U.S. v. Johnson

• Decision Date: 10 August 1978
• Docket Number: No. 77-5408,77-5408
• Citation: 577 F.2d 1304
• Parties: 78-2 USTC P 9642 UNITED STATES of America, Plaintiff-Appellee, v. Donald D. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1304

577 F.2d 1304

78-2 USTC P 9642

UNITED STATES of America, Plaintiff-Appellee, v. Donald D. JOHNSON, Defendant-Appellant.

No. 77-5408.

United States Court of Appeals Fifth Circuit.

Aug. 10, 1978.

Buford C. Terrell, Lewis P. Terrell, Lubbock, Tex., for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, Asst. U. S. Atty., Dallas, Tex., Bob Slough, Asst. U. S. Atty., Forth Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Donald D. Johnson appeals from a judgment entered on a jury conviction on two counts of willfully failing to file an income tax return, in violation of Title 26, United States Code, Section 7203. Johnson submitted an IRS form 1040 for 1970, but the form contained no financial information from which his tax liability could be computed. The form disclosed only his name, address, and other basic identifying information. Attached to the form was a statement by Johnson which explained that he was not providing information concerning his tax liability, based on several legal theories challenging the federal tax system. In addition, he attached a check for two hundred dollars, as a "donation." The 1970 form and attachments were returned to Johnson by the IRS, with an explanation that it was not acceptable as an income tax filing because it did not contain sufficient financial information. The two hundred dollar "donation" was credited to an appropriate suspense account, pending a determination of Johnson's tax liability. Johnson did not attempt to file a return for 1971. Finding no merit in Johnson's assignments of error, we affirm.

I.

Initially, Johnson contends that the district court erred in denying his motion to dismiss the indictment on the ground of selective or discriminatory prosecution. He also contends that the district court erred in failing to require the government to produce IRS memoranda, which he alleges would have supported his selective prosecution defense.

Johnson's motion to dismiss the indictment on the ground of selective or discriminatory prosecution was properly denied by the district court. Generally, the decision whether or not to prosecute in a particular case must be left to the discretion of the prosecutor. The doctrine of separation of powers, inherent in our tripartite constitutional scheme of government, prohibits free judicial interference with the exercise of the discretionary powers of the attorneys of the United States over criminal prosecutions. United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc ), cert. denied sub. nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). See also United States v. Smith, 523 F.2d 771, 782 (5th Cir. 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976); United States v. Raven, 500 F.2d 728, 733 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); United States v. Ream, 491 F.2d 1243, 1246 (5th Cir. 1974). However, "(t)he judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government." United States v. Falk, 479 F.2d 616, 624 (7th Cir. 1965), quoting Stamler v. Willis, 415 F.2d 1365, 1369-70 (7th Cir. 1969), cert. denied sub. nom., Ichord v. Stamler, 399 U.S. 929, 90 S.Ct. 2231, 26 L.Ed.2d 796 (1970). See United States v. Butler, 297 U.S. 1, 62-63, 56 S.Ct. 312, 80 L.Ed. 477 (1936); Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803); Calder v. Bull, 3 Dallas 386, 1 L.Ed. 648 (1798). See also A. Hamilton, Federalist Paper No. 78, reprinted in Cooke (ed.), The Federalist 521, 524-25 (1961). Therefore, in the rare situation in which the decision to prosecute is so abusive of this discretion as to encroach on constitutionally protected rights, the judiciary must protect against unconstitutional deprivations.

This is not to say that adhering to constitutional principles is the sole province of the judiciary. In our tripartite system of government, the three branches are coequal, and the Constitution is superior to each branch. The supremacy of the Constitution, the supremacy of the "consent of the governed," requires that each branch adhere to constitutional principles in the exercise of its powers. ¹ Ideally, constitutionally, the judiciary measures the other branches' adherence to constitutional principles only secondarily, after the primary measure of adherence has been taken by the coequal branch itself. Thus, the prosecutor's decision to prosecute must always be made with constitutional limits on discretion in mind. Then, the judiciary performs the very limited role of secondarily measuring the primary decision of the prosecutor against constitutional standards. Cf. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Mr. Chief Justice Burger, writing for a unanimous Court, encapsulated this basic aspect of our tripartite government, in United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974):

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. . . . Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), that '(i)t is emphatically the province and duty of the judicial department to say what the law is.' Id., at 177.

The concept that the Constitution limits the prosecutor's discretion is not new to our jurisprudence. Nearly a century ago, the Supreme Court concluded that the administration of laws "with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances" constituted a denial of equal protection of the laws. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886). See also Oyler v. Boyles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). This admonition is applicable to the federal government through the equal protection component of the Fifth Amendment due process clause. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). A test for deciding when a decision to prosecute unconstitutionally denies equal protection of the laws was set forth by the United States Court of Appeals for the Second Circuit in United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974):

To support a defense of selective or disc(r)iminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i. e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as 'intentional and purposeful discrimination'.

This test has been recognized by this Court. See, e. g., United States v. Murdock, 548 F.2d 599 (5th Cir. 1977); United States v. Smith, supra. But see United States v. Kelly, 556 F.2d 257 (5th Cir. 1977). A majority of the remaining United States Courts of Appeals has also recognized this test. See, e. g., United States v. Ojala, 544 F.2d 940 (8th Cir. 1976); United States v. Legget & Platt, Inc., 542 F.2d 655 (6th Cir. 1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977); United States v. Bourque, 541 F.2d 290 (1st Cir. 1976); United States v. Peskin, 527 F.2d 71 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Scott, 521 F.2d 1188 (9th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976). The Berrios test is now the law in this Court and we apply it here.

We hold Johnson has failed to establish, prima facie, that he was prosecuted for conduct which other persons, similarly situated, were not generally prosecuted. Johnson urged in the district court, and urges on this appeal, that he was singled out for prosecution because he was a prominent figure in the so-called tax protest movement. ² The simple answer to Johnson'sargument is that the conduct for which he was prosecuted is not ordinarily ignored. Testimony here reflects that known tax reporting violations are not ignored and are, in fact, prosecuted to such an extent as prosecutorial resources allow. The record as a whole bears out this conclusion. The decision whether to proceed by civil or criminal means is made on the basis of several factors: the flagrancy of the violation, the amount involved, the special status of the taxpayer such as a CPA or attorney, the availability of limited investigative personnel, and other factors unique to a given case. Because of limited personnel resources, cases are assigned priorities according to the running of the applicable statute of limitations.

"( T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, supra 368 U.S. at 456, 82 S.Ct. at 506. See also Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Selection, moreover, is not impermissible solely because it focuses upon those most vocal in their opposition to the law which they are accused of violating. The fact that tax protestors are vigorously prosecuted for violation of the tax laws demonstrates nothing more than a legitimate interest in punishing flagrant violators and deterring violations by others. United States v. Ojala, supra; United States v....