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United States v. Davenport

decided: July 15, 1987.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 CR 786, Paul E. Plunkett, Judge.

Author: Wood

Before WOOD, Jr., POSNER and MANION, Circuit Judges.

WOOD, Jr., Circuit Judge.

Defendant tax protestor, Amos David Davenport, was charged in Counts One, Two, and Three with tax evasion for the years 1980, 1981, and 1982, in violation of 26 U.S.C. § 7201 (1982), and in Counts Four through Eight with willful failure to file his tax returns for the years 1980 through 1984, in violation of 26 U.S.C. § 7203 (1982). At the conclusion of a jury trial the district court granted defendant's motion for judgment of acquittal on tax evasion Counts Two and Three. The jury convicted the defendant on the remaining counts.*fn1

Three issues are raised: (1) did the defendant have the right to inspect and copy the records maintained by the district clerk concerning selection of prospective jurors; (2) was the government's evidence sufficient; and (3) was the jury properly instructed.


The defendant worked full time on an hourly basis for the same steel company for about twenty years. For the taxable years involved, 1980 through 1984, the defendant's annual gross income varied from approximately $28,000 to $33,300. For the prior years for which the defendant was not charged, 1976 through 1979, the defendant filed his tax returns, but for the years involved in this case he did not. In March 1978 when the defendant filed his 1977 federal income tax return he showed some signs of becoming, as he eventually did, a tax protestor. With his return he enclosed a letter to the Internal Revenue Service ("IRS") in which he explained how he was computing his taxes:

Nowhere in the instruction booklet could I find a computation table that ideally conforms to my particular demands. * * * Ex-President Richard M. Nixon and cohorts has had access to such a table apparently, in that he based his taxes on less than one half of one percent .005 percent. * * * This is the formula I am basing my taxes on since the Constitution of the United States of America requires that taxes be levied equal to all.

Based on his self-serving analysis of the Constitution the defendant then requested a refund of $3840.62 from the taxes that had been withheld in accordance with the Form W-4 he had filed with his employer on which he had claimed three exemptions.

Two years later in March 1980 the defendant filed a new Form W-4 on which he merely claimed to be "Exempt" from withholding, which resulted in no federal taxes being withheld by his employer for that year. For some reason the defendant was not satisfied, as manifested two months later by his filing another Form W-4, again claiming to be exempt, and by filing yet another Form W-4 in December of that year on which in addition to his claim of being exempt he advised the IRS that he was a full-time student. In January 1981 be again filed a new Form W-4 claiming 31 allowances, a sizeable number for a full-time student. This reduced the defendant's income tax to a minimal sum. He filed a considerably greater number of Forms W-4 than he did tax returns.

In March 1985 the United States Attorney for the district, as a polite gesture, had hand delivered to defendant's home a letter that advised the defendant and his wife that the grand jury was very interested in their tax paying behavior and suggested that they file tax returns. The defendant's response was not considered by the United States Attorney to be adequate. The defendant advised the United States Attorney that prior to receiving the government's letter he and his wife had done a lot of research and studying on the subject of income tax and that they were continuing their research. Perhaps that "studying" was what the defendant had reference to when he claimed to be a full-time student. In any event he got himself indicted.

At trial an IRS Revenue Agent, Richard Lexby, testified as an expert witness in determining income and computing the resulting income tax liability. His testimony established that the defendant was required to file tax returns for the pertinent years because the defendant's gross income exceeded $6400. Revenue Agent Lexby explained that the defendant's gross income filing requirement of $6400 was computed by adding the exemption allowed for a married couple filing jointly to the individual exemptions for the defendant, his wife, and his daughter.

The defendant did not testify in his own behalf. Only one witness did, John Hyde of Hammond, Indiana, who described himself as a businessman and an Illinois and Indiana lawyer, but who had practiced only off and on since 1952. In general Mr. Hyde testified that he and the defendant attended various meetings sponsored by Citizens For Just Taxation during 1980, and thereafter he conversed with the defendant about tax law. His theory, as Mr. Hyde said he explained to the defendant, was that the income tax is a tax on net receipts after deduction of all expenses, and that wages were therefore not income. Further, he advised the defendant that the tax laws did not apply to him, but only to those working for the government or to officers in corporations. In addition Mr. Hyde stated to the defendant that 98 percent of federal reserve notes are "bogus." The defendant like what he heard. However, on cross-examination Mr. Hyde admitted that he also advised the defendant that there were cases that had held to the contrary, that wages were income and that the defendant risked criminal prosecution if the defendant followed his advice. At least that much of Mr. Hyde's advice to the defendant was absolutely correct.*fn2


A. Jury Lists

The defendant sought the right prior to inspect and copy all the records maintained by the district clerk concerning the selection of prospective jurors pursuant to section 1867(f) of the Jury Selection and Service Act ("Act"). 28 U.S.C. §§ 1861-1869 (1982).*fn3

The defendant's motion to inspect jury lists without supporting affidavit relied on the authority of Test v. United States, 420 U.S. 28, 42 L. Ed. 2d 786, 95 S. Ct. 749 (1975), and defendant's sixth amendment rights. The defendant sought in particular the completed "Juror Qualification Questionnaires so that a meaningful review of the potential jurors can be conducted by the Defendant."*fn4 The defendant alleged that the jury selection plan had the effect of systematically excluding from the master lists disproportionate numbers of students, blacks, people with Latin surnames, and citizens who are not registered to vote. As an example defendant claimed that in one Chicago ward in a particular primary election only 103,000 of the 257,000 Hispanics eligible to register to vote had in fact registered.*fn5 The defendant recognizes the validity of using voter registration lists as a primary source for selecting prospective jurors, but argues that the lists must be supplemented from other sources. The defendant also relies on the general policy statement in section 1861 of the Act that all citizens shall have the opportunity to be considered for jury service in the district courts, and the provision in section 1863(b)(2) that the plan shall prescribe other sources of names in addition to voter lists where necessary to foster that policy.

We discussed similar issues in United States v. Gometz, 730 F.2d 475 (7th Cir.) (en banc), cert. denied, 469 U.S. 845, 83 L. Ed. 2d 92, 105 S. Ct. 155 (1984). In Gometz we considered the fact that although there was only a 30 percent return to the clerk's office of juror qualification forms mailed to registered voters, the response generated over 4000 qualified people for the jury wheel. Gometz had objected to the small numbers of blacks in the wheel and even argued that persons marked by a certain type of personality, those who are "anti-authoritarian" and therefore would ignore the system, would also be excluded. We held, however, that it is the size of the sample which is significant rather than its ratio to the population from which it is drawn that determines whether the method is satisfactory. The Act, we held, does not require that prospective jurors be conscripted to satisfy some rigid and unrealistic formula.

The jury plan for the Northern District of Illinois does have a provision in compliance with the Act that at such time as the court may find that the use of other prospective juror sources is necessary to foster the policy of the Act the court may direct that other sources be used. It is left to the court to determine the other sources whenever that need may arise. The defendant, however, is not satisfied because the other possible sources are not identified in the plan itself. The defendant claims that over 20 percent of the persons who are eligible for jury duty are not registered voters and are therefore excluded, thereby making the use of other sources necessary.

Test v. United States, 420 U.S. 28, 30, 42 L. Ed. 2d 786, 95 S. Ct. 749 (1975), holds that a criminal defendant has an essentially unqualified right to inspect jury lists. That brief three-page opinion does not fully resolve the present case although the defendant has attempted to cast his motion in a Test context. The court of appeals in Test had not addressed the issue although the district court had denied the motion to inspect the lists. The Supreme Court remanded the case to give the defendant the opportunity to inspect the jury lists so that he might attempt to support his challenge to jury selection procedures. No documents were involved in Test other than jury lists. Test does not hold that completed juror questionnaires must be made available to defendants in addition to jury lists. Neither party has claimed in the present case that the government had access to the questionnaires, while the defendant did not.

Prior jury lists on a monthly basis are available as a public record in the clerk's office. Defendant has shown no reason why those lists would not be adequate for his purposes. If the system is not working in accordance with the Act's requirement the available lists could be of use in establishing an alleged deficiency. Defendant has not demonstrated why other records besides those available jury lists might be required.

The Act itself, in section 1867(f), provides that the contents of records or papers used by the clerk shall not be disclosed unless those records' contents are shown to be "necessary" for the preparation of a motion to claim, under section 1867(a), that there has been a "substantial failure to comply" with the Act. The defendant has not shown why more is needed than what is already available or why the statutory prohibition of disclosure needs to be breached. Neither has the defendant set forth any "substantial failure to comply." Even if defendant's speculation is correct about those persons who are not adequately represented on the voter registration lists no substantial failure would exist. There is no need to search for and use other sources. Voter lists take in a cross section of the community of sufficient magnitude to satisfy the Act in the absence of some particular circumstance or scheme undermining the worthy purposes of the Act. The defendant claims nothing of that sort, only that the voter registration lists do not have enough names from certain categories, particularly Hispanics. The jury lists already available to defendant could have been used to try to show some substantial Hispanic disparity. Relying merely on names might not always to completely accurate for that purpose, but what was available was not used here.

Defendant is making a claim that appears to us to lack any bona fide basis, a frivolous exploration. What defendant really desires, and what he particularly asked for in his motion, were the juror questionnaires completed and returned to the clerk. Those questionnaires contain prospective jurors' home addresses and other personal information. To give the defendant an absolute right of routine access to all materials would be an amendment of the Act. The defendant may be seeking those forms as an aid for voir dire examination purposes, but that is not the purpose of the questionnaires. If these completed judicial jury forms were released to defendants generally there would exist the possibility of substantial abuse of the information the forms contain, which could have serious consequences for individual jurors and the system.*fn6

B. Sufficiency of the Evidence

The defendant's motion for judgment of acquittal at the close of the government's case was allowed only as to Counts Two and Three, which were tax evasion charges for the years 1981 and 1982. The district judge found the government's proof insufficient to show that the defendant was not entitled to the 31 allowances the defendant claimed on his new Form W-4 filed in January 1981.*fn7 However, the district court denied the defendant's motion as to Count One, which was the tax evasion charge for the year 1980. On the Form W-4 filed for that year the defendant claimed to be exempt because he was a full-time student, whereas it was clear he was still regularly employed as he had been for prior years at the steel company.

The defendant claims that the trial judge should also have allowed his motion as to Count One because the Form W-4 in question, on which the defendant claimed to be a full-time student, was dated December 18, 1980, and was therefore only in effect a few weeks until the end of the year, or no later than January 18, 1981, at which time the defendant filed a new Form W-4 on which he claimed the 31 allowances. That argument is of no moment because the Form W-4 filed on December 18, 1980, was the third false Form W-4 the defendant had filed for that year and obviously was a part of his scheme to avoid paying taxes for that year.

The defendant also claims that there was reasonable doubt that he had a substantial tax liability for 1980. This argument is based on the claim that he could have been entitled to additional deductions, if itemized, above the standard deduction and that those unknown deductions are hidden in his extensive use of cash. Subtracting the $1538.32 withheld in taxes by the defendant's employer in 1980 Revenue Agent Lexby calculated a tax deficiency owing of $3358.68. Revenue Agent Lexby gave the defendant credit for any possible deductions that could have been itemized.

Our standard of review of a sufficiency of the evidence claim has long been recognized to be that we will affirm the conviction if after viewing all of the evidence, along with reasonable inferences in the light most favorable to the government, there is substantial evidence supporting the verdict, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), or if there is at least some evidence from which a jury could find guilt beyond a reasonable doubt, United States v. Redwine, 715 F.2d 315, 319 (7th Cir. 1983), cert. denied, 467 U.S. 1216, 81 L. Ed. 2d 367, 104 S. Ct. 2661 (1984).

It is equally clear that to sustain a conviction for income tax evasion the government must prove beyond a reasonable doubt: (1) an affirmative act constituting an evasion or attempted evasion of the payment or collection of taxes; (2) the existence of a substantial tax deficiency; and (3) that the defendant acted willfully. Sansone v. United States, 380 U.S. 343, 351, 13 L. Ed. 2d 882, 85 S. Ct. 1004 (1965); United States v. Foster, 789 F.2d 457, 459 (7th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 273, 93 L. Ed. 2d 249 (1986).

Defendant contends mainly that the government did not establish the existence of a substantial tax deficiency. Revenue Agent Lexby testified that he analyzed the bank account records of the checking account into which the defendant deposited his steel company paychecks. This analysis revealed the defendant's extensive use of cash. The records showed total deposits of $133,000 from 1980 to 1984 from which well over half was withdrawn by the defendant in the form of checks made out ...

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