487 F.3d 840 (11th Cir. 2007), 06-13946, United States v. Dean

Docket Nº:06-13946.
Citation:487 F.3d 840
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ward Franklin DEAN, Defendant-Appellant.
Case Date:May 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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487 F.3d 840 (11th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ward Franklin DEAN, Defendant-Appellant.

No. 06-13946.

United States Court of Appeals, Eleventh Circuit.

May 25, 2007

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Charles E. McFarland, New Castle, KY, for Dean.

Robert G. Davies, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida D. C. Docket No. 05-00025-CR-3-LAC

Before BIRCH, FAY and CUDAHY, [*] Circuit Judges.

PER CURIAM:

Ward Franklin Dean appeals his conviction and sentence for income tax evasion, 26 U.S.C. § 7201, and attempted interference with the administration of internal revenue laws, 26 U.S.C. § 7212(a). Dean challenges his conviction on a number of grounds, arguing that there was insufficient evidence to convict him of the attempt at obstruction and that the jury received erroneous or misleading instructions. Dean also argues that the district court failed to comply with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, by denying him an opportunity to inspect the Grand Jury list and failing to comply with the District Court Jury Plan.

Dean challenges the constitutionality of his sentence as well, arguing that the court improperly applied the holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) to his sentence, which addressed pre-Booker conduct. According to Dean, the retroactive application of Booker to his sentence violates due process and the constitutional prohibition against ex post facto laws. For the reasons stated below, we affirm Dean's conviction on both charges and the district court's sentence.

I. BACKGROUND

In 1996, Ward Dean, a medical doctor, published author, and retired naval flight surgeon, became a tax protester. He had always paid his federal income taxes faithfully up to this point, but on his 1040EZ tax form for 1996, Dean suddenly reported his income and his tax liability as "0." At the time, Dean was earning over $100,000 a year as the Medical Director for Vitamin Research Products and drawing down roughly $36,000 a year through his navy pension. Although Dean's accountant, John Graham, prepared a 1996 return and a 1997 return that reflected Dean's true earnings and his tax liability, Dean refused to file these returns and substituted 1040EZ forms that stated he owed nothing in taxes. Dean also submitted a revised W-4 form to his employer, claiming that he was exempt from federal income tax withholding for 1997.

The Internal Revenue Service ("IRS") sent Dean a letter on October 2, 1998, informing him that it considered his 1996 return frivolous because it reported "0" income, notwithstanding documentation to the contrary. That did not dissuade Dean from continuing to report his income and tax liability as "0" on subsequent tax returns, however. In 1998, Dean filed a credit application that stated his yearly income was $150,000, but when he submitted his tax return for 1998, he reported an adjusted gross income of "0" on form 1040EZ. In 1999, Dean filed another credit application that stated his yearly income was $144,000. Yet, once again, when he filed his 1999 tax return, he reported his income as "0" on form 1040.

Both the 1040EZ form and the 1040 form state on the face of the form that

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wages and pensions constitute income which is to be reported. The instruction booklet that the IRS puts out for these forms also states that wages and pensions constitute income. Nevertheless, Dean continued to deny any tax liability on his 1999, 2000, and 2001 income tax returns, entering "0" income on his 1040 forms for 1999-2001. He also continued to claim on his W-4 forms that he was exempt from withholding.

The IRS, for its part, continued to notify Dean that his returns incorrectly reported no income or tax liability and that he was required to pay income tax. On October 10, 2001, IRS sent Dean a letter regarding his 1997 return. The letter stated that the IRS would uphold a $500 penalty that the Service had imposed upon him for filing a frivolous income tax return in 1997. Dean challenged the penalty in the United States District Court for the Northern District of Florida.

In the meantime, IRS Revenue Agent Wayne Jackson had begun to investigate Dean's burgeoning tax debt. On January 10, 2002, Jackson issued summonses to Dean's employer, to the Department of Finance and Accounting Service ("DFAS"), which administered Dean's pension from the navy, and to several banks where Dean had accounts, requesting copies of Dean's financial records. In keeping with IRS policy, Jackson sent Dean a copy of each of the summonses.

Dean immediately contacted each of the parties by letter to advise them that they were "under no obligation to comply with this fraudulent 'Summons.' " "It is not a court order," Dean stated in his letter of January 14, 2004. Rather, Dean asserted, "It is aphony document sent by a 'Revenue Agent' who has no authority to send a lawful summons to anyone." (emphasis in the original). See Government Ex. WJ.

On October 24, 2002, the district court upheld the penalty that IRS imposed on Dean for filing a frivolous 1997 tax return, granting summary judgment in favor of the Government. The court stated that Dean's "self-assessment of $0.00 gross and taxable income was obviously incorrect" and that "the incorrect information was due to [defendant's] frivolous justifications."

In 2002, Dean earned over $240,000. Despite that fact, Dean failed to file a tax return for 2002. Thereafter, the IRS began working with government prosecutors to indict Dean for tax evasion and attempting to interfere in the administration of internal revenue laws. On March 17, 2005, a federal grand jury siting in the Northern District of Florida, indicted Dean with six counts of income tax evasion for the years of 1997 through 2002 and one count of endeavoring to obstruct the administration of internal revenue laws. Dean's trial date was initially set for June 6, 2005, but it was subsequently postponed a number of times, until a final date was set for December 5, 2005.

On November 24, 2005, nine days before trial was to commence, Dean filed a motion to inspect the jury records pursuant to the Jury Selection and Service Act of 1968. The district court granted Dean's motion on December 1, 2005. Dean authorized his representatives to inspect the records for him, which they did the following day on December 2, 2005. Before trial started on the morning of December 5, 2005, Dean filed a motion to stay the proceedings, alleging substantial non-compliance with the Jury Selection and Service Act in seating his grand and/or petit juries.

Dean argued that he had not been able to inspect the grand jury lists, only the petit jury lists, but that the jury qualification questionnaires for the petit jury had raised questions about whether the Clerk

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of the Court had followed the District Jury Plan in determining the eligibility of prospective jurors. The plan stated that eligible jurors had to be U.S. citizens, who had resided within the district for a set period of time, and had the ability to speak, read and write English. According to Dean's motion, a number of prospective jurors had indicated that they were born outside the United States, raising questions as to their citizenship. He also found that a number of prospective jurors had failed to indicate how long they had resided within the Northern District of Florida and that the qualification questionnaires did not attempt to determine whether a prospective juror could speak English. Dean suggested that these problems might have plagued the grand jury questionnaires as well.

During a hearing on the motion, Dean's counsel conceded that it could resolve Dean's doubts about the Grand Jury that very morning if the court would get a copy of the grand jury list faxed over. Dean's counsel also conceded that he would have an opportunity to resolve his doubts about the nationality, residency and English-language skills of the petit jury during voir dire. The court delayed trial in order to give Dean's counsel an opportunity to review the grand jury list, but it ultimately denied Dean's motion to stay the proceedings because the motion failed to conform to procedural requirements. The court noted that the motion was untimely and that it did not include a sworn affidavit as required by statute. Although it did not need to reach the merits of the motion, the court also opined that the motion lacked merit because it did not seek to challenge the District Court Jury Plan.

Dean's trial proceeded as planned and concluded two days later on December 7, 2005. Dean filed a Motion for Judgment of Acquittal at the close of the evidence, but the court denied the motion and sent the case to the jury. The jury returned a verdict of guilty on all counts that same day. Dean renewed his Motion for Judgment of Acquittal and the court denied it once again. On July 7, 2006, the court sentenced Dean to three concurrent 60-month jail terms on Counts I - III and to three other concurrent 24-month jail terms on Counts IV - VII. The district court ordered the latter sentences to run consecutively after the sentences in Counts I - III. Dean filed a timely notice of appeal of his conviction and sentence on July 14, 2006.

II. STANDARDS OF REVIEW

Since the appellant challenges his convictions and sentence on multiple grounds, we must apply several different standards of review to his claims. First and foremost, we note that the appellant challenges several pattern jury...

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