1 18 U.S.C. § 371, 26 U.S.C. § 7201. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20063

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PIERRE S. TANIOS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

March 8, 1996

Before POLITZ, Chief Judge, DAVIS and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:

Convicted of conspiracy to evade federal excise taxes, 1 Pierre S. T anios appeals,

urging insufficiency of the ev idence; error in the jury charge, both before and during

deliberations; and impropriety in the jury’s disclosure of its division when communicating

its deadlock to the court. Finding no reversible error, we affirm.

Background

The indictment arose out of Tanios’ business relationship with Lion Boulus, who also

was named in the conspiracy count and in the five substantive counts of the indictment. The2 Boulus managed to secure a Texas identification card in the name o f Moussa, a

childhood friend of himself and Tanios.

3 The excise tax liability typically attaches to the wholesaler in its transactions; no tax is

imposed upon transactions between suppliers and wholesalers.

4 See United States v. Pace , 10 F.3d 1106 (5th Cir. 1993), cert

. denied , 114 S.Ct. 2180

(1994).

2 evidence establishes that Boulus, using the assumed name Adolphe Moussa, 2 forme d

Moussco Investment, Inc., which operated as a wholesale distributor of diesel fuel,

purchasing from a supplier and reselling to retail outlets. During the relevant period herein

payment of the excise tax was the responsibility of the wholesale distributors like Moussco,

with tax liability attaching upon sale to a retailer. 3 Moussco’s tax accountability exceeded

$250,000.

The evidence reflects that Tanios, also known as “Pierre Torres,” was owner of

several of the retail outlets serving as Moussco’s customers. He had a long-standing personal

and business relationship with Boulus. He often represented Moussco, doing such things as

having a supplier make invoices to a convenience store in the name of Moussco, making

payments to Moussco’s suppliers and creditors for the fuel delivered, and writing checks in

Moussco’s name.

The jury found Boulus guilty on all counts but, initially, it could not agree on a verdict

for Tanios. Contrary to the trial judge’s express instructions, in a written communication

with the court the jury informed that it had reached an impasse with ten voting to convict and

two voting to acquit. The court did not disclose this division to the parties but gave the jury

a modified Allen charge. 4 Following additional deliberations, the jury found Tanios guilty

of the conspiracy charge. The court imposed a sentence of two years imprisonment and a

fine of $6000. Tanios timely appealed.5 United States v. Singer , 970 F.2d 1414 (5th Cir. 1992).

6 Tax evasion under 26 U.S.C. § 7201 requires proof of a tax deficiency, willfulness, and

an affirmative act which constitutes evasion or attempted evasion of tax. United States v.

Townsend , 31 F.3d 262 (5th Cir. 1994), cert

. denied , 115 S.Ct. 773 (1995).

7 United States v. Chesson , 933 F.2d 298 (5th Cir.), cert

. denied , 502 U.S. 981 (1991).

3 Analysis

Tanios first contends that as a matter of law the evidence is insufficient to sustain his

conviction. He moved for judgment of acquittal at the close of the government’s case-inchief but did not renew the motion at the close of all of the evidence. We accordingly review

the record under the miscarriage of justice rubric, examining to see if there is evidence

indicative of Tanios’ guilt. 5

To secure a conviction the prosecution had to prove, beyond a reasonable doubt, that

Tanios and Boulus agreed to evade federal excise taxes 6 and committed at least one overt act

in furtherance of their agreement. 7 Moussco was obligated to pay the excise taxes. Tanios

was fully a ware that Moussco was a dummy corporation which Boulus set up for the

purpose, inter alia

, of assisting in his tax ev asion scheme. We entertain no doubt that

Tanios’ actions on behalf of Moussco, particularly as they related to the sale and transfer of

diesel fuel, provide a sufficient basis to sustain his conviction.

Tanios next challenges the court’s refusal to give a special instruction regarding two

prosecution witnesses who testified that Boulus regularly held himself out as Moussa,

testimony which was diametrically opposed to a defense theory that Boulus and the

“Moussa” who headed Moussco were different persons. The jury obviously rejected this

defense. The two witnesses were creditors of Moussco and both were under state indictment

for evasio n of state fuel excise taxes. These facts were fully developed on crossexamination. Both denied any promise or expectation of leniency in the pending state court8 Actually Boulus requested this instruction. Today’s disposition makes it unnecessary

for us to resolve the issue whether an in limine adoption by Tanios of all motions filed by

Boulus included adoption of the requested jury charge.

9 United States v. Calverley

, 37 F.3d 160 (5th Cir.) ( en banc ), c ert

. denied

, 115 S.Ct.

1266 (1995).

1 0 United States v. Aggarwal

, 17 F.3d 737 (5th Cir. 1994); United States v. D’Antignac

, 628 F.2d 428 (5th Cir.), cert

. denied , 450 U.S. 967 (1981).

4 actions as a consequence of their testimony in the instant prosecution. The defense 8

requested an instruction cautioning the jury on its assessment of t he testimony of an

accomplice or informant. In declining the request, the trial judge stated that there was no

evidence of any offer of immunity or leniency and that the traditional instructions on witness

credibility were adequate to cover the situation.

Tanios did not object tot he court’s ruling on the requested instruction and we

therefore review for plain error. 9 The instruction as given to the jury informed:

The testimony of one who provides evidence aga inst a defendant for some

personal adv antage, gain, or vindication, must always be examined and

weighed by the jury with greater care and caution than the testimony of

ordinary witnesses. You, the jury, must decide whether the witness’ testimony

has been affected by any of those circumstances, or by the witness’ interest in

the outcome of the case, or by prejudice against the defendant, or by the

benefits that the w itness has received or may receive. You should keep in

mind that such testimony is always to be received with caution and weighed

with great care. You should never convict any defendant upon the

unsupported testimony of such a witness unless you believe t hat testimony

beyond a reasonable doubt.

We conclude that this instruction is a suf ficient response to the concerns expressed by

Tanios. Neither witness was an accomplice or informant and there was no error in the trial

court’s denial of the requested instruction. 10

Tanios next contends that r eversible error occurred when the jury revealed the

particulars of its deadlocked vote in communicating with the trial judge . Our precedents1 1 United States v. Nguyen

, 28 F.3d 477 (5th Cir. 1994); Sanders v. United States

, 415

F.2d 621 (5th Cir.), cert

. denied , 397 U.S. 976 (1970).

12 See Pace (approving the pattern Allen instructions).

1 3 United States v. Heath

, 970 F.2d 1397 (5th Cir.), cert

. denied

, 507 U.S. 1004 (1993).

5 reject this contention. 1 1 The mere fact that the jury made known its division to the court,

without more, is not grounds for a mistrial or a bar to the court giving the Allen charge. This

assignment of error lacks merit.

Finally, Tanios maintains that the trial court omitted crucial language form the pattern

Allen charge, an omission which, he asserts, worked to his prejudice. The omitted language

would have advised the jury:

If a substantial majority of your number are for a conviction, each dissenting

juror ought to consider whether a doubt in his own mind is a reasonable one

since it appears to make no effective impression upon the minds of the others.

On the other hand, if a majority or e ven a lesser number of you are for

acquittal, the other jurors ought se riously to ask themselves again, and most

thoughtfully, whether they do not have a reason to doubt the correctness of a judgment which is not shared by seve ral of their fellow jurors, and whether

they should distrust the weight and sufficiency of the evidence which fails to convince several of their fellow jurors beyond a reasonable doubt.

Tanios contends that omission of this paragraph from the pattern Allen charge 12 amounted

to a tacit coercion of the instant jury to return a verdict of guilty.

Deviations from the pattern Allen instruction must be done with care and prudence.

Our review is for prejudice, giving due consideration to the coercive potential in all relevant

circumstances surrounding the giving of this special charge. 13

By the time the A llen charge was given the trial judge had been informed, in

derogation of her express instructions, that the jury’s disposition was ten for conviction and

two for acquittal. The first line of the deleted paragraph, which was intended for a jury

whose leanings are unknown, emphasizes that a hypothetical minority should reconsider its6

position when a “substantial majority” is for conviction. At the time the instruction was

given, therefore, the deleted paragraph conceivably could have prejudiced Tanios as much

or more than it might have helped him. The trial judge voiced a concern and sought to lessen

any prejudicial impact from the charge. The prosecutor agreed to the deletion. Considering

all relevant circumstances herein, the trial judge’s commendable effort to obviate or at least

markedly reduce any potential prejudice to Tanios was not error. The A llen charge as given

did not amount to coercion of the jury to return a verdict of guilty. This assignment of error

fails.

AFFIRMED.