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 Congress and in the absence of any administrative regulations. I agree, based on the circumstances of this case, that the district court erred in failing to grant Hashimoto’s motion for early release of the jury list. It cannot reasonably be argued that seven days is sufficient time to file and receive a response to a written request submitted pursuant to section § 6103(h)(5).

I part company with the majority, however, in its conclusion that the district court’s failure timely to release the jury list is reversible error. Looking for guidance to our previous decisions in which we have sought to determine when inadequate voir dire requires reversal, the majority holds that denial of information under section § 6103(h)(5) results in a “presumption that there was a ‘significant risk of prejudice’ ... [that may be] overcome if the examination of jurors during voir dire is such that the inference of risk of prejudice is negated.” At 1134. The majority then concludes, in summary fashion, that the questions asked during voir dire were insufficient to counter the presumption of risk of prejudice. I have no quarrel with the standard employed by the majority, but I do disagree with its application. In my opinion, the magistrate’s questions unequivocally negated the inference of risk of prejudice. Additionally, even if they did not, I still would not find the error to be reversible because Hashimoto failed to request that the jury be asked about past or present audits.

It seems to me that the proper point of departure in attempting to determine whether the “risk of prejudice” was negated by the questions asked during voir dire is the identification of the prejudice caused by the defendant’s lack of knowledge concerning the prospective jurors’ status with the IRS. Presumably, the benefit derived by a defendant from knowing whether a potential juror has been or is being audited (aside from the fact that the defendant is placed on equal footing with the government) is the added insight in determining whether a particular juror may be biased or partial either for or against the defendant. This being the case, questions designed to *1136 ascertain whether a potential juror is capable of rendering an impartial verdict should be deemed sufficient to negate the presumption of risk arising from the defendant’s inability to obtain the jury information under section 6108(h)(5).

The magistrate’s specific questioning of the jurors in this case regarding their willingness to be fair to both sides, their possible bias, prejudice against either side, and freedom from influence was calculated to guarantee educated exercise of the peremptory challenges and to lay a proper basis for challenges for cause. The negative answer given by each of the prospective jurors to the following question is itself sufficient proof that any risk of prejudice was negated: “Do you know of any reason why you may be prejudiced for or against the Government or this Defendant because of the nature of the charges? You know the nature of the charges.” Reporter’s Transcript, July 20, 1987, at 57. Based on the magistrate’s questioning, neither Hashimo-to nor the court had any basis upon which to speculate that a verdict rendered by any of the prospective jurors would not be impartial. 1

Even if the magistrate’s questioning did not negate the risk of prejudice, I would not find the district court’s failure timely to release the list to be reversible error because Hashimoto did not request that the magistrate inquire whether any of the jurors had or were being audited. Although, as the majority notes, he did renew his request for the information before the magistrate, Hashimoto did not ask the magistrate to question the jurors on that issue. Indeed, Hashimoto submitted over one-hundred requested jury instructions to the court, but apparently did not deem the issue important enough to include a question asking whether the jurors had or were being audited. Hashimoto’s disinterest with the question during voir dire is further evidenced by his failure to join the government’s request that the magistrate inquire of the jurors whether or not they had “any dealings with the IRS.” Although Hashimoto did request that the magistrate query the jurors about whether they feared IRS retaliation, the issue of retaliation is separate and distinct from whether the jurors had been or were subject to an audit. Fear of retaliation is likely to exist apart from whether one has been audited.

Congress has created a trap which operates against the successful prosecution of defendants charged with failing to file their income taxes. Regardless of the evidence of their guilt, a defendant need only plead not guilty and request a jury trial. When the names of the prospective jurors are revealed to the defendant, he then exercises his right, granted under 26 U.S.C. § 6103 (h)(5), to inquire of the Secretary of the Treasury whether the prospective jurors have been the subject of an audit by the IRS. Because the requested information cannot, as a practical matter, be accumulated and transmitted to the defendant prior to voir dire, the majority concludes that reversible error occurs.

Congress should address the issue raised by this appeal. Until it chooses to do so, however, we must inject some common sense into a statute that unreasonably burdens successful prosecution. The best basis for doing so in this case is to find the error of the government not to be prejudicial. The next case may not be disposed *1137 of so easily. I would require that a defendant making a request under section 6103(h)(5) do so as soon as the jury list becomes available, and to make a request for a reasonable continuance so as to afford the Secretary the opportunity of responding to the request before trial. If a defendant fails to make his request in a timely manner, and to request a simultaneous continuance, I would conclude that any error in failing to supply the requested information is harmless.

For the foregoing reasons, I respectfully dissent.

. The majority finds that the questions asked by the magistrate left "completely unexplored the subject of the prospective jurors’ attitudes and dealings with the IRS.” Maj. op. at 1134 n. 9. Ido not understand how the majority can conclude that the magistrate's pervasive questioning of potential bias and prejudice left unexplored the prospective jurors’ attitudes toward the IRS. It is true that the magistrate did not explicitly ask the jurors whether they had any dealings with the IRS. Whether a prospective juror has had any dealings with the IRS, however, is designed to aid a defendant in determining if the juror is biased either for or against him. It seems to me that the next best thing to asking, "Were you audited?”, is to inquire about any resulting prejudice. Even the magistrate thought these questions were sufficient and accordingly refused the government’s request that he explicitly ask the jurors whether they had any dealings with the IRS. By discounting the magistrate’s inquiry into bias and prejudice, the majority implicitly holds that only the question, “Were or have you been audited?”, will suffice to negate the presumption of risk of prejudice. I find this result untenable.