U.S. v. Badger, 89-50251

• Decision Date: 16 April 1991
• Docket Number: No. 89-50251,89-50251
• Citation: 930 F.2d 754
• Parties: -853, 91-1 USTC P 50,198 UNITED STATES of America, Plaintiff-Appellant, v. John James BADGER, Defendant-Appellee, Capital Tracing, Inc., Real Party in Interest, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 754

930 F.2d 754

67 A.F.T.R.2d 91-853, 91-1 USTC P 50,198

UNITED STATES of America, Plaintiff-Appellant, v. John James BADGER, Defendant-Appellee, Capital Tracing, Inc., Real Party in Interest, Appellee.

No. 89-50251.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1990.

Decided April 16, 1991.

Charles Bricken, Tax Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Leslie T. Jones, Jr., Gallagher & Kennedy, Phoenix, Ariz., for defendant-appellee and real party in interest appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON, BRUNETTI and O'SCANNLAIN, Circuit Judges.

BRUNETTI, Circuit Judge:

Appellee John James Badger ("Badger") was indicted on criminal charges and ordered to post a $100,000.00 bail bond. The bond was posted by third parties. After Badger was convicted, the IRS attempted to levy on the bond for unpaid taxes owed by Badger. The district court ordered the IRS to show cause why the bond should not be exonerated and paid over to those who had posted it. After a hearing, the district court concluded that allowing the IRS to levy on bail bonds would impermissibly interfere with the integrity of the judicial

branch and ordered the bond exonerated. We reverse and remand.

FACTS

The facts of this case are, for the most part, undisputed. Badger was indicted on six fraud-related offenses and was ordered to post a $100,000.00 cash bond. On July 29, 1985, Capital Tracing, Inc., ("Capital") posted the $100,000.00 bond with approximately $73,000 of its own funds and approximately $27,000 loaned to Badger by other people or entities for the purpose of posting bond.

Capital is a publicly held corporation. In 1985, Badger owned 34,000 shares of Capital, which then had approximately 10,310,000 shares outstanding.

On August 22, 1985, the IRS served a notice of levy upon the Clerk of the District Court for the Central District of California. The notice of levy stated that its purpose was "to attach to the $100,000 cash bond" posted for Badger. The IRS claims that Badger owes more than $180,582 in taxes assessed on or before July 13, 1982.

Badger was found guilty. The Ninth Circuit affirmed his conviction in United States v. Badger, 849 F.2d 1476 (9th Cir.1988). Thereafter, Badger surrendered himself for incarceration. The district court then ordered that the cash bond be exonerated.

Upon being apprised of the IRS's notice of levy, the district court ordered the IRS to show cause why the $100,000 cash bond should not be exonerated and paid over to Capital. The IRS cited Internal Revenue Code ("I.R.C.") Sec. 6331, which allows the IRS to levy upon nearly all property in which a delinquent taxpayer has an interest. The IRS contended that the property belonged in part to Badger and, in any event, it would be inappropriate to determine ownership in such a proceeding; any party claiming an interest in the property could seek a refund under I.R.C. Sec. 6343(b) or Sec. 7426(a)(1). Badger filed a response to the show cause order stating that he did "not own [or] possess any interest in the cash posted for his bond."

On May 8, 1989, the district court held a hearing on the show cause order. On May 11, 1989, the district court ordered that the bond proceeds be paid over to Capital on May 18, 1989. 711 F.Supp. 1008. In its memorandum order, the district court did not decide whether Badger had any interest in the disputed bond. Instead, the district court held that I.R.C. Sec. 6331 does not allow the IRS to levy upon bail bonds, reasoning that such a levy would impermissibly threaten the institutional integrity of the judicial branch. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

On May 15, 1989, the United States appealed the district court's order and filed an emergency motion for a stay of the district court's order pending appeal. On May 17, 1989, this court granted the stay.

On December 26, 1989, this court issued a request for supplemental briefing on:

(1) whether the IRS has standing to appeal the order exonerating the bond in a criminal proceeding;

(2) whether the district court's order exonerating the bond is appealable; and

(3) whether this action is more appropriately treated as a writ of mandamus.

Appellant filed its supplemental brief on January 16, 1990. Appellee did not file a supplemental brief.

STANDARD OF REVIEW

The material facts are not in dispute. This appeal involves only questions of law, which are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

DISCUSSION

In the bail exoneration proceedings held below, the district court held that the IRS could not levy on the bail bond posted on behalf of Badger because such a levy would violate the constitutional principle of separation of powers. We reverse because the district court had no jurisdiction to address the validity of the IRS's levy under separation of powers principles in a bail exoneration proceeding. We remand for the district court to comply with the levy.

I. Standing and Appealability of Order

An order exonerating a bail bond and providing for distribution of the funds is directly appealable as a "collateral order." United States v. Arnaiz, 842 F.2d 217, n. 2 (9th Cir.1988); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Thus, the district court's order in this case was appealable.

The IRS had standing to appeal the district court's order. Nonparties may appeal a district court order where: (1) the appellant participated in the district court proceedings even though not a party, and; (2) the equities of the case weigh in favor of hearing the appeal. Id. The IRS participated in the proceeding by responding to the show cause order and "vigorously disputing" the extent to which Badger had an interest in the bail bond. The equities weigh in favor of hearing this appeal. An appeal is the most expeditious way to address the IRS's claim and, if the IRS prevails, to allow it to collect a major portion of Badger's unpaid taxes. Moreover, it would be unjust to prevent the IRS from seeking appellate review to contest the power of the district court to enter an order which directly addresses the validity of the IRS's levy upon a bail bond. Additionally, the district court ordered the IRS to show cause why the cash bond should not be exonerated, thereby drawing the IRS into the litigation.

II. Jurisdiction

The IRS's attempted levy is based on I.R.C. Sec. 6331, which provides:

If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax.

I.R.C. Sec. 6331 provides for a lien on "all property and rights to property" belonging to the delinquent taxpayer. There is no exception for bail bonds. Moreover, there is no requirement that the IRS prove that any portion of property being levied upon belongs to the delinquent taxpayer before it can levy on the property. Under I.R.C. Sec. 7421(a), the Anti-Injunction Act, ¹ if any person wishes to contest the levy, that person must bring a wrongful levy action under I.R.C. Sec. 7426 or other provisions specified in the Anti-Injunction Act. These I.R.C. sections indicate that the district court was required to honor the IRS's levy without inquiring into its validity or determining how much of the bail bond belongs to Badger. We must determine, however, whether the statutory scheme providing for the exoneration of bail bonds requires a different reading of the levy provisions of the internal revenue code or gives the district court jurisdiction to rule on whether the taxpayer-defendant owns any portion of the bail bond.

Under 18 U.S.C. Sec. 3149 and Fed.R.Crim.Proc. 46, the district court had jurisdiction to exonerate the bond upon Badger's surrender. However, Section 3149 and Rule 46 do not expressly give the district court jurisdiction to decide competing claims to the bond. This case presents the narrow jurisdictional issue whether the power to rule on the validity of the IRS's levy "can fairly be implied as necessarily ancillary to the exoneration of the bond." U.S. v. Arnaiz, 842 F.2d 217, 220 (9th Cir.1989).

In Arnaiz, this court considered whether a district court before which a narcotics prosecution was pending had jurisdiction, ancillary to its power to exonerate a bail bond, to consider disputes related to the bond. We held that the district court had jurisdiction to decide whether the surety was required to return collateral to the defendant. The court reasoned that, if the defendant had posted collateral with the surety, the defendant had indirectly posted a portion of his bail and was therefore an "obligor" under Rule 46(f). ² The district court could not fulfill its statutory duty to release the bail without determining which "obligor" was entitled to receive it.

The Arnaiz court also held, however, that the district court did not have jurisdiction to resolve a dispute between the bondsman and the defendant regarding a bond premium. The court reasoned that the premium dispute was not "so closely related to the purposes of the bail provisions (i.e., to secure the presence of the defendant) that denial of jurisdiction would necessarily interfere with the district court's ability to carry out its statutory mandate." Id.

In the present case, the IRS's claim to the bail bond is based on I.R.C. Sec. 6331, which allows for levy upon "all property and rights to property" belonging to a...