U.S. v. Freeman

• Decision Date: 05 June 1982
• Docket Number: No. 83-3043,83-3043
• Citation: 761 F.2d 549
• Parties: -5126, 85-1 USTC P 9421 UNITED STATES of America, Plaintiff-Appellee, v. John L. FREEMAN, aka Alton R. Moss, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 549

761 F.2d 549

56 A.F.T.R.2d 85-5126, 85-1 USTC P 9421

UNITED STATES of America, Plaintiff-Appellee, v. John L. FREEMAN, aka Alton R. Moss, Defendant-Appellant.

No. 83-3043.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1985.

Decided May 22, 1985.

As Amended June 5, 1982.

Robert E. Lindsay, Alan Hechtkopf, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Stephen R. Sady, Portland, Or., John L. Freeman, Las Vegas, Nev., for defendant-appellant.

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

Before KENNEDY and NORRIS, Circuit Judges, and STEPHENS ^*, District Judge.

KENNEDY, Circuit Judge:

Freeman was convicted on fourteen counts of aiding and abetting and counseling violations of the tax laws, an offense under 26 U.S.C. Sec. 7206(2). Each count recited that another person had filed a false, individual tax return with Freeman's counsel, assistance, and aid. Of the various arguments on appeal, the most significant is the one based on the First Amendment. Had the court permitted the jury to consider the First Amendment defense, the evidence would have been sufficient for the jury to either acquit or convict the defendant on twelve of the counts. The trial court, though, instructed the jury that the question of free speech was not before it in any part of the case. With respect to these twelve counts, the instruction was error, and we reverse. The evidence on the two remaining counts disclosed no grounds for a legitimate free speech defense and on these counts we affirm.

Words alone may constitute a criminal offense, even if they spring from the anterior motive to effect political or social change. Where an indictment is for counseling, the circumstances of the case determine whether the First Amendment is applicable, either as a matter of law or as a defense to be considered by the jury; and there will be some instances where speech is so close in time and substance to ultimate criminal conduct that no free speech defense is appropriate.

The case for the prosecution was that Freeman, a tax protester of sorts, counseled violations of the tax laws at seminars he conducted. He urged the improper filing of returns, demonstrating how to report wages, then cross out the deduction line for alimony and insert again the amount of the wages, showing them as "nontaxable receipts." As the trial court correctly advised the jury, this manner of reporting results in no taxable income and a false return.

Freeman claims he did nothing more than advocate tax noncompliance as an abstract idea, or at most as a remote act, and that the First Amendment necessarily bars his prosecution. In this he is incorrect. Where there is some evidence, however, that the purpose of the speaker or the tendency of his words are directed to ideas or consequences remote from the commission of the criminal act, a defense based on the First Amendment is a legitimate matter for the jury's consideration. On twelve of the fourteen counts, the case before us falls within this category. Though it was weak, there was some evidence on Counts 1 through 11 and on Count 14 from which the jury might infer that Freeman directed his comments at the unfairness of the tax laws generally, without soliciting or counseling a violation of the law in an immediate sense. In some instances he made statements that, at least arguably, were of abstract generality, remote from advice to commit a specific criminal act. Also, he told some audiences to verify his advice because, as a non-lawyer, he had reached conclusions based upon his untrained reading of the Constitution. A jury might have thought those statements, in the context of the entire case, tended to diminish the imminence of the unlawful activity. There was, on the other hand, substantial evidence of Freeman's use of words of incitement quite proximate to the crime of filing false returns, words both intended and likely to produce an imminent criminal act. On the record here, we must assume a jury might discredit this latter testimony and find that Freeman confined his advocacy to abstract ideas or remote action. In the context of the evidence on these twelve counts, the trial court erred by instructing the jury that the First Amendment was irrelevant to the case.

In light of Freeman's defense and the evidence to support it, an instruction based upon the First Amendment should have been given to the jury. As the crime is one proscribed only if done willfully, the jury should have been charged that the expression was protected unless both the intent of the speaker and the tendency of his words was to produce or incite an imminent lawless act, one likely to occur. Brandenburg v. Ohio, 395 U.S. 444, 447-48, 89 S.Ct. 1827, 1829-30, 23 L.Ed.2d 430 (1969) (per curiam). Tax evasion is a wrong of sufficient gravity that Congress can punish incitement to...