Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 CR 210 Richard B. Austin, Judge.
Pell, Circuit Judge, Campbell, Senior District Judge*fn* and Grant, Senior District Judge.*fn**
CAMPBELL, Senior District Judge.
Defendant Fred E. Jordan was charged in a four count information with failure to file an income tax return for the years 1966, 1967, 1968 and 1969, in violation of 26 U.S.C. § 7203. Following a jury trial, defendant was found guilty as charged in each count of the information. He thereafter received a sentence of one year on Count I, and sentences of one month on each of Counts II, III and IV, said sentences to run consecutively for a total of fifteen months. We affirm.
§ 7203 provides that "any person required . . . to make a return . . ., who willfully fails to . . make such return, . . . shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000.00, or imprisoned not more than 1 year, or both, together with the costs of prosecution."
During the years 1966 through 1969, defendant derived his income from the operation of C & L Service Co., of which he was the sole owner. In 1964, according to defendant's testimony, he was required by the Internal Revenue Service to undergo an audit of his 1963 return. Defendant testified that the agent who conducted the audit indicated that future returns would also be audited. Thereafter, and through at least 1969, defendant filed annual "returns" with the I.R.S. containing only his name, address and Social Security Number and asserting his refusal to "answer the above questions on the grounds of the Fifth Amendment . . .".
The various arguments raised by defendant on appeal may be summarized as follows:
(1) That the forms filed with the I.R.S. by the defendant satisfied the filing requirements of 26 U.S.C. § 6011, and accordingly the defendant may not be prosecuted pursuant to § 7203 for the misdemeanor offense of willfully failing to make a return.
(2) That once defendant had asserted his Fifth Amendment right against self-incrimination, he could not be prosecuted under § 7203 without first being afforded a judicial determination respecting the validity of his Fifth Amendment plea.
(3) That defendant was entitled to be charged by indictment.
(4) That the court erred in refusing to allow defendant to be represented by one Jerome Daly, a disbarred attorney.
(5) That the court erred in refusing to instruct the jurors that they were to judge the law, as well as the facts, of the case.
Defendant's first contention, that the "returns" which he filed were sufficient to satisfy the filing requirements of § 6011, must be rejected. As the Tenth Circuit stated in United States v. Porth, 426 F.2d 519 (1970):
"A taxpayer's return which does not contain any information relating to the taxpayer's income from which the tax can be computed is not a return within the meaning of the Internal Revenue Code or the ...