761 F.2d 549 (9th Cir. 1985), 83-3043, United States v. Freeman

Docket Nº:83-3043.
Citation:761 F.2d 549
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John L. FREEMAN, aka Alton R. Moss, Defendant-Appellant.
Case Date:May 22, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 549

761 F.2d 549 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,


John L. FREEMAN, aka Alton R. Moss, Defendant-Appellant.

No. 83-3043.

United States Court of Appeals, Ninth Circuit

May 22, 1985

Argued and Submitted March 5, 1985.

As Amended June 5, 1982.

Page 550

[Copyrighted Material Omitted]

Page 551

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...

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