United States v. Scott

Scott was convicted after a jury trial in district court of failure to file income tax returns for the years 1969, 1970, 1971 and 1972 in violation of 26 U.S.C. § 7203. He was sentenced to 1 year on each count, the sentences to run concurrently. This appeal is from the conviction and from the trial court’s denial of motions for arrest of judgment, and for a new trial. Scott, who is not an attorney, represented himself at trial but had counsel for his post-trial motions and on appeal.

Appellant styles himself a “national tax resistance leader.” He admitted at trial that he had not filed the returns but argued that, since his failure was based on his constitutional beliefs and his reading of various Supreme Court cases, his failure was not willful within the meaning of the statute.

Two main issues are presented for decision by this court. The first involves the presence of a government agent in appellant’s defense group at trial. The second.is whether appellant was imper-missibly singled out for prosecution by the government.

During much of the trial an undercover agent of the Internal Revenue Service was present among a group of fellow tax resisters who were aiding in the preparation of Scott’s defense. The agent, James Swanson, alias Jeff Swan, was an officer in the Illinois Tax Rebellion Committee. According to his affidavit he was invited to travel to the trial by another tax protester from Indiana. He was given permission by his Internal Revenue Service superior and arrived in Fresno, California shortly after the trial began. His stated mission in attending the trial was to meet tax protesters and sympathizers and to advise his superiors of any planned violent or illegal activity. Swanson was present in the courtroom at the trial and at meetings held in a motel each day after the court sessions. He had received instructions from the Internal Revenue Service counsel in Chicago not to interfere in any way with the defense in Scott’s trial. Swanson specifically denied in his affidavit that he had at any time offered any advice to Scott or his advisors as to how he or they should proceed in the defense of the case. He also specifically denied that he had engaged in electronic eavesdropping of any kind or had caused anyone else to do so, or that he had attempted to influence jurors or made any bomb threats. There was no evidence presented to the district court, nor here, that any information was passed by the agent to the prosecution except for one incident. Swanson reported to the prosecution that he had learned that members of Scott’s party had illegally inserted material into a government exhibit. This was later the basis for separate criminal charges.

After trial Scott moved for arrest of judgment and a new trial based in part on the alleged activities of the agent. Scott claimed that the agent interfered with his defense by burglarizing his trial headquarters, attempting to influence the jury by riding on the elevator at the court house with them and making prejudicial remarks about Scott, engaging in electronic surveillance, making a bomb threat on the court house to adversely influence the jury, and lying to and misleading Scott to his detriment. This motion was supported by affidavits of those who had accompanied Scott at the trial. These affidavits, however, did not substantiate the above allegations in any direct manner, but rather were posed in terms of speculation that the agent might have had the opportunity to purloin Xerox copies of cases and instructions used by the defense. Only one contained a positive statement and that was that the agent had counseled Scott to testify on his own behalf. The agent’s affidavit countered each allegation of the motion with a denial. The district court, ruling on the basis of the affidavits and his observations as the trial judge, denied the motions.

Appellant argues strenuously that the presence of Swanson among the group planning his defense and assisting him poisoned the entire proceeding and requires an outright reversal and dismissal or at the very least, a remand for a new trial. Specifically he relies upon the fourth, fifth and sixth amendments as the constitutional predicates for his arguments.

Looking first at the fourth amendment, we note that Swanson was not a witness at the trial and that no contention is made that he obtained any documents or evidentiary material which was introduced at the trial, whether helpful or harmful. There was therefore no illegal search for verbal evidence within the exclusionary rule, no unlawful seizure of documents presented in court and no violation of the fourth amendment. Hoffa v. United States, 385 U.S. 293, 300-03, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Neither does the fact of Swanson’s presence during conversations regarding trial strategy violate appellant’s fourth amendment rights. Swanson was present because he was a member and official of the Tax Rebellion group and accepted as such albeit he was also an undercover agent of the Internal Revenue Service. In this regard, the Supreme Court quoted with approval in Hof fa :

“ ‘The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.’ ” 385 U.S. at 303, 87 S.Ct. at 414. Quoting, Lopez v. United States, 373 U.S. 427, 465, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (dissenting opinion).

We find no merit to the fourth amendment claims.

Other than to list it, the appellant again does not particularize the basis upon which he claims the shelter of the fifth amendment. He does assert that Swanson urged him to take the witness stand and that the Internal Revenue Service so grossly intruded in the defense strategy conferences that the fifth and sixth amendments were violated. The principal cases relied upon are Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (1953), and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951). In Caldwell the prosecution had hired Bradley as an undercover agent. As such he became intimately acquainted with the accused and his attorney. He was solicited by the accused and his counsel to work for them in the preparation of the case for trial. He attended conferences between counsel for the accused and witnesses and lawyers. The court held that this invidious intrusion denied the defendant of his right to effective assistance of counsel under the fifth and sixth amendments and actual prejudice need not be shown. Coplon was a ease of intercepted telephone conversations between Judith Co-plon and her attorney both before and during her trial on espionage charges. The court held that a hearing should be conducted and that if the interceptions occurred a new trial should be granted.

In both of these cases, as well as in O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), and Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), there was an interference with the confidential relationship between the accused and his employed counsel regarding the impending trial and the trial itself. Here, on the contrary, appellant had waived or renounced his right to counsel and prepared for trial and tried the case without an attorney. He apparently had enlisted the assistance of a group of fellow tax resisters to help him in his own defense. Others from the tax rebellion ranks who appeared, joined in the meetings held during the trial.

Appellant asserts that where the sixth amendment to the Constitution states that the accused shall have the right “. . .to have the Assistance of Counsel for his defense” it means not only counsel in the sense of an attorney admitted to practice law but, also, that if he eschews an attorney, he may have his friends advise him. Therefore, he argues that interference with the relationship between the accused and his advis-ors carries the same sixth amendment proscription as interference between attorney and client. No cases are cited for that proposition and we have found none. On the contrary, the relationship between lawyer and client does carry a different set of rights and responsibilities than that between an individual and his friends. Other relationships recognized by the law, either statutory law or common law, likewise carry particular rights and responsibilities, e. g., husband and wife; doctor and patient; priest and confessor. Appellant’s reliance upon Hoffa to bring his friends within the definition of “counsel” for sixth amendment purposes is not well placed. In discussing Coplon and Caldwell (where the intrusion was between attorney and client) the Hoffa Court hypothesized that there could be an intrusion so grossly prejudicial that even a new trial would be impermissible. The Court continued, however, by saying that the Hoffa case did not remotely approach such a situation.

“This is so because of the clinching basic fact in the present case that none of the petitioner’s incriminating statements which Partin heard were made in the presence of counsel, in the hearing of counsel, or in connection in any way with the legitimate defense of the Test Fleet prosecution. The petitioner’s statements related to the commission of a quite separate offense — attempted bribery of jurors— and the statements were made to Par-tin out of the presence of any lawyers.” 385 U.S. at 308, 87 S.Ct. at 416.

There is certainly nothing in the Court’s discussion that would indicate it intended to enlarge the sixth amendment protection to a pro se defendant and his friends. Even where it properly applies as between lawyer and counsel, the majority of the courts have refused to apply a per se rule requiring reversal when the government has had access to communications between a defendant and his counsel. E. g., United States v. Rosner, 485 F.2d 1213, 1227-28 (2d Cir. 1973), cert. denied (without prejudice), 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974); United States v. Brown, 484 F.2d 418, 424-25 (5th Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); Taglianetti v. United States, 398 F.2d 558, 569-71 (1st Cir. 1968), aff’d, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969). See also United States v. Rispo, 460 F.2d 965, 975-77 (3d Cir. 1972); United States v. Bullock, 441 F.2d 59 (5th Cir. 1971); United States v. Alderisio, 424 F.2d 20 (10th Cir. 1970). But see South Dakota v. Long, 465 F.2d 65, 72 (8th Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 951, 35 L.Ed.2d 263 (1973). The courts in Rosner, Brown and Taglianetti all considered the Supreme Court cases of O’Brien, Hoffa and Black, and concluded that they did not require a per se rule. We agree.

On the unique facts of this case we find that appellant suffered no prejudice from the mere fact of the government’s limited intrusion into the defense group of appellant and his friends. Appellant’s defense in this case was an open book. He admitted not filing the returns and based his defense on his own novel theories of law. For example, he claimed that the sixteenth amendment authorizing the income tax was not properly ratified, that federal reserve notes are not legal tender and therefore he did not have to report them as income, and that he did not have to file tax returns if he felt that they would incriminate him. Scott advanced these theories to support his defense of lack of specific intent to commit the offense of willfully failing to file income tax returns. He claimed that, since he honestly thought that he was not legally bound to file returns, he could not be convicted. It is difficult to envision, on the facts of this case, how Scott could have been prejudiced by the presence of the government agent among the friends of the defense. Further, there is no evidence in the record to refute the affidavit of the agent that he passed no information about the defense to the prosecution.

This is not to say that government intrusion into the private councils of a pro se defendant, struggling to oppose that government during a trial, for the purpose or with the result of gaining trial advantages, is something to be lightly regarded. It is inconceivable that responsible government attorneys or agencies would stoop to such clandestine and underhanded tactics in the trial of a lawsuit. Such intrusions offend one’s sense of fair play and subvert the proper administration of justice. Even without the restraint imposed by the sixth amendment, they may well constitute a denial of due process. Such was not the case here.

Reading the affidavits filed by the parties upon this critical issue, we are convinced that the trial court was simply unimpressed and unpersuaded that any such reprehensible activity was engaged in by Smith, the special agent of the Intelligence Division of the Internal Revenue Service at Fresno, or by Swanson under his direction. The affidavits of appellant are ambiguous and conjectural in their charges and directly controverted by both Smith and Swanson. In addition, they relate to matters that under careful consideration have little if anything to do with the basic issues of the lawsuit. Failure to file tax returns for the years in question was admitted by the defendant. Independent proof was introduced that he had earned substantial sums of money in the corresponding years. The evidence that these actions were willful was overwhelming. Nothing can be gained by reversing and remanding. We are of the opinion that neither the basic dictates of fair play or due process require a reversal or a remand for a full evidentiary hearing. A reading of the reporter’s transcript and the rest of the record convinces us that the trial court, with a very great amount of patience and restraint, accorded appellant a fair and full trial.

Appellant’s claim that he is entitled to a new trial because the government agent advised him to take the stand is also without merit. One affidavit, that of Claire Kelley, supports this allegation. The affidavit of the agent denies giving such advice. Since we conclude that Scott was not prejudiced by taking the stand, the conflict in the affidavits is irrelevant. Scott was not prejudiced because his testimony at trial did no more than reiterate his position about which there is no dispute. He conducted his own defense and indicated at the outset of the trial, in his opening statement to the jury, that he did not pay his taxes. He asserted, however, that since he considered the income tax to be illegal, he could not be convicted. His entire defense was predicated on convincing the jury that the income tax was illegal and this was reflected in his examination of the three witnesses he called for the defense. Likewise, Scott had previously written letters to the Fresno Bee admitting that he refused to pay taxes and urging others to also refuse. These letters were part of the record below. There was never any question but that he committed the acts constituting the offense charged. He literally proclaimed it from the housetops. He proudly advocated his practice to others. Nor can it be said that Scott may have been prejudiced by exposing his demeanor to the jury when he took the stand. Scott acted as his own attorney, presenting his witnesses to the jury and cross-examining the government witnesses. He was allowed wide latitude by the court and told his own story in speeches made while cross-examining witnesses. At all times during the trial he was the principal character before the jury on the defense.

We recognize that the specter of active government interference in the defense of a criminal case is a chilling one. However, on the unique facts of this case we conclude that the ends of justice would not be served by requiring a new trial because there is no possibility that the defendant was prejudiced by the alleged interference.

The second major assignment of error is that Scott was discriminatorily singled out for prosecution because of his vocal opposition to the income taxt In order to prevail in this allegation appellant must bear the burden of proving at least a prima facie case. This requires that appellant first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted. Secondly, appellant must show that his selection was based on an impermissible ground such as race, religion or his exercise of his first amendment right to free speech. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); see United States v. Steele, 461 F.2d 1148 (9th Cir. 1972); United States v. Sacco, 428 F.2d 264, 271 (9th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140 (1970).

Appellant fails in his claim of discriminatory prosecution because he had not demonstrated that others similarly situated who have failed to file income tax returns have not been prosecuted.

“THE COURT: Let me ask you this: Do you know other people who didn’t file tax returns that the Government has not prosecuted? If so, I think you should make it known to Mr. Couris so he could start indicting them.

“MR. MATONIS: Well, your Honor, it is not my job as a lawyer to help the Government in cases of people who have or have not filed their income tax returns.” R.T. at 26 (Supp.).

Thus, this case is clearly distinguishable from United States v. Steele, supra, where the court was convinced that the government had actual knowledge of other violators but compiled background reports and prosecuted only those who had taken a public stand against compliance with the census law. Here, appellant has only demonstrated that the government had an announced policy of vigorous enforcement of the tax law against those who took a public stand against filing returns. There was no evidence presented that the government did not prosecute others who failed to file returns but who did not take a vocal stand on the issue. It is not surprising that the government might prosecute those cases in which the violations of the tax laws appeared most flagrant.

Scott also assigned as error the refusal of the trial court to hold an evidentiary hearing on his motions for a new trial and arrest of judgment. The decision whether to hold an evidentiary hearing on a motion for a new trial is within the sound discretion of the trial judge. United States v. Thompson, 493 F.2d 305, 310 (9th Cir. 1974), cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974). We conclude that there was nothing to be gained by such a hearing and that the trial judge did not abuse his discretion by denying Scott’s request.

Appellant raises many other alleged errors, but after a careful review of the record we find that they lack merit.

The judgment is affirmed.

. He was National Chairman of an organization called the “Tax Rebellion Committee,” which advocated resistance to the Internal Revenue laws by refusing to file any income tax returns or by filing blank ones.

. The court observed that the evidence introduced against her to sustain her conviction was from eye witnesses, documents properly obtained from her and her own statements. Therefore, concluded the court, the trial court did not err in denying the motion for new trial insofar as it was based on the theory that the government’s proof was obtained by wiretapping or arose from leads obtained in that manner. 191 F.2d at 757.

. Affidavits indicate that Vaughn Ellsworth, Miss Claire Kelley and William Drexler (none of them an attorney) sat at counsel table with Scott with the court’s permission, but were not permitted to make objections or comments during the trial. Swanson, the treasurer of the Illinois Tax Rebellion Committee, attended with one Bill Dobslaw, a tax protester from South Bend, Indiana. Swanson arrived during the trial, met other protesters and was invited to be present at various informal gatherings, discussions and meetings which took place usually at the close of trial each day.

. For the year 1969 Scott filed an individual return containing only his name, address, the date and a handwritten notation, “Under protest I plead the 5th Amendment to the U.S. Constitution.” For the years 1970, 1971, and 1972, Scott by his own testimony, admitted that he filed no returns whatsoever. During those years he earned in excess of $23,000 per year. On November 23, 1971, he wrote a letter to the editor of the Fresno Bee, saying among other things:

“I am a successful insurance agent earning an income far above the average worker. I do not pay income taxes — state or federal— • >»

“I submit all income tax forms in blank. That is, I send no information and absolutely no money . . . .”

. As an example, the appellant’s brief states: “The affidavits (sic) also gave sworn statements that they had good reason to believe that Swan burglarized the defense conference room in the Golden Key Motel and removed vital defense papers from a briefcase within the courtroom.” The affidavit referred to, however, states only that Scott gave a copy of the government’s requested instructions to the affiant (Ellsworth) who studied them and left them in his attache case in their conference room. When he opened his case in court the instructions with his comments, were missing. Affiant states that he has since been told that Swanson was seen leaving that particular room “when no one else was there, and where Affiant’s attache case was usually left open because of a troublesome combination lock.” This loss, it is asserted, seriously handicapped Scott because he had to borrow the prosecutor’s copy of the government’s requested instructions.

. “I have already said that I will prove I am not guilty. The Government has to prove willfulness. And I will prove to you that I did not act willfully. That is the way they interpret it. I will tell you why I did what I did and why it is not evil.” R.T. at 21.

“I will attempt to prove here that the Sixteenth Amendment, which is the income tax, violates our — yours and mine — Bill of Rights, Constitutional Rights . . . .” * * * * * *

“One reason I’m here today is that I am chairman of the Tax Rebellion Committee. This was brought out by the Government lawyer. He knows that well. And I think one reason I’m here is because we have been, at least to some extent, effective.

“If you people read the magazines in the country, if you read News and World Report, if you read anything else that is nationwide, you know that there are millions' — I don’t mean just a few handfuls — I am talking about millions who don’t pay income tax. And I have been selected. I am the victim of selective prosecution. They picked me out to prosecute me because I have been very active. I have had the opportunity to talk on the radio, TV, and at rallies, and I’m glad because I feel this way: I feel that I am the same spirit as were our forefathers.” R.T. at 22-23.

. “November 5, 1971

“Editor of the Bee,

“I noted with interest Stephen Ross’s letter that you printed under date of October 31, 1971. Mr. Ross has learned exactly nothing from the past. He still believes in tax reform via the initiative and lobbying processes. These methods have been used for the past 50 years and where are we now? If you are waiting for tax justice, tax reform, tax equity, tax breaks at the hands of criminal politicians you will wait forever. History proves over and over again that corrupt government (that is what we have on our hands today), never voluntarily relinquishes power. Any kind of tax justice must be administered by the individual to himself. I personally have solved this problem. I have enjoyed tax justice to a large degree for the past three years. I have refused and do not pay the following taxes: Federal and State Income Taxes, Social Insecurity Taxes, Personal Property Taxes, Telephone Excise Tax, Utility Tax. I work hard for my money and if the thieves in government want it they will have to work harder to steal it from me. Mr. Ross mentioned in his letter a realistic alternative, or solution. We have it. The answer is absolute minimum government. Almost everyone recognizes the fact that government today is overwhelming and totally out of proportion. Volumes of proof show that at least 90% of government activities are not authorized in the original contract which contract is the U. S. Constitution. Tyrannical government must be taught the lesson that we the people are the masters and government the servant.

“Yours truly,

“/s/ Jim Scott “Jim Scott”

Plaintiff’s Exhibit No. 51.

“November 23, 1971

“Fresno Bee

Van Ness and Calavaras

Fresno, Ca

“Editor:

“This is a reply to Mrs. P. H. of Reedley who wonders whether or not I am an unemployed welfare recipient. I am a successful insurance agent earning an income far above the average worker. I do not pay income taxes, State or Federal, Social Insecurity Tax, Federal Excise Tax on the telephone, City Utility Tax or Personal Property Tax. Mrs. P. H. wants to know how I do it. My secret is a combination of conviction and sufficient courage to act. First I demand to be free. I refuse to be a tax-slave, allowing the fruits of my labors to be confiscated by corrupt, squandering, criminal government. Thievery nauseates me, especially when I am the victim. Being self employed, I have no quivering, cowardly employer butchering my pay check by way of deductions and surrendering that money to government vultures. I submit all income tax forms in blank. That is, I send no information and absolutely no money. The 10% Federal Excise Tax on the telephone is easy. I merely deduct that tax from the bill and write a note of explanation to the company. The City Utility Tax is handled in the same manner. Not paying taxes is the most enjoyable and satisfying experience I have ever known. When I earn a dollar I get a dollar. Within reason, I buy everything I want and pay cash for it. Whatever I do and wherever I go I do it first class. My life is very good, but it saddens me to see so many genuinely fine Americans made victims and suckers by politicians and bloodsucking bureaucrats. The freedom from governmental tyranny that I know can be had by all Americans if they will but shake loose the chains and exert themselves. When the sleeping giant (millions of taxslaves) awakes and arises, no force on the face of this earth can withstand.

“Sincerely,

“/s/ Jim Scott

“Jim Scott”

Plaintiff’s Exhibit No. 52.