The Fifth, Sixth and Eleventh Circuits have found instances of § 6103(h)(5) noncompliance to be harmless error in view of voir dire examination into juror audit history. United States v. Masat, 896 F.2d 88 (5th Cir. 1990) and United States v. Spine, 945 F.2d 143 (6th Cir. 1991) both found error in the district court's refusal to grant a continuance to enable the defendant to receive more complete juror audit information following defendant's timely request despite his receiving six year audit histories. However, both found the error to be harmless in light of relevant voir dire examination.

Copple urges this Court to adopt the Sinigaglio view of § 6103(h)(5). The government counters with United States v. Spine, 945 F.2d 143 (6th Cir. 1991), in which the Sixth Circuit stated that § 6103(h)(5) does not require an investigation extending to all of the years the prospective jurors paid taxes. Spine held that the requirements of § 6103(h)(5) are met as long as the court orders an investigation and, if the IRS cannot locate all of jurors' histories from the time they began paying taxes by the time of trial, the district court obtains such information on voir dire.

However, other circuits have attempted to define the scope of § 6103(h)(5) and the proper procedures to be used thereunder. See United States v. Huguenin, 950 F.2d 23 (1st Cir. 1991); Schandl, 947 F.2d at 466-69; United States v. Spine, 945 F.2d 143, 144-50 (6th Cir. 1991); United States v. Lusseir, 929 F.2d 25, 30 (1st Cir. 1991); United States v. Sinigaglio, 942 F.2d 581, 583 (9th Cir. 1991). In Spine, the Sixth Circuit, after reviewing the relevant case law and the legislative history of § 6103(h)(5), persuasively answered the question of whether a defendant is entitled to a full IRS response prior to trial:

Id. The filing of false W-4 forms falls comfortably within the broad parameters established in Spies. Indeed, in United States v. Spine, 945 F.2d 143 (6th Cir. 1991), a panel of this circuit concluded that "the government proved specific acts of evasion on the part of [the defendant], such as filing a false W-4 form with his employer or depositing monies in a bank account in [another person's name]." Spine, 945 F.2d at 149 (emphasis added); see also, e.g., United States v. King, 126 F.3d 987, 990 (7th Cir. 1997); United States v. Doyle, 956 F.2d 73, 75 (5th Cir. 1992).

To the contrary, the record shows that there was plenty of time for the IRS to supply the required information, which was made available four days after the release of the venire list and twelve days before jury selection. Under United States v. Spine, 945 F.2d 143, 148 (6th Cir. 1991), a defendant was entitled to have the venire information disclosed in time to "permit the IRS to conduct a search of its records for potential jurors' tax histories." The time allowed in this case was sufficient for that purpose.

"The legislative history of § 6103(h)(5) reflects that Congress sought to eliminate the prior informational advantage enjoyed by the government regarding a potential juror's tax history." United States v. Spine, 945 F.2d 143, 147 (6th Cir. 1991). Prior to passage of § 6103(h)(5), the government was able to obtain tax information on prospective jurors but tax defendants were not. In passing the Tax Reform Act of 1976, of which § 6103(h)(5) was one part, Congress decided to allow the government to maintain access to the information as long as defendants had access to the same information.

The Second, Fifth, and Sixth Circuits have concluded the denial of a taxpayer defendant's request for a continuance to obtain additional section 6103(h)(5) information is not reversible when the district court conducts an appropriate voir dire. United States v. Droge, 961 F.2d 1030, 1034 (2d Cir. 1992); United States v. Masat, 948 F.2d 923, 927 (5th Cir. 1991); United States v. Spine, 945 F.2d 143, 147-48 (6th Cir. 1991). But see United States v. Sinigaglio, 942 F.2d 581, 583 (9th Cir. 1991).

It concluded that a citation to 26 U.S.C. § 6012 was unnecessary because the information "stated all of the elements of the offense . . . and was sufficient to notify him of the offense with which he was charged." Id. (citing United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir. 1978)); seealso United States v. Roberts, 9 Fed. App'x 573, 574-75 (8th Cir. 2001) ("The government was not required to cite [] § 6012 in the indictment in order to give [defendant] notice of the charges filed against him.") (quoting United States v. Vroman, 975 F.2d 669, 670-71 (9th Cir. 1992) ; United States v. Spine, 945 F.2d 143, 149 (6th Cir. 1991) (same) (citing Kahl, 583 F.2d at 1351). Applying the Sixth Circuit's reasoning from Gaumer, the Original Indictment, even without the citation to 26 U.S.C. § 6012, was sufficient to apprise Defendant of that with which he is charged.

Some circuits have ruled upon this issue because the defendant has received the potential juror names from the district court, but has not received some or all of the information requested from the Secretary of the Treasury prior to the date of trial and the trial court proceeded with the trial. See United States v. Droge, 961 F.2d 1030, 1037 (2d Cir. 1992); United States v. Spine, 945 F.2d 143 (6th Cir. 1991); United States v. Masat, 896 F.2d 88, 94-95 (5th Cir. 1990). Other circuits have ruled upon this issue because the trial court has refused to provide information on the potential jury pool.

Furthermore, this court has admitted, under Rule 803(10), IRS computer records similar to the IMF transcript that "disclose[d] the `nonoccurrence . . . of a matter.'" United States v. Spine, 945 F.2d 143, 149 (6th Cir. 1991) (citing United States v. Bowers, 920 F.2d 220, 223 (4th Cir. 1990) and United States v. Neff, 615 F.2d 1235, 1242 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980)). Thus, the evidence presented to the district court was in conflict.