State v. Gilbert

• Decision Date: 10 April 1987
• Docket Number: No. 16246,16246
• Citation: State v. Gilbert, 112 Idaho 805, 736 P.2d 857 (Idaho App. 1987)
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Keith GILBERT, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 857

736 P.2d 857

112 Idaho 805

STATE of Idaho, Plaintiff-Respondent, v. Keith GILBERT, Defendant-Appellant.

No. 16246.

Court of Appeals of Idaho.

April 10, 1987.

Petition for Review Denied June 9, 1987.

Charles B. Lempesis and Malcolm S. Dymkoski (argued), Post Falls, for defendant-appellant.

Jim Jones, Atty. Gen. by Lynn E. Thomas (argued), Sol. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

After a jury trial in Kootenai County, Keith Gilbert was convicted on thirty-five counts of welfare fraud and on one count of state income tax evasion. In this appeal Gilbert has presented three issues: (1) whether the trial court erred in refusing to dismiss all but one of the welfare fraud charges due to selective prosecution; (2) whether the welfare fraud should have been treated as a single crime rather than as thirty-five separate offenses; and (3) whether the evidence was sufficient to establish guilt on the elements of tax evasion, including the element of "wilfulness." For reasons explained below, we affirm the judgment of conviction on all counts.

We begin with a statement of the essential facts. In late 1979, Keith Gilbert moved to Post Falls, Idaho, from California. His two minor sons accompanied him. Gilbert applied for and received public assistance from the Idaho Department of Health and Welfare in the form of Aid to Families with Dependent Children (AFDC). This federally-funded and state-administered program is restricted to low-income families with children living at home. See 42 U.S.C. § 601. In July, 1980, Gilbert's former wife visited Idaho and returned to California with the two boys. Thereafter, the boys remained in California. Nevertheless, during thirty-five subsequent months, Gilbert applied for and received AFDC checks in Idaho.

While these events were unfolding, Gilbert renewed his prior affiliation with "The Church of Jesus Christ Christian," more commonly known as the "Aryan Nations." Gilbert had been involved with the organization as far back as the early 1960s, when he lived in California. Gilbert became an active and visible member in Idaho. Eventually, he established his own group, naming it "The Restored Church of Jesus Christ Christian." As a vocal proponent of white supremacist views, Gilbert attracted media attention. He frequently spoke out against policies of the United States government toward ethnic, racial and religious minorities.

Approximately in 1984, several state agencies became suspicious of Gilbert's financial affairs. ¹ The Tax Commission began an investigation and summoned Gilbert to appear at an administrative hearing. Gilbert refused to answer many of the questions propounded, and his financial records were subpoenaed. The investigation culminated in 1985, when the county prosecutor charged Gilbert with welfare fraud and with wilful evasion of state taxes on income that included the illegally obtained welfare benefits.

Gilbert moved to dismiss thirty-four of the thirty-five welfare fraud counts, claiming that the prosecutor had charged multiple offenses because of Gilbert's extreme political beliefs. The district court allowed defense counsel to engage in substantial discovery for the purpose of determining whether Gilbert was a victim of oppressive prosecutorial conduct. Employees of the Kootenai County prosecutor's office and of the Department of Health and Welfare were deposed. This evidence was presented to the court prior to trial and Gilbert's motion to dismiss was denied. At trial, Gilbert was found guilty on all thirty-five counts of welfare fraud and on the single count of income tax evasion. This appeal followed.

I

We turn initially to Gilbert's contention that the trial court erred in refusing to dismiss all but one of the welfare fraud counts. As this issue evolved during the pretrial discovery, it focused not merely upon the number of offenses charged but more broadly upon the prosecutor's motivation for filing any welfare fraud charges against Gilbert. Gilbert claimed that he was targeted for prosecution due to his exercise of a First Amendment right to advocate his controversial political philosophy.

Preliminarily, we note that the appellate standard for reviewing the denial of a motion to dismiss on the ground of selective prosecution has been articulated by the federal courts. They have held that the issue is one of fact, turning in large measure upon the credibility of witnesses. Consequently, they have chosen to apply a standard of "clear error" analogous to the civil standard found in F.R.C.P. 52(a). E.g., United States v. Wilson, 639 F.2d 500 (9th Cir.1981). We will apply a parallel standard in this case.

The defense of selective prosecution is part of a web of constitutional constraints that overlie the discretionary powers accorded to prosecuting authorities. So long as the prosecutor has probable cause to believe that a suspect has committed an offense defined by statute, the decision whether to prosecute, and what charge to file, rests in the prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Such discretion is allowed because a decision to prosecute is generally ill-suited to judicial review. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

Nevertheless, the Supreme Court in Wayte has recognized a defense of selective prosecution and has outlined its substantive elements. A defendant bears the burden of establishing (1) that he was singled out for prosecution and (2) that the decision to prosecute him, rather than other persons, was based upon an impermissible factor such as race, religion or the exercise of a constitutional right. ² Id.; see also Attorney General of the United States v. The Irish People, Inc., 684 F.2d 928 (D.C.Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); People v. Smith, 155 Cal.App.3d 1103, 203 Cal.Rptr. 196 (1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 910, 83 L.Ed.2d 924 (1985). The defense may be established by showing that the state selected the defendant from a larger group of non-prosecuted alleged violators because of his exercise of a constitutional right. Maxfield v. State, 108 Idaho 493, 700 P.2d 115 (Ct.App.1985). However, incomplete enforcement of the laws, standing alone, does not offend the federal or state constitution. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Henson v. Department of Law Enforcement, 107 Idaho 19, 684 P.2d 996 (1984).

The first inquiry, then, is whether Gilbert actually was "singled out" from other alleged violators of the public assistance laws. Gilbert contends that there were many other persons in Kootenai County and in the surrounding area, known to authorities, who fraudulently obtained public assistance but who were not prosecuted. Gilbert's counsel deposed the Kootenai County prosecuting attorney and the regional eligibility supervisor for the AFDC section in the Department of Health and Welfare. The prosecuting attorney's deposition disclosed that welfare fraud cases typically were referred to the prosecutor's office by the Department of Law Enforcement and the Department of Health and Welfare. The Gilbert case was referred jointly by the Tax Commission and the Department of Health and Welfare. The prosecutor stated that his office followed guidelines set down by statute and recommended by American Bar Association guidelines in deciding whether to press charges. The two major criteria cited by the prosecutor were the existence of probable cause to believe a potential defendant was guilty and the likelihood that evidence could be presented at trial to prove guilt beyond a reasonable doubt.

Statistics obtained from the Department of Health and Welfare revealed that in Region I (north Idaho), during three years prior to Gilbert's arrest, there had been more than two hundred reported cases of welfare overpayments. Thirteen of these involved overpayment of AFDC benefits due to intentional misstatements by applicants. The remainder consisted of intentional or unintentional misrepresentations in applications for food stamps. Out of all these cases, prosecutions were initiated against at least five persons in Kootenai County, and further investigation of five others was conducted with the aim of gathering evidence necessary for prosecution. There was no indication that any of the ten actual or prospective defendants were politically affiliated with Gilbert or the "Aryan Nations." Most of the unprosecuted cases were closed due to voluntary restitution agreements or lack of sufficient evidence.

In sum, the information gathered in pretrial discovery tended, at most, to show incomplete enforcement of the welfare fraud laws. But nowhere did the evidence indicate that the Kootenai County prosecutor's office had utilized an unusual procedure to "single out" Gilbert. The first prong of the selective prosecution test under Wayte was not satisfied. Accordingly, we do not reach the second question, whether the prosecutor exhibited discriminatory motives. ³ We conclude that the district court did not clearly err in finding a lack of selective prosecution. We further note that the facts of this case do not rise to the level of selectivity found in cases where convictions have been reversed for selective prosecution. See, e.g., United States v. Steele, 461 F.2d 1148 (9th Cir.1972) (only persons prosecuted for refusal to answer census questions were those four defendants who vocally opposed the census, while silent offenders were not prosecuted); People v. Kail, 150 Ill.App.3d 75, 103 Ill.Dec. 662, 501 N.E.2d 979 (1986) (alleged prostitute prosecuted for failure to have bell on bicycle).

II

Gilbert next contends that, as a matter of law, he should not have been charged and convicted on thirty-five separate counts of welfare fraud. Gilbert was convicted under I.C. § 56-227(a), which provides as follows:

Whoever knowingly obtains,...