521 F.2d 1188 (9th Cir. 1975), 74-2302, United States v. Scott

Docket Nº:74-2302.
Citation:521 F.2d 1188
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Walter SCOTT, Defendant-Appellant.
Case Date:June 18, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1188

521 F.2d 1188 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,


James Walter SCOTT, Defendant-Appellant.

No. 74-2302.

United States Court of Appeals, Ninth Circuit

June 18, 1975

Rehearing Denied Sept. 25, 1975.

Page 1189

John J. Matonis (argued), Washington, D.C., for defendant-appellant.

James H. Jeffries, Atty. (argued), Dept. of Justice, Washington, D.C., for plaintiff-appellee.


Before BROWNING and TRASK, Circuit Judges and WILLIAMS, [*] District Judge

TRASK, Circuit Judge:

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." 1 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

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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 impermissibly 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.

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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 Hoffa :

" '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 case of intercepted telephone conversations between Judith Coplon 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. 2

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. 3

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

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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 advisors 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...

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