United States v. Swanson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4213
JOHNNY SWANSON, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-432-A)
Argued: April 11, 1997
Decided: May 5, 1997
Before WILKINSON, Chief Judge, and MICHAEL and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Michael S. Lieberman, DIMURO, GINSBERG & LIE-
BERMAN, P.C., Alexandria, Virginia, for Appellant. David Glenn
Barger, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Andrew R. Gordon, DIMURO, GINSBERG & LIEBER-
MAN, P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Scott W. Putney, Special United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
A jury convicted Johnny Swanson, III, of one count of corruptly
endeavoring to obstruct and impede the due administration of internal
revenue laws, in violation of 26 U.S.C. § 7212(a) (1994), and four
counts of filing false 1988 employment tax returns, in violation of 26
U.S.C. § 7206(1) (1994). The district court ordered the preparation of
a presentence report, which indicated that Swanson was responsible
for tax losses in excess of $5.4 million and suggested a guideline
range of 51 to 63 months. The district court sentenced Swanson to 60
months imprisonment and three years supervised release. Swanson
appeals, challenging his convictions and sentences. Finding no revers-
ible error, we affirm.
I.
Swanson's initial and principal challenge is that the applicable stat-
ute of limitations barred prosecution of all counts. Swanson presents
separate arguments concerning Counts Two through Five and Count
One. We address these contentions in order.1
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1 The Government argues that Swanson has waived his limitations
defenses because he did not attempt to present them to the jury. Swanson
did, however, file a pre-trial motion to dismiss based on the statute of
limitations and raised the limitations defense again immediately before
trial and at the close of the Government's case. Accordingly, we refuse
to find Swanson has waived these claims.
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A.
Counts Two through Five allege that Swanson made, signed, and
filed four false Employer's Quarterly Federal Tax Returns in violation
of 26 U.S.C. § 7206(1). The parties agree that§ 7206(1) is governed
by a six-year statute of limitations. See 26 U.S.C. § 6531.
Swanson claims that the statute of limitations began to run when
he prepared and signed the 1988 tax forms -- June 28, 1989. The
Government argues that the statute did not begin to run until the
forms were filed -- October and November 1990. This is a question
of law that we review de novo.
Section 7206 provides:
Any person who --
(1) Declaration under penalties of perjury
Willfully makes and subscribes any return, statement, or
other document, which contains or is verified by a written
declaration that it is made under the penalties of perjury, and
which he does not believe to be true and correct as to every
material matter . . .
...
shall be guilty of a felony . . . .
26 U.S.C. § 7206. The statute itself does not require the filing of a
return, only willful making and subscribing under the penalty of per-
jury. Swanson argues that the statute is therefore violated at the time
of signing, and that the statute of limitations begins to run at that time.
Every court to confront the question has held to the contrary. Some
have concluded that "[a] violation of 26 U.S.C. § 7206(1) is complete
when a taxpayer files a return . . . ." United States v. Marashi, 913
F.2d 724, 736 (9th Cir. 1990); see also United States v. Habig, 390
U.S. 222, 223 (1968) ("The offenses involved in Counts 4 [violation
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of § 7201] and 6 [violation of § 7206(2)] are committed at the time
the return is filed."). Others have reasoned that in order to "make" a
return, as required by § 7206(1), the return must be filed. See United
States v. Gilkey, 362 F. Supp. 1069, 1071 (E.D. Pa. 1973); United
States v. Horwitz, 247 F. Supp. 412, 413-14 (N.D. Ill. 1965); see also
United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996) (listing
"ma[king] and subscrib[ing]" as an element of a § 7206(1) offense).
We agree with these courts. Whether filing is viewed as a separate
implicit, but necessary, element of a § 7206(1) offense or as incorpo-
rated in the statutory "making" requirement, there can be no § 7206(1)
offense without filing. "Were it otherwise, the individual making the
return could substantially shorten the length of the statutory period by
subscribing the return months before it was filed and then retain it so
the statute of limitations would be running long before the govern-
ment had any notice of the offense." Horwitz , 247 F. Supp. at 414-15.
Furthermore, if the signing alone were illegal,"a person [could] be
prosecuted for (1) signing a return he never intends to file, or (2) sign-
ing a false return but then changing his mind about breaking the law
and sending in a correct return instead." Gilkey, 362 F. Supp. at 1071.
B.
Swanson's remaining limitations claim involves his conviction
under Count One for "corruptly endeavor[ing] to obstruct and impede
the due administration of the internal revenue laws" in violation of 26
U.S.C. § 7212(a).
First, Swanson asserts that the length of the statute of limitations
governing § 7212(a) is three years while the Government maintains
it is six years. The Internal Revenue Code provides a six-year period
"for the offense described in section 7212(a) (relating to intimidation
of officers and employees of the United States)." 26 U.S.C. § 6531(6)
(1994). Swanson argues that this parenthetical limits the reach of
§ 6531(6) to violations that include "intimidation of officers and
employees of the United States." The Government counters that the
parenthetical is descriptive and explains what § 7212(a) is, but does
not mean that only "intimidation" prosecutions under § 7212(a) enjoy
the six-year limitation period. We agree with the Government. As the
Ninth Circuit recently concluded after examining the structure of
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§ 6531, "the parenthetical language in§ 6531(6) is descriptive, not
limiting." United States v. Workinger, 90 F.3d 1409, 1414 (9th Cir.
1996); see also United States v. Brennick, 908 F. Supp. 1004, 1017-
18 (D. Mass. 1995).
Alternatively, Swanson argues that, even if the limitations period
is six years, his indictment and the evidence at his trial rested on acts
that occurred more than six years prior to his October 11, 1995 indict-
ment, i.e., prior to October 11, 1989. The indictment includes the fol-
lowing facts that occurred before October 11, 1989: (1) Swanson
changed the name of his business in July 1984 and December 1986
to get new employer identification numbers to avoid paying back
taxes; (2) on or about April 13, 1988, Swanson lied to the IRS about
whether the Swanson Group had employees and whether it had been
sold; (3) on or about July 26, 1989, Swanson prepared false income
tax returns for the years 1987 and 1988 for the Swanson Group; (4)
on or about August 21, 1989, Swanson prepared false Employer's
Quarterly Federal Tax Returns for 1987; and (5) sometime after June
28, 1989, Swanson prepared the false 1988 returns.
However, the indictment also alleges one crucial fact that did occur
during the limitation period: On or about November 29, 1990, Swan-
son filed the false 1988 returns. Additionally, the indictment notes
that at some time prior to March 2, 1994, Swanson falsely stated that
he had mailed and filed some of the 1987 and 1988 tax returns; he
also created and submitted falsified documents purporting to be cop-
ies of those returns. The indictment further states that between 1987
and the filing date of the indictment (October, 1995) Swanson had
destroyed the payroll records for 1987 and 1988. This conduct could
have occurred either before or after limitations ran or during both
periods.
"[T]he purpose of the criminal statute of limitations is to protect
individuals from having to defend conduct of the``far-distant past.'"
United States v. Blizzard, 27 F.3d 100, 102 (4th Cir. 1994) (quoting
Toussie v. United States, 397 U.S. 112, 115 (1970)). For this reason,
"``criminal limitations statutes are to be liberally interpreted in favor
of repose.'" Id. However, "[s]tatutes of limitations normally begin to
run when the crime is complete." Toussie, 397 U.S. at 115 (citing
Pendergast v. United States, 317 U.S. 412, 418 (1943)) (alteration in
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original); see also Blizzard, 27 F.3d at 102 ("[A] statute of limitations
normally will begin to run when the crime is complete.").
Because Swanson's offense under § 7212(a) was not completed
until he filed his 1988 returns -- in November, 1990 -- well within
the limitations period, we reject his claim that his prosecution was
barred by the statute of limitations. See United States v. Ferris, 807
F.2d 269, 271 (1st Cir. 1986) (finding that for the similar violation of
tax evasion under 26 U.S.C. § 7201, "it is the date of the latest act of
evasion . . . that triggers the statute of limitations."); see also United
States v. DiPetto, 936 F.2d 96, 98 (2d Cir. 1991) (concluding that "a
section 7201 prosecution involving the failure to file income taxes is
timely if commenced within six years of the day of the last act of eva-
sion."); United States v. Williams, 928 F.2d 145, 149 (5th Cir. 1991)
(same).
II.
Swanson next asserts that Count One was multiplicitous with
Counts Two through Five. We have defined multiplicity as "the
charging of a single offense in several counts.[1 Charles A. Wright,
Federal Practice & Procedure § 142, at 469 (2d ed. 1982).] The sig-
nal danger in multiplicitous indictments is that the defendant may be
given multiple sentences for the same offense . .. ." United States v.
Burns, 990 F.2d 1426, 1438 (4th Cir. 1993). Absent clearly contrary
legislative intent, "``where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.'" United
States v. Allen, 13 F.3d 105, 108 (4th Cir. 1993) (citing Blockburger
v. United States, 284 U.S. 299, 304 (1932)).
Under this test, Swanson's conviction under § 7212(a) was not
multiplicitous with his convictions under § 7206(1). The elements of
a § 7206(1) violation are: "(1) the defendant made and subscribed
[which includes filing] to a tax return containing a written declaration;
(2) the tax return was made under penalties of perjury; (3) the defen-
dant did not believe the return to be true and correct as to every mate-
rial matter; and (4) the defendant acted willfully." Aramony, 88 F.3d
at 1382. In contrast, the elements of a § 7212(a) violation are that the
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defendant: (1) corruptly, (2) endeavored, (3) to obstruct or impede the
administration of the Internal Revenue Code. See 26 U.S.C. §
7212(a); United States v. Williams, 644 F.2d 696, 699 (8th Cir. 1981).
Obviously, each of these offenses requires proof of facts that the
other does not.2 Accordingly, the indictment is not multiplicitous and
presents no possible Double Jeopardy problem.
III.
Swanson also claims that the district court improperly instructed
the jury on the definition of "corruptly" under § 7212(a). Swanson did
not object to the instruction at trial, and we therefore review for plain
error. See Fed. R. Crim. P. 52(b). Read as a whole the court's instruc-
tions were not plainly erroneous. Indeed, the court correctly defined
"corruptly." See United States v. Mitchell , 985 F.2d 1275, 1278 (4th
Cir. 1993).
IV.
Finally, Swanson argues that the district court overstated the tax
"loss" he caused for sentencing purposes. This is a factual finding,
which we review for clear error. United States v. Williams, 977 F.2d
866, 869 (4th Cir. 1992). There was no clear error here. The district
court adopted the findings in the pre-sentence report that Swanson
caused a tax loss of almost $5.5 million. The calculations in the report
do not appear to be faulty and the district court was entitled to rely
on them. See United States v. Terry, 916 F.2d 157, 160-162 (4th Cir.
1990). Indeed, as the Government pointed out at sentencing, Swanson
also evaded payment of corporate taxes and failed to pay taxes on
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2 Swanson's claim that "willfully" and "corruptly" constitute the same
element is meritless. "Willfulness" is a "voluntary, intentional violation
of a known legal duty." Cheek v. United States, 498 U.S. 192, 201
(1991). "``Corruptly,'" by contrast, "``describes an act done with an intent
to give some advantage inconsistent with the official duty and rights of
others' . . . . Misrepresentation and fraud. . . are paradigm examples of
activities done with an intent to gain an improper benefit or advantage."
United States v. Mitchell, 985 F.2d 1275, 1278 (4th Cir. 1993) (citing
United States v. Reeves, 752 F.2d 995, 998 (5th Cir. 1985)).
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embezzled income and none of these amounts were included in the
loss calculation. In view of this, the district court properly noted that
the pre-sentence report's loss figure "is probably a conservative esti-
mate." Accordingly, the district court did not err in sentencing Swan-
son based on a loss of almost $5.5 million.
V.
For the foregoing reasons, Swanson's convictions and sentences
are hereby
AFFIRMED.
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