United States v. Fowler
605 F.2d 181 (1979)
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Rule of Law:
In a criminal tax case using the 'bank-deposits' method of proof, a jury instruction that shifts the burden of producing evidence of additional costs to the defendant, after the government has made a reasonable effort to identify such costs, is not plain error, provided the ultimate burden of persuasion beyond a reasonable doubt remains with the government.
Facts:
- Fowler, a gravestone dealer, stopped filing federal income tax returns in 1953.
- The government investigated Fowler for willful failure to file returns for the years 1971 through 1975.
- During the investigation, Fowler cooperated only by providing partial business records to revenue agents.
- At trial, Fowler chose to conduct his own defense.
- When Fowler attempted to testify, he refused to swear or affirm that he would tell the truth, and also refused to agree to be cross-examined.
Procedural Posture:
- Fowler was indicted for willful failure to file income tax returns for the years 1971-1975.
- Fowler was arraigned in the U.S. District Court for the Northern District of Georgia with temporary counsel.
- The court granted Fowler's motion to change venue to the Middle District of Georgia.
- Fowler appeared for re-arraignment without counsel; the court found he was financially able to retain counsel and set a trial date.
- The trial court denied Fowler's subsequent pro se motion for a continuance to obtain counsel.
- At a jury trial where Fowler represented himself, he was convicted on all counts.
- Fowler, now represented by counsel, appealed his conviction to the United States Court of Appeals for the Fifth Circuit.
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Issue:
Does a jury instruction that shifts the burden of producing evidence of additional costs of goods sold to the defendant, after the government has made a reasonable effort to identify such costs, constitute plain error that violates the defendant's due process rights?
Opinions:
Majority - Gee, J.
No. The jury instruction does not constitute plain error because it did not impermissibly shift the ultimate burden of proof to the defendant. First, Fowler failed to object to the instruction at trial, meaning it can only be reversed if it amounts to 'plain error'—an error so obvious and serious that it affects the fairness and integrity of the judicial proceedings. The court found this instruction did not meet that high standard. Second, the charge merely shifted the burden of production or going forward with evidence, not the burden of persuasion, which the court's full charge correctly and repeatedly placed on the government. Finally, the instruction reflected the practical reality that once the government establishes gross receipts and makes a reasonable effort to find costs, the defendant is in the best position to produce evidence of any further costs they wish to claim.
Analysis:
This decision distinguishes between the burden of proof (persuasion), which always remains with the government in a criminal case, and the burden of production (going forward with evidence), which can shift to the defendant. It reinforces the high standard for 'plain error' review, particularly for defendants who waive counsel and represent themselves, holding them accountable for procedural requirements like making timely objections. The case also serves as a strong affirmation of the trial court's discretion in managing defendants who attempt to delay or 'trifle with the court' regarding fundamental rights like the right to counsel.
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