U.S. v. Mann

• Decision Date: 29 August 1989
• Docket Number: No. 86-2585,86-2585
• Citation: 884 F.2d 532
• Parties: -5632, 89-2 USTC P 9516, 28 Fed. R. Evid. Serv. 1280 UNITED STATES of America, Plaintiff-Appellee, v. Walter P. MANN III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 532

884 F.2d 532

64 A.F.T.R.2d 89-5632, 89-2 USTC P 9516,

28 Fed. R. Evid. Serv. 1280

UNITED STATES of America, Plaintiff-Appellee, v. Walter P. MANN III, Defendant-Appellant.

No. 86-2585.

United States Court of Appeals Tenth Circuit.

Aug. 29, 1989.

Rehearing Denied Oct. 17, 1989.

Glen R. Dawson, Asst. U.S. Atty. (Dee V. Benson, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Frances Smylie Brown, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.

Before McKAY, SETH and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant Walter P. Mann III, appearing pro se and assisted by appointed standby counsel, was convicted by a jury on four mail fraud counts in violation of 18 U.S.C. Sec. 1341, one count of wire fraud under 18 U.S.C. Sec. 1343, and three counts of willful failure to file income tax returns in violation of 26 I.R.C. Sec. 7203. Mann challenges these convictions on the grounds that 1) the evidence was insufficient to support the convictions, 2) the trial court erred by failing to instruct the jury regarding Mann's good-faith defense to the willful failure to file charge, 3) the trial court admitted unduly prejudicial exhibits, 4) the trial court refused to admit exhibits supporting Mann's legal position, 5) the trial court erroneously admitted the testimony of a summary witness for the government, 6) the prosecution of Mann was impermissibly selective, and 7) government misconduct prevented Mann from receiving a fair trial. Pursuant to our review of the final judgment of conviction under 28 U.S.C. Sec. 1291, we affirm in part and reverse in part.

Background

Walter Mann had filed income tax returns for the years 1965-1973, and 1975. According to Mann, however, he had engaged in research over this time period which led him to believe that he was not required to file income tax returns. His many theories include the asserted beliefs that 1) the United States Supreme Court has declared that the sixteenth amendment applies only to corporations, 2) the Internal Revenue Service (IRS) has no jurisdiction over him, 3) he is not a "person" within the meaning of 26 I.R.C. Sec. 7203, 4) wages are not income, 5) federal reserve notes are not legal tender, and 6) the income tax is voluntary. Mann testified extensively regarding the legal sources, including United States Supreme Court opinions, upon which he relied in formulating his asserted views. Mann was prosecuted in the instant case for his failure to file returns in the years 1979-81.

In addition to his personal use, Mann compiled the fruits of his tax research for use by others. To this end, Mann placed a classified advertisement in the Spotlight, a magazine with worldwide subscription, published in West Virginia. Rec. supp. vol. IV at 175. The ad read as follows:

I.R.S. QUIT FILING? Want to quit? Relax! USSCt declares 16th Amdt. applies only to Corporations. How to Plead it! Basics $20 M.O. only + SASE to: W.M. Box 715, St. George, Utah 84770.

Testimony revealed that a number of individuals responded to this ad and received the "basics" package; one testified that he received nothing. Mail deliveries of the Spotlight containing this ad formed the basis for the mail fraud counts.

In January 1982, Mann purchased a radio spot on station KDXU, which broadcasts its signal from the site of Dick's Cafe in St. George, Utah. The radio spot contained statements to the effect that the power of the IRS over individuals derived from fear and intimidation rather than any law. ¹ The spot did not advertise Mann's package of legal materials, did not solicit any funds, and did not refer to the Spotlight advertisement. This radio spot gave rise to the wire fraud count of the indictment.

I.

Mann challenges the sufficiency of the evidence with regard to his convictions on all counts. In evaluating each of these claims, we consider both the direct and the circumstantial evidence, and the reasonable inferences that can be drawn therefrom, in the light most favorable to the prosecution. United States v. Taylor, 832 F.2d 1187, 1192 (10th Cir.1987). With regard to the mail fraud charge, the government is required to prove two elements: a scheme to defraud, and the use of the mails for the purpose of furthering the scheme. Id. Mann argues that the government failed to prove the existence of a scheme to defraud.

A scheme or artifice to defraud "connotes a plan or pattern of conduct which is intended to or is reasonably calculated to deceive persons of ordinary prudence and comprehension." United States v. Washita Constr. Co., 789 F.2d 809, 817 (10th Cir.1986). Often, however, fraudulent intent is not susceptible of proof by direct evidence. Taylor, 832 F.2d at 1192. " 'In numerous cases it must be inferred from a series of acts and pertinent circumstances. One will not be heard to say that he did not intend the natural consequences of his conduct.' " United States v. Themy, 624 F.2d 963, 965 (10th Cir.1980) (quoting Crosby v. United States, 183 F.2d 373, 375 (10th Cir.), cert. denied, 340 U.S. 906, 71 S.Ct. 274, 95 L.Ed. 656 (1950)). Further, "whether a mail fraud defendant had the requisite criminal intent is, of course, a question for the jury." Themy, 624 F.2d at 965.

The government's expert on tax law, Mr. Chancellor, testified that the representation in the Spotlight ad--that the Supreme Court has declared that the sixteenth amendment applies only to corporations--is untrue. Supp. rec. vol. VI at 396. We agree and add that each of the views offered by Mann, whether found in his published materials or articulated additionally at trial, falls somewhere on a continuum between untrue and absurd. Nevertheless, " '[o]ne cannot be held to guilty knowledge of falsity of his statements simply because a reasonable man under the same or similar circumstances would have known of the falsity of such statements.' " Themy, 624 F.2d at 965 (quoting Elbel v. United States, 364 F.2d 127, 134 (10th Cir.1966), cert. denied, 385 U.S. 1014, 87 S.Ct. 726, 17 L.Ed.2d 550 (1967)).

Substantial evidence exists, however, from which the jury may reasonably have concluded that Mann made false representations with the requisite criminal intent, such intent being the "knowledge of the fact, or indifference to the possibility," that the representations were false. Themy, 624 F.2d at 967-68. Mann's previous filing of tax returns constituted evidence that despite his suggestion in the Spotlight ad, he knew that he and those similarly situated were under a duty to file. See United States v. Bohrer, 807 F.2d 159, 161 (10th Cir.1986). Mann testified that all of his beliefs, including the representation that only corporations are required to pay income tax, were based on his view of the jurisdiction of the courts and the IRS. Rec. supp. vol. VIII at 788, 790, 792. While Mann's advertisement offered his material to the general public, and while he testified that his theory of jurisdiction was capable of general use, id. at 799, Mann admitted on cross examination that he had testified in a previous trial that his jurisdiction theory was applicable only to him, not to others. Id. at 801.

Mann testified further that he believed jurisdiction to be dependent upon proof of U.S. citizenship, rec. supp. vol. VII at 567, and that he was not such a citizen, but was rather a "free inhabitant of this charter of Massachusetts and Connecticut," id. Mann persisted in his argument that he was not a citizen of the United States on cross examination, despite his admission that he was born in Nebraska and that he had characterized himself as a U.S. citizen on a personal history form during his service in the Air Force. Rec. supp. vol. VIII at 767-69.

IRS agent James Simonelli testified that after responding to the Spotlight ad, he received, among other things, a paper containing tax advice, with citation to case authority. Rec. supp. vol. IV at 53-55. The caption at the head of this document, admitted into evidence, read: "American Independent Bar Association. W.P.M. III, Box 715, St. George, Utah 84770. Law Review, 18 August 1980, Title 5 U.S.Code Governs U.S. Tax Procedure." Id. at 53. Although not stated explicitly, this caption permits an inference by the jury that Mann falsely represented himself as authorized to practice law, as "[a] good advertisement delivers its message by suggestion as clearly as by literal statement." Themy, 624 F.2d at 967. Given substantial evidence suggesting that Mann made misrepresentations either knowing them to be false, or with a reckless indifference as to their truth or falsity, we hold that the evidence was sufficient to support the jury's finding of guilt on the mail fraud counts.

Mann also claims that the evidence was insufficient to support his conviction on the wire fraud count. To support a wire fraud conviction, the government must prove that an interstate transmission by means of wire be "for the purpose of executing" a scheme or artifice to defraud. 18 U.S.C. Sec. 1343 (emphasis added); see United States v. Puckett, 692 F.2d 663, 669 (10th Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 (1982). Mann argues that, even assuming a scheme to defraud, the radio spot was not in furtherance thereof; the government argues that the transmission of Mann's spot during the time of the Spotlight scheme, and containing similar misrepresentations to those contained in Mann's published materials, is sufficient to support the jury's finding of guilt. Construing the evidence in the light most favorable to the government, we must reverse.

We have said that a wire transmission may be considered to be for the purpose of furthering a scheme to defraud "so long as the transmission is incident to the accomplishment of an essential part of a scheme." Puckett, 692 F.2d at 669. Clearly, there is no evidence, either direct or...