U.S. v. Drefke, s. 82-1706

• Decision Date: 07 June 1983
• Docket Number: Nos. 82-1706,82-1787,s. 82-1706
• Citation: 707 F.2d 978
• Parties: 83-1 USTC P 9354 UNITED STATES of America, Appellee, v. Paul M. DREFKE, Appellant. UNITED STATES of America, Appellee, v. Richard O. JAMESON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 978

707 F.2d 978

83-1 USTC P 9354

UNITED STATES of America, Appellee, v. Paul M. DREFKE, Appellant.

UNITED STATES of America, Appellee, v. Richard O. JAMESON, Appellant.

Nos. 82-1706, 82-1787.

United States Court of Appeals Eighth Circuit.

Submitted May 9, 1983.

Decided May 13, 1983.

Motion for Stay of Mandate Denied June 7, 1983.

Richard O. Jameson, pro se.

Paul M. Drefke, pro se.

Robert G. Ulrich, U.S. Atty., David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges.

PER CURIAM.

Paul Drefke and Richard Jameson were both convicted of failure to file income tax returns for the years 1979 and 1980 in violation of 26 U.S.C. Sec. 7203 and for filing false withholding exemption certificates for the years 1979, 1980 and 1981 in violation of 26 U.S.C. Sec. 7205. They were arrested at the same time but tried separately before juries, ¹ Jameson approximately two weeks after Drefke. Both were sentenced to two years in the custody of the Attorney General and placed on probation for three years. Because both raise a number of the same issues, we consider their appeals together. Both have filed lengthy pro se briefs with numerous attachments. We affirm all counts of both convictions.

Drefke and Jameson during calendar years 1979, 1980 and 1981 were employed by Roadway Express, Inc. in Strafford, Missouri. In 1979 Drefke had a gross income of $31,651.34 and in 1980 his gross income was $39,497.26. In 1979, Jameson had a gross income of $28,517.98, and in 1980 his gross income was $30,881.76. Both failed to file tax returns for these two years although they had previously filed tax returns for the years 1976, 1977 and 1978. In 1979, 1980 and 1981 Drefke and Jameson filed W-4 forms with their employer in which they claimed that they were exempt from federal income taxes and certified that they had not incurred a liability for federal income taxes in the preceding calendar year.

A five count indictment was returned against both men charging them with failing to file income tax returns for the two years ² and of filing the three false withholding exemption certificates. ³ The separate trials resulted in the convictions of both Drefke and Jameson on all five counts.

I.

Drefke and Jameson contend that 18 U.S.C. Sec. 3231 ⁴ does not confer jurisdiction on federal courts to try tax offenses. They argue that the general jurisdiction granted to federal courts in Sec. 3231 extends only to those federal crimes which appear in Title 18 of the United States Code. The argument is without merit.

In United States v. Spurgeon, 671 F.2d 1198 (8th Cir.1982), we held that Sec. 3231 confers jurisdiction on district courts to try charges of failure to file income tax returns. Id. at 1199. Section 3231 grants federal courts jurisdiction over "all offenses against the laws of the United States" (emphasis added). Article I, Section 8 of the Constitution and the Sixteenth Amendment empower Congress to create and enforce an income tax. Pursuant to that power, Congress made federal crimes of certain actions aimed at avoiding payment of income tax. See 26 U.S.C. Secs. 7201-7210. The district court, then, clearly had jurisdiction under 18 U.S.C. Sec. 3231 to try the appellants for the offenses of failure to file income tax returns and filing false withholding exemption certificates.

Drefke also charges that the district court "obstructed justice" by refusing to consider his jurisdictional challenge. This argument is frivolous, and can only be considered as advanced in bad faith because the district court reviewed and denied Drefke's jurisdictional motions in an order issued on April 2, 1982.

II.

Drefke and Jameson both argue that they were denied an administrative hearing on jurisdiction in violation of the Administrative Procedure Act, 5 U.S.C. Secs. 551 et seq. The Act does not impose a requirement of adversary hearings before an agency but only specifies the procedure to be followed when a hearing is required by another statute. Califano v. Saunders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir.1966). The Internal Revenue Code nowhere grants individuals who are under criminal investigation the right to a hearing to challenge the Service's jurisdiction over them. Therefore the provisions of the Administrative Procedure Act cited by Drefke and Jameson are inapplicable.

III.

Drefke argues that taxes are debts which can only be incurred voluntarily when individuals contract with the government for services and that those who choose to enter such contracts do so by signing 1040 and W-4 forms. By refusing to sign those forms, Drefke argues he is "immune" from the Internal Revenue Service's jurisdiction as a "nontaxpayer."

This is an imaginative argument, but totally without arguable merit. 26 U.S.C. Sec. 1 imposes upon "every" individual a certain rate of income tax depending upon their amount of taxable income. 26 U.S.C. Sec. 6012 states that unmarried individuals having a gross income in excess of $4,300, and married individuals entitled to make joint returns having a gross income in excess of $5,400 "shall" file tax returns for the taxable year. Considering Drefke's gross income for 1979 and 1980, he was clearly required to file tax returns for those years.

26 U.S.C. Sec. 6151 states that when a tax return is required to be filed, the person so required "shall" pay such taxes to the internal revenue officer with whom the return is filed at the fixed time and place. The sections of the Internal Revenue Code imposed a duty on Drefke to file tax returns and pay the appropriate rate of income tax, a duty which he chose to ignore.

IV.

Jameson argued during voir dire that he would be prejudiced by media coverage of the trial of Paul Drefke. Drefke's trial, which ended two weeks before Jameson's commenced, received substantial media attention. The district court conducted a lengthy voir dire examination to insure an impartial jury, and identified those who knew about Drefke's trial and excluded those persons from the jury. Jameson requested and the district court denied separate written and oral voir dire of the seventy-one prospective jurors.

It is well established that decisions regarding the form and scope of voir dire examination are left largely to the discretion of the district court. Ham v. South Carolina, 409 U.S. 524, 528, 93 S.Ct. 848, 851, 35 L.Ed.2d 46 (1973); United States v. Bowman, 602 F.2d 160 (8th Cir.1979). Absent a finding of substantial prejudice or an abuse of discretion appellate courts will not disturb such decisions. United States v. Kershman, 555 F.2d 198 (8th Cir.1977), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977). No substantial prejudice or abuse of discretion occurred in the present case from the district court's failure to permit a separate voir dire.

Jameson further argues that the district court erred in denying his motion to quash the entire jury panel for prejudice. During voir dire one venireman, in response to the question whether he could be impartial, stated: "I feel that if the individual was a mature individual with an income, he had knowledge that he should by law file an income tax return." We do not believe that this isolated comment caused substantial prejudice to Jameson and the district court's denial of his motion to quash the panel was not an abuse of discretion.

V.

Jameson argues that he was prejudiced by the district court's denial of several jury instructions including an instruction on "jury nullification," that would have told the jury that it had a right to ignore the court's instructions on the law in the case. He contends that the authors of the Bill of Rights intended the Sixth Amendment to incorporate such a right, and makes a lengthy argument based on historical precedents.

We have specifically held in other cases involving prosecutions under tax laws that there is no right to a jury nullification instruction. United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.1978); United States v. Wiley, 503 F.2d 106, 107 (8th Cir.1974). In Wiley we said, quoting earlier authority:

To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.

503 F.2d at 107.

Since the Supreme Court's decision in Sparf and Hanson v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), federal courts have uniformly recognized the right and duty of the judge to instruct the jury on the law and the jury's obligation to apply the law to the facts, and that nullification instructions should not be allowed. It would serve no useful purpose to examine the history of nullification instructions further, ⁵ or to engage in debate concerning the relationship between the general verdict and the court's instructions. The jury returned a general verdict against Jameson finding him guilty on all counts.

Jameson further argues that the district court erred in refusing to define the words "fraudulent" and "income". 26 U.S.C. Sec. 7205 makes it a crime to supply "false" or "fraudulent" information. ⁶ The government proceeded under the theory that the withholding exemption certificates submitted were false and the term "false" was defined by the district court. 26 U.S.C. Sec. 7203 uses the term "gross income" which was also defined by the district court in an instruction. Jameson's arguments that further definitions were required have no merit.

VI.

Drefke argues that 26 U.S.C. Secs. 7203 and 7205 giving rise to his conviction constitute punishment for failure to give self-incriminating information. Both the Supreme Court and the Eighth Circuit have held that the Fifth...