U.S. v. Buttorff

• Decision Date: 28 February 1978
• Docket Number: Nos. 77-1639 and 77-1667,s. 77-1639 and 77-1667
• Citation: 572 F.2d 619
• Parties: 78-1 USTC P 9265, 2 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Appellee, v. Gordon S. BUTTORFF and Charles A. Dodge, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 619

572 F.2d 619

78-1 USTC P 9265, 2 Fed. R. Evid. Serv. 1038

UNITED STATES of America, Appellee, v. Gordon S. BUTTORFF and Charles A. Dodge, Appellants.

Nos. 77-1639 and 77-1667.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1977.

Decided Feb. 28, 1978.

Gordon S. Buttorff, pro se.

Joseph W. Weigel, Milwaukee, Wis., argued and filed brief for Charles Dodge.

Keith Van Doren, Asst. U. S. Atty., Sioux City, Iowa (argued), and James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, on brief, for appellee.

Before ROSS, STEPHENSON, and WEBSTER, ^* Circuit Judges.

ROSS, Circuit Judge.

Gordon S. Buttorff and Charles A. Dodge appeal from their convictions, after a joint jury trial, on various counts of aiding and abetting several persons (the principals) in the filing of false or fraudulent income tax related forms, in violation of 26 U.S.C. § 7205 ¹ and 18 U.S.C. § 2. ² Buttorff was indicted on 11 counts and convicted on 9. ³ Dodge was separately indicted on 8 counts and was convicted on all 8. ⁴

The charges against these defendants arise from their participation in a series of public and private meetings which were held in February and March of 1975, and which were attended by numerous employees of the John Deere Tractor plant in Dubuque, Iowa. Fifteen of those employees subsequently filed income tax withholding forms W-4 ⁵ or W-4E ⁶ with John Deere, claiming allowances in excess of those to which they were entitled, or falsely certifying that they received no taxable income during the prior year and expected to receive none during the current year. Those men all either pleaded guilty to, or were convicted by juries of, violations of 26 U.S.C. § 7205.

Dodge was charged with aiding or abetting six of those men ⁷ and Buttorff was charged with aiding or abetting eight of them. ⁸

A. Sufficiency of the Evidence/Freedom of Speech.

Both defendants challenge the sufficiency of the evidence on the aiding and abetting charges and raise the issue of their first amendment rights of freedom of assembly and freedom of speech. We agree that the facts here present a close question.

The government's evidence showed ⁹ that Buttorff and Dodge addressed at least four large public gatherings in northeastern Iowa and western Wisconsin early in 1975. Each of the principals testified that he attended one or more of those meetings. Most of the testimony recalled speeches given by the defendants, the major portion of which dealt with the Constitution, the Bible, and the unconstitutionality of the graduated income tax. The evidence indicates that the discussions of the W-4 and W-4E forms occurred primarily during question and answer sessions following the speeches.

The principals all testified that they submitted false or fraudulent forms because of the defendants' recommendations, advice or suggestions. Some indicated that the defendants told them to divide their yearly salary by 750 to determine the number of claimed allowances necessary to stop withholding. Others testified that they heard the defendants say that 30 or 40 claimed allowances would be sufficient to stop withholding. All the principals claimed between 28 and 40 allowances on their subsequently filed W-4 forms.

Only one principal testified to an affirmative action, other than speaking, by either defendant. Vernon Van Natta testified that Buttorff came to his father's home and provided him with a W-4 form. He stated that the form already had the number 20 written in and either he or Buttorff changed it to 28.

No other principal testified that either defendant actually assisted him in preparing a W-4 or W-4E, or was with him when he filed such a form. Most testified to having other sources of information on tax evasion and other influences on his activity in the tax protest movement. However, all principals indicated that they filed withholding forms as a result of attending these tax protest meetings and many paid various amounts of money to the defendants for a wide range of tax related services.

The Supreme Court has held that to establish aiding or abetting the government need only show "that a defendant 'in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed.' " Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949), quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). This court has interpreted that language to mean that "there must exist some affirmative participation which at least encourages the perpetrator." United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974), quoting United States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1429, 35 L.Ed.2d 690 (1973).

Under this language we find that the evidence was sufficient to allow the jury to decide whether the defendants' activities constituted aiding and abetting the filing of fraudulent withholding statements. ¹⁰ Each was associated with the tax evasion movement; each opposed the graduated income tax and wanted to bring about its demise; and each, by speaking to large groups of persons, sought to advance his ideas and encourage others to evade income taxes.

The problem here, of course, is that each defendant's only participation in the allegedly illegal activity of the principals, except with regard to Van Natta, was to talk about his ideas before gatherings of disgruntled Americans. What this court must decide is whether the first amendment protections of free speech and assembly prohibit the convictions of these defendants for their activities here.

There is no doubt that the right of free speech is fundamental and may not be denied or abridged. See Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). That right, however, is not in its nature absolute. Id.

Judge Learned Hand dealt with free speech in the context of counseling or advising others to violate the law in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.1917). His language is relevant here:

One may not counsel or advise others to violate the law as it stands. Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state. * * * To counsel or advise a man to an act is to urge upon him either that it is his interest or his duty to do it. While, of course, this may be accomplished as well by indirection as expressly, since words carry the meaning that they impart, the definition is exhaustive, I think, and I shall use it. Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom, and the purpose to disregard it must be evident when the power exists. If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation.

Id. at 540.

More recently, the Supreme Court has distinguished between speech which merely advocates law violation and speech which incites imminent lawless activity. See Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). The former is protected; the latter is not.

Although the speeches here do not incite the type of imminent lawless activity referred to in criminal syndicalism cases, the defendants did go beyond mere advocacy of tax reform. They explained how to avoid withholding and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue. This speech is not entitled to first amendment protection and, as discussed above, was sufficient action to constitute aiding and abetting the filing of false or fraudulent withholding forms.

B. Dodge's Other Allegations of Error.

Dodge alleges several other errors in the proceedings which led to his conviction. First he challenges the indictment for three reasons: 1) that 26 U.S.C. § 7205, when coupled with 26 U.S.C. § 3402 and the thousands of pages of regulations, is too vague to be understood by the ordinary citizen and therefore too vague to be enforced; 2) that he should have been indicted under 26 U.S.C. § 7206(2) ¹¹ rather than § 7205; and 3) that the two-year delay in indicting him was prejudicial.

Although there are many regulations involved in Internal Revenue Code sections named in the indictment, the charge is not remote or vague. "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954) (footnotes omitted). There is no doubt that the code sections named in the indictment proscribe the filing of a false or fraudulent withholding form and that defendants were capable of understanding this meaning of the statute.

There was no error in failing to suppress the indictment because...