United States of America v. Thomas P. Brennan

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 00-2381
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UNITED STATES OF AMERICA
v.
THOMAS P. BRENNAN,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 00-cr-00010)
District Judge: Honorable Anne E. Thompson
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Submitted Under Third Circuit LAR 34.1(a)
February 11, 2002
Before: MANSMANN, M cKEE and BARRY, Circuit Judges.
(Filed: February 19, 2002)
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MEMORANDUM OPINION OF THE COURT
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MANSMANN, Circuit Judge.
Thomas Brennan was convicted following a jury trial on three counts of
income tax evasion in violation of 26 U.S.C. § 7201 and three counts of failure to file
income tax returns in violation of 26 U.S.C. § 7203. The District Court sentenced

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Brennan to a 30-month term of imprisonment on each of the tax evasion counts and to a
12-month term of imprisonment on each of the failure to file counts, the terms to be
served concurrently. Brennan filed a timely notice of appeal, but his counsel seeks leave
to withdraw under Anders v. California, 386 U.S. 738 (1967), claiming that Brennan’s
appeal is wholly frivolous. Pursuant to Third Circuit Local Appellate Rule 109.2(a),
Brennan filed pro se pleadings raising additional issues.
We conclude that counsel’s Anders brief meets the requirements outlined in
Smith v. Robbins, 528 U.S. 259, 285 (2000), and United States v. Marvin, 211 F.3d 778,
780-81 (3d Cir. 2000). Because we do not find merit in any of the issues raised by
counsel in the Anders brief or in Brennan’s pro se submissions, we will grant counsel’s
motion to withdraw and will affirm the judgment in a criminal case.
I.
The facts and procedural history underlying this matter are well-known to
the parties. Accordingly, we turn directly to the issues presented.
Counsel’s Anders brief identifies four issues arguably supporting this
appeal. First counsel questions whether the District Court had jurisdiction over this
matter because Brennan’s tax liability was not first determined administratively.
Exhaustion of administrative remedies does not apply to this case; 18 U.S.C. § 3231
establishes that district courts have jurisdiction to consider alleged violations of federal

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criminal statutes. We agree with counsel that the argument that the District Court lacks
jurisdiction because Fed.R.Crim.P. 54 does not specifically mention the District Court of
New Jersey is similarly frivolous.
Counsel next addresses Brennan’s argument, raised in the District Court,
that payment of federal income tax is not mandated by any federal statute or regulation.
Congress, pursuant to the Sixteenth Amendment, exercised its power to establish and
enforce payment of federal income tax. 26 U.S.C. § 7201 and 7203 criminalize income
tax evasion. The indictment in this case charged Brennan with violating these statutes; it
was not necessary for the government to allege or prove that Brennan violated any of the
implementing regulations.
The third arguable issue identified by counsel concerns whether Brennan
acted willfully when he violated the tax laws and whether the jury might have been
confused by the District Court’s instructions relating to willfulness. We have read the
charge as given and do not find it confusing. In any event, our precedent establishes that
where a jury concludes that a person charged with tax evasion engages in affirmative acts
to evade taxes, the willfulness requirement is satisfied. United Sates v. McGill, Jr., 964
F.2d 222 (3d Cir. 1982). The record reveals evidence of a number of affirmative acts that
may reasonably have been seen as related to tax evasion. This argument, too, lacks merit.
Finally, counsel identifies as an arguable issue whether the District Court
erred in calculating the amount of tax due for purposes of determining Brennan’s

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sentence. There is case authority for the proposition that a sentencing court may consider
a defendant’s tax liability for years not charged in the indictment. See United States v.
Rabin, 986 F.Supp. 887, 890 (D.N.J. 1997), aff’d, 159 F.3d 1554 (3d Cir. 1998). Brennan
does not cite authority to the contrary and, in any event, has failed to establish that he
would have received a more lenient sentence had his tax liability been calculated
excluding the disputed amounts.
The issues identified in Brennan’s pro se submissions repeat or recast the
arguments discussed in counsel’s Anders brief. Again, we do not find merit in these
allegations of error.
II.
For the foregoing reasons, we will grant counsel’s motion to withdraw and
will affirm the judgment in a criminal case.
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To the Clerk:
Please file the foregoing opinion.
/s/ Carol Los Mansmann
Circuit Judge

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