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7212- Interference with Administration of Internal Revenue Laws: Rescue of Seized or Levied Property  

 

[68-2 USTC ¶9466] United States of America , Appellee v. Sylvan Scolnick, Sidney Brooks, Kenneth Paull, a/k/a "Harold Fleishman", Allen Rosenberg, Sidney Brooks, Appellant

(CA-3), U. S. Court of Appeals, 3rd Circuit, No. 16552, 392 F2d 320, 2/5/68, Aff'g unreported District Court decision

[1954 Code Sec. 7212(b)]

Crimes: Forceable rescue of seized property: State search warrant: Evidence obtained from state officers: Fourth amendment: Constitutionality.--Evidence concerning the existence of $100,000 in a safe deposit box owned by the defendant, obtained by the IRS from Philadelphia police who had examined the box under a state search warrant, and used by the IRS in order to seize the box (Sec. 6331(a)), could be used in a federal trial charging the defendant with forceably rescuing the box after IRS seizure. The search warrant obtained by the Philadelphia police was issued with probable cause. Even though a search of the box by the Philadelphia police violated a Pennsylvania law concerning searches of safe deposit boxes in criminal proceedings, such a search, if carried out by federal officers, would not have violated the Fourth Amendment.

[1954 Code Sec. 7212(b)]

Crimes: Forceable rescue of seized property: Evidence: Cross-examination.--The District Court did not err in refusing to permit the defendant to inspect, for purposes of cross-examination, the entire statements given to Government agents prior to trial by two Government witnesses.

[1954 Code Sec. 7212(b)]

Crimes: Forceable rescue of seized property: Safe deposit box: Burden of proof: Validity of lien not relevant.--The validity of the IRS's lien under which it seized a safe deposit box was not a relevant factor in a trial charging the defendant with the criminal offense of forceably rescuing property seized by the IRS. Furthermore the jury was properly instructed regarding the Government's burden of proof under Sec. 7212(b). And the Government did not fail to establish at the trial the element of a forceable rescue of the box by the defendant.

One dissent.

Robert St. Leger Goggin, Assistant United States Attorney, Philadelphia , Pa. , for appellee. F. Emmett Fitzpatrick, Jr., Suckle and Fitzpatrick, 12 S. 12th St. , Philadelphia , Pa. , for appellant.

Before HASTIE, FREEDMAN and SEITZ, Circuit Judges.

Opinion of the Court

SEITZ, Circuit Judge:

The appellant ("defendant") appeals from his conviction by a jury for rescuing a safe deposit box seized by the Internal Revenue Service ("Service") in violation of 26 U. S. C. §7212(b); larceny from a federally insured bank contrary to 18 U. S. C. §2113(b); and conspiracy to commit the aforementioned acts (18 U. S. C. §371). Three other individuals were indicted with the defendant, but only the defendant stood trial.

A complete summation of the bizarre events which culminated in defendant's conviction is necessary to understand the ultimate disposition of this appeal. They appear as part of the evidence introduced by the Government either at the hearing on the motion to suppress or at the trial.

Defendant was arrested by officers of the Philadelphia Police Department on the morning of April 13, 19 65, while he was operating a motor vehicle. The arrest was made pursuant to a warrant charging him with a burglary of jewelry committed in January 1964. As a result of a search made as an incident to the arrest, a safe deposit box key was found among the keys on a key ring attached to the key inserted in the vehicle's ignition switch. One of the arresting officers seized the keys. The legality of this action is not challenged here.

The police ascertained that the safe deposit box to which the seized key belonged had been rented to one identifying himself as Howard Davis. The Davis rental application gave as the applicant's address what was later determined to be the residence address of defendant's brother. A warrant to search the safe deposit box was then sought by the Philadelphia Police. An affidavit dated April 13, 19 65, purporting to fulfill the requirement of showing "probable cause," accompanied the petition for the warrant. It is not necessary at this point to delineate the petition's contents except to note that they indicated that the police reasonably believed that defendant might have placed the stolen jewelry in the box.

The search warrant was issued by the magistrate late in the afternoon of April 13, 19 65. The following morning, pursuant to the directive of the warrant, the Philadelphia Police Department using the seized key and assisted by bank personnel using the bank's master key, opened the safe deposit box. The box was found to contain $100,000 in United States currency and other miscellaneous items. No jewelry was found.

Not finding the stolen jewelry, the police closed the safe deposit box without removing any of its contents. However, on the same day they notified the Service of the existence of the $100,000 cash in the box. Later that day the Service, through its agents, caused an assessment in the sum of $100,000 to be made against defendant. Thereafter on the same day a Notice of Termination of Tax Year as well as a demand for $100,000 in unpaid and due taxes (26 U. S. C. §6851(a)) were served on defendant at the Philadelphia Detention Center . Defendant accepted the notice and demand and informed the agents that he would contact his attorney. Still later the same day the Service caused a Notice of Levy, Notice of Federal Tax Lien and Notice of Seizure pursuant to 26 U. S. C. §6331(a) to be served on the bank in which the box was located. A seal was placed upon the box warning anyone attempting to gain admission thereto that it was seized for federal income tax purposes. Subsequent to such seizure, the Philadelphia Police turned over to the Service the key to the box which it had taken at the time of defendant's arrest.

In order to prevent the Service from removing the contents of the box, the defendant secured from the Federal District Court a temporary injunction dated April 27, 19 65 prohibiting the bank from turning over the box or its contents to the Service. On December 24, 19 65, pursuant to a plan adopted by the defendants, another safe deposit box was rented in order to be able to gain admission to the vault containing the seized safe deposit box. On December 30, 19 65, after being unsuccessful in previous attempts to secure the bank's master key, the conspirators decided that if a disturbance was created while one of the conspirators was inside the vault they might obtain the master key. They then put their plan into effect. The defendant, who was outside the bank, hurled a rock through the front window. In the confusion that followed the conspirator inside the vault seized the bank's master key. By using it in conjunction with a duplicate key which defendant had retained and provided him, he carried from the bank the entire safe deposit box which had been seized by the Service. Later that evening defendant and the other conspirators divided the money and disposed of the box. Testimony revealed that defendant received $80,000.

After indictment but prior to the trial defendant moved to suppress evidence concerning the search of the safe deposit box and its contents on the ground that the search of the safe deposit box by the Philadelphia Police was without probable cause and therefore in violation of his constitutional rights, or in the alternative, that the search was in violation of a Pennsylvania statute hereinafter discussed. The district court denied the motion.

Thereafter the defendant stood trial. Evidence was offered by the Government as to the contents of the box through state agents, bank personnel and the defendant's alleged co-conspirators. Defendant's counsel objected to the introduction of the evidence for the same reasons given in support of his motion to suppress. His objections were overruled. The defendant was convicted and it is not disputed that defendant's counsel properly preserved his objections for appeal purposes.

Defendant's primary contention is that the search conducted by the Philadelphia Police Department of the safe deposit box was without probable cause or, in the alternative, constituted a violation of a Pennsylvania statute dealing specifically with searches of safe deposit boxes. In consequence, he says that any testimony regarding the seizure of the box and its contents was inadmissible in this federal criminal proceeding because of the provisions of the Fourth Amendment.

The decision in Elkins v. United States, 364 U. S. 206 (1960), interred the "silver platter" doctrine. Thus, evidence used in a federal criminal trial, even though obtained originally by state authorities, must be judged by the requirements of the Fourth Amendment. ¹ The admissibility of evidence obtained by a search by state officers and thereafter sought to be used in a federal trial is to be judged as though the search had been made by federal officers. If the evidence obtained by the state officers would have been inadmissible in a federal trial had it been obtained by federal officers because of a violation of the Fourth Amendment, it is no less objectionable because it was obtained by state officers. Elkins, supra; and see Weeks v. United States, 232 U. S. 383 (1914).

With these principles in mind we consider defendant's contention that the search warrant in question was issued without probable cause when tested by federal requirements. We must consider this issue because testimony, to which defendant's counsel objected, was offered by the Government based on knowledge obtained as a result of the allegedly illegal search.

We turn to the affidavit which accompanied the request for the warrant. In evaluating it, for present purposes, we realize that its content must be tested and interpreted in a common sense and realistic fashion. Being drafted normally by nonlawyers in the haste of a criminal investigation, such affidavits need not contain the elaborate specificity once required under common law pleading. United States v. Ventresca, 380 U. S. 102 (1965). The "probable cause" required for the issuance of a search warrant, as the very term implies, involves probabilities. Probable cause exists where "the facts and circumstances within [the officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" a search should be conducted. Carroll v. United States , 267 U. S. 132, 162 (1925).

With these standards in mind we examine the present affidavit. It was executed by Philadelphia Detective Snyder ("affiant") one of the officers who arrested defendant. It recited that an informant, who was identified in the affidavit, stated to him under oath that he and defendant burglarized an apartment and took about $16,000 worth of jewelry; that the informant further stated that defendant retained all of the jewelry. By independent investigation the Police determined that jewelry was stolen from the identified apartment on the date given by the informant. The affidavit recited that the informant supplied the Philadelphia Police Department with reliable information in the month previous to the month when the affidavit was executed. The affidavit further recited that defendant was arrested pursuant to a warrant issued on the basis of his participation in the burglary by affiant and another officer and that they took from him a key for a safe deposit box. Affiant further recited that during his ten years as a detective he has known burglars to use such boxes to store stolen jewelry while waiting to dispose of it. He then stated as follows:

"It is my belief that because of these facts and information, and my experience as a Police Detective, that all or part of the stolen jewelry is in Brooks' home or a safe deposit box."

The affiant further stated that an investigation subsequent to the seizure of the key revealed that the address given by the person who rented the safe deposit box was the address of defendant's brother, and that no one by the name given in the application resided at the address given. The affidavit recited that the affiant believed that the person who rented the safe deposit box was the defendant.

The magistrate was clearly informed in the affidavit itself of the underlying circumstances supporting affiant's conclusions. Thus, affiant gave facts to substantiate his belief as to the creditability of the informant's statement to him that defendant had taken the jewelry; that he probably rented the safe deposit box and that he might well be using the safe deposit box to store the stolen jewelry. A fair reading of the whole affidavit reveals that its conclusions are based upon information possessed by the police at the time. The district court found, and we agree, that the affidavit met the Fourth Amendment requirement of probable cause. See United States v. Ventresca, supra.

Defendant's second argument, as we understand it, is that even if we should find that the affidavit evidenced probable cause, the search warrant was nevertheless illegal because it was issued in violation of Pennsylvania statutory law. (Act of September 20, 19 61, P. L. 1532 No. 651, sec. 1, 19 P. S. 591). ²

The Government concedes that the Philadelphia Police did not comply with the Pennsylvania Act. However, it argues that the statute did not vitiate the search. We shall assume that, as a matter of Pennsylvania law, the statute was applicable to the request for the search warrant here involved. We shall further assume that the warrant was illegal as a matter of Pennsylvania law. We make the assumptions because the nature of the assumed violations of Pennsylvania law are such that they are not cognizable in a federal criminal proceeding. We base our conclusion on the application of the teaching of Elkins v. United States , supra, to our facts. In that case the United States Supreme Court, exercising its supervisory power over the administration of criminal justice in the federal courts, announced the standard to be used in determining whether evidence secured in a state conducted search may be used in a federal criminal trial. Mr. Justice Stewart stated:

"For these reasons we hold that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial. In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed." 364 U. S. at 223-24 (emphasis supplied).

The exact problem facing this court as a consequence of the Elkins rule was observed by Mr. Justice Frankfurter in his dissent in Elkins when he said:

"Under the rule the Court today announces, the federal trial court, whenever state-seized evidence is challenged, must decide the wholly hypothetical question whether that evidence was 'obtained by state officers during a search which if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment.' Irrelevant are violations of state law, or hypothetical violations of federal statutes, had the search been conducted by federal officers." (emphasis supplied). 364 U. S. at 243-44.

The rule of the majority in Elkins was applied in Rios v. United States, 364 U. S. 253 (1960) and has been quoted with apparent approval by a unanimous court in Preston v. United States, 376 U. S. 364, 366 (1964).

These Supreme Court cases show that the fact that evidence is illegally obtained exclusively by state officers does not automatically preclude its use in federal criminal trials. This is made abundantly clear from the facts in Rios v. United States, above. There the state court had found the evidence to have been illegally obtained as a matter of state law. However, the Supreme Court did not decide that it was thereby rendered inadmissible in the federal trial. Rather, it remanded the case for an evaluation of the evidence by Fourth Amendment standards. Had the Supreme Court felt that an established illegality under state law was sufficient to preclude its use in the federal courts there would have been no need to remand for a hearing.

Given the violation of Pennsylvania law here, the federal court was required to make an independent determination as to whether the search conducted by the state officers would have violated the Fourth Amendment had it been conducted by federal officers. The federal constitutional requirement is that the warrant must have been issued on "probable cause."

We are satisfied, as was the district court, that, tested by federal standards, the warrant was issued on probable cause. The Pennsylvania statute did not relate to any aspect of probable cause. As its legislative history ³ indicates, it was enacted so that a safe deposit box holder would know that his box was to be opened. It was, as the Act indicates, purely an added state procedural provision. ⁴

Defendant next argues that the district court erred in failing properly to instruct the jury regarding the criminal charge involving the rescue of seized property. He claims that the Government failed to establish the following: that the Service terminated defendant's taxable year as of April 14, 19 65; that the tax owed by defendant for the period was $100,000; that the Service determined that payment of the tax was in jeopardy as is required to allow them immediately to lien a taxpayer's property; that a lien was placed on defendant's assets; and that a levy was placed on the safe deposit box and the property seized by bringing it into the possession of the Service. Apparently, alternatively, he claims that the jury should have been instructed as to the Government's burden in regard to all such matters.

The statute in question, 26 U. S. C. §7212(b), makes it a crime to forcibly rescue "* * * any property after it shall have been seized under this title * * *." The essential elements required by the statute to constitute the offense are seizure and rescue. On way for the Government to establish a lawful seizure is to show that the property was seized by a person authorized to do so by virtue of his office. See Cooper v. United States, 299 Fed. 483 (3rd Cir. 1924). The right of revenue officers of the Internal Revenue Service to make such a seizure without a warrant is not challenged. See 26 U. S. C. §6331(a). The testimony of such officers here established that the seizure was made by them. Additionally, the jury was properly instructed regarding the Government's burden of proof.

The defendant's other contentions identified in the second preceding paragraph in effect attack the validity of the lien obtained by the Service. The necessary premise for defendant's assertions is that they are relevant factors in a trial where a defendant is charged with the criminal offense of rescuing property seized by the Service under the circumstances herein stated. We think the assumption is unwarranted. Such issues are relevant in civil proceedings attacking the Government's seizure. They are not relevant here. To permit such issues to be raised in connection with a prosecution under these statutes would be to encourage violent self-help where civil remedies are admittedly available. Compare United States v. Mine Workers, 330 U. S. 258 (1946). It is of passing interest that this defendant was aware of his civil remedies. Indeed he was successful in his application to obtain an injunction prohibiting the Service from opening the safe deposit box. His own actions apparently rendered that action moot. We thus find no error in refusing to instruct on such matters.

Defendant's counsel also argues that the district court erred in refusing to permit him to inspect, for cross examination purposes, the entire statements given to Government agents prior to the trial by two of the Government's witnesses.

The record shows that after each Government witness who had given such a statement testified on direct examination, the prosecution made available to defense counsel that portion of each statement which it believed pertinent to the issues involved. When the defense counsel requested the missing portions of the statements, the trial judge, after conducting an in camera examination of the entire statements, denied the requests. Defendant argues that the determination of what portion of these statements was material to the cross examination should have been made by him after having been given an opportunity to examine the entire statements of both witnesses.

Before a defendant is entitled to the delivery of a statement under the so-called Jenks Act, 18 U. S. C. §3500, the Government witness must have testified and the statement must relate to the subject matter of the testimony. This is true even though the statements may relate to the subject matter of the indictment. See United States v. Butenko, pp. 24-25 Criminal No. 15,170 & 15,232 (3rd Cir., Oct. 6, 19 67). The ruling as to whether the requested statement relates to the testimony given by the witness is left to the determination of the trial judge after an "* * * inspection of the court in camera." 18 U. S. C. §3500(c). This was the exact and proper procedure followed by the district court here. ⁵ Acceptance of defendant's argument would nullify the procedure adopted in the Jenks Act to meet conflicting policy factors.

Another ground of error asserted by defendant relates to the alleged failure of the Government to establish the requisite element of force necessary to "forcibly" rescue a safe deposit box. A similar failure is claimed with respect to a showing of an intent to "steal or purloin."

Forcible rescue, as that term is used in 26 U. S. C §7212(b), is not, in our opinion, limited to proof of force exerted against persons. Rather, we think the statute embraces the force here proved, viz., the breaking of the bank window, the removal of the Service's seal on the box and the removal of the safe deposit box and its contents from the bank.

On the "steal or purloin" issue, the defendant argues that since he owned the contents of the safe deposit box, he could not have had the requisite intent to steal or purloin his own property. In United States v. Sullivan [64-1 USTC ¶9392], 333 F. 2d 100, 116 (3rd Cir. 1964), this court said: "When validly invoked, [a levy] affects a seizure of the delinquent's property tantamount to a transferral of ownership." Thus, the Government as well as defendant had an interest in the property taken from the bank.

The judgment of the district court is affirmed.

¹ The Fourth Amendment to the Federal Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

² "Except as herein provided, during any criminal investigaton or criminal proceeding when a petition is filed with any court for an order to open a safe deposit box, whether such petition is filed by a police official or any other person, the court shall not issue any such order until at least forty-eight hours after notice of the filing of such petition and a certified copy of said petition has been served upon the holder or holders of the safe deposit box. The petition shall set forth the date and time and place when the holder or holders of said safe deposit box may have an opportunity to appear in court for the purpose of answering the petition to show cause why the safe deposit box should not be opened. If the person filing such petition shall, by affidavit, advise the court that the holder or holders of said safe deposit box can not be located, then the court may issue such order for the opening of said safe deposit box without the notice required by this act. The court shall have the power to order the said safe deposit box sealed pending the disposition of the petition and to enjoin the holder or holders of said safe deposit box from opening or permitting the opening of the box except as directed by the court. This act is hereby declared to be procedural and it is not intended to affect the substantive rights of holders of safe deposit boxes."

³ 1961 Session of the Pennsylvania General Assembly: Legislative Journal--Senate p. 1964. (June 5, 1961) (Remarks of Senator Donolow): Legislative Journal--House p. 3686-87 (August 23, 1961) (Remarks of Representative Eilberg).

⁴ Certainly had federal agents sought the search warrant here involved they would not have been required to comply with the state statute in question. Indeed, its forty-eight hour notice requirement is inconsistent with the provision of Fed. Rules of Crim. Procedure 41(c) that the officer to whom it is directed shall make the search "forthwith."

⁵ We have examined the withheld material and agree with the rulings of the district court.

[Dissenting Opinion]

FREEDMAN, Circuit Judge, dissenting:

For me this bizarre case presents the problem whether in a federal prosecution evidence may be used which was obtained by state officers in violation of a state statute which requires a court order to authorize access to a safe deposit box on appropriate notice to the owner, if he can be found.

The state officers did obtain a search warrant from a magistrate and I agree with the majority that the affidavit for it was based on probable cause. However, the government concedes that the police did not comply with the procedure prescribed by the Pennsylvania Act of September 20, 1961, ¹ quoted in the majority opinion, for the search and seizure of the contents of the safe deposit box. Although the statute is poorly drawn and on its face might leave some doubt whether it was intended to be mandatory or directory, the legislative history makes it clear that it was designed as a mandatory prohibition against the search by police of a safe deposit box and the seizure of its contents except under authority of a judicial order on notice to the owner, if he could be found and if not, then on an order entered notwithstanding the want of notice. ²

This is a federal trial, subject to our supervisory power over the administration of criminal justice and in my view a federal court should not permit the receipt in evidence of the fruits of a search of a safe deposit box effected by Philadelphia police officers in violation of the Pennsylvania statute.

The decisions in Elkins v. United States, 364 U. S. 206 (1960) and Rios v. United States, 364 U. S. 253 (1960) could readily form the basis of elaborate discussion. I think it is enough simply to record my view that they are not decisive of the present question but leave it open for decision whether as a matter of policy the evidence should be excluded. I read them as dealing with state determinations whether the searches there involved were constitutionally invalid and not as decisive of the question of policy which we have before us.

I see no reason why the policy of the state that there should be a special procedure for the protection of the privacy of safe deposit boxes should not be respected, especially by state officers, sworn to uphold the state's laws. To allow them to violate the statute and produce to a federal prosecutor the information thus obtained for use in a federal trial is to lend federal encouragement to the violation by state officers of the laws which control their conduct. It constitutes the unspoken expression by federal agencies of approval of the illegal acts of state officers, and its only foundation can be an acceptance of the view that the end justifies the means. It offends fundamentally the position expressed by Mr. Justice Brandeis in his famous dissent in Olmstead v. United States, 277 U. S. 438, 471, 483, 485 (1928) which so powerfully describes the evil inherent in the judicial use of the fruits of official illegality. ³ I would therefore hold that the evidence obtained by the search and seizure of the contents of the safe deposit box was erroneously admitted.

I therefore respectfully dissent.

¹ P. L. 1532, Act No. 651, 19 Purdon's Pa. Stat. Annot. §1591.

² Statement of Senator Donolow, Legislative Journal--Senate 1964, 1965 (1961); Statement of Rep. Eilberg, Legislative Journal--House 3687 (1961).

³ "When the Government, having full knowledge, sought, through the Department of Justice to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes. . . . And if this Court would permit the Government, by means of its officers' crimes, to effect its purpose by punishing the defendants, there would seem to be present all the elements of a ratification. If so, the Government itself would become a lawbreaker.

"In a government of laws, existence of the government will be imperiled if it falls to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. . . . To declare that in the administration of the criminal law end justifies the means--to declare that the Government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution. . . ."

 

 

 

 

[70-1 USTC ¶9234]United States of America, Plaintiff-Appellee v. Rodney R. Oliver, Defendant-Appellant

(CA-10), U. S. Court of Appeals, 10th Circuit, No. 208-69, 421 F2d 1034, 2/16/70 , Rev'g and rem'g unreported District Court decision

[Code Sec. 7212(b)]

Crimes: Interference with administration of internal revenue laws: Forcible rescue of seized property: Constitutional rights: Right to have attorney present at interrogation: Warning not given.--The defendant, who was charged with forcible rescue of property seized by IRS agents under a levy to recover transportation taxes, was not warned by IRS agents after his arrest that he had the right to have counsel present during his interrogation. Due to this, it was error for the trial court to admit testimony regarding statements made by the defendant. On the other hand, the trial court properly instructed the jury on the question of whether the defendant had adequate notice that his property was being seized, and the Government's question on cross-examination regarding the defendant's violent reputation, which the witness did not answer and the trial court instructed the jury to disregard, was not prejudicial to the defendant's case. Reversed and remanded.

Stephen L. ReVeal, Victor R. Ortega, United States Attorney, John A. Babington, Assistant United States Attorney, Albuquerque, N. Mex., for plaintiff-appellee. Harold H. Parker, 1st Nat'l Bank E., Albuquerque, N. Mex., for defendant-appellant.

Before HICKEY and HOLLOWAY, Circuit Judges, EUBANKS, District Judge. ^*

HICKEY, Circuit Judge:

Appellant Oliver was indicted on two counts involving the rescue of property seized by virtue of a tax levy for failure to pay transportation tax.

[Jury Trial]

The first count involving a threat of bodily harm to an I. R. S. agent at the time of rescue was dismissed by the trial court when the jury became deadlock in an effort to reach a verdict.

The jury found Oliver guilty of the second count which charged that he rescued property which had been seized pursuant to 26 U. S. §6331(b), Internal Revenue Code, in violation of 26 U. S. C. §7212(b). ¹

The trial court suspended sentence and placed Oliver on probation. This appeal challenges the conviction by the jury.

[Issues]

The points on appeal raise the questions: (1) Was the seizure valid thereby prohibiting a rescue of the seized property by the taxpayer owner? (2) Was the court's instruction, "that notice and demand need not be in writing but actual notice and demand is sufficient," a proper statement of the law? (3) Was the constitutional warning given Oliver after he was in custody sufficient to meet the tests established in Miranda v. Arizona, 384 U. S. 436 (1966)? (4) Was the prosecution's cross-examination question relative to violent reputation, i.e. whether Oliver had assaulted his wife, prejudicial to Oliver's case?

[Facts]

The relevant facts adduced in the record indicate Oliver owned prior transportation taxes on his truck for two separate years. After consultation with an I. R. S. agent, Oliver signed a tax report showing the tax due and transmitted it to the proper office. Payment did not accompany the tax return because Oliver was unemployed and without funds to transmit to the I. R. S. During several intervening months there were discussions between the I. R. S. and Oliver relative to the delinquency. It is agreed that Oliver disclosed and I. R. S. knew there were two vehicles unencumbered which could be levied upon for payment of the tax.

[Vehicle Seized]

On September 5, 19 68, the I. R. S. levied on wages then due from Oliver's employer, searched for a bank account in Oliver's hometown, and seized one of the vehicles. The agents marked the seized vehicle with a seizure sticker and tags and hired a tow truck to tow the vehicle to a location where it would be impounded while notice and sale were accomplished.

While the I. R. S. agents were in the process of towing the vehicle from Oliver's home to the place where it would be impounded, Oliver came upon them, stopped the tow truck, and rescued the vehicle. He returned the vehicle to his home, later moving it to a neighbor's lot for safekeeping.

[Constitutional Rights]

On the second day after the described rescue Oliver was arrested and taken before a Commission for arraignment, and advised of his rights.

Thereafter, at arraignment on the grand jury indictment, the trial court appointed a lawyer for Oliver.

After the arrest and before and after the Commissioner's arraignment, Oliver talked to the I. R. S. agents who had given him the warning which is here challenged and will be later discussed in detail.

[Notice and Demand]

At the trial Oliver offered the defense that he had not rescued a seized vehicle in that it had not been properly seized upon notice and demand. The jury found from all the evidence adduced, and the court agreed, that actual notice had been given and demand made. The court denied the motion to dismiss after the case closed and gave the instruction to which objection is urged.

There is a dearth of cases discussing 26 U. S. C. §7212(b); however, we find the reasoning hereinafter quoted to be relevant.

"The statute in question, 26 U. S. C. §7212(b), makes it a crime to forcibly rescue 'any property after it shall have been seized under this title. . . ." The essential elements required by the statute to constitute the offense are seizure and rescue. One way for the Government to establish a lawful seizure is to show that the property was seized by a person authorized to do so by virtue of his office. * * *

"The defendant's other contentions identified in the second preceding paragraph in effect attack the validity of the lien obtained by the Service. The necessary premise for defendant's assertions is that they are relevant factors in a trial where a defendant is charged with the criminal offense of rescuing property seized by the Service under the circumstances herein stated. We think the assumption is unwarranted. Such issues are relevant in civil proceedings attacking the Government's seizure. They are not relevant here. To permit such issues to be raised in connection with a prosecution under these statutes would be to encourage violent self-help where civil remedies are admittedly available." United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d 320, 326 (3rd Cir.), cert. denied, 392 U. S. 931 (1968). Accord, United States v. Bernstein, 287 F. Supp. 84 (S. D. Fla. 1968).

The foregoing sustains the trial court's application of the law both in denying the motion to dismiss and instructing the jury.

[Question on Cross-Examination]

The challenged conduct of the government's attorney relates to a question propounded to Mrs. Oliver on cross-examination. The question propounded was whether she had ever been required to obtain a restraining order against her husband because of his violence toward her. The question was objected to and the objection sustained. She did not answer. The court instructed on what evidence should be considered and therefore eliminated the challenged question from consideration. The fact that the jury was deadlocked on count one which required the exhibition of a violent nature to the officer, is convincing that this unanswered question did not prejudice Oliver with the jury.

[IRS Warnings]

The question relating to the adequacy of the warning given Oliver after his arrest gives us concern.

The record reflects the warning given was, "[t]hat he should be aware that he could decline to answer any questions he felt might tend to incriminate him. He could decline to give us any information, . . . that he had the right to an attorney; that if he could not afford an attorney, the United States Commissioner in Tucumcari would appoint one for him, and I told him we wanted to ask him certain questions about this seizure and about the actions that happened on the 5th of September." The agent testified regarding the statements made by the accused after he had been given the foregoing warning. Objection was overruled and the testimony permitted to stand. This was error.

I. R. S. News Release I. R. 949, November 26, 19 68, describes I. R. S. Document 5661 as a change in procedure for advising taxpayers of their rights during an investigation conducted by special agents of the Intelligence Division. The document provides:

"STATEMENT OF RIGHTS. Before we ask you any questions, it is my duty to advise you of your rights.

"You have the right to remain silent.

"Anything you say can be used against you in court, or other proceedings.

"You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.

"You may have an attorney appointed by the U. S. Commissioner or the court to represent you if you cannot afford or otherwise obtain one.

"If you decide to answer questions now with or without a lawyer, you still have the right to stop the questioning at any time, or to stop the questioning for the purpose of consulting a lawyer.

"HOWEVER--

"You may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire."

This statement in the pre-custody stage of investigation indicates the caution which came after Mathis v. United States [68-1 USTC ¶9357], 391 U. S. 1 (1968).

[In-Custody Interrogation]

However, this case was an in-custory interrogation and the release continues, "IRS has made no change in its existing instructions that if it becomes necessary to interview a person who is in custody, an Agent must give a comprehensive statement of rights before any interrogation. This statement warns the person in custody that he may remain silent and that anything he says may be used against him. A person in custody also must be told that he has the right to consult or have present his own counsel before making a statement or answering any questions, and that if he cannot afford counsel he can have one appointed by the U. S. Commissioner."

[Warnings Not Given]

It is evident from the record that the agent's warning did not include, "that he has a right to consult with, and have present prior to and during interrogation, an attorney, either retained or appointed." Annot., 10 A. L. R. 3rd 1060, §5 (1966). During oral argument government counsel confessed this warning was not given. "Each of [the Miranda warnings including the one pertaining to the right of counsel] must be given, it not being sufficient to give some but not all of these warnings." Id.

This court recognized that each warning must be given to permit the testimony to be admitted. Coyote v. United States, 380 F. 2d 305 (10th Cir.), cert. denied, 389 U. S. 992 (1967). We have also held that in addition to the warnings, the right to have counsel present during interrogation must be effectively waived. Sullins v. United States, 389 F. 2d 985 (10th Cir. 1968).

During oral argument government counsel argued the inadvertant omission was harmless error because there was ample evidence aside from the statements of the accused to support the conviction. Such an assertion is directly in conflict with Miranda v. Arizona. See footnote 33, 384 U. S. 436 at 464.

[Reversed and Remanded]

In view of the foregoing, we reverse and remand to the trial court for retrial in line with the discussion hereinabove set out.

REVERSED AND REMANDED.

^* Sitting by designation.

¹ 26 U. S. C. §7212(b) provides: "Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than two years."

 

 

 

[75-2 USTC ¶9644]United States of America, Plaintiff-Appellee v. John H. Harris, Defendant-Appellant

(CA-7), U. S. Court of Appeals, 7th Circuit, No. 74-1981, 521 F2d 1089, 8/5/75 , Affirming unreported District Court decision

[Code Sec. 7212]

Criminal penalties: Interference with administration of laws: Forcible rescue of seized property.--The taxpayer's conviction for the forcible rescue of seized property was affirmed on appeal. The court concluded that the taxpayer had used force in the rescue of his seized automobile when he removed the warning stickers, which gave formal indication of the seizure, from the automobile.

James R. Thompson, United States Attorney, Gary L. Starkman, Robert L. Herbst, Assistant United States Attorneys, Chicago, Ill., for plaintiff-appellee. James F. Flanagan, 135 S. LaSalle St., Chicago, Ill., for defendant-appellant.

Before MCALLISTER, ¹ Senior Circuit Judge, SWYGERT and STEVENS, Circuit Judges.

SWYGERT, Circuit Judge:

Numerous issues are raised in this appeal but the most substantial ones concern the question of what essential elements must be proved to establish a violation of 26 U. S. C. §7212(b). ²

[Facts]

As of April 30, 1973 defendant John H. Harris had a delinquent federal tax account in an amount in excess of $12,000. Luther N. Scott, an Internal Revenue Service officer, was assigned to collect the account. On May 4, 1973 Harris supplied financial information from which Scott prepared a financial statement, which Harris signed. The statement failed to disclose that Harris owned a 1973 Chevrolet van in which he had $1500 in equity.

Upon discovery of Harris' ownership of the van, Scott and his supervisor decided to take enforcement action against Harris' assets. On October 25, 1973 revenue officers Scott and Kenneth Schons went to Harris' place of business. Scott presented Harris with a levy and explained that the levy authorized Scott to seize a 1968 Pontiac Firebird automobile owned outright by Harris, tow it away, store it, and eventually sell it and apply the proceeds against Harris' tax liability. Harris responded by telling the officers that no one was going to take his car from him.

The revenue officers, followed by Harris, then went out to the street where Harris' car was parked. Officer Scott asked Harris what he would do if the car was seized and Harris replied that he would get into it and drive it away. Scott told Harris he would merely get himself into more trouble because once the warning stickers were placed on the car it would then be under federal custody. Harris replied that he did not care. Officer Schons then placed the stickers, duly signed and dated, on the car.

Later that same day John W. Bedford, a criminal investigator for the Internal Revenue Service, went to Harris' place of business. He did not see the seized automobile in the vicinity. He proceeded to Harris' residence where he located the car, with the warning stickers removed, in the back of the driveway.

On October 30, 1973 Harris was arrested. In response to the arresting officer's question concerning the location of the automobile, Harris stated that it was in the State of Illinois. On November 12, 1973 Harris informed the federal authorities that the car was in the parking lot of the Internal Revenue Office in Skokie, Illinois and the car was found there without any warning stickers.

Harris was then tried and convicted by a jury of forcibly rescuing his seized automobile in violation of 21 U. S. C. §7212(b). He was sentenced to forty minutes in the custody of the United States Marshal.

[Hearsay Evidence]

I. Harris' first contention is that the presentation of hearsay evidence to the grand jury effectively deprived him of his right to be charged by indictment. The only witness who testified before the grand jury was criminal investigator Bedford.

It is clear in this circuit that an indictment is not improper merely because it is based on hearsay. United States v. Wilkinson, 513 F. 2d 222 (7th Cir. 1975). An indictment based on hearsay might possibly be subject to dismissal if there is a high probability that no indictment would have been returned had there been eyewitness' testimony or if the grand jury had been deceived as to the type of testimony it received. United States v. Estepa, 471 F. 2d 1132, 1137 (2d Cir. 1972). We find neither of these special exceptions in this case. The grand jury heard no false information and we do not think that revenue agent Scott would have given any additional relevant testimony that might have resulted in a refusal to indict. Moreover, the transcript of the grand jury proceedings shows that Bedford plainly indicated the secondhand nature of portions of his testimony.

[Knowledge Unnecessary]

II. Harris attacks the sufficiency of the indictment ³ on numerous grounds. First, he claims that the indictment fails to charge the necessary mental state. Harris contends that a section 7212(b) offense is a specific intent crime. We do not agree. A specific intent to permanently defeat the seizure of the property need not be shown to establish a section 7212(b) violation. The statute does not even use the term "willfully." To satisfy the mental state requirement of section 7212(b) no more need be charged or proved other than that the defendant purposefully, as opposed to mistakenly, retook the property knowing that it had been seized by the Internal Revenue Service. ⁴ Cf. Finn v. United States, 219 F. 2d 894, 899-901 (9th Cir. 1955). The evidence was sufficient to support this element.

The indictment, however, did not specifically charge that Harris had taken the property "knowing" that it had previously been seized. Harris argues that the failure to include at least the knowledge requirement constitutes a fatal defect in the indictment. The Government's response is that this knowledge requirement is sufficiently set forth by use of the term "rescue," since, as noted by the district judge, inherent in the concept of "rescue" is the notion that the defendant knew the property had been seized. While we think it would be better to allege specifically the knowledge element, we agree with the Government that the use of the term "rescue" is sufficient for purposes of the indictment. If one "rescues" property, he does not merely take it, but he takes it with the realization that he is removing it from governmental custody.

Harris also claims that the indictment is defective since it does not contain an allegation that the seizure was lawful. We find that this element is sufficiently covered in the indictment. The statute refers to property "seized under this title." All that need be proved in this regard is that the property had been seized by persons authorized to do so by virtue of their office. Unlike a civil suit attacking a seizure, the legality of the underlying lien or assessment is not relevant in a section 7212(b) criminal prosecution. United States v. Oliver [70-1 USTC ¶9234], 421 F. 2d 1034, 1036 (10th Cir. 1970); United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d 320, 326 (3d Cir. 1968). If the rule were otherwise it would "encourage violent self-help where civil remedies are admittedly available." United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d at 326. The indictment charges that the property had been "seized by the Internal Revenue Service, Department of Treasury, under Title 26, United States Code . . ." This language is a sufficient allegation of lawfulness. ⁵

Harris' final challenge to the indictment is that it failed to sufficiently state what acts constituted the "rescue." We see no possibility that he was prejudiced in preparing his defense or that the grand jury indicted on the basis of facts other than those relied upon by the petit jury since the indictment sets forth the date of the alleged forcible rescue. A motion for a bill of particulars could have been filed, though apparently this was not done. The indictment satisfied the requirements of FED. R. CRIM. P. 7(c)(1).

[Force]

III. Harris' net contention is that the district court incorrectly defined the term "forcibly." The instruction given the jury stated that the term was "not limited to proof of force exerted against persons, but rather embraces any force that enables the defendant to rescue or recover [the] property. . . ." Harris argues that the instruction should have been limited to force exerted against persons or property protecting the seized item.

The district court's instruction was based on United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d 320 (3d Cir. 1968). In Scolnick the force used was the breaking of a bank window as a diversion, the removal of the Internal Revenue Service seal from a safe deposit box, and the removal of the box and its contents from the bank. This was held to be sufficient force. But Harris maintains that Scolnick at least involved force beyond that inherent in the rescue itself. The instruction given in this case did not even require that much.

We hold that the instruction given was correct. One who recovers unguarded property that contains no seizure stickers, knowing that such property was seized, rescues such property, but does not do so forcibly. If any type of force is used, however, then there is a forcible rescue. The district court properly informed the jury that the force need not be directd at an individual guarding the property. The statute is intended to protect seized property and surely Congress did not envision that a guard would have to be posted to achieve that protection. In the instant case the force used was the removal or "destruction" of the warning stickers placed on the automobile. These stickers were the formal indication that the car had been seized. Their removal by force was sufficient to support a finding of forcible rescue.

[Trial Errors]

IV. Various trial errors are also alleged. First, there is the assertion that it was a prejudicial abuse of discretion not to grant the defendant's motion for a continuance. In light of the facts that the trial occurred almost nine months after indictment, almost a week's notice of trial was given, the trial lasted only one day and all of the defendant's witnesses were heard, we deem this contention frivolous.

Second, Harris claims that his conviction should be reversed because of certain prosecutorial misconduct. Specifically, the complaint centers on the Government's elicitation and attempted elicitation of an allegedly prejudicial and irrelevant threat made by the defendant. On direct examination revenue officer Scott testified that Harris had said: "Nobody takes my car, or my business or I'll blow your fuckin' head off." This answer was stricken. Moreover, the district judge, out of the presence of the jury, diligently warned the prosecutor about eliciting from revenue officer Schons testimony concerning the exact threat made by Harris and there was no such testimony by that witness. On cross-examination of the defendant, however, the Government was allowed to ask about the exact language of his threat.

We do not find that Harris suffered any serious prejudice from any illegitimate attempts to elicit this testimony. Scott's answer was promptly stricken. No harmful answer was even given by Schons because of the trial court's sensitivity to the problem.

The only serious issue in this regard is the cross-examination of Harris which the trial court allowed. It was proper to question Harris about the language he used, since on direct examination he said that he had "implied" that no one would take anything from him under those circumstances. The Government was entitled to clarify this point.

Finally, Harris claims that the district court abused its discretion in ordering that the entire testimony of the defendant be reread to the jury as opposed to only those portions relating to the jury's question. The alleged prejudice is that the jurors were told, in effect, that the key to the case was in another part of the testimony and, in addition, the part they wanted to hear was "lost" in the middle.

A trial judge has wide discretion in determining whether testimony should be reread to the jury upon request. United States v. DePalma, 414 F. 2d 394 (9th Cir. 1969). We find no abuse of discretion in ordering the entire testimony reread. It is important to note that it was the testimony of the defendant, not a Government witness, that was reread. The issue in which the jury was interested was covered on both direct and cross-examination and a written transcript had not yet been prepared. Moreover, the testimony took only about half an hour to read. We do not believe the jury was misled and find no abuse of discretion in ordering the entire testimony reread. Cf. United States v. Tager, 481 F. 2d 97, 101 (10th Cir. 1973).

The judgment of the district court is affirmed.

¹ The Honorable Thomas F. McAllister, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, is sitting by designation.

² 26 U. S. C. §7212(b) reads:

(b) Forcible rescue of seized property.--Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years.

³ The indictment charged that:

On or about October 25, 1973 , at Evanston, in the Northern District of Illinois, Eastern Division,

JOHN H. HARRIS

defendant herein, did forcibly rescue and cause to be rescued property seized by the Internal Revenue Service, Department of the Treasury, under Title 26, United States Code, to wit:

One (1) 1968 Pontiac Firebird, two door hardtop, vehicle identification number 223378UI25246;

In violation of Title 26, United States Code, Section 7212(b).

⁴ Given our interpretation of the statute, there was obviously no error committed in refusing to give a specific intent instruction.

⁵ The instructions also were adequate in this regard. The jury was instructed that it must find that the property had been "seized by the Internal Revenue Service" and had been in "the lawful custody of the Internal Revenue Service" when rescued.

 

 

 

 

[79-1 USTC ¶9368]United States of America, Plaintiff-Appellee v. Robert Main, Defendant-Appellant

(CA-7), U. S. Court of Appeals, 7th Circuit, No. 77-2232, 5/11/79 , Affirming an unreported District Court decision

[Code Sec. 7212]

Forcible rescue: Property: Illegal seizure of: Applicability of exclusionary rule.--The conviction of a taxpayer for the forcible rescue of property seized by IRS agents without a warrant was upheld for the following reasons: the agents had general authority under the tax code to seize the property, and the property was not subject to the exclusionary rule. The retroactive exclusion of property seized by a government agent, who conformed his conduct to the prevailing statutory and constitutional norm, is not required, despite the fact that a subsequent U. S. Supreme Court decision held such a seizure to be unlawful.

Warren E. White, United States Attorney's Office, Danville, Illinois 61832, for plaintiff-appellee. George Kaye, 117 South Market, Paxton, Illinois 60957, for defendant-appellant.

Before FAIRCHILD, Chief Judge, PELL and BAUER, Circuit Judges.

PELL, Circuit Judge:

This case raises an issue expressly reserved by the Supreme Court in G. M. Leasing Corp. v. United States [77-1 USTC ¶9140], 429 U. S. 338, 359 (1977): whether property seized by agents of the Internal Revenue Service without a warrant must be excluded from a subsequent criminal prosecution under the tax code. In order to decide this case, however, only one aspect of that issue need be considered, i. e., the retroactive effect of an exclusionary rule based on G. M. Leasing. The prosecution before us was for violations of I. R. C. §7212(b), 26 U. S. C. §7212(b). ¹

I. Factual Background. The defendant, Robert Main, was an incorporator, president, and registered agent of Main Cob Company, Inc. (the corporation). The corporation was the taxpayer involved in the I. R. S.'s collection investigation.

The corporation was formed in 1966, having been incorporated under Illinois law by the defendant, his wife (Bettie Main), and Mary Hansen, not a relative of the Mains. Forty-eight per cent of the stock was held by the Mains' children and fifty-two per cent by Mary Hansen and her children. From the record it appears that the corporation's main business was the buying of corn cobs and hauling them to a local plant where they were sold for processing. The corporation apparently conducted its business from the Mains' residence near Gibson City, Illinois. The corporation owned that residence prior to September 1973, when the property was conveyed by a quit-claim deed to John Main, son of the defendant and Bettie Main. According to Bettie Main's testimony the corporation ceased doing business late in 1975. It was dissolved on December 1, 1976 , by the State of Illinois for failure "to file an annual report and pay an annual franchise tax."

In May 1976, the I. R. S. assessed the corporation for unpaid highway use taxes, 26 U. S. C. §§ 4481 et seq., due between January 1970 and September 1974 and totalling $6,425.57. On July 23, 1976 , a final notice before seizure was sent to the corporation. On August 24, the I. R. S. filed a notice of federal tax lien with the Recorder of Deeds of Ford County, Illinois, against the corporation for the May highway use tax assessments. On September 2, the corporation's account was assigned to Revenue Officer Tom McAuley for collection.

On October 7, 1976 , a second notice of federal tax lien was filed for the highway use taxes and on October 13, McAuley and three other agents visited the defendant's residence. The defendant met the agents outside the house and McAuley demanded payment of the tax assessments. The defendant told McAuley he would have to collect the taxes from the corporation. McAuley replied that as far as he was concerned the defendant was the corporation. The agents then affixed seizure notices to a number of trucks and semi-trailers in the yard and to a 1975 Oldsmobile, used by the defendant as his personal automobile. ² According to McAuley, the defendant became upset at this and made threatening gestures, at which the agents withdrew. A notice of seizure, inventorying the vehicles tagged, was sent to the corporation at the Mains' address and the certified mail receipt was returned to McAuley signed by Bettie Main.

On October 29, the I. R. S. assessed the corporation for unpaid employee income tax withholdings, 26 U. S. C. §§ 3401 et seq., and unpaid unemployment taxes, 26 U. S. C. §§ 3301 et seq., totalling $57,669.80, and on November 5, notices of federal tax liens were filed for these taxes. During this period, McAuley learned that the corporation had entered into a contract to purchase a house in Gibson City which was being used as rental property.

The events which led to the defendant's prosecution began on November 11, 1976 . McAuley called the Mains' house at approximately 8:00 a. m. and was told by Bettie Main that the defendant was gone for the day. At about 9:30 a. m., McAuley arrived at the Main residence with five other agents. He attempted to give Bettie Main some papers, including a copy of the October 13 notice of seizure and a release of all items previously seized, except the 1975 Oldsmobile. The Oldsmobile was parked in the driveway a few feet from the house and some twenty feet off the public road. Bettie Main asked McAuley whether he had a warrant and he told her he did not and did not need one. Acting on the earlier advice of her attorney, she refused to accept or sign a copy of the release, locked the Oldsmobile, and went into the house. McAuley left the papers inside a rear storm door of the house. According to Bettie Main and two of her children, the agents then walked around the house, out into a fenced side lot, and looked into and entered a garage and barn, before leaving the premises.

After leaving the Main residence, the agents went to Gibson City to make arrangements for towing the Oldsmobile. In addition, McAuley and another agent went to the rental property in Gibson City to post notices of seizure there. At the rental house, the agents identified themselves to the tenant, Alma Day, and told her their purpose. Mrs. Day said, "Come on in." Inside, the agents taped a notice of seizure to the inside of the window of the back door and proceeded to the front of the house. There, Mrs. Day requested that they tape the notice to the front window, rather than the door, so that her children would not tear the notice off. The agents complied with that request, served Mr. Day with a notice to pay rent to the I. R. S. when due, and left. The agents returned to the Main residence about 11:30 a. m. with a tow truck from Gibson City. They found the Oldsmobile still locked and parked in the driveway. The agents entered upon the Mains' premises with the tow truck operator and under their direction the car was towed to a garage in Gibson City for storage pending its sale.

The following morning, November 12, 1976 , the defendant went to the garage where the Oldsmobile was being stored. Upon learning that the automobile was there, the defendant told the garage mechanic that he would be back. The mechanic told the defendant that the I. R. S. agents had instructed him to tell the defendant that it was unlawful for the defendant to remove the automobile, but that if the defendant wanted to do so, the mechanic was not to resist him. The defendant left, but returned half an hour later, opened the rear door of the garage, and drove the Oldsmobile away. Count I of the indictment charged the defendant with forcible rescue of the Oldsmobile.

Count II charged the defendant with forcible rescue of the rental house in Gibson City. The remaining facts leading to that charge are as follows. On or about December 9, 1976 , the Days sent the monthly rental payment to the I. R. S. A few days later, the defendant called at the house to collect the rent and was informed of the seizure and the payment to the I. R. S. The defendant went through the house, tore down the notices of seizure, and told the Days to resume paying the rent to him. When the defendant left, Mr. Day called the I. R. S. and was told not to start trouble with the defendant and to go ahead and pay the rent to him until a new notice was posted.

The defendant was tried before a jury and found guilty on both counts. He was sentenced to imprisonment for one year on each count, to run concurrently.

II. The Elements of Forcible Rescue. The defendant's two main contentions involve the lawfulness of the warrantless seizure of the Oldsmobile and the rental house by the I. R. S. agents. The first contention is that in order to prove that the defendant forcibly rescued property, the Government must show that the property had been seized lawfully. The defendant relies on Cooper v. United States, 299 F. 483 (3d Cir. 1924), for the proposition that, "lawful seizure . . . is a prerequisite [to unlawful rescue]. And the lawfulness of the seizure must be shown." Id. at 484. The defendant, relying on G. M. Leasing, contends that the seizure was unlawful because the agents failed to obtain a warrant. But defendant has failed to recognize that the court in Cooper went on to say that one way to show the lawfulness of a seizure is to show that it was performed by one authorized to do so by virtue of his office. 299 F. at 485. Thus lawfulness of a seizure under §7212(b) means only that it was performed by a proper official with general authority under the tax code to make the seizure; disputes over other aspects of the legality of the seizure are irrelevant to the elements of the crime of forcible rescue. As this court has noted, "If the rule were otherwise it would 'encourage violent self-help where civil remedies are admittedly available.' United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d [320, 326 (3d Cir.), cert. denied sub nom. Brooks v. United States, 392 U. S. 931 (1968)]." United States v. Harris [75-2 USTC ¶9644], 521 F. 2d 1089 (7th Cir. 1975). Here, it was shown that the seizure was made by agents of the I. R. S. and, therefore, was made "under [the Internal Revenue Code]" as required by §7212(b). United States v. Harris, indicates that the elements of the crime of forcible rescue, under §7212(b), are: (1) seizure of property by one authorized to do so under the Internal Revenue Code, (2) the defendant's knowledge that the property has been so seized, and (3) a forcible retaking of the property by the defendant. The evidence supports the jury's verdict on each of these elements and, indeed, the defendant does not appear to dispute the facts as we have stated them, arguing only for a different interpretation of the first element above. ³

Underlying the defendant's contention that the Government must show the seizure to have been lawful in all respects is his notion that he had the right to determine for himself that the seizures were unlawful and to remedy that situation by retaking the property. This underlying assumption of a right to self-help finds some support in case law. See Wainwright v. City of New Orleans, 392 U. S. 598 (1968) (opinions of Warren, C. J., and Douglas, J., dissenting from the dismissal of certiorari; the case involved the right to resist unlawful arrest); United States v. DiRe, 332 U. S. 581, 594 (1948) (right to resist unlawful arrest); Bad Elk v. United States, 177 U. S. 529 (1900) (same); Prosser, Law of Torts §22 (4th ed. 1971) (right to recapture chattel). These rules allowing for self-help are based upon the common law and rooted in the concept of self-defense. The difficulty with the defendant's reliance on such underlying assumptions is that these common laws rules of self-help have been altered by the very statute under which the defendant has been convicted. Section 7212(b) represents a legislative determination that in the context of the enforcement of the tax laws, once property has been seized, the risk of disorder by violent recovery of the property should be avoided entirely and the one who claims the right to the property should pursue legal remedies. See also Ill. Ann. Stat. ch. 38, §7-7 (Smith-Hurd 1972) (person may not resist arrest, lawful or unlawful, by known police officer); N. Y. Penal L. §35.27 (McKinney 1975) (same). ⁴ This policy decision by Congress was recognized in our construction of the elements of §7212(b) in Harris, supra, and the requirement of a warrant under G. M. Leasing, supra, does not affect the balance struck by the statute.

III. The Suppression Issue. That brings us to the defendant's second main contention and a fuller consideration of the effect of G. M. Leasing on the defendant's conviction. In that case I. R. S. agents seized a number of automobiles owned by G. M. Leasing Corporation, which the agents considered to be the alter ego of the taxpayer. "None of the cars was on property in which [G. M. Leasing] had an interest." 429 U. S. at 344. In addition, the agents entered upon premises rented by G. M. Leasing for its offices, forcibly entered a cottage on the property used as the office, and seized the contents of the cottage, including books and records. The Supreme Court held that the seizure of the automobiles from places other than on G. M. Leasing's property was authorized by the I. R. S.'s power to collect taxes by "distraint and seizure by any means," 26 U. S. C. §6331(b), ⁵ and no warrant was required. But the Court distinguished the seizure of the contents of the cottage saying:

It is one thing to seize without a warrant property resting in an open area or seizable by levy without an intrusion into privacy, and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer.

429 U. S. at 354.

The Court concluded that a warrant was required in order to enter private property for the purpose of seizing goods in satisfaction of tax liabilities, and said:

The intrusion into petitioner's office is therefore governed by the normal Fourth Amendment rule that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." (Citation omitted.)

Id. at 358. The court found it unnecessary to decide whether the unlawful seizure of the contents of the cottage required suppression of the seized items in any subsequent prosecution because G. M. Leasing had not been prosecuted and the issue was, therefore, premature.

We need decide only one aspect of the issue reserved in G. M. Leasing, that being whether, even if the exclusionary rule applies, the case should be given retroactive effect. The seizures in this case took place in November 1976. The decision in G. M. Leasing was handed down on January 12, 1977 . Therefore, if the case is to be applied prospectively only, evidence of the seizures here was properly admitted. ⁶

Applying "normal Fourth Amendment rule[s]" to the facts of this case, it appears that the entry into and seizure of the rental house was lawful because the tenants consented to the entry, see United States v. Matlock, 415 U. S. 164 (1974), ⁷ but that the entry upon the Main's property and seizure of the Oldsmobile was unlawful in the absence of a warrant, see Coolidge v. New Hampshire, 403 U. S. 443 (1971). ⁸ We need not make a detailed analysis of the legality of the seizures, however, because the evidence of these seizures, even if unlawful under G. M. Leasing, need not have been excluded from the defendant's prosecution for forcible rescue. Because our decision is based solely on the non-retroactivity of the rule in G. M. Leasing, we need not decide the broader question of the applicability of the exclusionary rule apparently left open by the Court in that case.

Guidance for our decision of the retroactivity issue is found in United States v. Peltier, 422 U. S. 531 (1975). The issue in that case was similar in many ways to the one presented here. Peltier involved the question whether the rule in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), holding that warrantless searches conducted by roving Border Patrol agents 25 miles from the border were unconstitutional, should be applied to such searches conducted before the date of the decision in Almeida-Sanchez. In concluding that Almeida-Sanchez should not be given retroactive effect, the Court in Peltier analyzed previous retroactivity cases. It found that no decision excluding evidence "in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process" had ever been held retroactive. The Court then analyzed the effect of a retroactivity holding on the deterrence and judicial integrity rationales for the exclusionary rule. The primary focus of the Court's analysis of both of these rationales was on "[whether] the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." 422 U. S. at 542. Accord United States v. Berry, 571 F. 2d 2 (7th Cir.), cert. denied sub nom. Richardson v. United States, 99 S. Ct. 129 (1978). The Court noted that the Border Patrol agents in Peltier had relied in good faith on a statute and administrative regulations which had long been construed to allow warrantless searches within 100 air miles of any external boundary of the United States and had been upheld consistently by the courts. 422 U. S. at 539-542. For that reason, the Court concluded that retroactive application of the exclusionary rule would have no deterrent effect and that failure to apply it retroactively would not involve the courts in willful violations of the Constitution.

The similarities to the present case are striking. Here too the I. R. S. agents acted pursuant to a statute enacted by Congress, 26 U. S. C. §6331, and the I. R. S. Manual, neither of which required a warrant to enter private property to effect a tax seizure. ⁹ And as the Court observed in G. M. Leasing, similar statutory authority has been provided by Congress since 1791. 429 U. S. at 354. The courts have consistently upheld these provisions. See e.g. United States v. Pilla [77-2 USTC ¶9636], 550 F. 2d 1085, 1091-1092 (8th Cir.), cert. denied, 432 U. S. 907 (1977); Mason v. Rollins, 16 Fed. Cas. 1061, 1063, Case No. 9,252 (C. C. N. D. Ill. 1869) Thus, as in Peltier, "we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm." (Footnote omitted) 422 U. S. at 542. And, as in Peltier, the conclusion follows that neither these revenue officers nor others in the future will be deterred from making unlawful seizures by excluding evidence of these seizures, made in good faith reliance on established legal rules; nor will the "imperative of judicial integrity" be offended by admission of evidence of such seizures.

IV. The Sentence. The defendant also contends that the sentence of imprisonment for one year on each count, to run concurrently, was excessive. The defendant points out that the defendant in United States v. Harris, supra, 521 F. 2d at 1091, was sentenced to only forth minutes in the custody of the United States Marshal. But cf. United States v. Pilla, supra, 550 F. 2d at 1088 (defendant convicted of one count of forcible rescue sentenced to one year). He argues that the sentencing judge gave insufficient weight to certain circumstances which he regards as mitigating.

The general rule on review of sentences in the federal courts is: "once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end (footnote and citations omitted)," unless the sentencing judge relied on improper or unreliable information in exercising his or her discretion, or failed to exercise any discretion at all, in imposing sentence. Dorszynski v. United States, 418 U. S. 424, 431, 443 (1974); United States v. Tucker, 404 U. S. 443, 446-447 (1972); United States v. Cardi, 519 F. 2d 309, 311-312 (7th Cir. 1975). Section 7212(b) authorizes imprisonment for up to two years upon conviction of forcible rescue. Since the defendant was convicted on two counts under the statute, he could have been sentenced to a total of four years imprisonment. Thus the sentence of one year terms to run concurrently is well within the limits of the statute.

The defendant does not contend that the sentencing judge considered improper information in setting the sentence or that he failed to exercise his discretion at all. The sentencing transcript shows that the court considered the pre-sentence report and letters sent to the judge on the defendant's behalf. The defendant's real dispute with the district court is over the weight to be given to the various factors considered. The cases cited above make clear that that is a matter for the sentencing court's discretion, with which this court will not interfere. See also United States v. Foss, 501 F. 2d 522, 529 (1st Cir. 1974).

We have considered defendant's other contentions and found them to be without merit.

For the reasons hereinbefore set out, we affirm the judgment of the district court.

¹ §7212(b) provides:

(b) Forcible rescue of seized property. Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years.

² See note 3, infra.

³ The defendant has raised two subsidiary issues regarding the lawfulness of the seizures in this case. First, the defendant contended in the district court and maintains here that the 1975 Oldsmobile was never owned by the corporation, but was his personal property. Second, he argues that because the corporation was dissolved by the state on December 1, 1976, prior to the day he entered the rental house and removed the seizure notices, the interests of the corporation in the contract to purchase the rental house, which were what the I. R. S. seized, no longer existed, so that there was nothing for him to rescue. Both arguments miss the point of §7212(b). As to the Oldsmobile, the actual ownership was disputed. The certificate of title showed the corporation as owner on the date of the seizure. On the application for that certificate of title, the defendant himself wrote, in the space marked Written Signature of Owner, "Main Cob Co. Inc., Robert Main." The day after the seizure, the defendant applied for a corrected title which then showed him as sole owner. Regarding both the car and the rental house, the I. R. S. had concluded that the corporation was the defendant's alter ego. If the I. R. S. was correct, a point we need not decide here, then the corporation would have "no countervailing effect," and the defendant would be liable for its unpaid taxes. G. M. Leasing v. United States, supra, 429 U. S. at 351. The point of §7212(b) is that legal questions such as these are not be settled by self-help, but by the civil remedies provided in the statute.

⁴ The Practice Commentary to the New York provision, added in 1968, contains a detailed exposition of the legislative policy decision which changed the common law rule in the arrest situation. Practice Commentary, N. Y. Penal L. §35.27 (McKinney 1975). See People v. Lattanzio, 35 A. D. 2d 313, 316 N. Y. S. 2d 163 (3d Dept. 1970) (holding §35.27 constitutional as a reasoned exercise of the police power to protect the safety of both police officers and the citizenry).

⁵ 26 U. S. C. §6331 reads in part:

(a) Authority of Secretary or delegate.--If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax . . . by levy upon all property and rights to property . . . belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. . . .

(b) Seizure and sale of property.--The term "levy" as used in this title includes the power of distraint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).

. . . .

⁶ The admissibility of evidence of the seizures is important, of course, because if the evidence must be suppressed, the Government would be unable to show that the rescued property had been seized at all. The difficulty would be similar to that in a drug possession case in which evidence of the unlawful seizure of the drugs had to be suppressed. Cf. United States v. Peltier, 422 U. S. 531 (1975) (discussed infra).

⁷ While it has been held that a landlord may not consent to a search of a house rented to another, Chapman v. United States, 365 U. S. 610 (1961), or a hotel clerk authorize a search of a customer's room, Stoner v. California, 376 U. S. 483 (1964), it is not the respective property rights involved that control, but the consenter's "authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U. S. 164, 171 (1974). Matlock approved consent by third parties with equal possessory and privacy interests in the premises to those of the defendant. It would seem to follow a fortiori that the tenant, whose possessory and privacy interests are superior to the landlord's, should be able to give valid consent at least to the entry by the agents. Once validly admitted to the premises, G. M. Leasing appears to hold that a warrantless seizure, by posting the seizure warnings, would be authorized by §6331. 429 U. S. at 352, 354, 358.

⁸ We note that the I. R. S. has concluded that under G. M. Leasing, a warrant is required in order "to seize a vehicle from a taxpayer's front yard, driveway, or carport." I. R. S. Manual, Supp. 5G-88, at p. 9433-5 (CCH December 15, 1977 ). The Government argues here that the warrantless entry and seizure in this case can be justified under the "plain view," "openfields," and so-called "automobile" exceptions to the warrant requirement. The main difficulty with these arguments is the striking similarity between the facts (as to the location and circumstances of the automobile) here and in Coolidge, supra, where these arguments were considered and rejected. The Coolidge distinction between automobiles on the highway or in public places and those parked on private property was recognized again in Cardwell v. Lewis, 417 U. S. 583, 593 (1974). We, however, will confront the "plain view" issue at such time as it may be appropriate for reaching a decision and then upon the particular facts presenting the issue. In addition, in disputing the legality of the physical seizure of the Oldsmobile on November 11, the parties have not raised the possible effect of the earlier tagging of that car by the agents on October 13. In view of the result we reach on the retroactivity issue, there is no need to consider this point and we express no opinion on it.

⁹ The I. R. S. Manual has been revised to reflect the decision in G. M. Leasing. There is now a separate part dealing with seizures on private property. I. R. S. Manual ¶5342 (CCH Nov. 20, 1978 ). That part begins:

5342.1

General

(1) The Supreme Court of the United States held in G. M. Leasing v. United States (citation omitted) that a warrantless entry onto the private areas of personal or business premises of a taxpayer for the purpose of seizing property to satisfy a tax liability is in violation of the Fourth Amendment to the Constitution of the United States. As a result, before such seizures are made, revenue officers must either secure the taxpayer's written consent to entry or a court order permitting the entry. . . .

See also I. R. S. Manual Supps. 5G-85, (CCH August 15, 1977 ) and 5G-88 (CCH December 15, 1977 ).

 

 

 

 

 

 

[74-2 USTC ¶9729]United States of America, Appellee v. John Robert Heck, Jr., Armin Moths, Eric C. Moths, Christopher Raymond Bates, Steven Wayne Mitzner, James B. Mitzner, Lucien B. Burnham, Charles Edward Mitzner, Edward F. Ross, Appellants.

(CA-9), U. S. Court of Appeals, 9th Circuit, Nos. 73-1671, 73-1672, 73-1673, 73-1674, 73-1675, 73-1697, 499 F2d 778, 1/30/74, Rev'g, aff'g and rem'g unreported DC

[Code Sec. 7212(b) and 18 U. S. C. §111]

Crimes: Attempts to interfere with the administration of internal revenue laws: Forcible rescue of seized property.--The evidence at trial was insufficient to prove beyond a reasonable doubt that defendants either conspired to violate Code Sec. 7212(b), forcible rescue of seized property, or committed a substantive violation of Code Sec. 7212(b). Since the seizure of the defendant's personal property occurred on May 9, 1972, and the seizure of his real property did not occur until the next day, the breaking of the glass door of the real property, the entering and sitting at a desk inside the premises, the bandaging of cut fingers, and the threatening that there might be an attempt to rescue seized property, all which occurred on May 9, 1972, were insufficient to show either a conspiracy to violate, or a substantive violation of Code Sec. 7212(b). However, the evidence was sufficient to establish that five of the defendants, including the defendant whose property was seized, were guilty of forcibly assaulting, resisting, and interfering with officers of the Internal Revenue Service, 18 U. S. C. §111, and of conspiring to violate that provision. Since, viewing the evidence most favorably for the Government, five specific acts of assault upon Federal officers were established, the evidence clearly enables a jury to find the required joint action to establish a conspiracy, the convictions of conspiracy to violate and of the violation of 18 U. S. C. §111 were affirmed. The Appellate Court also concluded that: the defendant who was not an expert witness had no right to express his opinion at trial that the tax laws are unconstitutional; the trial court had not abused its discretion by instituting security measures at trial; failure to record grand jury testimony was not reversible error; failure to sever the joint trial of charges which arose from the same series of transactions was not reversible error; failure to call "one particular occurrence" witness was not a denial of the right to confrontation of witnesses guaranteed by the Sixth Amendment; hearsay statements made by a conspirator were admissible as statements made in furtherance of the conspiracy or to show state of mind; failure to ask all proposed voir dire questions was not an abuse of discretion; failure to adopt the "California Rule" of circumstantial evidence was not reversible error; the instructions to the jury were proper and complete; and the Government did not withhold exculpatory evidence.

Harry D. Steward, United States Attorney, E. Mac Amos, Assistant United States Attorney, San Diego, Calif., for appellee. Mobley M. Milam, 1140 Union St., San Diego, Calif., Morris Sankary, 110 W. C St., San Diego, Calif., Christopher R. Bates, Los Angeles, Calif., pro per, Edward F. Ross, 1950 Sunset Blvd., Anaheim, Calif., pro per, G. G. Baumen, Los Angeles, Calif., for appellants.

Before BARNES and ELY, Circuit Judges, and PLUMMER, District Judge. ^*

Opinion

BARNES, Circuit Judge:

One or more of the eleven defendants who are parties to this appeal were charged in one or more counts of a superseding indictment (No. 13708), with having conspired to violate (Count I), or having substantively violated (Count II), 26 U. S. C. §7212(b).

All defendants were charged in Count III with having conspired (18 U. S. C. §371) to forcibly assault, oppose, resist, impede, or interfere with various federal officials, or (Counts IV to X) with substantively violating 18 U. S. C. §111.

We note the difference in the subject matter in section 7212(b) and section 111; and that a violation of section 7212(a) was not charged in the indictment.

26 U. S. C. §7212(b) reads as follows:

"(b) Forcible rescue of seized property.--Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years." 18 U. S. C. §111 reads as follows:

"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 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. §1114, referred to in section III, lists United States Marshals, any officer or employee of the Federal Bureau of Information, or any officer, employee or agent of the Internal Revenue Service, as the officers protected by the statute.

The offense charged against all defendants in the first count of the superseding indictment filed in this case alleged a conspiracy "to forcibly rescue property seized at the Heck Transfer & Storage Co., which property had been heretofore previously seized by agents of the Internal Revenue Service," ¹ though still located on the Heck premises. The second count charges all defendants forcibly attempted to rescue the seized property (26 U. S. C. §7212(b)).

Counts III and IV to IX do not concern the seized property directly, but charge in Count III that all defendants conspired "to assault, resist and interfere" with certain Government agents responsible for protection of the seized property, and in Counts IV to X, inclusive various defendants were charged with the substantive offense of assaulting, resisting or interfering forcibly with various special agents of the Internal Revenue Service, while said agents were engaged in the performance of their official duties.

The theory of the first two counts rests on an alleged rescue of seized property. They differ from the remaining counts which rest on interference with the agents' performing their official duties.

A variety of verdicts were returned by the jury, ² and varying sentences were imposed. ³

I. The Legality of the Seizure

Certain of the defendants charge that the legality of the Internal Revenue Service seizure was an assential issue that was required to be determined by the trier of fact before the defendants could be found guilty. The court instructed the jury the legality of the seizure was not before it. ⁴

Cooper v. United States, 299 F. 483 (3rd Cir. 1924) states the contrary:

"The offense denounced by the statute (26 U. S. C. §7212(b)) has two essential ingredients--seizure of merchandise and rescue of merchandise seized. But there is more to it than that. There must be an unlawful rescue of merchandise lawfully seized. United States v. Page (D. C., 277 Fed. 459). Hence, lawful seizure is not only an ingredient preliminary to an unlawful rescue but it is a prerequisite. And lawfulness of the seizure must be shown. This element of the offense cannot be pleaded by mere assertion or conclusion but must be pleaded by facts." ⁵ (Emphasis added.)

We note the Government's Brief cites other authority to support its position that it need not plead and prove a lawful seizure; namely:

1. United States v. Oliver [70-1 USTC ¶9234,] 421 F. 2d 1034 (10th Cir. 1970). The jury passed on the defense the vehicle had not been properly seized, but found it had been. The instruction objected to by Oliver is not quoted in the decision. The Oliver panel preceded its reference to Scolnick by this language: "There is a dearth of cases discussing 26 U. S. C. §7212(b), however, we find the reasoning hereinafter quoted to be relevant." ⁶

2. United States v. Bernstein, 287 F. Supp. 84 (S. D. Florida, 1968). ⁷

On such facts, the government, as here, relied on 26 U. S. C. §6331 to authorize the seizure.

We need not pass upon this legal question, however, in view of our disposition of the first two counts, as hereinafter appears.

II. Evidence

Turning to the facts of the case before us, we emphasize certain facts. The crime charged is alleged to have been committed on May 9, 1972 . The federal tax lien was filed and recorded in San Diego County on March 23, 1972 , covering the "1040 Tax Liability" of Mr. and Mrs. Heck for the two years ending December 31, 19 68 and December 31, 19 69. (Gov. Ex. No. 1). A levy in the amount of $8,336.73 was made on May 3, 1972 (Def. Ex. A), and Mr. Heck received copy of that levy (Gov. Ex. 5, para. 2), and a Notice of Seizure on May 4, 1972 . (Gov. Ex. 13, 14, and 15). It was stipulated between counsel that the personal property was seized on May 9, 1972 , and that the real property was seized on May 10, 1972 (R. T. 1796).

III. Sufficiency of Evidence

A question quickly arises. How could the seized personal property be, on May 9, 1972 , the object of an attempted rescue unless some defendant touched it, or picked it up, or attempted so to do? No one, save Mr. Heck, touched it, or attempted to touch it. The government cannot rely on Mr. Heck breaking the glass in his front door, because title to the real property was his, subject to a lien, but prior to any seizure of it. He was entitled to break as many doors or windows as he desired prior to seizure. On May 9, 1972 , Mr. Heck had ownership and use of the real property. (R. T. 243).

While there is a factual dispute between the parties as to "who pushed whom, if anyone," through the entrance door to the Heck premises, if there is no testimony of any attempt by any person, made inside or outside the building, to "rescue" anything seized, or to remove any personal property from the real property physically, the government's case has not been established.

The government, to supply this insufficiency, points to its Ex. 5, as proof of threats made by Mr. Heck, and his ultimatum, that if the government did not restore the property levied upon by the government to him--

". . . my friends, as concerned and irate citizens will see that I am put back into business under my guaranteed Constitutional Rights." (Gov. Ex. 5).

The difficulty with the prosecutor's position is the testimony of Officer Williams that he did not read Ex. 5 (the letter), prior to the fracas on May 9, 1972 . There was evidence also of oral "threats"--such as Dr. Ross':

"[T]he property would be returned to Mr. Heck by 12 o'clock , or else" (R. T. 232), and "If you are prepared to arrest 200 people, you are welcame to try" (R. T. 233); "that California has no death penalty and that any action could be taken against police officers short of killing them in order to rescue seized property." (R. T. 235).

But there is no mention of threats, intimidation, obstruction, or impeding in section 7212(b), as there is in section 7212(a), and in 18 U. S. C. §111.

We have before and again emphasize that the government saw fit to sue the defendants on two different theories, requiring differing proof. The first was expressed as a conspiracy to rescue seized property, and the substantive crime of forcibly attempting to rescue it. The second theory was expressed as a conspiracy to assault and interfere with government officials, and in doing so.

The only acts, violent or otherwise, directed against the Heck property, was defendant Heck's breaking of the glass in the door to his unseized real property on May 9, 1972 ; his sitting at his seized desk inside said premises; the bandaging of his cut fingers, and some brave talk of future action suggested by defendants outside the Heck premises. At the most, Heck (in Ex. 9) threatened that there might be an attempt to rescue seized property. ⁸

The government emphasizes in its factual recital that defendant Ross was outside the Heck premises "walking up and down . . . reading out of a book entitled, The Big Bluff" (Ex. A-Z), making "comments about there being no death penalty in California, and that any action could be taken against police officers short of killing them." When Heck picked up the large rock (shown in defendants' Ex. R) to break the glass, he was surrounded by "a group" of three or four persons on each side of him, which group shouted, "Those SOB's cannot stop us now."

The difficulty in relying upon such testimony to prove Counts I or II is that they do not prove an attempt to rescue the only seized property as of 12:00 noon on May 9, 1972 ; i. e., the personal property. There was evidence of certain intent to enter the locked Heck premises, and that some did, but that would not be sufficient to prove Counts I or II as to any defendant.

We have carefully examined the record, and conclude there is insufficient evidence to prove beyond a reasonable doubt that any defendant forcibly attempted to, or did, rescue seized property. We therefore reverse all convictions of the seven defendants convicted on Count I, and the five defendants convicted on Count II, upon the insufficiency of the evidence to establish a violation of 26 U. S. C. §7212(b).

[Forcible Resistance]

The second theory pursued by the government against the various defendants in Count III was that all nine conspired (18 U. S. C. §371) to "forcibly assault, resist and interfere" with Internal Revenue officers responsible for the protection of seized (personal) property (18 U. S. C. §111) located at the Heck Transfer & Storage Company property at 2165 Newton Avenue, San Diego, California.

Defendants Eric Moths and Christopher Raymond Bates were found not guilty by the jury of the conspiracy charge in Count III. Eric Moths was found not guilty of assault on Dunlap (Count VII); and neither Moths nor Bates were charged with any other substantive count charging a violation of 18 U. S. C. §111, alone.

We need consider, therefore, only the convictions of defendant Heck as to Count III; of Armin Moths as to Counts III and VI; of Steven Mitzner as to Counts III and V; of James Mitzner as to Counts III and VIII; of Charles Mitzner as to Counts III and IX; and of Edward F. Ross as to Count III.

As to Count III, the government proved beyond question that various assaults took place on Internal Revenue officers, both on the sidewalk and street, and on the Heck premises. Five separate assaults were charged in Counts IV, V, VI, VII, VIII, and IX. The jury found a knowing assault, or resistance, or interference, was proved as to five of these six counts (i. e., found Eric Moths not guilty on Count VII).

"It is well established that in determining the sufficiency of the evidence to sustain a conviction, the evidence must be construed in the light most favorable to the government. Glasser v. United States, 315 U. S. 60 (1942); United States v. Nelson, 419 F. 2d 1237 (9th Cir. 1969); Kaplan v. United States, 329 F. 2d 561 (9th Cir. 1964); United States v. Munns, 457 F. 2d 271 (9th Cir. 1972)." (Appellee's Brief, p. 66).

Viewing the evidence most favorable to the prosecution, there is no question but that the evidence is sufficient to support each of five specific violations of the law as to Armin Moths, the three Mitzners, and Lucien B. Burnham. First there are various photographs showing assaults, interference and resistance. Next, three or more eyewitnesses testified to each assault charge. All the Mitzner defendants were observed to assault Agent Rodriquez by witnesses Wrenn (R. T. 431), Timothy Buster (R. T. 744), Robert Cotten (R. T. 521, 554), and FBI Agent Maloney. The Burnham assault was observed by three agents, and the Moths' assault was observed by three agents.

Witness Wrenn was a photographer employed by the San Diego Union-Tribune newspaper, and had been for twenty-five years. He was disinterested, unprejudiced and was observant. He saw a "scuffle" between Agent Rodriquez and Dingwald, the man Rodriquez was trying to arrest. (R. T. 409). Wrenn testified he saw the three Mitzners "beating" at Agent Rodriquez (R. T. 430), and that he had taken a picture (Gov. Ex. 7) of them "pounding" at Rodriquez' back (R. T. 469, 432, 472) in the presence of defendant Ross. Rodriquez threw no blows. The police then arrived. (R. T. 431, 496).

The same witness, Wrenn, saw Armin Moths "throwing his arms around and kicking . . . pretty violent about it and lunging back and forth while being arrested and handcuffed." Wrenn saw no blows thrown by the officers (R. T. 432), nor did he see any officers initiate any "scuffles".

Wrenn also took defendants' Ex. AB (erroneously referred to as defendants' Ex. AC (R. T. 464), which shows Rodriquez putting the man in the yellow sweater (Dingwald) against an automobile, while he (Rodriquez) had hold of his arms from behind, and the crowd was trying to pull him (Rodriquez) away. (R. T. 465).

Wrenn heard the four or five men who were around Heck, when he approached the door, urge him to open the door. (R. T. 492). Among these men were Hohenstein and Charles and James Mitzner.

Cotten was a "waysman" in a shipyard. (R. T. 518). He was attending South Bay Trade School on May 9, 1972 , located near the defendant Heck's place of business. He was apparently a disinterested witness. He saw a bearded man "attack" a federal agent as the latter attempted to make an arrest, and he identified the man as Steven Mitzner, and the agent as Rodriquez. Cotten saw Charles Mitzner "kneeing" Rodriquez, and James Mitzner holding Rodriquez down.

One Mitzner brother also struck an agent just after defendant Heck entered the premises. Cotten saw no agent strike any person. (Defendants' Ex. AS).

Buster was a student of South Bay Trade School on May 9, 1972 . He saw Steven Mitzner strike a special agent on his left forehead; and heard Steven Mitzner curse the agent. Buster saw James Mitzner push and shove two special agents; and saw two more people (who were not arrested) strike agents or interfere with arrests (Defendants' Ex. BK).

The foregoing is not all the evidence in the record indicating that defendant Armin Moths "forcibly assaulted, resisted and interfered with" Meyers; that the three Mitzners did the same to Rodriquez, and that Burnham did the same to and with Dunlap. We have cited references only to distinterested testimony.

There is thus clearly sufficient testimony in the record, viewed most favorably to the government's position as we must, to establish the guilt on the five substantive counts against Armin Moths, Burnham, and the three Mitzners.

[Conspiracy]

A conspiracy is defined as a combination of two or more persons to accomplish some unlawful purpose, or some lawful purpose by unlawful means. It is a partnership for criminal purposes in which each member becomes the agent for every other member (R. T. 1790), when the conspiracy has been proven to exist, and that the person charged was one of its members.