U.S. v. Main

• Decision Date: 22 June 1979
• Docket Number: No. 77-2232,77-2232
• Citation: 598 F.2d 1086
• Parties: 79-1 USTC P 9368 UNITED STATES of America, Plaintiff-Appellee, v. Robert MAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1086

598 F.2d 1086

79-1 USTC P 9368

UNITED STATES of America, Plaintiff-Appellee, v. Robert MAIN, Defendant-Appellant.

No. 77-2232.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1979.

Decided May 11, 1979.

Rehearing Denied June 22, 1979.

George Kaye, Paxton, Ill., for defendant-appellant.

Warren E. White, Danville, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and PELL and BAUER, Circuit Judges.

PELL, Circuit Judge.

This case raises an issue expressly reserved by the Supreme Court in G. M. Leasing Corp. v. United States, 429 U.S. 338, 359, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977): whether property seized by agents of the Internal Revenue Service without a warrant must be excluded from a subsequent criminal prosecution under the tax code. In order to decide this case, however, only one aspect of that issue need be considered, i. e., the retroactive effect of an exclusionary rule based on G. M. Leasing. The prosecution before us was for violations of I.R.C. § 7212(b), 26 U.S.C. § 7212(b). ¹

I. Factual Background

The defendant, Robert Main, was an incorporator, president, and registered agent of Main Cob Company, Inc. (the corporation). The corporation was the taxpayer involved in the I.R.S.'s collection investigation.

The corporation was formed in 1966, having been incorporated under Illinois law by the defendant, his wife (Bettie Main), and Mary Hansen, not a relative of the Mains. Forty-eight per cent of the stock was held by the Mains' children and fifty-two per cent by Mary Hansen and her children. From the record it appears that the corporation's main business was the buying of corn cobs and hauling them to a local plant where they were sold for processing. The corporation apparently conducted its business from the Mains' residence near Gibson City, Illinois. The corporation owned that residence prior to September 1973, when the property was conveyed by a quit-claim deed to John Main, son of the defendant and Bettie Main. According to Bettie Main's testimony the corporation ceased doing business late in 1975. It was dissolved on December 1, 1976, by the State of Illinois for failure "to file an annual report and pay an annual franchise tax."

In May 1976, the I.R.S. assessed the corporation for unpaid highway use taxes, 26 U.S.C. §§ 4481 Et seq., due between January 1970 and September 1974 and totalling $6,425.57. On July 23, 1976, a final notice before seizure was sent to the corporation. On August 24, the I.R.S. filed a notice of federal tax lien with the Recorder of Deeds of Ford County, Illinois, against the corporation for the May highway use tax assessments. On September 2, the corporation's account was assigned to Revenue Officer Tom McAuley for collection.

On October 7, 1976, a second notice of federal tax lien was filed for the highway use taxes and on October 13, McAuley and three other agents visited the defendant's residence. The defendant met the agents outside the house and McAuley demanded payment of the tax assessments. The defendant told McAuley he would have to collect the taxes from the corporation. McAuley replied that as far as he was concerned the defendant was the corporation. The agents then affixed seizure notices to a number of trucks and semi-trailers in the yard and to a 1975 Oldsmobile, used by the defendant as his personal automobile. ² According to McAuley, the defendant became upset at this and made threatening gestures, at which the agents withdrew. A notice of seizure, inventorying the vehicles tagged, was sent to the corporation at the Mains' address and the certified mail receipt was returned to McAuley signed by Bettie Main.

On October 29, the I.R.S. assessed the corporation for unpaid employee income tax withholdings, 26 U.S.C. §§ 3401 Et seq., and unpaid unemployment taxes, 26 U.S.C. §§ 3301 Et seq., totalling $57,669.80, and on November 5, notices of federal tax liens were filed for these taxes. During this period, McAuley learned that the corporation had entered into a contract to purchase a house in Gibson City which was being used as rental property.

The events which led to the defendant's prosecution began on November 11, 1976. McAuley called the Mains' house at approximately 8:00 a.m. and was told by Bettie Main that the defendant was gone for the day. At about 9:30 a.m., McAuley arrived at the Main residence with five other agents. He attempted to give Bettie Main some papers, including a copy of the October 13 notice of seizure and a release of all items previously seized, except the 1975 Oldsmobile. The Oldsmobile was parked in the driveway a few feet from the house and some twenty feet off the public road. Bettie Main asked McAuley whether he had a warrant and he told her he did not and did not need one. Acting on the earlier advice of her attorney, she refused to accept or sign a copy of the release, locked the Oldsmobile, and went into the house. McAuley left the papers inside a rear storm door of the house. According to Bettie Main and two of her children, the agents then walked around the house, out into a fenced side lot, and looked into and entered a garage and barn, before leaving the premises.

After leaving the Main residence, the agents went to Gibson City to make arrangements for towing the Oldsmobile. In addition, McAuley and another agent went to the rental property in Gibson City to post notices of seizure there. At the rental house, the agents identified themselves to the tenant, Alma Day, and told her their purpose. Mrs. Day said, "Come on in." Inside, the agents taped a notice of seizure to the inside of the window of the back door and proceeded to the front of the house. There, Mrs. Day requested that they tape the notice to the front window, rather than the door, so that her children would not tear the notice off. The agents complied with that request, served Mr. Day with a notice to pay rent to the I.R.S. when due, and left. The agents returned to the Main residence about 11:30 a. m. with a tow truck from Gibson City. They found the Oldsmobile still locked and parked in the driveway. The agents entered upon the Mains' premises with the tow truck operator and under their direction the car was towed to a garage in Gibson City for storage pending its sale.

The following morning, November 12, 1976, the defendant went to the garage where the Oldsmobile was being stored. Upon learning that the automobile was there, the defendant told the garage mechanic that he would be back. The mechanic told the defendant that the I.R.S. agents had instructed him to tell the defendant that it was unlawful for the defendant to remove the automobile, but that if the defendant wanted to do so, the mechanic was not to resist him. The defendant left, but returned half an hour later, opened the rear door of the garage, and drove the Oldsmobile away. Count I of the indictment charged the defendant with forcible rescue of the Oldsmobile.

Count II charged the defendant with forcible rescue of the rental house in Gibson City. The remaining facts leading to that charge are as follows. On or about December 9, 1976, the Days sent the monthly rental payment to the I.R.S. A few days later, the defendant called at the house to collect the rent and was informed of the seizure and the payment to the I.R.S. The defendant went through the house, tore down the notices of seizure, and told the Days to resume paying the rent to him. When the defendant left, Mr. Day called the I.R.S. and was told not to start trouble with the defendant and to go ahead and pay the rent to him until a new notice was posted.

The defendant was tried before a jury and found guilty on both counts. He was sentenced to imprisonment for one year on each count to run concurrently.

II. The Elements of Forcible Rescue

The defendant's two main contentions involve the lawfulness of the warrantless seizure of the Oldsmobile and the rental house by the I.R.S. agents. The first contention is that in order to prove that the defendant forcibly rescued property, the Government must show that the property had been seized lawfully. The defendant relies on Cooper v. United States, 299 F. 483 (3d Cir. 1924), for the proposition that, "lawful seizure . . . is a prerequisite (to unlawful rescue). And the lawfulness of the seizure must be shown." Id. at 484. The defendant, relying on G. M. Leasing, contends that the seizure was unlawful because the agents failed to obtain a warrant. But defendant has failed to recognize that the court in Cooper went on to say that one way to show the lawfulness of a seizure is to show that it was performed by one authorized to do so by virtue of his office. 299 F. at 485. Thus lawfulness of a seizure under § 7212(b) means only that it was performed by a proper official with general authority under the tax code to make the seizure; disputes over other aspects of the legality of the seizure are irrelevant to the elements of the crime of forcible rescue. As this court has noted, "If the rule were otherwise it would 'encourage violent self-help where civil remedies are admittedly available.' United States v. Scolnick, 392 F.2d (320, 326 (3d Cir.), Cert. denied sub nom. Brooks v. United States, 392 U.S. 931, (88 S.Ct. 2283, 20 L.Ed.2d 1389) (1968))." United States v. Harris, 521 F.2d 1089 (7th Cir. 1975). Here, it was shown that the seizure was made by agents of the I.R.S. and, therefore, was made "under (the Internal Revenue Code)" as required by § 7212(b). United States v. Harris indicates that the elements of the crime of forcible rescue, under § 7212(b), are: (1) seizure of property by one authorized to do so under the Internal Revenue Code, (2) the defendant's knowledge that the property has been so seized, and (3) a forcible retaking of the property by the defendant. The evidence supports the jury's verdict on each of these elements and, indeed, the defendant does not appear to dispute the facts as we have stated them, arguing only for...