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. Tanios appeals,
urging insufficiency of the evidence; 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. The
1
18 U.S.C. § 371, 26 U.S.C. § 7201.
evidence establishes that Boulus, using the assumed name Adolphe Moussa,2 formed
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.
2
Boulus managed to secure a Texas identification card in the name of 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
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-in-
chief 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 taxes6 and committed at least one overt act
in furtherance of their agreement.7 Moussco was obligated to pay the excise taxes. Tanios
was fully aware that Moussco was a dummy corporation which Boulus set up for the
purpose, inter alia, of assisting in his tax evasion 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 evasion of state fuel excise taxes. These facts were fully developed on cross-
examination. Both denied any promise or expectation of leniency in the pending state court
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
actions as a consequence of their testimony in the instant prosecution. The defense8
requested an instruction cautioning the jury on its assessment of the 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 against a defendant for some
personal advantage, 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 witness 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 that testimony
beyond a reasonable doubt.
We conclude that this instruction is a sufficient 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 reversible error occurred when the jury revealed the
particulars of its deadlocked vote in communicating with the trial judge. Our precedents
8
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), cert. denied, 115 S.Ct.
1266 (1995).
10
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
reject this contention.11 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 even a lesser number of you are for
acquittal, the other jurors ought seriously 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 several 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 charge12 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 Allen 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 its
11
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).
13
United States v. Heath, 970 F.2d 1397 (5th Cir.), cert. denied, 507 U.S. 1004 (1993).
5
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 Allen charge as given
did not amount to coercion of the jury to return a verdict of guilty. This assignment of error
fails.
AFFIRMED.
6