                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2002

USA v. Brennan
Precedential or Non-Precedential:

Docket 0-2381




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Recommended Citation
"USA v. Brennan" (2002). 2002 Decisions. Paper 134.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/134


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                                          NOT PRECEDENTIAL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
