United States v. Russell ( 1993 )

USCA1 Opinion

          July 20, 1993
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 91-2186

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 WILLIAM S. RUSSELL,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                       [Hon. Shane Devine, U.S. District Judge]
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                                 ___________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
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               William S. Russell on brief pro se.
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               Michael L.  Paup, Acting Assistant Attorney  General, Robert
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          E. Lindsay,  Alan Hechtkopf  and Karen  M. Quesnel,  Tax Division
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          Department of Justice, on brief for appellee.


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                 Per Curiam.  The appellant, William  S. Russell, owned a
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            business in  New Hampshire.  He  and his wife  took no salary

            from the business, but they used substantial amounts of money

            from corporate  accounts  to  pay  their  personal  expenses,

            failed  to declare the payments as income, and failed to file

            individual and corporate income tax returns.  Russell pleaded

            guilty  to  one count  of  conspiracy to  defraud  the United

            States,  18  U.S.C.    371, and  three  counts of  income tax

            evasion, 26  U.S.C.   7201, and received a twenty-seven month

            prison sentence.

                 Russell, who  was  represented  by  counsel  before  the

            district court  but appears  pro se here,  challenges neither
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            his plea nor his sentence, but argues that the indictment was

            "false and  fraudulent" because  it charged him  with evading

            the income tax  by, among  other things, failing  to file  an

            income  tax return.  According  to Russell, the indictment is

            therefore contradictory because without a return the Internal

            Revenue  Service cannot  make a  valid assessment,  without a

            valid assessment there can  be no tax liability,  and without

            liability there can be no evasion.

                 This  is incorrect.  The crime of income tax evasion has

            three  elements:  (1) willfulness,  (2)  existence  of a  tax

            deficiency,  and  (3)  an  affirmative  act  constituting  an

            evasion or attempted evasion  of the tax.  Sansone  v. United
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            States, 380 U.S. 343,  351 (1965).  A tax  deficiency "exists
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            from the date  a return is to  be filed and  . . . arises  by

            operation  of  law when  the return  is  not filed."   United
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            States v. Hogan, 861 F.2d 312,  315 (1st Cir. 1988).  As long
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            as the  tax is  "due  and owing"  in this  manner, no  formal

            assessment is necessary.  Id.
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                 Russell's  other arguments  are  equally without  merit.

            First, he was required by statute to make a return, 26 U.S.C.

              6012, and pay the tax owed.  26 U.S.C.   6151.  Second, the

            requirement that he file  a return did not violate  the Self-

            Incrimination  Clause of  the  Fifth Amendment.   See  United
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            States  v. Sullivan, 274  U.S. 259, 263-64  (1927).  Finally,
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            the district court had subject-matter jurisdiction, 18 U.S.C.

               3231,  as  well  as "territorial"  jurisdiction  over  the

            prosecution.  See United  States v. Lussier, 929 F.2d  25, 27
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            (1st Cir. 1991) (per curiam).

                 Affirmed.
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