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United States v. Harris

decided: August 5, 1975.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN H. HARRIS, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 CR 41 PRENTICE H. MARSHALL, Judge.

Thomas F. McAllister, Senior Circuit Judge,*fn1 Swygert and Stevens, Circuit Judges.

Author: Swygert

SWYGERT, Circuit Judge.

Numerous issues are raised in this appeal but the most substantial ones concern the question of what essential elements must be proved to establish a violation of 26 U.S.C. § 7212(b).*fn2

As of April 30, 1973 defendant John H. Harris had a delinquent federal tax account in an amount in excess of $12,000. Luther N. Scott, an Internal Revenue Service officer, was assigned to collect the account. On May 4, 1973 Harris supplied financial information from which Scott prepared a financial statement, which Harris signed. The statement failed to disclose that Harris owned a 1973 Chevrolet van in which he had $1500 in equity.

Upon discovery of Harris' ownership of the van, Scott and his supervisor decided to take enforcement action against Harris' assets. On October 25, 1973 revenue officers Scott and Kenneth Schons went to Harris' place of business. Scott presented Harris with a levy and explained that the levy authorized Scott to seize a 1968 Pontiac Firebird automobile owned outright by Harris, tow it away, store it, and eventually sell it and apply the proceeds against Harris' tax liability. Harris responded by telling the officers that no one was going to take his car from him.

The revenue officers, followed by Harris, then went out to the street where Harris' car was parked. Officer Scott asked Harris what he would do if the car was seized and Harris replied that he would get into it and drive it away. Scott told Harris he would merely get himself into more trouble because once the warning stickers were placed on the car it would then be under federal custody. Harris replied that he did not care. Officer Schons then placed the stickers, duly signed and dated, on the car.

Later that same day John W. Bedford, a criminal investigator for the Internal Revenue Service, went to Harris' place of business. He did not see the seized automobile in the vicinity. He proceeded to Harris' residence where he located the car, with the warning stickers removed, in the back of the driveway.

On October 30, 1973 Harris was arrested. In response to the arresting officer's question concerning the location of the automobile, Harris stated that it was in the State of Illinois. On November 12, 1973 Harris informed the federal authorities that the car was in the parking lot of the Internal Revenue Office in Skokie, Illinois and the car was found there without any warning stickers.

Harris was then tried and convicted by a jury of forcibly rescuing his seized automobile in violation of 21 U.S.C. § 7212(b). He was sentenced to forty minutes in the custody of the United States Marshal.

I

Harris' first contention is that the presentation of hearsay evidence to the grand jury effectively deprived him of his right to be charged by indictment. The only witness who testified before the grand jury was criminal investigator Bedford.

It is clear in this circuit that an indictment is not improper merely because it is based on hearsay. United States v. Wilkinson, 513 F.2d 227 (7th Cir. 1975). An indictment based on hearsay might possibly be subject to dismissal if there is a high probability that no indictment would have been returned had there been eyewitness' testimony or if the grand jury had been deceived as to the type of testimony it received. United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972). We find neither of these special exceptions in this case. The grand jury heard no false information and we do not think that revenue agent Scott would have given any additional relevant testimony that might have ...


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