Porth v. Templar, 71-1499

• Decision Date: 03 December 1971
• Docket Number: No. 71-1499,71-1582.,71-1499
• Citation: 453 F.2d 330
• Parties: Arthur J. PORTH, Petitioner-Appellant, v. The Hon. George TEMPLAR and the United States of America, Respondents-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Arthur J. PORTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

453 F.2d 330 (1971)

Arthur J. PORTH, Petitioner-Appellant, v. The Hon. George TEMPLAR and the United States of America, Respondents-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. Arthur J. PORTH, Defendant-Appellant.

Nos. 71-1499, 71-1582.

United States Court of Appeals, Tenth Circuit.

December 3, 1971.

George Washington, of Washington & Washington, Tulsa, Okl., for appellant.

Edward H. Funston, Asst. U. S. Atty., District of Kansas (Robert J. Roth, U. S. Atty., on the brief), for appellees.

Before SETH, HOLLOWAY and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Appellant here seeks an order voiding certain conditions of probation prohibiting him from circulating materials questioning the constitutionality of the Federal Reserve System and the Federal Income Tax laws and requiring him to abstain from speaking or writing activities questioning the constitutionality of the Federal Reserve System and the Federal Income Tax laws and requiring him to obtain authorization in writing in order to leave the jurisdiction of the court.¹

In 1967 appellant was convicted in the Kansas District Court on five counts charging him with failure to file withholding tax returns and failure to file an individual income tax return for the year 1963. The defendant was sentenced to the maximum period provided by law and was ordered confined for a period of study pursuant to 18 U.S.C. § 4208(c), which provision allows the court to retain jurisdiction to modify the sentence following study and report. This judgment was affirmed. United States v. Porth, 426 F.2d 519 (10th Cir. 1970), cert. denied, 400 U.S. 824, 91 S. Ct. 47, 27 L.Ed.2d 53 (1970).

Following exhaustion of all remedies, appellant sought relief pursuant to 28 U.S.C. § 2255. Presumably this motion was denied since in November 1970 appellant was transported to the United States Hospital in Springfield, Missouri, for the study which had been prescribed. After 2½ months he was returned to the sentencing court and was granted probation pursuant to the terms and conditions already noted.

Appellant has a long history of personal disagreement with the income tax laws dating back to 1954 at least. See Porth v. Brodrick, 214 F.2d 925, 926 (10th Cir. 1954), a civil action seeking to recover taxes which allegedly had been erroneously assessed. In that case we said:

It is admitted that a federal income tax may be levied under the Sixteenth Amendment and no law, rule, or regulation is referred to which impinges upon or destroys any right guaranteed the taxpayer by the Constitution. The claim is clearly unsubstantial and without merit. * * * Similar allegations were said to be far-fetched and frivolous. We think the description applies to the allegations in this case.

It was undoubtedly this antipathy to income taxes on the part of the appellant which led to his 1967 conviction, and on the occasion of the review of the case in this court his belief was described as fanatical. The court in that case (opinion by Judge Pickett) said:

Porth\'s defense primarily grew out of his long-time dislike for the taxing and money systems of the United States, his fanatical belief that they are unconstitutional, and his right to resist in good faith. 426 F.2d at 523.

Obviously, the years have not resulted in any modification or mellowing of appellant's viewpoints, for seemingly he continues unabated to conduct his personal vendetta against the money system and the income tax laws.

There was some confusion on the part of appellant as to appropriate procedure to follow in order to have the question reviewed. An appeal and a separate petition for an extraordinary writ (mandamus) have been filed. Both seek to test the validity of the conditions involved and maintain that these conditions are unconstitutional and void as arbitrary curtailment of appellant's freedom of expression and movement.

We are of the opinion, since appellant's motion collaterally attacks the judgment of the court, and since 28 U. S.C. § 2255 was available to appellant, that this case can be treated as an appeal from a judgment denying appellant's motion for collateral relief. So considered there can be no question as to our jurisdiction to entertain this review. We recognize, of course, that § 2255 is not available to test the legality of matters which should have been raised on appeal from the judgment.²

It is, of course, questionable whether special conditions are appealable as such. See Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181, 188-196 (1967). Inasmuch as this uncertainty exists, we deem it proper to review the matter as a § 2255 case. Probation does impose substantial restraints and thus good reason exists for reviewing the restraints pursuant to 28 U.S.C. § 2255.³

The statute which authorizes the granting of probation (18 U.S.C. § 3651) provides inter alia that the judge having jurisdiction may suspend the imposition or execution of sentence when satisfied that the ends of justice and the best interests of the public as well as the defendant are served thereby, and may place the defendant on probation for such period on such terms and conditions that the court deems best. This section names specifically some of the conditions which may be imposed, including the payment of a fine, the making of restitution and support of persons for whom the accused is legally responsible. The sentencing judge has a broad power to impose conditions designed to serve the accused and the community. The only limitation is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. The object, of course, is to produce a law abiding citizen and at the same time to protect the public against continued criminal or antisocial behavior. This court has said that the purpose of probation is to "give the convicted person an opportunity to mend his ways and to so have his freedom under conditions, or at least to have such freedom after a short period of imprisonment." Thomas v. United States, 327 F.2d 795, 797 (10th Cir. 1964).

The relationship is a peculiar one in that the judge, together with the probation officers, has the responsibility for the rehabilitation of the convicted person. To fulfill this he must be able to exercise control over the defendant, hence his authority is extensive. At the same time, not all conditions which have been imposed have been upheld by courts. Some have been ruled unnecessarily restrictive. Hyland v. Procunier, 311 F.Supp. 749 (N.D.Cal.1970); Sobell v. Reed, 327 F.Supp. 1294 (S.D.N.Y. 1971); In re Mannino, 14 Cal.App.3d 953, 92 Cal.Rptr. 880 (1st Dist. 1971).

Hyland involved an effort on the part of parole authorities to prevent a parolee from speaking out publicly on prison conditions. This effort was held...