United States v. John Noehl Schmitz

This is an appeal from a conviction and sentence based upon a jury verdict of guilty on each of the three counts of an indict *783 ment returned against John Noehl Schmitz. Two counts charged defendant with misdemeanor violations of filing with his employer false withholding exemption certificates, being forms W — 4e for the years 1972 and 1973. The third count charged failure to make an income tax return for the calendar year 1972 stating specifically the items of his gross income and any deductions and credits to which he was entitled, it being alleged that he had received a gross income of $7,062.82 for the year, representing his one-half interest in community property income.

The sentence of confinement on each count was the same to run consecutively followed by a period of probation with certain restrictions.

The government introduced evidence from the Internal Revenue Service records that the defendant had filed an income tax return for the calendar year 1971; that he had not filed a complete income tax return for the calendar year 1972.

Copies of forms W — 4e signed by the defendant and filed for the years 1972 and 1973 were offered and received in evidence, together…

(concurring):

The trial judge’s comment to the effect that a particular witness for the defense should be prosecuted, made in the presence of the jury, is, to me, thoroughly inexplicable. In almost any other case of which I can conceive, essential fairness would require that the judgment of conviction be reversed and the appellant afforded a new trial.

In the present case, however, it is apparent that there was no defense whatsoever to the crime of which Schmitz was accused. There is hardly a doubt that Schmitz’ objection to the national tax laws, and his defiance thereof, was sincere. But the tax laws in question are constitutional and, while burdensome, are generally obeyed by the responsible citizens of our democracy. This obedience probably stems from the recognition that our citizenry generally receives more valued, guaranteed rights in exchange for its tax payments than the peoples of any other country of our planet.

As I see it, it would be only through the application of the so-called doctrine of “jury nullification” that Schmitz could have been acquitted. Thus, despite the thoughtless and inappropriate comment of the district judge, I have no choice, conscientiously,…

542 F.2d 782 76-2 USTC P 9699 UNITED STATES of America, Appellee, v. John Noehl SCHMITZ, Appellant. No. 75-2056. United States Court of Appeals, Ninth Circuit. Sept. 27, 1976. Rehearing Denied Nov. 4, 1976. Robert Sarno, Beverly Hills, Cal., of Fleishman, McDaniel, Brown, & Weston, Hollywood, Cal., for appellant. Dexter Lehtinen, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before ELY and TRASK, Circuit Judges, and VAN PELT, * Senior District Judge. PER CURIAM: 1 This is an appeal from a conviction and sentence based upon a jury verdict of guilty on each of the three counts of an indictment returned against John Noehl Schmitz. Two counts charged defendant with misdemeanor violations of filing with his employer false withholding exemption certificates, being forms W-4e for the years 1972 and 1973. The third count charged failure to make an income tax return for the calendar year 1972 stating specifically the items of his gross income and any deductions and credits to which he was entitled, it being alleged that he had received a gross income of $7,062.82 for the year, representing his one-half interest in community property income. 2 The sentence of confinement on each…