United States v. Wilford K. Pulawa

532 F.2d 1301

76-1 USTC P 9337

UNITED STATES of America, Plaintiff-Appellee,
v.
Wilford K. PULAWA, Defendant-Appellant.

No. 75-2316.

United States Court of Appeals,
Ninth Circuit.

March 25, 1976.

Matthew S. K. Pyun, Jr., Honolulu, Hawaii, for defendant-appellant.

Harold M. Fong, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

OPINION

Before CHAMBERS and GOODWIN, Circuit Judges, and SWEIGERT,* Senior District Judge.

CHAMBERS, Circuit Judge:

1

This is an appeal from the conviction of tax evasion in violation of 26 U.S.C. § 7201, and of perjury in the preparation of income tax returns in violation of 26 U.S.C. § 7206(1), for three successive tax years: 1969, 1970, and 1971. Appellant was sentenced to three consecutive 5-year sentences for violations of Section 7201 (Counts II, IV and VI), and three consecutive 3-year sentences for violations of Section 7206 (Counts III, V and VII) or a total of 24 years.

2

Appellant's arguments that his sentences were improperly pyramided are without merit except in one respect. In the statutory scheme of the tax fraud laws, Section 7201 is deemed to be an inclusive section prohibiting evasion of tax in any manner. As the tax evasions of which appellant was convicted were accomplished by means, inter alia, of perjured tax returns, each perjury offense is deemed to be a lessor included offense that merged into the major offense under 26 U.S.C. § 7201, for each tax year in question. Sansone v. United States, 380 U.S. 343, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965); United States v. White, 417 F.2d 89 (2d Cir. 1969).

3

Section 7201 provides a maximum penalty of "not more than $10,000, or imprisonment of not more than five years, or both." Three consecutive five-year sentences therefore constituted the maximum imprisonment that could be ordered in this case.

4

Other arguments urged by appellant are without merit.

5

The judgment is modified by vacating the convictions and sentences on Counts III, V and VII, and, as so modified, is affirmed.

*

Honorable William T. Sweigert, Senior United States District Judge, Northern District of California, sitting by designation