U.S. v. Schmitz, 75--2056
| Decision Date | 09 September 1975 |
| Docket Number | No. 75--2056,75--2056 |
| Citation | 525 F.2d 793 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Noehl SCHMITZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Sarno, Hollywood, Cal., for defendant-appellant.
William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
REVIEW AND TENTATIVE FINDINGS OF FACT
Schmitz is an income tax objector. He shows devout dedication and seems not to be a mean fellow. But he has been convicted of income tax irregularities.
His defiance of the federal income tax laws has landed him in the Federal Correctional Facility at Lompoc, California. There, obviously his behavior is accepted as benign and he seems to have few restrictions imposed on him.
He plants his feet on this ground: The only thing one can get now for working for an employer is a federal reserve note or a check for which one can get only federal reserve notes. This, he says, is only printing press money, i.e., phoney money. If he could get old fashioned paper silver certificates or older gold certificates for his labor, he would be satisfied and pay his income taxes.
His fixation has led him to file income tax exemption certificates with his employer which asserted he would have no taxable income. And he declined to file year-end personal returns, as I understand it. And, he has for some time been earning wages which almost everyone else would consider taxable income.
At his trial a deputy public defender was appointed under the Criminal Justice Act as his adviser. He and the defender worked on the active defense in tandem, one pedalling forward, the other back-pedalling.
We seem to have a case of no defense to the charges in chief but only an imagined defense to the charges of the indictment. But it is said the trial judge stumbled along the way: he didn't provide a 'Magna Carta jury,' he erred in his instructions, and he was irascible to the extent of depriving defendant of a fair trial.
Of course, Bushel's case settled it that a judge is not permitted to force a jury to find a defendant guilty, but at the other end of the pole the jury has the inherent power to pardon one no matter how guilty. It exists, although we do not usually admit it.
So, it is that the alleged error of temper may have prevented the jury from violating its oath.
As stated above, at the trial, Schmitz represented himself, assisted by the federal public defender as an adviser. On appeal, he represents himself and he has 'accepted' co-counsel provided by his brother, Fred Schmitz, of Montana. Co-counsel is Robert Sarno of the firm of Fleishman, McDaniel, Brown & Weston. Sarno has already received $2,000 on account and will receive, he says, $3,000 more from the brother for his legal services.
Also, it appears that Schmitz by some means, probably other than his own, can provide bail for himself but he contends he can't find a dollar for the transcript of evidence on appeal. So he wants the U.S. Treasury to pay for his transcript on appeal. This is in an amount of not to exceed $1575. 1
Of course, the undersigned practiced law in a day when he had to defend the Schmitzes by appointment for no pay at all and when he had to be out of pocket as well. It was a day when, if you believed in a defendant's cause, you did not send him away for lack of money. It has been suggested to Mr. Sarno that his firm might want to pay for the transcript out of its $5,000. But he says that the partners in Fleishman, McDaniel, Brown & Weston, a California professional corporation, wouldn't permit him to do so. So it goes when lawyers incorporate. Maybe so, but any judge of this Court could find Schmitz excellent counsel even in the present stage of inflation for $3,000.00, leaving $2,000.00 for costs.
In the meagre record, now before us, the trial judge refers to transfers of property by Schmitz. At least, a house and a fairly modern truck were involved.
Under the circumstances, it seemed well to hold a hearing at Santa Maria, California, a short distance from Lompoc, on August 22, 1975. The purpose was to see if it was possible to negotiate an agreed statement of facts for the appeal and to inquire into the financial condition of Schmitz including his 'exproperty.'
Schmitz made quite a few statements about the house and car and the transfers 'in trust.' He talked but was not under oath. Of course, under the Criminal Justice Act we do not require a man to sell his home or his watch. But when the home is 'transferred in trust' to daughters we need to look closely, and a transfer in trust of a truck now seemingly used by a daughter for a recreational Counsel Sarno advises that if we probe further he will probably have to plead the fifth amendment for Schmitz. So be it. The only reason which Schmitz gives for his transfer (I summarize) is that he has been a life long fatalist or hypochondriac fearing death soon.
vehicle especially needs to be looked at.
As I see it now, Schmitz has put his conclusory affidavit of poverty into question, and I am not yet ready to grant relief under the Criminal Justice Act for the transcript. The burden of proof is his.
On the possibility of an agreed statement of facts, counsel Sarno says he was not the trial lawyer. So he cannot, be says, possibly agree to a statement. He has been offered a transcript of the colloquies of the trial judge which should be all he needs. The colloquy should be more favorable to Schmitz out of context than in it on this issue of irascibility.
The continued hearing set for Lompoc for September 11, 1975 is vacated. It will be reset for an early date on motion of appellant.
Tentatively, and only tentatively, I am of the view:
1. That more must be shown to proceed under the Criminal Justice Act.
2. That counsel and Schmitz could agree to an agreed statement of facts without prejudice to Schmitz.
3. That the appellant may not be entitled to bail because it seems doubtful that he is proceeding with due diligence on his appeal. 2
4. That appellant may be needlessly subjecting his appeal to dismissal if it is found he is not proceeding with due diligence.
The foregoing findings may be shown to be wide of the mark if Schmitz asks for a further hearing and he assumes the burden of proof on his financial status. I am puzzled that as of...
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