U.S. v. Hopper
| Decision Date | 20 May 1999 |
| Docket Number | 97-10457,97-10515,97-10527,97-10495,Nos. 97-10445,97-10494,97-10496,97-10463,s. 97-10445 |
| Parties | -2603, 99 Cal. Daily Op. Serv. 3731, 1999 Daily Journal D.A.R. 4791 UNITED STATES of America, Plaintiff-Appellee, v. Alice HOPPER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Terry Ingram, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. George Kendall Reed, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. David L. Ries, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. George Loren Reed, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Janice Mallen, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Robert McKendrick, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Roger Ardell Knight, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Patience Milrod (On the Briefs), Milrod & Phillips, Fresno, California, for defendant-appellant Alice Hopper.
Gary L. Huss, Wild, Carter & Tipton, Fresno, California, for defendant-appellant Terry Ingram.
Anthony P. Capozzi, Law Offices of Anthony P. Capozzi, Fresno, California, for defendant-appellant George Kendall Reed.
Eric K. Fogderude, Fletcher & Fogderude, Fresno, California, for defendant-appellant David Lee Ries.
Dennis P. Riordan, Riordan & Rosenthal, San Francisco, California, for defendant-appellant George Loren Reed.
Kevin G. Little, Fresno, California, for defendant-appellant Janice Elizabeth Mallen.
Margaret A. McKnight, Fresno, California, for defendant-appellant Robert A. McKendrick.
Katherine Hart and Steven L. Crawford (On the Briefs), Law Offices of Katherine Hart, Fresno, California, for defendant-appellant Roger Ardell Knight.
Jonathan B. Conklin, Assistant United States Attorney, Fresno, California, for plaintiff-appellee United States.
Carl M. Faller, Jr., Assistant United States Attorney, Fresno, California, for plaintiff-appellee United States.
Appeals from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-95-05174-1-OWW, D.C. No. CR-95-05174-1-OWW, D.C. No. CR-95-05174-4-OWW, D.C. No. CR-95-05174-2-OWW, D.C. No. CR-95-05174-3-OWW, D.C. No. CR-95-05174-9-OWW, D.C. No. CR-95-05174-8-OWW, D.C. No. CR-95-05147-OWW
Before: Alfred T. Goodwin and Stephen S. Trott, Circuit Judges, and Samuel P. King, District Judge. 2
Alice Hopper ("Hopper"), Terry Ingram ("Ingram"), George Kendall Reed ("Kendall Reed"), David Ries ("Ries"), George Loren Reed ("George Reed"), Janice Mallen ("Mallen"), Robert McKendrick ("McKendrick") and Roger Knight ("Knight") (collectively "Appellants") appeal
their convictions and sentences for conspiracy to obstruct proceedings before an agency in violation of 18 U.S.C. § 371, obstruction of proceedings before an agency in violation of 18 U.S.C. § 1505, false personation of a government official in violation of 18 U.S.C. § 912, and HUD fraud in violation of 18 U.S.C. § 1010. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm in part, reverse in part and remand this case to the district court for further sentencing proceedings in conformity with this opinion.
Appellants are members of, or were otherwise associated with, the Juris Christian Assembly ("JCA"). The JCA was established by the late Everett Thoren ("Thoren"), who convinced his followers that the JCA was a tax exempt religious organization. Originally established in Oregon, Thoren moved the JCA to a warehouse owned by George Reed in Modesto, California. JCA members would place all their property in a trust with the JCA appointed as trustee. The JCA would pay its members' bills and transfer the remaining money back to its members, minus an administrative fee of ten percent. Because of the JCA's purported religious status, JCA members declared themselves tax exempt.
The IRS assigned IRS agent Mary Ryan ("Ryan") to investigate and collect unpaid taxes from Ingram. Ryan placed a IRS tax levy on Ingram's wages from Ingram's employer Modesto Toyota. Thoren promised Ingram that the JCA would "take care" of the wage levy. Shortly thereafter, Ries and another individual went to Modesto Toyota, and demanded that the IRS levy be removed. Modesto Toyota refused. Subsequently, Ries and Knight prepared a packet of documents, which were signed by George Reed, Mallen, McKendrick, Knight, and Ries and mailed to Ryan by Hopper. These documents included: (1) an arrest warrant for Ryan; (2) requests for admissions; (3) a complaint demanding a refund of money garnished from Ingram's wages; (4) a verification form, informing Ryan that if she tried to enforce the levy she would be tried and have a sentence imposed upon her; (5) a letter informing Ryan that the levy was unconstitutional; (6) a letter informing Ryan that a court-martial had been conveyed; (7) an order stating that the levy constituted a declaration of war; (8) a letter requiring Ryan to respond to the charges; and (9) a pamphlet on "Silent Weapons for Quiet Wars." Many of these documents purported to be issued by the Solicitor General's Office, the Department of Justice, and the War Department.
After receiving the documents in the mail, Ryan checked the status of Ingram's tax liabilities. She learned that the IRS had received two "Article 1 Section 2" warrants for the amount of the wage levies and had applied those warrants in satisfaction of Ingram's debt. Ryan requested the warrants, determined they were worthless homemade checks, and reinstated Ingram's debt.
George Reed failed to pay more than $100,000 in withholding taxes he had collected from his employees at Reed Trenching. With fees and interest, that amount grew to over $416,000. IRS agent Michael Cash ("Cash") was assigned to investigate and collect George Reed's taxes. Cash caused liens to be filed against George Reed's property in Modesto. Assistant United States Attorney Diana Noweski ("Noweski") was assigned to prosecute the matter on behalf of the IRS. Noweski obtained a judgment in federal court against George Reed and sought to foreclose the judgment lien. Later, Noweski received a package of documents similar to those received by Ryan, including an order of arrest and a complaint claiming that Noweski was conspiring against the United States.
Shortly after Noweski received the documents, George Reed's son Kendall Reed went to the U.S. Marshal's Service and In December 1993, Kendall Reed went to the Stanislaus County Recorder's office to have the liens removed from George Reed's land. Karen Mathews ("Mathews"), the county recorder, refused to remove the liens. George Reed also went to see Mathews to have the liens removed, but she again refused to remove the liens. Previously, Mathews had received a letter from Knight that quoted the Supreme Court decision in Simmons v. United States, 390 U.S. 377, 390-91, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), to the effect that "it is intolerable that one Constitutional Right should have to be surrendered in order to assert another." Knight's letter threatened that "anyone who attempts to enforce a void 'unlaw' does so at their own peril and risk." After George Reed's visit, Mathews received another letter also quoting Simmons, which contained a bullet and threatened that if Mathews continued to enforce a "void 'unlaw,' " "the next bullet would be directed at [her] head." Later, Mathews was assaulted by Roger Steiner. Steiner scratched Mathews on the neck, held a gun to her head, dry fired the gun numerous times and told Mathews to file the documents she had been ordered to file. 3
attempted to pay the judgment against George Reed's property with a "Government Article I, §§ 1, 2 Warrant" similar to the spurious warrant received by the IRS on behalf of Ingram. Kendall Reed presented the warrant to Colleen Maloney ("Maloney") a U.S. Marshal's Service employee and insisted that she accept the warrant as satisfaction of the judgment. Maloney, however, refused to accept the warrant. Later, that same warrant was mailed to the Treasury Department in Washington D.C., but the IRS mailed the warrant back to George Reed, stating that it would not be accepted as payment.
Based on these actions, Appellants were indicted in a multi-count indictment, which among other charges alleged a conspiracy by Appellants to obstruct the due and proper proceedings of law before the IRS. The jury found Appellants guilty of the conspiracy, and this appeal followed.
Appellants argue that there was insufficient evidence to prove that they were members of a single conspiracy as opposed to two or more separate conspiracies. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
A single conspiracy "is one overall agreement to perform various functions to achieve the conspiracy's objectives." United States v. Shabani, 48 F.3d 401, 403 (9th Cir.1995) (internal quotation omitted). A formal agreement is not necessary; an agreement may be inferred from the Appellants' acts pursuant to the scheme, or other circumstantial evidence. See United States v. Clevenger, 733 F.2d 1356, 1358 (9th Cir.1984). "A single conspiracy may involve several subagreements or subgroups of conspirators." United States v. Bibbero, 749 F.2d 581, 587 (9th Cir.1984). To distinguish a single from a multiple conspiracy, we examine "the nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator's transactions; and the commonality of time and...
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