United States v. Walter L. Schmoker

concurring specially:

I concur in the result because it is compelled by authorities both in this Circuit and elsewhere that permit the Government to choose to prosecute a taxpayer who makes a false statement to an Internal Revenue agent for a felony, under the general false statements statute, 18 U.S.C. § 1001 , 1 rather than for a misdemeanor, under 26 U.S.C. § 7207 , a statute specifically directed to persons who make false statements to the Internal Revenue Service. 2 (E. g., Nee *292 ly v. United States (9th Cir. 1962) 300 F.2d 67 ; Brandow v. United States (9th Cir. 1959) 268 F.2d 559 . See also United States v. Burnett (9th Cir. 1974) 505 F.2d 815, 816 ; United States v. Bettenhausen (10th Cir. 1974) 499 F.2d 1223, 1233-34 , United States v. Heine (2d Cir. 1949) 149 F.2d 485, 487 .)

The prosecutor was alone in his lack of compassion for this petty offender. The jury acquitted Schmoker of the count framed under 26 U.S.C. § 7206 (1) (knowingly subscribing a false document (his tax return) under penalty of perjury). 4 The court fined Schmoker $1,000 and placed him on probation (a sentence that is the equivalent of a misdemeanor penalty under § 7207). Perhaps there is some…

On May 11, 1973, appellant was interviewed at the Internal Revenue Service (I.R.S.) office in Las Vegas pursuant to a routine audit of his 1971 tax return. At that interview, appellant presented a letter signed by a Charles Bradshaw as proof from his employer, Bankers Life and Casualty Co., that he had not been reimbursed for his travel expenses. Appellant further claimed a deduction for split commissions in the amount of $730. He was informed by the auditor that he would need a statement from those persons he split the commissions with as to the amounts they received.

Appellant returned to the I.R.S. office on December 3, 1973 and presented a letter from a Bill Champaign stating that he had received approximately $700 from appellant for a split commission. At that time, appellant also told the auditor that he received the Bradshaw letter from the Phoenix, Arizona, Branch Sales Manager.

On November 18, 1976, the Grand Jury issued an indictment charging defendant-appellant with violation of 18 U.S.C. § 1001 and 26 U.S.C. § 7206 (1). A superseding indictment was filed on December 16, 1976. After a jury trial, the jury returned a verdict of guilty as to Count I (§ 1001) and not…

564 F.2d 289 78-1 USTC P 9109 UNITED STATES of America, Plaintiff-Appellee, v. Walter L. SCHMOKER, Defendant-Appellant. No. 77-1739. United States Court of Appeals, Ninth Circuit. Nov. 7, 1977. 1 Clarence A. Nelson, Las Vegas, Nev., for defendant-appellant. 2 Lawrence J. Semenza, U. S. Atty., Las Vegas, Nev., for plaintiff-appellee. 3 Appeal from the United States District Court for the District of Nevada. 4 Before CHAMBERS and HUFSTEDLER, Circuit Judges, and WONG, * District Judge. WONG, District Judge: 5 On May 11, 1973, appellant was interviewed at the Internal Revenue Service (I.R.S.) office in Las Vegas pursuant to a routine audit of his 1971 tax return. At that interview, appellant presented a letter signed by a Charles Bradshaw as proof from his employer, Bankers Life and Casualty Co., that he had not been reimbursed for his travel expenses. Appellant further claimed a deduction for split commissions in the amount of $730. He was informed by the auditor that he would need a statement from those persons he split the commissions with as to the amounts they received. 6 Appellant returned to the I.R.S. office on December 3, 1973 and presented a letter from a Bill Champaign…