Rescue of Seized or Levied Property Page2

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Under this definition, the evidence clearly enables a jury to find the required joint action between the five defendants substantively charged, and Dr. Ross and Mr. Heck. Thus a conspiracy stands proved on Count III.

We next consider the alleged errors charged, other than the sufficiency of the evidence to establish a conspiracy, and the five substantive counts. We follow the outline of the arguments contained in the government's brief, listing points III A to III R, inclusive.

There is no need, because of our conclusion with respect to Counts I and II to consider points III A, B, or C of the government's topical index, nor need we, in view of our conclusions as to the evidence, supra, consider further III R.

We find no necessity of answering in detail III D, that Congress has no power to delegate the collection of taxes. Appellants John R. Heck, Jr. and Eric W. Moths argue that Congress may not pass legislation delegating the power to lay and collect taxes because the Sixteenth Amendment to the Constitution lacks an enabling clause. These appellants fail to realize that the collection power was vested in Congress prior to the passing of the Sixteenth Amendment.

Congress had the power to collect taxes on income prior to the passage of the Sixteenth Amendment and to make all laws necessary for carrying into execution this power under Article 1, Section 8, Clause 18 of the Constitution. Cf. Erwin v. Granquist [58-1 USTC ¶9318], 253 F. 2d 26, 27 (9th Cir. 1958), cert. denied, 356 U. S. 960 (1958).

III E. Constitutionality of Conspiracy Statute

Title 18 U. S. C. §371 (the conspiracy statute), has repeatedly been held constitutional. In United States v. Edwards, 458 F. 2d 875, 883 n. 7 (5th Cir. 1972), the claim that such statute was unconstitutional was held "clearly without merit," and "unworthy of comment." `The section has been widely applied in the prosecution of frauds upon the revenue' . . . since 1867." This "is a valid statute." Cullen v. Esola, 21 F. 2d 877, 879 (1927).

III F. Opinions as to Constitutionality

Appellant Heck had no right to express his opinion or belief that tax laws are unconstitutional in the courtroom as a witness during the trial of this case. Unless a defendant can qualify as an expert witness, no expression of opinion alone is admissible.

"One may not disobey a law even in the good faith that it is unconstitutional and, on that ground, avoid the consequences of his act if the law is within the constitutional power of Congress."

Warren v. United States, 177 F. 2d 596, 600 (10th Cir. 1949), cert. denied, 338 U. S. 947 (1950);

Finn v. United States, 219 F. 2d 894 (9th Cir. 1955), cert. denied, 349 U. S. 906;

Harris v. United States [69-2 USTC ¶9700], 412 F. 2d 384, 390 (9th Cir. 1969).

III G. Security Measures

The trial court had the discretion to institute security measures on the last day of the trial, including the presence of United States Marshals and the use of an electric magnometer. The trial judge had (a) received veiled threats in the mail (R. T. 134 and 1779); and (b) information that a demonstration was planned for the courtroom. (R. T. 1609, 1770). Spectators had been previously admonished for their loud comments. (R. T. 279).

The trial judge did not abuse his discretion. United States v. Greenwell, 418 F. 2d 846, 847 (4th Cir. 1969); Loux v. United States , 389 F. 2d 911, 919 (9th Cir. 1968).

III H. Failure to record Grand Jury Testimony

Appellants S. Mitzner , J. Mitzner, C. Mitzner, Burnham, and Ross and A. Moths argue that the failure to record grand jury testimony constitutes reversible error. They further contend that the presentation to the Grand Jury was based upon erroneous facts.

Appellants made no timely motions before the court to have the grand jury proceedings recorded. Further, recording is permissive, not mandatory. F. R. Crim. P. Rule 6(d); United States v. Trenary, 473 F. 2d 680 (9th Cir. 1973); United States v. Daras, 462 F. 2d 1361 (9th Cir. 1972). In addition, appellants were afforded complete discovery and, as a result, were in no way prejudiced by the failure to record. Reyes v. United States , 417 F. 2d 916 (9th Cir. 1969).

III I. Motions for Severance

In Parker v. United States, 404 F. 2d 1193, 1196 (9th Cir. 1968), this court stated:

"Joint trials of persons charged together with committing the same offense or with being accessory to its commission are the rule, rather than the exception. There is a substantial public interest in this procedure. It expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. . . ."

Each defendant need not have participated in every act or transaction. This is evident from the express statement in the rule that all of the defendants need not be charged in every count. Mendex v. United States, 349 F. 2d 650 (9th Cir. 1965), cert. denied, 384 U. S. 1015 (1966); Williamson v. United States, 310 F. 2d 192 (9th Cir. 1962). Further, a joinder in one indictment of a conspiracy count and substantive counts is permissible under Rule 8(b). Baker v. United States , 383 F. 2d 604, 607 (9th Cir. 1968).

All charges in this case arose out of the same series of transactions. The events culminating in the arrests sprang forth from the demonstration in front of the Heck property. All appellants were present at the demonstration.

III J. Was Appellant A. Moths Denied His Sixth Amendment Right of Confrontation By the Government's Failure to Call Agent Meyer?

We adopt the government's answer en toto to this argument, ⁹ and find no prejudicial error.

III K. Hearsay Statements Are Admissible If Made By a Conspirator in Furtherance of The Conspiracy or are Admitted to Show State of Mind and Intent.

Appellants Heck and E. Moths assert that various hearsay statements should have been excluded. These statements include: (1) the testimony of Agent Clovis setting forth appellant Ross' statement that ". . . if I could arrest 200 people I was welcome to try" (R. T. 876, ll. 9-11); (2) the testimony of witness Timothy Buster that he overheard appellants E. Moths and A. Moths discussing the fact that someone was going to bust in the door of the Heck building (R. T. 738, ll. 8-12); (3) the testimony of Revenue Officer Williams that appellant Ross made statements about there being no death penalty in California and using force short of killing an officer to rescue seized property (R. T. 235); (4) the testimony of Agent Clovis that co-conspirator Hohenstein stated he was at the demonstration for the purpose of restoring the seized property by entering the premises (R. T. 880, 1. 21-25; 881, 1. 11-15) and (5) the testimony of FBI Agent Maloney that prior to the arrival of the agents of the FBI, the Internal Revenue Service told him they had made a seizure of the Heck company (R. T. 816-817). The first four statements were made by co-conspirators. Each was properly admitted as a statement in furtherance of the conspiracy. In addition, the statements of co-conspirator Ross about arresting 200 people and the statement of co-conspirator Hohenstein are admissible for the purpose of showing state of mind and intent. The fifth statement by Agent Maloney was not offered for the truth of the matter, but merely to show why the FBI went to the Heck premises.

Hearsay statements made by a co-conspirator in furtherance of the conspiracy are admissible. Glasser v. United States , 315 U. S. 60 (1942); Logan v. United States , 144 U. S. 263 (1892); Carbo v. United States , 314 F. 2d 718, 735 (9th Cir. 1963). The appellants acknowledge that this is the law, but argue that the conspiracy must be established prior to the admission of the statements. However, it is within the trial judge's discretion to admit the declarations and acts of an alleged co-conspirator subject to later proof of the existence of the conspiracy. United States v. Castanon, 453 F. 2d 932, 934 (9th Cir. 1972); Enriquez v. United States , 314 F. 2d 703, 705 (9th Cir. 1963).

III L. The Trial Judge Did Not Abuse His Discretion by Failing to Ask All Of the Proposed Voir Dire Questions.

It is well established that the scope of the voir dire examination and the procedures to be utilized therein are matters within the second discretion of the trial judge, and will not be disturbed on appeal unless the procedures used or the questions propounded are so unreasonable or devoid of the constitutional purpose as to constitute an abuse of that discretion. Haslam v. United States , 431 F. 2d 362, 364 (9th Cir. 1970); Rodgers v. United States , 402 F. 2d 830 (9th Cir. 1968); Amsler v. United States , 381 F. 2d 37 (9th Cir. 1967).

We find no abuse of discretion.

III M. The Trial Court is Not Required to Instruct That the Circumstantial Evidence Must be Adequate to Exclude Every Hypothesis Except That of Guilt.

Appellant A. Moths urges this court to change its rule on circumstantial evidence and to adopt the California rule. This court has refused this invitation on past occasions. United States v. Bojas, 458 F. 2d 1355, 1356 (9th Cir. 1972); Sablan v. People of Guam , 434 F. 2d 837 (9th Cir. 1970).

The proper test is not whether the evidence excludes every hypothesis except that of guilt but rather whether the trier of fact could reasonably arrive at its conclusion. United States v. Nelson, 419 F. 2d 1237, 1243 (9th Cir. 1969)

III N. The Jury Instructions Were Proper And Complete.

We have carefully considered the objections raised to the instructions requested, but not given, and we find the judge's instructions proper, adequate, and not erroneous, and that they sufficiently and thoroughly covered all issues when considered, as we are required to consider them, as a whole.

III O. The Government did not Withhold Exculpatory Evidence.

This alleged error had to do with the government's alleged failure to produce a photograph allegedly taken by IRS Agent Hairgrove, which allegedly shows an individual not identified as a defendant, striking Agent Rodriquez.

Appellants made no attempt to obtain this photograph at trial. Further, the protograph was among those shown to defense counsel at pretrial proceedings. While it was not specifically pointed out that this was an individual who hit Agent Rodriquez, additional individuals who hit Rodriquez, other than appellants, were described in the report made available to the appellants prior to trial. In addition, at the trial itself, Agent Clovis asked defense counsel if he desired the photograph in question, and was given a negative reply.

Counsel for defendants brought out the fact that others hit Agent Rodriquez and argued that there was an issue of mistaken identity regarding his clients. He repeatedly emphasized the picture taken by Hairgrove. (R. T. 1707-1709, 1714). The appellants were in no way prejudiced by not having the actual picture. As the government urges, they were convicted because of the overwhelming amount of eyewitness testimony regarding these assaults.

We consider appellants' alleged errors III P. and III Q. to be without merit. They approach the frivolous, particularly when no objections were made by any defendant to them at the trial.

Conclusion

1. As to defendant Heck, we reverse his convictions on Counts I and II, and affirm his conviction on Count III.

2. As to defendant Armin Moths, we reverse his convictions on Counts I and II, and affirm his conviction on Counts III and VI.

3. As to defendant Eric Moths, we reverse his conviction on Count II.

4. As to defendant Bates, we reverse his conviction on Count II.

5. As to defendant Steven Wayne Mitzner, we reverse his conviction on Count I, and affirm his convictions on Counts II and V.

6. As to defendant James B. Mitzner, we reverse his conviction on Count I, and affirm his convictions on Counts III and VIII.

7. As to defendant Charles Edward Mitzner, we reverse his conviction on Count I, and affirm his convictions on Counts III and IX.

8. As to defendant Lucien B. Burnham, we reverse his convictions on Counts III and IV.

9. As to defendant Edward F. Ross, we reverse his conviction on Count I, and affirm his conviction on Count III.

Remanded for re-sentencing on affirmed convictions, and any other required proceedings, if any.

^* The Honorable Raymond E. Plummer, United States District Judge, Anchorage , Alaska sitting by designation.

¹ The court instructed the jury, after reading part of 26 U. S. C. §7212(b):

"The property seized in this case is only that described in Exhibits 13, 14 and 15."

These documents are lists of auto trucks, tractors or vans, valued at $400.00, and office furnishings, valued at $91.00.

² Defendant Eric C. Moths was found guilty on Count II and not guilty on Counts I, III, and VII. The defendant Christopher R. Bates was found guilty on Count II, and not guilty on Counts I and III.

Defendant Steven W. Mitzner was found guilty of Counts I, II [sic], and V, but not guilty on Count II [sic].

Defendant James B. Mitzner was found guilty on Counts I, III, and VIII; not guilty on Count II.

Defendant Charles E. Mitzner was found guilty on Counts I, III, and IX, and not guilty on Count II.

Defendant Lucien B. Burnham was found guilty on Counts I, II, III, and IV.

Defendant Edward F. Ross was found guilty on Counts I and III and not guilty on Count II.

Defendant Dingwald was granted a severance of his trial by the trial court. Thus we need not consider herein Count X.

Defendant Hohenstein was found guilty but granted a new trial by the trial court.

³ The defendant Burnham was sentenced on Counts I to Count VI, a fine of $1,000, but imposition of sentence of imprisonment was suspended and the defendant placed on probation for a period of three years. His sentence on Count II was made concurrent with Count I with a fine of $500. His sentences on Counts II and IV were concurrent with each other and concurrent with I, and the court fixed the fine at $1,000.

The sentence of James B. Mitzner, found guilty on Counts I, III, and VIII was the same at defendant Burnham's, $250, all counts concurrent.

The sentence of Eric C. Moths, found guilty on Counts I and III was similar to defendant Burnham's with a fine of $1,000 concurrent as to each count.

The sentence of Charles E. Mitzner, who was found guilty of Counts I, III, and IV, was similar to Burnham's with a fine of $1,000 concurrent as to each count.

The sentence of Steven W. Mitzner, who was found guilty on Counts I, III, and V, was similar to that of defendant Burnham's; all counts were concurrent with each other.

The defendant Christopher R. Bates was found guilty on Count II, fined $50; sentence of imprisonment suspended, and six months' probation granted without supervision.

The sentence of defendant Eric C. Moths, who was found guilty on Count II, was similar to that of defendant Bates.

The sentence of Armin Moths, who was found guilty on Counts I, II, III, and VI; was fined $1,000 on Count I; imposition of imprisonment was suspended and probation for three years was granted with a $500 fine on Count II, concurrent with Count I; and Counts III and VI concurrent with Count I and each other.

The defendant Heck was found guilty on Counts I, II, and III, and sentenced to a $1,000 fine, imposition of imprisonment was suspended, and three years' probation was granted. Count II was ordered concurrent with Count I with a fine of $500, and Count II was sentenced concurrent with Count I, with a fine of $1,000.

⁴ R. T., p. 1795, line 24, et seq.

⁵ Shepardizing the Cooper case is of some, but little help. But one case is cited, United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d 320 (3rd Circuit 1968). The government refers to Scolnick as authority for the proposition that the validity of the government lien was irrelevant, as the district court instructed the jury. Quoting from Scolnick at page 326, the government suggests that their position finds support in this language:

". . . 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. . . . 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 . . ." (Emphasis added.)

But the circumstances stated in Scolnick are not the circumstances found herein. The headnotes in Scolnick state in part:

"6. Fact that evidence is illegally obtained exclusively by state officers does not automatically preclude its use in federal criminal trials."

"8. Federal officers are not required to comply with state statutes relating to searches of safety deposit boxes in order for evidence found therein to be admissible in federal prosecution."

"16. Once government has seized property belonging to defendant it has interest in such property so that defendant who takes such property from government's possession could be found guilty of rescuing property seized by the government."

⁶ "The relevant facts adduced in the record indicate Oliver owed 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 unemcumbered which could be levied upon for payment of the tax.

"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."

United States v. Oliver, supra, at 1036.

⁷ "On December 14, 19 67 a revenue agent went to the defendant's home to attempt to collect $1,990.83 in back taxes. The agent had a levy for four assessments. After discussion with the defendant and a refusal to pay, the agent attempted to execute the levy by seizing the defendant's two Cadillacs. The defendant physically interfered and prevented the seizure. The defendant was subsequently charged with violating 18 U. S. C. §2232 which provides:

`Whoever, before, during, or after seizure of any property by any person authorized to make searches and seizures, in order to prevent the seizure of [or] securing of any goods, wares or merchandise by such person, staves, breaks, throws overboard, destroys, or removes the same shall be * * *.'"

⁸ The only overt act charged against defendants other than defendant Heck in Count I was that they "traveled" to the vicinity of 2165 Newton Avenue , San Diego , California .

⁹ "Appellant A. Moths was found guilty in Count Six of assaulting and interfering with Special Agent Robert Meyer. During the trial, Agents Dunlap (R. T. 974), Zarndt (R. T. 1045), and Graham (R. T. 1064) all testified that they observed A. Moths assault Agent Meyer. Agent Meyer did not testify. His testimony was originally scheduled for rebuttal, but when the defense testimony did not weaken the government's case, the decision was made not to call Agent Meyer. This would have only prolonged the two-week trial being held during the Christmas holiday season. No attempt was ever made by any appellant to subpoena Agent Meyer.

"The Confrontation Clause requires that an adequate opportunity for cross-examination exists. This may be satisfied even in the absence of physical confrontation. Douglas v. Alabama , 380 U. S. 415, 418 (1964).

"A defendant has no right to confront a 'witness' who provides no evidence at trial. United States ex rel. Meadows v. New York , 426 F. 2d 1176, 1184 (2d Cir. 1970); United States v. Russell, 282 F. Supp. 106, 112 (E. D. Pa. 1968). Nor is the government required to call all of the witnesses to a crime. Rivera v. United States , 318 F. 2d 606, 607 (9th Cir. 1963); United States v. Mosby, 422 F. 2d 72, 74 (8th Cir. 1970).

"Appellant could have called Agent Meyer if he had desired to do so. His right of confrontation was satisfied by this available opportunity. There is no evidence to indicate that the failure of the government to call Meyer was induced by any improper motive. His testimony would have been cumulative and the government was not required to call him." (Government Brief, at 45 and 46).

 

 

 

 

[77-2 USTC ¶9636] United States of America , Appellee v. Daniel M. Pilla, Appellant

(CA-8), U. S. Court of Appeals, 8th Circuit, No. 76-1616, 550 F2d 1085, 1/5/77 , Aff'g unreported District Court decision

[Code Sec. 7212(b)--result unchanged by 1976 Tax Reform Act]

Crimes: Seized property: Attempts to rescue: Evidence: Sufficiency of: Admissibility: Constitutional rights.--The defendant was properly convicted of attempting to rescue from his business premises property that had been seized by the IRS for nonpayment of taxes. The evidence was sufficient to establish the offense and it was not error to admit evidence establishing that the defendant had not paid a substantial amount of taxes and evidence as to the procedures followed by the IRS in undertaking to effect collection prior to the seizure. The seizure itself was not invalid. The defendant was not deprived of a speedy trial merely because of an 18-month delay between indictment and trial and he was not deprived of his right to counsel by the lower court's refusal to allow him to be represented by lay counsel.

Robert G. Renner, United States Attorney, Francis X. Hermann, Assistant United States Attorney, Minneapolis, Minn. 55401, Richard Fellows, 596 U. S. Courthouse, Minneapolis, Minn. 55401, for appellee. Neal J. Shapiro, 1024 Soo Line Bldg., Minneapolis, Minn. 55402, Daniel M. Pilla, 704 Edgerton Ave., St. Paul, Minn. 55101, pro se.

Before GIBSON, Chief Judge, HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge:

On November 13, 1974 the federal grand jury for the District of Minnesota returned a one-count indictment against the defendant-appellant, Daniel M. Pilla, charging in substance that on or about August 10, 1974 the defendant unlawfully attempted and endeavored to rescue from premises described as Room B101, 230 E. 5th Street, St. Paul, Minnesota, certain property that had been seized by the Internal Revenue Service (IRS) under the provisions of the Internal Revenue Code of the United States, 26 U. S. C. §7212(b). ¹

The case was assigned originally to Chief United States District Judge Edward J. Devitt and was set down for arraignment. On November 22, 1974 the defendant, acting pro se, filed an affidavit of prejudice against Judge Devitt, which affidavit also involved District Judges Larson and Lord. The originally scheduled arraignment was not held.

In January, 1975 District Judge Donald D. Alsop went on the bench in Minnesota , and Judge Devitt assigned the case to him. The defendant promptly moved to disqualify Judge Alsop and requested that he be represented by Jerome Daly, a disbarred Minnesota attorney. ² On June 20, 1975 the case came on for hearing before Judge Alsop on the motion to disqualify and for leave to the defendant to be represented by Daly and also for arraignment. Judge Alsop refused to disqualify himself and also refused to permit the defendant to be represented by Daly or other lay counsel. The defendant thereupon refused to plead, and a plea of not guilty was entered for him. ³

In July, 1975 a number of pretrial motions were filed on behalf of the defendant by Mr. Neal J. Shapiro of the Minneapolis Bar. The record available to us does not clearly reflect the circumstances in which Mr. Shapiro came into the case. We think it unlikely that the defendant employed him, and he may well have been appointed by Judge Alsop. In any event, the defendant did not immediately reject the pretrial services of Mr. Shapiro.

In April, 1976 hearings on preliminary matters, including motions, were conducted before Judge Alsop which hearings were attended by Mr. Francis X. Hermann, Assistant United States Attorney, by Mr. Shapiro and by the defendant personally. In the course of those hearings, which were characterized to some extent by verbal attacks by the defendant directed at the trial judge, it developed that Mr. Shapiro had received from the government all of the pretrial information that he needed. However, at the insistence of the defendant he withdrew all of the defendant's motions since the defendant was contending that the district court was without jurisdiction to try him. At one of the hearings the defendant discharged Mr. Shapiro and renewed his request to be represented by Daly or by certain other lay people who were members of an organization known as the Life Science Church of which defendant and Daly are ministers. That request was denied. The district court appointed Mr. Shapiro to serve as stand-by counsel for the defendant and directed Shapiro to attend the trial and to be available at all times should the defendant decide to accept his services or to call upon him for assistance. The case was set for trial on May 6, 1976 .

On that day the defendant appeared and filed a pro se motion for a dismissal of the indictment on the ground that he had been denied a speedy trial as guaranteed by the sixth amendment to the Constitution. That motion was denied, and the trial began. It was concluded on May 6.

Mr. Shapiro was present throughout the trial and was available to the defendant. Although the defendant stated repeatedly that he did not know how to defend himself, he steadfastly refused to accept the services of Shapiro and made repeated demands to be represented by lay counsel, notably Daly, who was present in the courtroom. Those demands were rejected.

Defendant's participation in the trial was negative, hostile and abusive toward the court to the point of contempt. The defendant refused to cross-examine government witnesses on the ground that he did not know how to do so. He called no witnesses and did not take the stand. He attempted to make a closing argument characterized by attacks on the trial judge and on the course of the proceedings. When Judge Alsop quite properly refused to permit the defendant to proceed along those lines, defendant closed his argument.

The district court instructed the jury as to the law of the case, and after short deliberation the jury found the defendant guilty. On July 20, 1976 the district court sentenced the defendant to imprisonment for one year. At the sentencing hearing the defendant took advantage of his right of allocution to deliver a final diatribe against the trial judge.

From what has been said it is clear that the case presented difficult problems of trial management, and we think that Judge Alsop handled those problems properly and with commendable patience and tact.

This appeal has been submitted to us without argument. We have before us, in addition to briefs filed by the government, the record in the case, including transcripts and exhibits, a brief filed on defendant's behalf by Mr. Shapiro, and a brief filed by the defendant pro se which may well have been prepared by Mr. Daly.

For reversal, the defendant brings forward a number of assignments of error, namely:

1. That the defendant was denied his right to a speedy trial.

2. That the district court erred in refusing to permit the defendant to be represented by lay counsel, including Daly.

3. That the district court erred in admitting certain evidence.

4. That the verdict and the judgment based thereon cannot be sustained because the seizure of defendant's property was illegal.

5. That the evidence was insufficient to sustain the verdict.

[Sufficiency of Evidence]

I. We take up, first, the claim that the evidence was insufficient to sustain the verdict. In evaluating that claim we view the evidence in the light most favorable to the government and are required to give to the government the benefit of all inferences favorable to it that may reasonably be drawn from the evidence, and ultimately the question is whether the verdict was sustained by substantial evidence. United States v. McColgin, 535 F. 2d 471, 473 (8th Cir. 1976); United States v. Wisdom, 534 F. 2d 1306, 1309 (8th Cir. 1976).

Apart from any ultimate inference of guilt or innocence, there is very little, if any, dispute about the facts of the case. The defendant resides in St. Paul and during the time with which we are concerned he was engaged in the business of commercial printing and engraving. He was operating under the trade name Collins Printing Company and was also operating A. J. Madsen Ruling & Binding Company, Inc. Both of those establishments were located on the same premises on East 5th Street which had been rented or leased by the defendant from the owner.

Defendant's place of business was in what appears to be a split level basement. The premises consisted of an office area, presumably containing furniture and fixtures, and a shop area containing machinery and various other items such as ink, dies, and paper stock of various kinds. The office area was some few feet higher than the shop area and was connected to the shop area by a short flight of stairs at the head of which there was a door leading to the office. Apparently, entrance to the basement could be effected by the use of an elevator from street level. There were also two other means of ingress and egress. One of those consisted of doors opening on a freight ramp. The other consisted of a "movable wall" which was hinged and could be pushed inward.

From at least June 30, 19 69 through 1973 and thereafter the defendant was an employer of labor, and he was required to withhold from the wages of employees federal income taxes and social security taxes, to file returns reflecting his withholdings, and to account for and pay over the withholdings to the government periodically. The defendant withheld the taxes and filed the returns during the period above mentioned, but he did not pay the taxes shown by the returns to be due. Consequently, those taxes plus statutory penalty and interest were duly assessed by the IRS. For the period between June 30, 19 69 and December 31, 1973 the total assessment against "Daniel M. Pilla, Collins Printing Co., 230 E. 5th St. , St. Paul , Minn. " amounted to $10,209.35. The assessment for the fourth quarter of 1973 was made on April 1, 1974 and amounted to $74.76. A. J. Madsen Ruling & Binding Co., Inc. filed no withholding tax returns for any period after the first quarter of 1972. Returns were filed by Madsen for the third quarter of 1968, the third quarter of 1969, the second quarter of 1971, and the first quarter of 1972. Total assessments against that company amounted to $811.72.

Following its usual procedures the IRS made demands on the defendant for payment of the taxes in question and undertook to collect them by amicable means. The defendant did not deny that he owed the taxes, but in the course of earlier contacts between him and the IRS he professed to be financially unable to pay them. ⁴ However, as time went by the defendant's attitude toward his tax liabilities and toward the IRS changed and became belligerent. And by July, 1974 defendant had put up some signs in his place of business commanding federal agents and officers to stay out.

On July 9, 1974 defendant's file was turned over to Internal Revenue Officer Ronald Mills, and he was charged with the responsibility of collecting the taxes. Mills called on the defendant at his place of business, and the defendant called his attention to the signs which Mills had seen. The defendant told Mills that he was writing him a letter; Mills suggested that the letter be delivered to him at once as he was going to close down the premises the next day.

Mills took his departure, conferred with his superiors, and on July 10 prepared two notices of levy pursuant to 26 U. S. C. §6331; one notice related to Collins Printing Co. and the other related to A. J. Madsen Ruling & Binding Co., Inc. Each notice set out the assessment history of the business concerned.

On July 11 Mills, accompanied by other agents, came to the defendant's place of business, served the notices of levy, and seized all the property in the establishment. The property was not removed from the building but was left therein pursuant to an arrangement between the IRS and the owner of the building. Seizure notices were placed on the office door and on the freight doors, and seizure tags were placed on the items of machinery in the shop.

Thereafter the defendant commenced a civil action in the district court seeking to obtain a temporary restraining order forbidding further proceedings under the levy.

On July 17 and July 24 the defendant was permitted to enter the premises in the company of Mills and certain items of property on which the government had no claim were released to him.

Defendant's civil suit was dismissed or at least his application for a temporary restraining order was denied. On July 29 Pilla went upon the premises and opened his establishment for business; one of his employees, Richard S. Nasby, was told by Pilla that he could return to work, and he did so.

The owner of the building notified Officer Mills as to what had happened, and Mills and Special Agent Donald Kirst of the Intelligence Division of the IRS went to the premises and found Nasby at work. They told him to leave, which he did, and the agents then inspected the premises and found that the warning signs had been removed from the doors and that the tags had been removed from the machinery to which they had been affixed. Defendant denied that he had removed the signs and tags personally, but it is clear that they were removed with his knowledge and consent. Before Mills and Kirst left the premises, they restored the signs and reaffixed the tags. On this occasion a sign was placed on the movable wall that has been mentioned as well as on the other entrances to the establishment.

Later, on July 29 and on July 30, the defendant was in telephonic contact with both Mills and Kirst. He told them in effect that his property had been seized illegally, and that regardless of what the court or the IRS might say he was going to deal with his property as he pleased. He was told that he must not enter the building without permission, and that if he removed anything from it, he would be subject to prosecution.

On August 5 the building was entered again and certain property was removed therefrom; this entry did not involve a removal of the signs or tags, but the signs were tampered with. Evidence was admitted from which the jury might have inferred and probably did infer that the defendant was the person who made the entry and removed the property.

Following the episode just described, the premises were put under surveillance. Shortly after noon on August 10, the date mentioned in the indictment, Special Agent Jon Hermann and Special Agent Urbanski had the premises under observation. They saw the defendant and his son park an automobile near the establishment and go into another place of business across the street.

After a time Special Agent Hermann and Special Agent Urbanski went to the premises and Hermann entered the basement and took station in the shop area which was dark. The door by which he gained ingress was locked behind him by Urbanski who returned to the original surveillance station. The two agents were in radio contact with each other.

After a few minutes Hermann was advised by Urbanski that the defendant had entered the building, and Hermann heard movement in the office area. At about that time the movable door was pushed slightly inward, and a person who was evidently the defendant's son slipped through the entrance, crossed the shop and entered the office area. The defendant then emerged from the office area and entered the shop, turning on a light as he did so. However, he did not observe Hermann.

The defendant remained in the shop about thirty seconds, gathered up an arm-load of material and returned to the office turning out the light in the shop. At this point the defendant was accosted by Special Agent Hermann who placed him under arrest. The defendant voluntarily stated that he had come to the premises to pick up some of his "stuff," and he indicated some invoices and envelopes and some blank stock consisting of white and blue paper.

The district court instructed the jury fully and correctly on such matters as burden of proof, reasonable doubt, presumption of innocence, circumstantial evidence, and with respect to the weight of the evidence and credibility of witnesses.

The jury was told that the burden was on the government to prove beyond a reasonable doubt that the defendant had forcibly attempted or endeavored to rescue certain property; that the property had been seized by persons authorized to do so by virtue of their office; and that the defendant knew that the property had been seized.

The jury was instructed that to attempt to commit an offense means "willfully to do some act in an effort to bring about or accomplish something which the law forbids." As to the word "forcibly" appearing in the statute, the jury was told that the term was not limited to force exerted against persons but embraced any force used, and that sufficient force would have been shown if the jury found that the defendant "removed or caused to be removed Internal Revenue Service warning stickers." The jury was also told that for the purpose of showing that the property had been seized under the Internal Revenue Code, the government was required to show that it had been seized by persons authorized to do so by virtue of their office, and that one does not "rescue" property merely by taking it, but "by taking it with the realization that he is removing it from government custody."

As to the knowledge and intent of the defendant the jury was instructed: "Finally, an act is done knowingly if done voluntarily and intentionally and not because of mistake, or accident or other innocent reason. To satisfy the mental state requirement of the statute here charged in the indictment, it must be proved that the defendant purposefully, as opposed to mistakenly, attempted to retake property knowing that it had been seized by the Internal Revenue Service."

The defendant did not object to the instructions of the district court and no objection to them as such has been made here. In our view they were supported by the decisions in United States v. Oliver [70-1 USTC ¶9234], 421 F. 2d 1034, 1036-37 (10th Cir. 1970); and United States v. Scolnick, 392 F. 2d 320 (3d Cir.), cert. denied, 392 U. S. 931 sub nom. Brooks v. United States (1968). They were not contrary to what was said in the early case of Cooper v. United States, 299 F. 483 (3d Cir. 1924), which was decided under a statute quite similar to what is now 26 U. S. C. §7212(b). See also United States v. Heck [74-2 USTC ¶9730], 499 F. 2d 778 (9th Cir.), cert. denied, 419 U. S. 1088 (1974). ⁵ We find no plain or manifest error in the instructions.

There is no question in this case as to what the defendant actually did. And bearing in mind the fact that he was not accused of actually rescuing any property but only with attempting to do so, we think that the jury was justified in finding, although it was not required to find, that the conduct of the defendant on August 10 constituted an unlawful attempt to forcibly rescue property that had been seized under the Internal Revenue Code.

We hold, therefore, that the district court did not err in submitting the case to the jury, and that the jury's verdict was sustained by substantial evidence.

[Underlying Seizure]

II. We next consider the contention that the verdict cannot stand because the underlying seizure was illegal.

In addressing ourselves to this question we will assume that in a case of this kind the government must prove that the seizure was legal in the sense that it was in accordance with prescribed procedures and was effected by officers having authority to make the seizure. There is no doubt about those things in this case; nor has there ever been any doubt that the defendant owed the taxes involved in the case.

The defendant's argument boils down to the proposition that 26 U. S. C. §6331 is unconstitutional because it permits a seizure of property without prior judicial proceedings. That argument has been out of date since the Supreme Court decided Phillips v. Commissioner of Internal Revenue [2 USTC ¶743], 283 U. S. 589 (1931), more than forty-five years ago. See Fuentes v. Shevin, 407 U. S. 67, 90-92 (1972); Kalb v. United States [74-2 USTC ¶9760], 505 F. 2d 506, 510 (2d Cir. 1974); and Tavares v. United States [74-1 USTC ¶9240], 491 F. 2d 725 (9th Cir. 1974), cert. denied, 420 U. S. 925 (1975).

[Admission of Certain Evidence]

III. The defendant argues that the district court erred in admitting evidence establishing that the defendant had not paid a substantial amount of taxes and evidence as to the procedures that were followed by the Internal Revenue Service in undertaking to effect collection from the defendant prior to the seizure. It is said that admission of this evidence was plain error which may be reviewed here under Fed. R. Crim. P. 52(b) although no objection was made to the evidence in the district court. We do not agree.

The government was required to prove the seizure that took place on July 11, and we think that it was entitled, and may have been required, to show the basis for the seizure which was the tax liability of the defendant extending over a period of several years. The notices of levy which have been mentioned were clearly admissible, and they showed the amounts of the assessments. It must be remembered that the government seized all of the property contained in the defendant's establishment, and the jury was entitled to know that the seizure was based on a substantial and not a trivial tax liability.

The cases cited by defendant, Mares v. United States, 383 F. 2d 811 (10th Cir. 1967), and South v. United States, 368 F. 2d 202 (5th Cir. 1966), are not in point since the offenses charged in those cases had nothing whatever to do with the internal revenue laws or tax liabilities of the defendants.

With respect to the evidence as to defendant's dealings with the Internal Revenue Service or as to its dealings with the defendant prior to July 11, 1974 , it appears to us that this evidence tended to show the defendant's general attitude toward the federal tax laws and to the IRS and was relevant as bearing on his motive and intent when he entered the premises on August 10, 1974 .

Nor do we think that the district court erred in permitting the government to introduce evidence with respect to the July 29 entry and as to the August 5 entry and evidence tending to indicate that the defendant was the person who entered the premises on the latter date and removed property therefrom.

It is quite true that ordinarily evidence of other crimes is not admissible to prove guilt of a particular crime charged. There are, however, exceptions to that rule, and one of them is that evidence of other crimes is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b).

The evidence as to the defendant's involvement in the August 5 episode fell within the exception just mentioned, it was admitted for an appropriately limited purpose, and the jury was adequately cautioned by the trial judge as to the purpose for which it could consider the evidence.

[Speedy Trial]

IV. We reject defendant's contention that he was denied a speedy trial, and that the denial required a dismissal under the holding in Strunk v. United States, 412 U. S. 434 (1973).

The defendant was indicted, arraigned and put to trial prior to the effective date of the time limitations appearing in the Speedy Trial Act of 1974, 18 U. S. C. §§ 3161 et seq. Consequently, his contention must be measured by the sixth amendment itself as implemented by Fed. R. Crim. P. 48(b); and the matter addressed itself to the discretion of the district court. 3 C. WRIGHT, FEDERAL PRACTICE & PROCEDURE, CRIMINAL, §814 at 319 (1969).

The lapse of time between the return of the indictment in November, 1974 and the beginning of the trial on May 4, 1976 was not due to any fault or bad motive on the part of the government; it was due in part to the actions taken by the defendant shortly after the indictment was returned; no demand for a speedy trial was made until just before the trial began, and we are satisfied that the defendant was not prejudiced by the delay in any way.

In such circumstances we see no abuse of discretion on the part of the district court in denying the motion to dismiss for lack of a speedy trial.

[Right to Counsel]

V. In view of our holding in Pilla v. American Bar Ass'n, 542 F. 2d 56 (8th Cir. 1976), the district court did not err in refusing to permit the defendant to be represented by Mr. Daly or by other lay counsel suggested by him.

Faretta v. California, 422 U. S. 806 (1975), cited by the defendant, simply holds that a defendant in a criminal case is entitled to represent himself and may not have counsel thrust upon him by the trial court. The case does not hold that a defendant who is entitled to the assistance of lay counsel or of an attorney who has been disbarred or suspended from practice.

We do not think that defendant's right of self-representation which was recognized by the district court was violated by the part that Mr. Shapiro played in the case. While he was present and was available to the defendant, he did not participate in the trial in any way. We see nothing objectionable in the appointing of stand-by counsel as was done in this case. Such an action is a wise precaution against the contingency that may arise should the defendant change his mind in the middle of a trial and decide that he wants counsel.

In his excellent brief filed with us Mr. Shapiro contends that in any event the district court failed to warn the defendant adequately of the consequences that would or might result should he go to trial without counsel. We disagree. The defendant was fully advised of his right to counsel, but that he could not be represented by lay counsel. He knew that if he refused to accept the services of Mr. Shapiro or another licensed lawyer, he would have to go to trial without counsel. He was well aware and stated repeatedly that he did not know how to defend himself in a criminal trial. We are satisfied that the defendant intelligently, voluntarily and effectively waived his constitutional right of representation.

From our consideration of the record as a whole, we are convinced that the defendant received a fair trial, and that the verdict of the jury was supported by the evidence. We affirm the judgment of the district court.

¹ The statute 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.

² See In re Daly, 189 N. W. 2d 176 ( Minn. 1971).

³ The proceedings in the district court were affected substantially by the personality and views of Mr. Pilla as an individual. He, and others of like mind, are strongly opposed to the federal income tax. They also take the position that an individual involved in litigation, including criminal litigation, is entitled to be represented by lay counsel of his choice and that it is a violation of the Constitution of the United States for the practice of law in the state and federal courts to be limited to licensed attorneys in good standing. In April, 1974 Pilla and Jerome Daly, who has been mentioned, filed a civil suit in the district court for the purpose of establishing that alleged right. Similar suits were filed by other persons in other federal district courts in Alabama , Indiana , Pennsylvania , Texas and Wisconsin . Agreeable to multi-district litigation procedures, a number of those cases, including the Minnesota case, were assigned to The Honorable Raynaldo G. Garza, Chief United States District Judge for the Southern District of Texas. In a well reasoned opinion Judge Garza found the claims of the plaintiffs to be without merit and dismissed all of the cases. Turner v. American Bar Ass'n, 407 F. Supp. 451 (N. D. Tex., W. D. Pa., N. D. Ind., D. Minn., S. D. Ala., W. D. Wis 1975). Pilla and Daly appealed their case to this court, and we affirmed principally on the basis of Judge Garza's opinion. Pilla v. American Bar Ass'n, 542 F. 2d 56 (8th Cir. 1976). The Pilla-Daly case was pending before Judge Garza when Pilla was indicted in the instant case, and it was pending on appeal in this court when the defendant was tried in the district court. The position that the defendant assumed in the district court about his alleged right to be represented by Daly or other lay counsel was consistent with the position that he was maintaining in the Pilla-Daly litigation.

⁴ As this court has observed in earlier cases involving withholding taxes, it is not unusual for an employer who is undercapitalized or short of cash to find himself unable to meet net payrolls and operating expenses while at the same time making proper payments to the government of funds withheld from employees, and such an employer, if he wants to remain in business, simply does not pay over the withholdings, but uses them for his own purposes. It should be kept in mind that when an employer takes that course of action, it does not affect adversely the tax situation of the employees; if there have been proper withholdings from wages, the employees are credited with the taxes withheld, and unless the government is able by one means or another to collect them from the employer or from some other responsible person, the tax revenues are simply lost. See United States v. Paulton [76-2 USTC ¶9577], 540 F. 2d 886 (8th Cir. 1976) and Hartman v. United States [76-2 USTC ¶9578], 538 F. 2d 1336 (8th Cir. 1976).

⁵ There are very few reported opinions dealing with alleged violations of §7212(b).

 

 

 

 

[84-1 USTC ¶9477] United States of America , Plaintiff-Appellee v. William H. Hardaway, Defendant-Appellant

(CA-5), U. S. Court of Appeals, 5th Circuit, No. 83-1777, Summary Calendar, 731 F2d 1138, 4/24/84

[Code Sec. 7212(b)]

Criminal penalties: Rescue of levied property.--A taxpayer's conviction of forcible rescue of property seized by IRS officers was sustained on appeal based on the evidence that he trespassed onto the dealership lot after normal business hours and removed his vehicles, which had been stored there by the IRS after their seizure. In this case, it was undisputed that the seizure was made by IRS officers, under the authority of the Interal Revenue Code, and was, therefore, lawful. Further, the court was unpersuaded that the government's failure to prove that the taxpayer actually removed the warning stickers from his vehicles equated with a failure to prove the use of force. The use of force in the instant case was the taxpayer's trespass onto the dealership lot after normal business hours and his removal of the vehicles that had been stored there by the IRS for safekeeping.

Edward C. Prado, United States Attorney, Sidney Powell, Mike McDonald, Assistant United States Attorneys, San Antonio, Tex. 78206, for plaintiff-appellee. Walter M. Holcombe, 5075 S. Oak St. , Pecos , Tex. 79772 , for defendant-appellant.

Before GEE, POLITZ and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant William H. Hardaway appeals from his conviction by jury for forcibly rescuing two vehicles seized by the Internal Revenue Service (IRS), in violation of 26 U. S. C. §7212(b). ¹ Hardaway identifies numerous claims of trial court error, but the most substantial is his challenge to the sufficiency of the evidence. Finding no merit in any of Hardaway's arguments, we affirm his conviction.

As of March 9, 1983 , defendant owed in excess of $1,500 in back taxes to the federal government. On that date, IRS officers went to Hardaway's place of business in Alpine, Texas , and made a final demand for payment of the delinquent taxes. The officers informed defendant that if he was unable to pay the tax, they would seize certain vehicles owned by him. Hardaway told the officers that he would go to the bank and borrow the money, using the vehicles as collateral. The officers thereafter followed defendant to his residence so that he could pick up the titles to the vehicles before going to the bank. After failing to locate the titles, defendant told the officers that he would not interfere with their seizure of the vehicles. The officers returned to Hardaway's business property and placed "notice of seizure" tags and stickers upon defendant's 1966 International delivery van, 1972 Chevrolet pick-up truck, and 1973 Chevrolet Vega station wagon; they then towed the vehicles to Big Bend Ford, an automobile dealership in Alpine, for storage. Although Hardaway did not accompany the officers back to his place of business, they had advised him which vehicles would be seized and where they were to be stored.

On the following day, Carl Hassenflu, owner of Big Bend Ford, discovered that all notice of seizure tags had been removed from the vehicles sometime after he closed business on March 9, and before he opened for business on the morning of March 10. On March 12, defendant went to the dealership and questioned Hassenflu about his arrangement with the IRS concerning the vehicles. Hardaway also requested and received permission from Hassenflu to lock the vehicles. On the afternoon of Sunday, April 3, defendant again went to Big Bend Ford and, with the aid of an accomplice, drove the van and the pick-up off the dealership lot. Hardaway returned later that evening and towed the third vehicle away. Several weeks later, IRS officers located the vehicles in a field on the outskirts of Alpine. The first count of the indictment against Hardaway charged him with forcibly rescuing the van and the second count charged him with forcibly rescuing the pick-up. ² A jury convicted him on both counts.

Initially, Hardaway contends that the evidence adduced at trial was insufficient to sustain his conviction because the government failed to prove that the property had been seized lawfully. Lawfulness of a seizure under section 7212(b) "means only that it was performed by a proper official with general authority under the tax code to make the seizure." United States v. Main [79-1 USTC ¶9368], 598 F. 2d 1086, 1090 (7th Cir), cert. denied, 444 U. S. 943, 100 S. Ct. 301, 62 L. Ed. 2d 311 (1979). Thus, disputes concerning other aspects of the legality of a seizure are not relevant to the elements of the crime of forcible rescue. Id. ; see United States v. Scolnick [68-2 USTC ¶9466], 392 F. 2d 320, 326 (3d Cir.), cert. denied, 392 U. S. 931, 88 S. Ct. 2290, 20 L. Ed. 2d 1390 (1968). In this case, it is undisputed that the seizure was made by IRS officers; therefore the property was seized under the authority of the Internal Revenue Code. The elements of forcible rescue are: (1) seizure of property by one authorized to do so under the Internal Revenue Code; (2) knowledge by the defendant that the property has been so seized; and (3) a forcible retaking of the property by the defendant. United States v. Main, 598 F. 2d at 1090; see United States v. Harris [75-2 USTC ¶9644], 521 F. 2d 1089, 1092-93 (7th Cir. 1975).

Next, defendant maintains that the government failed to prove that he "forcibly rescued" the vehicles. Hardaway does not deny that he knew the vehicles had been seized by IRS officers, and he freely admits rescuing them. The term "forcibly rescued" as used in section 7212(b) is not limited to proof of force exerted against persons, but encompasses any force that enables the defendant to rescue the seized property. See United States v. Harris, 521 F. 2d at 1092-93; United States v. Owens, 511 F. 2d 1205, 1206 (4th Cir.), cert. denied, 422 U. S. 1008, 95 S. Ct. 2629, 45 L. Ed. 2d 670 (1975); United States v. Scolnick, 392 F. 2d at 327; see also United States v. Spicer, 547 F. 2d 1228 (5th Cir.), cert. denied, 430 U. S. 987, 97 S. Ct. 1688, 52 L. Ed. 2d 383 (1977). In reliance upon Harris, Hardaway argues that forcible rescue was not proven because all notice of seizure indicia had been removed (by a person or persons unknown) from the vehicles prior to his retaking of them. In that case, the Seventh Circuit held that: "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." ³ 521 F. 2d at 1093.

Our reading of Harris, however, does not require reversal of Hardaway's conviction. There, IRS officers approached defendant Harris at his place of business and presented him with a levy against his car, which was parked on the street outside Harris' office. The officers placed seizure stickers on the vehicle, but did not tow it away. Later that day when an IRS officer returned to Harris' place of business, the car was missing. It was subsequently located at Harris' residence, with the warning stickers removed. The court held that Harris' removal of the stickers was sufficient to support a finding of forcible rescue. 521 F. 2d at 1093. Hardaway insists that the government's failure to prove that he actually removed the warning stickers from his vehicles equates with a failure to prove the use of force. We are unpersuaded. The force used in the instant case was Hardaway's trespass onto the dealership's lot after normal business hours and his removal of the vehicles that had been stored there by the IRS for safekeeping. We believe that this holding comports with the Seventh Circuit's decision in Harris and fosters the intent of the statute to protect seized property. As the Harris court notes, "surely Congress did not envision that a guard would have to be posted to achieve that protection." 521 F. 2d at 1093.

We have examined the other claims of trial error raised by Hardaway and find no merit in them. The judgment of the district court is

AFFIRMED.

¹ 26 U. S. C. §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 For reasons unexplained in the record, Hardaway was not prosecuted for rescuing the station wagon.

³ The jury instruction used by the district court contains nearly identical language. Record Vol. 2 at 251-52.

 

 

 

 

[85-1 USTC ¶9202] United States of America , Plaintiff-Appellee v. Jerome Przybyla, Defendant-Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 83-3113, 737 F2d 828, 7/17/84 , Affirming an unreported District Court decision

[Code Sec. 7212 and 18 U. S. C. §111]

Criminal penalties: Interference with administration of laws: Rescue of seized property: Assaulting an IRS agent.--The court affirmed the taxpayer's conviction for assaulting an IRS agent and impeding the administration of the tax laws. The taxpayer admitted to drawing a weapon to compel the agents, who were attempting to seize his property, to leave his property and there was evidence from which a jury could conclude that he did so willfully. His acquittal on the charge of attempting to rescue seized property, even if inconsistent with his conviction on the other charges, was not a ground for reversal. Also, even if the agents' pretrial and trial statements were not identical, the testimony was not perjured or deliberately misleading, and there was no basis for setting aside the verdicts.

Sue Ellen Tatter, Assistant United States Attorney, Anchorage , Alaska 99513 , for plaintiff-appellee. Jeffrey L. Shrom, Missoula , Montana , for defendant-appellant.

Before BROWNING, Chief Judge, CANBY, Circuit Judge, and WILLIAMS ^*, District Judge.

Opinion

PER CURIAM:

Appellant was convicted of assaulting an IRS agent and impeding the administration of the tax laws. 18 U. S. C. §111; 26 U. S. C. §7212(a). We affirm.

Three Internal Revenue Service (IRS) agents attempted to seize appellant's real property to satisfy a tax deficiency. Appellant was informed that agents would arrive the day of the visit to carry out the seizure. When the agents presented themselves, appellant, without identifying himself, requested they leave the property. The agents began to post seizure notices despite appellant's request. Appellant repeated his request and drew a gun. The trial testimony does not clearly establish that appellant pointed the gun directly at any of the agents, but he did click off the safety and wave the gun in their general direction as he escorted them off his property.

Appellant was indicted for assaulting an IRS agent, impeding the administration of the tax laws, and attempting to rescue property after it was seized, in violation of 18 U. S. C. §111 and 26 U. S. C. §§ 7212(a), 7212(b). The jury convicted appellant of the first two offenses, and acquitted him of attempting to rescue seized property.

(1) Jurisdiction of the District Court.

Appellant argues the district court has jurisdiction only of prosecutions under Title 18, and not of prosecutions under Title 26. The language of 18 U. S. C. §3231 is not limited. It grants district courts jurisdiction "of all offenses against the laws of the United States ." Appellant argues, however, that according to the Reviser's Notes, section 3231 was intended to effect no change in substance in prior sections that had explicitly granted jurisdiction only over Title 18 offenses. This language in the Reviser's Note, however, refers only to the House Bill. A Senate amendment to the 1948 revision broadened this section to include all crimes against the United States . See S. Rep. 1620, 80th Cong., 2d Sess., reprinted in 1948 U. S. Code Cong. Serv. 2427, 2430-31. Under the unambiguous language of section 3231, the district court clearly had jurisdiction over Title 26 offenses. See, e.g., United States v. Drefke [83-1 USTC ¶9354], 707 F. 2d 978, 981 (8th Cir. 1983); United States v. Eilertson [83-1 USTC ¶9363], 707 F. 2d 108, 109 (4th Cir. 1983).

(2) Use of Force.

Appellant argues that his conviction violates due process because he acted in reliance on an IRS pamphlet referring to a taxpayer's "right to refuse to permit Collection personnel to enter upon [the taxpayer's] private property when the purpose of the visit is to conduct a seizure of [the taxpayer's] assets." Nothing in the IRS pamphlet implies that a taxpayer could use a weapon to enforce his request. Even if appellant were justified in requesting the agents to leave his property, see G. M. Leasing Corp. v. United States [77-1 USTC ¶9140], 429 U. S. 338, 354 (1977), use of a weapon was unlawful. See United States v. Johnson, 542 F. 2d 230, 233 (5th Cir. 1976); United States v. Cunningham, 509 F. 2d 961, 963 (D. C. Cir. 1975). Appellant failed to identify himself and made no attempt to discuss his reason for requesting that the agents leave his property. He simply decided that a show of force was necessary to get the agents to leave. Appellant's conviction does not involve any fundamental unfairness or violation of due process.

(3) Sufficiency of the Evidence and Inconsistent Verdicts.

Appellant argues his conviction on Counts I and II "was against the weight of the evidence and contrary to the law."

If appellant is arguing that the evidence was insufficient to convict, the argument has no merit. Viewing the evidence in the light most favorable to the government, see Glasser v. United States, 315 U. S. 60, 80 (1942), a rational jury could conclude that all elements of both Counts I and II had been proven. Appellant admits to drawing a weapon to compel the agents to leave his property, knowing that they were federal agents. There was evidence from which a jury could conclude he did so wilfully.

If appellant is arguing that the verdicts are inconsistent, that argument is still meritless. The jury could have acquitted appellant of the charge under 26 U. S. C. §7212(b) because it concluded that at the time appellant drew his gun he did not know the property had been seized as required by this section. In any event, inconsistent jury verdicts are generally not a ground for reversal, see United States v. Upshaw, 685 F. 2d 1202, 1203 (9th Cir. 1982), even when a "conviction is rationally incompatible with an acquittal." United States v. Brandon , 633 F. 2d 773, 779 (9th Cir. 1980).

(4) Testimony of the IRS Agents.

Appellant's final argument is that the verdicts must be set aside because they are based on perjured or deliberately misleading testimony. Appellant asserts the testimony of the agents at trial that appellant pointed the gun directly at one of them conflicts with earlier statements by the agents. This testimony, appellant argues, could have affected the jury's conclusion on the issue of appellant's wilfulness.

We find no merit in appellant's claim. The agents' pre-trial statements were not inconsistent with their trial testimony. Agent Atchison testified before the grand jury and at trial that she saw the gun pointed directly at Agent Erickson before she turned to the other agents to suggest they leave. Agent DeMay's pretrial statement to an IRS investigator that he "never saw the gun pointed directly at anyone" was not inconsistent with his trial testimony that the gun was pointed "in the direction of" Agent Erickson. Under cross-examination at trial Agent DeMay repeated the substance of his pretrial statement and explained any apparent inconsistency by testifying, "It was pointed toward the direction of Dave Erickson. I did not see it pointed directly at him but I did see it at that angle." Finally, Agent Erickson's pretrial statement that he did not see the gun pointed directly at him was not necessarily inconsistent with his trial testimony that the gun was pointed in his direction from time to time.

Even if the agents' pretrial and trial statements were not identical, there was no justification for setting aside the verdicts. Appellant received copies of the prior statements of the witnesses and used them during cross-examination. See United States v. Cervantes, 542 F. 2d 773, 776-77 (9th Cir. 1976). The jury was fully informed of the alleged discrepancies and concluded the evidence was sufficient to convict.

AFFIRMED.

^* Honorable Spencer M. Williams, District Judge, United States District Court for the Northern District of California, sitting by designation.

 

 

[90-1 USTC ¶50,093] United States of America , Plaintiff-Appellee v. Gene Allen Flores, Defendant-Appellant

(CA-5), U.S. Court of Appeals, 5th Circuit, 88-2783, Summary Calendar, 10/20/89 , Affirming an unreported District Court decision

[Code Sec. 7212 ]

Rescue of seized property.--A taxpayer was liable for the penalty for rescuing property levied on and seized by the IRS when he drove his car out of the IRS parking lot after the explicit warnings of several agents not to do so and in defiance of a seizure warning tag taped to the windshield of the car. All the technical legal requirements for perfecting a seizure were not necessary for purposes of the statute because once property had been seized, the risk of disorder by violent recovery should be avoided, and the one who claims the right to the property must pursue legal remedies.

Henry K. Oncken, United States Attorney, Frances H. Stacy, Paula C. Offenhauser, Kathlyn Giannuala, Assistant United States Attorneys, Houston, Tex. 77208, for plaintiff-appellee. Gene Allen Flores, 5114 Torchlight, Houston , Tex. 77035 , pro se.

Before GEE, DAVIS and JONES, Circuit Judges.

Per Curiam"

EC: Flores, a chronic tax delinquent, appeals his conviction, pursuant to 18 U.S.C. Section 2233, of rescuing property levied on and seized by the Revenue Service; and we affirm. The facts are simple; while Flores was discussing his various tax failings with agents at a Revenue Service facility, they levied on his only known asset, a 1984 Cadillac automobile. Over the explicit warnings of several agents not to do so, and in defiance of a seizure warning tag taped to the windshield of the car, Flores drove it away.

Analysis

The offense of rescuing seized property is defined as follows:

Whoever forcibly rescues, dispossesses, or attempts to rescue or dispossess any property, articles, or objects after the same shall have been taken, detained, or seized by any officer or other person under the authority of any revenue law of the United States, or by any person authorized to make searches and seizures, shall be fined not more than $2,000 or imprisoned not more than two years or both.

18 U.S.C. Section 2233.

This statutory provision has been interpreted only once in our Circuit, in United States v. Spicer, 547 F.2d 1228 (5th Cir.), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977), and only once in recent times in any other. See United States v. Sanders [89-2 USTC ¶9650 ], 862 F.2d 79, 81-82 (4th Cir. 1988). Faced with virtually no precedent interpreting this provision, we in Spicer and the Fourth Circuit in Sanders based our considerations of a Section 2233 violation on the more numerous cases construing the nearly identical provisions of 26 U.S.C. Section 7212(b) . That statute 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 2 years.

Flores 's voluminous, though largely irrelevant, pro se brief on appeal maintains generally that, as there was no lawful seizure of the Cadillac by the government, Flores had a right to drive it away. Specifically, he contends that the seizing agent named in the indictment was without authority to make the seizure and that in any case a seizure could not be constitutionally effected without a court-ordered money judgment and a writ of attachment. Additionally, Flores challenges the validity of the seizure on the basis of a host of technical procedural errors. Under a liberal construction of Flores 's pro se brief, his claims may best be described as challenges to the constitutionality of the statute as well as to the adequacy of the district court's instructions to the jury on the seizure element of the offense.

Flores 's constitutional challenge is meritless. Judicial intervention is not necessary before the Revenue Service can make a seizure of property in a public place. G.M. Leasing Corp. v. United States [77-1 USTC ¶9140 ], 429 U.S. 338, 351-52, 97 S.Ct. 619, 627-29, 50 L.Ed.2d 530 (1977). In today's case, Flores 's car was seized in the Revenue Service parking lot, something of a paradigm of the sort. Moreover, it was long ago established that neither a court-ordered money judgment nor any judicial proceeding is prerequisite to the Service's right to seize property. Phillips v. Commissioner [2 USTC ¶743 ], 283 U.S. 589, 593-97, 51 S.Ct. 608, 610-12, 75 L.Ed. 1289 (1931); See G.M. Leasing, 429 U.S. at 352 n. 18, 97 S.Ct. at 628 n. 18; Fuentes v. Shevin, 407 U.S. 67, 91-92, 92 S.Ct. 1983, 1999-2000, 32 L.Ed.2d 556 (1977); Baddour, Inc. v. United States [86-2 USTC ¶9748 ], 802 F.2d 801, 807 (5th Cir.1986).

Flores 's other challenges to the lawfulness of the seizure are equally meritless. The district court instructed the jury that it was not required to find that the Service met all of the technical legal requirements for perfecting a seizure in order for the seizure to be sufficient for purposes of the statute. This instruction was entirely proper.

In construing the analogous provisions of 26 U.S.C. Section 7212(b) , we have stated:

Lawfulness of a seizure under section 7212(b) "means only that it was performed by a proper official with general authority under the tax code to make the seizure." United States v. Main [79-1 USTC ¶9368 ], 598 F.2d 1086, 1090 (7th Cir.), cert denied, 444 U.S. 943, 100 S.Ct. 301, 62 L.Ed.2d 311 (1979). Thus, disputes concerning other aspects of the legality of a seizure are not relevant to the elements of the crime of forcible rescue. Id. ; see United States v. Scolnick [68-2 USTC ¶9466 ], 392 F.2d 320, 326 (3rd Cir.), cert denied, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968).

United States v. Hardaway [84-1 USTC ¶9477 ], 731 F.2d 1138, 1140 (5th Cir.1984) (emphasis added).

The policy considerations lying behind this construction are obvious. Section 7212(b) " 'represents a legislative determination that in the context of the enforcement of the tax laws, once property had 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.' " Sanders, 862 F.2d at 83 (quoting Main , 598 F.2d at 1091).

Consistent with the above analysis, Flores will not be heard to challenge Agent Scott's authority to make the seizure. The Service has delegated the authority to sign a notice of levy form to revenue agents at employment levels of GS-9 and higher. It is unclear whether that means that a GS-9 was also required to perform the acts of seizure, such as serving the appropriate notices and placing the seizure tag on the vehicle. In any case, the fact that Agent Scott was only a GS-7 amounts, at best, to a mere technical violation. The seizure was authorized under the tax code and was made by agents of the Service. Flores does not contend that he knew Agent Scott was without authority to make the seizure at the time he committed the offense, and he will not now be able to challenge his conviction on the basis of a claimed violation of an internal operating procedure of the Revenue Service.

Even were an agent's lack of authority to make a seizure under IRS rules a ground for reversing a conviction, Flores 's claim would still fail. The district court instructed the jury that it was required to find that the seizure was performed by an agent with a GS rating of 9 or higher. The evidence revealed that, although Agent Scott signed the notice of levy, two other agents, both of whom were at GS level 9, also signed the form as required under Revenue Service procedures. Moreover, one of those agents was present when Scott presented the notice of levy to Flores and placed the seizure warning on the car. Thus, the evidence presented to the jury was sufficient to support a finding that the seizure was performed by an authorized agent.

Flores 's claim may also be construed as alleging a fatal variance between the indictment and the proof at trial. The indictment alleges that Flores "did knowingly and forcibly rescue property, to-wit: a 1984 Cadillac after it had been seized by Gwendolyn Scott, an Internal Revenue Service Revenue Officer then and there having authority under the revenue laws of the United States to make searches and seizures." To the extent that the government may have been required to prove that the seizure was performed by an agent with a grade of GS-9 or greater, the variance between the indictment and the proof at trial would not be reversible error because Flores 's substantial rights were not prejudiced by the variance. See United States v. Massey, 827 F.2d 995, 1003 (5th Cir. 1987). The indictment adequately advised Flores of the charges against him, so that he was able to prepare a defense without surprise at trial and be protected against a subsequent prosecution for the same offense. See United States v. Cook, 586 F.2d 572, 575 (5th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274 (1979).

Finally, Flores 's motion to supplement the record with evidence from a civil suit which he filed against the Service with respect to the seizure of his car must be denied. We will not ordinarily enlarge the record on appeal to include material not before the district court. Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981). This rule extends to items in the record of a related civil action between the same parties. Id.

AFFIRMED.

 

 

 

[89-2 USTC ¶9650] United States of America , Plaintiff-Appellee v. Grady Lee Sanders, Defendant-Appellant

(CA-4), U.S. Court of Appeals, 4th Circuit, 88-5052, 11/28/88 , 862 F2d 79, (862 F.2d 79). Reversing and remanding an unreported District Court decision

[Code Sec. 7212 ]

Interference with IRS administration: Forcible rescue of property.--The evidence was sufficient to sustain the defendant's conviction under 18 USC §2233 for forcible rescue of property seized by the IRS where it had been shown that the defendant forcibly removed the property from custody and that such act had been done willfully. However, it is prejudicial error to exclude testimony by the defendant's daughter that involved the defendant's state of mind when recovering his possessions.

Robert H. Edmunds, Jr., United States Attorney, John Warren Stone, Jr., Assistant United States Attorney, Greensboro , N.C. 27402 , Becky M. Strickland, for plaintiff-appellee. Michael W. Patrick, Haywood, Denny, Miller, Johnson, Sessoms & Patrick, 201 W. Main St. , Durham , N.C. 27702 , for defendant-appellant.

Before PHILLIPS and WILKINSON, Circuit Judges, and BOYLE, District Judge for the Eastern District of North Carolina, sitting by designation.

PHILLIPS, Circuit Judge:

Grady Lee Sanders challenges his jury conviction for forcible "rescue" of property seized by the IRS. Because we find that the trial court erred to Sanders' prejudice in refusing to admit into evidence a deposition from a key witness, we reverse.

I

Sanders was convicted in December 1987 for forcibly rescuing the previous July two of his possessions, a Cadillac car and the battery of a Ford truck (no attempt was made to rescue the truck itself), that had been seized by the IRS on April 9, 1987 , to collect a civil penalty assessed against Sanders for the nonpayment of withholding taxes by his company, SAC, Inc. It is uncontested that Sanders himself rescued the items, which had been kept on the premises of a National Guard maintenance shop. A National Guard employee saw Sanders remove the truck battery during regular working hours on July 27, 1987 , asked Sanders what he was doing, but did not tell Sanders not to remove the battery, nor did he attempt to prevent Sanders' action. Sanders testified that he removed only the battery because it needed to be recharged before the truck would operate. There is no evidence that Sanders used any force against the Guard employee to complete his rescue of the battery. The employee called an IRS agent, who on arrival at the yard the next day saw that the Cadillac had been taken also. It is unclear how long the Cadillac had been removed; the most recent confirmed date of its appearance was June 30. Sanders testified that he had rescued the car several days earlier during the facilities' regular operating hours. Both vehicles had been kept in a fenced compound with a gate open during the business day. Sanders admits taking the battery and vehicle and also admits removing the warning stickers that had been placed on the vehicle when it was seized. The Cadillac was later recovered by the IRS on August 9, while it was sitting in open view in front of Sanders' home.

Sanders claims his repossession was lawful. Just after the original IRS seizure of his vehicles, Sanders spoke with an IRS agent about filing for bankruptcy in order to have the vehicles returned; the agent told him that the filing would not nullify a pre-bankruptcy seizure and that he would need a separate order from the bankruptcy court to have the vehicles returned. In late April Sanders employed attorney Henry Gamble to go ahead with the bankruptcy proceedings and to make the proper motion to have the vehicles released. Sanders claims that he went to pick up his vehicles after hearing from his attorney that the necessary motion to release the vehicles had been filed with the bankruptcy court. (It later turned out that the motion had not been filed.) Sanders also claims that he saw the warning stickers on the vehicles when he went to pick up the battery and Cadillac and was told by his attorney, whom Sanders telephoned, that under the circumstances it was legal to repossess the vehicles even with the stickers on them. Sanders' attorney denied that this telephone conversation occurred.

Sanders was indicted for rescue of both the truck battery and the Cadillac, was convicted by a jury on both counts, and sentenced to a term of active imprisonment of eighteen months. This appeal followed.

II

This case presents at the outset an issue of first impression for this court: the proper interpretation of the term "forcible rescue" as found in 18 U.S.C. §2233. This section provides:

Whoever forcibly rescues, dispossesses, or attempts to rescue or dispossess any property, articles, or objects after the same have been taken, detained, or seized by any officer or other person under the authority of any revenue law of the United States, or by any person authorized to make searches and seizures, shall be fined not more than $2,000 or imprisoned not more than two years, or both.

It appears that to date only two courts have interpreted this provision. See United States v. Spicer, 547 F.2d 1228 (5th Cir. 1977); United States v. Ford, 33 F.861 (W.D.N.C.1887). The Spicer court analogized construction of a §2233 violation to violation of the nearly identical provisions of 26 U.S.C. §7212(b) , see 547 F.2d at 1231-32, and we take that course here. Section 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, except 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.

Again only a small number of federal circuit courts have interpreted this statute. See United States v. Hardaway [84-1 USTC ¶9477 ], 731 F.2d 1138 (5th Cir. 1984); United States v. Main [79-1 USTC ¶9368 ], 598 F.2d 1086 (7th Cir. 1979); Spicer, 547 F.2d 1228; United States v. Harris [75-2 USTC ¶9644 ], 521 F.2d 1089 (7th Cir. 1975); United States v. Owens, 511 F.2d 1205 (4th Cir. 1975) (per curiam); United States v. Scolnick [68-2 USTC ¶9466 ], 392 F.2d 320 (3d Cir. 1968); see also Annotation, What Constitutes "Forcible Rescue" of Seized Property Under 26 USCS §7212(b) , 29 ALJ Fed. 561 (1976 & 1988 Supp.).

The district court held that the three elements of a §2233 violation are: (1) the property, when first seized by the government, was taken by a government official authorized to do so; (2) the defendant was aware of the seizure and that removal of the property from government custody was unlawful; and (3) "the defendant forcibly removed the property from custody, that is, he dispossessed the appropriate authorities of dominion and control over the property, and such act was done willfully." Joint Appendix at 179.

The principal issue before us is the third element, which rests on the legal interpretation of the statutory term "forcibly rescues." ¹ In considering this element, we must decide what §2233 means by requiring that a rescue be effected with force. Courts have uniformly held, and no party questions here, that forcible rescue is not restricted to force exerted against persons. See Hardaway, 731 F.2d at 1140 (citing cases). In a number of the cases decided, determination that force has been used is rather obvious: trespass onto a car dealer's lot after regular business hours and removal of seized vehicles, id. at 1141; opening door of garage and removal of seized car after being told by mechanic that it was illegal to do so, tearing of seizure stickers from rental property and telling tenants that rental payments should be paid to defendant, not to IRS, Main, 598 F.2d at 1089-90; verbal threats to IRS agents after seizure, Owens (as noted in Spicer, 547 F.2d at 1231); breaking a bank window, removal of seizure seal on box, and removal of safe deposit box and contents from bank, Scolnick, 392 F.2d at 327.

Other cases have presented closer questions. In Spicer, a seized tug was repossessed when the owner removed it from its moorings and resumed his use of the tug for business (which took the tug permanently away from this harbor). 547 F.2d at 1232. In Harris, the IRS seized a car by placing warning stickers on it, and left the car on the street at Harris' place of business for later towing. After the agents' departure, Harris moved the car to his home address, where an IRS agent found it that afternoon at the back of Harris' driveway with stickers removed. 521 F.2d at 1091.

The Harris court held that any use of force constitutes a forcible rescue, and that the removal or destruction of warning stickers placed on the seized automobile comprised a use of force: "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." 521 F.2d at 1093. If we accepted this test, Sanders' conduct would clearly be covered. We find the logic of this test too narrow, however. more convincing is the Spicer rationale that forcible rescue should be defined as appropriation of an item "in a manner that defie[s] and frustrate[s] the warrant of seizure." 547 F.2d at 1232. In this sense, rescue is forcible when it is against the constructive will of the government, that is, when the rescue disrupts the government's possession in a situation where the government has lawfully asserted dominion and lawfully maintained custody.

This is only one prong of the definition of forcible rescue, however. We must also consider the scienter element. As the Main court holds under §7212(b) , the statute "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 would pursue legal remedies." 598 F.2d at 1091. If one has good reason to believe that he had pursued his legal remedies to their successful conclusion, then his retrieval of seized property would not be self-help or "violent recovery." On this view of the matter, it would therefore be highly relevant to the issue of guilt that Sanders was told by his attorney that the necessary motion for recovery of the vehicles had been filed, and that Sanders then went to the garage and removed his cars without challenge. Whether Sanders removed the warning stickers from his car was relevant only as an indication of his state of mind.

There was evidence at trial that Sanders thought he had a right to recover his possessions. When the IRS re-seized Sanders' Cadillac, they found it parked in front of his home, not, as in Hardaway, 731 F.2d at 1140, in a field outside town. The IRS agent who talked to Sanders at this time testified that Sanders said that he was quite willing to answer questions because he had done nothing wrong; Sanders related that his attorney had told him he could take the cars and could ignore the warning stickers. As both Sanders and the National Guard mechanic testified, the mechanic said nothing to Sanders about not taking the battery. An IRS agent testified that Sanders' attorney told the agent that he had filed the motion for recovery of the cars.

Sanders claims that the court erroneously instructed the jury as to the elements of forcible rescue. This claim fails. The trial court instructed the jury that forcible rescue should be defined by whether "the defendant forcibly removed the property from custody, that is, he dispossessed the appropriate authorities of dominion and control over the property, and such act was done willfully." This definition is accurate as our discussion of the elements of force and criminal intent indicate.

Sanders also claims that the evidence failed to establish the necessary elements of the offense charged. This claim fails as well. The test on appellate review is whether there was evidence "sufficient for the jury to find beyond a reasonable doubt," Owens, 511 F.2d at 1206, that Sanders committed the crime alleged. There was sufficient evidence for the jury to convict; apparently, the jury did not find Sanders' testimony or demeanor credible, or believed the testimony of Gamble, Sanders' attorney, who testified that he did not tell Sanders either that the motion for release had been filed in bankruptcy court or that it was legal for him to recover his possessions while warning stickers remained attached.

Sanders' final contention, however, has merit and requires reversal. He claims, and we agree, that proffered testimony of his daughter which supported his defense of nonwillfulness was erroneously excluded. the daughter was unable to testify at trial because she was pregnant and overdue for the birth of her child. Her pre-trial deposition recounted a phone call from attorney Gamble to Sanders, which she took in her father's absence. The message, according to her deposition, was that Sanders could go pick up his vehicle. Sanders testified that she relayed such a message to him. Sanders attempted to introduce this deposition to establish his state of mind and to impeach the testimony of Gamble.

The court refused to admit the deposition into evidence, originally holding that it was hearsay, but late excluding it as only cumulative, not probative. This was prejudicial error. Where the jury's determination of Sanders' guilt rested significantly on its evaluation of his state of mind when he recovered his possessions, independent testimony from Sanders' daughter that she in fact had told him that attorney Gamble said that it was legally appropriate to go pick up these possessions may have been decisive. This deposition might also have been crucial in coloring how the jury evaluated other evidence concerning Gamble's truthfulness. An IRS agent related that Gamble told him that the motion for recovery of the cars had been filed. Another witness testified that on at least five to ten occasions in the previous year, the attorney told persons in the bankruptcy court that he had filed bankruptcy motions for others while he in fact had not. Under the circumstances, the exclusion of the deposition cannot be treated as harmless error. We cannot say that it is " 'highly probable that the error did not affect the judgment,' " United State v. Nyman, 649 F.2d 208, 212 (4th Cir. 1980) (quoting R. Traynor, The Riddle of Harmless Error, 34-35 (1976)).

REVERSED AND REMANDED FOR NEW TRIAL.

¹ Sanders also contests one aspect of the first element--whether the Cadillac taken was in fact his and so lawfully seized--but this is a peripheral matter that we can dispose of rather summarily. Sanders argues that the Cadillac was not his but rather his son's, and so should not have been seized by the IRS for Sanders' non-payment of taxes. On cross-examination during trial, however, Sanders acknowledged that when he filed his bankruptcy petition on April 27, 1987 , which was subsequent to the Cadillac's seizure on April 9, he had listed the Cadillac as his own.

 

[2002-2 USTC ¶50,608] United States of America , Plaintiff-Appellee v. Ernest Patrick De Tomaso, Defendant-Appellant

(CA-9), U.S. Court of Appeals, 9th Circuit, 98-50624, 8/19/2002 , 2002 U.S. App. LEXIS 17202. Affirming an unreported District Court decision

[Code Sec. 7212 ]

Crimes: Interference with administration of Internal Revenue laws: Jury instructions.--The district court properly instructed the jury at an individual's trial for forcible rescue of seized property to determine whether an authorized IRS official had seized his property. The instruction was fairly given, accurately covered the issue, and was not misleading; thus, the court did not abuse its discretion in refusing the taxpayer's unlawful seizure instruction.
[Code Sec. 7212 ]

Crimes: Interference with administration of Internal Revenue laws: Rescue of seized property.--The government presented sufficient evidence at an individual's jury trial for forcible rescue of seized property to support his conviction and sentence. The taxpayer forcibly removed the seized property from the government's control although he was aware that doing so was unlawful. He did so by reentering his store, changing the locks and safe combinations, removing seizure tags, and opening for business.

[Code Sec. 7212 ]

Crimes: Interference with administration of Internal Revenue laws: Sentence.--The district court's discretionary denial of an individual's departure request regarding his sentencing for forcible rescue of seized property was not subject to the Ninth Circuit's review.

Miriam Krinksy, Los Angeles , Calif. , for plaintiff-appellee. Emily S. Uhrig, Los Angeles , Calif. , for defendant-appellant.

Before: SCHROEDER, Chief Judge, and TASHIMA and RAWLINSON, Circuit Judges. ^*

è Caution: This court has designated this opinion as NOT FOR PUBLICATION. Consult the Rules of the Court before citing this case.ç

MEMORANDUM ^**

Ernest Patrick De Tomaso appeals his conviction and sentence following a jury trial for one count of forcible rescue of seized property in violation of 26 U.S.C. §7212(b). Pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396 (1967), De Tomaso's attorney has filed a motion to withdraw as counsel of record and De Tomaso has filed a supplemental brief.

Counsel has identified several potential issues and correctly determined that they are without merit. The trial court properly denied De Tomaso's motion to dismiss because 26 U.S.C. §7212(b), on its face, allows for the prosecution of individuals who forcibly rescue property seized by the IRS under title 26, and De Tomaso conceded that Revenue Officer Bettencourt was properly authorized under the Internal Revenue Code to conduct the seizure.

The district court also did not err in allowing evidence of other related bad acts with a proper limiting instruction. See United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993); United States v. Winters, 729 F.2d 602, 604 (9th Cir. 1984) (upholding introduction of Rule 404(b) evidence with a proper limiting instruction).

The district court properly denied De Tomaso's Fed. R. Crim. P. 29 motion for judgment of acquittal because the government put on sufficient evidence that Officer Bettencourt was authorized to conduct the seizure of appellant's property; that appellant was aware that removal of the property from government control was unlawful; and that appellant forcibly removed the seized property from the control of the government. Jackson v. Virginia, 443 U.S. 307, 319, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979); United States v. Gasho, 39 F.3d 1420, 1429 (9th Cir. 1994) (interpreting forcible rescue under 18 U.S.C. §2233).

Counsel also correctly concluded that the jury instructions do not provide any basis for appeal. First, the district court properly instructed the jury that they had to determine whether the defendant's property was seized by a proper official authorized under the Internal Revenue Code. See id. As the instruction given fairly and adequately covered the issue presented, and was not misleading, the district court's refusal of defendant's "lawful seizure" instruction was not an abuse of discretion. See Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). Second, the district court properly declined to give an instruction defining "rescue" as the actual taking away of an item. See Gasho, 39 F.3d at 1429 (defining rescue as removal of the property from the dominion and control of the government). Finally, the district court did not err by giving this circuit's model jury instruction defining reasonable doubt. United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992).

With regard to sentencing, counsel also correctly points out that the court's discretionary denial of De Tomaso's departure request is not subject to our review. See United States v. Lipman, 133 F.3d 726, 731-32 (9th Cir. 1998).

In his pro se supplemental brief, De Tomaso contends that his actions following the seizure of his business by Internal Revenue Agents were not sufficient to constitute a rescue under §7212(b) because he did not physically remove any of the seized items. This contention is without merit. Because rescue requires only the removal of seized items from the dominion and control of the government, rather than removal from a physical space, De Tomaso's actions of re-entering his store, changing the locks and safe combinations, removing the seizure tags and opening for business were sufficient to constitute rescue. See Gasho, 39 F.3d 1429.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 102 L.Ed.2d 300, 109 S.Ct. 346 (1988), discloses no issues for review. Counsel's motion to withdraw is GRANTED, and the district court's judgment is AFFIRMED.

^* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

^** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.