U.S. v. Afflerbach, s. 82-1710

• Decision Date: 18 January 1985
• Docket Number: Nos. 82-1710,82-1984,s. 82-1710
• Citation: 754 F.2d 866
• Parties: -5375, 85-2 USTC P 9625 UNITED STATES of America, Plaintiff-Appellee, v. Joseph AFFLERBACH, John Cotton, Michael Cotton, Harvey M. Annis, and Murray Watson, Defendants-Appellants. to 82-1987.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 866

754 F.2d 866

56 A.F.T.R.2d 85-5375, 85-2 USTC P 9625

UNITED STATES of America, Plaintiff-Appellee, v. Joseph AFFLERBACH, John Cotton, Michael Cotton, Harvey M Annis, and Murray Watson, Defendants-Appellants.

Nos. 82-1710, 82-1984 to 82-1987.

United States Court of Appeals Tenth Circuit.

Jan. 18, 1985.

Michael G. Katz, Federal Public Defender, Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo., for defendants-appellants.

Richard A. Stacy, U.S. Atty., Francis Leland Pico, Asst. U.S. Atty., Lisa Leschuck, Legal Intern, Cheyenne, Wyo., for plaintiff-appellee.

Before McKAY, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

This is an appeal by Joseph Afflerbach, John Cotton, Michael Cotton, Harvey Annis, and Murray Watson from their criminal convictions in the United States District Court for the District of Wyoming. We affirm the judgments of conviction.

The facts are that for some time the Internal Revenue Service ("IRS") had tried to collect taxes due from appellant Harvey Annis. The IRS secured a judicial determination that Annis owed the money, United States v. Anderson, et al., No. 81-1349, slip op. (10th Cir. Nov. 23, 1981) (per curiam); United States v. Annis, 634 F.2d 1270 (10th Cir.1980), and sent him several deficiency notices. Annis failed to respond to the notices and this caused the district court to issue an order on July 17, 1981, allowing IRS agents to enter Annis's farm and seize machinery and equipment to satisfy the deficiency.

IRS Special Agents Benjamin Baker and Robert Freeland proceeded to inspect the Annis property to make certain of its exact location. They returned with Revenue Officers Andrew Tagliavore and John Dalrymple and Natrona County Deputy Sheriff Gerald Wushbon. Officer Tagliavore testified that the special agents were necessary because of Annis's past resistance, and that a confrontation could possibly be anticipated. The agents began tagging the equipment specified in the order. After that, as some of the machinery was being readied to be towed away, appellant Murray Watson arrived. Watson asked Deputy Wushbon to arrest the agents for stealing the equipment, claiming that much of it belonged not to Annis but to the other appellants. Agent Baker told Watson that if he could document his ownership of the equipment, the equipment would not be taken. Watson left the Annis farm in order to obtain the necessary documents and to notify the other appellants.

Just as the agents began to leave, the appellants drove their trucks to the entrance of the farm. There is some dispute whether the vehicles blocked the agents' exit. The appellants, armed with pistols, 12-gauge shotguns, and a Colt AR 15 semi-automatic rifle, got out of their trucks and approached the agents. Appellants Afflerbach, John Cotton, and Michael Cotton confronted Agent Freeland and Deputy Wushbon, threatening them with violence. Simultaneously appellants Annis and Watson discussed the situation with Agent Baker. At last the agents agreed to leave the equipment on the Annis property if the appellants would put away their weapons. No one was harmed, and the appellants returned to their trucks. The IRS has not attempted seizure of the equipment since that incident.

On September 4, 1981 the appellants were indicted. Count I charged them with violation of 18 U.S.C. Sec. 111 ¹ and Sec. 2 ² for forcibly interfering with or assaulting federal officers. Only appellant Watson was not charged in that count with the use of a deadly weapon. Count II charged all but Watson with violation of 18 U.S.C. Sec. 924(c) ³ for the use of a firearm in the commission of a felony. Trial was held in the United States District Court for the District of Wyoming.

Afflerbach, John Cotton, and Michael Cotton were convicted on both counts. Annis and Watson were found guilty of a lesser included offense under Count I, that of forcibly interfering with a federal officer without the use of a deadly weapon, and were found not guilty of Count II. Afflerbach was sentenced to seven years' imprisonment on Count I, followed by five years' probation on Count II. John Cotton was sentenced to two years' imprisonment on Count I, followed by five years' probation on Count II. Michael Cotton received eighteen months' imprisonment on Count I and four years' probation on Count II. Annis and Watson were sentenced to three years' probation on Count I, three months of which were to be served in jail. All five appellants appeal on various grounds.

Appellants first claim was that the district court abused its discretion by failing to grant their motion for transfer within the district. Appellants had moved for the trial to be held in Casper, where they, along with their attorney and some of their witnesses, lived. The district court denied the motion, deciding that for security reasons, the trial should be held in Cheyenne, where the federal marshal's personnel were more readily available. Rule 18, F.R.Cr.P. provides that "[t]he court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice." Appellants argue that the district court failed to consider their convenience in setting the place of trial.

This court has held that the mere fact that a defendant's home is nearer one trial site than another is insufficient to merit transfer. United States v. Lawson, 670 F.2d 923, 926 (10th Cir.1982). A defendant must allege "specific prejudice," resulting from the Court's refusal to transfer. Id. Appellants here have failed to establish any such prejudice. Furthermore, Rule 18 allows a court to consider "the prompt administration of justice" in fixing the place of trial and matters of security clearly fall within that consideration. Hence the district court did not abuse its discretion in denying appellants' motion to transfer the trial to Casper.

Second, the appellants argue that the district court erred in denying their motion to stay the proceedings because non-registered voters were not included in the jury pool. The District of Wyoming chooses its prospective jurors solely from voter registration lists, a process which appellants claim precludes the selection of a fair cross-section of jurors.

The statute, 28 U.S.C. Sec. 1861, allows litigants "the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes." Section 1863(b)(2) provides that voter registration lists are to be the primary source of prospective jurors. "The supplementation of voter lists is the exception, not the rule, and absent a showing of deficient representation the use of an approved jury selection process is lawful." United States v. Bennett, 539 F.2d 45, 55 (10th Cir.), cert. denied Y429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976). Appellants can prevail only if they show that the district's reliance on registration lists systematically excluded a distinct, cognizable class of persons from jury service. United States v. Test, 550 F.2d 577, 586 (10th Cir.1976); United States v. Grismore, 546 F.2d 844, 848 (10th Cir.1976); United States v. Bennett, supra at 55. Persons who choose not to register to vote do not comprise such a cognizable group. Reed v. Wainwright, 587 F.2d 260, 264 (5th Cir.1979); United States v. Lewis, 472 F.2d 252, 256 (3d Cir.1973). The district court thus properly denied appellant's motion to stay proceedings in that the appellants failed to establish that the jury selection process systematically excluded a cognizable class.

Third, appellants advance the contention that the IRS agents' attempted seizure of equipment was itself illegal and that therefore the appellants had the right to resist. The IRS has the right to levy the property of a taxpayer who has failed to pay any federal tax. 26 U.S.C. Sec. 6331(a). The district court order, allowing seizure of Annis's equipment, was properly entered, and the seizure was legal. ⁴ The appellants had no right to resist the IRS agents. This circuit has held that a third person has no right to intervene in an arrest when he knows or has reason to know the officer is authorized to make the arrest. United States v. Vigil, 431 F.2d 1037, 1042 (10th Cir.1970). By analogy, the appellants here had no right to resist the seizure of equipment when the agents clearly identified themselves and showed the appellants a copy of the district court order.

Fourth, appellants advance the argument that they were denied their Sixth Amendment right to effective assistance of counsel. They maintain that their attorney was not prepared, failed to file all motions requested by the appellants, and filed other motions that were insufficient. The trial record establishes that appellants' lawyer exercised "the skill, judgment and diligence of a reasonably competent defense attorney," as required by this circuit. United States v. Golub, 694 F.2d 207, 213 (10th Cir.1982); United States v. Crouthers, 669 F.2d 635, 643 (10th Cir.1982); Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). The attorney's decision not to file all motions requested by his clients was not ineffective assistance of counsel. Effective assistance "does not demand that every possible motion be filed, but only those having a solid foundation." United States v. Crouthers, supra at 643, quoting United States v. Hines, 470 F.2d 225, 232 (3d Cir.1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703 (1973).

Appellants' fifth claim is that the district court erred in...