Roger Menner

[Famspear]

Jury verdict:

Menner guilty on all six counts.

October 23, 2008

EDIT: Sentencing is set for January 30, 2009, at 9:30 am.

[Famspear]

The way I figure it, Roger Charles Menner is facing a possible maximum 18 years in prison (3 years per count X 5 counts of section 7206, plus another 3 years under section 7212(a)).

On fines, I figure a theoretical possible maximum of $1,500,000 -- but that would be under the assumption that they would use 18 USC 3571. I don't remember how or under what circumstances that provision is used, though.

Without section 3571, I think Menner is looking at possible fines of a maximum $505,000 (which is $100,000 per count times 5 counts under section 7206, plus $5,000 under section 7212(a)).

I don't keep up with the sentencing guidelines, so I have almost no idea what Menner is actually likely to get.

Cue: To all Quatloosian Sentencing Guidelines Experts, the ball is in your court......

[Famspear]

To the person who sent me an instant message regarding this thread:

I cannot seem to get my Quatloos instant messaging to work, but you can email me at:

pierreclement1@hotmail.com

(PS: My name is not really "Pierre Clement").

Apologies to all Quatloosians for using this method of communication.....

[Famspear]

From PACER (a bit dated, but instructive):

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division


United States of America
v.
Roger Menner, Defendant


Criminal No. 3:08CR322-HEH

[docket entry 60, on December 1, 2008]


MEMORANDUM ORDER
(Denying Defendant's Motion for New Trial and Judgment of Acquittal)

THIS MATTER is before the Court on the Defendant's Motion for New Trial and Judgment of Acquittal (Dk. No. 58), filed on November 3, 2008. The parties have filed extensive memoranda stating their respective positions. The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and argument would not aid in the decisional process. For the reasons stated herein, the Motion is DENIED.

Defendant challenges his conviction of five counts of failing to file a tax return [sic; this probably should read: "willfully making and subscribing a false tax return" - Famspear] in violation of 26 U.S.C. § 7206(1) pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Specifically, Defendant contends that the evidence presented by the government at trial was insufficient to support a jury finding that he willfully violated provisions of the Internal Revenue Code. In the alternative, Defendant requests a new trial under Rule 33 on the grounds that he was unduly prejudiced by the introduction of transcripts from his prior trial on charges of failing to file a tax return. The Court will address each of these issues in turn.

While the defendant's burden is not insurmountable, "[a] defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden." United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The Court must review the Defendant's Rule 29 Motion by viewing the evidence in the light most favorable to the government. United States v. Tresvant, 611 F.2d 1018, 1021 (4th Cir. 1982). If "any rational trier of fact could have found the defendant guilty beyond a reasonable doubt," the Court must deny the Defendant's Rule 29 Motion. Id; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). Therefore, the Court must uphold the jury's verdict if there is substantial evidence, with all reasonable inferences construed in favor of the government, to support it. Burks v. United States, 437 U.S. 1,17 (1978) (noting that setting aside a jury verdict is reserved for the rare case "where the prosecution's failure is clear").

To prove the Defendant's willfulness in filing a false tax return, the government had to establish that the Defendant committed a "voluntary, intentional violation of a known legal duty." Cheek v. United States, 498 U.S. 192, 200-01 (1991). The record is replete with evidence demonstrating the Defendant's knowledge of his tax reporting obligations and his continuing scheme of evasion. The government produced testimony from numerous IRS employees, officials from the Virginia Department of Taxation, and other witnesses, recounting repeated attempts to inform the Defendant of his tax reporting obligations and the correct method of reporting his income.

James Antinori, a retired IRS revenue agent, testified about his examination report, which he sent to the Defendant in 2002, that explained that the Defendant was required to report his income pursuant to 26 U.S.C. § 61. [footnote 1- see footnote reproduced at end of this material] Internal Revenue Officer Karen Granier-Lubore testified that she provided the Defendant with a pamphlet entitled "Why Do I Have To Pay Taxes?," which informed the Defendant of his tax obligations and contradicted his continued rationale for failing to report his income or pay taxes. The government also introduced testimony from witnesses at the Defendant's prior trial, statements from his probation officer, and statements from a United States District Judge, all of which informed the Defendant of his obligation to report his income truthfully. Finally, Defendant's own testimony belies his contention that he was unaware of his obligation to report his earnings as income. The Defendant testified that, despite the numerous attempts by a variety of individuals to inform his [sic] of his tax reporting obligations, he remained steadfast in his "core belief that he did not have to report his wages and earnings as income.

--bolding added.

My comment: Here, the defendant's "belief," even if it was an "actual belief," was not the kind of actual belief needed for a successful Cheek defense. An actual belief that is merely obdurate recalcitrance - a steadfast refusal to accept the contrary view, is not an actual good faith belief based on a misunderstanding caused by the complexity of the tax law. An actual belief that is nothing more than obdurate recalcitrance can be viewed by a rational jury as a disagreement with a law of which the defendant is aware. Here, the Court is correctly focusing on "awareness of his obligation" in determining whether the jury was justified (or would have been justified) in concluding that the defendant did not have a good faith belief that is actually based on a misunderstanding -- a misunderstanding caused by the complexity of the tax law.

This is a nuance that many of Peter Hendrickson's followers do not get. An actual belief is not necessarily enough to negate the element of willfulness. I argue that judges in federal tax crime cases should carefully instruct juries that a mere "actual belief" is not sufficient. Judges should instruct juries about what kind of actual belief is required to negate willfulness under the Cheek doctrine, by focusing jury instructions on the defendant's awareness, the nature of the defendant's "belief" (is it based on a "misunderstanding" or is it instead an obdurate refusal to accept the correct view of the law) and, even if the defendant has a misunderstanding, is that misunderstanding CAUSED by the complexity of the tax law or, alternatively, by the defendant's own stubbornness, etc.

The Court continues:

The Court finds that the evidence introduced at trial, when viewed in the light most favorable to the government, is sufficient to support the jury's conviction of the Defendant of five counts of filing a false tax return. Accordingly, the Defendant's Motion for Judgment of Acquittal is DENIED.

The Defendant also moves for a new trial on the ground that transcripts from his previous criminal trial for failure to file tax returns were erroneously admitted into evidence. The Defendant contends that the introduction of the prior transcripts violated his Fifth Amendment rights because it amounted to a second prosecution for his previous offenses. (Def.'s Mot., at 6.) Defendant, however, concedes that the charges in the case at issue are different from those for which he was previously tried and convicted. (Def.'s Mot., at 6.) Therefore, under the framework established in United States v. Blockburger, 284 U.S. 299 (1932), the introduction of transcripts from his previous trial cannot constitute a second prosecution in violation of the Double Jeopardy Clause of the Fifth Amendment to the Constitution.

Second, the Defendant contends that the transcripts constitute hearsay and "had no real probative value except to infect the jury with undue prejudice" against the Defendant. (Def.'s Mot., at 6.) The transcripts do not constitute hearsay because they were not introduced for the truth of the matter asserted, but to show that the Defendant acted willfully and with notice of the relevant tax laws. The transcripts also possessed significant probative value.

The Defendant made clear that his defense to the government's charges was that he was unaware of any obligation to report his earnings as income under the Internal Revenue Code. The government, therefore, was entitled to introduce evidence showing the Defendant's extensive knowledge of the tax laws and his tax reporting obligations. The transcripts from the Defendant's prior trial pertained directly to the Defendant's knowledge.

The Defendant's Motion for a New Trial is DENIED.

The Clerk is directed to send a copy of this Order to all counsel of record.

It is SO ORDERED.

/s/
Henry E. Hudson
United States District Judge
Richmond, VA


[footnote 1] The Defendant was advised by the Virginia Department of Taxation as early as 1991 that his professed opposition to the Commonwealth's power to levy taxes was without basis in law and fact.

I believe that the sentencing for Menner is still scheduled for January 30, 2009.

[Famspear]

From the government's brief prior to the Court's ruling posted above:

[ . . . . ]the government introduced extensive evidence that at the time that the defendant filed his returns for calendar years 2001 through 2004 (November 21, 2005) and
2005 (April 14, 2006), he knew of his obligation to file true and accurate returns that truthfully reported the amounts he received from either wages or self employment as income. Indeed, he had known of and acknowledged that duty 20 years prior to the filing of his returns for calendar years 1984 and 1985.

The IRS transcripts of account for the defendant for calendar years 1984 and 1985, Govt.
Ex. 1, and the defendant’s testimony regarding the same are the most damning evidence that the defendant knew of his obligation to file true and accurate returns. The transcripts indicated that the defendant filed returns for 1984 and 1985, he reported his income, and he assessed himself a tax. The defendant conceded the same on direct examination. In so doing, the defendant admitted that, as far back as 1985, he knew of his obligation to report his earnings as income. Indeed, the defendant identified the genesis of his tax defier beliefs as a telephone call with an IRS customer Service Representative that followed the filing of his 1984 and 1985 tax returns. The defendant’s testimony illustrated that, displeased with the tenor of the conversation, he resolved to never pay taxes again. Instead, he commenced on a decades-long search for excuses not to pay his taxes. In spite of repeated attempts to remind and educate him as to his obligations, the defendant affirmed on the stand that he never changed his “core belief” that he need not pay taxes.

--bolding and other emphasis added.

from the GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND JUDGMENT OF ACQUITTAL, docket entry 59.

Followers of Peter Eric Hendrickson, are you listening? Earth calling........

[notorial dissent]

famspear, so then, in a nutshell, just because some nutball TP, really really truly truly to their very heart and soul believes that the law of gravity doesn’t apply to them either personally or as a group, that they DON’T get to ignore and go flying off in to outerspace. How rude and inconvenient of the law to be that way!!!!

My but this is really really bad new for Prattling Pete and his coterie of the seriously confused. I do think calling it a nuance though is a bit like calling getting run over by a Mack truck an inconvenience, plus, I doubt if any of them would even recognize a nuance if it came up and slapped them in the face, as this one ultimately will.

[/soapbox mode on] The only thing I will take issue with here, and it is my own prejudice I guess you could say, is the comment: “The Court finds that the evidence introduced at trial, when viewed in the light most favorable to the government, is sufficient to support the jury's conviction of the Defendant of five counts of filing a false tax return.” On appeal, I feel like in this part of a review that the court should be looking at the evidence as dispassionately as possible to see if it meets the criteria for conviction, if the evidence was good and all other things being what they should be, then this should be the final sniff test, does the evidence support the conclusion and the finding, not let’s see if we can bend over backwards to let it stand. I have seen too many cases in my home state where the evidence in and of itself did not support the conviction, and yet the courts bent over backwards to ignore that fact, happily to have it blow up rather spectacularly in their collective faces some years down the road when someone with no axe to grind came along, said this is all a lot of hooey and then proceeded to prove it, exonerate the convicted party(leaving the state open to a massive damages suit), and probably end the careers of the now DA and judge who to the end fought it tooth and nail rather than look for the truth. [/soapbox mode on]

All in all, I would say not a happy result inconsideration of the Petey’s crew have to ultimately look forward to.

Oh, one tiny quibble, if you are going to put parentheticals in the middle of a quote, would you please highlight them in a different color or something.

[Famspear]

Colors? You want a multi-colored presentation from a boring accountant like me??? It's all I can do to figure out how to print italics......

[LPC]

[/soapbox mode on] The only thing I will take issue with here, and it is my own prejudice I guess you could say, is the comment:[/b] “The Court finds that the evidence introduced at trial, when viewed in the light most favorable to the government, is sufficient to support the jury's conviction of the Defendant of five counts of filing a false tax return.” On appeal, I feel like in this part of a review that the court should be looking at the evidence as dispassionately as possible to see if it meets the criteria for conviction, if the evidence was good and all other things being what they should be, then this should be the final sniff test, does the evidence support the conclusion and the finding, not let’s see if we can bend over backwards to let it stand.

I believe that the court did look at the evidence as "dispassionately as possible to see if it meets the criteria for conviction" and provided the "final sniff test."

As the court explained its review, it was looking to see if "any rational trier of fact could have found the defendant guilty beyond a reasonable doubt" and whether there was "substantial evidence" to support the verdict, with "all reasonable inferences construed in favor of the government." (Emphasis added.) You seem to think that these statements are equivalent to "bending over backwards," but I see them as "dispassionate."

The appellate court saw its job as making sure that the evidence was sufficient and the verdict was rational. It did NOT want to retry the case itself and substitute its judgment for the judgment of the jury. It therefore saw its job as ensuring that the verdict was "rational" and "reasonable."

[notorial dissent]

Colors? You want a multi-colored presentation from a boring accountant like me??? It's all I can do to figure out how to print italics......

Famspear, Italics at least, my vision isn’t what it used to be.

LPC, I apologize if I was unclear, I was not referring to this case, as I agree, with regards to this case, that I don’t see how they could have had any verdict other than the one they did. They were quite clear and concise as to why they felt the way they did, and that they in fact did what they should have done, but I am saying that I have seen cases where the appeals courts have bent over backwards to preserve a verdict that should never have happened in the first place. I am just saying that I think the review should be a little more rigorous, and a little more evenly balanced. If the evidence was good to begin with, then a square on review will, as you point out, find that "any rational trier of fact could have found the defendant guilty beyond a reasonable doubt" and whether there was "substantial evidence" to support the verdict, which is what I am looking for, and I do not feel that the judges here did anything more than what they dispassionately should have.

[SteveSy]

Maybe this guy did deserve what he got but I don't understand what this means.

The Court finds that the evidence introduced at trial, when viewed in the light most favorable to the government, is sufficient to support the jury's conviction of the Defendant of five counts of filing a false tax return.

What exactly does that mean? Am I to assume that if it wasn't viewed "in the light most favorable to the government" it wouldn't be sufficient to support the jury's conviction? Maybe its the conspiracy theorist in me but that just doesn't look right. I would think if anything it should be viewed in the most favorable light in the defendant's favor. You are innocent until proven guilty not the other way around. With that in mind the heavy burden should be on the prosecution to validate and support its evidence and the court's job to make sure that happens. Seems strange to me all evidence offered by the government is automatically viewed with all inferences in favor of the government even when challenged as insufficient.

I could make anyone look guilty if I could present evidence with all inferences I make based on it are assumed valid. You might as well say you're guilty until proven innocent or innocent beyond a reasonable doubt. Think about the later, people would be guilty if a reasonable doubt existed that they weren't innocent. Anyway...I'm sure you will point out the error in my thought process.

[Famspear]

Maybe this guy did deserve what he got but I don't understand what this means.

The Court finds that the evidence introduced at trial, when viewed in the light most favorable to the government, is sufficient to support the jury's conviction of the Defendant of five counts of filing a false tax return.

What exactly does that mean? Am I to assume that if it wasn't viewed "in the light most favorable to the government" it wouldn't be sufficient to support the jury's conviction? Maybe its the conspiracy theorist in me but that just doesn't look right. I would think if anything it should be viewed in the most favorable light in the defendant's favor. You are innocent until proven guilty not the other way around. With that in mind the heavy burden should be on the prosecution to validate and support its evidence and the court's job to make sure that happens. Seems strange to me all evidence offered by the government is automatically viewed with all inferences in favor of the government even when challenged as insufficient.

I could make anyone look guilty if I could present evidence with all inferences I make based on it are assumed valid. You might as well say you're guilty until proven innocent or innocent beyond a reasonable doubt. Think about the later, people would be guilty if a reasonable doubt existed that they weren't innocent. Anyway...I'm sure you will point out the error in my thought process.

Steve, you've actually raised a good question. I'll try to answer it.

What the Court is doing here is deferring to the jury. The defendant has already been found guilty by the jury -- so the question of burden of proof has already been met, at least in the sense that the jury found the defendant guilty beyond a reasonable doubt. That's by definition, since that's what a guilty verdict in a criminal case generally means.

The Court is now reviewing the evidence -- not to second-guess the jury and have the judge reach his own conclusion about guilt or innocence -- but instead to look at the evidence presented and determine whether, as a matter of law, a rational jury could have found the defendant guilty beyond a reasonable doubt.

Now, it's the defendant -- not the prosecutor -- who is asking that the Court throw out the jury's verdict. So, as a matter of law, the Court views the evidence in the light most favorable to the jury's verdict, not in the light most favorable to the defendant. If the Court were to view the evidence in the light most favorable to the defendant, there wouldn't be much use of having twelve jurors look at the evidence in the first place.

Once a jury has reached a verdict, the law treats that verdict with some deference and respect, and a judge will overturn that verdict only where the evidence is so overwhelmingly one-sided that the judge determines - as a matter of law -- that no rational jury could have found what that jury found. Essentially, judges view most (but not all) jury members as being "rational" people, and as people making rational verdicts. So, it's relatively difficult to get a judge to overturn a jury verdict.

PS: The review here was by the trial court judge, not by an appellate court. But, if the defendant appeals, the appellate court will view this in much the same way.

[SteveSy]

Now, it's the defendant -- not the prosecutor -- who is asking that the Court throw out the jury's verdict. So, as a matter of law, the Court views the evidence in the light most favorable to the jury's verdict, not in the light most favorable to the defendant. If the Court were to view the evidence in the light most favorable to the defendant, there wouldn't be much use of having twelve jurors look at the evidence in the first place.

Thanks for the explanation. However the court did not say "in the light most favorable to the jury's verdict" which assumes they were giving the jury the benefit of the doubt, which would be reasonable. It said "in the light most favorable to the government". This appears to me to say "viewing all inferences related to evidence in the government's favor its reasonable the jury could have found him guilty." The question then is, had the evidence been looked at without favoritism would it still support the jury's conviction? Again, I may be looking at it wrong.

[Prof]

Since I am not familiar with criminal practice, I can only comment in the context of a civil trial.

There, the proceedure, called a Motion Judgment Not Witstanding the Jury Verdict, or JNOV (non obstante veredicto, the Latic phrase), would be submitted by either party; the prevailing party may wish some error corrected; the other party would want a verdit in its favor.

When the court reviews the jury finding, it determines whether a rational jury could have reach the verdict it rendered based upon the evidence before the jury. The test is not wheter the other party offered enough evidence to sustain its case; the test is whether the prevailing party sustained its burden. In the criminal case we are talking about, the verdit was rendered in favor of the US. The court naturally phrased its ruling to say that a rational jury had enough evidence to rule for the government, the prevailing party.

(By the way, if the government had not offered enough evidence -- irrespective of the jury verdict in favor of the government -- the court would have granted judgment NOV, effectively reversing the tryer of fact.)

No court system in the US allows the judge to reverse a judgement by a jury of "Not Guilty." Only the defendant gets to mount a challenge NOV. (The government can only appeal legal issues, and that right of appeal in criminal cases is fairly limited; Wes can explain better than I can.)

(I just went thru this exercise in Texas state court. The plaintiff won the trial, but the jury findings on damages were very inaccurate, said the Plaintiff. Therefore, Plaintiff asked for JNOV on the damages, on the theory that the amount was liquidated, the jury just messed up, and the court could calculate same. The court had endured a 4 week trial was also leaving the bench in mere days. The judge granted NOV to Plaintff. We moved for a new trial, based upon judicial error. The presding judge, not the trial judge, was VERY EASILY PURSUADED that the jury never had enough clear evidence to calculate damages and gave our client a new trial. While this was a suit on a note, the evidence presented by Plaintiff was contradictory or confusing as to whether there had been forgiveness of interest for 2 years on a $2.0 million note.)

[SteveSy]

What you said makes sense Prof as does what Famspear wrote. The wording used just makes it look like the court is going to assume every bad thing suggested by the evidence presented is true and based on that is it reasonable the jury could convict. I would argue if that is the case then the proceeding has been turned in to a grand jury scenario where nearly anything supports guilt. The jury makes its decision based on evidence presented and how its presented. A jury's verdict of guilt or innocence is meaningless if the evidence is garbage, extremely limited or manipulated. Garbage in garbage out.

Now, if the wording of the court assumes the jury reviewed the evidence correctly and based on that is it reasonable the defendant could be found guilty then that would be fair. Otherwise it would be second guessing the jury's verdict and would undermine the jury process.

Just my two cents..

[Judge Roy Bean]

Thanks for the explanation. However the court did not say "in the light most favorable to the jury's verdict" which assumes they were giving the jury the benefit of the doubt, which would be reasonable. It said "in the light most favorable to the government".

Not to beat a dead horse here, but the jury isn't a party to the case; either the defendant or the prosecution prevails and the most favorable light is given to the prevailing party.

[ASITStands]

Thanks for the explanation. However the court did not say "in the light most favorable to the jury's verdict" which assumes they were giving the jury the benefit of the doubt, which would be reasonable. It said "in the light most favorable to the government".

Not to beat a dead horse here, but the jury isn't a party to the case; either the defendant or the prosecution prevails and the most favorable light is given to the prevailing party.

Yes. That's the sense.

The defendant is asking for a review of a jury verdict. The court conducts that review in the light most favorable to the opposing party, herein the government.

If the government was asking for review of an order in favor of the defendant, the court would conduct that review in the light most favorable to the opposing party, the defendant.

The jury, or the jury verdict, is not a party to the case.

[Famspear]

From the case docket, at entry 64, on 13 January 2009:

ORDER (Granting Defendant's Unopposed Motion to Continue Sentencing)

THIS MATTER is before the Court on Defendant's Unopposed Motion to Continue Sentencing (Dk. No. 63), filed on January 13, 2009. Upon due consideration, the Motion is GRANTED. Defendant's sentencing hearing is continued until February 20, 2009, at 10:30 a.m.

The Clerk is directed to send a copy of this Order to all counsel of record.

It is so ORDERED.

Henry E. Hudson
United States District Judge
Jan. 13, 2009

(Hearing changed from January 30 to February 20, 2009.)

EDIT: From the defendant's motion resulting in this Order:

A continuance is necessary because Defendant does not currently have a copy of the presentence report (PSR). Defense counsel received the PSR on January 5, 2009. He found out on January 9 that Defendant was not given a copy of the PSR by probation. Defense counsel needs to mail a copy to Defendant and then review it with him and then have an opportunity to file any objections. Defense counsel is out of his office this week and next week on other federal criminal matters.

The extension of time is therefore necessary to give the Defendant an opportunity to review the PSR, go over it with counsel, and then make any possible objections. Therefore, a continuance is necessary to carry out the demands of justice.