United States v. Samuel E. Rogers

853 F.2d 249, 26 Fed. R. Serv. 511, 62 A.F.T.R.2d (RIA) 5340, 1988 U.S. App. LEXIS 10202, 1988 WL 79271
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 2, 1988
Docket87-5678
StatusPublished
Cited by48 cases

This text of 853 F.2d 249 (United States v. Samuel E. Rogers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Samuel E. Rogers, 853 F.2d 249, 26 Fed. R. Serv. 511, 62 A.F.T.R.2d (RIA) 5340, 1988 U.S. App. LEXIS 10202, 1988 WL 79271 (4th Cir. 1988).

Opinions

ERVIN, Circuit Judge:

Samuel Rogers was convicted on twenty-four counts of preparing false tax returns in violation of 26 U.S.C. § 7206(2).1 He raises numerous issues on appeal. We affirm.

I.

Rogers was in the business of preparing income tax returns. These charges arose from ten 1979 returns and fourteen 1980 returns. Fifteen witnesses testified that Rogers prepared false tax returns for them. Several testified that they hired Rogers because they heard he could get them larger refunds and that his fee was based on the size of the refund. All of them testified that he included false information that they did not furnish him. Three testified in Rogers’ absence because he was fifty minutes late on the second day of trial.

The twenty-four returns were false in one or more usually recurring aspects. These included excess exemptions, nonexistent political contributions, false child care credits, improper residential energy credits, fictitious uniform deductions, and other similar credits and deductions. While two witnesses admitted that they knew of the falsities at the time, the rest were in the dark because Rogers did not go over the returns with them. Rogers testified that he used only the information that his clients provided.

To impeach his testimony, the government introduced a large number of worthless check convictions. The prosecutor also made a number of inflammatory remarks during closing argument, calling Rogers a liar, thief and crook who could not be believed. In a moment of cinematic excess, he told the jury that Rogers was “a disease on society [a]nd you are the cure.” De[251]*251fense counsel did not object to these remarks.

The jury convicted him on all twenty-four counts. He raises four errors on appeal. First, he argues that materiality of the false information is an essential element of a § 7206(2) violation that should be decided by the jury. Second, he argues that Fed.R. Crim.P. 43(b) was violated when witnesses testified in his absence. Third, he argues that the district court improperly allowed cross-examination regarding his worthless check convictions. Finally, he argues that the prosecutor’s closing argument was improper. Finding no reversible error, we affirm.

II.

In crimes involving false statements, the materiality of the statement is usually decided as a matter of law by the court. See e.g., United States v. Farnham, 791 F.2d 331, 333 (4th Cir.1986) (perjury); Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 367 (4th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985) (false statements to a government agency). The same is true for § 7206.2 See United States v. Flake, 746 F.2d 535, 537-38 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985) (§ 7206(1)); United States v. Holecek, 739 F.2d 331, 336-37 (8th Cir.1984), cert. denied, 469 U.S. 1218, 105 S.Ct. 1200, 84 L.Ed.2d 343 (1985) (§ 7206(2)); United States v. Greenberg, 735 F.2d 29, 31 (2d Cir.1984) (§ 7206(1)); United States v. Whyte, 699 F.2d 375, 379 (7th Cir.1983) (§ 7206(1)); United States v. Gaines, 690 F.2d 849, 858 (11th Cir.1982) (§ 7206(1)); United States v. Strand, 617 F.2d 571, 573-75 (10th Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980) (§ 7206(1)); United States v. Taylor, 574 F.2d 232, 235 (5th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978) (§ 7206(1)); United States v. Romanow, 509 F.2d 26, 28-29 (1st Cir.1975) (§ 7206(1)); but see United States v. Null, 415 F.2d 1178, 1181 (4th Cir.1969) (§ 7206(1)).

We agree that materiality under § 7206(2) is a matter of law for the court to decide, not an issue of fact for the jury. Null represents a narrow exception to the general rule that materiality is an issue of law. In Null, this court affirmed a conviction under § 7206(1) where the trial court had submitted the materiality issue to the jury. No one objected to that aspect of the case; instead, the defendant argued that the court should have further instructed the jury on a de minimis violation defense. This court affirmed the submission of the more limited materiality instruction as proper under § 7206(1). Placed in its proper context, the Null holding does not control our decision as to materiality under § 7206(2), and we hold today that materiality is a matter of law for the court to decide.

III.

On the second day of trial, Rogers arrived about fifty minutes late, and three witnesses testified in his absence. Before testimony began, the court asked defense counsel where he was, but counsel did not know, and the court proceeded without further inquiry. To limit the effects of his absence, the court made transcripts of the testimony available the next day and allowed Rogers the opportunity to recall the three witnesses.

Rule 433 requires the defendant’s presence “at every stage of the trial,” al[252]*252though a continued presence is not required under certain circumstances. One such circumstance is a voluntary absence without compelling justification, which constitutes a waiver of the right to be present. See United States v. Peterson, 524 F.2d 167, 184-85 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99; 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334 (1976). The right, however, “cannot cursorily, and without inquiry, be deemed by the trial court to have been waived simply because the accused is not present when he should have been.” United States v. Beltran-Nunez, 716 F.2d 287, 291 (5th Cir.1983). The court should try to find out where the defendant is and why he is absent, and should consider the likelihood the trial could soon proceed with the defendant, the difficulty of rescheduling and the burden on the government. Peterson, 524 F.2d at 185; United States v. Tortora, 464 F.2d 1202 (2d Cir.1972). Typically, these factors will favor proceeding without the defendant in multi-defendant trials only. Tortora, 464 F.2d at 1210 n. 7.

The court below inquired of defense counsel regarding Rogers’ whereabouts, but did nothing else.

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853 F.2d 249, 26 Fed. R. Serv. 511, 62 A.F.T.R.2d (RIA) 5340, 1988 U.S. App. LEXIS 10202, 1988 WL 79271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-samuel-e-rogers-ca4-1988.