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UNITED STATES v. MARRINSON

August 7, 1985

UNITED STATES OF AMERICA
v.
DANIEL F. MARRINSON.



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

MEMORANDUM OPINION AND ORDER

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.

I.

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.

II.

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

  ...

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