United States v. James Murphy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50023
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-02497-AJB-1

JAMES FRANCIS MURPHY, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted March 9, 2016
Pasadena, California

Filed June 9, 2016

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges, and Frederic Block, District Judge.*

Opinion by Judge Block

*
The Honorable Frederic Block, Senior U.S. District Judge for the
Eastern District of New York, sitting by designation.
2 UNITED STATES V. MURPHY

SUMMARY**

Criminal Law

The panel affirmed a defendant’s conviction by jury trial
for interfering with the administration of the tax laws and
presenting false claims to the United States, and vacated his
conviction for presenting fictitious financial instruments, in
violation of 18 U.S.C. § 514.

The panel concluded that the evidence was sufficient to
preclude a judgment of acquittal on the § 514 counts.
Nonetheless, reviewing the district court’s jury instructions
for plain error, the panel held that the evidence was not so
overwhelming that it negated the prejudice flowing from the
lack of any instruction that the financial instruments in
question had to be issued “under the authority of the United
States.” Accordingly, the panel vacated the conviction on the
§ 514 counts.

Affirming as to other counts, the panel held that the
district court did not err in failing to instruct the jury that an
attempt to reduce tax liability is not a “claim” within the
meaning of 18 U.S.C. § 287. The panel held that the charge
for interfering with the administration of the tax laws in
violation of 26 U.S.C. § 7212(a) was timely. Agreeing with
the Fourth Circuit, the panel held that an interference charge,
like a charge of tax evasion under § 7201, is timely so long as
it is returned within six years of an act of interference. The

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. MURPHY 3

panel also held that the § 7212(a) charge was not duplicitous
and that the government’s rebuttal summation was proper.

The panel vacated the § 514 convictions and affirmed the
others. It vacated the district court’s judgment and remanded
for a new trial on the § 514 counts, as well as for resentencing
upon either the completion of the new trial or the
government’s election to dismiss those counts.

COUNSEL

Benjamin Lee Coleman (argued), Timothy A. Scott, and
Nicolas O. Jimenez, Coleman & Balogh LLP, San Diego,
California, for Defendant-Appellant.

Daniel Earl Zipp (argued), Assistant United States Attorney;
Peter Ko, Assistant United States Attorney, Chief, Appellate
Section, Criminal Division; Laura E. Duffy, United States
Attorney; United States Attorney’s Office, San Diego,
California, for Plaintiff-Appellee.

OPINION

BLOCK, District Judge:

James Francis Murphy appeals the district court’s
judgment convicting him of interfering with the
administration of the tax laws, presenting fictitious financial
instruments, and presenting false claims to the United States;
and sentencing him principally to four years’ imprisonment.
For the following reasons, we vacate the fictitious financial
4 UNITED STATES V. MURPHY

instrument convictions, affirm the remaining convictions, and
remand.

I

A. Murphy’s Interactions with the IRS

In 2001, Murphy, an osteopath, began diverting income
from his medical practice to a trust. The result was a drastic
reduction in income reported on his personal income tax
returns. Murphy’s adjusted gross income went from
approximately $100,000 in 2000 to $12,476 in 2001, $5,064
in 2002 and less than $0 in 2003. He did not file a personal
return at all in 2004 or 2005. The trust, meanwhile, reported
income of between $700,000 and $1 million, but virtually all
of it was offset by claimed deductions.

The IRS opened an audit of Murphy and his trust in 2006.
Though initially cooperative, Murphy eventually stopped
communicating with the IRS examiner, who referred the case
for collection.

In February 2008, Murphy contacted the IRS in an
attempt to settle his tax liability. As payment, he offered four
“bonded promissory notes.” Collectively, the notes purported
to satisfy Murphy’s tax liability for 2003–2005 and his trust’s
tax liability for 2003. Murphy was the “maker” of the notes,
each of which was payable “to the order of” the Secretary of
the Treasury and the IRS examiner “for credit to” the
Department of the Treasury and the IRS. Each note was
“secured” by a “private discharging and indemnity bond” and
“private offset bond” in the possession of “[Secretary of the
Treasury] Mr. Henry M. Paulson, Jr., holder in due course.”
 UNITED STATES V. MURPHY 5

With the notes, Murphy sent to the IRS a copy of a
“certified deposit order” directing Secretary Paulson to “settle
all obligations” with the IRS by means of an “authorized
setoff from prepaid exemption account.” Murphy’s
“payment” was prefaced by the following explanation:

I am sending you payment in the form of a
Bonded Promissory Note along with
accepting for value each of the most recent
offers to expand funds under Public Policy
you have sent. The Secretary of Treasury has
been instructed via certified deposit order to
deposit the accepted for value offers to
expand funds under Public Policy. Please
forward payment immediately to The
Secretary of Treasury, Mr. Henry M. Paulson,
Jr., for settlement and closure as per terms
listed on each Bonded Promissory Notes.

The IRS’s collection efforts continued. In response to the
agency’s attempt to levy his personal assets, Murphy
submitted personal returns for 2003–2007. The returns for
2003 and 2004 were blank. Those for 2005–2007 claimed
overpayments of approximately $462,000, $460,000 and
$314,000, respectively; each of those returns lists the full
amount of the reported overpayment as the “[a]mount . . . you
want refunded to you” and provides routing and account
numbers for that purpose. No money was refunded to
Murphy.

Murphy continued to correspond with the IRS over the
remainder of 2008. None of the correspondence included any
legitimate form of payment.
6 UNITED STATES V. MURPHY

B. Murphy’s 2008 Conviction

Meanwhile, in February 2008, Murphy attempted to
bypass security at San Diego International Airport by
presenting fraudulent diplomatic papers. He was arrested and
charged with making false statements to federal officers and
related crimes. He proceeded to trial, waiving his right to a
jury, and testified in his own defense. District Judge Thomas
Whelan found Murphy guilty and sentenced him to time
served and three years’ supervised release.

C. The Present Proceedings

In June 2012, Murphy was charged with (1) one count of
interfering with the administration of the tax laws, in
violation of 26 U.S.C. § 7212(a); (2) four counts of
presenting fictitious financial instruments, in violation of
18 U.S.C. § 514; and (3) three counts of presenting false
claims to the United States, in violation of 18 U.S.C. § 287.
The § 7212(a) count was premised on a series of nine discrete
acts occurring between September 2000 and the date of the
indictment. The § 514 counts charged Murphy with
presenting fictitious documents “purporting to be an actual
security or financial instrument issued under the authority of
the United States”; each count concerned one of the “bonded
promissory notes” submitted to the IRS in February 2008.
The three § 287 counts corresponded to Murphy’s personal
tax returns for 2005–2007.

Murphy moved, inter alia, to dismiss the § 7212(a) count
as time-barred and/or duplicitous. The district court denied
both branches of the motion.
 UNITED STATES V. MURPHY 7

The case proceeded to trial. Murphy offered character
witnesses to attest to his honesty and also testified in his own
defense. Evidence of Murphy’s 2008 conviction for making
false statements to federal officers was introduced during
cross-examination of one of the character witnesses and again
during cross-examination of Murphy.

Murphy moved for a judgment of acquittal, which was
denied. The district court then instructed the jury. As
pertinent here, Murphy raised no objections to the
instructions given.

The instructions on the § 7212(a) count informed the jury
that it “must agree that the defendant committed at least one
of the [nine acts listed in the indictment] and must agree on
which listed act he or she committed.” Although the
instructions did not make reference to the dates of the various
acts, the verdict form asked the jury to state whether it found
that Murphy has “committed at least one of the act or acts
charged after June 21, 2006, with all of us agreeing
unanimously as to at least one act after that date.”

With respect to the § 514 counts, the district court told the
jury that the government had to prove, inter alia, that “[t]he
defendant passed, uttered or made or possessed a specified
security that was false or fictitious.” It did not state that the
specified security had to purport to be issued “under the
authority of the United States,” or explain what that phrase
meant.

Finally, the instruction on the § 287 counts required the
government to prove that Murphy knowingly presented a
claim to the United States that was false, fictitious or
fraudulent as to a material fact. Although the instruction
8 UNITED STATES V. MURPHY

emphasized that the claim had to be “against” the United
States, it did not inform the jury that an attempt to reduce tax
liability would not constitute a claim.

During summation, defense counsel argued that Murphy
had a good-faith belief in the legality of his conduct. In
rebuttal, the government asked the jury to consider Murphy’s
credibility. In that regard, the prosecution offered the
following:

[Defense counsel] said no one would call
[Murphy] a liar. No one would call him
deceitful.

But you have now heard the evidence in this
case, and you know that that is just plain
wrong. That Dr. Murphy sat in that same
witness chair in another courtroom in this
building and testified at his prior trial about
his beliefs, about being a diplomat and an
ambassador and why he was at the airport.
And you have heard the evidence that he was
convicted. He may have had those beliefs, but
at the end of the day he was found guilty of
making a false statement to a federal officer
....

Now, as you heard in that other trial, there
was no jury. It was just a judge. That was the
person who had to decide whether to believe
Dr. Murphy, whether to find him guilty. But
in this trial you are that judge and you are the
ones who get to make that decision.
 UNITED STATES V. MURPHY 9

Defense counsel did not make a contemporaneous
objection, but moved for a mistrial after summations had
concluded. He characterized the prosecution’s rebuttal as
implying that Judge Whelan had explicitly found Murphy not
credible, and “us[ing] Judge Whelan, or a federal district
court judge, as vouching for their case.”

The district court denied the motion, but gave the jury the
following curative instruction:

For legal reasons that need not concern you,
no evidence—there is no evidence that the
judge in the 2008 case made an adverse
credibility finding, and that would not
necessarily have been a part of the prior
conviction under the circumstances of that
case.

A few hours later, the jury found Murphy guilty on all counts.
With respect to the § 7212(a) count, it unanimously found
that Murphy had committed at least one act of interference
within six years of the indictment.

Murphy subsequently made various post-trial motions.
He renewed his motions for dismissal of the § 7212(a) count,
for a judgment of acquittal, and for a mistrial. In addition, he
moved for a new trial based on claimed inadequacies in the
district court’s instructions on the § 514 and § 287 counts.
The district court denied all motions and sentenced Murphy
principally to four years’ imprisonment.

On appeal, Murphy challenges each of his convictions.
He argues that the evidence was insufficient to support the
§ 514 convictions and, alternatively, that the district court
10 UNITED STATES V. MURPHY

erred by failing to instruct the jury on an element of that
offense. He likewise claims instructional error with respect
to the § 287 charges because the district court did not instruct
the jury that an attempt to reduce tax liability is not a “claim”
within the meaning of the statute. He argues that the
§ 7212(a) charge was untimely and duplicitous. Finally, he
argues that all of the convictions were tainted by improper
references to his 2008 conviction during the government’s
rebuttal summation.

As set forth in Part II, we conclude that the evidence was
sufficient to preclude a judgment of acquittal on the § 514
counts. Because, however, it was not so overwhelming that
it negated the prejudice flowing from the lack of any
instruction that the financial instruments in question had to be
issued “under the authority of the United States,” we remand
for a new trial. We address the remainder of Murphy’s
arguments in Part III.

II

18 U.S.C. § 514 provides, in pertinent part, that

[w]hoever, with the intent to defraud[,]
passes, utters, presents, offers, brokers, issues,
sells, or attempts or causes the same, or with
like intent possesses, within the United
States[,] any false or fictitious instrument,
document, or other item appearing,
representing, purporting, or contriving
through scheme or artifice, to be an actual
security or other financial instrument issued
under the authority of the United States, a
foreign government, a State or other political
 UNITED STATES V. MURPHY 11

subdivision of the United States, or an
organization, shall be guilty of a . . . felony.

The indictment somewhat simplified this statutory string of
alternatives, alleging that Murphy

did, with the intent to defraud, pass, utter,
present, and offer, and attempt to pass, utter,
present, and offer a false and fictitious
document appearing, representing and
purporting to be an actual security or financial
instrument issued under the authority of the
United States.

The government concedes that the theory of guilt alleged in
the indictment is controlling.

As noted, Murphy argues that there was insufficient
evidence to support the convictions and, alternatively, that the
district court’s instructions omitted an element of the offense.
Both arguments center on the element that the instruments in
question must purport to have been “issued under the
authority of the United States.”

A. Sufficiency of the Evidence

Murphy’s motion for judgment of acquittal preserves his
sufficiency challenge. See United States v. Navarro Viayra,
365 F.3d 790, 793 (9th Cir. 2004). We review the district
court’s denial of that motion de novo. See United States v.
Goyal, 629 F.3d 912, 914 (9th Cir. 2010). Substantively, our
review requires us “to determine whether ‘after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
12 UNITED STATES V. MURPHY

of the crime beyond a reasonable doubt.’” United States v.
Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

The “bonded promissory notes” that Murphy sent to the
IRS purport to be “negotiable instrument[s], tendered
lawfully by [Murphy] (“Maker”)” as evidence of “debt[s] to
the Payee.” As the government points out, the notes refer to
then-Secretary of the Treasury Henry Paulson, but the most
prominent of these references makes the notes payable to his
order. Another identifies him as the “co-payee.” In addition,
they are “for credit to” the Treasury and the IRS. Thus far,
Murphy’s notes appear to be what notes typically are:
promises by the maker (Murphy) to pay the payee (Secretary
Paulson) various debts (the tax liabilities of Murphy and his
trust). Nothing about that arrangement suggests that they
were issued by the United States.

The documents accompanying the notes, however, shed
at least some light on how Murphy expected the notes to
serve as payment for his tax liabilities. His cover letter to the
IRS explained that the notes evidenced that he was “accepting
for value each of the most recent offers to expand funds under
Public Policy you have sent.” His “certified deposit order”
then directed Secretary Paulson to deposit the accepted offers
and credit them against an “authorized setoff from prepaid
exemption account.”

Murphy’s dense legalese makes it difficult to decipher his
meaning. However, the evidence—at least under the
standards of Jackson v. Virginia—does suggest that Murphy,
through a convoluted series of accounting devices, ultimately
sought to pay his taxes from an account created for him, and
 UNITED STATES V. MURPHY 13

held on his behalf, by the United States government.1 Thus
construing the evidence, a rational jury could find beyond a
reasonable doubt that the notes were issued under the
authority of the United States.

B. Instructional Error

Since Murphy did not object to the district court’s jury
instructions, we review them only for plain error. See United
States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006). For
plain-error review to result in reversal, “[t]here must be an
‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’”
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting
Fed. R. Crim. P. 52(b)). “Moreover, Rule 52(b) leaves the
decision to correct the forfeited error within the sound
discretion of the court of appeals, and the court should not
exercise that discretion unless the error ‘seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting United States v. Young, 470 U.S.
1, 15 (1985)).

The government concedes that the district court’s
omission of any mention of “under the authority of the United
States” was both error and plain. The third prong “in most

1
Murphy was apparently invoking the common tax-protester argument
that “sovereign citizens” can access virtually unlimited sums from secret
accounts created for them when the United States went off the gold
standard in 1933. See, e.g., Monroe v. Beard, 536 F.3d 198, 203 n.4 (3d
Cir. 2008). We appreciate that the premises for this argument are far-
fetched. Section 514, however, “criminalizes even bogus obligations that
a prudent person might upon consideration be unlikely to accept as
genuine, so long as those documents bear a family resemblance to actual
financial obligations.” United States v. Howick, 263 F.3d 1056, 1068 (9th
Cir. 2001).
14 UNITED STATES V. MURPHY

cases . . . means that the error must have been prejudicial.”
Olano, 507 U.S. at 734. Failure to submit an element of the
offense to the jury is potentially prejudicial because “[t]he
Constitution gives a criminal defendant the right to demand
that a jury find him guilty of all the elements of the crime
with which he is charged.” United States v. Gaudin, 515 U.S.
506, 511 (1995). It is not necessarily prejudicial, however,
see Neder v. United States, 527 U.S. 1 (1999), because “it
remains possible the jury made the necessary finding,” United
States v. Perez, 116 F.3d 840, 847 (9th Cir. 1997) (en banc)
(citation and internal quotation marks omitted). The
likelihood that this happened increases with the strength of
the government’s evidence. See Alferahin, 433 F.3d at 1158
(“Other cases have also upheld convictions rendered on
incomplete or erroneous jury instructions, but like Neder,
these cases have relied on the existence of ‘strong and
convincing evidence’ that the missing element of the crime
had been adequately proved by the prosecution.” (quoting
Perez, 116 F.3d at 848)).

Although the evidence that the “bonded promissory
notes” were issued under the authority of the United States is
sufficient to avoid a judgment of acquittal, it is not sufficient
to convince us that “the jury made the necessary finding,”
Perez, 116 F.3d at 847, or that it would have done so had it
been asked. As noted above, the notes themselves—even as
elucidated by Murphy’s cover letter—are ambivalent, and the
ambiguity was not resolved by other evidence or counsels’
summations. The government faults Murphy for failing to
offer evidence or argument that the bonds did not purport to
be issued under the authority of the United States, but it was
not Murphy’s burden to do so. Rather, it was the
government’s burden to convince the jury, beyond a
reasonable doubt, that all elements of the crime were present.
 UNITED STATES V. MURPHY 15

We are not satisfied that it did so, and therefore conclude that
Murphy has demonstrated prejudice.

We further conclude that we should exercise our
discretion to correct the error. The fourth prong of plain-error
analysis requires us to decide whether “the greater threat to
the integrity and fairness of judicial proceedings would arise
from the reversal of a conviction on flawed jury instructions
rather than from affirming an imperfect verdict.” Alferahin,
433 F.3d at 1159. Here, too, the strength of the evidence is a
factor. See Johnson v. United States, 520 U.S. 461, 470
(1997) (affirming denial of new trial because evidence of
materiality, an element of the offense, was “overwhelming”).

Murphy was undeniably denied his constitutional right to
have all elements of the crime submitted to the jury, while the
government was concomitantly relieved of its “obligation to
prove every element beyond a reasonable doubt.” Perez,
116 F.3d at 847. These are serious concerns, going to the
very heart of a criminal proceeding.2 On the other side of the
ledger, the government’s evidence that the notes purported to
be issued under the authority of the United States was not
overwhelming, leaving the nature of the notes open to debate.
As a result, the verdict of a properly instructed jury is not a
foregone conclusion. In these circumstances, we think
allowing the convictions to stand poses a greater threat to the

2
The government argues that § 514 covers a wide array of fictitious
instruments, and that Murphy was, at worst, convicted on a different
theory of guilt than that charged in the indictment. Such a conviction is
just as constitutionally infirm as a conviction on fewer than all elements.
See, e.g., United States v. Choy, 309 F.3d 602, 607 (9th Cir. 2002)
(“[D]espite Choy’s failure to object to the erroneous instruction and
clarification, the variance constitutes another legal error, and a fatal one,
in Choy’s bribery conviction.”).
16 UNITED STATES V. MURPHY

fairness and integrity of the proceeding and, therefore, vacate
them and remand for a new trial on those counts.

III

With respect to the other convictions, some of Murphy’s
claims of error were preserved; others were not. Regardless
of the standard of review, all are without merit.

A. § 287 Charges

It was not error for the district court not to instruct the
jury that an attempt to reduce tax liability is not a “claim”
within the meaning of 18 U.S.C. § 287. “[T]he filing of a
false tax return pursuant to a scheme to obtain an unjustified
tax refund is sufficient to establish a violation of presenting
a false claim against the United States.” United States v.
Miller, 545 F.2d 1204, 1212 n.10 (9th Cir. 1976), abrogated
on other grounds by Boulware v. United States, 552 U.S. 421
(2008). Murphy’s argument that he asked the IRS to credit
the amounts due to his tax liabilities for other years is belied
by the record: the returns in question included routing and
account numbers for payment to Murphy, and an IRS agent
testified that, had the returns been accepted, they would have
resulted in payments to Murphy. In any event, there is no
question that Murphy falsely claimed that the United States
owed him money; how he planned to spend it is irrelevant.
Cf. United States v. Jackson, 845 F.2d 880, 882 (9th Cir.
1988) (“Our focus must be on the substance of the
transaction, the disbursement of government funds, and not
on the timing or form of the entry in the government’s
accounting ledgers.”).
 UNITED STATES V. MURPHY 17

B. § 7212(a) Charge

The § 7212(a) charge was timely. A charge of tax
evasion under 26 U.S.C. § 7201 “is timely so long as it is
returned within six years of an affirmative act of evasion,”
even if the evasion first began outside the period. United
States v. DeTar, 832 F.3d 1110, 1113 (9th Cir. 1987). We
agree with the Fourth Circuit that the same rule applies to
interference with administration of the tax laws under
§ 7212(a). See United States v. Wilson, 118 F.3d 228, 236
(4th Cir. 1997) (“The limitations period for a violation of
§ 7212(a) . . . begins to run on the date of the last corrupt
act.”). The jury found that Murphy committed at least one act
of interference less than six years before the indictment was
returned, and we reject the argument that earlier acts of
interference should immunize Murphy from liability for a
crime occurring within the limitations period.

The § 7212(a) charge was not duplicitous because the
nine discrete acts of interference alleged in the indictment
“merely state[d] multiple ways of committing the same
offense.” United States v. Arreola, 467 F.3d 1153, 1161 (9th
Cir. 2006) (citing United States v. UCO Oil Co., 546 F.2d
833, 835 (9th Cir. 1976)). In any event, the district court’s
special unanimity instruction ensured that the jury did not
find Murphy guilty “without having reached a unanimous
verdict on the commission of a particular offense.” UCO Oil
Co., 546 F.3d at 835. Because the district court listed the
charged acts of interference immediately after instructing the
jury that the government had to prove that Murphy “acted
corruptly [and] with the intent to impede or obstruct the due
administration of justice,” it is not plausible that the jury
unanimously found that Murphy committed a particular act
without also agreeing that he did so with the requisite intent.
18 UNITED STATES V. MURPHY

C. Rebuttal Summation

Finally, with regard to the government’s rebuttal
summation, Murphy’s 2008 conviction for making false
statements to federal officers was relevant to his credibility,
a matter placed squarely in issue by Murphy’s testimony that
he held a good-faith belief that his actions were legal. The
prosecutor’s comments accurately recounted the facts leading
up to the conviction, and she disclaimed what Murphy calls
the “clear implication” that the jury should defer to Judge
Whelan’s assessment of Murphy’s credibility. Finally, even
if the government’s rebuttal summation had been improper,
we are satisfied that it was harmless in light of the district
court’s curative instruction and the numerous other bases for
questioning Murphy’s bona fides.

IV

For the foregoing reasons, we vacate the § 514
convictions and affirm the others. Accordingly, we vacate
the district court’s judgment and remand for a new trial on the
§ 514 counts, as well as for resentencing upon either the
completion of the new trial or the government’s election to
dismiss those counts.

AFFIRMED in part, VACATED in part, and
REMANDED.