United States v. Bruno F. Sinigaglio

942 F.2d 581 UNITED STATES of America, Plaintiff-Appellee, v. Bruno F. SINIGAGLIO, Defendant-Appellant. No. 90-30109. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 7, 1991. Decided Feb. 5, 1991. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 20, 1991. William A. Cohan, Cohan & Greene, Encinitas, Cal., for defendant-appellant. Shirley D. Peterson, Asst. Atty. Gen., Robert E. Lindsay, Alan Hechtkopf, Yoel Tobin, U.S. Depart. of Justice, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT, BRUNETTI and LEAVY, Circuit Judges. ORDER 1 The opinion filed on February 5, 1991, 925 F.2d 339 , is amended by the addition of a dissenting opinion by Judge Brunetti. 2 Judges Wright and Leavy have voted to deny the petition for rehearing, and Judge Leavy has voted to reject the suggestion for a rehearing en banc. Judge Brunetti has voted to grant the petition for rehearing and the suggestion for rehearing en banc. 3 The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en…

ORDER

The opinion filed on February 5, 1991, 925 F.2d 339 , is amended by the addition of a dissenting opinion by Judge Brunetti.

Judges Wright and Leavy have voted to deny the petition for rehearing, and Judge Leavy has voted to reject the suggestion for a rehearing en banc. Judge Brunetti has voted to grant the petition for rehearing and the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35(b).

The petition for rehearing is DENIED and the suggestion for a rehearing en banc is REJECTED.

OPINION

Criminal charges were brought against Bruno Sinigaglio, a federal employee, for tax code violations. He argues his conviction must be reversed because his right to juror information under 26 U.S.C. § 6103 (h)(5) was impaired. We find the government did not substantially comply with the statute, we reverse and remand for a new trial. We reject his other claims of error.

I

Sinigaglio was a human factors engineer employed by the civil branch of the United States Army. He allegedly has not filed a tax return since 1977 when he vowed…

dissenting as to part II of the Opinion:

In United States v. Hashimoto, 878 F.2d 1126 (9th Cir.1989), this court stated that the presumption of prejudice that arises when the government fails to comply with section 6103(h)(5) “might be overcome if the examination of jurors during voir dire is such that the inference of risk of prejudice is negated.” Id. at 1134 . The majority in Hashimoto held that merely questioning the jurors whether they had “any reason why you may be prejudiced for or against the Government or this Defendant because of the nature of the charges,” id. at 1136 (Wiggins, J., dissenting), “was not such as to negate that inference.” Id. at 1135 . Hashimoto , however, clearly contemplates that voir dire could, if the proper questions were asked, overcome the presumption.

In this case, the district court asked the jurors (1) if they had “ever been audited by the Internal Revenue Service?”; (2) if they had “any disputes other than just a formal or informal audit, that someone talked to you about your return or wrote to you about your returns, any connection with the IRS?”; and (3) whether “either you or your husband or wife, whatever the situation, your mothers and…