U.S. v. Wilson

• Decision Date: 09 February 1981
• Docket Number: Nos. 80-1255,80-1256,s. 80-1255
• Citation: 639 F.2d 500
• Parties: 81-1 USTC P 9194 UNITED STATES of America, Appellee, v. Nancy E. WILSON, Appellant. UNITED STATES of America, Appellee, v. Buddy Rex WILSON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 500

639 F.2d 500

81-1 USTC P 9194

UNITED STATES of America, Appellee, v. Nancy E. WILSON, Appellant.

UNITED STATES of America, Appellee, v. Buddy Rex WILSON, Appellant.

Nos. 80-1255, 80-1256.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 10, 1980.

Decided Feb. 9, 1981.

Jo Ann D. Diamos, Tucson, Ariz., for Nancy Wilson.

S. Jeffrey Minker, Tucson, Ariz., for Rex Wilson.

Gerald S. Frank, John G. Hawkins, Asst. U. S. Attys., Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before KILKENNY and GOODWIN, Circuit Judges, and REAL, ^* District Judge.

GOODWIN, Circuit Judge.

The Wilsons, who were charged with filing false withholding statements during 1979 in violation of 26 U.S.C. § 7205, moved to dismiss the indictment on grounds of selective prosecution. They argued that the government prosecuted them only because they had exercised their First Amendment right to protest the income tax or because they had exercised their Fifth Amendment right not to answer IRS' questions. The district court denied the motion and they appeal.

Two issues are presented. The first is whether this court has jurisdiction under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and its progeny, to hear this interlocutory appeal. If so, we must decide whether the Wilsons presented sufficient evidence of an illegal prosecution to warrant pretrial dismissal.

I. JURISDICTION

Abney held that a double jeopardy ruling is immediately appealable under the collateral order exception to the final judgment rule. In United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980), this court extended the Abney exception to certain orders denying motions alleging "vindictive" prosecution. The question whether the Griffin exception should be applied equally to allegations of selective prosecution appears to be one of first impression.

Little substantive difference can be detected between selective prosecution and vindictive prosecution. Vindictive prosecution arises only where the government increases the severity of alleged charges in response to a defendant's exercise of constitutional rights. See United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980); see generally, United States v. Groves, 571 F.2d 450, 453 (9th Cir. 1978) (vindictive prosecution claim brought after new charges were filed following defendant's motion to dismiss on speedy trial grounds); United States v. DeMarco, 550 F.2d 1224, 1226 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977) (vindictive prosecution claim brought when new indictment filed after defendant successfully moved for a change of venue).

Selective prosecution challenges arise when a defendant alleges that he is being prosecuted initially for having exercised a constitutional right. See United States v. Oaks, 527 F.2d 937, 940 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). The interests involved are the same as in vindictive prosecution cases: the defendant seeks protection from criminal prosecution initiated punitively, in response to the exercise of his constitutional rights.

To be heard, all interlocutory appeals must meet three criteria.

"First, there ... (has) to be a complete and final determination of the issue in the district court. No appeal may be taken if the matter was left, 'open, unfinished or inconclusive.' ... Second, the decision .... (can) not be simply a 'step toward final disposition of the merits of the case (that would) be merged in the final judgment'; rather, it must resolve an issue wholly collateral to the actual cause of action asserted.... Finally, the rights involved in the decision would be 'lost, probably irreparably,' if appellate review was postponed until final judgment...." United States v. Griffin, 617 F.2d at 1344.

A selective prosecution appeal does satisfy the Griffin criteria. The trial court's selective prosecution ruling is no less a complete and final determination than is a "vindictive" prosecution ruling. Second, the selective prosecution decision is not a step towards final disposition of the merits that would be merged into the final judgment. As in Griffin, selective prosecution does not constitute a challenge to the merits of the charges brought against the accused, nor could a disposition of the claim affect, or be affected by, a decision which is based on the merits. Id. at 1345. The issue of selective prosecution has nothing to do with whether the Wilsons did or did not file false withholding forms. Last, selective prosecution, as much as vindictive prosecution, possibly involves a right to be "free from prosecution itself, rather than merely the right to be free from a subsequent conviction." Id. Thus, because selective prosecution cases meet the Griffin-Abney criteria, they are immediately appealable.

We note that even the government did not attempt in its brief to distinguish selective prosecution claims from vindictive prosecution claims. Instead, it concentrated on explaining why Griffin type defenses should not be immediately appealable. We are sympathetic with the government's argument, but it must be addressed to the court en banc. This panel is bound by Griffin. ¹

II. SUFFICIENCY OF THE SHOWING BELOW

The district court denied the Wilsons' motion to dismiss, finding that they had failed to carry their burden of showing improper selective prosecution. The Wilsons asserted that they were selected for prosecution either because they refused to answer questions on their 1040 tax form and attached a 40-odd page memorandum on the unconstitutionality of the tax laws, or because they had exercised their Fifth Amendment rights when an IRS officer called on them. Their bare assertion does not make a case.

A. Standard of Review

In Griffin, 617 F.2d at 1347, this court may have used an abuse of discretion standard to review the denial of a motion to dismiss on vindictive prosecution grounds. While Griffin and the instant case arise in the same procedural posture and involve substantially similar issues, we believe it is technically accurate to follow the "clearly erroneous" standard in reviewing the fact finding process here. ²

B. The Selective Prosecution Test

The district court used the following test to decide whether there was improper selective prosecution:

"The law in this Circuit places the burden squarely upon the defendants to prove in a selective prosecution:

1. That others are generally not prosecuted for the same conduct;

2. The decision to prosecute this defendant was based upon impermissible grounds such as race, religion or the exercise of constitutional rights."

All parties agree that this was the proper test.

The initial case setting the selective prosecution standard was Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). It did not mention prosecution based on exercise of constitutional rights, but prosecution based on "arbitrary classification." United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972), came next; it expanded the test to cover prosecution based on the defendant's exercise of his First Amendment rights. Then came United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974), a Second Circuit case; Berrios' formulation of the test included prosecution based on exercise of constitutional rights. United States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976), followed; it phrased the test in terms of exercise of First Amendment rights, but cited Berrios (constitutional rights) and Steele (First Amendment rights) as support. United States v. Oaks, supra, 527 F.2d at 940 which came next, was a tax protest case; the court used the First Amendment test, but the facts suggest that a Fifth Amendment right was also involved. United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 760 (1978), said that the test in this circuit is that used in Berrios (constitutional rights), but it cited Oaks (First Amendment test, Fifth Amendment facts) as support. In United States v. Choate, 619 F.2d 21, 23 (9th Cir. 1980), the court said that the Ninth Circuit had expanded the Oyler test to include exercise of First Amendment rights. We now expressly approve the selective prosecutive test as formulated by the district court and Gillings : prosecution based on exercise of constitutional rights is impermissible.

C. The Evidence

The Wilsons first argue that if only two persons out of approximately 425 who filed "exempt" W-4's are prosecuted, the probable explanation has to be that they were "chosen" because of their tax protest, an exercise of a constitutional right. Perhaps the strongest testimony in the Wilsons' favor is that elicited by the trial judge. He asked the IRS investigator: "(D)o you know of any case in Tucson since you've been here that involves someone who filed a (W-4) form but didn't give any other information on their tax return and paid no taxes and was a tax protestor that has not been prosecuted?" Investigator Lujan answered, "No, I don't know of anyone."

Buddy Wilson's attorney asked Lujan: "Is the most recent case that you know of that you've prosecuted the one that you mentioned that's three years old in the Tucson area?" Lujan answered, "yes". The attorney then asked whether that individual had refused to give information on First and Fifth Amendment grounds and Lujan again answered "yes." Thus, there was some evidence suggesting that all "tax protestors" are prosecuted and that the IRS has not recently prosecuted any nonprotestors.

The Wilsons' argument also relies on the following evidence:

1. In 1979, 5140 people in Arizona filed "exempt" or excessive W-4's;

2. 1689 of these W-4's were checked; 1/4th of these (approximately 425 people) had not filed a 1040 form either;

3. At any given time in the district ...