AMERICAN PATRIOT NETWORK                   

[1] [2] [3] [4] [5] [6] [7]

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)

(line indistinct)

(line indistinct)

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