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United States v. Manfredi

January 21, 2009

UNITED STATES OF AMERICA
v.
SAMUEL J. MANFREDI AND MARILYN T. MANFREDI, DEFENDANTS.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On September 25, 2007, a grand jury returned an eight-count indictment against Samuel J. Manfredi ("Mr. Manfredi") and Marilyn T. Manfredi ("Mrs. Manfredi") (collectively, "Defendants") charging both with the following crimes: (1) at Count One with conspiracy to commit offenses against the United States under 18 U.S.C. § 371 including income tax evasion in violation of 26 U. S.C. § 7201, filing false tax returns in violation of 26 U.S.C. § 7206(1) and structuring currency transactions in violation of 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2; (2) at Counts Two, Three and Four with income tax evasion in violation of 26 U.S.C. § 7206(1); and (3) at Count Eight with structuring currency transactions in violation of 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2. (Docket No. 2). The indictment also charges Samuel J. Manfredi, only, at Counts Five, Six and Seven with filing false tax returns in violation of 26 U.S.C. § 7206(1). Id. This matter is before the Court on Defendants Samuel J. Manfredi and Marilyn T. Manfredi's remaining Pretrial Motions upon which oral argument was heard on December 22, 2008.

As a preliminary matter, the Court has granted Defendant Samuel J. Manfredi's "Motion to Adopt and Join In Motions of Co-Defendant" (Docket No. 43) and Defendant Marilyn T. Manfredi's "Motion to Join Motions filed by Co-Defendant" (Docket No. 50). Accordingly, when applicable, the Court will discuss each Pretrial Motion as they pertain to both Defendants.

The Court also previously denied seven of Defendants' Pretrial Motions in a Memorandum Opinion and Order issued on June 27, 2008, 2008. (Docket No. 86). In said Order, the Court denied the following motions previously filed by Defendants:

A. Motion for Disclosure of 404(b) Evidence (Docket No. 29);

B. Motion for Revelation of Identity of Informants (Docket No. 51);

C. Motion to Preserve Evidence (Docket No. 55);

D. Motion for Government Disclosure of Rule 807 "Residual Exception" Statements (Docket No. 46);

E. Motion for Pretrial Disclosure of All Brady Materials (Docket No. 48);

F. Motion for Discovery and Notice of Intention to Use Evidence (Docket No. 32);

G. Motion for Search of Personnel Files of Government Agency Witnesses (Docket No. 45);

Presently before the Court are six additional Pretrial Motions in which both Defendants have joined (to the extent applicable to each). The pending Pretrial Motions include the following:

H. Motion to Dismiss Count One for Alleging Multiple Conspiracies (Docket No. 38);

I. Motion to Dismiss Counts One, Five through Seven, and Eight For Failing To State an Offense and All of Its Forfeiture Allegations For Being Predicated on Defective Counts One and Eight (Docket No. 40);

J. Motion to Dismiss Indictment's Forfeiture Allegations (Docket No. 34);

K. Motion for Bill of Particulars by Defendant Samuel Manfredi (Docket No. 36);

L. Motion for Bill of Particulars by Defendant Marilyn Manfredi (Docket No. 31); and

M. Motion for Severance from Co-Defendant by Marilyn Manfredi (Docket No. 53).

II. BACKGROUND

The indictment alleges the following facts. At all times material to the indictment, Aquarian and Associates Incorporated ("Aquarian"), was a modeling and talent agency owned by Defendant Samuel J. Manfredi and incorporated in the Commonwealth of Pennsylvania. (Docket No. 2 at ¶¶ 1-2). Aquarian conducts modeling and talent auditions and shows in various cities in the United States and generates its revenue through registration fees for clients who participate in their shows. (Docket No. 2 at ¶¶ 2-3). "Aquarian also sold various 'extras' at the shows, such as photographs and t-shirts." (Docket No. 2 at ¶ 3). The registration fees and extras were paid by Aquarian's business clients and customers through cash, personal checks, money orders, and credit cards. (Docket No. 2 at ¶3). The alleged mishandling of these business activities, running from March 16, 1998 to April 15, 2004, forms the basis of the Grand Jury's indictment against Defendants. (Docket No. 2 at ¶4).

A. Count One - Conspiracy under 18 U.S.C. § 371 Count

One charges that Defendants knowingly and willfully combined, conspired, confederated, and agreed together and with one another to commit offenses against the United States, in violation of 26 U.S.C.§§ 7201 and 7206(1), and 31 U.S.C. § 5324(a)(3), that is: "(a) to evade and attempt to evade U.S. Individual income taxes; (b) to subscribe to and file false U.S. Income Tax Returns for an S-Corporation; and (c) to structure U.S. currency transactions with domestic financial institutions." (Id. at 1-2).

1. Manner and Means of the Conspiracy

Specifically, the indictment alleges that the following facts were done, made, or caused to be done as part or in furtherance of the conspiracy. Defendants "collected the business receipts of Aquarian and deposited and caused the deposit of the checks, money orders and credit card payments into Aquarian business accounts but did not deposit all of the cash receipts into the business accounts." (Id. at ¶5). Samuel Manfredi "provided or caused to be provided deposit slips reflecting the deposits into Aquarian bank accounts to an independent accountant retained" by him. (Id. at ¶6). Rather than "depositing all of the cash receipts earned from Aquarian business operations into business accounts," Defendants "used some of the cash to purchase postal money orders, certificates of deposit, annuities and personal property, including a Mercedes Benz automobile." (Id. at ¶7). The Postal Money Orders were purchased from United States Post Offices, "where they purchased United States Postal Money Orders by structuring the purchases with currency in amounts calculated to avoid required filings of funds transaction reports." (Id. at ¶ 8).

In addition, Defendants allegedly opened "205 accounts at 25 financial institutions in the Western District of Pennsylvania, including certificate of deposit and annuity accounts, savings accounts and other accounts" which were used to deposit Aquarian cash receipts. (Id. at ¶ 9). Defendants "also structured the deposit of currency, along with money orders, into certificate of deposit, annuity, savings and other bank accounts in the Western District of Pennsylvania in amounts calculated to avoid required filings of currency transaction reports." (Id. at ¶10). Further, Defendants allegedly did not report all cash receipts from Aquarian business operations to their independent accountant. (Docket No. 2 at ¶11). As such, the accountant who prepared Defendants' Aquarian and personal tax returns was unaware of the existence of the cash receipts and did not include them as income of Aquarian on the United States Income Tax Returns for an S Corporation (Form 1120S) or Defendants' Joint Individual Income Tax Returns (Form 1040). (Id. at ¶ 11).

It is alleged that Samuel J. Manfredi, reviewed, signed, and caused to be filed with the Internal Revenue Service ("I.R.S.") Aquarian's United States Income Tax Return for an S Corporation prepared by the independent accountant with the knowledge that the gross receipts of all of the cash generated by Aquarian business operations had not been included in the independent accountant's calculations. (Id. at ¶ 12). Similarly, it is alleged that both Defendants reviewed, signed, and caused to be filed with the I.R.S. the United States Joint Individual Income Tax Returns prepared by the independent accountant with the knowledge that the gross receipts of all of the cash generated by Aquarian business operations had not been included in the independent accountant's calculations. (Id. at ¶ 13).

2. Overt Acts

It is further alleged that the following overt acts "[i]n furtherance of the conspiracy, and to effect its objects and purposes" were committed by Defendants in the Western District of Pennsylvania. (Id at ¶ 14).

Specifically, on or about July 22, 2002, Samuel J. Manfedi falsely stated to a Special Agent of the I.R.S., Criminal Investigation, and a United States Postal Inspector, "that he reported all Aquarian cash receipts as income on Aquarian's corporate tax returns," even though he knew that he "did not report all of the cash receipts on Aquarian corporate tax returns." (Id. at ¶ 15).

On or about March 30, 2000, both Defendants allegedly traveled to 17 different United States Post Offices to purchase approximately 74 United States Postal Money Orders with cash, totaling $42,300.00. (Id. at ¶16). Each money order was made payable to Bobby Rahal Motorcar Company ("Rahal"). In addition, on or about April 3, 2000, Marilyn T. Manfredi purchased a 2000 Mercedes Benz automobile at Rahal "by providing that company in partial payment for the automobile a total of approximately 86 United States Postal Money Orders having a total value of $50,000.00, and $8,800.00 in United States currency." (Id. at ¶ 17). Further, that on or about April 25, 2002, Marilyn T. Manfredi "purchased with United States currency a total of 9 United States Postal Money Orders having a total value of $6,300.00 at United States Post Offices in Norwood, Massachusetts. The money orders were made payable to either Samuel J. Manfredi or Marilyn T. Manfredi." (Id. at ¶ 18).

On or about April 15 of each year between 1999 and 2003, Defendants caused the filing of United States Individual Income Tax Returns (Form 1040) in the Western District of Pennsylvania, allegedly knowing that the returns did not report the correct amount of income received by them for that year. (Docket No. 2 at ¶19). Similarly, Samuel J. Manfredi caused the filing of United States Income Tax Returns for an S Corporation (namely Aquarian) for each year between 1999 and 2003, allegedly with the knowledge that the "returns did not report the correct amount of income received by Aquarian for that fiscal year." (Id. at ¶ 20).

Fiscal Year Ending Date Filing Date

1. March 31, 1999 02/14/1999

2. March 31, 2000 12/15/2000

3. March 31, 2001 12/17/2001

4. March 31, 2002 12/14/2002

5. March 31, 2003 12/17/2002

(Id.).

B. Counts Two through Four - Income Tax Evasion under 26 U.S.C. § 7201 and 18 U.S.C. § 2 Counts Two through Four each allege a violation of 26 U.S.C. § 7201*fn1 and 18 U.S.C. § 2*fn2 for Defendants' alleged attempts to evade taxes owed to the United States of America by filing fraudulent United States Joint Individual Income Tax Returns (Form 1040) with the knowledge that the amount of taxable income listed on each return was understated. (Docket No. 2 at 8-10).

Count Two charges that Defendants reported on their Form 1040 that their taxable income for the calendar year of 2001 was $204,368.00 and that the amount of taxes due and owing for that year was $55,298.00. (Id. at 8). It is alleged that this filing was made by Defendants with knowledge that their taxable income for 2001 was actually $391,618.00 for which they owed $125,166.00 in income taxes. (Id.).

Similarly, Count Three charges that Defendants reported on their Form 1040 that their taxable income for the calendar year of 2002 was $226,306.00 and that the amount of taxes due and owing for that year was $60,476.00. (Id. at 9). It is further alleged that this filing was made by Defendants with knowledge that their taxable income for 2002 was actually $522,286.00 for which they owed $171,687.00 in income taxes. (Id.).

Likewise, Count Four charges that Defendants reported on their Form 1040 that their taxable income for the calendar year of 2003 was $371,029.00 and that the amount of taxes due and owing for that year was $105,905.00. (Id. at 10). It is further alleged that this filing was made by Defendants with knowledge that their taxable income for 2003 was actually $407,010.00 for which they owed $115,755.00 in income taxes. (Id.).

C. Counts Five through Seven - Income Tax

Evasion under 26 U.S.C. § 7206(1) against Defendant Samuel J. Manfredi, only Counts Five through Seven each allege a violation of 26 U.S.C. § 7206(1)*fn3 for the years of 2001-2003. Specifically, each count alleges that "Samuel J. Manfredi did make and subscribe as president of Aquarian a United States Income Tax Return for an S Corporation, Form 1120S ... which was verified by a written declaration that it was made under the penalties of perjury and was filed with the Internal Revenue Service, which said United States Income Tax Return for an S Corporation the defendant did not believe to be true and correct as to every material matter" as the return reported certain gross receipts for each year, on lines 1a and 1c, when Defendant well knew that Aquarian had gross receipts that were substantially greater than that reported. (Id. at 11). The allegedly understated reported gross receipts and corresponding filing dates for the corporate tax returns were filed are as follows. Count Five charges that the corporate tax return filed on or about December 14, 2001 for the fiscal year ending March 31, 2001 reported $987,565.00 as gross receipts. (Id. at 11). Count Six charges that the corporate tax return filed on or about December 12, 2002 for the fiscal year ending March 31, 2002 reported 1,056,330.00 as gross receipts. (Id. at 12). Finally, Count Seven charges that the corporate tax return filed on or about December 15, 2003 for the fiscal year ending March 31, 2003 reported $1,436,640.00 as gross receipts. (Id. at 13).

D. Count Eight - Structuring Currency

Transactions under 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2 Count Eight charges Defendants with evasion of the reporting requirements under 31 U.S.C. § 5313(a)*fn4 by structuring, assisting in structuring, and causing to be structured, transactions with domestic financial institutions in violation of 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2.*fn5 (Id. at 14). The transactions below constitute the basis of the evasion and structuring charge in Count Eight:

$1,000.00 deposit to Dollar Bank on 5/17/2002; $9,000.00 deposit to Enterprise Bank on 5/17/2002; $9,000.00 deposit to Laurel Bank on 5/17/2002; $8,257.00 deposit to Parkvale Savings Bank on 5/17/2002; and $9,000.00 deposit to PNC Bank on 5/17/2002.

(Id.).

E. Forfeiture Allegations

The allegations in Count One and Count Eight are re-alleged and incorporated for the purpose of alleging criminal forfeitures pursuant to 31 U.S.C. § 5317(c)(1)(A)*fn6 which incorporates 21 U.S.C. § 853.*fn7 (Docket No. 15). It is alleged that Defendants obtained the following property as a result of the violations set forth in Count One and Count Eight, and as such, the following property is subject to forfeiture to the United States of America:

(a) United States currency, postal money orders, and bank accounts including bank accoun t no. 923164 at the Greek Catholic Union, 5400 Tuscarawas Road, Beaver, Pennsylvania 15009; and

2) a 2000 Mercedes Benz vehicle. (Id.). It is further alleged that if by act or omission of Defendants that said property cannot be located then by due diligence, it has been sold or deposited to a third person, it has been placed beyond the jurisdiction of the Court, has been substantially diminished in value, or has been co-mingled with other property which cannot be divided without difficulty then other property may be forfeited in lieu of the items listed, pursuant to 31 U.S.C. § 5317(c)(1)(A) which incorporates 21 U.S.C. § 853(p). (Id.).

III. PROCEDURAL HISTORY

The instant indictment was filed on September 27, 2007. (Docket No. 2). Both Defendants were arraigned on November 1, 2007 at which time each entered a plea of not guilty as to all charges against them. (Docket Nos. 13, 14 and 15). Defendants each filed a first motion for extension of time to file pretrial motions on November 5, 2007 (Docket Nos. 21, 22), which was granted by the Court on the same day (Docket Nos. 23, 24), extending the period for the filing of pretrial motions until February 14, 2008. Then, on January 23, 2008, Defendants filed their respective second motions for extension of time to file pretrial motions. (Docket Nos. 25, 27). Said motions were likewise granted by the Court on the same day, extending the period for the filing of pretrial motions until May 14, 2008. (Docket Nos. 26, 28).

On May 13, 2008, Defendants filed a series of pretrial motions. (Docket Nos. 29, 31, 32, 34, 36, 38, 40, 42, 43, 45, 46, 48, 50, 51, 52, and 55). The Government then filed a motion for extension of time in which to file responses to Defendants' motions. (Docket No. 61). The Government's motion was granted by the Court (Docket No. 62), extending the period of time in which the Government had to file a response until June 20, 2008. The Government filed responses to several of the motions on June 16, 2008 (Docket Nos. 64, 65, 66, 67, 68, 69, 70), and others on June 20, 2008 (Docket Nos. 71, 72, 73). After receiving another extension of time from the Court, the Government filed responses to the remaining pretrial motions on June 23, 2008. (Docket Nos. 76 and 77).

As noted, the Court granted both Defendants' motions to adopt the motions of their co-defendant on June 26, 2008. (Docket Nos. 84, 85). Thereafter, on June 27, 2008, the Court issued a Memorandum Opinion and Order denying several of Defendants' pretrial motions related to discovery. (Docket No. 86). Defendant Marilyn Manfredi then filed a motion seeking leave of court to file a reply to the Government's response to her motion for severance (Docket No. 89), which was granted by the Court on July 8, 2008 (Docket No. 90). After receiving an extension of time in which to file her reply, Defendant Marilyn Manfredi filed her reply brief on September 26, 2008. (Docket No. 95). Finally, on December 15, 2008, the Government filed its Notice Regarding Recent Decision in Middle District of Pennsylvania Relevant to the Motions for Severance. (Docket No. 99).

The Court initially scheduled a hearing on Defendants' pretrial motions to occur on July 25, 2008. (Docket No. 82). Thereafter, on June 30, 2008, Defendant Marilyn Manfredi filed a motion to continue the hearing (Docket No. 87), which was granted by the Court, rescheduling the hearing to occur on September 26, 2008 (Docket No. 88). The Government then filed a motion to continue the hearing date on July 15, 2008 (Docket No. 91), which was granted by the Court, rescheduling the hearing for October 29, 2008 (Docket No. 92). Subsequently, on October 6, 2008, the Court rescheduled the hearing to take place on November 21, 2008. (Docket No. 96). Defendant Samuel Manfredi objected to this hearing date and requested another continuance (Docket No. 97), which was granted by the Court, and the hearing was again rescheduled for December 22, 2008 (Docket No. 98).

Ultimately, the Court heard oral argument on the pending motions at the pretrial motion hearing on December 22, 2008, taking said motions under abeyance. (Docket Nos. 100, 101). At said hearing, the parties asserted that no further briefing was necessary. Accordingly, the pending motions are now fully briefed and ripe for disposition.

IV. DISCUSSION

The Court now turns to the merits of Defendants' arguments set forth in their remaining pretrial motions and will address the motions as follows: first, the motions to dismiss the indictment and forfeiture allegations; second, the motions for a bill of particulars; and, third, Defendant Marilyn Manfredi's motion for severance.

A. Motions to Dismiss

1. Legal Standard

Defendants have moved to dismiss certain charges in the indictment against them under Rule 12(b) of the Federal Rules of Criminal Procedure. (See Docket Nos. 38, 40). Specifically, Rule 12(b)(3) provides that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to ... state an offense." FED. R. CRIM. P. 12(b)(3).

Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that "[t]he indictment ... must be a plain, concise, and definite written statement of the essential facts constituting the offense charged" and "must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." FED. R. CRIM. P. 7(c)(1). "Rule 7 put an end to the rules of technical and formalized pleading which had characterized an earlier era. The complex requirements of common law criminal pleading are now obsolete, harmless imperfections of form are now disregarded, and the fine detail previously demanded at the pleading stage is [no] longer required." 1 WRIGHT, KING, KLEIN & LEOPOLD, FEDERAL PRACTICE & PROCEDURE, CRIMINAL3D § 123 (2008)(citations omitted). "An indictment is generally deemed sufficient if it: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007) (citing United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989)); see also United States v. Resendiz-Ponce, 127 S.Ct. 782 (2007). "Moreover, 'no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.'" United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007)(quoting United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989)). Finally, "[i]n considering a defense motion to dismiss an indictment, the district court accepts as true the factual allegations set forth in the indictment." United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990).

The Court is mindful of this standard as it addresses each of the Defendants' challenges to the indictment, in turn.

2. Motion to Dismiss Count One for Alleging Multiple Conspiracies [38]

Defendants first challenge Count One of the indictment, arguing that it fails to state an offense because it improperly alleges multiple conspiracies with similar purposes rather than a single conspiracy with multiple objects. (Docket No. 39 at 2). They also assert that neither the alleged tax evasion and false filings nor structuring violations constitute a continuing offense such that the offenses may be encompassed by a single conspiracy. (Docket No. 39). As, such, Defendants contend that the conspiracy charged at Count One impermissibly charges Defendants with criminal conduct that took place beyond the statute of limitations for each underlying offense. (Id.). In response, the Government maintains that dismissal is not warranted as Count One properly alleges that Defendants formed a single agreement to commit the multiple objectives contained in that count. (Docket No. 71).

Count One of the indictment charges Defendants with conspiracy to commit certain offenses against the United States under 18 U.S.C. § 371. Section 371 provides, in pertinent part, that:

[i]f two or more persons conspire ... to commit any offense against the United States ... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. § 371.*fn8 A conspiracy is defined as the agreement of conspirators to commit one or more offenses where at least one of the parties acts to further the object of the conspiracy. Braverman v. United States, 317 U.S. 49, 52 (1942). While several conspiracies may be charged upon the commission of multiple offenses, multiple conspiracies need not be charged where the offenses were committed pursuant to a single agreement. The Supreme Court has explained that:

... when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and the extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.

Braverman, 317 U.S. at 53. Further, the United States Court of Appeals for the Third Circuit has held that "[a]lthough its objectives may be numerous and diverse, a single conspiracy exists if there is one overall agreement among the parties to carry out those objectives." United States v. Bobb, 471 F.3d 491, 494-495 (3d. Cir. 2006), cert. denied, 127 S.Ct. 2083 (2007)(citing Braverman, 317 U.S. at 53).

Defendants do not contest that a single conspiracy can have multiple objects, however, they argue here that the tax evasion and structuring offenses under 26 U.S.C. §§ 7201 and 7206(1) and 31 U.S.C. § 5324(a)(3), respectively, are not continuing offenses and are completed upon the actor's filing of a tax return or the final allegedly structured transaction with a financial institution. (Docket No. 39). Defendants also maintain that they could not have formed a single agreement to commit violations of these statutes. (Id.). Therefore, Defendants contend that Count One should have been broken into several conspiracy charges; each charge corresponding to a tax return for a particular year or to a particular series of structuring transactions. (Docket No. 39 at 4). Lastly, Defendants argue that if Count One was charged in this manner, that some of the conduct charged in Count One would be barred by the statute of limitations for the tax offenses, which is six years under 26 U.S.C. § 6531.*fn9

Defendants rely on United States v. Goldberg, 206 F.Supp. 394 (E.D. Pa. 1962) in support of their position.*fn10 In Goldberg, the defendant was the president and sole owner of 13 corporations, most of which were tied to a linen supply business. Goldberg, 206 F.Supp. at 396. He was charged with two counts of tax evasion for the years of 1955 and 1956, which were also included in a single conspiracy count. Id. The district court found that "[a] willful attempt to evade the tax for one year is a separate offense from a like attempt to evade for another year." Id. (citing United States v. Sullivan, 98 F.2d 79, 80 (2d Cir. 1938)). The district court then held that "because of the criminal intent necessary for the substantive offense of attempted tax evasion, we conclude that a single conspiracy embracing two separate taxable years is impossible." Id. at 396-397. Accordingly, the district court granted the defendant's motion challenging the sufficiency of the indictment with respect to the count alleging a conspiracy to evade taxes. Id. at 407.

In the instant case, the Government disputes Defendants' reliance on Goldberg, arguing that:

.the [D]efendants also rely on a 46 --year old case decided in the Eastern District of Pennsylvania . In the Goldberg case, the judge ruled that the government could not charge a single conspiracy which had, as its objective, the evasion for several distinct tax periods. The reasoning in that case was quickly rejected by the Fifth Circuit later that same year in Lott v. U. S., 309 F.2d 115, 120 (5th Cir. 1962). It was also rejected by the Court in U. S. v. Baker, 262 F. Supp. 657, 684 (D.D.C. 1966). In short, the judge's rationale in the Goldberg case has never been approved or cited as authoritative in any published opinion. That is because it is an incorrect interpretation of conspiracy law. (Docket No. 71 at 3).

The district court's decision in Goldberg is not controlling and this Court does not find its reasoning persuasive. As argued by the Government, the United States Court of Appeals for the Fifth Circuit in Lott and the District Court for the District of Columbia in Baker did, in fact, reject the reasoning of the district court in Goldberg which found that a conspiracy to commit tax evasion could not encompass offenses occurring in more than one tax period. See Lott v. United States, 309 F.2d 115, 120 (5th Cir. 1962)(rejecting appellants' argument based on Goldberg and finding that a charge in an indictment of conspiracy to commit tax evasion over multiple tax periods was sufficient); United States v. Baker, 262 F.Supp. at 684-685 (citing United States v. Haskell, 327 F.2d 281 (2d Cir. 1964), cert. denied 377 U.S. 945 (1964))(rejecting defendant's argument based on Goldberg because a single conspiracy "to evade taxes for two or more years has been sustained"); see also United States v. Shorter, 608 F.Supp. 871, 879 (D.C.D.C.,1985)("the Court concludes that tax evasion covering several years may be charged in a single count as a course of conduct in circumstances such as these where the underlying basis of the indictment is an allegedly consistent, long-term pattern of conduct directed at the evasion of taxes for these years."). Further, while Goldberg does not appear to have been explicitly overturned by the United States Court of Appeals for the Third Circuit, subsequent decisions of the Court of Appeals and district courts within this Circuit demonstrate that its reasoning should not be applied to the facts of the instant matter.

The decision by the Court of Appeals in United States v. Pollen, 978 F.2d 78 (3d Cir. 1992) is instructive. In Pollen, the Court of Appeals upheld the defendant's conviction (pursuant to a guilty plea) on four counts of tax evasion under 26 U.S.C. § 7201, each of which encompassed the same period of seven years, but charged the defendant with conduct stemming from four discrete acts of attempted evasion.*fn11 Pollen, 978 F.2d at 82-83. The indictment in that matter alleged in separate counts that the defendant attempted to evade taxes over the seven year period by completing the following acts: (1) placing $690,000 worth of gold bars in a Canadian bank with instructions to transfer it to a bank in Switzerland; (2) placing an additional $250,000 in the same bank with similar instructions; (3) engaging in a continuous scheme and course of conduct to conceal assets from the IRS including the use of "currency, money orders, and cashiers checks to ...


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