59 F.3d 474 (4th Cir. 1995), 94-5658, United States v. Bostian

Docket Nº:94-5658.
Citation:59 F.3d 474
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Samuel Leroy BOSTIAN, Defendant-Appellant.
Case Date:July 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 474

59 F.3d 474 (4th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Samuel Leroy BOSTIAN, Defendant-Appellant.

No. 94-5658.

United States Court of Appeals, Fourth Circuit

July 7, 1995

        Argued May 3, 1995.

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        ARGUED: John Stuart Bruce, Deputy Federal Public Defender, Greensboro, NC, for appellant. Harry L. Hobgood, Asst. U.S. Atty., Greensboro, NC, for appellee. ON BRIEF: William E. Martin, Federal Public Defender, Greensboro, NC, for appellant. Walter C. Holton, Jr., U.S. Atty., Greensboro, NC, for appellee.

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        Before HAMILTON and LUTTIG, Circuit Judges, and LIVELY, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

        Affirmed by published opinion. Senior Judge LIVELY wrote the opinion, in which Judge HAMILTON and Judge LUTTIG joined.


        LIVELY, Senior Circuit Judge:

        The defendant, Samuel Bostian, appeals from his jury conviction for corruptly obstructing or impeding the administration of the Internal Revenue Code in violation of 26 U.S.C. Sec. 7212(a) (1988). On appeal, he argues that the acts charged in the indictment and shown by the evidence did not constitute violations of section 7212(a). He also contends that the district court erroneously denied his motion for a new trial based on several trial rulings. Upon consideration of the briefs, oral arguments of counsel, and the record on appeal, we affirm the judgment of the district court.



        Samuel Bostian is a resident of North Carolina. In 1978, Bostian deeded approximately 240 acres of land to a trust called "Ted Works, a division of the Ellen Bell Foundation" (the trust). Bostian's wife and daughter served as trustees; in 1987, Robert LaBine, a Michigan resident, also became a trustee at Bostian's request.

        In 1984, after conducting audits for 1977-83, the Internal Revenue Service (IRS) determined that Bostian had a large personal income tax deficiency. Over the next 9 years, the IRS took steps to recover these taxes. In 1984 and 1985, it sent Bostian demand letters and lodged tax liens against his real estate. In December 1989, the IRS filed a civil action against Bostian to collect the taxes owed and foreclose on the tax liens. Bostian handled the matter pro se, maintaining that he had no taxable income for 1977-83. In August 1990, the government served a request for admissions on Bostian, requesting him to admit that the trust's property was actually owned by him. Bostian did not respond to the request.

        In November 1992, the district court, Chief Judge Frank W. Bullock, Jr. presiding, granted summary judgment in favor of the government. The trust, the court held, was Bostian's alter ego. The court concluded that Bostian owed $439,306 in taxes, plus interest, and that the government held a valid tax lien on the 240 acres titled in the trust's name. In February 1993, Judge Bullock ordered the United States Marshals Service to "take all action necessary to preserve the properties" and sell them at public auction, free and clear of all encumbrances. Bostian did not appeal this order within 60 days, as required by Federal Rule of Appellate Procedure 4(a)(1).

        In September 1993, several deputy marshals served a copy of the district court order on Bostian at his place of business. The marshals told Bostian not to go onto the seized property, interfere with any signs posted on it, or attempt to disrupt its sale. In response, Bostian told the marshals, "you know, you people are my enemy." The marshals then hired an auction company to advertise and conduct the sale.

        Bostian contacted LaBine, who met with a Michigan attorney, Casper Connolly. Connolly provided LaBine with legal advice, and LaBine conveyed this advice to Bostian.

        On November 3, 1993, three days before the auction, Bostian recorded a lis pendens against the property, signed by his wife as trustee of the Ellen Bell Foundation. The lis pendens stated that the Ellen Bell Foundation was the true owner of the real estate, including a right of way, and threatened a slander of title action against anyone recording a false claim of interest.

        The day before the auction, Bostian's daughter and a male companion attended an open house viewing of the property and began handing out copies of the lis pendens to prospective buyers. They left when asked to do so by a deputy marshal. A little later, the marshals saw Bostian posting a large photocopy of the lis pendens on top of one of the signs advertising the auction. The photocopy

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sat on top of the auction sign without obscuring or damaging the sign itself. The sign was located at the corner of the road past the property and a driveway leading to the property. Several deputy marshals arrested Bostian at that time. They found three similar signs in Bostian's truck. On November 6, the property sold at auction for $355,000.


        Bostian was indicted and charged with violating 26 U.S.C. Sec. 7212(a) (1988) by corruptly obstructing and impeding and endeavoring to obstruct and impede the administration of the Internal Revenue Code by interfering with the auction. The relevant portion of section 7212(a) reads as follows:

        Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both.

        At the beginning of Bostian's criminal trial, the district court, Judge William L. Osteen, Sr. presiding, granted the government's motion...

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