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USA v. Flavio Perez.  08-2566.

A jury convicted Flavio Perez of two counts of filing false federal income tax returns. The district court sentenced Perez to 33 months’ imprisonment. Perez appeals, claiming that the district court violated his right to be present at trial by conducting a jury instruction conference in his absence.

We affirm.

In 2000 and 2001, Perez declared on his federal income tax return (filed jointly with his wife, Sara Bello) total income of $125,079 and $268,387, respectively. The income tax returns were prepared by tax preparers Urbaldo Rojas and Arthur Rubalcaba based on information Bello and Perez provided them.

The government believed that Perez had purposely under-reported his income and charged him in a two-count information with filing false individual federal tax returns in violation of 26 U.S.C. § 7206(1).

Perez pleaded not guilty and proceeded to trial. At trial, the government sought to prove its case using the “net worth and expenditure method” (“net worth method”). Under the net worth method, an individual’s actual income is estimated by comparing his net worth at the beginning of the tax year to his net worth at the end of the tax year, taking into account expenditures for basic living expenses and any non-taxable sources of assets (such as gifts, inheritances, and loans). See Holland v. United States, 348 U.S. 121, 125 (1954)(explaining the net worth method of proof).

The government presented evidence that on December 31, 1999, Perez’s net worth was approximately $100,000, that during 2000, he had expenditures of about $123,000, and that by the end of the year his net worth increased to $218,911. Because Perez had reported income of only $125,079 for 2000, the government’s expert concluded that (to increase his net worth by as much as he did in 2000) Perez had unreported income of more than $100,000.

For 2001, the government’s expert determined that Perez’s net worth increased from $218,911 to $571,488, and that he had expenditures of approximately $186,000. Because Perez had reported income of only $268,387 for 2001, the government’s expert concluded that (to increase his net worth by as much as he did in 2001) Perez had unreported income of more than $200,000.

After the close of evidence, the district court met with the attorneys in open court to discuss jury instructions. Perez, however, was not present for this conference. The government offered a jury instruction explaining the net worth method, but Perez’s attorney stated that the defense did not want the jury provided with a net worth instruction because by explaining the net worth method to the jury, “[i]t’s basically the stamp of approval by the court.” He also stated that Perez’s defense was to challenge the accuracy and completeness of the net worth method.

The following day the judge revisited the issue, but Perez was also absent for this conference. The judge began by noting that Perez has “the right to instruct the jury on the net worth method.” The court then asked Perez’s attorney: “[D]o you wish to give the instruction?” He responded: “No, your Honor, we do not.”

The court then added: “You understand that you have an absolute right to give it, and you understand that if you offered such an instruction, I would give it.” Again, Perez’s attorney responded: “Yes, your Honor, I do.” The court further clarified Perez’s intent by asking: “In representing your client, you choose to follow a strategy that would not include giving this instruction?” Perez’s attorney responded: “Correct, your Honor.”

The Assistant United States Attorney at this point noted that Perez was not present and the court followed up by asking Perez’s attorney: “Have you discussed this with your client as well?” Perez’s attorney replied: “I have discussed it with him.”

The court then noted that “at the completion of the closing arguments, if you don’t approach me and say you want the instruction given, I’ll deem you to have waived whatever rights you have on behalf of your client with his concurrence to the giving of that instruction. Is that fair enough?” And Perez’s attorney responded: “Fair enough, your Honor.”

After closing arguments, Perez’s attorney did not ask for the net worth method instruction, and it was not given. The jury convicted Perez on both counts, and the district court sentenced him to twenty-two months’ imprisonment on count one and eleven months’ imprisonment on count two, to run consecutively. Perez appeals.

Federal Rule of Criminal Procedure 43

Perez first argues that the district court violated his rights under Rule 43 to be present at trial by conducting the jury instruction conference in his absence. Rule 43 provides that “the defendant shall be present . . . at every stage of the trial including the impaneling of the jury and the return of the verdict and at the imposition of sentence, except as otherwise provided by this rule.” Fed. R. Crim. P. 43(a). Rule 43(b)(3), however, provides that a “defendant need not be present [when] . . . [t]he proceedings involve only a conference or hearing on a question of law.”

The government claims that because jury instructions concern questions of law, Perez was not entitled to be at the jury instruction conference. Perez responds that because the issue of whether to give the net worth instruction concerned a question of strategy rather than of law, he had the right to be at the conference.

Perez’s argument is misplaced. Courts are not in the business of holding hearings to oversee or approve a defendant’s trial strategy; they hold hearings to address legal or factual issues (or sometimes both) or to establish case management schedules. True, trial courts often inquire into strategy to establish that waivers are knowing and voluntary and to preserve judicial resources (by avoiding the potential for reversible error or collateral attack). But a court’s inquiry into a defendant’s strategy does not alter the purpose of the conference, which in this case was to determine the appropriate jury instructions.

The content of jury instructions is a question of law, and as such the jury instruction conference, assuming arguendo it was a stage of trial, fell within the Rule 43(b)(3) exception for “a conference or hearing on a question of law.” United States v. Rivera, 22 F.3d 430, 438-39 (2d Cir. 1994) (“The content of the instructions to be given to the jury is purely a legal matter, and a conference to discuss those instructions is thus a conference on a question of law at which a defendant need not be present.”)

Perez also argues that because his trial attorney objected to the government’s net worth instruction based on strategy and not the law, Rule 43 required the district court to inform Perez of the discussions that occurred during the jury instruction conference and ask Perez his position on the issue. Again, Perez’s position is misplaced.

While a defendant has ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal . . . the remaining decisions are in the hands of counsel. It could hardly be otherwise, unless trials are to be indefinitely extended as judges ask the defendant whether each decision (or omission) meets with his pleasure. The process would be worse than cumbersome. It would undermine the defendant’s ability to entrust decisions to a legally trained person.  United States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996).

The right to specific jury instructions is one of those “remaining decisions” that rests in the hands of the attorney. Thus, this court rejected the argument that a defendant must personally waive jury instructions in United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996). 

Similarly, in this case, while it would have been relatively easy (and prudent) for the district court to obtain Perez’s personal waiver on the record, the court was not required to address the jury instructions directly with Perez.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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