U.S. v. Richey, 88-3276

• Decision Date: 23 January 1991
• Docket Number: No. 88-3276,88-3276
• Citation: 924 F.2d 857
• Parties: -469, 59 USLW 2475, 91-1 USTC P 50,055 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence M. RICHEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 857

924 F.2d 857

67 A.F.T.R.2d 91-469, 59 USLW 2475, 91-1

USTC P 50,055

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence M. RICHEY, Defendant-Appellant.

No. 88-3276.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 6, 1990.

Decided Jan. 23, 1991.

Christopher Tait, Yakima, Wash., for defendant-appellant.

Carroll D. Gray, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked to decide whether prosecution and conviction of a former Internal Revenue Service employee, for willfully disclosing to the public information about a certain federal income tax return, violates his first amendment right to freedom of expression.

I

Lawrence Richey was an Internal Revenue Service ("IRS") agent for approximately twenty-five years. In 1970, he audited Alan McDonald, who was then an attorney in private practice. After Richey examined McDonald's income tax returns for the years 1967-69, the IRS assessed $1,033.33 in additional taxes. McDonald paid the assessment.

After retiring from the IRS in 1981, Richey joined a private tax preparation service. He soon became involved in a tax shelter scheme and was indicted in 1985 for conspiracy to defraud the government and for aiding and assisting in the preparation of false and fraudulent tax returns.

Richey's case came to trial before a jury in 1987. Presiding as judge was the same Alan McDonald, who had become a United States District Judge for the Eastern District of Washington. Richey did not bring a motion to recuse Judge McDonald nor did Judge McDonald recuse himself. The jury found Richey guilty as charged.

Judge McDonald sentenced Richey to a term of probation. As a condition of probation, Judge McDonald enjoined Richey from making derogatory remarks about the United States government.

Richey's probation condition attracted local press attention. Bill Morlin, a reporter for the Spokesman-Review and Spokane Chronicle newspapers, called Richey and asked him why he thought Judge McDonald had imposed the controversial condition of probation upon him. Morlin would later testify that Richey responded with the following explanation: "Well, I'll tell you why. When I worked for the IRS I once audited Alan McDonald's taxes and further, that [sic ] I found discrepancies in his tax returns." Morlin further testified that Richey said: "I kind of get the feeling that [Judge McDonald wanted] retribution." Morlin used Richey's statements in a news article, which was published on the front page of both the Spokesman-Review and the Spokane Chronicle on October 7, 1987.

On the same day that the newspaper article appeared, Richey spoke to two other people in the local press about his "retribution" theory. Robert Lowery, News Director for KBBO and KSRE radio stations in Yakima, Washington, testified that Richey stated, in an interview on October 7, 1987, that he had audited Judge McDonald. Rodney Lyle Smith of KNDO television in Yakima also testified that Richey stated that he had audited Judge McDonald some fifteen years earlier and assessed some additional taxes upon him.

On June 15, 1988, a federal grand jury filed a three-count indictment, charging Richey with willfully disclosing tax return information in violation of I.R.C. Sec. 7213. Prior to trial, Richey filed a motion to dismiss the indictment on the grounds that, among other things, section 7213 violated his first amendment right to freedom of expression. Richey also filed a motion to remove the Assistant United States Attorney assigned to prosecute the case. The district court denied both motions. After a bench trial before Judge Hupp of the Central District of California, sitting by designation in the Eastern District of Washington, Richey was found guilty of violating section 7213.

Meanwhile, Richey appealed his earlier conviction for conspiracy to defraud the IRS and aiding and assisting in the preparation of false and fraudulent tax returns. Richey claimed, among other things, that the probation condition violated his first amendment right to free speech and that Judge McDonald had abused his discretion by not recusing himself sua sponte. This court concluded that the probation condition issue was moot by the time the case reached us because Richey had been resentenced to a new term of probation that did not include the condition. See United States v. Richey, 874 F.2d 817 (9th Cir.1989) (memorandum disposition). We also determined that Judge McDonald did not abuse his discretion by not recusing himself sua sponte from Richey's case. Id.

Richey now appeals from his conviction for violation of section 7213. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

Richey contends that the district court erred by denying his motion to dismiss the indictment because section 7213, as applied, violated his first amendment right to freedom of expression.

A

The first amendment's guarantee of freedom of speech encompasses a broad spectrum of form and type of expression. While a "major purpose of [the] Amendment [is] to protect the free discussion of governmental affairs," Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436-37, 16 L.Ed.2d 484 (1966), the amendment also protects an individual's interest in self-expression. See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 534 n. 2, 100 S.Ct. 2326, 2331 n. 2, 65 L.Ed.2d 319 (1980). The fact that the majority of a community may find an idea politically, intellectually, or morally offensive does not shield the idea from first amendment protection. See, e.g., Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 1435-36, 51 L.Ed.2d 752 (1977). Accordingly, we protect expression as diverse and unique as burning of the American flag, see Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 2536, 105 L.Ed.2d 342 (1989), public announcement of boycott violators, see NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-10, 102 S.Ct. 3409, 3423-24, 73 L.Ed.2d 1215 (1982), and live entertainment including nude dancing, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981).

However, first amendment rights are not without some constraints. The government may properly limit speech when compelling government interests outweigh the free expression interests of the speaker. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841, 98 S.Ct. 1535, 1542, 56 L.Ed.2d 1 (1978). Our task, therefore, is to identify the relevant interests, and then to determine, under established first amendment principles, whether governmental interests outweigh those of the speaker in this case.

B

We discern three relevant interests in the present case. First, Richey has an undisputed interest in a fair trial, which includes the right to have an unbiased judge. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927) ("it certainly violates the Fourth Amendment, and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case"); see also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). ¹ In Lavoie, a civil case, the Supreme Court concluded that Aetna's due process rights were violated when an Alabama Supreme Court justice participated in an appeal of an Aetna case while the justice had two lawsuits pending against other insurance companies, involving similar issues, at the same time. See Lavoie, 475 U.S. at 824-25, 106 S.Ct. at 1586-87. Here, in a criminal trial, Richey's due process interest was clearly substantial. ² Richey also has an interest, as a citizen, in commenting upon matters of public concern. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). "[S]peech on public issues occupies the 'highest rung of the hierarchy of First Amendment values' and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3426, 73 L.Ed.2d 1215 (1982)).

The potential bias of a judge is clearly a matter of public concern. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 835-37, 98 S.Ct. 1535, 1539-40, 56 L.Ed.2d 1 (1978). There, the Virginian Pilot, a Landmark newspaper, published an article about a pending investigation of a state judge by the Virginia Judicial Inquiry and Review Commission. The article identified the state judge under investigation. Landmark was subsequently indicted, convicted, and fined for the article, as the identification of a judge under investigation was a violation of Virginia state law. The Supreme Court reversed the conviction. "Whatever differences may exist about interpretations of the First Amendment," the Court observed, "there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Id. at 838, 98 S.Ct. at 1541 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966)). This includes the operation of the courts and judicial conduct of judges; indeed, such topics are "matters of utmost public concern." Id. at 839, 98 S.Ct. at 1541-42. ³ There can be no doubt that, in the case at hand, the public would be concerned about any potential judicial bias, and thus the topic was one in which Richey had a cognizable interest in discussing.

Richey also invokes the public's interest in being informed as a justification for his statements to the press. Indeed, "[b]y protecting those who wish to...