| LEGAL
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Directed Verdict
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VOL IV, 9
24 THE COURT: Okay. We have what the juror has25 designated as its number four note, which reads -- the jury, U.S. DISTRICT COURT
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1 which reads: Since no proof has been made that the defendant2 and his employees are in an occupation listed in those 7,000, 3 are we to conclude that they are, in fact, not in that 7,000, 4 or do we need to read all 7,000 to see what the defendant was 5 referring to, and, in fact, wasn't listed in the 7,000. 6 The attorneys have my proposed response, which gives the 7 text of the note. And the proposed response is: In answer to 8 your note, you're instructed that you do not need to concern 9 yourself with whether defendant's employees are in an 10 occupation listed in those 7,000. And I put in quotes "listed 11 in those 7,000." The Court has made the legal determination 12 that within the meaning of Title 26, United States Code, 13 Section 7202, "during the years 2000, 2001, 2002, Arrow Custom 14 Plastics, through its responsible officials, had a legal duty 15 to collect by withholding from the wages of its employees, the 16 employees' share of social security taxes, Medicare taxes, and 17 federal income taxes, and to account for those taxes and pay 18 the withheld amounts to the United States of America." You 19 are to follow that legal instruction without being concerned 20 whether there might be certain employers who are not required 21 to collect and withhold taxes from the wages of their 22 employees. <snip> |
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<snip>24 THE COURT: Okay. Does the defendant have any 25 objection to the proposed response? U.S. DISTRICT COURT
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1 MR. McCOLL: Yes, Your Honor, we do. We would, first2 of all, object that there was insufficient evidence to prove 3 the Court's legal statement beginning with "the Court has made 4 a legal determination that," et cetera, down through the word 5 "America." 6 And, secondly -- and it amounts to an instructed verdict 7 of guilty by instructing them on that point since that is the 8 disputed issue and the basis for his defense. 9 Third, we would object to expanding the years as requested 10 by the government because that was not in response and not 11 requested by the jury in their note. It goes beyond that and 12 is therefore not responsive. 13 THE COURT: Okay. I'll overrule those objections. <snip> 20 THE COURT: Does the defendant have any objection to 21 that? 22 MR. McCOLL: Yes, Your Honor. The defendant has 23 asked that it be read in open court, and we do have one 24 additional objection I forgot to mention to the Court. 25 THE COURT: Okay. U.S. DISTRICT COURT
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1 MR. McCOLL: At the bottom it says, "You are to2 follow that legal instruction without about being concerned 3 whether there might be certain employers who are not required 4 to collect and withhold the taxes." We would ask the Court, 5 under Rule 201 of the Federal Rules of Evidence, that the 6 evidence show that there are certain employers. It was 7 unrebutted in the evidence that there are certain employers who 8 are not required to collect and withhold. So that would be a <snip> 21 THE COURT: Okay. I have the number four note from 22 the jury, and I have a response that I'm going to read to you 23 at this time. 24 Members of the jury, I have your note which is worded as 25 follows: Four. Since no proof was given that the defendant U.S. DISTRICT COURT
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1 and his employees were in an
occupation listed in those 7,000,2 are we to conclude that they are in fact not in that 7,000, or 3 do we need to read all 7,000 to see what the defendant was 4 referring to and, in fact, wasn't listed in that 7,000. Signed 5 by the foreperson and dated today. 6 Now, in answer to your note: You are instructed that you 7 do not need to concern yourself with whether defendant's 8 employees are in an occupation "listed in those 7,000." The 9 Court has made the legal determination that within the meaning 10 of Title 26, United States Code, Section 7202, during the years 11 1997, 1998, 1999, 2000, 2001, and 2002, Arrow Custom Plastics, 12 through its responsible officials, had a legal duty to collect, 13 by withholding from the wages of its employees, the employees' 14 share of the social security taxes, Medicare taxes, and federal 15 income taxes, and to account for those taxes and pay the 16 withheld amounts to the United States of America. You are to 17 follow that legal instruction without being concerned whether 18 there are certain employers who are not required to collect and 19 withhold taxes from the wages of their employees. <snip> |