does not charge a violation of Section 7201. See Spies v. United States, 317 U.S. 492, 498-499 (1943). /2/ The court asked the government's attorney whether "this is the record of -- an absence of a record that you are offering at this point?" After an affirmative response, the court stated: "Rule 803.10 provides the standard for the admissibility of this evidence * * * and that rule has been satisfied." C.A. App. 328.