U.S. v. Jagim

• Decision Date: 04 December 1992
• Docket Number: Nos. 91-2583,91-2789,92-1255,91-2787,91-2830,s. 91-2583
• Citation: 978 F.2d 1032
• Parties: -418, 93-1 USTC P 50,093 UNITED STATES of America, Appellee, v. Rusel J. JAGIM, Appellant. UNITED STATES of America, Appellee, v. Jay L. DEPEW, Appellant. UNITED STATES of America, Appellee, v. Jay L. DEPEW, Appellant. UNITED STATES of America, Appellee, v. Sylvester A. ZIEBARTH, Appellant. Sylvester A. ZIEBARTH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1032

978 F.2d 1032

71 A.F.T.R.2d 93-418, 93-1 USTC P 50,093

UNITED STATES of America, Appellee, v. Rusel J. JAGIM, Appellant.

UNITED STATES of America, Appellee, v. Jay L. DEPEW, Appellant.

UNITED STATES of America, Appellee, v. Jay L. DEPEW, Appellant.

UNITED STATES of America, Appellee, v. Sylvester A. ZIEBARTH, Appellant.

Sylvester A. ZIEBARTH, Appellant, v. UNITED STATES of America, Appellee.

Nos. 91-2583, 91-2787, 91-2789, 91-2830, 92-1255.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1992.

Decided Oct. 29, 1992.

Rehearing and Rehearing En Banc Denied Dec. 4, 1992.

Larry Von Wald, Rapid City, S.D., argued, for appellant Jagim.

Gary Colbath, Rapid City, S.D., argued, for appellant Depew.

Mitchell Johnson, Rapid City, S.D., argued, for appellant Ziebarth.

Robert Mandel, Asst. U.S. Atty., Rapid City, S.D., argued, for appellee.

Before BOWMAN, BEAM, Circuit Judges, and LARSON, ^* Senior District Judge.

BOWMAN, Circuit Judge.

Jay L. Depew, Sylvester A. Ziebarth, and Rusel J. Jagim were convicted in District Court ¹ of aiding and assisting false and fraudulent tax returns, 26 U.S.C. § 7206(2) (1988), and conspiracy, 18 U.S.C. § 371 (1988). Judgment also was entered against Jagim for perjury before a grand jury, 18 U.S.C. § 1623 (1988), and against Depew by a transfer from the District of Colorado under Federal Rule of Criminal Procedure 20 for willfully making and filing a false tax return, 26 U.S.C. § 7206(1) (1988). Judgment against Depew was entered upon his plea of guilty to the above charges, and against Ziebarth and Jagim upon guilty verdicts returned by a jury after trial, where Depew testified for the government.

Depew was sentenced to fifty-eight months imprisonment, plus one year on the Colorado charge to run concurrently, to be followed by three years of supervised release. Ziebarth was sentenced to prison for forty-two months and two years of supervised release. Jagim was sentenced to fifteen months in prison and two years of supervised release. All three appellants were ordered to pay special assessments in various amounts.

Jagim appeals his convictions and Depew and Ziebarth appeal their convictions and sentences. We affirm.

The convictions in this case arose out of a fraudulent tax shelter scheme. Ziebarth owned a herd of Simmental cattle and asked Depew, a disbarred lawyer and former certified public accountant, to structure a tax shelter involving a limited partnership in cattle breeding, whose activities would include the purchase of embryos from so-called "super cows" for transfer to surrogates.

Depew put together the program, and thus "E-Z Breeders" was born. The scam was marketed to potential investors, somewhat unsuccessfully. Among those who did "invest," however, was Ziebarth's nephew Jagim, who along with some of his friends did participate in the scheme. Documents, including tax forms for the "investors," were falsified and backdated to indicate that investments were made in the tax year before the date of the actual investment. This was done with some frequency for "investments" made after January 1, 1987, the effective date of the Tax Reform Act of 1986, which limited the benefits to be derived from tax shelters.

During an undercover investigation by a special agent of the Internal Revenue Service (IRS) who posed as a potential investor in another Depew-Ziebarth scheme, audio- and videotapes of various transactions and discussions were recorded, and numerous false tax documents were prepared. That investigation led to a federal grand jury probe, criminal indictments, and finally the convictions entered and sentences imposed by the court.

We will address the appeal of each defendant separately.

I.

Depew's brief on appeal raises numerous arguments pro se, some of the more imaginative of which are: he cannot be punished under the tax laws of the United States because he is a citizen of the sovereign state (the "Republic") of Idaho, now claiming "asylum" in the "Republic of Colorado"; the government in prosecuting him is acting on behalf of an agency, the IRS, that is controlled by a foreign entity; the court had no authority to decide this case because, among other reasons, "there is no nexus, i.e., voluntary contract between [Depew] and the real parties of interest nor IRS," Brief of Appellant Depew at 14; and the tax sought is an excise tax but the tax law does not state what "privilege" is being taxed.

These issues are completely without merit, patently frivolous, and will be rejected without expending any more of this Court's resources on their discussion.

Through appointed counsel, Depew raises three additional issues. First, Depew appeals the District Court's refusal to permit him to withdraw his guilty pleas. Depew entered guilty pleas in the South Dakota case on October 17, 1990, and in the Rule 20 case from Colorado on March 4, 1991. On June 28, 1991, after testifying for the government at the trial of Jagim and Ziebarth in March 1991, Depew moved to withdraw the guilty pleas because his research since entering the pleas led him to believe that the statutes under which he was charged did not apply to him because he is not a Fourteenth Amendment citizen. At a hearing on July 5, 1991, the motion was denied.

The District Court had discretion to "permit withdrawal of the plea upon a showing by [Depew] of any fair and just reason." Fed.R.Crim.P. 32(d). We will not reverse the District Court's decision to deny Depew's motion to withdraw his guilty plea unless we find that the court abused its discretion. United States v. Morrison, 967 F.2d 264, 268 (8th Cir.1992). ² Depew argues that the District Court abused its discretion because he had no assistance of counsel on his motion to withdraw, no evidentiary hearing was held, his motion was summarily denied without findings or conclusions, and "no determination was made by the Court at that juncture as to whether or not Federal Rules of Criminal Procedure Rule 11 had been satisfied." Brief of Appellant Depew at 27.

The record demonstrates that Depew waived his right to assistance of counsel on the motion. He filed a motion to dismiss retained counsel on the same day he moved to withdraw his guilty plea. The court was reluctant to grant the motion to dismiss, but did so because counsel was retained and it was Depew's prerogative to dismiss him. The record does not indicate, nor does Depew argue, that he requested appointment of counsel for a hearing on his motion. Further, although he was a disbarred attorney, Depew did have legal training and a knowledge of the criminal justice system. See United States v. Yagow, 953 F.2d 427, 431 (8th Cir.1992) (noting that factors to be considered when evaluating validity of waiver include "the defendant's education, his knowledge of or previous contact with the criminal justice system"), cert. denied, --- U.S. ----, 113 S.Ct. 103, 121 L.Ed.2d 62 (1992). It is apparent from the record that he was using that knowledge to disrupt and manipulate the legal process, actions that the court had no obligation to tolerate. See id. at 431-32. Viewing the facts and circumstances of this situation as a whole, it is clear that Depew voluntarily, intelligently, and knowingly waived his right to counsel on his motion to withdraw his guilty plea. See id. at 431.

Depew has made no showing in this Court that his original pleas were not taken in compliance with Federal Rule of Criminal Procedure 11, nor has he demonstrated why the court should have been required to revisit the plea-taking hearing at the time of the motion to withdraw. Further, an evidentiary hearing, and concomitant findings and conclusions, are not required where, as here, "the allegations in the motion are inherently unreliable, are not supported by specific facts or are not grounds for withdrawal even if true." United States v. Thompson, 906 F.2d 1292, 1299 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 530, 112 L.Ed.2d 540 (1990).

While there are several factors that may be taken into account when considering a motion to withdraw a guilty plea, see, e.g., United States v. Boone, 869 F.2d 1089, 1091-92 (8th Cir.), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47 (1989), Depew cannot get past the most critical test: he has not demonstrated "any fair and just reason" for withdrawal of his pleas. Fed.R.Crim.P. 32(d); see also Boone, 869 F.2d at 1091. Such a showing is not even conceivable on the grounds Depew alleged, thus the District Court could not have abused its discretion in denying the motion.

Depew next argues that he was effectively deprived of assistance of counsel at his sentencing because of the District Court's failure to grant a continuance. We disagree.

Depew's sentencing was continued several times, for the convenience of both counsel and the court, from March 1991, when he entered his final plea (on the Colorado charge) and complied with his obligations under the plea agreement by testifying at the trial of his coconspirators. After these continuances, the sentencing date was finally set for July 1, 1991. On June 28, 1991, a few days before the scheduled sentencing, Depew dismissed his retained counsel. On July 1, Depew appeared for sentencing and advised the court that he did want assistance of counsel, just not the previously retained counsel who had been with the case since the beginning. The court noted: "So we have been waiting to sentence you since October of 1990 and you have had, in the Court's opinion, ample opportunity to prepare for this sentencing and all you have been doing is stalling and taking every advantage of the process for your own benefit." Transcript of Hearing of July 1, 1991, at 9-10. The court advised Depew of his right to counsel, retained or appointed, and gave Depew until the end of the week to make a decision.

On July 5, 1991, the court reiterated the importance of having counsel for sentencing and the folly of proceeding pro se, advised...