United States v. Bernstein
| Citation | 287 F. Supp. 84 |
| Decision Date | 21 June 1968 |
| Docket Number | No. 68-65-Cr.,68-65-Cr. |
| Parties | UNITED STATES of America v. Aaron BERNSTEIN. |
| Court | U.S. District Court — Southern District of Florida |
William A. Meadows, Jr., U. S. Atty., and Donald I. Bierman, Asst. U. S. Atty., Miami, Fla., for the Government.
Daniel S. Pearson, of Pearson & Josefsberg, Miami, Fla., for defendant.
ORDER DENYING MOTION FOR JUDGMENT OF ACQUITTAL
This is an order denying the defendant's motion for judgment of acquittal.1
On December 14, 1967 a revenue agent went to the defendant's home to attempt to collect $1,990.83 in back taxes. The agent had a levy for four assessments.2 After discussion with the defendant and a refusal to pay, the agent attempted to execute the levy by seizing the defendant's two Cadillacs. The defendant physically interfered and prevented the seizure. The defendant was subsequently charged with violating 18 U.S.C. § 2232 which provides:
Whoever, before, during, or after seizure of any property by any person authorized to make searches and seizures, in order to prevent the seizure or securing of any goods, wares, or merchandise by such person, staves, breaks, throws overboard, destroys, or removes the same shall be * * *.
The defendant's argument in support of his motion for judgment of acquittal hinges on the words of § 2232: "by any person authorized to make searches and seizure." The defendant contends that proof of the offense requires proof of the agent's "authorization," and that such proof is lacking in this case.
The government, in both its bill of particulars and during the trial, contended that the seizure was authorized by 26 U.S.C. § 6331. This statute provides in part:
If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax * * * by levy upon all property and rights to property * * * belonging to such person * * *.
The "notice and demand" referred to in § 6331 is that called for in 26 U.S.C. § 6303(a) which provides:
(a) General rule.—Where it is not otherwise provided by this title, the Secretary or his delegate shall, as soon as practicable, and within 60 days, after the making of an assessment of a tax pursuant to section 6203, give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof. Such notice shall be left at the dwelling or usual place of business of such person, or shall be sent by mail to such person's last known address.
The defendant argues 1 that there was no proof of the notice and demand required by § 6303(a); 2 thus, there could be no refusal to pay within ten days after notice and demand as required by § 6331; 3 since there was no refusal to pay under § 6331, there could be no authorized seizure under § 6331; 4 and finally, since there was no authorized seizure, the agent lacked the authorization required by 18 U.S.C. § 2232.
There is no contention that the revenue agent was out on a "lark" acting with complete disregard of the statutory requirements. There were a number of assessments, levies, negotiations, and compromises during the history of defendant's troubles with the Treasury. On December 14, 1967, the revenue agent had with him a levy for four assessments which recited that notice and demand had been made for the amounts of the assessments.3 It is clear that the agent was acting under color of law. But the defendant argues that color of law is not sufficient; instead, there must be proof of the notice and demand required by § 6331 and defined by § 6303(a). The defendant cites a number of cases to support this view.4 But these cases deal with civil proceedings. The cited cases clearly show that the taxpayer can assert technical noncompliance with administrative detail in a civil judicial attack on the seizure. But the cases do not justify physical obstruction of revenue agents acting under color of law merely because a detail of the administrative process was not observed.
The question of whether there must be complete technical compliance or only acts under color of law in situations like this5 was recently considered by the Third Circuit in United States v. Scolnick.6 In Scolnick the defendant Brooks rescued a safety deposit box seized by revenue agents under 26 U.S.C. § 6331. The defendant was convicted of violating 26 U.S.C. § 7212(b) which provides in part:
Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title * * *.
The defendant argued that the government failed to establish and prove compliance with a number of administrative steps in the seizure process.7 The court responded to this argument:8
The necessary premise for defendant's assertions is that they the administrative requirements are relevant factors in a trial where a defendant is charged with the criminal offense of rescuing property seized by the Service under the circumstances herein stated. We think the assumption is unwarranted. Such issues are relevant in civil proceedings attacking the Government's seizure. They are not relevant here. To permit such issues to be raised in connection with a prosecution under these statutes would be to encourage violent self-help where civil remedies are admittedly available.
The defendant here attempts to distinguish Scolnick on two grounds. First, the statute in Scolnick, § 7212(b), unlike the statute here, § 2232, contains no reference to the authority of the person making the seizure. This argument ignores the wording of § 7212(b): "after it shall have been seized under this title." This language would require as much authorization in the seizing agent as the defendant claims the language of § 2232 requires. Despite the above language of § 7212(b), the Third Circuit refused to interject questions concerning compliance with statutory detail surrounding the seizure....
To continue reading
Request your trial
-
United States v. Heck
...of cases discussing 26 U.S.C. § 7212(b), however, we find the reasoning hereinafter quoted to be relevant."6 2. United States v. Bernstein, 287 F.Supp. 84 (S.D.Florida, 1968).7 On such facts, the government, as here, relied on 26 U.S.C. § 6331 to authorize the We need not pass upon this leg......
-
Laing v. United States
...a levy to be made by giving notice in person. See United States v. Oliver, 421 F.2d 1034 (10th Cir. 1970) and United States v. Bernstein, 287 F.Supp. 84 (S.D.Fla.1968) which hold that property levied upon and seized under section 6331 need not be accomplished by written notice, actual notic......
-
United States v. Oliver, 208-69.
...326 (3rd Cir.), cert. denied, Brooks v. United States, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968). Accord, United States v. Bernstein, 287 F.Supp. 84 (S.D.Fla.1968). The foregoing sustains the trial court's application of the law both in denying the motion to dismiss and instructin......