Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1717
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Eugene A. McNeally, * District of Nebraska.
*
Appellant. * [UNPUBLISHED]
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Submitted: February 24, 2005
Filed: March 10, 2005
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Before BYE, RILEY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Eugene McNeally appeals his five convictions for willfully failing to file
income-tax returns, in violation of 26 U.S.C. § 7203, and his eleven convictions for
knowingly making or using false statements in a matter within the jurisdiction of a
federal agency, in violation of 18 U.S.C. § 1001(a)(3). A jury returned the verdicts
after a five-day jury trial, and the district court 1 later sentenced McNeally to
concurrent terms of 10 months’ imprisonment for willfully failing to file tax returns,
and 12 months’ imprisonment for making false statements. On appeal, McNeally

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argues that there was insufficient evidence that he acted willfully in failing to file his
tax returns. He also asserts that the evidence was insufficient to show that his
statements were false, and made knowingly and in a matter within the jurisdiction of
a federal agency. Finally, he challenges the court’s refusal to strike a juror.
When viewed in a light most favorable to the verdicts, we believe the evidence
is sufficient to show that McNeally willfully failed to file his income tax returns for
1995 through 1999, particularly given his admissions at trial that he had filed federal
tax returns in the past, and had used his wife’s bank account to maintain his
anonymity. See United States v. Espino, 317 F.3d 788, 791-92 (8th Cir. 2003)
(standard for sufficiency-of-evidence challenges); United States v. Brooks, 174 F.3d
950, 955 & n.5 (8th Cir. 1999) (willfulness in criminal tax context requires proof
defendant knew of and intentionally violated legal duty; proof that defendant filed tax
returns in prior years showed he knew of duty, and his efforts to dissociate himself
from his property and income by establishing bank account in name of trust belied
good-faith defense).
We also believe the trial evidence supports the false-statement convictions.
McNeally repeatedly informed several contractors for whom he had performed
construction services that he was a nonresident alien, thus prompting many of them
not to file a required Form 1099 with the Internal Revenue Service. The evidence at
trial, however, established that McNeally was born in Minnesota, lived in Nebraska
during the years at issue, and had no citizenship other than that of the United States.
See United States v. Yermian, 468 U.S. 63, 68-70 (1984) (defendant must have
knowledge of falsity of statements, not knowledge of statement’s materiality to
federal agency involved); United States v. Baker, 200 F.3d 558, 561 (8th Cir. 2000)
(materiality inquiry under § 1001 “focuses on whether the false statement had a
natural tendency to influence or was capable of influencing the government agency
or official”); United States v. Popow, 821 F.2d 483, 486 (8th Cir. 1987) (false
statements need not be made directly to government agency to establish jurisdiction

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under § 1001; instead, they need only relate to matter in which federal agency has
power to act).
Finally, the district court did not abuse its discretion in refusing to strike the
potentially suspect juror. The court reminded the juror of his obligation to maintain
an open mind until all the evidence was presented. Before the case was submitted to
the jury, the court stated – without objection by McNeally – that it would talk to the
juror outside the presence of counsel and would let him remain on the jury only if,
based on this discussion, the court believed the juror had an open mind about the
case. See United States v. Evans, 272 F.3d 1069, 1078-79 (8th Cir. 2001) (although
removal of juror is appropriate if juror has formed opinion as to issue to be tried, it
is sufficient if juror can lay aside pretrial impression or opinion and render verdict
based on evidence presented in court); United States v. Duke, 255 F.3d 656, 659 (8th
Cir. 2001) (rulings on juror qualifications will not be disturbed absent clear showing
of abuse of discretion vested in district court); United States v. Campbell, 845 F.2d
782, 785 (8th Cir. 1988) (district court has discretion to question juror whose
qualifications have come into doubt during trial to insure impartiality of jury).
Accordingly, we affirm.
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