United States v. Dale G. Bender

Bender appeals from his conviction for violating 26 U.S.C. § 7206 (1) by reason of his willfully omitting specific items of taxable income from his returns for the years 1972, 1973, and 1974. Bender was indicted on four counts of attempted tax evasion for the years 1971 to 1974, inclusive, in alleged violation of 26 U.S.C. § 7201 . The district court acquitted him of the section 7201 charges. The Government argued, successfully below, that Bender’s acquittal of the section 7201 counts did not prevent the district court from finding him guilty of violating section 7206(1) because the latter was a lesser included offense in the offense for which he was indicted.

Bender contends, on appeal, that his acquittal foreclosed his conviction for violating section 7206(1) because there was no disputed factual element in the section 7201 charges that was not also required for conviction of the section 7206(1) charges. We agree with Bender, and we reverse his conviction.

Section 7206(1) is not a lesser included offense within section 7201 unless “the charged greater offense requires the [fact finder] to find a disputed factual element which is not required for conviction of the…