United States v. William Lee Workinger

90 F.3d 1409 78 A.F.T.R.2d 96 -5710, 96-2 USTC P 50,402 , 44 Fed. R. Evid. Serv. 944 , 96 Cal. Daily Op. Serv. 5423 , 96 Daily Journal D.A.R. 8827 UNITED STATES of America, Plaintiff-Appellee, v. William Lee WORKINGER, Defendant-Appellant. No. 95-30200. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 8, 1996. Decided July 23, 1996. Robert E. Lindsay and Alan Hechtkopf, United States Department of Justice, Tax Division, and Scott A. Schumacher, United States Department of Justice, Criminal Appeals and Tax Enforcement Policy Section, Tax Division, Washington, D.C., William Fitzgerald and Christopher L. Cardani, Assistant United States Attorneys, Eugene, Oregon, for plaintiff-appellee. Joseph Wetzel, Wetzel and DeFrang, Portland, Oregon, for defendant-appellant. Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. CR-94-600023-MRH. Before: REINHARDT, KOZINSKI and FERNANDEZ, Circuit Judges. Opinion by Judge FERNANDEZ; Partial Concurrence by Judge KOZINSKI. FERNANDEZ, Circuit Judge: 1 William Lee Workinger appeals his conviction for willfully failing to pay taxes in violation of 26…

Opinion by Judge FERNANDEZ; Partial Concurrence by Judge KOZINSKI.

William Lee Workinger appeals his conviction for willfully failing to pay taxes in violation of 26 U.S.C. § 7203 , willfully filing a false income tax return in violation of 26 U.S.C. § 7206 (1), and corruptly obstructing and impeding the due administration of the Internal Revenue laws in violation of 26 U.S.C. § 7212 (a). We affirm.

BACKGROUND

On March 23, 1994, Workinger, a dentist licensed to practice in Oregon, was indicted for his participation in an elaborate scheme to conceal his income and assets from the Internal Revenue Service. The heart of his scheme consisted of creating and using various entities to hide income, purposely misstating his income, filing forms which substantially underreported the value and quantity of his financial resources and holdings, and diverting his practice income to his spouse. Among other things, the government accused Workinger of maintaining numerous unreported bank accounts holding substantial unreported funds, depositing business receipts into bank accounts that he had not listed on IRS forms, and failing to disclose real estate which he controlled. The government also…

concurring in part and concurring in the judgment:

I agree with the majority’s result, but cannot join all of its opinion. Specifically, I don’t agree with its reasons why a six-year and not a three-year statute of limitations applies to Count 7. Nor can I join its rationale for concluding that the best evidence rule didn’t preclude the government from introducing a transcript instead of a tape of defendant’s deposition.

I

Count 7 charged Workinger with violating 26 U.S.C. § 7212 (a). That statute makes it a felony to:

Workinger violated section 7212(a), according to the indictment (and the jury’s verdict), by submitting false documents to the IRS. Count 7 therefore did not charge that he had intimidated United States officials, but only that he “did corruptly obstruct and impede, *1417 and endeavor to obstruct and impede” the administration of the tax laws. -Indictment, ER at 4.

The indictment was filed much more than three years after he submitted the last of the false documents. Workinger thus points to 26 U.S.C. § 6531 , which provides a three-year statute of limitations for criminal tax offenses, except those listed in its eight subsections. Subsection six provides a…