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United States v. Desmond

decided: January 19, 1982.

UNITED STATES OF AMERICA, APPELLEE
v.
FRANCIS P. DESMOND, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Before Aldisert, Rosenn and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

Submission of special interrogatories to a jury in a criminal trial is not favored because they may unduly restrict that body's historical power to acquit. Their use in the case at hand, however, did not rise to the level of plain error. Accordingly, we reject defendant's challenge to his conviction based on the jury's answers to interrogatories to which no objection was made at trial.

Defendant, a practicing attorney in Pennsylvania, was charged with violating the Internal Revenue Code, 26 U.S.C. ยง 7206(1), by failing to report approximately $48,000 in income during the taxable years 1973, 1974 and 1975. He presented no testimony at trial, but through cross-examination and argument, contended that he had not acted willfully or with the belief that the returns were incorrect as to any material matter. The fact of underreporting itself was not contested. Rather, defendant advanced as excuses a combination of careless bookkeeping and his erroneous opinions on the taxable status of the funds. On cross-examination, a number of government witnesses testified to defendant's good character.

At the conclusion of the evidence and before final summations, the trial judge told counsel that he proposed to submit the case to the jury on three written interrogatories that incorporated the elements of the offense charged. The questions were framed so that an answer of "yes" was equivalent to a guilty verdict, and "no" indicated a not guilty finding. The judge told counsel that "when we take our break, I will give you the verdict slips, and you may feel free to edit them if you want to." Defense counsel did not object then or afterward, nor did he suggest any changes in language.

The interrogatories were similar for each of the three counts and read as follows:

"1. Has the government proved beyond a reasonable doubt each of the following:

(a) that the defendant willfully made and subscribed to an incorrect 1973 federal income tax return;

(b) that defendant's 1973 federal income tax return contained a written declaration that it was made under the penalty of perjury; and

(c) that defendant did not believe his 1973 federal income tax return to be true and correct as to every material matter when he signed it and said return was not true and correct as to every material matter.

The undersigned, members of the jury, hereby certify that the foregoing answers to interrogatories are the unanimous action of the jury:

(SEAL)"

When the judge reviewed the interrogatories during the course of the charge to the jury, he pointed out that they set forth the three elements of the alleged crimes and explained:

"If you find that the Government has established those elements beyond a reasonable doubt, then you would answer, yes, which would equal guilty.

"If you find the Government, as the defendant contends, simply has not met the burden of proof, you would find, no, which equals not guilty.

"Each juror must sign on the last page, page 3. Your verdict must be unanimous on each question. There is no majority ...


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