481 F. 2d 644 - United States v. H Fritz

Appellant, Edwin H. Fritz, a certified public accountant, was convicted on two counts of violation of 26 U.S.C. Sec. 7206 (1)1 in willfully subscribing to false income tax returns for 1964 and 1965. He contends that the district court erred in (1) failing to instruct the jury on a lesser-included-offense under Sec. 7207 and (2) rejecting testimony concerning possible adjustments in his 1965 tax return.

In contending that the court on its own motion should have given a lesser-included-offense instruction directed to Sec. 7207 (furnishing false or fraudulent information), a misdemeanor statute, appellant relied on United States v. Bishop, 455 F.2d 612 (9 Cir. 1972), holding that the trial court erred in refusing an offered instruction on lesser-included-offense with respect to the same statutes.

This case was argued on October 6, 1972. On October 10 certiorari was granted in United States v. Bishop. Thereupon an order was entered deferring submission of this case until the Supreme Court acted on Bishop. On May 29, 1973 the Supreme Court reversed Bishop, holding that the district court had properly refused the lesser-included-offense instruction.2

The offered exhibits and supporting expert testimony relating to adjustments which would have affected appellant's tax liability for 1965 were properly rejected by the trial court as speculation, "reconstructed for purposes of litigation, without * * * any receipts, records or anything to back them up." There was no testimony that the appellant considered making the proposed adjustments when he filed his tax return for 1965. The offered proof under these circumstances was not relevant to the issue of willfullness in subscribing to a false return. See Schepps v. United States, 395 F.2d 749 (5 Cir. 1968), cert. denied, 393 U.S. 925, 89 S.Ct. 256, 21 L.Ed.2d 261.3

Affirmed.