U.S. v. Condo, 82-1390

Citation741 F.2d 238
Decision Date05 July 1984
Docket NumberNo. 82-1390,82-1390
Parties-796, 85-1 USTC P 9273 UNITED STATES of America, Plaintiff-Appellee, v. Armen B. CONDO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Christine W.S. Byrd, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Armen B. Condo, pro se.

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

Before SNEED, KENNEDY, and SCHROEDER, Circuit Judges.

PER CURIAM:

We affirm the convictions for violating 18 U.S.C. Sec. 1341 (mail fraud through submission of false withholding forms), 26 U.S.C. Sec. 7206(2) (willfully aiding the preparation of false W-4 forms), and 26 U.S.C. Sec. 7205 (aiding the submission of fraudulent withholding exemption certificates).

Condo's first challenge to the tax laws derives from his alleged understanding of the constitutional reference to weights and measures and other references leading to his conclusion that current Federal Reserve notes are not valid currency, cannot be taxed, and are merely "debts." The Ninth Circuit has repeatedly rejected this theory as frivolous. United States v. Kelley, 539 F.2d 1199 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976); United States v. Gardiner, 531 F.2d 953 (9th Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 128 (1976).

Condo's other tax theories are equally frivolous. His assertion that 26 U.S.C. Sec. 7343 only applies to business entities and their employees ignores the word "includes" in the statute delineating the class of persons liable. The word "includes" expands, not limits, the definition of "person" to these entities. He asserts that the sixteenth amendment only allows taxing income from "sources" (entities and monopolies created by law), not persons. The sixteenth amendment authorization, however, is for a tax on income from whatever source derived.

Condo's various proposed jury instructions offered pro se were rejected by the trial court, and properly so.

We have previously addressed and denied Condo's selective prosecution claim. His indictment for both tax fraud and mail fraud was proper, since proof of different facts was required. United States v. Piascik, 559 F.2d 545, 551 (9th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); see also United States v. Miller, 545 F.2d 1204, 1216 (9th Cir.1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1549, 51 L.Ed.2d 774 (1977) (mail fraud and tax fraud convictions upheld where defendant signed false tax returns and submitted them to the IRS through the mails).

The district judge properly denied Condo's requested immunity for certain defense witnesses. The witnesses were themselves the target of prosecutorial investigation, see United States v. Turkish, 623 F.2d 769, 778 (2d Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981), and the refusal to grant immunity to defense witnesses did not deprive Condo of a fair trial. United States v. Alessio, 528 F.2d 1079, 1081-82 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976).

The district judge's refusal to dismiss for prosecutorial misconduct was not an abuse of discretion. There was no reversible error because of unauthorized persons present in the grand jury room. The case agent was there to aid the grand jury in handling bulky documents, his presence was fleeting, and any error was harmless. Condo was allowed to present his theories before the grand jury, and the Government's failure to present all exculpatory evidence is not a basis for dismissal. There is no showing of any prosecution misconduct so "flagrant" that the grand jury was "deceived." United States v. Wright, 667 F.2d 793, 796 (9th Cir.1982).

Condo's claims relating to the sixth amendment are likewise invalid. He was allowed to present his pro se instructions to preserve his constitutional theories on appeal. He showed no "special need," and there is no absolute sixth amendment right to both self-representation and assistance of counsel. United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981). The trial judge's refusal to allow him co-counsel status was not an abuse of discretion. Nor does Condo have a cognizable claim arising from his lack of counsel on appeal. Apparently, he argues that the trial judge should have ordered Your Heritage Protection Association (YHPA) to pay his counsel fees on appeal. While the appeal bond conditions may have made retention of counsel more difficult, and although Condo's in forma pauperis motion was denied, his sixth amendment rights do not appear violated; Condo could have retained counsel on his own.

Condo's most substantial argument is that the Government did not prove his mental state satisfied the willful or intent to defraud requirement of the statutes. He suggests he relied on the advice of counsel. He originally developed his theories, however, without help from the legal profession. Condo received some later advice from several lawyers who were also tax protesters. Condo dismissed two attorneys, YHPA's counsel Barrett and Channell, after they eventually advised him his constitutional objections would not hold up. Condo...

To continue reading

Request your trial
19 cases
  • U.S. v. Olano
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 9 Agosto 1995
    ...thus has not established any "special need" requiring the district court to permit him to participate at trial. See United States v. Condo, 741 F.2d 238, 239 (9th Cir.1984), cert. denied, 469 U.S. 1164, 105 S.Ct. 924, 83 L.Ed.2d 936 (1985) (per Both Olano and Gray assert that the prosecutio......
  • Williams v. Woodford
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Septiembre 2002
    ...transactional immunity to an indicted co-conspirator, or to a more marginal witness indicted on related charges"); United States v. Condo, 741 F.2d 238, 239 (9th Cir.1984) (the denial of immunity for defense witnesses that were themselves the target of prosecutorial investigation did not de......
  • Williams v. Woodford
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Septiembre 2002
    ...transactional immunity to an indicted co-conspirator, or to a more marginal witness indicted on related charges"); United States v. Condo, 741 F.2d 238, 239 (9th Cir.1984) (the denial of immunity for defense witnesses that were themselves the target of prosecutorial investigation did not de......
  • U.S. v. Dale, s. 91-3228
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 16 Junio 1993
    ...the position and reasoning of all other courts that have published decisions squarely on point. See, e.g., United States v. Condo, 741 F.2d 238, 239 (9th Cir.1984) (per curiam) (mail fraud and § 7206(2) offense), cert. denied, 469 U.S. 1164, 105 S.Ct. 924, 83 L.Ed.2d 936 (1985); United Stat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT