U.S. v. Pilla

Decision Date15 March 1977
Docket NumberNo. 76-1616,76-1616
Parties77-2 USTC P 9636 UNITED STATES of America, Appellee, v. Daniel M. PILLA, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Neal J. Shapiro, Minneapolis, Minn. and Daniel M. Pilla, St. Paul, Minn., on briefs for appellant.

Robert G. Renner, U.S. Atty., Francis X. Hermann, Asst. U.S. Atty. and Richard Fellows, Intern, Minneapolis, Minn., on briefs for appellee.

Before GIBSON, Chief Judge, and HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

On November 13, 1974 the federal grand jury for the District of Minnesota returned a one-count indictment against the defendant-appellant, Daniel M. Pilla, charging in substance that on or about August 10, 1974 the defendant unlawfully attempted and endeavored to rescue from premises described as Room B101, 230 E. 5th Street, St. Paul, Minnesota, certain property that had been seized by the Internal Revenue Service (IRS) under the provisions of the Internal Revenue Code of the United States, 26 U.S.C. § 7212(b). 1

The case was assigned originally to Chief United States District Judge Edward J. Devitt and was set down for arraignment. On November 22, 1974 the defendant, acting pro se, filed an affidavit of prejudice against Judge Devitt, which affidavit also involved District Judges Larson and Lord. The originally scheduled arraignment was not held.

In January, 1975 District Judge Donald D. Alsop went on the bench in Minnesota, and Judge Devitt assigned the case to him. The defendant promptly moved to disqualify Judge Alsop and requested that he be represented by Jerome Daly, a disbarred Minnesota attorney. 2 On June 20, 1975 the case came on for hearing before Judge Alsop on the motion to disqualify and for leave to the defendant to be represented by Daly and also for arraignment. Judge Alsop refused to disqualify himself and also refused to permit the defendant to be represented by Daly or other lay counsel. The defendant thereupon refused to plead, and a plea of not guilty was entered for him. 3

In July, 1975 a number of pretrial motions were filed on behalf of the defendant by Mr. Neal J. Shapiro of the Minneapolis Bar. The record available to us does not clearly reflect the circumstances in which Mr. Shapiro came into the case. We think it unlikely that the defendant employed him, and he may well have been appointed by Judge Alsop. In any event, the defendant did not immediately reject the pretrial services of Mr. Shapiro.

In April, 1976 hearings on preliminary matters, including motions, were conducted before Judge Alsop which hearings were attended by Mr. Francis X. Hermann, Assistant United States Attorney, by Mr. Shapiro and by the defendant personally. In the course of those hearings, which were characterized to some extent by verbal attacks by the defendant directed at the trial judge, it developed that Mr. Shapiro had received from the government all of the pretrial information that he needed. However, at the insistence of the defendant he withdrew all of the defendant's motions since the defendant was contending that the district court was without jurisdiction to try him. At one of the hearings the defendant discharged Mr. Shapiro and renewed his request to be represented by Daly or by certain other lay people who were members of an organization known as the Life Science Church of which defendant and Daly are ministers. That request was denied. The district court appointed Mr. Shapiro to serve as stand-by counsel for the defendant and directed Shapiro to attend the trial and to be available at all times should the defendant decide to accept his services or to call upon him for assistance. The case was set for trial on May 6, 1976.

On that day the defendant appeared and filed a pro se motion for a dismissal of the indictment on the ground that he had been denied a speedy trial as guaranteed by the sixth amendment to the Constitution. That motion was denied, and the trial began. It was concluded on May 6.

Mr. Shapiro was present throughout the trial and was available to the defendant. Although the defendant stated repeatedly that he did not know how to defend himself, he steadfastly refused to accept the services of Shapiro and made repeated demands to be represented by lay counsel, notably Daly, who was present in the courtroom. Those demands were rejected.

Defendant's participation in the trial was negative, hostile and abusive toward the court to the point of contempt. The defendant refused to cross-examine government witnesses on the ground that he did not know how to do so. He called no witnesses and did not take the stand. He attempted to make a closing argument characterized by attacks on the trial judge and on the course of the proceedings. When Judge Alsop quite properly refused to permit the defendant to proceed along those lines, defendant closed his argument.

The district court instructed the jury as to the law of the case, and after short deliberation the jury found the defendant guilty. On July 20, 1976 the district court sentenced the defendant to imprisonment for one year. At the sentencing hearing the defendant took advantage of his right of allocution to deliver a final diatribe against the trial judge.

From what has been said it is clear that the case presented difficult problems of trial management, and we think that Judge Alsop handled those problems properly and with commendable patience and tact.

This appeal has been submitted to us without argument. We have before us, in addition to briefs filed by the government, the record in the case, including transcripts and exhibits, a brief filed on defendant's behalf by Mr. Shapiro, and a brief filed by the defendant pro se which may well have been prepared by Mr. Daly.

For reversal, the defendant brings forward a number of assignments of error, namely:

1. That the defendant was denied his right to a speedy trial.

2. That the district court erred in refusing to permit the defendant to be represented by lay counsel, including Daly.

3. That the district court erred in admitting certain evidence.

4. That the verdict and the judgment based thereon cannot be sustained because the seizure of defendant's property was illegal.

5. That the evidence was insufficient to sustain the verdict.

I

We take up, first, the claim that the evidence was insufficient to sustain the verdict. In evaluating that claim we view the evidence in the light most favorable to the government and are required to give to the government the benefit of all inferences favorable to it that may reasonably be drawn from the evidence, and ultimately the question is whether the verdict was sustained by substantial evidence. United States v. McColgin, 535 F.2d 471, 473 (8th Cir. 1976); United States v. Wisdom, 534 F.2d 1306, 1309 (8th Cir. 1976).

Apart from any ultimate inference of guilt or innocence, there is very little, if any, dispute about the facts of the case. The defendant resides in St. Paul and during the time with which we are concerned he was engaged in the business of commercial printing and engraving. He was operating under the trade name Collins Printing Company and was also operating A. J. Madsen Ruling & Binding Company, Inc. Both of those establishments were located on the same premises on East 5th Street which had been rented or leased by the defendant from the owner.

Defendant's place of business was in what appears to be a split level basement. The premises consisted of an office area, presumably containing furniture and fixtures and a shop area containing machinery and various other items such as ink, dies, and paper stock of various kinds. The office area was some few feet higher than the shop area and was connected to the shop area by a short flight of stairs at the head of which there was a door leading to the office. Apparently, entrance to the basement could be effected by the use of an elevator from street level. There were also two other means of ingress and egress. One of those consisted of doors opening on a freight ramp. The other consisted of a "movable wall" which was hinged and could be pushed inward.

From at least June 30, 1969 through 1973 and thereafter the defendant was an employer of labor, and he was required to withhold from the wages of employees federal income taxes and social security taxes, to file returns reflecting his withholdings, and to account for and pay over the withholdings to the government periodically. The defendant withheld the taxes and filed the returns during the period above mentioned, but he did not pay the taxes shown by the returns to be due. Consequently, those taxes plus statutory penalty and interest were duly assessed by the IRS. For the period between June 30, 1969 and December 31, 1973 the total assessments against "Daniel M. Pilla, Collins Printing Co., 230 E. 5th St., St. Paul, Minn." amounted to $10,209.35. The assessment for the fourth quarter of 1973 was made on April 1, 1974 and amounted to $74.76. A. J. Madsen Ruling & Binding Co., Inc. filed no withholding tax returns for any period after the first quarter of 1972. Returns were filed by Madsen for the third quarter of 1968, the third quarter of 1969, the second quarter of 1971, and the first quarter of 1972. Total assessments against that company amounted to $811.72.

Following its usual procedures the IRS made demands on the defendant for payment of the taxes in question and undertook to collect them by amicable means. The defendant did not deny that he owed the taxes, but in the course of earlier contacts between him and the IRS he professed to be financially unable to pay them. 4 However, as time went by the defendant's attitude toward his tax liabilities and toward the IRS changed and became belligerent. And by July, 1974 defendant had put up some signs in his place of business commanding federal agents and officers to stay...

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