United States v. William Greene

698 F.2d 1364 83-1 USTC P 9175 , 12 Fed. R. Evid. Serv. 989 UNITED STATES of America, Plaintiff-Appellee, v. William GREENE, Defendant-Appellant. No. 81-1405. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 12, 1982. Decided Jan. 28, 1983. Edward P. Davis, San Jose, Cal., argued for defendant-appellant; John G. Milano, San Francisco, Cal., on brief. Henry Wykowski, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before GOODWIN, WALLACE, and FLETCHER, Circuit Judges. WALLACE, Circuit Judge: 1 Greene appeals his conviction on two counts of willfully attempting to evade federal income taxes in violation of 26 U.S.C. Sec. 7201 . A jury found that Greene had understated his taxable income for the years 1973 and 1974. Greene raises numerous contentions on appeal, none of which requires reversal of his conviction. We affirm. 2 * After a routine audit of Greene's 1973 and 1974 income tax returns, the Internal Revenue Service (the Service) began an investigation which was subsequently referred to the Criminal Investigation Division and assigned to Special Agent…

Greene appeals his conviction on two counts of willfully attempting to evade federal income taxes in violation of 26 U.S.C. § 7201 . A jury found that Greene had understated his taxable income for the years 1973 and 1974. Greene raises numerous contentions on appeal, none of which requires reversal of his conviction. We affirm.

I

After a routine audit of Greene’s 1973 and 1974 income tax returns, the Internal Revenue Service (the Service) began an investigation which was subsequently referred to the Criminal Investigation Division and assigned to Special Agent Stephens. Stephens encountered resistance from both Greene and his attorney: Greene refused to answer any of his questions or provide any of his records. Therefore, Stephens used the net worth method to ascertain whether Greene had evaded income taxes. Essentially, the government estimated the increase in Greene’s net assets and determined what his tax should be.

Invoking the net worth method at trial, the government introduced the testimony of 59 witnesses and 345 exhibits in order to prove that Greene had unreported income in 1973 and 1974 upon which a tax of $97,-000 was due. The government’s final witness, a Service…

concurring:

I concur in the result. I further concur in all parts of the opinion of the majority, except Part V, with which I agree as to result only. I write separately simply to emphasize what the record and facts of the case before us do and do not permit us to decide this day with regard to the propriety of the use of pretrial silence to impeach a defendant who takes the stand in his own defense.

In Part V of the opinion, the majority concludes that in the “absence of the sort of affirmative assurances embodied in the Miranda warnings,” Fletcher v. Weir, 455 U.S. 603 , 102 S.Ct. 1309 , 71 L.Ed.2d 490 (1982), cross-examination of the defendant as to prior silence does not violate the due process clause of the Fifth Amendment. The majority states that “[t]he record does not indicate, nor does Greene argue, that he received Miranda warnings.” Maj. op. at 1374. The record, in fact, fails to indicate that Greene received any affirmative governmental assurances whatsoever, either Miranda warnings or some other variety of governmental promises or representations conveying the sort of affirmative assurances that are embodied in the Miranda warnings. Faced with this record, the most…