                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2006

USA v. Farnsworth
Precedential or Non-Precedential: Precedential

Docket No. 06-1425




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                                               PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 06-1425


                UNITED STATES OF AMERICA,

                            Appellant

                                v.

                  ARTHUR L. FARNSWORTH




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                      (D.C. No. 04-cr-00707)
            District Judge: Honorable John R. Padova




                      Argued April 27, 2006

          Before: AMBRO and FUENTES, Circuit Judges,
                   and IRENAS,* District Judge.

                      (Filed August 8, 2006)




      *
       Honorable Joseph E. Irenas, United States District Court
Judge for the District of New Jersey, sitting by designation.
Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Ara B. Gershengorn (Argued)
Amy L. Kurland
  Assistant United States Attorneys
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellant

Peter Goldberger (Argued)
Pamela A. Wilk
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003
       Counsel for Appellee

                   _______________________

                   OPINION OF THE COURT
                   _______________________


FUENTES, Circuit Judge.

        On the morning that Arthur L. Farnsworth’s trial for tax
evasion was scheduled to begin, the District Court announced its
intention to give a jury instruction that the Government strongly
opposed. When the District Court declined to reconsider its ruling,
the Government immediately appealed and obtained a stay of the
proceedings after a jury was selected but before it was sworn. The
Government urges us to reverse the District Court’s ruling or, in
the alternative, to issue a writ of mandamus instructing the District
Court to give a different jury instruction. Because we hold that we
do not have jurisdiction and that a writ of mandamus is not
appropriate, we will dismiss the Government’s appeal.

                                 2
                          I. Background

       On November 4, 2004, a federal grand jury returned a three-
count indictment charging Arthur L. Farnsworth (“Farnsworth”)
with income tax evasion, in violation of 26 U.S.C. § 7201.
Specifically, the indictment charges Farnsworth with willfully
attempting to “evade and defeat income tax due and owing by him
to the United States of America” for the calendar years 1998
through 2000 by (1) failing to make an income tax return as
required by law; (2) failing to pay to the Internal Revenue Service
(“IRS”) the income tax due; and (3) concealing and attempting to
conceal his true and correct income. The indictment further
charges that Farnsworth transferred ownership of his assets to
fraudulent trusts, encumbered his assets, and hid his money in
overseas bank accounts.

        Farnsworth’s trial was scheduled to begin on Monday,
January 30, 2006. Three days before trial, the District Court held
a pre-trial conference to address outstanding motions and proposed
jury instructions. During the conference, the District Court
discussed whether the indictment charged Farnsworth with both
methods of tax evasion—attempted evasion of the assessment of
taxes and attempted evasion of the payment of taxes—as well as
whether proof of an assessment is necessary to prove attempted
evasion of payment.1 The District Court sought additional briefing
on these issues, which was provided by both parties on Sunday,
January 29, the day before the trial was to begin.

       On the day of trial, prior to jury selection, the District Court
orally addressed the issues raised at the previous Friday’s
conference. First, the District Court ruled that the indictment
charged Farnsworth with both methods of tax evasion. Second, the



       1
         Under federal tax law, “assessment is a prescribed
procedure for officially recording the fact and the amount of a
taxpayer’s administratively determined tax liability, with
consequences somewhat similar to the reduction of a claim to
judgment.” Cohen v. Gross, 316 F.2d 521, 522-23 (3d Cir. 1963)
(citations omitted).

                                  3
District Court ruled that, based on its reading of Third Circuit case
law, it would instruct the jury that in order to prove attempted
evasion of payment the Government must show that there had been
either a self-assessment or an assessment by the IRS. In discussing
its ruling on this issue, which gives rise to the Government’s
appeal, the District Court explained:

       The . . . issue is whether or not the law in the Third
       Circuit requires an assessment, either a self-
       assessment or an assessment from the IRS[,] in order
       for there to be an evasion of payment charge. And
       I’ve read the government’s submissions in that
       regard. The government recognizes the language in
       the Third Circuit which would require an assessment
       in order to maintain an evasion of payment charge.

              [The] Government also points out law in
       other circuits[,] especially United States v. Dack[,
       747 F.2d 1172 (7th Cir. 1984) (per curiam)]. We’re
       bound by the law of the Third Circuit and if there’s
       any weakness in the reasoning [I]’ll leave that for the
       government to argue directly to the Court of
       Appeals. But [I] do rule that evading payment does
       require in the Third Circuit an assessment, either self
       assessment or assessment by the Internal Revenue
       Service.

               Ordinarily, . . . [I] would make a
       determination as to whether or not the evidence
       establishes a claim for evasion of payment under
       Rule 29, but the defendant has raised it up front and
       that is the Court’s ruling and what does the
       Government intend to do in view of the Court’s
       ruling in that regard? . . . . You have to establish that
       there was an assessment in order to proceed on the
       evading payment charge which I have concluded is
       in the indictment, of course along with evading
       assessment.

(JA 36-37 (emphasis added).) The Third Circuit decisions relied

                                  4
upon by the District Court were United States v. McGill, 964 F.2d
222 (3d Cir. 1992), and United States v. McLaughlin, 126 F.3d 130
(3d Cir. 1997).

       After a lunch break, the Government asked the District
Court to reconsider its determination that proof of either a self-
assessment or a formal assessment by the IRS is necessary to prove
attempted evasion of payment. The Government also informed the
District Court that there was no evidence that Farnsworth self-
assessed or that the IRS had made a formal assessment for the years
charged. The District Court responded by stating the following:

       [T]he defendant has argued that the Government has
       no case for willfully attempting to evade the payment
       of tax because an assessment would be required to
       establish[] a tax due. And, then subsequent to that[,]
       an evasion. . . . And, defendant asserted that there
       was no such assessment either by way of self-
       assessment to the filing of returns or assessment
       through the Internal Revenue Service.

             In connection with that point I stated in court
       this morning, . . . that I believed that that form of
       misconduct as a violation of this offense, namely the
       form that deals with evading—evading payment,
       would require an assessment of some type.

(JA 50-51.)

        The District Court also rejected the Government’s argument
that the ruling essentially excised the attempted evasion of payment
charge from Farnsworth’s indictment. To that end, the District
Court reiterated that it: had dismissed no part of the indictment; had
not stricken or redacted any language from the indictment; had
construed the indictment broadly in the Government’s favor; had
excluded no evidence the Government might wish to present; had
not determined or even suggested that any of the Government’s
proposed evidence might be held irrelevant; and had not held the
evidence the Government might present at trial to be insufficient to
prove any offense. (JA 63-65.) As the District Court explained:

                                  5
“[I] have made no ruling other than the fact that the indictment is
both broad enough and specific enough to include both forms of
misconduct [i.e., attempted evasion of assessment and attempted
evasion of payment]. Other than that ruling, [I]’ve made no other
ruling with respect to the indictment.” (JA 65.) The District Court
also noted, “I don’t regard that as a dismissal. I don’t regard my
ruling to have been a ruling with respect to eliminating a count in
the indictment. The only thing we’ve been talking about is
sufficiency of the evidence.” (JA 64 (emphasis added).)

       Following the District Court’s denial of the Government’s
reconsideration motion, the Government filed a notice of appeal
and asked the District Court for a stay of the proceedings to permit
the appeal to proceed. The District Court, over Farnsworth’s
objection, granted the stay, finding that Farnsworth had not
demonstrated that the Government’s appeal was frivolous. A jury
was selected by the parties, but not sworn.

       On January 31, 2006, Farnsworth filed a motion in this
Court for summary dismissal of the appeal. The next day,
Farnsworth filed an emergency motion in this Court to vacate the
stay entered by the District Court. This Court denied both of
Farnsworth’s motions. The District Court then dismissed the jury
that had been selected.

                          II. Discussion

        The Government appeals what it believes is an erroneous
pre-trial oral ruling in which the District Court explained how it
intended to instruct the jury with respect to the crime of attempted
evasion of payment of a tax. The Government argues that we have
jurisdiction to consider its appeal under 18 U.S.C. § 3731 because
the District Court’s ruling will preclude it from proving one of the
theories of liability set forth in Farnsworth’s criminal indictment.
The Government further argues that, even if we lack jurisdiction to
consider its appeal, we should issue a writ of mandamus to correct
the District Court’s erroneous view of what the Government must
show to prove attempted evasion of payment of a tax. We address
these arguments in turn.



                                 6
       A.     Jurisdiction

      The Criminal Appeals Act, 18 U.S.C. § 3731, establishes
when the United States can appeal in criminal cases. That section
provides:

       In a criminal case an appeal by the United States
       shall lie to a court of appeals from a decision,
       judgment, or order of a district court dismissing an
       indictment . . . as to any one or more counts, or any
       part thereof, except that no appeal shall lie where the
       double jeopardy clause of the United States
       Constitution prohibits further prosecution.

       ....

       The provisions of this section shall be liberally
       construed to effectuate its purposes.

18 U.S.C. § 3731. The issue presented here is whether the District
Court’s oral ruling “dismissed” Farnsworth’s indictment as to “any
one or more counts, or any part thereof,” such that we have
jurisdiction under § 3731.2

       Section 3731 was “intended to remove all statutory barriers
to Government appeals and to allow appeals whenever the
Constitution would permit.” United States v. Wilson, 420 U.S.
332, 337 (1975). Despite the breadth of § 3731, however, we
“have reaffirmed the ‘well-settled rule that an appeal by the
prosecution in a criminal case is not favored and must be based



       2
        Farnsworth argues briefly that the District Court’s ruling is
“non-final and virtually advisory” and therefore not a “decision,
judgment, or order” under § 3731. In applying § 3731, we look to
the actual effect of the ruling, not its form. See United States v.
Martin Linen Supply Co., 430 U.S. 564, 567 n.4 (1977) (explaining
that “the form of the ruling is not dispositive of appealability”). In
doing so, we believe that Farnsworth’s argument relates to whether
the ruling constitutes a “dismissal,” which we address below.

                                  7
upon express statutory authority.’” United States v. Gilchrist, 215
F.3d 333, 335-36 (3d Cir. 2000) (citation omitted).

        The Government argues that we have jurisdiction over the
District Court’s ruling because it will preclude the Government
from proving the attempted evasion of payment theory of tax
evasion set forth in Farnsworth’s criminal indictment. The
Government finds support in United States v. Serafini, in which we
determined that we had appellate jurisdiction over a district court
order “excising a portion of a count which, if not excised, would
offer legal grounding for criminal culpability separate from
whatever culpability might accrue from any portion or portions of
the count that the trial court does not determine to be deficient as
a matter of law.” 167 F.3d 812, 816 (3d Cir. 1999). The
Government contends that, in light of its concession that there was
no assessment in Farnsworth’s case, the District Court’s ruling
essentially “excised” the attempted evasion of payment theory from
the indictment. See id.; see also United States v. Margiotta, 662
F.2d 131, 138-39 (2d Cir. 1981) (finding jurisdiction under § 3731
where district court ruling had the “practical effect of eliminating
an independent basis upon which a conviction could be secured”).
Thus, because there is no question that the Government’s theory of
liability will fail, and because an appeal here would not violate the
Constitution’s double jeopardy clause, the Government contends
that this Court has jurisdiction under § 3731 to consider its
challenge to the District Court’s proposed jury instruction.

       Although the Government’s prediction that it will fail to
meet its burden of proof under the requirements for conviction
articulated in the District Court’s proposed jury instruction may be
correct, the District Court’s ruling simply does not constitute a
“dismissal” of any part of the indictment under § 3731. The ruling
does not preclude the Government from attempting to prove at trial
any offense or any theory alleged in the indictment. Instead, it
merely announces the District Court’s view on a point of law to be
covered in the jury instructions, thus advising the parties of a fact
which the District Court determined is necessary to sustain a
conviction on the attempted evasion of payment theory of tax
evasion.



                                 8
        Our decision in United States v. Pharis, 298 F.3d 228 (3d
Cir. 2002) (en banc), does not compel us to rule otherwise. There,
after rejecting the Government’s argument that a plainly erroneous
evidentiary ruling in a criminal case “amounted to” a dismissal for
purposes of jurisdiction under § 3731,3 we held that we lacked
jurisdiction to hear the Government’s appeal based on the Double
Jeopardy Clause.4 Id. at 235-36, 244. In explaining why the
double jeopardy inquiry was relevant, we took note of the Supreme
Court’s observation in Wilson that § 3731 was “intended to remove
all statutory barriers to Government appeals and to allow appeals
whenever the Constitution would permit.” Wilson, 420 U.S. at
337. We thus acknowledged the “plausible argument” that the
Supreme Court’s observation in Wilson “requires us to move
directly to the Constitution in determining our jurisdiction over
appeals from orders terminating prosecutions”—in other words,
that we might have jurisdiction over appeals from such orders
whenever double jeopardy is not implicated. Pharis, 298 F.3d at
241; see also Gilchrist, 215 F.3d at 337 (“[W]hat is listed [in
§ 3731] may be merely illustrative and not exhaustive, given that
the statute expressly forbids its application only when double
jeopardy is implicated.”).

       The Government urges us to adopt the expansive view of
jurisdiction referred to in Pharis and to shift our jurisdictional
inquiry from whether the District Court’s ruling was a “dismissal”
under § 3731 to whether double jeopardy is implicated. We decline
to do so. As we noted in Pharis, despite the Supreme Court’s
observation in Wilson, it has recognized “some undefined


       3
          Like the ruling challenged here, the district court ruling in
Pharis “did not preclude the Government from attempting to prove”
any charged offense using any evidence it might have. 298 F.3d at
236. We thus concluded that the Government’s “concern . . . that
the District Court’s order would [prevent] it from proving [its case]
. . . cannot be the basis for transforming an evidentiary ruling into
a dismissal.” Id.
       4
       The Double Jeopardy Clause of the Fifth Amendment
provides that no person shall “be subject for the same offense to be
twice put into jeopardy of life or limb.” U.S. Const. amend. V.

                                  9
limitation other than the obvious Double Jeopardy Clause.” Pharis,
298 F.3d at 241 n.9 (noting that the Supreme Court stated in
another context, without explanation, “the Government is not
authorized to appeal from all adverse rulings in criminal cases”)
(quoting Sanabria v. United States, 437 U.S. 54, 67 n.21 (1978)).

        Although jeopardy has not attached in Farnsworth’s case,
we are confident that this appeal of the District Court’s pre-trial
ruling disclosing its intended jury instructions is not the type of
appeal over which we have jurisdiction.5 Such a ruling might be
reconsidered or modified by the District Court before the end of the
trial, it may be mooted by any number of unanticipated
developments at trial, or it might prove harmless, even if
erroneously delivered. Accordingly, we hold that we do not have
jurisdiction over the Government’s appeal.

       B.     Writ of Mandamus

       Notwithstanding our lack of jurisdiction over the
Government’s appeal, the Government maintains that we should
proceed by writ of mandamus under 28 U.S.C. § 1651.6 For this
Court to grant mandamus relief, each of the following must be
present: (1) a clear error of law; (2) a lack of adequate, alternate


       5
        We have already suggested as much, albeit in dicta. In
United States v. Wexler, 31 F.3d 117 (3d Cir. 1994), we granted a
writ of mandamus to correct a proposed jury instruction that we
found to be clearly erroneous. In applying the test for mandamus,
the Wexler Court found that the Government had no alternative
avenue for relief because “appeal from the erroneous instruction is
not an option for the government.” Id. at 128.
       6
       Section 1651 states:
      (a) The Supreme Court and all courts established by
      Act of Congress may issue all writs necessary or
      appropriate in aid of their respective jurisdictions
      and agreeable to the usages and principles of law.
      (b) An alternative writ or rule nisi may be issued by
      a justice or judge of a court which has jurisdiction.
28 U.S.C. § 1651.

                                10
remedy (either before or after trial); and (3) an anticipated
“irreparable injury.” See United States v. Wexler, 31 F.3d 117, 128
(3d Cir. 1994). Even where the legal prerequisites for mandamus
are present, an appellate court exercises discretion whether to issue
a writ of mandamus. Cheney v. United States Dist. Court, 542 U.S.
367, 381 (2004).

        “The remedy [of appellate mandamus] has been termed ‘a
drastic one, to be invoked only in extraordinary situations.’”
United States v. Santtini, 963 F.2d 585, 593 (3d Cir. 1992) (citation
omitted). In particular, the use of mandamus in criminal cases is
both “extraordinary” and “exceptional.” In re United States, 273
F.3d 380, 385 (3d Cir. 2001). However, “[w]hile appellate courts
must be parsimonious with the writ, it is also true that some
flexibility is required if the extraordinary writ is to remain available
for extraordinary situations.” Wexler, 31 F.3d at 129 (internal
quotation marks and citation omitted). Thus, mandamus “may
issue to correct clear abuses of discretion, to further ‘supervisory
and instructional goals,’ and to resolve ‘unsettled and important
issues.’” Id. (citation omitted).

       We have recognized the difficult situation faced by the
Government where, as here, it seeks to challenge a district court’s
proposed jury instruction. In Wexler, for example, the Government
challenged the district court’s determination, stated pre-trial, that
it would give a particular jury instruction in a tax fraud
prosecution.    After determining that the Government had
established that the jury instruction was clearly erroneous, the
Wexler Court held that all of the prerequisites for the issuance of
a writ were present, explaining:

              We find in this case that the government has
       no alternative avenue of relief. The government
       sought rehearing on the intended jury instructions,
       but rehearing was denied. For double-jeopardy
       reasons, no appeal will be possible once trial begins.
       The government will not be able to interrupt the trial
       by filing an appeal or a renewed petition for
       mandamus when the district judge commences to
       give the erroneous instruction. And if—as the

                                  11
       government anticipates, and Wexler does not
       contest—jury deliberations guided by the erroneous
       instruction end in an acquittal, the injury to the
       government will be irremediable.

Id. at 128 (footnote omitted). Wexler further clarified that, to the
extent that the district court order “would hamper the government’s
ability to enforce the tax laws,” the order “present[ed] a special
situation which militat[ed] in favor of mandamus review.” Id. at
128 n.16. Ultimately, the Wexler Court found that mandamus was
appropriate because “the adoption of a clearly erroneous jury
instruction that entails a high probability of failure of a
prosecution—a failure the government could not then seek to
remedy by appeal or otherwise—constitutes the kind of
extraordinary situation in which we are empowered to issue the
writ of mandamus.” Id. at 129.

       Turning to the instant case, we must first determine, as a
threshold matter, whether the Government has proven that the
District Court committed a clear error of law when it ruled that it
would instruct the jury that the existence of an assessment is a
prerequisite to a conviction for attempted evasion of payment under
26 U.S.C. § 7201. See id. at 128.

       Section 7201 penalizes “[a]ny person who willfully attempts
in any manner to evade or defeat any tax imposed by this title or the
payment thereof.” 26 U.S.C. § 7201. We have explained that
“[e]ssential to conviction under 26 U.S.C. § 7201 is 1) the
existence of a tax deficiency, 2) an affirmative act constituting an
attempt to evade or defeat payment of the tax, and 3) willfulness.”
United States v. Voigt, 89 F.3d 1050, 1089 (3d Cir. 1996) (internal
quotation marks and citation omitted). The Supreme Court has
recognized that “§ 7201 includes the offense of willfully
attempting to evade or defeat the assessment of a tax as well as the
offense of willfully attempting to evade or defeat the payment of
a tax.” Sansone v. United States, 380 U.S. 343, 354 (1965)
(emphasis added); see also McLaughlin, 126 F.3d at 136
(describing attempted evasion of assessment and attempted evasion
of payment as “two distinct offenses”).



                                 12
        The Government contends that the District Court’s ruling
that proof of an assessment is required in order to establish
attempted evasion of payment under § 7201 is “manifestly
incorrect.” (Appellant’s Br. at 31.) The Government argues that,
as in Wexler, the District Court’s proposed jury instruction has the
effect of erroneously eliminating one of the indictment’s theories
of liability. The Government thus claims that it faces the same
predicament as in Wexler; that is, unless this Court acts before a
jury is sworn, the Government will be without recourse to correct
what it believes is a clear error of law.

       The only two Third Circuit opinions to discuss whether
attempted evasion of payment requires an assessment have
commented in dicta that it does. In McGill, we examined in detail
the sufficiency of the evidence and the accuracy of the jury
instructions in a case in which a lawyer had been convicted of
attempted evasion of payment after filing accurate tax returns. See
964 F.2d 222. In discussing the offense, we observed that

       [e]vasion of payment cases are rare, and the required
       affirmative act generally occurs after the filing, if
       there is a filing at all. United States v. Mal, 942 F.2d
       682, 687 (9th Cir. 1991) (evasion of payment
       “involves conduct designed to place assets beyond
       the government’s reach after a tax liability has been
       assessed”) (emphasis added).

Id. at 230. Five years later, in McLaughlin, we agreed with
defendants who argued that an assessment was a necessary
prerequisite to prosecution for attempted evasion of payment:

       Had the government charged the [defendants] with
       evasion of payment, it would have had to prove a
       valid assessment from which the [defendants] hid
       assets. United States v. England, 347 F.2d 425, 430
       (7th Cir. 1965). The government did not prove that
       element.

126 F.3d at 136. Nonetheless, because the Court held that the
indictment also charged attempted evasion of assessment, the Court

                                 13
upheld the McLaughlins’ convictions under § 7201 even though no
assessment took place. See id.

        A number of our sister Courts of Appeals have reached a
conclusion that conflicts with our dicta in McGill and McLaughlin,
however. For example, in rejecting a defendant’s theory that proof
of a valid assessment is essential to an attempted evasion of
payment charge, the Eighth Circuit stated: “[W]e agree with cases
holding that, while an assessment may be used to prove a tax
deficiency in a payment evasion case, an assessment is not a
necessary element of a payment evasion charge.” United States v.
Silkman, 156 F.3d 833, 837 (8th Cir. 1998). Similarly, in United
States v. Voorhies, the Ninth Circuit rejected a defendant’s
argument that “prior to a final administrative determination of tax
liability, the trier of fact can only speculate as to whether a
defendant’s conduct constitutes evasion of payment of a tax not yet
due.” 658 F.2d 710, 714 (9th Cir. 1981). The First Circuit has
rejected a similar argument as well. See United States v. Hogan,
861 F.2d 312, 315-16 (1st Cir. 1988) (rejecting defendant’s
argument that “without a proper assessment of the tax due and
owing, the government cannot prove an attempted evasion”).
Based on these cases, the Government contends that the District
Court’s reliance on two Third Circuit cases that briefly suggest that
an assessment is required to prove attempted evasion of payment
was clear error because the relevant language in those cases is dicta
and places the Third Circuit in conflict with other Courts of
Appeals that have addressed the issue.7



       7
         The Sixth and Seventh Circuits have also suggested that an
assessment is not required to prove a violation of § 7201. See
United States v. Daniel, 956 F.2d 540, 542 (6th Cir. 1992); United
States v. Dack, 747 F.2d 1172, 1174-75 (7th Cir. 1984) (per
curiam). As Farnsworth points out, however, those cases appear to
reject the argument that an assessment is necessary to prove the
deficiency element of attempted evasion of payment, which is not
the argument that Farnsworth advances here. See Daniel, 956 F.2d
at 542 (rejecting defendant’s argument that no deficiency arose
because there had been no assessment); Dack, 747 F.2d at 1174
(same, but in a prosecution for attempted evasion of assessment).

                                 14
       Given this relevant precedent, we agree with the
Government that the weight of authority favors its view that an
assessment is not required to prove attempted evasion of payment
under § 7201. In the end, however, in light of our own dicta in
McGill and McLaughlin, and the general lack of clarity in this area
of law,8 we cannot conclude that the District Court’s proposed jury
instruction was clearly erroneous. This case is therefore unlike
Wexler, where the Government appealed a proposed jury
instruction that conflicted with “the established law of this circuit”
as well as “the dominant line of precedent” following decisions by
the Supreme Court and another circuit. Wexler, 31 F.3d at 127.
Accordingly, we hold that the District Court did not commit a clear
error of law such that a writ of mandamus is appropriate.9


       8
     As Farnsworth points out, our dicta in McGill and
McLaughlin is not without some support. See United States v.
England, 347 F.2d 425, 430 (7th Cir. 1965) (“There is no doubt
that a valid assessment, and proof thereof, was an essential element
of [the attempted evasion of payment charge].”); United States v.
Mal, 942 F.2d 682, 687 (9th Cir. 1991) (“Evasion of payment . . .
generally involves conduct designed to place assets beyond the
government’s reach after a tax liability has been assessed. . . .”);
see also 1 Ian M. Comisky, Lawrence S. Feld & Steven M. Harris,
Tax Fraud and Evasion: Offenses, Trials, Civil Penalties ¶ 2.03[1],
at 2-6 n.20 (6th ed. 2003) (“Although a prior valid assessment may
be used to show a tax deficiency under IRC § 7201, the
government is not required to present evidence of an assessment
unless the charge involves the evasion of the payment of tax.”)
(emphasis added); but see Tax Fraud and Evasion ¶ 2.03[1], at 2-6
n.20 (“There is no requirement, however, that an administrative
assessment of the tax be made or filed before there can be a
criminal prosecution for the offenses described in IRC §§ 7201-
7207.”).
       9
        Judge Irenas agrees that a writ of mandamus is not
appropriate here because the District Court did not commit “clear
error,” but notes his belief that decisions in other circuits correctly
hold that under 26 U.S.C. § 7201 a defendant may be guilty of both
attempting to evade assessment of a tax as well as the payment
thereof, without proof of an assessment.

                                  15
                        III. Conclusion

       For the foregoing reasons, we will dismiss the
Government’s appeal for lack of jurisdiction, and we will decline
to issue a writ of mandamus.




                               16
