MR. BECRAFT: Nothing further, Your Honor. We rest.
THE COURT: Okay Any rebuttal?
MR. COLLIER: No, Your Honor.
THE COURT: All right. Ladies and gentlemen of
the jury, if you-all would step out briefly at this time.
We have some other matters to take up.
(Jury excused from courtroom while the
following proceedings were held in their
absence:)
THE COURT: Did you want to make your motion at
this time, Mr. Becraft?
MR. BECRAFT: Yes, Your Honor, I do. Before I
get started, I want to kind of give the, possibly the Court
an idea as to what I think we've got timewise. I had an
opportunity to look over the instructions last night. I'm
clean on what the Court has got, so I don't think our charge
conference would have to be all that very long.
In addition, my comments that I have now will
also be, or our arguments are likewise set forth within my
requested theory of defense jury instructions. So, I think
I probably, to condense the time frame could, when we get to
these particular instructions, incorporate my comments at
the present time in reference to those requested charges, if
the Court doesn't mind.
Your Honor, it seems like to me, and correct me
if I'm wrong, but I have a requested jury instruction in
here that says the income tax is an excise tax. And I think
that the prosecution would strenuously disagree with that.
Am I right, Mr. Collier?
MR. COLLIER: I'm sorry, Mr. Becraft?
What did you say?
MR. BECRAFT: It's the government's position
that my requested jury instruction about the income tax
being an excise tax is wrong? You disagree with that?
MR. COLLIER: I don't know if I've even read
that. That's in one of the jury instructions?
MR. BECRAFT: Yeah. Well, just let me ask you
this question. It's the government's position that the tax
is not an excise?
MR. COLLIER: I don't have a position on that
at all, Your Honor. I'm not going to state a position on
that. I'm not sure it's even necessary.
MR. BECRAFT: Okay. Well, Your Honor, you
know, I don't -- even though the prosecution is unwilling at
this stage -- if it doesn't concede that it's an excise,
then I think I'll be entitled to that type of an
instruction. But nonetheless, my argument is predicated
upon the fact that I really sincerely believe that the
government contends otherwise. That's been its whole
position throughout this trial.
Now, it seems like to me we've got a real
problem. If that is the case, even though the government
doesn't want to admit it at the present time, if that is the
case, we've got uncertainty in the law. We've got official
representations from the government that it's an excise and
a contrary position taken by the government here in this
case. They disbelieve it.
THE COURT: Wait a minute. Mr. Collier said he
doesn't take a position on it one way or another. He
doesn't say one way or the other whether it's an excise tax.
MR. BECRAFT: Okay. Well, if he has no
position, then I think I'll be entitled to an instruction on
that point.
THE COURT: Sorry. I don't think that has
anything to do with the primary legal issue in this case,
which is, whether or not your client willfully failed to
file a federal income tax return for 1989 and 1990.
MR. BECRAFT: That's true. That's true.
THE COURT: He has been allowed to testify at
length regardinq his theory about excise taxes and so forth.
But I am not going to tell this jury one way or the other
whether or not the income tax is an excise tax. Frankly, I
I don't know. I haven't reached that point myself.
MR. BECRAFT: Well, that's the point I want to
make, Your Honor. I don't know what number it is, but
there's a requested instruction in there that says it's an
excise.
Now, I will tell the Court that I've done a
survey of the circuits on the point. Now, just right over
the mountain over here east of us, in the 4th Circuit,
you've got a prevailing case law that looks like to me that
says it's an excise. Now, I think I've also put a contrary
case from either the 8th or the 9th Circuit in same
instruction which says it's the exact opposite.
Now, we're dealing with a clearly known legal
duty in this case. I mean, he's got to violate a clearly
known legal duty in order for it to be shown that he acted
willfully.
Now, I must rely again upon a case that's over
there across the hills in the 4th Circuit. There's a case
called Critzer. And in Critzer's case, she was a Indian,
and the only place I can think of is it has to be up here in
the Smoky Mountains. She was told by the Bureau of Indian
Affairs that she didn't to have a file return and she was
told by the IRS she did.
THE COURT: Mr. Becraft, your client didn't
consult with you, did he, about whether or not to file a
return?
MR. BECRAFT: No, sir.
THE COURT: I wondered about that.
MR. BECRAFT: No.
THE COURT: Okay.
MR. BECRAFT: But in any event, what Critzer
was -- you know, to make a long story short, the Critzer
case holds that she got conflicting opinions, conflicting
views from the government. And it came out and was shown in
spades in the case. And the Court said, you know, the issue
of intent is problematical in a situation when you can show
a conflict inside the government. And there's another line
of -- that's a line of cases on the point.
THE COURT: Mr. Becraft, let's cut this pretty
short here. I think what you're trying to do is make a Rule
29 motion?
MR. BECRAFT: Yes, Your Honor.
THE COURT: I mean, frankly, it doesn't seem to
me whether the income tax is an excise tax or not an excise
tax has much to do with this case. I know that you,
certainly you would disagree with that and your client
certainly disagrees with that. The question is, though, did,
he willfully fail to file his return here.
If you're asking me for a jury instruction
along your requested instruction 49, that instruction is
respectfully denied.
MR. BECRAFT: I understand.
THE COURT: Now, let's move on to --
MR. BECRAFT: That kind of relates to the
thrust of my argument, because I wanted to incorporate this
argument in my argument on the instructions.
Here's my point, Your Honor. You know, it
seems like to me we're dealing with a clearly known legal
duty. And the Critzer case shows that when you can show and
demonstrate factually that there's a dispute inside the
government, then that has a substantial impact upon that,
quote, clearly known legal duty, I mean if the government is
conflicting.
THE COURT: Well, whether or not there's a
dispute about whether the income tax is an excise tax or
not, that doesn't mean that there's a dispute among, you
know, at the government about whether or not somebody should
have to file their income tax returns. I fail to follow
that logic. There seems to be a failure of logic here
somewhere, Mr. Becraft.
MR. BECRAFT: There are two areas, Your Honor.
I just wanted to introduce the Court to my due process
argument, which is essentially --
THE COURT: You see, the last time you were
here didn't you make that --
MR. BECRAFT: In Dr. Leonard's case?
THE COURT: Well, you made the OMB argument.
MR. BECRAFT: I think that's probably the case,
Your Honor.
THE COURT: Didn't you make that? You've
abandoned that argument now?
MR. BECRAFT: Well, no. We went up to the 9th
Circuit, I went up to the 11th Circuit on that case and the
appellate courts have rejected it. But at the time it was a
novel issue, hadn't been addressed. I explored it in
litigation, carried it up and the courts rejected it. So,
you know, next year I'll have some other argument.
THE COURT: All right.
MR. BECRAFT: And maybe I won't ask this Court
to pass on that.
THE COURT: Okay.
MR. BECRAFT: But in any event, I think what we
have here in this case, looks like to me, principles of due
process is particularly applicable in a case where the issue
is a clearly known legal duty, the violation of a clearly
known legal duty.
And my position is that I smell it, even though
the government doesn't want to admit it and they want to
avoid the issue. To me, from my client's viewpoint and from
the evidence in this case, there's a clear -- you know, if
the government doesn't want to admit it -- there is
definitely a clear split in the circuits as to whether or
not the tax is an excise tax or a direct tax, which, you
know, is a monumental conflict. And when you have a
monumental conflict of that nature, and I've indicated in
the requested instructions, you know, I adopt those cases
that are there -- we have this tremendous split.
If the government can't make up its mind what
the nature of the tax is, if it says that it's an excise to
him and in an official representation to it he determines
what excise is, and yet the government itself is uncertain
as to what the duty is, it seems like we can't have a
violation of a clearly known legal duty. But due to the
conflict, there's a due process problem.
Now, quickly, in passing, Your Honor, and I'll
sit down, there's also another due process problem here
about a conflict of the statutory foundation for the
requirement to file returns, you know. The witness on the
stand has said that it was Section 6012 and Section 151.
You know, their expert came on the stand and said those are
the two laws. And I didn't argue with them about the
substance. I just want the numbers. Now, that is different
from what another official representation of the IRS was in
this case that he relied upon. He relied upon two sections,
6001 and 6011, 6012. Those are the three.
Now, I'll tell the Court that I've seen these
Private Act notices and that Section 6012 was only adopted
and brought into the Privacy Act statement in 1986. Before
that time there was just these two other laws.
So, it's -- the compliance with the Privacy Act
by the IRS has been evolving over time. They can't make up
their mind. And here in this case where I have Mr. Long
relying upon that representation of the government, and yet
when we get into court we find out that the government has a
different position.
And just like the question of whether the
income tax is an excise tax or a direct tax, we've got a
conflict over what is the law in this case. I consider that
such a conflict is a due process problem. And since there's
a due process problem here, a violation of a clearly known
legal duty is not present here because of the conflict, and
therefore a due process judgment of acquittal should be
entered.
THE COURT: Okay. Do you want to respond to
any of that, Mr. Collier?
MR. COLLIER: Your Honor, fortunately Mr.
Becraft's arguments are frivolous. They've been made in tax
protest cases frequently. And the decision on remand out of
the 7th Circuit, I believe, everything that he just said was
considered and rejected. They're frivolous tax protest
arguments.
THE COURT: I don't see what the Privacy Act
has to do with this. I've been trying to figure it out
during the course of the trial. I don't think it's germane
to this case at all. Maybe I'm missing something here.
But, you know, I guess that's the whole question. Whether
or not I'm missing something or whether or not Mr. Long is
missing something, I don't know. I don't think it's me.
MR. BECRAFT: Okay. I'll be arguing that
position when we talk about the instructions, Your Honor.
THE COURT: well, let's talk about them now.
Your motion is denied.
MR. BECRAFT: Fine. If we're moving on to the
Court's instructions, let me just tell this, you know, I
don't think that Mr. Collier has any major comments about
the Court's proposed instructions. Do you, Mr. Collier?
MR. COLLIER: I've looked at them, Your Honor,
and they seem fine.
MR. BECRAFT: That was my view, too, Your
Honor.
THE COURT: Well, gee, whiz, good. I'm glad of
that.
MR. BECRAFT: However, I would -- I'm trying to
find my copy here. I've shuffled it around here on the
table. You know, I think they're fine insofar as they go,
Your Honor. But I would like to suggest, I think I had my
instruction number nine dealing with charts, and perhaps
inadvertent -- well, no, not in that packet, Your Honor.
There's another packet of instructions. But the Court's
instructions, you know, I know that the Court was probably
in haste doing it, but it seems like to me an instruction on
charts would be helpful in this case.
THE COURT: I'm sorry?
MR. BECRAFT: Well, I have one on mine, but I
don't know what the 6th Circuit would say. We just have
these humongous charts here. Mine says, you know, that
charts are summaries.
THE COURT: And is that charge request that you
submitted?
MR. BECRAFT: Yes, Your Honor.
THE COURT: What date?
MR. BECRAFT: Rusty, when were these filed?
Last week? There's two packets of defense requested
instructions. One was filed last week before we had the
pre-trial conference last week.
THE COURT: I'm afraid that I don't have that.
Oh, wait a minute. The only ones I have are numbered 44
through 50. I don't have any other ones that I can find
here in this court file. Have you got a file stamp copy of
them?
MR. LEONARD: I'm looking, Your Honor.
THE COURT: Are you aware of any other ones
Mr. Collier?
MR. COLLIER: I didn't get a copy, Your Honor.
The only thing that I have is the request to allow jury
instructions to be filed out of time.
THE COURT: I've got the Government's requests
and then I've got the ones you filed yesterday or today. I
don't have any other ones here that I can locate at this
time.
MR. BECRAFT: Well, you know, be that as it
may --
THE COURT: Of course, I've told the jury that,
at the time that the --
MR. BECRAFT: I'm going to leave it up to the
Court.
THE COURT: I mean, there's nothing wrong with
that instruction. I don't mind telling the jury that, as
I've told them before, and we'll just see if you have a
problem with this, that --
MR. BECRAFT: It's just a suggestion. Your
Honor. I could live with it or not. I remember the Court
giving the instruction at the time that they were used.
THE COURT: I told them that the summaries
themselves were not evidence but were only aids in
evaluating the evidence.
MR. BECRAFT: I'll live with that. I just
offered it as a suggestion if the Court felt like it.
But other than that, Your Honor, I think instructions are,
you know, the typical instructions that cover the
boilerplate stuff. They've got the issues in there. I'm
pleased with the bulk of the instructions that the Court has
given.
And my only complaints about the instructions
relate to, at least the ones we've got here, the
supplemental requested jury instructions, would be 44
through 50. Now, dealing with, I will talk about 44 and 45
together. The IRS said these two sections related to the
requirement to file returns. They did it in their Privacy
Act notice.
In relying on that Privacy Act notice, he
studied these two laws. He relied upon these two laws.
Forty-four and 45 are actual quotes of, these parts of,
these two code sections, that he relied upon. And I contend
that they're a theory of defense jury instruction and should
be given.
This is the law that supports for our side of
the case, these instructions. They can't be, can't be
inappropriate or irrelevant because, you know, at least on
our side of the case we've got an official representation
from the IRS that they do, even though their own witness
disagrees with that and fails to mention it.
THE COURT: Well, the thing is where do I draw
the line? I mean, your client says he relied on all kinds
of things. I mean, I can't obviously charge the jury with
everything your client says he relied on. I mean, what
about 6012? Do you want to put 6012 in here? I mean,
somehow I've got to make some judgment about how long this
charge is going to be. I mean, I could sit here for days
and days and read to the jury the Internal Revenue code.
You see, I've got to make some sort of informed judgment
here and exercise some kind of discretion about what the
jury hears and whether or not what they hear is germane to
the issues in this case
And frankly, I mean there's really no dispute.
I mean, your client has been allowed to read those
provisions over and over again to the jury. And I don't
think there's any dispute about what they say. The only
problem is that the, there's one other section of the code
which they've --
MR. BECRAFT: Section 6012. I don't know what
I did with my Court's instructions. But the Court's got an
instruction on that. One of the instructions that the Court
has got on, what is it, the $9,200 and $9,500 filing
requirement? That's a Section 6012 instruction. You know,
it summarizes.
THE COURT: It summarizes. It's not in there
verbatim.
MR. BECRAFT: Right. Even though it's not, you
know, reading the statute, but that's the thrust of that
section. So that section is covered in the charge. But,
you know, we don't have these others that are plainly stated
by the IRS to be relevant. And they're particularly
applicable in this case because he relied upon it.
And this jury -- this jury has been repeatedly
told, and I made every effort to -- you know, in order to
assure that the testimony would be admissible, I made every
effort I possibly could to tell the jury that, you know,
he's going to only be giving his belief about the law, and
the law is going to be coming from the Court during the
instructions. And that's the posture I have maintained. I
think it's a completely accurate posture I'm required to
maintain. You know, he can't tell the jury the law. So,
you know, I think it's a theory of defense jury instruction
that should be given, 44 and 45.
THE COURT: All right. Anything else about any
proposed instructions?
MR. BECRAFT: Yes, Your Honor. I'll adopt the
same thing about 46. He's given as his view. I think it's
critically important that the jury be informed about the
operation of the Privacy Act. It's a critical aspect of the
defense's case.
Forty-seven, you know, the jury can take it or
leave it whether these documents are official. But, you
know, I think it s crystal clear that the Privacy Act notice
is official. They've seen the instruction booklet, and
nobody can doubt the accuracy of that.
They can accept at face value the Exhibit
Numbers 1 and 2 that relate to the excise tax argument. I
have no doubt that they're genuine, although I think that
Mr. Collier probably disputes their authenticity. But
nonetheless, it's the principle of law that someone can rely
upon a representation of the government. And that's what
I'm asking for in 47.
Now, if the jury, you know, believes that these
are official representations, it comes right to the heart of
acting willfilly. You know, if the government says
something...
THE COURT: That's not the law. Estopple does
not run against the government. I don't know if that's what
you're saying there or not, but --
MR. BECRAFT: I don't think it's -- I didn't
mean to interrupt the Court.
THE COURT: The general rule is estopple does
not run against the government.
MR. BECRAFT: I understand that. I'm not
making an estopple type argument. But I do think that these
cases that are cited down there, Raley vs. Ohio, Cox vs.
Louisiana -- and just to summarize, the Cox vs. Louisiana
case is a case where some people were demonstrating outside
of a courthouse. The town chief of police said you can hold
your demonstration over there, that wouldn't be
demonstrating near a courthouse. But then later on they're
prosecuted for demonstrating near a courthouse. And the
Supreme Court said, you know, that's violating principles of
due process.
THE COURT: Your charge requests number 44
through 50 are respectfully denied. Okay.
Are we ready to argue this case?
MR. BECRAFT: Your Honor, 49 and 50 relate to
the excise tax argument. I think it's critically important
that the jury be told it's an excise and what an excise tax
is. That's 49 and 50.
In reference to 48, Your Honor, I think that
there's two definite views of the laws that are applicable
in this case. They've heard evidence that it's this group
of statutes over here; and then the IRS says it's some other
group of statutes, showing the uncertainty of the law. And
I think that this is an absolute defense. If there's a --
you know, these cases say that, the Critzer case and all
these others. They all say, you know, if the law is
uncertain, you can show it and that's a defense. And I'm
requesting an instruction on that defense.
THE COURT: How long will it take you-all to
argue this case?
MR. COLLIER: A total of 15 minutes, Your
Honor. That's opening and the closing.
THE COURT: Fifteen on both sides. Each side
15?
MR. BECRAFT: I thought he said 50, Your Honor.
THE COURT: No, no. Fifteen.
MR. BECRAFT: Fifteen?
THE COURT: One five.
MR. BECRAFT. Could I have 20?
THE COURT: I'll give you 20. I'll give both
sides 20 minutes. And don't go longer than 20, because if
you do I'll cut you off.
MR. BECRAFT: Okay. Can we have a break before
we do that, Your Honor?
THE COURT: We will. And Ms. Ashby here will
give you a warning. You just tell her, you arrange with her
when you want to be told about what your time schedule is.
MR. COLLIER: Your Honor, before we break, I
asked Mr. Long a series of questions regarding blowups of
some of these exhibits, letters that he had received back
from the Internal Revenue Service. I did not have those
marked. I'd like to have those marked as Exhibits S, the
next numbered S. There are five of them. So, the next five
numbers in the series.
THE COURT: S-10, 11, 12, 13, and 14, I guess.
MR. BECRAFT: Is he offering it into evidence
after the close of all the proof? I have an objection about
that.
THE COURT: Is that right?
MR. BECRAFT: Number one, because it's after
the close of proof. Number two, it's cumulative.
MR. COLLIER: They've already been shown to the
jury.
THE COURT: All they are --
MR. BECRAFT: I don't have any objection to
them being used in closing. My objection is, you know, that
the government has got this armload of material that's going
to take up two or three chairs in the jury room.
MR. COLLIER: If they choose to use them.
That's the jury's choice.
MR. BECRAFT: Is the Court leaving it up to the
jury to call for these?
THE COURT. No. My practice is that all
exhibits are permitted to go back to the jury room, in fact
are sent back to the jury room on the front end. Because my
experience is that if they're not, the jury just asks for
them anyway.
MR. BECRAFT: I objected when they were offered
and I'm objecting to them now. They're cumulative and
they're huge. You can trip over them. Somebody might get
hurt.
THE COURT: All right.
MR. COLLIER: That's the first time I've heard
an objection to evidence because it's huge.
MR. BECRAFT: That's a practical rule.
THE COURT: That's a new one here. They may be
marked and they will be, in effect, received into evidence
as exhibits because they're already, the documents
themselves are already in evidence. All they are are
blowups of documents that are already in evidence. They'll
be numbered Government's Exhibits 10, 11, 12, 13, and 14.
S-10, ll, 12, 13, 14.
(Government Exhibits S10 through S14 were
received into evidence.)
THE COURT: Anything else?
MR. BECRAFT: How long is the Court going to
let us have a break?
THE COURT: Well, how long do you want?
MR. BECRAFT: I need ten minutes, Your Honor.
THE COURT: Okay, I'll give you ten minutes.
Be in recess for ten minutes.
(Brief recess.)
THE COURT: Ladies and gentlemen of the jury,
you've now heard all the evidence you're going to hear in
this case. We're at that point in the trial where you're
going to hear the final arguments made by the attorneys for
both sides, and then I'll instruct you on the law, and then
you'll be given the case to decide.
Because the government has the burden of proof
in this case, Mr. Collier on behalf of the government has
the privilege of going both first and last in the sequence
of the arguments here.
Mr. Collier.
MR. COLLIER: May it please the Court. Ladies
and gentlemen of the jury, this is the time for closing
arguments, which means that this is the last time the
lawyers in the case will have a chance to talk to you. I
will speak first, and then Mr. Becraft will speak and have
an opportunity to reply to things that I may've said, and
then I will have a chance to reply to anything that Mr.
Becraft may have said.
I know this case has been tedious at times, and
I appreciate the attention that you've given to it. It's
been very evident yesterday and today that you've paid very
careful and very thoughtful attention to the evidence that
was coming before you.
When we made the opening statements yesterday,
I told you that the defendant in this case was charged with
two counts. You've not seen those counts yet, but you will
be seeing them soon. Both of the counts charge the
identical offense, and the only difference is that the dates
are different. One year is for 1989 and one year is for
1990.
Those charges allege that the defendant, Mr.
Long, willfully failed to file his income tax returns for
two years, 1989 and 1990. I also told you that for a person
to be guilty of this offense, it is necessary that the
government prove three elements. And the Court will
instruct you as to what those elements are.
But the Court is going to tell you, and I told
you during my opening statement, that those elements are,
number one, that the defendant in this case was required to
file an income tax return; two, that the defendant did not
file his income tax returns; and three, that his failure was
willful.
The witness Libby Jeu who came from the Memphis
Service Center told you that he did not file his income tax
return. She searched the records and could not find any
indication that he had filed.
Special Agent Geasley also testified that he
talked to Mr. Long last year, in July of 1992, and that
during that interview Mr. Long told him that he did not file
his income tax returns for 1989 and 1990. Mr. Long told him
that the last income tax return he filed was in 1988.
Lastly, Mr. Long, when he testified, conceded that he had
not filed his income tax returns. So, there can be no doubt
that this element of this offense has been proven. That's
element number two.
The first element is the defendant was required
to file an income tax return. The witness Virginia Sherard
testified on this. She sat throughout the trial. She told
you she was familiar with the tax code and the tax
regulations; and, based upon what she heard here in the
courtroom, Mr. Long was a person who was required to file
income tax returns for the two years in question. The Court
will also have some instructions on this point.
The last point, and this is really the crux of
the case here, is the willfulness issue. The government has
to show that the defendant's failure to file was willful.
What evidence have you heard in this case that shows that
the defendant's actions were willful? The Court will tell
you what that means. But basically it means that the person
acted intentionally and it was not an accident or mistake.
Mr. Long on the witness stand told you that he
did not file his income tax returns intentionally. He knew
what he was doing and he did not file them. He knew when
April 15th came bye that he did not file and he had no
intentions of filing.
He had filed his income tax returns for some 16
or 17 years before that, and you can look at the dates on
the three returns that are in to see when they were filed.
That shows that he knew about the April 15th filing
requirement.
In determining whether the defendant's actions
were willful, you need to look at him. Who is it that we're
talking about? We're talking about a mature individual.
This is a man who back at that time was 43, 44 years old.
This is a man who was mature, a man who was experienced.
This is a man who was educated. This is a man who not only
had gone to college, but this is a man who had gone back to
get his master's degree. He was educated.
This is also a man who, by his own admission,
was told repeatedly, over and over again, that he had to
file his income tax returns. He told you that. He said his
friends told him.
This is a man who grew up in a household where
his father every year did his income tax returns, kept his
records so he would do them, didn't have to gather up a lot
of things, didn't have to go searching for things, never
complained about doing income tax returns. His father was
organized, kept everything in place, so when it came time to
do his income tax returns, he could do them. So, it was
willful.
The judge is going to tell you that in looking
at willfulness, a defendant can have a good faith defense.
That is, if a person in good faith does not understand the
requirements of the law, then that's a valid offense which
you ought to consider in determining the facts. But the
Court is also going to tell you that a good faith defense
does not mean that someone understands the rules and
understands the law but disagrees with the law. If you
understand the law and you disagree with the law, then
that's too bad. That is not a defense. You still acted
willfully.
And that is really what all the defendant's
testimony comes down to. Ask yourself this question.
This defendant is charged with a violation of Section 7203
of the Internal Revenue Service Code. Well, he told you
about that statute himself. He did research into it So,
he knew it. He just disagreed with what it said.
He wrote letters to the Internal Revenue
Service. They wrote them back. They said Section 6012
requires every individual. Well, he disagreed that that
applied to him. He wasn't mistaken about it. He didn't
misunderstand that. He just disagreed with it.
Mr. Long talked about the studies that he had
done and the people that he relied upon. One of the things
that you need to consider is whether he was justified in
relying upon the people he said he relied upon. Almost
every single book that he said he relied upon, the people
who wrote those books have had problems, very, very serious
problems. They were not the type of people that a
reasonable person would rely upon in making a decision that
affects their own lives.
Mr. Long says that he wrote to the Internal
Revenue Service to ask questions. But you look at the first
letters that he wrote. He didn't tell them anything at all
about his income.
So, the United States would submit to you that
his actions were willful and that all three of the elements
necessary to find a person guilty of this offense have been
proven, and that when you look at all the evidence, consider
the judge's instructions, you'll find this defendant guilty
as charged.
Thank you.
MR. BECRAFT: May it please the Court.
Ladies and gentlemen, let's go back to the year
1492. Columbus sets sail. The prevailing opinion at that
time was the earth was flat. Yet, he sailed out over the
horizon and learned that the earth was round. He popped a
popular misconception. He made a discovery.
Let's talk about another man that made a
discovery. Do you remember a fellow by the name of Galileo?
At the time Galileo was -- I guess this was around the same
time as Columbus. I'm bad on history. But Galileo faced a
world that thought that the sun traveled around the earth.
Well, Galileo said, "I disagree." He came up with some
facts and said, "No, it's the other way around. The earth
goes around the sun." That was a discovery he made.
Did Galileo -- did the world applaud this
discovery? No. He was subjected to house arrest. Criminal
charges were brought against him for making the discovery.
I've heard here recently that, I think the bar association
tried him over again and found him innocent. Of course,
that's right up there with the bar association trying Al
Capone and finding him innocent.
But in any event, you know, I think you can sit
back and take a look at history and you can see there have
been people that have -- you know, it's part of the human
spirit to be inquisitive, to inquire, to learn the truth.
Some people have learned the truth, it's been
revolutionary and it's changed the world. Others have
determined the truth today -- I mean, today we all know that
the earth goes around the sun. Yet, Galileo was punished
for that.
Now, I think that these cases are a little bit
similar to this one. But I'm not saying that he's a Galileo
or Columbus, Lloyd Long. But at least he has that in
inquisitive spirit, that inquisitive mind.
Now, the government has brought along these
charges and they say that he willfully failed to file
federal income tax returns for two years, '89 and '90.
Now, I told you at the beginning of this case,
Mr. Collier did, and he just did a minute ago, he told you
what the elements are, what the government has got to show
to convict somebody of this charge. And I agree with, you
know, what those basic elements are. And the Court is going
to give you that here in a minute.
Now, Lloyd Long doesn't dispute the fact that
he made money. You know, I don't know why they brought them
on, but they brought all these people to show what was made.
And there wasn't any contest about that. We've freely
acknowledged that. Said so from the very beginning.
We don't dispute Lloyd made any money. We
don't dispute that he didn't file. What we do dispute is
whether what I've described in my opening argument, whether
or not this was done with a criminal state of mind. That's
the bottom line issue. That's the, when the Court instructs
you on what willfulness is, that's the bottom line issue in
this case.
And I might be a little bit so bold right here,
but I'm going to give you an advance -- you know, the Court
has given us some instructions. I'm going to kind of read
to you what the Court is going to say about willfullness.
It says, "The defendant's conduct was not willful if he
acted through negligence, inadvertance, mistake, or due to
good faith misunderstanding of the law." If the defendant
had a subjective good faith belief, no matter how
unreasonable, that the law did not require him to file tax
returns, he didn't act willfully. The Court will instruct
you in that respect.
Now, the inquiry that you are facing is did
Lloyd Long have a good faith misunderstanding of the law.
Well, let's go back through the evidence. Is there anybody
in this room that doesn't doubt that Lloyd Long studied it?
Now, Mr. Collier wants to sit there and say,
you know, he wants to paint contrary to the great weight of
the evidence, the testimony of Mr. Long. He wants to say,
oh, well, all he's relying upon is a bunch of these, what
the prosecution considers as people of less than sterling
character.
Well, I don't remember that during Lloyd's
direct testimony when I was asking him the questions, that
Lloyd was saying I'm relying upon these criminals or these
people of bad character or whatever. No. Lloyd said he --
he surprised me when he talked about the case Coppage vs.
Kansas. You know, I'm a lawyer, and I don't know this and I
don't think Mr. Collier does. But he said, he threw out the
name of the judge, Judge Pitney. I had to -- when he first
told me about it, I looked it up, and he's right, but I
didn't know that.
But are we saying that these judges of the
United States Supreme Court have got bad character, that you
can't rely upon it?
And what about these other judges from the
state courts? Now, we don't know what their names are. We
didn't have the time -- it would've been useless to have
Lloyd read off the names of the judges. But I think we all
know that those are cases that he read. We all know that
they're written by judges, and we all know that you can go
to a law library, pull out a box just like Lloyd said, and
look it up and read it.
Now, is that what Lloyd relied upon? Now,
someone that is wanting to conform their conduct according
to the law would do that. Is it not -- you know, somebody
that doesn't want to follow the law is going to come up with
something entirely different. They're going to come up
with, I don't know what, but it's not going to be "I relied
upon the law."
Lloyd went -- he relied upon Supreme Court
cases that said the income tax is an excise tax. And the
government hasn't shown to you at all that that's wrong.
They stand right now in this court with an assertion that is
unrefuted. They haven't said no, it's not an excise tax.
They must agree.
Lloyd read this case called Flint vs. Stone
Tracy, and he told you what he thinks an excise tax is, and
it sure didn't involve him. He's not involved in a
corporation or a privileged activity. Now, that's the
Supreme Court. Now, does the government refute that? No.
Now, it's also, you know, I think we can all
understand -- the Court's going to say use your common
knowledge. And I think everybody in Tennessee knows as a
matter of common knowledge there's not a state income tax.
And Lloyd tells you that the reason why you don't have a
state income tax in this state is because the Supreme Court
of the state said it's the right to earn a living and a
right can't be subjected to an excise tax.
Now, is it not entirely believable and
reasonable for someone to reach a conclusion like that if
they're both the same type of tax, yet here in Tennessee
this can't be applied to someone like Lloyd? Is it too hard
to imagine that the same situation might exist at the
federal level?
Now, you know, that isn't all that Lloyd
believes. He also has this other belief that is, again,
based on the law, or at least his view of the law.
Now, I don't have these -- well, yeah, here it
is. We didn't offer it into evidence, but I think you can
sit here and see this is what Lloyd said was a complete
Internal Revenue code. Boy, that is a monster. And I think
even though it is a monster, I think that we have the
expectation here in our country that every common man ought
to be able to look up the law and understand it.
Now, in this case, that search of the law to
determine whether or not you're required to file a return
has been greatly simplified.
The IRS came along in this thing known as a
Privacy Act notice, Exhibit No. 8 out of the instruction
booklet, and it says there's laws that relate to your
requirement to file a return.
Lloyd looks them up, and he finds out that the
general rule about being required to file a return is it
doesn't say every American, it doesn't say everybody in this
country. It doesn't use any of these other terms that we
would expect to see in the law.
It's this, I think, what did Lloyd say, term of
art or whatever? But it uses this special term called
"persons liable." And then Lloyd comes along, he's told,
and of course, he does this, he checks out some other taxes
in this big old monster of a law. He checks out and he
says, you know, he uses the booze example. And he doesn't
have anything to do with booze, but it's particularly
appropriate here. He finds where Congress imposes a tax and
he finds where somebody is liable for the tax. And what he
says, the manufacturer or distiller or the importer or
something like that, that somebody is made liable for the
booze tax.
Now, let me just tell you, it seems like to me
that -- let's just take a look at this tax. You know, it
seems reasonable that Congress would make specific people
liable for it. They have done so. Those are the people,
according to Lloyd's argument, that are required to file a
return.
Now, I think we can all know, now, Lloyd is not
a drinking man and he's not a smoking man, but, you know, as
you-all have seen, I am. And there are taxes imposed on
cigarettes. You've got the stamps and all that. But I
don't file a tobacco tax return. He doesn't file a booze
tax return. Somebody can go down, I don't have to file a
return for this. I don't have to file a return. If I
walked into one of these distilleries we've got here in the
hills of Tennessee and bought a gallon of booze, I'm not
required to pay the -- to file a return. Why? Because I'm
not liable and Lloyd's not liable. Doesn't it make all the
sense in the world?
Now, in Lloyd's view, the general requirement
about being required to file a return is not based upon some
flighty theory. It's not based on a contention that I am a
Martian. It's not based on any contention other than this
is my understanding and reading of the law.
Lloyd's attempted to determine what the law is.
And when he's made that determination, he's reached certain
conclusions, but it's not some crazy theory. His view is in
order to be required to file a federal income tax return
he's got to be liable. And nobody has shown him where he's
liable, notwithstanding the fact that he has written a
series of letters here. And Mr. Collier wants to denegrate
them, but just take a look at them when you get back there
in the jury room. He asked specific questions.
Do we not have a right to ask the government
for something? I mean, isn't that what Lloyd says? Isn't
it the Internal Revenue Service? Don't we see on the TV all
the time, don't we -- everywhere we go, "If you've got a
question, ask us."
And so before, I think the series of letters
started before or shortly after he filed his '88 return.
And he asked these questions, which were simple. But he got
no response. Go through those letters and see if there's a
point-blank answer. There isn't any. None.
I find it atrocious that the reason why we're
here is not because of what Lloyd did. The reason why we're
here in court is because there's a duty on the part of the
government, when we write them and ask them a question, they
ought to reply.
It was very, very simple for the IRS to come
back along and say, yes, Mr. Long -- read his letters. He
says, just write me back and say yes or no to this. And
they didn't. Here you have a man who's engaged in what, six
years of study of the law and attempting to learn what the
law is? Isn't that good faith? Somebody acting in that
fashion, it just seems like to me in my heart of hearts
that's acting in good faith.
But he went a step further and asked them
questions. And the redeeming theme that they want to shift
the blame over to him, "Why, you have the audacity to ask
questions." I say they have the audacity to not answer
questions. Why?
Willfulness. Ladies and gentlemen of the jury,
listen to what the Court has to say. If you've got a good
faith belief that the law doesn't apply to you, it doesn't
matter whether it's reasonable or unreasonable, right or
wrong, it'll be your duty to acquit him.
Now, there has been nothing in this case that
indicates anything but the fact that Lloyd Long's reasons
why he did what he did are innocent reasons.
And you know, ladies and gentlemen, a lot of
people in America could fall right into what he did. And
don't you know that they would be innocent? They're
innocent because the government hasn't got an explanation in
any way, shape, manner or form as to why they didn't do what
Lloyd wanted them to do, which was asking -- answer those
questions which were repeatedly asked over and over and over
again.
I don't think in America we send people -- we
convict people for asking a question and having the
government sit there and not answer it and let things go the
way they did.
To me, ladies and gentlemen, that's, you know,
that shows that there's a reasonable doubt. No, I don't
want to say it shows a reasonable doubt. I want to say that
all the government's got in the way of a case about what his
intent was is smoke in mirrors. A vague, ill defined
allegation, which when tested by the testimony of Lloyd
Long, it boils down to nothing. And all you've heard are
innocent reasons that explain what he did.
Now, ladies and gentlemen, I think that there's
some other questions that need to be answered by the
government in this case. I only have a few minutes to talk
here and I'm about ready to wrap up. I don't have a long
time.
Mr. Collier is going to get up and he's going
to, I guess, say, you know, he's guilty. But have him
answer these questions. You know, let him answer in
rebuttal why we have the letter from Joe Dickerson, before
the 1990 return was due, a letter dated March 14, '91,
saying he doesn't have to file a return. And he's a guy
just like Lloyd. Working at Carrier? Isn't that what the
testimony was? Why? If it was so clear that there's not a
question, why wouldn't it happen? Why didn't that happen?
And another troubling thing for me is the fact
that, you know, the government hasn't offered a reason in
this case as to why -- Lloyd says it's an excise tax. He's
told you what an excise tax is and it doesn't include him.
And there isn't a satisfactory answer for that. It's not
refuted by any of the evidence or argument.
But even more so, I just have this question in
the back of my mind. Why, why, why? When you take a look
at that Exhibit No. 17, the computer transcript, that
permanent record, coming from the IRS service center over in
Memphis, why does it have a code that, according to Ms. Jeu,
means return not required to be mailed or filed? And she
told you that, you know, that code appears above the field
of computer information for 1987. We've got the '87 and '88
returns here in evidence. We show that they were filed.
Yet, it seems like to me a reasonable
construction of that computer document is it says not only
did Lloyd not have to file a return for '89 and '90, but '87
and '88 are in the same class. I only ask why.
Ladies and gentlemen, under these circumstances
I think there's but one thing that you can do. The
government hasn't shown that he acted willfully. In fact,
what the evidence has shown is that Lloyd Long had a good
faith belief he wasn't required to file a return. And since
he had a good faith belief, right or wrong, if he --
THE COURT: Your time is up.
MR. BECRAFT: Thank you, Your Honor.
If you believe these things, he's not guilty.
MR. COLLIER: Ladies and gentlemen, I know
you'll be happy to hear that this is the last lawyer who
will have a chance to speak to you.
One of the things that you do not leave out of
the courtroom when you become jurors is your common sense.
Now, the last thing that Mr. Becraft gave here
is an example of what criminal defense lawyers try to do.
Now, Mr. Becraft's job in this case is to do the absolute
best he can for the defendant in this case. He's required
to do that. He's obligated to do that. His job is to try
to get Mr. Long off if he can.
He talks about, the last thing he talked about
was Defense Exhibit 17, some type of computer printout. You
heard Ms. Jeu testify. Ms. Jeu said, "Mr. Becraft, you're
absolutely wrong. What you're saying is not on here. It
does not mean what you're trying to make it say. That's not
the case." Mr. Becraft spent how long, 30 minutes with her,
going over that thing? And you would've thought from the
way he was asking the questions that there was some issue
about whether or not Mr. Long had filed his returns or not.
Mr. Becraft knew when he was asking those
questions that Mr. Long hadn't filed a return. He knew that
there was no return in Memphis, there was no return in
Nashville, there was no return anywhere else in the United
States for 1989 and 1990. Mr. Becraft knew that. But Mr.
Becraft was doing his job, trying to get Mr. Long off of
these crimes because he sees an opportunity to create some
confusion where there was no confusion.
These other questions he asked. Mr. Becraft
says, well, have the government explain to you about this
excise tax. Read the charges in this case. See if you can
find the word "excise tax" anywhere. Listen to the judge's
instructions. See if he tells about an excise tax.
The only place you've heard about an excise tax
comes from over here, from Mr. Long and Mr. Becraft. Mr.
Long's liberty is at stake. He brings up this excise tax
stuff. It doesn't make any difference whether it's an
excise tax, a direct tax, a dog tax or a cat tax or
anything. It doesn't make any difference. He was required
to file his returns. He did not file his returns, and he
did it willfully. That's the only thing.
Mr. Becraft says in this country we don't
prosecute people for asking questions of the government.
That's exactly right. We don't do that. I would not do
that. No one that works for the United States Justice
Department, as far as I know, would ever do that. That is
not a crime in this country. Crimes in this country are
defined by the united States Congress. They are interpreted
by the courts and they're prosecuted by the executive branch.
The crimes in this case are in the information.
You'll see it. The judge is going to tell you what the
charges are. This man is not being prosecuted for asking
questions. This man is being prosecuted because he
willfully, intentionally and knowingly committed a crime.
He did it.
The Dickerson letter he asked about. He's a
man just like Mr. Long. Mr. Long, as a criminal defendant
in the United States of America, has the right to bring
anybody into court that he wants to. If he wanted to bring
Mr. Dickerson into court, he could have if he wanted to. He
didn't have to. And he decided not to.
Mr. Becraft says Mr. Dickerson is just like Mr.
Long. How do we know that? How do we know Mr. Dickerson is
just like Mr. Long? How do we know what the Internal
Revenue Service meant in those letters? How do we even know
that those letters came from the Internal Revenue Service?
How do we know that? Look at those letters. Look at the
type on the name of the person and then look at the type in
the body of the letter. We have no idea where those letters
came from or what it means. None at all. We don't know.
In essence, Mr. Becraft's argument boils down
to a tired defense argument of trying to shift the blame,
take the focus off Mr. Long and put the focus on somebody
else. That's all.
The evidence in this case is that Mr. Long is
here because of his actions. The most telling point of all
of his testimony came this morning. When I asked him, "You
chose not to pay, regardless of whether the system is
voluntary or involuntary, you chose not to pay, didn't you?"
He said, "That's right, I chose not to pay because I didn't
want to pay it."
Now, what do we know about the two tax years
that he didn't pay? What do we know about them? Mr. Long,
he tells you these were the two greatest income years he'll
ever had in his whole life, 1989 and 1990. That's another
coincidence, that the only time in his life he's making big
money he doesn't file his income tax returns.
Mr. Long is a man who picks and chooses what he
believes. He finds cases that support his position. This
man that he knows, that he's talked about taxes with, Tupper
Saussy, he was convicted in this courtroom. You would think
that somebody who's concerned, who's interested, who wants
to know what the law is, "Well, my goodness, how did old
Tupper get convicted? We've talked about this. I'd better
go to court to see what happened, see what he was charged
with. I need to see what the appellate court said about it,
what the Supreme Court say about his case."
No, he doesn't do that. He's talked about 1913
cases, 1840-something cases, Arkansas Supreme Court cases.
He's picking and choosing what he wants to believe. He also
picks and chooses what he wants to believe from the IRS. He
says, "Well, I relied on the Privacy Act statement." He
gets a letter from the IRS that says any individual has to
file a return. "Well, I don't believe that. I reject that.
I disagree with that." He picks and he chooses.
He tells you all the time that he's gone to
study, he goes all the way to Vanderbilt, he's in a group,
they're studying the laws, he's doing all this. But what is
there peculiar about the taxes that makes him study those?
I asked him about the rape laws. "How much
time did you put into studying the rape laws?" Not a
minute. "What's the rape statute in Tennessee?" He doesn't
know because he's not concerned about that. But he's
concerned about taxes. Why is he concerned about taxes? He
doesn't want to pay.
Mr. Long, even if this system is voluntary,
how about these other people who make less money who pay?
"Well, I'm not concerned about them. I'm not concerned
about them." The fact that other people who have kids,
maybe working two jobs, making a lot less than he was making
and are out there paying their money, that doesn't concern
him. He's concerned about himself.
This is a man, Mr. Long, who thinks he's above
the law. The laws that apply to everybody else, they don't
apply to him. The fact that Mr. Saussy gets convicted and
goes to jail, Well, that's Saussy. That's not me." The
fact that Mr. Leonard gets convicted and goes to jail,
"Well, that's Mr. Leonard. That's not me." The fact that
people in these books get convicted and go to jail, for the
same crime he's accused of, "That doesn't apply to me. I'm
above the law."
Well, ladies and gentlemen, I'm not going to
talk about Galileo or Columbus or Al Capone. Mr. Becraft
talked about the United States. In this country, every man
and every woman stands the same before the law. Mr. Long is
no better, Mr. Long is no worse than anybody else. Mr. Long
is a grown man. He decided what he wanted to do. And Mr.
Long ought to bear the consequences of his action. He is
not above the law.
This is not a man who made a mistake. He
didn't tell you in court, "Well, at the time I thought that
I wasn't required to file but now I know different, I know I
was required to file but I was mistaken." He doesn't say
that. This man is stubborn. He hasn't changed one iota.
It doesn't make any difference what anybody tells him, he's
not going to believe it. He's going to do what he wants to
do. He's stubborn. He thinks he's above the law.
Mr. Long unfortunately is not. He's no better and he's no
worse than any of the rest of us. He's liable for the same
consequences as anybody else.
He said two other things when he was
testifying. He talked about his '88 returns. Remember? He
said, "Well, I must've been a corporation then or I must've
thought I was a corporation then." What sense does that
make? He knew he wasn't a corporation. Why would he say
something like that? Is that good faith?
The one time, when he has a chance to sit down
with somebody face to face and talk about whether he's
required to file, to talk about whether he owes taxes, Mr.
Winburn from the IRS, what does a man in good faith do?
THE COURT: Your time is up, Mr. Collier.
MR. COLLIER: What does Mr. Long do? Thank
you.
THE COURT: Members of the jury:
It is now time for me to instruct you about the
law that you must follow in deciding this case. I'll start
by explaining your duties and the general rules that apply
in every criminal case. Then I'll explain the elements, you
heard the lawyers talk about that, or parts of the crimes
that the defendant is accused of committing. And then I'll
explain the rules that you must use in evaluating particular
testimony in evidence. Then, last, I will explain the rules
that you must follow during your deliberations in the jury
room and the possible verdicts that you may return.
Please listen very carefully to everything I say.
You have two main duties as jurors. The first
one is to decide what the facts are from the evidence that
you saw and heard here in court. Deciding what the facts
are is your job, not mine, and nothing that I have said or
done during this trial was meant to influence your decision
about the facts in any way.
Your second duty is to take the law that I give
you, apply it to the facts, and then decide if the
government has proved the defendant guilty beyond a
reasonable doubt. It is my job to instruct you about the
law, and you are bound by the oath that you took at the
beginning of the trial to follow the instructions that I
give you, even if you personally disagree with them. This
includes the instructions that I gave you before and during
the trial and in these instructions. All the instructions
are important and you must consider them together as a
whole.
The lawyers have talked about the law during
their arguments, and it is proper for them to do so. But if
what they said is different from what I say, you must follow
what I say, because what I say about the law controls.
Perform these duties fairly. Do not let any
bias, sympathy or prejudice that you may feel toward one
side or the other influence your decision in any way.
As you know, the defendant has pleaded not
guilty to the crimes charged in the superseding bill of
information. The superseding bill of information is not
evidence at all of guilt. It's just the formal way that the
government tells the defendant what crimes he is accused of
committing. It does not even raise any suspicion of quilt.
Instead, the defendant starts the trial with a
clean slate, with no evidence at all against him, and the
law presumes that he is innocent. This presumption of
innocence stays with the defendant unless the government
presents evidence here in court that overcomes the
presumption and convinces you beyond a reasonable doubt that
the defendant is guilty.
This means that the defendant has no obligation
to present any evidence at all or to prove to you in any way
that he is innocent. It's up to the government to prove
that the defendant is guilty, and this burden stays on the
government from start to finish. You must find the
defendant not guilty unless the government convinces you
beyond a reasonable doubt that he is guilty.
The government must prove every element of the
crimes charged beyond a reasonable doubt. Proof beyond a
reasonable doubt does not mean proof beyond all possible
doubt. Possible doubts or doubts based purely on
speculation are not reasonable doubts. A reasonable doubt
is a doubt based upon reason and common sense. It may arise
from the evidence, the lack of evidence, or the nature of
the evidence.
Proof beyond a reasonable doubt means proof
which is so convincing that you would not hesitate to rely
and act on it in making the most important decisions in your
own lives. If you are convinced that the government has
proved the defendant guilty beyond a reasonable doubt, say
so by returning a guilty verdict. If you are not convinced,
say so by returning a not guilty verdict.
Your decision must be based only on the
evidence that you saw and heard here in court. Do not let
rumors, suspicions, or anything else that you may have heard
or seen outside of court influence your decision in any way.
The evidence in this case includes only what
the witnesses said while they were testifying under oath,
the exhibits that I allowed into evidence, and the
stipulations that the lawyers agreed to.
Nothing else is evidence. The lawyers'
arguments and statements are not evidence. Their questions
and objections are not evidence. My legal rulings are not
evidence. And my comments and questions are not evidence.
During the trial I didn't let you hear the
answers to some of the questions that the lawyers asked. Do
not speculate about what a witness might've said. These
things are not evidence, and you are bound by your oath not
to let them influence your decision in any way.
So, make your decision based only on the
evidence as I have defined it here, and on nothing else.
You should use your common sense in weighing
(line indistinct)
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you that certain evidence reasonably leads to a conclusion,
you are free to reach that conclusion.
Some of you may've heard the terms "direct
evidence" and "circumstantial evidence." Direct evidence is
simply evidence like the testimony of an eyewitness which,
if you believe it, directly proves a fact. If a witness
testified that he saw it raining outside, and you believe
that witness, then it would be direct evidence that it was
raining.
Circumstantial evidence is simply a chain of
circumstances that indirectly proves a fact. If someone
walked into the courtroom wearing a raincoat covered with
drops of water and carrying a wet umbrella, that would be
circumstantial evidence from which you could conclude that
it was raining.
It's your job to decide how much weight to give
to the direct and circumstantial evidence. The law makes no
distinction between the weight that you should give to
either one, nor does it say that one is any better evidence
than the other. You should consider all the evidence, both
direct and circumstantial, and give it whatever weight you
believe it deserves.
Another part of your job as jurors is to decide
how credible or believable each witness was. This is your
job, not mine. It's up to you to decide if a witness's
testimony was believable and how much weight you think it
deserves. You are free to believe everything that a witness
said, or only part of it, or none of it at all. You should
act reasonably and carefully in making these decisions.
Let me suggest some things for you to consider
in evaluating each witness's testimony.
Ask yourself if the witness was able to clearly
see or hear the event. Sometimes even an honest witness may
not have been able to see or hear what was happening and may
make a mistake.
Ask yourself how good the witness's memory
seemed to be. Did the witness seem able to accurately
remember what happened?
Ask yourself if there was anything else that
may've interfered with the witness's ability to perceive or
remember the events.
Ask yourself how the witness acted while
testifying. Did the witness appear honest? Or did the
witness appear to be lying?
Ask yourself if the witness had any
relationship to the government or to the defendant, or
anything to gain or lose from the case, that might influence
the witness's testimony.
Ask yourself if the witness had any bias, or
prejudice, or reason for testifying that might cause the
witness to lie or slant the testimony in favor of one side
or the other.
Ask yourself how believable the witness's
testimony was in light of all the other evidence. Was the
witness's testimony supported or contradicted by other
evidence that you found believable? If you believe that a
witness's testimony was contradicted by other evidence,
remember that people sometimes forget things, and that even
two honest people who witness the same event may not
describe it exactly the same way.
These are only some of the things that you may
consider in deciding how believable each witness was. You�
may also consider other things that you think shed some
light on the witness's believability. Use your common sense
and your everyday experience in dealing with other people.
And then decide what testimony you believe and how much
weight you think it deserves.
The lawyers for both sides objected to some of
the things that were said or done during the trial. Do not
hold that against either side. The lawyers have a duty to
object whenever they think that something is not permitted
by the rules of evidence. Those rules are designed to make
sure that both sides receive a fair trial.
And do not interpret any rulings on their
objections as any indication of how I think the case should
be decided. My rulings were based on the rules of evidence,
not on how I feel about the case. Remember that your
decision must be based only on the evidence that you saw and
heard here in court.
That concludes the part of my instructions
explaining your duties, and the general rules that apply in
every criminal case. In a moment, I will explain the
elements of the crimes that the defendant is accused of
committing.
But before I do that, I want to emphasize that
the defendant is only on trial for the particular crimes
charged in the superseding bill of information. Your job is
limited to deciding whether the government has proved the
crime charged.
The defendant has been charged with two crimes.
The number of charges is no evidence of guilt, and this
should not influence your decision in any way. And in our
system of justice, guilt or innocence is personal and
individual. It is your duty to separately consider the
evidence against the defendant on each charge, and return a
separate verdict for each of them. You must decide whether
the government has presented proof beyond a reasonable doubt
that the defendant is guilty of a particular charge.
Your decision on one charge, whether it is
guilty or not guilty, should not influence your decision on
the other charge.
As I have said, the superseding bill of
information sets forth two counts or charges.
Count 1 charges that the defendant, Lloyd R.
Long, had and received a gross income of $49,303 during the
calendar year of 1989; that, by reason of such income, he
was required by law following the close of the calendar year
1989 and on or before April 16, 1990, to make an income tax
return; that the defendant willfully failed to file an
income tax return for the calendar year 1989, in violation
of Section 7203 of Title 26 of the United States Code.
Count 2 charges that the defendant, Lloyd R.
Long, had and received a gross income of $49,518 during the
calendar 1990; and that, by reason of such income, he was
required by law following the close of the calendar year
1990, and on or before April 15, 1991, to make an income tax
return; and the defendant willfully failed to make an income
tax return for the calendar year 1990, in violation of
Section 7203 of Title 26 of the United States Code.
Both counts contained in the information are
based upon alleged violations of Section 7203 of Title 26,
United States Code. Title 26 is the Internal Revenue code.
This section provides in part as follows. And I'm quoting
here.
"Any person required... by law or regulation...
to make a return... who willfully fails to ..
make such return... at the time required by law
or regulations..."
shall be guilty of an offense against the
United States.
In order for the government to prove the
defendant guilty on Count 1 of the information, three
essential elements of the offense must be proved beyond a
reasonable degree:
First, that the defendant was a person required
by law or regulation to make a return of his income for the
taxable year ended December 31, 1989;
Second, that the defendant failed to make such
return at the time required by law, which was on or before
April 16, 1990;
Third, that the defendant's failure to make the
return was willful.
In order for the government to prove defendant
guilty on Count 2 of the information, three essential
elements of this offense must be proved beyond a resonable
doubt. You'll recognize these as being the same elements,
but with different dates.
First, that the defendant was a person required
by law or regulation to make a return of his income for the
taxable year ended December 31, 1990;
Second, that the defendant failed to make such
return at the time required by law, which was on or before
April 15, 1991;
Third, that the defendant's failure to make the
return was willful.
The burden is on the government to prove every
element of the offense as charged beyond a resonable doubt.
The law never imposes on the defendant in a criminal case
the burden of producing any evidence or calling any
witnesses.
Remember that a separate crime or offense is
charged in each count of the information. Each charge and
the evidence pertaining to it should be considered
separately.
Let's talk now about the first element.
A person is required to make a federal income tax return for
any calendar year in which he had gross income in excess of
an amount set by law. For the defendant, that amount in
1989 was $9,200. In 1990, the amount was $9,550.
Gross income is defined by law as "all income
from whatever course derived, including... compensation for
services." Gross income includes the following:
Compensation for services, including fees,
commissions and similar items; gross income derived from
business; gains derived from dealing in property; interest;
rents; royalties; dividends; alimony and separate
maintenance payments; annuities; income from life insurance
and endowment contracts; pensions; income from discharge of
indebtedness; distributive share of partnership gross
income; income in respect of a decedent; and income from an
interest in an estate or trust.
Therefore, with respect to the phrase "gross
income" as used in the information, you are instructed that
wages, fees, and interest, and compensation for services
received by the defendant constitute gross income.
The defendant is required to file returns if
his gross income for the calendar year of 1989 exceeded
$9,200, and the calendar year 1990 exceeded $9,550, even
though he may be entitled to deductions from income in
sufficient amount so that no tax would be due. The
government is not required to show that a tax is due and
owing as an essential element of the offense charged in the
information. Nor is the intent to evade payment of taxes an
essential element of the offense charged.
The proof need not show that the defendant
received the exact amount of gross income as alleged in the
information. The evidence must establish beyond a
reasonable doubt that the defendant received sufficient
gross income during the tax year to require him to file a
tax return as required by law.
Turning now to the second element.
The second element of the offense of failure to file is that
the defendant failed to file a timely income tax return for
each of the years charged in the information 1989 and 1990.
The law provides that a return made on the
basis of the calendar year shall be made on or before the
15th day of April following the close of the calendar year,
except when April 15th falls on a Saturday, Sunday or legal
holidays, returns are due on the first day following April
15th which is not a Saturday, Sunday or legal holiday.
For the offense charged in Count 1, the date
of a timely filing of the required tax return for the
calendar year 1980 was April 16, 1990. For Count 2, the
calendar year 1990, the date of timely filing was April 15,
1991.
Turning now to the third element of this
offense. You are instructed that the government must prove
beyond a resonable doubt that the defendant's failure to
make a return was willful. Willfulness is the voluntary,
intentional violation of a known legal duty.
The defendant's failure to make a return was
willful if the law imposed a duty on defendant to file a
return; he knew of this duty; and he voluntarily and
intentionally violated that duty.
The defendant's conduct was not willful if he
acted through negligence, inadvertence, mistake, or due to a
good faith misunderstanding of the law. If the defendant
had a subjective good faith belief, no matter how
unreasonable, that the law did not require him to file tax
returns, he did not act willfully. However, if the
defendant failed to make a return either because he
disagreed with the tax laws or he thought the tax laws to be
unconstitutional, these beliefs would not amount to a good
faith misunderstanding of the law so as to excuse his
failure to make tax returns.
The defendant's state of mind is something that
you, the jury, must determine. There is no way that a
defendant's state of mind can be proved directly, but no one
can read another person's mind and tell what the other
person is thinking -- because no one can -- let me start
over on that.
The defendant's state of mind is something that
you, the jury, must determine. And there is no way that the
defendant's state of mind can be proved directly, because no
one can read another person's mind and tell what that person
is thinking. But the defendant's state of mind can be
proved indirectly from the surrounding circumstances. This
includes things like what the defendant said, what the
defendant did, how the defendant acted, and any other facts
or circumstances in evidence that show what was in the
defendant's mind.
The defendant acted willfully if he
deliberately intended not to make his tax returns which he
knew ought to have been filed. The government is not
required to prove that the defendant had any intention to
defraud the government or to evade the payment of taxes.
The government must prove only that it was the defendant's
deliberate intention not to make tax returns which he knew
he was required to file, at the time that he was required by
law to file them.
There is a distinction between the civil
liability of the defendant and his criminal liability. This
is a criminal case. The defendant is charged under the law
with the commission of a crime, and whether or not he has
settled any civil liability for the payment of taxes claimed
to be due to the United States is not to be considered by
you in determining the issues in this case.
If you find that the government has carried its
burden of proving beyond a reasonable doubt that the
defendant was a person required by law or regulation to make
a return of his income for the taxable years in question,
that the defendant failed to make such returns and the times
required by law, and that the defendant's failure make the
returns was willful, then the defendant would be guilty of
the offense charged in Counts 1 and 2 of the information.
On the other hand, if you find the facts to be
otherwise, or if you have a reasonable doubt with respect to
any of the elements of the crimes charged, then it would be
your duty to return a verdict of not guilty.
You have heard the defendant testify. Earlier,
I mentioned or talked to you about the "credibility" or the
"believability" of witnesses. And I suggested some things
for you to consider in evaluating each witness's testimony.
You should consider those same things in evaluating the
defendant's testimony.
You've also heard the testimony of an expert
witness. An expert witness has special knowledge or
experience that allows that witness to give an opinion.
You do not have to accept an expert's opinion.
In deciding how much weight to give it, you should consider
the witness's qualifications and how he reached his
conclusions.
Remember that you alone decide how much of a
witness's testimony to believe and how much weight it
deserves.
That concludes the part of my instructions
explaining the rules for considering some of the testimony
and evidence. Let me finish up now by explaining some
things about your deliberations in the jury room and your
possible verdicts.
The first thing that you should do in the jury
room is to choose someone to be your foreperson. This
person will help guide your discussions and will speak for
you here in court.
Once you start deliberating, do not talk to the
jury officer, or to me, or to anyone else except each other
about the case. If you have any questions or messages, you
should write them down on a piece of paper, sign them, and
give them to the jury officer. The officer will then give
them to me, and then I will respond as soon as I can. I may
have to talk to the lawyers about what you have asked. So,
it may take me some time to get back to you. Any questions
or messages normally should be sent to me through your
foreperson.
One more thing about the messages, and you will
have a form for this back in the jury room there. Don't
write down or tell anyone how you stand on your votes. For
example, don't write down and tell anyone that you are split
6-6, or 8-4, or whatever your vote happens to be, because
that should stay secret until after you are finished your
deliberations.
Your verdict, whether it is guilty or not
guilty, must be unanimous.
To find the defendant guilty, every one of you
must agree that the government has overcome the presumption
of innocence with evidence that proves guilt beyond a
reasonable doubt.
To find the defendant not guilty, every one of
you must agree that the government has failed to convince
you beyond a reasonable doubt.
Either way, guilty or not guilty, your verdict
must be unanimous.
Now that all the evidence is in and the
arguments are completed, you are free to talk about the case
in the jury room. In fact, it's your duty to talk with each
other about the evidence and to make every reasonable effort
that you can to reach a unanimous agreement. Talk with each
other, listen carefully and respectfully to each other's
views, and keep an open mind as you listen to what your
fellow jurors have to say. Try your best to work out your
differences. Do not hestitate to change your mind if you
are convinced that other jurors are right and that your
original position was wrong.
But don't change your mind just because other
jurors see things differently, or just to get the case over
with. In the end, your vote must be exactly that - your own
vote. It's important for you to reach unanimous agreement,
but only if you can do so honestly and in good conscience.
No one will be allowed to hear your discussions
in the jury room, and no record will be made of what you
say. So, you should all feel free to speak your minds.
Listen carefully to what the other jurors have
to say, and then decide for yourself if the government has
proved the defendant guilty beyond a reasonable doubt.
If you decide that the government has proved
the defendant guilty, then it will be my job to decide what
the appropriate sentence will be.
Deciding what the sentence should be is my job,
not yours. It would violate your oath as jurors to even
consider the possible sentence in deciding your verdict.
Your job is to look at the evidence and decide
if the government has proved the defendant guilty beyond a
reasonable doubt.
You will have a verdict form with you in the
jury room. It has two questions on it. Question one reads
as follows:
"We, the jury, unanimously find the defendant
Lloyd R. Long is not/is," fill in the blank, "guilty of the
offense charged in Count 1 of the superseding bill of
information.
"Count 2. We, the jury, unanimously find the
defendant Lloyd R. Long is not/is guilty of the offense
charged in Count 2 of the superseding bill of information."
One question for each count.
At this time I'll request that the jury retire
to deliberate on its verdict.
(Jury was excused for deliberations at 4:15
p.m., and the following proceedings were held
outside their presence, as follows:)
THE COURT: Other than the objections that have
already been made on the record to the charge, are there any
other additions or corrections to the charge as read?
MR. BECRAFT: No. No additions, Your Honor
MR. COLLIER: No, Your Honor.
THE COURT: Okay. If the clerk then would
bring back Ms. Tripp.
(Juror Tripp returned to courtroom.)
THE COURT: Ms. Tripp, sorry to have to tell
you, but you're not going to have a chance to decide this
case. We didn't tell you in so many words, but I think you
probably figured out that you were an alternate.
We need alternates, though. And as you saw,
what happened in this case is an example of why we have
alternates, because one of the gentlemen was not able to
continue for personal reasons, and so we were able to
substitute number one alternate at that time, Ms. Clark.
And we would've had to have done the same thing with you if
anything had happened during the course of the trial.
I say that just to tell you that your service
here, even though as an alternate, its very important to us.
And I appreciate very much your coming down and serving.
You're now excused.
(Juror Tripp was excused.)
THE COURT: All right. I put responsibility on
counsel to make sure that only those exhibits which are
admitted into evidence are permitted to go back to the jury
room.
I would, of course, ask that somebody from each
side be available so that we can contact you immediately in
case we receive any word from the jury. So, don't go very
far.
I have some other matters to take up here in
just a moment. So, we will be utilizing the courtroom for
that purpose, although if you want to leave the stuff on
those tables, I don't think there's any problems with that.
Pending word from the jury in this case, we'll
be in recess. And the Court will be in recess for about
five minutes.
(Court was in recess pending notification from
the jury, as follows:)
THE COURT: The jury has advised the Court that
they want to come back tomorrow and continue their
deliberations. At this time we'd request that the jury be
brought back in.
(Jury returned to courtroom at 5:40 p.m., and
the following proceedings were held in open
court, as follows:)
THE COURT: Ladies and gentlemen of the jury,
you-all can go home and watch the Braves tonight and relax.
But don't talk about this case with anyone. That includes
members of your family or anybody else. The basic thing to
remember is don't talk about this case until after it's all
over, and then you can talk about it with other people other
than yourselves.
Also, if there's anything in the news media or
anything about this case in the papers, please do not read
it, or watch it if it's on television, or listen to it if
it's on the radio.
Please come back at nine o'clock tomorrow
morning. Is that okay? Nine o'clock. And when you come
back, you don't have to come back to the courtroom. Just go
right back to the jury room. But don't start your
deliberations until all 12 of you are here. When you are
all here, then you can go ahead and start. Any questions?
Okay. We'll be in adjournment until nine o'clock tomorrow
morning.
(Whereupon, court was adjourned at 5:45 p.m. to
continue at 9:00 a.m., October 14, 1993.)
IN OPEN COURT
THE COURT: We've received a communication from the
jury that it has reached a verdict in this case. So, at this
time we'll request that they be brought back.
(The jury returned to the courtroom,
and the proceedings continued, in open
court, as follows:)
THE COURT: Have a seat, ladies and gentlemen.
Mr. Kilgore, since you have sent the message here,
I take it you have been designated as the foreperson. Is
that correct?
JURY FOREMAN KILGORE: Yes, sir.
THE COURT: Okay. Has the jury reached a unanimous
verdict in this case, Mr. Kilgore?
JURY FOREMAN KILGORE: Yes, sir.
THE COURT: Okay. Do you have the verdict form there?
JURY FOREMAN KILGORE: Yes, sir.
THE COURT: Please hand it to Ms. Ashby.
(Foreman complying.)
THE COURT: All right. If the clerk would read the verdict form.
THE CLERK: "Question 1. We, the jury, unanimously
find the defendant, Lloyd R. Long, is not guilty of the
offense charged in Count 1 of the superseding bill of
information.
"Question 2. We, the jury, unanimously find the
defendant, Lloyd R. Long, is not guilty of the offense
charged in Count 2 of the superseding bill of information."
THE COURT: Any party wish to poll the jury?
MR. COLLIER: We do, Your Honor.
THE COURT: Poll the jury.
THE CLERK: The jury verdict I have just read,
Mr. Chunn, is that your verdict?
JUROR CHUNN: Yes.
THE CLERK: Mr. Anderson, is that your verdict?
JUROR ANDERSON: Yes
THE CLERK: Ms. Janow, is that your verdict?
JUROR JANOW: Yes.
THE CLERK. Mr. Olson, is that your verdict?
JUROR OLSON: Yes.
THE CLERK: Mr. Boling, is that your verdict?
JUROR BOLING: Yes, ma'am.
THE CLERK: Mr. Morrow, is that your verdict?
JUROR MORROW: Yes.
THE CLERK: Mr. Layne, is that your verdict?
JUROR LAYNE: Yes.
THE CLERK: Mr. Hicks, is that your verdict?
JUROR HICKS: Yes,
THE CLERK: Mr. Wilcox, is that your verdict?
JUROR WILCOX: Yes, ma'am.
THE CLERK: Mr. Kilgore, is that your verdict?
JUROR KILGORE: Yes, ma'am.
THE CLERK: Ms. Roark, is that your verdict?
JUROR ROARK: Yes.
THE CLERK: And, Ms. Clark, is that your verdict?
JUROR CLARK: Yes.
THE COURT: All right. The verdict form will be
recorded and filed in this case.
Ladies and gentlemen, thank you for your service as
jurors in this case. You are now excused. Thank you. We'll
call you when we need you again.
(Jury excused.)
THE COURT: Okay. This case is concluded.
MR. BECRAFT: Your Honor, it's been a pleasure. I
know the Court probably was troubled by us a few times, but
it's always a pleasure to be here in your court.
THE COURT: Likewise, Mr. Becraft.
The defendant, I don't know if he's on bond.
THE DEFENDANT: Yes, sir.
THE COURT: His bond is discharged and this case is
concluded and this Court is in adjournment.
THE CLERK: All rise. This Honorable Court is now
in adjournment.
END OF PROCEEDINGS
REPORTERS' CERTIFICATE
We, Sheila D. Wilson and Elizabeth B. Coffey, do
hereby certify that we reported in machine shorthand the
proceedings in the above-styled cause held October 12, 13 and
14, 1993, and that this transcript is an accurate record of
said proceedings.
_______________________
Sheila D. Wilson
Substitute Official Reporter
_______________________
Elizabeth B. Coffey
Substitute Official Reporter