UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 93-5009

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UNITED STATES OF AMERICA,

Appellee,

VERSUS

CHARLES T. WICKERSHAM,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas

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(August 5, 1994)

Before WISDOM, DAVIS and DUHÉ, Circuit Judges.

PER CURIAM:

Charles T. Wickersham appeals his conviction of making a false

statement on his tax return. Finding no error, we affirm.

I.

Wickersham purchased a grain elevator for $100,000 in March,

1989. Two weeks later, a commissioner on the Orange County Port

and Navigation District (OCPND) suggested that the OCPND should

purchase the elevator. The OCPND was interested in acquiring a

"bagging facility," a facility capable of bagging grain for

overseas shipment by cargo vessels. The Board authorized

Commissioner Frederick to begin negotiations with Wickersham to

purchase the elevator. A OCPND attorney wrote an opinion letter
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indicating that the OCPND had the authority to acquire such a

facility through purchase, lease or condemnation and reviewed this

authority with the Board.

At the end of July, Wickersham contacted his accountant and

told him that an Orange County agency was interested in acquiring

the grain elevator. Wickersham advised his accountant that he was

interested in purchasing some other property in the county. The

accountant suggested that both transactions could be accomplished

in a "like-kind exchange" which would defer the recognition of

taxes on the gain realized. Wickersham attempted to negotiate a

"like-kind exchange" involving the grain elevator and a shopping

center owned by a third party, but the third party ultimately

refused to agree to it.

On July 31, the OCPND voted to purchase Wickersham's elevator

for $450,000. Shortly after the OCPND agreed to purchase the grain

elevator, Wickersham's attorney informed the OCPND attorney that

Wickersham needed a letter of condemnation. Although the OCPND did

not use condemnation, Commissioner Frederick told the OCPND

attorney that he had threatened to use condemnation during

negotiations. The OCPND's attorney faxed Wickersham's tax attorney

a letter stating that Frederick had used the threat of condemnation

during negotiations even though the attorney only remembered

condemnation being discussed during a Board meeting as an option,

not that Frederick had actually used the threat of condemnation in

order to make the purchase.

Wickersham's 1989 tax return indicated that he had sold the

grain elevator under threat of condemnation for $450,000. The IRS
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contends that there was no threat of condemnation, and that

Wickersham owes $98,000 in taxes on the capital gain of $350,000 he

made as a result of the sale.

Wickersham, Commissioner Frederick and Commissioner Winfree

were charged with conspiracy to defraud the OCPND by selling a

grain elevator to them at an inflated price. Wickersham was also

charged with making a false statement on his tax return, namely

that the grain elevator was sold under threat of condemnation. The

jury convicted Wickersham on the tax fraud count and acquitted him

on all other charges. Wickersham raises a number of issues on

appeal which we discuss below.

II.

Wickersham first argues that the evidence was insufficient to

support his conviction. In reviewing the sufficiency of the

evidence, this court determines whether, viewing the evidence in

favor of the verdict, a rational jury could have found the

essential elements of the offense beyond a reasonable doubt. U.S.

v. Sparks, 2 F.3d 574, 579 (5th Cir. 1993), cert. denied, 114 S.Ct.

720 (1994).

The jury convicted Wickersham of filing a false tax return in

violation of 26 U.S.C. § 7206(1). To convict, the government must

show that the defendant willfully made a false statement on his

return. U.S. v. Robinson, 974 F.2d 575, 579 (5th Cir. 1992).

Under 26 U.S.C. § 1033, the gain realized on the sale of

property under the threat of condemnation is not recognized under

the Internal Revenue Code, provided replacement property is
 

1 The purchase of replacement property within the statutory

period was uncontested.

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purchased within the statutory period.1 Wickersham argues that he

did sell the property under a threat of condemnation and was

entitled to the tax deferment.

The evidence established that Commissioner Frederick was

notified of his right to threaten condemnation and told the OCPND

attorney that he had threatened condemnation. But the jury was

entitled to conclude that there was no genuine threat, but,

instead, a subterfuge to support preferred tax treatment for

Wickersham. The jury was entitled to infer from the evidence that

Wickersham, Frederick and Winfree were acting together to defraud

the OCPND by selling the elevator at an exorbitantly inflated

price. Wickersham bought the elevator for only $100,000 in March

and sold it for $450,000 in July. Wickersham and Winfree were

business partners in a business venture, in which Wickersham had

provided a $75,000 letter of credit on Winfree's behalf, and

Winfree had once owned the elevator and had sold it for only

$85,000. The government produced evidence that Winfree, while

technically recusing himself from the purchase of the grain

elevator, used his influence to persuade the commissioners to buy

it from Wickersham, for the inflated price. Moreover, Wickersham

did not ask for the letter of condemnation until after he was

unable to do a like-kind exchange and after the Board had already

voted to purchase the elevator.

The evidence was sufficient to support the conviction. It was

not unreasonable for the jury to determine that Wickersham knew
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that condemnation had never been threatened and that he knew his

statement to the contrary was false.

III.

Wickersham next argues that the court erred in barring

admission of evidence of prosecutorial misconduct. Wickersham

contends that he should have been allowed to elicit the testimony

of Wayne Peveto and Joseph Alford, Winfree's defense attorneys,

regarding a meeting they had with U.S. Attorney Smith. Wickersham

alleges that at this meeting, Smith told Peveto and Alford that

unless Frederick changed his grand jury testimony and testified

that he did not mention the authority to condemn to Wickersham,

that he would be indicted.

Wickersham argues that the exclusion of evidence violates his

due process and the compulsory process clause. He relies on U.S.

v. Heller, 830 F.2d 150 (11th Cir. 1987), in which the court

reversed a conviction because the defendant was not allowed to

present evidence that the prosecutor had intimidated a defense

witness into providing testimony against the defendant.

In the case at bar, however, the court held an evidentiary

hearing and determined, as a matter of law, that there was no

prosecutorial misconduct. The court found that the prosecutors had

merely suggested that if Frederick had lied to the grand jury, he

should tell the truth. The court refused to allow Wickersham to

elicit the testimony because it was not proper to allow a codefendant's attorney to testify and because the evidence was not

relevant.

 Wickersham does not present any evidence that Frederick
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actually was intimidated into changing his grand jury testimony.

Nor is there evidence that other witnesses were intimidated. The

district court did not abuse its discretion in refusing to admit

this evidence.

IV.

Wickersham next argues that the district court erred in giving

a modified "Allen" charge to the jury. We review the modified

"Allen" charge for abuse of discretion. U.S. v. Lindell, 881 F.2d

1313 (5th Cir. 1989), cert. denied, 496 U.S. 926 (1990).

The modified "Allen" charge given by the district court

comports with the modified "Allen" charge approved in Lindell. The

court did not abuse its discretion.

V.

Wickersham argues next that the court should have ordered a

new trial because the jurors were improperly affected by the

"Allen" charge. After the verdict was rendered, Wickersham's

attorney received an unsolicited phone call from a juror who said

that she hoped they appealed the case because the defendant was not

guilty and that she and several other jurors changed their verdict

after receiving the "Allen" charge.

Federal Rule of Evidence 606(b) prohibits the use of juror's

statements to impeach the verdict. Rule 606(b) has consistently

been used to bar testimony when the jury misunderstood

instructions. Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224,

230 (8th Cir.)(testimony to misinterpretation of instructions

inadmissible), cert. denied, 389 U.S. 1014 (1967); U.S. v.

Chareton, 309 F.2d 197, 200-01 (6th Cir. 1961)(disallowing
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testimony to mistakes made by jury in interpreting charge), cert.

denied, 372 U.S. 936 (1963). Therefore, the court did not err in

refusing to allow jury testimony to impeach the verdict.

VI.

Finally, Wickersham argues that the indictment was defective

because it did not state the year of the return. U.S. v. Boulet,

577 F.2d 1165, 1167-68 (5th Cir. 1978)(because tax system is on an

annual basis, indictment for failure to file tax return must charge

an offense for a specific year), cert. denied, 439 U.S. 1114

(1979). However, the indictment here was for making a false

statement on a return, rather than failing to file a return. The

indictment did cite the date the false return was filed.

Furthermore, Wickersham was provided a copy of the tax return. The

indictment was not defective.

In any case, objections to the indictment are generally waived

if not made before trial. U.S. v. Campos-Asencio, 822 F.2d 506

(5th Cir. 1987). Wickersham did not object to the indictment

before trial and has shown absolutely no prejudice based on the

Government's failure to allege the date of the return in the

indictment.

AFFIRMED