Kuglin Beats IRS - Transcripts
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
-------------------------------------------------------
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
VS. ) NO. 03-20111-Ml
)
)
VERNICE KUGLIN, )
)
Defendant. )
-------------------------------------------------------
TRIAL PROCEEDINGS
VOIR DIRE OF THE JURY
BEFORE THE HONORABLE JON PHIPPS MCCALLA, JUDGE
AUGUST 4, 2003
VOLUME I
BRENDA PARKER
OFFICIAL REPORTER
SUITE 942 FEDERAL BUILDING
167 NORTH MAIN STREET
MEMPHIS, TENNESSEE 38103
2
A P P E A R A N C E S
Appearing on behalf of the Plaintiff:
TERRELL L. HARRIS, ESQ.
UNITED STATES ATTORNEY
SUITE 800 FEDERAL BUILDING
167 NORTH MAIN STREET
MEMPHIS, TENNESSEE 38103
By: JOSEPH MURPHY, ESQ.
Appearing on behalf of the Defendant:
LOWELL H. BECRAFT, JR.
209 LINCOLN STREET
HUNTSVILLE, ALABAMA 35801
ROBERT G. BERNHOFT, ESQ.
207 EAST BUFFALO STREET
MILWAUKEE, WISCONSIN 53202
3
1 MONDAY MORNING & AFTERNOON
2 AUGUST 4, 2003
3 The voir dire in this case began on this date,
4 Monday, August 4, 2003, at 10:35 o'clock a.m., when and
5 where evidence was introduced and proceedings were had as
6 follows:
7
8 ____________
9
10 THE COURT: Are we about to ready to bring our
11 panel around so we can proceed with jury selection?
12 MR. BECRAFT: Your Honor, can I take up one
13 real quick matter?
14 THE COURT: Sure.
15 MR. BECRAFT: Friend of mine is a lawyer from
16 Milwaukee, Wisconsin, his name is Bob Bernhoft. He called
17 me and he wanted to help me with this case, and I have
18 invited him to come down and he's going to sit here, and I
19 wanted to introduce him to the court. He filed a motion
20 for pro hac vice admission, but what he's going to do is
21 just assist me during the course of the trial if the court
22 doesn't mind.
23 THE COURT: Sure, that's fine.
24 MR. BERNHOFT: Thank you, Judge.
25 THE COURT: Let me get your last name again.
4
1
2 MR. BERNHOFT: Yes, Bernhoft, B-E-R-N-H-O-F-T,
3 first name is Robert, and I filed a courtesy copy with
4 chambers of that pro hac vice motion that has got my bar
5 numbers, et cetera in there.
6 THE COURT: All right. That's fine. We can
7 bring the --
8 THE CLERK: They're on their way.
9 MR. MURPHY: Judge, just one thing, I -- I
10 would like to discuss how we're going to handle voir dire
11 today. I would like to suggest that it might be a good
12 idea for the court to do it. This is -- this is a case
13 where they're alleging a good faith defense, I take it.
14 THE COURT: They are.
15 MR. MURPHY: Based on what has been provided to
16 me.
17 THE COURT: Right.
18 MR. MURPHY: And we need to just be real
19 careful that the jury doesn't get confused on what the law
20 is in these tax issues. It's a sensitive subject.
21 THE COURT: Well, I have been letting the
22 lawyers do a good portion of the voir dire. It certainly
23 seems to make most lawyers happy.
24 MR. BECRAFT: I wouldn't mind asking some
25 questions, Your Honor.
5
1 MR. MURPHY: I would rather you ask most of
2 them.
3 MR. BECRAFT: Oh, okay.
4 THE COURT: And I would -- Mr. Murphy -- I feel
5 like, Mr. Murphy -- of course, you always go first in
6 this -- that you can maybe deal with that issue also --
7 MR. MURPHY: Yes, sir.
8 THE COURT: -- to some degree. I'll ask enough
9 questions so that you'll have plenty of time to organize
10 your voir dire.
11 MR. MURPHY: Yes, sir. Judge, I've got voir
12 dire organized, it's just -- you know, taxes are things
13 people have strong feelings about.
14 THE COURT: They don't like them.
15 MR. MURPHY: They don't like them.
16 THE COURT: Right, but I think y'all have to
17 deal with that and talk about people not being swayed by
18 that sort of point of view.
19 MR. MURPHY: Yes, sir, Your Honor.
20 THE COURT: Sure.
21 MR. MURPHY: Judge, there's just one other
22 thing. Mr. Becraft has submitted some materials to me
23 that the defense is going to use in its presentation of
24 the case, and just so he's not waylaid, at some point I
25 think it would be a good idea to sit down and talk about
6
1 how we're going to handle that, because if you read the
2 cases that deal with the question of how the defendant
3 proves their good faith defense, there's some things
4 that -- in that that bear -- what we take the position are
5 incorrect statements of the law, and generally people are
6 allowed to read those into the record -- portions of those
7 into the record, but the -- that document is not admitted.
8 There's some things that I have no doubt they're
9 admissible and I'm not going to oppose their introduction,
10 and there's other things that I may or may not oppose, but
11 it would be a good idea, I think, if we talked about it
12 beforehand.
13 MR. BECRAFT: If the floor is open, I'll tell
14 the court what I plan on doing, just so the court will
15 know in advance. Your Honor, in a tax evasion case or
16 willful failure to file case, intent to commit a crime is
17 real important. The government must prove that, and the
18 defense is, you know, basically good faith and lack of
19 criminal intent. Now, that requires, quite often, that
20 the defendants testify about their beliefs about the law,
21 and I want to tell the court that this is exactly what I'm
22 going to do, and it will probably eliminate certain
23 objections that Mr. Murphy is going to have. I'm going to
24 get up -- when we get up and give our opening statements,
25 I'm going to tell the jury that all she is going to
7
1 testify about is her beliefs about the law and that the
2 court is going to give the instructions on the law that is
3 relative to this case. When we start getting into the
4 meat of the defendant's motion, that's exactly what I'm
5 going to ask the defendant, you know, are you going to
6 testify about your beliefs about the law, and you
7 understand that the court is to instruct the jury on what
8 the law is itself. I think that giving that at least two
9 or three times, especially coming from the defense,
10 telling the jury in advance that she is just going to be
11 testifying about her beliefs probably eliminates a lot of
12 objections that come from the prosecution. And that's
13 what I intend on doing. I'm going to do that in opening.
14 I'm going to tell the jury that we're going to be
15 testifying about beliefs about the law, and I'm going to
16 tell the jury that you are going to instruct the jury on
17 the law, and the defendant will, in front of the jury when
18 she testifies, in essence, say the same thing. But I
19 think that addresses a lot of the government's objections.
20 THE COURT: Okay. Well, as soon as we get our
21 panel here, we'll start. I will go back and wait until
22 they get here. Be back as soon as they get here.
23 THE CLERK: All rise.
24 (Recess taken at 10:45 until 10:50 a.m.)
25
8
1
2 (Jury panel in at 10:50 a.m.)
3 THE COURT: Ladies and gentlemen, I want to
4 thank you for serving today as a juror. I know you're all
5 just anxious to be here, right? How many people don't
6 have power yet? Anybody? One person. Who is back there?
7 I'm going to let you go home if you want to. How are you
8 doing today?
9 PROSPECTIVE JUROR: I'm fine.
10 THE COURT: You would probably rather be here
11 because it's cooler. We got power about 8:30 last night
12 so maybe you will get it today. I thought we were going
13 to be last in the city, but -- where are you located?
14 PROSPECTIVE JUROR: Kirby and Mt. Moriah.
15 THE COURT: I don't know, it has been really
16 slow, but maybe you will get your power today.
17 Let me tell you, folks, how many people had
18 power for -- never lost power? Okay. All of you get to
19 be on the jury. How many of you were out of power for
20 more than a week? A lot of you. Yeah, how many more than
21 ten days? Yeah, I get to be in that group. More than
22 twelve days? Yeah, just two of us. Where are you --
23 where do you live?
24 PROSPECTIVE JUROR: Me?
25 THE COURT: Yes, ma'am.
VOIR DIRE OF THE JURY
9
1 PROSPECTIVE JUROR: Over off of Lamar.
2 THE COURT: Yeah, I know, we were really slow
3 getting our power back. You got it yesterday?
4 PROSPECTIVE JUROR: Yes.
5 THE COURT: What time?
6 PROSPECTIVE JUROR: This morning.
7 THE COURT: You got it this morning?
8 PROSPECTIVE JUROR: Yes.
9 THE COURT: I got mine late last night, so they
10 told me they were going to throw one more switch and see
11 if it came on, and actually it did.
12 Well, what we're going to do today is select a
13 jury in a criminal case and in order to do that, we're
14 going to have to -- I was waiting on Mrs. Saba to get
15 here. We have to first swear you all in, and so if you
16 will all stand and raise your right hand. Thank you.
17 THE CLERK: Do you and each of you solemnly
18 swear that the answers to the questions to be propounded
19 to you by the court in this case for which you may be
20 drawn as a juror to be the truth, the whole truth and
21 nothing but the truth, so help you God?
22 THE JURY PANEL: I do.
23 THE CLERK: You may be seated.
24 THE COURT: All right. What we're going to do
25 is we're going to call 14 names and have them sit up here
VOIR DIRE OF THE JURY
10
1 in the jury box. And, Mr. Tuggle, you may need to move
2 that TV back just a little bit for folks so that the ones
3 back there can see. The first person whose name is called
4 will be asked to sit in seat number one. That's the seat
5 closest to me on the first row, and the second person in
6 seat number two and so forth, all the way down to seat
7 seven, and then we're going to go to seat eight through
8 14. If your name is not called, that does not mean that
9 you will not be called as a juror; it just means that
10 we're going to ask these 14 individuals some questions.
11 Pay attention to the questions, though, as they're asked,
12 because you'll need to answer the same questions if your
13 name is called.
14 THE CLERK: Lashaunda Vasser. Walter White.
15 Larry Spurlin. Muhammad Salaam. William Vedder. Lee
16 Scott. Regina Starnes. Kay Gupta. Linda Saul. Andrew
17 Viverette. Jeffrey Stovall. Alphonso Smith. Frank
18 Vickers. Keith Smith.
19 THE COURT: Who is our first juror?
20 THE CLERK: Lashaunda Vasser.
21 THE COURT: I need to ask you a few questions
22 about being a juror in a criminal case, and the first
23 thing I usually start out is -- I start with Ms. Vasser,
24 and I ask what do you think is the most important
25 characteristic for a juror. Think about it if you were
VOIR DIRE OF THE JURY
11
1 somebody sitting over there on the other side, what would
2 be most important for you about a jury, what would you
3 want? Ms. Vasser, what's the most important
4 characteristic for a juror to have?
5 PROSPECTIVE JUROR: Honesty.
6 THE COURT: That's good. Okay. I'm going to
7 make a list here.
8 Let's go to Mr. White. Mr. White, what is
9 another characteristic?
10 PROSPECTIVE JUROR: The ability to assess fact.
11 THE COURT: Ability to assess fact. All right.
12 I didn't get your name down right, so tell me your last
13 name again.
14 PROSPECTIVE JUROR: Spurlin.
15 THE COURT: Spurlin, I knew I didn't have it
16 right. Mr. Spurlin, what is another characteristic that
17 you would want in a juror?
18 PROSPECTIVE JUROR: To be open-minded.
19 THE COURT: Open minded.
20 Is it Mr. Salaam?
21 PROSPECTIVE JUROR: Yes.
22 THE COURT: What is another characteristic of a
23 juror?
24 PROSPECTIVE JUROR: Attentiveness.
25 THE COURT: Attentiveness, okay. So we have
VOIR DIRE OF THE JURY
12
1 got an honest person who is able to assess the facts who
2 is open-minded and attentive.
3 Is it Mr. Vedder?
4 PROSPECTIVE JUROR: Right.
5 THE COURT: Another characteristic for a juror?
6 PROSPECTIVE JUROR: Common sense.
7 THE COURT: Common sense. Actually, I will
8 give an instruction on that. You should have common
9 sense. Apply your common sense.
10 Okay. Mr. Scott, another thing?
11 PROSPECTIVE JUROR: I guess you could say be
12 able to weigh the evidence.
13 THE COURT: Be able to make a decision, to
14 weigh the evidence. You know, it always gets a little
15 harder as we go along.
16 Ms. Starnes -- but we have left out a couple of
17 big things, a couple of big things -- what would you want
18 as a juror?
19 PROSPECTIVE JUROR: To be impartial.
20 THE COURT: To be impartial. We have still got
21 some to go. We have got an honest person who is able to
22 assess the facts who is open-minded, attentive, uses their
23 common sense, is able to weigh the evidence and is
24 impartial.
25 All right. And, Mr. Smith, another thing you
VOIR DIRE OF THE JURY
13
1 would want from a juror?
2 PROSPECTIVE JUROR: I would want someone to be
3 a very good listener.
4 THE COURT: A good listener, absolutely. Good
5 listener.
6 All right. And, Ms. Vickers, something else?
7 PROSPECTIVE JUROR: To be able to be
8 emotionally present here with what we're doing.
9 THE COURT: Emotionally -- what do you mean by
10 that?
11 PROSPECTIVE JUROR: Well, to not have our
12 thoughts and feelings about what's at home to be
13 emotionally present.
14 THE COURT: To be -- to be focused on the case.
15 I'm going to say focused on the case because the other was
16 a little -- I have got you there. Focused on the case.
17 Mr. Smith?
18 PROSPECTIVE JUROR: I would say someone that's
19 not prejudiced against anything.
20 THE COURT: Somebody who is not prejudiced,
21 exactly. Mr. Stovall, what is a kind of -- what types of
22 prejudice are we concerned about, because that's true --
23 Mr. Stovall, I'm going back to Mr. Stovall. Because, Mr.
24 Smith, we have got a long list now, and we're down to an
25 honest person who is able to assess the facts, who is
VOIR DIRE OF THE JURY
14
1 open-minded, attentive, uses their common sense, who is
2 able to weigh the evidence, who is impartial, a good
3 listener, focuses on the case and who is not prejudice.
4 That's really a good list. I mean that's ten words which
5 are really good descriptors, and usually when I get to the
6 point on somebody who is not prejudiced or -- and somebody
7 said impartial, which is another way of saying that, we
8 start talking about what ways can people be prejudice.
9 What ways are people sometimes prejudice?
10 PROSPECTIVE JUROR: Race and religion.
11 THE COURT: Race and religion are common ways
12 in which people have prejudice. And, of course, it's
13 inappropriate to consider them, but it is important to
14 know that they're out there. And both of them have been
15 in the news a lot, so that's certainly -- certainly two
16 important ones.
17 Well, are there other things that -- is it Mr.
18 Viverette?
19 PROSPECTIVE JUROR: Yes.
20 THE COURT: Mr. Viverette, other things that
21 people can be prejudiced -- how old are you, Mr.
22 Viverette --
23 PROSPECTIVE JUROR: Sixty-four.
24 THE COURT: You're 64. Anybody ever prejudiced
25 because of age as far as you know? Maybe not, you have
VOIR DIRE OF THE JURY
15
1 never run into that. Ever heard about that, though?
2 PROSPECTIVE JUROR: Yes, I've heard of it.
3 THE COURT: Heard that people -- anybody older
4 than 64? I think I have gotten my senior most panelist.
5 We will have to wait -- I will remember that.
6 I will remember that.
7 Sometimes people will say you can't do the job
8 because you're 64, because you're 60, because you're over
9 55 --
10 PROSPECTIVE JUROR: That's right.
11 THE COURT: -- whatever it is. And they don't
12 look at you and see that you get around, you do -- you're
13 perfectly capable and healthier than a lot of people who
14 are 40. Some people might not look at that. So that
15 would be a prejudice, a preconceived notion about
16 somebody's ability simply based on age, and that's never
17 happened to you? Nobody has ever --
18 PROSPECTIVE JUROR: No.
19 THE COURT: That's good. That's because you
20 don't look 64.
21 PROSPECTIVE JUROR: Thank you.
22 THE COURT: I understand what you're saying
23 there.
24 Ms. Saul, another thing people can be prejudice
25 about?
VOIR DIRE OF THE JURY
16
1 PROSPECTIVE JUROR: Well, other than religion
2 and color?
3 THE COURT: Race, religion, age?
4 PROSPECTIVE JUROR: Gender could be another
5 one.
6 THE COURT: Gender?
7 PROSPECTIVE JUROR: Uh-huh.
8 THE COURT: Do you think sometimes women are
9 treated differently than men?
10 PROSPECTIVE JUROR: I personally have not been,
11 but I have seen other people.
12 THE COURT: You think every football coach in
13 high school is automatically eligible to be the high
14 school principal?
15 PROSPECTIVE JUROR: No.
16 THE COURT: I'm not saying that's an area of
17 prejudice, but some people might say there does seem to be
18 sort of a disproportionate number of football coaches that
19 who gets to be principals of high schools. That's not
20 always true, and I don't want anybody to get that
21 impression.
22 THE WITNESS: Right, right. Depends on the
23 person.
24 THE COURT: But some people might say, well,
25 they didn't consider that female librarian, but they did
VOIR DIRE OF THE JURY
17
1 consider somebody else. So they looked at it and they
2 said that person can do a better job because of their
3 gender, maybe.
4 PROSPECTIVE JUROR: Right. Depends upon the
5 person, whether it is male or female, just depends upon
6 their capabilities.
7 THE COURT: It does exist.
8 PROSPECTIVE JUROR: Uh-huh.
9 THE COURT: That's possible. Now, I'm going
10 to -- is it Mr. Gupta?
11 PROSPECTIVE JUROR: Yes.
12 THE COURT: Other types of prejudice? Where
13 are you from?
14 PROSPECTIVE JUROR: I'm from India.
15 THE COURT: You're from India?
16 PROSPECTIVE JUROR: Yes.
17 THE COURT: Nobody is ever prejudiced against
18 people who are not born in the United States, are they?
19 Sometimes they are.
20 PROSPECTIVE JUROR: I hope not.
21 THE COURT: You hope not. Hopefully, not you.
22 But it can be national origin too, is that a fair one to
23 put in the group?
24 PROSPECTIVE JUROR: I would certainly like to
25 put that.
VOIR DIRE OF THE JURY
18
1 THE COURT: Okay. National origin. All right.
2 We have got a good set of things people can be prejudice
3 about.
4 Now, I'm going to have you pass that back to
5 Ms. Vasser. She is right in front of you.
6 Ms. Vasser, we have got a good list of things
7 that you have to watch out what you want in jurors and
8 some things you don't want. You don't want people
9 prejudice, and we went through some things there. I want
10 you to do something. We have got five people over there.
11 We have got three people over there and two people over
12 there. One person out there is a defendant in this case.
13 Can you look out there and tell me which one it is? You
14 got the gentleman with the beard and the glasses on there
15 and the lady with -- got her hand on her -- all right --
16 chin on her hand. Gentleman with the red tie over there,
17 the lady that's blonde, lady right there, and the fellow
18 with the dark hair and glasses and another kind of darker
19 red tie right there. Which one do you think is the
20 defendant? They all look eligible, don't they? I'm
21 kidding you.
22 MR. MURPHY: Judge, I was starting to get
23 worried because they're eyeballing me.
24 THE COURT: Okay. He kind of stood up and
25 threw you off there. He's still in the pool, we don't
VOIR DIRE OF THE JURY
19
1 want to leave him out. Who do you think the defendant is?
2 PROSPECTIVE JUROR: I'm going to say the lady
3 in the black suit.
4 THE COURT: Which one now?
5 PROSPECTIVE JUROR: Dark hair.
6 THE COURT: The blonde?
7 PROSPECTIVE JUROR: No, not the blonde.
8 THE COURT: The brunette?
9 PROSPECTIVE JUROR: Brunette.
10 THE COURT: Brunette is the one.
11 Why do you pick her out? Usually what happens
12 is they pick out somebody who looks a little different.
13 PROSPECTIVE JUROR: Yeah.
14 THE COURT: That's the most common thing for
15 people to do. We always have that -- now, I probably
16 threw you off, because usually people pick out if there's
17 a guy with a beard, and Mr. Murphy stood up, they often
18 pick out --
19 PROSPECTIVE JUROR: He stood up, so I
20 eliminated him.
21 THE COURT: But if he had sat there -- often we
22 pick out somebody who looks a little different, and I'm
23 not saying you look that different, but somebody who looks
24 somewhat different, so we had, you know, two red ties --
25 we had three red ties, put the ties together, maybe they
VOIR DIRE OF THE JURY
20
1 all look alike, I don't know. But you have a fellow with
2 a beard. All the men wore glasses, so that made it
3 harder, you know. You had a mustache and a beard, that
4 makes that kind of hard to pick out. You had somebody who
5 was a blonde lady, somebody who is -- so you went with the
6 brunette lady.
7 Okay. She is the IRS agent. She is the IRS
8 agent. We do this for a very specific purpose, and that
9 is we all also judge people often on how they look.
10 I'm going to hand that to Mr. White right next
11 to you. Mr. White, you and I don't have much hair, right?
12 PROSPECTIVE JUROR: That's correct.
13 THE COURT: People make assumptions about
14 people who don't -- mostly good assumptions about people
15 who don't have much hair, I suppose. At least you and Mr.
16 Salaam and I all think the same on that. But they will
17 make assumptions about that, won't they?
18 PROSPECTIVE JUROR: Correct.
19 THE COURT: And that's just not fair. Is it?
20 It's not a fair way to proceed. And so what we have to do
21 is in order to get rid of prejudice, we have to stop
22 seeing that person as a person who has on, you know, a
23 black jacket, white -- kind of beige, that might be white,
24 I just can't see very well. You know, we have to not make
25 a judgment. Now, I asked Ms. Vasser to do that because
VOIR DIRE OF THE JURY
21
1 that's part of the illustration. She did exactly what I
2 wanted her to do, which is pick out somebody. In this
3 case, is it appropriate -- would it be unfair, though, to
4 judge anybody on how they appear?
5 PROSPECTIVE JUROR: Yes.
6 THE COURT: Okay. How do we avoid that, doing
7 that? Because the first thing we all do, we all know is
8 we look around and we see somebody and we start making
9 judgments about that person, often very unfairly. Usually
10 completely unfairly, but we do that. How do we avoid
11 doing that in this case? How do we avoid judging people
12 based on appearance?
13 PROSPECTIVE JUROR: By listening to the facts
14 of the case.
15 THE COURT: That's exactly right, and you said
16 ability to assess facts earlier, which is exactly that.
17 We listen to the evidence. We listen to the facts, and we
18 put aside preconceived notions about people based on
19 appearance, based on, you know, hair style, based on
20 anything else, we put those all out of our mind.
21 Do you think, Mr. Spurlin, that that is
22 possible for people to do?
23 PROSPECTIVE JUROR: I don't think always.
24 THE COURT: It's not always?
25 PROSPECTIVE JUROR: No.
VOIR DIRE OF THE JURY
22
1 THE COURT: It's difficult?
2 PROSPECTIVE JUROR: Yes.
3 THE COURT: Have you found yourself on occasion
4 sort of having prejudged somebody and found out you were
5 just wrong?
6 PROSPECTIVE JUROR: On occasion.
7 THE COURT: I mean --
8 PROSPECTIVE JUROR: I mean it's not often. I
9 have done it in the past.
10 THE COURT: Right. Sometimes you will think
11 somebody is a good guy, and they turn out not to be a good
12 guy. You think somebody is a bad guy, and it turns out
13 they're not a bad guy.
14 PROSPECTIVE JUROR: Right.
15 THE COURT: It's a natural thing for people to
16 assess things based on appearance, but in a case, in a
17 trial, if we always did that, who would always get off and
18 who would always get convicted? I'm going to ask Mr.
19 Salaam, who would always get off if we just went on
20 appearance and who would usually get convicted?
21 PROSPECTIVE JUROR: Well, the wrong person
22 would get convicted, and the right person would walk.
23 THE COURT: Right, exactly, because we would be
24 looking at people and just making a superficial
25 determination instead of looking hard at the evidence, and
VOIR DIRE OF THE JURY
23
1 we can all think about that that is just inherently unfair
2 in our society. So that's what we're going to have to
3 avoid today.
4 Now, I did mention -- and, Mr. Murphy, I'm now
5 going to let you -- I'm going to now let you introduce
6 yourself and who is with you, and I'm going to let counsel
7 for the defense introduce himself and those who are with
8 him, and you're going to know who the parties are. But
9 you're not supposed to judge them based on their
10 appearance.
11 MR. MURPHY: Thank you, Your Honor. My name is
12 Joe Murphy, ladies and gentlemen. I'm an assistant United
13 States attorney here in Memphis, Tennessee, and sitting
14 with me today will be Ms. Debbie White. She is an IRS
15 agent with the Criminal Investigation Division of the IRS.
16 Thank you.
17 THE COURT: All right. Thank you, Mr. Murphy.
18 And, of course, they represent the United
19 States.
20 Yes, sir.
21 MR. BECRAFT: May it please the court, my name
22 is Larry Becraft. I'm an attorney that is here to
23 represent the defendant in this case. I also have a
24 friend of mine that is going to be helping me. He's a
25 lawyer. His name is Bob Bernhoft. This is the man right
VOIR DIRE OF THE JURY
24
1 here, and for those who didn't guess who is remaining, the
2 lady right here is the defendant. Her name is -- we call
3 her Vernie Kuglin.
4 THE COURT: And it is K-U-G-L-I-N?
5 MR. BECRAFT: That is correct, Your Honor.
6 THE COURT: So it is Ms. Kuglin. Well,
7 hopefully, that exercise was useful to all of you to go
8 through this process and say, you know, maybe we ought not
9 to judge a book by its cover, we ought to wait and see
10 what the content is in the case, and that's -- we usually
11 try to go through that.
12 Ladies and gentlemen, I'm going to need to tell
13 you a little bit about the case, because the government is
14 always -- in these criminal cases is always the party that
15 goes first, and it is the government, and before we do
16 that, though, I'm going to go to Mr. Vedder, do you think
17 you should automatically believe the government because
18 they are the government?
19 PROSPECTIVE JUROR: No, sir.
20 THE COURT: Okay. Now, do you have times in
21 your life where you have not agreed with the government on
22 things?
23 PROSPECTIVE JUROR: I spent 24 years in the
24 military, sir.
25 THE COURT: You always agreed with the
VOIR DIRE OF THE JURY
25
1 government, is that right? But now -- you're retired now,
2 right?
3 PROSPECTIVE JUROR: Yes, sir.
4 THE COURT: So now you can disagree with them
5 if you want to.
6 PROSPECTIVE JUROR: Yes.
7 THE COURT: All right. Would you hesitate to
8 disagree with the government if you thought that the
9 evidence, which is what we have been talking about all the
10 time, the way we have to decide this case, said that you
11 didn't believe the government theory? Now, it's not a
12 matter of personally -- the lawyers don't know anything
13 personally in the case, so it's not a matter of believing
14 or disbelieving one of the attorneys, but will you decide
15 this case solely on the evidence and not decide it for the
16 government just because it is the government?
17 PROSPECTIVE JUROR: Strictly on the evidence,
18 sir.
19 THE COURT: Right. And you see the importance,
20 everybody has got to be able to do that.
21 Now, hand that to Mr. Scott. Mr. Scott, have
22 you ever had a disagreement with anybody in government?
23 Maybe not.
24 PROSPECTIVE JUROR: I worked 31 years for the
25 VA Hospital.
VOIR DIRE OF THE JURY
26
1 THE COURT: For the VA Hospital?
2 PROSPECTIVE JUROR: Yes.
3 THE COURT: Are you retired now?
4 PROSPECTIVE JUROR: Well, on occasion, I kind
5 of had a small problem.
6 THE COURT: Okay. Are you retired -- you're
7 retired?
8 PROSPECTIVE JUROR: Because of that.
9 THE COURT: We can talk about it if we need to.
10 Does that mean that you're -- since you worked for the VA
11 for a long time, actually longer than Mr. Vedder was in --
12 which branch of the service were you in, Navy, Mr. Vedder?
13 Which branch of the service were you in?
14 PROSPECTIVE JUROR: Army.
15 THE COURT: Army. Okay, Army.
16 And we have got the VA. Mr. Scott, are you
17 going to, again, just like Mr. Vedder, be able to decide
18 the case based on the evidence and not be inclined to just
19 agree with the government, which, of course, you worked
20 for the government also all these years?
21 PROSPECTIVE JUROR: Yes, I will be able to.
22 THE COURT: If the government does not prove
23 the case beyond a reasonable doubt, you understand that
24 you have to decide for the defendant?
25 PROSPECTIVE JUROR: (Nods head up and down).
VOIR DIRE OF THE JURY
27
1 THE COURT: Okay. That's right.
2 All right. And then we go to Ms. Starnes. Ms.
3 Starnes, who do you work for?
4 PROSPECTIVE JUROR: Medical doctors.
5 THE COURT: Okay. Physicians. Which group?
6 PROSPECTIVE JUROR: Raleigh Cordova Medical
7 Group.
8 THE COURT: Okay. Well, do you have any
9 problem with the fact that you might have to disagree --
10 well, you have no obligation to agree with the position of
11 the government, just because it is the government; does
12 that make sense to you?
13 PROSPECTIVE JUROR: Yes, sir.
14 THE COURT: Okay. And if Mr. Murphy presents
15 proof beyond a reasonable doubt on the issues in this
16 case, then, of course, you have to find the defendant
17 guilty, but if they fail to do that, you have to find the
18 defendant not guilty. Is that -- is that something you
19 can live with?
20 PROSPECTIVE JUROR: Yes.
21 THE COURT: Okay. You now understand we're
22 going to decide this case solely on the case, not on those
23 other things we shouldn't consider, and we're going to be
24 that kind of juror that we have all outlined here today.
25 I'm going to hand it back to Mr. Smith. I'm
VOIR DIRE OF THE JURY
28
1 going to ask -- you said you need to be a good listener in
2 the case. Do you agree -- one thing we didn't talk about
3 is a person has to be very patient in deciding the case
4 because you have to wait until the end of all the
5 evidence. You can't decide the case as you go along. Can
6 you do that in this case? You have to wait until you hear
7 it all, and then you hear Mr. Murphy's final argument and
8 you hear Mr. Bernhoft's final argument, and then you get
9 my instructions on the law, and then you decide the case,
10 can you wait that long? You have got to wait a long time
11 in these cases.
12 PROSPECTIVE JUROR: Yes, Your Honor, you have
13 to.
14 THE COURT: Absolutely, because you don't know
15 all the evidence until you've weighed it and heard
16 everything. If you decide it based on the first witness,
17 well, that would just be fundamentally unfair.
18 All right. Well, I'm going to tell you a
19 little bit about the charges in the case, and then I'm
20 going to let the lawyers ask some questions in the matter.
21 I am going to -- anybody ever had a dispute with the IRS?
22 Or y'all just happily pay your taxes? All right. You
23 know, I do want you to tell me later on if you have had a
24 dispute with the Internal Revenue Service or something
25 like that, it's relevant. It doesn't mean that you can't
VOIR DIRE OF THE JURY
29
1 be a good juror, in fact, you might be a better juror for
2 it, but it's something we would want to know about. I'm
3 going to tell you a couple of things. There are -- there
4 is more than one count in this indictment and there's
5 going to be some critical language. I'm going to read the
6 indictment one time right now. I may refer back to it
7 later on and refer back to portions of the indictment; and
8 at the end of the case, you will get a copy of the
9 indictment, you'll get a verdict form, and you'll get a
10 written set of instructions as well as oral instructions
11 which I'm required to give you.
12 Now, the fact that somebody has been indicted
13 does not mean anything about their guilt or innocence.
14 It's simply a way of telling you what the charges are. If
15 we didn't have this mechanism, the defendant would have no
16 way to know how to prepare to confront the charges at
17 trial, so it's a matter of fairness to a defendant. It is
18 not -- and it's a matter of notice to you and me as to the
19 nature of the charges, but it is not evidence at all.
20 Now, is the fact that somebody has been
21 indicted, Mr. Smith, something that would cause you to
22 start to make up your mind -- and I think it's -- well,
23 Ms. Vickers, I'll ask you, is it something that would
24 cause you making up your mind, somebody has been indicted,
25 they must have done something wrong?
VOIR DIRE OF THE JURY
30
1 PROSPECTIVE JUROR: I think that's a natural
2 thing to -- if they're there, that possibly they have.
3 THE COURT: But you remember when -- it's
4 totally inappropriate. Does it seem also possible to go
5 back to neutral and say that's totally inappropriate to
6 give that any weight at all?
7 PROSPECTIVE JUROR: Yes, sir. And your last
8 question, let me say, even though I haven't had any
9 personal whatever with the IRS, but I have worked in an
10 accounting office 18 years for a CPA firm that had
11 interaction, and because of this, I know a lot of times
12 people get put in those situations and they're not guilty.
13 THE COURT: Right. And I assume -- I have
14 never worked in a CPA office, but I will accept your word
15 on that.
16 PROSPECTIVE JUROR: Yeah.
17 THE COURT: The point being, though, that
18 everybody starts out with a clean slate. Nobody has any
19 black marks on it, you don't get a black mark on it or a
20 negative mark on it for having been charged with an
21 indictment. You're entitled to a jury that will not start
22 out with preconceived notions about your guilt, or for
23 that matter, your innocence. Well, they have to have a
24 preconceived notion about your innocence, you're innocent
25 until proven guilty. They start out, this person is
VOIR DIRE OF THE JURY
31
1 innocent, and the government has to prove beyond a
2 reasonable doubt that they're guilty.
3 All right. Let me tell you -- I'm also going
4 to tell you that there are six charges in this case --
5 counts, and the number of counts is also not important.
6 You can't say, well, had it been one, I wouldn't have been
7 bothered, but there's six. Otherwise, how would the
8 government always assure a conviction, Mr. Smith, if the
9 number of counts made any difference? They would just
10 charge with you a bunch of counts, wouldn't they?
11 PROSPECTIVE JUROR: Yes, sir.
12 THE COURT: Right. And that would not be a
13 fair way for our system to proceed. So that -- we know
14 that on each count, a person is presumed innocent, and the
15 government has to prove that count, and the facts that
16 support that count beyond a reasonable doubt even. If
17 they prove another count beyond a reasonable doubt, that
18 still doesn't prove that particular point. So each one is
19 considered separately and independently.
20 Okay. Well, this is what the indictment says.
21 Count 1. That during the calendar year 1996, the
22 defendant, Vernice B. Kuglin.
23 MR. BECRAFT: Kuglin, Your Honor.
24 THE COURT: Kuglin. I'm going to try to get
25 that right. Ms. Kuglin had and received taxable income in
VOIR DIRE OF THE JURY
32
1 the sum of approximately $162,883.75, that well knowing
2 and believing the foregoing facts, the defendant on or
3 about April 15th of 1997, in the Western District of
4 Tennessee, did un-- did willfully attempt to evade and
5 defeat said income tax due and owing by her to the United
6 States of America for said calendar year by failing to
7 make an income tax return on or before April 15, 1997, as
8 required by law, to any proper officer of the Internal
9 Revenue Service and by failing to pay the Internal Revenue
10 Service said income tax, in violation of Title 26, United
11 States Code, Section 7201.
12 Count 2. That during the calendar year 1997,
13 the defendant, Vernice B. Kuglin, had and received taxable
14 income in the sum of approximately $147,999.60, that well
15 knowing and believing the foregoing facts, the defendant
16 on or about April 15, 1998, in the Western District of
17 Tennessee, did willfully attempt to evade and defeat the
18 said income tax due and owing by her to the United States
19 of America for said calendar year by failing to make an
20 income tax return on or before April 15, 1998, as required
21 by law, to any proper officer of the Internal Revenue
22 Service by failing to pay the Internal Revenue Service an
23 income tax, and by filing a false recall Form W-4 in 1997,
24 in violation of Title 26, United States Code, Section
25 7201.
VOIR DIRE OF THE JURY
33
1 Count 3. That during the calendar year, 1998,
2 the defendant, Vernice B. Kuglin, had and received taxable
3 income in the sum of approximately $137,197.93, that well
4 knowing and believing the foregoing facts, the defendant
5 on or about April 15th of 1999, in the Western District of
6 Tennessee, did willfully attempt to evade and defeat the
7 said income tax due and owing by her to the United States
8 of America for said calendar year by failing to make an
9 income tax return on or before April 15, 1999, as required
10 by law, to any proper officer of the Internal Revenue
11 Service, by failing to pay the Internal Revenue Service
12 said income tax, and by filing a false W-4 -- Form W-4 in
13 1998, in violation of Title 26, United States Code,
14 Section 7201.
15 Count 4. That during the calendar year 1999,
16 the defendant, Vernice B. Kuglin, had and received taxable
17 income in the sum of approximately $146,571.66, that well
18 knowing and believing the foregoing facts, the defendant
19 on or about April 15, 2000, in the Western District of
20 Tennessee, did willfully attempt to evade and defeat the
21 said income tax due and owing by her to the United States
22 of America for said calendar year by failing to make an
23 income tax return on or before April 17, 2000, as required
24 by law, to any proper officer of the Internal Revenue
25 Service, by failing to pay the Internal Revenue Service
VOIR DIRE OF THE JURY
34
1 said income tax, and by filing a false Form W-4 in 1999,
2 in violation of Title 26, United States Code, Section
3 7201.
4 Count 5. That during the calendar 2000, the
5 defendant, Vernice B. Kuglin, had and received taxable
6 income in the sum of approximately $164,224.28, that well
7 knowing and believing the foregoing facts, the defendant
8 on or about April 15, of 2000, in the Western District of
9 Tennessee, did willfully attempt to evade and defeat the
10 said income tax due and owing by her to the United States
11 of America for said calendar year by failing to make an
12 income tax return on or before April 16, 2001, as required
13 by law, to any proper officer of the Internal Revenue
14 Service, by failing to pay the Internal Revenue Service
15 said income tax and by filing a false Form W-4 in 2000, in
16 violation of Title 26, United States Code, section 7201.
17 Count 6. That during the calendar year 2001,
18 the defendant, Vernice B. Kuglin, had and received taxable
19 income in the sum of approximately $161,189.07, that well
20 knowing and believing the foregoing facts, the defendant
21 on or about April 15th of 2002, in the Western District of
22 Tennessee, did willfully attempt to evade and defeat the
23 said income tax due and owing by her to the United States
24 of America for said calendar year by failing to make an
25 income tax return on or before April 15, 2002, as required
VOIR DIRE OF THE JURY
35
1 by law, to any proper officer of the Internal Revenue
2 Service by failing to pay the Internal Revenue Service
3 said income tax and by filing a false Form W-4 in 2001, in
4 violation of Title 26, United States Code, Section 7201.
5 Well, six counts, basically, saying pretty much
6 the same thing, not exactly the same thing each time.
7 Sometimes something involving a Form W-4, sometimes not,
8 for the years '96, '97, '98, '99, 2000, 2001.
9 Well, now, you all agreed that you wouldn't
10 decide the case without hearing the evidence, and I just
11 read you the indictment and now you're sitting there
12 thinking some things, right? And the important thing to
13 remember about an indictment is that it is just a charge.
14 It's awfully hard to do, because the inclination of every
15 human being is to do what? Let's see, I'm going to
16 mispronounce it, Mr. Stovall -- it's Jeffrey?
17 PROSPECTIVE JUROR: Stovall.
18 THE COURT: I'm sorry, Mr. Stovall. What's the
19 natural inclination after hearing six somewhat repetitive
20 charges for different years on a failure to file income
21 tax return case -- I'm generally characterizing it that
22 way, what is the natural inclination for most people to
23 do?
24 PROSPECTIVE JUROR: Prejudge.
25 THE COURT: Say, my goodness, you know -- and
VOIR DIRE OF THE JURY
36
1 so, I'm going to go to your colleague right next to you,
2 our senior member of the panel, Mr. Viverette, and how do
3 you not prejudge these charges? How do you avoid -- is it
4 hard to do, hard not to prejudge?
5 PROSPECTIVE JUROR: Yes, sir. Yes, it is.
6 THE COURT: It's hard.
7 PROSPECTIVE JUROR: With the amount of charges,
8 of course.
9 THE COURT: It's a hard thing to do. You know,
10 if it is one charge, you sort of feel one way. I warned
11 you about that, you know, one easier to deal with, six a
12 little harder, and yet that is why it is so important. So
13 how are we going to overcome this sort of hole that, you
14 know, I dug? I got you out of the hole and we all started
15 out nice and even, and then I read you the indictment, how
16 do we get out of that hole and get back to where we're
17 supposed to be, which is requiring the government to prove
18 its case beyond a reasonable doubt and giving the
19 defendant the presumption of innocence that the law
20 requires, how do we do that?
21 PROSPECTIVE JUROR: Listen to the evidence and
22 try to judge, you know, from the evidence.
23 THE COURT: I mean that's a great answer.
24 That's the answer. I mean you just say, hey, I heard
25 something, and it's not evidence. I heard something, and
VOIR DIRE OF THE JURY
37
1 it's not evidence, and you get your antenna tuned up
2 because you know what you're going to have to listen for,
3 but you haven't heard any evidence yet. Exactly.
4 Exactly. Do you think people can really do that, Ms.
5 Saul?
6 PROSPECTIVE JUROR: I think that they can. In
7 some cases, it might be a little difficult, but I think
8 that they could if they just let -- left their emotions
9 out and just weighed the evidence and the facts of the
10 case to seek the truth and come to a good conclusion.
11 THE COURT: I think you're right, I think it is
12 a little -- I think it's fairly difficult, but we got to
13 do it, we got to do it in this case.
14 Mr. Gupta, can you do that in this case, can
15 you start out on an even -- you know, this person is
16 presumed innocent, they're innocent, there's nothing on
17 that slate? I don't have any bad marks written on there,
18 can you do that in this case?
19 PROSPECTIVE JUROR: Yes, sir.
20 THE COURT: Okay. How did you go through that
21 process of eliminating hearing that indictment, sort of
22 the effect of hearing charges, how do you deal with that?
23 PROSPECTIVE JUROR: Well, basically, I believe
24 that the defendant is going to try to present a case from
25 his opinion exactly all the details, whatever it is, and
VOIR DIRE OF THE JURY
38
1 the facts and whatnot, and hopefully --
2 THE COURT: I'm sorry, go ahead.
3 PROSPECTIVE JUROR: And, hopefully -- we have
4 to hear all those facts and keep on hearing those and no
5 judgment until the case -- all the facts are heard.
6 THE COURT: Exactly. Now, you have raised a
7 really important point, and I'm glad you did, because the
8 interesting thing about our system, and it's different
9 from many systems, it is different from the Belgium system
10 and the French system and parts of the German system, it
11 depends on what system you're in, is that the defendant
12 actually never has to present anything at all. The
13 government always has the burden of proof, and while there
14 may be things that they present, there may not be things
15 that they present, the government always has the burden of
16 proving each count beyond a reasonable doubt. So we have
17 got to be a little careful there. I'm going to fine tune
18 your response just a little and say that every person is
19 entitled to be represented. The defendant is certainly
20 represented in the case, but she is not required to put
21 any proof on, is that -- is that going to make it
22 difficult for you, Ms. Vasser, in terms of how you listen
23 to the case? She is right in front of you. She is right
24 there in front of you. The fact that you know that she is
25 not obligated to present any proof. Now, they may -- they
VOIR DIRE OF THE JURY
39
1 may tell you they will, but they are never obligated to,
2 is it still possible for you to keep that frame of mind,
3 innocent until proven guilty --
4 PROSPECTIVE JUROR: Yes.
5 THE COURT: -- knowing that? Does it make
6 sense that we don't require defendants to -- we don't
7 require them to testify or give any evidence at all, does
8 that make sense?
9 PROSPECTIVE JUROR: Yes, it does.
10 THE COURT: Because it would be a very coercive
11 system. The system would be very coercive if we could
12 make people get up there and testify, it would take the
13 burden partly away from the government, and that would be
14 wrong. I mean the government has the burden no matter how
15 we look at it, they have the burden of proof.
16 I have done a couple of things. We've gone
17 through what a juror needs to be. I'm going to run down
18 the rest of the list, and make sure everybody -- and then
19 I'm going to tell the schedule. I'm going to see if
20 anybody has got a problem with the schedule. This case is
21 going to take a few days to try. Whether it is three days
22 or four days or five days, it's going to be at least in
23 that range. Never can tell for sure. These are like
24 medical procedures, you know, if they start, they just go
25 until they're over, you can't do anything about shortening
VOIR DIRE OF THE JURY
40
1 them up.
2 But let's go to Mr. White, Mr. White, having
3 heard everything that you have heard, now do you think you
4 can be a fair and impartial juror in this case and try
5 this case solely on the evidence, or is there something
6 you need to tell me about now either now or in person at
7 the side bar about why you might not be able to do that?
8 PROSPECTIVE JUROR: I believe I can be fair and
9 impartial in this case.
10 THE COURT: All right. And let's ask Mr.
11 Spurlin, can you be fair and impartial in this case, try
12 the case as we've talked about how to try it?
13 PROSPECTIVE JUROR: No, sir.
14 THE COURT: And Mr. Salaam, can you do that?
15 PROSPECTIVE JUROR: Yes, I can.
16 THE COURT: Mr. Vedder, can do you that?
17 PROSPECTIVE JUROR: Yes, sir.
18 THE COURT: Mr. Scott, can you do that? You
19 want to talk to me at side bar?
20 PROSPECTIVE JUROR: Kind of.
21 THE COURT: I can tell that. We'll talk up
22 here in just a second.
23 Let me ask Ms. Starnes, Ms. Starnes, can do you
24 that in this case?
25 PROSPECTIVE JUROR: Yes, sir.
VOIR DIRE OF THE JURY
41
1 THE COURT: And, Mr. Smith, can you do that?
2 PROSPECTIVE JUROR: Yes, I could.
3 THE COURT: Ms. Vickers, can you do that?
4 PROSPECTIVE JUROR: Yes, sir.
5 THE COURT: And, Mr. Smith, can you do that?
6 PROSPECTIVE JUROR: Yes, sir.
7 THE COURT: And, Mr. Stovall, anything you need
8 to talk to me about or can you do that?
9 PROSPECTIVE JUROR: Yes, sir.
10 THE COURT: Mr. Viverrette, can you do that?
11 PROSPECTIVE JUROR: Yes.
12 THE COURT: And I think we have asked Ms. Saul,
13 I will ask you again, can you do that?
14 PROSPECTIVE JUROR: Yes, sir.
15 THE COURT: And I'm going to ask Mr. Gupta
16 again just to make sure we have got everybody.
17 PROSPECTIVE JUROR: Yes, I can do that.
18 THE COURT: All right. Let me tell you a
19 couple of things, and then I'm going to talk briefly with
20 Mr. Scott at the side bar. The case will be tried on a
21 schedule, we will usually start in here about 9:00
22 o'clock. It may be 9:30, it depends on the schedule for
23 each morning. We usually have some things earlier, but as
24 the case starts, we try to condense them. On Monday,
25 Wednesday, Friday, we take a longer lunch break, it is
VOIR DIRE OF THE JURY
42
1 usually from 12:30 until 2:00. That won't seem -- once
2 you have taken that long lunch break, you will appreciate
3 that that is a good break for us, but then on Tuesday,
4 Thursday, we take a short lunch break, it is an hour lunch
5 break. It is actually a pretty good schedule, it's pretty
6 tight. We will stay in this case until a little after
7 5:00 each day. We won't stay real late. This is not --
8 just like, frankly, all your comments were really good,
9 and attentiveness and being able to focus on the case are
10 the type of things that require we not keep you just for
11 hours and hours. You have to be able to have a reasonable
12 day, and we recognize that, so that's what we'll do. I
13 expect the case to be a three to five-day case, I could be
14 wrong. It could be a two-day case, which isn't likely,
15 but it could also be a six-day case, which probably isn't
16 likely either, but I can't tell you in advance. So you
17 have to be available for that period of time. This is
18 Monday, we will go through Friday, and we can be back next
19 Monday, if we need to. That's not a problem. I expect
20 the proof will probably be over in four days, though, that
21 would be my absolute guess. I mean by Thursday. Mr.
22 Murphy, the government will probably end a little before
23 that?
24 MR. MURPHY: Judge, I anticipate that.
25 THE COURT: We never ask the defense how long
VOIR DIRE OF THE JURY
43
1 the proof is going to be, you know, because they're not
2 required to put any proof on, because it's not fair to
3 them. If you want to tell us, it's okay, but we don't
4 really ask.
5 MR. BECRAFT: Your Honor, I am going to try to
6 finish, if Mr. Murphy finishes Tuesday afternoon or
7 Wednesday morning, I hope to have the case concluded, at
8 latest, by noon on Thursday, the proof.
9 THE COURT: So that's going to be our
10 objective. That's good. We all kind of know where we are
11 on the case. The reason I'm telling you those things is
12 that if you have got a nonrefundable trip and you're
13 supposed to be on vacation next Monday, it's not the case
14 for you. You need to be available that long, probably
15 won't be that long, but if you have got a commitment that
16 you have to meet, then this is not the case for you. I
17 think they have given you the best estimate. That's the
18 best they can do. Anybody who has a problem on the
19 schedule?
20 Okay. Well, I'm going to have -- I'm going
21 to -- Mr. Scott will be our illustration about coming to
22 the side bar. I'm going to have you come around to side
23 bar. If you can just walk in front, it's fine. And we
24 hit some white noise then, so that -- let you have a
25 private conversation at the side.
VOIR DIRE OF THE JURY
44
1 (The following proceedings had at side-bar
2 bench.)
3 PROSPECTIVE JUROR: See, right now, I'm in
4 dispute with Internal Revenue, plus my wife is an
5 employee, and she used to work as Internal Revenue
6 employee.
7 THE COURT: You're in dispute with the IRS?
8 PROSPECTIVE JUROR: Yes, kind of. I'm paying
9 them back. But, see, my wife, she works for IRS.
10 THE COURT: Do you think you should not a juror
11 in this case because of that?
12 PROSPECTIVE JUROR: Well, it would kind of --
13 you know.
14 THE COURT: Make you feel --
15 PROSPECTIVE JUROR: Feel a little
16 uncomfortable.
17 THE COURT: Any objection to allowing Mr. Scott
18 to be excused?
19 MR. MURPHY: Judge, I don't have any.
20 MR. BECRAFT: No.
21 THE COURT: We're going to let you be excused.
22 Thanks for coming and telling me about it. Thank you.
23 (The following proceedings were had in open
24 court.)
25 THE COURT: We're going to let Mr. Scott be
VOIR DIRE OF THE JURY
45
1 excused, and we will draw another name. Yes, sir.
2 PROSPECTIVE JUROR: Can I have -- because I
3 have a medical condition, can I have some question that we
4 ask?
5 THE COURT: Sure. Why don't you -- you want to
6 talk to me at side bar or you want to tell me -- you can
7 come around to side bar.
8 PROSPECTIVE JUROR: Can I come around to side
9 bar?
10 THE COURT: Yes. We're going to call that
11 other name right now so we can fill that seat so the
12 lawyers will know who will be seat six.
13 THE CLERK: Marlow Smith.
14 THE COURT: Yes, sir, if you will come around
15 over here.
16 (The following proceedings had at side-bar
17 bench.)
18 THE COURT: Mr. Gupta, yes, sir.
19 PROSPECTIVE JUROR: I'm a diabetic patient,
20 insulin dependent. Sometimes things can happen without my
21 control. I am not sure when the things will be happening.
22 I take shots.
23 THE COURT: Let me ask this.
24 PROSPECTIVE JUROR: Okay.
25 THE COURT: How often do you take a shot?
VOIR DIRE OF THE JURY
46
1 PROSPECTIVE JUROR: In the a.m., in the
2 afternoon, and in the p.m., three times.
3 THE COURT: Okay. And did you bring insulin
4 with you today?
5 PROSPECTIVE JUROR: I have not brought insulin
6 with me today, I did not think that I was going to need it
7 for the lunch time today because sometimes I can manage
8 without that.
9 THE COURT: Okay. Will you bring insulin just
10 in case you need it? We will always take a --
11 PROSPECTIVE JUROR: Yeah.
12 THE COURT: You administer your own shot?
13 PROSPECTIVE JUROR: Yes, I do.
14 THE COURT: Okay. How are you feeling today?
15 PROSPECTIVE JUROR: Fine.
16 THE COURT: Okay. We have a general policy
17 that if somebody has a condition that can be managed, we
18 do not want to exclude them from the panel.
19 PROSPECTIVE JUROR: I see.
20 THE COURT: If you think it's -- that you
21 can't -- cannot serve, if you think it's going to be a
22 problem, then I would want you to tell me, but we are
23 going to try to help you out if there is any --
24 PROSPECTIVE JUROR: I will prefer because it's
25 just developed that condition the last few months, six
VOIR DIRE OF THE JURY
47
1 months, but I've been a diabetic for the last 25 years. I
2 can handle it, don't get me wrong, but I may not be sure,
3 and I would just feel much comfortable if I don't have to
4 do that.
5 THE COURT: If you don't have to serve on the
6 jury at this time?
7 PROSPECTIVE JUROR: I'm going to be honest with
8 you.
9 THE COURT: Okay. You do not use the insulin
10 pump, but you use the shots?
11 PROSPECTIVE JUROR: I use the shots.
12 THE COURT: Mr. Murphy, I'm inclined if
13 somebody thinks it's a problem --
14 MR. MURPHY: Judge, I have no objection.
15 MR. BECRAFT: None, Your Honor.
16 THE COURT: We ought to let you be excused. I
17 understand it has gotten a little more difficult lately?
18 PROSPECTIVE JUROR: Yes.
19 THE COURT: Is that right?
20 PROSPECTIVE JUROR: Yes.
21 THE COURT: We're going to let you be excused.
22 PROSPECTIVE JUROR: Thank you very much.
23 (The following proceedings were had in open
24 court.)
25 THE COURT: We're going to allow Mr. Gupta to
VOIR DIRE OF THE JURY
48
1 be excused. We will seat somebody else in seat number
2 eight.
3 THE CLERK: Barbara Snodgrass.
4 THE COURT: Mr. Smith, how are you?
5 PROSPECTIVE JUROR: Doing fine.
6 THE COURT: Been in any big fights with the
7 IRS?
8 PROSPECTIVE JUROR: No, sir.
9 THE COURT: All right.
10 PROSPECTIVE JUROR: Don't make enough money.
11 THE COURT: Well, I think a lot of -- we all
12 feel that way sometimes. Let me ask this -- you raise a
13 great point, though, you really do. We talked about ways
14 people can discriminate against folks. We talked about
15 people of different gender, we talked about appearance
16 because that was really important and a really obvious
17 thing to talk about. We talked about -- let's see, Mr.
18 Stovall mentioned race and religion, Mr. Viverette
19 mentioned age, Ms. Saul, gender, Mr. Gupta had mentioned
20 national origin, different things. Do you think people
21 can treat people differently because of their economic
22 status?
23 PROSPECTIVE JUROR: I'm sure it does happen.
24 THE COURT: Would that be right in a court of
25 law for somebody to be treated differently because of
VOIR DIRE OF THE JURY
49
1 their economic status?
2 PROSPECTIVE JUROR: It's not right anywhere.
3 THE COURT: It's not. And that can be both --
4 that can be -- you think it can apply to both people who
5 make more money and people who make less money?
6 PROSPECTIVE JUROR: I'm sure it can.
7 THE COURT: It could be?
8 PROSPECTIVE JUROR: And I do in my life.
9 THE COURT: Maybe I didn't say that very well.
10 Would it be right to treat -- to hold the government to a
11 lower standard in this case for Ms. Kuglin because she has
12 got some fairly large -- pretty large numbers associated
13 with those income years, would that be wrong just to say,
14 well, she made a bunch of money, you know, she must have
15 done wrong, would that be fair?
16 PROSPECTIVE JUROR: No, Huh-uh.
17 THE COURT: Okay. And that's the same kind of
18 preconceived notion, the idea that we're always concerned
19 about is -- if Bill Gates was here and his income, I don't
20 know what he makes, you know, Bill Gates was here and -- I
21 don't know what he makes, I have no idea, and he made a
22 billion dollars, he makes a lot of money, I don't know
23 what he makes, he makes enough money to last us for
24 awhile, would it be fair to convict him just because he
25 made a billion dollars?
VOIR DIRE OF THE JURY
50
1 PROSPECTIVE JUROR: No, it wouldn't.
2 THE COURT: Right. And that is an important
3 concept here, just -- it's the same kind of preconceived
4 notion or anything else. The government's burden doesn't
5 change because of your income level. In other words, if
6 you make $50,000, if you make -- you know, $24,000, you
7 have to pay income tax just like everybody else, you know.
8 In fact, I can't remember the scale, but it varies, it
9 varies a good bit. If you make $50,000, you have to pay
10 income tax, if you make a hundred thousand dollars, you
11 have to pay income tax. And the obligation to file that
12 tax return doesn't change because of your income. I'm
13 saying this in general, I know that there may be some
14 exceptions there, but as a general proposition, you got to
15 file. Anybody -- you know, I'm not going to ask everybody
16 now, I'm going to tell you, don't raise your hand, but in
17 the last five years, have each of you filed an income tax
18 return each year? I'm not going to ask too many questions
19 because somebody may not be old enough to have paid income
20 taxes in a couple of those years, and there's some income
21 limits on that too, but most everybody up there has filed
22 an income tax return, at least one in the last couple of
23 years. Now, everybody on the -- I can't remember if
24 you're a student if you have to file one or not. Do you
25 have to file one if you're a student, Mr. Murphy?
VOIR DIRE OF THE JURY
51
1 MR. MURPHY: Judge, it would depend on your
2 income.
3 THE COURT: It would depend on your income.
4 But by and large, most everybody up there has probably
5 filed an income tax return. So anybody got to rule
6 against the defendant because she looks like she made over
7 a hundred thousand dollars each year?
8 Okay. What about that, Ms. Vasser, you going
9 to rule against her -- you say, well, she must be guilty,
10 they say she made over a hundred thousand dollars each
11 year. We will pass it down to Ms. Vasser.
12 PROSPECTIVE JUROR: No.
13 THE COURT: Okay. And that's important. And,
14 Mr. White, are you going to rule against her just because
15 she seems to have a pretty good size number beside her
16 name?
17 PROSPECTIVE JUROR: No, sir, it should not make
18 a difference.
19 THE COURT: It really shouldn't, that's not
20 what the government is trying to prove there. They're
21 going to have to prove some numbers here, but that's not
22 the key thing.
23 What about that, Mr. Spurlin, are you going to
24 say, well, you know, it would be one thing if she made --
25 I don't know, if she had -- if she was supposed to file an
VOIR DIRE OF THE JURY
52
1 income tax return, but her income had been $18,000, but
2 I'm going to treat her differently because I believe her
3 income was in excess of a hundred thousand dollars, would
4 that be wrong?
5 PROSPECTIVE JUROR: To treat her different,
6 yes, it would be wrong.
7 THE COURT: It would be wrong, because this
8 otherwise -- Mr. Murphy, this is basically a failure to
9 file case, I don't want to misstate it.
10 MR. MURPHY: Well, it is an evasion case, Your
11 Honor.
12 THE COURT: It's an evasion.
13 MR. MURPHY: And as part of that scheme, we're
14 alleging failure to file and false W-4.
15 THE COURT: They're saying she knew she was
16 supposed to file and she didn't file, and she did some
17 things on some occasions to not file, to avoid it. But we
18 can't just look at the number and reach a conclusion. Any
19 problem with that, Mr. Salaam?
20 PROSPECTIVE JUROR: No. This is an evasion
21 case under 7201, so it doesn't have anything to do with
22 the amount, it's a legitimacy of an evasion.
23 THE COURT: Boy, you have got it down, thank
24 you. We just got to hear the proof on that.
25 Mr. Vedder, can you -- are you going to be
VOIR DIRE OF THE JURY
53
1 influenced by that number?
2 PROSPECTIVE JUROR: No. Numbers don't make any
3 difference, sir.
4 THE COURT: Okay. We're going to look at the
5 actual proof on the issues that are going to be before the
6 court.
7 We have already asked Mr. Smith. Mr. Smith,
8 what do you do?
9 PROSPECTIVE JUROR: Right now, I'm a golf pro?
10 THE COURT: You're a golf pro?
11 PROSPECTIVE JUROR: Yes, ma'am -- yes, sir.
12 THE COURT: What happened to the golf course
13 you usually work with the storm?
14 PROSPECTIVE JUROR: Well, only one limb fell
15 off of one tree.
16 THE COURT: Where you are a golf pro?
17 PROSPECTIVE JUROR: Southaven Golf Center.
18 THE COURT: Okay. You were lucky, you were
19 lucky.
20 Ms. Starnes, is that number going to be
21 something that's going to overwhelm your ability to decide
22 the issues that are really going to be before us, the
23 evasion question?
24 PROSPECTIVE JUROR: No.
25 THE COURT: Mr. Smith, are you going to be able
VOIR DIRE OF THE JURY
54
1 to treat -- you know, we take an oath, a lot of us do, to
2 treat the wealthy -- the rich and poor alike is what it
3 says on a lot of these things, and I don't know if the
4 plaintiff will be offended if we said rich, because it's a
5 very relative thing, but can we treat everybody the same
6 in this case and decide the issues in this case
7 irrespective of the numbers involved, pretty much?
8 PROSPECTIVE JUROR: Yes, I could, Your Honor.
9 It will be based on the evidence.
10 THE COURT: All right. Ms. Vickers, is that
11 okay with you?
12 PROSPECTIVE JUROR: That's fine. It's not
13 about the money, but the evasion.
14 THE COURT: And, Mr. Smith, is that okay with
15 you?
16 PROSPECTIVE JUROR: Yes, sir.
17 THE COURT: And Mr. Stovall?
18 PROSPECTIVE JUROR: Yes, sir.
19 THE COURT: And Mr. Viverette?
20 PROSPECTIVE JUROR: I agree it's the evasion
21 for not filing taxes.
22 THE COURT: Exactly. And Ms. Saul?
23 PROSPECTIVE JUROR: Yes, sir.
24 THE COURT: Okay. You final -- we have got
25 down to our new juror, now, it's Ms. Snodgrass, is that
VOIR DIRE OF THE JURY
55
1 right?
2 PROSPECTIVE JUROR: Yes.
3 THE COURT: How are you today?
4 PROSPECTIVE JUROR: I'm fine, thank you.
5 THE COURT: What do you do?
6 PROSPECTIVE JUROR: Flight attendant, and I
7 also run an animal rescue organization.
8 THE COURT: What kind of animals?
9 PROSPECTIVE JUROR: Dogs and case.
10 THE COURT: Dogs and cats. There's one that
11 just does dogs. Is it Mews? What does Mews do?
12 PROSPECTIVE JUROR: House of Mews does cats.
13 THE COURT: They do cats?
14 PROSPECTIVE JUROR: Uh-huh.
15 THE COURT: But you do dogs and cats?
16 PROSPECTIVE JUROR: We do dogs and cats.
17 THE COURT: Which -- where?
18 PROSPECTIVE JUROR: Here in Memphis.
19 THE COURT: On Central?
20 PROSPECTIVE JUROR: No, we do it out of our
21 homes. We have foster homes. People who will take them
22 into their homes and keep them.
23 THE COURT: Okay. All right. Well, you've
24 heard what everybody said about qualities of a good juror?
25 PROSPECTIVE JUROR: Yes, I have.
VOIR DIRE OF THE JURY
56
1 THE COURT: Long list there. Did you agree
2 with those?
3 PROSPECTIVE JUROR: I did.
4 THE COURT: Okay. And what about the prejudice
5 questions and prejudging questions, any problem with the
6 fact that we cannot prejudge the case, any problem with
7 those?
8 PROSPECTIVE JUROR: I don't have a problem with
9 that, no.
10 THE COURT: Can you give the defendant the
11 presumption of innocence that the law requires? And you
12 heard me read the charges, so that was one of the things
13 we went through this process about. Can you give the
14 defendant the presumption of innocence that the law
15 requires?
16 PROSPECTIVE JUROR: I feel the government is
17 going to have to show the reason, so, yes.
18 THE COURT: But it's a question of being able
19 to give somebody that blank slate.
20 PROSPECTIVE JUROR: Uh-huh.
21 THE COURT: Can she really start out with a
22 blank slate with nothing written on it, even though we
23 have got those charges there, nothing written, no black
24 marks, anything like that?
25 PROSPECTIVE JUROR: Yes.
VOIR DIRE OF THE JURY
57
1 THE COURT: Okay. Mr. Murphy -- and I do have
2 a bunch of other things, but I'm going to let you go
3 ahead.
4 MR. MURPHY: Yes, sir, Your Honor.
5 How are you, ladies and gentlemen, doing today?
6 My name is Joe Murphy, and I'm a prosecutor in the
7 U. S. Attorney's office here in Memphis, and I have got
8 some questions that I would -- or some things that I would
9 like to talk with you about before we begin.
10 Now, this is an income tax evasion case, and if
11 I didn't stand up here and say a lot of people have strong
12 feelings about the IRS and the income tax laws, I would be
13 lying to you.
14 Now, has anybody on the panel had any problems
15 with the IRS? Have you had any audits or anything like
16 that?
17 PROSPECTIVE JUROR: I was audited a number of
18 years ago.
19 MR. MURPHY: All right. As a result of that,
20 do you have any negative feelings about the IRS?
21 PROSPECTIVE JUROR: No.
22 MR. MURPHY: Okay. But you think you were
23 treated fairly throughout the audit process?
24 PROSPECTIVE JUROR: Yes.
25 MR. MURPHY: Okay. Anybody else? Yes, sir.
VOIR DIRE OF THE JURY
58
1 PROSPECTIVE JUROR: We were audited a few years
2 ago also.
3 MR. MURPHY: Okay. And how do you feel about
4 the audit? Do you think you were treated fairly or
5 unfairly?
6 PROSPECTIVE JUROR: Well, after they, you know,
7 checked it over and so forth, they proved that, you know,
8 we had to pay, in other words.
9 MR. MURPHY: So you had to pay some extra tax?
10 PROSPECTIVE JUROR: That's right.
11 MR. MURPHY: Do you think the IRS treated you
12 fairly?
13 PROSPECTIVE JUROR: I suppose so. You know,
14 the change each year, you know, there are certain changes,
15 so forth, but certain things, you know, were deductible,
16 you couldn't deduct it, so it's kind of hard to say, you
17 know, because of the changes, you know, they steady
18 changing what you could deduct.
19 MR. MURPHY: Okay. Can you -- if -- if you end
20 up on the jury in this case, can you put that as -- any
21 feelings you might have as a result of that audit to the
22 side and decide the case based on the facts and the law
23 that the judge gives you?
24 PROSPECTIVE JUROR: I'll do my best.
25 MR. MURPHY: Okay. But do you think you could?
VOIR DIRE OF THE JURY
59
1 Can you take an oath and swear that you can do it?
2 PROSPECTIVE JUROR: I believe so.
3 MR. MURPHY: Okay. Now, that brings us to an
4 important point. Judge McCalla in this case will instruct
5 you, ladies and gentlemen, if you end up on the jury what
6 the law is and what law you have to apply, and he'll
7 define what the crime of income tax evasion is, that sort
8 of thing. Now, does -- and he'll instruct you that you
9 have to apply his law whether you like it or not. Now,
10 does anybody have a problem with that? Do you think you
11 can apply the law whether you agree with it or not? Does
12 anybody have a problem with that? I know it is Monday
13 morning, nobody is talking. Not getting much of a
14 response, but I'm going to take it to mean that nobody has
15 a problem with that if you aren't raising your hands.
16 Okay. Let me say a word about what we're
17 doing. In voir dire, I only know this because the judge
18 told me this, it is old French for speak the truth, and
19 what we're trying to do here -- we're not trying to get a
20 government jury or a defense jury, we're trying to get a
21 fair jury. We're trying to get a jury that has no
22 preconceived notions that are going to affect the way they
23 control the case, and that's why we're asking the
24 questions we do. Do any of you ladies and gentlemen know
25 any of the parties that are seated here before you here
VOIR DIRE OF THE JURY
60
1 today?
2 THE JURY: No.
3 PROSPECTIVE JUROR: She looks familiar. Are
4 you perhaps a real estate agent?
5 THE COURT: I'm sorry, I couldn't hear you.
6 PROSPECTIVE JUROR: She looks familiar. I just
7 asked if she was a real estate agent.
8 THE COURT: Not a real estate agent.
9 MR. BECRAFT: No, Your Honor, probably Mr.
10 Murphy is probably going to ask, but I think it is an
11 important question to ask, she does work. She is a FedEx
12 pilot, Your Honor.
13 THE COURT: Okay. I think that takes real
14 estate agent part out, doesn't it?
15 PROSPECTIVE JUROR: I'm the director of
16 operations at the airport, so perhaps --
17 THE COURT: Do you recognize --
18 PROSPECTIVE JUROR: I may have recognized the
19 face, but I don't know the lady individually.
20 THE COURT: I will let Mr. Murphy ask a couple
21 of more questions about that.
22 MR. MURPHY: Now, the fact that you are
23 operations director at the airport, and the proof may
24 establish that the defendant, Ms. Kuglin, is a FedEx
25 employee, is that going to cause you any problems, are you
VOIR DIRE OF THE JURY
61
1 going to be worried about FedEx being mad at you no matter
2 how you decide the case?
3 PROSPECTIVE JUROR: No.
4 MR. MURPHY: Now, Ms. Vasser, do you also work
5 for FedEx?
6 PROSPECTIVE JUROR: I do.
7 MR. MURPHY: Okay. Is it going to cause you a
8 problem if there's another FedEx employee here?
9 PROSPECTIVE JUROR: No.
10 MR. MURPHY: It's not -- it's not going to
11 influence the way you decide the case?
12 PROSPECTIVE JUROR: No.
13 MR. MURPHY: Okay. Because you understand
14 you're going to have to decide the case on the facts --
15 PROSPECTIVE JUROR: Right.
16 MR. MURPHY: -- that you hear from the witness
17 stand and the law that the judge gives you?
18 PROSPECTIVE JUROR: Yes.
19 MR. MURPHY: Okay. Thank you. Now, do any of
20 you ladies and gentlemen know anything about this case?
21 Has anybody talked the case over with you? Have you heard
22 anything about it from any friends at church, anything
23 like that?
24 Now, does everybody understand that the
25 indictment is just a way to bring this proceeding about,
VOIR DIRE OF THE JURY
62
1 that it's not proof of guilt? Does everybody understand
2 that?
3 PROSPECTIVE JUROR: Yes.
4 MR. MURPHY: Does everybody understand that Ms.
5 Kuglin, as she sits before you today, is presumed to be
6 innocent, do you understand that?
7 PROSPECTIVE JUROR: Yes.
8 MR. MURPHY: Okay. And do you also understand
9 that the government has the obligation of coming forward
10 and proving Ms. Kuglin guilty as charged in the indictment
11 beyond a reasonable doubt, does everybody understand that?
12 PROSPECTIVE JUROR: Yes.
13 MR. MURPHY: Does anybody think that the
14 government should be held to a lesser standard of proof?
15 THE JURY: No.
16 MR. MURPHY: By the same token, does anybody
17 think that the government ought to be held to a higher
18 standard of proof? Do you think we ought to have to prove
19 it beyond any doubt? You think we should have to prove it
20 beyond any doubt?
21 PROSPECTIVE JUROR: Beyond a shadow of a doubt.
22 MR. MURPHY: Now, the judge is going to
23 instruct you that the burden of proof in the case is
24 beyond a reasonable doubt, which is not beyond a shadow of
25 a doubt; is that going to be a problem?
VOIR DIRE OF THE JURY
63
1 THE COURT: One reason for that is there can
2 always be an unreasonable doubt. I mean is Elvis dead? I
3 mean who thinks Elvis is not dead? Elvis is alive. But
4 there are people who will believe that Elvis is -- and I
5 will tell you, my wife was a resident, Elvis is dead,
6 folks, I hate to tell you, you know, he's dead. There are
7 things that people have unreasonable doubts about. We
8 might wish that it wasn't the way it is in the case of
9 somebody like Mr. Presley, but it's not a reasonable
10 doubt. It's not based on reason and common sense. It's
11 really based upon emotion, usually. So beyond a shadow of
12 a doubt is not the standard. You know, that's -- you
13 know, can I prove to you -- I can probably prove to you
14 beyond a shadow of a doubt that Elvis is dead because
15 there's some physical evidence of his not being alive, but
16 for some things we can never prove it beyond all doubt,
17 it's just not possible.
18 I'm sorry, go ahead, Mr. Murphy.
19 MR. MURPHY: Thank you, Judge.
20 But do you understand what the judge is
21 saying --
22 PROSPECTIVE JUROR: Yes.
23 MR. MURPHY: -- beyond a reasonable doubt is
24 the standard that you're going to have to decide the case
25 on, okay?
VOIR DIRE OF THE JURY
64
1 PROSPECTIVE JUROR: Yes.
2 MR. MURPHY: Can everybody give a fair trial to
3 both sides? Can everybody be fair to the defendant? Can
4 everybody be fair to the government?
5 THE JURY: Yes.
6 MR. MURPHY: As usual, ladies and gentlemen,
7 I'm having trouble reading my own writing.
8 Do any of you, ladies and gentlemen, have any
9 family or friends that are involved in law enforcement,
10 work for the Sheriff's Department or federal agents, work
11 for the police department? Yes, sir.
12 PROSPECTIVE JUROR: As part of my job, I'm a
13 police officer.
14 MR. MURPHY: You're a police officer at the
15 airport?
16 PROSPECTIVE JUROR: Yes.
17 MR. MURPHY: Are you a member of the Airport
18 Authority?
19 PROSPECTIVE JUROR: Yes, I am.
20 MR. MURPHY: Police department?
21 PROSPECTIVE JUROR: Yes. I'm the director of
22 operations in public safety, which I have responsibility
23 for the police department.
24 MR. MURPHY: So you operate like the police
25 chief out there?
VOIR DIRE OF THE JURY
65
1 PROSPECTIVE JUROR: The police chief reports to
2 me, yes.
3 MR. MURPHY: Anybody else? Any family members,
4 friends? Does anybody have any family members or friends
5 that work for the IRS?
6 Okay. Nobody will fess up to it, okay.
7 Yes, sir.
8 PROSPECTIVE JUROR: I have a son that works for
9 the IRS.
10 MR. MURPHY: You have a son that works --
11 THE COURT: We're going to pass the mic back.
12 One reason we pass the mic is that it goes through our
13 system here, and actually you folks back there can hear it
14 when we're speaking in the mic, can't you? And when we
15 don't speak into the mic, you can't hear. And they need
16 to be able to hear our answers, so just be sure that you
17 speak into that mic.
18 Have you got --
19 MR. MURPHY: Well, it wasn't working.
20 THE COURT: Well, you just keep your voice up,
21 and you usually can be heard. If you can't hear Mr.
22 Murphy, let me know too.
23 MR. MURPHY: That's what my kids say anyway.
24 PROSPECTIVE JUROR: Well, I have a son that
25 works for the IRS.
VOIR DIRE OF THE JURY
66
1 MR. MURPHY: And what does he do at the IRS?
2 PROSPECTIVE JUROR: He work, you know, with
3 tax -- with the tax, you know, examiner, I believe that's
4 the title.
5 MR. MURPHY: So he examines people's income
6 taxes?
7 PROSPECTIVE JUROR: If I'm not mistaken, yes.
8 MR. MURPHY: Now, the fact that your son works
9 for the IRS, is that going to cause you any problems? Is
10 it going to make it harder for you to be fair to the
11 defendant?
12 PROSPECTIVE JUROR: No.
13 MR. MURPHY: Is it going to make it harder for
14 you to be fair to the government?
15 PROSPECTIVE JUROR: Loaded question.
16 MR. MURPHY: I believe this gentleman down
17 here, yes, sir.
18 PROSPECTIVE JUROR: I had friends some years
19 ago that were criminal investigators with the IRS.
20 MR. MURPHY: Is that going to cause you a
21 problem?
22 PROSPECTIVE JUROR: No, it's not.
23 MR. MURPHY: If you were to vote not guilty in
24 this case, would that embarrass you with those friends?
25 PROSPECTIVE JUROR: I haven't even seen them in
VOIR DIRE OF THE JURY
67
1 the last 15 years, they have moved away.
2 MR. MURPHY: Okay. Thank you.
3 Is any -- are any of you, ladies and gentlemen,
4 employed by the federal government?
5 Yes, ma'am.
6 COURT SECURITY OFFICER: Pass the mic down.
7 PROSPECTIVE JUROR: I work for USDA, the U. S.
8 Department of Agriculture.
9 MR. MURPHY: How long?
10 PROSPECTIVE JUROR: For 26 years.
11 MR. MURPHY: What part of USDA?
12 PROSPECTIVE JUROR: Cotton, cotton program.
13 MR. MURPHY: Okay. Do you work at the classing
14 office?
15 PROSPECTIVE JUROR: Yes, uh-huh.
16 MR. MURPHY: The fact that the federal
17 government is bringing this case, is that going to cause
18 you any problems?
19 PROSPECTIVE JUROR: No.
20 MR. MURPHY: Are you going to feel like you
21 have to vote guilty?
22 PROSPECTIVE JUROR: No.
23 MR. MURPHY: And you can be fair to the
24 defendant?
25 PROSPECTIVE JUROR: Yes.
VOIR DIRE OF THE JURY
68
1 MR. MURPHY: Okay. Thank you, ma'am.
2 Have any of you, ladies and gentlemen, ever
3 served on a jury in a civil case? If you have, raise your
4 hands.
5 Okay. Ladies and gentlemen, do you understand
6 that there's six separate counts in this indictment? This
7 indictment charges six distinct crimes and that you're
8 going to be required to render a verdict as to each count
9 of the indictment. Does anybody have a problem with that?
10 Okay. And as the judge said, the number of charges
11 doesn't make a person guilty, everybody understands that?
12 Okay. Does anybody on the jury -- on the jury
13 panel, do you have a belief that you shouldn't be required
14 to pay taxes? That's different than you don't like paying
15 them, don't enjoy it. Do you think that tax laws are
16 unconstitutional or improper, or does anybody have
17 feelings like that? Okay. Does anybody have a problem
18 with the fact that some violations of the tax laws may be
19 criminal violations? You know, it's kind of like in drug
20 cases, you have some jurors sometimes that think marijuana
21 ought to be legalized and don't approve of prosecutions of
22 marijuana distributors, anybody feel like that, that the
23 tax laws -- that criminal charges shouldn't be brought for
24 tax violations? Nobody is saying anything.
25 Yes, sir.
VOIR DIRE OF THE JURY
69
1 PROSPECTIVE JUROR: I have a feeling that our
2 tax laws are set up more for the rich folks instead of the
3 poor folks, being one of the poorer ones.
4 MR. MURPHY: Okay. Now, you understand that
5 the judge is going to instruct you what the law is in the
6 case, and you will have to follow that law without
7 consideration of that feeling; do you understand that?
8 PROSPECTIVE JUROR: Yes, sir.
9 THE COURT: Okay. Now, does that cause you a
10 problem?
11 PROSPECTIVE JUROR: Because that has nothing to
12 do with a defendant, because that is our law per se.
13 MR. MURPHY: There you go. Would you speak
14 into the microphone, sir?
15 PROSPECTIVE JUROR: I said that has nothing to
16 do with a defendant, that's just the way our system works.
17 MR. MURPHY: Okay.
18 PROSPECTIVE JUROR: We don't have a perfect
19 system, I think anybody would agree with that.
20 MR. MURPHY: Okay. But you're not going to
21 have any problem applying the law that the judge gives
22 you?
23 PROSPECTIVE JUROR: No, sir.
24 THE COURT: If there's proof in the case that
25 this defendant made a high salary, you're not going to
VOIR DIRE OF THE JURY
70
1 hold that against her?
2 PROSPECTIVE JUROR: No.
3 MR. MURPHY: Okay. Thank you, sir.
4 Have any of you, ladies and gentlemen, ever
5 worked as income tax preparers or have accounting degrees,
6 anything like that? I know, ma'am, you said you worked at
7 a CPA office?
8 PROSPECTIVE JUROR: My ex-husband was a CPA and
9 I worked for 18 years of just preparing tax returns. I
10 didn't do the actual -- the CPAs in the firm did the
11 interaction with the IRS, but I did prepare tax returns.
12 I don't do that now, but I did.
13 MR. MURPHY: Okay. Do you have any bad
14 feelings about the IRS based on your experience working
15 with the CPA firm?
16 PROSPECTIVE JUROR: No, if anything, it helped
17 me feel better. I learned that you didn't have to fear
18 it, the people -- that the IRS does their information on
19 the information that they have, and the tax accountants'
20 role is to help them, if they have information the IRS
21 does not have, and so it didn't leave negative feelings
22 about the IRS.
23 MR. MURPHY: You understand that if you're
24 selected on the jury, you're going to have to decide the
25 case based on the facts that are admitted into evidence
VOIR DIRE OF THE JURY
71
1 and the law as the judge gives it to you?
2 PROSPECTIVE JUROR: Uh-huh.
3 MR. MURPHY: Do you understand that?
4 PROSPECTIVE JUROR: Yes, sir.
5 THE COURT: And do you understand you can't go
6 back, and if you're selected as a juror, you say, well,
7 now, wait a second, when I was with the CPA firm, they did
8 it this way?
9 PROSPECTIVE JUROR: Well, yes, sir, I
10 understand that. And this is so much back in the past --
11 in fact, I had just about even forgot this, that I should
12 bring this up. I am a pastor of a church now, so my world
13 doesn't evolve around the -- this world now.
14 MR. MURPHY: Okay. Mr. Salaam, have you ever
15 done any taxes or anything like that? They're going to
16 pass you the mic.
17 PROSPECTIVE JUROR: No, I haven't.
18 MR. MURPHY: Because you talked about it being
19 a 7201 charge.
20 PROSPECTIVE JUROR: I've studied prelaw at St.
21 Louis University some, and I've attended a lot of trials,
22 but never did anything with taxes but pay them.
23 MR. MURPHY: What kind of trials did you
24 attend?
25 PROSPECTIVE JUROR: All type. I participated
VOIR DIRE OF THE JURY
72
1 in the King trial, all 30 days with Dr. William Peppers.
2 MR. MURPHY: Okay. Were you helping Dr.
3 Peppers in the presentation of that case or were you just
4 there?
5 PROSPECTIVE JUROR: No, I served as security
6 for the King family.
7 MR. MURPHY: Okay. I believe on the jury sheet
8 it says you work for one of the local funeral homes?
9 PROSPECTIVE JUROR: Yes.
10 MR. MURPHY: Okay. Are you a security officer?
11 PROSPECTIVE JUROR: No, I'm a family counselor,
12 family service counselor, and sometimes a funeral
13 director.
14 MR. MURPHY: Okay. How long have you worked at
15 Memphis Funeral Home?
16 PROSPECTIVE JUROR: Forest Hill.
17 MR. MURPHY: Forest Hill, I'm sorry.
18 PROSPECTIVE JUROR: That's the other guy.
19 MR. MURPHY: That's the competition. Forest
20 Hill.
21 PROSPECTIVE JUROR: About a year and a half.
22 MR. MURPHY: Okay.
23 PROSPECTIVE JUROR: I have a family business
24 too.
25 MR. MURPHY: Okay. Now, what you learned in
VOIR DIRE OF THE JURY
73
1 school and the prelaw courses and what you learned by
2 sitting in this these trials, you understand that's not
3 something that you can use in this case because the judge
4 will instruct you on the law, and the facts may be
5 different, all that sort of thing?
6 PROSPECTIVE JUROR: Yes, I understand it. I'm
7 glad you understand it too.
8 MR. MURPHY: Okay. I don't know. Sometimes I
9 don't understand it. It's just engrained in us, in
10 lawyers, things have got to be just so-so.
11 PROSPECTIVE JUROR: All right.
12 MR. MURPHY: Okay. I'm down to my last
13 question, ladies and gentlemen. And lawyers are kind of
14 like Baptist ministers, finally does not necessarily mean
15 immediately. Is there anything about this case or
16 anything that y'all think the lawyers and the judge ought
17 to know that hasn't come up? Anything we haven't asked
18 that you think that we should have?
19 Okay. Well, with that, I will sit down, ladies
20 and gentlemen. Thank you.
21 THE COURT: We're going to go until -- no,
22 we're ready, we're fine, we will go until about 25, 27
23 after, and then we will take our lunch break, and I will
24 have to give you -- I will have to have a couple of
25 minutes to tell them the rules about those sorts of
VOIR DIRE OF THE JURY
74
1 things, so you have got about 10 minutes.
2 MR. BECRAFT: I will just tell you that you can
3 wave your hand and cut me off any place.
4 PROSPECTIVE JUROR: I will just speak up.
5 MR. BECRAFT: Ladies and gentlemen, my name is
6 Larry Becraft, and I'm here to represent Vernie Kuglin,
7 who is the defendant in this case. And, of course, the
8 other fellow over here is Bob Bernhoft, and my question to
9 you is, first and foremost, has anybody ever met Vernie
10 Kuglin, heard about her or heard about her lawyers? How
11 about -- you know, some people -- the U. S. Attorney's
12 office is one floor below, a lot of people work down
13 there, do any of you know or are you socially acquainted
14 with anybody that works in the U. S. Attorney's office?
15 Whether it is an attorney -- yes, Mr. White.
16 PROSPECTIVE JUROR: Yes, sir.
17 MR. BECRAFT: You know someone? And who would
18 that be?
19 PROSPECTIVE JUROR: Terry Harris.
20 MR. BECRAFT: Okay. The U. S. Attorney?
21 PROSPECTIVE JUROR: Yes.
22 MR. BECRAFT: Are you socially acquainted with
23 him?
24 PROSPECTIVE JUROR: Not socially,
25 professionally.
VOIR DIRE OF THE JURY
75
1 MR. BECRAFT: So out at the airport, the
2 U. S. Attorney's office has some dealings with the
3 security out there, and that's the way you've met him and
4 worked with him, correct?
5 PROSPECTIVE JUROR: Yes, sir.
6 MR. BECRAFT: Okay. Is there anything about
7 that relationship that would maybe cause you to be
8 favorable to the government and simply because you know
9 the man that runs the office?
10 PROSPECTIVE JUROR: No, sir.
11 MR. BECRAFT: So you can cast that aside if
12 you're picked as a juror?
13 PROSPECTIVE JUROR: Yes, sir.
14 MR. BECRAFT: Is there anyone else that knows,
15 you know, either the lawyers or the investigators or
16 anybody else that might work in that office?
17 Now, we're going to have in this case -- you
18 know, we're going to bring in some people from the IRS,
19 some people from the Service Center, it is going to be IRS
20 people that are going to take the witness stand, and my
21 question to you at this time is this: You know, are you
22 going to be giving to anybody that is a government
23 employee greater credence to their testimony just because
24 they work for the government? Anybody that is going to be
25 leaning in the direction of giving greater credence to
VOIR DIRE OF THE JURY
76
1 somebody that works for the government rather than giving
2 the same type of credence you would for any other witness?
3 I take it most of you are -- or, in fact, all
4 of you, is there anybody here who does not live in Shelby
5 County? And you, Mr. White?
6 PROSPECTIVE JUROR: Vedder.
7 MR. BECRAFT: Vedder, I'm sorry. How far away
8 do you live from the courthouse?
9 PROSPECTIVE JUROR: Tipton County.
10 MR. BECRAFT: And you live where?
11 PROSPECTIVE JUROR: Lauderdale County.
12 MR. BECRAFT: And how long does it take y'all
13 to get to court?
14 PROSPECTIVE JUROR: It takes me an hour and a
15 half.
16 MR. BECRAFT: An hour and a half?
17 THE COURT: Where do you live in Lauderdale
18 County?
19 PROSPECTIVE JUROR: Halls, Tennessee.
20 THE COURT: Halls, okay. And I'm sorry, where
21 do you live in Tipton County?
22 PROSPECTIVE JUROR: It took me about 45
23 minutes.
24 THE COURT: And you live in which part of
25 Tipton County?
VOIR DIRE OF THE JURY
77
1 PROSPECTIVE JUROR: Drummonds.
2 THE COURT: I live in Rosemark, which is one
3 mile south of the line --
4 PROSPECTIVE JUROR: Yeah.
5 THE COURT: I used to work in Covington.
6 PROSPECTIVE JUROR: Drummonds.
7 THE COURT: Drummonds, okay, yeah, yeah. Just
8 to get an idea. It may not be quite as familiar. I think
9 those are distances -- I know anybody from Tipton County,
10 we always end up asking them to drive back and forth.
11 People from further away, if it takes a long time, we'll
12 actually enter an order and let you stay in a hotel, if we
13 can get a hotel room in the downtown area if it becomes a
14 problem. A lot of people prefer to commute. Anybody from
15 as far north as Dyersburg, I usually suggest that they
16 stay overnight, just so far -- that's just such a long
17 drive. I need to let you know that, and you wouldn't
18 necessarily know that was the policy on trips. Go right
19 ahead.
20 MR. BECRAFT: Thank you, Your Honor. Anybody
21 else? If you're picked as a juror, are you going to have
22 a problem getting here to court? Somebody might park over
23 there at Mud Island or some other place. Does anybody
24 think if you're picked as a juror you're going to have a
25 difficult time at least getting to court here whether we
VOIR DIRE OF THE JURY
78
1 start at 9:00 or 9:30 in the morning?
2 Mr. Murphy asked some questions along these
3 lines, but I want to kind of repeat it because I may not
4 have been hearing what his question was closely. My
5 question relates to either you, yourself, or members of
6 your immediate family or some of your close friends that
7 you meet on a regular basis, you know, you hold -- they're
8 part of your family almost. Out of that group, are there
9 any of you or members of your families or those close
10 friends that have ever at any time worked for either state
11 or federal law enforcement? All right. How about anybody
12 that has either themselves or members of their family or
13 close friends that have ever worked for either state or
14 federal government, and I'm including everything, you
15 know, like if it was any agency of the federal government,
16 any agency of the state government, does anybody
17 themselves or members of their family or close friends
18 work for government in any way, shape, manner or form
19 other than the ones that -- yes, ma'am.
20 PROSPECTIVE JUROR: My brother is a lieutenant.
21 COURT SECURITY OFFICER: Pass the mic.
22 PROSPECTIVE JUROR: He works for the Sheriff's
23 Department.
24 MR. BECRAFT: Sheriff's Department?
25 PROSPECTIVE JUROR: Yes.
VOIR DIRE OF THE JURY
79
1 MR. BECRAFT: Your brother?
2 PROSPECTIVE JUROR: Yes.
3 MR. BECRAFT: Okay. Shelby County?
4 PROSPECTIVE JUROR: Yes.
5 MR. BECRAFT: All right. And how long has he
6 been employed?
7 PROSPECTIVE JUROR: About 13 years.
8 MR. BECRAFT: Okay. Do you see him on a
9 regular basis?
10 PROSPECTIVE JUROR: Yes.
11 MR. BECRAFT: All right. So chances are if you
12 were picked as a juror in this case there might be a
13 possibility that you would see him sometime during the
14 course of the trial?
15 PROSPECTIVE JUROR: Possible.
16 MR. BECRAFT: Okay. Well, you wouldn't let
17 your -- if you were picked as a juror, would you let your
18 brother, this Shelby County deputy influence you or your
19 decision in this case in any way, shape, manner or form?
20 PROSPECTIVE JUROR: No, because he wouldn't
21 know about the case I was on.
22 MR. BECRAFT: Okay. Thank you. Mr. White?
23 PROSPECTIVE JUROR: Sir?
24 MR. BECRAFT: What? Did you raise your hand?
25 I thought you did.
VOIR DIRE OF THE JURY
80
1 PROSPECTIVE JUROR: I didn't. Although --
2 MR. BECRAFT: We know you work for the Airport
3 Authority.
4 PROSPECTIVE JUROR: Right. I actually have
5 several close friends that are FBI agents.
6 MR. BECRAFT: Okay. Thank you.
7 Mr. Spurlin?
8 PROSPECTIVE JUROR: Used to work for the FAA.
9 MR. BECRAFT: And how long ago was that?
10 PROSPECTIVE JUROR: '81.
11 MR. BECRAFT: And how long did you work for the
12 FAA?
13 PROSPECTIVE JUROR: Eleven years.
14 MR. BECRAFT: And you're working now, you left
15 probably about '92 '93, the FAA?
16 PROSPECTIVE JUROR: No, I left in '81.
17 MR. BECRAFT: And for the last 20 years, you
18 have been working -- we had a little note that you work in
19 auto sales, is that correct?
20 PROSPECTIVE JUROR: Right, auto parts.
21 MR. BECRAFT: And have you been doing that
22 since you left the FAA?
23 PROSPECTIVE JUROR: Basically, except for one
24 year.
25 MR. BECRAFT: Do you have any friends or
VOIR DIRE OF THE JURY
81
1 relatives that still work for the FAA that you still talk
2 to?
3 PROSPECTIVE JUROR: No.
4 MR. BECRAFT: Okay. All right. Thank you.
5 Anybody else that raised their hand to that question about
6 either being employed by or having friends that are
7 employed by some government agency? Have any of you
8 ever -- Mr. Murphy asked the question about whether or not
9 you had served in a civil jury. I don't know -- if y'all
10 came in maybe last week for jury service, but let me ask
11 this specific question: Have any of you ever sat on a
12 grand jury, either state or federal? You know, a grand
13 jury is a group of people that assembles in a building
14 much like this, either in the -- some courthouse, state or
15 federal, and they have government agencies and other
16 witnesses come before them to tell them about the
17 commission of crimes, and a grand jury returns an
18 indictment. Now, has anybody ever sat on a grand jury
19 before, state or federal? Okay. How about -- I think
20 your answers to Mr. Murphy's questions about civil juries,
21 I don't think there was anybody here who sat on a civil
22 jury. How about a criminal jury? Okay.
23 PROSPECTIVE JUROR: Shelby County.
24 MR. BECRAFT: Shelby County. How long ago was
25 that?
VOIR DIRE OF THE JURY
82
1 PROSPECTIVE JUROR: I would say roughly 10, 11
2 years ago, 12 years ago maybe.
3 MR. BECRAFT: And that was a criminal case?
4 PROSPECTIVE JUROR: Well, it involved DUI.
5 MR. BECRAFT: Okay. And would there be
6 anything about your service in that prior criminal case
7 that would have any effect upon what you do or think or
8 decide if you're picked as a juror in this case?
9 PROSPECTIVE JUROR: No.
10 MR. BECRAFT: Okay. All right. And, Mr.
11 Smith, did you raise your hand?
12 PROSPECTIVE JUROR: Yes, sir.
13 MR. BECRAFT: And you have been a juror in a
14 criminal case before?
15 PROSPECTIVE JUROR: Yes, sir, that's correct.
16 MR. BECRAFT: And how long would that be?
17 PROSPECTIVE JUROR: I would say roughly about
18 five years ago.
19 MR. BECRAFT: And was that state or federal?
20 PROSPECTIVE JUROR: I think it was state.
21 MR. BECRAFT: Okay. Here in Shelby County?
22 PROSPECTIVE JUROR: Yes, sir.
23 MR. BECRAFT: Would there be anything about
24 your service as a juror in a criminal case that -- you
25 know, you sat through one criminal trial in the past and
VOIR DIRE OF THE JURY
83
1 you may be picked to sit in another criminal jury this
2 time here, is there anything about your prior experience
3 that might have some influence or effect upon how you
4 listen to the evidence or react in this case if you're
5 picked as a juror?
6 PROSPECTIVE JUROR: No, sir.
7 MR. BECRAFT: All right. So you can leave that
8 totally behind you, whatever you did then, and consider
9 this case based solely on the facts and the testimony and
10 the documents that are offered in evidence?
11 PROSPECTIVE JUROR: Absolutely.
12 MR. BECRAFT: Was there anybody else who raised
13 their hand to the question about criminal jury service?
14 How about -- we're going to be bringing in some
15 people to testify in this case. Is there anybody who has
16 ever been a witness either in a civil or a criminal case
17 meaning, you know, you had to come up here and sit down in
18 a chair? Ms. Vickers.
19 PROSPECTIVE JUROR: In a custody case, child
20 custody case for my daughter.
21 MR. BECRAFT: Okay. All right. So you had to
22 go to -- was that here in Shelby County?
23 PROSPECTIVE JUROR: No, it was in north
24 Alabama.
25 MR. BECRAFT: How long ago was that?
VOIR DIRE OF THE JURY
84
1 PROSPECTIVE JUROR: It will be a year in
2 September.
3 MR. BECRAFT: Okay. Was there anything about
4 that experience that might have an effect upon -- now,
5 you're not sitting up there in what we call the hot seat,
6 you will be sitting as a juror in this case, is there
7 anything that would maybe affect what you do in this case
8 having been a prior witness?
9 PROSPECTIVE JUROR: Maybe be able to hear that
10 person a little better after having sat there.
11 MR. BECRAFT: All right. Anybody else that
12 responded to being a witness? Let me take Mr. Spurlin.
13 PROSPECTIVE JUROR: It's probably been 30
14 years.
15 MR. BECRAFT: As a witness in a case?
16 PROSPECTIVE JUROR: Right.
17 MR. BECRAFT: Well, there's no -- that's not
18 going to affect what you do here, right?
19 PROSPECTIVE JUROR: No.
20 MR. BECRAFT: Mr. Salaam, I think you raised
21 your hand?
22 PROSPECTIVE JUROR: Yes, in 1979, I was a
23 character witness for one of my co-workers.
24 MR. BECRAFT: All right. Was that in a civil
25 case, criminal case?
VOIR DIRE OF THE JURY
85
1 PROSPECTIVE JUROR: Civil case.
2 THE COURT: And sometime ago, what you did then
3 wouldn't have any effect upon your role as a juror in this
4 case if you're picked, right?
5 PROSPECTIVE JUROR: No.
6 MR. BECRAFT: Was there anybody else? And you
7 are Mr. Stovall?
8 PROSPECTIVE JUROR: Yes. Probably about 20
9 years ago, I was a witness for an employee of mine, he was
10 up on drug charges.
11 MR. BECRAFT: All right.
12 THE COURT: We're going to need to take our
13 lunch break.
14 MR. BECRAFT: Sure, Your Honor.
15 THE COURT: I need to tell everybody seven
16 things before we take that break. We will get the jury
17 today, I'm sure. In fact, it may not be that far into the
18 afternoon. But any time we take a break, there's seven
19 things to keep in mind. The first thing is you cannot
20 discuss the case among yourselves. It's very tempting,
21 because that's the one thing you all have in common is
22 that you're juror on a -- or potentially a juror on a
23 case. You cannot discuss the case. Don't talk about the
24 lawyers, the parties, anything about the proceedings at
25 all. When you start talking about any aspect of the case,
VOIR DIRE OF THE JURY
86
1 you start the mental process of making up your mind, and
2 we cannot do it once you start it. So I'm going to ask
3 you not to verbalize anything about the case. The second
4 thing is not only are you not to talk among yourselves
5 about the case, but obviously you're not to talk with
6 anybody else. If you need to call an employer or family
7 member or somebody and tell them what you're doing, you
8 can call and tell them that you're a prospective juror in
9 a criminal case in federal court and you cannot tell them
10 anything, because naturally people ask. So tell them that
11 you're -- that's all you can tell them is that you're a
12 potential juror in a criminal case in federal court. You
13 can tell them more about it when the case is over or when
14 you're released. The third thing is that if anybody
15 should try to talk you about the case, it's improper, and
16 so do not -- if they do, tell them they shouldn't, but,
17 secondly, report that to one of our court security
18 officers. They're the ladies and gentlemen who have on
19 the blue jackets and the badges, and they will let me
20 know, or a member of my staff or me. The fourth thing is
21 don't speak to the lawyers or the parties, you can't --
22 you should give them space. If you see them get on an
23 elevator, let them take an elevator, you take the next
24 one, because if they were seen speaking to you or
25 appearing to be close to you engaged in conversation, it
VOIR DIRE OF THE JURY
87
1 might appear that they were attempting to influence you.
2 They will avoid that, but they need your help in that
3 regard. So don't speak to them at all. The fifth thing
4 is do not do any research or make any investigation. I
5 know that some people may know something about the law in
6 the area. Don't go to the library and look anything up or
7 make any type of inquiry. It's our job to -- the lawyers'
8 job to present the evidence through the witnesses and the
9 facts, and then it's my job to give you the law. So don't
10 try to make any investigation in that regard. The sixth
11 thing is, of course, avoid anything in the newspaper or on
12 television or radio that might be about this case or cases
13 like this. You simply -- that would be outside the --
14 that would be material presented outside the presence of
15 the court and the parties, so you cannot consider that.
16 If inadvertently you see something in the newspaper or
17 hear something, then tell me about it, and it probably
18 won't be a problem, but you need to tell me so we can
19 check and see if it is. And the seventh thing is keep an
20 open mind. Obviously, one of the first things that you
21 told me about until you have heard all the evidence in the
22 case, the final arguments of counsel and the final
23 instructions on the law and have gone to the jury room and
24 then discussed the evidence among yourselves, which will
25 be probably four days from now, and then after you have
VOIR DIRE OF THE JURY
88
1 discussed the evidence with each other, four days from now
2 after you have heard all the proof and the final arguments
3 and final instructions, then make up your mind. So wait,
4 continue to be patient and wait.
5 Ladies and gentlemen, we're going to ask you to
6 come back at 2:00 o'clock, and we'll see you at 2:00
7 o'clock, we'll resume jury selection at that time. All of
8 you, we will ask you to be back at that time. Thank you.
9 (Recess taken at 12:30 until 2:00 p.m.)
10 (Jury in.)
11 THE COURT: All right. I think we have got
12 everybody. Yes, sir. You may proceed.
13 MR. BECRAFT: May it please the court, ladies
14 and gentlemen, right before our lunch break, I wrote the
15 last question that I had asked of y'all about being a
16 witness, and I think my recollection is that everybody
17 that had replied to the question had given me some
18 information about that. Did I miss anybody?
19 As you know by now, this is a tax case. Ms.
20 Kuglin is charged with six counts of tax evasion, bad
21 word, but I expect that what she is going to do in this
22 case is she is going to take the stand, tell you the
23 reasons why, and her testimony will involve something
24 about tax law. And Judge McCalla was asking some
25 questions earlier today about how many people have some
VOIR DIRE OF THE JURY
89
1 information or knowledge or have ever studied the tax laws
2 in any way, shape, manner or form. For example, have you
3 taken a course involving tax or have you ever picked up a
4 tax code or other information and actually studied that?
5 What I would like to know from any of you right now is if
6 you have ever engaged in any type of the study of the tax
7 laws like I have just described? Yes, ma'am. And that
8 would arise because you worked in the past for the CPAs.
9 And did that involve getting down to the details of the
10 Internal Revenue Code?
11 PROSPECTIVE JUROR: It involved sometimes
12 looking up what the code was in preparing a tax return.
13 MR. BECRAFT: Okay. Now, with that in mind, I
14 want to tell you something that's going to happen during
15 this case. Ms. Kuglin is going to give her beliefs about
16 the law, but all the law that is applicable in this case
17 will come from the court, you understand that, right?
18 PROSPECTIVE JUROR: Uh-huh.
19 MR. BECRAFT: And so if you have some
20 preconception or some view of tax or some recollection,
21 can you lay all of that aside if you're picked as a juror
22 and just listen to what Judge McCalla tells you is the law
23 that will be applicable in the case, can you do that?
24 PROSPECTIVE JUROR: It has been done many years
25 ago, so it has been done.
VOIR DIRE OF THE JURY
90
1 MR. BECRAFT: Anybody else fall in that
2 category that has done some type of personal study of the
3 tax law?
4 This is a criminal case and, you know, a lot of
5 people have seen on TV -- you know, we have Perry Mason,
6 and we have all of these other shows about civil and
7 criminal cases, and I think probably all of you're aware
8 of the burden of proof that's involved in a criminal case.
9 In a civil case, all you have to do is kind of tip the
10 scales of justice over to one side. The party that proves
11 by a preponderance of the evidence their case is entitled
12 to win. However, in a criminal case, the burden of proof
13 is, you know, what we do here in America is we have a
14 burden that is imposed upon the government, here it's
15 represented by Mr. Murphy. They have got to submit proof
16 in this case to prove beyond a reasonable doubt that Ms.
17 Kuglin committed the crimes. Is there anybody here that
18 kind of disputes or has some difference of opinion about
19 the burden of proof that the government might have to
20 carry in this case? Now, in this case, you know, I'm not
21 going to tell you what the whole facts are, but, you know,
22 I can assure you that after the government ends their
23 proof, one of the first witnesses, we may have two, maybe
24 one, maybe three defense witnesses, but one of the defense
25 witnesses is going to be Vernie Kuglin. She is going to
VOIR DIRE OF THE JURY
91
1 get up and explain to you why she did what she did. Is
2 there anybody here that at this stage, without knowing the
3 substance of what she is going to testify about, is there
4 anybody right here that says, well, gee, you know, I have
5 heard enough about this case that, you know, there is
6 nothing that she can say that would persuade me that she
7 is anything other than guilty? Is there anybody here that
8 is in that posture right now? Is everybody that on this
9 panel, in this jury box right here, are you going to tell
10 me that you will fairly listen to the testimony of Vernie
11 Kuglin, fairly weigh it and make a determination as to
12 whether she is not guilty or guilty, will each of you do
13 that?
14 You know, you have already heard a little bit
15 about the facts of this case. She is an airline pilot.
16 She flies for FedEx, has been doing so for a number of
17 years. She lives down at the end of the street. She
18 lives in downtown Memphis. She has a condo down there.
19 The proof is also going to show that their son, go down
20 far enough south on Main Street during lunch you will pass
21 by where her son lives, 1 Main Street. You know, just
22 knowing the fact that she is a FedEx pilot, just knowing
23 the facts that she makes -- you know, you heard Judge
24 McCalla read out those large figures that were in that
25 indictment, 140, 150, $160,000 is what FedEx was paying
VOIR DIRE OF THE JURY
92
1 her each year, she lives in a condo at Waterford Place.
2 They're in the process of building or buying an office or
3 a building down at 1 Main Street South. So it's quite
4 obvious that what is going to come out in this case, what
5 you're going to be able to see about Vernie Kuglin is
6 someone that is, you know, makes good money and lives
7 nice, and there's going to be testimony in this case
8 regarding her, you know, disputes with the IRS. Now, is
9 there anyone that knowing that much about the facts of
10 this case that you're thinking in your mind, well, I've
11 got some type of preconceived notion or I'm -- you know,
12 I'm somewhat uncertain about this blonde headed lady over
13 here that is a FedEx pilot making a lot of money and
14 living in a nice place in downtown Memphis, is there
15 anyone that right now has something inside of them that
16 says, you know, there's something I don't like about
17 Vernie Kuglin, is there any such feeling inside any of
18 you?
19 Okay. Now, can each of you, with those facts
20 in mind, treat her just like any other defendant? Could
21 you treat her just like -- what if the facts in this case
22 were some 20 or 25 years ago when she was working for the
23 welfare department, if she were a defendant and her job
24 was what she had 25 years ago working for the welfare
25 department, will you judge her equally under both sets of
VOIR DIRE OF THE JURY
93
1 facts? You won't have any problems or take into
2 consideration her station in life and hold that against
3 her when you decide this case? Will each of you -- you
4 know, this case is going to last, as you've heard, we're
5 probably going to try to wrap up, hopefully, Thursday
6 morning. After that's over with, what we're going to do
7 is the lawyers will get up and give closing arguments
8 after you have listened to all of these witnesses that
9 will testify. The lawyers are going to kind of summarize
10 the case, but at the end of that, Judge McCalla is going
11 to read to you a set of jury instructions. He's going to
12 tell you about what's important in this case, and what's
13 important in this case will be what I call this criminal
14 state of mind that you must find in order to find her
15 guilty. If she doesn't have a criminal state of mind,
16 she's not guilty. Now, will each of you follow, listen
17 tentatively to what Judge McCalla has to say about what
18 the government must prove, listen to the law that she
19 gives to you and will each of you follow it? Any
20 reservations?
21 Has anybody had problems hearing me? Anybody
22 have anything against me? Anybody have anything against
23 Vernie Kuglin? Anything against Bob Bernhoft, the way he
24 looks? Is there anybody here that for whatever reason,
25 maybe Judge McCalla might not like this, but I want to
VOIR DIRE OF THE JURY
94
1 know, have you got any reason, just show me your hand, I
2 don't want to sit in this case? So each of you are
3 willing --
4 THE COURT: I just raised my hand, I got plenty
5 to do.
6 MR. BECRAFT: So nobody -- everybody is willing
7 right now to sit maybe through Friday afternoon and
8 discharge your American civic duty?
9 THE COURT: I'm going to let my technical guy
10 come up and just talk to me a second. Go right ahead.
11 MR. BECRAFT: Can I go ahead, sir?
12 THE COURT: Absolutely. We have to fix a
13 couple of pieces.
14 MR. BECRAFT: Does anybody here have any
15 problem with the way that we settle criminal cases,
16 criminal disputes here in America? We bring in twelve
17 tried and true members of our community and submit to them
18 for ultimate resolution the ultimate question of whether
19 or not someone is guilty or innocent of a crime?
20 Nothing further, Your Honor.
21 THE COURT: We were just checking, we need to
22 fix that lapel mic, it wasn't working, and Ike is going
23 to -- Mr. Mussleman is going to get that taken care of,
24 and that was it.
25 Well, anything else from anybody else for the
VOIR DIRE OF THE JURY
95
1 panel at this time?
2 MR. MURPHY: Judge, I don't have anything else,
3 but --
4 THE COURT: Let's talk about it at side bar,
5 because I wanted to ask a couple of questions. There are
6 a couple of things that sometimes are covered and haven't
7 been covered yet, so I want to check.
8 (The following proceedings had at side-bar
9 bench.)
10 THE COURT: Usually y'all or I ask a few
11 questions, do you want to ask those?
12 MR. MURPHY: If you want me to do personal
13 stuff, that's fine.
14 THE COURT: I can run through them real
15 quickly, I'm going to go through them real fast, just
16 their employer, I'm going to get whether they're married
17 or not, what does their spouse do. I'm going to ask them
18 what part of the district they live in.
19 (The following proceedings were had in open
20 court.)
21 THE COURT: I raised my hand because I used to
22 tell people that anybody who really wanted to serve on a
23 jury probably shouldn't. That's sort -- that's an
24 important frame of mind to probably approach it. It is
25 real serious business. Usually we ask a couple of
VOIR DIRE OF THE JURY
96
1 questions, sometimes I ask them, sometimes the lawyers ask
2 them. Really in this case, really nobody asked them. We
3 do have a small information sheet on each of you, but very
4 small, so what we're going to do, just to make sure that
5 we know a little bit about each of you, is I'm going to
6 start with Ms. Vasser, I'm going to ask each of you set a
7 questions. I'm going to ask what you part of the district
8 or city do you live in. As you can see, some people live
9 outside Shelby County, and also it is helpful for people
10 to know, for example, if you live downtown, if you live on
11 Harbor Town, if you live in Waterford Plaza, but just
12 generally what part of the district or city you live in.
13 Then I'll ask you what's your occupation, who's your
14 employer, are you married, and if you're married, I'm
15 going to ask who your spouse is, so they will know and
16 so -- they will hear the name, and what does your spouse
17 do, just to make sure we have covered that with each
18 person, and then I'm going to ask you that final question,
19 is there any reason that you cannot serve on this jury and
20 be fair and impartial. Somebody usually asks those, and
21 since they haven't been asked, I'm going to make sure we
22 have covered them. We also have you stand up when you do
23 that just so everybody can hear you okay. So if you will
24 stand please, what part of the city or district are you
25 from?
VOIR DIRE OF THE JURY
97
1 PROSPECTIVE JUROR: I'm Wolfchase area.
2 THE COURT: Okay. I left out one thing, I'm
3 going to add one thing in there. And what is your -- I'm
4 going to ask your educational background. And I don't
5 want to know very much, just how far you went in school.
6 PROSPECTIVE JUROR: College.
7 THE COURT: What is your occupation and who is
8 your employer? For some people, we know some of this, but
9 tell us that.
10 PROSPECTIVE JUROR: I'm a carrier for FedEx.
11 THE COURT: I think it's probably been obvious,
12 but everybody wants to be sure, a person who works at the
13 airport or works at FedEx, do you know Ms. Kuglin?
14 PROSPECTIVE JUROR: No.
15 THE COURT: Okay. Are you married?
16 PROSPECTIVE JUROR: Yes.
17 THE COURT: Your husband's name and his
18 occupation?
19 PROSPECTIVE JUROR: William Vasser.
20 THE COURT: And what does he do?
21 PROSPECTIVE JUROR: He's a team leader for
22 FedEx.
23 THE COURT: Okay. Any children?
24 PROSPECTIVE JUROR: Yes.
25 THE COURT: How many children?
VOIR DIRE OF THE JURY
98
1 PROSPECTIVE JUROR: One.
2 THE COURT: How old?
3 PROSPECTIVE JUROR: Twelve.
4 THE COURT: Do you know of any reason that you
5 could not serve on this jury and be fair and impartial?
6 PROSPECTIVE JUROR: No.
7 THE COURT: Thanks very much.
8 And Mr. White?
9 PROSPECTIVE JUROR: Yes.
10 THE COURT: What is your title out there?
11 PROSPECTIVE JUROR: Director of operations and
12 public safety.
13 THE COURT: So people call you Director White
14 sometimes?
15 PROSPECTIVE JUROR: Yes, sir.
16 THE COURT: Director White, what part of the
17 district or city are you from?
18 PROSPECTIVE JUROR: Collierville.
19 THE COURT: And what is your educational
20 background?
21 PROSPECTIVE JUROR: Master's degree.
22 THE COURT: Go ahead and tell us your
23 occupation and who you work for.
24 PROSPECTIVE JUROR: The director of operations,
25 public safety. I work for the Memphis-Shelby County
VOIR DIRE OF THE JURY
99
1 Airport Authority.
2 THE COURT: And are you married?
3 PROSPECTIVE JUROR: Yes, I am.
4 THE COURT: Your wife's name and her
5 occupation?
6 PROSPECTIVE JUROR: Deborah White. Not that
7 one, and she is an accountant.
8 THE COURT: And she is an accountant. Okay.
9 It would be bad to miss that one.
10 Do you know of any reason that you could not
11 serve on this jury and be fair and impartial?
12 PROSPECTIVE JUROR: No, I do not.
13 THE COURT: Thanks very much.
14 Mr. Spurlin?
15 PROSPECTIVE JUROR: Yes, sir.
16 THE COURT: What part of the district or city
17 are you from?
18 PROSPECTIVE JUROR: Southeast Shelby County.
19 THE COURT: Okay. And how much education do
20 you have?
21 PROSPECTIVE JUROR: High school.
22 THE COURT: What is your occupation and who is
23 your employer?
24 PROSPECTIVE JUROR: Sales rep for Prime
25 Automotive.
VOIR DIRE OF THE JURY
100
1 THE COURT: Tell us what they do again, I think
2 I heard earlier, but --
3 PROSPECTIVE JUROR: Well, parts store, we sell
4 to parts stores and warehouses.
5 THE COURT: Okay. Are you married?
6 PROSPECTIVE JUROR: Yes.
7 THE COURT: And what is your wife's name and
8 her occupation?
9 PROSPECTIVE JUROR: Betty, and she works for
10 Methodist Hospital.
11 THE COURT: Okay. Do you know of any reason
12 that you could not serve on this jury and be fair and
13 impartial?
14 PROSPECTIVE JUROR: No, sir.
15 THE COURT: I should have asked you, do you
16 have children?
17 PROSPECTIVE JUROR: Yes, sir.
18 THE COURT: How many children?
19 PROSPECTIVE JUROR: Well, two of my own and one
20 stepson.
21 THE COURT: And I should ask, Mr. White, do you
22 have children?
23 PROSPECTIVE JUROR: Yes, sir, two.
24 THE COURT: Two children, okay.
25 Hand that over to Mr. Salaam. How are you
VOIR DIRE OF THE JURY
101
1 doing this morning?
2 PROSPECTIVE JUROR: Perfect.
3 THE COURT: What part of the district or city
4 are you from?
5 PROSPECTIVE JUROR: Midtown.
6 THE COURT: What is your educational
7 background?
8 PROSPECTIVE JUROR: Doctorate.
9 THE COURT: Is that in -- what's that in?
10 PROSPECTIVE JUROR: Theology.
11 THE COURT: Theology. You know, nobody asked
12 this question directly, and we nearly always ask this
13 question also, and it really goes to everybody, is there
14 any theological reason that you could not sit in judgment
15 in a case? And some people do feel that they cannot sit
16 in judgment. May as well ask the first one.
17 PROSPECTIVE JUROR: No, not at all.
18 THE COURT: Generally speaking, most people who
19 have your background say that. There are a couple of
20 denominations who do not want their members to sit on
21 juries.
22 PROSPECTIVE JUROR: No.
23 THE COURT: Have you ever run into that?
24 PROSPECTIVE JUROR: No.
25 THE COURT: Okay. Let's see, what is your
VOIR DIRE OF THE JURY
102
1 occupation and who is your employer?
2 PROSPECTIVE JUROR: Forest Hill Funeral Home
3 and Cemeteries. I'm a family service counselor and also
4 funeral director.
5 THE COURT: Are you married?
6 PROSPECTIVE JUROR: No.
7 THE COURT: Do you know of any reason that you
8 could not serve on this jury and be fair and impartial?
9 PROSPECTIVE JUROR: Not at all.
10 THE COURT: Thank you. Mr. Vedder, what part
11 of the district or city are you from?
12 PROSPECTIVE JUROR: Tipton County.
13 THE COURT: Okay. And actually you're from
14 sort of northwest of Tipton County?
15 PROSPECTIVE JUROR: Northwest.
16 THE COURT: Toward the river?
17 PROSPECTIVE JUROR: Yes.
18 THE COURT: And what is your educational
19 background?
20 PROSPECTIVE JUROR: One year of college.
21 THE COURT: And what is your occupation and who
22 is your employer?
23 PROSPECTIVE JUROR: I'm general manager of a
24 warehouse for Cirtain Plywood, Incorporated.
25 THE COURT: Okay. Are you married?
VOIR DIRE OF THE JURY
103
1 PROSPECTIVE JUROR: Yes, sir.
2 THE COURT: Your wife's name and her
3 occupation?
4 PROSPECTIVE JUROR: Wife's name is Karen, and
5 she's retired.
6 THE COURT: Okay. Do you have children?
7 PROSPECTIVE JUROR: Got three daughters of my
8 own and one stepson.
9 THE COURT: All right. Do you know of any
10 reason that you could not serve on this jury and be fair
11 and impartial?
12 PROSPECTIVE JUROR: None whatsoever, sir.
13 THE COURT: Thank you.
14 And, Mr. Smith, is it Mr. Marlow Smith?
15 PROSPECTIVE JUROR: Marlow Smith.
16 THE COURT: How are you doing today?
17 PROSPECTIVE JUROR: Doing pretty good.
18 THE COURT: What is your -- what part of the
19 district are you from?
20 PROSPECTIVE JUROR: I live in Whitehaven.
21 THE COURT: Okay. And what is your educational
22 background?
23 PROSPECTIVE JUROR: High school.
24 THE COURT: What's your occupation and who is
25 your employer?
VOIR DIRE OF THE JURY
104
1 PROSPECTIVE JUROR: Well, I'm a golf pro, but
2 I'm a retired golf pro.
3 THE COURT: Okay. Okay.
4 PROSPECTIVE JUROR: I got down in my back and
5 can't do much playing anymore.
6 THE COURT: What was the best you ever shot,
7 I'm curious?
8 PROSPECTIVE JUROR: Four under.
9 THE COURT: Four under?
10 PROSPECTIVE JUROR: Yeah.
11 THE COURT: That's a lot better than most
12 people.
13 Are you married?
14 PROSPECTIVE JUROR: Yes, sir.
15 THE COURT: What is he your wife's name and her
16 occupation?
17 PROSPECTIVE JUROR: Nell. She works for
18 Walgreens.
19 THE COURT: Children?
20 PROSPECTIVE JUROR: Got 14 kids, nine boys and
21 five girls.
22 THE COURT: That's true?
23 PROSPECTIVE JUROR: Yeah, 47 grandkids.
24 THE COURT: That's -- that may be a record.
25 Congratulations.
VOIR DIRE OF THE JURY
105
1 PROSPECTIVE JUROR: I've run across some that
2 had more.
3 THE COURT: That's wonderful. Well, do you
4 know of any reason that you could not serve on this jury
5 and be fair and impartial?
6 PROSPECTIVE JUROR: No, sir.
7 THE COURT: Thank you. Ms. Starnes, what part
8 of the district or city are you from?
9 PROSPECTIVE JUROR: Raleigh area.
10 THE COURT: What's your educational background?
11 PROSPECTIVE JUROR: High school.
12 THE COURT: What is your occupation and who is
13 your employer?
14 PROSPECTIVE JUROR: I'm a billing manager for
15 Raleigh Cordova Medical Group.
16 THE COURT: Are you married?
17 PROSPECTIVE JUROR: Separated.
18 THE COURT: What does he do and what is his
19 name?
20 PROSPECTIVE JUROR: His name is Robert, and
21 he's a mechanic for Gossett Mitsubishi.
22 THE COURT: Does that mean you get a good car
23 most of the time?
24 PROSPECTIVE JUROR: That means I don't drive a
25 Mitsubishi.
VOIR DIRE OF THE JURY
106
1 THE COURT: All right. Do you have any
2 children?
3 PROSPECTIVE JUROR: I have three.
4 THE COURT: Okay. Do you know of any reason
5 that you could not serve on this jury and be fair and
6 impartial?
7 PROSPECTIVE JUROR: I can be fair and
8 impartial, and I did send in a reason with my
9 questionnaire, but they denied it.
10 THE COURT: Okay. You know, we don't
11 necessarily see that many of those, so is it a real
12 problem --
13 PROSPECTIVE JUROR: It's relevant, yes, sir.
14 THE COURT: I'm going on -- in a minute, I'm
15 going to let you come up and tell me, just so we know it's
16 okay. We have a lot of people who asked to be excused,
17 and then most people after they see the process think,
18 well, it's okay, they can do it. I will talk to you in
19 just a couple of minutes.
20 PROSPECTIVE JUROR: Okay.
21 THE COURT: Hand that back to Mr. Smith. Mr.
22 Smith, what part of the district or city are you from?
23 PROSPECTIVE JUROR: Southeast, Orange Mound
24 area.
25 THE COURT: Okay. And what is your educational
VOIR DIRE OF THE JURY
107
1 background?
2 PROSPECTIVE JUROR: I have a master's.
3 THE COURT: Okay. And what is your occupation
4 and who is your employer?
5 PROSPECTIVE JUROR: I'm a teacher at the Porter
6 Leath Home for Children.
7 THE COURT: That's a very famous institution.
8 PROSPECTIVE JUROR: Yes, it is.
9 THE COURT: Are you married?
10 PROSPECTIVE JUROR: No, divorced.
11 THE COURT: Children?
12 PROSPECTIVE JUROR: Ten.
13 THE COURT: These are all your kids?
14 PROSPECTIVE JUROR: All these are my kids.
15 THE COURT: Well, this is -- we're having a
16 contest this time. Do you know of any reason that you
17 could not serve on this jury and be fair and impartial?
18 PROSPECTIVE JUROR: Your Honor, no, I don't.
19 THE COURT: Okay. Thanks very much.
20 Ms. Vickers -- or Reverend Vickers, actually.
21 PROSPECTIVE JUROR: Yes.
22 THE COURT: What part of the district or city
23 are you from?
24 PROSPECTIVE JUROR: From Halls, Tennessee,
25 which is Lauderdale County.
VOIR DIRE OF THE JURY
108
1 THE COURT: You know, you have -- near Halls,
2 one of the most famous map stores in the country.
3 PROSPECTIVE JUROR: Haven't been there, but I
4 have heard of it.
5 THE COURT: It is amazing, they take orders
6 from all over the world. What is your educational
7 background?
8 PROSPECTIVE JUROR: Master of divinity.
9 THE COURT: What is your occupation and who is
10 your employer?
11 PROSPECTIVE JUROR: I pastor the Poplar Grove
12 Cumberland Presbyterian Church, and they are my employer.
13 THE COURT: Are you married?
14 PROSPECTIVE JUROR: Divorced.
15 THE COURT: Children?
16 PROSPECTIVE JUROR: Three.
17 THE COURT: Do you know of any reason that you
18 could not serve on this jury and be fair and impartial?
19 PROSPECTIVE JUROR: No.
20 THE COURT: Okay. Thank you.
21 Mr. Smith, Mr. Alphonso Smith, what part of the
22 city or district are you from?
23 PROSPECTIVE JUROR: I stay out in Raleigh.
24 THE COURT: Okay. And what is your educational
25 background?
VOIR DIRE OF THE JURY
109
1 PROSPECTIVE JUROR: Associate's degree.
2 THE COURT: What is your occupation and who is
3 your employer?
4 PROSPECTIVE JUROR: Presently, right now I'm a
5 dispatcher for Memphis Truck and Trailer Services on
6 Lamar.
7 THE COURT: Are you married?
8 PROSPECTIVE JUROR: Yes, sir.
9 THE COURT: Your wife's name and her
10 occupation?
11 PROSPECTIVE JUROR: My wife's name is Patricia.
12 She's a substitute teacher for the Memphis City School
13 system.
14 THE COURT: Any children?
15 PROSPECTIVE JUROR: Two girls.
16 THE COURT: Do you know of any reason that you
17 could not serve on this jury and be fair and impartial?
18 PROSPECTIVE JUROR: No, sir.
19 THE COURT: Thank you. Mr. Stovall, what part
20 of the district or city are you from?
21 PROSPECTIVE JUROR: Collierville.
22 THE COURT: What is your educational
23 background?
24 PROSPECTIVE JUROR: Bachelor's degree.
25 THE COURT: What is your occupation and who is
VOIR DIRE OF THE JURY
110
1 your employer?
2 PROSPECTIVE JUROR: I'm a salesman for
3 Yarbrough Cable Service.
4 THE COURT: Are you married?
5 PROSPECTIVE JUROR: Yes.
6 THE COURT: Your wife's name and her
7 occupation?
8 PROSPECTIVE JUROR: Susan Stovall. She is a
9 registered nurse office manager for a psychiatrist.
10 THE COURT: Okay. Do you know of -- do you
11 have any children?
12 PROSPECTIVE JUROR: Four.
13 THE COURT: Do you know of any reason that you
14 could not serve on this jury and be fair and impartial?
15 PROSPECTIVE JUROR: No.
16 THE COURT: Thank you.
17 PROSPECTIVE JUROR: Thank you.
18 THE COURT: Mr. Viverette, what part of the
19 district or city are you from?
20 PROSPECTIVE JUROR: South Memphis.
21 THE COURT: What is your educational
22 background?
23 PROSPECTIVE JUROR: BS.
24 THE COURT: What is your occupation and who is
25 your employer?
VOIR DIRE OF THE JURY
111
1 PROSPECTIVE JUROR: Substitute teacher, Memphis
2 City Schools.
3 THE COURT: Are you married?
4 PROSPECTIVE JUROR: Yes.
5 THE COURT: Your wife's name and her
6 occupation?
7 PROSPECTIVE JUROR: Elize Viverette, teacher,
8 Memphis City School system.
9 THE COURT: Children?
10 PROSPECTIVE JUROR: Three boys.
11 THE COURT: All right. Do you know of any
12 reason that you could not serve on this jury and be fair
13 and impartial?
14 PROSPECTIVE JUROR: No, sir.
15 THE COURT: Thank you.
16 And, Ms. Saul, what part of the district or
17 city are you from?
18 PROSPECTIVE JUROR: Wolfchase area.
19 THE COURT: What is your educational
20 background?
21 PROSPECTIVE JUROR: High school.
22 THE COURT: What is your occupation and who is
23 your employer?
24 PROSPECTIVE JUROR: Secretary, U. S. Department
25 of Agriculture.
VOIR DIRE OF THE JURY
112
1 THE COURT: Are you married?
2 PROSPECTIVE JUROR: Divorced.
3 THE COURT: Children?
4 PROSPECTIVE JUROR: One.
5 THE COURT: And do you know of any reason that
6 you could not serve on this jury and be fair and
7 impartial?
8 PROSPECTIVE JUROR: No, sir.
9 THE COURT: Thank you.
10 And, Ms. Snodgrass, what part of the district
11 or city are you from?
12 PROSPECTIVE JUROR: Raleigh.
13 THE COURT: What is your educational
14 background?
15 PROSPECTIVE JUROR: High school and a few
16 college courses.
17 THE COURT: What is your occupation and who is
18 your employer?
19 PROSPECTIVE JUROR: Flight attendant, Delta
20 Airlines.
21 THE COURT: Are you married?
22 PROSPECTIVE JUROR: Divorced.
23 THE COURT: Children?
24 PROSPECTIVE JUROR: Three girls.
25 THE COURT: Do you know of any reason that you
VOIR DIRE OF THE JURY
113
1 could not serve on this jury and be fair and impartial?
2 PROSPECTIVE JUROR: No reason at all.
3 THE COURT: Okay. Thank you. Mr. Murphy, I
4 think that may have covered everything. Anything else
5 from the United States?
6 MR. MURPHY: No, sir, Your Honor.
7 THE COURT: Anything else from the defense?
8 MR. BECRAFT: None, Your Honor.
9 THE COURT: All right. If you will each fill
10 out your strike sheets and, of course, they're exercised
11 simultaneously, and I will explain to you what is going
12 on. When we first go through the -- and sometimes we have
13 a lot of conflicts, in this case not very many. Oh, wait
14 a minute, we have got somebody who wants to talk to us.
15 Ms. Starnes, come around to side bar. Sorry, Ms. Starnes.
16 (The following proceedings had at side-bar
17 bench.)
18 THE COURT: I didn't mean to leave you out.
19 PROSPECTIVE JUROR: That's okay. The only
20 thing I had to send in is my husband, his father, his
21 health is not good, and I am his caregiver, I'm his
22 primary caregiver, I'm who he calls. If something were to
23 go wrong and I was here and he couldn't get me, he won't
24 call anybody else. I mean I take care of his finances and
25 I coordinate his medical care, and he lives by himself,
VOIR DIRE OF THE JURY
114
1 and I -- you know, I'm not trying to get out of
2 everything, I'm just who he calls.
3 THE COURT: I understand. Let me ask you a
4 couple of questions.
5 PROSPECTIVE JUROR: Okay.
6 THE COURT: Just to make sure. One, let me
7 tell you one thing, we will probably select at least one
8 alternate in the case, so assuming that there's no
9 emergency, of course, you could serve, and if it turned
10 out that he had to go to the hospital or something, we
11 could let you be excused, that wouldn't be --
12 PROSPECTIVE JUROR: Okay. I just want to make
13 sure I can take care of him, that's all.
14 THE COURT: Right. And so we recognize these
15 things can happen.
16 PROSPECTIVE JUROR: Okay.
17 THE COURT: Now, let me ask a couple of things.
18 Now, does he -- he's -- is he ambulatory, he gets around
19 on his own?
20 PROSPECTIVE JUROR: Yes. Not well.
21 THE COURT: About how old is he?
22 PROSPECTIVE JUROR: He's 82.
23 THE COURT: Okay.
24 PROSPECTIVE JUROR: He has got Parkinson's
25 disease along with some other medical conditions, but the
VOIR DIRE OF THE JURY
115
1 Parkinson's keeps him from moving around well.
2 THE COURT: How often do you see him?
3 PROSPECTIVE JUROR: Usually about twice a week,
4 and then I talk to him every day.
5 THE COURT: Okay. He's become your buddy and
6 that sort of thing, I mean?
7 PROSPECTIVE JUROR: There's not any other
8 family.
9 THE COURT: You're it?
10 PROSPECTIVE JUROR: Like I said, Robert would
11 do for him, but he's going to call me. I just take care
12 of everything and have since -- well, for a long time.
13 THE COURT: For a long time?
14 PROSPECTIVE JUROR: He can't drive or anything.
15 THE COURT: Okay. Does he take care of his own
16 meals or does somebody come in and help him?
17 PROSPECTIVE JUROR: He does do his own meals.
18 THE COURT: Does he take any medications that
19 you have to be concerned about?
20 PROSPECTIVE JUROR: No, no, he takes care of
21 all of that.
22 THE COURT: Okay. Let -- what we normally do,
23 if somebody is the sole caregiver of somebody who
24 requires, you know, constant care, and that doesn't mean
25 every minute, but that means somebody there in the
VOIR DIRE OF THE JURY
116
1 morning, afternoon, somebody is there quite a bit of the
2 time during every day, we excuse them, we always do.
3 That's just pretty routine. If it is somebody who has a
4 primary responsibility, but is only there a couple of
5 times a week, what we usually do is ask them to serve on
6 the jury, but tell them that, you know, they can check in
7 with the individual, and -- we ask them not to keep their
8 cell phone on during court, but, you know, if it is an
9 emergency that comes up that at that time we will address
10 it and excuse them. We need to. But the main question
11 I'm going to let these lawyers ask -- there's another
12 question they usually ask. Anything else, Mr. Murphy.?
13 MR. MURPHY: Ma'am, is the -- thinking about
14 your father-in-law situation, is it going to weigh on your
15 mind so much you're going to have trouble listening to the
16 proof?
17 PROSPECTIVE JUROR: No.
18 MR. MURPHY: Okay.
19 PROSPECTIVE JUROR: I can't let anybody worry
20 me that much, I would go crazy.
21 THE COURT: But I mean that's the main thing we
22 want to know.
23 PROSPECTIVE JUROR: Like I said, as long as I
24 know that if something happened, that I can drop and run.
25 THE COURT: As long as you tell us.
VOIR DIRE OF THE JURY
117
1 PROSPECTIVE JUROR: You would know. You would
2 know.
3 THE COURT: Just let us know right away and we
4 will take care of it.
5 PROSPECTIVE JUROR: Okay. That's the main
6 thing. Thank you.
7 (The following proceedings were had in open
8 court.)
9 THE COURT: All right. Each side can fill out
10 their peremptory challenge sheets. There are two kinds of
11 challenges. One is for cause, that's what I indicated
12 earlier, and that's when somebody knows somebody to such
13 degree, for example, that they couldn't be fair or maybe
14 they have had a very similar experience, then, typically,
15 they're allowed to be excused for cause. Once we have got
16 14 people who are not excused for cause, then each side
17 gets a certain number of peremptory challenges, and
18 technically -- well, theoretically, they can excuse you
19 for any reason, but there are a couple of unconstitutional
20 reasons that they cannot excuse you, so -- I would like to
21 correct that. They cannot excuse you because of your
22 gender, they couldn't try to knock all the women off or
23 all of the men off. They couldn't excuse you because of
24 your race, they couldn't excuse you because of your
25 national origin, religion, things that are protected under
VOIR DIRE OF THE JURY
118
1 the Constitution, they cannot excuse you for those
2 reasons, but -- and so they have pretty broad discretion
3 in peremptory challenges, but not unlimited discretion.
4 In a minute, they're going to hand up their peremptory
5 challenge sheets, and we will see who gets to go ahead and
6 go home and who gets to stay with us. And when we excuse
7 that group of people, then we call folks from the panel
8 and ask you some additional questions.
9 We got a lawyer back there? Somebody who looks
10 like a lawyer? He's not one, I suppose. He's not a
11 lawyer. Okay. He's all right. No problem.
12 (Strike sheets were handed to the Judge.)
13 THE COURT: Okay. Let me see counsel at side
14 bar.
15 (The following proceedings had at side-bar
16 bench.)
17 THE COURT: There were five strikes by the
18 defense, but one of them was previously struck by the
19 government, so there are four charged against the
20 defendant.
21 On the first row, defense -- excuse me, the
22 defense struck Mr. White and then the government struck
23 Mr. Spurlin and Mr. Salaam, and the defense struck Mr.
24 Smith, Mr. Marlow Smith, and the defense struck Ms.
25 Starnes in seat seven, so two, three, four, six, seven.
VOIR DIRE OF THE JURY
119
1 On the second row, the defense struck Ms. Saul in seat
2 nine. The government struck Mr. Viverette in seat 10 and
3 Ms. Vickers in seat 13. So the rest are accepted as
4 jurors in the case. Any objections by the government?
5 MR. MURPHY: No, sir, Your Honor.
6 MR. BECRAFT: No, Your Honor.
7 THE COURT: Okay. Thank you.
8 MR. BECRAFT: I'm operating under the
9 presumption there's no back strikes?
10 THE COURT: There are no back strikes.
11 (The following proceedings were had in open
12 court.)
13 THE COURT: We're going to excuse part of you,
14 eight of you, and keep the rest, and for those who are
15 being excused, thanks for being here, and we do appreciate
16 the fact that you were available for service.
17 On the first row, we're going to excuse Mr.
18 White, Mr. Spurlin, Mr. Salaam and Mr. Smith, Mr. Marlow
19 Smith. So first row, seats two, three, four and six and,
20 Ms. Starnes, seven.
21 PROSPECTIVE JUROR: Do we need to call back
22 tomorrow?
23 THE COURT: You will not need to. In fact,
24 this counts as your jury service. So thanks very much.
25 PROSPECTIVE JUROR: Thank you.
VOIR DIRE OF THE JURY
120
1 THE COURT: Appreciate it.
2 On the second row, we're going to excuse Ms.
3 Saul, Mr. Viverette and Reverend Vickers, so thank you.
4 Yes, ma'am, Ms. Starnes, we're going to let you be
5 excused. It worked out well for you.
6 We're going to reseat the ones who have been
7 selected because you have been selected as jurors in the
8 case, and we're going to ask Mr. Vedder, move over to seat
9 two. Ms. Snodgrass will actually move to seat three, Mr.
10 Stovall to seat four, Mr. Smith to seat five -- Mr.
11 Alphonso Smith seat five, Mr. Keith Smith to seat six. So
12 you become the first six jurors that have been accepted in
13 the case. We're going to seat another eight individuals
14 and ask them a few more questions. We will start with
15 filling seat number seven and then seat eight and so
16 forth.
17 THE CLERK: Billy Shaneyfelt. Phillip Smith.
18 Rose Saulsbury. Freida Straughter. Melanie Stewart.
19 Patsy Smith. Arun Gandhi. Russell Ingram.
20 THE COURT: Is your last name pronounced
21 Shaneyfelt?
22 PROSPECTIVE JUROR: Shaneyfelt.
23 THE COURT: Mr. Shaneyfelt, how are you today?
24 PROSPECTIVE JUROR: Fine.
25 THE COURT: We asked quite a few questions.
VOIR DIRE OF THE JURY
121
1 I'm going to sort of reverse my process a little bit and
2 just go ahead and ask those people those last questions to
3 make sure we have covered that with everybody, and then I
4 will ask a couple of follow-up questions. Would you stand
5 and tell us what part of the district or city you're from?
6 PROSPECTIVE JUROR: I'm from Bartlett.
7 THE COURT: And what is your educational
8 background?
9 PROSPECTIVE JUROR: I have a bachelor's degree.
10 THE COURT: What is your occupation and who is
11 your employer?
12 PROSPECTIVE JUROR: I'm an interface programmer
13 with Baptist Hospital.
14 THE COURT: Tell us what that does so we will
15 understand.
16 PROSPECTIVE JUROR: Computers talk to
17 computers, I control that.
18 THE COURT: Are you married?
19 PROSPECTIVE JUROR: Yes, married.
20 THE COURT: And your wife's name and her
21 occupation?
22 PROSPECTIVE JUROR: Wife's name is Pam. She is
23 a school teacher with Shelby County schools, and we have
24 two children.
25 THE COURT: Two children. Do you know of any
VOIR DIRE OF THE JURY
122
1 reason that you could not serve on this jury and be fair
2 and impartial?
3 PROSPECTIVE JUROR: No, sir.
4 THE COURT: We had asked a lot of questions
5 about the type of case and prejudgment and all those
6 questions, did they seem to make sense to you?
7 PROSPECTIVE JUROR: Yes, sir.
8 THE COURT: Do you have any problem in giving
9 the defendant the presumption of innocence that the law
10 requires on each and every count in this case?
11 PROSPECTIVE JUROR: No problem.
12 THE COURT: If the government fails to prove
13 its case against the defendant on any count or all counts,
14 do you understand you have to return a verdict of not
15 guilty?
16 PROSPECTIVE JUROR: Right.
17 THE COURT: All right. Well, we talked about
18 all of those characteristics, I'm going to ask other folks
19 a few other things.
20 Hand that back to Mr. Ingram, if you would.
21 Mr. Ingram, how are you today?
22 PROSPECTIVE JUROR: I'm fine, thanks.
23 THE COURT: Are you married to a lawyer?
24 PROSPECTIVE JUROR: No, not a lawyer.
25 THE COURT: A judge? I know.
VOIR DIRE OF THE JURY
123
1 PROSPECTIVE JUROR: That's right.
2 THE COURT: Well, she is also a lawyer.
3 PROSPECTIVE JUROR: I suppose so. She is my
4 lawyer.
5 THE COURT: That's right. You're in trouble,
6 but that's good. Well, first of all, what part of the
7 district or city are you from?
8 PROSPECTIVE JUROR: Highland Park.
9 THE COURT: And what is your educational
10 background?
11 PROSPECTIVE JUROR: I have a couple of
12 bachelor's degrees.
13 THE COURT: What's your occupation and who is
14 your employer?
15 PROSPECTIVE JUROR: I'm a general manager. I
16 work for Physiotherapy Associates, one of their divisions.
17 THE COURT: Okay. You are married, is that
18 correct?
19 PROSPECTIVE JUROR: I am married.
20 THE COURT: Your wife's name is and her
21 occupation?
22 PROSPECTIVE JUROR: Holly Kirby. She is a
23 Tennessee appellate court judge.
24 THE COURT: Do you -- y'all don't have any
25 kids?
VOIR DIRE OF THE JURY
124
1 PROSPECTIVE JUROR: I have two stepchildren.
2 THE COURT: Two stepchildren, right. Do you
3 know of any reason that you could not serve on this jury
4 and be fair and impartial?
5 PROSPECTIVE JUROR: There's no reason I could
6 not be fair and impartial, however, there is a reason that
7 I can't serve, if it please you.
8 THE COURT: I'm going to make a note and we
9 will talk about that in a minute.
10 PROSPECTIVE JUROR: Okay. Thanks.
11 THE COURT: It's Mr. Arun Gandhi?
12 PROSPECTIVE JUROR: Gandhi.
13 THE COURT: You're from India?
14 PROSPECTIVE JUROR: Yes.
15 THE COURT: And your very famous relative --
16 you have a very famous relative?
17 PROSPECTIVE JUROR: Uh-huh.
18 THE COURT: And before -- I'm going to ask a
19 couple of questions, though. Tell us what part of the
20 district or city you're from.
21 PROSPECTIVE JUROR: Midtown.
22 THE COURT: Okay. And what is your educational
23 background?
24 PROSPECTIVE JUROR: Home schooler.
25 THE COURT: Okay. And what is your occupation
VOIR DIRE OF THE JURY
125
1 and who is your employer?
2 PROSPECTIVE JUROR: I'm self-employed, and my
3 occupation is teaching nonviolence.
4 THE COURT: Exactly. And I was trying to think
5 of the correct name for the center that --
6 PROSPECTIVE JUROR: The M. K. Gandhi Institute
7 for Nonviolence.
8 THE COURT: Are you married?
9 PROSPECTIVE JUROR: Yes, sir.
10 THE COURT: Your wife's name and her
11 occupation?
12 PROSPECTIVE JUROR: Sanunda. She is a
13 researcher.
14 THE COURT: Where is she a researcher?
15 PROSPECTIVE JUROR: At the institute.
16 THE COURT: Do you have children?
17 PROSPECTIVE JUROR: Two.
18 THE COURT: Do you know of any reason that you
19 could not serve on this jury and be fair and impartial?
20 PROSPECTIVE JUROR: No. Like him, I have a
21 personal reason.
22 THE COURT: Okay. I'm going to put that down,
23 and we'll -- I'll just ask those questions at side bar.
24 PROSPECTIVE JUROR: Okay.
25 THE COURT: Thank you. Ms. Smith, what part of
VOIR DIRE OF THE JURY
126
1 the district or city are you from?
2 PROSPECTIVE JUROR: East Memphis.
3 THE COURT: And what is your educational
4 background?
5 PROSPECTIVE JUROR: High school.
6 THE COURT: What is your occupation and who is
7 your employer?
8 PROSPECTIVE JUROR: Housewife.
9 THE COURT: Are you married?
10 PROSPECTIVE JUROR: Yes, 45 years.
11 THE COURT: All right. Do you have children?
12 PROSPECTIVE JUROR: I have one daughter and one
13 stepdaughter.
14 THE COURT: Do you know of any reason that you
15 could not serve on this jury and be fair and impartial?
16 PROSPECTIVE JUROR: No, sir.
17 THE COURT: Okay. We did ask everybody, I have
18 got two people I'm going to talk to at side bar, but it
19 was a long discussion really about not forming opinions
20 before you've heard all the evidence and had the final
21 arguments, final instructions on the law. Any problem
22 with following those instructions and proceeding in that
23 manner?
24 PROSPECTIVE JUROR: I don't think so.
25 THE COURT: When you -- when I read the
VOIR DIRE OF THE JURY
127
1 indictment and we had all that discussion and I read the
2 indictment, did you think -- does that put -- cause some
3 stress for people in terms of being able to remain fair
4 and impartial?
5 PROSPECTIVE JUROR: Kind of.
6 THE COURT: Okay. No, that's really what I'm
7 talking about.
8 PROSPECTIVE JUROR: Yeah.
9 THE COURT: Why do you say that? I think
10 you're right, but why do you say that?
11 PROSPECTIVE JUROR: Well, I don't really know,
12 it's just -- I mean we all know we have to fill out taxes,
13 so I don't know, it just kind of seems strange.
14 THE COURT: Okay. All right. And in the
15 law -- in the tax law, there's law about the requirements
16 to file taxes and there's also a thing called a good faith
17 defense, and that's what we're probably going to be
18 talking about in this case. I don't know that for sure,
19 because they never tell me exactly what they're going to
20 do, because they don't have to. And it's a theory under
21 which a person can proceed without -- perhaps without
22 taxes, and the jury just has to decide that question.
23 Now, you can't start out on one side or the other, you
24 have to listen to the law as I give it to you at the end
25 of the case and apply that. I'm going to tell you
VOIR DIRE OF THE JURY
128
1 something about the law before the case really gets going
2 too. Can you keep an open mind, because I think you hit
3 it right on the head, it sort of moves you off center a
4 little bit and you have to work to get back to center.
5 PROSPECTIVE JUROR: I'll try.
6 THE COURT: Okay. And you understand why we're
7 trying to do that?
8 PROSPECTIVE JUROR: Yes.
9 THE COURT: Because it's not fair for anybody
10 to start out with some mark on that slate.
11 PROSPECTIVE JUROR: That's right.
12 THE COURT: Okay. I just wanted to make sure I
13 covered that with somebody, and everybody agrees.
14 Let's hand that to Ms. Stewart. Ms. Stewart,
15 how are you from?
16 PROSPECTIVE JUROR: Just fine, Your Honor.
17 THE COURT: What part of the city or district
18 are you?
19 PROSPECTIVE JUROR: Germantown.
20 THE COURT: And what is your educational
21 background?
22 PROSPECTIVE JUROR: Law school.
23 THE COURT: And that's not a very profitable
24 advocation at this point, going to school. How long have
25 you been going to school?
VOIR DIRE OF THE JURY
129
1 PROSPECTIVE JUROR: No, my educational
2 background is law school. I have been an attorney for 22
3 years.
4 THE COURT: I thought so. I thought there was
5 an attorney out there, and you didn't raise your hand.
6 PROSPECTIVE JUROR: I'm the senior partner in
7 Stewart and Wilkinson.
8 THE COURT: That's what I though.
9 PROSPECTIVE JUROR: I raised my hand.
10 THE COURT: I didn't see you, and I thought I
11 had it mixed up.
12 PROSPECTIVE JUROR: We do insurance defense
13 work.
14 THE COURT: I feel much better now. I wasn't
15 wrong about that.
16 PROSPECTIVE JUROR: But I don't disagree.
17 THE COURT: Do you do tax work?
18 PROSPECTIVE JUROR: No, Your Honor, not on a
19 regular -- occasionally we have tax questions, but not
20 very often.
21 THE COURT: You know, the --
22 PROSPECTIVE JUROR: But I am in the Falls
23 Building, and the IRS is on the fourth and sixth floor.
24 THE COURT: What floor are you on?
25 PROSPECTIVE JUROR: The eighth.
VOIR DIRE OF THE JURY
130
1 THE COURT: You know something, we had jurors
2 who were lawyers before, that's really not a problem if
3 they can do certain things. For example, they have to not
4 tell everybody else what the law is, they have to take the
5 law from the judge. Now, usually the law I give them --
6 because these lawyers will all tell you, it is very clear
7 that that is really the law, but is that something that
8 you would be able to do if you were the -- a juror, that
9 is take the law as I give it to you and not substitute
10 your own opinion about what the law is?
11 PROSPECTIVE JUROR: Yes, Your Honor.
12 THE COURT: Okay. You don't -- now, you do
13 mainly insurance defense now?
14 PROSPECTIVE JUROR: Yes.
15 THE COURT: Okay. I want to make sure, I'm
16 going to go back and ask that question again, have you
17 ever done a tax case?
18 PROSPECTIVE JUROR: Have I ever handled a tax
19 case? No. Have I given opinions after research on tax
20 law? Yes.
21 THE COURT: Have you ever given an opinion in
22 connection with 26 United States Code, Section 7201?
23 PROSPECTIVE JUROR: No, sir.
24 THE COURT: I want to make sure that we haven't
25 done that. Now, the other thing is, ladies and gentlemen,
VOIR DIRE OF THE JURY
131
1 for all the rest of you, I'm not going to go back on my
2 other jurors, particularly, but do you realize that if Ms.
3 Stewart is an attorney in the case, we just always make
4 sure that the jury understands that she can't answer any
5 legal questions, and you can't ask her any legal questions
6 because she is just there as a fact-finder and then a
7 person to apply the law. She is not there to give legal
8 advice to the jury, and it would be improper to do that.
9 Any problem with that, Mr. Shaneyfelt, that you wouldn't
10 be able to say, now you're a lawyer, you ought to know the
11 answer to this? You would not be able to do that?
12 PROSPECTIVE JUROR: Right.
13 THE COURT: Okay. And I'm going to go back to
14 a couple of my jurors that are already selected, I usually
15 don't necessarily do this, but, Ms. Vasser, do you
16 understand that you wouldn't be able to defer to Ms.
17 Stewart just because she is a lawyer? You couldn't just
18 agree with her because she is a lawyer, because you're
19 there to decide the facts and to apply the law to them,
20 you're not there to just agree. It's a trial by twelve --
21 trial by twelve jurors, not a trial by one juror who is
22 going to tell all the jurors what to do. That's real
23 important everybody agree on that. Any problem with that?
24 PROSPECTIVE JUROR: No.
25 THE COURT: If Ms. Stewart says, look, this is
VOIR DIRE OF THE JURY
132
1 what I think ought to be done, you realize you don't have
2 to agree with her?
3 PROSPECTIVE JUROR: Right.
4 THE COURT: Do you have any problem with
5 disagreeing with somebody if you think that they're wrong
6 and you're right?
7 PROSPECTIVE JUROR: No, I do not.
8 THE COURT: Mr. Vedder, any problem with the
9 fact that you would not be able to turn to somebody and
10 say, now, this is what Ms. Stewart says, she is a lawyer,
11 therefore, you should agree; you could not do that?
12 PROSPECTIVE JUROR: No problem, Judge.
13 THE COURT: I hope this makes sense to
14 everybody. It is real important.
15 Ms. Snodgrass, any problem with that?
16 PROSPECTIVE JUROR: No problem.
17 THE COURT: In other words, you're going to
18 decide the facts and those fact issues are not ones on
19 which a lawyer could express an opinion other than just
20 like everybody else? They would just say, well, I think
21 these are the facts, no problem with that.
22 Let me make sure, then, it's Mr. Stovall, Mr.
23 Stovall, any problem with the fact that you're going to
24 have to make up your own mind about the facts, you could
25 not refer to an attorney who happened --
VOIR DIRE OF THE JURY
133
1 PROSPECTIVE JUROR: No, Your Honor.
2 THE COURT: That also means that you don't have
3 to elect an attorney foreperson. I'm not saying -- you do
4 what you want to on that --
5 PROSPECTIVE JUROR: Right.
6 THE COURT: But they don't get special status.
7 Nobody gets a special spot on the panel with special
8 deference. Any problem with that?
9 PROSPECTIVE JUROR: No.
10 THE COURT: And Mr. Alphonso Smith, any problem
11 with the fact that if you do happen to end up with a
12 lawyer on the panel, you cannot give their opinion or
13 their observations as to the facts any more -- you have
14 got to rely on yourself to determine the facts and consult
15 with all your other members of the jury, you can't just
16 rely on one person who happens to have a law degree.
17 PROSPECTIVE JUROR: No problem.
18 THE COURT: And the same thing for Mr. Keith
19 Smith.
20 PROSPECTIVE JUROR: No, no, Your Honor, no
21 problem.
22 THE COURT: We have actually -- and I think we
23 have already covered it with Mr. Shaneyfelt, so I will
24 hand it back to Mr. Ingram.
25 PROSPECTIVE JUROR: I don't have a problem.
VOIR DIRE OF THE JURY
134
1 THE COURT: And the same thing, Mr. Gandhi, you
2 understand if you're on the panel, you couldn't do that.
3 I'm going to go to Ms. Patsy Smith, any problem
4 with that, Ms. Smith?
5 PROSPECTIVE JUROR: Huh-uh.
6 THE COURT: Even if it turns out that you like
7 Ms. Stewart, you wouldn't be able to agree with her just
8 because she is a lawyer, is that okay?
9 PROSPECTIVE JUROR: Yes.
10 THE COURT: Ms. Stewart, I hope that doesn't
11 offend you, but we always check this out, and sometimes we
12 end up with physicians, we do the same thing with anybody
13 who -- you know, if it is a malpractice case, we still ask
14 the same question. Now, is that going to be difficult for
15 you to sit as a juror and be fair and impartial?
16 PROSPECTIVE JUROR: No, sir.
17 THE COURT: Because -- are you usually aligned
18 with one side or the other, the government or the defense?
19 PROSPECTIVE JUROR: We do civil litigation,
20 Your Honor.
21 THE COURT: Okay.
22 PROSPECTIVE JUROR: We -- some of the lawyers
23 in my office may handle some criminal work, but I don't.
24 THE COURT: All right. Let's go back and make
25 sure I covered a couple of other things. Are you married?
VOIR DIRE OF THE JURY
135
1 PROSPECTIVE JUROR: Yes.
2 THE COURT: And your husband's name?
3 PROSPECTIVE JUROR: Sam.
4 THE COURT: And what does he do?
5 PROSPECTIVE JUROR: He's an insurance adjuster
6 for GEICO.
7 THE COURT: Has he been busy?
8 PROSPECTIVE JUROR: Yes, sir.
9 THE COURT: Do you have children?
10 PROSPECTIVE JUROR: We have two girls, three
11 and a half and 19 months.
12 THE COURT: Do you know of any reason that you
13 could not serve on this jury and be fair and impartial?
14 PROSPECTIVE JUROR: No, sir.
15 THE COURT: Okay. Thank you. You threw me
16 off, I didn't see you raise your hand, so I completely --
17 I thought I was wrong. Nice to have you.
18 Now, let's see, help me with pronouncing your
19 last name.
20 PROSPECTIVE JUROR: Straughter.
21 THE COURT: I'm going to spell it phonetically
22 because you have got lots of letters in there. I
23 shortened it, so I will remember it. Ms. Straughter, how
24 are you today?
25 PROSPECTIVE JUROR: Good. How are you?
VOIR DIRE OF THE JURY
136
1 THE COURT: I'm fine. What part of the
2 district or city are you from?
3 PROSPECTIVE JUROR: In Mitchell Heights.
4 THE COURT: What is your educational
5 background?
6 PROSPECTIVE JUROR: High school.
7 THE COURT: What is your occupation and who is
8 your employer?
9 PROSPECTIVE JUROR: Okay, I work for Memphis
10 City Schools, cafeteria helper, Idlewild Elementary.
11 THE COURT: They have had some famous alumni at
12 that school, it's a very interesting school.
13 PROSPECTIVE JUROR: Okay.
14 THE COURT: Of course, there was -- one of the
15 district judges went to that school. He's retired now.
16 And then I'm going to tell something I shouldn't probably
17 say, I think Machine Gun Kelly went to Idlewild, didn't
18 he? It was before he became known in his later career,
19 very interesting history.
20 Are you married?
21 PROSPECTIVE JUROR: Divorced.
22 THE COURT: Children?
23 PROSPECTIVE JUROR: Four.
24 THE COURT: Do you know of any reason that you
25 could not serve on this jury and be fair and impartial?
VOIR DIRE OF THE JURY
137
1 PROSPECTIVE JUROR: No.
2 THE COURT: Okay. Thank you. Ms. Saulsberry?
3 PROSPECTIVE JUROR: Yes.
4 THE COURT: What part of the city or district
5 are you from?
6 PROSPECTIVE JUROR: Southeast.
7 THE COURT: What is your educational
8 background?
9 PROSPECTIVE JUROR: Twelfth.
10 THE COURT: What is your occupation and who is
11 your employer?
12 PROSPECTIVE JUROR: Retired.
13 THE COURT: From what? We just want to make
14 sure you're not a retired IRS agent?
15 PROSPECTIVE JUROR: From General Electric.
16 THE COURT: Okay. And are you married?
17 PROSPECTIVE JUROR: Yes.
18 THE COURT: Your husband's name and his
19 occupation?
20 PROSPECTIVE JUROR: Johnny, retired.
21 THE COURT: What did he retire from?
22 PROSPECTIVE JUROR: Cleowrap.
23 THE COURT: Children?
24 PROSPECTIVE JUROR: One daughter.
25 THE COURT: Do you know of any reason that you
VOIR DIRE OF THE JURY
138
1 could not serve on this jury and be fair and impartial?
2 PROSPECTIVE JUROR: No, sir.
3 THE COURT: And I did ask Ms. Patsy Smith
4 some -- a little longer question, I want to ask one of you
5 those questions, but do you think that it is difficult to
6 get back to being a completely neutral person when you
7 know the nature of the charges? Does it cause you some
8 concern about being able to do that?
9 PROSPECTIVE JUROR: Yes, I do.
10 THE COURT: And it does seem very important
11 that we all be able to do that. Do you think with effort
12 people can go back to that point and really put the
13 government to its burden of proof in this case?
14 PROSPECTIVE JUROR: I think we can.
15 THE COURT: All right. I'm going to ask you to
16 hand that over to Mr. Phillip Smith. We have got lots of
17 Smiths on the panel. Mr. Smith, how are you doing today?
18 PROSPECTIVE JUROR: I'm doing fine.
19 THE COURT: What part of the district or city
20 are you from?
21 PROSPECTIVE JUROR: I'm from Raleigh.
22 THE COURT: What's your educational background?
23 PROSPECTIVE JUROR: High school plus trade
24 schools.
25 THE COURT: What is your occupation and who is
VOIR DIRE OF THE JURY
139
1 your employer?
2 PROSPECTIVE JUROR: I'm semi-retired. I have a
3 landscape business now.
4 THE COURT: Okay. I would assume that has been
5 busy lately, though, with all this --
6 PROSPECTIVE JUROR: Well, not too bad.
7 THE COURT: What did you do before you retired?
8 PROSPECTIVE JUROR: I worked for E. I. DuPont
9 for 32 years.
10 THE COURT: In what section?
11 PROSPECTIVE JUROR: Well, I worked in
12 operations, hydrogen peroxide, sodium cyanide,
13 acrylonitrile and in maintenance the last ten years.
14 THE COURT: The last ten years, okay. It is an
15 interesting -- it has been an interesting place to work.
16 Are you married?
17 PROSPECTIVE JUROR: I'm married. My wife's
18 name is Wilma. I have two sons.
19 THE COURT: Does she still work?
20 PROSPECTIVE JUROR: She is a domestic employee.
21 THE COURT: Okay. She works -- you're saying
22 she works at home?
23 PROSPECTIVE JUROR: That's right.
24 THE COURT: That's the best deal anybody can
25 ever get is for you to have a spouse that will do that.
VOIR DIRE OF THE JURY
140
1 PROSPECTIVE JUROR: That's right.
2 THE COURT: Because it takes a lot of energy.
3 Do you know of any reason that you could not serve on this
4 jury and be fair and impartial?
5 PROSPECTIVE JUROR: I have had a little bit of
6 experience with persons not paying tax. I had some
7 employees that stopped paying tax, and they tried to
8 convince me not to pay tax.
9 THE COURT: I'm going to do this, I'm going to
10 let us talk about that just a little bit at side bar. Are
11 you familiar at all with the law in this area?
12 PROSPECTIVE JUROR: I haven't studied the law
13 on the taxes.
14 THE COURT: We will talk about that in just a
15 minute. We have got three people to talk with at side
16 bar, and I'm going to have Mr. Ingram come around first.
17 (The following proceedings had at side-bar
18 bench.)
19 PROSPECTIVE JUROR: Good afternoon.
20 THE COURT: How are you doing today?
21 PROSPECTIVE JUROR: I'm fine.
22 THE COURT: What is your situation?
23 PROSPECTIVE JUROR: I'm in school.
24 THE COURT: Oh.
25 PROSPECTIVE JUROR: I'm a master candidate at
VOIR DIRE OF THE JURY
141
1 Vanderbilt, and I will miss school, which is -- I really
2 can't afford to do that.
3 THE COURT: You're actually during session
4 right now?
5 PROSPECTIVE JUROR: Actually, the pre-session
6 starts tomorrow and then the full session starts on
7 Thursday morning. So, you know, it's --
8 THE COURT: Does anybody have any problem with
9 letting him be excused?
10 MR. BECRAFT: No.
11 THE COURT: Mr. Murphy?
12 MR. MURPHY: No, Your Honor. I'm falling apart
13 here.
14 PROSPECTIVE JUROR: I would like to serve at
15 some point. Is there any way I can defer and --
16 THE COURT: Sure. Mrs. Saba, let Ms. Dote
17 know. When will you be out of school?
18 PROSPECTIVE JUROR: May of 2004.
19 THE COURT: Just put him down for May of 2004.
20 (The following proceedings were had in open
21 court.)
22 THE COURT: Mr. Gandhi, if you would come
23 around, please.
24 (The following proceedings had at side-bar
25 bench.)
VOIR DIRE OF THE JURY
142
1 THE COURT: How are you doing?
2 PROSPECTIVE JUROR: Very well, thank you.
3 THE COURT: What is your situation?
4 PROSPECTIVE JUROR: I have to be in Wisconsin
5 over the weekend, conduct some workshops there, and I
6 don't know if I will be able to get back then by Monday in
7 case the -- in case the case goes on Monday.
8 THE COURT: That's really what -- do you have
9 any questions or what do you think?
10 MR. MURPHY: When are you leaving to go up to
11 Wisconsin?
12 THE WITNESS: Friday night.
13 THE COURT: And where are you going up there?
14 PROSPECTIVE JUROR: Appleton. That's a long
15 drive, Judge.
16 THE COURT: Any objection to allowing Mr.
17 Gandhi to be excused?
18 MR. MURPHY: No, sir.
19 MR. BECRAFT: No, Your Honor.
20 THE COURT: I think that really might be an
21 impediment. I take it you have to get ready for the
22 workshop?
23 PROSPECTIVE JUROR: Yes.
24 THE COURT: You would like to be excused?
25 PROSPECTIVE JUROR: Please.
VOIR DIRE OF THE JURY
143
1 THE COURT: Without objection, we will let you
2 be excused.
3 MR. BECRAFT: No objection, Your Honor.
4 MR. MURPHY: Thank you.
5 (The following proceedings were had in open
6 court.)
7 THE COURT: Mr. Smith, yes, sir.
8 (The following proceedings had at side-bar
9 bench.)
10 THE COURT: We're going to let you stand right
11 here. What is your situation, you had some employees
12 who --
13 PROSPECTIVE JUROR: Well, I worked with some
14 guys that didn't pay income tax for several years. They
15 tried to convince me not to pay income tax, and I think
16 they were convicted and sentenced. It was Eddie Perry and
17 a John Pollard, and I was one of their supervisors, and
18 the other one was before I was supervisor, and I don't
19 know how many years they didn't pay tax, but they didn't
20 convince me, I paid tax and everything, but --
21 THE COURT: Were they at DuPont?
22 PROSPECTIVE JUROR: Right.
23 THE COURT: At DuPont?
24 PROSPECTIVE JUROR: Both of them worked at
25 DuPont. And it was several people that wasn't paying
VOIR DIRE OF THE JURY
144
1 taxes, and I understand that they were -- did get some
2 time out of it. I'm not sure about Pollard, but I think
3 Eddie Perry did.
4 THE COURT: Well, do you --
5 PROSPECTIVE JUROR: It doesn't have any effect
6 on me. I mean --
7 THE COURT: At some point in time, you
8 determined something about their argument about not paying
9 taxes. Did you consider --
10 PROSPECTIVE JUROR: At the time I thought they
11 were wrong, but I didn't believe them enough that I -- I
12 paid my taxes.
13 THE COURT: Okay. Any questions from anybody
14 else?
15 MR. MURPHY: No.
16 MR. BECRAFT: None.
17 THE COURT: Okay. We're -- we'll keep you.
18 Thanks very much.
19 (The following proceedings were had in open
20 court.)
21 PROSPECTIVE JUROR: Can I ask to speak to you
22 up there?
23 THE COURT: Yes, sir. Okay, we will let you
24 come around.
25 (The following proceedings had at side-bar
VOIR DIRE OF THE JURY
145
1 bench.)
2 PROSPECTIVE JUROR: I'm not trying to be exempt
3 from the case, I have one problem that I have come up with
4 is we're having in-service training where I work at at
5 Porter Leath, and I'm doing a CDA class in the evening
6 around 5:00 o'clock at the library. I don't want to be
7 exempted from the class, I want to be a part of it, but
8 would that be a problem?
9 THE COURT: We will normally leave between 5:00
10 and 5:15, so that is going to be an impediment for that
11 class, I think.
12 PROSPECTIVE JUROR: Uh-huh.
13 THE COURT: And when does Porter Leath start
14 in-service?
15 PROSPECTIVE JUROR: We started today, but I had
16 to be here today.
17 THE COURT: Right, exactly.
18 PROSPECTIVE JUROR: Right.
19 THE COURT: Exactly. Now, what's this class
20 you're taking at the library?
21 PROSPECTIVE JUROR: It's called CDA,
22 certification for day treatment.
23 THE COURT: What do you do the skills for?
24 PROSPECTIVE JUROR: Well, basically what we do
25 is, I'm working early childhood development program, and
VOIR DIRE OF THE JURY
146
1 what we do is we get certified under that type of facility
2 whereas we take care of babies, more or less, six months
3 to three years old. Once they become three years old,
4 then they graduate from my program, and they move to
5 another program, and I just started, you know, this
6 program, so I didn't have any -- I didn't have enough
7 hours even with my master's in child care, so they are
8 sending me to CDA class, okay, so I can get my
9 credentials.
10 THE COURT: Is this required for you to
11 continue to work at Porter Leath?
12 PROSPECTIVE JUROR: Uh-huh.
13 THE COURT: How often is the course offered?
14 PROSPECTIVE JUROR: It's three days a week.
15 It's weekly right now, because we graduate the 27th of
16 September. It is like three days a week.
17 THE COURT: How long -- and it's now starting?
18 PROSPECTIVE JUROR: It just started this past
19 week, yes, sir.
20 THE COURT: How many classes have you attended
21 already?
22 PROSPECTIVE JUROR: Eight.
23 THE COURT: And how long does it go in the
24 evening?
25 PROSPECTIVE JUROR: It goes from like 5:00
VOIR DIRE OF THE JURY
147
1 o'clock until like 7:30.
2 THE COURT: Where do they teach the course, is
3 it at the main library?
4 PROSPECTIVE JUROR: Yes, sir, on Poplar.
5 THE COURT: And does it start on time at 5:00?
6 PROSPECTIVE JUROR: Sometimes it does.
7 Sometimes it doesn't, you know. Annette Knox is giving
8 the class, so it really -- it varies.
9 THE COURT: Questions?
10 MR. MURPHY: No, sir.
11 THE COURT: Do you think you ought to be
12 excused in this?
13 PROSPECTIVE JUROR: Well, it depends on you
14 all.
15 THE COURT: I think they would like you to stay
16 regardless.
17 PROSPECTIVE JUROR: Right, right. I enjoy it,
18 I have no problem as long as it doesn't interfere with my
19 job.
20 THE COURT: It's going to make you a little
21 late to those classes, but we'll -- I'll -- we usually
22 leave by 5:15 so that will make -- if you get there by
23 5:30 --
24 PROSPECTIVE JUROR: As long as the court can
25 notify Porter Leath and let them know.
VOIR DIRE OF THE JURY
148
1 THE COURT: We can, and we will actually do
2 that. People ask us to do that.
3 PROSPECTIVE JUROR: Okay.
4 (The following proceedings were had in open
5 court.)
6 PROSPECTIVE JUROR: Your Honor, may I address
7 you also?
8 THE COURT: Sure, come around.
9 (The following proceedings had at side-bar
10 bench.)
11 PROSPECTIVE JUROR: I'm sorry, I just wondered,
12 I have in the past and currently owe back taxes, but the
13 IRS has always been very fair with me on setting up
14 payment plans, so I just wanted to let that come out.
15 THE COURT: Well, I don't think I have ever,
16 but that's the nature of what I do.
17 PROSPECTIVE JUROR: It's part of being
18 self-employed.
19 THE COURT: I was going to say I think that is
20 part of being self-employed. Is that going to cause you
21 to feel uncomfortable?
22 PROSPECTIVE JUROR: Oh, no, sir. The IRS has
23 always been very fair to me.
24 THE COURT: They usually work out payment
25 plans, but this is not about that.
VOIR DIRE OF THE JURY
149
1 PROSPECTIVE JUROR: I understand that.
2 THE COURT: This is about a good faith defense.
3 I don't even -- I don't even know that they're going to
4 argue about that -- they're just going to argue --
5 MR. BECRAFT: Her beliefs.
6 THE COURT: I will get more into that, Your
7 Honor.
8 PROSPECTIVE JUROR: Right.
9 THE COURT: And I will give you the law on
10 that. It's not going to be a real lengthy instruction.
11 Do you have any problem ruling against the IRS if they
12 have been nice to you, that's the question?
13 PROSPECTIVE JUROR: No, sir.
14 THE COURT: Well, I mean --
15 PROSPECTIVE JUROR: I do feel like I could be
16 fair.
17 THE COURT: Okay.
18 PROSPECTIVE JUROR: Thank you.
19 (The following proceedings were had in open
20 court.)
21 THE COURT: I'm going to call two more names to
22 take seat 13 and 14.
23 THE CLERK: Donald Stage. Larry Inderbitzen.
24 THE COURT: Mr. Stage, how are you?
25 PROSPECTIVE JUROR: Good. How about you?
VOIR DIRE OF THE JURY
150
1 THE COURT: I'm fine. What part of the
2 district or city are you from?
3 PROSPECTIVE JUROR: Collierville.
4 THE COURT: What is your educational
5 background?
6 PROSPECTIVE JUROR: Technical college.
7 THE COURT: What is your occupation and who is
8 your employer?
9 PROSPECTIVE JUROR: Vice-president, Commercial
10 Filter, Incorporated.
11 THE COURT: Where are they located?
12 PROSPECTIVE JUROR: Holmes Road and Lamar.
13 THE COURT: Okay. Are you married?
14 PROSPECTIVE JUROR: Yes.
15 THE COURT: Your wife's name and her
16 occupation?
17 PROSPECTIVE JUROR: Alicia, and she is a
18 student, starts teaching at U of M next year.
19 THE COURT: Do you have children?
20 PROSPECTIVE JUROR: No.
21 THE COURT: Do you know of any reason that you
22 could not serve on this jury and be fair and impartial?
23 PROSPECTIVE JUROR: No.
24 THE COURT: Okay. Thank you. Mr. Inderbitzen?
25 PROSPECTIVE JUROR: Yes.
VOIR DIRE OF THE JURY
151
1 THE COURT: Tell us what part of the city or
2 district you're from.
3 PROSPECTIVE JUROR: I'm from Midtown.
4 THE COURT: What is your educational
5 background?
6 PROSPECTIVE JUROR: I have a BA degree.
7 THE COURT: What is your occupation and who is
8 your employer?
9 PROSPECTIVE JUROR: I'm in sales with Memphis
10 Glove Company.
11 THE COURT: You know, I have this recollection
12 that Memphis Glove is a really big glove company, is that
13 right?
14 PROSPECTIVE JUROR: Yes, it is considerable.
15 THE COURT: I've heard that it is one of the
16 larger ones around.
17 PROSPECTIVE JUROR: That's correct.
18 THE COURT: Are you married?
19 PROSPECTIVE JUROR: Yes. I have a wife named
20 Rebecca, and three children.
21 THE COURT: What -- does your wife work outside
22 the home?
23 PROSPECTIVE JUROR: Yes, she does. She works
24 for Broom Corn Fabric.
25 THE COURT: Is she at the Midtown store?
VOIR DIRE OF THE JURY
152
1 PROSPECTIVE JUROR: No, she isn't. She is at
2 the Perkins location.
3 THE COURT: Do you know of any reason that you
4 could not serve on this jury and be fair and impartial?
5 PROSPECTIVE JUROR: No, sir.
6 THE COURT: You know, we're trying to ask
7 somebody in every new group if they have frankly such
8 skepticism about the case that they are going to find it
9 difficult to decide the case solely on the evidence that
10 comes from the witness stand and the law as I give it to
11 them? You're at Memphis Glove and, of course, you have
12 been there how long?
13 PROSPECTIVE JUROR: Five years.
14 THE COURT: Five years. And you see why
15 someone might be concerned?
16 PROSPECTIVE JUROR: Sure, absolutely.
17 THE COURT: That this might be confusing.
18 There is such a thing as a good faith defense. I don't
19 know whether -- I don't know what the facts are, and if I
20 did, I couldn't tell them anyway, because that's not my
21 job. My job is to make sure that we get twelve people who
22 haven't already made up their mind one way or the other
23 and who are going to listen to the evidence and then apply
24 the law to the facts as they determine the facts to be,
25 and you're going to make some crucial factual decisions in
VOIR DIRE OF THE JURY
153
1 this case, it sounds like to me. Does it sound like that
2 to you?
3 PROSPECTIVE JUROR: Yes, sir.
4 THE COURT: And some things are not going to be
5 in dispute. I don't want to get too far ahead, but I
6 don't know that the defense is going to say -- they're not
7 going to say, well, I really did file my income tax
8 return, they're not going to say that. That is not what
9 they're saying. They're saying that, I think -- if I get
10 this wrong, they will quickly tell me -- that Ms. Kuglin
11 had a good faith belief that she did not have to file
12 these returns. I have said it as simply as I could.
13 MR. BECRAFT: Yes, Your Honor.
14 THE COURT: You don't have to agree with me
15 just because I'm sitting up here, believe me, that's not
16 the point, but that's -- and there's some law about that.
17 And if a juror is already on the jury and said, heck, I
18 don't believe that, then you can't be fair and impartial.
19 Now, if a juror says, oh, I'm already going to believe
20 that, that is not right either. Does that seem
21 reasonable? You have got to wait and listen to the proof.
22 PROSPECTIVE JUROR: That's correct.
23 THE COURT: Now, can you be neutral and listen
24 to the proof and only decide after you have heard all of
25 the evidence, the final arguments of counsel, the final
VOIR DIRE OF THE JURY
154
1 instructions on the law about what this defense is about
2 and about how you have to -- what has to be shown in order
3 for it to be the prevailing theory? And then -- and then
4 decide the case applying the law to the facts as you
5 determine -- that all twelve of you determine those facts
6 to be; can you do that?
7 PROSPECTIVE JUROR: Yes, sir. Yes, sir.
8 THE COURT: This is not a chance for anybody to
9 tell the government that they don't like paying taxes,
10 because it -- who likes to pay taxes? You know, I don't.
11 I will take my hand down. Nobody likes to pay taxes, so
12 it is not about liking to pay taxes. Well, I wasn't
13 trying to pick on you, but you looked -- you're the last
14 one.
15 All right. Now, Mr. Murphy, I'm going to --
16 you have got some questions for the panel, I know you do
17 of the new panelists.
18 MR. MURPHY: Yes, sir.
19 THE COURT: So I will let you ask those
20 questions, and then we're going to take a break, though,
21 in about 15 minutes.
22 MR. MURPHY: Yes, sir. Good afternoon, ladies
23 and gentlemen, the new members of the panel. I have a few
24 questions to ask you. Do any of you, ladies and
25 gentlemen, that were just seated, do you know any of the
VOIR DIRE OF THE JURY
155
1 parties, anybody know me, the agents, Ms. Kuglin, the
2 defendant, the defense lawyers? No, okay. Do y'all know
3 anything about the case? Have you ever heard of people
4 talking about the case, speaking about the case? Nobody
5 is speaking up, so I'm going to take that to be a no.
6 Income taxes are always a sensitive subject.
7 You know, the judge said raise your hand if you like
8 paying taxes. Nobody likes paying taxes, that's a given.
9 The question in this case is does the fact -- does the --
10 is there something about the tax law or the tax code that
11 just upsets you so much or makes you mad or concerns you
12 so much that you can't be a fair juror in this case? And
13 either way, you know, you may think that the government
14 shouldn't prosecute people that don't pay taxes or you may
15 think the government ought to prosecute everybody that
16 doesn't pay taxes; anybody have strong feelings one way or
17 the other? Nobody is speaking up, so I'm going to take it
18 to mean one of two of things, either you ate a big lunch
19 and you're dozing off or you don't have a problem with
20 that proposition.
21 Do you, ladies and gentlemen, understand that
22 as the defendant sits before you now, she is innocent, she
23 is presumed to be innocent? Does everybody understand
24 that? Does anybody have a problem with the presumption of
25 innocence? Does everybody understand that the government
VOIR DIRE OF THE JURY
156
1 has to prove its case beyond a reasonable doubt? Does
2 everybody understand that? Does anybody have a problem
3 with that? Does anybody think our burden should be
4 higher? Does anybody think our burden should be lower?
5 Nobody is speaking up, so, again, I'm going to take it
6 that that is not a problem for anybody.
7 Now, the law -- the way a jury trial works is
8 the jurors decide the facts, they decide whether the
9 government proved their case, but the judge will charge
10 you with what the law is. He'll say, you know, here is
11 what -- how -- the manner in which tax evasion is defined.
12 This is what the statute says. This is the law that
13 you're to apply. Does everybody understand that even if
14 you think that the law is stupid, ludicrous, that you
15 still have to apply it? Does everybody understand that?
16 Okay. Everybody's head is nodding. You can't substitute
17 what you think the law ought to be for what the judge
18 tells you it is.
19 Now, in this case, you'll hear from witnesses
20 who will come in and testify, and jurors in these cases
21 that we have in federal court decide the case that is
22 based on the proof that the judge -- the witness testimony
23 and the exhibits, does everybody understand that you can't
24 get back in the jury room and start talking, say, now,
25 wait a second, my brother-in-law who is on the police
VOIR DIRE OF THE JURY
157
1 force or my brother-in-law who is an accountant says
2 that's not the way things work? Does everybody understand
3 you can't decide the case that way? You have got to
4 decide it on the facts. Anybody have a problem with that?
5 If you haven't already told us about it, has anybody had
6 any problems with the IRS?
7 Okay. Yes, ma'am, what kind of problems?
8 PROSPECTIVE JUROR: We were audited about seven
9 years ago. Oh, I'm sorry. We were audited about seven
10 years ago.
11 MR. MURPHY: Okay. Is it -- as a result, was
12 it a good experience, bad experience?
13 PROSPECTIVE JUROR: No, it was a bad
14 experience.
15 MR. MURPHY: Bad experience?
16 PROSPECTIVE JUROR: Yes.
17 MR. MURPHY: Based on that experience, is that
18 going to change the way you approach the case or look at
19 the case?
20 PROSPECTIVE JUROR: No, I'll try to be fair.
21 MR. MURPHY: Okay. Well, the question is, can
22 you be fair? Can you put that out of your mind?
23 PROSPECTIVE JUROR: I'll do my best.
24 MR. MURPHY: Okay. You think you will be able
25 to, though?
VOIR DIRE OF THE JURY
158
1 PROSPECTIVE JUROR: Maybe. We had a bad
2 experience.
3 MR. MURPHY: Okay. Judge, can we approach at
4 side bar?
5 THE COURT: You can.
6 Ms. Smith, I'm going to let you come around,
7 too.
8 PROSPECTIVE JUROR: Oh, okay.
9 (The following proceedings had at side-bar
10 bench.)
11 THE COURT: How are you doing?
12 PROSPECTIVE JUROR: Freezing.
13 THE COURT: What did they do to you?
14 PROSPECTIVE JUROR: They treated my husband
15 like dirt. He said they acted like he was nobody, and it
16 really wasn't his fault. He had one figure and his boss
17 had another. It mounted out that we had to pay like $250
18 more, and he said they really -- he said they acted like I
19 was nobody.
20 THE COURT: That's a bad experience.
21 PROSPECTIVE JUROR: Yeah, it was really bad for
22 him. And so -- but we just had problems.
23 THE COURT: Mr. Murphy may have a couple of
24 more questions. You know, the idea that people who work
25 in positions of authority like that, which seem to be
VOIR DIRE OF THE JURY
159
1 without any regulation, sometimes are going to step on
2 some toes pretty badly.
3 PROSPECTIVE JUROR: Right.
4 THE COURT: The question would be, you know, is
5 that going to be something that is going to be on your
6 mind when you're making a decision?
7 PROSPECTIVE JUROR: I don't know. I hope it
8 won't. I will try not to.
9 THE COURT: Did you go down there with him when
10 he went?
11 PROSPECTIVE JUROR: No, he wouldn't let me go.
12 He went by hisself, but he just -- you know, they just --
13 he told me how they treated him and --
14 THE COURT: Right.
15 PROSPECTIVE JUROR: He thought they over -- you
16 know, they kind of showed their authority or something.
17 THE COURT: Unreasonably unpleasant?
18 PROSPECTIVE JUROR: Right, right.
19 THE COURT: Well, Mr. Murphy, questions?
20 MR. MURPHY: Well, it sounds to me like it
21 was -- it was truly a bad experience?
22 PROSPECTIVE JUROR: It was.
23 MR. MURPHY: Okay. It sounds to me too like
24 you're -- you're going to try to put it aside, but you're
25 not really sure you can?
VOIR DIRE OF THE JURY
160
1 PROSPECTIVE JUROR: Right.
2 MR. MURPHY: Judge, I don't have any further
3 questions.
4 THE COURT: How long ago was this?
5 PROSPECTIVE JUROR: About six or seven years
6 ago.
7 THE COURT: Are you saying that you -- if you
8 were picked as a juror in this case, could you lay that
9 experience aside?
10 PROSPECTIVE JUROR: I don't know. It just
11 depends on what comes up, I guess. I don't know. I know
12 I'm not helping you.
13 THE COURT: Well, that's -- you're supposed to
14 tell us the truth. I'm going to ask you to have a seat
15 over in that little swivel chair and let me talk to these
16 folks.
17 (The prospective juror stepped away from the
18 bench.)
19 MR. MURPHY: Judge, I'm going to move to excuse
20 her for cause.
21 THE COURT: I think we're going to have to.
22 MR. BECRAFT: No problem, Judge.
23 (The following proceedings were had in open
24 court.)
25 THE COURT: Ms. Smith, thanks, we're going to
VOIR DIRE OF THE JURY
161
1 let you be excused. We appreciate it.
2 PROSPECTIVE JUROR: Thank you.
3 THE COURT: Thank you. Now, everybody wants to
4 come see me. Do you need to see me? Come on around.
5 (The following proceedings had at side-bar
6 bench.)
7 PROSPECTIVE JUROR: No sense in putting out
8 dirty laundry in the public.
9 THE COURT: No.
10 PROSPECTIVE JUROR: When I was a business
11 owner, I ran into some troubles, and my assets, personal
12 and business, were frozen by the IRS, and I don't know if
13 I could be fair and impartial.
14 THE COURT: Okay. How long did that happen?
15 PROSPECTIVE JUROR: It was about 15 years ago.
16 THE COURT: What kind of business was it?
17 PROSPECTIVE JUROR: My wife and I owned a gift
18 shop, and we did manufacturing and we owned it for ten
19 years.
20 THE COURT: Okay. Did -- did -- did you
21 disagree with --
22 PROSPECTIVE JUROR: No, I didn't disagree, it
23 was just the process was not very pleasant.
24 THE COURT: Okay. Well, if we exclude
25 everybody who has had a bad experience, we would
VOIR DIRE OF THE JURY
162
1 exclude --
2 PROSPECTIVE JUROR: I'm just being upfront. He
3 asked the question, and I answered.
4 THE COURT: No, that is fine, and the question
5 is, because yours is fundamentally sort of a different
6 situation, I think, this is -- the assertion is here is
7 tax evasion.
8 PROSPECTIVE JUROR: I understand.
9 THE COURT: You didn't have any allegation of
10 tax evasion?
11 PROSPECTIVE JUROR: No.
12 THE COURT: Yours was inability to pay some
13 taxes when they came due?
14 PROSPECTIVE JUROR: Yes.
15 THE COURT: They apparently came and seized
16 assets in your business?
17 PROSPECTIVE JUROR: Froze it.
18 THE COURT: And put you out of business
19 essentially, I guess?
20 PROSPECTIVE JUROR: Eventually.
21 THE COURT: And they asserted tax liability,
22 did you agree with their calculation of taxes?
23 PROSPECTIVE JUROR: Maybe, yes. Maybe not. To
24 some degree.
25 THE COURT: To some degree?
VOIR DIRE OF THE JURY
163
1 PROSPECTIVE JUROR: Yes.
2 THE COURT: Did you find them to be unwilling
3 to listen to your point of view during that process or did
4 they listen, they just -- what did you find?
5 PROSPECTIVE JUROR: They listened. I felt it
6 was a challenge, okay, to get to the finality of it.
7 THE COURT: Okay. Well, I mean this is --
8 PROSPECTIVE JUROR: I don't have a problem with
9 being a juror, I don't.
10 THE COURT: Right. You know, I think the main
11 thing is to make disclosure and say this happened to me,
12 it was a really bad experience, but can you follow the law
13 and can you decide the facts fairly and impartially, can
14 you do those two things?
15 PROSPECTIVE JUROR: I think I can, but, again,
16 I wanted to be upfront.
17 THE COURT: Absolutely. Let me let them ask
18 you some questions.
19 MR. MURPHY: Sir, the only question I have, in
20 deciding this case, can you put the experience you had
21 with the IRS out of your mind? In other words, when you
22 go back there, that goes in a closet, so to speak, and you
23 decide this case based on the facts and the law?
24 PROSPECTIVE JUROR: I think I can.
25 THE COURT: Anything else?
VOIR DIRE OF THE JURY
164
1 MR. BECRAFT: This experience, if you're picked
2 as a juror, this experience that you had would not cause
3 you to be against the position of the government?
4 PROSPECTIVE JUROR: This is two-edged, okay.
5 The problem I had in the repayment that I had, okay, I
6 have a feeling on this side and then, again, I look at the
7 young lady over here on this side who has gone through
8 some tax evasion, where I went through some bad years of
9 my life doing repayment on income tax, okay. Being fair
10 to you too.
11 MR. BECRAFT: Yeah.
12 THE COURT: Okay.
13 PROSPECTIVE JUROR: Did I answer your question?
14 MR. BECRAFT: Sure did.
15 THE COURT: Anything else?
16 MR. BECRAFT: No, Your Honor.
17 THE COURT: Thank you.
18 (The following proceedings were had in open
19 court.)
20 THE COURT: We're going to call somebody to
21 take seat 12, and we're going to ask some questions and
22 we're going to take a break right after that.
23 THE CLERK: Stephen Sciara.
24 THE COURT: I'm sorry, spell your last name for
25 me.
VOIR DIRE OF THE JURY
165
1 PROSPECTIVE JUROR: S-C-I-A-R-A.
2 THE COURT: Okay. Mr. Sciara, what part of the
3 district or city are you from?
4 PROSPECTIVE JUROR: Cooper Young.
5 THE COURT: What's your educational background?
6 PROSPECTIVE JUROR: I have a high school and a
7 culinary degree.
8 THE COURT: What's your occupation and who is
9 your employer?
10 PROSPECTIVE JUROR: I'm an executive chef with
11 Mantia's.
12 THE COURT: You want to tell everybody where
13 Mantia's is? This is your chance for an ad?
14 PROSPECTIVE JUROR: Poplar and Mendenhall.
15 THE COURT: Okay. That's right, exactly,
16 exactly. Did you all have a lot of business during the
17 storm, or were you out of business?
18 PROSPECTIVE JUROR: Actually, we had power and
19 did a lot of business.
20 THE COURT: What is your specialty?
21 PROSPECTIVE JUROR: Really all European.
22 THE COURT: Executive chef is in charge of
23 everything and then sometimes you will have people who do
24 pastries, sometimes people do -- I have a relative who
25 does just meat, I don't know how he managed to do that,
VOIR DIRE OF THE JURY
166
1 but that's what he does.
2 PROSPECTIVE JUROR: I don't know, I do really
3 everything. I have a total certified executive chef.
4 THE COURT: All right. Well, are you married?
5 PROSPECTIVE JUROR: Yes, I have a wife, Sheila.
6 THE COURT: And what is her occupation and what
7 is her employer?
8 PROSPECTIVE JUROR: She is a student at the
9 moment.
10 THE COURT: All right. Children?
11 PROSPECTIVE JUROR: One daughter, 22.
12 THE COURT: Do you know of any reason that you
13 could not serve on this jury and be fair and impartial?
14 PROSPECTIVE JUROR: No, I could. I'm not
15 really into it, but I could do it.
16 THE COURT: You sound like the perfect juror.
17 Okay. Mr. Murphy has got some questions for
18 you, other folks has got some questions for you.
19 MR. MURPHY: Judge, I thought --
20 THE COURT: Oh, we're going to take our break.
21 Sorry, thanks. We're going to take our afternoon break.
22 Seven things. Don't talk about the case among yourselves.
23 Don't let anybody talk with you about the case. If
24 anybody tries to talk to you about the case, report that
25 immediately to one of our security officers, a member of
VOIR DIRE OF THE JURY
167
1 my staff or to me. Of course, don't speak to the lawyers
2 or the parties at all. They are not allowed to talk to
3 you. You're not allowed to them. Don't do any research,
4 make any inquiry on your own, and, of course, don't read
5 anything in the newspaper, watch anything on television or
6 listen to anything on the radio about the case and, of
7 course, keep an open mind until you have heard all the
8 proof in the case, final arguments of counsel and final
9 instructions on the law. We're going to take -- we have
10 got a lot of folks, we're going to take a fifteen-minute
11 break, come back, and I think we will get our jury fairly
12 quickly.
13 (Recess taken at 3:33 until 3:50 p.m.)
14 THE COURT: Kind of wait for word that we have
15 got everybody, and then when I don't -- I think we do,
16 though. We're in good shape. Yes, sir, you may proceed.
17 MR. MURPHY: Yes, sir, Your Honor. Have any of
18 you, ladies and gentlemen, that have just been called for
19 jury service ever served on a jury before?
20 Yes, sir. Can you tell me us about what kind
21 of jury you served on?
22 PROSPECTIVE JUROR: It was a criminal case.
23 MR. MURPHY: Okay. I know I have probably been
24 over this too many times already, but do you understand
25 that you will get the law in this case, if you're
VOIR DIRE OF THE JURY
168
1 selected, from Judge McCalla, and that's the law that
2 you're to use in this case?
3 PROSPECTIVE JUROR: Correct.
4 MR. MURPHY: I believe this lady right here.
5 PROSPECTIVE JUROR: DUI and murder case.
6 MR. MURPHY: Over in -- you said DUI?
7 PROSPECTIVE JUROR: DUI and murder case.
8 MR. MURPHY: And was that over in state court?
9 PROSPECTIVE JUROR: Yes.
10 MR. MURPHY: And same question, you understand
11 that the law that you apply in this case will come from
12 Judge McCalla?
13 PROSPECTIVE JUROR: Yes, sir.
14 MR. MURPHY: Okay. Thank you, ma'am. Do any
15 of you, ladies and gentlemen, have any relatives that work
16 for the federal government, any federal agencies, IRS,
17 Department of Agriculture?
18 Yes, sir.
19 PROSPECTIVE JUROR: I have two uncles -- two
20 uncles in the TBI and cousin in the Olive Branch Police
21 Department and a cousin in the Knoxville Sheriff's
22 Department.
23 MR. MURPHY: Now, the fact that you have got
24 those family members in law enforcement, is that going to
25 influence your ability to decide this case? In other
VOIR DIRE OF THE JURY
169
1 words, you're not going to vote one way or another way
2 because of how they would react to your vote?
3 PROSPECTIVE JUROR: No.
4 MR. MURPHY: Okay. Thank you. Okay.
5 Two last things. Now, you, ladies and
6 gentlemen, understand that you have got to follow the law
7 that the judge gives you no matter what you think about
8 it? If you think it is stupid, crazy, whatever, you have
9 still got to follow it, is that going to be a problem for
10 anybody?
11 Is there anything that anybody hasn't told us
12 yet that you think it's something that the lawyers and the
13 judge ought to know? Anything that might affect your
14 decision in the case? Okay. Well, thank you, ladies and
15 gentlemen, I'm going to sit down.
16 MR. BECRAFT: May it please the court.
17 THE COURT: Certainly.
18 MR. BECRAFT: Ladies and gentlemen, for the new
19 panel members up here, I want to direct my questions at
20 you. For the eight of you, have any of you or any member
21 of your family or close friend been involved either as a
22 plaintiff or a defendant in a civil or a criminal case?
23 Yes, ma'am.
24 PROSPECTIVE JUROR: Well --
25 MR. BECRAFT: Ms. Stewart.
VOIR DIRE OF THE JURY
170
1 PROSPECTIVE JUROR: I try cases all the time.
2 MR. BECRAFT: Okay. What kind of litigation do
3 you do?
4 PROSPECTIVE JUROR: Civil, insurance defense.
5 MR. BECRAFT: Have you ever -- how long have
6 you been practicing law?
7 PROSPECTIVE JUROR: Twenty-two years. Mostly
8 in state court.
9 MR. BECRAFT: Okay. And that includes trying
10 cases?
11 PROSPECTIVE JUROR: Yes.
12 MR. BECRAFT: And you know most lawyers never
13 get a chance to sit on a jury.
14 PROSPECTIVE JUROR: I know. I'm well aware of
15 that.
16 MR. BECRAFT: I take it with that in mind that
17 you would probably like to be a juror in this case? You
18 get to go where nobody has gone before.
19 PROSPECTIVE JUROR: I think it would be very
20 interesting.
21 MR. BECRAFT: Okay. Now, being a lawyer, I
22 want to ask this question: If you get back there in that
23 jury room, can you make a promise to me and Judge McCalla
24 and Mr. Murphy, that you won't use your law experience or
25 try to dictate to others about what the law might be that
VOIR DIRE OF THE JURY
171
1 would be applicable in this case?
2 PROSPECTIVE JUROR: I would not.
3 MR. BECRAFT: Would you be fair and impartial
4 to both sides?
5 PROSPECTIVE JUROR: Absolutely.
6 MR. BECRAFT: Would you base your verdict on
7 what you hear in the way of testimony in this case,
8 documents that you see, all the other evidence?
9 PROSPECTIVE JUROR: And the law.
10 MR. BECRAFT: Okay. Anybody else got a
11 response to being a party?
12 PROSPECTIVE JUROR: You say a lawsuit that we
13 were in?
14 MR. BECRAFT: Yes.
15 PROSPECTIVE JUROR: I have got a lawsuit going
16 now.
17 MR. BECRAFT: Oh, you do?
18 PROSPECTIVE JUROR: Right.
19 MR. BECRAFT: And you are Mr. Smith. What is
20 the nature of that case?
21 PROSPECTIVE JUROR: Well, this was a wreck my
22 son had in my car, and I'm being sued for the wreck.
23 MR. BECRAFT: All right.
24 PROSPECTIVE JUROR: He wasn't at fault, it was
25 a drunk driver who caused the wreck.
VOIR DIRE OF THE JURY
172
1 MR. BECRAFT: Is -- we understand that that is
2 a civil case in which you were a defendant. This is a
3 criminal case. Can you -- can you completely lay aside --
4 I know you're probably not happy with what is going on in
5 reference to your civil litigation, but can you lay that
6 aside and if you're picked as a juror in this case not
7 let, you know, your participation in the judicial system
8 affect your verdict in this case?
9 PROSPECTIVE JUROR: I think so.
10 MR. BECRAFT: Anybody else got -- Mr. Stage?
11 PROSPECTIVE JUROR: My father was on a ladder
12 attached to a building about six feet off the ground, came
13 unbolted and he fell off and ruptured two disks.
14 MR. BECRAFT: He has got a claim, I guess, for
15 workmen's comp?
16 PROSPECTIVE JUROR: I don't know what it is.
17 MR. BECRAFT: He has got a personal injury type
18 claim that he's asserting against somebody else?
19 PROSPECTIVE JUROR: Uh-huh.
20 MR. BECRAFT: Can you lay aside your father's
21 civil litigation, and if you're picked as a juror in this
22 case, you know, kind of ignore that and just limit your
23 testimony, limit any decision that you would make as a
24 juror in this case based on the evidence that you hear and
25 the instructions that the court would give regarding the
VOIR DIRE OF THE JURY
173
1 law of the case?
2 PROSPECTIVE JUROR: Uh-huh, totally different
3 thing.
4 MR. BECRAFT: Anybody else got a response to
5 that? I think Mr. Murphy asked this question, but I want
6 to make abundantly clear, I didn't know if it included all
7 former jurors, but has anybody here been in any kind of
8 case, be it federal court or state court as a juror in
9 either a civil or criminal case or have sat on either a
10 state or federal grand jury? How about have any of you
11 ever been a witness in a case?
12 Ms. Stewart, and you were called as a party to
13 testify?
14 PROSPECTIVE JUROR: I was called as a witness
15 to testify.
16 MR. BECRAFT: All right. And did you give
17 testimony in court?
18 PROSPECTIVE JUROR: I did.
19 MR. BECRAFT: Civil case?
20 PROSPECTIVE JUROR: Yes.
21 MR. BECRAFT: Okay.
22 PROSPECTIVE JUROR: Yes. Well, one was a
23 criminal contempt.
24 MR. BECRAFT: Okay.
25 PROSPECTIVE JUROR: Following a jury verdict,
VOIR DIRE OF THE JURY
174
1 and the other one was a former client, I got called by her
2 attorney to testify.
3 MR. BECRAFT: Okay. Now, would your
4 experience -- we're going to have witnesses come up here.
5 Can you lay aside any experience that you might have, good
6 or bad, about being a witness in this case and not have it
7 affect your verdict if you're chosen as a juror in this
8 case?
9 PROSPECTIVE JUROR: Yes.
10 MR. BECRAFT: Anybody else that I missed? A
11 moment ago, you know, Judge McCalla, I guess it was a
12 question asked of us, how much are we going to tell you
13 about our defense. Well, I'm going to tell you this:
14 We're probably going to go through this case and maybe
15 there's going to be a lot of stipulations regarding the
16 government's evidence. Hopefully, maybe tomorrow
17 afternoon or maybe sometime Wednesday morning, we will be
18 through with the government's case. After that, Ms.
19 Kuglin is going to get up, and she is going to testify
20 from the stand. I have got a series of questions I would
21 like to ask each of you. Is there anybody here that
22 would, you know, hold something against you based on what
23 you already heard in this courtroom about Ms. Kuglin, if
24 she gets up there and testifies in this case, is there
25 anybody that is going to be prejudiced against her? Is
VOIR DIRE OF THE JURY
175
1 there anybody that is not going to give her due
2 consideration for her testimony? Well, you have all
3 heard -- you know something about the facts in this case,
4 Judge McCalla read you the indictment. She is a FedEx
5 pilot. She makes good money. You heard what the figures
6 were, and they're not going to be disputed. You know,
7 there is somebody -- somebody from the government is going
8 to come in here and add up the figures, we're going to
9 have somebody from FedEx that is going to come in here and
10 say this is what she made every year, I have no doubt that
11 what the indictment says was her gross for all these years
12 is accurate, you know, anywhere from a hundred and forty
13 grand to maybe a hundred sixty or a hundred and seventy
14 grand a year. Now, those are very large figures, is there
15 anybody here in this case that is going to be, well, gee,
16 you know, I'm not going -- she makes a lot more than I do.
17 Is there anybody here going to be kind of anti or opposed
18 to Ms. Kuglin because she happens to be a FedEx pilot that
19 makes good money that lives down at the end of south Main
20 Street in Waterford condos? Nobody is going to be holding
21 it against her because her station in life is above
22 normal? Okay. Is that -- will all of you promise that
23 you will not hold that against her?
24 Now, the evidence in this case, what she -- I'm
25 going to generally summarize, I'm not going to get down
VOIR DIRE OF THE JURY
176
1 into the detail, but she is going to give you the reasons
2 why she did what she did. You can kind of look over here,
3 you know, if we get around to opening statements today,
4 you know, I have got a bunch of books stacked up right
5 there, but, you know, she has got her reasons. Now, will
6 all of you promise me that you will listen to her
7 testimony diligently and weigh it like you would any other
8 witness? You will listen to her reasons and give due
9 consideration? Is there anybody that is not going to do
10 any of that?
11 How many of you have ever studied anything
12 regarding tax and specifically income tax? Ms. Stewart.
13 And I guess your answer would be, well, at law school, I
14 had a course, and I think earlier you made some statement
15 that you have given opinions regarding the tax law. So
16 you would know generally something about the issue of
17 income taxation from what any common lawyer would
18 understand, correct?
19 PROSPECTIVE JUROR: That's right.
20 MR. BECRAFT: All right. Now, with your legal
21 background, can you lay aside -- can you just kind of
22 divorce yourself from everything that you know and come
23 into this case and just listen to the facts and then
24 listen to the instructions that are given by the court?
25 PROSPECTIVE JUROR: I can.
VOIR DIRE OF THE JURY
177
1 MR. BECRAFT: Okay. Now, one of the things I
2 will tell you is that, you know, in defense, Ms. Kuglin is
3 going to give you her beliefs about the law. She has
4 certain beliefs, and what the court is going to do is, you
5 know, when she starts testifying about that, I want to --
6 I want to make it plain and clear right now that that is
7 not going to be an effort on Ms. Kuglin's part to try to
8 tell you what the law is. We acknowledge that at the end
9 of the trial, Judge McCalla is going to tell you what the
10 law is.
11 Now, there is obviously going to be a
12 difference of opinion. There's going to be a difference
13 in the testimony and the instructions that the court
14 gives. Now, can each of you look at this -- the facts in
15 this case, these beliefs about the law and make a
16 conclusion, well, I don't think that she had a criminal
17 intent; can each of you do that? Mr. Sciara?
18 PROSPECTIVE JUROR: I'm not so sure that I can
19 do that, because if I was making that kind of money and
20 didn't understand what I was supposed to be doing with my
21 taxes, I would hire somebody to tell me how to do that.
22 MR. BECRAFT: Okay. So both of you think that
23 because she was a FedEx pilot making big bucks --
24 PROSPECTIVE JUROR: I don't care what her job
25 is.
VOIR DIRE OF THE JURY
178
1 MR. BECRAFT: You think that she should have
2 gone out and sought legal counsel?
3 PROSPECTIVE JUROR: I think you either break
4 the law or you don't. I know how to do my taxes. I mean
5 I'm 23, and I know you pay income taxes, and everybody
6 knows that.
7 MR. BECRAFT: Okay. Can you -- what I'm
8 specifically asking for is to at least be --
9 THE COURT: Let me say one thing here.
10 MR. BECRAFT: Sure, Your Honor.
11 THE COURT: You know, and that's a wonderful
12 example of extracting from our own experiences to say what
13 somebody else would do, and often in our lives that's a
14 useful way in which we do things, but in the criminal law,
15 in the criminal law, it really does matter what the person
16 thinks or at least it's supposed to, and you're supposed
17 to give that meaning. So that if -- if we didn't have a
18 tax case, let's say we didn't have a tax case, let's say
19 we had a particular -- different type cases, possession
20 with intent to distribute marijuana, and let's say
21 somebody had a quantity of marijuana, you know, it's
22 illegal to have marijuana, it's illegal, but the charge is
23 possession with the intent to distribute marijuana. Now,
24 you might possess marijuana for more than one reason than
25 distribution. Distribution means to transfer to another
VOIR DIRE OF THE JURY
179
1 person either with or without financial gain. You might
2 have marijuana for personal use, that's a different
3 section of the code, and that's a different law. So a
4 jury, every time they decide that question, the jury has
5 to decide did that person possess that quantity of drugs
6 with the intent to distribute it.
7 It's -- and so you can have it, right, but not
8 possess it with the intent to distribute it. I'm just
9 trying to make the point that you're going to be asked to
10 decide what was in the defendant's mind, and the
11 government is going to make some arguments about the
12 evidence to try to show what was in the defendant's mind,
13 and the defendant, probably through counsel, is going to
14 make some arguments to show what is in the defendant's
15 mind about the good faith defense on not filing. I'm a
16 little concerned --
17 PROSPECTIVE JUROR: I understand what you're
18 saying, Your Honor, I just -- I did not want to sit here
19 and pretend that I'm not having feelings like that.
20 THE COURT: And there's nothing wrong with
21 that.
22 PROSPECTIVE JUROR: I was trying to be honest
23 with you, without wasting this court's time or anybody's
24 time that I'm having a little bit of trouble, if we're
25 going to plead, I'm sorry, I didn't understand, because I
VOIR DIRE OF THE JURY
180
1 don't go for that.
2 THE COURT: I think it's going to be a little
3 different than that. It is probably -- I'm just saying
4 probably because I have some experience. It's probably
5 going to be I believe for these reasons that I didn't have
6 to file an income tax return. Let's say that you were not
7 for profit, they're not arguing that here, and that you
8 really didn't owe any taxes, and you believe you didn't
9 have to file a return, but you didn't file a return, it
10 turned out you were supposed to file a return, you might
11 come in and say I didn't know -- you know, I didn't think
12 I owed any taxes, I didn't think I needed to file a
13 return. So I mean -- and that would be a legitimate
14 argument to make, and you would have to examine the state
15 of mind of that taxpayer to determine whether or not they
16 actually violated the law. Why don't we do this, why
17 don't we -- I was a little concerned about this discussion
18 going too far there. Why don't we -- is it Sciara?
19 PROSPECTIVE JUROR: Sciara.
20 THE COURT: Say it again, I'm going to write it
21 down phonetically.
22 PROSPECTIVE JUROR: Phonetically, it would be
23 S-H-I-R-A, Sciara.
24 THE COURT: By the way, I have eaten there. My
25 kids love the food at the restaurant.
VOIR DIRE OF THE JURY
181
1 PROSPECTIVE JUROR: I'm not trying to cause
2 trouble, I'm just trying to be honest.
3 THE COURT: Let's talk about it at side bar.
4 And the reason I interrupted you is we have to be careful
5 about what we say in front of everybody. If you will come
6 around to side bar, I'm going to ask you a few questions.
7 (The following proceedings had at side-bar
8 bench.)
9 THE COURT: I'm going to let you stand behind
10 the screen, that's sort of the protected place.
11 PROSPECTIVE JUROR: I'm not trying to cause you
12 any trouble, I just have a hard time believing that
13 anybody that is old enough to have somebody -- I
14 understand she has got an older son, I mean we all know we
15 have to pay taxes. I find this hard to believe.
16 THE COURT: Right.
17 PROSPECTIVE JUROR: Regardless of how much she
18 makes or where she works, I'm not being prejudiced that
19 way.
20 THE COURT: I understand you completely, and
21 this is not going to be about somebody -- it's going to be
22 about -- the question is going to be did she have a good
23 faith belief based on her understanding of the law that
24 she didn't have to file a return.
25 PROSPECTIVE JUROR: I can't help it, I'm sorry.
VOIR DIRE OF THE JURY
182
1 THE COURT: I think I have got it there.
2 PROSPECTIVE JUROR: I apologize. I'm just
3 telling you --
4 THE COURT: That's okay.
5 PROSPECTIVE JUROR: I work real hard and I pay
6 all my taxes.
7 THE COURT: I understand.
8 PROSPECTIVE JUROR: This is probably not the
9 one for me.
10 THE COURT: Do you -- do you own part of the
11 business out there?
12 PROSPECTIVE JUROR: I get paid by some of the
13 business that we make, yes, sir.
14 THE COURT: Because I think I have seen you.
15 You can see you -- you go up to the counter, you're right
16 behind there?
17 PROSPECTIVE JUROR: Yes, sir.
18 THE COURT: Of course, you can see everybody
19 pretty much?
20 PROSPECTIVE JUROR: Yeah. And I will be the
21 fourth person in a month that has been called out of that
22 little bitty business for jury duty too.
23 THE COURT: That's --
24 PROSPECTIVE JUROR: It's really breaking her
25 for me to be gone as well.
VOIR DIRE OF THE JURY
183
1 THE COURT: I understand. Who owns the
2 business?
3 PROSPECTIVE JUROR: Alice Mantia, who was on
4 jury duty all last week.
5 THE COURT: I didn't know that.
6 PROSPECTIVE JUROR: We had two other people out
7 the week before and the week before.
8 THE COURT: That may be in and of itself an
9 unfair -- any questions from anybody?
10 PROSPECTIVE JUROR: I apologize.
11 THE COURT: That's okay. I'll just -- I will
12 kid you about it when I come in and eat next time. I will
13 let have you a seat over there, I will check with these
14 guys.
15 (The juror stepped away from the bench.)
16 MR. BECRAFT: I think for cause.
17 THE COURT: I was afraid we were going to
18 get --
19 MR. MURPHY: Judge, I think this was a good
20 idea. I have no objection to a cause strike.
21 THE COURT: Okay. He's a nice guy, and I
22 understand what has happened.
23 (The following proceedings were had in open
24 court.)
25 THE COURT: All right. We're going to let you
VOIR DIRE OF THE JURY
184
1 be excused. Thank you very much.
2 PROSPECTIVE JUROR: Sorry for your troubles.
3 THE COURT: Thank you.
4 Mr. Stage, I'm going to let you come around for
5 just a moment.
6 (The following proceedings had at side-bar
7 bench.)
8 THE COURT: Hi, Mr. Stage, how are you doing?
9 PROSPECTIVE JUROR: Good.
10 THE COURT: It is important that people be
11 concerned about what the defendant was thinking and what
12 she really believed. Now, it has to be -- the belief has
13 to be one that has some basis in -- it can't -- it can't
14 be a fantasy, but it merely has to be a good faith belief.
15 It doesn't have to be right.
16 PROSPECTIVE JUROR: The analogy you put
17 together, it would be like me getting pulled over by an
18 officer, saying you know you were speeding and me saying I
19 didn't know what the speed limit is, you're still going to
20 get the speeding ticket.
21 THE COURT: That's true.
22 PROSPECTIVE JUROR: I feel like there's a line
23 of the law, you either break it or you don't and --
24 beliefs --
25 THE COURT: Well, in criminal -- remember, this
VOIR DIRE OF THE JURY
185
1 is a criminal prosecution in a tax case. That doesn't
2 mean -- I'm not going to go on the civil side, that
3 doesn't mean they can't assess you, that doesn't mean that
4 they can't get their money, that doesn't mean that,
5 because that is different. I think that's all correct.
6 MR. BECRAFT: Absolutely.
7 THE COURT: They can seize your house, they can
8 put a tax lien on it, they can do all that stuff. And so
9 it doesn't mean that a person is going to not have to pay,
10 that's not the point. The point is, is it criminal
11 conduct because criminal conduct is different than, you
12 know, than, for example, city taxes, we all know we got to
13 pay them.
14 PROSPECTIVE JUROR: Right.
15 THE COURT: But when people don't pay them,
16 they don't put you in jail for it, they just take your
17 property. And that's -- see, that's fundamentally
18 different than putting you -- than having a potential
19 criminal penalty.
20 PROSPECTIVE JUROR: Another thing too, when
21 y'all said what she was being charged with --
22 THE COURT: Sure.
23 PROSPECTIVE JUROR: -- y'all said she provided
24 false W-4s, I mean --
25 THE COURT: The government is going to try to
VOIR DIRE OF THE JURY
186
1 prove that. These are not W-2s, they're W-4s.
2 PROSPECTIVE JUROR: Whatever you have got to
3 turn in by April 15th.
4 THE COURT: Do you see what I'm trying to
5 say --
6 PROSPECTIVE JUROR: The analogy you're trying
7 to put together, I just don't -- I guess because my state
8 of mind isn't -- I see the law as the law. I mean you
9 either break it or you don't.
10 THE COURT: And one of the elements of the law
11 is that you have the necessary -- for a criminal
12 conviction, not for the civil liability on your taxes, but
13 for a criminal conviction, you have a right to make a bad
14 decision, you have a right to make a decision that is just
15 plain ultimately wrong, but if it is in good faith, if you
16 really believe that, you know, based on regulation or a
17 statute or a code section or something else that you
18 really don't have to pay it, then our government doesn't
19 want you to go -- to be criminally penalized for that.
20 PROSPECTIVE JUROR: Right.
21 THE COURT: Now, they're still going to get
22 your money because they're going to assess -- they're
23 going to put a lien on your property or something like
24 that.
25 PROSPECTIVE JUROR: Well, I mean --
VOIR DIRE OF THE JURY
187
1 THE COURT: That's a different thing.
2 PROSPECTIVE JUROR: The story would have been a
3 lot more believable to me if it wasn't for the false
4 documentation.
5 THE COURT: We haven't heard any proof yet.
6 PROSPECTIVE JUROR: Right. When I heard that,
7 that all of a sudden made me feel kind of fishy.
8 THE COURT: I am going to let y'all ask any
9 questions that you want to ask.
10 MR. MURPHY: I don't have any questions.
11 MR. BECRAFT: Are you of the view that right
12 now, you would not listen or give credence to anything she
13 had to say about justifications for why she did what she
14 did?
15 PROSPECTIVE JUROR: If I felt like you could --
16 it would be a mistake that could have been made, yes, but
17 if it sounded stupid to me, then there is no way you could
18 make that mistake, no.
19 MR. BECRAFT: You think there is no way she
20 could make this mistake here?
21 PROSPECTIVE JUROR: I haven't heard the story
22 yet, I got to hear -- I mean why she did it. If she says
23 I forgot --
24 MR. BECRAFT: My question is, are you so
25 prejudiced right now that you can't be neutral?
VOIR DIRE OF THE JURY
188
1 PROSPECTIVE JUROR: I think I can be neutral.
2 MR. BECRAFT: Okay.
3 PROSPECTIVE JUROR: But when I -- like I said,
4 the story, if it makes sense to me that I see that, yeah,
5 it could happen, if I put myself in a situation, yeah, I
6 might have been able to make a mistake like that, but
7 then, again, if I look at it and I say, well, there's no
8 way somebody could be that stupid, you know, then I look
9 at it differently and I say no.
10 MR. BECRAFT: Is that the -- what you just
11 said, is that the way you feel right now?
12 PROSPECTIVE JUROR: Right now, honestly, I'm
13 leaning toward that I think there was no way it could have
14 happened because of the false papers.
15 MR. BECRAFT: Okay.
16 PROSPECTIVE JUROR: That's the only reason why,
17 honestly.
18 MR. BECRAFT: Okay. Nothing further, Your
19 Honor.
20 MR. MURPHY: Nothing further, Your Honor.
21 THE COURT: We're going to let you have a seat
22 right over there at that green chair.
23 (The juror stepped away from the bench.)
24 MR. BECRAFT: For cause.
25 THE COURT: I don't think we have any choice
VOIR DIRE OF THE JURY
189
1 here.
2 MR. MURPHY: I don't have any objection, Your
3 Honor.
4 THE COURT: I hope we don't start a trend here.
5 MR. BECRAFT: Side bar fever.
6 (The following proceedings were had in open
7 court.)
8 THE COURT: Mr. Stage, we're going to let you
9 be excused. Thank you.
10 THE CLERK: Pam Stidham. Mozell Smith.
11 THE COURT: Let me get our first juror's last
12 name. Spell your last name for me.
13 PROSPECTIVE JUROR: Stidham, S-T-I-D-H-A-M.
14 THE COURT: Okay. Ms. Stidham, how are you
15 today?
16 PROSPECTIVE JUROR: Fine.
17 THE COURT: This whole process seems sort of
18 strange?
19 PROSPECTIVE JUROR: Not really.
20 THE COURT: Not really?
21 PROSPECTIVE JUROR: No.
22 THE COURT: What do you understand our main
23 objective in this process is?
24 PROSPECTIVE JUROR: Just to listen to the facts
25 and weigh the evidence.
VOIR DIRE OF THE JURY
190
1 THE COURT: And in this voir dire process,
2 we're just trying to find people who haven't already made
3 up their mind. You think some people have already made up
4 their mind in this case?
5 PROSPECTIVE JUROR: The ones who have left
6 probably.
7 THE COURT: Does it seem reasonable to want
8 people that are going to really wait and be patient?
9 PROSPECTIVE JUROR: Sure.
10 THE COURT: Are you that kind of person?
11 PROSPECTIVE JUROR: I would like to think so.
12 THE COURT: Okay. What do you understand maybe
13 one of the big issues in the case is going to be?
14 PROSPECTIVE JUROR: I guess just for us,
15 keeping an open mind and just really listening and hearing
16 out what's being said and maybe learning, you know -- I
17 don't know.
18 THE COURT: Right. And one of the main
19 questions we're going to have to decide is the defendant's
20 state of mind, because I don't think they're going to sit
21 there and tell us that these returns were filed. They're
22 not going to say that. That is not going to be said, is
23 it?
24 MR. BECRAFT: No, Your Honor.
25 THE COURT: In fact, they agree that didn't
VOIR DIRE OF THE JURY
191
1 happen. They're not going to say, oh, no, I sent it in,
2 they just didn't get it. They're not saying that.
3 They're not saying that I meant to send it in, they're not
4 saying that. They're saying that the defendant had a good
5 faith belief that this was something she did not have to
6 do. And we are going to have to understand whether she
7 really believed that, and there's no mechanism that's
8 better use for this process than a jury because you folks
9 will be able to observe all the evidence that the
10 government puts on because the government is going to try
11 to address this question in its own proof, I'm sure,
12 right, Mr. Murphy? I think some of that is addressed by
13 the government.
14 MR. MURPHY: Judge, I think if -- I can't say
15 for sure, but we have always got rebuttal, so --
16 THE COURT: Right, the government --
17 MR. MURPHY: In the total package, we will.
18 THE COURT: No, I'm not saying the case in
19 chief, maybe I said that. The government will present
20 proof on that. The defense may -- the defense may present
21 proof on that, you're going to have to make up your mind.
22 Are you going to be able to be -- wait until you have
23 heard everything and then make up your mind on this
24 question?
25 PROSPECTIVE JUROR: Yes, I believe so.
VOIR DIRE OF THE JURY
192
1 THE COURT: Okay. Now, tell us what part of
2 the district or city you're from.
3 PROSPECTIVE JUROR: I'm from Midtown.
4 THE COURT: And what is your educational level?
5 PROSPECTIVE JUROR: Almost completed college.
6 THE COURT: Okay. And what is your occupation
7 and who is your employer?
8 PROSPECTIVE JUROR: I am mostly a homemaker,
9 but I do some home renovation.
10 THE COURT: Are you married?
11 PROSPECTIVE JUROR: Yes.
12 THE COURT: Your husband's name and his
13 occupation?
14 PROSPECTIVE JUROR: His name is Greg Stidham,
15 and he is director of ICU at Le Bonheur.
16 THE COURT: Do you know -- do you have
17 children?
18 PROSPECTIVE JUROR: He has two sons that are
19 grown.
20 THE COURT: Do you know of any reason that you
21 could not serve on this jury and be fair and impartial?
22 PROSPECTIVE JUROR: No, I don't.
23 THE COURT: Thank you.
24 Ms. Smith, how are you?
25 PROSPECTIVE JUROR: Okay. And you?
VOIR DIRE OF THE JURY
193
1 THE COURT: I'm fine.
2 PROSPECTIVE JUROR: Good.
3 THE COURT: You made up your mind about this
4 case or are you still able to be open-minded about it?
5 PROSPECTIVE JUROR: Well, I can be open-minded
6 about it, but I have personal reasons why I cannot serve.
7 THE COURT: Well, let's talk about that at side
8 bar.
9 PROSPECTIVE JUROR: Okay.
10 THE COURT: Come on up and we will talk about
11 it.
12 (The following proceedings had at side-bar
13 bench.)
14 THE COURT: Yes, sir.
15 PROSPECTIVE JUROR: My mother just got out of
16 the hospital, and she had both of her legs amputated. I'm
17 the caregiver. So I need to be home with her. And she
18 has doctor's appointments this week.
19 THE COURT: Any objection?
20 MR. MURPHY: No, sir.
21 MR. BECRAFT: No.
22 THE COURT: Thanks for letting us know.
23 PROSPECTIVE JUROR: Thank you.
24 (The following proceedings were had in open
25 court.)
VOIR DIRE OF THE JURY
194
1 THE COURT: I'm going to let Ms. Smith be
2 excused.
3 THE CLERK: Lauren Smith.
4 THE COURT: Mr. Smith, how are you?
5 PROSPECTIVE JUROR: Fine. I'm fine.
6 THE COURT: All right. Do you know of any
7 reason you cannot serve on this jury and be fair and
8 impartial?
9 PROSPECTIVE JUROR: Not at this time, no, I
10 don't.
11 THE COURT: What part of the district or city
12 are you from?
13 PROSPECTIVE JUROR: I'm in southeast Memphis.
14 THE COURT: What is your educational
15 background?
16 PROSPECTIVE JUROR: Some college.
17 THE COURT: What is your occupation and who is
18 your employer?
19 PROSPECTIVE JUROR: FedEx is my employer and in
20 internet technology.
21 THE COURT: Do you have any problem with the
22 fact that in this case, the defendant is a FedEx pilot?
23 PROSPECTIVE JUROR: No, I don't.
24 THE COURT: You have never met her, I assume?
25 PROSPECTIVE JUROR: No, I haven't.
VOIR DIRE OF THE JURY
195
1 THE COURT: Okay. Do you -- are you married?
2 PROSPECTIVE JUROR: No, I'm single.
3 THE COURT: How old are you?
4 PROSPECTIVE JUROR: Forty-nine.
5 THE COURT: Forty-nine, okay. Do you know of
6 any reason again that you could not sit on this jury and
7 be fair and impartial?
8 PROSPECTIVE JUROR: No, I don't. I don't have
9 any reason.
10 THE COURT: Mr. Murphy?
11 MR. MURPHY: Yes, sir, Your Honor. I know
12 these people down in front are sitting here, well, is he
13 going to ask all these questions again. To the two recent
14 jurors seated, have you ever had any problems with the
15 IRS, any tax problems?
16 PROSPECTIVE JUROR: No.
17 PROSPECTIVE JUROR: No.
18 MR. MURPHY: The judge is going to instruct you
19 what the law you're to apply in this case is, you got any
20 problem following that?
21 PROSPECTIVE JUROR: No.
22 MR. MURPHY: Even if you don't like the law,
23 you think it is crazy, are you going to go back there and
24 say I'm not going to do this, this is foolish? No matter
25 what you think, are you going to be able to apply the law?
VOIR DIRE OF THE JURY
196
1 PROSPECTIVE JUROR: Yes.
2 MR. MURPHY: Do you know any of the parties in
3 the courtroom, any of the people in the courtroom?
4 PROSPECTIVE JUROR: (Shakes head from side to
5 side).
6 MR. MURPHY: Any family members work for the
7 federal government?
8 PROSPECTIVE JUROR: No.
9 PROSPECTIVE JUROR: No.
10 MR. MURPHY: Do you have any strong opinions
11 about the income tax laws, for example, do you think that
12 income tax is unconstitutional and the government ought
13 not to be able to impose taxes on people? I'm getting a
14 look.
15 PROSPECTIVE JUROR: Well, I think that
16 government has the right to levy taxes on you, sure
17 enough; however, from a recent experience, I know that the
18 government taxed me at a different rate and I didn't think
19 it was fair. My job gave me a bonus, and if they had just
20 taxed me at the same rate as my normal salary, that would
21 have been fine, but they want to tax me at a higher rate.
22 For what? I mean why? You still have to pay the taxes,
23 but why do it on a bonus.
24 MR. MURPHY: Okay. But, now, that experience,
25 is that -- has that made -- is it going to be difficult
VOIR DIRE OF THE JURY
197
1 for you to be a fair juror in this case?
2 PROSPECTIVE JUROR: No, it won't make me.
3 MR. MURPHY: In other words, are you going to
4 be able to set all of that said and not say I'm going to
5 equal things up with the IRS?
6 PROSPECTIVE JUROR: No.
7 MR. MURPHY: Okay. Last question and I'm going
8 to sit down. Is there anything that I haven't talked
9 about that y'all need to tell us about, anything you think
10 we might want to know? Okay. Thank you.
11 MR. BECRAFT: We're to our new jurors here,
12 let's bring you up to speed. Do either one of you have
13 any friends, family members that work for the federal or
14 state government in any capacity?
15 PROSPECTIVE JUROR: No.
16 MR. BECRAFT: Have either of you worked for any
17 type of government before?
18 PROSPECTIVE JUROR: No.
19 PROSPECTIVE JUROR: I was in the Navy for eight
20 years.
21 MR. BECRAFT: That's good enough. That's your
22 only experience?
23 PROSPECTIVE JUROR: Yes. Well, I worked for
24 the Defense Depot for awhile.
25 MR. BECRAFT: Have either of you ever been a
VOIR DIRE OF THE JURY
198
1 witness in a case?
2 PROSPECTIVE JUROR: No.
3 PROSPECTIVE JUROR: No.
4 MR. BECRAFT: Gone into court and testified?
5 Been a juror, civil, criminal, grand jury?
6 PROSPECTIVE JUROR: (Shakes head from side to
7 side).
8 MR. BECRAFT: Been a party to a case?
9 PROSPECTIVE JUROR: (Shakes head from side to
10 side).
11 PROSPECTIVE JUROR: (Shakes head from side to
12 side).
13 MR. BECRAFT: I think that brings them all up
14 to speed, let's get back to the other questions. Y'all
15 seen some fireworks in this courtroom. Do you see some
16 people that have got emotional opinions about taxes? Will
17 each of you listen to what Vernie Kuglin has to say as the
18 reasons why she did what she did? The court told you a
19 minute ago that that is called a good faith defense, and I
20 will go a little bit further without getting into the
21 details, but, you know, Vernie Kuglin studied this big,
22 big book known as the Internal Revenue Code. She read it.
23 Now, she reaches a conclusion about that. She is going to
24 get up there and tell you what she read and studied. Now,
25 my question to you is, if you listen to her testimony and
VOIR DIRE OF THE JURY
199
1 reach the conclusion that she really believed this, right
2 or wrong, will you give her testimony credence? Will you
3 consider her testimony in making the decision that you do
4 in this particular case? Anybody that can't do that?
5 That's all I'm asking for.
6 Nothing further, Your Honor.
7 THE COURT: All right. If you'll fill out your
8 strike sheets and pass them up, or at least fold one over
9 and pass it up.
10 (Strike sheets were handed to the judge.)
11 THE COURT: You may come to side bar.
12 (The following proceedings had at side-bar
13 bench.)
14 THE COURT: All right. The government struck
15 one person, Lauren Smith, in seat 13. The defense struck
16 four. Defense struck Jurors Phillip Smith, Rose
17 Saulsbury, Freida Straughter and Ms. Stewart, the
18 attorney. So any objections?
19 MR. MURPHY: No, sir.
20 MR. BECRAFT: No, sir, Your Honor.
21 (The following proceedings were had in open
22 court.)
23 THE COURT: All right. I hope you're not
24 disappointed if you're excused. We're going to let Mr.
25 Smith go, Lauren Smith, thanks very much. We're going to
VOIR DIRE OF THE JURY
200
1 let Ms. Stewart go. Thank you for being here, Ms.
2 Stewart. And, Ms. Saulsberry, we're going to let you be
3 excused and, Ms. Straughter, we're going to let you be
4 excused and Mr. Phillip Smith. So we have part of the
5 rest of the panel. I'm going to ask Mr. Shaneyfelt to go
6 to seat number eight because actually that's the first --
7 that's the next regular juror seat, and then Ms. Stidham
8 will go to seat number nine and Mr. Inderbitzen to seat
9 number ten. Those are actually permanent seats. We're
10 going to call five more jurors to take seats -- the last
11 seat, seat seven and then the remaining 11, 12, 13, 14.
12 THE CLERK: Kim Stout. Sharon Smith. Joseph
13 Schingle. Cynthia Street. George Stewart.
14 THE COURT: Ms. Stout, how are you doing?
15 PROSPECTIVE JUROR: I'm doing fine. Thank you.
16 THE COURT: All right. What part of the city
17 or the district do you live in?
18 PROSPECTIVE JUROR: I live in Cordova.
19 THE COURT: What is your educational
20 background?
21 PROSPECTIVE JUROR: College graduate.
22 THE COURT: What is your occupation and who is
23 your employer?
24 PROSPECTIVE JUROR: I'm at home right now.
25 THE COURT: Okay. Are you married?
VOIR DIRE OF THE JURY
201
1 PROSPECTIVE JUROR: Yes, I am.
2 THE COURT: Your husband's name and his
3 occupation?
4 PROSPECTIVE JUROR: His name is Eric Stout, and
5 he's an electrician.
6 THE COURT: Do you have children?
7 PROSPECTIVE JUROR: I do.
8 THE COURT: And tell me --
9 PROSPECTIVE JUROR: Two. I'm sorry, three of
10 my own and two step.
11 THE COURT: Okay. All right. It must be a new
12 one?
13 PROSPECTIVE JUROR: It is. He's five.
14 THE COURT: Fairly new?
15 PROSPECTIVE JUROR: Fairly new.
16 THE COURT: All right. Do you know of any
17 reason that you could not serve on this jury and be fair
18 and impartial?
19 PROSPECTIVE JUROR: I do not.
20 THE COURT: You've heard the discussion about
21 people's ability to wait and decide about a person's state
22 of mind, that is what they believed and didn't believe.
23 PROSPECTIVE JUROR: Uh-huh.
24 THE COURT: And some people have found that
25 difficult to do. Can you do that?
VOIR DIRE OF THE JURY
202
1 PROSPECTIVE JUROR: I can.
2 THE COURT: If you would hand that back to Mr.
3 George Stewart who is right behind you. Mr. Stewart, how
4 are you today?
5 PROSPECTIVE JUROR: I'm doing pretty good. And
6 you, sir?
7 THE COURT: I'm fine.
8 PROSPECTIVE JUROR: Great.
9 THE COURT: What part of the district or city
10 are you from?
11 PROSPECTIVE JUROR: I live in north Memphis.
12 THE COURT: What is your educational
13 background?
14 PROSPECTIVE JUROR: I have a bachelor of
15 science degree from the University of Memphis and a
16 medical technology degree from the University of
17 Tennessee.
18 THE COURT: What is your occupation and who is
19 your employer?
20 PROSPECTIVE JUROR: I'm a medical technologist
21 with Baptist Memorial Health Care.
22 THE COURT: And are you married?
23 PROSPECTIVE JUROR: No, I'm not.
24 THE COURT: Do you know of any reason that you
25 could not serve on this jury and be fair and impartial?
VOIR DIRE OF THE JURY
203
1 PROSPECTIVE JUROR: No. I can be fair and
2 impartial.
3 THE COURT: All right. I've asked everybody --
4 lately, we're asking everybody that question to make sure
5 they haven't already made up their mind, it kind of
6 sounded like some folks had. Are you able to -- the key
7 question here is going to be -- probably, I never can be
8 sure, I will tell you at the end of the case what some of
9 those questions are, but it may be what Ms. Kuglin
10 thought, I mean what was in her mind, whether she had a
11 good faith belief about certain things, and that's just
12 going to obviously wait until the end of the case and then
13 you'll have to make a decision on that. But can you wait
14 on that and not jump to a conclusion in this case?
15 PROSPECTIVE JUROR: Yes, I can.
16 THE COURT: Okay. I'm going to ask you to hand
17 that to Ms. Street. Ms. Street, how are you?
18 PROSPECTIVE JUROR: I'm tired, sleepy and
19 stressed.
20 THE COURT: What do you think about me? At
21 least, you were out there resting, right? Not so bad.
22 I'm going to let you stand up so we can hear you okay.
23 You feeling all right, just tired?
24 PROSPECTIVE JUROR: Just tired and sleepy, I
25 been working 12 to 16 hours a day to keep your lights on.
VOIR DIRE OF THE JURY
204
1 THE COURT: You work for MLG&W?
2 PROSPECTIVE JUROR: Right.
3 THE COURT: We will let you be excused if you
4 want to be.
5 PROSPECTIVE JUROR: Please.
6 THE COURT: Come on around and talk to us. If
7 you have been working that much, we may need to let you
8 go.
9 (The following proceedings had at side-bar
10 bench.)
11 THE COURT: I know you're tired, so I thought
12 we better just come around here. What is your job at
13 MLG&W?
14 PROSPECTIVE JUROR: I'm a material handler. I
15 have to make sure all the crews get what they need when
16 they need it.
17 THE COURT: Okay. And I know they have been
18 working very long hours.
19 PROSPECTIVE JUROR: Yeah, 20. Twelve straight
20 days, I think this is the 13th day.
21 THE COURT: It's the 13th day because my lights
22 were out until last night. My lights were out until last
23 night.
24 PROSPECTIVE JUROR: Mine didn't come on until
25 Saturday.
VOIR DIRE OF THE JURY
205
1 THE COURT: They have been working really long
2 hours, I would be hesitant to -- it might be hard for you
3 to concentrate and stay awake to do this. We appreciate
4 it, we're going to let you be excused.
5 PROSPECTIVE JUROR: Thank you.
6 (The following proceedings were had in open
7 court.)
8 THE COURT: We're going to let Ms. Street be
9 excused. They have been working long, long hours.
10 All right. We're going to call a name to take
11 seat 13.
12 THE CLERK: Cynthia Sanders.
13 THE COURT: Hi, Ms. Sanders. How are you
14 doing?
15 PROSPECTIVE JUROR: I'm fine.
16 THE COURT: I'm going to ask you a couple of
17 questions. If you will stand, I'm going to ask you what
18 you part of the district or city are you from.
19 PROSPECTIVE JUROR: Kirby and Mt. Moriah.
20 THE COURT: And what is your educational
21 background?
22 PROSPECTIVE JUROR: College.
23 THE COURT: What's your occupation and who is
24 your employer?
25 PROSPECTIVE JUROR: Car sales, Homer Skelton
VOIR DIRE OF THE JURY
206
1 Ford, Olive Branch.
2 THE COURT: Are you a sales person?
3 PROSPECTIVE JUROR: Yes, I am.
4 THE COURT: Okay. Is it cheaper in Mississippi
5 to buy a car?
6 PROSPECTIVE JUROR: Taxes are.
7 THE COURT: Taxes are less, okay. All right.
8 Well, are you married?
9 PROSPECTIVE JUROR: Separated.
10 THE COURT: What's his name and what didn't he
11 do -- what does he do?
12 PROSPECTIVE JUROR: Well, there are many names,
13 but his name is Booker Sanders, Jr., and he's a manager at
14 Firestone.
15 THE COURT: Do you have children?
16 PROSPECTIVE JUROR: Two.
17 THE COURT: Do you know of any reason that you
18 could not serve on this jury and be fair and impartial?
19 PROSPECTIVE JUROR: No, none whatsoever.
20 THE COURT: Okay. Thank you.
21 And is it Mr. Schingle?
22 PROSPECTIVE JUROR: Yes.
23 THE COURT: How are you today?
24 PROSPECTIVE JUROR: Fine, thank you.
25 THE COURT: It has been awfully long, and I
VOIR DIRE OF THE JURY
207
1 apologize.
2 PROSPECTIVE JUROR: It has.
3 THE COURT: It sort of depends on the answers
4 we get, you know. What part --
5 PROSPECTIVE JUROR: Cordova.
6 THE COURT: What?
7 PROSPECTIVE JUROR: Cordova.
8 THE COURT: What is your educational
9 background?
10 PROSPECTIVE JUROR: Two years of college.
11 THE COURT: What is your occupation and who is
12 your employer?
13 PROSPECTIVE JUROR: Retired.
14 THE COURT: What did you retire from?
15 PROSPECTIVE JUROR: New York Life Insurance
16 Company.
17 THE COURT: How long have you been retired?
18 PROSPECTIVE JUROR: Eleven years.
19 THE COURT: How old are you?
20 PROSPECTIVE JUROR: Seventy-three.
21 THE COURT: You know you're eligible to be
22 excused?
23 PROSPECTIVE JUROR: Yes, yes.
24 THE COURT: Do you mind serving?
25 PROSPECTIVE JUROR: I love it.
VOIR DIRE OF THE JURY
208
1 THE COURT: We would love to have you, I just
2 wanted to make sure you knew. Are you married?
3 PROSPECTIVE JUROR: Yes.
4 THE COURT: Your wife's name?
5 PROSPECTIVE JUROR: Verne Joan.
6 THE COURT: And her occupation?
7 PROSPECTIVE JUROR: Me.
8 THE COURT: Trying to keep you around. All
9 right. A lot of discussion here about people being able
10 to listen to the law, the theories in the case and not
11 just make up their mind based on the charges. And in our
12 system -- in a criminal law system, not civil side, we're
13 not talking about civil side, civil liability is not the
14 question here, there has to be the requisite state of mind
15 in order for someone to be subjected to criminal
16 liability, you know, totally different from the civil side
17 as you're aware of from your business in the past, I'm
18 sure. Can you do that in this case or are you starting
19 out with a couple of black marks already on the slate for
20 the defendant?
21 PROSPECTIVE JUROR: Clean slate.
22 THE COURT: All right. Well, then you don't
23 know of anything that would preclude you from being fair
24 and impartial in this case?
25 PROSPECTIVE JUROR: No.
VOIR DIRE OF THE JURY
209
1 THE COURT: If you will hand that to Ms. Sharon
2 Smith. Ms. Sharon Smith?
3 PROSPECTIVE JUROR: Yes.
4 THE COURT: I have got so many Smiths, I have
5 to check and make sure I have got the right one.
6 PROSPECTIVE JUROR: That's right.
7 THE COURT: Okay. What part of the district or
8 city are you from?
9 PROSPECTIVE JUROR: Munford.
10 THE COURT: What is your educational
11 background?
12 PROSPECTIVE JUROR: I have two years of
13 college.
14 THE COURT: What is your occupation and who is
15 your employer?
16 PROSPECTIVE JUROR: I work for Lucite
17 International in customer service.
18 THE COURT: Are you married?
19 PROSPECTIVE JUROR: Yes. My husband's name is
20 Tim. He is a mechanic at Lehman Roberts. And I have
21 three children.
22 THE COURT: Three children. Okay. Do you know
23 of any reason that you could not sit on this jury and be
24 fair and impartial?
25 PROSPECTIVE JUROR: Yes, I would like to
VOIR DIRE OF THE JURY
210
1 approach the bench.
2 THE COURT: Sure, come on around.
3 (The following proceedings had at side-bar
4 bench.)
5 THE COURT: Yes, sir.
6 PROSPECTIVE JUROR: I have family medical
7 issues. My dad is 76 years old, lives in Crump,
8 Tennessee. He has diabetes, and three months ago, he had
9 surgery and in the hospital to help the diabetes, it was
10 not successful, and they are taking off his foot today or
11 tomorrow. I'm not at the doctor's office today to find
12 out which day it is, but I don't think my focus can be up
13 here.
14 THE COURT: Sure.
15 MR. MURPHY: Judge, no objection.
16 THE COURT: Thanks for letting us know, and I'm
17 sorry we didn't get you let you go earlier.
18 (The following proceedings were had in open
19 court.)
20 THE COURT: We're going to let Ms. Smith be
21 excused, and call another name to take her place. I don't
22 usually do this, but I know how to do it. Neil Simpson.
23 Mr. Simpson, how are you doing today?
24 PROSPECTIVE JUROR: Very good, thank you.
25 THE COURT: Okay. This has taken a lot longer
VOIR DIRE OF THE JURY
211
1 than it sometimes takes. I suppose it's because of the
2 nature of the inquiry.
3 What part of the district or city do you live
4 in?
5 PROSPECTIVE JUROR: East Memphis.
6 THE COURT: What is your educational
7 background?
8 PROSPECTIVE JUROR: One year of college.
9 THE COURT: What is your occupation and who is
10 your employer?
11 PROSPECTIVE JUROR: Retired, but -- retired
12 twice. MLGW, Methodist Hospital, back at MLGW.
13 THE COURT: You're not back there now?
14 PROSPECTIVE JUROR: As a contract, under
15 contract. I have been working 14, 15 hours also.
16 THE COURT: You doing all right or do you --
17 PROSPECTIVE JUROR: I'm doing fine.
18 THE COURT: You're doing fine?
19 PROSPECTIVE JUROR: Yes, sir.
20 THE COURT: Okay. Are you married?
21 PROSPECTIVE JUROR: Yes.
22 THE COURT: Your wife's name and her
23 occupation?
24 PROSPECTIVE JUROR: Marcie, home keeper, three
25 children.
VOIR DIRE OF THE JURY
212
1 THE COURT: Three children?
2 PROSPECTIVE JUROR: Thirteen grandchildren.
3 THE COURT: Thirteen grandchildren, all right.
4 That's great. That's wonderful.
5 Do you know of any reason that you could not
6 sit on this jury and be fair and impartial?
7 PROSPECTIVE JUROR: No reason.
8 THE COURT: Okay. We had that fundamental
9 question about some folks saying they already basically
10 made up their mind, are you able to put yourself in that
11 category of people who are able to listen?
12 PROSPECTIVE JUROR: Yes, sir, have to hear all
13 the facts.
14 THE COURT: All right. Mr. Murphy. Thanks
15 very much.
16 PROSPECTIVE JUROR: Yes, sir.
17 MR. MURPHY: Yes, sir, Your Honor. This is
18 directed to the new jurors. Have any of y'all had any
19 problems with the IRS? Audits or anything like that?
20 THE COURT: We're going to have to give you the
21 mic, I'm sorry. Mrs. Parker has to write it all down.
22 PROSPECTIVE JUROR: I had an audit years ago,
23 but it doesn't affect my ability.
24 MR. MURPHY: How was your experience with the
25 audit, good, bad?
VOIR DIRE OF THE JURY
213
1 PROSPECTIVE JUROR: Well, it was -- I owed the
2 money, so I had to pay it.
3 MR. MURPHY: Okay. Do you think they treated
4 you fairly?
5 PROSPECTIVE JUROR: Yeah, it was fair.
6 MR. MURPHY: Thank you, sir.
7 Now, do y'all understand that you have got to
8 follow the law as the judge gives to it you? He's going
9 to tell you what the law is, that you have got to apply
10 it. Does anybody have any problem with that? Do y'all
11 have any problem with the fact that people are required to
12 pay income taxes, file tax returns, is that a problem?
13 PROSPECTIVE JUROR: No.
14 MR. MURPHY: See anything wrong with that?
15 PROSPECTIVE JUROR: No.
16 MR. MURPHY: All right. Is there anything you
17 haven't told us that you think we ought to know about?
18 You know -- I know a lot of times, we'll ask people
19 questions, and then later on somebody will raise their
20 hand, you know, and I just remembered, I had, you know, an
21 uncle in law enforcement that was, you know, years ago,
22 anything like that? Any family, friends work for IRS,
23 government, law enforcement?
24 PROSPECTIVE JUROR: I have a sister-in-law that
25 works --
VOIR DIRE OF THE JURY
214
1 THE COURT: The mic.
2 PROSPECTIVE JUROR: My sister-in-law works for
3 the IRS.
4 MR. MURPHY: Okay. Where does -- does she work
5 at the service center?
6 PROSPECTIVE JUROR: On -- I believe it's over
7 of Holmes Road, I'm not sure.
8 MR. MURPHY: Okay. On Getwell?
9 PROSPECTIVE JUROR: Maybe that's it.
10 MR. MURPHY: Okay. The fact that you're a
11 juror in this case, have you -- if you have to vote one
12 way or the other, is it going to influence you because you
13 have a relative that works for IRS?
14 PROSPECTIVE JUROR: No, definitely not.
15 MR. MURPHY: Okay. That's going to do it for
16 me, ladies and gentlemen.
17 PROSPECTIVE JUROR: I have one.
18 MR. MURPHY: Oh, yes, sir.
19 PROSPECTIVE JUROR: I have a cousin that is
20 retired from the IRS, but it wouldn't have any effect on
21 any of this.
22 MR. MURPHY: Presumably a cousin you like?
23 PROSPECTIVE JUROR: Oh, yes.
24 MR. MURPHY: Okay. But you're not going to be
25 embarrassed if you vote one way or another?
VOIR DIRE OF THE JURY
215
1 PROSPECTIVE JUROR: Not at all.
2 MR. MURPHY: Okay. Thank you, sir.
3 MR. BECRAFT: Let me pose these questions to
4 our new people up here. Do any of you have any friends,
5 close family members, yourselves ever worked for the state
6 or federal government in any way, shape, manner or form?
7 PROSPECTIVE JUROR: Just this state.
8 MR. BECRAFT: No, any state?
9 PROSPECTIVE JUROR: My son is a judge in
10 Colorado.
11 MR. BECRAFT: Okay.
12 PROSPECTIVE JUROR: County judge.
13 MR. BECRAFT: All right. Anybody else?
14 PROSPECTIVE JUROR: I have two brothers that
15 are police officers.
16 MR. BECRAFT: Where would they be police
17 officers?
18 PROSPECTIVE JUROR: One of my brothers is a
19 police officer for the City of Memphis, and I have a
20 brother that is a security officer for the airport.
21 MR. BECRAFT: All right. Do you see them on a
22 frequent occasion?
23 PROSPECTIVE JUROR: Just ever so often.
24 MR. BECRAFT: All right. If we had this trial
25 last through this weekend, as you finally walked out of
VOIR DIRE OF THE JURY
216
1 this courthouse, if you were picked as a juror, if you
2 didn't see them at any time in between, would your
3 relationship with them, would it be such that if you sat
4 in this case and made a certain decision and saw them this
5 weekend that you might have some problems with them?
6 PROSPECTIVE JUROR: No, no.
7 MR. BECRAFT: Okay. So you can lay aside your
8 family connections with law enforcement and fairly and
9 impartially decide this case?
10 PROSPECTIVE JUROR: Yes, I can.
11 MR. BECRAFT: Ms. Stout, did you say --
12 PROSPECTIVE JUROR: I used to work for the
13 city.
14 MR. BECRAFT: Okay.
15 PROSPECTIVE JUROR: I am no longer employed
16 with the city. I used to work as a firefighter paramedic.
17 MR. BECRAFT: All right.
18 PROSPECTIVE JUROR: Okay.
19 MR. BECRAFT: How about, have any of you ever
20 been a witness in a case, sat on a jury, state or federal?
21 Okay. Let's quickly go through them here, the three of
22 you.
23 PROSPECTIVE JUROR: I was on a jury, civil case
24 with one of the local TV stations.
25 MR. BECRAFT: Civil case, some years ago?
VOIR DIRE OF THE JURY
217
1 PROSPECTIVE JUROR: It has been about four
2 years ago.
3 MR. BECRAFT: Can you lay aside anything you
4 saw or learned then and come into this case and just
5 listen to the facts and the evidence here and take the
6 judge's instructions on the law and decide it without
7 being influenced by your past jury service?
8 PROSPECTIVE JUROR: Sure.
9 MR. BECRAFT: I'm going to ask the same
10 question of you, sir.
11 PROSPECTIVE JUROR: Yeah, civil case,
12 automobile accident couple of three years ago.
13 MR. BECRAFT: Okay. And that wouldn't have any
14 influence on what you do here?
15 PROSPECTIVE JUROR: Not at all. Mine was in
16 federal court in '68. It was tax evasion --
17 MR. BECRAFT: It wouldn't have --
18 PROSPECTIVE JUROR: Tax evasion case, it
19 wouldn't have anything to do with this.
20 THE COURT: I'm not certain I heard that
21 answer. Are you saying that you sat --
22 PROSPECTIVE JUROR: I sat on a case, it was a
23 tax evasion case in '68.
24 MR. BECRAFT: '68, okay. Well, was that here?
25 PROSPECTIVE JUROR: Yes, sir.
VOIR DIRE OF THE JURY
218
1 MR. BECRAFT: And y'all reached a verdict?
2 PROSPECTIVE JUROR: Yes.
3 MR. BECRAFT: Now, here you are a second time
4 around sitting in a -- possibly sitting in another tax
5 evasion case. Will you promise if you're selected as a
6 juror that anything you remember about that case will not
7 have an effect upon your decision if you're sitting as a
8 juror here?
9 PROSPECTIVE JUROR: Yes, sir.
10 MR. BECRAFT: Okay. Is there anything -- you
11 know, here it is 5:00 o'clock, and I know y'all want to
12 get out of here, is there anything that anybody wants to
13 bring to our attention right now? We have asked a whole
14 bunch of questions, and I don't want to have to repeat
15 them. Just volunteer something, is there something you
16 need to tell us that we ought to know regarding your
17 ability to sit as jurors?
18 Yes, sir.
19 PROSPECTIVE JUROR: My son is an employee at
20 FedEx.
21 MR. BECRAFT: Okay.
22 PROSPECTIVE JUROR: No problem.
23 MR. BECRAFT: You have never met her?
24 PROSPECTIVE JUROR: No.
25 MR. BECRAFT: Okay.
VOIR DIRE OF THE JURY
219
1 PROSPECTIVE JUROR: You asked about income tax,
2 I was a volunteer for our doing personal income taxes.
3 MR. BECRAFT: Did you ever study the income tax
4 laws?
5 PROSPECTIVE JUROR: Just what they give -- it's
6 very basic for low and moderate income families.
7 MR. BECRAFT: Your knowledge about filling out
8 tax returns, you can lay that aside, and just for this
9 case, you can listen to Judge McCalla, you know, listen to
10 the facts and give -- take into consideration the law that
11 he instructs you on and then make a decision in the jury
12 room without being influenced by your prior experience?
13 PROSPECTIVE JUROR: Yes, ours was very simple,
14 yes.
15 MR. BECRAFT: Anything else? One final area I
16 want to cover. You've heard me describe Vernie Kuglin.
17 You know her station in life. She has got these beliefs
18 about taxes. She studied the law. Now, can I get a
19 promise out of y'all that y'all are going to listen to the
20 evidence fairly and not be prejudiced against her and not
21 hold anything against her and treat her like you would
22 anybody else, any other witness and treat her like you
23 would like to be treated as well?
24 PROSPECTIVE JUROR: Yes.
25 MR. BECRAFT: Nothing further, Your Honor.
VOIR DIRE OF THE JURY
220
1 THE COURT: You can fill out or at least turn
2 in a strike sheet and pass that up.
3 (Strike sheets were handed to the Judge.)
4 THE COURT: All right. Let me see counsel at
5 side bar.
6 (The following proceedings had at side-bar
7 bench.)
8 THE COURT: Okay. There were no strikes, so
9 what I'm going to do, though, is reseat them in the order
10 in which they're called. So our two alternates will be
11 Ms. Sanders and Mr. Stewart, and Ms. Stout will actually
12 move around to seat 11. That's the way we seat them
13 because they're always in the sequence in which they're
14 called, and then I think we will just stop and come back
15 tomorrow. But we will come back at 9:00. I want -- and
16 y'all can come on in about five till because we have
17 cancelled everything else, and we have got an 8:30, but
18 that will be over. It will be back there anyway.
19 (The following proceedings were had in open
20 court.)
21 THE COURT: Well, you're all accepted as
22 jurors, but I have to reseat you a little bit because we
23 always seat you in the order in which you were called or
24 seated for jury selection. It's not actually -- it's --
25 in other words, we always put -- the person in seat seven
VOIR DIRE OF THE JURY
221
1 is the next juror. She is actually going to go to seat
2 11, and Mr. Stewart is going to actually stay where he is
3 and Ms. Sanders is going to move down. So it's a little
4 confusing. Ms. Sanders, we're going to evict you from
5 your seat, and we're going to move you down to seat number
6 seven, which is where Ms. Stout is sitting, and we're
7 going to have our two gentlemen in the middle, Mr. Simpson
8 and Mr. Schingle move over one seat, that is that way, and
9 Ms. Stout is our juror in seat number 11. Sounds sort of
10 mysterious, it is real important that we always do it the
11 same way, because it depends on who is going to be the
12 actual members of the jury and who may be the alternates.
13 This case is long enough -- I don't want anybody to get
14 confused, there's no way to know if the alternates will
15 end up serving, but our alternates in this case are Ms.
16 Sanders, she is our first alternate, and our second
17 alternate is Mr. Stewart, so you're the two alternates.
18 And then everybody else is expected to be the jury in the
19 case. You're the actual twelve jurors. It's not unusual
20 for us to have something -- hopefully, nothing happens,
21 but if somebody gets sick, this gives us the ability to
22 replace -- that juror has a personal emergency, then that
23 gives us an ability to keep going.
24 Now, that means that those of you who came and
25 didn't get to serve, this does qualify as your jury
VOIR DIRE OF THE JURY
222
1 service, and we do appreciate you being here, so I'm going
2 to let all of you go at this time, and thanks again very
3 much. Thank you.
4 Now, what we will have you do is come back
5 tomorrow at 8:30. You will come back to the jury room,
6 which is this room immediately to my left and to your
7 right. Mr. Tuggle is going to show you to the jury room
8 in just a moment. Just take a look before you leave -- so
9 you will know what is in there. There are two restrooms,
10 coffee pot and that sort of thing. There will be a snack
11 tomorrow, I hope. They're supposed to be here about 8:30,
12 and then we will start in here very close to 9:00 o'clock.
13 We will start with a set of brief instructions, fairly
14 brief instructions so you will get some idea again of what
15 the law is, and then we will go to opening statements, and
16 we will proceed with the first witness. So that's going
17 to be our sequence. Remember the places you're sitting in
18 now because when you come back tomorrow, you will probably
19 line up and come in in that order. Look at who is in
20 front of you. Of course, if you're -- the person who will
21 be in front will probably be Ms. Sanders tomorrow on the
22 first row. And then just remember the sequence that
23 everybody is in.
24 Now, seven things. Do not discuss the case
25 with anybody at all. That includes among yourselves.
VOIR DIRE OF THE JURY
223
1 That means when you go home this evening, don't talk about
2 the case. You know, oh, I'm on this interesting IRS case,
3 whatever you would say. Do not say that. Tell them, you
4 know, I'm on a criminal case in federal district court, I
5 can't talk about it now, but I'll be able to tell you
6 about it when the case is over. And the case will be
7 over, you know, Thursday or Friday and I'll tell you about
8 it when it is over. As to anybody who might approach you
9 to talk about the case, of course, report that promptly to
10 one of our court security officers, a member of my staff
11 or directly to me. It is inappropriate for anybody to
12 talk with you about it, and we'll take the appropriate
13 steps. The fourth thing is that you'll want to avoid the
14 lawyers and the parties in the case and, of course, don't
15 speak to them at all. Now, in that regard always be sure
16 and wear your juror tag where it's visible. They're
17 probably going to remember you, but that's a real easy
18 thing for them to see. And that helps us all, all the
19 people in the building know that you're a juror. The
20 fifth thing is that you do know it is a 26 U. S. Code
21 Section 7201 case, do not go home and get on your computer
22 and look up information about that. It is frankly pretty
23 easy nowadays, and we just remind you not to do any
24 investigation. Don't make any inquiry. Don't try to
25 research it in any way. The next thing is, of course, if
VOIR DIRE OF THE JURY
224
1 there is anything in the newspaper about it, probably
2 won't be, I mean, after all, but if there happened to be,
3 do not read it to check it out. And, of course, if
4 there's anything on television or radio, but, of course,
5 probably more central, if there's something about tax
6 evasion cases or something about things like that, while
7 you wouldn't be researching that, it would be an
8 inappropriate thing to do too. Don't do anything that
9 would provide you with information that might influence
10 you. And the seventh thing is keep an open mind until you
11 have heard all the evidence in the case, the final
12 arguments of counsel, the final instructions on the law,
13 gone to the jury room, deliberated among yourselves and
14 then make up your mind, and that's going to be about four
15 days from now.
16 Ladies and gentlemen, we're going to ask you to
17 be excused. Mr. Tuggle is going to show you out that way,
18 and we will see you in -- be back there at 8:30 tomorrow
19 morning, we will start in here at 9:00 o'clock.
20 (Jury out at 5:00 p.m.)
21 THE COURT: Gentlemen, I think that's --
22 anything else we need to take up at this time?
23 MR. MURPHY: Not from the government, Your
24 Honor.
25 THE COURT: From the defense? I want to make
VOIR DIRE OF THE JURY
225
1 sure that I have got down the -- the defense position
2 exactly, because you want a statement of your theory. And
3 Mr. Murphy, have you got a point on that, at all?
4 MR. MURPHY: Judge, I think they're entitled to
5 state their theory.
6 THE COURT: Oh, they are, I agree, I mean I
7 didn't know if you had --
8 MR. MURPHY: No, I don't have an objection to
9 it.
10 THE COURT: Let me make sure I have got the
11 exact theory statement --
12 MR. BECRAFT: Your Honor, I haven't articulated
13 a, quote, theory of defense. The only thing I really need
14 is, you know, legal points regarding my jury instructions,
15 and that has already been submitted. You know, there
16 might be one or two legal points that I want to bring up,
17 you know, as things develop, but I don't necessarily
18 need -- and I think it is something I can easily take up
19 in opening and closing stating our position.
20 THE COURT: Well, I know you asked to be able
21 to state your theory, and some people have me also insert
22 the theory in the instructions, and if you want me to do
23 that, you just have -- and you don't have to --
24 MR. BECRAFT: Yeah.
25 THE COURT: -- but if you actually want it
VOIR DIRE OF THE JURY
226
1 typed up and written and put in there, then somebody get
2 me a typed version and make sure it is reasonably short.
3 MR. BECRAFT: Okay.
4 THE COURT: Okay. Thank you.
5 THE CLERK: All rise.
6 (Court adjourned at 5:02 p.m.)
7
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
-------------------------------------------------------
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
VS. ) NO. 03-20111-Ml
)
)
VERNICE KUGLIN, )
)
Defendant. )
-------------------------------------------------------
TRIAL PROCEEDINGS
BEFORE THE HONORABLE JON PHIPPS MCCALLA, JUDGE
AUGUST 5, 2003
VOLUME II
BRENDA PARKER
OFFICIAL REPORTER
SUITE 942 FEDERAL BUILDING
167 NORTH MAIN STREET
MEMPHIS, TENNESSEE 38103
228
A P P E A R A N C E S
Appearing on behalf of the Plaintiff:
TERRELL L. HARRIS, ESQ.
UNITED STATES ATTORNEY
SUITE 800 FEDERAL BUILDING
167 NORTH MAIN STREET
MEMPHIS, TENNESSEE 38103
By: JOSEPH MURPHY, ESQ.
Appearing on behalf of the Defendant:
LOWELL H. BECRAFT, JR.
209 LINCOLN STREET
HUNTSVILLE, ALABAMA 35801
ROBERT G. BERNHOFT, ESQ.
207 EAST BUFFALO STREET
MILWAUKEE, WISCONSIN 53202
229
W I T N E S S I N D E X
WITNESS PAGE LINE
MARY ANN OSBORNE
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 267 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 282 19
REDIRECT EXAMINATION
BY MR. MURPHY: ........................ 312 17
KIMBERLY GILLUM
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 316 6
ELIZABETH EDWARDS
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 319 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 330 10
REDIRECT EXAMINATION
BY MR. MURPHY: ........................ 332 2
KARLENE NUBY
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 334 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 336 6
230
DANIEL JOSEPH HAUGHTON
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 339 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 341 13
REDIRECT EXAMINATION
BY MR. MURPHY: ........................ 343 14
ISABELLE BAKER
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 345 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 348 5
LEPORLEON PRUITT
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 351 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 358 20
ALEXANDER RIVERA
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 364 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 367 1
JEANNE GRIFFIS
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 369 6
231
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 371 1
DAVID SCOBEY
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 373 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 374 24
DEBORAH WHITE
DIRECT EXAMINATION
BY MR. MURPHY: ........................ 382 6
CROSS EXAMINATION
BY MR. BECRAFT: ....................... 399 9
REDIRECT EXAMINATION
BY MR. MURPHY: ........................ 411 7
VERNICE KUGLIN
DIRECT EXAMINATION
BY MR. BECRAFT: ....................... 419 6
232
E X H I B I T I N D E X
EXHIBIT NUMBER PAGE LINE
Exhibit Number 1 Notes to Taxpayer - 1996 271 3
Exhibit Number 2 Cert. of Lack of Record 271 22
Exhibit Number 3 1996 IRPTRO 273 16
Exhibit Number 4 1997 IRPTRO 274 10
Exhibit Number 5 1998 IRPTRO 274 21
Exhibit Number 6 Information Returns 275 7
Exhibit Number 7 2000 IRPTRO 275 18
Exhibit Number 8 2001 IRPTRO 276 3
Exhibit Number 9 1992 Certificate 277 4
Exhibit Number 10 1993 Certificate 279 1
Exhibit Number 11 1994 Certificate 280 16
Exhibit Number 12 1995 Certificate 282 3
Exhibit Number 13 IMF Transcript 289 5
Exhibit Number 13 Application 317 12
Exhibit Number 14 W-2s 321 2
Exhibit Number 15 W-4s 325 24
Exhibit Number 16 FedEx Direct Deposit Entry 8 17
Exhibit Number 17 1995 Form W-4 331 21
Exhibit Number 18 W-2 Form 335 22
Exhibit Number 19 Mortgage Interest Summary 41 8
Exhibit Number 20 Mortgage Interest Payments 7 24
Exhibit Number 21 Statement of Accounts 353 10
233
Exhibit Number 22 Application for Account 355 8
Exhibit Number 23 Mortgage Documents 365 23
Exhibit Number 24 Loan Documents 370 20
Exhibit Number 25 Chart 384 25
Exhibit Number 26 Chart 385 2
Exhibit Number 27 Paper Copy of Charts 385 4
Exhibit Number A Document 6209 308 19
234
1
TUESDAY MORNING & AFTERNOON
AUGUST 5, 2003
The trial of this case resumed on this date,
Tuesday, August 5, 2003, at 9:05 o'clock a.m., when and
where evidence was introduced and proceedings were had as
follows:
____________
THE COURT: All right. We're ready, we'll
bring the jury in.
COURT SECURITY OFFICER: Yes, Your Honor.
(Jury in at 9:05 a.m.)
THE COURT: You can be seated. And, of course,
thank you very much. I'm sorry we're running a little
late. They came just as I was leaving to do some storm
work, so I had to stay a little bit, but we'll try to stay
on schedule.
Ladies and gentlemen, I told you that we would
swear you in this morning, so I'm going to have you stand,
all raise your right hand, Mrs. Saba is going to
administer the juror oath at this time.
THE CLERK: Do you and each of you solemnly
swear that you will well and truly try the issues herein
joined and render a true verdict according to the law, so
help you God?
PRELIMINARY INSTRUCTIONS BY THE COURT
235
1 THE JURY: I do.
2 THE CLERK: You may be seated.
3 COURT SECURITY OFFICER: You are now the jury
4 in the case, and I'm going to take a few minutes to tell
5 you about your duties as jurors and give you some
6 instructions to give you some guidance as to how to listen
7 to the case. Now, at the end of the case, I will give you
8 more detailed instructions, and it is those instructions
9 that you must rely upon in reaching your decision in the
10 case.
11 This is a criminal case brought by the United
12 States government. The charges against the defendant are
13 contained in the indictment. And we went over the
14 indictment at the very beginning of the case. I'm going
15 to read you Count 1 of the indictment because it is
16 somewhat typical -- actually, I'm going to read you -- let
17 me make sure. I'll read you Count 2. They're all pretty
18 much alike, there's a little bit of difference, and they
19 do relate to different time periods. Count 2 says that
20 during the calendar year 1997, the defendant, Vernice B.
21 Kuglin, had and received taxable income in the sum of
22 approximately $147,999.60, that well knowing and believing
23 the foregoing facts, the defendant on or about April 15,
24 1998, in the Western District of Tennessee, did willfully
25 attempt to evade and defeat the said income tax due and
PRELIMINARY INSTRUCTIONS BY THE COURT
236
1 owing to her by the United States of America for said
2 calendar year by failing to make an income tax return on
3 or before April 15, 1998, as required by law, to any
4 proper officer of the Internal Revenue Service by failing
5 to pay the Internal Revenue Service said income tax, and
6 by filing a false Form W-4 in 1997, in violation of Title
7 26, United States Code, Section 7201. And you'll remember
8 that Count 1 is similar to a number of the counts. There
9 are six counts all together. Count 2 is similar to most
10 of the counts. Count 1 is just a little different, and a
11 couple of the counts are different too in they make no
12 reference to the Form W-4.
13 Now, the indictment -- an indictment is just
14 for the purpose of presenting information, it's not for
15 the purpose of evidence at all.
16 In this case, the indictment is, as usual, just
17 a description of the charge made by the government against
18 the defendant and, again, it's not evidence of anything.
19 The defendant has pled not guilty to the charge
20 contained -- each charge contained in the indictment and
21 is presumed innocent unless and until the government
22 proves beyond a reasonable doubt that the defendant is
23 guilty. It will be your duty to decide from the evidence
24 to be presented whether the defendant is guilty or not
25 guilty of the crime charged. You will decide from the
PRELIMINARY INSTRUCTIONS BY THE COURT
237
1 evidence what the facts are, and your verdict will be
2 based on those facts. You are the sole judges of the
3 facts. You must then apply those facts to the law which I
4 shall give you, and in that way reach your verdict.
5 You must follow the law whether you agree with
6 it or not, and you should not take anything that I may say
7 or do during the trial as indicating what I think of the
8 evidence or what I think your verdict should be. The law
9 in this case is contained in 26 United States Code,
10 Section 7201, and that code section reads in relevant part
11 as follows:
12 Any person who willfully attempts in any manner
13 to evade or defeat any tax imposed by this title or the
14 payment thereof shall be guilty of a crime.
15 The indictment in this case charges that the
16 defendant in six separate counts violated from the period
17 1996 to 2001, Section 7201 of Title 26 of the United
18 States Code.
19 The tax system or the system of tax collection
20 in the United States relies upon the honesty of taxpayers.
21 The government needs taxpayers to report timely,
22 completely and honestly all taxes they owe so that it can
23 collect the taxes due. Congress, therefore, has made it a
24 criminal offense for a taxpayer to evade taxes, to file a
25 false return or to file no return under certain
PRELIMINARY INSTRUCTIONS BY THE COURT
238
1 circumstances.
2 In order for the crime of income tax evasion to
3 be proved, the government must establish beyond a
4 reasonable doubt each of the following elements:
5 First, that the defendant owed substantially
6 more federal income tax for the calendar year of which
7 they're charged in that count in the indictment than was
8 declared due on the income tax return, or if there was no
9 return filed, that it should have been contained in a
10 return filed.
11 Second, that the defendant committed an
12 affirmative act constituting tax evasion described in the
13 indictment and that the defendant acted willfully.
14 Of course, the first thing the government
15 always has to prove in a tax evasion case is that the
16 defendant owed substantial federal income tax for the year
17 that's charged. The government doesn't have to prove the
18 exact amount the defendant owed, nor does the government
19 have to prove all of the tax charged in the indictment or
20 if a particular sum charged in the indictment is the
21 precise sum. It's not an accounting question, it's a
22 question of whether or not there was a substantial act.
23 So, of course, one of the things the government generally
24 must prove beyond a reasonable doubt is that the defendant
25 received substantial income in the year in which the taxes
PRELIMINARY INSTRUCTIONS BY THE COURT
239
1 were not paid and that tax was due on that income in the
2 year or the following year which the income was received.
3 In order to prove that the defendant received
4 substantial income which was not included in the return,
5 the government has to introduce evidence of income and the
6 receipt of that income by the defendant.
7 If you find based on all the evidence that the
8 government established beyond a reasonable doubt the
9 defendant did receive substantial income during the tax
10 year in question that was not reported in which nothing
11 was paid, then the first element of the offense can be
12 established. But, of course, if the government fails to
13 do that, then on that particular year, the element would
14 not be established.
15 The second element that the government must
16 prove as a general proposition is that the defendant --
17 and they must prove it beyond a reasonable doubt --
18 committed an affirmative act constituting tax evasion.
19 The Internal Revenue Code makes it a crime to attempt in
20 any manner to evade or defeat any income tax imposed by
21 the law. There are different ways in which taxes may be
22 evaded, and in this case, the defendant -- the government
23 simply charges the defendant received a substantial
24 income, and then, according to the government, willfully
25 chose not to pay those taxes, knowing that those taxes
PRELIMINARY INSTRUCTIONS BY THE COURT
240
1 were due. The government must, of course, establish this
2 type of affirmative element for each of the six counts in
3 the case.
4 Now, the third thing the government has to show
5 is that the defendant acted knowingly and willfully, and
6 it's in this context that we usually end up with a
7 discussion about whether someone had a good faith belief
8 that they didn't have to pay the taxes. Now, first, they
9 have to show that it was knowing and willfully. The
10 government has to prove beyond a reasonable doubt that the
11 defendant knew that she owed substantial federal income
12 tax for the particular year that is charged that was
13 declared on any return or returns filed should have been
14 declared on a return. Whether or not the defendant had
15 this knowledge is a question of fact that will have to be
16 determined by you on the basis of all the evidence.
17 Of course, an act can be done knowingly only if
18 it is done purposely and deliberately and not because of
19 mistake, accident, negligence or other innocent reason.
20 Now, I'll give you more detailed instructions
21 on all of this at the end of the case, but I anticipate
22 that the defendant will take the position that she has a
23 good faith belief that she did not have to pay or file the
24 income tax return. She didn't have to pay the taxes in
25 the respective year.
PRELIMINARY INSTRUCTIONS BY THE COURT
241
1 A defendant does not act willfully, we just
2 talked about the willful element, if she believed in good
3 faith that her acts complied with the law. Therefore, if
4 the defendant actually believed that she was doing what
5 was in accordance with the tax statutes, she cannot be
6 said to have the criminal intent to willfully evade taxes.
7 Thus, if you find, after you have heard all the evidence
8 in the case, that the defendant honestly believed that she
9 owed no taxes, even if that belief was unreasonable or
10 irrational, then you should find her not guilty. However,
11 of course, you will be allowed to consider whether the
12 defendant's belief was actually reasonable as a factor in
13 deciding whether she held that belief in good faith.
14 It should also be pointed out that neither the
15 defendant's disagreement with the law nor her own
16 belief -- nor her own belief that the law is
17 unconstitutional, if she had that belief, no matter how
18 earnestly that belief is held, constitutes a defense of
19 good faith. It is, of course, the duty of all citizens to
20 obey the law regardless of whether or not they agree with
21 it. So -- and you'll get a copy of the -- of all of the
22 instructions on the elements, the concept of willfulness,
23 the concept of a good faith belief before you're required
24 or asked to deliberate, and it will be a little more
25 detailed than the one I have given you at this time.
PRELIMINARY INSTRUCTIONS BY THE COURT
242
1 Well, that's a summary of the basic principles
2 of law that you're going to have to be dealing with in
3 this case.
4 Let me tell you a couple of other things. You
5 are going to decide, obviously, and have to decide the
6 fundamental question of who you believe in this case and
7 who you do not believe, or perhaps more clearly, you're
8 going to have to decide the fundamental question of
9 whether you believe the defendant, whether you believe
10 other proof that would suggest that you do not believe the
11 defendant had a good faith belief as to her not having to
12 pay taxes under the statutes that govern the payment of
13 taxes. So you're going to have to decide who you believe
14 or who you don't believe in this case. How do you do
15 that? There are a couple of things you try to do,
16 basically, usually. First of all, you observe the
17 demeanor of each witness as that witness testifies,
18 determine whether or not you believe what the witness has
19 to say in this case, determine whether or not the witness
20 has previously said something different than what the
21 witness is saying who is before you in this case,
22 determine whether or not the testimony of the witness is
23 different from the testimony of other witnesses that you
24 do believe and, of course, use your common sense in
25 evaluating whether or not the statement, the information
PRELIMINARY INSTRUCTIONS BY THE COURT
243
1 provided by each witness does appear to you to be a
2 truthful statement on their part. Use the normal
3 observation skills that you have in your everyday walks of
4 life. Obviously, you're going to make a determination on
5 credibility in this case, and I will give you more
6 detailed instructions again on that at the end of the
7 case, but it is a common sense type of approach in which
8 you carefully observe the witnesses as they testify.
9 Let's talk about a couple of other things.
10 Note taking. Well, you have all got note pads, I think.
11 You're allowed to take notes in the case, and I suggest
12 that you may want to keep a list of witnesses just so you
13 can remember everybody who testified. You may want to
14 make a couple of notes about what they say or do not say.
15 But let me say this about notes: Don't let note taking
16 interfere with your observing witnesses. Don't get so
17 busy taking notes that you're not paying attention to the
18 witness as each witness gives his or her testimony,
19 because, of course, it's your observations about their
20 testimony that is going to be far more important. Your
21 notes are not evidence in the case. They're just there to
22 remind you individually of the testimony that you have
23 heard and the observations you made as the witness was
24 testifying. The notes aren't to be shared with others or
25 used to say, well, it's in my notes, it must be true. We
PRELIMINARY INSTRUCTIONS BY THE COURT
244
1 all know that that's not necessarily accurate, people can
2 make erroneous notations or you might not observe
3 something the same way that someone else does. Those
4 notes are for your personal use, your personal use alone,
5 they're not in the evidence. And if you choose not to
6 take notes or you don't have notes on a particular point,
7 you're to rely on your own recollection and the collective
8 recollection of everybody else on the jury in determining
9 what occurred here in the courtroom and not on a set of
10 notes. So don't be overly influenced by somebody's note
11 or the fact that somebody has some notes, they shouldn't
12 really talk about what are in their notes, but the fact
13 that they have some notes in making a decision. It's your
14 own observation, the observation of all of you, that is
15 what counts in this case.
16 At the end of the case, again, I'll give you
17 detailed instructions. You will have a written set of
18 instructions. After I give you those instructions, which
19 will be there to guide you, and it's those instructions
20 that you should rely on in deciding the case.
21 Mr. Murphy, are you ready to proceed with
22 opening statement on behalf of the United States?
23 MR. MURPHY: Yes, sir, Your Honor.
24 THE COURT: You may proceed.
25
OPENING STATEMENT BY MR. MURPHY
245
1 MR. MURPHY: Thank you, Your Honor.
2 Good morning, ladies and gentlemen.
3 THE JURY: Good morning.
4 MR. MURPHY: This is the part of the trial we
5 call opening statements. Before I even say anything, I
6 want to congratulate you, ladies and gentlemen. I know
7 you're going to say why is Mr. Murphy congratulating us
8 for sitting as a juror on a tax case. It's not the most
9 exciting thing in the world.
10 Well, you, ladies and gentlemen, are now
11 judges, you're judges of the facts in the case. Now, you
12 don't sit up on the bench, you're in the jury box, and you
13 don't wear a robe, but you, ladies and gentlemen, listen
14 to the proof and make a decision based on the law that the
15 judge gives you. And I always start out by mentioning
16 that to people because it's very important that you
17 listen. Even a case that it's a little more exciting in
18 terms of what we're talking about can be difficult to
19 listen to. So it is important that you listen, because
20 the proof is what you're going to have to make your
21 decision about. And I know a lot of times when you get
22 back after lunch late in the day, it's difficult to
23 listen, and I know everybody will, but it's important that
24 you do.
25 As the judge told you, this is an income tax
OPENING STATEMENT BY MR. MURPHY
246
1 evasion case. The indictment charges six counts of income
2 tax evasion. One for 1996, one for 1997, 1998, 1999, 2000
3 and 2001. In Counts 2 through 6, what's charged is the
4 evasion was aided or -- not aided, but was involved by
5 filing of false W-4 forms and failure to file a return,
6 failure to pay taxes. In Count 1, it's failure to pay
7 taxes and failure to file a return.
8 Now, what's the proof in this case going to
9 show? I anticipate, ladies and gentlemen, that the proof
10 in this case is going to show that the defendant was
11 employed by Federal Express as a pilot, and that she filed
12 income tax returns with the exception, I believe the proof
13 is going to be, one year from 1965 until 1992. She didn't
14 file any returns from '93 through 2001. The conduct
15 that -- the years involved in this case, however, are '96
16 through 2001.
17 The proof is going to be that she received
18 substantial income in each of those years and that she had
19 taxable income. Now, taxable income, the proof is going
20 to be, is that income that remains after you deduct
21 deductions, personal exemptions, that sort of thing and
22 that that is what you're actually taxed on.
23 I submit, ladies and gentlemen, and expect the
24 proof is going to be that in 1996, the defendant had wages
25 of $183,408, that she had taxable income that year after
OPENING STATEMENT BY MR. MURPHY
247
1 making deductions for mortgage interest and those sort of
2 things of $162,883, and that the tax due was approximately
3 $47,000.
4 As to 1997, I anticipate that the proof is
5 going to be that the defendant had wages totaling $172,674
6 from Federal Express, that she had taxable income that
7 year of $147,999 and the tax due and owing was
8 approximately $42,000.
9 As to 1998, I anticipate the proof is going to
10 be that defendant received approximately a $168,000 in
11 wages and disability insurance compensation, that she had
12 total taxable income of approximately $137,000, and that
13 the tax due and owing for that year was $36,507.
14 As to 1999, I anticipate the proof is going to
15 that the defendant had $172,428 in wages from FedEx, that
16 her taxable income after making allowances for deductions
17 and exemptions -- okay, I forgot to turn that on this
18 morning. Hopefully, I won't blow everybody out of their
19 seats. Is that too loud for y'all?
20 Regarding tax year, 2000, I submit, ladies and
21 gentlemen, that the proof is going to be that the
22 defendant had wages from Federal Express in the amount of
23 $191,000 approximately, taxable income that year of
24 approximately $164,000, and tax due and owing of
25 approximately $47,000.
OPENING STATEMENT BY MR. MURPHY
248
1 As to 2001, I submit the proof is going to be
2 that the defendant had wage income of $190,000
3 approximately in 2001, taxable income of $161,000, in
4 2001, tax due and owing of approximately $45,000.
5 Now, the proof is also going to show a pattern
6 with the defendant's W-4 filings. You will see W-4s, but
7 the proof is going to be that that is where you claim your
8 withholding exemptions. The defendant in 1988 submitted a
9 statement to Federal Express in which she claimed six
10 withholding exemptions. I anticipate the proof is going
11 to be in 1990, she submitted a W-4 to Federal Express
12 where she had ten exemptions. Then somewhere along 1996,
13 1995, Federal Express stopped withholding income tax from
14 the defendant's wages, and that around that time, she
15 submitted the W-4 and -- where she claimed exemption.
16 Now, the proof is going to be that on W-4
17 forms, there's a line that says I claim exemption from
18 withholding for the year, and I certify that I meet both
19 the following conditions for exemption. Last year, I had
20 the right to a refund of all federal income tax withheld
21 because I had no tax liability, and this year I expect a
22 refund of all federal income tax withheld because I have
23 no tax liability. If you meet both conditions, write
24 exempt here, and there's a box for exempt.
25 Then if you go down, there's a signature line
OPENING STATEMENT BY MR. MURPHY
249
1 that says, under penalties of perjury, I certify that I am
2 entitled to the number of withholding allowances on this
3 certificate or I'm allowed to claim exempt status.
4 Employee signature of Ms. Kuglin, signed her name and
5 dated it in every case. And in every case except one, she
6 added the language reserving all of my constitutional
7 rights in this matter, to the perjury declaration where
8 you swear under the penalty of perjury that that is a
9 truthful statement.
10 The proof is also going to show again that once
11 that was submitted, Federal Express withheld no income
12 tax. Further, there is going to be proof that no tax
13 returns were filed by the defendant during this period,
14 and that based on the agent's investigation, except for
15 the one year -- one year where a sum of 13 --
16 approximately $1300 was withheld from the Kemper Insurance
17 checks, there was no other withholding and no tax payment.
18 And further, the proof is going to be that during this
19 period of time, Ms. Kuglin's check was deposited at the
20 Federal Express Credit Union, and from '96 till -- at
21 least there will be records from '96 to 2000, I anticipate
22 the proof is going to be that she would paid be by
23 electronic funds transfer, and most days that there was a
24 payday, Ms. Kuglin or someone would go down to the bank
25 and withdraw large sums of cash that same day as the
OPENING STATEMENT BY MR. MURPHY
250
1 paycheck was deposited. There will also be proof that
2 because of some tax problems that Ms. Kuglin had that
3 there were levies made against her and garnishments and
4 that she was sent notice of these. That is in sum what I
5 anticipate the proof is going to be, and the reason we do
6 this is because we're going to have several different
7 witnesses. This isn't like television where you have one
8 witness who can get up there and give you all the proof.
9 I anticipate the government will have 14, 15 witnesses.
10 Most of it will go pretty quick, but this way we do this
11 so you can understand there will be people coming that
12 will give proof about the mortgage interest, the agent
13 will go through the tax computation, FedEx will come in
14 and there will be proof about the wages paid.
15 Ladies and gentlemen, I am just about done. I
16 just want to urge you to listen to all the proof in this
17 case, because, remember, you're the judges, and it is
18 going to be up to you to decide whether the defendant did
19 evade taxes and did so knowingly and willfully. Thank
20 you, ladies and gentlemen.
21
22
23
24
25
OPENING STATEMENT BY MR. BECRAFT
251
1 MR. BECRAFT: May it please the court -- I kind
2 of hate these microphones, anybody having any problem with
3 me speaking too loud or are you having any problem hearing
4 me?
5 THE COURT: Have you got your mic on?
6 MR. BECRAFT: I thought I turned it on, Judge.
7 I was looking for the red light to come on.
8 THE COURT: If you don't have it on, it's not
9 through our system, and that way you can't be heard in the
10 clerk's office. And we need -- you know, that's --
11 MR. BECRAFT: Somehow, the little -- how is
12 that?
13 May it please the court, ladies and gentlemen
14 of the jury, before I give you at this stage what lawyers
15 call opening statement -- and in opening statement what we
16 like to do is kind of give you a road map of what this
17 case looks like. You know, I want to first express before
18 I get rolling this morning, something that everybody on
19 this side of the courtroom believes. I think Judge
20 McCalla will agree with what I say, I know Mr. Murphy will
21 agree with what I say Ms. Kuglin and Mr. Bernhoft. You
22 know, yesterday when y'all came, we spent a whole day
23 picking the jury. A lot of you saw some of these other
24 people get up, oh, you know, I got some problem, some of
25 those were real problems. But as to each and every one of
OPENING STATEMENT BY MR. BECRAFT
252
1 you, I think you appreciated and understood the civic duty
2 that was being imposed upon you and the need here in
3 America, particularly in reference to criminal cases, for
4 us to call in our friends and neighbors, people from the
5 community and come in and decide a case that can't be
6 decided without your intervention.
7 Now, let me just tell you, ladies and
8 gentlemen, on this side of the room, we really appreciate
9 what you have done.
10 You know, as Judge McCalla has told you, this
11 is a criminal case, and I've -- you know, while he was
12 giving y'all instructions this morning, what I did is I
13 kind of sat down and listened to what he had to say, and I
14 have written out, y'all can fault me for my handwriting,
15 but let me kind of summarize, if I can, what this case is
16 about. Here in America, you know, we have an indictment
17 that comes out, it's a piece of paper or several pieces of
18 paper, and what they do is they make a formal accusation
19 of the commission of a crime. Here in this case, what we
20 have is we have got an indictment, and I want to
21 familiarize yourselves with what we're dealing with. As
22 you have been told before, Count 1 alleges that tax
23 evasion was committed in '96, Count 2 is in '97, Count 3
24 is in '98, Count 4 is in '99, Count 5 is in 2000 and Count
25 6 is in 2001. Tax evasion. What is that we're going to
OPENING STATEMENT BY MR. BECRAFT
253
1 have to look at here? What are the elements, as Judge
2 McCalla told you about earlier this morning? Well, you
3 know, lawyers take a look at statutes, and we sit there
4 and we kind of -- we divide them into what we call
5 elements. Elements are facts. What does the government
6 have to prove beyond a reasonable doubt that a crime
7 that's charge in the indictment was committed. In this
8 situation, as Judge McCalla told you a minute ago, I'm
9 kind of summarizing the fact or element that must be
10 proven was taxes were owed.
11 MR. MURPHY: Judge, can we approach for a
12 second?
13 THE COURT: You may.
14 (The following proceedings had at side-bar
15 bench.)
16 MR. MURPHY: Judge, I'm not trying to waylay
17 Mr. Becraft, but this is opening, not closing. And
18 talking about elements at this point --
19 MR. BECRAFT: I want to just talk about intent,
20 Your Honor, that is where I was headed, real quickly move
21 through some of the things about what is important in this
22 case, make admissions, tell the jury what this case is
23 about, which is all criminal intent. That's where I'm
24 headed.
25 THE COURT: As a general proposition, the
OPENING STATEMENT BY MR. BECRAFT
254
1 purpose of opening statement is to give a road map as to
2 what proof is anticipated -- what proof is anticipated by
3 the respective party, and that does not mean usually
4 having a detailed discussion of the elements, that sort of
5 thing.
6 MR. BECRAFT: I understand.
7 THE COURT: It is more of a road map.
8 MR. BECRAFT: I will move on, Your Honor.
9 (The following proceedings were had in open
10 court.)
11 MR. BECRAFT: What I want to point out to you
12 is what's important for this case, what y'all are going to
13 have to decide is primarily the criminal intent that Judge
14 McCalla told you what's in issue in this case,
15 willfulness. That's that criminal intent I was telling
16 you about when we were picking the jury. The government
17 is going to come in in this case and offer some proof and
18 you're going to find out most of it is probably not going
19 to be contested by the defense. The defense does not
20 contest -- Vernie Kuglin does not contest the fact that
21 she worked for FedEx and she made good money. She's not
22 going to contest all these other things that the
23 government is going to be talking about. These witnesses,
24 they're going to come up here and testify about how much
25 was made or how much interest was paid on mortgages and
OPENING STATEMENT BY MR. BECRAFT
255
1 everything else. Ladies and gentlemen, that's not the
2 issue in this case, at least from the defense. What is in
3 question is that criminal state of mind. Did Vernie
4 Kuglin commit the crime of tax evasion with a criminal
5 intent? Did she act willfully?
6 Now, let me tell you about -- I think you need
7 to know something about who Vernie Kuglin is in order for
8 you to make an assessment of her intent. I've never ask
9 her her date of birth, and I'm not going to, but her
10 parents were missionaries, and they were missionaries to
11 Africa at some time in the past, and Vernie Kuglin was
12 born in Africa, but her parents were from Kansas. And
13 after a certain number of years in the field, that family
14 came back, and Vernie Kuglin enrolled in school in Kansas,
15 and she ultimately, let's say, in the early '60s went to
16 college. The proof is going to be that she had enough
17 high school credits to move without getting a degree
18 straight into college. She went a couple of years to
19 college in Kansas. Right after that, you know, she had,
20 during the course of her teenage years and early college
21 years, she was doing things like waiting tables, being a
22 waitress, but by the mid 60s, '65, 1966, she worked her
23 way down to Dallas where she became a flight attendant for
24 Braniff Airlines. And after a couple of years of being a
25 flight attendant for Braniff Airlines, she met a man out
OPENING STATEMENT BY MR. BECRAFT
256
1 in California, married him, and as a result of have union,
2 they had a son by the name of Christopher. Unfortunately,
3 that marriage didn't work out and the parties were
4 divorced. So in the early '70s, you know Vernie Kuglin
5 has been a flight attendant, she had been married, she is
6 now divorced, she has got to support a young baby boy, and
7 she does such things as become a librarian, she becomes a
8 book binder, she does other odds and ends, and I think one
9 of her jobs was she worked for Welfare, but ultimately
10 while doing these jobs and raising her young son, she
11 determined that she had an interest in flying. So in the
12 '70s, '75, '76, '77, '78, right around there, Vernie
13 Kuglin decided I want to become a pilot, and I think she
14 was living in Dallas at the time and took her first flying
15 lesson. After that, she became a flight instructor. By
16 some time around 1980 or 1981, there was a company, I
17 think, in Lafayette, Louisiana by the name of Royal
18 Airlines, and she became a corporate pilot for that
19 company. By 1985, she did what most people wanted to do,
20 hey, if you're a pilot and you want to get a job with one
21 of the big commercial airlines. Well, ultimately, she did
22 get a job in 1985 with FedEx. She moved to Memphis from,
23 I believe, Dallas or Louisiana, and she has lived here
24 ever since. By 1985, you know, if you take the trolly all
25 the way down to Beale Street, there is Waterford condos
OPENING STATEMENT BY MR. BECRAFT
257
1 down there. In 1989, she bought that apartment down
2 there, or that condominium. What she does and what she
3 has done for most of her life is a FedEx pilot or at least
4 since 1985. We all know what FedEx does, those pilots get
5 to the airport about -- you know, sometime in the evening,
6 and while we're in bed, those FedEx pilots are flying all
7 over the country delivering their cargo. And after they
8 go from, say, like from Memphis to Dallas or San Francisco
9 or Portland, then they come back. You know, it is early
10 morning when they get ready to go to bed, and they go to
11 bed, and then they get up and they do the same thing.
12 These are night people, and that's what Vernie Kuglin was
13 doing, and she was paid good money to be a pilot.
14 As Mr. Murphy mentioned a minute ago, since the
15 early '60S probably, I don't know the exact date, perhaps
16 the government can tell us, all the way up through the
17 '90s Vernie Kuglin was like anybody else, she filed those
18 federal income tax returns. But what changed her mind?
19 What caused her to think otherwise? Let me kind of give
20 you a road map of what her beliefs were. I have kind of
21 summarized them in certain categories. If you can kind of
22 look at this, I want to kind -- if you're like me, you
23 know I want to kind of categorize these types of belief.
24 The first, she has a belief that, well, the federal income
25 tax is an excise tax, and based upon her reading of
OPENING STATEMENT BY MR. BECRAFT
258
1 materials, an excise tax can't be imposed upon the right
2 to earn a living. That's point number one. Point number
3 two, she has been through this Internal Revenue Code, and
4 she thinks that those that are required to file an income
5 tax returns are parties that are statutorily made liable
6 for a income tax, and she has been unable to find such a
7 provision in the code. And finally her third major belief
8 is that, you know, let's call it the Paperwork Reduction
9 Act argument. The government has got to assign OMB
10 control numbers to certain documents and regulations, and
11 from her investigation of tax laws and other items, she
12 has reached the conclusion that, hey, this Form 1040
13 doesn't match up with what I see here. Why do I see Form
14 2555 entitled foreign earned income as what appears to her
15 to be the form that should be required to be filed? All
16 of these are oddities, but they are important for Vernie
17 Kuglin.
18 Now, how did she arrive at these beliefs? Let
19 me kind of summarize, if I can. In 1992, Vernie Kuglin is
20 probably somebody that's apolitical. One evening, as she
21 is kind of vacuuming around her condominium, she has got
22 the TV on, and there she is listening to C-Span and there
23 is a party convention, a political party convention on,
24 the Libertarian party, and she didn't know anything it,
25 and she sat down to watch this Libertarian party
OPENING STATEMENT BY MR. BECRAFT
259
1 convention, these people debating, and she said, you know,
2 I'm kind of interested in this. As a result of seeing
3 what she saw on TV, she contacted a man that lives here in
4 Memphis, Don Winfield, and as a result of them talking,
5 ultimately Vernie Kuglin is becoming somebody who is
6 extremely interested in the Libertarian party. She and
7 Mr. Winfield, they kind of go to little meetings around
8 the state to fellow Libertarians. She goes to meetings in
9 other cities across America, and as she is getting into
10 this study and comprehension and understanding of the
11 message of the Libertarian party, she starts encountering
12 and running across tax information. People in the
13 Libertarian party are saying, well, you know -- they're
14 talking about taxes. Well, as a result of the talking
15 about taxes, you know, Vernie hears such things as people
16 saying, well, you know, it's voluntary. And Vernie checks
17 that out, and, you know, she sees actual government
18 documents, our tax system is based upon voluntary
19 compliance. That creates, you know, a view of the tax
20 laws that she has never seen before. She always thought
21 it was mandatory. Now, the government is saying our
22 remember system is based on voluntary compliance. Well,
23 once she starts seeing these documents, she makes a
24 commitment I want to learn something about the federal
25 income tax laws. One of the first things that she did is
OPENING STATEMENT BY MR. BECRAFT
260
1 somehow some way, she will tell us, but this is a cassette
2 series, constitutional convention by Walter Cronkyte, the
3 ratification debates, the Bill of Rights, the text to the
4 United States Constitution, she starts listening to stuff
5 like this. She starts reading the Declaration of
6 Independence. She reads, you know, publications that are
7 put out, Freedom Daily. She reads books that she has
8 never read before, things that explain politics, economics
9 and taxation. And this process of learning about the law
10 for her for the first time is very revealing. Ultimately,
11 by some time in '92 or '93, she is beginning to engage in
12 a real detailed study of the law, what she perceives to be
13 the law. Now, I need to tell you before I get into the
14 details of this, I want to -- I made a promise to Judge
15 McCalla earlier, and I make a promise to you now, you
16 know, what is going to be important in this case is Ms.
17 Kuglin's beliefs and whether or not you believe that they
18 were her firmly held beliefs. Now, her beliefs, you know,
19 when she gets up there on the stand, I want to you
20 remember this one fact. When she says, well, I think this
21 is the law or I believe that this is what the law is, I
22 want to tell you right now, and I'm going to bring this up
23 with one of the first series of questions I'm going to be
24 asking her, our position is that's what she says up there
25 are her beliefs about the law. Don't confuse it with what
OPENING STATEMENT BY MR. BECRAFT
261
1 the court is going to tell you in the way of jury
2 instructions at the end of this case. But Ms. Kuglin has
3 certain beliefs about the law. She studied the United
4 States Constitution, she found out that the Constitution
5 authorizes Congress to impose two types of taxes. She did
6 kind of a study of the history of income taxation at the
7 federal level. She learned that in 1895, you know, she
8 read some documents that she thought were decisions of the
9 United States Supreme Court, a case called the Pollock
10 case that held bad income tax unconstitutional. She read
11 and studied stuff about the ratification of the 16th
12 Amendment, the federal income tax amendment. She read a
13 case called the Brushaber case and reached the conclusion
14 that in a constitutional sense, the federal income tax is
15 an excise tax, point number one as I put up here. Now,
16 she didn't stop there. What is important for Vernie
17 Kuglin is in her mind she envisioned, well, the federal
18 income tax is a thing known as an excise tax. So what is
19 an excise tax? And so she started reading cases, and one
20 of the things that was real important for Vernie Kuglin
21 was a case that she thought was the Tennessee -- the
22 Supreme Court case of 1960 called the Jack Cole against
23 McFarland, and she read that case, and it says an excise
24 tax can't be used to tax the right to earn a living. And
25 she concludes that that is a very fundamentally important
OPENING STATEMENT BY MR. BECRAFT
262
1 case, so fundamentally important that that is the reason
2 why there's no state income tax here in Tennessee. So it
3 is logical from her viewpoint to draw a conclusion based
4 upon what she understands are court cases, and she reaches
5 the conclusion, well, hey, I can see how people are
6 talking about you may not owe the federal income tax. But
7 she doesn't stop there, she moves on and she does some
8 other studying, what I call legal belief number two up
9 there on the screen. What she did is, as you can see, not
10 that we're going to be offering this into evidence, you
11 can see that by July of 1994, Vernie Kuglin had ordered a
12 copy of the Internal Revenue Code. Big thick book. She
13 reads some documents that come from the IRS that identify
14 the various laws that require you to file a return. So
15 she said I'm going to study those laws, and she sits down
16 and does it, and, you know, when she reads what she
17 believes to be Section 6001 of the Internal Revenue Code
18 and 6011 of the Internal Revenue Code, she says that the
19 law for filing returns, it doesn't say something like
20 every American, it says something to the effect that every
21 person liable, without telling you who it is. So as a
22 result of looking at the law, Vernie Kuglin starts looking
23 around and trying to find am I liable for the federal
24 income tax, and to make a long story short, she ultimately
25 goes through the income tax sections of that big thick
OPENING STATEMENT BY MR. BECRAFT
263
1 book over there and reaches the conclusion, well, I only
2 found one statute that makes anyone liable for the federal
3 income tax, that's the only agent for nonresident aliens
4 and foreign corporations, and I'm not a nonresident alien
5 and I'm not a foreign corporation, and I'm not making
6 payments to nonresident aliens and foreign corporations.
7 So she reaches the conclusion, hey, I don't have to file
8 income tax returns. But then perhaps one of the final
9 things that kind of, you know, kind of solidified her
10 beliefs was this thing about the Paperwork Reduction Act.
11 She will explain what her beliefs are about this
12 particular law. You will hear OMB control numbers on
13 forms. There are OMB control numbers on regulations. She
14 knows that under this particular law, a tax regulation has
15 to have an OMB control number. She knows or she believes
16 that Section one of the Internal Revenue Code is the
17 section that imposes the tax. She knows that the
18 regulation that corresponds to that is Treasury Regulation
19 1.1-1. Now, Vernie Kuglin took a publication that comes
20 from the government and merely looked up to see what is
21 the form that applies to the tax imposed section of the
22 Internal Revenue Code. And to her amazement, she came up
23 with this Form 2555 entitled foreign earned income.
24 Now, ladies and gentlemen, you can't say that
25 Vernie Kuglin is a legal scholar, but you can say that she
OPENING STATEMENT BY MR. BECRAFT
264
1 is an ordinary American, and you can say that an ordinary
2 American has a right to sit down and read what she
3 understands to be the law, to read cases and draw
4 conclusions, and so as a result of her studies, what
5 Vernie Kuglin did is that for '93, '94, '95 or
6 thereabouts, you know, she is working at FedEx and she is
7 having withholding from her wages, but by the fall of '95,
8 she is committed to her position, she really believes that
9 she is not required to file returns, she really believes
10 that she is not subjected to withholding. She has a
11 meeting some time in 1995, one of the people that she met
12 here in Memphis had a little problem with the IRS, and
13 they go down to a meeting, and at this meeting, you know,
14 where Vernie Kuglin gets to see the IRS inter -- dealing
15 with somebody who is claimed to owe taxes, she starts
16 asking questions. And she learns that the IRS agents
17 don't want to answer the questions, and so she is directed
18 to study the law, go to the law library or hire a lawyer.
19 So what does Vernie Kuglin do as a result of what the IRS
20 told her? Goes to the library, runs over there to Memphis
21 State, does studying. She runs into an organization that
22 has lawyers on board. Ultimately, she gets those lawyers
23 to do some things for her. She did what the IRS said do
24 as a result of this meeting. But then by the fall of
25 1995, Vernie Kuglin -- I think she said she wrote a lot of
OPENING STATEMENT BY MR. BECRAFT
265
1 this while she was flying, but she writes some letters to
2 the IRS, October of '95, November of '95. She has got a
3 series of questions that she poses to the IRS, one of
4 which is what law makes me liable for the federal income
5 tax and, therefore, required to file an income tax return.
6 She sends it to the IRS. Did she get a response? No. A
7 month later, she sends another letter to the IRS. Does
8 she get a response? No. Those are two letters that we're
9 going to offer into evidence here. Now, having not
10 received a reply from the government, Vernie Kuglin
11 decided that there's something to hide, and she started
12 implementing her beliefs, which are not something that's
13 drawn out of the thin air, but virtually everything that
14 she believes comes from the law or the government itself.
15 So by December 29th, December the 30th of 1995, Vernie
16 Kuglin gets around to submitting to FedEx this document
17 right here, which is the first exempt Form W-4 with a
18 bunch of attachments. Thereafter -- you know, the
19 government is going to bring in somebody from FedEx, hey,
20 think Vernie Kuglin submitted this W-4 exempt. You bet.
21 Vernie Kuglin is a woman that has firmly held beliefs.
22 Those firmly held beliefs caused her to ask questions of
23 the IRS. Ultimately, she hired lawyers to ask these
24 questions of the IRS. You know what, ladies and
25 gentlemen? This whole problem could have been resolved if
OPENING STATEMENT BY MR. BECRAFT
266
1 somebody in the government had answered those questions.
2 So this case, ladies and gentlemen, let me tell you what
3 it boils down to. I think that this is the redeeming
4 thing of this case. Tax evasion is not committed by
5 reading the law and relying on the government. This,
6 ladies and gentlemen, is acting in good faith. That's
7 what the evidence will show in this case. And that,
8 ladies and gentlemen, is the reason why Vernie Kuglin is
9 not guilty. That concludes my remarks. I hope that we
10 can finish this case by sometime tomorrow afternoon.
11 Thank you.
12 THE COURT: Mr. Murphy, you may call your first
13 witness.
14 MR. MURPHY: Yes, sir, Your Honor.
15 THE COURT: If you would stop right there and
16 raise your right hand at the podium. I'm going to let you
17 get over to the microphone, thanks very much. Do you
18 swear that the testimony you are about to give in this
19 case will be the truth, the whole truth and nothing but
20 the truth, so help you God?
21 THE WITNESS: I do.
22 THE COURT: You may have a seat up here.
23
24
25
DIRECT - MARY ANN OSBORNE
267
1 MARY ANN OSBORNE,
2 was thereupon called as a witness on behalf of the
3 Plaintiff, and having been first duly sworn, was
4 examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. MURPHY:
7 Q. Would you state your name, please, ma'am?
8 A. Mary Ann Osborne.
9 Q. And who do you work for, Ms. Osborne?
10 A. I work for Internal Revenue Service.
11 Q. And what do you for the Internal Revenue Service?
12 A. My job title is court witness coordinator.
13 Q. Okay. Are you also involved with -- you have got
14 knowledge of how the IRS keeps custody of documents?
15 A. Yes, sir, I represent the custodian of records, I do
16 prepare, research and receive these documents and do prepare
17 them for court.
18 Q. Okay.
19 MR. MURPHY: Your Honor, if I could approach.
20 THE COURT: You may.
21 MR. MURPHY: We have already shown this to
22 defense counsel.
23 MR. BECRAFT: May it please the court, for this
24 witness, there's not going to be any objection to the
25 exhibits that Mr. Murphy offers.
DIRECT - MARY ANN OSBORNE
268
1 Q. Ma'am, I passed you a document, would you tell me what
2 that document is?
3 A. This is a certified copy of the individual master file
4 transcript, what we call a complete.
5 Q. Now, what information goes in an individual master file
6 transcript?
7 A. The individual master file transcript is a record of
8 all actions, transactions or anything taken or done to the
9 taxpayer's account.
10 Q. Okay. And that particular individual master file that
11 I passed to you, who was that for?
12 A. Vernice Kuglin.
13 Q. Would you spell the first and last name?
14 A. First name V-E-R-N-I-C-E. Last name K-U-G-L-I-N.
15 Q. And what was the social security number for that
16 taxpayer?
17 A. The social security number is 514-44-1724.
18 Q. All right. Now, can you examine that document and tell
19 us what years, if any, Ms. Kuglin has filed income taxes,
20 income tax returns, rather?
21 A. The first income tax return filed was in 1965. Let me
22 back up just a little bit. The first document we have of
23 something being done to this account was in 1965.
24 Q. Okay.
25 A. 1966, 1967.
DIRECT - MARY ANN OSBORNE
269
1 Q. Now, '66 and '67, tax returns were filed?
2 A. I'm assuming they were. Looking at this document, I
3 cannot tell you for sure.
4 Q. Okay. Keep going.
5 A. There is nothing listed here for 1969, so there is
6 nothing documented for 1969. There was something done to this
7 account in 1970, 1971, 1972, 1973, 1974, 1975, '76, '77, '78,
8 '79, '80, '81, '82, '83, '84, '85, '86, '87, '88, '89, '90,
9 '91, '92, '93.
10 Q. Were tax returns filed in '93?
11 A. Yes, there was.
12 Q. Okay. Now, what kind of tax return was filed in '93?
13 Was that a substitute return?
14 A. Yes, sir, it was a substitute return.
15 Q. Okay. What is a substitute return?
16 A. A substitute return is where enough data has been sent
17 in to Internal Revenue Service by businesses, banks or
18 whatever to enable them to assess tax on a tax return.
19 Q. Okay. And does the IRS file a substitute return?
20 A. The IRS does prepare the substitute return.
21 Q. Okay. And how about '94, was a return filed?
22 A. Yes, sir, there was. This was also a substitute
23 return.
24 Q. Okay. Again, who prepares the substitute return?
25 A. Internal Revenue Service prepares the substitute
DIRECT - MARY ANN OSBORNE
270
1 return.
2 Q. Now, does that record indicate that there were any
3 levies on any withholding monies?
4 A. The 1993, the 1994 and the 1995 tax return show that
5 there was withholding credited to this account.
6 Q. Okay.
7 A. The 1993 return shows that there were two payments made
8 to these accounts, and if I'm correct, I think these were levy
9 payments.
10 Q. Okay. And would a levy payment show up as a payment on
11 the account?
12 A. Yes, it would.
13 Q. Does that record indicate that there were notices sent
14 out to the taxpayer of some kind regarding the levies?
15 A. Yes, sir, it does.
16 Q. Okay. Can you tell us the date that the notices were
17 sent out?
18 A. 11-11-1996, what we call a stat notice 26 was sent out
19 to the taxpayer regarding the 1993 tax return. 6-15-1998, a
20 notice was sent out to the taxpayer regarding the 1994 return.
21 6-15-1998, a notice was sent out to the taxpayer regarding the
22 1995 return.
23 Q. Okay. Thank you, ma'am.
24 MR. MURPHY: Your Honor, at this time, we
25 request that that document be marked as Exhibit 1.
DIRECT - MARY ANN OSBORNE
271
1 THE COURT: Yes, it will be Exhibit 1 in the
2 case.
3 (Exhibit Number 1 was marked. Description:
4 Notes to Taxpayer - 1996.)
5 Q. Ma'am, I'm going to pass you another document. Can you
6 tell me what that document is?
7 A. This document is certification of lack of record.
8 Q. And is that a document that you prepared?
9 A. Yes, sir, it is.
10 Q. And what does that document indicate?
11 A. This document indicates that there has been no record
12 of any return being filed by the taxpayer for 1996, 1997,
13 1998, 1999, 2000 and 2001.
14 Q. Thank you. So that would be based on your examination
15 of the IRS records, and there was no indication of any type of
16 return was filed?
17 A. No type of return was filed for those years.
18 MR. MURPHY: Your Honor, at this time, we would
19 ask that this record be introduced as Exhibit Number 2 in
20 the case.
21 THE COURT: It will be Exhibit 2 in the case.
22 (Exhibit Number 2 was marked. Description:
23 Cert. of Lack of Record.)
24 Q. Ma'am, are you familiar with some records that are
25 referred to in the IRS as IRP documents?
DIRECT - MARY ANN OSBORNE
272
1 A. Yes, sir.
2 Q. What is an IRP document?
3 A. An IRP document is a document that is sent into the
4 service center. It could be W-2 to '98, to '99. Same type of
5 information is reported to social security. This gives
6 information of income that was received and paid by the
7 taxpayer.
8 Q. Okay. And is this information compiled?
9 A. Yes, it is.
10 Q. And is it formatted in a form that's referred to by the
11 IRS as an IRP?
12 A. Yes, sir.
13 Q. Okay. And would these documents -- these IRP documents
14 have, for example --
15 THE COURT: Would you spell the word IRP?
16 Q. What are the initials?
17 A. The command code that is used to pull this information
18 up is spelled IRPTRO.
19 THE COURT: Thank you.
20 Q. When people shorthand it, they call it an IRP?
21 A. Yes, we call it IRP, I-R-P.
22 Q. Okay. Now, would these IRP documents show mortgage
23 payments that was made?
24 A. Yes, it does.
25 Q. Would it also show wage income?
DIRECT - MARY ANN OSBORNE
273
1 A. Yes, it does.
2 Q. And interest income?
3 A. Yes, it does.
4 Q. Ma'am, I'm going to pass to you a document. Can you
5 tell me what that document is?
6 A. This is an information returns on-line transcript,
7 which is IRPTRO, for the taxpayer Vernice Kuglin, social
8 security number 514-44-1724.
9 Q. And what year is that for?
10 A. This is for the tax year 1996.
11 Q. Okay. And you -- this came from the IRS records?
12 A. Yes, sir, it did.
13 MR. MURPHY: Your Honor, at this time we would
14 ask that this be marked as Exhibit 3 in the case.
15 THE COURT: It Exhibit 3 in the case.
16 (Exhibit Number 3 was marked. Description:
17 1996 IRPTRO.)
18 Q. Ma'am, I'm going to pass another document to you.
19 Excuse me. Can you tell us what that document is?
20 A. This document is also a transcript, information returns
21 on-line transcript, again, IRPTRO, captioned Vernice Kuglin --
22 I'm sorry if I'm pronouncing the name.
23 Q. I think it is Kuglin.
24 A. Kuglin. Social security 514-44-1724 for the tax year
25 1997.
DIRECT - MARY ANN OSBORNE
274
1 Q. And when you use the term tax year, would that be for
2 most individuals the calendar year?
3 A. Yes, sir, it would.
4 Q. Okay. So it would run from January the 1st of '97 to
5 December 31st?
6 A. Yes, sir.
7 MR. MURPHY: Judge, if we could have this
8 marked as the next numbered exhibit.
9 THE COURT: Exhibit 4.
10 (Exhibit Number 4 was marked. Description:
11 1997 IRPTRO.)
12 Q. Ma'am, I'm going to pass to you another document. Can
13 you tell me what that document is?
14 A. This document is also an information returns on-line
15 transcript, again IRPTRO for Vernice Kuglin, social security
16 number 514-44-1724 for the tax year 1998.
17 MR. MURPHY: All right. At this time, we would
18 ask that this be admitted into evidence as the next
19 numbered exhibit.
20 THE COURT: Exhibit 5.
21 (Exhibit Number 5 was marked. Description:
22 1998 IRPTRO.)
23 BY MR. MURPHY:
24 Q. Ma'am, I'm going to pass you another document. Can you
25 tell me what this document is?
DIRECT - MARY ANN OSBORNE
275
1 A. This document is an information returns on-line
2 transcript, again, IRPTRO for Vernice Kuglin, social security
3 number 514-44-1724 for the tax year 1999.
4 MR. MURPHY: Your Honor, we would ask that this
5 be marked as the next numbered exhibit.
6 THE COURT: It is Exhibit 6.
7 (Exhibit Number 6 was marked. Description:
8 Information Returns.)
9 Q. Ma'am, I pass you another document, can you tell me
10 what that document is?
11 A. This is an information returns on-line transcript,
12 again, IRPTRO, for Vernice Kuglin, social security number
13 514-44-1724 for the tax year 2000.
14 Q. Thank you.
15 MR. MURPHY: Your Honor, we would ask that be
16 admitted as the next numbered exhibit.
17 THE COURT: Exhibit 7.
18 (Exhibit Number 7 was marked. Description:
19 2000 IRPTRO.)
20 Q. Ma'am, I've handed to you another document, can you
21 tell me what that document is?
22 A. This is an information returns on-line transcript,
23 again, IRPTRO for Vernice Kuglin, social security number
24 514-44-1724 for the tax year 2001.
25 MR. MURPHY: Your Honor, we would ask this be
DIRECT - MARY ANN OSBORNE
276
1 marked as the next numbered exhibit.
2 THE COURT: Exhibit 8.
3 (Exhibit Number 8 was marked. Description:
4 2001 IRPTRO.)
5 Q. Ma'am, I'm going to hand you another document, can you
6 tell us what that document is?
7 A. This is a certificate of assessments, payments and
8 other specified matters for a Form 1040, U. S. individual
9 income tax return captioned Vernice Kuglin, social security
10 number 514-44-1724 for the tax year 1992.
11 Q. Okay. What does that document indicate?
12 A. This document indicates that a tax return was filed for
13 1992, it shows the adjusted gross income, the taxable income,
14 the document locator number of the tax return filed, the
15 amount of tax that was assessed on this tax return, the
16 withholding credit that was allowed this taxpayer and the
17 refund that was issued to the taxpayer.
18 Q. Okay. What were those -- can you go through those
19 figures for us?
20 A. Yes, I can. I'm showing that the adjusted gross income
21 for 1992 was $112,084. I'm showing of that amount the taxable
22 income was $86,644. The tax on this return was $20,892 with a
23 document locator number of 49221104650003, withholding credit
24 of $22,228 with a refund to the taxpayer of $1,336.
25 Q. Okay. Thank you.
DIRECT - MARY ANN OSBORNE
277
1 MR. MURPHY: Your Honor, we would ask this
2 record be made the next numbered exhibit.
3 THE COURT: Exhibit 9.
4 (Exhibit Number 9 was marked. Description:
5 1992 Certificate.)
6 Q. Ma'am, I'm going to pass to you another document. Can
7 you tell us what that document is?
8 A. This document is a certificate of assessments, payments
9 and other specified matters for Form 1040, U. S. individual
10 income tax return captioned Vernice B. Kuglin, social security
11 number 514-44-1724 for the tax year 1993.
12 Q. Okay. What does that document indicate?
13 A. This document indicates the adjusted gross income, the
14 taxable income, the document locator number for the substitute
15 for return. It also shows that two extensions were filed by
16 this taxpayer.
17 Q. Now, what is an extension?
18 A. An extension is filed on or before April the 15th
19 asking for additional time to file your tax return by the
20 taxpayer.
21 Q. Okay. And does -- does that indicate that there were
22 levies made or assessments made against the withheld
23 taxation -- tax money?
24 A. Yes, sir, it does.
25 Q. Okay. And at the end of the year, what was the balance
DIRECT - MARY ANN OSBORNE
278
1 due and owing in that case?
2 A. There's a balance due showing of zero on this account.
3 Q. And what does that mean?
4 A. It means that all the taxes due on this account had
5 been paid by levy or by withholding and that there is no
6 additional taxes due and no refund due the taxpayer at this
7 time.
8 Q. For that year?
9 A. For that specific year.
10 Q. And does that document also indicate that there was any
11 contact with the taxpayer, any letters or anything like that
12 sent to her, notices?
13 A. Yes, sir. Delinquency notice was sent to the taxpayer
14 on 4-17-1995. Another delinquency notice was sent to the
15 taxpayer on 6-12-95. Another delinquency notice was sent on
16 7-24-1995. Another delinquency notice was sent on 9-4-1995.
17 The statutory notice of balance due was sent to the taxpayer
18 on 9-9-1996, and a statutory notice of intent to levy was sent
19 to the taxpayer on 9-30-1996. There are additional notices of
20 balance due on this account of -- from 1997, '99, 2000, 2001
21 and 2002.
22 Q. Thank you, ma'am.
23 MR. MURPHY: Judge, if we could have this
24 marked as the next numbered exhibit.
25 THE COURT: Exhibit 10.
DIRECT - MARY ANN OSBORNE
279
1 (Exhibit Number 10 was marked. Description:
2 1993 Certificate.)
3 Q. Ma'am, I'm going to pass to you a document. Can you
4 tell me what that document is?
5 A. This document is a certificate of assessment payments
6 and other specified matters for Form 1040 U. S. individual
7 income tax return captioned Vernice Kuglin, social security
8 number 514-44-1724, for the tax year 1994.
9 Q. Okay. Now, does that show that any -- that a
10 substitute return was filed?
11 A. Yes, sir, it does.
12 Q. Again, who makes out the substitute return?
13 A. The Internal Revenue Service prepares the substitute
14 for return.
15 Q. And that 1994 tax year, had there been taxes withheld
16 from Ms. Kuglin's pay?
17 A. Yes, there was.
18 Q. In what amount?
19 A. Withholding credit of $22,218.
20 Q. Okay. Now, were assessments or levies made for that
21 tax year?
22 A. Assessments were made for the tax year of -- well,
23 let's see, you have an estimated tax penalty for $395, you
24 have a filing penalty for $2,534. You have tax assessed of
25 $32,353. You have interest assessed for $3,348.97. You have
DIRECT - MARY ANN OSBORNE
280
1 a fee, our collection cost of $16.
2 Q. Okay. Does that document indicate any notices were
3 sent to the defendant regarding her tax situation?
4 A. Yes, sir, there was. There was a statutory notice of
5 balance due sent out on 11-24-1997, statutory notice with
6 intent to levy was sent out on 12-15-1997. There was another
7 statutory notice of balance due sent out on 4-6-1998.
8 Q. Okay. And there's a balance due and owing on that
9 account?
10 A. Yes, sir, there is, there is a balance due of
11 $16,428.97.
12 Q. Thank you, ma'am.
13 MR. MURPHY: Your Honor, we would move this
14 document into evidence as the next numbered exhibit.
15 THE COURT: Exhibit 11.
16 (Exhibit Number 11 was marked. Description:
17 1994 Certificate.)
18 Q. Ma'am, I'm going to show you one final document. Can
19 you take a look at that and tell us what it is?
20 A. This is a certificate for assessment payments and other
21 specified matters for Form 1040 U. S. individual tax return
22 captioned Vernice Kuglin, social security number 514-44-1724,
23 for the tax year 1995.
24 Q. Now, does it show any -- does it show a tax return was
25 filed for '95?
DIRECT - MARY ANN OSBORNE
281
1 A. A substitute for return was filed for 1995.
2 Q. Okay. And does it show any withholding?
3 A. Yes, sir, it shows withholding of $24,311.
4 Q. Okay. And what taxes were paid with that sort of
5 thing?
6 A. No taxes were paid other than the withholding on the
7 account. There's estimated tax penalty assessed of 970.
8 Excuse me, $970.
9 Q. Okay.
10 A. There's a late filing penalty for $5,118. The tax
11 assessment on the account was $44,783, and interest is
12 assessed of $3,925.59.
13 Q. Okay. Does that document indicate that any notices
14 were sent out to Ms. Kuglin?
15 A. Yes, sir, there was. In 11-24-97, a statutory notice
16 of balance due was sent to the taxpayer. 12-15 of 1997, a
17 statutory notice of intent to levy was sent to the taxpayer.
18 Again, on 3-9-98, an additional notice of intent to levy was
19 sent to the taxpayer.
20 Q. Any other notices?
21 A. No, sir.
22 Q. And what is the balance due on that account?
23 A. The balance on this account is $30,485.59.
24 Q. Thank you, ma'am.
25 MR. MURPHY: Judge, if we could have this
DIRECT - MARY ANN OSBORNE
282
1 marked as the next numbered exhibit.
2 THE COURT: Exhibit 12.
3 (Exhibit Number 12 was marked. Description:
4 1995 Certificate.)
5 Q. Ma'am, for people -- if you can answer this, for people
6 living in Tennessee, where do they send their tax returns
7 into?
8 A. Memphis.
9 Q. Okay. Is there an IRS Service Center here?
10 A. Yes, sir, there is a service center here in Memphis.
11 MR. MURPHY: One second, Your Honor.
12 Judge, we don't have any further questions for
13 Ms. Osborne.
14 THE COURT: Cross examination?
15 MR. BECRAFT: Could I ask the court something
16 about morning break?
17 THE COURT: It will be fairly soon.
18 CROSS EXAMINATION
19 BY MR. BECRAFT:
20 Q. Good morning, Ms. Osborne.
21 A. Good morning.
22 Q. How long have you worked for the Internal Revenue
23 Service?
24 A. I have worked for the Internal Revenue Service for
25 approximately 28 years.
CROSS - MARY ANN OSBORNE
283
1 Q. Did you start out in the position that you're in now?
2 A. No, sir, I did not.
3 Q. What was your first job?
4 A. I was a data transcriber.
5 Q. And data transcriber, correct me if I'm wrong, if we
6 were sitting down at the IRS office in the spring of every
7 year, you have all of this information that is flowing in and
8 people that are data transcribers are taking information,
9 typing it in, loading it into the computer, is that correct?
10 A. That's correct.
11 Q. How long were you a data transcriber?
12 A. I was a data transcriber for approximately four months.
13 Q. And what did you do after that?
14 A. I went to an area called photocopy.
15 Q. And -- just kind of give us an idea of what you have
16 done at the IRS since you started to work for them.
17 A. I started as a data transcriber. From there, I went to
18 photocopy unit where requests are sent into the IRS for
19 photocopies of your tax returns. We photocopy this
20 information and send it to you for your records. From there,
21 I went to a typing unit where I transcribed letters that will
22 be sent out to the taxpayers. From there, I have worked many
23 places. I have worked -- majority of my time was spent in
24 collections where I worked with tax delinquent accounts and
25 where I set up installment agreements for taxpayers, written
CROSS - MARY ANN OSBORNE
284
1 letters, answered questions concerning these accounts, tried
2 to explain a little bit about the accounts. I have also
3 worked in what we call notice review where after the tax
4 return has been prepared, that's for the balances, whether
5 you're going to get a refund or whether you're going to get a
6 balance due notice is sent to this area, and we check it to
7 make sure it is correct. We go back and check the return to
8 see if any payments or anything else was left off of the
9 account. I was in criminal investigation, worked for the
10 questionable refund unit where we questioned refunds on tax
11 accounts. We verified to see if these refunds were valid
12 refunds.
13 Q. You mentioned criminal investigation, is that the
14 function that you're in now?
15 A. Yes, sir.
16 Q. All right.
17 A. That's a part of the function I'm in now.
18 Q. So you have been working criminal investigation for how
19 long?
20 A. I have been in criminal investigation for nine years.
21 Q. Nine years. And that requires you to do things like --
22 you said, I believe, on direct that you're a court witness.
23 A. Yes, I am.
24 Q. That means coming to court and testifying in cases like
25 this?
CROSS - MARY ANN OSBORNE
285
1 A. Court witness coordinator is my current job title. I
2 do research accounts. I request the information for these
3 accounts and prepare these accounts for court for the special
4 agents.
5 Q. Now, can I describe for you -- you know, you have
6 offered into -- through your testimony Exhibit Number 1. Can
7 I ask you some questions about that, about how it's created?
8 A. Yes, sir.
9 Q. Okay. That's the IMF complete?
10 A. Yes, sir.
11 Q. Let me ask you these questions, see if I got the
12 picture right. A whole bunch of information flows into
13 service centers, you got tax returns, you got all sorts of
14 documents?
15 A. Yes, sir.
16 Q. And they flow in and the data transcribers sit down and
17 take the information off of it, right?
18 A. Yes, sir.
19 Q. And that information gets inserted into the IRS
20 computers, right?
21 A. Yes, sir.
22 Q. And so these -- these inputs of information are made at
23 a certain time, correct?
24 A. They are made all during the year.
25 Q. All right. And the approximate time in which the data
CROSS - MARY ANN OSBORNE
286
1 is input is something that you can ultimately see when you get
2 a computer printout known as an IMF, right?
3 A. Yes, sir.
4 Q. For something like a tax return that flows into the
5 service center, is it not true that one of the first things
6 that gets done or at some stage of this process, you mentioned
7 during your direct testimony this thing known as a document
8 locator number?
9 A. Yes, sir.
10 Q. It gets stuck on a return, right?
11 A. Every document that comes into the service center has
12 to have a document locator number because that is what we use
13 to track and try to find this document.
14 Q. All right. And that information, you know, let's say a
15 1040 -- you mentioned I think you were reading off on the '92
16 return a document locator number for Ms. Kuglin's return?
17 A. Yes, sir.
18 Q. All right. And that gets inserted about the time that
19 the return gets filed, right?
20 A. Yes, sir.
21 Q. And that information gets logged into the computer,
22 right?
23 A. Right.
24 Q. And so that if someone like you wants to find
25 something, all you have to do is pull up the electronic file
CROSS - MARY ANN OSBORNE
287
1 on every one, right?
2 A. Clarify by what you mean by electronic file.
3 Q. Okay. The individual master file.
4 A. Yes, sir.
5 Q. For the benefit of the jury, an individual master file
6 is kind of a --
7 MR. MURPHY: Judge, I'm going to object to
8 counsel testifying. He can ask the witness a question.
9 MR. BECRAFT: I will frame it in a question.
10 THE COURT: All right.
11 Q. Is it not true that an individual master file is
12 basically the computer record regarding the various documents
13 that are filed regarding a particular individual?
14 A. Yes, sir.
15 Q. All right. So you can print it out and it will say
16 year?
17 A. I can call up specific years.
18 Q. Okay. And -- but then, you know, to take a look --
19 well, let me ask you this: May I approach the witness, Your
20 Honor?
21 THE COURT: You may.
22 Q. Now, I don't have Government Exhibit Number 1, but I
23 have tendered to you a copy of Defense Exhibit Number 52, and
24 I would like to ask if you could identify that for me, please.
25 A. Yes, sir, this is a IMF, individual master file for a
CROSS - MARY ANN OSBORNE
288
1 specific tax year, for the tax year 1996. You also have 1997
2 in here, 1998, 1999 and 2000.
3 MR. BECRAFT: Your Honor, can I approach again?
4 THE COURT: You may.
5 Q. I've just stuck back on -- in front of you there
6 Government's Exhibit Number 1, and can you kind of compare
7 them? I'm just asking for the -- Government's Exhibit Number
8 1, I don't know the date on it, but --
9 A. Number 1 is a complete, which is every year, your
10 entity information, the tax returns that have been filed by
11 this taxpayer. The exhibit you gave me, this one is for a
12 specific year. They are one and the same, but the specific is
13 broken down per each tax year where the complete is all of the
14 tax years together.
15 Q. You don't deny -- listen to my question, on Government
16 Exhibit Number 1, I don't know the date, but off the top of my
17 head, I think it is November of 2002, is that about right?
18 A. Right.
19 Q. Okay. And Defendant's Exhibit Number 52 bears a date,
20 correct me if I'm wrong, it says 10-9-of 2001?
21 A. Right.
22 Q. Now, do you deny that this is an authentic print that
23 comes from the IRS's computer regarding Vernie Kuglin?
24 A. What do you mean do I deny?
25 Q. Well, do you accept that this is a specific --
CROSS - MARY ANN OSBORNE
289
1 A. Yes, sir.
2 MR. BECRAFT: Your Honor, may I move for the
3 admission of Defense Exhibit 52.
4 THE COURT: Exhibit 13.
5 (Exhibit Number 13 was marked. Description:
6 IMF Transcript.)
7 Q. Can I ask you some questions about this and since I
8 have a copy of this one and not the government's, can we refer
9 to Exhibit Number 13?
10 A. Yes, sir, I have turned to the same page.
11 Q. Let's show the jury what this looks like.
12 MR. BECRAFT: If it please the court, I have
13 got copies.
14 THE COURT: Have you got your microphone on?
15 We will take a break and let y'all work out the
16 technology.
17 MR. BECRAFT: Thank you, Your Honor.
18 THE COURT: Back in ten minutes.
19 (Recess taken at 10:35 until 10:55 a.m.)
20 THE COURT: Yes, sir, Mr. Murphy.
21 MR. MURPHY: We have got one matter to take up
22 at side bar.
23 THE COURT: Okay. Sure, come on up. I mean
24 there's nobody in here.
25 MR. MURPHY: The only thing is if we're on --
CROSS - MARY ANN OSBORNE
290
1 that's fine, as long as we're not on the microphones.
2 THE COURT: All I have to do is hit that button
3 and they can't hear you.
4 MR. MURPHY: Okay. Good.
5 THE COURT: Now, you're at side bar.
6 MR. MURPHY: Close enough. Judge, the defense
7 is going to offer a copy of this IMF transcript, and on
8 it, it has got -- for several of these years, and it
9 indicates a modified balance, accrued interest and penalty
10 of zero, zero, zero for some of the years covered in the
11 indictment. And this witness -- this particular witness
12 didn't testify that there was any tax due and owing or
13 that the IRS was carrying a balance on the account for the
14 years in question. So I would submit that it goes outside
15 of the scope of the direct, and it also may be confusing
16 because I believe what the IRS procedure is if they don't
17 have enough information or if there's not withholding,
18 they typically don't figure people's taxes as opposed to a
19 case where they have withholding and they do have
20 information.
21 MR. BECRAFT: If I may, Your Honor, that's not
22 where I'm headed. The government doesn't doubt that that
23 comes -- that's a document that comes straight out of
24 discovery. For all of my exhibits, I unfortunately
25 premarked all of my exhibits and put defense stickers on
CROSS - MARY ANN OSBORNE
291
1 them, but I'm using that particular exhibit because it's
2 handy, it's similar to Government Exhibit Number 1. The
3 witness has authenticated it, and what Mr. Murphy fears is
4 the use to which I will be putting the document is simply
5 not the case. I'm not going to talk about -- you know, we
6 got -- what Mr. Murphy gave to me in discovery bears a
7 date in November of 2001 -- or October of 2001, and the
8 one that the government has used, which is a similar kind
9 of computer record printed out is about a year later, but,
10 you know, I'm not making any bones of contention about the
11 difference in the transactions between the two documents.
12 MR. MURPHY: Judge, and my understanding is
13 there isn't any difference. We just -- in order for her
14 to certify a copy of it, she had to print a new one.
15 MR. BECRAFT: Okay.
16 THE COURT: What do you want to do with Exhibit
17 13?
18 MR. BECRAFT: I wanted to use it primarily
19 because I don't have a copy of Government 1, which I would
20 like to --
21 THE COURT: All you have to do is put it on the
22 screen.
23 MR. BECRAFT: Sure.
24 THE COURT: 13 is just duplicate.
25 MR. MURPHY: That's fine.
CROSS - MARY ANN OSBORNE
292
1 MR. BECRAFT: There's two different types of
2 transcripts, Your Honor. One is a complete and one is a
3 specific.
4 THE COURT: Let me see 1. You want Exhibit 13
5 stricken or what do you want?
6 MR. BECRAFT: No, I offered it, Your Honor.
7 THE COURT: Mr. Murphy wants me to do something
8 to 13.
9 MR. MURPHY: Well, Judge, I don't think
10 that's -- I don't think you can use another document to
11 cross-examine the witness -- you know, the witness about
12 of a business record like this. Or if I had some idea
13 about what he was trying to do, it may be something that I
14 would just say, yeah, he gets to do it, Judge.
15 MR. BECRAFT: I mean I can limit it to -- my
16 only -- the reason -- Your Honor, I would like to have a
17 copy of Government Exhibit 1, I don't have one, so I'm
18 forced to kind of operate off of my discovery copy, which
19 is what I was doing.
20 THE COURT: Okay. Then I'm not clear what is
21 being said, but it sounds like Exhibit 13 is withdrawn,
22 and you just want us to make a copy of Exhibit 1. Let's
23 make a copy of Exhibit 1 and give it to him. Is that all
24 we need to do?
25 MR. BECRAFT: Yes, Your Honor.
CROSS - MARY ANN OSBORNE
293
1 THE COURT: All right. Without objection,
2 Exhibit 13 is withdrawn.
3 MR. MURPHY: Judge, we're going to see if we
4 have got a copy of what -- of what this witness --
5 THE COURT: They're making a copy right now.
6 It doesn't make any difference.
7 All right. I show it as withdrawn. Anything
8 else?
9 MR. MURPHY: No, sir, Your Honor.
10 MR. BECRAFT: That's it, Your Honor.
11 THE COURT: You can bring the jury in.
12 (Jury in at 11:00 a.m.)
13 THE COURT: If you're keeping track of the
14 numbers of exhibits, Exhibit 13 was simply withdrawn by
15 agreement. Exhibit 1 apparently has the same data on it,
16 and we didn't need another document, so we now have 12
17 exhibits, and 13 is withdrawn.
18 Yes, sir, you may proceed.
19 MR. BECRAFT: Thank you, Your Honor.
20 Q. Ms. Osborne, we were, before the break, talking about
21 how Government Exhibit Number 1, a computer printout named
22 individual master file was created. And, in essence, over a
23 period of time, various transactions are made or insertions
24 into the computer are kind of stored so that the IRS can print
25 out a document which contains all -- basically all the entries
CROSS - MARY ANN OSBORNE
294
1 that relate to a particular party, right?
2 A. Correct.
3 Q. So maybe in a few moments we'll will have Government
4 Exhibit Number 1 back, but generally what you do -- you know,
5 in order for you to make a determination about filing or
6 nonfiling in this case, you had to go to the computer, pull up
7 Vernie Kuglin's individual master file, correct?
8 A. Would you repeat your question, please?
9 Q. Government Exhibit Number 13, you probably have printed
10 out the same thing several times before, at least, right?
11 A. Yeah.
12 Q. Every time you print it out, it is just basically the
13 same thing except if you got a later transaction, the later
14 transaction will show up on a later print, is that about
15 right?
16 A. Correct.
17 MR. BECRAFT: May I approach, Your Honor?
18 THE COURT: You may. You can just put it on
19 the screen.
20 MR. BECRAFT: I will do that, Your Honor.
21 Q. Okay. Ms. Osborne, you can probably refer to the
22 original of Government Exhibit 1 and I will use a copy and I
23 will stick it up on the Elmo, and let's -- okay. This is what
24 Government Exhibit 1 looks like, correct?
25 THE COURT: Let's just put Exhibit 1 on the
CROSS - MARY ANN OSBORNE
295
1 screen, that's what we will do. Is that 1?
2 MR. BECRAFT: Yes, Your Honor, it is. It's a
3 copy. This is a copy.
4 THE COURT: Let's use the original.
5 MR. BECRAFT: All right.
6 THE COURT: The reason we do that, ladies and
7 gentlemen, is you should be able to look at the original
8 or whatever is going to be shown to you in the jury room,
9 there is no reason for you to later wonder.
10 MR. BECRAFT: Thank you, Your Honor.
11 Q. You were talking -- or when you testified on direct
12 about the returns that had been filed, you -- in essence, you
13 were doing -- you were looking at this document, and based
14 upon your knowledge of how things get printed out, kind of
15 interpreting it, is that correct?
16 A. That's correct.
17 Q. All right. So looking at page one of Government
18 Exhibit Number 1, you know, you got these transactions -- you
19 see where my finger is pointed over here on the left side of
20 the page?
21 A. Yes, sir.
22 Q. These are years down here in the middle so, that, you
23 know, very first year is 1966?
24 A. Actually, that's a cycle.
25 Q. Okay, cycle. Would that relate to the year 1966?
CROSS - MARY ANN OSBORNE
296
1 A. The cycle was 1966, cycle 20.
2 Q. Okay. So you can take a look at this type of
3 information and get a real good idea as to what happened?
4 A. Yes, sir.
5 Q. All right. So you're interpreting it, correct?
6 A. Yes, sir.
7 Q. Now, flip over to the second page, page number two of
8 this. Okay, now --
9 THE COURT: It should be on your screen right
10 in front of you.
11 THE WITNESS: Yes.
12 MR. BECRAFT: Let me move it out a little.
13 THE COURT: Sure.
14 Q. It looks like I have got everything on page two up on
15 the screen, is that right?
16 A. Fairly close, yes, sir.
17 Q. And right down here where my finger is pointed, there's
18 the words tax period 30, 1993, 12.
19 A. Yes, sir.
20 Q. And that's kind of interpreted, that's the -- the 12 is
21 the end of the year?
22 A. Right.
23 Q. Of 1993?
24 A. Right.
25 Q. Right? And so what the IRS does is that for everything
CROSS - MARY ANN OSBORNE
297
1 that related to year 1993, people log this stuff into the
2 computer, and so you're able to print out and show what
3 happened at a particular time, right?
4 A. Yes, sir.
5 Q. Now, for -- I flipped over to page three of Government
6 Exhibit Number 1, and I think that you said that for 1993,
7 this is a printout of everything that relates to Ms. Kuglin
8 for the year 1993, is that correct?
9 A. Everything that came through the service center, yes,
10 sir.
11 Q. At least up to the date of 11-7 of 2002, right?
12 A. Yes, sir.
13 Q. Okay. And so you reached the conclusion that for 1993,
14 there was a substitute for return filed in November of '95,
15 right?
16 A. Yes, sir.
17 Q. Okay. Where my fingers are pointed?
18 A. Yes, sir.
19 Q. And so to -- you see this number 150 out to the side?
20 A. Yes, sir.
21 Q. Is that what is known as a transaction code?
22 A. That is a transaction code.
23 Q. All right. Now, let me flip over to '94, let's see,
24 page four has more information about '93, right?
25 A. Right.
CROSS - MARY ANN OSBORNE
298
1 Q. Okay. And then it isn't until you get down to page
2 five that we get into '94 information, right?
3 A. That's correct.
4 Q. Okay. Where the jury is looking at my finger?
5 A. Uh-huh.
6 Q. You can see tax period, 30, and that relates to '94?
7 A. Yes, sir.
8 Q. And '94 has got -- I'm flipping to subsequent pages,
9 and all of this is in computer lingo, so to speak, right?
10 A. Well, yes, sir, in a way.
11 Q. The people inside the IRS know what these various
12 transactions mean, right?
13 A. Most of them do, yes, sir.
14 Q. But in order to understand what they really mean, is
15 there some kind of a manual that tells you what certain things
16 mean like this transaction code 140 that my finger was on just
17 a second ago?
18 A. Yes, sir.
19 Q. Is that a document 6209?
20 A. Yes, sir, it is.
21 Q. Is document 6209 something you're familiar with?
22 A. Yes, sir, it is.
23 Q. Okay. You have to be very familiar, somebody in your
24 job that has worked in the position that you have worked for
25 nine years, you pull up these computer printouts regarding a
CROSS - MARY ANN OSBORNE
299
1 whole bunch of people all the time, right?
2 A. Yes, sir, I do.
3 Q. And then you have to kind of look at them and, you
4 know -- this is plainly not English, it's transactions that
5 are kind of coded in a certain way, but you know what their
6 meaning is, is that correct?
7 A. Yes, sir, I do.
8 Q. Now, I think on your direct testimony, you mentioned
9 for '94, there was a substitute for return?
10 A. Yes, sir.
11 Q. Okay. I'm on page five, what I'm showing on the Elmo
12 here, you see where my finger is, tax period 30?
13 A. Yes, sir.
14 Q. So if the jury is looking at this document, going back
15 to page five and six, all the way up to some spot, about
16 halfway down the page of page seven, that's the information
17 that relates to '94?
18 A. Yes, sir, it is.
19 Q. And you reached the conclusion about substitute for
20 return -- you see where my finger is on page five?
21 A. Yes, sir.
22 Q. Substitute for return that would relate for year '94 is
23 indicated where my finger is placed, SFR 150?
24 A. Yes, sir.
25 Q. Now, in order for you to conclude that someone has not
CROSS - MARY ANN OSBORNE
300
1 filed an income tax return, what you do for like the later
2 years, what you did is you're looking for a transaction code
3 or the absence of a transaction code, is that correct?
4 A. That's correct.
5 Q. And the absence of a transaction code -- let me back
6 up. A minute ago, I mentioned something and you did too,
7 mentioned something about a document locator number?
8 A. Yes, sir.
9 Q. And if I could direct us -- I happen to be on page five
10 which relates to the year 1994, and you see this on the far
11 left-hand side where my finger is SFR, transaction code 150,
12 right?
13 A. Uh-huh.
14 Q. And then this is date of the year?
15 A. The date that it was processed.
16 Q. And that would be -- let's see, that's -- what is that
17 date, that's 1997?
18 A. 04-21-1997.
19 Q. And then out here to the side, you see where my finger
20 goes, that's a 14 digit number?
21 A. Yes, that's document locator number.
22 Q. If you wanted to find something, if you're looking for
23 a particular return or maybe some other type of document, this
24 computer printout, you know, will have that document locator
25 number over there, and with that document locator number, you
CROSS - MARY ANN OSBORNE
301
1 can find any document that has been filed by the IRS, right?
2 A. I can request that document, yes, sir.
3 Q. They're not necessarily stored around here, but you
4 would know where a particular document is stored and contact
5 that party and say, hey, give me the document that has this
6 document locator number on it, right?
7 A. Yes, I have to submit my request to a person and they
8 pull the document.
9 Q. Okay. Now, but as -- all of this stuff has no real
10 significance to anybody except people in the IRS that can
11 understand what the transaction codes mean, what the document
12 locator numbers mean, it simply is not in plain English, is
13 that correct?
14 A. That's correct.
15 Q. And -- but there is a manual that kind of tells us what
16 certain things mean, is that correct?
17 A. Yes, sir.
18 Q. And how long have you studied or been using or been
19 familiar with this document 6209?
20 A. For about 25 years.
21 Q. Okay.
22 MR. MURPHY: Judge, could we approach?
23 THE COURT: You may.
24 (The following proceedings had at side-bar
25 bench.)
CROSS - MARY ANN OSBORNE
302
1 THE COURT: Put one side on this side and one
2 side on this side. Come over here, Mr. Murphy, that way
3 you're talking between her.
4 MR. MURPHY: Judge, we're going to object to
5 asking questions about the code book. You know, the
6 relevance of it.
7 THE COURT: It sounds like it would be
8 irrelevant.
9 MR. BECRAFT: Well, Your Honor, the --
10 THE COURT: Turn your mic off.
11 MR. BECRAFT: I think I got it off, Judge.
12 Your Honor, this is -- I don't want to belabor the point,
13 that's not my purpose.
14 THE COURT: Okay. If you agree with the
15 government, move on.
16 MR. BECRAFT: The government offered Exhibit
17 Number 1, and there is certain information on there that
18 this witness is going to testify that she is familiar with
19 the very manual I have got. True, the manual is not in
20 evidence, but the manual is what I use in order to
21 interpret the very document that the government has
22 offered into evidence.
23 THE COURT: It doesn't have anything to do with
24 her good faith belief.
25 MR. BECRAFT: There's a transaction code on the
CROSS - MARY ANN OSBORNE
303
1 government's document that I would like to have the
2 witness explain, that's where I'm headed. One transaction
3 code or one computer entry.
4 THE COURT: Does it have anything to do with an
5 issue that is going to be decided by the court?
6 MR. BECRAFT: I think it does.
7 THE COURT: What issue is it?
8 MR. BECRAFT: I will go ahead and tell the
9 court. Can I run back here and get something?
10 THE COURT: Sure.
11 MR. BECRAFT: This will be my offer of proof if
12 the --
13 THE COURT: Sure.
14 MR. BECRAFT: Your Honor, I have got it over
15 here. This is the manual. Mr. Bernhoft got it, I have
16 got my own manual. This is Mr. Bernhoft's copy of the
17 manual.
18 THE COURT: Does she say that she got the
19 manual, reviewed the manual?
20 MR. BECRAFT: They use the manual all the time.
21 THE COURT: Did the defendant say that she got
22 the manual and used the manual?
23 MR. BECRAFT: No, Your Honor.
24 THE COURT: All right. Then let me understand
25 how it has got anything to do with anything.
CROSS - MARY ANN OSBORNE
304
1 MR. BECRAFT: Your Honor, this is what I would
2 like to point out for the benefit of the jury, in
3 reference to the interpretation of Government's Exhibit
4 Number 1 --
5 THE COURT: What is the thing we're
6 interpreting?
7 MR. BECRAFT: And according -- where I'm
8 headed --
9 THE COURT: I'm looking on my screen. What are
10 we looking for?
11 MR. BECRAFT: This is -- I had it premarked as
12 53, but the manual, there's a certain transaction on the
13 Government Exhibit Number 1, it's called a mail filing
14 requirement, it is present on that document, it is mail
15 filing requirement 01, and I think it is beneficial for
16 the jury to have the witness say there is a code on
17 Government Exhibit Number 1 that ultimately construed,
18 according to the manual, says return not required to be
19 mailed to file. That's the point I'm trying to make with
20 this examination.
21 MR. MURPHY: Well, Judge, here is the thing.
22 This came up when we were getting ready for it, what that
23 has to do with is the -- you know, they mail returns out
24 to everybody.
25 THE COURT: Right.
CROSS - MARY ANN OSBORNE
305
1 MR. MURPHY: That has to do with the mailing of
2 returns. But I mean I think what she is going to say is
3 that that is a misinterpretation, that the return doesn't
4 have to be filed.
5 THE COURT: The main thing is for me to
6 understand is where do you say that -- the IRS has some
7 document, something that she relied on, she can tell us
8 about it, but this doesn't sound like this is what it is.
9 It sounds like this is an internal --
10 MR. BECRAFT: I have been down this road a
11 number of times, Your Honor. This is an official document
12 of the government. 6209 interprets all that computer
13 stuff.
14 THE COURT: Sure.
15 MR. BECRAFT: There is a code on Government
16 Exhibit Number 1, and as I lead through, Your Honor I can
17 show the court, if the court wants me to run over there
18 and get it off the Elmo, I will show you where it is.
19 THE COURT: Sure, that's fine.
20 MR. BECRAFT: That symbol, page number one, MFR
21 01, it's called mail filing requirement of the manual, and
22 these are the transactions for mail filing requirement.
23 THE COURT: Uh-huh.
24 MR. BECRAFT: And that symbol right there
25 construed, according to the manual, it says -- and I think
CROSS - MARY ANN OSBORNE
306
1 this is -- this goes to the impeachment of -- well,
2 construction of the document.
3 MR. MURPHY: Well, but, Judge, unless the
4 defendant relied on it, it's not relevant. And this
5 witness didn't offer an opinion that this defendant had to
6 file a tax return.
7 THE COURT: I mean we have got -- let's see
8 what the codes are on here. It has got a bunch of codes
9 on here. I mean unless she had something that she relied
10 on, it wouldn't matter what is in an internal document --
11 this is an internal document?
12 MR. BECRAFT: Yes, Your Honor.
13 THE COURT: It is a computer printout. It's
14 their road map.
15 MR. BECRAFT: Right.
16 THE COURT: Well, I mean if she had gotten the
17 notice that said 01, not required to file a return, then
18 that's one thing, but that's not -- this isn't it, this is
19 just part of the certificate of official record, and it
20 then has a series of codes on it, a lot of other
21 information. I think Mr. Murphy is right, I don't see how
22 it's going to go anywhere, that is lead to anything that
23 is relevant to any issue in this case to ask this witness
24 about this code. Mr. Murphy, why -- what harm does it do?
25 MR. MURPHY: Well, Judge, I think it creates
CROSS - MARY ANN OSBORNE
307
1 confusion, and the gist of his defense is, I relied, you
2 know, I -- if it's a good faith defense, there is nothing
3 that shows that she relied upon this. And I think it is
4 going to confuse everything.
5 THE COURT: I think it is conceded that she
6 didn't have this document, that's what I understood to be
7 said.
8 MR. BECRAFT: Yes.
9 THE COURT: And that she didn't utilize this
10 document in making -- in forming her beliefs, and,
11 therefore, it really is not probative on the issue before
12 the jury.
13 MR. BECRAFT: Okay, Your Honor.
14 THE COURT: So I'm going to sustain Mr.
15 Murphy's objection.
16 MR. BECRAFT: Your Honor, can I also offer,
17 being mindful that I have stuck exhibit stickers on this,
18 can I move this labeled Defendant's Exhibit 53, which
19 is -- put it in the ID category?
20 THE COURT: I mean this hasn't been presented
21 through anybody I could receive it through anyway, could
22 I?
23 MR. BECRAFT: No, this is my offer of proof,
24 where I was ultimately headed. This is a document that
25 construes --
CROSS - MARY ANN OSBORNE
308
1 THE COURT: Where is this from?
2 MR. BECRAFT: That's from their manual. My
3 offer of proof would be that I would get her to
4 authenticate the manual, authenticate that this is a page
5 from that manual, page 8-77.
6 THE COURT: Okay.
7 MR. BECRAFT: You know, this is just an exhibit
8 that I would tender in support of this line of questioning
9 elicited from this witness.
10 THE COURT: That's no problem. If you want to
11 make it A or Exhibit A in the case.
12 MR. BECRAFT: Okay.
13 THE COURT: This is not an exhibit received, it
14 is just marked for identification.
15 MR. BECRAFT: Yes, Your Honor.
16 THE COURT: This is marked as Exhibit A for
17 identification.
18 MR. BECRAFT: Thank you, Judge.
19 (Exhibit Number A was marked. Description:
20 Document 6209.)
21 (The following proceedings were had in open
22 court.)
23 Q. Now, Ms. Osborne, I'm going to -- do you have the copy
24 in front of you?
25 A. Yes, sir.
CROSS - MARY ANN OSBORNE
309
1 Q. I'm going to -- you made some statements about -- page
2 number four relates to the year 1993, is that correct? Let me
3 show you -- can you see page number four up there on the
4 screen?
5 A. Yes, sir.
6 Q. I'm going to look toward the bottom of page number
7 four, do you see that on the screen?
8 A. Yes, sir.
9 Q. You see these things, MF stat notices?
10 A. Yes, sir.
11 Q. That's what you call them, right?
12 A. Yes, sir.
13 Q. Now, you said during the course of your direct
14 testimony that for '93 and '94 and maybe '95, you correct me
15 if I'm wrong, that there were taxes withheld for Ms. Kuglin?
16 A. Yes, sir.
17 Q. And that at some stage there was an SFR or substitute
18 for return that the IRS prepared for Ms. Kuglin, correct?
19 A. Correct.
20 Q. And ultimately there was a conclusion made by the IRS
21 that additional monies were due and owing, right?
22 A. Yes, sir.
23 Q. And, in essence, the government then levied upon the
24 money that was withheld from her paycheck for '93, '94, '95,
25 is that correct?
CROSS - MARY ANN OSBORNE
310
1 A. I have no idea about that.
2 Q. Okay. Are you familiar with the process that, you
3 know, in a situation like this, that the government has to
4 send out what is known as a ticket to tax court, a 90-day
5 letter?
6 A. Yes, sir, I'm familiar with a 90-day letter.
7 Q. Does have it a certain particular transaction code?
8 A. The TC 300 usually has a 90-day letter that is a
9 associated with it.
10 Q. Okay. Do you see anything that in reference to the
11 year 1993 -- and I'm looking at page three and moving over to
12 page four, those transaction codes, is there anything there
13 that would indicate to you that this procedure of sending out
14 a notice of deficiency was a procedure that was done?
15 A. The 90-day letter?
16 Q. Yeah.
17 A. I couldn't tell on this specific tax period.
18 Q. Well, isn't it customary or routine, at least, if the
19 government sent out a 90-day letter to someone to say that you
20 owed additional taxes, that type of transaction would show up
21 on this document, Government Exhibit 1?
22 A. I couldn't say.
23 Q. Okay. Well, do you see -- flipping over to '94, and
24 I'm on page five, and I'm going to flip over to page six,
25 where my fingers are, I'm going down the left side of the
CROSS - MARY ANN OSBORNE
311
1 page, those are transaction codes, right?
2 A. Yes, sir.
3 Q. Now, do you see anything there that would indicate that
4 a 90-day letter had been sent to Ms. Kuglin?
5 A. Not on this specific document.
6 Q. Okay. How about -- let me flip over to my next -- I
7 moved over to page seven, is there anything on there that
8 would tell you that a 90-day letter had been sent to Ms.
9 Kuglin?
10 A. Under the stat notices, no, sir.
11 Q. All right. Do you have any -- other than you reading
12 from this document, you can't tell us whether or not the
13 IRS -- you know, you said during your direct testimony, you
14 know, a notice was sent on such and such a date. Your
15 testimony in that respect arises just from you doing something
16 like looking at this government exhibit, and, for example, on
17 page number ten, looking at the stat notices down there at the
18 bottom of the page, right?
19 A. Yes, sir.
20 Q. And that's the way you reach certain conclusions?
21 A. Most cases.
22 Q. And just because something appears there, you say,
23 well, I guess a notice was sent?
24 A. Notices have specific numbers, and those specific
25 numbers will indicate which notice or what type of notice is
CROSS - MARY ANN OSBORNE
312
1 sent to the taxpayer.
2 Q. You don't know whether a document -- other than seeing
3 an entry that is recorded here, you have no personal knowledge
4 that actual notices were actually sent to Ms. Kuglin, is that
5 correct?
6 A. No, sir, I don't know.
7 Q. And you have no actual knowledge that even 90-day
8 letters were sent to Ms. Kuglin at least for '93, '94, '95?
9 A. Other than the fact that I know what is supposed to go
10 out when a transaction code 300 is assessed, no, sir, I do
11 not.
12 MR. BECRAFT: Nothing further, Your Honor.
13 THE COURT: Redirect?
14 MR. MURPHY: If I could see some exhibits, Your
15 Honor.
16 REDIRECT EXAMINATION
17 BY MR. MURPHY:
18 Q. Ms. Osborne, I'm going to pass to you what has been
19 marked as Exhibit 9 in this case, and would you take a look at
20 that?
21 A. Yes, sir.
22 Q. Okay. What is Exhibit 9?
23 A. This is the certificate of assessments, payments and
24 other specified matters for the year 1992.
25 Q. Does that contain some of the information that's in
REDIRECT - MARY ANN OSBORNE
313
1 Exhibit 1 without computer codes?
2 A. No, sir, it does not, '92 was not included on this.
3 Q. Okay. I'm sorry. I'm sorry. Let me ask this: I've
4 gone back too far. I'm showing you what has been marked
5 Exhibit 10. Now, what is that?
6 A. This is a certificate of assessments, payments and
7 other specified matters for the Form 1040 for 1993.
8 Q. Okay. Let's put it up on the screen. Now, does this
9 contain some of the information that's -- that's in Exhibit 1?
10 A. Yes, sir, it does.
11 Q. Okay. And is this that information without the codes?
12 A. Yes, sir, it is.
13 Q. Okay. And, in fact -- well, does Exhibit 10 indicate
14 that delinquency notices were sent?
15 A. Yes, sir, it does.
16 Q. Okay. I'm showing you what's been marked as Exhibit 11
17 in this case. What is that, ma'am?
18 A. This is a certificate of assessments, payments and
19 other specified matters for Form 1040 for the year 1994
20 Q. Okay. Now, I'm going to put this document up on the
21 camera. Now, does this particular document also contain
22 information that was in Exhibit 1, for lack of a better word,
23 in the uncoded form?
24 A. Yes, it does.
25 Q. Okay. And does that indicate notices -- well, I'm
REDIRECT - MARY ANN OSBORNE
314
1 going to turn to page two. Does that indicate notices were
2 sent to Ms. Kuglin?
3 A. Yes, sir, it does.
4 Q. Okay. And I'm going to show what you has been marked
5 as Exhibit 12 in this case. Again, what is Exhibit 12?
6 A. It is a certificate of assessments, payments and other
7 specified matters for Form 1040 for the tax year 1995.
8 Q. Okay. Thank you.
9 Now, does this also contain information that is in the
10 uncoded form?
11 A. Yes, sir, it does.
12 Q. And does that particular document indicate that a
13 statutory notice of intent to levy was issued on March the 9th
14 of 1998?
15 A. Yes, sir, it does.
16 Q. Okay. So the -- the certificates of assessments,
17 payments and other specified matters for 1040, those contain
18 uncoded language?
19 A. Yes, sir, it spells it out in plain English.
20 MR. MURPHY: Okay. One second, Your Honor.
21 Judge, I don't have any further questions.
22 THE COURT: All right. Thanks very much. We
23 will let you step down.
24 (Witness excused.)
25 THE COURT: Who is our next witness going to
315
1 be?
2 MR. MURPHY: Your Honor, it is going to be Kim
3 Gillum from Federal Express.
4 THE COURT: If you would stop there at the
5 podium and raise your right hand. Do you swear that the
6 testimony you are about to give in this case will be the
7 truth, the whole truth and nothing but the truth, so help
8 you God?
9 THE WITNESS: Yes.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DIRECT - KIMBERLY GILLUM
316
1 KIMBERLY GILLUM,
2 was thereupon called as a witness on behalf of the
3 Plaintiff, and having been first duly sworn, was
4 examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. MURPHY:
7 Q. Would you state your name, please, ma'am?
8 A. Kimberly Gillum.
9 Q. And would you spell your first and last name for the
10 court reporter?
11 A. K-I-M-B-E-R-L-Y G-I-L-L-U-M.
12 Q. Who do you work for, ma'am?
13 A. FedEx.
14 Q. And what is your position with FedEx?
15 A. Paralegal records custodian.
16 Q. They call them at FedEx these days, it's still Federal
17 Express?
18 A. It is still Federal Express.
19 Q. And is -- as part of your duties as custodian, are you
20 involved with the records at FedEx?
21 A. Yes.
22 Q. Okay. I'm going to hand to you a document and ask you
23 to tell us what that document is, please.
24 A. This is Vernice Kuglin's employment application.
25 Q. And does it --
DIRECT - KIMBERLY GILLUM
317
1 MR. BECRAFT: No objections, Your Honor.
2 THE COURT: All right.
3 Q. Is that an employment application for FedEx?
4 A. Yes, it is.
5 Q. And what's the date it was issued or signed?
6 A. June 17, 1985.
7 Q. Okay. And what position was Ms. Kuglin applying for?
8 A. Pilot.
9 MR. MURPHY: Your Honor, at this time, we would
10 move that into evidence as the next numbered exhibit.
11 THE COURT: Exhibit 13.
12 (Exhibit Number 13 was marked. Description:
13 Application.)
14 MR. MURPHY: And I don't have any further
15 questions, Your Honor.
16 MR. BECRAFT: No questions, either, Your Honor.
17 THE COURT: Ms. Gillum, thank you. We will let
18 you step down.
19 (Witness excused.)
20 MR. MURPHY: Your Honor, the next witness is
21 Elizabeth Edwards.
22 THE COURT: All right.
23 THE CLERK: Will you please raise your right
24 hand? Do you swear the testimony you are about to give
25 the court and the jury to be the truth, the whole truth
318
1 and nothing but the truth, so help you God?
2 THE WITNESS: I do.
3 THE CLERK: You may take the witness chair.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DIRECT - ELIZABETH EDWARDS
