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United States v. Kuball

filed: September 30, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MICHAEL G. KUBALL, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Alaska. D.C. No. CR-A91-059-01-JKS. James K. Singleton, District Judge, Presiding.

Before: Eugene A. Wright, Betty B. Fletcher and William C. Canby, Jr., Circuit Judges. Opinion by Judge Wright.

Author: Wright

WRIGHT, Circuit Judge.

Michael Kuball was convicted of violating 26 U.S.C. §§ 7206 and 7212. He filed Form 1099 information returns that falsely reported payments of over $900,000 in non-employee compensation to eight persons. He also filed a Form 1040 tax return that falsely reported income of more than $900,000 from a "default judgment" and claimed a refund of over $600,000.

He was sentenced to 6 months in prison and fined $600. On appeal, he argues that the evidence was insufficient to support the verdict, and that the tax filings were protected protest speech. We affirm both his sentence and conviction.

I

Kuball failed to file income tax returns from 1980 to 1988. Because the IRS was unable to collect the taxes owed, his wages and truck were seized.

He subsequently sent a series of letters and documents to his former employer, a tow truck operator, and 6 past and present IRS employees. His former employer had complied with the IRS' levy of his wages, and the tow truck operator had helped the IRS seize his truck. One IRS employee had arranged for the levy of his wages and the seizure of his truck. The other IRS employees' names appeared on the liens or the levies.

He sent letters to those persons, requesting their taxpayer identification numbers. The letters were followed by notices demanding payments of sums ranging from $83,484.87 to $158,272.01. He sent a second series of notices to those persons announcing that liens had been "placed against the person and property" equal to the amount of payment demanded. These notices also said that the liens had been "placed for collection with the Internal Revenue Service."

Kuball prepared Form 1099 information returns reporting that he had paid those persons sums equal to the payments he had demanded from them. He also completed a Form 1096 reporting that he had paid $927,313.29 in non-employee compensation to these individuals. In signing the form, he declared, under penalty of perjury, that both Form 1096 and the Forms 1099 were true, correct and complete. Despite this claim, Kuball had paid no money to those persons.

He also filed a 1989 tax return. He did not show any wages earned from his former job, but listed $927,373.29 as income from a "default judgment." He showed the same amount in federal income tax withheld, and claimed a refund of $667,708.76. He was neither paid nor owed such income.

II

On appeal, Kuball argues that the evidence was insufficient to prove that he intentionally falsified the information submitted on the tax forms. As the government says, he did not preserve this issue on appeal because he failed to move for a judgment of acquittal at trial. United States v. Smith, 924 F.2d 889, 893 (9th Cir. 1991).

He also failed to preserve this issue as to interference with the administration of the internal revenue laws. His motion for a judgment of acquittal, made at the close of the government's evidence, was denied. Because he failed to renew the motion at the close of his case, he "effectively waived his objection to the sufficiency of the government's evidence." United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988), cert. denied, 488 U.S. 1016, 102 L. Ed. 2d 802 , 109 S. Ct. 812 (1989). The court may review the denial of a nonrenewed motion for acquittal, but only ...


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