Assault
7212-
Interference with Administration of Internal Revenue Laws: Assault
[80-1 USTC ¶9223]
United States of America
, Plaintiff-Appellee v. Glenn O. Young, Defendant-Appellant
(CA-10),
U. S. Court of Appeals, 10th Circuit, No. 78-1944, 614 F2d 243,
1/30/80
, Affirming unreported District Court decision
[18 U. S. C. §111]
Assault on IRS agent: Official duties: Conviction affirmed.--The
conviction of a taxpayer for assaulting an IRS agent following the
service of a summons in connection with an audit was affirmed. Whether
the summons was properly served was not relevant to the fact that the
agent was acting within the scope of his duties as a Revenue Agent when
struck.
Hubert H.
Bryant, United States Attorney, George Carrasquillo, Assistant United
States Attorney, Tulsa, Oklahoma 74103, for plaintiff-appellee. Wesley
R. Thompson, Glenn O. Young, pro se.
Before
MCWILLIAMS, BARRETT and MCKAY, Circuit Judges.
MCWILLIAMS,
Circuit Judge.
Glenn O. Young
was convicted by a jury of having willfully and forcibly assaulted one
Conrad Carson, an agent with the Internal Revenue Service, while the
agent was engaged in the performance of his official duties, in
violation of 18 U. S. C. §111. Young was fined $3,000. He appeals the
sentence thus imposed. We affirm.
Conrad Carson,
an agent for the Internal Revenue Service, was assigned to audit Young's
1976 tax return. By both letter and telephone
Carson
contacted Young in an effort to arrange a mutually satisfactory time for
him to start his audit of Young's tax return.
Carson
's efforts were unavailing. Accordingly, on
May 8, 1978
,
Carson
drove from his residence in
Tulsa
,
Oklahoma
to
Sapulpa
,
Oklahoma
, intending, if possible, to interview Young in the latter's law offices
in
Sapulpa
.
Carson
had with him an Internal Revenue Service summons which was filled out,
except for the date and
Carson
's signature.
Carson
's testimony was that if voluntary efforts were unsuccessful, he
intended to serve Young with the summons.
According to
Carson
, he identified himself to Young as an agent of the Internal Revenue
Service. Young then escorted
Carson
into his inner office. There Young refused to answer any questions and
asked
Carson
to leave. An argument ensued, and, according to
Carson
, Young became loud and abusive.
Carson
then informed Young that he had a summons for him to appear and produce
such records as were necessary for an audit.
Carson
then dated and signed the summons, and he left it on the edge of Young's
desk. As
Carson
was leaving the office Young followed him a few steps, kicked
Carson
in the rear with his knee, and then struck
Carson
in the head with his fist.
The sequence
of events is not really in dispute. The assault was corroborated by two
of Young's own office employees. Indeed, Young in his pro se
closing argument stated that if he were guilty of anything it was that
he didn't "kick him harder and quicker and longer."
At this stage
of the proceedings the evidence must be viewed in a light most favorable
to the party prevailing in the trial court, i.e., the Government.
United States
v.
Butler
, 446 F. 2d 975, 978 (10th Cir. 1971). The evidence, as outlined
above, clearly establishes an assault.
Young's pro
se brief is hard to follow, but it would appear to be his primary
contention that at the time of the fracas
Carson
was not engaged in the performance of his official duties. Young seems
to argue that the summons was not properly served on him, and that
because of such
Carson
was not about his official duties at the time of the assault. We do not
agree with this reasoning.
United
States v. Heliczer, 373 F. 2d 241 (2nd Cir.), cert. denied,
388
U. S.
917 (1967) presents a fact situation quite analogous to the instant one.
There the defendant was convicted of assaulting a federal narcotics
agent in violation of 18
U. S.
C. §111. The defendant claimed that the agent was not about his
official duties because the arrest which the agent was trying to make
was an illegal one. The Second Circuit rejected this argument and in so
doing stated that `engaged in . . . the performance of his official
duties' is simply acting within the scope of what the agent is employed
to do." The Court went on to observe that the true test is whether
"the agent is acting within that compass or is engaging in a
personal frolic of his own." The Court specifically held that an
agent who has made an arrest does not lose his "official
capacity," for the purpose of determining the applicability of 18
U. S.
C. §111, simply because the arrest be subsequently adjudged unlawful.
The rationale
of Heliczer is persuasive. As applied to the instant case, agent
Carson was engaged in the performance of his official duties when he
presented himself at Young's offices. In driving from his residence in
Tulsa
to Young's law offices in
Sapulpa
,
Carson
most certainly was not engaged in a person frolic of his own. In
line with Heliczer, we are not here concerned with whether the
service of the IRS summons on Young constituted valid service. Even
assuming that such was not proper service, such fact would not mean that
under 18
U. S.
C. §111
Carson
was somehow acting outside his official duties.
Young's other
arguments, to the extent that we understand them, have been considered
and found lacking. They simply indicate a general dissatisfaction with
the tax laws and the Internal Revenue Service. See in this general
connection Armstrong v. United States, 306 F. 2d 523 (10th Cir.
1962) where we held that a defendant's good faith belief in the
propriety of his action is not a defense to the crime defined in 18
U. S.
C. §111.
At oral
argument, Young, an 84-year-old lawyer, complained about the severity of
his sentence. The sentence is within the statutory limits, and such
being the case, we as an appellate court are not at liberty to disturb
it. If Young wants any relief in this regard, he may of course ask the
trial court to consider a reduction in his sentence under the provisions
of Fed. R. Crim. P. 35.
United States
v. Sierra, 452 F. 2d 291 (10th Cir. 1971).
Judgment
affirmed.
[85-1 USTC ¶9202]
United States of America
, Plaintiff-Appellee v. Jerome Przybyla, Defendant-Appellant
(CA-9),
U. S. Court of Appeals, 9th Circuit, No. 83-3113, 737 F2d 828,
7/17/84
, Affirming an unreported District Court decision
[Code Sec. 7212 and 18 U. S. C. §111]
Criminal penalties: Interference with administration of laws: Rescue
of seized property: Assaulting an IRS agent.--The court affirmed the
taxpayer's conviction for assaulting an IRS agent and impeding the
administration of the tax laws. The taxpayer admitted to drawing a
weapon to compel the agents, who were attempting to seize his property,
to leave his property and there was evidence from which a jury could
conclude that he did so wilfully. His acquittal on the charge of
attempting to rescue seized property, even if inconsistent with his
conviction on the other charges, was not a ground for reversal. Also,
even if the agents' pretrial and trial statements were not identical,
the testimony was not perjured or deliberately misleading, and there was
no basis for setting aside the verdicts.
Sue Ellen
Tatter, Assistant United States Attorney,
Anchorage
,
Alaska
99513
, for plaintiff-appellee. Jeffrey L. Shrom,
Missoula
,
Montana
, for defendant-appellant.
Before
BROWNING, Chief Judge, CANBY, Circuit Judge, and WILLIAMS *,
District Judge.
Opinion
PER CURIAM:
Appellant was
convicted of assaulting an IRS agent and impeding the administration of
the tax laws. 18 U. S. C. §111; 26 U. S. C. §7212(a). We affirm.
Three Internal
Revenue Service (IRS) agents attempted to seize appellant's real
property to satisfy a tax deficiency. Appellant was informed that agents
would arrive the day of the visit to carry out the seizure. When the
agents presented themselves, appellant, without identifying himself,
requested they leave the property. The agents began to post seizure
notices despite appellant's request. Appellant repeated his request and
drew a gun. The trial testimony does not clearly establish that
appellant pointed the gun directly at any of the agents, but he did
click off the safety and wave the gun in their general direction as he
escorted them off his property.
Appellant was
indicted for assaulting an IRS agent, impeding the administration of the
tax laws, and attempting to rescue property after it was seized, in
violation of 18 U. S. C. §111 and 26 U. S. C. §§ 7212(a), 7212(b).
The jury convicted appellant of the first two offenses, and acquitted
him of attempting to rescue seized property.
(1)
Jurisdiction of the District Court.
Appellant
argues the district court has jurisdiction only of prosecutions under
Title 18, and not of prosecutions under Title 26. The language of 18
U. S.
C. §3231 is not limited. It grants district courts jurisdiction
"of all offenses against the laws of the
United States
." Appellant argues, however, that according to the Reviser's
Notes, section 3231 was intended to effect no change in substance in
prior sections that had explicitly granted jurisdiction only over Title
18 offenses. This language in the Reviser's Note, however, refers only
to the House Bill. A Senate amendment to the 1948 revision broadened
this section to include all crimes against the
United States
. See S. Rep. 1620, 80th Cong., 2d Sess., reprinted in 1948 U. S.
Code Cong. Serv. 2427, 2430-31. Under the unambiguous language of
section 3231, the district court clearly had jurisdiction over Title 26
offenses. See, e.g.,
United States
v. Drefke [83-1 USTC ¶9354], 707 F. 2d 978, 981 (8th Cir. 1983); United
States v. Eilertson [83-1 USTC ¶9363], 707 F. 2d 108, 109 (4th Cir.
1983).
(2)
Use of Force.
Appellant
argues that his conviction violates due process because he acted in
reliance on an IRS pamphlet referring to a taxpayer's "right to
refuse to permit Collection personnel to enter upon [the taxpayer's]
private property when the purpose of the visit is to conduct a seizure
of [the taxpayer's] assets." Nothing in the IRS pamphlet implies
that a taxpayer could use a weapon to enforce his request. Even if
appellant were justified in requesting the agents to leave his property,
see G. M. Leasing Corp. v. United States [77-1 USTC ¶9140], 429
U. S.
338, 354 (1977), use of a weapon was unlawful. See
United States
v. Johnson, 542 F. 2d 230, 233 (5th Cir. 1976);
United States
v. Cunningham, 509 F. 2d 961, 963 (D. C. Cir. 1975). Appellant
failed to identify himself and made no attempt to discuss his reason for
requesting that the agents leave his property. He simply decided that a
show of force was necessary to get the agents to leave. Appellant's
conviction does not involve any fundamental unfairness or violation of
due process.
(3)
Sufficiency of the Evidence and Inconsistent Verdicts.
Appellant
argues his conviction on Counts I and II "was against the weight of
the evidence and contrary to the law."
If appellant
is arguing that the evidence was insufficient to convict, the argument
has no merit. Viewing the evidence in the light most favorable to the
government, see Glasser v. United States, 315
U. S.
60, 80 (1942), a rational jury could conclude that all elements of both
Counts I and II had been proven. Appellant admits to drawing a weapon to
compel the agents to leave his property, knowing that they were federal
agents. There was evidence from which a jury could conclude he did so
wilfully.
If appellant
is arguing that the verdicts are inconsistent, that argument is still
meritless. The jury could have acquitted appellant of the charge under
26 U. S. C. §7212(b) because it concluded that at the time appellant
drew his gun he did not know the property had been seized as required by
this section. In any event, inconsistent jury verdicts are generally not
a ground for reversal, see United States v. Upshaw, 685 F. 2d
1202, 1203 (9th Cir. 1982), even when a "conviction is rationally
incompatible with an acquittal."
United States
v.
Brandon
, 633 F. 2d 773, 779 (9th Cir. 1980).
(4)
Testimony of the IRS Agents.
Appellant's
final argument is that the verdicts must be set aside because they are
based on perjured or deliberately misleading testimony. Appellant
asserts the testimony of the agents at trial that appellant pointed the
gun directly at one of them conflicts with earlier statements by the
agents. This testimony, appellant argues, could have affected the jury's
conclusion on the issue of appellant's wilfulness.
We find no
merit in appellant's claim. The agents' pre-trial statements were not
inconsistent with their trial testimony. Agent
Atchison
testified before the grand jury and at trial that she saw the gun
pointed directly at Agent Erickson before she turned to the other agents
to suggest they leave. Agent DeMay's pretrial statement to an IRS
investigator that he "never saw the gun pointed directly at
anyone" was not inconsistent with his trial testimony that the gun
was pointed "in the direction of" Agent Erickson. Under
cross-examination at trial Agent DeMay repeated the substance of his
pretrial statement and explained any apparent inconsistency by
testifying, "It was pointed toward the direction of Dave Erickson.
I did not see it pointed directly at him but I did see it at that
angle." Finally, Agent Erickson's pretrial statement that he did
not see the gun pointed directly at him was not necessarily inconsistent
with his trial testimony that the gun was pointed in his direction from
time to time.
Even if the
agents' pretrial and trial statements were not identical, there was no
justification for setting aside the verdicts. Appellant received copies
of the prior statements of the witnesses and used them during
cross-examination. See
United States
v. Cervantes, 542 F. 2d 773, 776-77 (9th Cir. 1976). The jury
was fully informed of the alleged discrepancies and concluded the
evidence was sufficient to convict.
AFFIRMED.
*
Honorable Spencer M. Williams, District Judge, United States District
Court for the Northern District of California, sitting by designation.
[85-2 USTC ¶9625]United States of
America, Plaintiff-Appellee v. Joseph Afflerbach, John Cotton, Michael
Cotton, Harvey M. Annis, and Murray Watson, Defendants-Appellants
(CA-10),
U. S. Court Of Appeals, 10th Circuit, Nos. 82-1710, 82-1984, 82-1985,
82-1986, 82-1987,
1/18/85
, Affirming and vacating an unreported District Court decision
Crimes: Assault: Levy: Notice.--The court of appeals affirmed the
convictions of the defendants under 18 U. S. C. §§ 111 and 924(c) for
forcibly interfering or assaulting federal officers and the use of
firearms in the commission of a felony. The district court properly
entered an order for the seizure of farm equipment belonging to one of
the defendants and therefore, the seizure of the property for failure to
pay taxes was legal. Additionally, tagging the defendant's property
constituted proper notice under the requirements of G. M. Leasing
Corp. v. United States, 429 U. S. C. 338 (1977) and the version of
28 U. S. C. §6331 applicable at the time. Since the remaining
defendants helped to prevent the IRS from seizing the property, the
district court did not err in instructing the jury that third persons
did not have the right to assist a person whose property the IRS is
trying to seize.
Michael G.
Katz, Vicki Mandell-King,
1201 18th St.
,
Denver
,
Colo.
, for defendants-appellants. Richard A. Stacy, United States Attorney,
Francis Leland Pico, Assistant United States Attorney, Cheyenne, Wyoming
82001, Lisa Leschuck, Cheyenne, Wyoming, for plaintiff-appellee.
Before MCKAY,
DOYLE and LOGAN, Circuit Judges.
DOYLE, Circuit
Judge:
After
examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P.
34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted
without oral argument.
This is an
appeal by Joseph Afflerbach, John Cotton, Michael Cotton, Harvey Annis,
and Murray Watson from their criminal convictions in the United States
District Court for the District of Wyoming. We affirm the judgments of
conviction.
The facts are
that for some time the Internal Revenue Service ("IRS") had
tried to collect taxes due from appellant Harvey Annis. The IRS secured
a judicial determination that Annis owed the money, United States v.
Anderson, et al, No. 81-1349, slip op. (10th Cir.
Nov. 23, 1981
) (per curiam); United States v. Annis [80-2 USTC ¶9801], 634 F.
2d 1270 (10th Cir. 1980), and sent him several deficiency notices. Annis
failed to respond to the notices and this caused the district court to
issue an order on
July 17, 1981
, allowing IRS agents to enter Annis's farm and seize machinery and
equipment to satisfy the deficiency.
IRS Special
Agents Benjamin Baker and Robert Freeland proceeded to inspect the Annis
property to make certain of its exact location. They returned with
Revenue Officers Andrew Tagliavore and John Dalrymple and Natrona County
Deputy Sheriff Gerald Wushbon. Officer Tagliavore testified that the
special agents were necessary because of Annis's past resistance, and
that a confrontation could possibly be anticipated. The agents began
tagging the equipment specified in the order. After that, as some of the
machinery was being readied to be towed away, apellant Murray Watson
arrived. Watson asked Deputy Wushbon to arrest the agents for stealing
the equipment, claiming that much of it belonged not to Annis but to the
other appellants. Agent Baker told Watson that if he could document his
ownership of the equipment, the equipment would not be taken. Watson
left the Annis farm in order to obtain the necessary documents and to
notify the other appellants.
Just as the
agents began to leave, the appellants drove their trucks to the entrance
of the farm. There is some dispute whether the vehicles blocked the
agents' exit. The appellants, armed with pistols, 12-gauge shotguns, and
a Colt AR 15 semi-automatic rifle, got out of their trucks and
approached the agents. Appellants Afflerbach, John Cotton, and Michael
Cotton confronted Agent Freeland and Deputy Wushbon, threatening them
with violence. Simultaneously appellants Annis and Watson discussed the
situation with Agent Baker. At last the agents agreed to leave the
equipment on the Annis property if the appellants would put away their
weapons. No one was harmed, and the appellants returned to their trucks.
The IRS has not attempted seizure of the equipment since that incident.
On September
4, 1981 the appellants were indicted. Count I charged them with
violation of 18 U. S. C. §111 1 and §2 2
for forcibly interfering with or assaulting federal officers. Only
appellant Watson was not charged in that count with the use of a deadly
weapon. Count II charged all but Watson with violation of 18 U. S. C. §924(c)
3
for the use of a firearm in the commission of a felony. Trial was held
in the United States District Court for the District of Wyoming.
Afflerbach,
John Cotton, and Michael Cotton were convicted on both counts. Annis and
Watson were found guilty of a lesser included offense under Count I,
that of forcibly interfering with a federal officer without the use of a
deadly weapon, and were found not guilty of Count II. Afflerbach was
sentenced to seven years' imprisonment on Count I, followed by five
years' probation on Count II. John Cotton was sentenced to two years'
imprisonment on Count I, followed by five years' probation on Count II.
Michael Cotton received eighteen months' imprisonment on Count I and
four years' probation on Count II. Annis and Watson were sentenced to
three years' probation on Count I, three months of which were to be
served in jail. All five appellants appeal on various grounds.
Appellants
first claim was that the district court abused its discretion by failing
to grant their motion for transfer within the district. Appellants had
moved for the trial to be held in
Casper
, where they, along with their attorney and some of their witnesses,
lived. The district court denied the motion, deciding that for security
reasons, the trial should be held in
Cheyenne
, where the federal marshal's personnel were more readily available.
Rule 18, F. R. Cr. P. provides that "[t]he court shall fix the
place of trial within the district with due regard to the convenience of
the defendant and the witnesses and the prompt administration of
justice." Appellants argue that the district court failed to
consider their convenience in setting the place of trial.
This
court has held that the mere fact that a defendant's home is nearer one
trial site than another is insufficient to merit transfer. United
States v. Lawson [82-1 USTC ¶9197], 670 F. 2d 923, 926 (10th Cir.
1982). A defendant must allege "specific prejudice," resulting
from the court's refusal to transfer.
Id.
Appellants here have failed to establish any such prejudice.
Furthermore, Rule 18 allows a court to consider "the prompt
administration of justice" in fixing the place of trial and matters
of security clearly fall within that consideration. Hence the district
court did not abuse its discretion in denying appellants' motion to
transfer the trial to
Casper
.
Second,
the appellants argue that the district court erred in denying their
motion to stay the proceedings because nonregistered voters were not
included in the jury pool. The District of Wyoming chooses its
prospective jurors solely from voter registration lists, a process which
appellants claim precludes the selection of a fair cross-section of
jurors.
The
statute, 28 U. S. C. §1861, allows litigants "the right to grand
and petit juries selected at random from a fair cross section of the
community in the district or division wherein the court convenes."
Section 1863(b)(2) provides the voter registration lists are to be the
primary source of prospective jurors. "The supplementation of voter
lists is the exception, not the rule, and absent a showing of deficient
representation the use of an approved jury selection process is
lawful." United States v. Bennett, 539 F. 2d 45, 55 (10th
Cir.), cert. denied, 429
U. S.
925 (1976). Appellants can prevail only if they show that the district's
reliance on registration lists systematically excluded a distinct,
cognizable class of persons from jury service. United States v. Test,
550 F. 2d 577, 586 (10th Cir. 1976); United States v. Grismore,
546 F. 2d 844, 848 (10th Cir. 1976);
United States
v. Bennett, supra at 55. Persons who choose not to register to
vote do not comprise such a cognizable group. Reed v. Wainwright,
587 F. 2d 260, 264 (5th Cir. 1979);
United States
v. Lewis, 472 F. 2d 252, 256 (3d Cir. 1973). The district court
thus properly denied appellant's motion to stay proceedings in that the
appellants failed to establish that the jury selection process
systematically excluded a cognizable class.
Third,
appellants advance the contention that the IRS agents' attempted seizure
of equipment was itself illegal and that therefore the appellants had
the right to resist. The IRS has the right to levy the property of a
taxpayer who has failed to pay any federal tax. 26 U. S. C. §6331(a).
The district court order, allowing seizure of Annis's equipment, was
properly entered, and the seizure was legal. 4
The appellants had no right to resist the IRS agents. This circuit has
held that a third person has no right to intervene in an arrest when he
knows or has reason to know the officer is authorized to make the
arrest.
United States
v. Vigil, 431 F. 2d 1037, 1042 (10th Cir. 1970). By analogy, the
appellants here had no right to resist the seizure of equipment when the
agents clearly identified themselves and showed the appellants a copy of
the district court order.
Fourth,
appellants advance the argument that they were denied their Sixth
Amendment right to effective assistance of counsel. They maintain that
their attorney was not prepared, failed to file all motions requested by
the appellants, and filed other motions that were insufficient. The
trial record establishes that appellants' lawyer exercised "the
skill, judgment and diligence of a reasonably competent defense
attorney," as required by this circuit. United States v. Golub,
694 F. 2d 207, 213 (10th Cir. 1982); United States v. Crouthers,
669 F. 2d 635, 643 (10th Cir. 1982); Dyer v. Crisp, 613 F. 2d
275, 278 (10th Cir.), cert. denied, 445
U. S.
945 (1980). The attorney's decision not to file all motions requested by
his clients was not ineffective assistance of counsel. Effective
assistance "does not demand that every possible motion be filed,
but only those having a solid foundation." United States v.
Crouthers, supra at 643, quoting United States v. Hines, 470
F. 2d 225, 232 (3d Cir. 1972), cert. denied, 410
U. S.
968 (1973).
Appellants'
fifth claim is that the district court erred in instructing the jury
that third persons (for example, Watson, Afflerbach, John Cotton, and
Michael Cotton) do not have the right to intervene and assist the person
(Annis) whose property the IRS agents had attempted to seize. Appellants
assert that the instruction was misleading because they acted to prevent
the taking of their own property, not the property of another. It is
true that appellants are entitled to instructions on their theory of
defense only if there is evidence to reasonably support the theory. United
States v. Hoopes [76-2 USTC ¶9797], 545 F. 2d 721, 721 (10th Cir.
1976), cert. denied, 431
U. S.
954 (1977). As we stated earlier, the district court allowed the IRS to
confiscate Annis's property, not that of the other appellants. The order
was presumptively legal, and the appellants did not present any evidence
that the machinery belonged to them. In any event, appellants' presence
on Annis's property prevented the IRS agents from confiscating any of
Annis's equipment.
Sixth,
appellants make the argument that the IRS lacked
"jurisdiction" over Annis' equipment because Annis was not
given advance notice of the levy. However, notice of that levy comported
with the requirements of both G. M. Leasing Corp. v. United States
[77-1 USTC ¶9140], 429 U. S. 338, 350 (1977) ("Levy upon tangible
property normally is effected by service of forms of levy or notice of
levy and physical seizure of the property; where that is not possible,
the property is posted or tagged") and the version of 28 U. S. C.
§6331 then in effect (ten-day notice not required in these
circumstances).
Last,
appellants argue that they were charged under the wrong statute and that
the sentences they received constitute cruel and unusual punishment.
Appellants' assertion of cruel and unusual punishment must fail because
the sentences they received were all within the statutory limits.
United States
v. MacClain, 501 F. 2d 1006, 1013 (10th Cir. 1974). However, Busic
v. United States, 446
U. S.
398 (1980) compels us to vacate the probationary sentences received by
Afflerbach, John Cotton, and Michael Cotton for violation of 18
U. S.
C. §924(c). Because these appellants were convicted under 18
U. S.
C. §111, which contains its own enhancement of sentence provision,
their sentences cannot be further enhanced by §924(c). Thus, although
we affirm all the appellants' convictions and sentences under §111, we
must vacate the sentences received by Afflerbach, John Cotton, and
Michael Cotton under §924(c).
1
18
U. S.
C. §111 provides:
Whoever
forcibly assaults, resists, opposes, impedes, intimidates, or interferes
with any person designated in section 1114 of this title while engaged
in or on account of the performance of his official duties, shall be
fined not more than $5,000 or imprisoned not more than three years or
both.
Whoever,
in the commission of any acts uses a deadly or dangerous weapon, shall
be fined not more than $10,000 or imprisoned not more than ten years, or
both.
2
18
U. S.
C. §2 provides:
(a)
Whoever commits an offense against the
United States
or aids, abets, counsels, commands, induces or procures its commission,
is punishable as a principal.
(b)
Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the
United States
, is punishable as a principal.
3
18
U. S.
C. §924(c) provides:
(c)
Whoever--
(1)
uses a firearm to commit any felony for which he may be prosecuted in a
court of the
United States
, or
(2)
carries a firearm unlawfully during the commission of any felony for
which he may be prosecuted in a court of the United States, shall, in
addition to the punishment provided for the commission of such felony,
be sentenced to a term of imprisonment for not less than one year nor
more than ten years. In the case of his second or subsequent conviction
under this subsection, such person shall be sentenced to a term of
imprisonment for not less than two nor more than twenty-five years and,
notwithstanding any other provision of law, the court shall not suspend
the sentence in the case of a second or subsequent conviction of such
person or give him a probationary sentence, nor shall the term of
imprisonment imposed under this subsection run concurrently with any
term of imprisonment imposed for the commission of such felony.
4
Even if the seizure were illegal, appellants' recourse lies in a civil
proceeding, not in resisting the seizure themselves.
Dissenting
Opinion
MCKAY,
Circuit Julge, dissenting:
I
respectfully dissent. On
September 4, 1981
, defendants were indicted for impeding Internal Revenue Service agents
in carrying out a lawful levy on the property of defendant Harvey Annis.
Count I of the indictment charges violation of 18 U. S. C. §111 1
and 18 U. S. C. §2, and Count II of the indictment charges a violation
of 18 U. S. C. §924(c). 2
Defendant
Afflerbach was convicted and sentenced to seven years on Count I of the
indictment and was sentenced to a period of five years probation under
Count II of the indictment. Defendant John Cotton was sentenced to two
years under Count I of the indictment and to probation for a period of
five years under Court II of the indictment. Defendant Michael Cotton
was sentenced to incarceration for 18 months under Court I of the
indictment and to four years probation under Count II of the indictment.
Defendants Harvey Annis and Murray Watson were both convicted only under
Count I of the indictment and were sentenced to three years custody.
I.
Defendants Were Improperly Sentenced Under a General Criminal Statute
When Their Conduct Violated a Specific Statute
The
sentencing in the present case violates the time-honored rule of
statutory construction that "a more specific statute will be given
precedence over a more general one, regardless of their temporal
sequence." Busic v.
United States
, 446
U. S.
398, 406 (1980). This rule has long been followed to prevent a defendant
from being convicted under a general statute when a specific statute
more particularly describing his criminal conduct has been enacted. Enzor
v. United States, 262 F. 2d 172 (5th Cir. 1958) (conspiracy to sell
narcotics must be punished under statute respecting conspiracy to
violate narcotics laws, 26 U. S. C. §7237(b), rather than under general
conspiracy statute); United States v. Bates, 429 F. 2d 557 (9th
Cir. 1970) (conspiracy to sell narcotics must be punished under 26 U. S.
C. §7237 rather than under 18 U. S. C. §371, the general conspiracy
statute); Robinson v. United States, 142 F. 2d 431 (8th Cir.
1944) (property stolen from the post office must be punished under 18 U.
S. C. §313 rather than 18 U. S. C. §99, which prohibits stealing
personal property belonging to the United States).
The
continued reliability of this doctrine of statutory construction has
been called into question by a recent United States Supreme Court
opinion. In United States v. Batchelder, 442 U. S. 114 (1979),
the Court held that the U. S. Attorney had the discretion to choose
which of two statutes prohibiting receipt of firearms by a convicted
felon he would proceed under, even though the statute he proceeded under
carried a longer maximum term of imprisonment for its violation. Since Batchelder
some courts have held that there is no federal rule limiting the
government's discretion to proceed under a general statute in opposition
to the provisions of a specific statute. See
United States
v. Carpenter, 661 F. 2d 113 (5th Cir. 1980);
United States
v. Simon, 510 F. Supp. 232, 237 (E. D. Pa. 1981).
I
find this reliance on Batchelder improper and decline to follow
the reasoning of these cases. Batchelder did not involve a
general and a specific statute but dealt with two statutes which
proscribed, in almost identical terms, the conduct for which the
defendant was convicted. Thus the holding in Batchelder does not
undermine the long-standing rule that a specific statute governs over a
general statute, particularly in light of the
Busic Court
's subsequent reliance upon this doctrine in holding the general
enhancement statute section 924(c) inapplicable in face of the specific
enhancement provision found in section 111.
Moreover,
the rule that a specific statute should govern over a general statute
should not be lightly disregarded. As the Court explained in Simpson
v. United States, 435 U. S. 6 (1978), the rule that a specific
statute should prevail is a corollary to the rule of lenity
("ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity", United States v. Bass, 404 U.
S. 336, 347 (1971)), and has "special cogency where a court is
called upon to determine the extent of the punishment to which a
criminal defendant is subject for his transgressions. . . . [The rule
is] an outgrowth of our reluctance to increase or multiply punishments
absent a clear and definite legislative directive." Simpson,
435
U. S.
at 15.
I
therefore conclude that, despite Batchelder, the rule remains
that where a defendant is convicted of a specific crime for which
Congress has intentionally proscribed a more lenient punishment, the
prosecution and the courts are not at liberty to defy that specific
congressional mandate.
Title
18 U. S. C. §111 is a general statute that prohibits interference with
federal officers in the conduct of their duties, whereas 26
U. S.
C. §7212(a) prohibits the forcible interference with the duties of IRS
agents. 3
The indictment and evidence at trial proved a violation of 26
U. S.
C. §7212(a). From the foregoing discussion, it is clear that the
defendants were convicted under the wrong statute and were therefore
improperly sentenced.
II.
Defendants' Sentences Violated Busic v.
United States
While
normally (as the majority has noted) Busic v. United States, 446
U. S.
398 (1980), would require reversal of the section 924(c) sentence,
properly analyzed this case does not require this remedy. Title 26 U. S.
C. §7212(a) under which defendants should have been sentenced does not
contain an enhancement provision for the use of firearms. Thus,
sentencing under this provision can be accompanied by an enhanced
sentence under 18
U. S.
C. §924(c) without violating Busic.
III.
Remedy
The
remedy for sentencing under the wrong statute is to remand the case to
the district court for resentencing under the proper statute, 26
U. S.
C. §7212. See Enzor v.
United States
, 262 F. 2d 172, 175 (5th Cir. 1959);
United States
v. Bates, 429 F. 2d 557, 559-60 (9th Cir. 1970).
I
concur in the court's opinion as it relates to the first six issues
addressed therein. I would affirm but remand the case for resentencing
on Count I under 26
U. S.
C. §7212(a).
1
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in §1114 [including agents of the
I. R. S.] of this title while engaged in or on account of the
performance of his official duties, shall be fined not more than $5,000
or imprisoned not more than three years, or both.
Whoever,
in the commission of any such acts uses a deadly or dangerous weapon,
shall be fined not more than $10,000 or imprisoned not more than ten
years, or both. 18 U. S. C. §111.
2 Whoever--
(1)
uses a firearm to commit any felony for which he may be prosecuted in a
court of the
United States
, or
(2)
carries a firearm unlawfully during the commission of any felony for
which he may be prosecuted in a court of the United States, shall in
addition to the punishment provided for the commission of such felony,
be sentenced to a term of imprisonment for not less than one year nor
more than ten years. 18 U. S. C. §924(c).
3
(a) Corrupt or forcible interference.--Whoever corruptly or by force or
threats of force (including any threatening letter or communication)
endeavors to intimidate or impede any officer or employee of the United
States acting in an official capacity under this title, or in any other
way corruptly or by force or threats of force (including any threatening
letter or communication) obstructs or impedes, or endeavors to obstruct
or impede, the due administration of this title, shall, upon conviction
thereof, be find not more than $5,000, or imprisoned not more than 3
years, or both, except that if the offense is committed only by threats
of force, the person convicted thereof shall be fined not more than
$3,000, or imprisoned not more than 1 year, or both. The term
"threats of force", as used in this subsection, means threats
of bodily harm to the officer or employee of the
United States
or to a member of his family.
26
U. S. C. §7212(a).