U.S. v. Ojala

• Citation: 544 F.2d 940
• Decision Date: 08 November 1976
• Docket Number: No. 76-1052,76-1052
• Parties: 76-2 USTC P 9760, 1 Fed. R. Evid. Serv. 413 UNITED STATES of America, Appellee, v. William R. OJALA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 940

544 F.2d 940

76-2 USTC P 9760, 1 Fed. R. Evid. Serv. 413

UNITED STATES of America, Appellee, v. William R. OJALA, Appellant.

No. 76-1052.

United States Court of Appeals Eighth Circuit.

Submitted May 10, 1976.

Decided Nov. 8, 1976.

Jerod H. Peterson and Robert Lyman, Legal Rights Center, Minneapolis, Minn., for appellant.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.

Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

William R. Ojala appeals from his conviction after a trial by jury for willfully and knowingly failing to make timely filings of his personal income tax returns for the years 1969, 1970, and 1971 in violation of 26 U.S.C. § 7203. His principal contention on appeal is that he was targeted for prosecution because of his outspoken opposition to the Vietnam war, and that the District Court therefore erred in denying his several motions to dismiss the indictment for improper selective prosecution. He also contends (1) that the court improperly admitted prejudicial hearsay into evidence; (2) that the government's closing argument was prejudicially inflammatory; and (3) that the District Court failed properly to instruct the jury on the element of "willfulness."

Appellant is an attorney and former Minnesota state representative and was, during the late 1960's and early 1970's, a vigorous opponent of the Vietnam war. His activities included campaigning for elective office on an anti-war platform, introducing legislative anti-war resolutions, assisting the American Friends Service Committee, and serving as a draft resistance counselor. Appellant testified that it was during this period of anti-war activity that he decided not to file his state and federal personal income tax returns. He made his decision not to file for the years 1969, 1970, and 1971 despite his knowledge that he had sufficient income to require filing for those years and despite his knowledge of the consequences of such failure. At first, appellant's failure to file these returns was known only by his friends and casual associates, although he made no concerted effort to keep this fact private.

On April 15, 1970, appellant filed an application for an extension of time within which to file his 1969 income tax return, giving as his reasons that he was "involved in a one man law office and also serving as County Commissioner" and that the "(p)ress of county business and trial work in District Court (made) it impossible to complete an accurate return on or before the due date." On April 15, 1971, he wrote for an extension of time for his 1970 return, stating that "(t)he press of the legislative session makes it impossible to file federal return on time." In neither of these two applications for time extensions was any mention made of appellant's opposition to the war. Appellant testified that this failure to mention his opposition resulted from vacillation on the difficult decision whether to withhold his taxes.

Further uncertainty regarding the reasons for appellant's failure to file is created by the statements of James Schumacher, Ojala's former attorney. In July, 1973, Schumacher told an Internal Revenue Service agent, in appellant's presence, that appellant's public claim that his failure to file was because of his opposition to the war was a political ploy and that the real reason for the failure had been neglect, procrastination, and bad bookkeeping. Appellant remained silent when Schumacher made this statement, but did protest to Schumacher both before and after the interview that his reason for not filing was his opposition to the war.

In August, 1972, Minnesota tax authorities informed appellant by letter that they had no record of his having filed tax returns for the years 1969 through 1971. Appellant received this letter and apparently made no response. On October 17, 1972, the state officials asked federal tax officials for copies of appellant's 1969-71 federal tax returns. They were informed by the federal government on October 19, however, that there was no record of any filings for the years in question. Later that month, Ojala was informed by a reporter that his news service had information that appellant had not filed his tax returns for the years in question. Suspecting that the service had been informed of his failure to file for political reasons since he was involved in a close race for reelection, appellant called a press conference on October 30. He there announced that he had at first refused to file the returns because of his opposition to the war but that he had now decided to file late returns, which he in fact did in January, 1973.

Shortly after the press conference, agents of the Internal Revenue Service began an investigation of appellant's failure to file his returns, an investigation in which appellant fully cooperated. The indictment was filed in January, 1974. Prior to trial, appellant moved to dismiss the indictment because of improper selective prosecution. The District Court ¹ denied the motion following a hearing. The issue was unsuccessfully raised again at the close of the government's case and in a post-trial motion.

I. Selective Prosecution

Appellant contends that he was targeted for prosecution because he had exercised his First Amendment rights to protest the Vietnam war, and so was the victim of unconstitutional selective prosecution.

The burden of establishing prima facie the fact of selective prosecution lies upon the defendant, since "(t)he presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice." United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973) (en banc), quoted in United States v. Crow Dog, 532 F.2d 1182, 1196 (8th Cir. 1976); see United States v. Berrigan, 482 F.2d 171, 177 (3d Cir. 1973). In United States v. Swanson, 509 F.2d 1205, 1208-09 (8th Cir. 1975), we approved the two-pronged test of "intentional and purposeful discrimination" set forth by the Second Circuit in United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974):

To support a defense of selective or discriminatory 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." * * * Mere "conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." (Citations omitted.)

A. Intentional Discrimination

Appellant made a strong showing before the District Court that he was selected for prosecution while others similarly situated were not indicted.

Statistical evidence was presented showing that in the years 1969-71 there were approximately 51,000 tax delinquency investigations in Minnesota. During this period, some four thousand instances of possible criminal tax violations in Minnesota were brought to the attention of the IRS Intelligence Division. The Intelligence Division recommended only nine failure to file cases for criminal prosecution in the state.

Appellant also made a convincing showing that his case did not emanate from a routine processing through the Collection Division or Audit Division of the Internal Revenue Service but was rather initiated in the Intelligence Division immediately following his public announcement. ² We think appellant satisfied the first prong of the test for a prima facie showing of selective prosecution.

B. Purposeful Discrimination

Appellant contends that the evidence established an invidious purpose to prosecute him because of his exercise of his First Amendment right to speak out against the war. Such a purpose, if established, would fatally infect the prosecution by denying appellant the equal protection of the laws which is embodied in the due process clause of the Fifth Amendment. United States v. Falk, supra, 479 F.2d at 618-20; United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972). ³ See also Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972).

There seems to be no doubt that appellant's public disclosure of his failure to file in protest against the war triggered the prompt criminal investigation by IRS and the prosecution which followed. ⁴ The question to be resolved is whether the decision to prosecute was made in reprisal for his outspoken opposition to the war, as appellant contends, or whether the decision was made because appellant's offense was flagrant, as the government contends, and so was within nondiscriminatory standards. ⁵

In United States v. Crowthers, supra, the Fourth Circuit held that a prosecution under General Services Administration disorderly conduct regulations of anti-war protestors participating in a "Masses for peace" ceremony at the Pentagon was motivated by government opposition to the political views of the protestors and hence could not stand. Sixteen other groups had apparently been permitted to assemble on the same concourse and had not been prosecuted.

In contrast to what occurred in United States v. Falk, supra, the District Court here provided appellant a full hearing to develop his theory of selective prosecution in violation of First Amendment rights. We review its findings under the "clearly erroneous" standard. The government adduced substantial evidence that its speedy investigation was initiated because appellant, a...