707 F.2d 978 (8th Cir. 1983), 82-1706, United States v. Drefke

Docket Nº:82-1706, 82-1787.
Citation:707 F.2d 978
Party Name:UNITED STATES of America, Appellee, v. Paul M. DREFKE, Appellant. UNITED STATES of America, Appellee, v. Richard O. JAMESON, Appellant.
Case Date:May 13, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 978

707 F.2d 978 (8th Cir. 1983)

UNITED STATES of America, Appellee,

v.

Paul M. DREFKE, Appellant.

UNITED STATES of America, Appellee,

v.

Richard O. JAMESON, Appellant.

Nos. 82-1706, 82-1787.

United States Court of Appeals, Eighth Circuit

May 13, 1983

Submitted May 9, 1983.

Motion for Stay of Mandate Denied June 7, 1983.

Page 979

[Copyrighted Material Omitted]

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Richard O. Jameson, pro se.

Paul M. Drefke, pro se.

Robert G. Ulrich, U.S. Atty., David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges.

PER CURIAM.

Paul Drefke and Richard Jameson were both convicted of failure to file income tax returns for the years 1979 and 1980 in violation of 26 U.S.C. Sec. 7203 and for filing false withholding exemption certificates for the years 1979, 1980 and 1981 in violation of 26 U.S.C. Sec. 7205. They were arrested at the same time but tried separately before juries, 1 Jameson approximately two weeks after Drefke. Both were sentenced to two years in the custody of the Attorney General and placed on probation for three years. Because both raise a number of the same issues, we consider their appeals together. Both have filed lengthy pro se briefs with numerous attachments. We affirm all counts of both convictions.

Drefke and Jameson during calendar years 1979, 1980 and 1981 were employed by Roadway Express, Inc. in Strafford, Missouri. In 1979 Drefke had a gross income of $31,651.34 and in 1980 his gross income was $39,497.26. In 1979, Jameson had a gross income of $28,517.98, and in 1980 his gross income was $30,881.76. Both failed to file tax returns for these two years although they had previously filed tax returns for the years 1976, 1977 and 1978. In 1979, 1980 and 1981 Drefke and Jameson filed W-4 forms with their employer in which they claimed that they were exempt from federal income taxes and certified that they had not incurred a liability for federal income taxes in the preceding calendar year.

A five count indictment was returned against both men charging them with failing to file income tax returns for the two years 2 and of filing the three false withholding exemption certificates. 3 The separate trials resulted in the convictions of both Drefke and Jameson on all five counts.

I.

Drefke and Jameson contend that 18 U.S.C. Sec. 3231 4 does not confer jurisdiction

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on federal courts to try tax offenses. They argue that the general jurisdiction granted to federal courts in Sec. 3231 extends only to those federal crimes which appear in Title 18 of the United States Code. The argument is without merit.

In United States v. Spurgeon, 671 F.2d 1198 (8th Cir.1982), we held that Sec. 3231 confers jurisdiction on district courts to try charges of failure to file income tax returns. Id. at 1199. Section 3231 grants federal courts jurisdiction over "all offenses against the laws of the United States" (emphasis added). Article I, Section 8 of the Constitution and the Sixteenth Amendment empower Congress to create and enforce an income tax. Pursuant to that power, Congress made federal crimes of certain actions aimed at avoiding payment of income tax. See 26 U.S.C. Secs. 7201-7210. The district court, then, clearly had jurisdiction under 18 U.S.C. Sec. 3231 to try the appellants for the offenses of failure to file income tax returns and filing false withholding exemption certificates.

Drefke also charges that the district court "obstructed justice" by refusing to consider his jurisdictional challenge. This argument is frivolous, and can only be considered as advanced in bad faith because the district court reviewed and denied Drefke's jurisdictional motions in an order issued on April 2, 1982.

II.

Drefke and Jameson both argue that they were denied an administrative hearing on jurisdiction in violation of the Administrative Procedure Act, 5 U.S.C. Secs. 551 et seq. The Act does not impose a requirement of adversary hearings before an agency but only specifies the procedure to be followed when a hearing is required by another statute. Califano v. Saunders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir.1966). The Internal Revenue Code nowhere grants individuals who are under criminal investigation the right to a hearing to challenge the Service's jurisdiction over them. Therefore the provisions of the Administrative Procedure Act cited by Drefke and Jameson are inapplicable.

III.

Drefke argues that taxes are debts which can only be incurred voluntarily when individuals contract with the government for services and that those who choose to enter such contracts do so by signing 1040 and W-4 forms. By refusing to sign those forms, Drefke argues he is "immune" from the Internal Revenue Service's jurisdiction as a "nontaxpayer."

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