U.S. v. Amon

• Decision Date: 09 March 1982
• Docket Number: Nos. 80-1856,80-1859,s. 80-1856
• Citation: 669 F.2d 1351
• Parties: 81-2 USTC P 9495, 8 Fed. R. Evid. Serv. 707 UNITED STATES of America, Plaintiff-Appellee, v. Alan D. AMON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary W. DUNBAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1351

669 F.2d 1351

81-2 USTC P 9495, 8 Fed. R. Evid. Serv. 707

UNITED STATES of America, Plaintiff-Appellee, v. Alan D. AMON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gary W. DUNBAR, Defendant-Appellant.

Nos. 80-1856, 80-1859.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Feb. 17, 1981.

Decided June 15, 1981.

Rehearing Denied March 9, 1982.

Charles H. Torres, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty., and John R. Barksdale, Asst. U. S. Atty., Denver, Colo., were with him on the briefs), for plaintiff-appellee.

Cecil A. Hartman, Englewood, Colo., for defendants-appellants.

Before HOLLOWAY, McKAY and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Both defendants were convicted in separate non-jury trials of filing false withholding allowance certificates in violation of 26 U.S.C. § 7205. ¹ Defendant-appellant Alan D. Amon appeals from his conviction on each count of a two-count information charging him with violating § 7205. ² Defendant-appellant Gary W. Dunbar appeals from his conviction on one count of a two-count information charging him with violating § 7205. ³ These direct appeals were consolidated because the issues raised in each are basically the same.

As grounds for reversal the defendants essentially argue that the trial court erred: (1) in refusing to dismiss the informations due to premature filing by the Government; (2) in denying a motion to dismiss for lack of jurisdiction; (3) in refusing to dismiss the informations due to selective prosecution; (4) in admitting documents in evidence in violation of their constitutional rights under the Fourth and Fifth Amendments and their statutory rights under the Privacy Act; and (5) in admitting evidence concerning the amount of wages actually earned by them after they had filed their withholding allowance certificates. Defendant Dunbar also claims that the trial court erred in denying his motion for discovery.

I

Because neither defendant challenges the sufficiency of the evidence supporting their convictions, only a brief statement of the facts is necessary.

The evidence adduced at trial against defendant Amon shows that on February 23, 1979, Amon submitted to his employer, Cherne Construction Company, an Employee's Withholding Allowance Certificate, form W-4, claiming an exemption from the withholding requirements and certifying that he incurred no liability for federal income tax for 1978 and that he expected to incur no federal tax liability for 1979. On June 15, 1979, Amon submitted another W-4 form to a different employer, Peabody Process Systems, again claiming an exemption from the withholding requirements and certifying that he incurred no federal tax liability for 1978 and that he did not expect to incur any tax liability for 1979. (II R. 16-20, 22-24, 27). There was expert testimony and other evidence tending to show that these claims were false. (II R. 26-33).

The record shows that on February 22, 1979, Amon signed and filed his 1978 income tax return which indicated a tax liability of $1,621.00 for 1978. Thus at the time he submitted both W-4 forms to his employers it could be inferred that he knew that he had incurred federal tax liability for 1978 and that he was not entitled to an exemption from the withholding requirements. Moreover, when he filed his second W-4 form in June 1979 it could be inferred that he knew that he had already been working for almost six months in 1979 and thus could reasonably anticipate a tax liability for that year. (II R. 28, 32-33, 50). The evidence was sufficient to support the inference that Amon knowingly, voluntarily, and intentionally supplied his employers with the false information contained in the W-4 forms, beyond a reasonable doubt. (II R. 10-11, 42-44, 47-48).

The evidence relating to defendant Dunbar shows that in February 1979 Dunbar signed and filed his 1978 federal income tax return which indicated that approximately $3,902 had been withheld from his wages for taxes and that his federal income tax liability for 1978 was $3,611. (II R. 44, 55-56, 62-65). The evidence further shows that in January 1979 Dunbar submitted to his employer, Ebasco Services, a W-4 form claiming an exemption from the withholding requirements. In July 1979 Dunbar and other Ebasco employees who were claiming an exemption from the withholding requirements received a form letter from the Internal Revenue Service (IRS) which outlined the legal requirements for claiming such an exemption. After a short lay-off in the summer of 1979 Dunbar was rehired by Ebasco in August 1979. At that time he filed another W-4 form with Ebasco, claiming an exemption from the withholding requirements and certifying that he incurred no federal tax liability for 1978 and anticipated no tax liability for 1979. (II R. 15, 21-24, 46, 64-68). It was this latter W-4 filing for which Dunbar was convicted.

There was expert testimony and other evidence tending to show that the statements in the latter W-4 form submitted by Dunbar to his employer in August 1979 were false. (II R. 44, 46-48). Moreover the evidence was sufficient to support the inference that Dunbar knowingly, voluntarily, and intentionally supplied his employer with false information, knowing that he had incurred a federal tax liability for 1978, beyond a reasonable doubt. (II R. 65-68).

II

After criminal charges were filed against them, each defendant submitted to the IRS refund claims for all taxes paid by them in 1978 and 1979. ⁴ Both defendants filed pro se pretrial motions arguing that the criminal charges should be dismissed because they were entitled to have their civil refund claims properly adjudicated before the Government could validly charge and prove criminal activity on their part. The district court's denial of these motions is challenged by both defendants in these appeals.

The refund claims were submitted after the criminal charges were filed and long after the acts of the defendants which form the basis of the criminal charges against them. Resolution of any civil claim for a refund of taxes already paid is clearly collateral, and not essential to the disposition of the criminal charges. See United States v. Peister, 631 F.2d 658, 664-65 (10th Cir.); see also United States v. Hinderman, 625 F.2d 994, 995 (10th Cir.) (per curiam). The criminal charges are primarily concerned with whether the defendants willfully supplied information on W-4 forms that they knew at the time was false. United States v. Peister, supra. We hold that the Government did not need to resolve the pending refund matters before pursuing criminal charges against the defendants.

III

Defendants argue that the district court, "under the rules of criminal procedure, has no jurisdiction over matters arising under the Internal Revenue Code." The argument is mainly premised on assertions that the Internal Revenue Code is unintelligible and that it was not shown that defendants intended to or did harm society. (Brief of Appellant Amon at 4; Brief of Appellant Dunbar at 5). The argument is frivolous and without merit. See 18 U.S.C. § 3231; United States v. Callow, Nos. 79-2197 & 80-1068, slip op. at 3-4 (10th Cir. May 22, 1980, unpublished). United States v. Brown, 600 F.2d 248, 259 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172.

IV

Prior to trial both defendants moved to dismiss the criminal charges pending against them on the grounds that the Government's prosecution of them was unconstitutionally selective. These motions were denied by the district court. Following their trials, defendants renewed the motions. After evidentiary hearings the district judge denied the motions.

On appeal, both defendants claim that the trial court erred by failing to dismiss the informations due to selective prosecution. More specifically they argue that the evidence is clear that many people continue to file for exemptions from the withholding requirement even though they are not legally entitled to claim them, that only a selected few are being prosecuted, and that those individuals being prosecuted are selected because they have exercised their First Amendment right of free speech or have been singled-out as illegal tax protestors by the IRS. With respect to their own cases, they claim that they were selected for prosecution by the Government because they were "outspoken." (Brief of Appellant Amon at 5-7; Brief of Appellant Dunbar at 7-9).

It is fundamental that "(s)electivity in the enforcement of criminal laws is ... subject to constitutional constraints." United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755. Nevertheless, " 'the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as 'the selection was (not) deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446. "Moreover, there is a presumption that prosecution for violation of the criminal law is in good faith," United States v. Bennett, 539 F.2d 45, 54 (10th Cir.), cert. denied, 429 U.S. 925, 927 S.Ct. 327, 50 L.Ed.2d 293; accord, Barton v. Malley, 626 F.2d 151, 155 (10th Cir.). Here the district judges, after evidentiary hearings in both cases, found that no unconstitutionally selective prosecution of the defendants had occurred. We are satisfied that the findings are supported by the record and are not clearly erroneous and thus should not be set aside. ⁵ See United States v. Ganter, 436 F.2d 364, 368 (7th Cir.).

In both cases there are particular findings in the district judges' rulings which we should discuss. At the conclusion of Amon's evidentiary hearing, the judge specifically found that the selection of Amon for prosecution "was in...