U.S. v. Grabinski, 83-1475

• Decision Date: 06 March 1984
• Docket Number: No. 83-1475,83-1475
• Citation: 727 F.2d 681
• Parties: 84-1 USTC P 9201 UNITED STATES of America, Appellee, v. John M. GRABINSKI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 681

727 F.2d 681

84-1 USTC P 9201

UNITED STATES of America, Appellee, v. John M. GRABINSKI, Appellant.

No. 83-1475.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1983.

Decided Feb. 2, 1984.

Rehearing and Rehearing En Banc Denied March 6, 1984.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Robert E. Lindsay, James P. Springer, Attys., Tax Div., Dept. of Justice, Washington, D.C., for appellee; James M. Rosenbaum, U.S. Atty., Minneapolis, Minn., of counsel.

MacPherson & McCarville, P.A. by Donald W. MacPherson, Phoenix, Ariz., for appellant.

Before HEANEY and McMILLIAN, Circuit Judges, and HENLEY, Senior Circuit Judge.

HEANEY, Circuit Judge.

John M. Grabinski was convicted on two counts of failure to make federal income tax returns for calendar years 1975 and 1976 in violation of 26 U.S.C. Sec. 7203 (1976). He was sentenced to one year imprisonment plus payment of the costs of prosecution on each count, the sentences to run concurrently. Pursuant to this sentence, the court subsequently awarded the United States $6,446.09 in prosecution costs. Grabinski appeals from the judgment of conviction and the denial of his post-trial motion, 558 F.Supp. 1324, and challenges specific items included in the award of prosecution costs. We affirm Grabinski's conviction but reverse the award of prosecution costs in part.

Grabinski is no stranger to this Court. In September of 1981, a panel of the Court dismissed for lack of jurisdiction his appeal from the district court's denial of various pretrial motions. United States v. Grabinski, 664 F.2d 293 (8th Cir.1981) (decided without published opinion). On rehearing that decision en banc, the full Court followed the panel, holding that Grabinski had not raised a colorable claim of double jeopardy subject to interlocutory appeal nor any other ground for appellate review prior to his trial on the merits. United States v. Grabinski, 674 F.2d 677 (8th Cir.) (en banc; per curiam) (Heaney, J., concurring; Lay, C.J., with Stephenson and McMillian, JJ., dissenting in part), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982).

The facts underlying Grabinski's conviction are not in dispute: He filed federal income tax returns as required by law until 1975. In that year, he filed a return for calendar year 1974 without answering a question regarding foreign accounts and without a Form 4683, which was required of taxpayers with an interest in foreign bank accounts. He omitted this information to conceal his ownership of gold in a foreign account.

For calendar year 1975, he filed a Form 1040 containing for the most part objections to giving any information based on the fourth and fifth amendments to the United States Constitution. He objected to questions regarding his gross income, deductions, exemptions, and credits, but entered the figure 6540.72, explained in the margin as "taxable income in lawful U.S. dollars," as his taxable income. From this figure, he estimated his tax from the tax tables, subtracted two figures for a personal exemption and unexplained credits, and finally asserted that he was entitled to a $3,555.74 refund from the government. Attached to this Form 1040 were over one hundred pages of tax protest materials.

For calendar year 1976, Grabinski filed a Form 1040 similar to his form for 1975, except he asserted that his taxable income for the latter year was zero. Because he had his employer discontinue withholding money from his salary for federal taxes prior to January 1, 1976, he claimed no tax liability and no refund owing for 1976. Most of the remaining lines relating to gross income, deductions, exemptions, and credits had the notation "OBJECT" with reference in the margin to his fourth and fifth amendment claims. Over one hundred pages of tax protest materials also accompanied this form.

The criminal proceedings flowing from this apparent cat-and-mouse approach to the federal tax laws were as follows: In late 1980, a federal grand jury in the Eastern District of Missouri indicted Grabinski for failure to make an income tax return for calendar year 1976. Among numerous pretrial motions, Grabinski moved for dismissal for want of jurisdiction or for a change of venue to the District of Minnesota, alleging that he was a lifelong resident of St. Paul, Minnesota. The United States District Court for the Eastern District of Missouri denied the motion to dismiss but agreed that the place of trial should be St. Paul. ¹ See 18 U.S.C. Sec. 3237(b) (1982); Fed.R.Crim.P. 21(b). The Missouri court, sitting in St. Paul, later reconsidered Grabinski's earlier motion concerning jurisdiction and dismissed the case without prejudice on March 23, 1981. ² The court's ruling was apparently predicated upon a finding that Grabinski's residence when he filed his Form 1040 for 1976 was Minnesota, rather than Missouri as alleged in the indictment. The Internal Revenue Code requires personal returns to be filed in the district of one's legal residence or at an IRS service center for that district, 26 U.S.C. Sec. 6091(b)(1)(A)(i) & (ii) (1976), and federal law requires that a criminal prosecution must be brought at least initially in a district in which the offense was committed, see 18 U.S.C. Sec. 3232 (1982); Fed.R.Crim.P. 18. See also U.S. Const. art. III, Sec. 2 & amend. VI (constitutional venue and vicinage provisions).

On March 30, 1981, the government filed an information in the District of Minnesota charging Grabinski with two counts of failure to make tax returns for calendar years 1975 and 1976 respectively. Both counts alleged that the returns should have been made to the IRS office in St. Paul or the service center for the Minnesota district in Ogden, Utah. Grabinski raised numerous pretrial motions before the Minnesota district court, most of which were denied. He brought interlocutory appeals of several of the court's pretrial rulings which we dismissed for lack of appellate jurisdiction. See United States v. Grabinski, supra, 674 F.2d at 681. Following a five-day trial, the jury found Grabinski guilty on both counts. The Minnesota district court, in a detailed memorandum opinion, denied Grabinski's motion for post-trial relief from the jury verdict.

Grabinski raises several issues on appeal. Five of these contentions deserve specific comment. First, and most importantly, he alleges that the district court erred in denying his motion for a judgment of acquittal because the prosecution of the Minnesota information was vindictive. We disagree. Our earlier en banc decision did not reach the merits of this issue. United States v. Grabinski, supra, 674 F.2d at 680. Three judges at that time opined that the facts of the present case raised a presumption of prosecutorial vindictiveness and that such a claim was a collateral issue appealable before a final decision on the merits. Id. at 681-683 (Lay, C.J., with Stephenson and McMillian, JJ., dissenting in part). See Blackledge v. Perry, 417 U.S. 21, 25-29, 94 S.Ct. 2098, 2101-2103, 40 L.Ed.2d 628 (1974); United States v. DeMarco, 550 F.2d 1224, 1226-1227 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977). That opinion was given, however, without the benefit of the Supreme Court's decision in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), decided after our en banc opinion in this case.

In Goodwin, the government obtained a felony indictment to supersede previously filed misdemeanor charges after the defendant demanded a trial by jury. Id. at 370, 102 S.Ct. at 2487. The Supreme Court declined to adopt an inflexible rule presuming vindictiveness whenever a prosecutor increases the stakes of criminal punishment in a pretrial setting. Id. at 381, 102 S.Ct. at 2493. The Court stated, "[A] defendant before trial is expected to invoke procedural rights that inevitably impose some 'burden' on the prosecutor. * * * It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter." Id. Given the timing of the superseding indictment and the facts before it, the Court held that no presumption of vindictiveness was warranted. Id.

Without deciding whether in other circumstances pretrial activity by a prosecutor might raise a presumption of vindictiveness, we hold that such a presumption is not warranted here. The government in this case was faced with two separate acts of alleged misconduct, and Grabinski apparently spent substantial amounts of time from 1975 through 1977 in Fort Worth, Texas; St. Louis, Missouri; and St. Paul, Minnesota. Given the information possessed by the government when the Missouri indictment was obtained, including letters from Grabinski, he apparently could not have been prosecuted for his 1975 and 1976 violations in the same jurisdiction absent his consent, because he claimed residence in St. Louis when the form for 1976 was filed and resided in either Texas or Minnesota when the form for 1975 was filed. Thus, the initial decision to bring only one count in Missouri was reasonable.

Subsequent to this decision, Grabinski raised several motions in the Missouri district court, supported by affidavits and exhibits, alleging that he was a lifelong resident of St. Paul and thus could not be prosecuted for failure to make a return for 1976 in Missouri. The government did not accept Grabinski's change in position but continued its prosecution based on his earlier representations and the information in its file. Not until March 23, 1981, when the Missouri court sitting in St. Paul determined prior to Grabinski's trial that he in fact was a lifelong resident of St. Paul, could the government be sure that the prosecution of both alleged violations would be proper in the Minnesota forum. The government did not seek the March 23 decision dismissing its case without prejudice; indeed, it opposed Grabinski's claim as just another ploy to escape prosecution on one...