Professional Documents
Culture Documents
United States v. Russell McLaughlin JR., in No. 96-1982. United States of America v. Mark McLaughlin in No. 96-2000, 126 F.3d 130, 3rd Cir. (1997)
United States v. Russell McLaughlin JR., in No. 96-1982. United States of America v. Mark McLaughlin in No. 96-2000, 126 F.3d 130, 3rd Cir. (1997)
3d 130
80 A.F.T.R.2d 97-6436
Id. at 122, 108 S.Ct. at 2297 (Kennedy, J., dissenting) (emphasis added); see
Fisher, 425 U.S. at 410, 96 S.Ct. at 1580-81; Curcio v. United States, 354 U.S.
118, 125, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225 (1957). Thus, the testimonial
aspect of production is not limited to the act of handing material over to the
government--it also may include the custodian's exercise of discretion over
which material to produce and which to omit. Incomplete production may
therefore be as communicative as complete production.
While "[t]he act of producing documents in response to a subpoena ... has
communicative aspects of its own, wholly aside from the contents of the papers
produced[,] ... whether the tacit averments of the taxpayer are both 'testimonial'
and 'incriminating' for purposes of applying the Fifth Amendment ... depend on
the facts and circumstances of particular cases...." Braswell, 487 U.S. at 103,
108 S.Ct. at 2287 (quoting Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct.
1569, 1580-81, 48 L.Ed.2d 39 (1976)). In this case, we find that the
government's use at trial of evidence concerning Russell's nonproduction makes
plain both its testimonial and its incriminating qualities. Cf. Fisher, 425 U.S. at
410-11, 96 S.Ct. at 1580-81 (resolving the case on the appellate record even
though the determination was factual). The government introduced evidence of
nonproduction not only as an overt act in furtherance of the conspiracy to evade
assessment, see Superseding Indictment at 8-9, but also as testimonial evidence
of a guilty mind, see Superseding Indictment at 9; Trial Tr., Mar. 12, 1996, at
142-43 (government's closing argument); Trial Tr., Mar. 1, 1996, at 82, 88
(direct testimony of investigating agent regarding receipt of corporate records
and meeting with Russell); Trial Tr., Feb. 27, 1996, at 15 (government's
opening statement).3 The government's repeated reference to Russell's
incomplete act of production as evidence of his culpability flies in the face of
Braswell and vitiated Russell's Fifth Amendment privilege.4
B. Waiver
The government contends that Russell waived the Fifth Amendment privilege
when he failed to claim it at the time when he produced the subpoenaed
documents. See Rogers v. United States, 340 U.S. 367, 370, 71 S.Ct. 438, 440,
95 L.Ed. 344 (1951) ("The privilege is deemed waived unless invoked."). The
government's argument that the privilege may be waived by making a voluntary
statement is not apposite to the issue before us, which concerns the evidentiary
use of a response to a subpoena for the production of documents. While the
Fifth Amendment is generally not self-executing, where a testimonial act is, as
in this case, compelled, the defendant does not waive the privilege by failing to
invoke it. See Adams v. Maryland, 347 U.S. 179, 179-83, 74 S.Ct. 442, 444-45,
98 L.Ed. 608 (1954) (holding the Fifth Amendment self-executing where
8 controlling considerations are the length and complexity of the record, whether
the
the harmlessness of the error or errors found is certain or debatable, and whether a
reversal will result in protracted, costly, and ultimately futile proceedings in the
district court.
9
Giovannetti, 928 F.2d at 227. Here the record is complex, and "[t]he certainty
of harmlessness does not appear with such clarity from an unguided search of
the record that we should raise the issue on our own motion." Id. Although a
reversal may be costly, we must vacate Russell's convictions.
10
Mark McLaughlin complains that because the indictment charged him with
evasion of payment of taxes rather than with evasion of assessment of taxes, see
26 U.S.C. 7201, there was a failure of proof at trial. Because the
McLaughlins did not raise this claim before the district court, plain error
analysis applies. Fed.R.Crim.P. 52(b). Section 7201 states, in relevant part:
"Any person who willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof shall ... be guilty of a felony...." 26
U.S.C. 7201. Count Two of the indictment charged that the McLaughlins
11
willfully
attempted to evade and defeat the payment of a large part of the income tax
due and owing by [BIU] ... by concealing and attempting to conceal from BIU's
accountant and the Internal Revenue Service the nature and extent of BIU's income
and the location thereof, and by making false statements to BIU's accountant with
respect to the nature and extent of BIU's income.
12
Section 7201 includes two distinct offenses: evading assessment and evading
payment. Sansone v. United States, 380 U.S. 343, 354, 85 S.Ct. 1004, 1011-12,
13 L.Ed.2d 882 (1965). These offenses require different elements of proof,
compare United States v. McGill, 964 F.2d 222, 229 (3d Cir.1992) (listing
elements of "evasion of payment") with Cohen v. United States, 297 F.2d 760,
770 (9th Cir.1962) (listing various means to evade assessment), but "they
frequently overlap." United States v. Mal, 942 F.2d 682, 688 (9th Cir.1991);
see United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990) (stating that
although "[s]ometimes it is convenient to say that different methods are
different 'crimes' ... nothing in the text or history of 7201 requires an
indictment to treat 7201 as if it were two sections of the United States Code"),
vacated on other grounds by 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768
(1991).
13
14
indictment clearly states an offense. And though the count may have been
poorly articulated, it did not increase the McLaughlins' burden at trial. Thus,
there was no impermissible amendment of the indictment.
15
We next consider whether there was a "variance [between the indictment and
the crime proved] [that] actually prejudice[d] the defendant." United States v.
Somers, 496 F.2d 723, 744 (3d Cir.1974). Variances "are examined on a caseby-case basis and constitute reversible error only if the defendant was
prejudiced." United States v. Smith, 789 F.2d 196, 200 (3d Cir.1986). In this
case, no prejudice occurred: (1) a reading of the entire indictment makes clear
that the government intended to proceed on a theory of evasion of assessment;
(2) Mark's own attorney addressed the evasion-of-assessment theory at trial;
and (3) Count Two itself specified conduct relevant only to an evasion-ofassessment theory (e.g., concealing income from BIU's own accountants). As in
United States v. Waldeck, 909 F.2d 555 (1st Cir.1990), "it was clear at the start
of trial that the government was proceeding on an evasion-of-assessment
theory." Id. at 558.
The IRS interviewed BIU's former accountant and received records from him
without first issuing a summons, see 26 U.S.C. 7602(a), and giving the
McLaughlins concomitant notice of its request for records. See 26 U.S.C.
7609(a). The McLaughlins' motion to suppress the evidence so obtained was
denied by the district court. Mark McLaughlin contends that the IRS's failure to
issue the summons and give notice violated 26 U.S.C. 7609(a). Our review is
plenary. United States v. Emanuele, 51 F.3d 1123, 1127 (3d Cir.1995).
18
19
The IRS has broad discretion on how it conducts its investigations. See 26
U.S.C. 7602. As the Ninth Circuit has said:
20
Section
7602 provides three separate means of ... inquiry. Section 7602(a)(1)
provides for an informal, noncompulsory means of inquiry. If an informal inquiry
proves inadequate, Sections 7602(a)(2) and 7602(a)(3) provide mechanisms for the
formal compulsion of the production of documents and testimony.
21
Speck v. United States, 59 F.3d 106, 108 (9th Cir.1995). "Nothing ... in the text
of Section 7602 suggests that subsection (a)(2) should be read to exclude
informal or noncoercive attempts to obtain information about possible failures
to report income." Id. Section 7602(a) permits the government to conduct a
formal investigation and issue summonses or to proceed informally. In this
case, the government chose to proceed informally, and BIU's former accountant
cooperated with the investigation. It was entitled to do so without notifying
Mark.
24
25
three grounds: (1) the tax loss upon which he was sentenced was artificially
inflated by including income on which taxes were already being paid; (2) the
Sentencing Commission exceeded its authority by including interest in the
computation of tax loss; and (3) the upward adjustment for obstruction of
justice was not warranted. The district court rejected these arguments.
26
27
Mark McLaughlin contended at both trial and sentencing and argues again here
that taxes were being paid on the income in the First Fidelity account and
therefore that no tax loss was attributable to the income deposited in that
account. The district court rejected the argument and at sentencing took into
account all funds deposited in both the NJNB and First Fidelity bank accounts,
which amounted to roughly $1,400,000 in income.
28
In his brief, Mark recites trial evidence bearing on the issue of whether the First
Fidelity account was a reserve against future claims and argues that the jury
may have rendered a verdict based solely on the nonreporting of the NJNB
account. The jury returned a general verdict of guilty that does not distinguish
between the accounts. Cf. United States v. Bailin, 977 F.2d 270, 282 (7th
Cir.1992) ("When a case involves a general verdict, establishing that the verdict
necessarily determined any particular issue is extremely difficult.").
29
Where the jury does not determine the amount of tax evaded, the determination
must be made by the trial judge. United States v. Olbres, 99 F.3d 28, 31 (1st
Cir.1996). The district court received extensive briefing on the question of loss,
conducted a hearing, and made a finding that:
30 respect to the accountability for the $770,000 [in the First Fidelity account], in
With
my view, viewing the record as a whole, it clearly makes these defendants
accountable for both of the accounts in the criminal context. 8
31
We review the district court's determination of the amount of loss for clear
error. United States v. Colletti, 984 F.2d 1339, 1345 (3d Cir.1992).
32
Mark contends that the First Fidelity account was a reserve against future
warranty claims and that its balance therefore was being treated as accrued
income over ten years. He claims that BIU or another McLaughlin-related
affiliate has treated a prorated portion of the account as income on every return
since 1988, before BIU was aware of the government investigation. The
government argues in response that the McLaughlins' fraudulent activities
extended to both accounts and that, even if the jury's verdict rested on only one
account, the court could have considered fraudulent conduct with respect to the
other as relevant conduct. See U.S.S.G. 1B1.3(a). The government moreover
points to evidence indicating that funds in the First Fidelity account were used
to capitalize other ventures.
33
The record is complex and the facts were hotly disputed. On the record before
us, we cannot say that the district court's finding was clearly erroneous.9
B. Including Interest in Loss Amount
34
Mark contends that the Sentencing Commission exceeded its statutory authority
when it included interest on unpaid taxes in the computation of tax loss. See
U.S.S.G. 2T1.1 app. n. 2. The provision in the Code that describes the
authority of the Commission states that the Guidelines should "provid[e]
certainty and fairness in sentencing and reduc[e] unwarranted sentence
disparities." 28 U.S.C. 994(f). Mark argues that including accumulated
interest in the calculation of tax loss exacerbates sentencing disparities by
causing defendants' sentences to depend largely on when the government brings
its case (and therefore how much interest accumulates) rather than on the
amount of income hidden from assessment.
35
36
37
38
preparation for the [pretrial] hearing ... it seems to me that was going mighty
far stretching the envelope of advocacy, frankly, in an effort to come up with
some evidence to try to derail this prosecution.
39
But looking at what the Government has said on pages 11 and 12 of its brief,
which are clearly made out by the record and I find them to have factual basis,
in my view, that does constitute going that extra step, which is required in the
United States versus Dunnigan ... demonstrating a willful impediment, seeking
to establish a willful impediment to obstruction of justice, or an attempt to do
the same perjuriously.
40
For example, when Mark McLaughlin testified ... that, in order to add
additional money to "the reserve," "we formed a bank account in South Jersey
into which we deposited cash into that account." The defense concedes that the
jury convicted the Defendants of failing to report this income....
41
42
43
The conduct to which the court referred in the first part of its findings, as
described in the government's brief, consisted of the McLaughlins' sending
investigators to obtain tape-recorded statements from witnesses in an effort to
demonstrate that the investigating IRS agent had violated the McLaughlins'
constitutional rights. The investigators evidently did not disclose their identities
and made secret recordings of their interviews. While the secret tape-recording
of statements by persons who concealed their identity may be prohibited under
the laws of some states (as the district court observed), it does not amount to
conduct encompassed by the Application Note. There is no contention, nor any
evidence, that the McLaughlins "threaten[ed], intimidat[ed] or otherwise
unlawfully influenc[ed]" any witness or "attempt[ed] to do so." See id.
44
The court's second ground for imposing the enhancement was that the
McLaughlins gave perjured testimony. Application Note 3 includes perjury as
one of the types of conduct for which the enhancement may be imposed. In
United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445
(1993), the Court held that a finding of perjury for purposes of the guideline
enhancement requires proof that false testimony was given "with the willful
intent to provide false testimony, rather than as a result of confusion, mistake or
faulty memory." Id. at 94, 113 S.Ct. at 1116. The Court added:
45 district court must review the evidence and make independent findings
[A]
necessary to establish a willful impediment to or obstruction of justice ... under the
perjury definition ... set out [above].
46
Id. at 95, 113 S.Ct. at 1117. Here the district court based its finding principally
on Mark's testimony that the First Fidelity account was a "reserve," i.e., one
with respect to which he claimed income was accrued and taxes paid when
earned.10 Application Note 1 directs that the "alleged false testimony ... by the
defendant ... be evaluated in a light most favorable to the defendant." U.S.S.G.
3C1.1 app. n. 1. Relying on that note, we have held that this note requires
that the sentencing court refrain from imposing a 3C1.1 enhancement for
giving perjurious testimony unless the government satisfies its burden of
"clearly convinc[ing the court] that it is more likely than not that the defendant
has been untruthful." United States v. Arnold, 106 F.3d 37, 44 (3d Cir.1997).
Here, the court failed to hold the government to its burden of proof.
47
Even assuming that Mark's conviction for "willful evasion of tax" implies that
the jury rejected all of Mark's explanations for the failure to declare either
account's balance as income,11 that alone would not be sufficient to support a
finding that Mark testified "with the willful intent to provide false testimony."
As we held in United States v. Colletti, 984 F.2d 1339 (3d Cir.1992):
48 order to warrant the two point enhancement for obstruction of justice, the
[I]n
perjury of the defendant must not only be clearly established, and supported by
evidence other than the jury's having disbelieved him, but also must be sufficiently
far-reaching as to impose some incremental burdens upon the government, either in
investigation or proof, which would not have been necessary but for the perjury.
49
50
VI. CONCLUSION
51
52
53
This is a close and difficult case, with many complications. I believe that the
result that Judge Schwarzer reaches is correct, but I write separately because I
come to that result by a more tortuous route, which I feel compelled to explain.
That explanation will also identify the many concerns I have about the law in
this area, which I hope can be dealt with in future cases. These concerns arise, I
hasten to add, not because of any deficiency in Judge Schwarzer's opinion but
because of the tensions created by Braswell v. United States, 487 U.S. 99, 108
S.Ct. 2284, 101 L.Ed.2d 98 (1988) and the application of Braswell to cases that
go beyond Braswell 's facts.
I.
54
The Supreme Court held in Braswell that a corporate records custodian may not
invoke his Fifth Amendment privilege against self-incrimination to resist a
government summons or subpoena for corporate records even if the act of
producing such records would relate information that would incriminate him.
However, because the act of production is a corporate act, i.e., the custodian
produces the documents as an agent for the corporation, the Court also held
that the government may not use that act against the custodian in a prosecution
against him personally.
55
In part I.A. of his opinion, Judge Schwarzer implicitly assumes that all acts of
non-production related to a summons or subpoena are corporate acts, and that
the government therefore cannot introduce evidence of this non-production
against the custodian. I believe this to be an uncritical assumption. Whether an
act of non-production is a corporate act turns on principles of agency law. A
good faith decision by a records custodian to withhold documents he believes to
be irrelevant to a summons or a subpoena is a corporate act. But, what if the
custodian fails to turn over documents sought by the government because of
gross negligence, deliberate indifference, or recklessness? Or, what if the
custodian willfully and unlawfully chooses not to comply (as may well have
happened here)? Are these acts of non-production within the custodian's
agency? Hornbook agency law answers these questions with a "maybe." See
In this case, at least as I understand the record, there were no findings in the
district court with respect to whether Russell McLaughlin, Jr. acted within his
agency when he failed to comply adequately with the relevant IRS summons. I
suppose, however, that such agency could be inferred. Building Inspections
Underwriters, Inc. ("BIU") and its closely related businesses were owned and
operated by the McLaughlin family, three of whom were indicted for tax
evasion. It would not be unreasonable to conclude that the corporation as an
entity directed its agent Russell McLaughlin, Jr., the President of the company,
to withhold certain documents. However, it would seem inappropriate for us to
draw that inference on this record without further investigation into the
governing structure of the interlocking companies. In other words, under
straightforward application of principles of hornbook agency law, we cannot
now say for certain that McLaughlin acted within his agency. To conclude that
McLaughlin acted within his agency (as I ultimately do), we must therefore
look beyond hornbook agency law.
57
If McLaughlin acted outside his agency, then the Braswell protections likely do
not apply. See Braswell, 487 U.S. at 118 n. 11, 108 S.Ct. at 2295 n. 11 ("[T]he
limitation [against introducing the act of production against a custodian
personally] is a necessary concomitant of the notion that a corporate custodian
acts as an agent and not an individual when he produces corporate records in
response to a subpoena addressed to him in his representative capacity."). Still,
the government may be prohibited from introducing his act of non-production
at a prosecution against him. For, if McLaughlin acted in his personal capacity
and does not enjoy the protections afforded by Braswell, he may nevertheless
enjoy a Fifth Amendment privilege against the compelled, incriminating
testimony effected by the summons, if the elements of a privilege claim are
met.
58
The elements of compulsion were arguably present here, for the summons or
subpoena itself compelled McLaughlin not only to turn over records, but also to
exercise his discretion as to whether certain documents fall within the scope of
the summons or subpoena. Subject to the reservations set forth in the margin, I
reason that he was therefore compelled to make a choice.2
59
In this case, the very act of non-production--the result of the compelled choice-related certain information. See Doe v. United States, 487 U.S. 201, 211, 108
S.Ct. 2341, 2348, 101 L.Ed.2d 184 (1988). That McLaughlin failed to comply
fully with the summons arguably implied that he believed that the withheld
documents were relevant and that their contents or the act of producing them
were incriminating. That failure may have further implied that McLaughlin had
earlier willfully failed to report the contents of the documents (income from
BIU) to the IRS. The government used these implications against McLaughlin
at trial, arguing that the non-production of the documents evidenced
McLaughlin's intent to evade federal taxes. The act of non-production, then,
appears to have been incriminating. Thus, in this case, even if McLaughlin were
not acting within his agency, I believe that the government could not use his act
of non-production against him because to do so would have violated his Fifth
Amendment rights. But, if we so hold, would we be undermining Braswell by
permitting a non-producing custodian to claim his Fifth Amendment rights?
II.
61
It is at this point that the complexities and problems of the case begin to
crystallize. Going forward, how are we to apply this case and Braswell to
future Russell McLaughlins? Assume that a grand jury issues a subpoena to a
records custodian (as happened in Braswell ). He refuses to comply, and seeks
to quash the subpoena, invoking his Fifth Amendment privileges. The
government opposes the motion to quash. What is the court to do? As a first
step, the court should determine whether Braswell applies and prohibits the
custodian from invoking his personal Fifth Amendment rights. But that would
require the court to determine whether the custodian planned to act outside the
scope of his agency in responding to the subpoena. Such a question could
effectively require the custodian to imply that he intends to act unlawfully by
withholding relevant documents. As a condition of claiming his privilege
63
As suggested above, the court might attempt to limit the use of the results of
complying with the subpoena, i.e., the act of production or non-production, to
ensure that any testimonial aspects of being compelled to respond to the
subpoena are not used to incriminate. Under United States v. Doe, 465 U.S.
605, 616-17, 104 S.Ct. 1237, 1244-45, 79 L.Ed.2d 552 (1984), the court cannot
by itself prospectively limit the use of testimonial acts that have been
compelled. The court can, however, suggest that if the government wants to
compel a response to the subpoena that might be testimonial it must do so by
resort to a statutory grant of use immunity pursuant to 18 U.S.C. 6002 and
6003. But, such a suggestion violates at least the spirit of Braswell. The Court
in Braswell strove mightily to ensure that the government could compel a
records custodian to comply with a subpoena without first providing him
statutory use immunity, an immunity that could stymie any prosecution directed
at him.3
64
The only way to avoid this morass altogether, at least as I see it, is to assume in
all cases (as Judge Schwarzer seems to do) that a records custodian will always
act within his agency when he responds to a government subpoena or summons.
Working from that assumption, this case and our hypothetical case are easy;
under Braswell, neither McLaughlin nor our hypothetical records custodian can
invoke his personal Fifth Amendment rights to resist a summons or a subpoena
served on the entity he represents, but the government cannot use any act of
production or non-production in a prosecution against him. However, as I noted
above, I believe that such an assumption stretches hornbook agency law. I am
willing to accept such a stretch because the alternative is to undermine either
Braswell or Fifth Amendment jurisprudence more generally. However, I think
that the problems that I have identified need exploration in future cases.
65
Whichever way the pie is sliced here, I believe that the use of McLaughlin's act
of non-production against him personally would be unlawful. I therefore join
Judge Schwarzer's opinion.
Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation
It thus bore not only on Count Two but also on Count Three ("willfully" making
and subscribing a false return). 26 U.S.C. 7206(1)
The McLaughlins did not challenge the inclusion of the NJNB account in the
calculation
Mark also contests the inclusion of four smaller amounts totaling roughly
$200,000 in the computation of tax loss. That argument was rejected by the
district court in its disposition of this matter. The court's findings were not
clearly erroneous
10
The government in its brief referred to in the court's finding also mentions a
statement made by the McLaughlins to the agent during the investigation
claiming the account to be a reserve, testimony by Russell that he had told the
agent an account was a warranty account, and testimony by him that he did not
know BIU's 1988 return omitted substantial amounts of BIU income
11
As we noted earlier, see supra p. 137, the jury's general verdict does not
disclose whether the jury rejected all or only part of Mark's testimony
It is not entirely clear that a records custodian who inadequately complies with
a summons or subpoena has been compelled, and, of course, if there is no
compulsion, then the act of non-production could be introduced against the
custodian (assuming that act was outside the scope of his agency). There are at
least two ways of describing the factual scenario in such a way as to conclude
that there is no compulsion (neither of which is wholly satisfying). First, it
could be said that any compulsion is directed at the corporation or at least at an
individual in his representative capacity, not the individual in his personal
capacity. Although I am unaware of any discussion on this precise point, the
Supreme Court, in cases such as Braswell, has focused on the testimonial
aspects of a records custodian's producing records. It seems to have assumed
that personal compulsion is present; otherwise, it would not have needed to
create evidentiary limitations on introducing the act of production because there
would be no concerns at all about violating the individual's Fifth Amendment
privileges. Second, it could be said that the government did not compel the act
of non -production, but only the act of production; at least in the case of the
custodian who acted willfully, he may be said to have voluntarily chosen to
disregard the summons or subpoena. Yet that voluntary act of non-compliance
occurred only after the government compelled the custodian to engage in the
decisional process in the first place. See infra
The court might also choose to appoint an alternate custodian (for example,
outside legal counsel) to respond to the subpoena. Braswell strongly
discourages this course. How, the Supreme Court asks, is an alternate
custodian, unfamiliar with the record-keeping machinery of the entity, to
respond adequately to a subpoena? The Court assumes, correctly I believe, that
resort to an alternate custodian all but ensures that the entity will not turn over