United States v. James S. Jenkins

In June of 1987, a jury returned a guilty verdict against James Jenkins on two counts of aiding and assisting the preparation of false income taxes. Jenkins was sentenced to three years in prison on Count I and five years probation on Count II. The district court conditioned probation on Jenkins’ payment of $250,225.00 in restitution. Jenkins argues that the conviction should be reversed because (1) the district court improperly limited the scope of cross-examination of a leading prosecution witness, Bruce Schulte; and (2) the indictment was insufficiently specific. He also argues that the “restitution condition” on his probation is improper. We affirm the conviction, but vacate his sentence on both counts and remand for resentencing.

I

In 1979, IRS Special Agent Checkwith began an investigation of the tax affairs of Bruce Schulte. The investigation focused on various foreign trusts Schulte was using as tax shelters.

According to the government, Schulte, his accountant (Jones), and Jenkins concocted a scheme to allow Schulte to offset the tax liability for 1979 resulting from the income from the foreign trusts. In 1980, Jenkins was selling distributorships of a “new” form of…

concurring:

I concur in the result and join parts I and II.1. through II.3.a. I decline to join part II.3.b. because it is not needed for disposing of the issues presented to us.

Having concluded that the district court’s restitution condition was improper, this court should simply remand for resentenc-ing. Instead, the majority poses and then answers four hypothetical legal questions which the district court might never face in resentencing Jenkins. See Maj. Op. at 439. On remand, the district court might decide to impose a nonmonetary condition of probation on Count II. It might impose a new order of restitution, but the defendant might not appeal. In either case, the majority’s discussion of available options would be superfluous. In addition, I suggest that ordinarily the district judge on remand, who is more fully advised by specific arguments of counsel, is better situated to make an informed determination than is an appellate court answering its own hypothetical questions.

884 F.2d 433 UNITED STATES of America, Plaintiff-Appellee, v. James S. JENKINS, Defendant-Appellant. No. 87-3177. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1989. Decided August 30, 1989. Ronald H. Hoevet, Portland, Or., for defendant-appellant. Charles W. Stuckey, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before BROWNING, WALLACE and FLETCHER, Circuit Judges. FLETCHER, Circuit Judge: 1 In June of 1987, a jury returned a guilty verdict against James Jenkins on two counts of aiding and assisting the preparation of false income taxes. Jenkins was sentenced to three years in prison on Count I and five years probation on Count II. The district court conditioned probation on Jenkins' payment of $250,225.00 in restitution. Jenkins argues that the conviction should be reversed because (1) the district court improperly limited the scope of cross-examination of a leading prosecution witness, Bruce Schulte; and (2) the indictment was insufficiently specific. He also argues that the "restitution condition" on his probation is improper. We affirm the conviction, but vacate…