Appeal without
merit
7203:
Willful Failure to File Return, Supply Information, or Pay Tax: Appeal
Without Merit
[80-2
USTC ¶9694]
United States of America
and Burnie W. Avrit, Internal Revenue Service Agent,
Plaintiffs-Appellees v. Gladys T. Lillibridge, Trustee, et al.,
Defendants-Appellants
(CA-6),
U. S. Court of Appeals, 6th Circuit, No. 79-1283, 5/21/80, Affirming an
unreported District Court decision
[Code Sec. 7602]
Examination of books and witnesses: Self-incrimination: Contempt of
court: Enforcement proceedings: Bail pending appeal: Right to jury.--Taxpayers,
who were found in contempt of court for refusing to obey a court order
enforcing IRS summonses, were not entitled to a jury trial in the
enforcement and contempt proceedings because the right to a jury trial
did not exist in tax cases or civil contempt proceedings. The taxpayers'
rights against self-incrimination were not properly asserted where the
taxpayers failed to make specific objections to particular questions but
merely made blanket assertions of their right against
self-incrimination. The amount of bond set for release pending appeal
was not excessive. The order holding taxpayers in contempt was affirmed.
Legrande
Lillibridge, Gladys Lillibridge, 2631 Fort Campbell Blvd., Clarksville,
Tenn. 37040, pro se. Hal D. Hardin, United States Attorney, Nashville,
Tenn. 37219, M. Carr Ferguson, Assistant Attorney General, Gilbert E.
Andrews, Charles Brookhart, Ronald Dweck, Department of Justice,
Washington, D. C. 20530, for plaintiff-appellees.
Before
KEITH, BROWN, and MARTIN, Circuit Judges.
Order
The
defendants appeal from an order of the District Court for the Middle
District of Tennessee finding them in contempt for refusing to obey the
Court's order enforcing Internal Revenue Service (IRS) summonses and
sentencing them to five (5) months and twenty-nine (29) days in jail or
until such time as they purged themselves of contempt. This appeal has
been referred to a panel of the court pursuant to Rule 9(a), Rules of
the Sixth Circuit. After examination of the briefs and record, this
panel agrees unanimously that oral argument is not needed. Rule 34(a),
Federal Rules of Appellate Procedure.
The
defendants raise three primary issues on appeal:
(1)
They were entitled to a jury trial in both the enforcement and contempt
proceedings;
(2)
Their Fifth Amendment right against self-incrimination permitted them to
refuse to disclose the information sought by the IRS; and
(3)
The District Court set excessive bond for release pending this appeal.
An
analysis of these issues shows them to be without merit.
There
is no general right to a jury trial in tax cases. See Phillips v.
Commissioner [2 USTC ¶743], 283
U. S.
589, 599 n.9 (1931); Wickwire v. Reinecke [1 USTC ¶265], 275
U. S.
101, 105-06 (1927); Olshausen v. Commissioner [60-1 USTC ¶9142],
273 F. 2d 23, 27-28 (9th Cir. 1959), cert. den., 363
U. S.
820, reh. den. 364
U. S.
855 (1960). Thus the defendants did not have the right to a jury trial
in the enforcement proceeding. Kennedy v. Rubin [66-2 USTC
¶9603], 254 F. Supp. 190 (N. D. Ill. 1966).
Contempt
proceedings relative to a defendant's failure to obey a court order
enforcing an IRS summons is civil in nature, even if the defendant is
incarcerated until he purges himself of contempt. McCrone v. United
States [39-1 USTC ¶9484], 307
U. S.
61 (1939). The right to a jury trial does not attach to civil contempt
proceedings, Shilitani v. United States, 384 U. S. 364, 370-71
(1966), and the defendants had no such right in the contempt proceedings
giving rise to this appeal. United States v. Carroll [78-1 USTC
¶9141], 567 F. 2d 955, 958 (10th Cir. 1977).
The
defendants did have a right to refuse to answer questions put forth by
the IRS or to produce materials requested in the summonses if such
answers or production would tend to incriminate them. Blanket assertions
of that right, however, are improper. The defendants were required to
answer and produce all unobjectable answers and materials and to make
specific objections to the particular questions and materials they
believed could incriminate them. See United States v. Jomes [76-2
USTC ¶9563], 538 F. 2d 225, 226 (8th Cir. 1976), cert. den., 429
U. S.
1040 (1977), and cases cited therein. The record in this case shows the
defendants failed to make such specific objections either during the
interview with the IRS Agent or during the contempt proceedings. This
failure left the District Court with no basis to make a determination
that the right against self-incrimination was properly asserted. United
States v. Carroll, supra, at 957.
The
bond amount set by the District Court for release pending appeal, which
amount the defendants produced the day it was set, was not excessive.
The
Court has reviewed the entire record in this case and finds no other
errors of a constitutional magnitude. The District Court's order of
April 5, 1979 finding the defendants in civil contempt and ordering
their incarceration is hereby affirmed. Rule 9(d)3, Rules of the Sixth
Circuit.
[84-1
USTC ¶9130]
United States of America
, Appellee v. William E. Richards, Appellant
(CA-8),
U. S. Court of Appeals, 8th Circuit, No. 83-1954, 723 F2d 646, 12/30/83,
Affirming an unreported decision of the District Court
[Code Sec. 7203]
Criminal penalties: Failure to assess tax.--Failure to assess tax
did not preclude indictment of the taxpayer for willfully failing to
file income tax returns for three tax years.
[Code Sec. 7203]
Criminal penalties: Willful failure to file returns.--Considering
the taxpayer's gross income for three taxable years, he was clearly
commanded to file tax returns for those years. Therefore, his claim that
his failure could not be deemed "willful," because the filing
of a tax return is voluntary, was rejected as totally without arguable
merit.
[Code Sec. 7203]
Criminal penalties: Miscellaneous defenses.--The district court
properly rejected the taxpayer's argument that the government's delay in
charging him with failure to file tax returns prejudiced the defense
because witnesses' memories had dimmed. Also, the taxpayer should have
raised before trial by motion any objections based on defects in the
indictment, instead of claiming for the first time on appeal that he
should have been indicted earlier to prevent him from committing so many
offenses. In addition, the taxpayer's claim that the trial court erred
in its instructions defining the offerse and the number of possible
violations was totally lacking in merit. Finally, the district court
properly admitted evidence consisting of a letter from the IRS to the
taxpayer concerning his failure to claim exemptions on his Form W-4 and
the reply letter of the taxpayer challenging the government's right to
tax his wages as income. The contested letters showing the taxpayer's
willfulness in failing to file were executed less than two years after
the date for filing his return, and subsequent tax paying conduct was
relevant to the issue of willfulness in a prior year.
[Code Sec. 7203]
Criminal penalties: Appeal without merit.--The taxpayer's appeal
from a conviction for failure to file income tax returns on the grounds
that wages and salaries are not "income" within the meaning of
the sixteenth amendment, thus relieving him of any duty to file, was
without merit. The courts have interpreted the term "income"
to mean gain derived from capital, from labor, or from both combined.
William
E. Richards, 1966 E. 72nd St., Kansas City, Mo. 64132, pro se.
Rob
ert G. Ulrich, United States Attorney, Thomas M. Larson, Assistant
United States Attorney, Kansas City, Mo. 64106, for appellant.
Before
HENLEY, Senior Circuit Judge, GIBSON and FAGG, Circuit Judges.
PER
CURIAM:
Following
trial by jury William E. Richards was convicted on three counts of
willfully failing to file income tax returns for calendar years 1979,
1980 and 1981 in violation of 26 U. S. C. §7203. The court 1 sentenced
Richards to consecutive one-year terms of imprisonment on the first two
counts. On court three execution of a one-year sentence was suspended
and defendant was placed on probation for a period of four years. On
each count a fine of $2,000.00 was assessed.
As
will appear, on appeal Richards makes a number of arguments, all of
which we reject.
During
calendar years 1979, 1980 and 1981 appellant was employed by Missouri
Pacific Railroad and received a gross income of $20,328.78, $20,995.38
and $20,690.57, respectively. The IRS notified appellant on November 6,
1979 that a meeting was scheduled on November 9, 1979 with a Revenue
Officer to prepare a correct W-4 form (employee wage withholding form).
Appellant responded by letter on November 7, 1979 that his W-4 was
correctly filed with his employer. On September 12, 1980 the IRS
notified appellant that it had not received his income tax return for
the 1978 calendar year. On September 22, 1980 appellant replied to the
Service by letter explaining that he was not required to file even
though he had filed in previous years. No further governmental action
was taken until March 28, 1983 when a three-count indictment was
returned charging appellant with willful failure to file income tax
returns for the years 1979, 1980 and 1981.
Appellant
contends that his conviction under 26
U. S.
C. §7203 is invalid because the IRS did not provide an assessment or
notice of taxes due as required by 26 U. S. C. §§ 6201(a), 6203, 6303.
This claim is without merit. "The filing of an
admin
istrative assessment record is not required before a criminal
prosecution may be instituted under 26
U. S.
C. §§ 7201-07 (1976) for failure to report or pay income tax." United
States v. Voorhies [82-1 USTC ¶9710], 658 F. 2d 710, 714 (9th Cir.
1981).
Appellant
claims that his failure to file cannot be deemed "willful"
within the meaning of the charging statute, 26
U. S.
C. §7203, because the filing of a tax return is voluntary. This claim
was rejected in United States v. Drefke [83-1 USTC ¶9354], 707
F. 2d 978, 981 (8th Cir. 1983), wherein the court described appellant's
argument as "an imaginative argument, but totally without arguable
merit."
Id.
at 981. Considering appellant's gross income for 1979, 1980 and 1981, he
was clearly commanded to file tax returns for those years. See 26 U. S.
C. §6012.
Appellant
challenges his conviction on the grounds that wages and salaries are not
"income" within the meaning of the sixteenth amendment, thus
relieving him of any duty to file. Although the sixteenth amendment,
giving Congress the power to tax income, does not define
"income," the courts have interpreted the term in its every
day usage to mean gain derived from capital, from labor, or from both
combined. See United States v. Safety Car Heating & Lighting Co.
[36-1 USTC ¶9042], 297
U. S.
88, 99 (1936); Helvering v. Edison Bros. Stores, Inc. [43-1 USTC
¶9273], 133 F. 2d 575, 579 (8th Cir.), cert. denied, 319
U. S.
752 (1943). Clearly wages and salaries fall within this definition and
are therefore constitutionally taxable.
Appellant
claims that the trial court's instructions defining the offense and the
number of possible violations were erroneous. We do not reach these
allegations because appellant failed to object to these instructions at
trial as required by Fed. R. Crim. P. 30. In any event, appellant's
contentions are totally lacking in merit.
Appellant
maintains that the trial court erred in denying his motion pursuant to
Fed. R. Crim. P. 48(b) to dismiss the indictment for prosecutorial
delay. At trial appellant argued that the government's delay in charging
appellant prejudiced the defense because witnesses' memories had dimmed.
The district court rejected this argument, finding neither actual
prejudice nor unreasonable delay. See United States v. Lovasco,
431
U. S.
783, 789-90 (1977); United States v. Taylor, 603 F. 2d 732, 735
(8th Cir.), cert. denied, 444
U. S.
982 (1979). On appeal, appellant claims for the first time that he
should have been indicted earlier to prevent him from committing so many
offenses. A defendant must raise before trial by motion any objections
based on defects in the indictment. Fed. R. Crim. P. 12(b)(2). Failure
to raise nonjurisdictional objections prior to trial constitutes waiver
of such objections. Fed. R. Crim. P. 12(f). We observe, however, that
the contention while perhaps imaginative is essentially frivolous.
Finally,
appellant alleges that the district court erroneously admitted evidence
of other acts in violation of Fed. R. Evid. 404(b). This contested
evidence consisted of a letter from the IRS to appellant dated May 6,
1983, concerning appellant's failure to claim any exemptions on his Form
W-4, and appellant's reply letter of May 18, 1983, in which appellant
propounded eight questions challenging the government's right to tax his
wages as income.
It
is settled that evidence of other crimes or acts is admissible under
Fed. R. Evid. 404(b) to show intent, plan, or absence of mistake, so
long as four additional prerequisites are met, i. e., (1) a
material issue has been raised; (2) the proffered evidence is relevant
to that issue; (3) the evidence of other crimes is clear and convincing;
and (4) the evidence relates to wrongdoing similar in kind and
reasonably close in time to the charge at trial.
United
States v. Farber [80-2 USTC ¶9580], 630 F. 2d 569, 571 (8th Cir.
1980), cert. denied, 449
U. S.
1127 (1981).
In
the case at bar, the government offered the contested evidence to show
appellant's willfulness in failing to file. Appellant contends that the
evidence did not meet the fourth prerequisite listed above because the
correspondence was far removed in time from the crimes charged. We
disagree. Both of the contested letters were executed less than two
years after the return date for 1981. See id. at 572 (three and
one-half years reasonably close in time). Moreover, subsequent tax
paying conduct is relevant to the issue of willfulness in a prior year. 2
Id.
Accordingly,
the judgment of the district court is affirmed.
1
The Honorable D. Brook Bartlett, United States District Judge, Western
District of
Missouri
.
2
In his reply brief appellant mentions that his consecutive sentences are
excessive in that he was found guilty of a misdemeanor for which the
maximum punishment cannot exceed one year. He cites no authority in
support of this contention and we know of none applicable to the
circumstances of this case.
[2002-1
USTC ¶50,239]
United States of America
, Plaintiff-Appellee v. Donald P. Thibodeaux, Defendant-Appellant
(CA-7),
U.S.
Court of Appeals, 7th Circuit, 00-2325, 9/14/2001, 19 Fed. Appx. 409
19 Fed. Appx. 409
2001
U.S.
App. LEXIS 28337. Affirming an unreported District Court decision.
[Code
Sec. 7203 ]
Conviction: Tax evasion: Willful failure to file returns: Tax
protestor: Constitutional arguments: Frivolous claims: Sixteenth
Amendment.--Sufficient evidence existed to sustain multiple counts
of a tax protestor's convictions for tax evasion and willful failure to
file returns. The government did not violate precedent when it produced
nothing in response to the taxpayer's request for it to provide all
relevant information necessary to his defense. Moreover, the taxpayer's
contention that the district court should have dismissed his indictment
on the ground that the Sixteenth Amendment was never properly ratified
was frivolous. Finally, his contention that federal prosecutors,
magistrates and circuit judges within the Seventh Circuit should be
disqualified from his case due to an alleged elaborate conspiracy lacked
merit.
Eric
Wilson, Office of U.S. Attorney,
Chicago
,
Ill.
, for plaintiff-appellee. Donald P. Thibodeaux,
Chicago
,
Ill.
, pro se.
Before:
FLAUM, Chief Judge, EASTERBROOK and KANNE, Circuit Judges.
è
Caution: This court has designated this opinion as NOT FOR
PUBLICATION. Consult the Rules of the Court before citing this case.ç
ORDER
Donald
Thibodeaux, a career tax protester who has not filed a tax return or
paid income taxes since 1979, appeals his conviction on four counts of
tax evasion, 26 U.S.C. §7201, and six counts of willfully failing to
file a tax return, 26 U.S.C. §7203. We affirm.
Thibodeaux
first argues that, because he repeatedly asked the government to provide
"all relevant information necessary for his defense" but
received nothing, the government necessarily violated Brady v.
Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). But Brady
does not require the government to gather information on a defendant's
behalf, as Thibodeaux seems to think, see United States v. Senn,
129 F.3d 886, 893 (7th Cir. 1997); the government need only disclose
favorable, material evidence already within its knowledge or control, see
United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001); United
States v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997). Even assuming
that the evidentiary items Thibodeaux describes exist, the government's
failure to disclose them would not have amounted to a Brady
violation: two of the items--an anti-tax "memorandum" sold
over the Internet and documents supporting Thibodeaux's theory that the
Sixteenth Amendment was "fraudulently obtained"--were easily
obtainable by Thibodeaux himself, see Senn, 129 F.3d at 893 (Brady
inapplicable to evidence defendant can obtain through "reasonable
diligence"); the others--a "dossier" on the district
judge and "files" on "government operatives"--have
no demonstrable relevance. Nor do we see the relevance of Thibodeaux's
excluded "rebuttal evidence" to the effect that no one really
"pays" taxes because
United States
currency lacks intrinsic value. This evidence was properly excluded.
Thibodeaux
next argues that the district court should have dismissed his indictment
on the ground that the Sixteenth Amendment was never properly ratified.
As if our earlier opinions foreclosing this line of argument were not
enough, see, e.g., United States v. Thomas [86-1 USTC ¶9354],
788 F.2d 1250, 1253-54 (7th Cir. 1986), Thibodeaux was personally
informed of the frivolousness of this argument when he sought
postconviction review of an earlier failure-to-file conviction in 1987.
The district judge wrote:
[Thibodeaux
contends that because] the Sixteenth Amendment was never properly
ratified, he was convicted under void criminal statues. . . .
.
. . Even if I were to consider this claim, I would dismiss it as
frivolous. The idea that the Sixteenth Amendment was never properly
ratified has been repeatedly rejected by the Seventh Circuit. . . .
Likewise, I reject the idea here.
United States
v. Thibodeaux, 1987
U.S.
Dist. LEXIS 7380, Nos. 87 C 5732 & 83 CR 968, 1987 WL 15738, at *1
(N.D. Ill. July 17, 1987). The argument is just as frivolous today.
Finally,
Thibodeaux contends that, due to their participation in an elaborate
conspiracy involving the IRS, various educational and financial
institutions, the Rockefeller family, and Israel's secret service, all
federal prosecutors in the Northern District of Illinois as well as all
magistrate, district, and circuit judges within the Seventh Circuit must
be disqualified or recused from his case. In addition to being wholly
conclusory, Thibodeaux's contentions have been rejected before. A
motions panel of this court denied Thibodeaux's petition for a writ of
mandamus based on similar arguments, and a district court denied a
series of comparable recusal motions Thibodeaux filed in a bankruptcy
appeal:
According
to Thibodeaux, the IRS protects itself from investigation by
blackmailing public officials, including a former
Illinois
governor, three former United States Attorneys, and several Northern
District of Illinois and Seventh Circuit judges, to name just a few.
Thibodeaux alleges that this "influence" prejudices the court
against his interests. Thibodeaux also accuses judges in this circuit of
treason and racketeering.
In
re Thibodeaux, 1991
U.S.
Dist. LEXIS 2203, No. 90 C 7377, 1991 WL 28271, at *2 (N.D. Ill. Feb.
22, 1991). The district court in that case noted that Thibodeaux alleged
no facts warranting recusal, only "reckless and malicious
speculation, conjecture and innuendo," and concluded that his
motions were frivolous.
Id.
at *3. Because this is an accurate description of Thibodeaux's argument
in this appeal, we do the same.
AFFIRMED.
[2001-2
USTC ¶50,604]
United States of America
, Plaintiff-Appellee v. Edgar F. Bradley, Edgar Francis Bradley II, Roy
Claudius Bradley, Defendants-Appellants
(CA-6),
U.S. Court of Appeals, 6th Circuit, 99-3765, 99-3767, 99-3769, 8/9/2001,
2001 U.S. App. LEXIS 18944. Affirming an unreported District Court
decision
[Code
Secs. 7203 and 7206
]
Crimes: Conspiracy to defraud the government: Willful failure to file
returns: Tax protestors: Individuals subject to tax: Miscellaneous
frivolous arguments.--Three pro se tax protestors were
properly convicted of conspiracy to defraud the government and willful
failure to file tax returns, and their sentences were upheld. On appeal,
they persisted in raising frivolous and patently meritless arguments.
They contended that they had no taxable income, the prosecutor committed
fraud upon the court because the income tax is voluntary and they had
committed no crimes, their indictment was not presented in open court,
the trial court lacked jurisdiction, and there was no "meeting of
the minds" among the statutes and regulations authorizing the
income tax. They also played a "name game," which involved
arguing that certain variations of their names were "corporate
fictions."
Before:
MOORE and COLE, Circuit Judges, ROSEN, District Judge. *
è
Caution: This court has designated this opinion as NOT FOR
PUBLICATION. Consult the Rules of the Court before citing this case.ç
ORDER
In
this consolidated appeal, Edgar F. Bradley ("Edgar I"); Edgar
Francis Bradley, II ("Edgar II"); and Roy Claudius Bradley
("Roy Claudius"), tax protestors proceeding pro se,
appeal their judgments of conviction and sentence. The case has been
referred to this panel pursuant to Rule 34(j)(1), Rules of the Sixth
Circuit. We unanimously agree that oral argument is not needed. Fed. R.
App. P. 34(a).
Edgar
I and Edgar II were each convicted by a jury of one count of conspiracy
to defraud the United States and three counts of willful failure to file
income tax returns, violations of 18 U.S.C. §371 and 26 U.S.C. §7203,
respectively. The jury convicted Roy Claudius of one count of each of
these crimes. Edgar I was sentenced to 60 months of imprisonment to be
followed by three years of supervised release. He was fined $150,000.
Edgar II was sentenced to 57 months of imprisonment to be followed by
three years of supervised release; he was fined $145,000. Roy Claudius
was sentenced to 46 months of imprisonment to be followed by three years
of supervised release, and he was fined $118,500. Each defendant was
ordered to pay $635,925 in restitution.
On
appeal, the Bradleys raise only frivolous tax-protestor arguments or
patently meritless contentions. For example, Edgar I argues that: (1)
neither he, nor most Americans, has any taxable income; (2) the
prosecutor committed a fraud upon the court because the income tax is
voluntary, therefore, no crime exists in this case; and (3) the grand
jury indictment was not presented in open court and is therefore
defective, and the district court had no jurisdiction. Edgar I also
plays the "name game," contending that "Edgar Francis;
Bradley" is a natural born man of the State of
Ohio
, while "Edgar F. Bradley" is merely a corporate fiction.
Edgar II essentially reasserts the arguments of Edgar I, while adding,
without supporting argument, that the Supreme Court's recent decision in
Apprendi v.
New Jersey
, 530
U.S.
466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000), somehow compels a reversal
of the Bradleys' convictions. Edgar II also adds a contention that United
States v. Lopez, 514
U.S.
549, 131 L.Ed.2d 626, 115 S.Ct. 1624 (1995), demonstrates that Congress
lacks the power to tax income. Finally, Roy Claudius plays the name game
using variations involving capital letters, he repeats the arguments of
his codefendants, and he argues that there is no "meeting of the
minds" among the statutes and regulations that authorize the income
tax.
These
arguments have been rejected as frivolous in previous cases, See,
e.g., United States v. Mundt [94-2 USTC ¶50,366], 29 F.3d 233, 237
(6th Cir. 1994) (citing cases), or are patently meritless.
Accordingly,
all pending motions are denied, and we affirm the judgments of
conviction and sentence. Rule 34(j)2)(C), Rules of the Sixth Circuit.
*
The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
[94-2
USTC ¶50,366]
United States of America
, Plaintiff-Appellee v. Schubert E. Mundt, Defendant-Appellant
(CA-6),
U.S. Court of Appeals, 6th Circuit, 93-2623, 7/11/94, 29 F3d 233,
Affirming an unreported District Court decision
[Code Secs.
1 and 7203 ]
Crimes: Failure to file returns: Jurisdiction: Frivolous
constitutional claim.--An individual's conviction on charges of
failing to file returns for two years was upheld. His argument that the
trial court lacked jurisdiction because he was not a resident of a
"federal zone" was rejected as frivolous. The Sixteenth
Amendment authorizes a direct nonapportioned tax on
U.S.
citizens throughout the nation, not just in federal enclaves.
Richard
Delonis, James C. Mitchell, Assistant United States Attorneys, 231 W.
Lafayette Blvd., Detroit, Mich. 48226, for plaintiff-appellee. Richard
M. Helfrick, 645 Griswold, Detroit, Mich. 48226, Schubert E. Mundt, P.O.
Box 7, Manchester, Ky. 40962, for defendant-appellant.
Before
KENNEDY and JONES, Circuit Judges; and GRAHAM, District Judge. *
KENNEDY,
Circuit Judge:
Defendant
Schubert E. Mundt appeals his conviction and six-month sentence for
failing to file federal income tax returns for the tax years 1983 and
1984, in violation of 26 U.S.C. §7203 . Defendant argues
that the three and a half year time lapse between the date of the
indictment and the date of his arrest violated his Sixth Amendment right
to a speedy trial. He also contends that the District Court lacked
jurisdiction over him because he is not the resident of any
"federal zone." For the reasons that follow, we affirm.
I.
On
February 8, 1989, a grand jury handed down a two-count indictment
charging defendant with tax evasion for the years 1983 and 1984. Federal
officials did not arrest defendant until July 3, 1992. Upon motion of
defendant, the indictment was dismissed for failure to allege an
essential element of the crime. On March 30, 1993, a grand jury issued a
two-count superseding indictment charging defendant with the failure to
file income tax returns for the years 1983 and 1984. On June 14, 1993,
the court conducted an evidentiary hearing on defendant's previously
filed motion to dismiss for violation of his Sixth Amendment right to a
speedy trial and denied it. After a first jury trial ended in a
mistrial, a second jury found defendant guilty of both counts. The court
sentenced defendant to six months on each count, to be served
concurrently. Defendant timely appealed.
II.
Defendant
did not file a single valid federal income tax return with the Internal
Revenue Service ("IRS") from 1966 through 1991. In 1980,
defendant was convicted of tax evasion and sentenced to three
consecutive one-year terms of imprisonment. On February 2, 1983, he was
released on parole. Defendant violated the terms of his parole when he
again failed to file a return for 1983 and was returned to jail on
November 3, 1984.
In
1985, IRS special agent Joseph Boley began an investigation of
defendant, which led to the present charges. On August 15, 1985, Boley
located defendant at his workplace, Final Engineering and Development
("FEDCO"). Boley told defendant that he was investigating
defendant's tax status for the years 1983 and 1984. At that time, Boley
learned that defendant was living out of his car and sleeping at FEDCO.
Boley also learned of defendant's beliefs that he was not obligated to
pay federal income taxes because he did not live in a federal zone,
because he was a member of the underground economy working for cash as a
natural person, and because he did not own any privileges or was not a
member of a privileged class.
After
the investigation was completed, the IRS recommended prosecution to the
U.S. Department of Justice. On March 3, 1987, a letter was mailed to
Mundt at the FEDCO address informing him of the recommendation. By 1987,
FEDCO had gone out of business with no forwarding address and the
letter, which was returned to sender, never reached defendant.
The
original two-count indictment was returned in February 1989. Boley began
looking for defendant in July 1989. From defendant's driver's license
number and car registration, Boley obtained two addresses for defendant,
one in Howell, Michigan and the other at a motel in Port Huron,
Michigan. The investigation of these addresses was fruitless. A
subsequent check with the Secretary of State revealed that defendant had
changed his address to a second motel in
Port Huron
. Boley checked both motels periodically during 1990 and 1991 to no
avail. Boley learned from motel managers that defendant would stay for a
week or two at a time on occasion. After learning from a motel employee
that defendant may have gone to
Florida
and knowing that defendant had once held a real estate license, Boley
checked with both
Florida
and
Michigan
authorities to see if defendant had renewed his license; he had not.
Boley was not alone in his problems of locating defendant; the
collection division of the IRS closed down an investigation of defendant
in September of 1990 because it could not find him.
In
July 1991, Boley learned that defendant might be working for a business
called CDI. Boley monitored CDI's premises looking unsuccessfully for
defendant's car.
Aware
that defendant had reached retirement age, Boley explored a hunch that
defendant might be collecting social security benefits. The Social
Security Administration provided two different address for defendant:
(1) a post office box in
Westland
,
Michigan
; and (2) Mail Boxes Etc., a mail forwarding service company in
Sterling Heights
,
Michigan
. Boley's hunch proved to be correct. Defendant was receiving benefits
and the checks were being directly deposited into the Research Credit
Union. Boley then learned that shortly after the funds were deposited,
the money would be withdrawn. The two branches of the credit union where
the withdrawals were made were surveilled and on July 3, 1992, when
defendant arrived to make a withdrawal, he was arrested.
III.
The
Sixth Amendment guarantees that, "[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy . . . trial . . . ."
The Supreme Court has developed a four-part balancing test to use in
determining whether a defendant's right to a speedy trial has been
violated: (1) the length of the delay; (2) the reasons for the delay;
(3) whether the defendant has asserted his right; and (4) prejudice to
the defendant. Barker v. Wingo, 407
U.S.
514, 530-32 (1972). The test was crafted to deal with the
"vague," "amorphous," and "slippery"
quality of the right, which "is necessarily relative . . . . [and]
consistent with delays and depends upon circumstances."
Id.
at 521-22 (citation omitted).
