IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, : Case No. 2:12-CR-218 

 : 

 Plaintiff, : JUDGE ALGENON L. MARBLEY 

 : 

 v. : 

 : 

WILLIAM D. TAYLOR, SR., : 

 : 

 Defendant. : 

 

OPINION & ORDER 

I. INTRODUCTION 

This matter is before the Court on Defendant’s Motion to Dismiss (Doc. 18) and 

Defendant’s Motion in Limine (Doc. 19). For the reasons set forth, Defendant’s Motions are 

DENIED. 

II. BACKGROUND 

 Defendant, William Taylor, Sr. (“Taylor”), was indicted on October 31, 2012 on two 

counts of violating 26 U.S.C. § 7206(1) for fraud and false statements Taylor allegedly made to 

the Internal Revenue Service (IRS) on his Form 1040 Individual Income Tax Returns for 2007 

and 2008. The indictment resulted from a Grand Jury investigation, of which Taylor was the 

subject. The Grand Jury investigation focused on allegations that Taylor had solicited 

investments for construction projects which he never completed, instead using the funds solicited 

for personal purposes. In other words, the Government alleged Taylor had converted the 

investments into personal income for himself. 

On March 31, 2009, after the Grand Jury issued a subpoena for Taylor’s financial 

records, Taylor appeared before the Grand Jury. At this appearance Taylor was informed of his 

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rights under the Fifth and Sixth Amendments. He was told that he could apply for Courtappointed counsel prior to further proceedings before the Grand Jury. Taylor declined to apply 

for counsel at that time and produced certain records to the Grand Jury. No substantive 

questions were put to Taylor by the Grand Jury. Taylor’s wife, not the subject of a Grand Jury 

investigation, also received a subpoena and appeared before the Grand Jury on the same day as 

Taylor. She answered substantive question regarding record-keeping and production of the 

records. 

 On June 14, 2013 Defendant moved for the first time to dismiss his indictment on the 

basis that he had been unable to afford counsel and thus, was not informed of his rights under the 

Fifth and Sixth Amendments. Defendant also moved to prevent the Government from 

introducing “evidence about Defendant’s failure in the housing development industry generally.” 

The Government opposes both Motions. The Motions have been fully briefed and are ripe for 

adjudication. 

III. LAW & ANALYSIS 

A. Motion to Dismiss

 Defendant now moves to dismiss his indictment because, not being able to afford 

counsel, he appeared before the Grand Jury and testified without counsel. It is well settled that a 

Grand Jury proceeding implicates a witness’s rights under the Fifth and Sixth Amendments. 

U.S. v. Mandujano, 425 U.S. 564, 581 (1976). Since the Sixth Amendment right to counsel does 

not attach until an indictment, however, a Grand Jury witness “cannot insist, as a matter of 

Constitutional right, on being represented by his counsel.” Id. at 581. A witness may have the 

assistance of counsel, but counsel may not be present in the Grand Jury room. Id. Here, 

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appointed counsel. Defendant produced documents after being informed of his rights. He was 

not asked substantive questions. 

 Since Defendant was informed of his rights and has been unable to cite any law which 

would require the Government to appoint counsel notwithstanding his waiver, there is simply no 

basis on which to dismiss this indictment. The only case cited by Defendant, In re Oliver, 333 

U.S. 257 (1948), is inapposite. In that case, a witness before a one-man judge-grand jury was 

convicted by the judge-grand jury for contempt. The witness was immediately imprisoned for 60 

days with no break in the secrecy of the proceeding and no opportunity for the witness to defend 

himself in a separate contempt proceeding. Id. at 257-59. The facts of In re Oliver bear no 

similarity to those of Defendant’s case, except that a grand jury was involved at some stage. 

 In the Sixth Circuit, “[i]n order for this court to order dismissal of an indictment as part of 

its supervisory powers, there must be a showing of demonstrated and longstanding prosecutorial 

misconduct as well as a showing of substantial prejudice to the defendant.” United States v. 

Rozin, 552 F.Supp.2d 693, 699 (S.D. Ohio 2008). There is no allegation by Defendant or 

evidence in the record of any prosecutorial misconduct. To the extent Defendant has been 

prejudiced, if at all, such prejudice is solely the result of his knowing waiver of the opportunity 

to apply for counsel. Defendant has presented no legal basis for dismissing his indictment. 

 For these reasons, Defendant’s Motion to Dismiss is, hereby, DENIED. 

B. Motion in Limine

 In Defendant’s Motion in Limine, he requests the Court prevent the Government from 

“evidence about Defendant’s failure in the housing development industry generally” and prohibit 

the Government from referring to Defendant as a “predator” at trial. 

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1. Use of the Term “Predator” 

 With regard to Government’s counsel as a “predator,” Government’s counsel has 

represented in his Response that he will not refer to Defendant as a “predator” “unless, at closing 

argument, it fairly appears that such a term would be warranted.” Government’s Response, Doc. 

24 at 2. At closing argument, counsel has wide latitude to characterize the evidence he 

presented; Defendant has provided no legal or factual basis for interfering with the 

Government’s presentation. Prior to that time, the Government’s counsel has stated he has no 

intention of referring to Defendant as a “predator” or similar pejorative term. Thus, this issue is 

MOOT. 

2. Evidence of Defendant’s Involvement in the Housing Industry

 Defendant also moves to exclude evidence regarding is involvement in the housing 

industry. Defendant is charged with violating 26 U.S.C. § 7206(1), which states a person 

commits a crime who “[w]illfully makes and subscribes any [tax] return, statement, or other 

document, which contains or is verified by a written declaration that it is made under the 

penalties of perjury, and which he does not believe to be true and correct as to every material 

matter.” 26 U.S.C. § 7206(1). The Ninth Circuit has held that the elements of a 26 U.S.C. § 

7206(1) offense are: 

(1) the defendant made and subscribed a return, statement, or other document that 

was incorrect as to a material matter; (2) the return, statement, or other document 

subscribed by the defendant contained a written declaration that it was made 

under the penalties of perjury; (3) the defendant did not believe the return, 

statement, or other document to be true and correct as to every material matter; 

and (4) the defendant falsely subscribed to the return, statement, or other 

document willfully, with the specific intent to violate the law. 

United States v. Boulware, 384 F.3d 794, 810 (2004) (internal citations omitted). The Sixth 

Circuit holds that “[a] matter is ‘material’ if it has a natural tendency to influence, or is capable 

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of influencing or affecting, the ability of the IRS to audit or verify the accuracy of a tax return.” 

United States v. Tarwater, 308 F.3d 494, 505 (6th Cir. 2002). Moreover, “any failure to report 

income is material.” Id., quoting United States v. Holland, 880 F.2d 1091, 1096 (9th Cir.1989). 

The source of income is clearly material because “the government makes out a prima facie case 

of tax evasion when it has proved the existence of a likely source of taxable income.” Tarwater, 

308 F.3d at 509, citing Holland v. United States, 348 U.S. 121 (1954). The Sixth Circuit has also 

held that misstating the source of income is a material matter. United States v. Fawaz, 881 F.2d 

259, 263 (6th Cir. 1989). 

 In light of established law, the Court cannot entertain Defendant’s suggestion that the 

Court exclude evidence of his alleged other sources of income. It is unclear how the 

Government would even begin to prove a misstatement of Defendant’s income without evidence 

of the origin of that income. 

 For these reasons, Defendant’s request to exclude evidence of his involvement in the 

housing industry is DENIED. Since the Court has found against Defendant on both issues raised 

by his Motion in Limine (Doc. 19), the Motion is DENIED. 

IV. CONCLUSION

 In summary, Defendant’s Motion to Dismiss (Doc. 18) is DENIED. Defendant’s Motion 

in Limine (Doc. 19) is also DENIED. 

 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: June 26, 2013 

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