Appeal from judgment of conviction for two counts of violating 26 U.S.C. § 7206(2) entered in the United States District Court for the Eastern District of New York, after a trial before Hon. Henry Bramwell, and a jury.
Meskill, Circuit Judge, and Edward R. Neaher and Albert W. Coffrin, District Judges.*fn*
This is an appeal from a conviction entered after a jury trial in the United States District Court for the Eastern District of New York, Bramwell, J., for two counts of violating 26 U.S.C. § 7206(2) by unlawfully and willfully causing the preparation and presentation of a United States Information Return (Internal Revenue Service ("IRS") Form 1099) which was false and fraudulent as to material matters.*fn1 Appellant raises three issues on appeal. The first is whether his retrial on two counts on which the jury had been unable to reach a verdict in a prior trial violated his right to be free from double jeopardy. The second is whether there was sufficient evidence produced at the second trial to establish appellant's guilt beyond a reasonable doubt. Finally, Perez raises various miscellaneous claims of error upon which we must determine whether the convictions should be reversed. We hold that Perez was not placed twice in jeopardy and that there was sufficient evidence for his conviction. We see no merit in his miscellaneous claims. Accordingly, we affirm.
On May 19, 1976, Perez was indicted on three counts of violating 26 U.S.C. § 7206(2). The indictment arose out of an investigation conducted by the IRS at the Aqueduct Racetrack in New York. During the course of that investigation, between November 1975 and February 1976, IRS Special Agent Gerald Levy observed that Perez was at the racetrack daily, and that he would often be in the vicinity of a window, where bettors could cash winning tickets on triple bets,*fn2 sometimes approaching and speaking to people who were cashing their winning tickets at the window.*fn3
At appellant's first trial, Agent Levy testified that on November 24, 1975, he had observed Perez cashing a winning ticket paying more than $600 and completing the form (Form 317) necessary to cash the winning ticket. Levy examined and initialed the form, which contained the name, address and purported signature of Miguel Valles, 865 Crontona Park, New York, New York. This form was the subject of Count I of the three count indictment tried at that trial.
On January 21, 1976, Levy observed Perez filling out a form at the over $600 previous day window, and, after turning in the form, receiving several hundred dollars from the cashier. After Perez left the window, Levy directed another agent to initial the form. The form contained the name Carlos Diaz, and the address 148 West 17th St., Apt. 5, New York, New York. It also included a signature purported to be that of Carlos Diaz and the social security number 129-48-1254 which was supposed to be that of the person named on the form. This form was the basis of Count II of the indictment.
On January 27, 1976, this same sequence occurred, except that in this case agent Levy himself initialed the form. That form contained the same information as the one filled out on January 21, and was the subject of Count III.
Perez was originally tried on July 21, 1976, on all three counts of the indictment. The jury acquitted him on Count I - the count arising out of the form signed in the name of Miguel Valles - but was unable to reach a verdict on Counts II and III. Because of their inability to agree on a verdict for those two counts, the trial judge declared a mistrial after two days of deliberation. By that time the jury had sent Judge Bramwell a total of twelve notes containing nine inquiries and three statements that they were deadlocked.
The jury's first note to the Court was delivered at 5:35 p.m. on July 26, 1976, three hours after it began its deliberations. The note read:
What is the procedure when the jury cannot come to a unanimous decision?
While counsel and the Court were discussing this note and defense counsel's request that the jury be discharged, a second note arrived from the jurors:
Re: Number 1 and 2. Conceding that all the information on the 1099 is accurate and correct and that all the information on the NYRA Incorporated form number 317 is in fact accurate and correct, other than the signature which is conceded to be a forgery authorized by the person whose name is used, to wit: Don Carlos Diaz, can he be guilty of the last two counts?
To this inquiry the Court responded that the question was too long to permit an appropriate answer and that the jury should go back and rephrase it. Defense counsel objected to this procedure, contending that the question was clear and called for a simple "no" answer.
The jury did comply about fifteen minutes later, asking the Court:
If all the information on the 1099 form is accurate, can Daniel Perez still be guilty by virtue of the ...