CA1: FRCrimP 35 is jurisdictional, and tax cheat issues

US v. Griffin, Nos. 07-1475, 07-1477. This is cross-appeal of a tax case under 26 U.S.C. § 7206(1) (false income tax return) by someone that made lots of money in multi-level marketing, but said she didn’t make that much.  The defendant initially got 27 months, then was resentenced to 21 months after Cunningham v. California, 127 S. Ct. 856 (2007).  The government wins, and the older sentence is ordered to be reinstated, because the District Court didn’t have jurisdiction under Federal Rule of Criminal Procedure 35(a) (seven day limit on sentence corrections) and rejects the idea that Eberhart v. United States, 546 U.S. 12 (2005) makes this rule non-jurisdictional.  As I have said many times before, I have little tolerance for tax cheats. I think they are worse than sex offenders.  Therefore, my sympathies will generally be with the government in these cases.

Keep reading if you care about “willfulness” and all that stuff that comes up in tax fraud cases.

Getting to the defendant’s arguments, the First rejects, on plain error review, an argument that the District Court didn’t give the right definition of “material” in jury instructions.  The First says it wasn’t an error for “material” to be defined as “"makes a difference . . . as to the amount owed.”

Likewise, the First says there wasn’t a problem with “willfulness” or the use of a “willful blindness” instruction.  The First dismisses most of the arguments, but then says that the use of the term “reasonable person” in a willful blindness instruction causes some problems, but the error was harmless.

Audiotapes of the defendant talking her philosophy of sorts were admitted, and the First says it wasn’t an abuse of discretion to considered them not substantially more prejudicial than probative.