Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1988)

MEMORANDUM^* 

Wallace W. Taylor was convicted of subscribing to false tax returns for the years 1979 and 1980. 26 U.S.C. § 7206(1). He asserts the district court should have granted his motion to acquit because venue was not established and the government failed to prove the indictment as charged. He further asserts that instructions on good faith, reliance on expert advice, and a lesser included offense were refused improperly, and that the instructions as a whole were confusing. We affirm.

BACKGROUND

During 1979 and 1980, Taylor was president and major stockholder of Empire Boring, Inc., a corporation doing business out of Spokane, Washington. The indictment was based on the failure to report $175,000 of gross income out of a total income of $304,000.

His accountant, Mr. Lukes, prepared the 1979 and 1980 personal and corporate tax returns based on the information Taylor supplied. Evidence at trial revealed that Taylor never told Lukes about receipt of 13 checks totaling about $175,000, nor did he tell his bookkeeper. The unreported income was commingled in Taylor's personal savings account. According to Lukes, it would have been impossible for him to calculate income by working "backwards" from interest.

Between 1982 and 1986, Taylor spoke with attorney George Tutt regarding filing amended returns for the years 1979 and 1980. Tutt advised Taylor not to file them and Taylor followed that advice.

At the close of the government's case, Taylor moved for acquittal. He argued that the government had not established venue and had not proved he subscribed the returns on behalf of himself and his wife as charged in the indictment. The court denied the motion initially, then reserved ruling on the venue issue. The motion was ultimately denied at the end of trial.

DISCUSSION

Defendants must be prosecuted in the state and district where the crime was allegedly committed. U.S. Const. amend. VI; Fed. R. Crim. P. 18. Taylor argues that his motion to acquit, made pursuant to Fed. R. Crim. P. 29, was denied improperly because the government failed to establish he signed the returns in the Eastern District of Washington.

Our review of denial of a motion to acquit made at the close of the government's case is limited to the sufficiency of evidence offered by the government. See United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972). To preserve the right to that review, a defendant who goes forward with his defense after moving for acquittal must renew the motion. United States v. Patton, 771 F.2d 1240, 1243 (9th Cir. 1985). If he fails to renew, the original objection is waived and we review only for plain error. Id. Plain error review encompasses the sufficiency of all evidence, including that presented by the defendant. United States v. Figueroa-Paz, 468 F.2d at 1058.

The government argues that Taylor waived his motion because he failed to renew it within seven days after the jury returned its verdict. Fed. R. Crim. P. 29(c). He did file a motion for a new trial and arrest of judgment eight days after the verdict. These do not constitute renewal of a motion to acquit. See Fed. R. Crim. P. 33, 34. Although Taylor failed to renew the motion to acquit, our analysis does not stop here.

The motion with respect to the issue of venue was not denied at the end of the government's case. The court reserved ruling. That was error. "It is a mandatory requirement of Rule 29(a), that a motion for judgment of acquittal made at the close of the Government's evidence, be ruled upon before defendant is required to proceed with his evidence." Sullivan v. United States, 414 F.2d 714, 715 (9th Cir. 1969). The error, however, is not prejudicial if the government's evidence at the time of the motion is sufficient to support the verdict. See United States v. Dreitzler, 577 F.2d 539, 552 (9th Cir. 1978), cert. denied, 440 U.S. 921 (1979).

Venue is not an essential fact constituting the offense charged. United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974), cert. denied, 419 U.S. 866 (1974). It "need be proved only by a preponderance of the evidence, and can be established either directly or circumstantially." Id. (citation omitted). We must view the evidence in a light most favorable to the government.¹  United States v. Buras, 633 F.2d 1356, 1359 (9th Cir. 1980).

The court found "ample circumstantial evidence" presented by the government to establish venue. We agree. The government introduced evidence showing that Taylor's residence and office were in Otis Orchards, Spokane County. Lukes' office was in Spokane; he prepared the Taylors' personal and corporate returns at that office. The corporate returns filed in Ogden, Utah, had mailing envelopes still attached. The 1979 return was postmarked "Spokane"; the postmark on the 1980 return was illegible. Both envelopes had return addresses to Otis Orchards.

Spokane is within the Eastern District, where Taylor was tried and convicted. See United States v. Lukenbill, 421 F.2d 849, 850 (9th Cir. 1970) (court may take judicial notice of standard maps on the issue of venue). The government presented sufficient evidence from which the jury could find that Taylor subscribed the returns within the Eastern District of Washington.² 

The indictment charged Taylor with two counts of subscribing and filing false tax returns "on behalf of himself and his wife." He raised the government's failure to prove that he subscribed the returns on behalf of his wife in his motion to acquit. This portion of the motion, unlike the venue issue, was denied before he proceeded with his defense. Because he failed to renew at the end of the trial or within seven days thereafter, we review only for plain error. United States v. Patton, 771 F.2d at 1243; see Fed. R. Crim. P. 29(c).

The government was not required to prove that Taylor signed on behalf of his wife. It needed to prove only the essential elements of 26 U.S.C. § 7206(1): that Taylor (1) willfully subscribed and (2) filed a return containing information he knew to be false. See United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986). It presented sufficient evidence for the jury to find these elements. "Insofar as the language of the indictment goes beyond alleging elements of the crime, it is mere surplusage that need not be proved...." Id. (citations omitted). Denial of Taylor's motion was not error.

The adequacy of jury instructions is determined by examining the instructions as a whole. United States v. Brutzman, 731 F.2d 1449, 1453 (9th Cir. 1984). We review the failure to give requested instructions for abuse of discretion. United States v. Steel, 759 F.2d 706, 711 (9th Cir. 1985).

The court did not abuse its discretion by refusing to give a "good faith" instruction. The jury was well instructed on the subject of "willfulness." The willfulness instruction covered the possibility of mistake, accident, or other innocent reasons for subscribing a false return. The refusal to give a separate good faith instruction was not error. See United States v. Pomponio, 429 U.S. 10, 13 (1976) (per curiam).

Taylor proposed the following instruction:

If you find that WALLACE W. TAYLOR had discussed his income and taxes with an expert tax preparer and that the tax return herein was prepared by that expert pursuant to the discussions and WALLACE W. TAYLOR relied on them, then you must find that WALLACE W. TAYLOR did not willfully make a false statement and you should bring in a verdict of not guilty.

The instruction misstates the law. As written, it would allow the jury to acquit if they find (1) Taylor discussed his income and taxes with an expert tax preparer and (2) the return was prepared by that expert pursuant to those discussions. The instruction fails to state that reliance on an expert may be a defense only if the taxpayer made "full disclosure of tax related information." United States v. Claiborne, 765 F.2d 784, 798 (9th Cir. 1985); Bisno v. United States, 299 F.2d 711, 720 (9th Cir. 1961), cert. denied, 370 U.S. 952 (1962).

Here, the evidence showed that Taylor did not disclose to Lukes almost $175,000 of gross income. Refusal of the instruction was not error.

Taylor's apparent reliance on the advice of Tutt is irrelevant to the issue of willfulness because their conversations occurred after the returns had been subscribed and filed.

Taylor requested this instruction:

If the proof of the offense is shown to amount to less heinous conduct than that which can be defined by the statute, the offense may be prosecuted as a misdemeanor, and a verdict of guilty of a misdemeanor under 26 U.S.C. § 7207 may be returned.

A defendant is entitled to a lesser-included offense instruction if he (1) identifies the lesser-included offense within the offense charged and (2) demonstrates that a "rational jury could find the defendant guilty of the lesser offense but not the greater." United States v. Brown, 761 F.2d 1272, 1277 (9th Cir. 1985) (quoting United States v. Harvey, 701 F.2d 800, 807 (9th Cir. 1983)). We need consider only the second factor. In doing so, our focus is on the evidence adduced at trial. See Harvey, 701 F.2d at 807.

No rational jury could find Taylor guilty of the section 7207 offense but not the 7206(1) offense. Both require the same degree of willfulness. United States v. Bishop, 412 U.S. 346, 361 (1973). They differ only in that section 7206(1) requires subscription to a return "made under the penalties of perjury." See Escobar v. United States, 388 F.2d 661, 666 (5th Cir. 1967). Taylor admitted signing the returns and did not dispute that they contained the perjury declaration. The court did not err in refusing the instruction. See id. at 666-67; United States v. Gaines, 690 F.2d 849, 856-57 (11th Cir. 1982); see also United States v. Fritz, 481 F.2d 644, 645 (9th Cir. 1973).

The instructions as a whole were simple, direct, and clear. Taylor's claim to the contrary is meritless.

The judgment is AFFIRMED.