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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 93-5009
___________________________
UNITED STATES OF AMERICA,
Appellee,
VERSUS
CHARLES T. WICKERSHAM,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
____________________________________________________
(August 5, 1994)
Before WISDOM, DAVIS and DUHÉ, Circuit Judges.
PER CURIAM:
Charles T. Wickersham appeals his conviction of making a false
statement on his tax return. Finding no error, we affirm.
I.
Wickersham purchased a grain elevator for $100,000 in March,
1989. Two weeks later, a commissioner on the Orange County Port
and Navigation District (OCPND) suggested that the OCPND should
purchase the elevator. The OCPND was interested in acquiring a
"bagging facility," a facility capable of bagging grain for
overseas shipment by cargo vessels. The Board authorized
Commissioner Frederick to begin negotiations with Wickersham to
purchase the elevator. A OCPND attorney wrote an opinion letter

indicating that the OCPND had the authority to acquire such a
facility through purchase, lease or condemnation and reviewed this
authority with the Board.
At the end of July, Wickersham contacted his accountant and
told him that an Orange County agency was interested in acquiring
the grain elevator. Wickersham advised his accountant that he was
interested in purchasing some other property in the county. The
accountant suggested that both transactions could be accomplished
in a "like-kind exchange" which would defer the recognition of
taxes on the gain realized. Wickersham attempted to negotiate a
"like-kind exchange" involving the grain elevator and a shopping
center owned by a third party, but the third party ultimately
refused to agree to it.
On July 31, the OCPND voted to purchase Wickersham's elevator
for $450,000. Shortly after the OCPND agreed to purchase the grain
elevator, Wickersham's attorney informed the OCPND attorney that
Wickersham needed a letter of condemnation. Although the OCPND did
not use condemnation, Commissioner Frederick told the OCPND
attorney that he had threatened to use condemnation during
negotiations. The OCPND's attorney faxed Wickersham's tax attorney
a letter stating that Frederick had used the threat of condemnation
during negotiations even though the attorney only remembered
condemnation being discussed during a Board meeting as an option,
not that Frederick had actually used the threat of condemnation in
order to make the purchase.
Wickersham's 1989 tax return indicated that he had sold the
grain elevator under threat of condemnation for $450,000. The IRS
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contends that there was no threat of condemnation, and that
Wickersham owes $98,000 in taxes on the capital gain of $350,000 he
made as a result of the sale.
Wickersham, Commissioner Frederick and Commissioner Winfree
were charged with conspiracy to defraud the OCPND by selling a
grain elevator to them at an inflated price. Wickersham was also
charged with making a false statement on his tax return, namely
that the grain elevator was sold under threat of condemnation. The
jury convicted Wickersham on the tax fraud count and acquitted him
on all other charges. Wickersham raises a number of issues on
appeal which we discuss below.
II.
Wickersham first argues that the evidence was insufficient to
support his conviction. In reviewing the sufficiency of the
evidence, this court determines whether, viewing the evidence in
favor of the verdict, a rational jury could have found the
essential elements of the offense beyond a reasonable doubt. U.S.
v. Sparks, 2 F.3d 574, 579 (5th Cir. 1993), cert. denied, 114 S.Ct.
720 (1994).
The jury convicted Wickersham of filing a false tax return in
violation of 26 U.S.C. § 7206(1). To convict, the government must
show that the defendant willfully made a false statement on his
return. U.S. v. Robinson, 974 F.2d 575, 579 (5th Cir. 1992).
Under 26 U.S.C. § 1033, the gain realized on the sale of
property under the threat of condemnation is not recognized under
the Internal Revenue Code, provided replacement property is
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purchased within the statutory period.1 Wickersham argues that he
did sell the property under a threat of condemnation and was
entitled to the tax deferment.
The evidence established that Commissioner Frederick was
notified of his right to threaten condemnation and told the OCPND
attorney that he had threatened condemnation. But the jury was
entitled to conclude that there was no genuine threat, but,
instead, a subterfuge to support preferred tax treatment for
Wickersham. The jury was entitled to infer from the evidence that
Wickersham, Frederick and Winfree were acting together to defraud
the OCPND by selling the elevator at an exorbitantly inflated
price. Wickersham bought the elevator for only $100,000 in March
and sold it for $450,000 in July. Wickersham and Winfree were
business partners in a business venture, in which Wickersham had
provided a $75,000 letter of credit on Winfree's behalf, and
Winfree had once owned the elevator and had sold it for only
$85,000. The government produced evidence that Winfree, while
technically recusing himself from the purchase of the grain
elevator, used his influence to persuade the commissioners to buy
it from Wickersham, for the inflated price. Moreover, Wickersham
did not ask for the letter of condemnation until after he was
unable to do a like-kind exchange and after the Board had already
voted to purchase the elevator.
The evidence was sufficient to support the conviction. It was
not unreasonable for the jury to determine that Wickersham knew
1 The purchase of replacement property within the statutory
period was uncontested.
4

that condemnation had never been threatened and that he knew his
statement to the contrary was false.
III.
Wickersham next argues that the court erred in barring
admission of evidence of prosecutorial misconduct. Wickersham
contends that he should have been allowed to elicit the testimony
of Wayne Peveto and Joseph Alford, Winfree's defense attorneys,
regarding a meeting they had with U.S. Attorney Smith. Wickersham
alleges that at this meeting, Smith told Peveto and Alford that
unless Frederick changed his grand jury testimony and testified
that he did not mention the authority to condemn to Wickersham,
that he would be indicted.
Wickersham argues that the exclusion of evidence violates his
due process and the compulsory process clause. He relies on U.S.
v. Heller, 830 F.2d 150 (11th Cir. 1987), in which the court
reversed a conviction because the defendant was not allowed to
present evidence that the prosecutor had intimidated a defense
witness into providing testimony against the defendant.
In the case at bar, however, the court held an evidentiary
hearing and determined, as a matter of law, that there was no
prosecutorial misconduct. The court found that the prosecutors had
merely suggested that if Frederick had lied to the grand jury, he
should tell the truth. The court refused to allow Wickersham to
elicit the testimony because it was not proper to allow a co-
defendant's attorney to testify and because the evidence was not
relevant.

Wickersham does not present any evidence that Frederick
5

actually was intimidated into changing his grand jury testimony.
Nor is there evidence that other witnesses were intimidated. The
district court did not abuse its discretion in refusing to admit
this evidence.
IV.
Wickersham next argues that the district court erred in giving
a modified "Allen" charge to the jury. We review the modified
"Allen" charge for abuse of discretion. U.S. v. Lindell, 881 F.2d
1313 (5th Cir. 1989), cert. denied, 496 U.S. 926 (1990).
The modified "Allen" charge given by the district court
comports with the modified "Allen" charge approved in Lindell. The
court did not abuse its discretion.
V.
Wickersham argues next that the court should have ordered a
new trial because the jurors were improperly affected by the
"Allen" charge. After the verdict was rendered, Wickersham's
attorney received an unsolicited phone call from a juror who said
that she hoped they appealed the case because the defendant was not
guilty and that she and several other jurors changed their verdict
after receiving the "Allen" charge.
Federal Rule of Evidence 606(b) prohibits the use of juror's
statements to impeach the verdict. Rule 606(b) has consistently
been used to bar testimony when the jury misunderstood
instructions. Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224,
230 (8th Cir.)(testimony to misinterpretation of instructions
inadmissible), cert. denied, 389 U.S. 1014 (1967); U.S. v.
Chareton, 309 F.2d 197, 200-01 (6th Cir. 1961)(disallowing
6

testimony to mistakes made by jury in interpreting charge), cert.
denied, 372 U.S. 936 (1963). Therefore, the court did not err in
refusing to allow jury testimony to impeach the verdict.
VI.
Finally, Wickersham argues that the indictment was defective
because it did not state the year of the return. U.S. v. Boulet,
577 F.2d 1165, 1167-68 (5th Cir. 1978)(because tax system is on an
annual basis, indictment for failure to file tax return must charge
an offense for a specific year), cert. denied, 439 U.S. 1114
(1979). However, the indictment here was for making a false
statement on a return, rather than failing to file a return. The
indictment did cite the date the false return was filed.
Furthermore, Wickersham was provided a copy of the tax return. The
indictment was not defective.
In any case, objections to the indictment are generally waived
if not made before trial. U.S. v. Campos-Asencio, 822 F.2d 506
(5th Cir. 1987). Wickersham did not object to the indictment
before trial and has shown absolutely no prejudice based on the
Government's failure to allege the date of the return in the
indictment.
AFFIRMED
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