On Appeal from the United States District Court for the District of New Jersey. D.C. Crim. No. 86-00110
Before: Becker, Nygaard and Roth, Circuit Judges
This appeal requires us to determine the allowable units of prosecution for violations of 26 U.S.C. § 7201 (1988), a federal tax evasion statute, as well as several sentencing issues raised by appellant, Dr. William Pollen. Pollen appeals from the sentences imposed by the district court after his plea of guilty to four counts of tax evasion.*fn1 He argues that these four counts are impermissibly multiplicitous and that as a consequence he has been subjected to multiple punishment for the same violations of section 7201, a result prohibited by the Double Jeopardy Clause of the Fifth Amendment. In addition, Pollen asserts that the district court erred in calculating the amount of tax evaded and in increasing his offense level by four points to reflect his role in the offense charged in Count Five, the sole count governed by the Sentencing Guidelines.*fn2 Finally, Pollen contends that, even assuming his other arguments fail, the district court abused its discretion in imposing concurrent sentences for his pre-Guidelines and Guidelines offenses.
We find that the counts to which Pollen pleaded guilty charge allowable units of prosecution under section 7201 and so are not impermissibly multiplicitous. Thus Pollen has not been subjected to multiple punishment for the same offense in violation of the Double Jeopardy Clause. Further, the district court did not err in calculating the amount of tax evaded or in imposing concurrent sentences for Pollen's pre-Guidelines and Guidelines offenses. We agree, however, with Pollen's contention that the district court committed plain error in increasing his offense level by four levels to reflect Pollen's role in the offense charged in Count Five. Consequently, we will vacate the sentence imposed on that count and remand to the district court for further sentencing proceedings in light of this opinion.
The guilty plea that comprises the basis of this appeal is not the first chapter in the saga of Pollen's attempts to evade his obligation to pay personal income taxes to the United States government. In April of 1972 Pollen was indicted by a federal grand jury in the District of New Jersey on three counts of income tax evasion for the years 1965, 1966, and 1967. The charges stemmed from an Internal Revenue Service ("IRS") investigation which revealed that between 1965 and 1967 Pollen deposited $650,000 in a South Amboy, New Jersey, bank without reporting any income relating to these deposits to the IRS.*fn3
Prior to his arraignment on these charges, Pollen fled. A bench warrant was issued for his arrest, and on May 6, 1972, Pollen was apprehended in Canada. In March of 1973, Pollen pled guilty to evading $146,987 in taxes due for the 1967 tax year. When he failed to appear for his scheduled sentencing on May 18 of that year, a bench warrant was once again issued for his arrest. Pollen managed to evade custody until May 7, 1974, almost a year later. Once apprehended, he was given a five-year sentence, the statutory maximum penalty for tax evasion.
Meanwhile, on May 12, 1972, in response to a petition filed by the IRS, the district court appointed a receiver for Pollen's estate, with instructions to take custody of all property belonging to Pollen and his wife and to satisfy Pollen's tax liens for calendar years 1965-67. Throughout the majority of the receiver's tenure from 1972 through 1978, Pollen refused to cooperate with the receiver's attempts to fulfill his court-imposed duty to satisfy Pollen's existing tax liens. In fact, during that period Pollen had substantial assets concealed outside of the United States that he refused to disclose.*fn4 As a consequence of this behavior the district court entered an order of contempt against Pollen in January of 1974. This civil contempt was not purged until June of 1975.
During his tenure, the receiver collected outstanding accounts receivable from Pollen's medical practice, located and sold a number of Pollen's real estate holdings, and located bank accounts and safety deposit boxes containing gold and silver bullion and currency in numerous locales, including New Jersey, Mexico, and the Bahamas. These efforts resulted in the collection of approximately $1,300,000; $662,744 of which was remitted to the IRS to fulfill Pollen's tax obligations for 1965, 1966, and a portion of that due for 1967.*fn5 Pursuant to standard IRS procedure, each payment the receiver made on behalf of Pollen was applied to his total debt, including tax, interest, and penalty, for the earliest tax years with outstanding debts.
After his release from prison in April of 1976, Pollen continued to evade payment of his taxes and conceal assets from the IRS. As a result, on March 26, 1986, the grand jury for the District of New Jersey returned a four-count indictment against Pollen, charging him with willfully attempting to evade and defeat the payment of a large part of his United States income taxes owed for the calendar years 1965 through 1967, 1972 through 1975, and 1980 through 1982, in an amount in excess of $640,000. Again Pollen fled before he could be taken into custody, and he remained a fugitive for over four years.
Ultimately Pollen was apprehended on August 15, 1990, as the result of a successful surveillance operation of his home in Colonia, New Jersey. At the time of arrest, Pollen possessed an extensive collection of false identification, including social security cards, a number of United States and foreign passports, drivers licenses, and credit cards. He also possessed a hand-held computer that contained information, recorded in at least four distinct coding systems, detailing his elaborate international system for concealing assets from the IRS.
The United States subsequently presented additional evidence to the grand jury, and an eight-count Superseding Indictment was filed on October 1, 1990. On May 3, 1991, Pollen entered a plea of guilty in the United States District Court for the District of New Jersey to Counts One, Two, Three, and Five of this Superseding Indictment. Each of these four counts charged Pollen with attempting to evade and defeat payment of his personal income taxes for the same group of seven years: 1967, 1970, 1972 through 1975, and 1982. In return for Pollen's guilty plea on these counts, the government moved to dismiss Counts Four, Six, Seven, and Eight of the Superseding Indictment and Count One of a related indictment, the only count of that indictment in which Pollen was named.
Count One of the Superseding Indictment charged that on or about April 18, 1984, Pollen knowingly and willfully attempted to evade the payment of more than $400,000 in federal income taxes for the years 1967, 1970, 1972 through 1975, and 1982 by "placing part of his assets out of reach of the United States Government by causing approximately $690,000 in gold to be brought to the Swiss Bank Corporation, Toronto, Canada, with instructions to further transfer the gold to a nominee account" in Switzerland. When pleading guilty to this count Pollen admitted that he owned this gold, that at the time of the transfer he knew that he owed substantial taxes to the IRS, and that he made this transfer in an attempt to evade payment of these taxes. Supplemental Appendix ("S.A.") at 017-018.
Count Two charged that on or about June 12, 1984, Pollen attempted to evade taxes owed for the same seven tax years through transporting an additional $285,000 to the Swiss Bank Corporation in Toronto, Canada, with instructions that it be transferred to the nominee account in Switzerland. In pleading guilty to this count Pollen admitted that he owned this gold and that he made the transfer for the purpose of evading taxes that he knew he owed to the IRS. S.A. at 018-019.
Count Three charged that between October 5, 1981, and December 18, 1984, Pollen attempted to evade and defeat the payment of taxes due for the same seven years by engaging in a continuous scheme and course of conduct to conceal assets from the IRS. In pleading guilty to this count Pollen admitted that as part of this course of conduct he used currency, money orders, and cashiers checks to buy assets and pay expenditures and that he used nominees to conceal his expenditures.*fn6 Pollen also admitted that when he engaged in this course of conduct he knew that he owed the federal government substantial taxes and he conducted these transactions in this manner for the purpose of evading their payment. S.A. at 019-021.
Finally, Count Five charged that on or about August 22, 1990, Pollen attempted to evade and defeat the payment of his taxes owed for the identical seven years through placing assets out of the reach of the United States "by maintaining more than $350,000 in gold bars and coins, jewelry, and gems in safety deposit boxes at the First Union National Bank of North Carolina" under a fictitious name. When pleading guilty to this count Pollen admitted that he owned these assets and that he placed them in ...