United States v. Robert E. Helina

I. FACTS

Defendant was indicted on three counts of income tax evasion, in violation of 26 U.S.C. § 7201 , and four counts of wilfully subscribing a false income tax return, in violation of 26 U.S.C. § 7206 (1). Defendant was convicted by a jury on all seven counts. He now appeals from the judgment of conviction and urges as error:

(1) That the prosecution was permitted to comment upon the fact that he chose to exercise his fifth amendment right in dedining to turn over his books and records to Government agents who were conducting the criminal investigation of his tax returns.

(2) That the trial court admitted into evidence the Government’s bank deposit analysis.

In January, 1971, the defendant, Helina, was contacted by Revenue Agent Marx, who had been assigned the audit of Helina’s 1969 tax return. At the end of March, 1971, the audit of Helina’s tax returns shifted to a criminal investigation and Marx referred Helina’s case to the Intelligence Division of the Internal Revenue Service. On August 25, 1971, Special Agent O’Boyle of the Intelligence Division of the Internal Revenue Service met with Helina and Marx. According to O’Boyle, he immediately advised Helina…

(dissenting):

I respectfully dissent.

Our court has unequivocally held that it is constitutionally impermissible for the prosecution to use against an accused his pretrial silence, maintained in the exercise of his privilege against incrimination, unless the accused waives that privilege by offering “any testimony as to the contents of any conversation” at the relevant time in question. Fowle v. United States, 410 F.2d 48, 55 (9th Cir. 1969). The present case is controlled by Fowle . Accordingly, Helina’s conviction should be reversed if the District Court erroneously allowed the prosecution to question witnesses regarding théir “lack of access” to Helina’s records.

With all due respect, I submit that the first exchange, found in footnote six of the majority’s opinion, did, without question, involve a prejudicial comment upon Helina’s privileged refusal to supply his personal records. United States v. Grammer, 513 F.2d 673, 676 (9th Cir. 1975), cited by the majority as support for its proposition that the first colloquy did not involve a comment on the exercise of Helina’s fifth amendment privilege, is inapposite. In Grammer , the prosecutor remarked during closing argu *721…

549 F.2d 713 77-1 USTC P 9290 UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HELINA, Defendant-Appellant. No. 74-3453. United States Court of Appeals, Ninth Circuit. March 4, 1977. 1 John W. Flynn, argued, Stern, Gayton, Neubauer, Seattle, Wash., for defendant-appellant. 2 Stan Pitkin, U. S. Atty., Marvin L. Gray, Asst. U. S. Atty., argued, Seattle, Wash., for plaintiff-appellee. 3 Appeal from the United States District Court for the Western District of Washington. 4 Before ELY and WRIGHT, Circuit Judges, and LUCAS, * District Judge. OPINION LUCAS, District Judge: I. FACTS 5 Defendant was indicted on three counts of income tax evasion, in violation of 26 U.S.C. § 7201 , and four counts of wilfully subscribing a false income tax return, in violation of 26 U.S.C. § 7206 (1). Defendant was convicted by a jury on all seven counts. He now appeals from the judgment of conviction and urges as error: 6 (1) That the prosecution was permitted to comment upon the fact that he chose to exercise his fifth amendment right in declining to turn over his books and records to Government agents who were conducting the criminal investigation of his tax returns. 7 (2) That the…