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United States District Court, Northern District of Illinois, E.D

August 7, 1985


The opinion of the court was delivered by: Aspen, District Judge:


On April 12, 1985, an indictment was returned against defendant Daniel Marrinson ("Marrinson") charging him with four counts of filing a false income tax return in violation of 26 U.S.C. § 7206(1). Presently before the Court is Marrinson's motion to dismiss the indictment. For the reasons set forth below, the motion to dismiss is denied.


As an initial matter, we must address the failure of Marrinson's counsel to comply with certain Local Rules of the United States District Court for the Northern District of Illinois. First, although Milwaukee attorneys James M. Shellow ("Shellow") and Susan W. Brenner ("Brenner") have submitted various pretrial motions on behalf of Marrinson, they have not yet filed an appearance form. This violates Criminal Rule 2.01, which provides in relevant part:

    An attorney representing a defendant in any
  criminal proceeding in this Court or before a United
  States Magistrate shall file an appearance. This
  appearance must be filed prior to or simultaneously
  with the filing of any motion, brief or other
  document with the Court, or initial Court appearance,
  whichever occurs first.*fn1

Under General Rule 3.14(E), "[a]n attorney who fails to file an appearance form where required to do so by this Rule will be found to be in contempt of this Court and may be fined an amount not to exceed fifty dollars ($50)." Accordingly, we order Shellow and Brenner to file an appearance form*fn2 within five days; moreover, at the conclusion of Marrinson's trial we will decide whether to conduct a hearing to determine what, if any, sanctions should be imposed upon Shellow and Brenner for violating this Rule.

Marrinson's attorneys have also failed to designate as local counsel "a member of the bar of this Court having an office within this District upon whom service of papers may be made," as required by General Rule 3.13(A).*fn3 Penalties for failing to designate local counsel are set out in General Rule 3.13(B): the Clerk of the Court is to notify the attorney in writing that the designation must be made within thirty days, and if the attorney still fails to file the designation within that time, any documents filed by the attorney may be stricken by the court. In this case, it does not appear that the Clerk of the Court has notified Marrinson's lawyers to designate local counsel within thirty days. Therefore, we hereby order Shellow and Brenner to file their designation on or before September 6, 1985. Assuming that they will comply with this order, we now proceed to consider the motion on its merits.


Each reason Marrinson offers for dismissing the indictment is based on a single premise — that the income tax returns upon which Marrinson allegedly made false statements advised him that his entries were made "under penalties of perjury," but the statute under which he is charged, 26 U.S.C. § 7206(1), permits the imposition of penalties different from those provided by the general federal perjury statute, 18 U.S.C. § 1621. Indeed, § 7206(1) and § 1621 not only provide for different penalties, but they also have different statutes of limitations and require different burdens or modes of proof. Because of these differences, Marrinson argues that the tax form actually misleads taxpayers as to the consequences of making false statements, and that his indictment must be dismissed for three reasons: (1) the indictment does not apprise Marrinson of the charges against him with the specificity required by the Sixth Amendment; (2) the provisions of § 7206(1) are so vague as to deny due process; and (3) the indictment's construction of § 7206(1) creates an unconstitutional ex post facto law.

To better understand Marrinson's argument, it is helpful to review the development of § 7206(1) over the years. Under the earliest versions of the Internal Revenue Code ("the Code"), taxpayers were required to make their income tax returns under oath. Persons making false statements on their returns were punished under the general perjury statute, § 125 of the Criminal Code.*fn4 See, e.g., United States v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610 (1927); Levin v. United States, 5 F.2d 598, 599-600 (9th Cir. 1925).

In 1942, the requirement that individual returns be made under oath was eliminated. Instead, returns were required to "contain or be verified by a written declaration that [they were] made under the penalties of perjury." Revenue Act of 1942, § 136(a), Pub.L. No. 753, 56 Stat. 798, 836. Also in 1942, a new penalty provision was added to the Code, expressly adopting the penalties established for perjury in § 125. Section 145(c) stated:

    Any individual who willfully makes and subscribes a
  return which he does not believe to be true and
  correct as to every material matter, shall be guilty
  of a felony and, upon conviction thereof, shall be
  subject to the penalties prescribed for perjury in
  section 125 of the Criminal Code.

This penalty section was replaced in 1949 by a new provision, codified as 26 U.S.C. § 3809, which stated:

    Any person who 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 and,
  upon conviction

  thereof, shall be fined not more than $2,000 or
  imprisoned not more than five years, or both.

The penalties outlined in § 3809 were identical to those imposed in the general perjury statute then in force (as well as to the penalties imposed in § 1621 today). However, because § 3809 specified the penalties for making false statements on tax returns rather than simply adopting the penalties provided under the general perjury statute, the two statutes arguably moved a step apart.

The next step occurred in 1954, when the penalties for making a false statement on a tax return first diverged from the penalties in § 1621. Section 3809 was recodified as § 7206(1), and its penalty provisions were altered. The maximum permissible fine was increased from $2,000 to $5,000, and the maximum prison term was lowered from five years to three years.*fn5 Section 7206's fine provision changed again in 1982, when the maximum fine rose from $5,000 to $100,000 for individuals.*fn6

Considered together, Marrinson argues, these statutory changes demonstrate that § 7206 punishes something other than perjury. He claims that the reference to "the penalties of perjury" is not only anachronistic and useless but also impairs the validity and enforceability of § 7206 because it is misleading.

We disagree with this proposition. As the Fifth Circuit explained in Escobar v. United States, 388 F.2d 661 (5th Cir. 1967), cert. denied, 390 U.S. 1024, 88 S.Ct. 1411, 20 L.Ed.2d 282 (1968):

    Under the "plain meaning rule" of statutory
  construction it is clear that appellant was not
  charged with perjury. The statute does not say that
  one who willfully makes a false return "shall be
  guilty of perjury." In fact, it contains no language
  indicating that the crime of perjury is involved at
  all. The language "made under the penalties of
  perjury" is of purely historical significance. The
  phrase remains in the present statute as a "catch
  phrase" or "signpost" to indicate what types of
  documents are covered by the statute. Without this
  phrase any document would come within the purview of
  the statute and it would be identical (except for
  penalty) to 26 U.S.C.A. § 7207, which is a
  misdemeanor statute.

    When viewed in this light it is understandable that
  Congress left the phrase in the statute and that the
  Internal Revenue Service left the statement in its
  return forms after the statute requiring the returns
  to be sworn to was repealed. The phrase, outdated
  though it was, remained to provide an easily
  discernible limit to the application of § 7206(1) and
  its predecessors. It relieved Congress from having to
  substitute some new phrase. That it serves no other
  purpose is evidenced by the fact that perjury
  requires an oath, and no oath is required in an
  income tax return. Furthermore, in spite of the
  "penalties for perjury" language, Congress went on to
  provide another and much lighter penalty for the
  offense proscribed by § 7206(1), (3 years) than
  that provided for perjury under 18 U.S.C.A. § 1621 (5

Id., 388 F.2d at 664-65 (footnotes and citation omitted).

Marrinson's argument is largely a matter of semantics. The courts which have considered this matter are far from unanimous in their conclusions — some have labelled § 7206 "a perjury statute," United States v. Levy, 533 F.2d 969, 973 (5th Cir. 1976); Kolaski v. United States, 362 F.2d 847, 848 (5th Cir. 1966); but others have declared that filing a false return is "similar in nature" to perjury, Hoover v. United States, 358 F.2d 87, 89 (5th Cir. 1966), cert. denied, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59 (1966), or is simply "not perjury," United States v. Tamura, 694 F.2d 591, 602 (9th Cir. 1982). One court has stated that "it is unnecessary to resolve this dispute in semantics," Siravo v. United States, 377 F.2d 469, 472 (1st Cir. 1967), an opinion we share. Like the Fifth Circuit in Escobar, we believe that the phrase "the penalties of perjury" could not reasonably confuse a taxpayer concerning the consequences of filing a false tax return.*fn7

Our belief is strengthened by the wording of a portion of the general perjury statute that Marrinson has ignored throughout his arguments. Section 1621 punishes acts of perjury "except as otherwise expressly provided by law." The Reviser's Note to the statute explains that this phrase was inserted "to avoid conflict with perjury provisions in other titles where the punishment and application vary." the Note goes on to state that "[m]ore than 25 additional provisions are in the code." This indicates that Congress has not adopted the narrow definition of perjury suggested by Marrinson, and it provides ample warning to taxpayers that § 1621 is not the only statute which might be applied to the filing of false statements on income tax returns.

Thus, we find the premise upon which Marrinson bases each of his arguments to be flawed. Moreover, even when considered separately, none of the arguments appear meritorious. Contrary to Marrinson's assertions, the indictment does sufficiently apprise him of the charges against him. E.g., United States v. Grayson, 416 F.2d 1073, 1076 (5th Cir. 1969), cert. denied, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d 753 (1970). Similarly, § 7206(1) is not so vague that it fails to give fair notice of what conduct is prohibited; to the contrary, it quite clearly forbids a person from intentionally falsifying his tax return as to any material matter. See, e.g., United States v. DiVarco, 343 F. Supp. 101 (N.D.Ill. 1972), aff'd, 484 F.2d 670 (7th Cir. 1973), cert. denied, 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470 (1974). Finally, the interpretation of § 7206(1) contained in the indictment does not create any ex post facto law; the penalties imposed by § 7206(1) — and not § 1621 — have applied to Marrinson's alleged actions at all times.

Accordingly, Marrinson's motion to dismiss the indictment is denied. It is so ordered.

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