526 F.2d 1349 (9th Cir. 1975), 74-2070, United States v. Marshall

Docket Nº:74-2070.
Citation:526 F.2d 1349
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Odell MARSHALL, Defendant-Appellant.
Case Date:October 31, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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526 F.2d 1349 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,


Odell MARSHALL, Defendant-Appellant.

No. 74-2070.

United States Court of Appeals, Ninth Circuit.

Oct. 31, 1975

As Amended on Denial of Rehearing and Rehearing En Banc Feb. 10, 1976.

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Barry Tarlow (argued), Los Angeles, Cal., for defendant-appellant.

Darrell McIntyre, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, WRIGHT and WALLACE, Circuit Judges.


WALLACE, Circuit Judge.

On November 30, 1973, officers of the Los Angeles Police Department closed the net on a major narcotics transaction. Based upon informer tips, independent investigation and surveillance of suspects, the police believed that Marshall was a heroin dealer who made deliveries to customers from other cities through a female, Harris, who lived with him. The narcotics were supplied, the police believed, by Macias and were stored, they learned, in an apartment registered to Tuminello. After completing a heroin sale at the Los Angeles Hilton Hotel to Strickland, an out-of-town buyer, Marshall and Harris were arrested in the hotel parking garage. $34,000 in cash was seized from Harris, along with 0.3 grams of cocaine. $5,000 was seized from Marshall, along with 1.7 grams of cocaine. Strickland was arrested checking out of the hotel; in his possession were 2000 grams of heroin. Shortly afterwards, police searched Tuminello's apartment, finding a suitcase containing 502.1 grams of heroin and 155 grams of cocaine.

Marshall, Macias, Harris, Tuminello and Strickland were indicted on various counts of conspiracy to possess and distribute a controlled substance, 21 U.S.C. s 846, and with possession and distribution of a controlled substance, 21 U.S.C. s 841(a)(1). In Count One all defendants were charged with conspiracy to possess and distribute heroin. In Count Two Macias, Marshall and Tuminello were charged with possession with intent to distribute the heroin found in Tuminello's apartment. Count Three charged Macias, Marshall and Harris with possession with intent to distribute the heroin found in Strickland's suitcase. Count Four charged Marshall and Harris with distribution of the heroin found in Strickland's suitcase. Count Five charged Strickland with possession of the heroin found in his suitcase.

Before trial Strickland pleaded guilty; at trial he testified about his transactions with the other defendants. After a jury trial, Tuminello was acquitted. Harris was found guilty on Counts One, Three and Four; she has since died and her appeal has been dismissed. Macias was found guilty on Counts One and Three; he has since disappeared and his appeal has been dismissed. United States v. Macias, 519 F.2d 697 (9th Cir. 1975). Marshall was found guilty on Counts One, Three and Four. He appeals and we affirm.

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I. The Tax Liens and Levies

The $39,000 seized from Marshall and Harris on November 30 was held by the Los Angeles Police Department. On December 1, Marshall assigned all of his interest in the money to an attorney, Bate, for legal services. On December 3, Bate assigned his interest to Marshall's present attorney, Tarlow. Harris also assigned her interest to Tarlow on December 3. Meanwhile, the Internal Revenue Service terminated Marshall's and Harris' taxable years pursuant to 26 U.S.C. s 6851. Notice and demand were sent to each of them and on December 3, notices of levy were served on the Los Angeles Police Department. Notices of federal tax liens were then filed with the Registrar Recorder of the County of Los Angeles. On December 3, the State Franchise Tax Board also levied upon the money held by the police department for taxes due the State of California.

Following the tax levies, the Los Angeles Police Department filed an interpleader action in the Superior Court naming Tarlow, Bate, the State of California and the United States as defendants. The action was removed to a federal district court where it is now pending. City of Los Angeles v. Tarlow, Civ. No. 74--513--RJK (C.D.Cal.).

Before trial, Marshall and Harris asserted that there would be a conflict of interest if a single attorney represented them both, but that because the money they had assigned had been seized, they could not obtain separate counsel of their own choice. 1 In a series of pretrial motions and hearings on the motions, they contended that both tax levies were part of a conspiracy between law enforcement officers and taxing authorities to deprive them of rights under the Sixth and Fourteenth Amendments. They supported these allegations with several affidavits of attorneys to the effect that tax levies were common in criminal cases in which large sums of money had been seized, that the levies came quickly after the seizures and that the tax demanded was usually equal to or greater than the money seized. Marshall and Harris offered to substantiate their charges if granted extensive discovery against both the state and federal taxing authorities. 2 The trial court ruled that it did not have jurisdiction to enjoin enforcement of the tax liens and levies, either directly by injunction or indirectly pursuant to a Rule 41(e) motion for return of property. The court also ruled that Marshall and Harris had not made a showing sufficient to justify either a dismissal of the indictment for government misconduct or approval of the massive discovery requested. For the reasons now outlined, we conclude that the district court did not err.


At the outset we note the strong congressional policy against judicial interference in the tax collecting process. A taxpayer may pursue a cause of action for refund of federal taxes only after an

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administrative claim for refund has been filed and either denied or held without action for six months. 28 U.S.C. s 1346; 26 U.S.C. ss 6532, 7422; United States v. Freedman, 444 F.2d 1387, 1388 (9th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544 (1971). As to the California tax levy, the Tax Injunction Act, 28 U.S.C. s 1341, provides that '(t)he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.' Moreover, the Anti-Injunction Act, 26 U.S.C. s 7421(a), provides that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.' The Supreme Court has said of this statute:

The manifest purpose of s 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue.

Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962) (footnote omitted). See also Bod Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974).

Marshall asserts that the federal levy was enjoinable under the exception to 26 U.S.C. s 7421(a) as set forth in Enochs v. Williams Packing & Navigation Co., supra. Williams Packing held that injunctive relief is available only when the taxpayer can show (1) that under no circumstances could the government ultimately prevail on its legal right to the disputed sums, viewing the facts and law most favorably to the government, and (2) that he has no adequate legal remedy for obtaining relief from the Commissioner's actions. Id. at 6--7. Westgate-California Corp. v. United States, 496 F.2d 839, 842--43 (9th Cir. 1974). The circuits have not been entirely consistent in applying this exception when the injunction is sought against a tax levy on money seized in a narcotics arrest as part of an alleged conspiracy between law enforcement officials and taxing authorities. Compare Aguilar v. United States, 501 F.2d 127, 130--31 (5th Cir. 1974), Willits v. Richardson, 497 F.2d 240, 245--46 (5th Cir. 1974), Lucia v. United States, 474 F,2d 565, 573--75 (5th Cir. 1973) (en banc), and Pizzarello v. United States, 408 F.2d 579, 583--84 (2d Cir.), cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969), with Lewis v. Sandler, 498 F.2d 395, 398--99 (4th Cir. 1974).

We need not decide whether the tax collection was enjoinable, however, because such a request is inappropriate in a criminal trial. Marshall cites no case in which the tax collection was enjoined in a criminal proceeding and for good reason. An injunction binds only parties to the action. See Fed.R.Civ.P. 65(d). Here, Marshall and Harris never claimed an interest in the money; the real claimants, in addition to the United States, are Tarlow and the State of California who are not parties in the criminal action before us, nor could they be. In a civil proceeding, on the other hand, each interested party could be joined and given an opportunity to assert his claim. See, e.g., Kelly v. Springett, 527 F.2d 1090 (9th Cir. 1975). Moreover, the broader discovery permitted by the civil rules would allow the claims of improper assessment to be more fully ventilated. An immediate civil action to enjoin the tax collection would also be an effective alternative to resolution in the criminal trial. It could be a speedy proceeding and, if the trial court believed it to be necessary, the criminal trial could be continued pending resolution of the injunction proceedings. We, therefore, affirm the district court's denial of Marshall's motion to dissolve...

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