United States v. Heck

Decision Date05 June 1974
Docket NumberNo. 73-1671 to 73-1675 and 73-1697.,73-1671 to 73-1675 and 73-1697.
Citation499 F.2d 778
PartiesUNITED STATES of America, Appellee, v. John Robert HECK, Jr., et al., Appellants.
CourtU.S. Court of Appeals — Ninth Circuit



Morris Sankary (argued), San Diego, Cal., for appellants in 73-1671.

E. Mac Amos, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

Mobley M. Milam (argued), San Diego, Cal., for appellant in 73-1672.

Morris Sankary (argued), San Diego, Cal., for appellant in 73-1673.

Christopher R. Bates, pro per, for appellant in 73-1674.

Edward F. Ross, pro per, for appellant in 73-1675.

G. G. Baumen (argued), Los Angeles, Cal., for appellant in 73-1697.

Before BARNES and ELY, Circuit Judges, and PLUMMER, District Judge.*

As Modified on Denial of Rehearings in Nos. 73-1671, 73-1672, 73-1675, 73-1697, June 5, 1974.

BARNES, Circuit Judge:

One or more of the eleven defendants who are parties to this appeal were charged in one or more counts of a superseding indictment (No. 13708), with having conspired to violate (Count I), or having substantively violated (Count II), 26 U.S.C. § 7212(b).

All defendants were charged in Count III with having conspired (18 U.S.C. § 371) to forcibly assault, oppose, resist, impede, or interfere with various federal officials, or (Counts IV to X) with substantively violating 18 U.S.C. § 111.

We note the difference in the subject matter in section 7212(b) and section 111; and that a violation of section 7212(a) was not charged in the indictment.

26 U.S.C. § 7212(b) reads as follows:

"(b) Forcible rescue of seized property. — Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years."
18 U.S.C. § 111 reads as follows:
"Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
"Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

18 U.S.C. § 1114, referred to in section 111, lists United States Marshals, any officer or employee of the Federal Bureau of Information, or any officer, employee or agent of the Internal Revenue Service, as the officers protected by the statute.

The offense charged against all defendants in the first count of the superseding indictment filed in this case alleged a conspiracy "to forcibly rescue property seized at the Heck Transfer & Storage Co., which property had been heretofore previously seized by agents of the Internal Revenue Service,"1 though still located on the Heck premises. The second count charges all defendants forcibly attempted to rescue the seized property (26 U.S.C. § 7212(b)).

Counts III and IV to IX do not concern the seized property directly, but charge in Count III that all defendants conspired "to assault, resist and interfere" with certain Government agents responsible for protection of the seized property, and in Counts IV to X, inclusive, various defendants were charged with the substantive offense of assaulting, resisting or interfering forcibly with various special agents of the Internal Revenue Service, while said agents were engaged in the performance of their official duties.

The theory of the first two counts rests on an alleged rescue of seized property. They differ from the remaining counts which rest on interference with the agents' performing their official duties.

A variety of verdicts were returned by the jury,2 and varying sentences were imposed.3

I. The Legality of the Seizure

Certain of the defendants charge that the legality of the Internal Revenue Service seizure was an essential issue that was required to be determined by the trier of fact before the defendants could be found guilty. The court instructed the jury the legality of the seizure was not before it.4

Cooper v. United States, 299 F. 483 (3rd Cir. 1924) states the contrary:

"The offense denounced by the statute (26 U.S.C. § 7212(b)) has two essential ingredients — seizure of merchandise and rescue of merchandise seized. But there is more to it than that. There must be an unlawful rescue of merchandise lawfully seized. United States v. Page (D.C.) 277 F. 459. Hence, lawful seizure is not only an ingredient preliminary to an unlawful rescue but it is a prerequisite. And lawfulness of the seizure must be shown. This element of the offense cannot be pleaded by mere assertion or conclusion but must be pleaded by facts."5 (Emphasis added.)

We note the Government's Brief cites other authority to support its position that it need not plead and prove a lawful seizure; namely:

1. United States v. Oliver, 421 F.2d 1034 (10th Cir. 1970). The jury passed on the defense the vehicle had not been properly seized, but found it had been. The instruction objected to by Oliver is not quoted in the decision. The Oliver panel preceded its reference to Scolnick by this language: "There is a dearth 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 seizure.

We need not pass upon this legal question, however, in view of our disposition of the first two counts, as hereinafter appears.

II. Evidence

Turning to the facts of the case before us, we emphasize certain of them. The crime charged is alleged to have been committed on May 9, 1972. The federal tax lien was filed and recorded in San Diego County on March 23, 1972, covering the "1040 Tax Liability" of Mr. and Mrs. Heck for the two years ending December 31, 1968 and December 31, 1969. (Gov.Ex.No. 1). A levy in the amount of $8,336.73 was made on May 3, 1972 (Def.Ex. a), and Mr. Heck received copy of that levy (Gov.Ex. 5, para. 2), and a Notice of Seizure on May 4, 1972. (Gov.Ex. 13, 14, and 15). It was stipulated between counsel that the personal property was seized on May 9, 1972, and that the real property was seized on May 10, 1972 (R.T.1796).

III. Sufficiency of Evidence

A question quickly arises. How could the seized personal property be, on May 9, 1972, the object of an attempted rescue unless some defendant touched it, or picked it up, or attempted so to do? No one, save Mr. Heck, touched it, or attempted to touch it. The government cannot rely on Mr. Heck breaking the glass in his front door, because title to the real property was his subject to a lien, but prior to any seizure of it. He was entitled to break as many doors or windows as he desired prior to seizure. On May 9, 1972, Mr. Heck had ownership and use of the real property. (R.T. 243).

While there is a factual dispute between the parties as to "who pushed whom, if anyone," through the entrance door to the Heck premises, if there is no testimony of any attempt by any person, made inside or outside the building, to "rescue" anything seized, or to remove any personal property from the real property physically, the government's case has not been established.

The government, to supply this insufficiency, points to its Ex. 5, as proof of threats made by Mr. Heck, and his ultimatum, that if the government did not restore the property levied upon by the government to him —

". . . my friends, as concerned and irate citizens will see that I am put back into business under my guaranteed Constitutional Rights." (Gov. Ex. 5).

The difficulty with the prosecutor's position is the testimony of Officer Williams that he did not read Ex. 5 (the letter), prior to the fracas on May 9, 1972.

There was evidence also of oral "threats" — such as Dr. Ross':

"The property would be returned to Mr. Heck by 12 o\'clock, or else" (R.T. 232), and "If you are prepared to arrest 200 people, you are welcome to try" (R.T. 233); "that California has no death penalty and that any action could be taken against police officers short of killing them in order to rescue seized property." (R.T. 235).

But there is no mention of threats, intimidation, obstruction, or impeding in section 7212(b), as there is in section 7212(a), and in 18 U.S.C. § 111.

We have before and again emphasize that the government saw fit to sue the defendants on two different theories, requiring differing proof. The first was expressed as a conspiracy to rescue seized property, and the substantive crime of forcibly attempting to rescue it. The second theory was expressed as a conspiracy to assault and interfere with government officials, and in doing so.

The only acts, violent or otherwise, directed against the Heck property, was defendant Heck's breaking of the glass in the door to his unseized real property on May 9, 1972; his sitting at his seized desk inside said premises; the bandaging of his cut fingers, and some brave talk of future action suggested by defendants outside the Heck premises. At the most, Heck (in Ex. 9) threatened that there might be an attempt to rescue seized property.8

The government emphasizes in its factual recital that defendant Ross was outside the Heck premises "walking up and down . . . reading out of a book entitled, The Big Bluff" (Ex. A-Z), making "comments about there being no death penalty in California, and that any action could be taken against police officers short of killing them." When Heck picked up the large rock (shown in defendants' Ex. R) to break...

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