Fairley Cisco, Bill's Best Friend

Our Sheriff hangs out with some of the best in Camden County. A convicted murderer, a convicted meth maker, and then there is Fairley Cisco, another felon.
He does not hang out with me because I have only been convicted of misdemeanors.

Here is part of Fairley's indictment hearing.



[82-2 USTC ¶9554] United States of America , Plaintiff v. Fairley Cisco, Defendant
U. S. District Court, South. Dist. Ga. , Waycross Div., Criminal Action No. CR 582-03, 6/1/82 [Code Secs. 7201 and 7206]Attempt to evade or defeat tax: Felonious acts: Fraud and false statements: Indictment.--A taxpayer-defendant was denied a motion to dismiss his indictment on six counts of income tax evasion and six counts for the filing of false income tax returns. The taxpayer cited a lack of disclosure of the basic nature of the crimes at the preindictment stage of the proceedings, a lack of a required IRS conference, pre-accusation delay in bringing the charges, the insufficiency of the indictment in providing notice of the crimes for which he was charged, and the unexpected addition of six counts to the indictment as grounds for dismissal. The court, in rejecting the taxpayer's claims as without merit, noted that the defendant was aware of the basic nature of the charges levied against him because his attorney had been informed of the diversion of unreported corporate funds, and the number of checks involved. Also, the Constitution does not provide a defendant the right to knowledge of the details of a governmental investigation prior to indictment. Further, the defendant failed to meet his burden of proving that he was prejudiced by the delay in the culmination of the pre-accusation investigation where the court granted his motion to continue the trial date so that he might adequately prepare all aspects of his defense. The government's acquiescence in permitting the defendant to peruse its file likewise obviated the need for additional notice. Finally, so long as the additional six false filing counts were neither duplicitous nor multiplicitous and the defendant had adequate notice of them, his complaint was unjustified.
Frederick Kramer, Assistant United States Attorney, Savannah , Ga. 31402 , for plaintiff. James R. Harper, Harper & Wiggins, 400 Candler Bldg., Atlanta , Ga. 30303 , for defendant.
Order
ALAIMD, Chief Judge:
The above-styled case is presently before this Court on two motions by the defendant. First, the defendant has moved this Court for an Order continuing the trial date currently set for May 24, 1982 , to sometime after June 2, 1982 . Second, the defendant has moved this Court for an Order dismissing the indictment citing a lack of disclosure at the preindictment stage of these proceedings, a lack of an Internal Revenue Service (IRS) conference, pre-accusation delay, the insufficiency of the indictment and the unexpected addition of six counts to the indictment as grounds for dismissal. The first motion will be GRANTED; the second will be DENIED.
I. Motion for Continuance
In support of the motion for continuance, the defendant contends, inter alia, that he would be unable to adequately prepare a defense to the crimes for which he stands charged should he be required to work within the confines of a May 24, 1982 trial date. It appearing that good cause has been shown, the motion is GRANTED. It is hereby ORDERED that the jury selection and trial presently scheduled for May 24, 1982 be continued until June 21, 1982 . Further, it appearing that there is no good reason to schedule a pretrial conference, Fed. R. Crim. P. 17.1, and that the Court in its discretion may decline to schedule the same, United States v. Gibson, 513 F. 2d 978, 980 (6th Cir. 1975), it follows that the defendant's request for a pretrial conference should be, and is hereby, DENIED.
Before considering the merits of the motion to dismiss the indictment, it must be noted that the continuance granted herein delays the start of the trial beyond the commencement date mandated by the Speedy Trial Act, 18 U. S. C. §361 et seq. Since, however, the granting of this motion for continuance will permit the defendant to prepare an adequate defense to the crimes for which he is charged, and therefore the ends of justice will be served, this Court can and does exclude from the computation of the sixty-day period the delay occasioned by the motion. See 18 U. S. C. §3161(h)(8)(A). Accordingly, the granting of the motion for continuance does not cause a violation of the provisions of the Speedy Trial Act.
II. Motion to Dismiss the Indictment
A. FACTS. Fairley Cisco has been indicted on twelve counts of tax fraud--six for income tax evasion in violation of 26 U. S. C. §7201, and six for the filing of false income tax returns in violation of 26 U. S. C. §7206. The indictment charges violations of the above code sections for both personal and corporate taxes for the years 1975, 1976 and 1977.
In support of his motion to dismiss the indictment, the defendant alleges that the IRS investigation of his affairs commenced at some time prior to January 4, 1978 , and that Special Agent Brand joined the investigation before March 24, 1978 . Upon completion of the investigation, Brand prepared a report itemizing the alleged unreported income for the years 1975, 1976 and 1977. This report was approved and forwarded to the Office of Regional Counsel of the IRS with the recommendation of criminal prosecution.
Thereafter, on June 14, 1979 , the defendant was informed of the investigative recommendation by a letter from the Regional Counsel of the IRS. The letter notified the defendant that, upon request, he would be granted a conference on this matter, and that he could have an attorney or an accountant or both present at that time. The letter also informed the defendant that plea bargaining, civil settlement, negotiation or compromise of the tax liability would not be discussed at this conference.
On June 28, 1979 , the defendant hired James Harper as counsel to represent him in the proposed criminal proceeding. Harper then filed a power of attorney and scheduled a conference with Regional Counsel for August 13, 1979 . Although the conference took place as scheduled, Harper contends that the IRS refused to discuss any elements of the government's computations, and also refused to supply the defendant with sufficient facts and figures to acquaint himself with the basic nature of the proposed criminal charges.
Eight months later, on April 9, 1980 , the Regional Counsel notified Harper that the defendant's case was being referred to the Justice Department in Washington . On April 28, 1980 , Harper again requested a conference with the Regional Counsel wherein it was allegedly learned that the government was contemplating a six-count complaint based solely on the tax evasion section of the Internal Revenue Code, 26 U. S. C. §7201. Then, on July 9, 1980 , a third conference was held, this time between Harper and William Parker, the trial attorney for the Justice Department in Washington . Harper contends that at this conference Parker informed him of the checks allegedly diverted from the corporation to the defendant's personal use for the years 1975, 1976 and 1977, but did not discuss any other factual basis for the potential case. However, on July 22, 1980 , Harper wrote Parker a letter offering to show that the checks allegedly representing diverted and unreported income were in fact receipts from previously reported income. The contents of the letter also indicates that Harper had knowledge of the exact number of checks allegedly representing the diverted and unreported income for each of the three years under investigation.
Subsequently, on November 24, 1980 , the case was referred to the United States Attorney in Savannah , Georgia . Sixteen months later, in March, 1982, the twelve count indictment was returned by the grand jury.
B. DISCUSSION. As stated, the defendant argues that the indictment in this case should be dismissed because 1) the government failed to disclose the basic nature of the crimes for which the defendant is charged during the preindictment stage of this case, 2) the government failed to hold a required IRS conference, 3) of pre-accusation delay in bringing the charges, 4) the indictment provides insufficient notice to the defendant of the crimes for which he is charged and 5) the government unexpectedly added six counts to the indictment. None of these grounds has merit.
1. Preindictment lack of disclosure. The defendant contends that his sixth amendment rights have been violated by the policy of the IRS and the Justice Department to provide a potential defendant with minimum information on the basis of their investigation during the preindictment stage of a potential case. The defendant offers no precedential authority in support of his position.
While the Court is sympathetic to the plight of taxpayers undergoing sometimes overzealous IRS investigation, in this case there does not appear to be any defect in the preindictment stage mandating a dismissal of the indictment. The Constitution simply does not afford the defendant the right to knowledge of the details of the governmental investigation prior to indictment. Of course, it does afford all citizens certain rights with respect to the methods of that investigation--such as the prohibition against unreasonable searches and seizures, the right to due process and equal protection under the law, etc.--but no such defects have been alleged here. Common sense tends to support the right of the government to conceal the scope and focus of criminal investigation at the preindictment stage so as not to hinder the fact collection process.
Further, in this case it is apparent that the defendant was aware of the basic nature of the tax charges being levied against him. Aside from the three conferences at which the defendant claims the government was unresponsive, the July 22, 1980 letter from defendant's counsel to the government's attorney then charged with the responsibility over the case indicates that the counsel for the defendant in fact knew that the defendant was being charged with tax fraud based on the diversion of corporate funds unreported on both the corporate and individual income tax returns. Counsel was also aware of the number of checks for each year representing the allegedly diverted and reported income. Thus, the defendant was not completely in the dark with respect to the nature and focus of the investigation during the preindictment stage of this case.
2. Lack of an IRS conference. The defendant complains that he was not offered a conference until after the recommendation of criminal prosecution was forwarded to the Office of Regional Counsel, IRS. This fact, however, does not evince a violation of any law or regulation. The only regulation on point is 26 C. F. R. §601.107(b)(2), which provides:
"A taxpayer who may be the subject of a criminal recommendation will be afforded a district Criminal Investigation conference when he requests one or where the Chief, Criminal Investigation Division, makes a determination that such a conference will be in the best interests of the Government. At the conference, the IRS representative will inform the taxpayer by a general oral statement of the alleged fraudulent features of the case, to the extent consistent with protecting the Government's interests, and, at the same time, making available to the taxpayer sufficient facts and figures to acquaint him with the basis, nature, and other essential elements of the proposed criminal charges against him."
The defendant's true complaint is that he did not receive a meaningful conference informing him of the charges against him throughout the four-year investigative period. As previously concluded, however, the facts show otherwise. It is apparent that the defendant knew not only of the basic nature of the charge (the unreported diversion of corporate funds to his personal use), but also of the specific number of checks representing the diverted funds. Thus, the defendant had received a meaningful IRS conference in compliance with 26 C. F. R. §601.107(b)(2).
3. Pre-accusation delay. The defendant claims that the extended period of time between the completion of the investigation by the IRS and the return of the indictment by the grand jury amounts to a prejudicial pre-accusation delay in violation of the sixth amendment, the fourteenth amendment and the community sense of fair play and decency.
The defendant's reliance on the Speedy Trial Clause of the sixth amendment as a basis for dismissing the indictment for pre-accusation delay is misplaced. As the Court in United States v. Marion, 404 U. S. 307 (1971) explained:
"[T]he Sixth Amendment speedy trial provision has no application until the potential defendant in some way becomes an 'accused,' an event that occurred in this case only when the appellees were indicted on April 21, 1970 . . . . These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time."
Id. at 313. Thus, the sixth amendment assures the orderly expedition of a trial after an indictment is returned, but does not guarantee the same during the investigative stage.
However, in appropriate cases, some preaccusation delays can amount to a violation of the due process clause of the fourteenth amendment and a violation of the community sense of fair play and decency thereby mandating the dismissal of an indictment. In this respect, United States v. Lovasco, 431 U. S. 783 (1977) and United States v. Marion , supra, define the constitutional limitations placed on pre-accusation delays.
Marion , as explained by Lovasco, makes it clear that constitutional limits placed on pre-accusation delays are above and beyond limitations imposed by the relevant statute of limitations. In Marion , the Supreme Court stated that although "the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges," the statutes merely "provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced." United States v. Marion, 404 U. S. at 322 (citations omitted). However, "the 'statute of limitations does not fully define [defendants'] rights with respect to the events occurring prior to indictment,' . . . the Due Process Clause has a limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U. S. at 789 (citing United States v. Marion , supra). Thus, a pre-accusation delay, although not extending beyond the applicable statute of limitations, can result in the dismissal of an indictment.
The Fifth Circuit in United States v. Townley, 665 F. 2d 579 (5th Cir. 1982) discussed the text established by Marion and Lovasco to be used in evaluating an alleged due process violation (and a violation of the community sense of fairness) based on pre-accusation delay. There, the court noted that it must consider not only the prejudice to the accused but also the reasons for the delay. "Further, the accused bears the burden of proving the prejudice and, if the threshold requirement of proof of actual prejudice is not met, the inquity ends there." Id. at 581-82 (emphasis added).
In this case, the defendant has failed to establish that he has been prejudiced by the delay in the culmination of the investigation. He claims to be prejudiced due to the failure of the investigative bodies to reveal their results to him, and therefore, he could not prepare an informed answer to the charges before prosecution was recommended. This Court concludes, however, that the defendant was both adequately informed of the basic nature of the charges during the preindictment stage of the proceeding so as to have been able to answer the incriminating allegations, and fully informed of all relevant facts subsequent to the return of the indictment. The latter finding is supported by the government's "open file" policy and by the decision by this Court to grant the defendant's motion to continue the trial date for this case from May 24, 1982 to June 21, 1982 so that he might adequately prepare all aspects of his defense. Thus, the defendant has not shown that he has been prejudiced by the delay in the prosecution of this suit, and, in the absence of such a showing, the indictment will not be dismissed.
4. Sufficiency of the indictment. The defendant argues that having failed to receive adequate notice at the pre-accusation stage of this case of the charges for which he was being investigated, he must receive such notice through the indictment. Specifically, the defendant claims that he does not know what type of income or the amount of income alleged to have been willfully omitted from his personal and corporate tax returns for the years 1975, 1976 and 1977. Thus, it is contended, the indictment does not contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1).
In analyzing the sufficiency of an indictment, the Court must determine "whether the charging allegations contain the elements of the crime alleged and whether they sufficiently inform the defendant as to what he must be prepared to meet and whether the allegations present with sufficient clarity an issue sufficient to be raised in bar to a subsequent prossecution." United States v. Buckner [80-2 USTC ¶9470], 610 F. 2d 570, 573 (9th Cir. 1979), cert. denied, 445 U. S. 961 (1980) (citing United States v. Grayson [69-2 USTC ¶9639], 416 F. 2d 1073 (5th Cir. 1969)). In this case, the indictment is sufficient to inform the defendant of the elements of the tax evasion and the false filing charges, as well as what the defendant should do to meet those charges. Further, the government's acquiescence in permitting the defendant to peruse its file obviates any need for additional notice, particularly in view of the decision of this Court to grant the defendant's motion for continuance thereby allowing him more time to prepare his case.
With respect to the defendant's complaint that the use of the term "at least approximately" to describe the tax sums evaded renders the indictment defective, the defendant is reminded that the government need not even plead the numerical amount of the additional tax due. See United States v. Buckner, supra at 573. Thus, it is the conclusion of this Court that the indictment does provide the defendant with sufficient notice of the crimes for which he stands charged and, therefore, it should not be dismissed on this basis.
5. The "additional" charges. The defendant complains that although it was his understanding during the investigative stage of this case that anly six charges would be brought against him (only those counts charging a violation of 26 U. S. C. §7201 for tax evasion), he was eventually indicted on twelve counts (the six tax evasion counts plus six false filing counts, 26 U. S. C. §7206). The Court agrees with the government that so long as these twelve counts are neither duplicitious nor multiplicitous, and the defendant has adequate notice of the same, the defendant's complaint is unjustified. In finding that these twelve counts are neither duplicitous nor multiplicitous, and that the defendant has had adequate notice of all counts, if follows that the indictment should not be dismissed on this ground.
C. CONCLUSION. It is the conclusion of this Court that the defendant's constitutional, statutory and regulatory rights have been preserved by the conduct of the various governmental agencies and personnel at all stages of this case. The United States Attorney, in allowing the defendant to freely peruse the file, has been particularly cooperative in assuring the protection of defendant's rights. Accordingly, the motion to dismiss the indictment should be, and is hereby, DENIED.