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UNITED STATES AMERICA v. GRAHAM (03/20/85)

March 20, 1985

UNITED STATES OF AMERICA
v.
GRAHAM, ROBERT B. ROBERT B. GRAHAM SR., APPELLANT; UNITED STATES OF AMERICA V. GREENSPUN, MILTON APPELLANT; UNITED STATES OF AMERICA V. KIRBY, WILLIAM P. WILLIAM P. KIRBY, APPELLANT; UNITED STATES OF AMERICA V. BALCHAITIS, JOSEPH, APPELLANT



On Appeal from the District Court for the Eastern District of Pennsylvania, D.C. Crim No. 83-00140-01, (Graham); D.C. Crim No. 83-00140-01, (Greenspun); D.C. Crim No. 83-00140-02 (Kirby); D.C. Crim No. 83-00140-03 (Balchaitis).

Author: Garth

BEFORE: GARTH and HIGGINBOTHAM, Circuit Judges and McCUNE,*fn* District Judge

Opinion OF THE COURT

GARTH, Circuit Judge

Robert B. Graham was convicted of conspiracy to defraud the United States, 18 U.S.C. § 371, and aiding the filing of false tax returns. 26 U.S.C. § 7206(2). William Kirby was convicted of conspiracy to defraud. Joseph Balchaitis was convicted of conspiracy to defraud, filing a false W-4 exemption certificate, and failure to file income tax returns, Milton Greenspun was convicted of conspiracy to defraud the United States. Each appealed.

All the appellants were involved in a group called the Committee for Constitutional Taxation. This group conducted a series of public seminars directed at educating citizens about tax protest, the constitutional aspects of income tax reporting, and the methods by which they could avoid paying taxes and thwart IRS investigations. At these seminars, attendees were instructed about how to file "fifth amendment tax returns" which disclosed little or no information about the taxpayer's income, but which contained entries stating "OBJECT - FIFTH AMENDMENT." They were also advised to set up foreign bank accounts and they were instructed to claim loss of memory if called by a grand jury.

The defendants challenge their convictions on a great number of grounds, all of which we find to be without merit.*fn1 Only a few of the alleged errors warrant discussion. Perhaps the most troubling challenge concerns a supplemental charge given to the jury after it had indicated that it was deadlocked. However, finding no reversible error preserved for review, we affirm all the judgments of conviction.

I.

The defendants' trial started on Wednesday, August 31, 1983. On Monday, September 12, while testimony was still being heard and two days before deliberations began, one juror sent the judge the following note:

Your Honor,

I would like to request of the court on behalf of the Jewish juror's [sic] and possible others, that we be dismissed on Friday at 4:00 P.M. This is the eve of Yom Kippur which starts the beginning of a 24 hour fast. We must be home to prepare and eat dinner before 6:00 P.M. in order to begin the holiday tradition of synagogue and our fast.

Thank you very much for your consideration.

Susan Ball

Seat #12

Ct. Ex. #3. The district court judge never directly responded to the jury with respect to this request. No member of the jury ever raised the issue again.

After hearing nine days of testimony, the jury retired at 3:44 p.m. on Wednesday, September 14, 1983 to deliberate on the thirty-six counts of the indictment. The jury was sent home at 5:27 that evening, then resumed its deliberations at 9:30 am the following morning, Thursday, September 15. The jury deliberated all day Thursday and was sent home at 10:05 p.m. The jury resumed its deliberations at 9:00 am on Friday, September 16. The evening of Friday, September 16, 1983 was the commencement of the Jewish High Holy Day of Yom Kippur.

On the morning of Friday, September 16, at 11:00 am, the jury sent the following note to the district court judge:

Your Honor,

After approximately 17 hours of deliberation we have reached a verdict against only one of the defendants on two counts.

After careful and intensive debate, there is no doubt in any of our minds that we can not reach a unaminous [sic] verdict on any of the other charges.

Therefore further deliberations would be fruitless.

David Racher

Ct. Ex. #8. The judge read this message to counsel and indicated that he would give the jury a supplemental charge.

At this point, counsel for Kirby, concerned that the jury might consider four o'clock that afternoon as a deadline for its verdict, requested that the jury be informed in the court's supplemental charge that they need not reach a verdict by four o'clock to be excused for the Jewish holiday. The judge assented to this request, stating, "All right I'll say something to that [effect]." However, in instructing the jury the judge failed to address the specific subject of a four o'clock departure time. The judge did tell the jury that "There are no time deadlines within which you must reach your verdict." Appendix at 239a. Thus, the instruction given to the jury did not directly respond to the juror's request which had been made four days earlier, but it did unequivocally state that no time limitations restricted the jury's deliberations.

The charge did include language which was aimed at obtaining a jury verdict by breaking the jury's deadlock:

If much the greater number of you are for a conviction, each descenting [sic] juror ought to consider whether a doubt in his or her mind is a reasonable one, since it makes no effective impression upon the minds of so many equally honest, equally conscientious fellow jurors who bear the same responsibility, serve under the same oath, and have heard the same ...


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