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United States v. Hovind (305 Fed. Appx. 615)/Opinion of the Court

PER CURIAM:

Kent Hovind appeals his convictions and sentences for failing to collect and pay employment withholding taxes, obstructing tax laws, and structuring transactions to avoid financial reporting laws, 18 U.S.C. § 2; 26 U.S.C. §§ 7202, 7212(a); 31 U.S.C. § 5324(a)(3), (d); 31 C.F.R. § 103.11, and his wife, Jo Hovind, appeals her convictions and sentences for structuring transactions to avoid reporting laws, 18 U.S.C. § 2; 31 U.S.C. § 5324(a)(3), (d); 31 C.F.R. § 103.11. Kent and Jo challenge the sufficiency of their indictments and the evidence. Kent also challenges the calculation of the loss amount and the imposition of restitution, and Jo challenges the order of forfeiture. We affirm.

I. BACKGROUND

The Hovinds owned and operated Creation Science Evangelism Enterprises, which sold videos and literature, provided lecture services, and hosted live debates. Between 1999 and 2003, the Hovinds withdrew from AmSouth Bank over one and a half million dollars in increments less than $10,000 to avoid federal filing requirements. Company documents and records of the transactions established that Jo controlled the finances of Evangelism Enterprises and controlled most of the checks that were cashed. Kent, who oversaw payroll and related federal tax obligations, failed to withhold or pay quarterly federal withholding taxes or file related documents with the Internal Revenue Service between 2001 and 2003.

The Hovinds were charged in a 58-count indictment. Kent was charged in the first twelve counts of the indictment for willfully failing to deduct and pay federal income and withholding taxes for employees of Evangelism Enterprises. 26 U.S.C. § 7202. The Hovinds were charged in the next 45 counts for structuring cash withdrawals to avoid financial reporting requirements. 18 U.S.C. § 2; 31 U.S.C. §§ 5313(a), 5324(a)(3), 5324(d); 31 C.F.R. § 103.11. Kent was charged in the last count of the indictment for obstructing the administration of internal revenue laws. 26 U.S.C. § 7212(a). The indictment also included a provision for forfeiture by the Hovinds of “any and all property, real and personal, involved in”

the financial reporting crimes “and any property traceable thereto” and, if that specific property could not be recovered, for “forfeiture of any other property of [the Hovinds] up to the value of the. . . property.” Approximately two months after the court-imposed filing deadline, the Hovinds moved to dismiss their indictments. The district court denied the motions as untimely and without merit.

After the government rested its case at trial, the Hovinds moved for an acquittal on each count of the indictment. Defense counsel argued that the government was required to prove for each count of structuring that the transaction equaled or exceeded $10,000 and, because the evidence established that each transaction was less than that threshold, the Hovinds were entitled to dismissal of those counts. The government responded that it had a “fundamental disagreement” with the Hovinds’ interpretation of the structuring statutes and argued that structuring necessarily requires a transaction under $10,000. The district court “agree[d] with the government” that the Hovinds’ interpretation of structuring was contrary to the statutes and denied the Hovinds’ motion. The court later referred to its decision on the motion and instructed defense counsel that they would “not be permitted” to argue their interpretation of the structuring statutes. After discussion of the issue, defense counsel explained that they intended to argue that the government did not prove that the Hovinds structured each transaction to evade

reporting requirements.

The Hovinds were found guilty of all charges. The jury found that $430,400 was involved in or traceable to the financial reporting crimes. The jury entered a special verdict against the Hovinds for the forfeiture of real and personal property attributable to the reporting crimes.

Separate presentence investigation reports were prepared for Kent and Jo. Kent’s report paired the first 12 counts of the indictment into one group and the next 44 counts into a second group. United States Sentencing Guidelines § 3D1.2(d) (Nov. 2001). The report listed the offense level applicable to each group and selected the second group, which had the highest offense level of 22. Id. §§ 2B1.1(b)(1); 3D1.3(b); 2S1.3. The base offense level was increased by 2 levels because the offense was part of a pattern of unlawful activity that involved more than $100,000 in a 12-month period, id. § 2S1.3(b)(2), and increased another 6 levels for Kent’s aggravating role in the crimes. Id. §§ 3B1.1(a); 3C1.1. With a criminal history of I, the report provided a sentencing range between 97 and 121 months of imprisonment. The report calculated a tax liability, under the first twelve counts of the indictment, of $604,874.87. Id. § 5E1.1(a)(2).

Jo’s presentence report listed a base offense level of 22. Id. §§ 2B1.1(b)(1); 2S1.3. The report decreased the base level by 16 levels because Jo did not act with

reckless disregard of the source of the funds and because the funds were the proceeds of lawful activity and were to be used for a lawful purpose, id. § 2D1.3(b)(2). With a criminal history of I, the report provided a sentencing range between 0 and 6 months of imprisonment.

Before Jo’s sentencing hearing, the government moved to forfeit substitute property and requested the court substitute ten parcels of real property and a bank account belonging to Jo and Kent to satisfy the $430,400 judgment. 21 U.S.C. § 853(p). The government attached to the motion an affidavit from Special Agent Charles Evans of the Internal Revenue Service. The affidavit stated that the agency could not find the $430,400 because the Hovinds had transferred the assets to a third party, expended the assets on business-related expenses, and removed the assets from the jurisdiction of the district court.

The district court found that the Hovinds had disposed of the assets subject to forfeiture and granted the motion of the government to substitute property. The district court entered a final order of forfeiture against Jo and sentenced her to one year and one day of imprisonment. The court sentenced Kent to 120 months of imprisonment and to supervised release of 3 years, and ordered Kent to pay restitution of $604,874.87.

'''II. STANDARDS OF REVIEW'''

We apply three standards of review in this appeal. We review de novo the sufficiency of an indictment. United States v. Bobo, 344 F.3d 1076, 1082–83 (11th Cir. 2003). We review de novo challenges to the sufficiency of the evidence and view the evidence in the light most favorable to the government. United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). When an issue is not preserved for appeal, our review is for plain error. See United States v. Rubio, 317 F.3d 1240, 1241 n.1 (11th Cir. 2003). We review de novo jury instructions to determine “‘whether they misstate the law or mislead the jury to the prejudice of the objecting party.’” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (quoting United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997)). We review for clear error the calculation of the amount of loss. United States v. Machado, 333 F.3d 1225, 1227 (11th Cir. 2003). We review de novo the legality of the orders of restitution and of forfeiture. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007) (citing United States v. Hasson, 333 F.3d 1264, 1275 (11th Cir. 2003)).

'''III. DISCUSSION'''

Kent and Jo Hovind raise multiple issues for our consideration. Their arguments fail. We address each argument in turn.

A. The Hovinds Indictments Were Sufficient.

It is a well-established principle that “‘[t]he sufficiency of a criminal indictment is determined from its face.’” United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (quoting United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004)). “For an indictment to be valid, it must ‘contain the elements of the offense intended to be charged, and sufficiently apprise the defendant of what he must be prepared to meet.’” United States v. Bobo, 344 F.3d 1076, 1083 (11th Cir. 2003) (quoting Russell v. United States, 369 U.S. 749, 763, 82 S.C.t. 1038, 1047 (1962)). When the indictment tracks the language of the statute, “‘it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.’” Id. (quoting Russell, 369 U.S. at 765, 82 S.C.t. at 1048).

The indictment sufficiently alleged Kent’s tax crimes. Kent complains that his indictment omitted what part of Title 26 required him to collect and pay federal withholding taxes for employees of Evangelism Enterprises and failed to define how he acted “willfully,” but these arguments fail. Kent was adequately notified of his offenses to prepare a defense and to plead double jeopardy in any future prosecution for the same offense. The indictment alleged that Kent violated Section 7202 of Title 26 and described Kent’s responsibilities under the tax laws,

explained Kent’s failure to withhold and pay quarterly federal withholding taxes, and stated the taxable periods in which Kent incurred a tax liability. The government was not required to include specific statutory authority for Kent’s tax liability or to allege facts regarding Kent’s willfulness. See United States v. Chisum, 502 F.3d 1237, 1244–45 (10th Cir. 2007) (affirming as sufficient an indictment for tax evasion that omitted “what part of Title 26 imposed the tax that was being evaded or defeated”). Cf. Huff v. United States, 273 F.2d 56, 58–59 (5th Cir. 1959) (indictment for smuggling goods into the United States without an invoice was sufficient even without a reference to the statute that required invoicing or a factual description of the crime).

The indictment also sufficiently alleged the Hovinds’ structuring crimes. The Hovinds argue that each of the structuring counts fails to state an offense because each count fails to allege that the Hovinds structured an amount that exceeded $10,000 and, without this allegation, the indictments were defective. The Hovinds contend that the language used in the financial reporting statute did not suggest that structuring could involve a cash transaction of less than $10,000. These arguments ignore the plain language of the statute and our interpretation of it. A person is prohibited from “structur[ing]. . . any transaction” to “evad[e] the reporting requirements[,]” 31 U.S.C. § 5324(a)(3), of domestic financial

institutions. Those reporting requirements are activated upon the “payment, receipt, or transfer of United States coins or currency[,]” 31 U.S.C. § 5313(a), “of more than $10,000.” 31 C.F.R. § 103.22(b). In other words, section 5324(a)(3) forbids a person from transacting in amounts less than $10,000 to avoid detection by and reporting of the transactions by a financial institution. United States v. Phipps, 81 F.3d 1056, 1060–61 (11th Cir. 1996). That interpretation is also consistent with the intent of Congress for the structuring provision to “operate[] ‘without regard for whether an individual transaction is, itself, reportable. . . .’” Id. at 1061 (quoting S. Rep. No. 433, 99th Cong., 2d Sess. 22 (1986)). Because a cash transaction does not have to equal or exceed $10,000 to constitute a structuring offense, the district court did not err by denying the Hovinds’ motion to dismiss.

Kent’s indictment for obstructing administration of the tax laws also states an offense. Kent argues for the first time on appeal that the charge failed to state an offense because none of the acts listed, which included filing complaints against agents of the Internal Revenue Service and instituting bankruptcy and other legal proceedings against those agents, were corrupt. His argument misapprehends the definition of “corruptly.” Acts that might otherwise be legal become corrupt and obstructionist when they are used to “thwart the efforts of government officers and

employees in executing the laws enacted by Congress.” United States v. Popkin, 943 F.2d 1535, 1540 (11th Cir. 1991). The district court did not err, much less plainly err, by denying Kent’s motion to dismiss.

B. The Government Introduced Sufficient Evidence To Support the Hovinds’ Convictions.

The Hovinds challenge their convictions on three grounds. First, Kent argues that his failure to withhold taxes was not willful. Second, the Hovinds argue that they did not know that section 5324(a)(3) prohibited a transaction of less than $10,000. Third, Kent argues that legal actions he instituted before and during the investigation of the Internal Revenue Service were not corrupt and cannot support his conviction for obstruction of tax laws.

1. Kent Refused To Comply With Laws To Collect And Pay Federal Withholding Taxes.

Sufficient evidence establishes that Kent failed to collect or pay withholding taxes. Kent argues that the government failed to prove that he acted willfully absent evidence that Kent knew of the specific statutes that required him to collect and pay withholding taxes, but that argument fails. In Cheek v. United States, 498 U.S. 192, 201, 111 S.C.t. 604, 610 (1991), the Supreme Court explained in a hypothetical that the government would satisfy the “knowledge component of the willfulness requirement” if it introduced evidence that the defendant knew of the

“duty purportedly imposed” by the tax laws, not that he knew which specific provision created that duty. Id. at 201–02, 111 S.C.t. at 610–11. When a defendant knows of facts constituting an offense, he has “acted with the requisite willfulness to violate the law.” United States v. Fields, 500 F.3d 1327, 1332 (11th Cir. 2007) (citing Bryan v. United States, 498 U.S. 184, 196, 118 S.C.t. 1939, 1947 (1998)).

The government proved that Kent knew the tax laws required the collection and payment of withholding taxes, but he refused to comply. Employees of Evangelism Enterprises, peers, and legal counsel testified that Kent disputed the authority of the Internal Revenue Service based on the separation of the church and state, debated the interpretation and application of the withholding requirements, and intentionally characterized Evangelism Enterprises as a “church” and his employees as “missionaries” to avoid tax obligations. Kent had opined to attorney David Gibbs that he was “smarter” than other church officials who had forfeited real property after they refused to collect or pay withholding taxes. Although Kent argued at trial that he was ignorant of the law and the Revenue Service failed to identify a law that required him to collect and pay withholding taxes, the jury was entitled to find that Kent knew about and deliberately violated the tax laws. See United States v. Lankford, 955 F.2d 1545, 1550 (11th Cir. 1992).

2. The Hovinds Structured Transactions To Avoid Reporting Requirements.

The government also proved that the Hovinds structured their cash withdrawals to avoid federal reporting requirements. Although the Hovinds challenge the validity of their convictions on the ground that the statute does not penalize transactions below $10,000, this interpretation does not comport with the language of the statute. Congress enacted Section 5324(a)(3) to penalize “any transaction” structured to “avoid triggering [a] bank’s duty to file a [Currency Transaction Report] in the first place.” Phipps, 81 F.3d at 1059–60. By its plain language, the statute prohibits transactions of less than $10,000 that are intended to evade reporting requirements. Id. at 1060–61. That reading comports with the regulations that define structuring to penalize cash transactions designed “in any manner,. . . including transactions. . . below $10,000. . . for the purpose of evading the reporting requirements. . . .” 31 C.F.R. § 103.11(gg).

Evidence established that Kent and Jo Hovind structured cash transactions with knowledge of, and the intent to avoid, reporting of those transactions by AmSouth Bank. See United States v. MacPherson, 424 F.3d 183, 189 (2d Cir. 2005); United States v. Cassano, 371 F.3d 868, 878 (7th Cir. 2004). A former employee of Evangelism Enterprises, Brian Popp, testified that Kent knew of and complained about the bank reporting requirements and that Jo, often at Kent’s

direction, regularly obtained cash to pay employees of the organization. Other employees and associates of Kent testified that the Hovinds openly disputed the validity of the tax laws. Various documents established that Jo withdrew cash in increments of $9500 and $9600 from AmSouth Bank as often as four or five times a month, for a total of 45 transactions between July 2001 and August 2002. Viewing this evidence in a light favorable to the prosecution, the jury was entitled to find that Kent and Jo knew of the reporting requirements and structured cash transactions in amounts less than $10,000 to prevent AmSouth Bank from reporting the transactions. See United States v. Williams, 121 F.3d 615, 621 (11th Cir. 1997) (willfulness “requires proof of an intentional violation of a known legal duty”); In re Jacobs, 490 F.3d 913, 925 (11th Cir. 2007) (“‘the conduct requirement is satisfied where a debtor engages in affirmative acts to avoid payment or collection of taxes’” (quoting In re Fretz, 244 F.3d 1323, 1329 (11th Cir. 2001))).

3. Kent Obstructed the Investigation of His Tax Offenses.

Substantial evidence established that Kent obstructed investigation of his tax offenses. A person is guilty of obstructing the administration of tax laws if he “corruptly” acts to “intimidate or impede any officer” or to “obstruct[], impede, or endeavors to obstruct or impede, the due administration” of the tax laws. Kent

filed complaints and sued agents of the Internal Revenue Service and instituted legal proceedings to circumvent the lawful seizure of his assets. This evidence supports the finding of the jury that Kent intended to impede agents of the Revenue Service in their efforts to investigate and prosecute Kent’s violations of the tax laws.

C. The District Court Did Not Err By Adding a Sentence to the Jury Instruction.

A district court is required to inform counsel before closing arguments how it intends to rule on proposed jury instructions. Fed. R. Crim. P. 30(b). We require substantial compliance with Rule 30 and reverse for a violation of the rule only if the defendant establishes that he was prejudiced by the change in a jury instruction. United States v. White, 27 F.3d 1531, 1538 (11th Cir. 1990). Prejudice exists only if the defendant establishes that the modification of the instruction was substantial and repudiated or rendered ineffective his arguments. Id.

The Hovinds were not prejudiced by the change to the jury instruction. The district court did not substantially modify the instruction on structuring. In his closing argument, Kent Hovind used the original jury instruction in a manner that suggested that the government was required to prove that structuring required a cash transaction that equaled or exceeded $10,000. That jury instruction read,

"To structure a transaction means to deposit or withdraw or otherwise participate in a transfer of a total of more than $10,000 in cash or"

currency by or through a financial institution or bank by setting up or arranging a series of separate transactions, each involving $10,000 or less individually, thereby intentionally evading the currency reporting requirements that would have applied if the transaction had not been so structured.

The district court added the last sentence of the regulation that defines structuring: “The transaction or transactions need not exceed the $10,000 reporting threshold at any single financial institution on any single day in order to constitute structuring. . . .” 31 C.F.R. § 103.11(gg). The district court was entitled to revise the jury instruction in this manner. See Bender, 290 F.3d at 1284 (“We give the district court wide discretion as to the style and wording employed in the instructions, ascertaining that the instructions accurately reflect the law.”).

D. The Hovinds Were Correctly Sentenced.

The Hovinds challenge their sentences on three grounds. First, Kent challenges the calculation of the tax loss. Second, Kent challenges his restitution. Third, Jo challenges the forfeiture of substitute property. These arguments fail.

Kent argues that the district court violated his rights under the Sixth Amendment when it calculated the tax loss attributable to his tax evasion charges, but the tax loss played no role in Kent’s sentence. The district court used the offense level for Kent’s structuring charges instead of the offense level for his tax charges to calculate Kent’s sentence. Because the guideline range and sentence

was the same regardless of the amount of tax loss, any error in the calculation was harmless. See United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir. 2007).

Kent challenges his restitution on two grounds both of which fail. First, Kent argues that restitution was not a penalty for his crimes, but his argument ignores that the district court ordered restitution as a condition of Kent’s supervised release. See 18 U.S.C. §§ 3563, 3583(d). Second, Kent argues, without citation to any authority, that the Internal Revenue Service cannot be a victim, but Kent’s argument overlooks that the Revenue Service, as the agency responsible for collecting taxes, is the only possible victim of tax evasion. Cf. Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1361 (11th Cir. 2005) (finding the government a “victim” of tax evasion under immigration law). The district court did not err by ordering Kent to pay restitution.

Jo presents two challenges to the forfeiture of substitute property both of which fail. First, Jo argues that the amount of forfeiture was excessive and unconstitutional because the money was obtained legally and expended for business obligations of Evangelism Enterprises, but we disagree. The jury was entitled to find that the Hovinds structured transactions to avoid financial reporting laws and hide assets from the Revenue Service and a forfeiture of $430,400 was warranted to punish the Hovinds for their crimes. See Hasson, 333 F.3d at

1279–80. Second, Jo argues that the district court erred by substituting property because the $430,300 could be traced to business-related expenses, but we again disagree. The district court was entitled to order the forfeiture of substitute property when the original property was “transferred. . . or deposited with[] a third party.” 21 U.S.C. § 853(p)(1)(B). The district court did not err by ordering a substitution of forfeiture property.

'''IV. CONCLUSION'''

The convictions and sentences of the Hovinds are AFFIRMED.


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United States v. Marshall

Appeal from the United States District Court

for the Central District of California

A. Andrew Hauk, District Judge, Presiding

Panel Information
Before: DUNIWAY and ELY, Circuit Judges, and BURNS, District Judge.

Opinion by Judge Duniway

Counsel
Robert H. Lund, Long Beach, Cal., for defendants-appellants Eischen and Morgan.

Major A. Langer, of Demler, Perona, Langer & Bergkvist, Long Beach, Cal., for defendant-appellant Marshall.

Gregory C. Glynn, Asst. U. S. Atty., William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: United States v. Marshall


text:
The New International Encyclopædia/Fessler, Ignaz Aurelius

FESSLER, fĕs'lẽr, (1756-1839). A well-known Hungarian historian and ecclesiastic. He was born at Czurendorf and educated at Pressburg and Raab. He was successively a Capuchin monk in Vienna, professor

of hermeneutics at Lemberg, a Protestant and Freemason at Berlin, a lecturer on philosophy at Saint Petersburg, a Government official at Saratov, and, lastly, general superintendent of the Lutheran Community of Saint Petersburg. He wrote several historical novels (Marc Aurel, Matthias Corvinus, Attila) now well-nigh forgotten, a History of the Hungarians, possessing great merit, and an autobiography charming in manner and style, Rückblicke auf meine Siebzigjahrige Pilgerfahrt (Breslau, 1826). He died at Saint Petersburg, December 15, 1839.


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380 was struck with the great accuracy of the shape of our present harbor, which I now know full well. I returned to our vessel at ten, and am longing to be farther north; but the wind is so contrary it would be a loss of time to attempt it now. The weather is growing warmer, and mosquitoes are abundant and hungry. Coolidge shot a White-crowned Sparrow, a male, while in the act of carrying some materials to build a nest with; so they must breed here. June 25. Made a drawing of the Arctic Tern, of which a great number breed here. I am of Temminck's opinion that the upper plumage of this species is much darker than that of S. hirundo. The young men, who are always ready for sport, caught a hundred codfish in half an hour, and somewhere secured three fine salmon, one of which we sent to the "Gulnare" with some cod. Our harbor is called "American Harbor," and also "Little Natasquan;" it is in latitude 50° 12' north, longitude 23° east of Quebec and 61° 53 west of Greenwich. The waters of all the streams which we have seen are of a rusty color, probably on account of the decomposed mosses, which appear to be quite of a peaty nature. The rivers appear to be formed by the drainage of swamps, fed apparently by rain and the melting snows, and in time of freshets the sand is sifted out, and carried to the mouth of every stream, where sandbars are consequently met with. Below the mouth of each stream proves to be the best station for cod-fishing, as there the fish accumulate to feed on the fry which runs into the river to deposit spawn, and which they follow to sea after this, as soon as the fry make off from the rivers to deep water. It is to be remarked that so shy of strangers are the agents of the Fur and Fish Company that they will evade all questions respecting the interior of the country, and indeed will willingly tell you such untruths as at once disgust and shock you. All this through the fear that strangers should attempt to settle

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Rh here, and divide with them the profits which they enjoy. Bank Swallows in sight this moment, with the weather thick, foggy, and an east wind; where are these delicate pilgrims bound? The Black-poll Warbler is more abundant, and forever singing, if the noise it makes can be called a song; it resembles the clicking of small pebbles together five or six times, and is renewed every few minutes. June 26. We have been waiting five days for wind, and so has the "Gulnare." The fishing fleet of six or seven sails has made out to beat four miles to other fishing grounds. It has rained nearly all day, but we have all been on shore, to be beaten back by the rain and the mosquitoes. John brought a female White-crowned Sparrow; the black and white of the head was as pure as in the male, which is not common. It rains hard, and is now calm. God send us a fair wind to-morrow morning, and morning here is about half-past two. June 27. It rained quite hard when I awoke this morning; the fog was so thick the very shores of our harbor, not distant more than a hundred yards, were enveloped in gloom. After breakfast we went ashore; the weather cleared up and the wind blew fresh. We rambled about the brushwoods till dinner time, shot two Canada Jays, one old and one young, the former much darker than those of Maine; the young one was full fledged, but had no white about its head; the whole of the body and head was of a deep, very deep blue. It must have been about three weeks old, and the egg from which it was hatched must have been laid about the l0th of May, when the thermometer was below the freezing-point. We shot also a Ruby-crowned Wren; no person who has not heard it would believe that the song of this bird is louder, stronger, and far more melodious than that of the Canary

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Page:Dictionary of National Biography volume 23.djvu/360

 Repertorium, i. 71; Hist. MSS. Comm. Report on the Manuscripts of Wells Cathedral, pp 142, 148, 150, 209, 280, 309-10.]  GUNTON, SIMON (1609–1676), divine and antiquary, son of William Gunton of Peterborough, Northamptonshire, by Ellen his wife, was baptised in St. John's Church in that town, 30 Dec. 1609. His father was registrar of the diocese, having been elected 13 March 1616 (, Register, pp. 218, 229). Simon was educated at Magdalene College. Cambridge, as a member of which he graduated B.A. in 1630-1, proceeding M.A. in 1634 (University Register). Then taking orders he became vicar of Pytchley, Northamptonshire, 14 Oct. 1637, and on 12 Nov. 1646 was collated, but without effect, to the first prebend of Peterborough. During the civil war he found a retreat in the household of James Stuart, duke of Richmond and Lennox, as we learn from the dedication to the little duke Esme of his 'God's House, with the nature and use thereof, as it ought to be understood and respected by Christians under the Gospel,' 8vo, London, 1657. After the Restoration in 1660 he took possession of his prebend, and on 24 Sept. of the same year was presented to the vicarage of Peterborough. He soon afterwards obtained an act in augmentation of the living. The following year he published another little manual entitled 'Όρθολατρεία: or, a brief Discourse concerning Bodily Worship: proving it to be God's due,' 8vo, London, 1661. In December 1666 he resigned the vicarage of Peterborough to become rector of Fiskerton, Lincolnshire, where he died and was buried 17 May 1676 (, Survey of Cathedrals, 1742, iii. 516-17). By his wife, Susannah Dickenson, of Peterborough, he had several children. During his boyhood, as he himself states in a letter to Joseph Henshaw, bishop of the diocese, Gunton took copies of the inscriptions on the monuments in Peterborough cathedral, many of which were defaced by the parliamentary troops. He had also through his father's position unlimited access to the cathedral archives before they were in turn destroyed. Ten years after his death his collections, revised and augmented with an appendix of charters and privileges and a supplement by Simon Patrick [q. v.] were published as 'The History of the Church of Peterburgh: wherein the most remarkable Things concerning that Place, from the first Foundation thereof: With other Passages of History, not unworthy publick view are represented. . . . Illustrated with Sculptures,' fol., London, 1686. White Kennett afterwards bishop of Peterborough, wrote large additions in a copy now preserved in the cathedral library (, Lit. Anecd. i. 398;, British Topography, ii. 41-2). Thomas Baker's copy with Kennett's notes and a few of his own is in the university library, Cambridge (Cat. of MSS. vi. 30); a selection appeared in the 'British Magazine,' xxxvi. 542. There are also copies with notes by Bishop Cumberland, William Cole, nd others, in the Bodleian Library, Oxford , Collections, Oxf. Hist. Soc., ii. 237, 446). The original manuscript of Patrick's 'Supplement' was acquired by the British Museum in 1859; it is Addit. MS. 22666. An 'Epitome' of Gunton's 'History' by C. Jacob, published at Peterborough in 1804, 8vo, went through several editions.

[Information kindly communicated by the Rev. Dr. Luard; Kennett's Register, passim; Addit. MS. 5828, ff. 143b-171, 172b-183 ; Bridges's Northamptonshire (Whalley), ii. 125, 545, 565.]  GURDON or GORDON, ADAM (d. 1305), warrior, was son of Adam de Gurdon, one of the bailiffs of Alton in Hampshire. He sided with de Montfort in the barons' war; but on 28 July 1265 repulsed the Welsh who were plundering in Somerset, at Dunster. He was one of the disinherited in 1266, and with others of his party formed a band which ravaged Berkshire, Buckinghamshire, and Hampshire. Edward marched against them in person, and meeting them in Alton wood (or perhaps at Halton in Buckinghamshire) defeated Gurdon in single combat. Gurdon's prowess won the admiration of his conqueror, who restored him to his estates and made him one of his most trusted supporters (, p. 269;, iv. 189; there is a slightly different story in Chron. p. 49). Gurdon was a justice of the forest in 1280, and in 1293 mention is made of forest offences which had been tried before him (Abbrev. Rot. Orig. p. 77). He took part both in the Welsh and Scottish wars (Fœdera, ed. 1816, i. 846, 925), and in 1295 was custos of the sea shores of Hampshire, and a commissioner of array in that county, and in Dorset and in Wilts. He died in 1305 (Inq. p. m. in Calendarium Genealogicum, ii. 680), having married (1) Constantly daughter and heiress of John de Vanuz, whose estates were at Selborne (Pat. Roll. p. 41, Hen. iii.); (2) Almeria, by whom he had two sons; and (3) Agnes, whose daughter Johanna was his heiress (Cal. Gen. ii. 680). From his second son, Robert, the Gurdons of Assington and Letton are descended (, Landed Gentry, ed. 1871, i. 555). His estate of Gurdon still bears his name and is now the property of Magdalen College, Oxford.


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382 bird. It sang for a long time ere it was shot, and perched on the tops of the tallest fir-trees removing from one to another as we approached. So strange, so beautiful was that song that I pronounced the musician, ere it was shot, a new species of Warbler. John shot it; it fell to the ground, and though the six of us looked for it we could not find it, and went elsewhere; in the course of the afternoon we passed by the spot again, and John found it and gave it to me. We shot a new species of Finch, which I have named Fringilla lincolnii; it is allied to the Swamp Sparrow in general appearance, but is considerably smaller, and may be known at once from all others thus far described, by the light buff streak which runs from the base of the lower mandible, until it melts into the duller buff of the breast, and by the bright ash-streak over the eye. The note of this bird attracted me at once; it was loud and sonorous; the bird flew low and forward, perching on the firs, very shy, and cunningly eluding our pursuit; we, however, shot three, but lost one. I shall draw it to-morrow. June 28. The weather shocking—rainy, foggy, dark and cold. I began drawing at daylight, and finished one of my new Finches and outlined another. At noon the wind suddenly changed and blew hard from the north-west, with heavy rain, and such a swell that I was almost sea-sick, and had to abandon drawing. We dined, and immediately afterward the wind came round to southwest; all was bustle with us and with the "Gulnare," for we both were preparing our sails and raising our anchors ere proceeding to sea. We sailed, and managed so well that we cleared the outer cape east of our harbor, and went out to sea in good style. The "Gulnare" was not so fortunate; she attempted to beat out in vain, and returned to

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Rh her anchorage. The sea was so high in consequence of the late gales that we all took to our berths, and I am only now able to write. June 29. At three this morning we were off the land about fifteen miles, and about fifty from American Harbor. Wind favorable, but light; at about ten it freshened. We neared the shore, but as before our would-be pilot could not recognize the land, and our captain had to search for the harbor where we now are, himself. We passed near an island covered with Foolish Guillemots, and came to, for the purpose of landing; we did so through a heavy surf, and found two eggers just landed, and running over the rocks for eggs. We did the same, and soon collected about a hundred. These men told me they visited every island in the vicinity every day, and that, in consequence they had fresh eggs every day. They had collected eight hundred dozen, and expect to get two thousand dozen. The number of broken eggs created a fetid smell on this island, scarcely to be borne. The L. marinus were here in hundreds, and destroying the eggs of the Guillemots by thousands. From this island we went to another, and there found the Mormon arcticus breeding in great numbers. We caught many in their burrows, killed some, and collected some of the eggs. On this island their burrows were dug in the light black loam formed of decayed moss, three to six feet deep, yet not more than about a foot under the surface. The burrows ran in all directions, and in some instances connected; the end of the burrow is rounded, and there is the pure white egg. Those caught at the holes bit most furiously and scratched shockingly with the inner claw, making a mournful noise all the time. The whole island was perforated with their burrows. No young were yet hatched, and the eggers do not collect these eggs, finding them indifferent. They say the same of the eggs of the Alca

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Author:William Lee-Warner

Works

 * Life of the Marquis of Dalhousie
 * Memoirs of Field-Marshal Sir Henry Wylie Norman
 * The Protected Princes of India

title: Author:William Lee-Warner