2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-19-2002

USA v. Brennan

Precedential or Non-Precedential:

Docket 0-2381

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Brennan" (2002). 2002 Decisions. Paper 134.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/134
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _____________ 

 No. 00-2381 

 _____________ 

 UNITED STATES OF AMERICA 

 v. 

 THOMAS P. BRENNAN, 

 Appellant 

 _____________ 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Crim. No. 00-cr-00010) 

 District Judge: Honorable Anne E. Thompson 

 _____________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 February 11, 2002 

 Before: MANSMANN, McKEE and BARRY, Circuit Judges. 

 (Filed: February 19, 2002) 

 _____________ 

 MEMORANDUM OPINION OF THE COURT 

 _____________ 

MANSMANN, Circuit Judge. 

 Thomas Brennan was convicted following a jury trial on three 

counts of 

income tax evasion in violation of 26 U.S.C.  7201 and three counts of 

failure to file 

income tax returns in violation of 26 U.S.C.  7203. The District Court 

sentenced 

Brennan to a 30-month term of imprisonment on each of the tax evasion 

counts and to a 

12-month term of imprisonment on each of the failure to file counts, the 

terms to be 

served concurrently. Brennan filed a timely notice of appeal, but his 

counsel seeks leave 

to withdraw under Anders v. California, 386 U.S. 738 (1967), claiming that 

Brennan's 

appeal is wholly frivolous. Pursuant to Third Circuit Local Appellate 

Rule 109.2(a), 

Brennan filed pro se pleadings raising additional issues. 

 We conclude that counsel's Anders brief meets the requirements 

outlined in 
Smith v. Robbins, 528 U.S. 259, 285 (2000), and United States v. Marvin, 

211 F.3d 778, 

780-81 (3d Cir. 2000). Because we do not find merit in any of the issues 

raised by 

counsel in the Anders brief or in Brennan's pro se submissions, we will 

grant counsel's 

motion to withdraw and will affirm the judgment in a criminal case. 

 I. 

 The facts and procedural history underlying this matter are 

well-known to 

the parties. Accordingly, we turn directly to the issues presented. 

 Counsel's Anders brief identifies four issues arguably 

supporting this 

appeal. First counsel questions whether the District Court had 

jurisdiction over this 

matter because Brennan's tax liability was not first determined 

administratively. 

Exhaustion of administrative remedies does not apply to this case; 18 

U.S.C.  3231 

establishes that district courts have jurisdiction to consider alleged 

violations of federal 

criminal statutes. We agree with counsel that the argument that the 

District Court lacks 

jurisdiction because Fed.R.Crim.P. 54 does not specifically mention the 

District Court of 

New Jersey is similarly frivolous. 

 Counsel next addresses Brennan's argument, raised in the 

District Court, 

that payment of federal income tax is not mandated by any federal statute 

or regulation. 

Congress, pursuant to the Sixteenth Amendment, exercised its power to 

establish and 

enforce payment of federal income tax. 26 U.S.C.  7201 and 7203 

criminalize income 

tax evasion. The indictment in this case charged Brennan with violating 

these statutes; it 

was not necessary for the government to allege or prove that Brennan 

violated any of the 

implementing regulations. 

 The third arguable issue identified by counsel concerns whether 

Brennan 

acted willfully when he violated the tax laws and whether the jury might 

have been 

confused by the District Court's instructions relating to willfulness. We 

have read the 

charge as given and do not find it confusing. In any event, our precedent 

establishes that 

where a jury concludes that a person charged with tax evasion engages in 

affirmative acts 

to evade taxes, the willfulness requirement is satisfied. United Sates v. 

McGill, Jr., 964 

F.2d 222 (3d Cir. 1982). The record reveals evidence of a number of 

affirmative acts that 
may reasonably have been seen as related to tax evasion. This argument, 

too, lacks merit. 

 Finally, counsel identifies as an arguable issue whether the 

District Court 

erred in calculating the amount of tax due for purposes of determining 

Brennan's 

sentence. There is case authority for the proposition that a sentencing 

court may consider 

a defendant's tax liability for years not charged in the indictment. See 

United States v. 

Rabin, 986 F.Supp. 887, 890 (D.N.J. 1997), aff'd, 159 F.3d 1554 (3d Cir. 

1998). Brennan 

does not cite authority to the contrary and, in any event, has failed to 

establish that he 

would have received a more lenient sentence had his tax liability been 

calculated 

excluding the disputed amounts. 

 The issues identified in Brennan's pro se submissions repeat or 

recast the 

arguments discussed in counsel's Anders brief. Again, we do not find 

merit in these 

allegations of error. 

 II. 

 For the foregoing reasons, we will grant counsel's motion to 

withdraw and 

will affirm the judgment in a criminal case. 

_________________________________ 

To the Clerk: 

 Please file the foregoing opinion. 

 /s/ Carol 

Los Mansmann 

 Circuit Judge