United States v. Hendrickson

• Decision Date: 11 March 2016
• Docket Number: No. 15–1446.,15–1446.
• Citation: 822 F.3d 812
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Doreen M. HENDRICKSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

822 F.3d 812

UNITED STATES of America, Plaintiff–Appellee

v.Doreen M. HENDRICKSON, Defendant–Appellant.

No. 15–1446.

United States Court of Appeals, Sixth Circuit.

Argued: January 14, 2016.

Decided and Filed: March 11, 2016.

Rehearing En Banc Denied May 23, 2016.

ARGUED: Mark E. Cedrone, Cedrone & Mancano, LLC, Philadelphia, Pennsylvania, for Appellant. Mark S. Determan, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Mark E. Cedrone, Cedrone & Mancano, LLC, Philadelphia, Pennsylvania, for Appellant. Mark S. Determan, Frank P. Cihlar, Gregory Victor Davis, United States Department of Justice, Washington, D.C., for Appellee.

Before: SILER, COOK, and KETHLEDGE, Circuit Judges.

SILER

, Circuit Judge.

Following a guilty verdict and the imposition of eighteen months of confinement and one year of supervised release, Doreen Hendrickson (“Hendrickson”) appeals her conviction for criminal contempt under 18 U.S.C. § 401(3)

and the terms of her sentence. For the reasons stated below, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, the United States brought a civil suit against Hendrickson and her husband, Peter Hendrickson, to collect tax refunds distributed in error as a result of false statements the Hendricksons made in their 2002 and 2003 federal tax returns and to enjoin the Hendricksons from filing further false materials with the Internal Revenue Service (“IRS”). In 2007, the district court granted the Government's summary judgment motion and entered an order that “prohibited [the Hendricksons] from filing any tax return, amended return, form ... or other writing or paper with the IRS that is based on the false and frivolous claims set forth in Cracking the Code ”—a book authored by Hendrickson's husband—“that only federal, state or local government workers are liable for the payment of federal income tax or subject to the withholding of federal income, social security and Medicare taxes from their wages under the internal revenue laws.” The court's order also required the Hendricksons to file, within 30 days, “amended U.S. Individual Income Tax Returns for the taxable years ending on December 31, 2002[,] and December 31, 2003,” including as gross income “the amounts that ... Peter Hendrickson received from his former employer, Personnel Management, Inc., during 2002 and 2003, as well [as] the amounts that ... Doreen Hendrickson received from Una E. Dworkin during 2002 and 2003.”

In 2009, Hendrickson filed a return for the 2008 tax year stating that she did not earn any income, that five dollars had been withheld from her under a Form W–2, and that she was therefore entitled to a five dollar refund. Records from Monarch Consulting indicated that the company paid Hendrickson $59.20 during 2008, but she attached to her return a Form 4852 claiming that she received no wages, tips, or other compensation from the company.

In 2010, the Government moved the district court to hold the Hendricksons in contempt for failing to file their amended 2002 and 2003 returns. After a hearing, the court held the Hendricksons in contempt and imposed a $100 per day conditional fine on each of them until they filed the amended returns. The Hendricksons subsequently filed returns for the tax years at issue, but the forms included the words “UNDER DURESS” written over their signatures. The court again ordered the Hendricksons to comply, clarifying that it now “ORDER [ED] Defendants to file valid tax returns, in usable form, that in no way undermine the verity of the returns, by January 7, 2011.”

In January 2011, Hendrickson filed individual tax returns for 2002 and 2003. These forms referenced an affidavit Hendrickson filed in the district court stating that she believed the original returns to be “true, correct and complete,” that the amended returns “ha[d] no verity,” and that she submitted the amended returns “under extreme protest.” She also stated that she “disclaim[ed] these coerced amended returns because they [were] wholly false and fraudulent.” The IRS rejected the amended returns because of the contents of Hendrickson's affidavit and because she changed her filing status from “married filing jointly” to “married filing separately” after the returns' due dates.

Hendrickson was then indicted on one count of felony criminal contempt in violation of 18 U.S.C. § 401(3)

. The indictment contained two specifications: that Hendrickson violated the order in the civil case by (1) filing a 2008 tax return that “falsely reported that she earned zero wages” that year and (2) failing to file amended returns for 2002 and 2003. The district court granted Hendrickson's motion to represent herself with the assistance of standby counsel. After pretrial proceedings and a mistrial due to the jury's failure to reach a unanimous verdict, a second trial was held, and the jury found Hendrickson guilty of criminal contempt.

Hendrickson obtained counsel for the sentencing phase of the proceedings. At the hearing, the district court sentenced her to eighteen months' imprisonment and one year of supervised release.

DISCUSSION

I. Constitutionality of the Underlying Order

Hendrickson argues that the court order she was found to have contemptuously disobeyed violated her First Amendment rights, and her conviction should therefore be vacated. Alternatively, she claims that because the lawfulness of the underlying order is an element of the crime of contempt, the district court erred by instructing the jury that the unlawfulness or unconstitutionality of the order was not a defense to the contempt charge. Both of these arguments fail.

A. Standard of Review

In most instances, whether a district court's order granting injunctive relief violates a litigant's First Amendment rights presents a question of law that we review de novo. See O'Toole v. O'Connor, 802 F.3d 783, 788 (6th Cir.2015)

(citing Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 453 (6th Cir.2014) ); Gas Nat., Inc. v. Osborne, 624 Fed.Appx. 944, 948 (6th Cir.2015) (citing Planet Aid v. City of St. Johns, 782 F.3d 318, 323 (6th Cir.2015) ). If a party preserves an objection to a jury instruction by raising it before the jury retires to deliberate, we review the instructions “to see ‘whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.’ ” Fencorp, Co. v. Ohio Ky. Oil Corp., 675 F.3d 933, 943 (6th Cir.2012) (quoting Fisher v. Ford Motor Co., 224 F.3d 570, 575–76 (6th Cir.2000) ); see also

United States v. Dedman, 527 F.3d 577, 600 (6th Cir.2008). The accuracy of jury instructions is a question of law, which we review de novo, while “the refusal to give a specifically requested instruction is reviewed for abuse of discretion.” Fencorp, 675 F.3d at 943 (quoting Micrel, Inc. v. TRW, Inc., 486 F.3d 866, 881 (6th Cir.2007) ).

B. Analysis

As a threshold matter, the collateral bar rule prevents Hendrickson from challenging the constitutionality of the underlying order in the course of her criminal contempt proceeding. When a district court has personal and subject matter jurisdiction over a case, an order issued by the court “must be obeyed by the parties until it is reversed by orderly and proper proceedings.” United States v. United Mine Workers of Am., 330 U.S. 258, 293, 67 S.Ct. 677, 91 L.Ed. 884 (1947)

. Violating such an order may be punishable by criminal contempt. Id. at 294, 67 S.Ct. 677 (citing Worden v. Searls, 121 U.S. 14, 7 S.Ct. 814, 30 L.Ed. 853 (1887) ); see also

Walker v. City of Birmingham, 388 U.S. 307, 314, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967) (noting that, under federal and state law, parties must obey injunctions issued by a court of competent jurisdiction, “however erroneous the action of the court may be,” and “until [the issuing court's] decision is reversed for error by orderly review, ... disobedience ... is contempt of [the court's] lawful authority, to be punished” (quoting Howat v. Kansas, 258 U.S. 181, 189–90, 42 S.Ct. 277, 66 L.Ed. 550 (1922)

)). Accordingly, we have found that a defendant in a criminal contempt proceeding may not contest the validity of the underlying court order, except on the grounds that the issuing court lacked jurisdiction or its order was “transparently invalid or had only a frivolous pretense to validity.” Dever v. Kelly, 348 Fed.Appx. 107, 112 (6th Cir.2009) (quoting Walker, 388 U.S. at 315, 87 S.Ct. 1824 ); see also

Polo Fashions, Inc. v. Stock Buyers Int'l, Inc., 760 F.2d 698, 700 (6th Cir.1985). Other courts have also recognized exceptions to the collateral bar rule when no “adequate and effective” opportunity for appellate review exists or the underlying order “require[s] an irretrievable surrender of constitutional guarantees”—though we have never explicitly adopted or rejected these principles. United States v. Dickinson, 465 F.2d 496, 511 (5th Cir.1972) ; see also

United States v. Straub, 508 F.3d 1003, 1011 (11th Cir.2007).

This case, however, does not fall under any exception to the collateral bar rule. Hendrickson does not claim on appeal that the district court lacked jurisdiction to enter the underlying order. Also, she has not demonstrated that the order was transparently invalid or only had a frivolous pretense to validity. While she claims that the order violated her First Amendment rights, this merely “amounts to an argument that the ... injunction was erroneously issued which ... would not have excused compliance.” Dever, 348 Fed.Appx. at 112

.

Further, nothing indicates that Hendrickson did not have an adequate and effective opportunity for review. After the district court entered the underlying order, Hendrickson pursued an appeal to this court, and when she did not prevail, she filed an unsuccessful petition for a writ of certiorari in the Supreme Court.

Finally, although Hendrickson maintains that the order implicates her First Amendment rights, it does not present the type of scenario that might rise to the level...