United States v. Daniel T. Hashimoto

878 F.2d 1126 66 A.F.T.R.2d 90 -5574, 89-2 USTC P 9432 UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. HASHIMOTO, Defendant-Appellant. No. 87-1332. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1988. Decided June 21, 1989. Rehearing and Rehearing En Banc Denied Sept. 11, 1989. Earle A. Partington, Honolulu, Hawaii, for defendant-appellant, Daniel T. Hashimoto. Leslie E. Osborne, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee, the U.S. Appeal from the United States District Court for the District of Hawaii. Before NELSON, REINHARDT and WIGGINS, Circuit Judges. NELSON, Circuit Judge: 1 Daniel T. Hashimoto was indicted on three counts of failing to file an income tax return, in violation of 26 U.S.C. Sec. 7203 . He was convicted on two counts. On appeal, Hashimoto first seeks reversal of his conviction on the grounds that the district court improperly denied his motion for release of the jury panel list for his trial, which Hashimoto sought so that he could obtain juror tax information under 26 U.S.C. Sec. 6103 (h)(5). Second, Hashimoto challenges the district court's refusal to ask the prospective jurors, during voir dire,…

dissenting:

Danny Hashimoto had an income of $271,680.21 in 1979 and $106,820.66 in 1980. For whatever reason, he decided not to file an individual tax return in either year. He pleaded not guilty to charges of violation of 26 U.S.C. § 7203 . The evidence of his guilt at trial was overwhelming and he was convicted. Hashimoto now argues that his conviction should be reversed because the district court precluded him from exercising his statutory right under section 26 U.S.C. § 6103 (h)(5) to inquire of the Secretary of the Treasury whether the prospective jurors were being or have been the subject of an audit or other tax investigation by the Internal Revenue Service (IRS). This procedural challenge comes about as a result of Congress’s failure to provide any guidance as to the procedures to be followed in obtaining the information. Most significant, the statute includes no time provisions establishing how far in advance of trial a jury list must be made available to a defendant, thus ensuring that a defendant will have sufficient time to make a timely filing with the Secretary.

The majority performs an admirable job in applying the statute notwithstanding the lack of help from…

Daniel T. Hashimoto was indicted on three counts of failing to file an income tax return, in violation of 26 U.S.C. § 7203 . He was convicted on two counts. On appeal, Hashimoto first seeks reversal of his conviction on the grounds that the district court improperly denied his motion for release of the jury panel list for his trial, which Hashimoto sought so that he could obtain juror tax information under 26 U.S.C. § 6103 (h)(5). Second, Hashimoto challenges the district court’s refusal to ask the prospective jurors, during voir dire, whether they feared retaliation from the *1128 IRS if they were to acquit the defendant. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On February 12, 1987, a three count indictment was handed down against the defendant, Daniel T. Hashimoto, alleging that he willfully failed to file income tax returns for the years 1979, 1980, and 1981, in violation of 26 U.S.C. § 7203 . On April 14, 1987, Hashimoto filed 34 pretrial motions. Motion # 26 requested that the court order the jury clerk to disclose to Hashimoto the jury panel list for his trial, pursuant to 26 U.S.C. § 6103 (h)(5). The government opposed this motion in a response that discussed 23 of…