U.S. v. Ness, No. 80-1530

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore NELSON and CANBY; PER CURIAM
Citation652 F.2d 890
Parties81-2 USTC P 9621, 8 Fed. R. Evid. Serv. 1098 UNITED STATES of America, Plaintiff-Appellee, v. Raymond L. NESS, Defendant-Appellant.
Docket NumberNo. 80-1530
Decision Date07 August 1981

Page 890

652 F.2d 890
81-2 USTC P 9621, 8 Fed. R. Evid. Serv. 1098
UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond L. NESS, Defendant-Appellant.
No. 80-1530.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 7, 1981.
Decided Aug. 7, 1981.

Page 891

Morgan C. Taylor, Newport Beach, Cal., for defendant-appellant.

Paul H. Rochmes, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Fredrick M. Flam, Asst. U. S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before NELSON and CANBY, Circuit Judges, and WILKINS, * District Judge.

PER CURIAM:

Appellant Ness was charged with willfully filing a false W-4 form, in violation of 26 U.S.C. § 7205. The evidence showed that Ness filed an exempt W-4 claiming, under penalty of perjury, that he had had no income tax liability in the prior year, and expected none for the year in which he filed the W-4. That claim was false. The evidence further showed that Ness renewed his claim for exemption from withholding even after the Internal Revenue Service notified him that he was ineligible, and that he could be criminally prosecuted for falsifying his W-4.

We find all of Ness's arguments on this appeal to be without merit and, therefore, affirm.

Page 892

I

Selective Prosecution

Ness contends that, at a pretrial hearing, he made a nonfrivolous prima facie showing that he was a victim of selective prosecution, but was improperly denied the discovery and hearing necessary to prove his claim. Hence, Ness argues that his case should be remanded for an evidentiary hearing on that issue. See United States v. Oaks, 508 F.2d 1403 (9th Cir.1974). Ness is mistaken both as to the sufficiency of his showing and as to the adequacy of the pretrial procedures afforded him.

To succeed on a claim of selective prosecution a defendant has the burden of establishing that others similarly situated have not been prosecuted and that the allegedly discriminatory prosecution of the defendant was based on an impermissible motive. See United States v. Wilson, 639 F.2d 500, 503-04 (9th Cir.1981). Ness failed to make an adequate prima facie showing on either prong of that test.

While he showed that similarly situated members of his tax protest group had also been prosecuted, Ness did not show a single instance of a similarly situated but nonprotesting violator who had not been prosecuted. See United States v. Steele, 461 F.2d 1148, 1151-52 (9th Cir.1972). The fact that access to the Government's files might be helpful to a defendant seeking to prove discriminatory prosecution does not relieve him of the burden of making an initial showing, nor does that fact, in itself, entitle every defendant raising such a claim to discovery. 1 See United States v. Murdock, 548 F.2d 599, 600 (5th Cir.1977); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974); Steele, 461 F.2d at 1151-52. See also Fed.R.Crim.P. 16(a)(1)(C).

Ness also failed to suggest any discrimination in the decision to prosecute him. To make out a prima facie case of selective prosecution a defendant must show evidence of impermissible motive at some crucial stage in the procedures leading to the initiation of prosecution. Compare Steele, 461 F.2d...

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47 practice notes
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...1195 (9th Cir.1975) (citations omitted), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976); see also United States v. Ness, 652 F.2d 890, 892 (9th Cir.1981), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981); United States v. Wilson, 639 F.2d 500, 503 (9th Cir......
  • U.S. v. Sun Myung Moon, Nos. 755
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 13, 1983
    ...the district court, in its discretion, see id. at 1212, finds that both prongs of the test have been met. See United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981); United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978); B......
  • U.S. v. Armstrong, Nos. 93-50031
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 20, 1994
    ...held that the fact that information might be helpful does not get defendants over the discovery hurdle. See e.g., United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981). The showing required should be a colorable basis that dis......
  • U.S. v. Greene, Nos. 81-1625
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 31, 1983
    ...likely to receive, the attention of the media. United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978). See also United States v. Ness, 652 F.2d 890, 892 (9th Cir.1981); Johnson, 577 F.2d at Such holdings are justified on the grounds of the separation of powers. Since the decision to pro......
  • Request a trial to view additional results
47 cases
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...1195 (9th Cir.1975) (citations omitted), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976); see also United States v. Ness, 652 F.2d 890, 892 (9th Cir.1981), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981); United States v. Wilson, 639 F.2d 500, 503 (9th Cir......
  • U.S. v. Sun Myung Moon, Nos. 755
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 13, 1983
    ...the district court, in its discretion, see id. at 1212, finds that both prongs of the test have been met. See United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981); United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978); B......
  • U.S. v. Armstrong, Nos. 93-50031
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 20, 1994
    ...held that the fact that information might be helpful does not get defendants over the discovery hurdle. See e.g., United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981). The showing required should be a colorable basis that dis......
  • U.S. v. Greene, Nos. 81-1625
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 31, 1983
    ...likely to receive, the attention of the media. United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978). See also United States v. Ness, 652 F.2d 890, 892 (9th Cir.1981); Johnson, 577 F.2d at Such holdings are justified on the grounds of the separation of powers. Since the decision to pro......
  • Request a trial to view additional results

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