Petition — Anthony v. United States

7 Supremes Court, U. S,

FILE D” |

IN THE ' FER 101978 =|

SUPREME COURT OF THE UNITEBICSRARBAK JR. CLERK

October Term 1977

so. V¥=1122

DAVID ANTHONY,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD G. SHERMAN

Attorney at Law

6420 Wilshire Boulevard

Sixth Floor

Los Angeles, CA 90048

(213) 658-6800

Attorney for Petiioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

DAVID ANTHONY,

Petitioner

vs. '

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD G. SHERMAN

Attorney at Law

6420 Wilshire Boulevard

Sixth Floor

Los Angeles, CA 90048

(213) 658-6800

Attorney for Petitioner

TOPICAL INDEX

Page

Table of Authorities ii

CITATIONS TO OPINIONS BELOW |

JURISDICTION 1

QUESTIONS PRESENTED 2

CONSTITUTIONAL PROVISIONS 3

STATEMENT OF THE CASE 3

STATEMENT OF FACTS 5

REASONS FOR GRANTING THE WRIT 16

I THE COURT SHOULD GRANT CERTIORARI

TO DETERMINE IF, BEFORE A TAX-

PAYER EMBARKS UPON A COURSE OF AC-

TION WHICH HE DOES NOT KNOW IS

ILLEGAL, THE TAXPAYER DISCUSSES

SAID COURSE OF ACTION WITH AN

INTERNAL REVENUE AGENT WHO

ASSISTS, ENCOURAGES AND ADVISES

THE TAXPAYER TO ENGAGE IN SAID

COURSE OF ACTION FOR THE SOLE PUR-

POSE OF OBTAINING A CONVICTION,

A CONVICTION LATER OBTAINED IS

THEREBY VIOLATIVE OF THE TAX-

PAYER'S CONSTITUTIONAL RIGHT TO

DUE PROCESS OF LAW, AND WHETHER

A GOVERNMENT AGENT WHO KNOWS THAT

A TAXPAYER IS UNAWARE THAT HE IS

PARTICIPATING IN ILLEGAL ACTIVITY

HAS A DUTY TO WARN SAID TAXPAYER

OF THE ILLEGALITY 16

CONCLUSION 25

APPENDIX A OPINION

APPENDIX B ORDER DENYING PETITION

FOR REHEARING

TABLE OF AUTHORITIES

Cases Page

Green v. United States

454 F.2d 783 (9th Cir. 1968) 23

Notaro v. United States

363 F.2d 169 (9th Cir. 1975) 19

United States v. Anderson

509 F.2d 312 (C.A. D.C. 1974) 22

United States v. Carroll

518 F.2d 187 (6th Cir. 1975) 19, 22

United States v. Demma

523 F.2d 981 (9th Cir. 1975) 19

United States v. Hampton

425 U.S. 488 (1976) 22

United States v. Klosterman

248 F.2d 191 (3rd Cir. 1957) 21

United States v. Russell

411 U.S. 423 (1973) 22

United States v. Sorrells

287 U.S. 435 (1932) 22

Statutes

18 U.S.C. § 201(b) (1) 3

18 U.S.C. § 4205(c) 4

Constitution

United States Constitution

Fifth Amendment Ze 26

ii.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

DAVID ANTHONY,

vs. Petitioner

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays that a Writ of Certio-

rari issue to review a judgment of the

Ninth Circuit Court of Appeals entered in

the above entitled case on October 27,. 1977.

CITATIONS TO OPINIONS BELOW

The judgment of the Court of Appeals is

unreported. Said Opinion is printed and

attached hereto and made a part hereof as

Appendix A.

JURISDICTION

The Ninth Circuit Court of Appeals

he

affirmed the conviction of petitioner on

October 27, 1977.

All questions raised in this instant

Petition were raised in the Court below

and on appeal to the Ninth Circuit Court

of Appeals.

QUESTIONS PRESENTED

1. If, before a taxpayer embarks upon

a course of action which he does not know

is illegal, the taxpayer discusses said

course of action with an Internal Revenue

Agent who assists, encourages and advises

the taxpayer to engage in said course of

action for the sole purpose of obtaining

a conviction, is a conviction later ob-

tained thereby violative of the taxpayer's

constitutional right to due process of law?

2. Does a Government Agent who knows

that a taxpayer is unaware that he is

participating in illegal activity have a

duty to warn said taxpayer of the ille-

gality?

CONSTITUTIONAL PROVISIONS

The constitutional provision involved in

the instant case is the Due Process Clause

of the Fifth Amendment to the United States

Constitution, printed in 1 U.S.C. XLVI.

STATEMENT OF THE CASE

On December 15, 1975, a Federal Grand

Jury for the Central District of California

returned an Indictment charging the peti-

tioner, David J. Anthony, in three counts,

with attempt to bribe and bribery of an In-

ternal Revenue agent, in violation of 18

U.S.C. § 201(b) (1) (C.T. 1)24 The petitioner

pled not guilty to the charges (C.T. 4).

On May 6, 1976, the petitioner waived trial

by jury (C.T. 12) and a Court trial com-

menced before the Honorable A. Andrew Hauk,

United States District Judge. Prior to ver-

dict, the petitioner moved for judgment of

acquittal and for reduction of the charge

(C.T. 17). The motions were denied.

On May 26, 1976, the Court dismissed the

charges in Count One of the Indictment

1/ Reference to "C.T." is to the Clerk's

Transcript.

*

(R.T. 2163 C.T. 15) =, On May 27, 1976, the

Court found the petitioner not guilty of

Count Two of the Indictment (R.T. 447;

C.T. 16) and guilty of Count Three (R.T.

488; C.T. 39).

On July 12, 1976, the petitioner was

sentenced to the custody of the Attorney

General for a period of fifteen (15) years

and fined Twenty Thousand Dollars ($20,000),

subject to a ninety (90) day psychiatric

study.

On January 3, 1977 (R.T. 485), the judg-

ment was modified in accordance with the

results of the study (18 U.S.C. § 4205(c))

to a fine of Fifteen Thousand Dollars

($15,000) and three (3) years probation

(C.8. 97).

The Court of Appeals for the Ninth Cir-

cuit affirmed the judgment of the District

Court on October 27, 1977.

On November 14, 1977, the petitioner

filed a Petition For Rehearing. On Decem-

ber 19, 1977, the Petition For Rehearing

was denied. A copy of the Order denying

2/ Reference to "R.T." is to the Reporter's

Transcript.

4.

the Petition For Rehearing is attached

hereto as Appendix B.

STATEMENT OF FACTS

The petitioner was the president and

sole shareholder of Anthony Associates on

July 15, 1975, when an agent from the In-

ternal Revenue Service, Rudolfo Masigla

(hereinafter referred to as Masigla), met

with the petitioner for the purpose of con-

ducting an audit of the corporate tax re-

turn for tr« fiscal year ending November

30, 1974 (R.T. 15-16). Masigla requested

and reviewed records in the petitioner's

possession in an attempt to reconcile what

was on the return (R.T. 17). At that time,

the petitioner mentioned to Masigla that

the City of Gardena was pressuring its gam-

bling establishments, including one in

which the petitioner had an interest, to

dissolve corporations holding ownership

interest (R.T. 21).

On September 5, 1975, Masigla telephoned

the petitioner regarding information he had

requested dealing with the petitioner's

gross receipts and his partnership’ tax re-

turns (R.T. 24).

5.

Masigla again met with the petitioner on

September 8, 1975. At that time, they tried

to clarify the way in which the gross re-

ceipts on the corporate tax return were.

arrived at (R.T. 25).

On September 12, 1975, Masigla returned

a telephone call from the petitioner and

arranged a meeting for that afternoon to

discuss a subject that the petitioner be-

lieved might affect the audit (R.T. 28).

At the meeting, the petitioner asked

Masigla if it were possible to treat his

corporation as an individual or sole pro-

prietorship (R.T. 29-30). Masigla re-

garded the question as a proper one but

did not know the answer (R.T. 110).

The petitioner explained that the City

of Gardena was still pursuing the corpo-

rate pointholders in card clubs, which

placed the petitioner in jeopardy of los-

ing his points unless there was a way to

treat the corporation as an individual.

The petitioner explained that his brother

was being charged Seventeen Thousand Dol-

lars ($17,000) in legal fees to liquidate

a similar type of corporation, and he

asked Masigla if he could liquidate the

6.

corporation for him. He offered Masigla

Two Thousand Dollars ($2,000) and a trip

to Las Vegas for his services in that

regard (R.T. 30, 36). e

Masigla told the petitioner that this

procedure might be possible and that he

would research the problem to see if it

could be done (R.T. 37). Masigla, how-

ever, was aware of the rule that an In-

ternal Revenue agent cannot take outside

compensation for his work (R.T. 111).

Rather than refuse the petitioner's re-

quest, Masigla left the offer open and

reported it to Internal Security Inspec-

tion as an attempted bribe (R.T. 37,112).

At no time did Masigla tell the peti-

tioner that as an Internal Revenue agent,

he was not permitted to do outside work.

In his mind, Masigla believed that the

corporation possibly could be treated

as a sole proprietorship by a legal pro-

cess. He therefore researched the sub-

ject. He intended to see how the change

in status would affect the audit but had

no expectation of compensation for out-

Side employment (R.T. 120).

te

Masigla understood that he would have

to physically dissolve the corporation

in order to remove the partnership's in-

terest from it. He found that there was

no way of attributing a corporate asset

to an individual tax return or of treat-

ing it as a sole proprietorship without

liquidation. Nevertheless, he did not

expressly tell the petitioner at any time

that he personally was not allowed to

liquidate the corporation (R.T. 121).

Masigla arranged to meet with the pe-

titioner on October 2, 1975 3/, At that

meeting Masigla asked the petitioner wheth-

er he was interested in dissolution or

in transferring the interest of the part-

nership to himself. He told the peti-

tioner he could liquidate the corporation

in any way the petitioner desired. He

explained the legal procedure involved

and agreed to use the liquidation process

3/ The October 2, 1975 meeting was elec-

tronically recorded and later tran-

scribed. The transcript was admitted

into evidence as Exhibit 3a. Unless

otherwise referenced, the following in-

formation regarding that meeting is

taken from that transcript.

that would result in the least tax ex-

penditure, and the best tax advantage

within the law.

While discussing the various legal

methods of liquidation, Masigla explained

that he would not be able to utilize cer-

tain code sections of the Internal Reve-

nue Code as the situation here involved

did not exactly relate thereto. Yet,

he asked the petitioner if he wanted to

be involved in liquidation, and told him

that he would try to fit his facts into

the code section. Masigla requested the

minutes of the corporation, telling the

petitioner that he would have to do fur-

ther research as this was outside of his

normal type of work.

When the petitioner asked Masigla if

he had checked with his supervisor as yet

to find out if this could be done (in a

normal tone of voice), Masigla laughed

and stated that he did not plan to. He

stressed that he was putting the research

in priority. He did not tell the peti-

tioner that as an Internal Revenue agent

he could not moonlight (R.T. 117).

9.

Masigla told the petitioner that there

were means to liquidate the corporation

the way he wanted it liquidated although

Masigla knew this was false. The purpose

of the meeting was to find out exactly

what the petitioner wanted done. Masigla

was instructed by the Internal Revenue

Service to submit to the petitioner's re-

quests (R.T. 122). Thus, he never told

the petitioner that what they were doing

was illegal (R.T. 123) although the Inter-

nal Revenue's code of ethics forbids its

agents from doing outside work relating

to accounting, taxes,or business without

permission of the authorities (R.T. 141).

Masigla never requested that permission

(R.T. 170).

During this entire period, beginning

September 12, 1975, Masigla knew that the

City of Gardena wanted the petitioner's

interest in the gambling club to be owned

personally; that the petitioner had just

changed accountants; that the first ac-

countant was not giving the new account-

ant the proper figures, and that the pe-

titioner and his new accountant were

therefore having trouble getting the

10.

figures to liquidate (R.T. 170-171).

On October 9, 1975, Masigla again met 4

with the petitioner to discuss the audit”.

At that meeting, the corporate minutes

were discussed. Masigla stated that he

had found additional information regard-

ing the liquidation procedure, and he made

a definite commitment that he would do

the work.

Masigla suggested that the date of

liquidation be predated to 1974 so that

the petitioner would not have a tax in-

crease and stated that he presently would

"make-up" the three prerequisites for

liquidation, fill out and file a Form 964,

and predate the minutes. Masigla also

instructed the petitioner on how to word

the corporate minutes.

When the petitioner asked Masigla whether

he would need to get an attorney to handle

4/ The October 9, 1975 meeting was elec-

~ tronically recorded and later tran-

scribed. The transcript was admitted in-

to evidence as Exhibit 4a. Unles other-

wise referenced, the following informa-

tion regarding the October 9 meeting is

taken from that transcript.

ll.

the liquidation, Masigla answered, "to

do this taxes, no, no, no, because my re-

port will cover that."

Masigla told the petitioner that he

would have to state in the minutes that

the corporation wasn't functioning as a

corporation, to provide a motive for dis-

solution. He also stated that he was do-

ing some of his work for the petitioner

at home. |

Masigla told the petitioner what the

minutes had to contain (R.T. 192), what

forms had to be signed, and supplied pe-

titioner with the forms. Masigla was

the first person to ever mention false

entries (R.T. 193). He never explained

to the petitioner that the corporation

could be dissolved by legal methods.

On October 10, 1975, the petitioner

telephoned Masigla and asked him why he

needed the corporate minutes and personal

tax returns. Masigla told him that he

needed the tax return in order to attri-

bute the adjustments to his personal tax

return upon liquidation of the corpora-

tion (R.T. 79).

12.

On October 21, 1975, Masigla met with

the petitioner one final tine During

that meeting, the liquidation papers were

predated at Masigla's direction. The

predating of the papers on October 21,

1975 was the subject of Count Three of

the Indictment -- the Count under which

the petitioner was convicted. The corpo-

rate minutes dated July 4, 1974 and July

1, 1975 were never signed.

At the close of the testimony the pe-

titioner moved for judgment of acquittal

on the ground that he had been entrapped.

The petitioner was acquitted of Counts

One and Two of the Indictment, which re-

lated to the dates of October 2, 1975 and

October 9, 1975 respectively, because the

Court did not find that the petitioner

had the intent to participate in illegal

activity on those dates. The petitioner

was convicted of Count Three of the In-

dictment, which related to the date of

5/ The October 21, 1975 meeting was elec-

tronically recorded and later tran-

scribed; said transcript was admitted in-

to evidence as Exhibit 8a. Unles other-

wise referenced, the following information

regarding the October 21 meeting is taken

from that transcript.

13.

October 21, 1975, the date the corporate

minutes were predated (C.T. 39).

On appeal, one of the petitioner's

primary contentions was that he never in-

tended to do anything illegal by asking

Masigla to do this work for him and that

Masigla should have informed him that he

could not accept compensation.

In its Opinion affirming the judgment

of the District Court, the United States

Court of Appeals for the Ninth Circuit

determined:

"Considering the entire testi-

mony the trier of fact could justi-

fiably believe that appellant was

proposing a criminal scheme and had

the necessary criminal intent to

violate the statutory requirements.

See Neely v. United States, 274 F.2d

389 (9th Cir. 1960). Under those

circumstances we do not review the

fact finding of the trial court ex-

cept to determine whether there was

substantial evidence considered in

a light most favorable to the govern-

ment, to support a conclusion of de-

fendant's guilt beyond a reasonable

14.

doubt. United States v. Pheaster,

544 F.2d 353, 383 (9th Cir. 1976).

Here, the test was amply met.

"We have considered appellant's

related assignments and find them

to be without merit." United States

v. David Anthony (Appendix A).

On November 14, 1977, petitioner

filed a Petition For Rehearing before

the Ninth Circuit Court of Appeals. The

petitioner requested a rehearing on the

ground that the government agent herein

had a duty to inform the petitioner that

outside employment would be illegal, and

that this situation should have been

given further consideration by the Court

of Appeals in light of the issue it pre-

sents.

The Petition For Rehearing was denied

without Opinion.

15.

REASONS FOR GRANTING THE WRIT

I

THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE IF, BEFORE A TAXPAYER EM-

BARKS UPON A COURSE OF ACTION WHICH

HE DOES NOT KNOW IS ILLEGAL, THE TAX-

PAYER DISCUSSES SAID COURSE OF ACTION

WITH AN INTERNAL REVENUE AGENT WHO

ASSISTS, ENCOURAGES AND ADVISES THE

TAXPAYER TO ENGAGE IN SAID COURSE OF

ACTION FOR THE SOLE PURPOSE OF OBTAIN-

ING A CONVICTION, A CONVICTION LATER

OBTAINED IS THEREBY VIOLATIVE OF THE

TAXPAYER'S CONSTITUTIONAL RIGHT TO

DUE PROCESS OF LAW, AND WHETHER A

GOVERNMENT AGENT WHO KNOWS THAT A

TAXPAYER IS UNAWARE THAT HE IS PAR-

TICIPATING IN ILLEGAL ACTIVITY HAS

A DUTY TO WARN SAID TAXPAYER OF THE

ILLEGALITY

In this particular case, a taxpayer

asked a government employee to work for

him, to wit, to legally dissolve a corpo-

ration. The taxpayer was required to dis-

solve the corporation in order to comply

with a new Gardena ordinance which states

that gambling institutions within its

jurisdiction must forthwith be personally

owned.

When the taxpayer offered the govern-

ment employee payment for his time and

services, the government employee, Masigla,

16.

reported the offer to the Internal Reve-

nue Service as an attempted bribe. He

thereafter told the taxpayer that he had

researched the area and that he could

dissolve the corporation. Masigla never

explained that he was neither permitted

to do outside work nor to receive compen-

sation for his services.

The facts presented in the taped con-

versations, as well as in the transcripts

on appeal in the case herein, reveal that

although Internal Revenue agent Masigla

realized that the petitioner had no choice

but to dissolve the corporation, he led

the petitioner to believe that the corpo-

ration could be dissolved in only one

way: by predating the corporate minutes.

The record herein further reveals that

although Masigla told the petitioner that

he could do this work, Internal Revenue

Service regulations require that an agent

ask permission to do outside work. Such

permission was never requested by Masigla.

The petitioner constantly asked Masigla

if everything was being done legally.

Masigla told him that it was. The

17.

petitioner asked Masigla if he should get

an attorney to handle the actual liqui-

dation. Masigla told the petitioner

that that was not necessary.

At trial, Masigla testified that the

petitioner's question, whether the corpo-

ration could be treated as a sole pro-

prietorship, was a legitimate one; that

he did not inform the petitioner that he

was not allowed to moonlight because in

training he had been taught that mone-

tary offers should be left open and re-

ported to Internal Security Inspection.

Masigla therefore reported the offer as

an attempted bribe.

At the time, Masigla understood that

the corporation had to be dissolved to

comply with the law; that the petitioner's

old accountant was being uncooperative

as far as turning over records; and that

his new accountants didn't know what to

do. The petitioner told Masigla that he

wanted to dissolve the corporation in a

way that would give him the best tax ad-

vantage within the law. Predating corpo-

rate minutes was Masigla's idea.

18.

In United States v. Carroll, 518 F.2d

187, 200 (6th Cir. 1975), the Court

stated that Courts must not permit "the

process to be used in aid of a scheme for

the actual creation of crime by those

whose duty it is to deter its commission."

When the government is employed to pro-

mote rather than to prevent or detect

crime, it is directed toward an end for

which it was not constituted. United

States v. Demma, 523 F.2d 981, 982 (9th

Cir. 1975); Notaro v. United States, 363

F.2d 169, 174 (9th Cir. 1975). |

Throughout the several meetings with

the petitioner, Masigla could have ex-

plained to the petitioner that by reason

of his employment as an auditor for the

Internal Revenue Service, he could not

accept outside employment. Instead, he

allowed the petitioner to participate in

a situation that easily could have been

prevented. If Masigla immediately had

told the petitioner that he legally could

not do the work, and the petitioner then

had offered Masigla Two Thousand Dollars

($2,000) and a trip to Las Vegas, the

situation clearly would have been dif-

ferent than that before this Honorable

19.

Court. Absent a knowledge of the Internal

Revenue regulation that agents cannot moon-

light, a taxpayer would have no reason to

suspect that an offer of compensation for

employment readily accepted would be

labeled a "bribe."

Further, by leading the petitioner to

believe that there was only one way to

achieve the necessary dissolution, and

that this method would be legal, he in-

spired and persuaded the petitioner to

commit a crime that the petitioner other-

wise had no predisposition to commit.

Masigla instructed the petitioner to pre-

date the corporate minutes and to fill

out certain forms.

"(I]t is unconscionable and contrary

to public policy to puaish a man for

a crime he evidently never would

have committed were he not inspired,

incited and persuaded by officials

of the law. The Court decided that

under such circumstances no crime

was committed, for Congress could

not have intended that an act within

the literal meaning of a criminal

statute would be a crime incited by

20.

those whose purpose it is to prevent

crime." United States v. Klosterman,

248 F.2d 191, 194 (3rd Cir. 1957).

Ironically, it was not apparent from

the tapes or from the trial transcripts

that the petitioner-ever believed that

he was committing an illegal act. On

appeal, the Ninth Circuit stated that the

trier of fact could justifiably believe

that the petitioner was proposing a

criminal scheme and had the necessary

intent to violate the statutory require-

ments. The Court's rationale was omitted

from the Opinion. It is respectfully

submitted that the Court must have over-

looked the petitioner's concern with com-

plying with the law, in rendering its

decision.

It is clear that Masigla played upon

the ignorance of the petitioner, who had

neither a criminal record nor a predis-

position to achieve dissolution unlaw-

fully, and thereby induced him to commit

a crime. In order to prove that the of-

fense of bribery was committed, the bur-

den was on the government to prove that

the petitioner had a corrupt intent to

Bie

influence or to be influenced in official

conduct. United States v. Anderson, 509

F.2d 312, 329 (C.A. D.C. 1974). Yet, the

crux of the instant situation is that the

petitioner had no corrupt intent or pre-

disposition to engage in unlawful activity

when he offered Masigla employment.

United States v. Hampton, 425 U.S. 488

(1976); United States v. Russell, 411 U.S.

423 (1973); United States v. Sorrells, 287

U.S. 435 (1932); United States v. Carroll,

518 F.2d 187 (6th Cir. 1975). Masigla had

a duty then and there to inform the peti-

tioner that such was illegal. To that end

Masigla would have prevented the innocent

offer from going any further.

"When the Government permits itself

to become enmeshed in'‘criminal ac-

tivity, from beginning to end, to

the extent which appears here, the

same underlying objections which

render entrapment repugnant to

American criminal justice are oper-

ative. Under these circumstances,

the Government's conduct rises to

a level of ‘creative activity

(United States v. Sherman, 356 U.S.

22.

369, 372, 78 S.Ct. 819, 2 L.Ed.2d

848 (1958), substantially more in-

tense than the level of such activi-

ty charged against the Government

in numerous entrapment cases we have

examined.'" Green v. United States

454 F.2d 783 (9th Cir. 1968).

Masigla enmeshed himself in criminal

activity by failing to inform the peti-

tioner of its illegality and by telling

him that there was only one way to dis-

solve the corporation, that method being

illegal. Under these circumstances, a

criminal defendant should be acquitted

as a matter of public policy.

The law should not function as a trap

for the unwary, for those persons igno-

rant that what they are doing is a crime,

and for those who are corruptly influenced

and induced to commit crimes by govern-

ment agents whose duty it is to uphold

the law. It is submitted that it would

be a better system to educate those igno-

rant of the law and protect from illicit

influence those individuals with no pre-

disposition to commit crimes, in order

to achieve a just result.

23.

™he Due Process Clause of the Fifth

Amendment to the United States Constitu-

tion cannot be coterminous with convic-

tions for crimes based upon deceitful

representations and inducement by gov-

ernment agents. It is therefore respect-

fully submitted that this Court grant

Certiorari to determine if, before a

taxpayer embarks upon a course of action

which he does not know is illegal, the

taxpayer discusses said course of action

with an Internal Revenue agent who assists,

encourages and advises the taxpayer to

engage in said course of action for the

sole purpose of obtaining a conviction,

a conviction later obtaingd is thereby

violative of the taxpayer's constitutional

right to due process of law, and whether

a government agent who knows that a tax-

payer is unaware that he is participating

in illegal activity has a duty to warn

said taxpayer of the illegality.

24.

CONCLUSION

WHEREFORE, for all of the reasons and

upon all of the considerations set forth

above, the petitioner respectfully prays

that a Writ of Certiorari issue in the

within case to review the decision of the

Court of Appeals below.

Respectfully submitted,

RICHARD G. SHERMAN

\

Attorney for Petitioner

Anthony

25.

APPENDIX "A"

1)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

OCT 27 1977

Emil E. Melfi, Jr.

Clerk, U.S. Court

of Appeals

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )y. 76973]

) MEMORANDUM

vs.

DAVID ANTHONY,

Defendant-Appellant. )

Appeal from the United States District

Court for the Central District of

California

Before: TRASK, WALLACE and ANDERSON,

Circuit Judges

David Anthony was charged in an indict-

ment of a federal grand jury with three

counts of attempting to bribe and bribing

an agent of the Internal Revenue Service

in violation of 18 U.S.C. § 201(b) (briz ,

bery, graft and conflicts of interest).

1/ 18 U.S.C. § 201(b) provides:

"(b) Whoever, directly or indirectly,

corruptly gives offers or promises any-

thing of value to any public official or

person who has been selected to be a pub-

lic official, or offers or promises any

public official or any person (continued)

A-l.

He waived a jury trial and was thereupon

tried to the court. The court found him

not guilty on Counts One and Two of the

indictment but guilty on Count Three. The

evidence and the conclusions which might

be drawn therefrom are sharply inconflict.

Basically, appellant offered $2,000 and a

free trip to Las Vegas, Nevada if an audi-

tor of the Internal Revenue Service would

do some work for him "on his own time"

to liquidate a corporation with the papers

back-dated. The result would be a con-

siderable tax savings and savings in legal

1/ (continued) who has been selected to

be a public official to give anything

of value to any other person or entity,

with intent --

(1) to influence any official act;

or

(2) to influence such public offi-

cial or person who has been selected

to be a public official to commit or

aid in committing, or collude in, or

allow, any fraud, or make opportunity

for the commission of any fraud, on

the United States; or

(3) to induce such public official

or such person who has been selected

to be a public official to do or omit

to do any act in violation of his law-

ful Guty, OF . «2 e

A-2.

expense. Some of the conversations were

taped. Appellant's side of the story was

that he insisted frequently to the agent

that he wanted nothing done which was

illegal or in violation of the rules of

the Internal Revenue Service.

Considering the entire testimony the

trier of fact could justifiably believe

that appellant was proposing a criminal

scheme and had the necessary criminal in-

tent to violate the statutory requirements.

See Heely v. United States, 274 F.2d 389

(9th Cir. 1960). Under those circum-

stances we do not review the fact find-

ing of the trial court except to deter-

mine whether there was substantial evi-

dence, considered in a light most favor-

able to the government, to support a con-

clusion of defendant's guilt beyond a

reasonable doubt. United States v.

Pheaster, 544 §.2d 353, 383 (9th Cir.

1976). Here, the test was amply met.

We have considered appellant's related

assignments and find them to be without

merit.

Judgment AFFIRMED.

A-3.

Office of the Clerk

United States Court of Appeals for the

Ninth Circuit

U.S. Court of Appeals and Post Office

Building

7th & Mission Streets, P. O. Box 547

San Francisco, California 94101

October 27, 1977

TO ALL COUNSEL:

RE: No. 76-2731 - U.S.A. vs. David

Anthony

Dear Counsel:

An opinion was filed and judgment en-

tered in the above case today, October 27,

1977, affirming the judgment of the court

below (or administrative agency).

You have (14) days, from the above date,

in which to file a petition for rehearing.

The mandate of this court shall issue

(21) days after entry of judgment unless

the court enters an order otherwise. If

a petition for rehearing is filed and de-

nied, the mandate will issue (7) days after

the entry of the order denying the petition. —

Sincerely,

/s/ Emil D. Melfi, Jr.

Clerk of Court

Se Rules: 36,40 and 41 of the Federal

vf Rules of Appellate Procedure

CO 76.2

A-4.

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

DEC 19 1977

Emil D. Melfi, Jr.

Clerk, U.S. Court

of Appeals

UNITED STATES OF AMERICA, )

Plaintiff-Appellee,)y..

ve. 76-2731

DAVID ANTHONY, )

Defendant-Appellant. ’

Before: TRASK, WALLACE and ANDERSON,

Circuit Judges

The panel as constituted above have

voted unanimously to deny the petition

for rehearing.

The petition for rehearing is denied.