Zimmerman v. Spears, s. 77-2209

• Decision Date: 13 December 1977
• Docket Number: 76-3500 and 77-3298,Nos. 77-2209,s. 77-2209
• Citation: 565 F.2d 310
• Parties: 78-1 USTC P 9223 John R. ZIMMERMAN, and Billie Zimmerman, Plaintiffs-Appellants, v. Adrian A. SPEARS, U. S. District Judge, et al., Defendants-Appellees. UNITED STATES of America, and Larry R. Willman, Revenue Agent for Internal Revenue Service, Plaintiffs-Appellees, v. John R. ZIMMERMAN and Billie Zimmerman, Defendants-Appellants. John R. ZIMMERMAN and Billie Zimmerman, Petitioners-Appellants, v. Rudy GARZA, U. S. Marshal, Respondent-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 310

565 F.2d 310

78-1 USTC P 9223

John R. ZIMMERMAN, and Billie Zimmerman, Plaintiffs-Appellants, v. Adrian A. SPEARS, U. S. District Judge, et al.,

Defendants-Appellees.

UNITED STATES of America, and Larry R. Willman, Revenue

Agent for Internal Revenue Service, Plaintiffs-Appellees, v. John R. ZIMMERMAN and Billie Zimmerman, Defendants-Appellants.

John R. ZIMMERMAN and Billie Zimmerman, Petitioners-Appellants, v. Rudy GARZA, U. S. Marshal, Respondent-Appellee.

Nos. 77-2209, 76-3500 and 77-3298

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Dec. 13, 1977.

Hugh P. Shovlin, Archie Carl Pierce, Asst. U. S. Attys., San Antonio, Tex., Gilbert E. Andrews, Chief, Appellate Section, Tax Div., M. Carr Ferguson, Asst. Atty. Gen., Jonathan S. Cohen, Aaron P. Rosenfeld, Attys., Dept. of Justice, Washington, D. C., for appellee in No. 77-2209.

Gerald H. Goldstein, San Antonio, Tex., for appellant in No. 77-3298.

Jamie C. Boyd, U. S. Atty., Archie Carl Pierce, Asst. U. S. Atty., San Antonio, Tex., for appellee in No. 77-3298.

John E. Clark, U. S. Atty., Archie Carl Pierce, Asst. U. S. Atty., San Antonio, Tex., Gilbert E. Andrews, Chief, Appellate Sec., Myron C. Baum, Acting Asst. Atty. Gen., Tax Div., Robert E. Lindsay, William A. Whitledge, Attys. Tax Div., Dept. of Justice, Washington, D. C., for appellee in No. 76-3500.

On Petition for Writ of Habeas Corpus for the United States Court of Appeals for the Fifth Circuit.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

On our own motion, we have consolidated these separate, though related, matters in order to attempt a comprehensive and thorough examination of the various issues raised within the larger context of the procedural plethora which petitioners have created.

Because we have before us in No. 77-3298 a self-styled "Petition for the Writ of Habeas Corpus by a Panel of Three justices and/or by a Circuit justice Individually", we may, and do, take judicial notice of the records in the several litigations involving the petitioners, John R. and Billie Zimmerman. Moore v. Estelle, 526 F.2d 690, 694 (5th Cir. 1976); Tucker v. National Linen Service Corp., 200 F.2d 858, 861-862 (5th Cir.), cert. denied, 346 U.S. 817, 74 S.Ct. 28, 98 L.Ed. 343 (1953). Thus, we have carefully examined, on our own motion, the records on appeal and transcripts of these several litigations. ¹

United States v. Zimmerman, 415 F.Supp. 1380 (W.D.Tex.), aff'd, 554 F.2d 474 (5th Cir. 1977) was the original of the several litigations now before us. The case arose out of an Internal Revenue investigation. IRS summonses were issued on April 2, 1976, directing John R. Zimmerman and Billie Zimmerman (husband and wife) to appear on April 19, 1976, to give testimony and produce records relating to their income for the year 1974. The summonses were issued only after several unsuccessful attempts to arrange a suitable conference with the Zimmermans. Instead of appearing, the Zimmermans sent the IRS a letter "declining" to submit to an audit, apparently on the basis of an alleged "good faith" Fifth Amendment challenge to the summonses.

The United States Attorney, on behalf of the government, then filed on May 19, 1976, a "Petition to Enforce Internal Revenue Summonses" under the authority of 26 U.S.C.A. § 7402(b) and 7604(a). Pursuant to this petition, the Zimmermans were served on May 19, 1976, with summonses, in conformance with Fed.R.Civ.P. 4(b), which required an answer to the petition within twenty days of service. Proper service was certified by the United States Marshal and sworn to in an affidavit.

The district court entered an order on May 21, 1976, which directed the Zimmermans to comply with the IRS summonses by appearing at the IRS office on June 4, 1976. Failing such an appearance, the Zimmermans were also directed to appear before the district court on June 10, 1976, to show cause why they should not be ordered to produce the requested information and records.

The Zimmermans did appear at the IRS office, as ordered. However, in response to the IRS agent's inquiries, the Zimmermans either refused to answer, apparently on a claim of the Fifth Amendment privilege against self-incrimination, or stated that they would submit to questions, but would not waive their "constitutional privilege." They refused to produce any records, relying on the same assertion of the Fifth Amendment privilege. The Zimmermans informed the IRS agent that they interpreted the district court's order to require either an appearance or, in the alternative, the production of records. Therefore, they maintained that they were in compliance. ² Since attempts to obtain the requested information or records were frustrated, the IRS agent terminated the interview, after informing the Zimmermans that the purpose for the interview was an audit to verify their 1974 income tax return. Before they left, the Zimmermans were informed that, since they had failed to comply with the May 21, 1976, court order, they were required to appear in court on June 10, 1976.

The Zimmermans did not appear before the district court on June 10, 1976, but did file a pro se pleading styled: "Appearance and Answer Without Recognizing Jurisdiction of the Court: Motion to Dismiss with Prejudice" which urged that the court was without jurisdiction over their person or the subject matter of the complaint because they allegedly were not served in compliance with Fed.R.Civ.P. 4(b). The district court found that the file indicated that the Zimmermans were properly served. On the basis of the testimony of the IRS agent and the request of the United States Attorney a writ of attachment pursuant to 26 U.S.C.A. § 7604(b) was issued and executed on June 10, 1976, for the arrest of the Zimmermans to secure their appearance at a hearing before the court at 2:00 p. m. that same day.

Upon their appearance before the district court, the Zimmermans were informed that they were possibly subject to criminal or civil contempt for their conduct. The court then asked whether they desired the assistance of counsel, and indicated that, if counsel were desired, an opportunity to obtain such counsel would be allowed. After the district court refused to allow a person not admitted to practice law to present their case, the Zimmermans elected to represent themselves.

Following testimony by the IRS agent, testimony by the Zimmermans and the presentation of legal arguments the district court found that the Zimmermans had disobeyed the order of May 21, 1976 and further found their Fifth Amendment claim insufficient. Accordingly, the district court held the Zimmermans' conduct, specifically the failure to appear before the court on June 10, 1976, and the failure to produce the information and records, to be in contempt of court. The district judge stayed his order, however, until 2:00 p. m., June 11, 1976, in order to allow them an opportunity to comply with the court's order. If, at that time, the Zimmermans still failed to produce the information and records, they were ordered committed to the custody of the United States Marshal "until the same purge themselves of the contempt."

On June 11, 1976, since the Zimmermans failed to produce the information and records, the government filed for a writ of attachment which issued. The district court entered orders staying the order of June 10, 1976, in order to allow sixty days within which to perfect an appeal. A petition for a writ of mandamus and for prohibition was denied by a panel of this Court on June 18, 1976. In re Zimmerman, No. 76-2641 (5th Cir. June 18, 1976) (Godbold, Dyer, and Gee, Circuit Judges). The Zimmermans' "Motion for Oral Argument, or In the Alternative, Motion for Statement of Law and Fact" was denied by the district court on June 23, 1976. In response, the Zimmermans filed a "Reply to Judge Adrian Spears' Denial of Motion for Oral Hearing; Declaration of Disqualification; Judicial Notice" alleging various and sundry "illegal acts" on the part of all those involved in the proceedings, except themselves, focusing particularly on the district court judge, Chief Judge Spears. A "Motion to Vacate Judgment of the Court on Grounds it is Premised in Fraud," which alleged a conspiracy against the Zimmermans, was construed to be a motion pursuant to Fed.R.Civ.P. 60(b)(3) and was denied as being "spurious, frivolous, and wholly without merit" on July 30, 1976. Notice of Appeal was filed on August 9, 1976. A panel of this Court affirmed the judgment of the district court pursuant to Local Rule 21, Fifth Circuit Rules. United States v. Zimmerman, 554 F.2d 474 (5th Cir. 1977) (Coleman, Godbold and Tjoflat, Circuit Judges) (No. 76-3500). On September 19, 1977 the Zimmermans were found to be still in contempt of the district court's order of June 10, 1976, and were committed to the custody of the United States Marshal until they purged themselves.

In response to this Court's affirmance, the Zimmermans have filed two damage suits in the District Court for the Western District of Texas. One damage suit, No. A-77-SA-259, names District Judge Spears, Circuit Judges Coleman, Godbold and Tjoflat, and the United States Marshal as defendants.

It is still pending before District Judge Roberts. In another damage suit, filed on September 3, 1976, the Zimmermans list as defendants: District Judge Spears; the United States Attorney; the Assistant United States Attorney; five United States Marshals; the District Director of the Internal Revenue Service; Circuit Judges Godbold, Dyer, and Gee; the investigating Internal Revenue officer and the Deputy Clerk. The twenty-three page, pro se, complaint was supported by numerous exhibits which were copies of much of the record in the prior litigation. An amended complaint alleged that the Zimmermans were suing all the defendants "in their individual capacity." District Judge Wood dismissed the complaint, concluding:

The...