U.S. v. Buckley

• Decision Date: 18 December 1978
• Docket Number: No. 77-5449,77-5449
• Parties: 79-1 USTC P 9290 UNITED STATES of America, Plaintiff-Appellee, v. James Travis BUCKLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 498

586 F.2d 498

79-1 USTC P 9290

UNITED STATES of America, Plaintiff-Appellee, v. James Travis BUCKLEY, Defendant-Appellant.

No. 77-5449.

United States Court of Appeals,

Fifth Circuit.

Dec. 18, 1978.

Travis Buckley, pro se.

C. Everette Boutwell, Laurel, Miss., for defendant-appellant.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., M. Carr Ferguson, Asst. Atty. Gen., Tax Div., Gilbert E. Andrews, Chief, Appellate Section, Robert E. Lindsay, Atty., Charles E. Brookhart, Atty., Mary L. Jennings, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RONEY, TJOFLAT and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellant James Travis Buckley, an attorney, was charged in an eight-count indictment with violating two sections of the Internal Revenue Code of 1954. The indictment charged Buckley with three counts of attempted tax evasion under 26 U.S.C.A. § 7201 and five counts for failure to file a return under 26 U.S.C.A. § 7203, all allegedly occurring during a five-year period from 1970 through 1974. Following a six-day trial in the United States District Court for the Southern District of Mississippi, the jury, after two hours of deliberation, returned a verdict of guilty on each of the eight counts of the indictment. On appeal Buckley challenges, Inter alia, the validity of his convictions for failure to file in the years in which he was also convicted for attempted tax evasion. Because we agree with appellant on this point, we modify the decision below by vacating the convictions and sentences for failure to file in 1970, 1973 and 1974; otherwise, we affirm.

I. Entrapment

Buckley raised an "entrapment" defense at trial consisting of testimony by him and his friends to the effect that the F.B.I. was engaged in a plot to see him "behind bars." Buckley asserted that he had incurred the ire of the F.B.I. by representing several of the criminal defendants in a trial arising out of the fire bombing death of Vernon Dahmer, the Hattiesburg, Mississippi, civil rights leader, and by his representation of numerous other defendants in cases where he had had occasion to cross-examine F.B.I. agents. Appellant's friends testified that they had overheard remarks made by F.B.I. agents to Buckley stating that "we will get you one way or the other." Buckley himself testified that an I.R.S. agent had visited him in 1966 in connection with an audit of his return and warned him that the F.B.I. was "out to get him" regardless of whether he filed or not. Numerous acts of harassment were also alleged. As a result of his conversation with the I.R.S. agent and his experiences with the F.B.I., Buckley testified that he failed to file income tax returns because he was afraid that if he were to file he would be indicted with fabricated charges of filing fraudulent returns, a felony. ¹ Choosing the lesser of two evils, then, he elected not to file, knowing it to be punishable only as a misdemeanor. Arguing that the above evidence was sufficient to raise the issue of entrapment, appellant now contends that the trial court erred in refusing to instruct the jury on the defense of entrapment.

Appellant is certainly correct in asserting that the issue of entrapment is for the jury to decide, assuming it is properly raised. United States v. Benavidez, 558 F.2d 308, 310 (5th Cir. 1977); United States v. Harrell, 436 F.2d 606, 612 (5th Cir. 1970); Pierce v. United States, 414 F.2d 163 (5th Cir.), Cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). Nonetheless, in order to raise the issue, the initial burden of going forward with the evidence lies with the defendant; he must produce "some evidence, but more than a scintilla," raising the defense. United States v. Groessel, 440 F.2d 602, 606 (5th Cir.), Cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). See also United States v. Benavidez, 558 F.2d 308 (5th Cir. 1977); United States v. Harper, 505 F.2d 924 (5th Cir. 1974). Once the defendant has discharged this obligation, the prosecution must ultimately prove beyond a reasonable doubt that the defendant was not entrapped into committing the offense. United States v. Benavidez, 558 F.2d 308, 310 (5th Cir. 1977); United States v. Harrell, 436 F.2d 606, 612 (5th Cir. 1970). If the defendant fails to carry his burden of going forward with the evidence, however, he is not entitled to have the jury consider the defense of entrapment. United States v. Harper, 505 F.2d 924, 926 (5th Cir. 1974); United States v. Groessel, 440 F.2d 602, 606 (5th Cir.), Cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971).

Entrapment occurs "when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 213, 77 L.Ed. 413 (1932). See also United States v. Russell, 411 U.S. 423, 434-35, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Costello, 483 F.2d 1366, 1367 (5th Cir. 1973); United States v. Groessel, 440 F.2d 602, 605 (5th Cir.), Cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). Although Buckley's story was vigorously denied by the government at trial, ² we nonetheless accept it as true for the purposes of deciding this issue. And even assuming Buckley's allegations to be true, the evidence does not raise the defense of entrapment.

It is clear from the evidence that the criminal intent did not originate with the government, but instead formed within the defendant's own mind, in response to an alleged plot by the F.B.I. to see him incarcerated. As Buckley testified:

In 1966 in my office in Bay Springs, Mississippi an agent of the Internal Revenue visited me and audited my books and papers and accounts and then later came to my house . . . I don't know the man's name and I don't know if I knew it then, but there were actually two different ones visited me at different time(s), but one of them told me then and told me at my home later, said, that the Federal Bureau of Investigation is after you and he gave me this and told me it was a friendly advice and a friendly warning, he said, 'they will get you one way or the other and I am telling you this as a matter of trying to help you and trying to advise you to be on the alert.' And he said, 'I know them well enough to know that it does not make any difference whether you file or not, if they can get you,' but he said, 'I'm not telling you not to file and I'm not telling you to file, but you know the penalties for not filing,' and he said, 'I'm under an obligation to advise you that the law requires that you file.'

As the testimony thus shows, there was no attempt by any law enforcement official to induce or entreat Buckley to commit the offenses for which he was charged; rather, the decision not to file returns for the years 1970 through 1974 was one conceived entirely by Buckley himself, in response to an alleged threat by the F.B.I. Whether that threat is real or fancied is immaterial to our decision here. The course of action pursued by Buckley was the result of a voluntary and informed decision to violate the law, a far cry from the genuine entrapment situation where an otherwise innocent and law abiding citizen falls prey to government seduction and is persuaded to commit a crime. If Buckley truly believed the F.B.I. was "out to get him," then he should have scrupulously obeyed the law, remaining confident that he would be cleared of any contrived charges. Because the evidence presented by Buckley failed to raise the defense of entrapment, if was not error for the trial judge to refuse to charge on entrapment.

II. Attorney-Client Privilege

Buckley next asserts that it was error to allow prosecution witness Castle to invoke the attorney-client privilege and prevent his three attorneys from testifying. Richard Castle had been a close friend of Buckley's during the years in question and supplied very damaging testimony enumerating the various affirmative acts of evasion practiced by Buckley. In an effort to impeach Castle's credibility, Buckley sought to call to testify three attorneys who represented Castle in a civil action brought by Buckley to collect attorney's fees. Buckley had represented Castle in a personal injury suit in which a $100,000 settlement had been procured, but the two were unable to agree on Buckley's fee, so Buckley brought an action to recover his portion of the settlement. By way of offer of proof, Buckley disclosed that he intended to show that Castle was biased against him because of their disagreement over the amount of the fee; furthermore, Buckley wished to prove that Castle had lied to his attorneys about the settlement offer he had originally received in the personal injury case before he retained Buckley. Castle invoked the privilege and prevented his attorneys from testifying, asserting that it would be inconvenient for them to have to do so.

Appellant concedes that the testimony sought to be elicited from Castle's attorneys was properly within the scope of the attorney-client privilege. Nonetheless, he argues that the privilege may not be invoked solely for reasons of convenience, but must be invoked out of a concern for confidentiality.

While appellant's argument may have some superficial appeal, it fails to appreciate the pragmatic considerations underlying the implementation of the policy behind the attorney-client privilege, which is to encourage the free-flowing communication and candid disclosure so vitally necessary to effective representation by counsel. This policy cannot be achieved unless a client is free to communicate with his attorney "without fear of consequences or...