United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS COUNTS 4 AND 5
William J. Martínez United States District Judge
matter is before the Court on Defendant Daryl Francis
Yurek's (“Defendant”) Motion to Dismiss
Counts 4 and 5 of the Indictment. (ECF No. 146). For the
reasons explained below, the Motion is denied.
Indictment in this case alleges that on or about September
10, 2009 and March 30, 2010, Defendant submitted two Form
433-As to the Internal Revenue Service (“IRS”).
Form 433-A is a form used by IRS titled “Collection
Information Statement for Wage Earners and Self-Employed
Individuals.” (ECF No. 1 at 13-14.)
Government charges that these submissions by Defendant
contained knowingly false information and were verified by
Defendant as written declarations made under the penalties of
perjury. (Id.) Specifically, the Government alleges
that Defendant answered “No” to the question,
“In the past 10 years, have any assets been transferred
by the individual for less than full value?”
(Id.) However, the Government charges that Defendant
had, in fact, made such transfers, by transferring stock to
his sons and to one of his affiliated companies for less than
full value. (Id.) Based on those allegations, Counts
4 and 5 of the Indictment charge that Defendant violated 26
U.S.C. § 7206(1) of the Internal Revenue Code
(“Declaration under penalties of perjury”).
Counts 4 and 5, Defendant is charged under the following
Any person who-
(1) Declaration under penalties of perjury.-Willfully makes
and subscribes any return, statement, or other document,
which contains or is verified by a written declaration that
it is made under the penalties of perjury, and which he does
not believe to be true and correct as to every material
* * *
shall be guilty of a felony and, upon conviction thereof,
shall be fined not more than $100, 000 ($500, 000 in the case
of a corporation), or imprisoned not more than 3 years, or
both, together with the costs of prosecution.
26 U.S.C. § 7206(1).
instant Motion argues these charges should be dismissed
pursuant to United States v. Levy, 533 F.2d 969,
973-75 (5th Cir. 1976). In Levy, defendant was
convicted under § 7206(1) based on having signed an IRS
Form 433-AB, and the Fifth Circuit addressed “whether
Form 433-AB is a ‘statement or other document'
within the contemplation of [§ 7206(1)].” 533 F.2d
at 970. The court acknowledged that the statute uses the
words “statement” and “other
document” “with no limiting exception, ”
and that “[i]f we had only to look to the unadorned
words, ‘statement' and/or ‘document, ' no
difficulty, at least as to the meaning of the statute, would
be involved.” Id. at 972. However, the
Levy court went on to review the
“inconclusive” legislative history, id.
at 972-73, noted that “[c]riminal statutes must be
strictly construed, id. at 973, and reasoned that
because § 7206(1) “is a perjury statute, the party
taking the statement [i.e., the IRS officer] must
have the authority to take that particular statement,
id. The court then held that § 7206(1) applies
only “to any statement or document required by the
Internal Revenue Code or by any regulation lawfully
promulgated for the enforcement of the Code, ” and
therefore reversed the defendant's conviction because
Form 433-AB had not been required by statute or regulation.
Id. at 974-75.
Defendant acknowledges that other courts have since disagreed
with the result and the rationale of Levy, but
argues that “the issue is undecided” in the Tenth
Circuit. This is not a completely accurate characterization,
however. In United States v. Franks, 723 F.2d 1482,
1485-86 (10th Cir. 1983), the Tenth Circuit reviewed a
conviction under § 7206(1) for giving false answers on
IRS Form 1040 schedules and rejected an argument based on
Levy, noting, “[w]e are not ...